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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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

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


Cases appear under the following practice areas:

  • Constitutional Law (1)

    Full Text Opinion

    This summary also appears under Election Law

    e-Journal #: 73862
    Case: Davis v. Secretary of State
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Redford and Tukel; Concurring in part, Dissenting in part - Meter
    Issues:

    Unsolicited sending of absent voter ballot applications; The right to vote by absentee ballot without a reason; Const. 1963, art. 2, § 4; Separation of powers; Const. 1963, art. 3, § 2; Interpretation of constitutional provisions; League of Women Voters of MI v. Secretary of State (League of Women Voters I & II); Statutory interpretation; Sau-Tuk Indus., Inc. v. Allegan Cnty.; Detroit Pub. Schs. v. Conn; Universal Underwriters Ins. Group v. Auto Club Ins. Ass’n; Principle that all political power is inherent in the people; Const. 1963, art. 1, § 1; The Secretary of State’s powers & duties in elections; Const. 1963, art. 5, § 3; The Michigan Election Law (MCL 168.1 et seq.); MCL 168.21; Citizens Protecting MI’s Constitution v. Secretary of State; Principle that local election officials must follow the Secretary of State’s instructions on the conduct of elections; MCL 168.31 & 32; Hare v. Berrien Cnty. Bd. of Election Comm’rs; Applying for an absent voter ballot; MCL 168.759; Distinguishing Taylor v. Currie; Preserving the purity of elections; Elliott v. Secretary of State; Wells v. Kent Cnty. Bd. of Election Comm’rs; Expressio unius est exclusio alterius; “May”; Walters v. Nadell; Browder v. International Fid. Ins. Co.

    Summary:

    Holding that defendant-Secretary of State did not abuse her discretion by sending absent voter ballot applications to registered Michigan voters, the court affirmed the Court of Claims’ grant of summary disposition for defendant and dismissal of plaintiff’s claims. Plaintiff challenged defendant’s unsolicited sending of absent voter ballot applications to registered Michigan voters by mail before the 8/4/20 primary election and 11/3/20 general election, with a letter encouraging “absentee voting from home to stay safe in relation to the COVID-19 outbreak.” He alleged defendant lacked authority under state law and the constitution and violated the constitutional requirement of the separation of powers. “He sought to enjoin defendant from mass mailing unsolicited absent voter ballot applications to registered voters in Michigan.” The Court of Claims found defendant had authority to send the absent voter ballot applications at issue. On appeal, the court rejected plaintiff’s argument that defendant lacked the authority to send the applications. Defendant’s “action in sending an application which each registered voter was free to fill out and return, or not, fell within her authority as chief elections officer of the state, and comported with her constitutional obligation to liberally construe Const. 1963, art. 2, § 4(1) to effectuate its purposes.” Further, nothing in MCL 168.21 and MCL 168.31 “prohibits the Secretary of State from sending absent voter ballot applications to qualified registered voters” and “by furnishing the applications, the Secretary of State furthered the purposes of informing qualified registered voters of their right to vote by absentee ballot and facilitated their first step of applying for an absentee ballot to enable them to exercise their constitutional rights if they so choose.” The court disagreed with the dissent based on “the specific language of the statute, in conjunction with the constitutional and statutory duties of the Secretary of State and the specific language of the Const. 1963, art. 2, § 4(1) (g) and (h) and (2)[.]”

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 73829
    Case: White v. Michigan State Univ.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Jansen, K.F. Kelly, and Cameron
    Issues:

    Dispute over vacation time payout; Principle that contract principles apply to collective bargaining agreements (CBAs); Kendzierski v. Macomb Cnty.; Contract interpretation; Greenville Lafayette LLC v. Elgin State Bank; Arbitrability; Fromm v. Meemic Ins. Co.

    Summary:

    The court held that the Court of Claims properly granted summary disposition of plaintiff’s claim for unpaid vacation time in favor of defendant-employer. Plaintiff originally brought his action in small claims court. Defendant removed it to the Court of Claims, which then dismissed it on the basis that plaintiff failed to adhere to the grievance procedure outlined in the CBA, which included an arbitration agreement. It also noted that dismissal was proper on the basis that he did not file a notice of intent with the Court of Claims within one year of the claim’s accrual. On appeal, the court rejected his argument that the Court of Claims erred by granting defendant’s motion for dismissal because the dispute at issue, which he framed as a calculation error, did not fall within the scope of the CBA. He claimed that “because he was not terminated, but rather laid off, [the] payout was ‘voluntary’ and therefore outside of the scope of the CBA.” However, whether the payment was required because of termination or was provided voluntarily, “the CBA would continue to apply.” As such, the Court of Claims “did not err by determining that plaintiff’s claim was subject to the terms of the CBA and thus was subject to dismissal because of plaintiff’s failure to follow the required grievance procedure.” The court also found no support for plaintiff’s suggestion that an alleged informal grievance process he went through was sufficient to establish an actual grievance. “By failing to engage the proper procedure, plaintiff did not reach the level of action whereby the [union] would be able to request arbitration.” Moreover, nothing in the CBA suggested defendant “had any requirement to suggest arbitration. The grievance process requires the ‘aggrieved employee’ to initiate the process and escalate it as necessary.” Plaintiff’s failure to pursue the CBA’s process was sufficient to warrant dismissal. Affirmed.

    Full Text Opinion

  • Criminal Law (2)

    Full Text Opinion

    e-Journal #: 73821
    Case: People v. James
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Beckering, and M.J. Kelly
    Issues:

    Other acts evidence; MRE 404(b); People v. VanderVliet; Relevance; People v. Sabin (After Remand); MRE 401; People v. Orr; MRE 403; People v. McGhee; Harmless error; MCL 769.26; People v. Williams; People v. Mateo; People v. Denson; Exclusion of evidence on the basis it was irrelevant; MRE 402; Materiality; People v. Crawford; Sufficiency of the evidence; First-degree premeditated murder; People v. Bennett; First-degree felony murder; People v. Smith; Unlawful imprisonment; “Restrain”; Identity; People v. Fairey; Aiding & abetting; People v. Izarraras-Placante; Prosecutorial misconduct

    Summary:

    Holding that the trial court did not abuse its discretion in admitting other acts evidence or in excluding evidence on the basis it was irrelevant, that there was sufficient evidence to support defendant's convictions, and rejecting his prosecutorial misconduct claim, the court affirmed. He was convicted of first-degree murder and conspiracy to commit first-degree murder. Before her death, defendant was charged with CSC against the victim (D). On appeal, he argued that the trial court abused its discretion in admitting testimony from D’s ex-boyfriend, B, about how defendant had sexually assaulted D a number of times. The prosecution offered the testimony to show his motive for killing D. “Proof of motive is a proper, non-character purpose.” The testimony was also relevant to whether he killed or aided and abetted another man in killing D. While defendant asserted that there was no proper purpose because other evidence showed he admitted to having sex with D and she told a school counselor about his actions, “the fact that other relevant and admissible evidence may establish the same motive, does not negate the fact that the challenged evidence is also proffered for a proper purpose and is also relevant. Instead, the presence of other, less prejudicial evidence supporting a defendant’s motive must be evaluated under MRE 403’s balancing test.” The court disagreed with his contention that the probative force of B’s testimony was essentially identical to that of other evidence. The counselor and the lead detective in the CSC case did not offer details about what D had disclosed, and defendant told his mother and the police that his sex with D was consensual. B’s testimony showed that it was not consensual, and his testimony “was necessary to show the true nature of the sexual contact . . . .” The nonconsensual nature of the sexual relationship “was highly probative of his motive to kill her.” Further, the probative value of the testimony “was not substantially outweighed by the danger of unfair prejudice. [B’s] testimony was brief and was not as detailed and salacious as” defendant claimed. The court added that, even if B’s testimony was erroneously admitted, the untainted evidence of defendant’s guilt was overwhelming.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73799
    Case: People v. Ramsey
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Fort Hood, and O’Brien
    Issues:

    Sufficiency of the evidence; People v. Lane; The law of the case doctrine; Ingham Cnty. v. Michigan Cnty. Rd. Comm’n Self-Ins. Pool; Bennett v. Bennett; The court’s prerogative to give both defendants in a consolidated appeal after a joint trial the benefit of its decision on an issue raised by only one of them; People v. Hayden; The court’s authority to address issues in the interest of justice; People v. Cain

    Summary:

    On remand from the Supreme Court, the court again held that the trial court erred by finding the prosecution presented insufficient evidence to convict defendant of conspiracy, and by repeating “its sufficiency analysis on remand while ordering a new trial for defendant ostensibly on the basis of the great weight of the evidence.” However, it found that the evidentiary error over which the Supreme Court granted his codefendant a new trial entitled defendant to one as well. Thus, it remanded for that purpose. He was convicted of conspiracy to commit murder. The trial court entered a directed verdict of acquittal based on insufficient evidence, and alternatively granted a new trial on the basis that the verdict was contrary to the great weight of the evidence. However, it sentenced his codefendant as a third-offense habitual offender to life in prison. In a prior appeal, the court reversed and remanded for sentencing based on the jury’s verdict. The Supreme Court vacated and remanded. The court in turn remanded to the trial court, which reiterated its conclusion as to the sufficiency of the evidence. The court then found that the trial court engaged in sufficiency review to the exclusion of great-weight review, and again remanded for sentencing and entry of a judgment of sentence consistent with the jury’s verdict. In lieu of granting leave, the Supreme Court again remanded to the court for reconsideration in light of the its decision in his codefendant’s case. The court now found that the Supreme Court’s conclusion that the evidence resulting from the improper showup invalidated his codefendant’s guilty verdict “compels the conclusion that it also invalidated defendant’s guilty verdict. The question then becomes the relief to which" he was entitled. Although the Supreme Court’s conclusion that the showup was unnecessarily suggestive and unreliable, and its consequent decision to suppress any evidence from the showup while remanding that case for a new trial, “undercuts one of the key bases for rejecting defendant’s sufficiency challenge all along, as [that case] itself illustrates, evidentiary error does not call for sufficiency review confined to the properly admitted evidence and the potential remedy of acquittal, but rather offers the remedy of retrial.”

    Full Text Opinion

  • Election Law (1)

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 73862
    Case: Davis v. Secretary of State
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Redford and Tukel; Concurring in part, Dissenting in part - Meter
    Issues:

    Unsolicited sending of absent voter ballot applications; The right to vote by absentee ballot without a reason; Const. 1963, art. 2, § 4; Separation of powers; Const. 1963, art. 3, § 2; Interpretation of constitutional provisions; League of Women Voters of MI v. Secretary of State (League of Women Voters I & II); Statutory interpretation; Sau-Tuk Indus., Inc. v. Allegan Cnty.; Detroit Pub. Schs. v. Conn; Universal Underwriters Ins. Group v. Auto Club Ins. Ass’n; Principle that all political power is inherent in the people; Const. 1963, art. 1, § 1; The Secretary of State’s powers & duties in elections; Const. 1963, art. 5, § 3; The Michigan Election Law (MCL 168.1 et seq.); MCL 168.21; Citizens Protecting MI’s Constitution v. Secretary of State; Principle that local election officials must follow the Secretary of State’s instructions on the conduct of elections; MCL 168.31 & 32; Hare v. Berrien Cnty. Bd. of Election Comm’rs; Applying for an absent voter ballot; MCL 168.759; Distinguishing Taylor v. Currie; Preserving the purity of elections; Elliott v. Secretary of State; Wells v. Kent Cnty. Bd. of Election Comm’rs; Expressio unius est exclusio alterius; “May”; Walters v. Nadell; Browder v. International Fid. Ins. Co.

    Summary:

    Holding that defendant-Secretary of State did not abuse her discretion by sending absent voter ballot applications to registered Michigan voters, the court affirmed the Court of Claims’ grant of summary disposition for defendant and dismissal of plaintiff’s claims. Plaintiff challenged defendant’s unsolicited sending of absent voter ballot applications to registered Michigan voters by mail before the 8/4/20 primary election and 11/3/20 general election, with a letter encouraging “absentee voting from home to stay safe in relation to the COVID-19 outbreak.” He alleged defendant lacked authority under state law and the constitution and violated the constitutional requirement of the separation of powers. “He sought to enjoin defendant from mass mailing unsolicited absent voter ballot applications to registered voters in Michigan.” The Court of Claims found defendant had authority to send the absent voter ballot applications at issue. On appeal, the court rejected plaintiff’s argument that defendant lacked the authority to send the applications. Defendant’s “action in sending an application which each registered voter was free to fill out and return, or not, fell within her authority as chief elections officer of the state, and comported with her constitutional obligation to liberally construe Const. 1963, art. 2, § 4(1) to effectuate its purposes.” Further, nothing in MCL 168.21 and MCL 168.31 “prohibits the Secretary of State from sending absent voter ballot applications to qualified registered voters” and “by furnishing the applications, the Secretary of State furthered the purposes of informing qualified registered voters of their right to vote by absentee ballot and facilitated their first step of applying for an absentee ballot to enable them to exercise their constitutional rights if they so choose.” The court disagreed with the dissent based on “the specific language of the statute, in conjunction with the constitutional and statutory duties of the Secretary of State and the specific language of the Const. 1963, art. 2, § 4(1) (g) and (h) and (2)[.]”

    Full Text Opinion

  • Employment & Labor Law (1)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 73829
    Case: White v. Michigan State Univ.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Jansen, K.F. Kelly, and Cameron
    Issues:

    Dispute over vacation time payout; Principle that contract principles apply to collective bargaining agreements (CBAs); Kendzierski v. Macomb Cnty.; Contract interpretation; Greenville Lafayette LLC v. Elgin State Bank; Arbitrability; Fromm v. Meemic Ins. Co.

    Summary:

    The court held that the Court of Claims properly granted summary disposition of plaintiff’s claim for unpaid vacation time in favor of defendant-employer. Plaintiff originally brought his action in small claims court. Defendant removed it to the Court of Claims, which then dismissed it on the basis that plaintiff failed to adhere to the grievance procedure outlined in the CBA, which included an arbitration agreement. It also noted that dismissal was proper on the basis that he did not file a notice of intent with the Court of Claims within one year of the claim’s accrual. On appeal, the court rejected his argument that the Court of Claims erred by granting defendant’s motion for dismissal because the dispute at issue, which he framed as a calculation error, did not fall within the scope of the CBA. He claimed that “because he was not terminated, but rather laid off, [the] payout was ‘voluntary’ and therefore outside of the scope of the CBA.” However, whether the payment was required because of termination or was provided voluntarily, “the CBA would continue to apply.” As such, the Court of Claims “did not err by determining that plaintiff’s claim was subject to the terms of the CBA and thus was subject to dismissal because of plaintiff’s failure to follow the required grievance procedure.” The court also found no support for plaintiff’s suggestion that an alleged informal grievance process he went through was sufficient to establish an actual grievance. “By failing to engage the proper procedure, plaintiff did not reach the level of action whereby the [union] would be able to request arbitration.” Moreover, nothing in the CBA suggested defendant “had any requirement to suggest arbitration. The grievance process requires the ‘aggrieved employee’ to initiate the process and escalate it as necessary.” Plaintiff’s failure to pursue the CBA’s process was sufficient to warrant dismissal. Affirmed.

    Full Text Opinion

  • Insurance (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 73809
    Case: Hassanein v. Encompass Indem. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, Borrello, and Tukel
    Issues:

    Homeowner’s policy coverage dispute; Requirement that the insureds “reside” on the property; Heniser v. Frankenmuth Mut. Ins. Co.; McGrath v. Allstate Ins. Co.; Whether the policy was ambiguous; Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc.; “Occupy”; Negligence; Case v. Consumers Power Co.; An insurance agent’s duty; Zaremba Equip., Inc. v. Harco Nat’l Ins. Co.; Mate v. Wolverine Mut. Ins. Co.; Genesee Food Servs., Inc. v. Meadowbrook, Inc.; “Special relationship”; Harts v. Farmers Ins. Exch.; Pressey Enters., Inc. v. Barnett-France Ins. Agency; Expert testimony on a question of law; Lenawee Cnty. v. Wagley

    Summary:

    Concluding that McGrath controlled here, the court affirmed summary disposition for defendant-insurer (Encompass) in this dispute over coverage under a homeowner’s policy because plaintiffs-insureds did not “reside” on the property at the time of the fire. The court also affirmed summary disposition for defendant-insurance agency (Suport) on their negligence claim against it. Plaintiffs argued that the Stonegate property “remained their residence while they were temporarily in Egypt.” They contended that the policy did not require them to “physically live” there at the time of the fire, and that they continued to reside there because they left personal property there “and intended to return at some point in the future. Although the arrangement of the relevant policy provisions in the policy at issue” differed slightly from the policy in McGrath, both were “fundamentally the same in that both ultimately required the insureds to reside on the subject property in order for coverage to apply.” Whatever plaintiffs’ intent for the future, the evidence was undisputed that they had not lived on the premises for seven months before the fire, “choosing instead to stay in Egypt or at their children’s residences when in Michigan.” These factual circumstances were like those in McGrath and Heniser. The court also rejected their arguments that the policy was ambiguous about the residency requirement. As to the agency, the court concluded that there was no evidence plaintiffs “informed Suport of the facts that were material to the reasons that their homeowner’s insurance policy did not cover the loss in this case, i.e., that they were going to be in Egypt and away from the Stonegate property for at least six months—which was half of the policy period—while” it was leased to a tenant. Without knowing “these facts, Suport could not have advised plaintiffs on their homeowner’s insurance needs under such circumstances even if they had a duty to do so since plaintiffs’ extended absence from the Stonegate property while leasing it to a tenant is significantly different from their previous pattern—of which Suport was undisputedly aware—where they traveled to Egypt once or twice a year for shorter periods of time.”

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    e-Journal #: 73825
    Case: Heasley v. Tsaturova
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Beckering, and M.J. Kelly
    Issues:

    Whether another case was still pending; MCR 2.116(C)(6); Valeo Switches & Detection Sys., Inc. v. Emcom, Inc.; Fast Air, Inc. v. Knight; Whether the cases involved the same claim; JD Candler Roofing Co., Inc. v. Dickson; Sanctions; Frivolous claim; MCL 600.2591(3)(a); MCR 1.109(E)(5)-(6); BJ’s & Sons Constr. Co., Inc. v. Van Sickle; Kitchen v. Kitchen; The Fair Debt Collection Practices Act (FDCPA) (15 USC § 1692 et seq.); Michigan’s Regulation of Collection Practices Act (MRCPA) (MCL 445.251 et seq.)

    Summary:

    The court held that plaintiff-Heasley’s argument that another case (the Allegan case) was no longer pending completely lacked merit. Also, the trial court did not clearly err by finding his claim in this case (the Ottawa case) was frivolous under MCR 600.2951 and MCR 1.109(E). Defendant-Holland (the Hospital), through its lawyers, defendant-Law Office of Barbara Tsaturova, PLLC, sued Heasley in the Allegan case because he had not paid for goods and services he received from the Hospital. He filed counterclaims against the Hospital under the FDCPA and MRCPA. Two days after the Allegan court’s oral order denying his motion to strike, he filed a complaint against the Hospital, the Tsaturova Law Office, and Barbara Tsaturova in the Ottawa case. The trial court in that case granted defendants summary disposition under MCR 2.116(C)(6) and awarded them attorney fees and costs. Heasley contended that the Allegan case was no longer “pending” when the trial court granted summary disposition. The court held that “even after the October ruling, the Allegan case remained pending, and it was not resolved until” 3/26/19, when “the Allegan court entered a final consent judgment that dismissed with prejudice Heasley’s counterclaims against defendants, noting that the claims had been withdrawn with the consent of all the parties.” The judgment also indicated “that all pending motions were withdrawn by consent and ordered Heasley to pay the Hospital . . . .” Given the March order, it was “apparent that the Hospital’s claims in the Allegan case remained pending after the [10/29/18] hearing, as did at least some of Heasley’s counterclaims against both the Hospital and the Tsaturova Law Office.” The court also rejected his argument that both cases did not involve “the same claim.” It noted that the fact there were differences between the claims did “not conclusively establish that” they were “not the ‘same’ under MCR 2.116(C)(6).” The claims in the Ottawa case could “only fairly be described as being based on the same or substantially the same cause of action as the Allegan case.” The court found that the claims here flowed “directly and naturally from the Hospital’s attempt to collect money due and owing in the Allegan case.” Heasley also contended that the claims were not the same because a judgment in one case would not resolve the other case. But “nothing in the court rule states that the ‘ultimate’ inquiry will be whether resolution of one case will conclusively resolve the second case.” In any event, summary disposition was warranted because “the claims in the Ottawa case could have been raised in the Allegan case.” Affirmed.

    Full Text Opinion

  • Negligence & Intentional Tort (4)

    Full Text Opinion

    e-Journal #: 73813
    Case: Al-Sahli v. Grissom-Davis
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, K.F. Kelly, and Tukel
    Issues:

    Noneconomic tort damages under the No-Fault Act (MCL 500.3101 et seq.); Genuine issue of material fact as to whether plaintiff suffered an objectively manifested impairment as a result of the accident; Patrick v. Turkelson; McCormick v. Carrier; “Serious impairment of body function”; MCL 500.3135(5); Proximate causation; Preexisting condition; Fisher v. Blankenship; Wilkinson v. Lee; Washington v. Van Buren Cnty. Rd. Comm’n

    Summary:

    Holding that plaintiff “presented evidence, albeit slight in comparison to the countervailing evidence, that she suffered an objectively manifested impairment as a result of the accident,” the court concluded that the trial court erred by granting defendant summary disposition. Plaintiff was involved in an auto accident with defendant in 2017. She argued that the trial court erred by holding that she did not suffer an objectively manifested impairment. The court held that from its review of the record in the light most favorable to plaintiff, the medical report of Dr. D, who treated her for several months after the “accident, provided sufficient evidence that her disabling post-accident condition was objectively manifested and resulted from that accident.” The trial court found “that the disability certificates ‘do not present evidence of an objectively manifested impairment; instead they only outline physical restrictions.’” In doing so, it “overlooked that the certificates did bear on the issue of causation precisely because they ‘outline[d] physical restrictions’ that came about ‘for injuries sustained in the’ accident.” Although, as it noted, D “never rendered an opinion ‘regarding the impairment that was causing Plaintiff’s pain,’ based upon physically examining plaintiff and performing diagnostic tests, [D] observed a decreased range of motion in plaintiff’s back and neck, decreased muscle strength in her left leg, and hypoactive reflexes in her lower extremities; he also diagnosed plaintiff with cervical and lumbar sprains/strains and radiculopathy and related her physical disability to the accident, restricting her from work, housework, and recreational activity. [D’s] report thus provided evidence from which a juror could reasonably infer that the injuries sustained in the 2017 accident caused plaintiff’s functional impairments.” D linked his diagnosis to the “accident and his observation of plaintiff’s decreased range of motion, decreased left leg strength, and hypoactive reflexes was an objective observation.” Reversed and remanded.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73830
    Case: Campbell v. Swider
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Jansen, K.F. Kelly, and Cameron
    Issues:

    Premises liability; Sanders v. Perfecting Church; Finazzo v. Fire Equip. Co.; Whether the icy condition was open & obvious; Hoffner v. Lanctoe; Novotney v. Burger King Corp.; Slaughter v. Blarney Castle Oil Co.; Janson v. Sajewski Funeral Home, Inc.; Principle that as a matter of law a snow-covered surface by its very nature presents an open & obvious danger; Ververis v. Hartfield Lanes (On Remand); Special aspects; Lugo v. Ameritech Corp.; Royce v. Chatwell Club Apts.

    Summary:

    Holding that the snow-covered icy sidewalk on which plaintiff-Campbell slipped and fell was open and obvious, and that it did not have any special aspects, the court affirmed summary disposition for defendants-property owners. He was visiting his sister at a home she rented from defendants when he slipped and fell on the sidewalk that was connected to the front porch. The fall occurred in early January, and weather reports showed “that the temperature was below freezing in the days before” he fell. The maximum temperature that day “was 31 degrees, and the average temperature was 24 degrees.” Further, plaintiff (a life-long Michigan resident) “observed the wintry conditions when he exited the home. Specifically, Campbell testified that it was snowing outside and that the sidewalk was covered in snow.” In addition, after he fell, one of the individuals who came to help him “was able to see ice in the area” of plaintiff’s fall. Thus, the court concluded that a reasonable person in plaintiff’s “position would have gleaned from the circumstances that the snow-covered sidewalk could be slippery. “ As a result, the trial court did not err in ruling that no question of fact existed as to whether “the alleged hazard was open and obvious.” The court also found no special aspects present. It noted that the “snow-covered ice was avoidable because Campbell was not required or compelled to confront it.” He could have left the house through the back door or walked across the grass, or he could have left at a later time. Further, “the snow-covered ice did not rise to the level of danger posed by ‘an unguarded thirty foot deep pit in the middle of a parking lot.’ . . . Rather, ice is a common condition in Michigan and slipping and falling on it does not create the type of ‘uniquely high likelihood of harm or severity of harm’ contemplated in Lugo.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 73809
    Case: Hassanein v. Encompass Indem. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, Borrello, and Tukel
    Issues:

    Homeowner’s policy coverage dispute; Requirement that the insureds “reside” on the property; Heniser v. Frankenmuth Mut. Ins. Co.; McGrath v. Allstate Ins. Co.; Whether the policy was ambiguous; Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc.; “Occupy”; Negligence; Case v. Consumers Power Co.; An insurance agent’s duty; Zaremba Equip., Inc. v. Harco Nat’l Ins. Co.; Mate v. Wolverine Mut. Ins. Co.; Genesee Food Servs., Inc. v. Meadowbrook, Inc.; “Special relationship”; Harts v. Farmers Ins. Exch.; Pressey Enters., Inc. v. Barnett-France Ins. Agency; Expert testimony on a question of law; Lenawee Cnty. v. Wagley

    Summary:

    Concluding that McGrath controlled here, the court affirmed summary disposition for defendant-insurer (Encompass) in this dispute over coverage under a homeowner’s policy because plaintiffs-insureds did not “reside” on the property at the time of the fire. The court also affirmed summary disposition for defendant-insurance agency (Suport) on their negligence claim against it. Plaintiffs argued that the Stonegate property “remained their residence while they were temporarily in Egypt.” They contended that the policy did not require them to “physically live” there at the time of the fire, and that they continued to reside there because they left personal property there “and intended to return at some point in the future. Although the arrangement of the relevant policy provisions in the policy at issue” differed slightly from the policy in McGrath, both were “fundamentally the same in that both ultimately required the insureds to reside on the subject property in order for coverage to apply.” Whatever plaintiffs’ intent for the future, the evidence was undisputed that they had not lived on the premises for seven months before the fire, “choosing instead to stay in Egypt or at their children’s residences when in Michigan.” These factual circumstances were like those in McGrath and Heniser. The court also rejected their arguments that the policy was ambiguous about the residency requirement. As to the agency, the court concluded that there was no evidence plaintiffs “informed Suport of the facts that were material to the reasons that their homeowner’s insurance policy did not cover the loss in this case, i.e., that they were going to be in Egypt and away from the Stonegate property for at least six months—which was half of the policy period—while” it was leased to a tenant. Without knowing “these facts, Suport could not have advised plaintiffs on their homeowner’s insurance needs under such circumstances even if they had a duty to do so since plaintiffs’ extended absence from the Stonegate property while leasing it to a tenant is significantly different from their previous pattern—of which Suport was undisputedly aware—where they traveled to Egypt once or twice a year for shorter periods of time.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73823
    Case: Santos v. Garner Props. & Mgmt., LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Letica, Fort Hood, and Gleicher
    Issues:

    Trip & fall on a staircase; Premises liability; Buhalis v. Trinity Continuing Care Servs.; Benton v. Dart Props., Inc.; A landlord’s duty to invitees; Royce v. Chatwell Club Apts.; Stanley v. Town Square Coop.; Banks v. Exxon Mobil Corp.; Breach of duty; Lowrey v. LMPS & LMPJ, Inc.; Hearsay; MRE 801(c); Ykimoff v. Foote Mem’l Hosp.; Exception for a statement by a party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; MRE 801(d)(2)(D); Foundation; Merrow v. Bofferding; Constructive notice; Duty to ensure that the premises are in reasonable repair & fit for their intended use; MCL 554.139; Allison v. AEW Capital Mgmt., LLP; Principle that under MCL 554.139(1), a landlord owes no duty to a tenant’s social guests or other nonparties to a lease agreement; Mullen v. Zerfas; Implied contract; Mallory v. City of Detroit

    Summary:

    The court held that the trial court did not err by granting summary disposition of plaintiff’s premises liability and statutory claims in favor of defendant-property management company. Plaintiff sued defendant for injuries she sustained when she tripped and fell on a staircase in the rental home where she was living. On appeal, the court first found that the trial court correctly determined there was no genuine issue of material fact as to whether defendant had actual or constructive notice of the defect in the staircase before plaintiff’s injury occurred. It noted that plaintiff failed to establish a foundation concerning the source of a statement she attempted to rely on. “Given that plaintiff failed to present any substantively admissible evidence to counter defendant’s evidence that it lacked actual notice, there was no genuine issue of material fact on this point.” Further, there was no genuine issue of material fact as to whether “the defect was of such a character or existed for a sufficient length of time such that defendant should have had knowledge of its presence.” As such, defendant did not have constructive notice. The court also found that as a matter of law, defendant did not owe plaintiff a duty under MCL 554.139. “Plaintiff does not provide any authority for her assertion that a de facto lease agreement may arise between a landlord and an individual that has not signed a lease.” Because she “failed to present any evidence of mutual assent or an exchange of consideration . . . there was no genuine issue of material fact regarding the existence of an implied contract.” Moreover, because she “was not a party to the lease and because [she] failed to present evidence that an implied contract existed, defendant did not owe [her] a duty under MCL 554.139(1).” Affirmed.

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  • Real Property (1)

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    e-Journal #: 73827
    Case: Johnson v. Hale
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, Borrello, and Tukel
    Issues:

    Quiet title; Boundary line dispute; Acquiescence; Sackett v. Atyeo; Walters v. Snyder; Killips v. Mannisto; Intention to deed to a marked boundary; Maes v. Olmsted; Daley v. Gruber; Trespass; Adams v. Cleveland-Cliffs Iron Co.; Waiver; Grant v. AAA MI/WI, Inc. (On Remand)

    Summary:

    The court held that the trial court did not err in ruling that the disputed boundary was established by acquiescence arising from intent to deed to a marked boundary line, that defendants-Litchfield failed to show any error in the dismissal of their trespass counterclaim, and that plaintiff waived her argument on cross-appeal as to the boundary line location. After a bench trial, the trial court quieted title to the disputed boundary line area. It found that defendant-Hale had expressed the intent “to sell plaintiff the property up to the point two feet west of the well as the eastern boundary of plaintiff’s property, that Hale never obtained a survey to ensure the accuracy of the legal description in the land contract or her perceived boundary line, and that the fence installed by Hale shortly after the sale also served to mark this boundary line.” As a result, the trial court determined that the eastern boundary line of plaintiff’s property was “established by acquiescence arising from the intention to deed to a marked boundary.” While the Litchfields argued that there was “a complete failure of proof” given Hale’s testimony, they ignored the record evidence. There was trial testimony “that Hale showed plaintiff the eastern boundary line at the time of the transaction and that this line was marked by reference to the old well and by stakes located in the northeast and southeast sections of the property purchased by plaintiff. There was also testimony that Hale affirmatively represented to plaintiff that this was the eastern boundary line.” It was the trial court’s responsibility to resolve “conflicting testimony as to whether Hale had intended to convey to a marked boundary[,]” and the court concluded that its factual findings were not clearly erroneous. To the extent the Litchfields asserted that there was not a common grantor because Hale, due to a foreclosure, did not directly convey their property to them, they ignored the fact that she once owned both parcels, that both plaintiff’s and their respective chains of title were “thus traceable to Hale, and that Hale is the individual who was alleged to have intended to deed to a marked boundary line.” The Supreme Court in Maes “treated similar circumstances as sufficient to satisfy the common grantor requirement.” Affirmed.

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  • Termination of Parental Rights (1)

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    e-Journal #: 73846
    Case: In re Grant
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Markey, K.F. Kelly, and Tukel
    Issues:

    Termination under § 19b(3)(c)(i); In re White; In re Ellis; In re Williams; Reasonable reunification efforts; In re Frey; Children’s best interests; In re Olive/Metts Minors; In re Moss Minors; In re Schadler; In re LE; In re Trejo Minors; In re Terry

    Summary:

    Holding that § (c)(i) existed, that the trial court expended reasonable efforts to reunite respondent-mother with her children, and that termination was in their best interests, the court affirmed. The trial court entered the initial dispositional order nearly two years before it entered the final order terminating her parental rights. The children came into the DHHS’s “care on the basis of respondent’s admissions that financial and mental instability prevented her from providing proper care to” them. As part of her treatment plan ordered by the trial court, she “was to participate in mental health treatment and obtain housing and employment.” At the time of the termination hearing, she “admitted she had not obtained housing and was living with an unnamed friend.” This was consistent with her “pattern throughout the proceedings of living, temporarily, with friends or other individuals for short periods of time. Respondent believed she would be able to obtain housing within one or two months after an unnamed family friend completed eviction proceedings against the occupants of a house the friend would then rent to respondent. Similarly, despite claiming to be employed at various points throughout the proceedings,” she failed to provide the DHHS “or her caseworker with verification of her employment status or a legal source of income.” Finally, she “testified that she was undergoing therapy for her mental health issues and had been prescribed medication that calmed her. But respondent did not provide any verification of her participation in these services, nor had” her case worker been able to contact her therapist and obtain verification or records as to her treatment. Considering the evidence, it was reasonable for the trial court to determine that she “had not completed or benefited from services and that the conditions that led to the children being placed in care continued to exist.” It was also reasonable for it to determine “there was not a reasonable likelihood that respondent would be able to rectify these conditions in a reasonable time.” Her treatment plan required her to provide random drug screens; yet the record showed that she “failed to provide the majority of these screens and she specifically failed to provide any screens during the extended period of the termination hearing.” Also, at least four drug screens she provided tested positive for cocaine. Thus, it was reasonable for the trial court to infer her substance abuse was not under control. Coupled with the minimal evidence she provided as to “her ability to find housing, it was reasonable for the trial court to find that there was not a reasonable likelihood respondent would be able to rectify the conditions that brought the children into care within a reasonable amount of time.”

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