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Alternative Dispute Resolution (1) Full Text Opinion e-Journal #: 78116 Case: Wikol v. Select Commercial Assets, LLC Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Swartzle, Cameron, and Patel Issues: Judicial review of an arbitrator’s decision; Motion to vacate an arbitration award; MCL 691.1703; Whether an arbitrator exceeded his or her power; Saveski v Tiseo Architects, Inc; Res judicata; Collateral estoppel; Principle that a dismissal without prejudice is not an adjudication on the merits; Yeo v State Farm Fire & Cas Ins Co Summary: The court held that the trial court did not err by denying plaintiff’s motion to vacate or modify an arbitrator’s decision to dismiss his arbitration claims against defendants based on collateral estoppel and res judicata. Plaintiff initiated arbitration proceedings claiming they engaged in shareholder oppression, wrongful withholding of distributions, and various other acts of misconduct contrary to his interests. Defendants moved to dismiss based on res judicata and collateral estoppel because his claims had already been decided in a related arbitration, to which he was a party. The arbitrator granted defendants’ motion but permitted plaintiff to file an amended arbitration demand and statement of claim to assert facts or claims that were not part of the related arbitration. The arbitrator then granted the motion to dismiss the amended demand, in part, because some of plaintiff’s claims were “identical claims to those filed and ruled upon in the” related arbitration. Plaintiff then sued in the trial court and unsuccessfully moved to vacate or modify the arbitration award. The court rejected his argument that the trial court erred by denying his motion to vacate or modify the arbitration award. Although plaintiff asserted he was entitled to damages similar to those awarded to another individual in the related arbitration, he offered no evidence showing the arbitrator would have made such an award. Moreover, even if the court were to compare the two cases, it was unlikely plaintiff would receive an award similar to the related arbitration because the purpose of that “award was to break the voting deadlock that existed between” defendant-company’s majority and minority members. After the interest at issue in the related arbitration was bought out, the deadlock no longer existed. As such, reversal was not necessary because the court could not conclude that, but for an “error, a different award would have been made.” It also rejected plaintiff’s claim that the arbitrator wrongly dismissed his remaining arbitration allegations, noting there was “nothing on the face of the award or clear evidence demonstrating that the arbitrator made an error of law that warrants reversal.” Finally, the court rejected his contention the trial court erred by refusing to vacate the arbitration award because the arbitrator did not consider material evidence in rendering its decision, noting it was “not persuaded that the arbitrator erred by concluding that res judicata applied to plaintiff’s like claim in the instant arbitration, and thus did not err by refusing to consider material evidence in contravention of MCL 691.1703(c).” Affirmed. Full Text Opinion

Family Law (1) Full Text Opinion e-Journal #: 78150 Case: Palik v. Palik Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Murray, O’Brien, and Redford Issues: Divorce; Custody; Established custodial environment (ECE); MCL 722.27(1)(c); Distinguishing Bofysil v Bofysil; Focusing on a plaintiff’s “questionable conduct”; Butters v Butters; The children’s best interests; Adequacy of the trial court’s findings on the MCL 722.23 factors; MacIntyre v MacIntyre (On Remand); Child support; Imputing income; Stallworth v Stallworth; 2021 Michigan Child Support Formula Manual 2.01(G)(2); Request for remand to a different judge; Effect of rulings against a litigant Summary: While the court held that the trial court did not err in finding the parties’ children had an ECE only with plaintiff-mother, it concluded the trial court did not make adequate findings on the statutory best-interest factors. It also held that the trial court did not abuse its discretion in imputing income to defendant-father for purposes of determining child support, and it rejected his request for remand to a different trial judge. Thus, the court affirmed the trial court’s finding as to the ECE and its decision to impute income to defendant. But it vacated the trial court’s findings on the best-interest factors and its decision to make plaintiff the children’s primary custodian, and remanded for further fact-finding. “On remand, the trial court shall make explicit findings under each factor, and it shall explicitly state if any factor does not apply.” As to the ECE, while defendant asserted this case was similar to Bofysil, the court found it was dissimilar as “the trial court here credited plaintiff’s testimony that defendant ‘did not really spend much time’ with the children while he was home—the court did not hold defendant’s working outside the home against him.” As to his argument about plaintiff’s “‘erratic behavior,’” the court noted it recently reiterated in Butters “that focusing on a plaintiff’s questionable conduct is” relevant to the children’s best interests, not the ECE, where the focus is “‘on the children’s perceptions of their relationships with the parents.’” But the trial court’s failure to provide “any rationale for its finding that factors a, b, c, e, f, g, and h ‘favor neither or both parents’” meant that the record was insufficient for the court to review its findings. As to the decision to impute income to defendant, the trial court “acknowledged that the decision to seek different employment may have been reasonable, but it did not believe that the valid reasons for seeking new employment justified a 50% pay cut.” The court found that neither “this conclusion nor the trial court’s ultimate decision to impute defendant’s previous income to defendant were outside the range of reasonable and principled outcomes.” As to his request for remand to a different judge, the court noted “the law requires—and has always required—more than erroneous decisions for a judge to be removed from a case.” Full Text Opinion

Insurance (1) Full Text Opinion e-Journal #: 78127 Case: Garden City Rehab., LLC v. Integeon Nat'l Ins. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cavanagh, Garrett, and Yates Issues: No-fault benefits; Whether a genuine issue of material fact existed as to whether the injuries arose from the accident at issue; Distinguishing Cruz v State Farm Mut Auto Ins Co; Whether a medical provider “stands in the shoes” of an insured assignor Summary: Holding that plaintiff failed to create a genuine issue of material fact as to whether plaintiff's assignor's (Sams) “​injuries arose from the May 6 accident and therefore, that plaintiff’s treatment of those injuries lacked the required causal connection to establish defendant’s liability,” the court affirmed. The case involved plaintiff’s claims for no-fault benefits stemming from physical-therapy services it provided to Sams after he was allegedly injured in a motor-vehicle accident. “Plaintiff sued defendant to recover the subject benefits as Sams’s assignee. Defendant moved for summary disposition, representing that Sams was involved in a suspiciously similar accident less than a month earlier.” The court concluded that the implication that Sams sustained injuries in the alleged 5/6/19, accident was “negated by the MRI imaging reports produced by defendant. The MRIs taken after the accident reflect no evidence of injury to Sams’s right knee or hip, and only a small central disc protrusion in his lumbar spine. The same disc protrusion was also visualized in an MRI of the same area from [4/17/19]—approximately two weeks before the” May 6 accident. An additional MRI from 4/17/19, “also identified a hernia in Sams’s cervical spine. These records sufficiently rebut the implication that the injuries for which plaintiff provided treatment were caused by the” May 6 accident. The court further noted that plaintiff’s claim that “a provider does not ‘stand in the shoes’ of the injured party following amendment of the [No-Fault Act] does not support its conclusion that summary disposition was erroneously granted.” Finally, plaintiff’s reliance on Cruz was also misplaced. Full Text Opinion

Litigation (1) Full Text Opinion This summary also appears under Negligence & Intentional Tort e-Journal #: 78120 Case: Cavill v. State of MI Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – O’Brien and Redford; Concurring in part, Dissenting in part – Murray Issues: Negligence action arising from an auto accident involving a state trooper; The requirements of the Court of Claims Act; Verification of the notice of intent; MCL 600.6431; Fairley v Department of Corr; Whether plaintiff’s notarized signature was sufficient; Progress MI v Attorney Gen; MCR 1.109(D)(3); Gladson v Michigan Dep’t of Health & Human Serv (Ct Cl); MCL 600.6422(1); MCL 55.285(1)(b), (3), & (5); MCL 55.267(e) & 55.265(a) Summary: The court held that plaintiff’s notarized signature on her notice of intent to file a claim against defendant-state “complied with MCL 600.6431(2)(d)’s verification requirement because plaintiff signed and verified her notice of intent ‘before an officer authorized to administer oaths.’” It rejected the state’s assertion that the statute requires claimants to use the declaration form set forth in MCR 1.109(D)(3)(b). Thus, it affirmed the Court of Claims’ ruling that plaintiff met MCL 600.6431’s notice of intent verification requirement and its denial in part of defendants’ summary disposition motion in this case arising from an auto accident involving a state trooper. The main issue on appeal was “whether MCL 600.6431’s notice requirement mandates that the verification be made in a specific form, and if so, what form . . . .” Defendant contended the Supreme Court defined the required form in footnote 10 of its decision in Progress MI. But the court determined that the footnote was obiter dictum. It further concluded the “plain and unambiguous language of MCL 600.6431(2)(d) restricts the choice a claimant has respecting verification of a claim or notice of intention to file a claim because it specifies that a claim or notice must contain a ‘signature and verification by the claimant before an officer authorized to administer oaths.’ Therefore, the alternative means of verification by declaration in the form specified under MCR 1.109(D)(3)(b) is not an option available to a claimant who files a claim or notice of intention to file a claim against the state. Further, nothing in the court rule or MCL 600.6431 suggests that a claimant must take a ‘belt and suspenders’ approach by using the declaration form described in MCR 1.109(D)(3)(b) and signing it ‘before an officer authorized to administer oaths’ as described under MCR 1.109(D)(3)(a). Imposition of such a combination of requirements goes well beyond the statutory verification requirement and the rule’s verification requirement.” Plaintiff was correct that including “a declaration in the form specified under MCR 1.109(D)(3)(b)” would not satisfy the statutory requirement. The court further held that she “met the statutory verification requirement by using a jurat form and signing her notice of intent before a notary public who signified that plaintiff’s signature was subscribed and sworn before the notary.” Full Text Opinion

Negligence & Intentional Tort (2) Full Text Opinion e-Journal #: 78133 Case: Bittner v. Coffee Capers, LLC Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Ronayne Krause, Jansen, and Swartzle Issues: Premises liability; Slip & fall on black ice; Open & obvious danger; Special aspects Summary: The court concluded that when viewed in the light most favorable to plaintiff-Bittner, the evidence did not establish sufficient “‘indicia of a potentially hazardous condition,’ including the ‘specific weather conditions present at the time of [Bittner’s] fall’” to determine that the black ice he slipped on was an open and obvious danger. Thus, the court reversed the trial court’s grant of summary disposition to defendant-Coffee Capers after it held that the black ice was an open and obvious danger and that no special aspects were present. The court determined that viewing “the evidence in the light most favorable to plaintiff, there was evidence that when he fell the weather had been above freezing for at least eight hours, there was misting rain that made the ground wet, and neither ice nor snow was visible outside the coffee shop. Although it may have been below freezing the day before, the lack of visible ice and snow carry more weight and the record does not address when the last snowfall was. A rainy day with sustained temperatures near 40 without any visible ice or snow, even in January, does not put a reasonable person on notice that there may be black ice on which he could slip. And, while temperatures near 40 might suggest that black ice was not present—calling into question the accuracy of Bittner’s recall—ice in Michigan can take hours to melt, and it is not so fantastical a scenario to make Bittner’s recollection implausible on summary disposition.” Full Text Opinion Full Text Opinion This summary also appears under Litigation e-Journal #: 78120 Case: Cavill v. State of MI Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – O’Brien and Redford; Concurring in part, Dissenting in part – Murray Issues: Negligence action arising from an auto accident involving a state trooper; The requirements of the Court of Claims Act; Verification of the notice of intent; MCL 600.6431; Fairley v Department of Corr; Whether plaintiff’s notarized signature was sufficient; Progress MI v Attorney Gen; MCR 1.109(D)(3); Gladson v Michigan Dep’t of Health & Human Serv (Ct Cl); MCL 600.6422(1); MCL 55.285(1)(b), (3), & (5); MCL 55.267(e) & 55.265(a) Summary: The court held that plaintiff’s notarized signature on her notice of intent to file a claim against defendant-state “complied with MCL 600.6431(2)(d)’s verification requirement because plaintiff signed and verified her notice of intent ‘before an officer authorized to administer oaths.’” It rejected the state’s assertion that the statute requires claimants to use the declaration form set forth in MCR 1.109(D)(3)(b). Thus, it affirmed the Court of Claims’ ruling that plaintiff met MCL 600.6431’s notice of intent verification requirement and its denial in part of defendants’ summary disposition motion in this case arising from an auto accident involving a state trooper. The main issue on appeal was “whether MCL 600.6431’s notice requirement mandates that the verification be made in a specific form, and if so, what form . . . .” Defendant contended the Supreme Court defined the required form in footnote 10 of its decision in Progress MI. But the court determined that the footnote was obiter dictum. It further concluded the “plain and unambiguous language of MCL 600.6431(2)(d) restricts the choice a claimant has respecting verification of a claim or notice of intention to file a claim because it specifies that a claim or notice must contain a ‘signature and verification by the claimant before an officer authorized to administer oaths.’ Therefore, the alternative means of verification by declaration in the form specified under MCR 1.109(D)(3)(b) is not an option available to a claimant who files a claim or notice of intention to file a claim against the state. Further, nothing in the court rule or MCL 600.6431 suggests that a claimant must take a ‘belt and suspenders’ approach by using the declaration form described in MCR 1.109(D)(3)(b) and signing it ‘before an officer authorized to administer oaths’ as described under MCR 1.109(D)(3)(a). Imposition of such a combination of requirements goes well beyond the statutory verification requirement and the rule’s verification requirement.” Plaintiff was correct that including “a declaration in the form specified under MCR 1.109(D)(3)(b)” would not satisfy the statutory requirement. The court further held that she “met the statutory verification requirement by using a jurat form and signing her notice of intent before a notary public who signified that plaintiff’s signature was subscribed and sworn before the notary.” Full Text Opinion

Termination of Parental Rights (1) Full Text Opinion e-Journal #: 78140 Case: In re Ripton Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Cavanagh, Garrett, and Yates Issues: Best interests of the child; MCL 712A.19b(5); In re White Summary: Holding that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated after the child experienced withdrawal symptoms on birth, and after respondent failed make progress and benefit from services. On appeal, the court rejected her argument that termination was not in the child’s best interests. “Respondent was afforded an opportunity to bond with the child, but she failed to make an effort to establish a bond.” In addition, her “lack of parenting ability weighed in favor of” termination, as did the child’s “need for permanency, respondent’s failure to comply with her treatment plan, and respondent’s lack of consistent visitation . . . .” Further, the child “was doing well with both her foster family and in the care of her father, and the foster family was willing to adopt the child if she could not be returned to her father. These factors also weighed in favor of termination.” Moreover, contrary to respondent’s arguments, her parental rights “were not terminated because of poverty or the COVID-19 pandemic.” The primary concerns in this case were her “failure to attend drug screens, failure to rectify her substance abuse issue, and failure to attend visits. Respondent was provided assistance in those areas to overcome the effects of her poverty and the pandemic, but she failed to make a commensurate effort to participate or benefit from services.” And her claim that termination was improper because her rights to two older children were not terminated was meritless. “The trial court dismissed the child’s older brother from the petition because he turned 18 years old and respondent’s other child was in a guardianship. There was no finding that respondent had the ability to parent either of these children.” Finally, the court rejected her contention that the child would “suffer from not knowing her, and the trial court should have granted custody to the father rather than terminate her parental rights.” It noted the father “did not want to file for a custody order and the trial court found that it was unable to require him to seek one.” It also found “it was not safe for the child to have a legal relationship with respondent or for respondent to have the ability to attempt to gain custody of her in the future.” Full Text Opinion