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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Dispute over funds won on an online gambling site; Whether plaintiff’s claims were preempted by the Lawful Internet Gaming Act (LIGA); MCL 432.304(1) & (3); The Michigan Gaming Control & Revenue Act (MGCRA); Kraft v Detroit Entm’t, LLC; The Michigan Gaming Control Board’s (MGCB) subject-matter jurisdiction; MCL 432.305(1) & (2); MCL 432.309; The MGCB’s authority to promulgate rules; MCL 432.310(c) & (d); “Internet game”; MCL 432.303(q); Manipulation of online games; MCL 432.313(a), (b), (c), & (e)
The court held that the trial court did not err by granting defendant-online gambling platform summary disposition of plaintiff’s claims on the basis her claims were preempted by the LIGA. Plaintiff sued defendant alleging claims of fraud, conversion, and breach of contract after she won more than $3 million gambling on defendant’s website and defendant later zeroed out her account claiming there was an error in the game. She contended that “defendant had fraudulently misrepresented that its game was functioning properly” and that it would pay the amounts its players won, that it “had wrongfully converted the funds in her account,” and that it violated its user agreement with her. The trial court granted defendant’s motion for summary disposition on the ground that LIGA preempted plaintiff’s claims, and denied plaintiff’s motion for reconsideration. On appeal, the court rejected plaintiff’s argument that the trial court erred by finding her claims were preempted by LIGA, and thus, by granting defendant’s motion for summary disposition based on lack of subject-matter jurisdiction. It found that “the Legislature intended that LIGA preempt inconsistent common-law claims.” And plaintiff’s “common-law claims for fraud, conversion, and breach of contract are inconsistent with LIGA.” Plaintiff’s claims, like those in Kraft (a case decided under the MGCRA), “were based in part on defendant’s alleged ‘fraud and deceit.’” A portion of her “claims appear to be explicitly based on defendant’s alleged violation of LIGA or rules promulgated under it; the remainder of plaintiff’s claims nonetheless conflict with the MGCB’s authority under LIGA to regulate all aspects of internet gaming.” The fact that the MGCB “did not or will not take action in plaintiff’s favor in this particular case does not alter our preemption analysis.” Affirmed.
Garnishment action; MCR 3.101; Periodic & nonperiodic garnishments; MCR 3.101(B)(1) & (2); Timeliness of disclosures; MCR 3.101(H); Default; MCR 3.101(S)(1)(a); Admissibility of evidence; MCR 3.101(M)(5); Motion to set aside a default judgment; MCL 600.4012(10)(b); Attorney fees for a frivolous garnishment action; MCL 600.2591; MCR 2.625(A)(2); Meisner Law Group PC v Weston Downs Condo Ass’n; Bill of costs; Verification; MCR 2.625(F) & (G); Interest on lawyer trust account (IOLTA)
The court held that the trial court did not err by rejecting plaintiffs’ writs of garnishment against defendants-restaurant group (Tremendous) and the former owner’s (LaVan) widow (Lynn), or by denying Lynn’s motion for sanctions. To collect on a judgment, plaintiff filed writs of nonperiodic garnishment against a number of businesses associated with LaVan, including one against Tremendous. It also filed periodic and nonperiodic writs of garnishment against Lynn in her personal capacity. On appeal, the court rejected plaintiffs’ argument that the trial court erred by rejecting its writs of garnishment against defendants. Plaintiff “never served Tremendous interrogatories, or noticed a deposition to Tremendous. Thus, the trial court was required to accept as true Tremendous’s assertion it was not indebted to LaVan.” Because Tremendous was not indebted to him, “there was no basis for the writ of garnishment.” As to Lynn, there was nothing in the record showing she made periodic payments to LaVan that would entitle plaintiff to a periodic garnishment. Regarding the nonperiodic garnishment, there was no “error in the trial court’s finding that Lynn did not falsely claim she did not possess or control LaVan’s property” or in its finding that the IOLTA funds at issue “belonged to LaVan and others.” And plaintiff’s challenge to Lynn’s credibility was meritless. The court next found that plaintiff’s “asserted conflicts provide[d] no explanation why the admission of [certain] evidence did not comport with MCR 3.101(M)(5) or why the trial court erred when it admitted the evidence.” It further found that the trial court did not err by granting Lynn’s motion to set aside the default judgment because the garnishment writs were not properly served. Finally, the court rejected Lynn’s challenges to the denial of her motion for sanctions. While the trial court rejected plaintiff’s position, this did not mean that it lacked legal merit. And given that the trial court found attorney fees were not compensable, “there was no need for it to explain its reasoning as the amount of attorney fees under MCR 2.625(E) because Lynn lacked the ‘permission slip’ to seek attorney fees under MCR 2.625(A).” Finally, as Lynn’s bill of costs “was not actionable for failure to include a verification[,]” the trial court did not err in rejecting it. Affirmed.
Search & seizure; Motion to suppress evidence; Validity of a traffic stop; Failure to use a turn signal as a civil infraction (MCL 257.648); Defective license plate lamp as a civil infraction (MCL 257.686(2)); Whether the officers were justified in ordering defendant out of the vehicle; People v Chapo; Maryland v Wilson
The court held that the traffic stop at issue was objectively reasonable, that defendant was properly ordered to it exit the car, “and, after a concealed, loaded handgun was discovered on his person,” the officers were allowed to search the car before permitting the driver (S) to re-enter it. Thus, evidence “recovered from defendant’s person and in the Cadillac was admissible.” The decision to stop the car was made after an officer (H) saw S drive it out of a “gas station parking lot without using a turn signal.” This, and the defective license plate lamp the officers saw on the car, were civil infractions. Given these civil infractions the officers noted, the traffic stop “was objectively reasonable under the Fourth Amendment and was not a pretextual stop.” The court also disagreed with the trial court that the officers had no reason to pull defendant out of the car. It was 11:30 pm, he and S “had both exhibited signs that were somewhat suspicious to the officers, and when the officers attempted to stop their vehicle—activating lights, sirens, and making audible commands—[S] kept driving instead of” stopping immediately. While H permitted S to search inside the car for his driver’s license, the court did not agree with the trial court this showed “the officers had no legitimate concerns for their safety, and thus, defendant should not have been removed from the” car. When S was taken to the patrol car, the other officer was left alone with defendant. “This situation could reasonably be considered to present a safety issue in that the officers were separated, [S] was handcuffed, and [H] was likely focused on his efforts to verify” S’s license. And, pursuant to Chapo, “it is well established that ‘[a] police officer may order occupants to get out of a vehicle, pending the completion of a traffic stop, without violating the Fourth Amendment’s proscription against unreasonable searches and seizures.’” The court noted a concealed, loaded handgun was found on defendant when he exited the car. He did not have a concealed weapons permit. Once “it was determined that [S] had a valid driver’s license and would be” permitted to re-enter the car, the “officers clearly were entitled to search the vehicle, first, to look for more weapons in the interest of their safety.” The court reversed the grant of defendant’s motion to suppress and order dismissing the charges against him, and remanded for reinstatement of the charges.
Whether an in-court identification should have been suppressed; People v Sammons; People v Kurylczyk; People v Gray; People v Metcalf
Holding that there was no improper pretrial identification, the court concluded the trial court did not err in admitting the victim’s (H) in-court identification of defendant-Smith. Thus, it affirmed his unarmed robbery conviction. He asserted that he was entitled to a new trial because the trial court’s failure to suppress H’s “suggestive, unnecessary, and unreliable in-court identification deprived him of his right to a fair trial.” The court disagreed, noting that H “(1) without prompting, identified Smith as his attacker to police officers at the scene; and (2) did identify Smith during the preliminary examination.” A short time after the incident, H “spontaneously and independently identified Smith as his attacker to the police officers located nearby. Based upon [H’s] on-scene identification of Smith, police officers were able to question Smith and take him into custody.” And when asked during the preliminary exam “about the identity of the person who attacked him, [H] identified Smith, but stated, in relevant part: ‘I’m not sure if that was the same person because it’s been so long ago but his—what’s the word I’m looking for—his presentation is the same as the guy that had did it.’ On cross-examination, [H] indicated he was not sure Smith was the same person who assaulted him.” The court found that defendant mischaracterized H’s testimony on appeal, claiming H “was unable to identify Smith before trial. However, [H] clearly made two pretrial identifications of Smith, although the identification at the preliminary examination was made without complete certainty. Because [H] independently identified Smith as his attacker before trial, there is no improper pretrial identification.” Defendant complained the procedure the prosecutor used “was impermissibly suggestive because the prosecutor emphasized his certainty that they had the ‘right man’ when showing” photos of the assault. The court determined the fact H’s “certainty level changed after his memory was ‘jogged’ by the photographs was a matter suited for cross-examination and for the defense’s closing argument. The defense did, in fact, impeach the identification by pointing out the weaknesses in [H’s] various identifications of Smith as his assailant.”
Validity of selection of less-than-unlimited personal protection insurance (PIP) new no-fault statutory mandates in MCL 500.3107c & MCL 500.3107e; Electronic signature in accordance with the Uniform Electronic Transactions Act (UETA); Rebuttable presumption that the premium payment made accurately reflects a $250,000 level of coverage under MCL 500.3107c(3)
Concluding “that a document with a name typed on it does not, by itself, establish that a person electronically signed the document in accordance with the UETA,” and that this was an issue as to a rebuttable presumption under MCL 500.3107c(3), the court remanded for further discovery. The case concerned “recent changes the Legislature made as part of a collection of no-fault reform measures.” At issue was MCL 500.3107c and MCL 500.3107e. “Broadly speaking, these statutes allow insurers to sell—and applicants to buy—less-than-unlimited [PIP] coverage for automobile insurance policies, provided certain statutory requirements are satisfied.” The issue was whether the insured (nonparty-R) “validly selected less-than-unlimited PIP coverage in accordance with the new statutory mandates in MCL 500.3107c and MCL 500.3107e.” The court held that to “effectuate her $250,000 limit for PIP coverage, [R] had to mark her selection of coverage on a PIP selection form and sign the form.” Defendant-insurer alleged that she “electronically signed her PIP selection form, which is permitted by [MCL] 500.3107e(2)(c), so long as doing so complies with the” UETA. The court remanded for further discovery. Also, when R purchased her policy, “she made a premium payment. Under MCL 500.3107c(3), defendant could establish a rebuttable presumption that [R’s] policy had a $250,000 limit for PIP coverage if defendant established that the premium [R] paid corresponded to a $250,000 level of PIP coverage. To establish this rebuttable presumption, defendant provided an affidavit from one of its employees in which the employee averred that the premium [R] paid corresponded with a $250,000 limit for PIP coverage.” However, it “did not include this employee on its witness list, and did not submit the employee’s affidavit until two days before the trial court was to consider the parties’ competing motions for summary disposition. Given this, and because the employee’s affidavit is the only evidence establishing that the premium [R] paid corresponded to a $250,000 limit for PIP coverage, we agree with plaintiff that plaintiff is entitled to conduct discovery on this issue.” Vacated and remanded.
Premises liability; Duty; Christy v Glass; Case evaluation sanctions; MCR 2.403; MCR 1.102; RAD Constr, Inc v Davis; Request for prevailing-party costs; MCR 2.625
In Docket No. 360698, the court affirmed the trial court’s order granting the Early defendants summary disposition of plaintiff-estate’s premises liability claim. In Docket No. 361265, it affirmed the trial court’s denial of case evaluation sanctions to defendant-Joseph Early but vacated the part “of the order denying the Early defendants prevailing-party costs under MCR 2.625” and remanded. Plaintiff’s decedent, an electrician, was fatally injured while working on electrical equipment in a building. Plaintiff did “not dispute that the Early defendants did not have possession or control of the property at the time of the decedent’s accident, as” one of the Early defendants (Leitrim) sold the property to defendant-Midtown Charlotte about 10 months before. But plaintiff contended the Early defendants were “nevertheless liable for the death because they knew or should have known about the dangerous condition on the property and should have disclosed that fact to Midtown Charlotte during the sale.” Under Christy, the court concluded “the trial court did not err when it held that the Early defendants did not owe a duty of care to the decedent.” There was no dispute “that Leitrim conveyed the property to Midtown Charlotte in [11/17] on an ‘as is’ basis, that Midtown Charlotte took title after having an inspection performed on the property, and that after purchasing the property, Midtown Charlotte began significant renovations of the property, including electrical work. There was no actual relationship between the Early defendants and the decedent. Moreover, the Early defendants no longer had possession or control of the property and were, therefore, not in any position to prevent the accident.” Thus, unless plaintiff could show an exception under Christy applied, “the Early defendants had no duty to the decedent to prevent the accident.” The court held that “plaintiff failed to show that the Early defendants did not disclose to Midtown Charlotte any concealed conditions known to them that involved an unreasonable danger, i.e., the improperly installed electrical equipment.” Plaintiff suggested the court “should read Christy for the proposition that a former landowner is liable if the concealed condition is actually known or if the former landowner should have known of the dangerous condition.” And plaintiff asserted there were issues of fact for trial as to “whether Joseph Early should have known about the dangerously-installed electrical equipment.” However, the court declined “to read Christy so expansively, and plaintiff cites no court opinion following Christy that would support such a reading.” Instead, plaintiff relied on nonbinding treatises cited in Christy. But the treatise language cited by plaintiff did “not appear in Christy.”
Auto negligence; Ownership liability; Applicability of MCL 257.401(1) to a driver’s intentional torts; Berry v Kipf; Hashem v Les Stanford Oldsmobile, Inc; “Assault”; Determining the gravamen of an action; Great bodily harm (GBH)
Noting that it had not issued a binding published opinion on whether a negligent act is required for owner liability under MCL 254.401(1), the court held that “ownership liability does not arise in the context of a driver’s intentional torts[.]” Thus, in these consolidated interlocutory appeals, it reversed the denial of summary disposition to two sets of defendants (one collectively referred to as HFC-MS and the other as HFC-Detroit) and remanded for entry of an order consistent with the court’s opinion. The case arose after defendant-James ran plaintiff-Reese over driving a van that purportedly belonged to HFC-MS, which HFC-Detroit had borrowed. HFC-MS and HFC-Detroit asserted the evidence clearly showed “James committed an intentional tort, rather than a negligent act” and as a result, they “could not be liable under MCL 257.401(1) because that statute requires a negligent act.” The court agreed. In Berry, a nonbinding 1987 published decision, it concluded an owner could not be liable under a former version of “this statute where the only allegation is that the alleged tortfeasor committed an intentional tort.” While the present version differs in some respects, “the Legislature retained the phrase ‘negligent operation of a motor vehicle’ when it amended the statute. Therefore, the statute still requires a negligent act, and an owner cannot be liable under the statute where the only allegation is that the alleged tortfeasor committed an intentional tort.” The court noted it was bound by its more recent holding in Hashem “that liability arises under MCL 257.401(1) where the tortfeasor commits ordinary negligence, gross negligence, or willful and wanton misconduct. But, as in Berry, we hold that liability is not impugned to an owner for a tortfeasor’s intentional tort.” Turning to the evidence here, it found “Reese’s statements in response to the motions for summary disposition establish that James’s actions amounted to an assault, not a negligent act.” In his deposition testimony, he described “two attempts by James to run him over with the van.” Further, James admitted during his criminal proceedings that while operating the van he tried “to assault Reese with the intent to do” GBH. While the complaint asserted “negligence, gross negligence, or willful and wanton misconduct, the trial court . . . should have looked beyond those labels and understood that Reese’s pleadings established that James’s actions were, in essence, an assault.”
Action arising from a foreclosure under the General Property Tax Act (GPTA); Rafaeli, LLC v Oakland Cnty; Hall v Meisner (6th Cir); Statutory period of limitations
Holding that “plaintiff’s claim was barred by the statutory period of limitations,” the court affirmed summary disposition for defendants in this case arising from a foreclosure under the GPTA. “Plaintiff owned real property that was foreclosed on because of delinquent property taxes.” Defendant-Melrose Township “purchased the property for a ‘minimum bid,’ and plaintiff alleged that defendants took the property without just compensation.” Plaintiff asserted it had “a constitutional right to have the property sold at public auction, under the GPTA’s amended process, because the property’s value was taken without just compensation when the property’s value far outweighed the minimum bid.” Defendants argued that the Michigan “Supreme Court in Rafaeli expressly foreclosed plaintiff’s claim because it held that ‘a former property owner has a compensable takings claim if and only if the tax-foreclosure sale produces a surplus.’” The court noted that here, “there was no public auction and there were no surplus proceeds.” In light of Rafaeli, plaintiff argued the Sixth Circuit Court of Appeals held in Hall “that the then-existing minimum-bid process was unconstitutional.” But the court noted that it was not bound by Hall, and even though it “may find Hall persuasive, we do not need to reach the merits of this case because plaintiff’s claim was untimely.” Defendants claimed “that MCL 211.78l required plaintiff to bring [its] claim within two years of the foreclosure.” The judgment of foreclosure was entered on 3/2/18, and plaintiff brought its claim on 4/1/21. Thus, over “two years elapsed between the judgment of foreclosure and plaintiff filing its claim.”
Jurisdiction; MCL 712A.2(b)(1); Removal under MCL 712A.13a(9) & MCR 3.965(C)(2); In re Williams; A trial court’s obligation to make a record of its findings; Apex Labs Int’l Inc v City of Detroit
Holding that the trial court erred by ordering the removal of respondent-mother’s children, the court reversed that portion of the order and remanded. The trial court ordered the children’s removal based on allegations of medical neglect. On appeal, the court agreed with respondent that the trial court failed to make the required factual findings necessary to order the children’s removal under MCL 712A.13a(9) and MCR 3.965(C)(2). First, “the trial court’s oral opinion and ensuing order appear perfunctory, which is not only highly inappropriate given the seriousness of ordering removal of a child from a parent’s custody, but it stifles this Court’s ability to review the merits of the trial court’s decision.” In addition, it “failed to make the factual findings required by MCL 712A.13a(9) and MCR 3.965(C)(2) prior to removal.” Most problematically, it “failed to make any factual findings with respect to MCL 712A.13a(9)(b) and (e).” As to factor (b), the trial court “was required to address whether there was any ‘service or other arrangement except removal of the child’ that was ‘reasonably available’ and could ‘adequately safeguard the child’ if left in respondent’s care.” However, it “said nothing in its oral opinion that could be reasonably construed as addressing this factor.” As to factor (e), the trial court “was required to address whether ‘[c]onditions of child custody away from [respondent were] adequate to safeguard the child’s health and welfare.’ Nothing in either the trial court’s oral argument or written order reflect that the trial court made any findings related to this factor, leaving this Court with nothing to review.” The court noted that in Williams, the panel held that “when a trial court ‘ignore[s] the mandates in MCR 3.965(C)(2) and MCL 712A.13a(9),’ the proper remedy is to reverse the removal order, and, ‘If, after remand, any party again seeks removal of [the children], the trial court must make findings on the record as to all the factors enumerated in MCR 3.965(C)(2) and MCL 712A.13a(9).’” As such, it reversed the trial court’s removal order, remanded for further proceedings, and ordered that if a party again seeks removal, the trial court must “make findings on the record with respect to all of the factors in MCR 3.965(C)(2) and MCL 712A.13a(9).”