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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary

Includes summaries of three Michigan Court of Appeals published opinions under Criminal Law, Family Law/Constitutional Law, and Real Property.


Cases appear under the following practice areas:

    • Constitutional Law (1)

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      This summary also appears under Family Law

      e-Journal #: 60952
      Case: Varran v. Granneman
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Servitto and Ronayne Krause; Dissent - Murphy
      Issues: Action for grandparent time; MCL 722.27b; Whether an order for grandparenting time affects custody within the meaning of MCR 7.202(6)(a)(iii) (“final judgment” in a domestic relations action) making it appealable as of right under MCR 7.203(A); Thurston v. Escamilla; “Affect”; Wardell v. Hincka; Rains v. Rains; “Legal custody”; Grange Ins. Co. of MI v. Lawrence; A parent’s fundamental right to make decisions concerning the care, custody, & control of his or her child; Troxel v. Granville; In re Sanders; In re JK; Whether the grandparenting time statute is unconstitutional; Presumption of constitutionality; Mayor of Cadillac v. Blackburn; Burden of proof; In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71; Due process; U.S. Const. amend. XIV; Facial constitutional challenges; Judicial Attorneys Ass’n v. Michigan; Cruzan v. Director, MO Dep’t of Health; Santosky v. Kramer; Deference to a fit parent’s decision; Hunter v. Hunter; DeRose v. DeRose; Subject matter jurisdiction; Joy v. Two-Bit Corp.; Bowie v. Arder; Expert testimony; MRE 702; Gilbert v. DaimlerChrysler Corp.; Edry v. Adelman; Daubert v. Merrell Dow Pharms., Inc.; “Hearsay” & exceptions; MRE 801 & 802; Waiver; MacInnes v. MacInnes; People v. Carter
      Summary: The court held that it had jurisdiction to hear the defendant-father’s appeal from the trial court’s order granting the intervenors’ (grandparents) request for grandparent visitation with their grandchild (A). It then held that the grandparent visitation statute is not unconstitutional, and that the grandparents were entitled to visitation. The plaintiff, A’s mother, who died in 2007, initiated a child custody dispute in 2003. A consent order was issued in 2004. In 2013, the grandparents filed a motion seeking grandparenting time. The trial court found that entry of a grandparenting time order was in A’s best interests, and entered an order to that effect in 2014. The court previously dismissed the father’s appeals for lack of jurisdiction, but the Supreme Court remanded, directing it to address the issue of “whether an order regarding grandparenting time may affect custody within the meaning of MCR 7.202(6)(a)(iii), or otherwise be appealable by right under MCR 7.203(A).” On remand, the court first found that it had jurisdiction. It found that the 2014 order was “not a ‘final judgment’ or ‘final order’ under MCR 7.202(6)(a)(i).” However, as to MCR 7.202(6)(a)(iii), because a grandparenting time order “overrides a parent’s legal decision to deny grandparenting time,” it “interferes with a parent’s fundamental right to make decisions concerning the care, custody, and control of his or her child. Thus, where a parent has legal custody of the child, an order regarding grandparenting time is a postjudgment order affecting the custody of a minor.” As to the merits of the case, the court rejected the father’s argument that the grandparenting time statute is unconstitutional, holding that “because due process concerns are not at their highest in cases involving requests for grandparenting time . . . the requirement that grandparents, in order to rebut the presumption given to a fit parent’s decision, prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child is sufficient to protect the fundamental rights of parents.” It also found that the grandparents “could seek an order of grandparenting time irrespective of whether father had completely denied them all grandparenting time with A.” The father “withdrew his hearsay objection to A’s statements, thereby allowing facts and data on which” the psychologist “based her opinion to be admitted into evidence,” and he could not now claim that the trial court erred when it considered them. Finally, the court rejected his claim that the trial court’s finding that the grandparents proved that a denial of grandparenting time would create a substantial risk of harm was against the great weight of the evidence. Affirmed.

    • Criminal Law (3)

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      e-Journal #: 60953
      Case: People v. Jackson
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Boonstra, Saad, and Hoekstra
      Issues: Jury instruction on the lesser-included offense of third-degree home invasion; MCL 768.32(1); People v. Wilder; People v. Cornell; MCL 750.110a(4); People v. Sands; MCL 750.110a(2) & (3); Prosecutorial error; People v. Thomas; People v. Bahoda; Vouching for the witnesses’ credibility & bolstering their testimony during closing arguments; Soliciting testimony from a witness as to a threatening text message that was not reported to the police; People v. Hackney; Claim that defendant’s Sixth Amendment right to a fair trial was violated by the jury empaneled because it did not represent a fair cross-section of the community; US Const., amend. VI; Const. 1963, art. 1, § 1; People v. Bryant; Ineffective assistance of counsel; Failure to object to the jury composition and selection, failure to object to prosecutorial error, and failure to diligently inquire as to the lack of effort in attempting to obtain from the phone or telecommunication company information as to the text message; Strickland v. Washington; People v. Hoag; Sentencing; Motion to remand for resentencing in light of People v. Lockridge
      Summary: The court held that although the trial court erred in instructing the jury on the lesser-included offense of third-degree home invasion, the improper jury instruction did not affect the defendant’s substantial rights. Also, the prosecution did not engage in misconduct. Further, defendant failed to establish a prima facie case for violation of the Sixth Amendment’s fair-cross-section requirement as to education level or ties to law enforcement. He was not denied the effective assistance of counsel, and he was not entitled to resentencing. He was convicted of second-degree home invasion and sentenced as a second-offense habitual offender to 88 months to 22 years’ imprisonment, with credit for 259 days served. Defense counsel requested, and the jury was instructed on, the lesser offense of third-degree home invasion. He maintained that, “by providing essentially identical instructions on second-degree and third-degree home invasion, the instructions as a whole were confusing and allowed the jury to convict defendant of the higher offense” (second-degree home invasion) “on no greater proof than would sustain a conviction for the lesser offense (third-degree home invasion), thus lowering the prosecution’s burden of proof on the former.” The record indicated that defense counsel “requested that the jury be so instructed, and affirmatively approved the jury instruction as read.” The court held that although the Wilder and Sands courts were “considering the first-degree home invasion statute, its relevant language is the same as that of the second-degree home invasion statute.” It also held that the “rationale of those cases is therefore equally applicable to” second-degree home invasion, and “either a misdemeanor or felony larceny thus may serve as the predicate offense for second-degree home invasion.” Thus, where, as in this case, the predicate offense for the home invasion charge was a larceny, third-degree home invasion was a lesser-included offense of second-degree home invasion. Nonetheless, under the facts here, a rational view of the evidence did not support the giving of an instruction on third-degree home invasion. There was no record evidence that defendant entered the victim’s home to commit any crime other than a larceny. The trial court erred in giving that instruction. However, because the jury convicted him of the higher charged offense, the improper jury instruction did not affect his substantial rights. Affirmed.

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      e-Journal #: 60944
      Case: In re Forfeiture of 2007 Ford Focus
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola and Beckering; Dissent - Jansen
      Issues: Whether the claimant’s vehicle was subject to forfeiture; Interpretation & application of MCL 333.7521; Gardner v. Department of Treasury; Forfeiture under the Public Health Code (MCL 333.7521 et seq.); Whether use or intent to use the vehicle to facilitate transportation for the purpose of sale or receipt of the marijuana was required under MCL 333.7521(1)(d); “Purpose”; Klooster v. Charlevoix; Exception found in § 7521(1)(d)(iii) (where the driver only possessed or used the marijuana); Distinguishing In re Forfeiture of 1999 Ford Contour (Unpub.)
      Summary: [Unpublished opinion.] Holding that the trial court erred by concluding that the claimant’s (S) car was subject to forfeiture, the court reversed the order of forfeiture and remanded for entry of an order denying the complaint. The case arose from a traffic stop in which the officer found a gram of marijuana in S’s car. S’s daughter, L, was the driver and sole occupant of the car. S argued that the trial court erred in entering a judgment of forfeiture on his car because L “merely possessed the marijuana found in the vehicle, which is not a conveyance subject to forfeiture; she did not use or intend to use the vehicle to facilitate transportation for the purpose of sale or receipt of the marijuana (e.g. to facilitate a marijuana transaction), as is required for forfeiture to apply under” § 7521(1)(d). The court agreed with S that forfeiture was not appropriate, based on the plain language of § 7521. L testified, and the trial court found credible, that “she merely possessed and used a small amount of marijuana in the vehicle after receiving the drug as a tip for delivering a pizza.” The record lacked evidence that L “used the vehicle for the purpose of receiving or selling marijuana; such evidence is required for forfeiture under the statute.” Plaintiff failed to meet its burden of showing, by a preponderance of the evidence, that L “used the vehicle for the purpose of receiving marijuana, and, further, the trial court clearly erred in granting a judgment of forfeiture.” Plaintiff contended, and the trial court agreed, that forfeiture was proper because L “used the vehicle to receive the marijuana.” Plaintiff and the trial court took “the position that merely receiving marijuana after using a vehicle amounts to using a vehicle for the purpose of receiving the drug.” This construction was “not supported by the plain language of § 7521.” It would “effectively strip all meaning from § 7521(1)(d)(iii), which is an unacceptable result” under the canons of statutory construction. Also, the court noted that “reading the conditions for forfeiture under § 7521(1)(d) in context with the exception found in § 7521(1)(d)(iii) highlights the shortcoming of the trial court’s interpretation.” Forfeiture “must be premised on the use or intended use of the vehicle for the purpose of sale or receipt of a controlled substance. Merely possessing or using a controlled substance in a vehicle is not, by itself, sufficient to warrant forfeiture under the statute.”

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      e-Journal #: 60945
      Case: People v. Campbell
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Borrello, Jansen, and Owens
      Issues: Prosecutorial misconduct; People v. Brown; People v. Seals; People v. Watson; “Plain error” review; People v. Gaines; People v. Carines; Effect of curative jury instructions; Claim the prosecutor argued facts not in evidence; People v. Unger; Calling on jurors to use their common sense & everyday experience; People v. Simon; Elements of felonious assault; People v. Chambers; “Vouching”; People v. Rodriguez; Arguing that a witness is credible; People v. Dobek; Alleged appeal to the jury’s civic duty; People v. Thomas; People v. Bahoda; Sufficiency of the evidence to disprove the defendant’s self-defense claim; People v. Heflin; People v. Guarjado; “Reasonableness”; People v. Orlewicz; The Self-Defense Act (MCL 780.971 et seq.); MCL 780.972(2); Principle that one “who uses excessive force or acts as the initial aggressor does not act in justifiable self-defense”; People v. Dupree; When an aggressor may still claim self-defense; People v. Kemp
      Summary: [Unpublished opinion.] Rejecting the defendant’s prosecutorial misconduct claims and holding that the prosecution presented sufficient evidence to refute his self-defense claim, the court affirmed his felonious assault and felony-firearm convictions. He asserted that the prosecutor argued facts not in evidence. However, the court concluded that the prosecutor did not actually argue that defendant shot the victim (M). “There was no question that defendant’s conduct was restricted to punching” M and then shoving the gun in M’s face, “two actions that the prosecutor referenced time and again throughout the trial and that the jurors had seen for themselves numerous times on the gas station video. Imprecise though his language may have been, the prosecutor was simply remarking that it was reasonable” for M “to fear being shot, and thus, that defendant intended” to put him “in reasonable apprehension of an immediate battery.” The prosecutor “was simply drawing a reasonable inference—that defendant intended” to make M “fear being shot—from facts firmly in evidence. This is a permissible strategy during closing argument.” Further, the prosecutor’s comments about M during closing argument “did not constitute improper vouching.” The prosecutor also did not encourage the jury “to convict defendant based on the abstract principles that he was generally an irresponsible gun owner and that the jury should encourage responsible gun ownership through a guilty verdict.” Rather, his argument was specifically based “on the video, the testimony, and the reasonable inference that defendant acted as the aggressor, rather than in self-defense, on that particular occasion.” As to the sufficiency of the evidence, the court held that the jury could have reasonably concluded that defendant did not act in self-defense. The “video evidence belies defendant’s claim that he honestly and reasonably feared serious injury or death” at M’s hands. Further, “the jury could reasonably have concluded that defendant was the aggressor, and there is no evidence suggesting” that he withdrew or notified M of the withdrawal.

    • Family Law (1)

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      This summary also appears under Constitutional Law

      e-Journal #: 60952
      Case: Varran v. Granneman
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Servitto and Ronayne Krause; Dissent - Murphy
      Issues: Action for grandparent time; MCL 722.27b; Whether an order for grandparenting time affects custody within the meaning of MCR 7.202(6)(a)(iii) (“final judgment” in a domestic relations action) making it appealable as of right under MCR 7.203(A); Thurston v. Escamilla; “Affect”; Wardell v. Hincka; Rains v. Rains; “Legal custody”; Grange Ins. Co. of MI v. Lawrence; A parent’s fundamental right to make decisions concerning the care, custody, & control of his or her child; Troxel v. Granville; In re Sanders; In re JK; Whether the grandparenting time statute is unconstitutional; Presumption of constitutionality; Mayor of Cadillac v. Blackburn; Burden of proof; In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71; Due process; U.S. Const. amend. XIV; Facial constitutional challenges; Judicial Attorneys Ass’n v. Michigan; Cruzan v. Director, MO Dep’t of Health; Santosky v. Kramer; Deference to a fit parent’s decision; Hunter v. Hunter; DeRose v. DeRose; Subject matter jurisdiction; Joy v. Two-Bit Corp.; Bowie v. Arder; Expert testimony; MRE 702; Gilbert v. DaimlerChrysler Corp.; Edry v. Adelman; Daubert v. Merrell Dow Pharms., Inc.; “Hearsay” & exceptions; MRE 801 & 802; Waiver; MacInnes v. MacInnes; People v. Carter
      Summary: The court held that it had jurisdiction to hear the defendant-father’s appeal from the trial court’s order granting the intervenors’ (grandparents) request for grandparent visitation with their grandchild (A). It then held that the grandparent visitation statute is not unconstitutional, and that the grandparents were entitled to visitation. The plaintiff, A’s mother, who died in 2007, initiated a child custody dispute in 2003. A consent order was issued in 2004. In 2013, the grandparents filed a motion seeking grandparenting time. The trial court found that entry of a grandparenting time order was in A’s best interests, and entered an order to that effect in 2014. The court previously dismissed the father’s appeals for lack of jurisdiction, but the Supreme Court remanded, directing it to address the issue of “whether an order regarding grandparenting time may affect custody within the meaning of MCR 7.202(6)(a)(iii), or otherwise be appealable by right under MCR 7.203(A).” On remand, the court first found that it had jurisdiction. It found that the 2014 order was “not a ‘final judgment’ or ‘final order’ under MCR 7.202(6)(a)(i).” However, as to MCR 7.202(6)(a)(iii), because a grandparenting time order “overrides a parent’s legal decision to deny grandparenting time,” it “interferes with a parent’s fundamental right to make decisions concerning the care, custody, and control of his or her child. Thus, where a parent has legal custody of the child, an order regarding grandparenting time is a postjudgment order affecting the custody of a minor.” As to the merits of the case, the court rejected the father’s argument that the grandparenting time statute is unconstitutional, holding that “because due process concerns are not at their highest in cases involving requests for grandparenting time . . . the requirement that grandparents, in order to rebut the presumption given to a fit parent’s decision, prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child is sufficient to protect the fundamental rights of parents.” It also found that the grandparents “could seek an order of grandparenting time irrespective of whether father had completely denied them all grandparenting time with A.” The father “withdrew his hearsay objection to A’s statements, thereby allowing facts and data on which” the psychologist “based her opinion to be admitted into evidence,” and he could not now claim that the trial court erred when it considered them. Finally, the court rejected his claim that the trial court’s finding that the grandparents proved that a denial of grandparenting time would create a substantial risk of harm was against the great weight of the evidence. Affirmed.

    • Litigation (1)

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      e-Journal #: 60934
      Case: Trudel v. City of Allen Park
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Gleicher, Sawyer, and Fort Hood
      Issues: Dismissal with prejudice due to the plaintiff’s failure to personally appear on a specified date; Interpretation and construction of court rules; Vicencio v. Jaime Ramirez, MD, PC; Whether the trial notice was ambiguous; Alpha Capital Mgmt., Inc. v. Rentenbach; Raska v. Farm Bureau Mut. Ins. Co. of MI; Stone v. Williamson; “Or”; People v. Kowalski; Jesperson v. Auto Club Ins. Ass’n; Caldwell v. Chapman; The “last antecedent” rule of statutory construction; Stanton v. City of Battle Creek; Hardaway v. Wayne Cnty.; Whether the trial court abused its discretion by dismissing the case with prejudice; MCR 2.506(F); Woods v. SLB Prop. Mgmt., LLC
      Summary: [Unpublished opinion.] The court reversed the circuit court’s order dismissing the case with prejudice, and remanded for further proceedings. Plaintiff is a retired district court judge. “In 2010, he filed two lawsuits challenging defendants’ decision to deny him a duty disability pension. The parties litigated the cases vigorously and aggressively. They fought over discovery and the merits, filing dozens of motions. The circuit court granted summary disposition to plaintiff in one case and to defendants in the other.” The court previously affirmed the grant of summary disposition in one case, reversed it in the other, and remanded for further proceedings. The renewed proceedings commenced in 1/14. In 2/14, the circuit court issued an order setting a trial date in March. “The order directed that certain individuals or their representatives appear personally on the appointed date. Plaintiff failed to personally appear and the circuit court dismissed the case with prejudice.” The court applied the rules of contract construction and interpretation to the interpretation and construction of the court order. It reversed the dismissal for two reasons. “First, the trial notice was ambiguous. Reasonably understood, it required only counsels’ attendance at the trial. Second, even assuming that plaintiff’s failure to appear violated the order, plaintiff’s transgression did not warrant a sanction as severe as dismissal without prejudice.”

    • Malpractice (1)

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      e-Journal #: 60942
      Case: Estate of Sandra Peetz v. Henry Ford Macomb Hosp.
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola and Beckering; Concurring in part, Dissenting in part – Jansen
      Issues: Medical malpractice; Kalaj v. Khan; Necessity of expert testimony to establish “causation” & breach of the standard of care (SOC); Teal v. Prasad; Recovery for “the loss of an opportunity to survive or an opportunity to achieve a better result”; Dykes v. William Beaumont Hosp.; MCL 600.2912a(2); Carotid endarterectomy (CEA) (procedure to remove build up from the carotid artery walls)
      Summary: [Unpublished opinion.] The court concluded that the trial court on remand did not err in determining that the Supreme Court’s order covered more than testimony relating to the decedent’s (Peetz) “‘chronic’ subdural hematoma.” It also did not err in concluding that “hypertension was not a separate causal theory, but was instead a component of the same causal theory rejected by the Supreme Court.” However, the court held that the trial court erred in granting the defendants summary disposition as to plaintiff’s CT scan causal theory. Thus, it affirmed in part, reversed in part, and remanded. Peetz died after undergoing a CEA. Defendant-Hans was the vascular surgeon. After prior appellate proceedings, the trial court granted defendants’ summary disposition motion. The court noted that in reversing its prior decision in the case, the Supreme Court “rejected plaintiff’s theory that Peetz’s subdural brain bleed (whether acute or chronic) occurred as a result of lack of blood flow to Peetz’s brain during the CEA, causing the brain to retract from the skull, tearing blood vessels, and creating a pathway for blood to accumulate in the subdural space.” However, plaintiff’s experts (A and F) also “opined that Peetz would have survived if she had received a CT scan immediately after her second surgery.” Plaintiff asserted that “this theory of causation was independent of the theory rejected by the Supreme Court.” F testified that Hans breached the SOC “by failing to obtain a CT scan immediately after Peetz’s second surgery when he could not independently determine the cause of her serious neurological symptoms.” Both experts “explained that the failure to obtain a CT scan immediately after the second surgery caused Peetz’s death because, without the CT scan, her physicians were unable to identify the subdural hematoma in time to perform intracranial surgery to evacuate the excess blood and relieve the pressure on her brain.” The Supreme Court’s order did not address their testimony on “the CT scan causal theory,” and the trial court did not dismiss it “on the basis that the expert testimony addressing it was inadmissible under MRE 702.” Rather, it concluded that “Peetz did not have a greater than 50% chance at survival even if she had received a CT scan immediately after the second surgery. This determination was improper at the summary disposition stage” given the experts’ testimony.

    • Municipal (1)

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      This summary also appears under Negligence & Intentional Tort

      e-Journal #: 60933
      Case: Heiser v. City of Flint
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - K.F. Kelly, Cavanagh, and Saad
      Issues: Action seeking damages for a fall on a city sidewalk; Governmental immunity under the Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq.); Genesee Cnty. Drain Comm’r v. Genesee Cnty.; “Governmental agency” defined; MCL 691.1401(a); “Political subdivision” defined; MCL 691.1401(d) & (e); The highway exception to governmental immunity; MCL 691.1402; “Highway” defined; MCL 691.1401(c); Notice requirement; MCL 691.1404(1); Thurman v. City of Pontiac; Rowland v. Washtenaw Cnty. Rd. Comm’n; McCahan v. Brennan; McLean v. City of Dearborn; Jakupovic v. City of Hamtramck; Principle that ignorance of the law is no excuse for failure to comply with it; Spohn v. Van Dyke Pub. Schs.
      Summary: [Unpublished opinion.] The court held that the trial court did not err by ruling that the plaintiff failed to abrogate the defendant-city’s governmental immunity, or by granting summary disposition for defendant. Plaintiff sued defendant for injuries she sustained when she allegedly tripped and fell on a city sidewalk. The trial court granted summary disposition for defendant, finding it was immune from suit under the GTLA because plaintiff failed to comply with the notice requirements of MCL 691.1404. On appeal, the court rejected plaintiff’s argument that the trial court erred when it granted defendant summary disposition because she: “(1) substantively complied with MCL 691.1404; and (2) deserves lenient treatment as a layman not versed in the ‘technical’ requirements of the law.” It noted that she failed to provide defendant “with the ‘exact location’ of the sidewalk” where the injury allegedly occurred, instead giving a “vague description” of the general area. Further, “she provided no photographs or diagrams to help [defendant] locate the defective sidewalk, which might have compensated for her inability to produce a precise address. And her lawyers’ letter to the city provided no indication whatsoever of the defective sidewalk’s location. For this reason alone—the fact that plaintiff failed to tell the city the precise location of the defective sidewalk—her claim must fail.” It also held that although she claimed she should “receive special treatment and exemption from MCL 691.1404’s clear mandates, ignorance of the law is no excuse for failure to comply with it.” Moreover, “while plaintiff may be a layman on the matter of statutory interpretation, her lawyers certainly are not. Despite the fact that plaintiff’s claim of damages obviously did not satisfy the notice requirements of MCL 691.1404, the letter from plaintiff’s attorneys made no effort to amend this mistake.” Affirmed.

    • Negligence & Intentional Tort (1)

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      This summary also appears under Municipal

      e-Journal #: 60933
      Case: Heiser v. City of Flint
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - K.F. Kelly, Cavanagh, and Saad
      Issues: Action seeking damages for a fall on a city sidewalk; Governmental immunity under the Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq.); Genesee Cnty. Drain Comm’r v. Genesee Cnty.; “Governmental agency” defined; MCL 691.1401(a); “Political subdivision” defined; MCL 691.1401(d) & (e); The highway exception to governmental immunity; MCL 691.1402; “Highway” defined; MCL 691.1401(c); Notice requirement; MCL 691.1404(1); Thurman v. City of Pontiac; Rowland v. Washtenaw Cnty. Rd. Comm’n; McCahan v. Brennan; McLean v. City of Dearborn; Jakupovic v. City of Hamtramck; Principle that ignorance of the law is no excuse for failure to comply with it; Spohn v. Van Dyke Pub. Schs.
      Summary: [Unpublished opinion.] The court held that the trial court did not err by ruling that the plaintiff failed to abrogate the defendant-city’s governmental immunity, or by granting summary disposition for defendant. Plaintiff sued defendant for injuries she sustained when she allegedly tripped and fell on a city sidewalk. The trial court granted summary disposition for defendant, finding it was immune from suit under the GTLA because plaintiff failed to comply with the notice requirements of MCL 691.1404. On appeal, the court rejected plaintiff’s argument that the trial court erred when it granted defendant summary disposition because she: “(1) substantively complied with MCL 691.1404; and (2) deserves lenient treatment as a layman not versed in the ‘technical’ requirements of the law.” It noted that she failed to provide defendant “with the ‘exact location’ of the sidewalk” where the injury allegedly occurred, instead giving a “vague description” of the general area. Further, “she provided no photographs or diagrams to help [defendant] locate the defective sidewalk, which might have compensated for her inability to produce a precise address. And her lawyers’ letter to the city provided no indication whatsoever of the defective sidewalk’s location. For this reason alone—the fact that plaintiff failed to tell the city the precise location of the defective sidewalk—her claim must fail.” It also held that although she claimed she should “receive special treatment and exemption from MCL 691.1404’s clear mandates, ignorance of the law is no excuse for failure to comply with it.” Moreover, “while plaintiff may be a layman on the matter of statutory interpretation, her lawyers certainly are not. Despite the fact that plaintiff’s claim of damages obviously did not satisfy the notice requirements of MCL 691.1404, the letter from plaintiff’s attorneys made no effort to amend this mistake.” Affirmed.

    • Real Property (1)

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      e-Journal #: 60951
      Case: In re Estate of Charles E. Duke
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Wilder, Shapiro, and Ronayne Krause
      Issues: Action to determine title to real property & set aside a quitclaim deed; Whether a notary public’s affidavit was adequate to correct alleged errors in the dates of execution & acknowledgement; MCL 565.202; Cipriano v. Tocco (ED MI); Statutory interpretation; Macomb Cnty. Prosecutor v. Murphy; “Shall”; Old Kent Bank v. Kal Kustom, Enters.; The Recording Requirements Act (MCL 565.201 et seq.); Principle that improperly acknowledged deeds shall not be recorded; MCL 565.8; MCL 565.46 & 565.47; MCL 565.201(1)(c); A court’s authority to invalidate an improper notarial act; MCL 55.307(2); Principle that an invalid acknowledgement does not render void an otherwise valid conveyance of real property; Kerschensteiner v. Northern MI Land Co.; Turner v. Peoples State Bank; Irvine v. Irvine; Evans v. Holloway Sand & Gravel, Inc.; MCL 565.604; Schmalzriedt v. Titsworth; Claim that the conveyance was not supported by valuable consideration; General Motors Corp. v. Department of Treasury, Revenue Div.; In re Rudell Estate; Distinguishing Daane v. Lovell
      Summary: In an issue of first impression, the court held that a notary public’s “‘saving affidavit’ under MCL 565.202 only applies to errors or discrepancies in a person’s name.” Thus, the affidavit here was insufficient to correct the alleged error in the date of acknowledgement on the deed. However, “the probate court erred in setting aside the deed solely due to a defect in the acknowledgement without also finding a lack of good faith or valuable consideration, or the presence of another invalidating circumstance, such as fraud, mistake of fact, coercion, or undue influence.” Thus, the court reversed the probate court’s order granting the petition to determine title to the real property at issue and to set aside the quitclaim deed, and remanded for further proceedings. The deed conveyed the property to the decedent’s sons, one of the petitioners (Frank) and the respondent. “According to the notations on the document, the deed was acknowledged by decedent,” Frank, and respondent on 5/14/07, before L, a notary public whose commission would expire on 12/30/14. Petitioners argued that the deed “was fraudulent and void under MCL 565.46 and MCL 565.47 because it was improperly notarized” and, thus, could not be validly recorded. L later “executed an affidavit averring that she witnessed decedent execute the quitclaim deed ‘on or about April 13, 2009,’ and that the date written and printed on the deed was incorrect.” Respondent argued that L’s “affidavit was adequate to correct the alleged errors in the dates of execution and acknowledgment pursuant to MCL 565.202.” Based on the “plain language of MCL 565.202 in context with the other sections of the act,” the court disagreed, rejecting his argument that the statute “allows for the broad correction of errors on recorded documents by subsequently recording” an affidavit. However, it also concluded that the probate court “failed to recognize that under Michigan law, an invalid acknowledgment does not render void an otherwise valid conveyance of real estate.” The probate court did not make any findings as to “whether good faith and valuable consideration were present.” Thus, given the relevant case law “and the text of MCL 565.404,” remand was necessary for further evidence to be taken on these and any other relevant issues.
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