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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.

 

 

Case Summary


Cases appear under the following practice areas:

  • Attorneys (1)

    Full Text Opinion

    This summary also appears under Criminal Law

    e-Journal #: 73552
    Case: In re Attorney Fees of Mitchell T. Foster
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Fort Hood, Jansen, and Tuckel
    Issues:

    Attorney fees for postconviction work; MCR 6.425(G)(2); Compensation related to postconviction motions; MCR 6.425(G)(2)(a) & (b); Principle that a party claiming an appeal of right from a final order is free to raise issues on appeal related to prior orders; Green v. Ziegelman; MCR 7.202(6)(b); Compensation related to review of Freedom of Information Act (FOIA) materials; MCL 15.240(1)(b); Burden of proving the reasonableness of requested fees; Adair v. Michigan (On Fourth Remand); Petterman v. Haverhill Farms, Inc.; In re Ujlaky; Excessiveness of claimed time related to preparing the appellate brief; The abuse of discretion standard; National Waterworks, Inc. v. International Fid. & Sur., Ltd.

    Summary:

    The court concluded that the trial court erroneously held that appellant-Foster could not recover attorney fees for his work related to defendant-Rieman’s two postconviction motions. But it did not abuse its discretion by precluding compensation for his work related to FOIA requests or by setting the number of compensable hours for the time spent writing Rieman’s appellate brief at 21.5 hours. It precluded Foster from receiving compensation for some services he performed because it determined they were “not necessary” to his representation of Rieman in relation to his appeal. As to his “work pertaining to the postconviction motion to show cause and the postconviction motion to allow defendant to travel out of state and for removal of an alcohol tether, both of these motions involved matters related to the criminal case for which Foster was appointed to provide representation.” His endeavors clearly constituted work on “postconviction proceedings in the trial court the lawyer deem[ed] appropriate.” Thus, the trial court erred as a matter of law in ruling that they were beyond the scope of his responsibilities as appointed counsel. His “work in pursuit of the appeal of the trial court’s denial of the motion to show cause” was also compensable. Foster, acting on Rieman’s behalf, “would have to seek leave to appeal the trial court’s decision regarding the postjudgment motion to show cause, and this is precisely what he did.” Thus, under MCR 6.425(G)(2)(b), his “responsibilities included pursuing leave to appeal the trial court’s denial of the show-cause motion.” However, the court found no abuse of discretion with how the trial court handled his “work related to reviewing seven FOIA request letters issued by Rieman and the responses Rieman received because this work was not in the context of any postconviction proceeding. Any appeals from those FOIA rejections would have resulted in separate, original civil matters.” Further, Foster never mentioned the FOIA requests in his petition for attorney fees. The only reference to them was “in the spreadsheets he attached to his petition, which detailed how he spent his time.” The court noted that while “such billing records may substantiate how an attorney spent his time and which services he performed, they cannot demonstrate why said time and services were needed or reasonable.” Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

  • Civil Rights (1)

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 73588
    Case: Tlapanco v. Elges
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Gibbons and Siler; Concurrence - Thapar
    Issues:

    Action under 42 USC § 1983; Alleged Fourth Amendment violations; McCallum v. Geelhood (Unpub. 6th Cir.); United States v. Place; Probable cause; Peffer v. Stephens; United States v. Carter (Unpub. 6th Cir.); Yancey v. Carroll Cnty.; Totality of the circumstances; Gardenhire v. Schubert; Qualified immunity; Vakilian v. Shaw; Butler v. City of Detroit; Kisela v. Hughes; Ashford v. Raby; Ziglar v. Abbasi; Pearson v. Callahan; False arrest; Voyticky v. Village of Timberlake; Halasah v. City of Kirtland (Unpub. 6th Cir.); Malicious prosecution; Sykes v. Anderson; Sampson v. Village of Mackinaw City (Unpub. 6th Cir.); Meeks v. City of Detroit (Unpub. 6th Cir.); Whether a defendant was personally involved in unlawful conduct; Burley v. Gagacki; “Mirroring” a suspect’s electronic files; United States v. Ganias (Ganias I & II) (2d Cir.); United States v. Aboshady (1st Cir.); Municipal liability; Failure to train; City of Canton v. Harris; Arrington-Bey v. City of Bedford Heights; Hagans v. Franklin Cnty.; Final policymaking authority; City of St. Louis v. Praprotnik; Jones v. Clark Cnty.; Miller v. Calhoun Cnty.; Adair v. Charter Cnty. of Wayne

    Summary:

    [This appeal was from the ED-MI.] The court held that the district court did not err by granting summary judgment for defendants-McCabe and Oakland County, but did err by granting qualified immunity to defendant-Elges on plaintiff-Tlapanco's unlawful search and seizure, unlawful arrest, and malicious prosecution claims. Plaintiff was charged after a young high school girl faced threats of blackmail on a social media application. It was discovered that he was the wrong person, and he sued defendants, alleging unlawful search of his apartment and seizure of his electronic devices, unreasonable arrest and imprisonment, unlawful search and seizure by copying the data on his devices after dismissal of the case against him, malicious prosecution, and county liability based on failure to train and McCabe’s decision to copy his data as a final policymaker for the county. The court first concluded that a reasonable juror could find that Elges violated plaintiff’s rights to be free from warrantless searches and seizures, arrest without probable cause, and malicious prosecution. While there was “no indication that Elges acted intentionally or deliberately, a reasonable jury could find [he] recklessly disregarded information in his possession negating probable cause that the username ‘anonymous,’ and by extension Tlapanco, was responsible for hacking [the victim] or sending the messages.” As such, there was “a genuine issue of material fact whether the statements of material fact or omissions in Elges’s affidavit were made recklessly.” Further, a reasonable jury could find that he “lacked probable cause to arrest Tlapanco and that the right to be free from arrest without probable cause was clearly established.” A reasonable jury could also “find that Elges violated his Fourth Amendment right to be free from malicious prosecution and that a reasonable officer would have been aware of the violation.” But McCabe was properly granted summary judgment based on qualified immunity as “there was no clearly established Fourth Amendment right against investigators retaining a forensic mirror of electronic devices after returning the physical devices.” Finally, plaintiff’s “exclusive reliance on McCabe’s deposition testimony regarding his second-in-command duties within” the county sheriff’s office was insufficient to “provide evidence that McCabe had final policymaking authority to establish particular search and seizure practices for” the county. Affirmed in part and reversed in part.

    Full Text Opinion

  • Constitutional Law (2)

    Full Text Opinion

    This summary also appears under Civil Rights

    e-Journal #: 73588
    Case: Tlapanco v. Elges
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Gibbons and Siler; Concurrence - Thapar
    Issues:

    Action under 42 USC § 1983; Alleged Fourth Amendment violations; McCallum v. Geelhood (Unpub. 6th Cir.); United States v. Place; Probable cause; Peffer v. Stephens; United States v. Carter (Unpub. 6th Cir.); Yancey v. Carroll Cnty.; Totality of the circumstances; Gardenhire v. Schubert; Qualified immunity; Vakilian v. Shaw; Butler v. City of Detroit; Kisela v. Hughes; Ashford v. Raby; Ziglar v. Abbasi; Pearson v. Callahan; False arrest; Voyticky v. Village of Timberlake; Halasah v. City of Kirtland (Unpub. 6th Cir.); Malicious prosecution; Sykes v. Anderson; Sampson v. Village of Mackinaw City (Unpub. 6th Cir.); Meeks v. City of Detroit (Unpub. 6th Cir.); Whether a defendant was personally involved in unlawful conduct; Burley v. Gagacki; “Mirroring” a suspect’s electronic files; United States v. Ganias (Ganias I & II) (2d Cir.); United States v. Aboshady (1st Cir.); Municipal liability; Failure to train; City of Canton v. Harris; Arrington-Bey v. City of Bedford Heights; Hagans v. Franklin Cnty.; Final policymaking authority; City of St. Louis v. Praprotnik; Jones v. Clark Cnty.; Miller v. Calhoun Cnty.; Adair v. Charter Cnty. of Wayne

    Summary:

    [This appeal was from the ED-MI.] The court held that the district court did not err by granting summary judgment for defendants-McCabe and Oakland County, but did err by granting qualified immunity to defendant-Elges on plaintiff-Tlapanco's unlawful search and seizure, unlawful arrest, and malicious prosecution claims. Plaintiff was charged after a young high school girl faced threats of blackmail on a social media application. It was discovered that he was the wrong person, and he sued defendants, alleging unlawful search of his apartment and seizure of his electronic devices, unreasonable arrest and imprisonment, unlawful search and seizure by copying the data on his devices after dismissal of the case against him, malicious prosecution, and county liability based on failure to train and McCabe’s decision to copy his data as a final policymaker for the county. The court first concluded that a reasonable juror could find that Elges violated plaintiff’s rights to be free from warrantless searches and seizures, arrest without probable cause, and malicious prosecution. While there was “no indication that Elges acted intentionally or deliberately, a reasonable jury could find [he] recklessly disregarded information in his possession negating probable cause that the username ‘anonymous,’ and by extension Tlapanco, was responsible for hacking [the victim] or sending the messages.” As such, there was “a genuine issue of material fact whether the statements of material fact or omissions in Elges’s affidavit were made recklessly.” Further, a reasonable jury could find that he “lacked probable cause to arrest Tlapanco and that the right to be free from arrest without probable cause was clearly established.” A reasonable jury could also “find that Elges violated his Fourth Amendment right to be free from malicious prosecution and that a reasonable officer would have been aware of the violation.” But McCabe was properly granted summary judgment based on qualified immunity as “there was no clearly established Fourth Amendment right against investigators retaining a forensic mirror of electronic devices after returning the physical devices.” Finally, plaintiff’s “exclusive reliance on McCabe’s deposition testimony regarding his second-in-command duties within” the county sheriff’s office was insufficient to “provide evidence that McCabe had final policymaking authority to establish particular search and seizure practices for” the county. Affirmed in part and reversed in part.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Criminal Law

    e-Journal #: 73592
    Case: Wofford v. Woods
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Boggs, Batchelder, and Donald
    Issues:

    Habeas corpus; 28 USC § 2254(d); Whether the Michigan Court of Appeals’ (MCOA) decision was entitled to deference under the Anti-Terrorism & Effective Death Penalty Act (AEDPA); Sixth Amendment right to an impartial jury; Ramos v. Louisiana; Principle that the state courts are not bound by the federal appellate courts’ decisions on constitutional questions; Johnson v. Williams; Michigan law on juror removal; People v. Tate; People v. Dry Land Marina, Inc.; Federal law on juror removal; United States v. Symington (9th Cir.); United States v. Brown (DC Cir.); United States v. Thomas (2d Cir.); Prophylactic rule requiring retrial whenever an alternate was seated once deliberation had begun; United States v. Lamb (9th Cir.); Cases adopting a rule requiring a showing of actual prejudice; United States v. Phillips (5th Cir.); United States v. Kopituk (11th Cir.); United States v. Hillard (2d Cir.); Case law showing the Michigan courts are aware of Sixth Amendment concerns & know how to address them; People v. Cooks (MI); People v. van Camp (MI)

    Summary:

    [This appeal was from the ED-MI.] In an issue of first impression in this circuit, the court held that the MCOA was free to require that petitioner-Wofford show an actual violation of his Sixth Amendment right to an impartial jury, and that it implicitly but clearly did so. The court concluded that the district court should have afforded AEDPA deference to the MCOA’s ruling, and that there was no actual constitutional violation in this case. Thus, while it upheld the district court’s factual findings, the court reversed its legal conclusion granting a writ of habeas corpus, and remanded. Wofford was found guilty of murder after a juror (M) was removed and replaced. While M “was holding out against conviction at the time, the judge removed her because of her misconduct: she had violated his instructions not to discuss the case with anyone other than her fellow jurors by hiring a lawyer to address the court about the tensions in the jury room.” The MCOA affirmed his conviction under “state precedent on juror removal.” The district court ruled that the MCOA’s decision was not entitled to AEDPA deference because the MCOA “overlooked Wofford’s Sixth Amendment claims.” It also ruled that M’s removal “violated Wofford’s Sixth Amendment rights.” The court agreed with the factual determinations that M was removed for cause and “not because of her opinion on the case.” However, it disagreed with the district court’s legal conclusion that Wofford was entitled to habeas relief. To accept his theory for why AEDPA should not apply, the court “would have to hold that the MCOA ignored and sub silentio contravened” a great deal of precedent in deciding this case. “The better reading is that it considered the problem and saw no constitutional violation.” AEDPA applied. Wofford needed a prophylactic rule, adopted by other circuits and some states, “holding that where there is a ‘reasonable possibility’ that the removal decision stems from the juror’s views on the merits of the case, such removal is impermissible and is grounds for reversal of a conviction and a new trial.” However, “Michigan chose not to go in that direction.” Since AEDPA applied, the court could not “use Brown-Thomas-Symington as the benchmark to evaluate” the Michigan courts’ decisions. Wofford did not cite a Supreme Court case “that would support the application of the Brown-Thomas-Symington rule or of any other analogous rule.”

    Full Text Opinion

  • Criminal Law (3)

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 73552
    Case: In re Attorney Fees of Mitchell T. Foster
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Fort Hood, Jansen, and Tuckel
    Issues:

    Attorney fees for postconviction work; MCR 6.425(G)(2); Compensation related to postconviction motions; MCR 6.425(G)(2)(a) & (b); Principle that a party claiming an appeal of right from a final order is free to raise issues on appeal related to prior orders; Green v. Ziegelman; MCR 7.202(6)(b); Compensation related to review of Freedom of Information Act (FOIA) materials; MCL 15.240(1)(b); Burden of proving the reasonableness of requested fees; Adair v. Michigan (On Fourth Remand); Petterman v. Haverhill Farms, Inc.; In re Ujlaky; Excessiveness of claimed time related to preparing the appellate brief; The abuse of discretion standard; National Waterworks, Inc. v. International Fid. & Sur., Ltd.

    Summary:

    The court concluded that the trial court erroneously held that appellant-Foster could not recover attorney fees for his work related to defendant-Rieman’s two postconviction motions. But it did not abuse its discretion by precluding compensation for his work related to FOIA requests or by setting the number of compensable hours for the time spent writing Rieman’s appellate brief at 21.5 hours. It precluded Foster from receiving compensation for some services he performed because it determined they were “not necessary” to his representation of Rieman in relation to his appeal. As to his “work pertaining to the postconviction motion to show cause and the postconviction motion to allow defendant to travel out of state and for removal of an alcohol tether, both of these motions involved matters related to the criminal case for which Foster was appointed to provide representation.” His endeavors clearly constituted work on “postconviction proceedings in the trial court the lawyer deem[ed] appropriate.” Thus, the trial court erred as a matter of law in ruling that they were beyond the scope of his responsibilities as appointed counsel. His “work in pursuit of the appeal of the trial court’s denial of the motion to show cause” was also compensable. Foster, acting on Rieman’s behalf, “would have to seek leave to appeal the trial court’s decision regarding the postjudgment motion to show cause, and this is precisely what he did.” Thus, under MCR 6.425(G)(2)(b), his “responsibilities included pursuing leave to appeal the trial court’s denial of the show-cause motion.” However, the court found no abuse of discretion with how the trial court handled his “work related to reviewing seven FOIA request letters issued by Rieman and the responses Rieman received because this work was not in the context of any postconviction proceeding. Any appeals from those FOIA rejections would have resulted in separate, original civil matters.” Further, Foster never mentioned the FOIA requests in his petition for attorney fees. The only reference to them was “in the spreadsheets he attached to his petition, which detailed how he spent his time.” The court noted that while “such billing records may substantiate how an attorney spent his time and which services he performed, they cannot demonstrate why said time and services were needed or reasonable.” Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73533
    Case: People v. Washington
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Borrello, Sawyer, and Servitto
    Issues:

    Great weight of the evidence; People v. Lemmon; People v. Perry; The trial court’s failure to ensure that defendant had appropriate attire for trial & refusal to allow him to wear a suit provided by defense counsel; People v. Lewis; Failure to strike testimony from the arresting officer; MRE 401; Failure to provide a curative instruction; Prosecutorial error; People v. Watson; People v. Dobek; People v. Long; Ineffective assistance of counsel; Failure to ensure that defendant had appropriate attire for court; Failure to object to the officer’s testimony; Failure to establish that no guns or ammunition were discovered; Failure to adequately question a witness; Cumulative effects of alleged errors; Sentencing; Use of an erroneous guidelines range; People v. Francisco; Habitual-offender notice; MCL 769.12; MCL 769.13(1) & (2); People v. Head; MCR 6.112(H); Assault with intent to commit murder (AWIM); Felon in possession (FIP)

    Summary:

    The court determined that the jury’s verdict was not against the great weight of the evidence, that the trial court did not violate defendant’s due process rights, and that he was not denied the effective assistance of counsel. But, as the prosecution conceded, because the trial court erroneously sentenced him using the incorrect guidelines range, he was entitled to be resentenced. Finally, the trial court did not plainly err by sentencing him as a fourth-offense habitual offender. He was convicted of AWIM, FIP of a firearm, FIP of ammunition, and felony-firearm, second offense. He was sentenced as a fourth-offense habitual offender to concurrent prison terms of 20 years to 20 years and 1 day for assault, and 2 to 3 years for each FIP conviction, to be served consecutive to a 5-year term for felony-firearm. Defendant argued that he should receive a new trial because the great weight of the evidence failed to show that he was the shooter, particularly because victim-M testified that the shooter was wearing all black, but witness-E, “who was with defendant, testified that defendant was wearing a blue and yellow jacket.” The court held that sufficient circumstantial evidence, including video surveillance, supported his identity as the shooter. It noted that “the jury was aware of the conflict in the clothing descriptions of defendant and the shooter. Defense counsel cross-examined both [M] and [E], clearly emphasizing the conflict in what [E] stated that defendant was wearing and what [M] claimed the shooter was wearing, and presented credibility arguments to the jury, including that defendant could not be the shooter.” However, it was within the jury’s province to “discount the accuracy or reliability of [M’s] description of the shooter’s clothing, and find that defendant’s identity as the shooter was established by the evidence that the gunshots were fired approximately a minute after defendant abruptly altered his course to proceed between the same buildings where [M] had walked, and the testimony that no one else was in the area.” The evidence did “not preponderate so heavily against the jury’s verdict that it would be a miscarriage of justice to allow the verdict to stand.” Affirmed but remanded for resentencing.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 73592
    Case: Wofford v. Woods
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Boggs, Batchelder, and Donald
    Issues:

    Habeas corpus; 28 USC § 2254(d); Whether the Michigan Court of Appeals’ (MCOA) decision was entitled to deference under the Anti-Terrorism & Effective Death Penalty Act (AEDPA); Sixth Amendment right to an impartial jury; Ramos v. Louisiana; Principle that the state courts are not bound by the federal appellate courts’ decisions on constitutional questions; Johnson v. Williams; Michigan law on juror removal; People v. Tate; People v. Dry Land Marina, Inc.; Federal law on juror removal; United States v. Symington (9th Cir.); United States v. Brown (DC Cir.); United States v. Thomas (2d Cir.); Prophylactic rule requiring retrial whenever an alternate was seated once deliberation had begun; United States v. Lamb (9th Cir.); Cases adopting a rule requiring a showing of actual prejudice; United States v. Phillips (5th Cir.); United States v. Kopituk (11th Cir.); United States v. Hillard (2d Cir.); Case law showing the Michigan courts are aware of Sixth Amendment concerns & know how to address them; People v. Cooks (MI); People v. van Camp (MI)

    Summary:

    [This appeal was from the ED-MI.] In an issue of first impression in this circuit, the court held that the MCOA was free to require that petitioner-Wofford show an actual violation of his Sixth Amendment right to an impartial jury, and that it implicitly but clearly did so. The court concluded that the district court should have afforded AEDPA deference to the MCOA’s ruling, and that there was no actual constitutional violation in this case. Thus, while it upheld the district court’s factual findings, the court reversed its legal conclusion granting a writ of habeas corpus, and remanded. Wofford was found guilty of murder after a juror (M) was removed and replaced. While M “was holding out against conviction at the time, the judge removed her because of her misconduct: she had violated his instructions not to discuss the case with anyone other than her fellow jurors by hiring a lawyer to address the court about the tensions in the jury room.” The MCOA affirmed his conviction under “state precedent on juror removal.” The district court ruled that the MCOA’s decision was not entitled to AEDPA deference because the MCOA “overlooked Wofford’s Sixth Amendment claims.” It also ruled that M’s removal “violated Wofford’s Sixth Amendment rights.” The court agreed with the factual determinations that M was removed for cause and “not because of her opinion on the case.” However, it disagreed with the district court’s legal conclusion that Wofford was entitled to habeas relief. To accept his theory for why AEDPA should not apply, the court “would have to hold that the MCOA ignored and sub silentio contravened” a great deal of precedent in deciding this case. “The better reading is that it considered the problem and saw no constitutional violation.” AEDPA applied. Wofford needed a prophylactic rule, adopted by other circuits and some states, “holding that where there is a ‘reasonable possibility’ that the removal decision stems from the juror’s views on the merits of the case, such removal is impermissible and is grounds for reversal of a conviction and a new trial.” However, “Michigan chose not to go in that direction.” Since AEDPA applied, the court could not “use Brown-Thomas-Symington as the benchmark to evaluate” the Michigan courts’ decisions. Wofford did not cite a Supreme Court case “that would support the application of the Brown-Thomas-Symington rule or of any other analogous rule.”

    Full Text Opinion

  • Probate (1)

    Full Text Opinion

    This summary also appears under Wills & Trusts

    e-Journal #: 73549
    Case: In re Louis F. Basso Jr. Revocable Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, M.J. Kelly, and Boonstra
    Issues:

    Alleged violation of the trustee’s duties by failing to distribute $40,000 to a beneficiary & purchase her a condominium; Trust interpretation; In re Estate of Stan; In re Kostin; In re Raymond Estate; Fiduciary duty; MCL 700.1212(1); Hertz v. Miklowski; “Shall”; Smitter v. Thornapple Twp.; “Any”; People v. Hesch; A discretionary trust provision; MCL 700.7103(d)(1); Sanctions; Kitchen v. Kitchen; MCL 600.2591(3)

    Summary:

    The court rejected appellant-Mary Basso’s claim that appellee-Fraser violated his duties as trustee by not distributing $40,000 to her and purchasing a condo for her pursuant to the terms of the trust, and upheld the probate court’s imposition of sanctions upon her under MCL 600.2591(3). Mary appealed the order of the probate court allowing the second annual accounting filed by Fraser, successor trustee of the trust, “denying Basso’s objections to the accounting, and awarding sanctions to Fraser and the trust to be paid by Basso personally.” The trust contained a provision for the distribution of the proceeds of the sale of a home, “a separate provision for the distribution of $40,000 directly to Mary, and a third residuary clause governing the distribution of any remaining trust assets.” Reading the provisions together, it was clear that Mary was “to receive $40,000 in cash from the remainder of the estate, separate from the proceeds of the sale of the Alderly Way home. Regarding the $40,000 distribution, it was clear from the first accounting filed by Fraser that, due primarily to Mary’s ceaseless litigation, there simply were insufficient trust assets to pay her that distribution.” The court concluded that “the distribution of the proceeds of the sale of the home was the subject of a separate, detailed provision; apart from those proceeds, the cupboard was bare and Mary’s distribution could not be made.” As to the failure to cause the trust to purchase her a one-bedroom condo, Fraser argued that the trust language “permitted him to spend ‘any’ amount of the proceeds ‘in his sole discretion’ toward this end, and that, in light of the depletion of a large portion of the trust assets, the possibility of further litigation, and his fiduciary duty towards all beneficiaries, not just Mary, he” opted to exercise this discretion not to spend trust assets on the condo. The court agreed. It also held that the probate court correctly imposed sanctions upon her for filing frivolous objections to the petition for a second accounting. Affirmed.

    Full Text Opinion

  • Wills & Trusts (1)

    Full Text Opinion

    This summary also appears under Probate

    e-Journal #: 73549
    Case: In re Louis F. Basso Jr. Revocable Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, M.J. Kelly, and Boonstra
    Issues:

    Alleged violation of the trustee’s duties by failing to distribute $40,000 to a beneficiary & purchase her a condominium; Trust interpretation; In re Estate of Stan; In re Kostin; In re Raymond Estate; Fiduciary duty; MCL 700.1212(1); Hertz v. Miklowski; “Shall”; Smitter v. Thornapple Twp.; “Any”; People v. Hesch; A discretionary trust provision; MCL 700.7103(d)(1); Sanctions; Kitchen v. Kitchen; MCL 600.2591(3)

    Summary:

    The court rejected appellant-Mary Basso’s claim that appellee-Fraser violated his duties as trustee by not distributing $40,000 to her and purchasing a condo for her pursuant to the terms of the trust, and upheld the probate court’s imposition of sanctions upon her under MCL 600.2591(3). Mary appealed the order of the probate court allowing the second annual accounting filed by Fraser, successor trustee of the trust, “denying Basso’s objections to the accounting, and awarding sanctions to Fraser and the trust to be paid by Basso personally.” The trust contained a provision for the distribution of the proceeds of the sale of a home, “a separate provision for the distribution of $40,000 directly to Mary, and a third residuary clause governing the distribution of any remaining trust assets.” Reading the provisions together, it was clear that Mary was “to receive $40,000 in cash from the remainder of the estate, separate from the proceeds of the sale of the Alderly Way home. Regarding the $40,000 distribution, it was clear from the first accounting filed by Fraser that, due primarily to Mary’s ceaseless litigation, there simply were insufficient trust assets to pay her that distribution.” The court concluded that “the distribution of the proceeds of the sale of the home was the subject of a separate, detailed provision; apart from those proceeds, the cupboard was bare and Mary’s distribution could not be made.” As to the failure to cause the trust to purchase her a one-bedroom condo, Fraser argued that the trust language “permitted him to spend ‘any’ amount of the proceeds ‘in his sole discretion’ toward this end, and that, in light of the depletion of a large portion of the trust assets, the possibility of further litigation, and his fiduciary duty towards all beneficiaries, not just Mary, he” opted to exercise this discretion not to spend trust assets on the condo. The court agreed. It also held that the probate court correctly imposed sanctions upon her for filing frivolous objections to the petition for a second accounting. Affirmed.

    Full Text Opinion

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