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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Action to abate a nuisance; The Right to Farm Act (RTFA) (MCL 286.471 et seq.); Principle that a violation of a zoning ordinance constitutes a nuisance per se & a court must order it abated; MCL 125.3407; Principle that activities falling under the purview of the RTFA cannot be barred by a local zoning ordinance; MCL 286.473(1); MCL 286.474(6); “Farm” defined; MCL 286.472(a); “Farm operation” defined; MCL 286.472(b); MCL 286.472(b)(iii); Papadelis v. City of Troy; Sanctions for filing a vexatious appeal; MCR 7.216(C)(1); Bonkowski v. Allstate Ins. Co.
Holding that the trial court did not err when it determined that defendants failed to establish that the RTFA protected their storage and use of the vehicles and equipment on the property at issue, the court affirmed. The trial court enjoined defendants from using the property in violation of plaintiff’s zoning ordinances. On appeal, the court rejected their argument that the trial court erred by finding that they had not proven that they used and stored their vehicles and equipment in the operation of a farm within the meaning of the RTFA, and that it should have found that their storage and use of the vehicles and equipment complied with accepted agricultural practices. “On the basis of the evidence that ‘trucks regularly came and went from the property’ and that the property was used to store ‘drag lines, gravel haulers, bull dozers, road graders, semi-truck trailers, and pay loaders’ as well as ‘piles of dirt, steel, and asphalt millings,’” the trial court found defendants “were actually engaged in a gravel hauling” operation and not a tree farm operation, and its findings were “fully supported by the record evidence.” The trial court did not err by finding that they “did not engage in the activities about which [plaintiff] complained as part of a farm or farm operation. It follows then that it did not err when it determined that the [RTFA] did not preempt [plaintiff’s] zoning ordinances.” Moreover, “because the trial court did not err when it determined that [defendants] failed to establish the first element of their defense under the [RTFA], it did not err when it declined to consider the second element.” Finally, the court declined to consider plaintiff’s request for sanctions for filing a vexatious proceeding.
Whether defendant intended to sell the properties via an auction with reserve; Auction defined; “Auction without reserve” (also called an “absolute auction”) defined; Distinction between auctions with & without reserve; Rose v. National Auction Group, Inc.; J & L Inv. Co., LLC v. Department of Natural Res.; Kleiman v. Board of Cnty. Rd. Comm’rs for Wayne Cnty.; Kutshe v. Ford; Contract interpretation; Wilkie v. Auto-Owners Ins. Co.; Intent; Quality Prod. & Concepts Co. v. Nagel Precision, Inc.; Northline Excavating, Inc. v. Livingston Cnty.; Contract formation; Hess v. Cannon Twp.; Hall v. Small; MCL 566.106; MCL 566.108; “Meeting of the minds”; Kamalnath v. Mercy Mem’l Hosp. Corp.; Vulic v. Department of Treasury; The Seller Disclosure Act (MCL 565.951 et seq.); MCL 565.964
The court held that although “defendant’s method of collecting offers might bear some semblance to an auction with reserve, the trial court could not read into the contract a term providing for an auction where” there was none. Also, without any proof in the documents that the parties participated in an auction, plaintiff could not move beyond defendant’s summary disposition motion by simply stating that the parties contemplated an auction. The court further agreed with the trial court that no binding contract was formed. Defendant sent out invitations to bid on parcels of “real property to several recipients. One of only two bids received in response was from plaintiff, which offered to pay the highest” purchase price. However, because plaintiff’s bid was accompanied by several conditions, defendant did not accept it. “Instead, defendant sent its prospective purchasers a uniform purchase agreement form, which plaintiff did not complete. Instead, plaintiff waived the conditions it had previously attached to its initial offer, and informed defendant that it considered its offer to have been accepted.” It then sued for “specific performance of a contract for sale of the properties and to quiet title, arguing that defendant had conducted an auction with reserve and that plaintiff’s offer—as the highest bid—was automatically accepted when defendant was no longer accepting new bids.” Plaintiff contended on appeal that the trial court erred in ruling that defendant did not intend to sell the properties via an auction with reserve. It was true that “defendant set a minimum price at which it would accept offers (bids) for purchase. To some small degree,” this lent itself to plaintiff’s theory. However, without any indication in any of the documents that “defendant intended to conduct an auction of any kind,” plaintiff’s theory rested on this single fact. Plaintiff supported its theory by noting that the letter contained the word “bid.” But the situation here was “distinguishable from a sale via auction, in which ‘it is possible for the seller to make an operative offer to sell and thus, caused each bid to be an acceptance of the offer.’” There was no indication in any of the documents the parties exchanged “that defendant intended to conduct an auction, with reserve or otherwise.” Affirmed.
Failure to preserve potentially exculpatory evidence; Bad faith; Arizona v. Youngblood; People v. Anstey; People v. Dickinson; People v. Jones; People v. Johnson; People v. Petrella
The court held that neither the police nor the prosecution intentionally destroyed exculpatory evidence, and that defendant failed to show the evidence would have even been exculpatory. He was convicted of assault of a prison employee for spitting in the face of an officer as he made his rounds. The trial court sentenced him as a third offense habitual offender to 2 to 10 years, to be served consecutively with his prior active sentences and with no credit for time served. On appeal, the court rejected his argument that his case should have been dismissed because video footage of the hours immediately before the incident was not presented to the parties and was destroyed before it was ever requested, although it allegedly contained potentially exculpatory evidence. “[T]he evidence indicated that the video footage of the hours immediately preceding the incident was destroyed only because the system used by the [prison] automatically erased it in accordance with the prison’s video retention period.” From the facts, it appeared that “neither the police nor the prosecution intentionally destroyed the video footage, let alone in bad faith.” Moreover, defendant failed to show that “footage of the hours preceding the incident would have been exculpatory.” The court noted that a defendant generally has to offer more than his or her own account to make a sufficient showing the evidence sought is exculpatory. “Regardless, the footage of the four hours leading up to the incident would not have exonerated defendant because it would not have belied the evidence that defendant spat at” the officer. Affirmed.
Petition for coram nobis; Blanton v. United States; Chaidez v. United States; United States v. Morgan; United States v. Denedo; Pilla v. United States; Daniels v. United States; Qualifying civil disability; United States v. Waters; United States v. Bush (7th Cir.); United States v. Keane (7th Cir.); United States v. Craig (7th Cir.); Whether a conviction based on perjured testimony constitutes a “fundamental error” for purposes of coram nobis; Burks v. Egeler; Mooney v. Holohan; Stumf v. Robinson; Giglio v. United States; Napue v. Illinois; Failure to disclose exculpatory evidence; Brady v. Maryland; Strickler v. Greene; United States v. Clark; Easley v. Cromartie; United States v. U.S. Gypsum Co.
[This appeal was from the ED-MI.] The court affirmed the district court’s denial of defendant-Castano’s petition for coram nobis where he failed to show a fundamental error that would justify this extraordinary remedy. Castano sought to collaterally attack his 2006 conviction for being a felon in possession so that it would not be used to enhance his impending sentence for his 2015 convictions of suborning perjury and obstructing justice regarding his 2006 trial. The court held that his petition must be denied because he had not shown fundamental error that would justify this extraordinary remedy. It rejected his claim that he was entitled to the writ because he was convicted based on perjured testimony because the court had already held in Burks that “perjured testimony, without government knowledge, does not rise to the level of fundamental error correctible in a coram nobis proceeding . . . .” Castano failed to specifically allege that the government knew about the perjury except as to one witness and he did not offer any concrete evidence of deliberate deception. His claim that the government failed to disclose exculpatory evidence under Brady failed where the government either did not have the evidence, Castano was aware of the “essential facts” he sought, or the evidence was immaterial or simply cumulative.
Motion to modify custody & parenting time; MCL 722.27(1)(c); Shade v. Wright; Vodvarka v. Grasmeyer; Gerstenschlager v. Gerstenschlager; Corporan v. Henton; MCR 3.210(C)(8)
The court affirmed the trial court’s order denying defendant-father’s motion for sole legal custody of the parties’ child and for modification of plaintiff-mother’s parenting time, holding that he did not meet the threshold of showing proper cause or a change of circumstances (COC). He argued that the trial court did not comply with MCR 3.210(C)(8) before denying his motion, and that he established proper cause or a COC sufficient to warrant a best interest hearing. The court held that even if the trial court erred when it reviewed his motion to modify custody and parenting time as a motion for reconsideration, any error was harmless. Although his motion “sought sole legal custody and a restriction on plaintiff’s parenting time, the factual underpinnings for the requested relief were essentially the same as they had been for several earlier motions.” There was no merit to his claim that MCR 3.210(C)(8) was violated. Under this rule, “the trial court was to determine by ‘requiring an offer of proof or otherwise’ whether there were contested factual issues that must be resolved through an evidentiary hearing in order for the court to make an informed decision on the motion.” The court found that the trial court properly exercised its discretion when it held that “no hearing was required to determine the factual issue claimed in defendant’s motion pertaining to the child’s bug bites and skin issues, and that the newly asserted ‘facts,’ if proved, would not constitute proper cause or” a COC warranting a custody change. Defendant raised an unsubstantiated claim that plaintiff’s house was the source of the bug bites and skin issues. But there was no serious dispute as to “the condition of plaintiff’s home; it had repeatedly been cleared as the source of bugs and scabies by professional pest exterminators, as well as by Child Protective Services.” He also made “an unsubstantiated allegation of smoking in front of the child and that the child had been hit with a belt but no markings substantiated the assertion. There was an allegation of noninvolvement in schooling, but even if true this claim would not establish that a change from joint legal custody to sole legal custody would ‘have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.’” Thus, he failed to meet the threshold of showing proper cause or a COC warranted a change in custody. As to parenting time, the trial court also did not err in its implicit conclusion that defendant failed to meet the lower threshold necessary for a hearing.
Slip & fall in an apartment complex parking lot; Premises liability; A tenant as an invitee; Benton v. Dart Props., Inc.; Open & obvious danger; Lugo v. Ameritech Corp., Inc.; Special aspects; Hoffner v. Lanctoe; “Effectively unavoidable”; Whether plaintiff was compelled or required to confront the snow & ice condition in the parking lot; Bullard v. Oakwood Annapolis Hosp.; Corey v. Davenport Coll. of Bus.; Joyce v. Rubin; Claim for breach of the statutory duty under MCL 554.139(1)(a); Allison v. AEW Capital Mgmt., LLP
On remand from the Supreme Court, the court concluded that plaintiff failed to show the snow and ice condition of defendant’s apartment complex parking lot was effectively unavoidable and thus, defendant was entitled to summary disposition on his premises liability claim. It also held that defendant was entitled to summary disposition on plaintiff’s MCL 554.139(1)(a) claim because there was no genuine issue of material fact that the statute was not violated. Thus, it reversed the denial of defendant’s summary disposition motion and remanded for entry of summary disposition for defendant. Plaintiff slipped and fell in the parking lot in February. While he asserted the snow and ice condition was effectively unavoidable, defendant argued he was not compelled or required to confront it. The court agreed with defendant, noting case precedent rejecting “similar claims where a plaintiff chose to confront a hazard although there were other alternatives, including taking another route or simply choosing not to confront the hazard.” The condition of the parking lot “clearly presented the potential risk of slipping and falling and yet plaintiff proceeded to confront the potentially dangerous condition.” He had went to defendant’s main office days earlier to complain about the parking lot’s condition, and testified he saw the snow and ice before he fell. He could not recall “having any compelling reason to leave his apartment” that day. The court concluded that he “could have chosen to stay home and to make the trip at another time, as he had occasionally done earlier that winter.” While he argued that he would effectively be “trapped” in his apartment, “he was not similarly situated to the customer trapped in the store in the Lugo example of an effectively unavoidable condition; rather, plaintiff could have waited in his own home for the condition to abate.” As to the statutory claim, he admitted that “he was never prevented from exiting or entering the parking lot, that he could park his car in the lot, and that he was never prevented from accessing his vehicle, although he had to ‘dig out’ a few times.” The court found that the lot’s maintenance “was sufficient to satisfy the statutory requirement.”
Economic benefits from the payment of an insurance premium; Split-dollar life insurance regulations (26 CFR § 1.61-22); Brooks v. United States; Bingler v. Johnson; Commissioner v. South TX Lumber Co.; The interplay of the split-dollar life insurance regulations & Subchapter S (26 USC § 1361 et seq.); Corporation distribution of shareholder property; 26 CFR § 1.301-1(q)(1)(i)
In an issue of first impression, the court applied tax regulation § 1.301-1(q)(1)(i) regarding the economic benefits provided to shareholder-employees under a compensatory arrangement and held that the economic benefits a shareholder receives from a split-dollar arrangement must be treated as a shareholder distribution. Machacek Inc. is an S corporation. It deducted the $100,000 premium for plaintiff-John Machacek’s life insurance policy, and he and his wife did not include that amount or the economic benefits flowing from the increase in value of the life insurance policy in their individual income. The Commissioner argued that the economic benefits should be treated as individual income, and the Tax Court ruled in the Commissioner’s favor. The case involved the interplay of Subchapter S and the split-dollar regulations. Those regulations make no reference to an S corporation. However, the regulation governing a corporation’s distribution to its shareholders as to their stock, § 1.301, does address “the treatment of economic benefits flowing from split-dollar life insurance arrangements.” Section 1.301-1(q)(1)(i) “states that ‘the provision by a corporation to its shareholder pursuant to a split-dollar life insurance arrangement, as defined in § 1.61-22(b)(1) or (2), of economic benefits described in § 1.61-22(d) . . . is treated as a distribution of property.’” Significantly, neither party cited this regulation in the Tax Court. The court found that “Section 1.301-1(q)(1)(i) is dispositive and renders irrelevant whether John Machacek received the economic benefits through a compensatory or shareholder split-dollar arrangement.” It determined that the “Tax Court erred by relying on the compensatory nature of John Machacek’s split-dollar arrangement to conclude that the economic benefits were not distributions of property to a shareholder.” Thus, the court reversed the Tax Court as to the treatment of the economic benefits flowing from the corporation’s payment of the premium, and remanded.
Termination under §§ 19b(3)(b)(i), (b)(ii), (j), (k)(ii), & (k)(ix); In re BZ; Children’s best interests; In re Olive/Metts Minors; In re Jones; In re LE; Respondent-father - Jurisdiction over the children; MCL 712A.2(b); In re SLH; People v. Cross; MCL 712A.2(b)(1) & (2); The doctrine of anticipatory neglect; In re AH
The court held that the trial court properly terminated both respondents-parents’ parental rights to the children where the statutory grounds for termination were established by clear and convincing evidence and it was in their best interests. Respondent-father argued that there was no credible evidence that he sexually assaulted his stepdaughter, DB or that his biological children, ZG and RG, were at risk of being sexually abused. However, he ignored that DB testified in great detail to the sexual assault, including that the father “bound her hands and feet, placed a rolled-up sock in her mouth, and then penetrated her. The trial court found DB’s testimony to be credible.” The court “gives deference to the special ability of the trial court to judge the credibility of the witnesses.” Physical evidence in the home also corroborated her testimony. DB’s sexual abuse was relevant and probative to whether ZG and RG would be at risk of harm if returned to the father’s care. Also, evidence showed that his sexual abuse of DB was part of a pattern of inappropriate sexual misconduct. There was clear and convincing evidence that he, in the past, had sexually assaulted at least one other stepdaughter. The father’s misconduct with other children was probative of how he may treat his own children. Despite the credible evidence that he physically and sexually abused DB, he failed to take responsibility for any of his actions. “His lack of insight into the nature of his conduct would place all of the children, not just his stepdaughter, at risk of harm if returned to his care.” For these reasons, the trial court did not clearly err when it found clear and convincing evidence to terminate his parental rights under §§ (b)(i), (j), (k)(ii), and (k)(ix). As to respondent-mother, the evidence was overwhelming that she knew or should have known that the father posed a risk of harm to DB (her teenage daughter). There was overwhelming evidence that she was sexually abused by him, that the mother had an opportunity to protect the child from the assault yet failed to do so, and that all of the children would be at risk of harm if returned to the mother’s care. Affirmed.
Child's best interests; MCL 712A.19b(5); In re Moss Minors; In re Olive/Metts Minors; In re Frey; Relative placement; In re Mason
The court held that the trial court properly terminated respondent-father’s parental rights to the child where at least one statutory ground for termination existed and it was in the child’s best interests. On appeal, the court rejected his argument that the trial court erred in finding a statutory ground was established by clear and convincing evidence, finding the issue was waived because his counsel conceded that a statutory ground had been proven. It also rejected his claim that the trial court erred in finding that termination of his parental rights was in the child’s best interests. “The trial court based its best-interest decision on the relationship between the child and his grandparents, with whom the child was residing, and [its] finding that the grandparents’ home provided the child with stability and permanence.” It also “specifically considered the child’s best interests in recognition of the fact that his placement with relatives weighed against termination.” The court noted that the trial court’s “decision to terminate respondent’s parental rights in lieu of pursuing a guardianship [wa]s supported by the caseworker’s testimony discussing the more unsettled nature of a guardianship, particularly in recognition of the child’s age and the possible ramifications of future challenges to a guardianship.” The trial court also “observed that respondent’s continued incarceration itself brought a measure of instability for the child.” Lastly, the trial court “observed that respondent’s parents were committed to ensuring that the child would continue to have a relationship with respondent, as well as with the child’s mother, as long as it was safe to do so.” Affirmed.
Termination under §§ 19b(3)(g), (h), & (j); In re LE; In re Mason; Child’s best interests; MCL 712A.19b(5); In re Frey; In re AH
Holding that termination was proper under §§ (g), (h), and (j), and that the trial court did not err in finding it was in the child’s best interests, the court affirmed the order terminating respondent-father’s parental rights. Respondent had not established paternity by the time the child was placed in protective care, and “left the child in the care of his drug-addicted mother, who was without income or housing and who left the child without appropriate supervision.” The fact that he failed to establish paternity until the child was nearly five years old further showed his lack of commitment to him. His contention that he did not become the legal father until after the case had started did not weigh in his favor. “Even when respondent, as a ‘mere putative father,’ did not yet have a legal duty to care for the child, as the biological father he had a moral duty to support him, or at a minimum, plan for his safety.” Respondent’s lack of employment or suitable housing, “engagement in criminality, and extensive drug activity before establishing paternity” also supported termination under § (g). As to § (h), he was to be incarcerated for more than two years and had “not provided for the child’s care and custody.” There was no evidence that he “made viable efforts to care for the child during the time when he would be incarcerated.” Finally, termination was also proper under § (j) because his criminal lifestyle and substance abuse “would put the child at risk of harm. Respondent’s propensity toward criminality was so ingrained that he even got involved in new criminal activity while on probation.” As to the child’s best interests, he was thriving in his foster home and had not asked about respondent since very early in the case, showing a lack of bond between them. The court concluded that it was “in the child’s best interests to continue in a structured, stable environment and to achieve permanence rather than to pursue a relationship with respondent, who has a poor track record.”
Termination under §§ 19b(3)(c)(i) & (g); In re JK; Reasonable reunification efforts; In re Newman; Child’s best interests; MCL 712A.19b(5); In re Olive/Metts Minors; In re Moss Minors
Holding that §§ (c)(i) and (g) supported termination and that it was in the child’s best interests, the court affirmed the order terminating respondent-father’s parental rights. He had a long criminal history and a history of prior terminations at the time of the adjudication. By the time of the permanent custody hearing he had not shown parental fitness or “that he could maintain a drug-free lifestyle.” He only submitted 14 of 85 requested drug screens. He tested positive for marijuana and alcohol. He only partially complied with the treatment plan. He began counseling but never finished it, and while he eventually completed parenting classes, there was no indication he benefited from them, “particularly since he did not visit the child regularly.” The evidence revealed that he missed 49 of 111 visits because he was incarcerated, ill, or had work conflicts. “He spent nearly three months incarcerated after three arrests for domestic violence, assault, and driving on a suspended license. His multiple arrests and decision to spend time incarcerated rather than pay bond so he could get out of jail, work on his treatment plan, or visit his child showed that reunification” was not his priority. His housing situation was also questionable. While he asserted that the DHHS did not make reasonable reunification efforts, the record showed that “caseworkers made multiple referrals and respondent failed to follow through with services and visits.” The court noted that the DHHS “is not required to offer every conceivable service before termination of parental rights may be ordered.” As to the child’s best interests, he had been in foster care since birth and his foster parents were interested in adopting him. Given all the missed visits and that respondent had never been his caregiver, there was no strong bond between them. The court noted that respondent had a closed head injury affecting his short-term memory, and had “never obtained the medical clearances requested to demonstrate that he could safely parent the child.”