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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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

 

 

Case Summary


Cases appear under the following practice areas:

  • Attorneys (2)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 78096
    Case: ECP Commercial II, LLC v. FAMJ Invs. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan, Borrello, and Letica
    Issues:

    Appointment of a receiver; MCL 600.2926; Termination of a receivership; MCL 554.1032(4); Attorney fees; Settlement agreement (SA)

    Summary:

    The court concluded that defendants did not show the trial court abused its discretion by appointing a receiver under the facts and circumstances here. They also failed to show it abused its discretion as to the termination of the receivership. Finally, as to the fees that were paid to appellee-Kus Ryan (defendants’ former legal counsel) “out of the receivership estate, defendants admitted on the record in the trial court that any dispute regarding this amount was settled and that they were not contesting it.” The appeal involved the enforcement of the parties’ SA and postjudgment matters. The court first concluded “the trial court was not prohibited from appointing a receiver” simply because the SA failed to “specifically provide that plaintiff could move for the appointment of a receiver; the trial court possessed the authorization to appoint a receiver pursuant to [its] equitable powers.” As to defendants’ argument that the trial court erred by not terminating the receivership immediately after the settlement amount was paid to plaintiff-ECP on 9/25/20, they appeared to contend that “the receivership should have terminated automatically by operation of law and that the trial court had no discretion in defining” its termination. This was an incorrect understanding of the law. While they relied on MCL 554.1032(4), it “states in relevant part that the ‘court may discharge a receiver and terminate the court’s administration of the receivership property if the court finds that appointment of the receiver was improvident or that the circumstances no longer warrant continuation of the receivership.’” The trial court initially appointed the receiver to carry out the terms of the SA. As defendants admitted on appeal, after 9/25/20, “the parties continued to argue about matters pertaining the terms of selling real property and other claims against the receivership estate. The trial court denied defendants’ motion to terminate the receivership on [12/21/20], because of outstanding issues to be resolved under receivership order.” On appeal, defendants did “not explain how these outstanding issues did not warrant the continuation of the receivership. Defendants merely assert that the receivership should have been terminated because—according to defendants—there was nothing left for the receiver to do. Defendants do not develop any cogent argument based on legal authority to support their assertion.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 78095
    Case: In re Ross Irrevocable Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gadola, Jansen, and O’Brien
    Issues:

    Attorney fees; Smith v Khouri; Pirgu v United Servs Auto Ass’n; Scope of the remand order

    Summary:

    The court concluded that “the issue of ‘fees for fees’” that appellant-Breer sought to relitigate on remand to the trial court was outside the scope of its remand order, and affirmed the trial court’s order awarding her $ 91,107.70 in reasonable attorney fees and costs. It previously remanded the case for the limited purpose of having the trial court provide the specific findings required under the Smith/Pirgu test to determine reasonable attorney fees. The trial court conducted a hearing “and provided its detailed findings of fact addressing each factor on the record. Relying on the Economics of Law Practice survey from 2017 for Oakland County, the trial court determined the amount customarily charged in the locality for similar legal services for each of the attorneys at issue, and adjusted it according to certain factors present in this case to determine a ‘market rate.’ This included the complex nature of the multistate civil litigation at issue, and the experience and qualifications of each attorney. The trial court adjusted the 2017 rates to reflect 2019 rates. [It] relied on the probate court’s previous finding of a reasonable number of hours, and adjusted them according to the trustee and her attorney’s valid objections.” The court noted that it addressed all “the Smith/Pirgu factors, and made an upward adjustment for the Chicago attorneys. [It] concluded that Breer’s lawyer should not have to ‘absorb the costs’ of the trustee and her attorney’s frivolous motion.” As it related “to the issue on remand, the trial court provided the dates for which attorney fees and costs were awarded, as it was previously found by the probate court, and noted that there was no evidence that the trustee or her attorney ever withdrew the frivolous motion.” But as stated in the court’s prior “opinion, the ‘fees for fees’ Breer sought were on top of the previous amount awarded to her, and separate from the reasonable costs and fees that were the limited issue on remand.” The court found that the trial court did not abuse its discretion in making this determination.

    Full Text Opinion

  • Election Law (1)

    Full Text Opinion

    e-Journal #: 78093
    Case: Martin v. Secretary of State
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – M. J. Kelly, Borrello, and Rick
    Issues:

    Disqualification from the ballot; MCL 168.558; “Shall not”; “Candidate” as used in MCL 168.558(4); “Candidate” as defined in the Michigan Campaign Finance Act (MCFA) (MCL 169.203(1)); First Amendment rights; Affidavit of identity (AOI)

    Summary:

    The court concluded that the Court of Claims did not err in granting defendants summary disposition. Because they were prohibited from certifying plaintiff’s name to the Board of Election Commissioners (Board), and because he did not show that MCL 168.558(4) violated his First Amendment rights, his claims for mandamus, declaratory, and injunctive relief failed. He sought to be elected to the office of district court judge. There was no dispute his “AOI contained a false statement” because he owed a late filing fee. He claimed that “MCL 168.558 must be read in conjunction with the definitions in the MCFA. According to him, under the MCFA, when he filed his notice of withdrawal at 10:20 a.m. on [4/15/22], he was no longer a candidate, and the [3/9/22] AOI could not be tied to his second candidacy, which began at 10:29 a.m. on [4/15/22], when he filed a new nominating petition and a new AOI.” The court held that “the term ‘candidate’ in MCL 168.558(4) should be given its plain and ordinary meaning, which is one who aspires or seeks election to an office.” It agreed with the Court of Claims that although plaintiff filed a notice of withdrawal, he “always remained a candidate for a position of” district court judge. Before he “filed his notice of withdrawal, he obtained signatures for the nominating petition that he filed just nine minutes after he submitted his notice of withdrawal. At all times after he executed the [3/9/22] AOI that contained the false statement, plaintiff never stopped aspiring or seeking election to the office of” district court judge. Because he “never ceased being a ‘candidate’ for purposes of MCL 168.558(4), and because he submitted an AOI that contained a false statement, defendants were prohibited from certifying his name to” the Board. Plaintiff also asserted a violation of his First Amendment rights, arguing that “because MCL 168.558(4) required that he be disqualified from the ballot, the burden imposed by the statute is severe and the statute must be subject to strict scrutiny.” Given that he did “not address the Court of Claims’s holding that his constitutional rights were not violated because those rights were not even implicated,” the court did not need to consider his claim that application of MCL 168.558(4) violated his constitutional rights. Regardless, it found no merit to his claim. The statute does not impose a severe burden and the “state’s interest in securing compliance with the MCFA is sufficient to justify the regulation.” Thus, the Court of Claims did not err in concluding that, “even if plaintiff’s constitutional rights were implicated,” they were not violated.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 78097
    Case: Terpstra v. Terpstra
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Rick, Boonstra, and O'Brien
    Issues:

    Divorce; Child custody; Parenting time; Established custodial environment (ECE); MCL 722.27(1)(c); Mogle v Scriver; Standard of proof as to the best interest factors; MCL 722.23; Eldred v Ziny; Friend of the Court (FOC)

    Summary:

    The court held that the trial court did not err by failing to determine whether the children had an ECE with plaintiff-father, and thus, did not apply the wrong standard of proof and did not err when it found the ordered parenting time schedule was in the best interests of the children. During the parties’ divorce, the FOC recommended a parenting time schedule that required the kids, who were homeschooled, to split time between the parties’ homes throughout the week. The referee later recommended that the parties share joint physical custody of the two children on a week-on, week-off schedule. The trial court eventually ordered that defendant-mother would continue to homeschool the children full-time and that plaintiff would have parenting time every Wednesday from noon until 8:00 pm, and on alternate weekends. On appeal, the court concluded that “since plaintiff, not defendant, sought a parenting time schedule that would alter the ECE, it was plaintiff, not defendant, who bore the burden of proving by clear and convincing evidence that a change of that environment was warranted.” As the evidence showed, “plaintiff could not and did not sustain his burden.” It rejected his claim that the trial court erred by finding the ordered parenting time was in the children’s best interests as “the trial court put too much weight into the fact that defendant had been homeschooling the children and had been” their primary caretaker during the marriage. “Given the fact that defendant has been successfully homeschooling the children and the primary caretaker of the children, it was not an abuse of discretion for the trial court to award custody and parenting time as it did, with defendant receiving a majority of the parenting time during the school week, and ordering that the children continue being homeschooled by defendant.” In addition, the trial court’s order “also provided plaintiff the majority of weekend parenting time to preserve the bond between plaintiff and the children.” Its factual findings “were not against the great weight of the evidence. Plaintiff has not demonstrated that the trial court erred in the weight that it gave to certain factors and has not demonstrated that the trial court abused its discretion in its custody and parenting time determination.” Affirmed.

    Full Text Opinion

  • Immigration (1)

    Full Text Opinion

    e-Journal #: 78102
    Case: Rodriguez de Palucho v. Garland
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Murphy and Siler; Dissent – Clay
    Issues:

    Asylum & withholding of removal; “State action”; Whether petitioners were able to show they feared violence in their country from the government or from parties the government is unable or unwilling to control

    Summary:

    The court held that the BIA did not commit a legal error in interpreting and applying the asylum and withholding-of-removal statutes where petitioners were unable to establish the “state-action” element—that the El Salvadoran government was “unable or unwilling” to control gang violence. Petitioners and their children unsuccessfully sought asylum and withholding of removal due to the gang activity in El Salvador. The court noted that the state-action element that applies in an asylum analysis has also consistently been applied to the withholding-of-removal statute. It then considered what indicates that a government is “‘unable or unwilling’ to control a private actor[.]” Some cases have determined that “immigrants must show they cannot ‘reasonably expect the assistance of the government’ in deterring the criminal actor.” The totality of the circumstances must “include both specific evidence about the government’s response to the crimes inflicted on an immigrant and general evidence about a country’s ability to deter those crimes.” The court concluded the BIA followed the law here, and that its decision was owed deference. Petitioners admitted they failed to report the crimes to the police, asserting they feared retaliation. But the court, like the BIA, has previously “explained that an immigrant’s failure to report crimes to the police will make it more difficult to show that the government was unable or unwilling to control the criminals.” The court found no procedural error where the BIA considered the country-conditions evidence, and held that it could not vacate an agency’s factual finding “unless it is so deficient that we cannot even evaluate whether a ‘reasonable adjudicator would be compelled’ to reach the opposite finding.” As to substantive error, the court noted that the conditions in El Salvador “paint a stark picture of gang violence.” Along with petitioners’ story, the evidence “may well have permitted the Board to conclude that the government was unable to protect them. But nothing in the record compelled that finding—the standard that” petitioners had to meet to obtain judicial relief. The court denied the petition for review.

    Full Text Opinion

  • Litigation (2)

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 78096
    Case: ECP Commercial II, LLC v. FAMJ Invs. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan, Borrello, and Letica
    Issues:

    Appointment of a receiver; MCL 600.2926; Termination of a receivership; MCL 554.1032(4); Attorney fees; Settlement agreement (SA)

    Summary:

    The court concluded that defendants did not show the trial court abused its discretion by appointing a receiver under the facts and circumstances here. They also failed to show it abused its discretion as to the termination of the receivership. Finally, as to the fees that were paid to appellee-Kus Ryan (defendants’ former legal counsel) “out of the receivership estate, defendants admitted on the record in the trial court that any dispute regarding this amount was settled and that they were not contesting it.” The appeal involved the enforcement of the parties’ SA and postjudgment matters. The court first concluded “the trial court was not prohibited from appointing a receiver” simply because the SA failed to “specifically provide that plaintiff could move for the appointment of a receiver; the trial court possessed the authorization to appoint a receiver pursuant to [its] equitable powers.” As to defendants’ argument that the trial court erred by not terminating the receivership immediately after the settlement amount was paid to plaintiff-ECP on 9/25/20, they appeared to contend that “the receivership should have terminated automatically by operation of law and that the trial court had no discretion in defining” its termination. This was an incorrect understanding of the law. While they relied on MCL 554.1032(4), it “states in relevant part that the ‘court may discharge a receiver and terminate the court’s administration of the receivership property if the court finds that appointment of the receiver was improvident or that the circumstances no longer warrant continuation of the receivership.’” The trial court initially appointed the receiver to carry out the terms of the SA. As defendants admitted on appeal, after 9/25/20, “the parties continued to argue about matters pertaining the terms of selling real property and other claims against the receivership estate. The trial court denied defendants’ motion to terminate the receivership on [12/21/20], because of outstanding issues to be resolved under receivership order.” On appeal, defendants did “not explain how these outstanding issues did not warrant the continuation of the receivership. Defendants merely assert that the receivership should have been terminated because—according to defendants—there was nothing left for the receiver to do. Defendants do not develop any cogent argument based on legal authority to support their assertion.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 78095
    Case: In re Ross Irrevocable Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gadola, Jansen, and O’Brien
    Issues:

    Attorney fees; Smith v Khouri; Pirgu v United Servs Auto Ass’n; Scope of the remand order

    Summary:

    The court concluded that “the issue of ‘fees for fees’” that appellant-Breer sought to relitigate on remand to the trial court was outside the scope of its remand order, and affirmed the trial court’s order awarding her $ 91,107.70 in reasonable attorney fees and costs. It previously remanded the case for the limited purpose of having the trial court provide the specific findings required under the Smith/Pirgu test to determine reasonable attorney fees. The trial court conducted a hearing “and provided its detailed findings of fact addressing each factor on the record. Relying on the Economics of Law Practice survey from 2017 for Oakland County, the trial court determined the amount customarily charged in the locality for similar legal services for each of the attorneys at issue, and adjusted it according to certain factors present in this case to determine a ‘market rate.’ This included the complex nature of the multistate civil litigation at issue, and the experience and qualifications of each attorney. The trial court adjusted the 2017 rates to reflect 2019 rates. [It] relied on the probate court’s previous finding of a reasonable number of hours, and adjusted them according to the trustee and her attorney’s valid objections.” The court noted that it addressed all “the Smith/Pirgu factors, and made an upward adjustment for the Chicago attorneys. [It] concluded that Breer’s lawyer should not have to ‘absorb the costs’ of the trustee and her attorney’s frivolous motion.” As it related “to the issue on remand, the trial court provided the dates for which attorney fees and costs were awarded, as it was previously found by the probate court, and noted that there was no evidence that the trustee or her attorney ever withdrew the frivolous motion.” But as stated in the court’s prior “opinion, the ‘fees for fees’ Breer sought were on top of the previous amount awarded to her, and separate from the reasonable costs and fees that were the limited issue on remand.” The court found that the trial court did not abuse its discretion in making this determination.

    Full Text Opinion

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