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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Motion to set aside a default; MCR 2.603(D); “Good cause” & a “meritorious defense”; Shawl v Spence Bros, Inc; An “account stated” claim distinguished from a breach of contract claim; Adequacy of an affidavit offered to establish a meritorious defense; Effect of a lay defendant’s lack of knowledge of the law & its consequences; Reed v Walsh
Holding that defendant-Smith failed to show either a meritorious defense or good cause, the court affirmed both the denial of his motion to set aside a default and the subsequent default judgment. Plaintiff-John Deere Financial (JDF) sued him “seeking to collect on a purported debt” under a Credit Agreement. The debt related to the repair of a piece of farm equipment. Smith asserted that it appeared from the complaint that JDF “‘pled sufficient facts to support a claim for account stated, which requires mutual assent of the parties to an account.’” He contended that his affidavit, which “averred that he had objected to and challenged the charges” giving rise to the debt, established “there was no mutual assent; therefore, a cause of action for an account stated would fail.” Thus, he argued his affidavit showed a meritorious defense. But the court’s review of the complaint revealed “there were no allegations of an assent, express or inferred, to an agreed balance or sum due. Rather, JDF fairly clearly alleged a cause of action for breach of contract, indicating that Smith had committed ‘a material breach of the [a]ccount.’” Thus, his contention “that his mere objections to and challenge of the charges at issue constituted a ‘meritorious defense’ necessarily fails.” The court also found that his “affidavit was deficient with respect to his objections.” The affidavit did not indicate “he objected to the monthly statements directly to JDF; defense counsel’s assertion at the hearing about Smith speaking to ‘Allie’ at JDF is meaningless because it was not contained in the affidavit. Furthermore, neither the affidavit nor defense counsel’s statements reflected that Smith had submitted a writing to JDF challenging the charges per the JDF process outlined in its statements.” As to JDF’s breach of contract claim, Smith stated in his affidavit that the nonparty (G) that made the equipment repair “had ‘billed twice the amount’ that was ‘originally quoted’ and that Smith was ‘never satisfied with the work that was done.’ Although these averments might constitute a ‘meritorious defense’ in an action brought by [G] against Smith, they do not form a defense, meritorious or otherwise, against JDF for breach of the Agreement.” As to good cause, the court found that the “gist of Smith’s position was lack of knowledge of the law and its consequences, which simply do not suffice to establish ‘good cause.’”
Judicial review of a Parole Board (Board) decision; In re Elias; Parole requirements; MCL 791.233(1)(a); The Board’s discretion; Factors the Board must consider; MCL 791.233e(2); MI Admin Code, R 791.7715(1); Consideration of a prisoner’s completion of recommended programs & willingness to accept responsibility for past behavior; R 791.7715(2)(b)(iii) & (d)(i); Principle that a potential parolee is evaluated under the guidelines & scored as to each guidelines category; In re Parole of Johnson; Departure from the parole guidelines for a “substantial & compelling” reason; MCL 791.233e(6); People v Young; Mental health; R 791.7716(3)(g); Qualified Mental Health Professional Evaluation (QMHP); Department of Corrections (DOC)
The court held that the trial court erred by reversing the Board’s grant of parole for appellant. In 2015, he pled nolo contendere to CSC I and II and was sentenced to 7 to 100 years and 5 to 15 years respectively. In 2021, the Board granted him parole, finding reasonable assurances existed that he would not become a menace to society or to the public safety, even though his QMHP noted concern about his willingness to take responsibility for his actions. The prosecutor successfully appealed to the trial court. On appeal, the court agreed with appellant that the Board did not abuse its discretion by granting parole, and that the trial court erred by reversing the Board’s decision because it impermissibly substituted its own judgment for that of the Board. The DOC assessed him “with a parole-guideline score that provided for a ‘high probability’ of parole.” As such, the Board was required to grant him “parole, unless there were ‘substantial and compelling reasons’ to overcome this presumption.” The court disagreed that appellant’s “failure to complete sex-offender treatment while in prison [was] a basis to overcome the statutory presumption for parole.” It noted “the Board was not required to deny parole indefinitely, or until the DOC offered a program that it had previously determined that [appellant] was ineligible to take.” Rather, it appeared “to have exercised its broad discretion by requiring the same treatment program as a condition of parole.” Finally, the court found that appellant’s refusal to take full responsibility, standing alone, did “not amount to a substantial and compelling reason to deviate from the presumption of parole.” it noted his “parole-guideline score sheet indicated that he was ‘scored -5 due to mental health factors set forth in administrative rule 791.7716, section (g).’ This negative assessment for this factor suggests that the DOC had already accounted for [his] failure to take full accountability for his criminal conduct.” Because his “failure to take full accountability was well documented, the Board had full opportunity to consider his accountability as a factor affecting parole.” By requiring “sex-offender treatment as part of his parole conditions, the Board addressed one of the concerns relied upon by the circuit court in reversing the grant of parole.” Further, the question of his “lack of accountability was factored into his overall parole-guidelines score and was among the factors the Board appears to have considered in deciding whether to grant parole. And . . . the other factors militated in favoring of granting parole.” Reversed and remanded.
Whether defendant had jurisdiction to order plaintiffs to perform corrective action at their hazardous waste facility under Part 111 of the Michigan Natural Resources & Environmental Protection Act (NREPA); MCL 324.11115a; Declaratory relief under MCR 2.605; Whether an actual controversy existed; MCR 2.605(A)(1); Distinguishing Flanders Indus, Inc v Michigan
Holding that the Court of Claims abused its discretion by finding there was no actual controversy between the parties, and improperly dismissed plaintiffs’ complaint for declaratory relief and granted defendant summary disposition, the court vacated and remanded. Defendant believed a release of hazardous materials occurred at plaintiffs’ facility, triggering corrective action under NREPA Part 111. Plaintiffs asserted there was no evidence of a release, and the contaminants found in the soil were naturally occurring. Defendant suggested corrective action in the form of a restrictive covenant limiting the use of the property to nonresidential, and to maintain a concrete slab foundation to act as an infiltration barrier. Plaintiffs contested these recommendations, and no order or consent agreement was ever entered requiring corrective action. Plaintiffs then sought a declaration that defendant lacked authority under Part 111 to impose corrective action on plaintiffs where there was no evidence of release. On appeal, the court agreed with plaintiffs that an actual controversy did exist. “There is no dispute that defendant never entered an order or consent order requiring plaintiffs to perform corrective action under MCL 324.11115a(2). Plaintiffs concede this point on appeal.” However, the “actual controversy that exists between the parties is whether defendant has jurisdiction to order plaintiffs to perform corrective action where, as alleged by plaintiffs, there is no evidence of a release of contaminants at the facility.” Plaintiffs sufficiently pled and proved facts indicating “‘an adverse interest necessitating a sharpening of the issues raised.’” Although the Court of Claims “deemed this issue hypothetical, and ‘there [] must be a present legal controversy, not one that is merely hypothetical or anticipated in the future,’ a controversy exists here because the parties have disputed corrective action for years, and a declaratory judgment is necessary for a resolution.” Flanders was distinguishable “because defendant has initiated corrective action proceedings. Defendant has directed plaintiffs to produce studies of the property and has attempted to enter a consent agreement for corrective action for years. Defendant requested that plaintiffs submit a work plan for corrective action in 2016. For unknown reasons, defendant has not entered a formal order. Plaintiffs, therefore, are in need of declaratory relief and a determination of this case on the merits.”
Joint legal custody; MCL 722.26a(1) & (7)(b); Modification; MCL 722.27(1)(c); Proper cause or a change of circumstances; Dailey v Kloenhamer; The statutory best-interest factors (MCL 722.23); Factors (b), (c), & (l); Grant of the exclusive right to one parent to make medical appointments & medical decisions for the parties’ child; Parenting time; Rains v Rains
Holding that the trial court did not abuse its discretion, the court affirmed the trial court’s order granting plaintiff-mother “the exclusive right to make medical appointments and medical decisions for the parties’” child (W) but maintaining their joint legal custody and defendant-father’s parenting time. As to the trial court’s legal custody ruling, plaintiff challenged its findings on best-interest factors (b), (c), and (l). She asserted as to (b) that the trial court failed to consider “the fact that defendant blames plaintiff for his own failure to be involved” in W’s schooling. But “the person on whom defendant places blame for his actions is irrelevant when considering his capacity to assist [W] with his schoolwork. The trial court considered defendant’s lesser involvement by concluding this factor weighed slightly in favor of plaintiff, in light of the parties’ equivalence on the other elements of this factor, such as love, affection, and guidance.” As to (c), the trial court found this factor weighed plaintiff’s favor due to her “diligent pursuit of [W’s] medical treatments and defendant’s unreasonable demands” about medical appointments. The trial court further “noted it appeared defendant’s actions, at least concerning recording [W’s] appointments, were designed to ‘intimidate, control, and harass’ plaintiff. The trial court considered defendant’s problematic behavior when evaluating this factor, through its analysis under” factor (l), which it also found weighed in plaintiff’s favor. It “noted various factors were neutral and determined the evidence supported a finding that [W] received love, affection, and guidance from defendant. The record does not indicate [W] does not love defendant or enjoy his time with” him. In addition, the trial court was able to consider W’s preferences. While it appeared “defendant was being difficult, sometimes to the detriment of [W], the carve-outs the trial court made in its order of granting plaintiff sole decision-making authority for medical appointments and treatment, and permitting each parent to choose extracurricular activities for [W] when [W] is in their care, specifically addressed these problems without disrupting defendant’s relationship with” W. As to parenting time, the trial court could not modify it based solely on “plaintiff’s unsupported assertion that the change would permit [W] to spend more time with defendant.”
Dispute over the scope of an express easement; A grantee’s rights under an easement; Blackhawk Dev Corp v Village of Dexter; Riparian rights in the context of an easement; Dyball v Lennox; “Dock”
The court held that the plain and unambiguous language of the easement at issue allows defendants to moor a boat to the dock and to do so indefinitely during the boating season. Consideration of extrinsic evidence would lead to the same result. Plaintiffs sued defendants alleging a claim for declaratory relief, a cause of action for trespass, and a request to quiet title in plaintiffs’ favor. Defendants filed a counterclaim for declaratory relief. The relevant issue on appeal was whether defendants had the right to indefinitely moor their boat to a dock installed by defendants. The trial court did not expressly state whether mooring the boat could be indefinite, but rather, ruled that the easement allowed defendants “to moor a boat at the dock.” On appeal, the court inferred from the trial court’s ruling that it found “there were no time parameters relative to defendants’ right to moor a boat to the dock, considering that [it] placed no temporal restrictions on mooring a boat.” The court first noted that “mooring a boat to a dock is necessary and incident to the reasonable and proper enjoyment of an easement that allows a grantee to install and maintain a dock.” It next found that, as to whether the boat can be moored to the dock indefinitely, there was “no express language restricting or limiting the usage.” The easement “does not contain any temporal limitation or restriction with respect to the use of the dock. And the silence, rather than creating an ambiguity or demonstrating no intent to allow permanent or indefinite use, plainly and unambiguously establishes that the intent was to allow indefinite use of the dock by defendants, which includes mooring a boat.” Indeed, the easement “employs express limiting language when indicating that the grantees may only park ‘temporarily’ upon the easement, but no comparable language was used in describing the right to maintain a dock—with the incidental right to moor a boat to the dock.” Finally, were there “an actual dispute between defendants and the other easement holders, perhaps defendants’ dock and mooring rights could be restricted, but this is not the issue or situation before us.” Affirmed.
Petition to take jurisdiction; Notice of the preliminary hearing; MCR 2.004(F); Adjournment to secure a respondent’s presence; MCR 3.965(B)(1); Assignment of counsel for the hearing; MCR 3.915
Holding that any error by the trial court in proceeding without respondent-mother at the 1/18/22 preliminary hearing (which it adjourned) or in failing to appoint her counsel at that time was harmless, the court affirmed the order authorizing the petition as to her children. The January hearing was adjourned to secure respondent’s presence, although it was not adjourned immediately because the DHHS sought “an interim placement order pending resumption of the Preliminary Hearing” and presented a witness. The trial court “ordered that the children be removed and placed with the” DHHS, while emphasizing “the hearing was not ‘complete’” given that respondent was not present. The hearing resumed on 2/8/22. Respondent participated in this “hearing and was represented by an attorney. At the conclusion of the hearing, [she] waived probable cause and did not object to the petition being authorized. The trial court then found probable cause to believe that one or more of the allegations in the petition was true and authorized the petition. Thus, [it] did not make any relevant findings until the” February hearing at which she “was present and represented by counsel.” The court added that, to the extent she asserted “it was error for the trial court to remove the children and suspend her parenting time following the” January hearing, she did not contest the trial “court’s decision to do so following the February 8 hearing. It follows that even if the trial court erred by removing the children and suspending [her] parenting time following the January” hearing, the court could not grant her any appellate relief.
Termination under § 19b(3)(c)(i); In re White; Reasonable reunification efforts; In re Hicks/Brown; In re Frey; Child’s best interests; In re Olive/Metts Minors
Holding that § (c)(i) was established, that reasonable reunification efforts were made, and that termination was in the child’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. The “182-day statutory period was satisfied.” Among the conditions listed in the petition were her “arrests, the child’s truancy, respondent’s mental health, respondent’s lack of employment, and respondent’s homelessness.” While the DHHS referred her “to a psychiatric evaluation, mental-health counseling, parenting mentorship, and Section 8 housing, respondent consistently refused to engage in those services and she actively dropped out of the mentorship program. Respondent even admitted that she stopped talking to her providers, she did not engage with her psychiatric assessment, and she remained unemployed.” The court concluded that while she “received housing days before the termination hearing, and she had started taking medication prescribed by her family physician, respondent’s barriers to reunification remained unchanged.” In light of her “inconsistent engagement with the services she was provided,” the court “was not left with a definite and firm conviction that a mistake” was made. As to the child’s best interests, her “well-being while in the care of her foster families, as contrasted to her well-being while in the care of respondent, demonstrated that termination and adoption were in her best interests.” She missed several days of school while she was in respondent’s care but “was doing well in school while in the care of the foster family. The child also completed psychological evaluations while with her foster family. Respondent’s lack of parenting ability, and her unwillingness to take consistent steps to demonstrate that there would be finality to her housing instability, mental-health issues, and unemployment,” showed that it was in the child’s best interests to terminate respondent’s parental rights.