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Attorneys (1) Full Text Opinion This summary also appears under Litigation e-Journal #: 78280 Case: Reim v. Mt. Pleasant Abstract & Title, Inc. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly, Borrello, and Cameron Issues: Motion for interpleader; Standing to challenge an attorney charging lien; Souden v Souden; Mt. Pleasant Abstract & Title, Inc. (MPAT) Summary: Finding no errors warranting reversal, the court affirmed the trial court’s final order granting in part and denying in part defendant-MPAT’s motion for interpleader. It held that plaintiff lacked standing to assert claims against defendant-Hickey-Niezgoda as to the attorney charging lien The case arose out of a previously-litigated land contract dispute. Plaintiff raised “no fewer than 11 issues on appeal,” but in the court’s view, the only relevant question in the case was whether plaintiff had standing to assert claims against Hickey-Niezgoda as to the attorney charging lien. The court agreed with the trial court that plaintiff lacked standing to challenge the lien. Plaintiff argued that “Souden stands broadly for the proposition that third parties have standing to challenge litigants who seek equitable remedies and, more specifically, that third parties may challenge an attorney charging lien. In our view, it stands for neither proposition.” The court rejected “plaintiff’s characterization that Souden allows a third party, such as himself, to challenge the propriety of an attorney charging lien, and we are not aware of any other authority supporting plaintiff’s position.” Plaintiff failed to perfect service of the complaint on defendant-Monroe, “the only party with whom he had a potentially meritorious claim. Plaintiff’s attempts to circumvent this error by asserting claims against Hickey-Niezgoda, with whom he has no relationship, are unfounded.” There was “no actual controversy between plaintiff and Hickey-Niezgoda, and plaintiff lacks standing to challenge her lien against the escrow funds. Thus, the trial court did not err when it granted Hickey-Niezgoda’s motion to set aside the default and motion for summary disposition.” Full Text Opinion

Criminal Law (1) Full Text Opinion e-Journal #: 78301 Case: People v. Dufek Court: Michigan Supreme Court ( Order ) Judges: McCormack, Viviano, Bernstein, Clement, Cavanagh, and Welch; Not Participating – Zahra Issues: Ineffective assistance of counsel; Strickland v Washington; Prejudice; People v Trakhtenberg Summary: In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 77223 in the 4/15/22 edition) and remanded to that court for reconsideration of defendant’s ineffective assistance of counsel claim. It concluded the Court of Appeals “cited the correct standard for assessing prejudice under Strickland” but failed to apply this standard. The court noted that prejudice is demonstrated “where a defendant shows that ‘but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.’” On appeal, defendant contended “his trial counsel was ineffective for asking his ex-wife whether she was aware of any other allegations that the defendant had molested a child. In response, the witness said she had learned from the defendant’s sister that he had molested her when they were children. The Court of Appeals agreed with the defendant that his counsel was objectively unreasonable for opening the door to other-acts evidence. But it held that he was not prejudiced by the error.” The court found that the Court of Appeals “made a critical error. It concluded that because the victim’s testimony was ‘sufficient to convict defendant,’ he was not prejudiced by the admission of other-acts evidence. . . . Sufficient evidence to convict does not obviate the need to make a prejudice determination. Rather,” as the U.S. Supreme “Court noted in Strickland, a prejudice analysis requires determining how the error affected other evidence properly presented.” The court directed the Court of Appeals on remand to resolve defendant’s ineffective assistance of counsel claims “under the correct standard, evaluating the interaction of the improper other-acts evidence with the other evidence presented at trial.” Further, as that issue logically connected to his cumulative error claim, this “claim should also be addressed on remand, if necessary.” Full Text Opinion

Family Law (1) Full Text Opinion e-Journal #: 78286 Case: Wallace v. Colwell Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Swartzle, Cavanagh, and Redford Issues: Divorce; Custody; Proper cause & a change of circumstances (COC); Vodvarka v Grasmeyer; Burden of proof; Lieberman v Orr; Best-interest findings; MCL 722.23; Change of school Summary: Finding no error requiring reversal, the court affirmed the trial court’s “order declining to modify its previous custody ruling, modifying the parties’ parenting time, and denying” plaintiff-mother’s request to change the children’s (MC and AC) schools. Plaintiff first argued the trial court erred by finding that defendant-father established proper cause and a COC permitting reconsideration of the custody arrangement. The trial court found both proper cause and a COC “because of the children’s long morning commute from plaintiff’s home in New Baltimore to their schools in Rochester. Although plaintiff disputed the length of the commute, defendant asserted that it took approximately an hour to travel from New Baltimore to Rochester. The distance meant that the children would have to wake up substantially earlier to travel to school from plaintiff’s home than they would have been required to do when plaintiff resided in Rochester. Under the then-existing custody order, this disruption in the children’s schedules would affect the majority of their school mornings.” The court held that considering “MC’s and AC’s ages—then 13 and 11, respectively—the reduced sleep and attendant fatigue presented a risk to their academic performance, thereby implicating best-interest factor (h) (home, school, and community record), MCL 722.23(h), at minimum.” Although plaintiff believed that her move “was a normal life change that did not significantly affect the children’s well-being, we are unpersuaded that the trial court’s contrary opinion was against the great weight of the evidence in light of the deference the trial court’s finding is afforded on appeal. The record before the trial court at the time of its decision did not clearly preponderate in the opposite direction.” Also, the trial court did not err by holding that “the new parenting-time schedule left the children’s joint custodial environments intact.” Thus, its determination “that defendant’s proofs did not rise to the level of clear and convincing evidence did not render its decision legally erroneous. The burden of proving that the change served the children’s best interests remained with defendant and that burden was by a preponderance of the evidence.” Further, the court rejected plaintiff’s arguments as to the trial court’s best-interest findings and concluded that the findings were not against the great weight of the evidence. Finally, the court held that viewed in the context of its “detailed analysis of the best-interest factors, the [trial] court did not err by declining to provide a duplicative assessment of the statutory factors focused only on the proposed change of schools.” Full Text Opinion

Litigation (1) Full Text Opinion This summary also appears under Attorneys e-Journal #: 78280 Case: Reim v. Mt. Pleasant Abstract & Title, Inc. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly, Borrello, and Cameron Issues: Motion for interpleader; Standing to challenge an attorney charging lien; Souden v Souden; Mt. Pleasant Abstract & Title, Inc. (MPAT) Summary: Finding no errors warranting reversal, the court affirmed the trial court’s final order granting in part and denying in part defendant-MPAT’s motion for interpleader. It held that plaintiff lacked standing to assert claims against defendant-Hickey-Niezgoda as to the attorney charging lien The case arose out of a previously-litigated land contract dispute. Plaintiff raised “no fewer than 11 issues on appeal,” but in the court’s view, the only relevant question in the case was whether plaintiff had standing to assert claims against Hickey-Niezgoda as to the attorney charging lien. The court agreed with the trial court that plaintiff lacked standing to challenge the lien. Plaintiff argued that “Souden stands broadly for the proposition that third parties have standing to challenge litigants who seek equitable remedies and, more specifically, that third parties may challenge an attorney charging lien. In our view, it stands for neither proposition.” The court rejected “plaintiff’s characterization that Souden allows a third party, such as himself, to challenge the propriety of an attorney charging lien, and we are not aware of any other authority supporting plaintiff’s position.” Plaintiff failed to perfect service of the complaint on defendant-Monroe, “the only party with whom he had a potentially meritorious claim. Plaintiff’s attempts to circumvent this error by asserting claims against Hickey-Niezgoda, with whom he has no relationship, are unfounded.” There was “no actual controversy between plaintiff and Hickey-Niezgoda, and plaintiff lacks standing to challenge her lien against the escrow funds. Thus, the trial court did not err when it granted Hickey-Niezgoda’s motion to set aside the default and motion for summary disposition.” Full Text Opinion

Municipal (1) Full Text Opinion This summary also appears under Negligence & Intentional Tort e-Journal #: 78267 Case: Day v. Suburban Mobility Auth. For Reg’l Transp. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Ronayne Krause, Jansen, and Swartzle Issues: Negligence; Henry v Dow Chem; Duty; Case v Consumers Power Co; Rebuttable presumption of negligence under the rear-end collision statute; MCL 257.402(a); MCL 257.627(1); Vander Laan v Miedema; The “sudden emergency doctrine”; Barringer v Arnold; “Unusual”; Patzer v Bowerman-Halifax Funeral Home; The “reasonably prudent person” rule; Baker v Alt; Causation; Governmental immunity; MCL 691.1405; The motor vehicle exception; Jurisdiction; Seldon v Smart; “Final order”; MCR 7.202(6)(a)(v); Suburban Mobility Authority for Regional Transportation (SMART) Summary: The court held that the trial court did not err by denying defendant-SMART’s motion for partial summary disposition regarding governmental immunity. Plaintiff sued for injuries she sustained when defendant-bus driver (Martin) drove his SMART bus through a cloud of dust and into the rear end of a street sweeper. The trial court found there was a question of fact whether Martin had been negligent. On appeal, the court rejected plaintiff’s argument that the court lacked jurisdiction on the basis that its jurisdiction was limited to determining whether plaintiff pleaded a claim in avoidance of governmental immunity, not whether SMART may be liable for negligence. “[P]roving negligence is an intrinsic part of proving an exception to governmental immunity under the motor vehicle exception. It should not be surprising that avoiding governmental immunity requires both proper pleading and proper evidence, and a two-step process does not mean the second step is not a part of the process.” It next found that “if either the cloud or the sweeper was visible, then there is at least a question of fact for the jury whether Martin was negligent. More importantly, there can be no dispute that several presumptions of negligence apply, and the jury must consider whether those presumptions were overcome unless ‘at the very least’ there is ‘clear, positive, and credible evidence opposing the presumption.’ SMART has provided no such evidence.” To the extent the video recording of the incident was ambiguous, “its interpretation is a question for the trier of fact. To the extent the video recording is clear, it supports an inference that Martin was negligent.” Finally, it noted that “SMART has provided, at the most, plausible evidence that another tortfeasor’s negligence may have contributed to plaintiff’s injuries. Nevertheless, the evidence clearly shows a question of fact whether plaintiff’s injuries ‘resulted from’ Martin’s negligence.” Affirmed. Full Text Opinion

Negligence & Intentional Tort (1) Full Text Opinion This summary also appears under Municipal e-Journal #: 78267 Case: Day v. Suburban Mobility Auth. For Reg’l Transp. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Ronayne Krause, Jansen, and Swartzle Issues: Negligence; Henry v Dow Chem; Duty; Case v Consumers Power Co; Rebuttable presumption of negligence under the rear-end collision statute; MCL 257.402(a); MCL 257.627(1); Vander Laan v Miedema; The “sudden emergency doctrine”; Barringer v Arnold; “Unusual”; Patzer v Bowerman-Halifax Funeral Home; The “reasonably prudent person” rule; Baker v Alt; Causation; Governmental immunity; MCL 691.1405; The motor vehicle exception; Jurisdiction; Seldon v Smart; “Final order”; MCR 7.202(6)(a)(v); Suburban Mobility Authority for Regional Transportation (SMART) Summary: The court held that the trial court did not err by denying defendant-SMART’s motion for partial summary disposition regarding governmental immunity. Plaintiff sued for injuries she sustained when defendant-bus driver (Martin) drove his SMART bus through a cloud of dust and into the rear end of a street sweeper. The trial court found there was a question of fact whether Martin had been negligent. On appeal, the court rejected plaintiff’s argument that the court lacked jurisdiction on the basis that its jurisdiction was limited to determining whether plaintiff pleaded a claim in avoidance of governmental immunity, not whether SMART may be liable for negligence. “[P]roving negligence is an intrinsic part of proving an exception to governmental immunity under the motor vehicle exception. It should not be surprising that avoiding governmental immunity requires both proper pleading and proper evidence, and a two-step process does not mean the second step is not a part of the process.” It next found that “if either the cloud or the sweeper was visible, then there is at least a question of fact for the jury whether Martin was negligent. More importantly, there can be no dispute that several presumptions of negligence apply, and the jury must consider whether those presumptions were overcome unless ‘at the very least’ there is ‘clear, positive, and credible evidence opposing the presumption.’ SMART has provided no such evidence.” To the extent the video recording of the incident was ambiguous, “its interpretation is a question for the trier of fact. To the extent the video recording is clear, it supports an inference that Martin was negligent.” Finally, it noted that “SMART has provided, at the most, plausible evidence that another tortfeasor’s negligence may have contributed to plaintiff’s injuries. Nevertheless, the evidence clearly shows a question of fact whether plaintiff’s injuries ‘resulted from’ Martin’s negligence.” Affirmed. Full Text Opinion

Termination of Parental Rights (2) Full Text Opinion e-Journal #: 78290 Case: In re Smith Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Swartzle, Cavanagh, and Redford Issues: Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); Harmless error; Children’s best interests; In re Olive/Metts Minors; In re White Summary: While the court concluded the trial court erred in finding that § (c)(ii) was established, it held that the error was harmless because §§ (c)(i), (g), and (j) were established by clear and convincing evidence. The court further held that terminating respondent-mother’s parental rights was in the children’s best interests. Thus, it affirmed the trial court’s termination orders. The court noted that “neither the referee nor the trial court made any effort to explain what other conditions existed in this case, nor does the record independently reflect any other conditions existing at the time of termination apart from those which led to the adjudication and” thus, were covered by § (c)(i). The termination orders were entered over two years after the initial disposition “and clear and convincing evidence established that the conditions leading to the adjudication, namely respondent’s unresolved mental health issues, lack of suitable housing, and violent relationship with the father, all continued to exist at the time of termination.” As to § (g), she failed “to consistently engage with her parenting plan and complete reunification services.” She missed nearly half her scheduled parenting time visits. After the birth of her younger child, “respondent became overwhelmed during visits and would often focus solely on one of the children.” As to § (j), her “inadequate housing created a clear risk of harm if the children were returned to her care. That, in conjunction with her longstanding domestic violence issues with the father, who also lived in the home, and her significant and consistently untreated mental health issues,” supported the trial court’s finding on this factor. Turning to the children’s best interests, while the record showed she completed parenting classes, her housing remained inadequate, and her inconsistent visitation worsened as the case went on. The record also indicated she “failed to consistently take her medication and suffered from ongoing mental health issues. Further, multiple caseworkers disputed” her alleged bond with the children. The court also found that their “medical issues and specialized needs raised additional concerns” about her ability to take proper care of them. In addition, they had “lived for some time and thrived in their current foster care placement, and that family has expressed a willingness to adopt and permanently care for them.” Full Text Opinion Full Text Opinion e-Journal #: 78288 Case: In re Wicke/Armstrong Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Markey, Sawyer, and Boonstra Issues: Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j) Summary: Holding that §§ (c)(i), (c)(ii), (g), and (j) were met, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated based on a variety of factors, including her substance abuse and mental health issues, domestic violence, lack of parenting skills and truthfulness, and the fact the children were doing well in foster care. On appeal, the court first found that that each of the statutory grounds for termination were met. As to §§ (c)(i) and (ii), it found the “conditions had not been sufficiently rectified and would not be within a reasonable” time, and while there was “certainly conflicting testimony” as to whether respondent was still in an abusive relationship with the children’s father, W, “we must give deference to the trial court’s ability to judge the credibility of the witnesses.” As to §§ (g) and (j), it again could not disagree with the trial court that insufficient progress had been made and that she had had contact with W. Full Text Opinion