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• Constitutional Law (1)

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  This summary also appears under Municipal

  e-Journal #: 60737

  Case: Paterek v. Village of Armada, MI

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Clay, Keith, and Marbley

  Issues:

  “Civil contempt”; Rolex Watch USA, Inc. v. Crowley; Glover v. Johnson; Grace v. Center for Auto Safety; Colling v. Barry; Electrical Workers Pension Trust Fund of Local Union 58, IBEW v. Gary’s Elec. Serv. Co.; “Criminal contempt"; United States v. Moncier; First Amendment “retaliation”; Fritz v. Charter Twp. of Comstock; Leonard v. Robinson; Dye v. Office of the Racing Comm’n; King v. Zamiara; Arnett v. Myers; “Substantive due process”; Pearson v. City of Grand Blanc; Braun v. Ann Arbor Charter Twp.; “Procedural due process”; Morrison v. Warren; Daily Servs., LLC v. Valentino; “Equal protection”; Center for Bio-Ethical Reform, Inc. v. Napolitano; Association of Cleveland Fire Fighters v. City of Cleveland, OH; Qualified immunity; Brown v. Crowley; Warren v. City of Athens, OH; Scarbrough v. Morgan Cnty. Bd. of Educ.; Municipal immunity from 42 USC § 1983 liability; Meyers v. City of Cincinnati; Board of Cnty. Comm’rs of Bryan Cnty., OK v. Brown; Certificate of Occupancy (COO); Special Approval Land Use (SALU) permit

  Summary:

  [This appeal was from the ED-MI.] The district court abused its discretion by failing to hold the defendant-Village of Armada in contempt after it violated a clear and unambiguous order to issue a COO for additional business space that conformed with the then existing SALU permit. Also, because a jury could reasonably find that the defendants retaliated against the plaintiffs-Patereks for having complained about Village officials, in violation of the First Amendment, the defendants were improperly granted summary judgment on most of the plaintiffs’ constitutional claims. The original SALU contained only one condition as to hours of operation, while the COO contained “rigid time constraint[s].” The Village violated the district court’s order by “patently disregard[ing] the district court’s unequivocal instruction for Defendants to issue a COO that conformed with the then existing SALU.” The district court did not abuse its discretion by denying the plaintiffs’ motion for criminal contempt. It erred by granting the defendants summary judgment on the plaintiffs’ First Amendment retaliation claim where they offered sufficient circumstantial evidence that “their recurring speech activities resulted in an escalating animus between Defendants and the Patereks, which ultimately led Defendants to take the adverse actions at issue in this case.” Because “a reasonable jury could conclude that Defendants retaliated against Plaintiffs for their protected speech activity,” summary judgment for the defendants on the retaliation claim “was inappropriate[.]” A jury could also find that they “arbitrarily and capriciously ticketed Plaintiffs, in violation of substantive due process; [and] that Defendants, due to their animus against Plaintiffs, subjected Plaintiffs’ business to disparate treatment, in violation of the Equal Protection Clause[.]” However, they were properly granted summary judgment on the plaintiffs’ procedural due process claim. Defendant-Delecke, the Commissioner of the Village Planning Commission, was not entitled to qualified immunity because the evidence suggested that he “used his government post to harass and retaliate against Plaintiffs by causing tickets to be issued and by denying Plaintiffs the rights bestowed to them under their SALUs.” Since each alleged constitutional violation stemmed “from the decision of an official with final decision-making authority related to the particular policy” at issue, “the Village is liable if a jury finds in Plaintiffs’ favor.”

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• Contracts (1)

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  This summary also appears under Negligence & Intentional Tort

  e-Journal #: 60732

  Case: Hamilton v. Jeannot

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam - Sawyer, M.J. Kelly, and Shapiro

  Issues:

  Dispute arising out of a failed business relationship; Laches & claims at law; MCL 600.5815; Knight v. Northpointe Bank; Thompson v. Doore; Lowry v. Lyle; Wehrman v. Conklin; Alger v. Davis; Head v. Benjamin Rich Realty Co.; Rose v. National Auction Group; Trentadue v. Buckler Automatic Lawn Sprinkler Co.; Tenneco, Inc. v. Amerisure Mut. Ins. Co.; Eberhard v. Harper-Grace Hosps.; Binding precedent; MCR 7.215(C)(2); Defamation; Burden v. Elias Bros. Big Boy Rests.; Whether a statement is actionable; Ireland v. Edwards; Principle that a statement of fact that another person has committed a particular crime or engaged in illegal conduct is defamatory per se; Kevorkian v. American Med. Ass’n; Unjust enrichment; Moll v. Wayne Cnty.; Belle Isle Grill Corp. v. City of Detroit; Suit on a promissory note; Consideration; Klimmer v. Klimmer; In re Booth’s Estate; General Motors Corp. v. Department of Treasury, Revenue Div.; Sanctions for filing “frivolous” claims; MCL 600.2591 & MCR 2.114; Kitchen v. Kitchen; Bias; In re Contempt of Henry

  Summary:

  [Unpublished opinion.] The court held that the trial court erred when it dismissed the plaintiff’s claims and found them frivolous. It also held that the trial court erred when it granted summary disposition for the defendants-inn owners (Arthur and Maureen Jeannot and Eden Brook, LLC [EB]) on one of its counter-claims for breach of a promissory note. Thus, it affirmed in part, reversed in part, vacated in part, and remanded for further proceedings. Plaintiff sued defendants alleging defamation, unjust enrichment, and conversion after their business relationship failed and plaintiff was let go. EB countersued alleging breach of contract and unjust enrichment based on plaintiff’s failure to pay on two promissory notes. The trial court dismissed plaintiff’s claims and granted judgment for EB on the two promissory notes. It also ordered plaintiff and his lawyer to pay defendants $18,423.38 in attorney fees as a sanction for filing frivolous claims. On appeal, the court agreed with plaintiff that the trial court erred in applying the doctrine of laches to bar his claims for conversion and claim and delivery of his personal property. “Because the Jeannots and [EB] failed to present any evidence to identify the items at issue and demonstrate that [plaintiff’s] failure to earlier assert his rights in the property prejudiced their ability to defend against [his] claims for conversion and claim and delivery, the trial court should have denied their motion for summary disposition premised on laches.” The court also agreed with plaintiff that the trial court erred in finding that his claim for defamation failed as a matter of law. “Because [Arthur] Jeannot did not present evidence that he did not make the statements” and the statements were either defamatory per se “or capable of carrying a defamatory meaning, the trial court should have denied [his] motion for summary disposition.” It further agreed with plaintiff that the trial court erred by dismissing his claim for unjust enrichment. “Because there is a factual dispute” as to whether EB and the Jeannots “were unjustly enriched at [plaintiff’s] expense, the trial court erred when it dismissed” the claim. In addition, the court partially agreed with plaintiff that the trial court erred by granting summary disposition for EB on its claims that he breached his agreement to repay two promissory notes, finding the evidence of consideration strong on one of the notes, but lacking on the other. Finally, the court found there was no judicial bias, but that the trial court erred by finding plaintiff’s claims frivolous and ordering sanctions.

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• Criminal Law (5)

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  e-Journal #: 60754

  Case: People v. Gibbs

  Court: Michigan Supreme Court ( Order )

  Judges: Young, Jr., Markman, Kelly, Zahra, McCormack, Viviano, and Bernstein

  Issues:

  Court costs

  Summary:

  In an order in lieu of granting leave to appeal, the court remanded the case (see e-Journal # 58497 in the 12/5/14 edition for the Court of Appeals opinion) to the Court of Appeals for consideration of the defendant’s issue regarding the trial court’s assessment of court costs. The Court of Appeals did not address this issue in its initial review of the case. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

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  e-Journal #: 60744

  Case: People v. Algra

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Borrello, Hoekstra, and O’Connell

  Issues:

  Prosecutorial misconduct; Pursuing a line of questioning about whether the second complainant was “terrorized” by other students; People v. Roscoe; Good-faith attempt to introduce evidence; People v. Noble; Alibi rebuttal; Request for a mistrial; People v. Schaw; Testimony about pictures of genitals; Relevant evidence; MRE 401 & 402; People v. Crawford; People v. McGhee; MRE 403; “Unfair prejudice”; People v. Mardlin; People v. Blackston; “Hearsay”; MRE 801(c) & 802; People v. Dendel (On Second Remand); Prior inconsistent statements; MRE 613(b); People v. Jenkins; Out-of-court statement introduced to show its effect on a listener as opposed to proving the truth of the matter asserted; People v. Gaines; Claim that the trial court improperly excluded testimony of a school counselor that the second complainant was an “over-exaggerator” and improperly admitted a search warrant exhibit as evidence during an attempt to rehabilitate his credibility; Cumulative effect of alleged errors; People v. Knapp

  Summary:

  [Unpublished opinion.] The court held that the prosecutor’s conduct was a good-faith attempt to admit relevant evidence. Thus, defendant-Algra failed to show error, much less a plain error affecting his substantial rights. He was convicted of five counts of CSC III with the victim, but acquitted of three counts of CSC I with a second complainant. He taught at the victim’s school as a swim coach. Defendant claimed, among other things, that the prosecutor committed misconduct by pursuing a line of questioning about whether the second complainant was “terrorized” by other students. Reviewing the challenged statements in context, the court held that the prosecutor did not commit misconduct. The victim “discussed the treatment of the second complainant when explaining why he did not fully disclose Algra’s conduct to police in the first instance. The victim’s reasons for failing to fully disclose Algra’s conduct to police during the initial interview was relevant to the victim’s credibility.” Nothing about the prosecutor’s questions suggested that “she was deliberately attempting to inflame the jury rather than to explore a pertinent issue. The prosecutor’s questions in and of themselves were not prejudicial or improper, and the prosecutor attempted to constrain her questions to the boundaries of the trial court’s evidentiary rulings.” Affirmed.

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  e-Journal #: 60746

  Case: People v. Brown

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Borrello, Hoekstra, and O’Connell

  Issues:

  Sentencing; Scoring of OVs 1-3 in “multiple offender” cases; MCL 777.31(2)(b); MCL 777.32(2); MCL 777.33(2)(a); People v. Morson; People v. Johnston; Scoring of 15 points for OV 1; MCL 777.31(1)(c); Scoring of 5 points for OV 2; MCL 777.32(1)(d); Scoring of 25 points for OV 3; MCL 777.33(1)(c); Scoring of 10 points for OV 4; MCL 777.34(1)(a); People v. Armstrong; People v. Lockett; Scoring of 50 points for OV 7; MCL 777.37(1)(a); “Sadism” defined (MCL 777.37(3)); People v. Hunt; Whether resentencing was required; People v. Francisco; Restitution; People v. Grant; MCL 780.766(2); MCL 780.767(1); “Gives rise to”; People v. McKinley; “Cause in fact”; Skinner v. Square D Co.

  Summary:

  [Unpublished opinion.] While the trial court properly concluded that this was a multiple offender case for the purposes of scoring OVs 1, 2, and 3, and did not err in scoring them, the court held that the trial court erred in scoring OVs 4 and 7, and that resentencing was required. It upheld the order requiring defendant to pay restitution jointly with his codefendants. Defendant pleaded guilty to armed robbery, first-degree home invasion, unlawful imprisonment, and felonious assault. He was sentenced to 14 years and 309 days to 40 years for the armed robbery conviction, 5 to 20 years for first-degree home invasion, 5 to 15 years for unlawful imprisonment, and 2 to 4 years for felonious assault. The trial court also ordered restitution in the amount of $10,612.20. The court rejected his claim that the trial court erred in assessing him points under OVs 1, 2, and 3 on the basis of codefendant-B’s use of a claw hammer as a stabbing weapon. It noted that “neither Morson nor Johnston held that the scored offenses must be the same between multiple offenders. Rather, Johnston held that codefendants must share common convictions.” Defendant and B shared “the common convictions of unlawful imprisonment and first-degree home invasion.” Further, the trial court did not err in scoring 15 points for OV 1, 5 points for OV 2, and 25 points for OV 3. However, as to OV 4, while the trial court found that the victim suffered a psychological injury on the basis of its personal observations of his state of agitation while he gave statements at other court appearances, the victim “did not give any statements in this case,” and his appearance was not part of the record. Thus, “the trial court clearly erred by finding that the victim suffered a serious psychological injury” because the record lacked any evidence on this point. It also erred in scoring 50 points for OV 7. While it was undisputed that B “engaged in sadistic conduct[,]” defendant “did not take part in the victim’s brutal beating. Unlike OVs 1, 2, and 3, there is no Legislative directive to assess all offenders equally under OV 7.” Rather, under Hunt, “‘only the defendant’s actual participation should be scored.’” This case was similar to Hunt. Affirmed in part, reversed in part, and remanded.

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  e-Journal #: 60741

  Case: People v. Fleming

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Borrello, Hoekstra, and O’Connell

  Issues:

  Sufficient evidence to support the defendant’s conviction of aggravated stalking; Whether he committed two acts of harassment; “Stalking” defined; MCL 750.411i(1)(e); “Course of conduct” defined; MCL 750.411i(1)(a); “Harassment” defined; MCL 750.411i(1)(d); “Unconsented contact” defined; MCL 750.411i(1)(f); Claim that because the jury acquitted defendant of home invasion for an incident “it necessarily could not have considered the incident as evidence of harassment”; People v. Vaughn; Ineffective assistance of counsel; Failure to impeach the victim with text message records; Matters of trial strategy; People v. Horn; “Other acts” evidence; MRE 404(b)(1); “Plain error”; Jury instruction as to what constitutes a “willing” pattern of conduct for aggravated stalking; Sentencing; People v. Lockridge; Alleyne v. United States; Scoring of OVs 3, 7, 8, & 10

  Summary:

  [Unpublished opinion.] The court affirmed defendant-Fleming’s convictions of larceny from a motor vehicle and aggravated stalking, but vacated his sentence of two years and six months to five years’ imprisonment for his convictions and remanded for resentencing pursuant to Lockridge. Defendant claimed that the evidence was insufficient to support his conviction of aggravated stalking because he did not commit two acts of harassment. He contended that “the jury acquitted him of the September 21 home-invasion charge, and the September 19 and July incidents did not constitute harassment.” It was undisputed that Fleming’s conduct violated his condition of release. The core of his argument was that he did not engage in a willful course of conduct. The court held that a reasonable jury could conclude that the September 19 incident constituted harassment. “Fleming approached the victim in a public place. He was not supposed to have contact with her because he had been arrested and charged with sexually assaulting her.” Given the facts, “a reasonable jury could find that this incident constituted unconsented contact, that a reasonable person would fear having someone charged with a previous assault against them approaching them, and that the victim did in fact feel harassed.” Fleming also contended that because the jury acquitted him of home invasion for the September 21 incident, it necessarily could not have considered the incident as evidence of harassment. The victim testified that, during that incident, Fleming entered her home and threatened her life. “A reasonable jury could find that the incident constituted unconsented contact, that a reasonable person would fear that conduct, and that the victim did in fact feel harassed. The fact that the jury also acquitted Fleming of home invasion does not necessarily mean that the jury could not have found that the incident constituted evidence of harassment.” The court noted that “jury verdicts rendered in several counts of a multicount indictment need not be consistent.” Also, “because other elements of the home invasion crime were in dispute, such as whether Fleming committed a breaking, the jury verdicts were not necessarily inconsistent in fact.” The court held that a reasonable jury could have found at least two separate acts of harassment from his conduct.

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  e-Journal #: 60749

  Case: People v. Johnson

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Boonstra, Murphy, and Markey

  Issues:

  Denial of motion for a mistrial; Right to a fair & impartial jury; People v. Orlewicz; Purpose of voir dire; People v. Sawyer; The trial court’s discretion in conducting voir dire; People v. Tyburski; Claim that the prosecutor’s questioning of a potential juror exposed the jurors to an “extraneous influence”; People v. Budzyn; Presumption that jurors follow their instructions; People v. Mahone; “Other acts” testimony under MCL 768.27a; MRE 403; People v. Bywater; People v. Watkins; People v. Buie; Ineffective assistance of counsel; Strickland v. Washington; Failure to raise a meritless argument; People v. Ericksen; Prosecutorial error; People v. Bahoda; People v. Unger; Alleged “vouching”; People v. Dobek

  Summary:

  [Unpublished opinion.] Concluding that the prosecutor’s questioning of the jury pool about its experiences with delayed disclosure of sexual abuse served a valid goal in this case, the court held that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. Further, the Watkins considerations supported the admission of the challenged other acts evidence under MCL 768.27a. The court also rejected his ineffective assistance of counsel and prosecutorial error claims. Thus, it affirmed his CSC I and II convictions and sentences. This case involved delayed disclosure of sexual abuse. The court concluded that the trial court’s “denial of defendant’s motion for a mistrial related to the delayed disclosure questions was consistent with the trial court’s obligation” to conduct a voir dire that “was ‘sufficiently probing . . . to uncover potential juror bias.’” The court also rejected the argument that the prosecution’s questioning of a potential juror “exposed the jurors to an extraneous influence and was grounds for a mistrial.” While the potential juror’s comments about “her experiences with delayed disclosure arguably may have exposed the jury to extraneous influence, since, like the victims and other witnesses in this case, the potential juror’s sister was sexually abused and disclosed her abuse years later when others alleged abuse, and thus the comments could have had an impact on the jury’s perception of the prevalence of delayed disclosure of sexual abuse.” However, defendant did not show that “there was ‘a real and substantial possibility that [the exposure] could have affected the jury’s verdict.’” The prosecutor subsequently “asked the jury pool whether it could ‘keep an open mind about th[e] issues’ and ‘listen to the evidence as it’s presented to you,’ to which no potential juror replied negatively.” Thus, the record did “not indicate that any juror prejudged the phenomena of delayed disclosure.” As to the other acts evidence, the court noted that the “acts to which witnesses testified under MCL 768.27a were similar to the acts underlying the charged offenses” regarding “the ages of the victims, the victims’ relation to defendant, the locations where the abuse took place, and the nature of the abuse.”

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• Insurance (3)

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  e-Journal #: 60753

  Case: State Farm Mut. Auto. Ins. Co. v. Michigan Mun. Risk Mgmt. Auth.

  Court: Michigan Supreme Court ( Order )

  Judges: Young, Jr., Markman, Kelly, Zahra, McCormack, Viviano, and Bernstein

  Issues:

  Whether the policy issued by defendant-QBE Insurance can be voided ab initio; Bazzi v. Sentinel Ins. Co.

  Summary:

  In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 59343 in the 3/13/15 edition) and remanded the case to the Court of Appeals for reconsideration of whether the policy issued by defendant-QBE Insurance can be voided ab initio. The court directed the Court of Appeals to hold this case in abeyance pending the Court of Appeals’ decision in Bazzi, and to reconsider the issue in light of Bazzi. The court denied the application for leave to appeal in all other respects because it was not persuaded that it should consider the remaining question presented.

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  e-Journal #: 60758

  Case: Perkovic v. Zurich Am. Ins. Co.

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Wilder, Talbot, and Fort Hood

  Issues:

  Dismissal based on the statute of limitations in MCL 500.5145; Devillers v. Auto Club Ins. Ass’n; Whether the medical bill & records sent by the healthcare provider complied with the written notice of injury requirement; Whether documents must be sent with the intent to file a claim; Dozier v. State Farm; Walden v. Auto Owners Ins. Co.; Lansing Gen. Hosp., Osteopathic v. Gomez; Heikkinen v. Aetna Cas. & Sur. Co.; Joiner v. Michigan Mut. Ins. Co.; Applicability of Welton v. Carriers Ins. Co.

  Summary:

  Disagreeing with the plaintiff’s assertion that there is no requirement that documents be sent with the intent to file a claim, the court held that he did not provide sufficient notice of injury pursuant to MCL 500.3145(1) and thus, the trial court properly granted the defendant-insurer summary disposition. The case arose from a car accident on 2/28/09. It was determined that defendant was the highest priority insurer. Plaintiff asserted that he complied with the notice requirement when a records custodian (W) for the medical center that treated him after the accident sent a medical bill and medical records to defendant on 4/30/09. The court concluded that “the notice provided plaintiff’s name and address, and indicated in ordinary language the name of the person injured and the time, place, and nature of his injury.” The medical bill and records were also “given to defendant within one year after” the accident. However, defendant argued that “MCL 500.3145(1)’s requirement that the notice be made by ‘a person claiming to be entitled to benefits therefor, or by someone in his behalf’ means that the information must convey the intent to make a claim for PIP benefits.” While the court concluded that Welton did not apply here, it reviewed several other cases - Dozier, Walden, Gomez, Heikkinen, and Joiner. It noted that while it “does not always require strict, technical compliance with the requirements of MCL 500.3145(1), in Dozier, Walden, and Gomez there was no indication that the defendant was unaware of a possible no-fault claim. The defendants in those cases were sent either a letter or a written notice form.” However, here “no letter or written notice form was sent that would alert defendant to the possible pendency of a no-fault claim.” The medical bill and records “were sent to defendant without any indication of a possible claim.” According to W, they “were sent for the purpose of obtaining payment. This notice of injury, which was unrelated to a possible claim for no-fault benefits, did not trigger defendant’s investigative procedures or advise defendant of the need to appropriate funds for settlement.” Like the death certificate in Heikkinen, the medical bill and records, “although sufficient in content, did not fulfill the purposes of the statute.” Affirmed.

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  e-Journal #: 60759

  Case: Walega v. Walega

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Wilder, Talbot, and Fort Hood

  Issues:

  Action for personal protection insurance (PIP) benefits under the No-Fault Act; MCL 500.3105(1); Whether the use of the plaintiff’s vehicle was closely related to its transportational function at the time of injury; McKenzie v. Auto Club Ins. Ass’n; Block v. Citizens Ins. Co. of Am.; Drake v. Citizens Ins. Co.; Whether dragging items behind a vehicle precludes coverage; Smith v. Community Serv. Ins. Co.; Construction of the No-Fault Act; Churchman v. Rickerson; Putkamer v. Transamerica Ins. Corp. of Am.; McMullen v. Motors Ins. Corp.; “As a motor vehicle” defined; Incidental involvement of a motor vehicle; Morosini v. Citizens Ins. Co. of Am.; Thornton v. Allstate Ins. Co.; Marzonie v. ACIA; Bourne v. Farmers Ins. Exch.; Gooden v. Transamerica Ins. Corp.; Winter v. Automobile Club of MI; Principle that there must be “a causal connection, which is more than fortuitous, incidental or but for, between the use of the motor vehicle and the injury sustained”; DAIIE v. Higginbotham

  Summary:

  The court held that the trial court did not err when it held that the plaintiff was entitled to PIP benefits. He and his wife were using plaintiff’s truck to move a safe from their garage. As his wife began to drive, with plaintiff standing outside the truck, the safe fell over and landed on his leg. His leg was eventually amputated below the knee. He sought PIP benefits from the defendant-insurer, Farm Bureau, claiming the injury occurred when his wife accelerated the truck over the pavement, causing the safe to fall out of the bed of the truck. Defendant denied the claim, arguing “plaintiff’s injuries did not arise out of the transportational function of a motor vehicle because the truck was either being used as an immobile anchor point for the rope or was pulling the skidding safe.” The trial court found that plaintiff was entitled to PIP benefits under either version of events. On appeal, the court rejected defendant’s argument that the trial court erred in concluding that plaintiff was using his truck as a motor vehicle at the time the injury occurred. It noted that “the truck was moving for the purpose of transporting or conveying the safe from one location to another when the injury occurred. Thus, ‘the requisite nexus between the injury and transportation function of the motor vehicle’ is present.” Further, it distinguished the cases cited by defendant, noting that in each case the use of the vehicle was incidental, which was not the case here. “[P]laintiff was using a truck to move or transport a very heavy safe, at a minimum, from his garage to his driveway. It is normal and foreseeable to use a truck, attached with a trailer hitch, to move heavy objects.” Thus, “plaintiff’s injury was closely related to the transportational function of the vehicle and, therefore, arose out of the operation, ownership, maintenance, or use of a motor vehicle ‘as a motor vehicle.’” Affirmed.

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• Municipal (1)

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  This summary also appears under Constitutional Law

  e-Journal #: 60737

  Case: Paterek v. Village of Armada, MI

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Clay, Keith, and Marbley

  Issues:

  “Civil contempt”; Rolex Watch USA, Inc. v. Crowley; Glover v. Johnson; Grace v. Center for Auto Safety; Colling v. Barry; Electrical Workers Pension Trust Fund of Local Union 58, IBEW v. Gary’s Elec. Serv. Co.; “Criminal contempt"; United States v. Moncier; First Amendment “retaliation”; Fritz v. Charter Twp. of Comstock; Leonard v. Robinson; Dye v. Office of the Racing Comm’n; King v. Zamiara; Arnett v. Myers; “Substantive due process”; Pearson v. City of Grand Blanc; Braun v. Ann Arbor Charter Twp.; “Procedural due process”; Morrison v. Warren; Daily Servs., LLC v. Valentino; “Equal protection”; Center for Bio-Ethical Reform, Inc. v. Napolitano; Association of Cleveland Fire Fighters v. City of Cleveland, OH; Qualified immunity; Brown v. Crowley; Warren v. City of Athens, OH; Scarbrough v. Morgan Cnty. Bd. of Educ.; Municipal immunity from 42 USC § 1983 liability; Meyers v. City of Cincinnati; Board of Cnty. Comm’rs of Bryan Cnty., OK v. Brown; Certificate of Occupancy (COO); Special Approval Land Use (SALU) permit

  Summary:

  [This appeal was from the ED-MI.] The district court abused its discretion by failing to hold the defendant-Village of Armada in contempt after it violated a clear and unambiguous order to issue a COO for additional business space that conformed with the then existing SALU permit. Also, because a jury could reasonably find that the defendants retaliated against the plaintiffs-Patereks for having complained about Village officials, in violation of the First Amendment, the defendants were improperly granted summary judgment on most of the plaintiffs’ constitutional claims. The original SALU contained only one condition as to hours of operation, while the COO contained “rigid time constraint[s].” The Village violated the district court’s order by “patently disregard[ing] the district court’s unequivocal instruction for Defendants to issue a COO that conformed with the then existing SALU.” The district court did not abuse its discretion by denying the plaintiffs’ motion for criminal contempt. It erred by granting the defendants summary judgment on the plaintiffs’ First Amendment retaliation claim where they offered sufficient circumstantial evidence that “their recurring speech activities resulted in an escalating animus between Defendants and the Patereks, which ultimately led Defendants to take the adverse actions at issue in this case.” Because “a reasonable jury could conclude that Defendants retaliated against Plaintiffs for their protected speech activity,” summary judgment for the defendants on the retaliation claim “was inappropriate[.]” A jury could also find that they “arbitrarily and capriciously ticketed Plaintiffs, in violation of substantive due process; [and] that Defendants, due to their animus against Plaintiffs, subjected Plaintiffs’ business to disparate treatment, in violation of the Equal Protection Clause[.]” However, they were properly granted summary judgment on the plaintiffs’ procedural due process claim. Defendant-Delecke, the Commissioner of the Village Planning Commission, was not entitled to qualified immunity because the evidence suggested that he “used his government post to harass and retaliate against Plaintiffs by causing tickets to be issued and by denying Plaintiffs the rights bestowed to them under their SALUs.” Since each alleged constitutional violation stemmed “from the decision of an official with final decision-making authority related to the particular policy” at issue, “the Village is liable if a jury finds in Plaintiffs’ favor.”

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• Negligence & Intentional Tort (1)

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  This summary also appears under Contracts

  e-Journal #: 60732

  Case: Hamilton v. Jeannot

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam - Sawyer, M.J. Kelly, and Shapiro

  Issues:

  Dispute arising out of a failed business relationship; Laches & claims at law; MCL 600.5815; Knight v. Northpointe Bank; Thompson v. Doore; Lowry v. Lyle; Wehrman v. Conklin; Alger v. Davis; Head v. Benjamin Rich Realty Co.; Rose v. National Auction Group; Trentadue v. Buckler Automatic Lawn Sprinkler Co.; Tenneco, Inc. v. Amerisure Mut. Ins. Co.; Eberhard v. Harper-Grace Hosps.; Binding precedent; MCR 7.215(C)(2); Defamation; Burden v. Elias Bros. Big Boy Rests.; Whether a statement is actionable; Ireland v. Edwards; Principle that a statement of fact that another person has committed a particular crime or engaged in illegal conduct is defamatory per se; Kevorkian v. American Med. Ass’n; Unjust enrichment; Moll v. Wayne Cnty.; Belle Isle Grill Corp. v. City of Detroit; Suit on a promissory note; Consideration; Klimmer v. Klimmer; In re Booth’s Estate; General Motors Corp. v. Department of Treasury, Revenue Div.; Sanctions for filing “frivolous” claims; MCL 600.2591 & MCR 2.114; Kitchen v. Kitchen; Bias; In re Contempt of Henry

  Summary:

  [Unpublished opinion.] The court held that the trial court erred when it dismissed the plaintiff’s claims and found them frivolous. It also held that the trial court erred when it granted summary disposition for the defendants-inn owners (Arthur and Maureen Jeannot and Eden Brook, LLC [EB]) on one of its counter-claims for breach of a promissory note. Thus, it affirmed in part, reversed in part, vacated in part, and remanded for further proceedings. Plaintiff sued defendants alleging defamation, unjust enrichment, and conversion after their business relationship failed and plaintiff was let go. EB countersued alleging breach of contract and unjust enrichment based on plaintiff’s failure to pay on two promissory notes. The trial court dismissed plaintiff’s claims and granted judgment for EB on the two promissory notes. It also ordered plaintiff and his lawyer to pay defendants $18,423.38 in attorney fees as a sanction for filing frivolous claims. On appeal, the court agreed with plaintiff that the trial court erred in applying the doctrine of laches to bar his claims for conversion and claim and delivery of his personal property. “Because the Jeannots and [EB] failed to present any evidence to identify the items at issue and demonstrate that [plaintiff’s] failure to earlier assert his rights in the property prejudiced their ability to defend against [his] claims for conversion and claim and delivery, the trial court should have denied their motion for summary disposition premised on laches.” The court also agreed with plaintiff that the trial court erred in finding that his claim for defamation failed as a matter of law. “Because [Arthur] Jeannot did not present evidence that he did not make the statements” and the statements were either defamatory per se “or capable of carrying a defamatory meaning, the trial court should have denied [his] motion for summary disposition.” It further agreed with plaintiff that the trial court erred by dismissing his claim for unjust enrichment. “Because there is a factual dispute” as to whether EB and the Jeannots “were unjustly enriched at [plaintiff’s] expense, the trial court erred when it dismissed” the claim. In addition, the court partially agreed with plaintiff that the trial court erred by granting summary disposition for EB on its claims that he breached his agreement to repay two promissory notes, finding the evidence of consideration strong on one of the notes, but lacking on the other. Finally, the court found there was no judicial bias, but that the trial court erred by finding plaintiff’s claims frivolous and ordering sanctions.

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• Tax (1)

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  e-Journal #: 60736

  Case: Law Office of John H. Effegertsen, P.C. v. Commissioner of Internal Revenue

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Sutton and Watson (with Clay joining in part); Dissenting in part – Clay

  Issues:

  Imposition of penalties under the amendments to the provisions governing “employee stock ownership” retirement plans (ESOPs); 26 USC § 4979A; Temp. Treas. Reg. § 1.409(p)-1T(i)(1)(ii) & (2)(iii)(A) (2005); 26 USC §§ 409(p)(2) & 4975(e)(7); Whether the petitioner owed an excise tax; § 4979A(a)(3); Whether the statute of limitations ran before the Commissioner assessed the excise tax; §§ 6501(a), (c)(3), & (b)(4); Commissioner v. Lane-Wells Co.; McDonald v. United States; Whether the Tax Court abused its discretion by granting the Commissioner’s reconsideration motion; Louisville & Nashville R.R. v. Commissioner; Schlaud v. Snyder; United States v. Huntington Nat’l Bank; Whether the petitioner could invoke “judicial estoppel”; New Hampshire v. Maine; Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, LLP; United States v. Williams; Heckler v. Community Health Servs. of Crawford Cnty., Inc.

  Summary:

  Even though the IRS waited until 2011 to collect over $200,000 in excise taxes from the petitioner-law firm, which arose from its delayed compliance with the amendments governing ESOP retirement plans, the court held that the limitations period remained open, and affirmed the imposition of an excise tax. In 2001, Congress imposed a 50% excise tax and other penalties on S corporation ESOPs that did not meet the new requirements. The new legislation also gave corporations six months within which to comply with the amendments. Petitioner “amended the ESOP in an attempt to mirror the new limits.” In 2006, petitioner and the ESOP each filed 2005 tax returns. Believing that it had complied with the new rules, petitioner did not file a Form 5330, the return for the new excise tax. The IRS issued a deficiency notice in 2011, “alleging that before the June 30, 2005, change, the ESOP was not in compliance with the excise tax rules and $200,750 of excise tax was due (50% of the $401,500 of Law Office stock held in the ESOP).” The court upheld the Tax Court’s ruling that the excise tax was triggered by the 2005 nonallocation year. It also agreed that the assessment was not barred by the three-year statute of limitations because the petitioner did not file a Form 5330 for 2005, the return for the new excise tax that starts the limitations clock. The court noted that it “appreciate[d] the taxpayer’s lament that it seems strange to let the limitations period run until it files the requisite form, which in this instance merely would have reported ‘no excise tax due.’ . . . ‘The absence of any limitation, under the situation . . . may indeed visit unfair burdens and expense upon innocent taxpayers. If so, Congress can provide the needed remedy.’” The Tax Court did not abuse its discretion by granting the Commissioner’s reconsideration motion after it had previously ruled in the petitioner’s favor because it was “correct[ing] its mistake.” The petitioner could not invoke judicial estoppel to argue that the Tax Court was wrong to consider the Commissioner’s new legal argument.

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