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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Breach of contract claim related to termination of plaintiff’s employment; Whether certain contract provisions were conditions precedent; Whether the termination should have been characterized as for-cause; Causation; Judicial notice; MRE 201
The court held that “the trial court did not err by characterizing the mediation phrase and the notice phrase in the employment contract as promises or covenants instead of conditions.” Also, the trial court did not err in declining to characterize plaintiff's “termination as a for-cause termination under § 9(a)(ii) of the” contract. Finally, the “trial court did not err by asking the jury to determine if plaintiff would have remained employed had mediation been utilized.” The case arose from defendant’s termination of plaintiff’s employment. Plaintiff argued “the trial court erred by failing to interpret the provisions in the contract to mediate and to supply 120 days of notice as conditions precedent, as opposed to a promise. Without meeting these conditions first, plaintiff argues, defendant did not have the right to terminate” him. The court noted the “mediation clause states that ‘[b]oth parties agree to act in good faith to preserve and maintain the relationship including the use of mediation and alternative dispute resolution approaches as needed.’ The phrase ‘agree to act’ makes it clear that this is a promise explaining how the parties are expected to act and not a mere condition. The parties promised to act in good faith to preserve the employment relationship, including the use of mediation and ADR as needed. In other words, this promise created a right or duty, . . . and it is this promise that the trial court determined defendant breached. The trial court did not err by characterizing the provision as a promise or covenant instead of a condition.” Further, the provision as to “the 120-day notice also is a promise. The parties agreed that in the event either one wanted to terminate the employment, the terminating party would provide 120 days’ notice. This is a promise, not a condition. And even if it was arguable that it was a condition instead of a promise, the language does not clearly express that it is a condition, and courts will not read such terms to be conditions absent clear language.” In addition, plaintiff waived this issue. He also argued “the trial court erred when it declined to characterize his termination as a for-cause termination under § 9(a)(ii) of the” contract. He primarily relied “on § 9(b)’s pronouncement that ‘[t]he termination of employment by the Practice for acts or activities of Physician specified in clauses (ii) through (x) above” was to be considered for all purposes “a termination ‘for cause.’” But that reliance was “misplaced because all that provision conveys is that any termination that took place under § 9(a)(ii)-(x) is deemed to be a termination ‘for cause.’ Contrary to plaintiff’s assertion, it does not compel defendant to utilize those provisions.” Affirmed.
Sentencing; Proportionality; MCL 769.34(10); People v Posey; Other acts evidence; MCL 768.27a(1); Waiver; Challenge to the constitutionality of MCL 768.27a; People v Watkins
The court held that defendant’s 75-year minimum sentences for his CSC I convictions were not disproportionate. It also concluded he waived his challenge to the admission of other acts evidence, and his challenge to the constitutionality of MCL 768.27a failed in light of the Supreme Court’s decision in Watkins. Thus, the court affirmed his convictions and his sentences. The trial court sentenced him within his minimum guidelines range of 270 to 900 months. He was correct that, under Posey, the court was “no longer required, under MCL 769.34(10), to affirm his in-guidelines sentence, and that his sentence must be reviewed for proportionality.” But it rejected his claim that his sentences were disproportionate and unreasonable. The victim in this case was 14 years old. The trial court at sentencing “reflected on the fact defendant served 15 years in prison in 1997 for sexual assault against a special-needs 13-year-old girl. [It] emphasized that one of the goals of defendant’s sentence was to ‘make sure that [defendant] will never be in a position where he can offend a child again because this is not the first time.’” The court concluded the “trial court balanced the need to protect children against the unlikely potential rehabilitation of defendant.” As a result, it held that “the trial court did not abuse its discretion when it weighed defendant’s rehabilitative potential against the need to protect children from defendant’s likelihood to reoffend.” As to his arguments regarding the other acts evidence admitted at trial, he waived his challenge to its admission “by defense counsel expressly indicating that he had no objection.” And his constitutional challenge failed pursuant to Watkins, in which the Supreme Court “clearly and unambiguously rejected defendant’s constitutional argument.”
Jury compromise; Whether the first-degree & second-degree murder charges were properly submitted to the jury; Premeditation or malice; Sentencing; OVs 1 & 2; Proportionality of sentence
Concluding that defendant failed to show the trial court committed any errors warranting relief, the court affirmed her conviction and sentence. She was convicted of second-degree murder and sentenced as a second-offense habitual offender to serve 25 to 50 years. She argued “that the first-degree and second-degree murder charges were improperly submitted to the jury, and that the verdict was likely the product of jury compromise.” Specifically, she contended “that these charges were improperly submitted to the jury because the prosecutor presented insufficient evidence to demonstrate that defendant acted with premeditation or malice.” On this record, she “failed to demonstrate that the first-degree murder charge was improperly submitted to the jury or that insufficient evidence supported the charge.” The court held that even “though the jury presumably did not find that defendant acted with premeditation or deliberation, when viewed in a light most favorable to the prosecution, there was sufficient evidence for the trial court to submit the charge of first-degree premeditated murder to the jury.” The court concluded “there was sufficient evidence to demonstrate that defendant deliberately, aggressively, and repeatedly drove forward and over the victim, causing his eventual death. As such, the charge of first-degree murder was properly submitted to the jury.” The court was “similarly unpersuaded by defendant’s argument that the charge of second-degree murder was improperly submitted to the jury.” The evidence presented supported a finding that she acted “in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” Also, the “vehicle was used as a weapon, and as such, the trial court did not err by assessing 10 points for OV 1 and one point for OV 2.” Lastly, she failed to show that her sentence was disproportionate.
Divorce; Division of marital property; Cunningham v Cunningham; Demman v Demman; Equitable distribution; Cassidy v Cassidy; Exclusion of witnesses; MCR 2.401(I)(1) & (2); Failure to timely file a witness list; Duray Dev, LLC v Perrin
The court held that the trial court did not err by including defendant-ex-wife’s father’s trust in the marital estate and considering it in the division of the estate, and did not abuse its discretion by barring her from calling witnesses at trial. The parties divorced after 44 years. As to the division of marital property, the trial court awarded plaintiff-ex-husband his pension, the parties were each awarded a one-half interest in the proceeds from the sale of defendant’s father’s Florida condominium and an uncashed check for the sale of his Michigan home, while defendant was awarded 100% of the remaining assets of her father’s trust. Plaintiff was awarded the marital home, the farm and truck he inherited from his father, his bank account, a pontoon boat, and his defunct business. The parties were also each awarded a one-half interest in several different bank accounts. Plaintiff’s total award was $998,061.25. Defendant’s total award was $4,301,885.25. On appeal, the court rejected defendant’s argument that the trial court erred by including the trust in the marital estate and considering it in the division of the estate because the trust was her separate property and not part of the marital estate. “Because the parties discussed the trust as being marital property many times throughout their marriage and intended to use the trust for their retirement,” the trial court did not err by including “defendant’s inheritance in the marital estate.” In addition, because the trial court “properly assessed plaintiff’s needs and appropriately considered defendant’s inheritance” in the distribution of property, it did not err by finding “defendant’s inheritance was marital property subject to distribution.” Further, because the trial court “properly assessed all relevant factors concerning the inclusion of defendant’s inheritance” as marital property, the trial court did not err by finding defendant’s “inheritance from her father’s trust was marital property to be considered in distributing the marital estate.” The court also rejected defendant’s claim that the trial court abused its discretion when it barred her from calling any witnesses to testify at trial other than herself. “Considering the circumstances of the case and the fact plaintiff was equally barred from presenting witnesses at trial, we conclude the trial court did not abuse its discretion by prohibiting defendant from presenting witnesses at trial beyond her own testimony.” Affirmed.
Action for uninsured & underinsured motorist (UM/UIM) benefits; Policy provision precluding coverage due to settlement without the insurer’s consent; Whether the policy had a subrogation clause
The court held that because plaintiff-Beard settled his prior case with the driver and owner of the other vehicle involved in the accident without defendant-Progressive’s consent, Progressive was not required to provide him UM/UIM coverage under the terms of his insurance policy. Further, it found that the policy contained a subrogation clause, and even if it had not, the policy’s plain language barred his claim for UM/UIM benefits. Thus, the court affirmed the trial court’s order granting Progressive summary disposition of Beard’s claim for UM/UIM benefits. He contended he did not have to obtain Progressive’s permission to settle the other case “because the relevant consent provision only applied to uninsured motorist benefits, not underinsured motorist benefits.” But the court, in addition to agreeing with Progressive that the policy’s UM/UIM benefits provision included “the term ‘underinsured motor vehicle,’” concluded Beard’s arguments failed “for a more basic reason: under the policy, settlement without consent may preclude coverage for uninsured, underinsured, or other benefits. Two other provisions in the policy govern settlements without consent, and neither references ‘uninsured’ or ‘underinsured’ vehicles.” The policy unambiguously provided “that UM/UIM coverage ‘will not apply . . . to bodily injury sustained by any person if that person or the legal representative of that person settles without our written consent.’” There was no dispute that occurred here. The court further found Beard’s reliance “on language from the ‘Insuring Agreement’ portion of the UM/UIM coverage section” misplaced, determining the language related “to a lawsuit brought without consent, not a settlement reached without consent.” The court also rejected his argument there was no subrogation clause in the policy and absent “a right to subrogation, requiring an insurer’s consent to settle has no purpose and is unreasonable.” It first found that the policy did contain a subrogation clause, although it was not labeled as such. Second, it concluded that because the policy unambiguously barred his claim for UM/UIM benefits, “the reasonableness or purpose of the requirement for a policyholder to seek Progressive’s consent is irrelevant.”
Termination of parental rights; Best interests of the child; MCL 712A.19b(5); In re Olive/Metts Minors; Consideration of the statutory best-interest factors; MCL 722.23; In re McCarthy
Holding that the trial court and the referee erred by finding termination of respondent-father’s parental rights was not in the child’s best interests, the court vacated and remanded. The trial court initially found it was not in the child’s best interests to terminate respondent’s parental rights. In a prior appeal, the court reversed and remanded, instructing the trial court to enter an order terminating his parental rights. Thereafter, the Child Welfare Appellate Clinic at the University of Michigan Law School filed a motion for reconsideration because respondent did not have appellate counsel during the appeal. The court granted the motion, vacated its earlier opinion, and ordered the matter remanded to the trial court for the appointment appellate counsel. In the present appeal, the court agreed with the DHHS that the trial court erred by finding termination of respondent’s parental rights was not in the child’s best interests. “[O]ur review of the record shows that the referee did not weigh the evidence available on the whole record in determining the child’s best interests and failed to consider that the child’s interest in a normal family home was superior to any interest respondent had. Instead, the referee seemed to base her decision on the child engaging in a couple of telephone calls a month with respondent.” The referee also “made no mention of other factors and did not reference other testimony or documents in the record. [She] did not consider respondent’s parenting ability, including [his] failure to complete parenting classes and his absences from her life, including his disappearances and incarcerations.” In addition, she failed to “consider the advantages of the foster home over what respondent could provide.” Further, the referee “took no notice of the child’s history of abuse while in her mother’s care.” And for the previous two years, “the child had been in a foster home where she felt loved, safe, and secure.” On this record, “we disagree that there was ‘no testimony whatsoever’ that maintaining a relationship with respondent would be detrimental to the child, but would be ‘a benefit to her.’”