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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Divorce; Motion to vacate an arbitration order & award; The Domestic Relations Arbitration Act (DRAA); MCL 600.5072(1); Whether the arbitration was invalid because the parties did not sign a separate arbitration or matrimonial agreement; Miller v Miller; Choice of arbitrator; MCL 600.5073; Timeliness of the motion to vacate; MCR 3.602(J)(3); Valentine v Valentine; Claim the award was procured through fraud; Matley v Matley; MCR 3.602(J)(3)
While the court found merit in plaintiff-ex-wife’s arguments that the requirements of MCL 600.5072(1) were not met and MCR 600.5073 was violated, her motion to vacate the arbitration order and award was filed long after MCR 3.602(J)(3)’s deadline. Pursuant to Valentine, the court concluded the order must be upheld even though it could be viewed as violating Michigan law. It disagreed with her argument that the arbitration was “invalid because the parties did not sign a separate arbitration or matrimonial agreement,” noting the Supreme Court determined in Miller that there is nothing in the DRAA mandating “‘there be an agreement separate from the stipulated order’ to arbitrate.” But the court found that the arbitration order here did not seem to satisfy the “‘minimal requirements’” of MCL 600.5072(1). It did “not indicate that arbitration was voluntary, that the outcome of the arbitration was binding and appellate review is limited, or that arbitration is not recommended for domestic violence and may not be appropriate in other domestic cases.” In addition, it barely acknowledged “the rights and duties of the arbitrator, and only counsel for the parties signed the order.” Further, there was no other record evidence suggesting MCL 600.5072’s requirements were met. As to the arbitrator, there was no dispute that he “was a CPA and not an ‘attorney in good standing with the state bar of Michigan.’” As a result, while “the parties initially stipulated to his appointment as their arbitrator, he did not meet the requirements to be appointed as an arbitrator by the [trial] court under” MCL 600.5073(2). But plaintiff’s motion to vacate was clearly untimely. In Valentine, the court rejected a party’s “claim that an order for arbitration was void ab initio, and thus had to be vacated” where the party’s objections fell outside the window set by the applicable court rule. The court determined it “must do the same in this case.” Finally, while plaintiff contended “the arbitration award should be invalidated because it was procured through fraud[,]” she failed to offer evidence that fraud was committed. Given “the lack of evidence of ‘corruption, fraud, or other undue means,’ MCR 3.602(J)(3), plaintiff’s failure to timely request that the arbitration award be vacated” precluded the court from granting her appellate relief. Affirmed.
Breach of contract action regarding construction work; Credibility; Wright v Wright; Breach of contract; Bank of Am, NA v First Am Title Ins Co; Effect of the first breach; Michaels v Amway Corp; Substantial breach; McCarty v Mercury Metalcraft Co; Material breach; Omnicom of MI v Giannetti Inv Co; Waiver; Patel v Patel; Effect of an intent to repudiate; Schnepf v Thomas L McNamara Inc; Account stated; Fisher Sand & Gravel Co v Neal A Sweebe, Inc; Acceptance by inference; Corey v Jaroch; Acceptance by silence; Dunn v Bennett
Finding no errors requiring reversal, the court affirmed the trial court’s dismissal of plaintiff-subcontractor’s breach of contract and account stated claims against defendant-general contractor. Plaintiff alleged defendant refused to pay for work plaintiff completed on two projects, and that defendant’s failure to object to plaintiff’s invoices established an account stated in the amount attested to by plaintiff. Defendant counterclaimed for breach of contract, alleging plaintiff failed to fully and properly perform the work, causing it to incur expenses to complete and correct plaintiff’s work. The trial court dismissed the claims. On appeal, the court first found that the trial court did not err by “determining the testimony of defendant’s operations manager and former project manager was more credible than that of plaintiff’s witnesses, because there were no material contradictions in their testimony.” It also held that the trial court did not err by “finding plaintiff committed the first material breach of the Agreement by failing to properly install the conduit at” the first project, depriving defendant of a substantial benefit of the Agreement. Balancing the considerations, “the trial court’s determination that plaintiff materially breached the Agreement before submitting its . . . invoice was not in error.” The court further found defendant “did not commit a breach when it failed to pay plaintiff’s invoice for the [first] project because the invoice did not appropriately reflect deficiencies plaintiff was made aware of, and plaintiff had not completed the scope of work.” Because, under the Agreement, defendant “was not obligated to pay plaintiff before its work was completed,” it did not breach the contract when it did not pay the invoices. Finally, the court held that because defendant objected to the charges, “no mutual assent to an account stated was established.” Defendant never manifested assent “‘to the correctness of the statement of account between [the parties].’” The court noted that acceptance “of the account stated cannot be inferred, not only because of the objections made by defendant, but because the only payment made by defendant was before the first invoice, by which plaintiff is claiming an account stated was even produced. This payment cannot illustrate acceptance because plaintiff had not stated the account when it was made.”
Denial of a motion to file a second amended information; MCL 767.76; MCR 6.112(H); Denial of a nolle prosequi motion; MCL 767.29; Distinguishing People v Borowka (Unpub)
The court held that the trial court abused its discretion in “denying the prosecution’s motion to amend the information to add the third-degree home invasion charge” and in denying the prosecution’s nolle prosequi motion. As to the motion to amend, the court concluded there was no unfair surprise. In fact, the prosecution and defense counsel “had worked out a plea deal; the prosecutor alluded to this when he argued that an amendment would further ‘the interest of fairness, judicial economy’ and ‘not wasting the time of all of the parties and witnesses in this case who have shown up here today for purposes of at least proceeding with a bench trial if not a - - a plea in this case.’” The day before the scheduled bench trial, defendant-Plain “filed an emergency motion for a plea hearing representing that negotiations had produced a plea offer he wished to accept. And defense counsel voiced no objection to the amendment, thereby disavowing either prejudice or surprise.” Further, defendant did “not contest this issue on appeal.” As to the nolle prosequi motion, the court found that the unpublished case on which the trial court relied, Borowka, was distinguishable. The circumstances in that case were “far different than those that exist here. The prosecutor in Borowka sought to ‘unilaterally derail defendant’s trial’ after the [trial] court denied her second request for an adjournment.” Further, the defendant in that case “vigorously opposed” the motion, and “would have been prejudiced by a nolle prosequi[.]” The court found there were no “such impediments to a nolle prosequi” in the record here. The prosecution presented “an eminently reasonable explanation for a dismissal without prejudice[,]” asserting it was appropriate “‘so that the people can essentially reauthorize this case with charges that we believe will be supported by the proofs, and are appropriate under the circumstances.’” The court noted while the case was delayed, it was “not due to a request or the fault of the prosecution. The record reflects that once a decision was made to charge Plain appropriately, both sides proceeded in good faith. Although Plain’s brief on appeal claims that he would be unfairly prejudiced by remand for a trial, he waived this objection by agreeing with the prosecution’s request.” Reversed and remanded.
Sentencing after probation revocation; Effect of the lack of a comprehensively updated presentence investigation report (PSIR); People v Odom; Operating a motor vehicle while intoxicated (OWI)
The court held that defendant was not entitled to resentencing because while the trial court did not receive some information via an updated PSIR when it sentenced him after revoking his probation, it nevertheless had the information. Thus, the court affirmed his 24-month sentence and the denial of his motion for resentencing. He was convicted of OWI, third offense and initially sentenced to 36 months’ probation. But he repeatedly violated the terms of his probation, leading the trial court to revoke it and impose the prison sentence. He contended “that he should be resentenced because the trial court did not consider his PSIR at his resentencing and did not order a reasonably updated PSIR for his resentencing.” The court noted that if “a defendant is resentenced, the trial court ‘is to utilize an updated [PSIR].’” This rule likewise “applies to ‘sentencing after revocation of probation.’” But the court further noted that “the lack of a comprehensively updated PSIR does not necessarily entitle a defendant to resentencing.” It found this case similar to Odom in that “the trial court had before it all the information that was relevant to defendant’s sentencing.” He asserted on appeal “that an updated PSIR would have informed the trial court about [his] ‘abstention from alcohol while on probation,’ that he never tested positive for alcohol while on probation, that he completed a total of 150 days on a Secure Continuous Remote Alcohol Monitor, that he was attending AA and NA classes, that he was completing community service, and that he had plans of moving to Texas.” However, the record showed that all “this information was presented to the trial court through other means, namely a report drafted by defendant’s probation agent, statements made by that agent at defendant’s resentencing hearing, and statements made by both defendant and his attorney at the resentencing hearing.”
Action challenging a school-mask mandate; Dismissal for lack of progress; MCR 2.502(A)(1); Motion for reinstatement; Wickings v Artic Enters, Inc
The court held that the trial court erred both in dismissing plaintiff’s case for lack of progress and in denying reinstatement. Plaintiff filed a complaint seeking declaratory and injunctive relief challenging defendant’s authority to enter a public-health order mandating that schools under its jurisdiction require all students in Kindergarten through 12th grade to wear face masks in school. At the same time, plaintiff filed a motion for an emergency temporary restraining order to prohibit schools from enforcing the local health department mask mandate. The trial court eventually entered an order of dismissal for lack of progress. It later denied plaintiff’s motion for relief from the dismissal. On appeal, the court found the trial court erred by dismissing this case for lack of progress. First, “91 days did not elapse without plaintiff taking some action. Second, the notice of proposed dismissal required plaintiff to take action within 28 days of the notice. Plaintiff took action on day 26 by filing an amended complaint. In its decision, the trial court noted that plaintiff did not notice or serve the amended complaint at the time it was filed. But nothing in the notice of proposed dismissal required these additional steps.” Simply put, “plaintiff was required to take action by the deadline and plaintiff acted.” The court also found the trial court erred by denying reinstatement, noting it “erred by focusing on (1) the underlying merits of the case and (2) plaintiff’s failure to serve the amended complaint by the deadline posed in the notice of proposed dismissal when the trial court did not identify that requirement in previous orders.” Reversed and remanded.
Request to amend the complaint; Whether violation of a township ordinance constituted a claim of nuisance per se; Costs & attorney fees; MCL 600.2591; Abandoned issues
The court concluded that plaintiff’s issues all—preserved and unpreserved—were abandoned because she failed to adequately brief her arguments. And to the extent it was able to decipher her arguments, the court rejected them. Thus, it affirmed summary disposition for defendant. The only issues that she properly preserved were “(1) whether plaintiff had a right to amend her complaint, (2) whether defendant’s violation of the township ordinance constituted a claim of nuisance per se, and (3) whether plaintiff should have been sanctioned.” The court held that the “trial court did not abuse its discretion when it denied plaintiff’s request to amend her complaint because plaintiff failed to present her amendment to the trial court in writing in accordance with the requirements of MCR 2.118(A)(4).” Second, the court held that she “did not have a viable nuisance per se claim because even if defendant violated the township’s ordinance, the ordinance, which amounts to a noise ordinance, cannot serve as a basis for plaintiff’s nuisance per se claim.” Lastly, it determined that “the trial court did not abuse its discretion by requiring plaintiff to pay defendant’s attorney fees because plaintiff’s due-process claim against defendant—a private entity—was devoid of arguable legal merit at the outset.”
Best interests of the children; MCL 712A.19b(5); In re Olive/Metts Minors
Holding that termination was in the children’s best interests, the court affirmed termination of respondent-father’s parental rights. It rejected his argument that termination was not in the children’s best interests. First, he contended “the trial court simply indicated that the children’s best interests supported termination without properly considering the best-interest factors. This contention is not supported by the record.” Second, he asserted that “the best-interest factors favored him because he had a strong bond with his children; he had parenting ability because he parented the children since birth; and he had income, so he could provide permanency and stability.” He also argued that “the home of a stranger had a serious disadvantage over his home because a father’s love would be absent in a foster home.” And he contended that he “substantially complied with the parent-agency treatment plan.” Again, the record did not support these arguments. It appeared he “erroneously evaluated this factor from his perspective, not the children’s.” Further, the children “had no or little bond with respondent but had strong bonds with their foster parents.” Third, the record did “not support the assertion that respondent had parenting ability simply because he raised them. Throughout this case, respondent showed that he did not develop appropriate parenting skills and could not meet his children’s basic needs. Respondent participated in some services, but he failed to attend others, and did not learn from the services that he attended.” His failure to “complete or comply with his parent-agency plan, including addressing his domestic violence history, negatively impacted his parenting skills.” Fourth, he failed to “explain how his source of income (approximately $800 per month) can provide permanency and stability for his children.” Fifth, he argued that “the foster parents could not provide a father’s love because they were not biological parents.” But he provided “no citation for the argument that a foster parent is innately unable to provide a father’s love to children.” The court was not convinced the trial court made a mistake in its review of the best interest factors and its conclusion that a preponderance of the evidence showed “termination was in the children’s best interests.”
Termination under § 19b(3)(c)(i)
Holding that § (c)(i) existed, the court affirmed the trial court order terminating respondent-mother’s parental rights to the children. At the time of termination, they “were 13 years old, 12 years old, and one year old. Respondent had over a year after the initial dispositional order in this case to rectify the conditions that led to adjudication, yet she made no progress towards meaningfully addressing her issues with substance abuse.” Given her “utter lack of progress, we are not definitely and firmly convinced that the trial court erred when it found by clear and convincing evidence that respondent would be unable to rectify the conditions that led to adjudication in a reasonable time considering the children’s ages.”
Reasonable reunification efforts; In re Hicks/Brown; MCL 712A.19a(2); Children’s Protective Services (CPS); Guardian ad litem (GAL)
Holding that the DHHS “failed to make reasonable efforts at family reunification because its efforts did not reasonably accommodate” respondent-mother’s intellectual disability, the court vacated the trial court’s order terminating her parental rights, and remanded. Applying Hicks/Brown here, the court concluded “that the DHHS failed to provide specific services to accommodate respondent’s intellectual disability, and thus failed in its duty to make reasonable efforts at reunification under MCL 712A.19a(2).” From the record, particularly considering the testimony of the foster care worker and CPS investigator, it was “clear that the DHHS did not modify its procedures to reasonably accommodate respondent’s disability with respect to this most recent request for termination.” The children’s GAL “filed a brief on appeal, in which the GAL noted, ‘It is concerning that [the] DHHS did not offer respondent specialized services if she was truly impaired,’ but noted that ‘the record is devoid of information pertaining to the extent of respondent’s impairment.’” The court found this was “not a basis to conclude that the DHHS’s efforts were reasonable, however. The DHHS knew that respondent had an intellectual disability from the beginning of these termination proceedings because it said as much in its original petition. ‘Once the Department knew of the disability, its affirmative duty to make reasonable efforts at reunification meant that it could not be passive in its approach as far as the provision of accommodations is concerned.’” That the record lacked “‘information pertaining to the extent of respondent’s impairment’ is a result of the DHHS’s passive approach to accommodating respondent’s disability. Stated otherwise, it is indicative of the DHHS’s lack of reasonable efforts.” Thus, the court was “definitely and firmly convinced that the trial court made a mistake when it found that the DHHS made reasonable efforts to reunify respondent and the children because ‘efforts at reunification cannot be reasonable under the Probate Code unless the [DHHS] modifies its services as reasonably necessary to accommodate a parent’s disability.’”