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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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

  • Administrative Law (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 78062
    Case: Forner v. Bureau of Constr. Codes
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Boonstra, and O’Brien
    Issues:

    Request for a declaratory judgment; MCR 2.605(A); MCL 24.264; MCL 24.263; “Interested person”; “Interested” & “affect”; Injunctive relief; Striking a reply brief under MCR 7.111(A)(3); Harmless error; Protective order; MCR 2.302(C)(1); Summary disposition under MCR 2.116(C)(4); Jurisdiction over the appeal; MCR 7.203(A)(1); Bureau of Construction Codes (BCC)

    Summary:

    Finding no errors requiring reversal, the court affirmed the orders in both dockets in these consolidated appeals arising from plaintiff-licensed boiler installer and mechanical contractor’s (Forner) request for a declaratory ruling from defendant-BCC. Forner contended that “the trial court erred by affirming the BCC’s decision on the basis that he, a licensed boiler installer and holder of the boiler installation permits for the boilers installed at [nonparty-church], was not an interested person for purposes of challenging the boiler inspector’s interpretation of the boiler rules as applied to” the church’s boilers. The court found none of his arguments were compelling. It concluded that “the trial court did not clearly err by affirming the BCC’s decision. By holding that Forner was not an interested person for purposes of MCL 24.263, the court impliedly affirmed that the BCC’s decision was not contrary to law and that it was supported by competent evidence on the whole record. The trial court’s explanation that, because Forner was not an interested person, he could not appeal the BCC’s decision to the circuit court was incongruous with the trial court’s ultimate ruling. Nevertheless,” the court could affirm its “ruling because it reached the right result.” Among other things, the court determined “Forner’s argument that MCL 339.5601(8) required the BCC to provide him written notice of the boiler rules violations” lacked merit and “nothing in the boiler rules transfers to the boiler installer any of the owner’s responsibility” for making sure a boiler is properly installed and certified. The court also held that the trial court erred by striking the reply brief he filed under MCR 7.111(A)(3), but concluded the error was harmless. Further, it determined that “the trial court did not abuse its discretion by dispensing with oral argument and issuing a protective order staying discovery until [it] could resolve the dispositive motion.” Finally, the court held that the trial court did not err in granting the BCC summary disposition under MCR 2.116(C)(4) given the absence of an actual controversy for purposes of MCR 2.605(A)(1), or by ruling that “it lacked jurisdiction to grant Forner a declaratory judgment under MCL 24.264.”

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 78061
    Case: Yanover v. Hancock
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - M.J. Kelly, Murray, and Borrello
    Issues:

    Action for breach of contract & mortgage foreclosure; Statute of limitations (SOL) for action on a promissory note; MCL 440.3118; SOL to foreclose a mortgage; MCL 600.5803; Degen v Degen’s Estate; Principle that a new promise to pay an existing debt that is not barred by a SOL is supported by consideration & restarts the limitations period; United States v Gardner (6th Cir); Acknowledgment of indebtedness; In re Booth’s Estate

    Summary:

    The court held that the trial court erred by finding plaintiff’s foreclosure action was time barred, but did not err by finding her breach of contract and unjust enrichment claims were time barred. Plaintiff loaned defendant $60,000 in exchange for a note and mortgage on defendant’s home. She later loaned defendant another $20,000, though no documents were signed. Plaintiff never received any payments on the $60,000 mortgage, so she had defendant sign a 6/28/2000 letter stating: “I reaffirm the debt mentioned above still exists and I acknowledge the fact that the interest continues to accrue on this debt.” She later paid plaintiff $30,000 dollars for the unsecured loan—the principal plus $10,000 in interest. Plaintiff sued her on the mortgage alleging breach of contract, unjust enrichment, and requesting foreclosure of the property. The trial court granted summary disposition for defendant, finding the SOL had already run. Plaintiff argued that it erred by finding the SOL barred her mortgage claim because it necessarily had to resolve a question of fact to reach this conclusion, and one existed as to whether a payment was made. Assuming, as she consistently stated, that “no payments were made by defendant on the mortgage note, the limitations period for the promissory note began on [5/21/95], and would end six years after the mortgage’s due date, [5/21/01]. Assuming the same, the limitations period applicable to foreclosure of the mortgage began on [5/21/95], and would end 15 years after the due date,” 5/21/10. However, plaintiff consistently stated she “never received any payment on the $60,000 mortgage, and . . . the $30,000 payment received from defendant was for the separate, unsecured loan.” Accepting this as true, “the trial court did not err in concluding that no payment was made on the mortgage, and finding without more that the” SOL barred her claims. But a new promise to pay an existing debt that is not barred by a limitations period “is supported by consideration and restarts the limitations period[.]” Here, there was “no genuine issue of material fact that the [6/28/2000], letter renewed the debt.” In addition, the letter “renewed the debt such that the original terms of the mortgage and note began anew at the date of signing.” Finally, the foreclosure action was not time barred to the extent it was “based upon any missed installment payments due between” 12/3/04 and 6/28/05. However, as the SOLs “for the breach of contract and unjust enrichment claims are much shorter,” those claims were properly dismissed. Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

  • Criminal Law (3)

    Full Text Opinion

    e-Journal #: 78054
    Case: People v. Bates
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Ronayne Krause, and Garrett
    Issues:

    Police testimony identifying defendant in a surveillance video; People v Fomby; United States v Dixon (6th Cir); Harmless error; Other acts evidence; MRE 404(b); Relevance to a noncharacter purpose; MRE 403; Distinguishing People v Jackson; Ineffective assistance of counsel; Hearsay; Out-of-court statement offered to show the effect of the statement on the hearer; People v Musser; Sentencing; Scoring of OV 12; MCL 777.42(2)(a)(i) & (ii); MCL 777.42(2)(b); Credit; MCL 769.11b; Delay in bringing charges; Due process

    Summary:

    The court held that while admission of one police officer’s (H) testimony identifying defendant in security camera footage was error, it was unlikely to have affected the verdict. It rejected defendant’s challenge to the admission of testimony by H and another officer (V) about their prior contacts with him, and his ineffective assistance of counsel claim. Further, another officer’s testimony about what witness-R told him during the traffic stop was offered to show why the police searched R’s car, and even if it was admitted in error, it did not affect the outcome. The court also held that the trial court erred in scoring 5 points for OV 12 and resentencing was required. But he was not entitled to more sentencing credit and he failed to establish a due process violation based on the delay in filing some of the charges against him. In these consolidated appeals, defendant appealed convictions of AWIGBH and felony-firearm, and sentences as a second-offense habitual offender to 5 to 15 years for AWIGBH and 2 years for felony-firearm. He also appealed convictions for CCW in a vehicle, FIP, and felony-firearm, and sentences as a second-offense habitual offender to 24 to 90 months for CCW and FIP, and 2 years for felony-firearm. The court concluded one officer (A) did not offer “improper identification testimony.” A did not testify that the person in the footage “was defendant. He only testified that the sweatshirt worn by defendant in a photograph seized from his phone appeared to be ‘very similar’ to the sweatshirt worn by the suspect shown in the” footage. There was no plain error in admitting V’s identification testimony as there was reason to believe he “was more likely than the jury to correctly identify defendant from the” footage. Less than a year before the shooting giving rise to the charges, V “spent three to four months studying pictures of defendant from defendant’s social media accounts, in addition to” driver’s license and prior booking photos. Further, “ample other evidence” apart from the officers’ identification testimony supported defendant’s convictions. Among other things, R “testified that defendant put a handgun in a bag in the back seat of her car, and” an expert testified that the bullet found in the victim’s “car was fired from that handgun.” The court vacated his AWIGBH sentence and remanded for resentencing for that offense but affirmed in all other respects.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 78086
    Case: United States v. Gates
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Clay and Donald; Concurring in part, Dissenting in part – Nalbandian
    Issues:

    Sentencing; Procedural reasonableness; Whether the failure to calculate a defendant’s sentence under the Guidelines constituted “procedural error”; Whether the district court’s “Statement of Reasons” satisfied procedural safeguards; Whether the failure to calculate the Guidelines was harmless error if the district court would have imposed the same sentence under the Guidelines; Whether inclusion of the quantity of meth a codefendant sold before the age of 18 in calculating his offense level constituted a procedural error; United States v Gibbs; United States v Hough; Blakely v Washington; United States v Booker; Substantive reasonableness

    Summary:

    [This appeal was from the WD-MI.] The court affirmed defendant-Deonte Gates’s sentence, holding that the district court did not err in including his pre-age 18 drug quantities sold in calculating his Guideline range. But it vacated defendant-Trevon Gates’s sentence and remanded for resentencing, holding that the district court’s failure to calculate his sentence under the Guidelines constituted procedural error. Trevon appealed his 72-month sentence for possession of a firearm in furtherance of a drug trafficking crime. Probation calculated his Guideline as the mandatory minimum 60 months. The district court cited his recent state-court conviction for a similar crime, and concluded the mandatory minimum was “inadequate.” The court found that the “sentencing transcript overwhelmingly” supported that the district court failed to openly address the Guidelines as to his firearm offense. The government contended the Statement of Reasons the district court filed after sentencing showed it had “satisfied its procedural duty.” The court first noted that such statements serve “a record-keeping function for the U.S. Sentencing Commission” and are not meant to be “‘a procedural safeguard for any particular defendant.’” The one in this case provided no clarification as to whether the district court in fact calculated Trevon’s Guidelines or whether it used the mandatory minimum. “In fact, the Statement of Reasons, itself, suggests the district court did not rely on the” Guidelines. The court rejected the government’s argument that “mentioning the mandatory minimum sentence was sufficient to constitute addressing the Sentencing Guidelines because they were both 60 months . . . .” It also rejected the position that the failure to calculate Trevon’s Guideline was harmless error because the same sentence would have been imposed under the Guidelines, noting the lack of precedent on a sentencing court’s complete failure to address the Guidelines. Further, the government “failed to meet its burden of proving ‘with certainty’ that the district court would impose the same sentence notwithstanding the procedural error.” It court concluded the district court’s justification “for its upward ‘variance’ does not necessarily justify an upward departure.” Deonte appealed his 110-month sentence for possession with intent to distribute meth, challenging the inclusion of the quantity of meth he sold before reaching the age of 18 in calculating his offense level. The court noted it rejected this argument in Gibbs and Hough. It also rejected his substantive reasonableness challenge. Remanded for Trevon’s resentencing.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 78040
    Case: United States v. Nedelcu
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Griffin, Clay, and White
    Issues:

    Sentencing; Money laundering during the course of a RICO conspiracy; Enhancements under USSG §§ 2S1.1(b)(2)(B), (b)(3), & 2E1.1(a); Enhancing defendant’s sentence for money laundering when his actual conviction was for RICO conspiracy; § 1B1.2(c)

    Summary:

    The court held that because the factual basis for defendant-Nedelcu’s “plea agreement specifically established that he committed money laundering as a predicate for his RICO conviction,” the district court did not err by sentencing “him ‘as if’ he had been convicted of money laundering.” Nedelcu pled guilty to RICO conspiracy. He claimed that the district court erred by enhancing his sentence four levels for money laundering where his actual conviction was for RICO conspiracy. Focusing on § 2S1.1(b)(2)(B), the court concluded that an actual conviction for money laundering is not always necessary for application of the enhancement. “Section 1B1.2(c) provides that ‘[a] plea agreement . . . containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offenses.’ This provision means that a court must sentence a defendant ‘as if’ he had been convicted of an offense if his plea agreement specifically establishes that he committed that offense.” The court considered the admissions Nedelcu made to support the factual basis for his guilty plea, and found that his “admissions track (often word-for-word) the elements of concealment money laundering and conspiracy to commit concealment money laundering[.]” As he had stipulated to facts establishing those “additional offenses, § 1B1.2(c) required that, during sentencing, he be ‘treated as if [he] had been convicted of additional count(s) charging’ violations of” the money laundering statute. It is not necessary for a defendant to admit “that he violated a statute; he need only admit facts that allow the court to conclude that his conduct satisfied the elements of an additional offense.” Affirmed.

    Full Text Opinion

  • Intellectual Property (1)

    Full Text Opinion

    e-Journal #: 78042
    Case: ACT, Inc. v. Worldwide Interactive Network, Inc.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Bush, White, and Readler
    Issues:

    Copyright; Whether plaintiff’s “Skill Definitions” were entitled to copyright protection: Application of the preliminary injunction factors; “Irreparable harm”; Worldwide Interactive Network, Inc. (WIN)

    Summary:

    In these two appeals from rulings in a copyright dispute, the court affirmed the district court, holding that defendant-WIN likely infringed plaintiff-ACT’s “intellectual property, that the infringement threatened ACT with irreparable harm, and that the balance of the equities and public interest favored an injunction.” ACT and WIN are testing companies that used to be partners. ACT sued WIN for copyright infringement of its “Skill Definitions, which are descriptions of the various workplace skills tested with career-readiness assessments. These assessments are marketed to schools, workplaces, and state education departments. WIN’s version was called “Learning Objectives.” The district court granted ACT partial summary judgment on its claim for copyright infringement and enjoined WIN from continuing the infringement. In challenging the injunction, WIN argued the district court misapplied the preliminary injunction factors. The court concluded that “ACT’s mere ‘selection’ of its three Skills—its decision to test the fields of Locating Information, Reading for Information, and Applied Mathematics—is likely unprotectable.” However, it held that “ACT’s description of the Skills” likely was protectable, as was its arrangement of the Skills. Further, ACT was likely to successfully show that “WIN’s original and revised Learning Objectives infringe at least ACT’s description and arrangement of its Skills and subskills. The original Learning Objectives are virtually identical copies of ACT’s Skill Definitions. . . . And the revised Learning Objectives preserve much of the same arrangement of subskills across different levels, while simply regurgitating the original Learning Objectives with slight rewording.” The court also found no merit in WIN’s assertion the district court presumed irreparable harm. “To the contrary, the district court explicitly acknowledged the presumption’s likely abrogation,” and it explained why, absent an injunction, ACT was likely to suffer irreparable harm. Further, the court found that the injunction was not “overbroad,” and that the district court did not err by finding “the public interest favored a preliminary injunction.” WIN next challenged the district court’s ruling striking “the derivative-sovereign-immunity defense from its amended answer.” While the court agreed that “the immunity denial here is immediately appealable,” it also agreed “with the district court that WIN’s significant delay in asserting the defense resulted in a forfeiture[.]”

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Administrative Law

    e-Journal #: 78062
    Case: Forner v. Bureau of Constr. Codes
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Boonstra, and O’Brien
    Issues:

    Request for a declaratory judgment; MCR 2.605(A); MCL 24.264; MCL 24.263; “Interested person”; “Interested” & “affect”; Injunctive relief; Striking a reply brief under MCR 7.111(A)(3); Harmless error; Protective order; MCR 2.302(C)(1); Summary disposition under MCR 2.116(C)(4); Jurisdiction over the appeal; MCR 7.203(A)(1); Bureau of Construction Codes (BCC)

    Summary:

    Finding no errors requiring reversal, the court affirmed the orders in both dockets in these consolidated appeals arising from plaintiff-licensed boiler installer and mechanical contractor’s (Forner) request for a declaratory ruling from defendant-BCC. Forner contended that “the trial court erred by affirming the BCC’s decision on the basis that he, a licensed boiler installer and holder of the boiler installation permits for the boilers installed at [nonparty-church], was not an interested person for purposes of challenging the boiler inspector’s interpretation of the boiler rules as applied to” the church’s boilers. The court found none of his arguments were compelling. It concluded that “the trial court did not clearly err by affirming the BCC’s decision. By holding that Forner was not an interested person for purposes of MCL 24.263, the court impliedly affirmed that the BCC’s decision was not contrary to law and that it was supported by competent evidence on the whole record. The trial court’s explanation that, because Forner was not an interested person, he could not appeal the BCC’s decision to the circuit court was incongruous with the trial court’s ultimate ruling. Nevertheless,” the court could affirm its “ruling because it reached the right result.” Among other things, the court determined “Forner’s argument that MCL 339.5601(8) required the BCC to provide him written notice of the boiler rules violations” lacked merit and “nothing in the boiler rules transfers to the boiler installer any of the owner’s responsibility” for making sure a boiler is properly installed and certified. The court also held that the trial court erred by striking the reply brief he filed under MCR 7.111(A)(3), but concluded the error was harmless. Further, it determined that “the trial court did not abuse its discretion by dispensing with oral argument and issuing a protective order staying discovery until [it] could resolve the dispositive motion.” Finally, the court held that the trial court did not err in granting the BCC summary disposition under MCR 2.116(C)(4) given the absence of an actual controversy for purposes of MCR 2.605(A)(1), or by ruling that “it lacked jurisdiction to grant Forner a declaratory judgment under MCL 24.264.”

    Full Text Opinion

  • Real Property (1)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 78061
    Case: Yanover v. Hancock
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - M.J. Kelly, Murray, and Borrello
    Issues:

    Action for breach of contract & mortgage foreclosure; Statute of limitations (SOL) for action on a promissory note; MCL 440.3118; SOL to foreclose a mortgage; MCL 600.5803; Degen v Degen’s Estate; Principle that a new promise to pay an existing debt that is not barred by a SOL is supported by consideration & restarts the limitations period; United States v Gardner (6th Cir); Acknowledgment of indebtedness; In re Booth’s Estate

    Summary:

    The court held that the trial court erred by finding plaintiff’s foreclosure action was time barred, but did not err by finding her breach of contract and unjust enrichment claims were time barred. Plaintiff loaned defendant $60,000 in exchange for a note and mortgage on defendant’s home. She later loaned defendant another $20,000, though no documents were signed. Plaintiff never received any payments on the $60,000 mortgage, so she had defendant sign a 6/28/2000 letter stating: “I reaffirm the debt mentioned above still exists and I acknowledge the fact that the interest continues to accrue on this debt.” She later paid plaintiff $30,000 dollars for the unsecured loan—the principal plus $10,000 in interest. Plaintiff sued her on the mortgage alleging breach of contract, unjust enrichment, and requesting foreclosure of the property. The trial court granted summary disposition for defendant, finding the SOL had already run. Plaintiff argued that it erred by finding the SOL barred her mortgage claim because it necessarily had to resolve a question of fact to reach this conclusion, and one existed as to whether a payment was made. Assuming, as she consistently stated, that “no payments were made by defendant on the mortgage note, the limitations period for the promissory note began on [5/21/95], and would end six years after the mortgage’s due date, [5/21/01]. Assuming the same, the limitations period applicable to foreclosure of the mortgage began on [5/21/95], and would end 15 years after the due date,” 5/21/10. However, plaintiff consistently stated she “never received any payment on the $60,000 mortgage, and . . . the $30,000 payment received from defendant was for the separate, unsecured loan.” Accepting this as true, “the trial court did not err in concluding that no payment was made on the mortgage, and finding without more that the” SOL barred her claims. But a new promise to pay an existing debt that is not barred by a limitations period “is supported by consideration and restarts the limitations period[.]” Here, there was “no genuine issue of material fact that the [6/28/2000], letter renewed the debt.” In addition, the letter “renewed the debt such that the original terms of the mortgage and note began anew at the date of signing.” Finally, the foreclosure action was not time barred to the extent it was “based upon any missed installment payments due between” 12/3/04 and 6/28/05. However, as the SOLs “for the breach of contract and unjust enrichment claims are much shorter,” those claims were properly dismissed. Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

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