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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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

Please note: The State Bar of Michigan will be closed Monday, September 7 in observance of Labor Day. The e-Journal will resume publication on September 8, 2020.

Includes a summary of one Michigan Court of Appeals published opinion under Election Law/Municipal.


Cases appear under the following practice areas:

    • Civil Rights (1)

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      This summary also appears under Constitutional Law

      e-Journal #: 73730
      Case: Atkins v. Parker
      Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
      Judges: Kethledge and Murphy; Dissent – Gilman
      Issues:

      42 USC § 1983 action alleging deliberate indifference to inmates’ serious medical needs; U.S. Const. amend. VIII; Estelle v. Gamble; Farmer v. Brennan; The objective component; Rhinehart v. Scutt; Deference to the district court’s factual findings after a bench trial; United States v. Demjanjuk; Anderson v. City of Bessemer City

      Summary:

      In this § 1983 class action, the court affirmed the district court’s ruling that defendant-Tennessee Department of Corrections’ medical director (Williams) was not deliberately indifferent to plaintiffs-inmates’ serious medical needs by implementing a prioritization guidance procedure to determine which inmates with hepatitis C received direct-acting antivirals. A group of Tennessee prisoners who suffer from hepatitis C sued the Department of Corrections and Williams, claiming that the Department’s procedures for choosing the prisoners who are provided with the very expensive antivirals constituted deliberate indifference to the serious medical needs of those who were not chosen. An advisory committee decides whether an inmate will receive the medication. After a bench trial, the district court found for defendants. Agreeing that the inmates established a “serious medical need," the court then considered whether they showed that Williams “‘so recklessly ignored the risk’ of hepatitis C” when designing and implementing the prioritization guidance procedures, “that he was deliberately indifferent to that risk.” The court reviewed the procedures and concluded that Williams sought to use “the finite resources at his disposal to maximize their benefit for the inmates in his care.” It rejected plaintiffs’ argument that Williams should have asked the legislature for more money when there was no evidence that he could have received more than he had already requested.

    • Constitutional Law (1)

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      This summary also appears under Civil Rights

      e-Journal #: 73730
      Case: Atkins v. Parker
      Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
      Judges: Kethledge and Murphy; Dissent – Gilman
      Issues:

      42 USC § 1983 action alleging deliberate indifference to inmates’ serious medical needs; U.S. Const. amend. VIII; Estelle v. Gamble; Farmer v. Brennan; The objective component; Rhinehart v. Scutt; Deference to the district court’s factual findings after a bench trial; United States v. Demjanjuk; Anderson v. City of Bessemer City

      Summary:

      In this § 1983 class action, the court affirmed the district court’s ruling that defendant-Tennessee Department of Corrections’ medical director (Williams) was not deliberately indifferent to plaintiffs-inmates’ serious medical needs by implementing a prioritization guidance procedure to determine which inmates with hepatitis C received direct-acting antivirals. A group of Tennessee prisoners who suffer from hepatitis C sued the Department of Corrections and Williams, claiming that the Department’s procedures for choosing the prisoners who are provided with the very expensive antivirals constituted deliberate indifference to the serious medical needs of those who were not chosen. An advisory committee decides whether an inmate will receive the medication. After a bench trial, the district court found for defendants. Agreeing that the inmates established a “serious medical need," the court then considered whether they showed that Williams “‘so recklessly ignored the risk’ of hepatitis C” when designing and implementing the prioritization guidance procedures, “that he was deliberately indifferent to that risk.” The court reviewed the procedures and concluded that Williams sought to use “the finite resources at his disposal to maximize their benefit for the inmates in his care.” It rejected plaintiffs’ argument that Williams should have asked the legislature for more money when there was no evidence that he could have received more than he had already requested.

    • Criminal Law (2)

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      e-Journal #: 73694
      Case: People v. Heck
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gleicher, Stephens, and Cameron
      Issues:

      Prosecutorial misconduct; Jury selection; Discrimination; Batson v. Kentucky; People v. Knight; Whether the prosecution’s remarks denied defendant a fair trial; People v. Brown; People v. Thomas; People v. Ericksen; Presumption that jurors follow their instructions; People v. Mullins; Possession of a controlled substance analogue; MCL 333.7403(1); People v. Hartuniewicz; Prejudice; People v. Unger; Cumulative error; People v. Cooper; People v. Dobek; Ineffective assistance of counsel; Deadlocked jury instruction; M Crim JI 3.12; People v. Sullivan; People v. Hardin; People v. Bookout; Ineffective assistance of counsel; Strickland v. Washington; People v. Solmonson; Failure to raise a futile objection; People v. Ericksen

      Summary:

      The court held that the prosecution did not commit misconduct, that the trial court did not err in giving a deadlocked jury instruction, and that defendant’s counsel was not ineffective. He was convicted of possession of a controlled substance analogue. On appeal, the court rejected his argument that the prosecution improperly used a peremptory challenge to remove the only African-American individual from the jury venire. “Two jurors stated they would not follow the law and find the defendant guilty in the above scenario; the prosecutor excused both.” In addition, it rejected his claim that the prosecution denied him a fair trial by repeatedly eliciting testimony that he was on probation at the time of his offense, noting the statements were based on the evidence. It also rejected his contention that the prosecution improperly elicited testimony that defendant admitted to using Suboxone and cocaine, which was not relevant to the charged possession offense. Evidence that he “used Suboxone around the time in question was relevant to establish his knowledge that Suboxone was in his house and was directly responsive to the defense claims. Although [his] cocaine use was not relevant, this brief comment did not render [his] trial unfair.” It further found that any improper statements were either cured or not prejudicial, and that cumulative errors did not prejudicially infect his trial. The court next rejected his argument that the trial court’s deadlocked jury instruction was erroneous, noting it “did not constitute a substantial departure because the court ‘did not require or threaten to require the jury to deliberate for an unreasonable length of time or unreasonable intervals.’ Sending the jury home at the end of the day is not coercive.” Finally, it rejected his claim that his counsel was ineffective by failing to object to the alleged prosecutorial misconduct and by failing to challenge the deadlocked jury instruction, finding his claims meritless. Affirmed.

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      e-Journal #: 73731
      Case: Unites States v. Sherrill
      Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
      Judges: Clay and Moore; Concurring in part & in the judgment – Murphy
      Issues:

      Denial of motion to sever two defendants’ trials; Fed.R.Crim.P. 14(a); Zafiro v. United States; Admission of a non-testifying codefendant’s redacted statement; The Confrontation Clause; Bruton v. United States; Richardson v. Marsh; Gray v. Maryland; United States v. Vasilakos; Admissibility of photos; FRE 403; United States v. Sassanelli; “Unfair prejudice”; United States v. Mendez-Ortiz; United States v. Tolbert (Unpub. 6th Cir.); Sufficiency of the evidence to support convictions for attempt to commit Hobbs Act robbery; Taylor v. United States; United States v. Clark; United States v. Ostrander; Aiding & abetting; Rosemond v. United States; United States v. Davis; Sufficiency of the evidence that two of the defendants used or carried a firearm in relation to a crime of violence; Sentencing; Procedural reasonableness; 18 USC § 3553(a) factors; United States v. Perez-Rodriguez; USSG § 3B1.2(b); United States v. Daneshvar; United States v. Brown; Substantive reasonableness; United States v. Greco; United States v. Higgins; Cruel & unusual punishment; U.S. Const. amend. VIII; United States v. Young; Getsy v. Mitchell; United States v. Abdulmutallab; Sentence within the statutory maximum; United States v. Moore; A life sentence for a person between 18 & 21; Graham v. Florida; Pike v. Gross

      Summary:

      The court affirmed defendants’ convictions and sentences, holding that defendants-Sommerville and Sherrill’s confrontation rights were not violated by the admission of non-testifying codefendant-Poindexter's statement about the crime at defendants’ joint trial because their names were redacted and neutral terms substituted. Defendants were convicted of Hobbs Act robbery and of the knowing use or carrying of a firearm during and in relation to a crime of violence, or aiding and abetting those crimes. Sommerville was also convicted of possessing a firearm in furtherance of a crime of violence and of causing the death of a person through the use of a firearm in relation to a crime of violence. He and Sherrill argued that the district court erred by denying their motion to sever their trials, claiming that they were denied an opportunity to cross-examine Poindexter because he exercised his Fifth Amendment rights against self-incrimination. The court held that the district court properly handled the situation by redacting Sherrill’s and Sommerville’s names and replacing them with a “neutral terms like ‘someone,’” thus avoiding a Bruton violation. As to the admission of photos that could confirm Sherrill’s gang membership, the court held that they were properly admitted to “help[] establish the relationship between the codefendants, as well as their identities,” and that their probative value outweighed any unfair prejudice. It next held that there was sufficient evidence to support defendants’ convictions for attempt to commit Hobbs Act robbery where there was evidence of an effect on interstate commerce. Further, there was sufficient evidence to convict Sherrill and Poindexter as aiders and abettors on the basis they actively planned or participated in the robbery. As to their sentences, the court first held that Sherrill was properly denied a two-level adjustment for his allegedly “minor role” in the robbery. His substantive reasonableness argument failed where the court held that the district court “reasonably balanced the § 3553(a) factors in imposing its chosen sentence.” Poindexter’s sentence was also reasonable. As to Sommerville, he “planned the robbery, convinced others to participate, shot [two people], and subsequently threatened other witnesses with violence if they spoke with law enforcement about the crime.” The court noted that “‘[a] sentence within the statutory maximum . . . generally does not constitute “cruel and unusual” punishment.’” It opined that this was the case here. But a future case may consider “whether a life sentence would be cruel and unusual or substantively unreasonable if a young-adult defendant’s criminal history and other conduct do not outweigh his youth.”

    • Cyber Law (1)

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      This summary also appears under Intellectual Property

      e-Journal #: 73727
      Case: ECIMOS, LLC v. Carrier Corp.
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Boggs, Clay, and Gibbons
      Issues:

      Copyright infringement case involving database-script source code; Lexmark Int’l, Inc. v. Static Control Components, Inc.; Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.; De minimis defense; Gordon v. Nextel Commc’ns; Oracle Am., Inc. v. Google Inc. (Fed. Cir.); Dun & Bradstreet Software Servs. Inc., v. Grace Consulting Inc. (3d Cir.); MiTek Holdings, Inc. v. Arce Eng’g Co. (11th Cir.); 17 USC §§ 106(2)–(3); Stromback v. New Line Cinema; Design Data Corp. v. Unigate Enter., Inc. (9th Cir.); Actual damages; § 504(b); Remittitur; Gregory v. Shelby Cnty.; Cotter v. Christus Gardens, Inc.; Thoroughbred Software Int’l, Inc. v. Dice Corp.; Disgorgement damages; Balsley v. LFP, Inc.; Bridgeport Music, Inc. v. Justin Combs Publ'g; Oracle Corp. v. SAP AG (9th Cir.); Amado v. Microsoft Corp. (Fed. Cir.); Veracode Inc. v. Appthority, Inc. (D MA); Golight, Inc. v. Wal-Mart Stores, Inc. (Fed. Cir.); Stay of an injunction that prohibited defendant from using the infringing database; Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc.; LFP IP, LLC v. Hustler Cincinnati, Inc.; “Safe-distance rule"; Innovation Ventures, LLC v. N2G Distrib., Inc.; Taubman Co. v. Webfeats; PRL USA Holdings, Inc. v. U.S. Polo Ass'n, Inc. (2d Cir.)

      Summary:

      The court held that the district court properly denied defendant-Carrier’s motion for judgment as a matter of law or a new trial where Carrier had infringed on plaintiff-ECIMOS’s copyright for a database script source code. After the parties terminated their business relationship, ECIMOS sued Carrier, alleging that it infringed on ECIMOS’s copyrighted database-script source code to aide a third party’s development of software Carrier now uses. A jury found for ECIMOS on its copyright claim and its Tennessee law contract claim, and the district court enjoined Carrier from using the database, but stayed the injunction. The court first rejected Carrier’s argument that its use of the source code was de minimis, holding that a de minimis “‘defense does not apply where the qualitative value of the copying is material.’” But it held that the district court erred by including a $118,000 “software migration fee” in the actual damages award where ECIMOS can only recover “damages that resulted from ‘the loss in the fair market value of the copyright, measured by the profits lost due to the infringement or by the value of the use of the copyrighted work to the infringer.’” Thus, it reduced the jury’s award for actual damages to $164,800. However, the court affirmed the $5 million disgorgement award where ECIMOS established proof of Carrier’s gross revenue during the infringement period. The court reduced the contract breach damages from $1.5 million, concluding that the only “non-speculative amount of damages” relating to the breach was $401,250. Thus, the total damages award was reduced from $6,782,800 to $5,566,050. The court affirmed the district court’s decisions as to its post-trial injunctions, holding that it did not abuse its discretion by indefinitely staying the injunction that prohibited Carrier from using its infringing database, or by finding that “ECIMOS’s assembled hardware items were not protectable derivative works or trade secrets as a matter of law, or in concluding that the safe-distance rule did not apply.” Affirmed in part, reversed in part, and remanded.

    • Election Law (1)

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      This summary also appears under Municipal

      e-Journal #: 73768
      Case: Warren City Council v. Buffa
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Per Curiam – O’Brien, Cavanagh, and Jansen
      Issues:

      The Michigan Election Law (MCL 168.1 et seq.); Certification of ballot language pursuant to MCL 168.646a(2); The Home Rule Cities Act (MCL 117.1 et seq.); MCL 117.22; Interaction between MCL 168.646a(2) & MCL 117.22; Entitlement to a writ of mandamus; Coalition for a Safer Detroit v. Detroit City Clerk; A “ministerial” act; Berry v. Garrett; Statutory interpretation; Use of different terms; United States Fid. & Guar. Co. v. Michigan Catastrophic Claims Ass’n; The in pari materia rule; Summer v. Southfield Bd. of Educ.; Pavlov v. Community Emergency Med. Servs., Inc.; “Shall”; Oakland Cnty. v. Michigan

      Summary:

      The court held that the first deadline in MCL 168.646a(2) was met, and that plaintiff-city council established the necessary elements for a writ of mandamus compelling defendant-city clerk (Buffa) to act. Thus, it reversed the trial court’s order denying plaintiff a writ of mandamus and ordered Buffa to immediately certify the ballot language at issue to defendant-county clerk pursuant to the statute. After plaintiff approved a ballot proposal to amend the city’s charter to reduce the mayor’s term limit from five to three, the mayor vetoed it, and plaintiff overrode the veto. The case involved the interaction of MCL 168.646a(2) and MCL 117.22. The court concluded “that the Governor’s approval under MCL 117.22 is not the certification to the local clerk that is required by 4:00 p.m. on the twelfth Tuesday before the election required by MCL 168.646a(2).” The two statutes do not reference each other, and nothing in their plain language implied “that the Governor’s approval under MCL 117.22 is the ‘certification’ contemplated by MCL 168.646a(2). Rather, the statutes use different terms; MCL 117.22 refers to the Governor’s ‘approv[al]’ of an amendment to a city charter, while MCL 168.646a(2) speaks of certification.” The court also noted that “while MCL 168.646a(2) speaks of very specific deadlines for certain acts to be taken by, MCL 117.22 only states that the Governor’s approval must come ‘before [a proposal’s] submission to the electors . . . .’” The Governor’s approval complied with MCL 117.22. The court found no merit in Buffa’s argument “that because the Governor’s approval did not come until after 4:00 p.m. on [8/11/20], MCL 168.646a(2) was not satisfied and she had no choice but to refrain from submitting the proposal to the Macomb County Clerk. Rather, the proposal was ‘certified’ to Buffa no later than” 7/20/20, when plaintiff’s resolution overriding the veto was certified. Once plaintiff “submitted the resolution to Buffa, plaintiff certified the proposal to Buffa.” As to the elements for a writ of mandamus, “Buffa had a clear legal duty to certify the ballot language to the” county clerk by 8/13/20, and plaintiff had a right to performance of this duty. Further, the court concluded that the act was ministerial as MCL 168.646a(2) “leaves no room for discretion.” Finally, it found that no other legal or equitable remedy but mandamus was available.

    • Employment & Labor Law (1)

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      This summary also appears under Negligence & Intentional Tort

      e-Journal #: 73708
      Case: Banda-Tavares v. Murphy
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Shapiro, Servitto, and Letica
      Issues:

      Negligence; Schultz v. Consumers Power Co.; Duty; In re Certified Question from Fourteenth Dist. Court of Appeals of TX; Graves v. Warner Bros.; Negligent hiring or retention; Mueller v. Brannigan Bros. Rests. & Taverns LLC; Hersh v. Kentfield Builders, Inc.; Whether an employer has a duty to verify an employee’s driver’s license status; Tortora v. General Motors Corp. Motion to file a third amended complaint; Weymers v. Khera; Kostadinovski v. Harrington; Futility; PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.

      Summary:

      The court held that because plaintiff failed to allege an appropriate and recognized standard of care that defendant-Elwood breached, amending the complaint to allege negligent hiring would be futile. Thus, the trial court did not abuse its discretion in denying plaintiff’s motion to file a third amended complaint. Plaintiff asserted that Elwood “provides temporary employment opportunities at a number of workplaces and that” it placed defendant-Murphy in a temporary position at defendant-Shawnee, “where Murphy worked at the time of” the car accident involving plaintiff and Murphy. Because plaintiff provided no support for his argument as to negligent hiring, the court rejected his claim as abandoned on appeal. It added that, in any event, Tortora suggested there “is no duty on the part of an employer to verify the driver’s license status of an employee.” Further, here there was “even less of a reason to hold Elwood responsible for ensuring the status of Murphy’s driver’s license. The Tortora employee drove company cars as part of his employment and the employer was still not charged with verifying the employee’s driving status.” While it was questionable whether the same result would be reached in a similar case today, “Murphy was neither entrusted with driving her employer’s cars, nor was driving a part of her job responsibilities.” It was undisputed that she was placed with Shawnee as a machine operator. There was “no evidence or indication that having a valid driver’s license or driving was a requirement of her employment with Elwood or her placement as a temporary worker at Shawnee.” In fact, Elwood’s human resources manager “testified at deposition that it is ‘against Elwood’s workers’ compensation coverage for it to have employees driving vehicles for client companies. We are not able to do business and allow our employees to do that.’ Additionally, it would be against public policy to impose a duty upon employers to only employ (in positions that do not directly require driving) those who had valid driver’s licenses and/or unblemished driving records. There are a multitude of people who do not have a driver’s license who are gainfully employed and” use other means to get to and from work. “Neither the Legislature nor the Secretary of State has seen fit to impose a preclusion on employment as an additional consequence of licensing sanctions, and we will not do so here.” Affirmed.

    • Insurance (1)

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      This summary also appears under Negligence & Intentional Tort

      e-Journal #: 73713
      Case: Al-Mohsin v. Davidson
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Ronayne Krause, Sawyer, and Boonstra
      Issues:

      Auto negligence; The No-Fault Act (MCL 500.3101 et seq.); MCL 500.3135(1) & (5); “Serious impairment of body function”; McCormick v. Carrier; Causation; Effect of a temporal connection; West v. General Motors Corp.; Necessity of providing more than plausible conjecture; Skinner v. Square D Co.; Independent medical exam (IME)

      Summary:

      Holding that plaintiff could not “establish a serious impairment of body function or that any impairment was caused by the car accident” at issue, the court affirmed summary disposition for defendants in this case arising from a three-vehicle auto accident. The issue on appeal was whether a genuine question of material fact existed whether she suffered “a ‘serious impairment of body function’ as a result of” the accident. The court concluded that the “evidence only barely suggests that plaintiff was even seriously injured.” She had a bruised forehead and possibly a cut. She testified she had to have “her wrist ‘wrapped’ for a few weeks, but it healed on its own. On the day of the accident, plaintiff received several diagnostic scans that revealed nothing wrong. It is certainly possible for symptoms to make a delayed appearance. However, when plaintiff returned to the ER the next day, she complained of 10-out-of-10 pain, whole body numbness, and being blind; despite being in no apparent distress, playing on her phone, and joking with her family.” The court noted that she “continued to complain of pain at a level of 9 or 10 out of 10, which should have left her incoherent and wholly nonfunctional but clearly did not.” Even disregarding the conclusions of a doctor (G) who conducted an IME, she did not present anything contradicting G’s “specific and objective observations, such as a lack of muscle atrophy or a nonsensical set of reported symptoms.” While some medical notes indicated various treatments were given, there was no “affirmative statement from a medical practitioner to the effect that they found anything wrong with plaintiff beyond her self-reported pain and, possibly, some joint displacement. Plaintiff has not provided any materials from her primary doctor.” She also did not offer any actual statements from any doctor to support her contention “that there was a link between the accident and injuries plaintiff suffered[.]” She presented (1) an MRI of her thoracic spine indicating several herniated discs, (2) an “‘abnormal’ EEG, and (3) some possible joint displacement[,]” but did not provide any expert opinion explaining their significance. While she produced objective evidence suggesting “she may have some kind of injury[,]” she did not provide any “evidence of an observable impairment.”

    • Intellectual Property (1)

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      This summary also appears under Cyber Law

      e-Journal #: 73727
      Case: ECIMOS, LLC v. Carrier Corp.
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Boggs, Clay, and Gibbons
      Issues:

      Copyright infringement case involving database-script source code; Lexmark Int’l, Inc. v. Static Control Components, Inc.; Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.; De minimis defense; Gordon v. Nextel Commc’ns; Oracle Am., Inc. v. Google Inc. (Fed. Cir.); Dun & Bradstreet Software Servs. Inc., v. Grace Consulting Inc. (3d Cir.); MiTek Holdings, Inc. v. Arce Eng’g Co. (11th Cir.); 17 USC §§ 106(2)–(3); Stromback v. New Line Cinema; Design Data Corp. v. Unigate Enter., Inc. (9th Cir.); Actual damages; § 504(b); Remittitur; Gregory v. Shelby Cnty.; Cotter v. Christus Gardens, Inc.; Thoroughbred Software Int’l, Inc. v. Dice Corp.; Disgorgement damages; Balsley v. LFP, Inc.; Bridgeport Music, Inc. v. Justin Combs Publ'g; Oracle Corp. v. SAP AG (9th Cir.); Amado v. Microsoft Corp. (Fed. Cir.); Veracode Inc. v. Appthority, Inc. (D MA); Golight, Inc. v. Wal-Mart Stores, Inc. (Fed. Cir.); Stay of an injunction that prohibited defendant from using the infringing database; Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc.; LFP IP, LLC v. Hustler Cincinnati, Inc.; “Safe-distance rule"; Innovation Ventures, LLC v. N2G Distrib., Inc.; Taubman Co. v. Webfeats; PRL USA Holdings, Inc. v. U.S. Polo Ass'n, Inc. (2d Cir.)

      Summary:

      The court held that the district court properly denied defendant-Carrier’s motion for judgment as a matter of law or a new trial where Carrier had infringed on plaintiff-ECIMOS’s copyright for a database script source code. After the parties terminated their business relationship, ECIMOS sued Carrier, alleging that it infringed on ECIMOS’s copyrighted database-script source code to aide a third party’s development of software Carrier now uses. A jury found for ECIMOS on its copyright claim and its Tennessee law contract claim, and the district court enjoined Carrier from using the database, but stayed the injunction. The court first rejected Carrier’s argument that its use of the source code was de minimis, holding that a de minimis “‘defense does not apply where the qualitative value of the copying is material.’” But it held that the district court erred by including a $118,000 “software migration fee” in the actual damages award where ECIMOS can only recover “damages that resulted from ‘the loss in the fair market value of the copyright, measured by the profits lost due to the infringement or by the value of the use of the copyrighted work to the infringer.’” Thus, it reduced the jury’s award for actual damages to $164,800. However, the court affirmed the $5 million disgorgement award where ECIMOS established proof of Carrier’s gross revenue during the infringement period. The court reduced the contract breach damages from $1.5 million, concluding that the only “non-speculative amount of damages” relating to the breach was $401,250. Thus, the total damages award was reduced from $6,782,800 to $5,566,050. The court affirmed the district court’s decisions as to its post-trial injunctions, holding that it did not abuse its discretion by indefinitely staying the injunction that prohibited Carrier from using its infringing database, or by finding that “ECIMOS’s assembled hardware items were not protectable derivative works or trade secrets as a matter of law, or in concluding that the safe-distance rule did not apply.” Affirmed in part, reversed in part, and remanded.

    • Litigation (1)

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      This summary also appears under Personal Protection Orders

      e-Journal #: 73699
      Case: K.H v. P.S.
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola, Cavanagh, and M.J. Kelly
      Issues:

      Motion to terminate a personal protection order (PPO); Non-final order; MCR 7.202(6)(a)(i); MCR 2.604(A); Subject matter jurisdiction to grant a PPO; MCL 600.1021(1)(k); MCL 600.2950a(1); Reassignment of a pending case; MCL 600.1011; Reassignment of judges; MCR 8.111(C)(2); Motion for reconsideration; MCR 2.119(F)(3); Sanders v. McLaren-Macomb; Oral argument; MCR 2.119(F)(2)

      Summary:

      The court held that the trial court’s 2015 order denying petitioner’s request for an ex parte PPO was not a final order that closed the case. Also, the trial court did not lack subject matter jurisdiction to grant the PPO. Finally, respondent was not entitled to oral argument on her motion for reconsideration, and nothing in the record suggested that the trial court abused its discretion in failing to permit it. The appeal arose from a non-domestic PPO. Respondent appealed the trial court’s denial of her motion to terminate the PPO. She contended that the trial court’s 2015 order denying petitioner’s request for an ex parte “PPO was a final order that closed the case, and that as a result all orders issued thereafter by the trial court in this case were void.” The 2015 order denied petitioner’s request that a PPO be issued against respondent on an ex parte “basis, finding that the facts alleged did not indicate that ‘immediate, irreparable harm will occur during the time required to give notice.’” It did not dispose of petitioner’s claim for a PPO, and the trial court later issued one. Respondent asserted on appeal that the trial court’s 2015 order indicated “final disposition closed,” and thus closed the case. However, nothing in the order indicated “that it was a final order disposing of the case.” Respondent appeared to base her claim that the order was “a final one upon the trial court’s Register of Actions, the first page of which includes an entry for the [2015] order labeled ‘final disposition closed.’ But despite the nomenclature employed in the trial court’s record-keeping system, the [2015] order did not dispose of all the claims nor did it adjudicate all the rights and liabilities of the parties, and therefore was not a final order.” The court also rejected as without merit respondent’s argument that the trial court lacked subject matter jurisdiction to issue the PPO “because the trial judge continued to preside over the case after her transfer to the civil and criminal division of the circuit court . . . .” Affirmed.

    • Municipal (1)

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      This summary also appears under Election Law

      e-Journal #: 73768
      Case: Warren City Council v. Buffa
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Per Curiam – O’Brien, Cavanagh, and Jansen
      Issues:

      The Michigan Election Law (MCL 168.1 et seq.); Certification of ballot language pursuant to MCL 168.646a(2); The Home Rule Cities Act (MCL 117.1 et seq.); MCL 117.22; Interaction between MCL 168.646a(2) & MCL 117.22; Entitlement to a writ of mandamus; Coalition for a Safer Detroit v. Detroit City Clerk; A “ministerial” act; Berry v. Garrett; Statutory interpretation; Use of different terms; United States Fid. & Guar. Co. v. Michigan Catastrophic Claims Ass’n; The in pari materia rule; Summer v. Southfield Bd. of Educ.; Pavlov v. Community Emergency Med. Servs., Inc.; “Shall”; Oakland Cnty. v. Michigan

      Summary:

      The court held that the first deadline in MCL 168.646a(2) was met, and that plaintiff-city council established the necessary elements for a writ of mandamus compelling defendant-city clerk (Buffa) to act. Thus, it reversed the trial court’s order denying plaintiff a writ of mandamus and ordered Buffa to immediately certify the ballot language at issue to defendant-county clerk pursuant to the statute. After plaintiff approved a ballot proposal to amend the city’s charter to reduce the mayor’s term limit from five to three, the mayor vetoed it, and plaintiff overrode the veto. The case involved the interaction of MCL 168.646a(2) and MCL 117.22. The court concluded “that the Governor’s approval under MCL 117.22 is not the certification to the local clerk that is required by 4:00 p.m. on the twelfth Tuesday before the election required by MCL 168.646a(2).” The two statutes do not reference each other, and nothing in their plain language implied “that the Governor’s approval under MCL 117.22 is the ‘certification’ contemplated by MCL 168.646a(2). Rather, the statutes use different terms; MCL 117.22 refers to the Governor’s ‘approv[al]’ of an amendment to a city charter, while MCL 168.646a(2) speaks of certification.” The court also noted that “while MCL 168.646a(2) speaks of very specific deadlines for certain acts to be taken by, MCL 117.22 only states that the Governor’s approval must come ‘before [a proposal’s] submission to the electors . . . .’” The Governor’s approval complied with MCL 117.22. The court found no merit in Buffa’s argument “that because the Governor’s approval did not come until after 4:00 p.m. on [8/11/20], MCL 168.646a(2) was not satisfied and she had no choice but to refrain from submitting the proposal to the Macomb County Clerk. Rather, the proposal was ‘certified’ to Buffa no later than” 7/20/20, when plaintiff’s resolution overriding the veto was certified. Once plaintiff “submitted the resolution to Buffa, plaintiff certified the proposal to Buffa.” As to the elements for a writ of mandamus, “Buffa had a clear legal duty to certify the ballot language to the” county clerk by 8/13/20, and plaintiff had a right to performance of this duty. Further, the court concluded that the act was ministerial as MCL 168.646a(2) “leaves no room for discretion.” Finally, it found that no other legal or equitable remedy but mandamus was available.

    • Negligence & Intentional Tort (3)

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      This summary also appears under Insurance

      e-Journal #: 73713
      Case: Al-Mohsin v. Davidson
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Ronayne Krause, Sawyer, and Boonstra
      Issues:

      Auto negligence; The No-Fault Act (MCL 500.3101 et seq.); MCL 500.3135(1) & (5); “Serious impairment of body function”; McCormick v. Carrier; Causation; Effect of a temporal connection; West v. General Motors Corp.; Necessity of providing more than plausible conjecture; Skinner v. Square D Co.; Independent medical exam (IME)

      Summary:

      Holding that plaintiff could not “establish a serious impairment of body function or that any impairment was caused by the car accident” at issue, the court affirmed summary disposition for defendants in this case arising from a three-vehicle auto accident. The issue on appeal was whether a genuine question of material fact existed whether she suffered “a ‘serious impairment of body function’ as a result of” the accident. The court concluded that the “evidence only barely suggests that plaintiff was even seriously injured.” She had a bruised forehead and possibly a cut. She testified she had to have “her wrist ‘wrapped’ for a few weeks, but it healed on its own. On the day of the accident, plaintiff received several diagnostic scans that revealed nothing wrong. It is certainly possible for symptoms to make a delayed appearance. However, when plaintiff returned to the ER the next day, she complained of 10-out-of-10 pain, whole body numbness, and being blind; despite being in no apparent distress, playing on her phone, and joking with her family.” The court noted that she “continued to complain of pain at a level of 9 or 10 out of 10, which should have left her incoherent and wholly nonfunctional but clearly did not.” Even disregarding the conclusions of a doctor (G) who conducted an IME, she did not present anything contradicting G’s “specific and objective observations, such as a lack of muscle atrophy or a nonsensical set of reported symptoms.” While some medical notes indicated various treatments were given, there was no “affirmative statement from a medical practitioner to the effect that they found anything wrong with plaintiff beyond her self-reported pain and, possibly, some joint displacement. Plaintiff has not provided any materials from her primary doctor.” She also did not offer any actual statements from any doctor to support her contention “that there was a link between the accident and injuries plaintiff suffered[.]” She presented (1) an MRI of her thoracic spine indicating several herniated discs, (2) an “‘abnormal’ EEG, and (3) some possible joint displacement[,]” but did not provide any expert opinion explaining their significance. While she produced objective evidence suggesting “she may have some kind of injury[,]” she did not provide any “evidence of an observable impairment.”

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      This summary also appears under Employment & Labor Law

      e-Journal #: 73708
      Case: Banda-Tavares v. Murphy
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Shapiro, Servitto, and Letica
      Issues:

      Negligence; Schultz v. Consumers Power Co.; Duty; In re Certified Question from Fourteenth Dist. Court of Appeals of TX; Graves v. Warner Bros.; Negligent hiring or retention; Mueller v. Brannigan Bros. Rests. & Taverns LLC; Hersh v. Kentfield Builders, Inc.; Whether an employer has a duty to verify an employee’s driver’s license status; Tortora v. General Motors Corp. Motion to file a third amended complaint; Weymers v. Khera; Kostadinovski v. Harrington; Futility; PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.

      Summary:

      The court held that because plaintiff failed to allege an appropriate and recognized standard of care that defendant-Elwood breached, amending the complaint to allege negligent hiring would be futile. Thus, the trial court did not abuse its discretion in denying plaintiff’s motion to file a third amended complaint. Plaintiff asserted that Elwood “provides temporary employment opportunities at a number of workplaces and that” it placed defendant-Murphy in a temporary position at defendant-Shawnee, “where Murphy worked at the time of” the car accident involving plaintiff and Murphy. Because plaintiff provided no support for his argument as to negligent hiring, the court rejected his claim as abandoned on appeal. It added that, in any event, Tortora suggested there “is no duty on the part of an employer to verify the driver’s license status of an employee.” Further, here there was “even less of a reason to hold Elwood responsible for ensuring the status of Murphy’s driver’s license. The Tortora employee drove company cars as part of his employment and the employer was still not charged with verifying the employee’s driving status.” While it was questionable whether the same result would be reached in a similar case today, “Murphy was neither entrusted with driving her employer’s cars, nor was driving a part of her job responsibilities.” It was undisputed that she was placed with Shawnee as a machine operator. There was “no evidence or indication that having a valid driver’s license or driving was a requirement of her employment with Elwood or her placement as a temporary worker at Shawnee.” In fact, Elwood’s human resources manager “testified at deposition that it is ‘against Elwood’s workers’ compensation coverage for it to have employees driving vehicles for client companies. We are not able to do business and allow our employees to do that.’ Additionally, it would be against public policy to impose a duty upon employers to only employ (in positions that do not directly require driving) those who had valid driver’s licenses and/or unblemished driving records. There are a multitude of people who do not have a driver’s license who are gainfully employed and” use other means to get to and from work. “Neither the Legislature nor the Secretary of State has seen fit to impose a preclusion on employment as an additional consequence of licensing sanctions, and we will not do so here.” Affirmed.

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      e-Journal #: 73685
      Case: Sedlecky v. Sun Cmtys., Inc.
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Shapiro, Servitto, and Letica
      Issues:

      Slip & fall on pool steps; Statutory claim that the steps were not fit for their intended purpose; MCL 554.139(1)(a) & (b); Estate of Trueblood v. P & G Apts., LLC; Hadden v. McDermitt Apts., LLC; “Common area”; Allison v. AEW Capital Mgmt., LLP; The Michigan Department of Environmental Quality’s (MDEQ) authority to regulate swimming pools under the Public Health Code (MCL 333.1101 et seq.); R 325.2134(4); Stare decisis; MCR 7.215(J)(1); Catalina Mktg. Sales Corp. v. Department of Treasury; Paige v. Sterling Heights; Nuculovic v. Hill

      Summary:

      The court held that the trial court erred by granting defendants (mobile home community owners and operators) summary disposition of plaintiff’s statutory liability claim. Plaintiff sued defendants for injuries she sustained when she slipped and fell at the swimming pool in defendants’ mobile home community. The trial court granted summary disposition for defendants, finding the “slippery nature of the pool was open and obvious, subject to no special aspects, and that the steps, which constituted a common area, were fit for their intended use such that no statutory violations occurred.” On appeal, the court agreed with plaintiff that the trial court erred by granting defendants’ motion for summary disposition as to her statutory claim in light of Estate of Trueblood. Defendants “cannot rely on the MDEQ inspection to support dismissal of plaintiff’s (1)(b) claim, and the trial court could only rely on plaintiff’s complaint and defendants’ answer. Contained in plaintiff’s complaint were the well-pleaded facts that defendants did not comply with one of the administration codes governing public swimming pools.” Further, “[b]ecause Trueblood is binding precedent,” the court was required “to follow the rule of law established.” Finally, in light of plaintiff’s evidence, “reasonable minds could differ on whether defendants breached their duty under MCL 554.139(1)(a) ‘to maintain [the stairs] in a manner that was fit for [their] intended use.’ If there was an unusually slippery substance that created a higher risk of slipping than normal pool stairs present, then defendants would have breached their duty to maintain the pool stairs in a manner fit for their intended use.” Reversed and remanded.

    • Personal Protection Orders (1)

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      This summary also appears under Litigation

      e-Journal #: 73699
      Case: K.H v. P.S.
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola, Cavanagh, and M.J. Kelly
      Issues:

      Motion to terminate a personal protection order (PPO); Non-final order; MCR 7.202(6)(a)(i); MCR 2.604(A); Subject matter jurisdiction to grant a PPO; MCL 600.1021(1)(k); MCL 600.2950a(1); Reassignment of a pending case; MCL 600.1011; Reassignment of judges; MCR 8.111(C)(2); Motion for reconsideration; MCR 2.119(F)(3); Sanders v. McLaren-Macomb; Oral argument; MCR 2.119(F)(2)

      Summary:

      The court held that the trial court’s 2015 order denying petitioner’s request for an ex parte PPO was not a final order that closed the case. Also, the trial court did not lack subject matter jurisdiction to grant the PPO. Finally, respondent was not entitled to oral argument on her motion for reconsideration, and nothing in the record suggested that the trial court abused its discretion in failing to permit it. The appeal arose from a non-domestic PPO. Respondent appealed the trial court’s denial of her motion to terminate the PPO. She contended that the trial court’s 2015 order denying petitioner’s request for an ex parte “PPO was a final order that closed the case, and that as a result all orders issued thereafter by the trial court in this case were void.” The 2015 order denied petitioner’s request that a PPO be issued against respondent on an ex parte “basis, finding that the facts alleged did not indicate that ‘immediate, irreparable harm will occur during the time required to give notice.’” It did not dispose of petitioner’s claim for a PPO, and the trial court later issued one. Respondent asserted on appeal that the trial court’s 2015 order indicated “final disposition closed,” and thus closed the case. However, nothing in the order indicated “that it was a final order disposing of the case.” Respondent appeared to base her claim that the order was “a final one upon the trial court’s Register of Actions, the first page of which includes an entry for the [2015] order labeled ‘final disposition closed.’ But despite the nomenclature employed in the trial court’s record-keeping system, the [2015] order did not dispose of all the claims nor did it adjudicate all the rights and liabilities of the parties, and therefore was not a final order.” The court also rejected as without merit respondent’s argument that the trial court lacked subject matter jurisdiction to issue the PPO “because the trial judge continued to preside over the case after her transfer to the civil and criminal division of the circuit court . . . .” Affirmed.

    • Probate (1)

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      This summary also appears under Real Property

      e-Journal #: 73709
      Case: In re Conservatorship of Doris Lela Bjork
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Shapiro, Servitto, and Letica
      Issues:

      The probate court’s subject-matter jurisdiction; MCL 700.1302(c) & 700.1303(1)(a); In re Lager Estate; A conservator’s fiduciary duty; MCL 700.5416; In re Conservatorship of Brody; Validity of a settlement; MCR 5.407; Duress; Clement v. Buckley Mercantile Co.; Liparoto Constr., Inc. v. General Shale Brick, Inc.; Farm Credit Servs. of MI’s Heartland, PCA v. Weldon; Hungerman v. McCord Gasket Corp.; Principle that there is no federal constitutional right to a jury trial in state court civil cases; McKinstry v. Valley Obstetrics-Gynecology Clinic, PC; Curtis v. Loether; Equitable nature of actions to set aside a deed; Moran v. Moran; Adams v. Adams; Judicial disqualification; In re MKK; Guardian ad litem (GAL)

      Summary:

      The court held that the probate court did not err by releasing a notice of lis pendens and placing a lien in favor of petitioner-conservator and guardian on the property at issue. She asked the probate court to invalidate a transfer of farm property from their mother (Doris) to herself and respondent on the basis that Doris was incompetent at the time of the purported “transfer, that there was not good consideration paid for the property, and that” respondent exercised undue influence over Doris. It entered a stipulated order settling all claims, including that the conservatorship agreed to sell respondent the property for cash and a mortgage and interest-free note securing the balance due and payable upon either his or Doris’s death, or a determination that the money was needed for her care. When respondent refused to sign the mortgage and note, the probate court entered a lien on the property in favor of the conservatorship, released the notice of lis pendens filed by petitioner, and ordered that she quitclaim the property to respondent subject to the lien. On appeal, the court rejected respondent’s argument that “the probate court lacked subject-matter jurisdiction because its order affected a property interest purportedly transferred before the conservatorship came into effect[,]” noting he provided no case law or other rationale for why this dispute would not fall squarely within its jurisdiction. Further, petitioner had a fiduciary duty to invoke its jurisdiction. It also rejected his claim that the settlement was invalid because petitioner, “as Doris’s daughter, would benefit from it at the time of Doris’s death as one of her intestate heirs.” Because Doris’s GAL and court-appointed attorney “consented to the settlement and the trial court approved the settlement as submitted, even assuming [petitioner] might benefit at some future date as a result of the preservation of Doris’s assets, the prohibition” in MCR 5.407 was not implicated. The court next rejected his duress claim, noting he “was represented by counsel at the time he entered into the settlement agreement, which undercuts any viable claim of duress.” Finally, it held that the probate court did not violate his constitutional rights by denying him a jury trial and his motion seeking the probate court judge’s disqualification. He had no constitutional right to a jury trial and did “not establish disqualifying judicial bias.” Affirmed.

    • Real Property (2)

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      This summary also appears under Zoning

      e-Journal #: 73710
      Case: Canton Inv. & Dev., Inc. v. Charter Twp. of Canton
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gleicher, Stephens, and Cameron
      Issues:

      Nonconforming use; Heath Twp. v. Sall; Requirement that the use be actual; Norton Shores v. Carr; Requirement that the continuation of a nonconforming use must be substantially of the same size & essential nature as the use at the time the zoning ordinance was enacted; Eveline Twp. v. H & D Trucking Co.; “Boarding or rooming house”; Enforcing clear & unambiguous ordinance language as written; Morse v. Colitti

      Summary:

      The court held that plaintiff-Canton Investment “changed the essential nature and enlarged the nonconforming use when it provided ‘cooking’ and ‘kitchen accommodations’ to its tenants” on the property. Thus, whenever these accommodations were added, they “created in an illegal, nonconforming use on the property.” Given that there was no question of material fact, the court affirmed the order granting defendant-Charter Township of Canton summary disposition. Plaintiff asserted that it should have been granted summary disposition instead because “the undisputed facts establish that the property was continually being used in compliance with the 1950 Ordinance” at issue. The court disagreed. “At the time the 1950 Ordinance was in effect, the property was included in the ‘C Districts,’ and the 1950 Ordinance permitted buildings in the C Districts to be used to provide ‘[b]oarding, rooming and lodging houses[.]’” The court determined that even if plaintiff was “correct that the residential building was used as an apartment building since it was erected in 1953,” plaintiff’s use of it would not fall within the Ordinance’s definition of a “boarding or rooming house” as it asserted. Under that definition, “there could not have been ‘any attempt[s]’ on the part of the family who dwelled in the home to provide the lessee or rentee with either ‘cooking or kitchen accommodations.’” Consulting a dictionary to define the words cooking, kitchen, and accommodations, the court concluded that the building could not “be considered a ‘boarding or rooming house’ during the time that the kitchens and/or amenities to cook and prepare meals were present in the units.” Even if the building could have been deemed a “boarding or rooming house” when it operated between 1953 and when plaintiff obtained it in 2012, plaintiff’s changes created an illegal, nonconforming use. Because the undisputed evidence showed that its use of the building was not allowed under the 1950 Ordinance, its use “could not be considered a legal, nonconforming use and a genuine issue of material fact did not exist for trial.”

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      This summary also appears under Probate

      e-Journal #: 73709
      Case: In re Conservatorship of Doris Lela Bjork
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Shapiro, Servitto, and Letica
      Issues:

      The probate court’s subject-matter jurisdiction; MCL 700.1302(c) & 700.1303(1)(a); In re Lager Estate; A conservator’s fiduciary duty; MCL 700.5416; In re Conservatorship of Brody; Validity of a settlement; MCR 5.407; Duress; Clement v. Buckley Mercantile Co.; Liparoto Constr., Inc. v. General Shale Brick, Inc.; Farm Credit Servs. of MI’s Heartland, PCA v. Weldon; Hungerman v. McCord Gasket Corp.; Principle that there is no federal constitutional right to a jury trial in state court civil cases; McKinstry v. Valley Obstetrics-Gynecology Clinic, PC; Curtis v. Loether; Equitable nature of actions to set aside a deed; Moran v. Moran; Adams v. Adams; Judicial disqualification; In re MKK; Guardian ad litem (GAL)

      Summary:

      The court held that the probate court did not err by releasing a notice of lis pendens and placing a lien in favor of petitioner-conservator and guardian on the property at issue. She asked the probate court to invalidate a transfer of farm property from their mother (Doris) to herself and respondent on the basis that Doris was incompetent at the time of the purported “transfer, that there was not good consideration paid for the property, and that” respondent exercised undue influence over Doris. It entered a stipulated order settling all claims, including that the conservatorship agreed to sell respondent the property for cash and a mortgage and interest-free note securing the balance due and payable upon either his or Doris’s death, or a determination that the money was needed for her care. When respondent refused to sign the mortgage and note, the probate court entered a lien on the property in favor of the conservatorship, released the notice of lis pendens filed by petitioner, and ordered that she quitclaim the property to respondent subject to the lien. On appeal, the court rejected respondent’s argument that “the probate court lacked subject-matter jurisdiction because its order affected a property interest purportedly transferred before the conservatorship came into effect[,]” noting he provided no case law or other rationale for why this dispute would not fall squarely within its jurisdiction. Further, petitioner had a fiduciary duty to invoke its jurisdiction. It also rejected his claim that the settlement was invalid because petitioner, “as Doris’s daughter, would benefit from it at the time of Doris’s death as one of her intestate heirs.” Because Doris’s GAL and court-appointed attorney “consented to the settlement and the trial court approved the settlement as submitted, even assuming [petitioner] might benefit at some future date as a result of the preservation of Doris’s assets, the prohibition” in MCR 5.407 was not implicated. The court next rejected his duress claim, noting he “was represented by counsel at the time he entered into the settlement agreement, which undercuts any viable claim of duress.” Finally, it held that the probate court did not violate his constitutional rights by denying him a jury trial and his motion seeking the probate court judge’s disqualification. He had no constitutional right to a jury trial and did “not establish disqualifying judicial bias.” Affirmed.

    • Termination of Parental Rights (1)

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      e-Journal #: 73755
      Case: In re Cole
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola, Gleicher, and Stephens
      Issues:

      Termination under § 19b(3)(c)(i); In re Williams; Jurisdiction; Alleged defect in the plea-taking proceedings; MCR 3.971(B); In re Pederson; In re Ferranti; Due process requirement that the waiver of fundamental rights be knowing, understanding, & voluntary; In re Wangler; Reasonable reunification efforts; In re Frey; In re Hicks/Brown; Child’s best interests; MCL 712A.19b(5); In re Medina; In re White; In re Moss Minors; Requirement that the trial court adequately state its findings as to the child’s best interests; MCL 712A.19b(1); In re Trejo Minors; MCR 3.977(I)(1)

      Summary:

      The court held that respondent-mother did not establish that the trial court’s adjudicatory error as to MCR 3.971(B) was outcome determinative, and that § (c)(i) supported terminating respondent-father’s parental rights to the child. It also concluded that a preponderance of the evidence showed that terminating his rights was in the child’s best interests, and rejected his claim that the trial court did not adequately state its findings in this regard. Thus, the court affirmed the order terminating their parental rights. The mother argued that her no contest plea “was not knowingly, understandingly, and voluntarily given because the trial court failed to advise her that her plea could be used as evidence to terminate her parental rights as required by MCR 3.971(B)(4).” However, the court noted that, as in Pederson, the trial court did not completely fail to advise her of her rights. She “was advised of the rights that she was waiving by pleading no contest, but was not advised that the no contest plea could be used later to terminate her parental rights.” Also as in Pederson, she did not show “that the trial court’s failure to advise her that her plea could be used as evidence in a later proceeding to terminate her parental rights was outcome-determinative.” There was no indication that it relied on her no contest plea when it later found that statutory grounds for termination existed. Rather, her testimony about “her history of substance abuse, homelessness, domestic violence, and mental health concerns provided sufficient basis from which the trial court could conclude that the conditions that led to adjudication continued to exist and would not be rectified within a reasonable time.” As to the father and § (c)(i), the child was removed due to “respondents’ substance abuse, mental instability, domestic violence, and unstable housing. The record” indicated that for over two years, the father “failed to comply with and benefit from the services offered to him. [He] failed to participate in substance abuse treatment, tested positive for amphetamine and methamphetamine, failed to contact the caseworkers, failed to participate in counseling, and failed to benefit from the anger management program in which he participated, continuing to be the subject of numerous police reports of domestic violence and drug activity.” In addition, he regularly missed visitation and did not secure stable housing.

    • Zoning (1)

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      This summary also appears under Real Property

      e-Journal #: 73710
      Case: Canton Inv. & Dev., Inc. v. Charter Twp. of Canton
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gleicher, Stephens, and Cameron
      Issues:

      Nonconforming use; Heath Twp. v. Sall; Requirement that the use be actual; Norton Shores v. Carr; Requirement that the continuation of a nonconforming use must be substantially of the same size & essential nature as the use at the time the zoning ordinance was enacted; Eveline Twp. v. H & D Trucking Co.; “Boarding or rooming house”; Enforcing clear & unambiguous ordinance language as written; Morse v. Colitti

      Summary:

      The court held that plaintiff-Canton Investment “changed the essential nature and enlarged the nonconforming use when it provided ‘cooking’ and ‘kitchen accommodations’ to its tenants” on the property. Thus, whenever these accommodations were added, they “created in an illegal, nonconforming use on the property.” Given that there was no question of material fact, the court affirmed the order granting defendant-Charter Township of Canton summary disposition. Plaintiff asserted that it should have been granted summary disposition instead because “the undisputed facts establish that the property was continually being used in compliance with the 1950 Ordinance” at issue. The court disagreed. “At the time the 1950 Ordinance was in effect, the property was included in the ‘C Districts,’ and the 1950 Ordinance permitted buildings in the C Districts to be used to provide ‘[b]oarding, rooming and lodging houses[.]’” The court determined that even if plaintiff was “correct that the residential building was used as an apartment building since it was erected in 1953,” plaintiff’s use of it would not fall within the Ordinance’s definition of a “boarding or rooming house” as it asserted. Under that definition, “there could not have been ‘any attempt[s]’ on the part of the family who dwelled in the home to provide the lessee or rentee with either ‘cooking or kitchen accommodations.’” Consulting a dictionary to define the words cooking, kitchen, and accommodations, the court concluded that the building could not “be considered a ‘boarding or rooming house’ during the time that the kitchens and/or amenities to cook and prepare meals were present in the units.” Even if the building could have been deemed a “boarding or rooming house” when it operated between 1953 and when plaintiff obtained it in 2012, plaintiff’s changes created an illegal, nonconforming use. Because the undisputed evidence showed that its use of the building was not allowed under the 1950 Ordinance, its use “could not be considered a legal, nonconforming use and a genuine issue of material fact did not exist for trial.”

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