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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Discrimination action under Michigan’s Persons With Disabilities Civil Rights Act; Court of Claims notice requirement; MCL 600.6431; Christie v Wayne State Univ
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 76092 in the 9/15/21 edition) and remanded the case to that court for reconsideration in light of Christie “and, if necessary, for consideration of any issues” plaintiff raised that were not addressed in that court’s initial review of the case.
Foreclosure under Michigan’s Construction Lien Act (CLA); Summary disposition under MCR 2.116(I)(2); Timeliness of a claim of lien; MCL 570.1111(1); “Improvement”; MCL 570.1104(6); Stock Bldg Supply, LLC v Parsley Homes of Mazuchet Harbor, LLC; Motion for attorney fees as a sanction for “frivolous” litigation
Holding that the trial court properly dismissed plaintiff-Quantum’s “claim asserting the right to foreclose its construction lien because Quantum failed to present evidence that it had a valid lien under the CLA[,]” the court affirmed the judgment against defendants for $24,179.35 in unpaid construction expenses. The court noted it had interpreted the proper meaning of MCL 570.1111(1) in Stock, where it had to determine whether a “plumber’s return visit to repair the leaks constituted the furnishing of labor or material for the improvement.” Here, in support of its motion for summary disposition under MCR 2.116(I)(2), defendant-Plaza de Kaza cited Quantum’s owner’s “own testimony and Quantum’s invoices to show that Quantum completed its work by” 11/6/18, and simply “tore out and replaced a portion of the traffic circle after” the sole member of Plaza de Kaza “complained that the work was defective.” The court concluded that on “the evidence then before the trial court, there was no dispute that the work Quantum performed after [11/6/18], was to correct a defect in the curbing and gutters’ original placement. Because there was no dispute about the reason for the work performed after [11/6/18], the trial court did not err when it concluded that—as a matter of law—the last date of furnishing labor or materials for the improvement was on or before” 11/6/18. Further, the court held that “because the undisputed evidence showed that Quantum failed to file its claim of lien until more than 90 days after [11/6/18], it was also undisputed that Quantum did not have a valid lien to foreclose.” Thus, the court concluded the “trial court did not err when it denied Quantum’s motion for summary disposition of its foreclosure claim under MCR 2.116(C)(10) and instead dismissed that claim under MCR 2.116(I)(2).” Also, Quantum did not show “that the trial court clearly erred when it found that Plaza de Kaza and [defendant-]Dykstra did not assert frivolous defenses or counterclaims.”
Claims of judicial misconduct; Alleged denial of a motion for nolle prosequi; Grant of a recess; Presumption of judicial impartiality; People v Willis; Other acts evidence; MCL 768.27a(1); MRE 403; People v Watkins; MRE 404(b); Relevance; Ineffective assistance of counsel for failure to object; Prejudice; Harmless error; Hearsay exception for statements made for purposes of medical diagnosis or treatment; MRE 803(4); People v Duenaz
The court rejected defendant-Martin’s claims of judicial misconduct, and while it found one witness’s other acts testimony was erroneously admitted, it held that this error was harmless. Finally, as to testimony from a behavioral health therapist (K) about statements made by the victim (KE) during therapy, the court concluded MRE 803(4) applied, although the statements were “arguably less reliable than if [they] had been made to a medical doctor.” Defendant was convicted of CSC I and II. He argued “the trial court abused its discretion in denying the prosecution’s motion for nolle prosequi and pierced the veil of judicial impartiality by allowing a recess to rehabilitate KE’s testimony.” The court noted the prosecution “explored the idea of entering a nolle prosequi, but did not follow through and actually request it.” As a result, there “was nothing to grant.” As to the recess, if “the judge’s tone and demeanor exhibited bias, it certainly could not be discerned from the record. There simply was no bias exhibited before the jury that could have impacted the outcome of” the trial. The court concluded the trial court erred in admitting other acts witness-JM’s testimony about “Martin’s sexual abuse. Her allegations were fundamentally dissimilar to the allegations made by KE.” JM further testified that Martin physically abused his son. The prosecution did not provide notice JM would offer testimony “about Martin’s physical abuse of another child. Evidence of the physical abuse of a male child bears no relevance to the charges at issue—the sexual abuse of a granddaughter. It also” was not relevant to the testimony of the rest of the other acts witnesses, which concerned “sexual abuse of young female relatives. This evidence was inadmissible and defense counsel should have objected.” But the court held that the error did not warrant a new trial. Two other acts witnesses described “abuse similar to KE’s,” and KE described the events giving rise to the charges. K “testified that KE suffered from PTSD as a result of sexual abuse.” A licensed clinical social worker “testified that KE was exhibiting behavioral problems and disclosed sexual abuse at Martin’s hands.” And the forensic interviewer “testified that KE made disclosures related to ‘sexual trauma.’” The court concluded the “strength of the prosecution’s other evidence makes it unlikely that the admission of JM’s testimony was outcome determinative.” Affirmed.
Insurance claims arising from injuries in an out-of-state trucking accident; The No-Fault Act (NFA); PIP benefits; MCL 500.3111; Business-use exclusion as to uninsured/underinsured motorist (UM/UIM) benefits
The court held that coverage was not available under Michigan’s NFA or the insurance policies at issue and the trial court erred in denying defendants-insurers’ (Amerisure and Great American) summary disposition motions. Thus, it reversed the trial court’s orders, and remanded for entry of orders dismissing the claims against them. Plaintiff-Ameen Al-Gahmi “was injured in an out-of-state trucking accident while a passenger in a truck he owned but had leased to another company” (nonparty-Transport Systems). He filed suit against the driver and “the insurance companies that provided the truck’s bobtail policy and the lessee’s commercial policy.” Amerisure argued that “Ameen was barred from receiving PIP benefits under MCL 500.3111.” Great American contended the trial court erred in “denying its motion because Ameen was barred from receiving PIP or UM/UIM benefits under its policy’s business-use exclusion.” The court noted in Docket No. 361932 that “Transport Systems’ Amerisure policy did not list the Volvo truck as a covered auto or Ameen as a named insured. Ameen contended that he was entitled to coverage anyway as the policy included numerous PIP endorsements which prevailed over any conflicting policy provisions, because Transport Systems constructively owned the Volvo, and because the policy covered leased vehicles.” Thus, he asserted “Amerisure was the top priority insurer under MCL 500.3114.” The court noted the “accident occurred in Arkansas, necessarily implicating MCL 500.3111.” It was undisputed “Ameen was not a named insured or a spouse or resident relative of a named insured on Amerisure’s policy, nor was the Volvo listed in the policy. As such, Ameen was ineligible for PIP benefits under Amerisure’s policy. Whether Transport Systems constructively owned the Volvo is irrelevant as it was not identified as a covered vehicle.” In Docket No. 361934, the court held that “coverage also was not available under the Great American bobtail policy.” It was undisputed “Ameen was using the Volvo in the business of a lessee and to transport cargo at the time of the accident. Ameen has never argued in avoidance of this exclusion.” Instead, he contended the business-use exclusion was unenforceable on the basis it was contrary to the purpose of the NFA. The court found that “it was Ameen’s responsibility, not Great American’s, to ensure that he was properly covered for all situations, including those not covered by Great American’s bobtail policy. Ameen failed to do so, and cannot now contend that Great American’s policy exclusion is against public policy or the purpose of the” NFA.
Termination under §§ 19b(3)(e), (f), & (g); Child’s best interests; In re White; Assumption of jurisdiction under MCL 712A.2(b)(5) & (6)
The court held that the trial court did not clearly err by assuming jurisdiction under MCL 712A.2(b)(5) and (6), in determining there were statutory grounds for terminating respondent-mother’s parental rights, and in finding that doing so was in the child’s (G) best interests Thus, the court affirmed the termination order. It noted that the trial court assumed jurisdiction under MCL 712A.2(b)(5) and (6) but respondent did not make any argument in her brief as to (5). In any event, it concluded the trial court did not err in finding both grounds for jurisdiction were established. As to (5), respondent “was given a court-structured plan that required her to complete two random drug screens per week, obtain and maintain stable housing and income, provide proof of substance abuse assessment and treatment, and follow the treatment recommendations.” She did not comply with any of the requirements. As to (6), she contested the trial court’s finding that she was able to provide G with support. But she was receiving G’s “social security payment for the first 10 months” G was living with G’s aunt. “Respondent never used this money to buy necessaries for” G, and she did not provide the money to the aunt. As to the grounds for termination, the court held that “the trial court did not clearly err by terminating respondent’s parental rights” under § (e), because she “failed to follow the court-structured plan, and consequently, was suspended from visiting [G], thereby disrupting her relationship with” the child. As to § (f), respondent raised the same argument she raised challenging the assumption of jurisdiction under MCL 712A.2(b)(6), and the court rejected it for the same reasons. As to § (g), the evidence was clear she did not provide G “with proper care or custody before sending her to live with” the aunt, and did not “obtain suitable housing or employment to provide proper care and custody to [G] when the guardianship began. Respondent’s failure to be involved in the court proceedings or show any attempts to comply with her court-structured plan indicated there was no reasonable expectation that she would be able to provide proper care and custody to [G] within a reasonable time, especially considering” the child’s young age and need for stability.