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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 seven Michigan Court of Appeals published opinions under Corrections, Criminal Law, Election Law, Freedom of Information Act, Municipal, Negligence & Intentional Tort, Probate, and Wills & Trusts


Cases appear under the following practice areas:

  • Corrections (1)

    Full Text Opinion

    e-Journal #: 76653
    Case: Threet v. Department of Corr.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Cameron, Rick, and O’Brien
    Issues:

    Whether respondents had a clear legal duty to apply special good time credits to petitioner’s assault with the intent to murder (AWIM) sentence; MCL 800.33(11); “Computed” & “accumulated”; Concurrent sentencing; Department of Corrections (DOC)

    Summary:

    The court concluded that the trial court did not err by holding that respondents had a clear legal duty to apply special good time credits to petitioner’s AWIM sentence. Also, the act of applying the credits was ministerial in nature. Thus, the trial court did not abuse its discretion by issuing the writ of mandamus. Respondents (DOC and the DOC’s Time Computation Unit manager) argued that the trial court erred by holding that “they had a clear legal duty to apply the special good time credits to the maximum AWIM sentence because doing so violates MCL 800.33(11).” Respondents argued that “MCL 800.33(11) does not permit the DOC to apply special good time credits to petitioner’s AWIM sentence because these credits can only be applied to a prisoner’s longest concurrent sentence. Thus, respondents argue that good time credits only apply to one concurrent sentence.” However, the court noted that “the plain language of MCL 800.33(11) does not prohibit the DOC from applying good time credits to other concurrent sentences.” It determined that “respondents’ construction of the statute conflates the term ‘computed’ with ‘applied’ a term that does not appear in the statute.” Thus, it determined that “the good time credits earned on the longest concurrent sentence must be applied to the other concurrent sentence or sentences, so long as it is permitted by law.” It found that its conclusion was “entirely consistent with the proper operation of concurrent sentencing.” Petitioner was sentenced to 66 years and 8 months to 100 years for AWIM, to life imprisonment for kidnapping, and to 2 years for felony-firearm. “The felony-firearm sentence was to be served before the other two sentences, which were concurrent.” Thus, after he “served his felony-firearm sentence, petitioner began serving his sentences for AWIM and kidnapping. Because those sentences were concurrent and because petitioner was no longer serving a consecutive sentence, respondents had a clear legal duty under MCL 800.33(11) to calculate credits on the basis of the kidnapping sentence and to apply the credits to both concurrent sentences.” Affirmed.

    Full Text Opinion

  • Criminal Law (2)

    Full Text Opinion

    e-Journal #: 76650
    Case: People v. Isrow
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam – Sawyer, Riordan, and Redford
    Issues:

    Sufficiency of the evidence; Fourth-degree child abuse; Specific-intent or general-intent; People v Maynor; Prosecutorial misconduct; Witness credibility; Ineffective assistance of counsel; Failure to object to the prosecutor’s statement during closing arguments

    Summary:

    The court held that there was sufficient evidence to support defendant’s conviction of fourth-degree child abuse. Also, the prosecutor did not engage in misconduct as to witness credibility. Finally, he was not denied the effective assistance of counsel. He was convicted of assault with intent to commit CSC involving sexual penetration, interfering with a crime report, interference with electronic communications, domestic violence, second offense, and fourth-degree child abuse. Defendant argued “there was insufficient evidence for the jury to find him guilty of fourth-degree child abuse because the offense is a specific-intent crime and he did not intend to harm his daughter when he threw the keys.” The court held that the “phrase ‘knowingly or intentionally’ modifies the phrase ‘commits an act,’ not the phrase ‘poses an unreasonable risk of harm or injury to a child.’ No mental state modifies the phrase ‘poses an unreasonable risk of harm or injury to a child.’” This grammatical structure mirrors that of the second-degree child abuse statute. Thus, “the same comparison can be made between first-degree and fourth-degree child abuse that was made in Maynor comparing first-degree and second-degree child abuse. The grammatical structure of both the second-degree and fourth-degree child abuse statutes suggests that the act must be done ‘knowingly or intentionally,’ but the defendant need not know or intend that the act pose an ‘unreasonable risk of harm or injury to a child.’ Therefore, fourth-degree child abuse is a general-intent crime.” The court concluded that the evidence was sufficient to show “defendant either knowingly or intentionally threw the keys, and that this action posed an unreasonable risk of harm or injury to defendant’s child.” He admitted that he intentionally tossed them, and they hit his four-year-old daughter in the back of the head. “Throwing a set of keys knowing a child had been standing in the vicinity of the location in which the keys were thrown seconds before poses an unreasonable risk of harm or injury to a four-year-old child.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 76608
    Case: Harris v. United States
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Daughtrey, Cole, and Clay
    Issues:

    Sentencing; Second or successive 28 USC § 2255 motion to vacate, set aside, or correct a portion of a sentence; Whether the 60-month sentence for abetting using or carrying a firearm during & in relation to a crime of violence was imposed under 18 USC § 924(c)(3)(B)’s unconstitutionally vague “residual clause”; Whether the sentence could be saved under § 924(c)(3)(A)’s “elements clause”; Whether aiding & abetting attempted robbery (§ 2111) is a “crime of violence” for purposes of the elements clause; § 924(c)(1)(A)(i)

    Summary:

    The court held that because aiding and abetting attempted robbery is a “crime of violence” for purposes of § 924(c)(3)(A)’s “elements clause,” defendant-Harris failed to establish prejudice arising from his § 924(c) sentence, and his second or successive § 2255 motion was properly denied. He pled guilty to aiding and abetting second-degree murder, aiding and abetting attempted robbery, and aiding and abetting using or carrying a firearm during and in relation to a crime of violence. He was sentenced to 420 months on the murder conviction, 180 months on the attempted robbery conviction, and a consecutive 60-month sentence on the firearm conviction. He challenged the 60-month sentence, arguing it was imposed under § 924(c)(3)(B)’s unconstitutionally vague “residual clause.” Although nothing in the record indicated the district court relied on the residual clause, Harris claimed that since “nothing in the record of his conviction and sentence indicates that the district court did not rely upon the unconstitutional residual clause . . . the residual clause actually must have been the basis for the district court’s finding.” The court rejected this reasoning, noting that the district court was not required to engage in a “categorical-approach analysis” where a conviction under “§ 2111 requires a taking or an attempted taking from a person ‘by force and violence, or by intimidation.’” Additionally, even if the district court had relied on the residual clause, Harris had to establish that “neither of his predicate offenses qualified for enhanced sentencing under § 924(c)(3)’s elements clause.” As to the attempted robbery conviction, the government did not have to show “that every element of a § 2111 violation is included in the definition of generic robbery.” Rather, § 924(c)(3)(A) only requires “that the predicate offense for which a defendant was convicted necessarily ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another.’” The court concluded that because “‘intimidation’ ‘involves the threat to use physical force,’ . . ., and because even attempts to take anything of value from a person ‘by force and violence, or by intimidation’ constitute § 2111 violations . . . § 2111 is a crime of violence for purposes of § 924(c)(3)(A).” Affirmed.

    Full Text Opinion

  • Election Law (1)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 76648
    Case: Reed-Pratt v. Detroit City Clerk
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam – Cavanagh, Servitto, and M.J. Kelly
    Issues:

    Declaratory action challenging a candidate’s placement on a ballot based on attestations made in an affidavit of identity (AOI); MCL 168.558(4); Nykoriak v. Napoleon; Stumbo v Roe; Whether a filing complies with the Michigan Campaign Finance Act (MCFA); MCL 169.216(6); Corrections to a filing; MCL 169.216(7); Mootness; TM v MZ; Reviewing a moot issue if it is publicly significant, likely to recur, & yet likely to evade judicial review

    Summary:

    The court held that the trial court did not err by denying plaintiff’s request for declaratory relief challenging defendant-city council candidate’s (Ayers) placement on the election ballot based on attestations she made in her AOI. Plaintiff challenged Ayers’s candidacy for an at-large city council seat, contending her AOI contained a false statement because, “contrary to the attestation she made in her AOI, she had two outstanding campaign finance reports that were required to be filed under the” MCFA. When defendant-City Clerk refused to not certify Ayers’s name for placement on the ballot, plaintiff filed an action for declaratory relief and a motion asking the trial court to decree that “(1) Ayers failed to file seven amended campaign finance reports she was required to file under the MCFA, (2) Ayers made a false statement in her AOI when she affirmed that she had filed all required campaign finance reports, and (3) the City Clerk had a duty to not certify Ayers’s name to [defendant-election commission] under MCL 168.558(4).” The trial court denied the motion and dismissed the complaint, “concluding amended campaign finance reports did not fall within MCL 168.558(4) and that plaintiff” failed to show Ayers made a knowingly false statement in her AOI. On appeal, the court first noted that although the case was moot, it would review the merits as there remained “a reasonable expectation that the issues involved in this appeal could recur yet escape judicial review.” It then rejected plaintiff’s argument that the trial court erred by denying her motion for declaratory judgment. It noted that the plain language of MCL 168.558(4) “applies without distinction to both an initial report and an amended report.” But it found that the amended reports requested by the county clerk did not fall under the relevant provisions of the MCFA. The clerk requested the reports, but the “request was made more than four business days after the deadline for filing each report.” In addition, the clerk’s email “did not identify any error or correction in any of the seven campaign finance reports he requested. Instead, he asked that Ayers refile the reports as previously filed.” As such, this “request did not fall within the scope of MCL 169.216, and no party has identified any other provision of the MCFA that obligated Ayers to file a report or statement in response to the” clerk’s email. “Because the seven amended reports were not ‘required of the candidate . . . under the [MCFA],’ there is no evidence that Ayers made a false statement when she swore to have filed all reports required under the MCFA.” Affirmed.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 76627
    Case: Shindorf v. Shindorf
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Cameron, and Rick
    Issues:

    Contempt of court; In re Dudzinski; Comparing civil & criminal contempt; DeGeorge v Warheit; Comparing neglectful failure to obey a court order & willful disobedience; In re United Stationers Supply Co; Michigan Child Support Formula (MCSF)

    Summary:

    The court held that the trial court abused its discretion by finding plaintiff-mother in civil and criminal contempt and ordering that she continue to pay 100% of parental reunification costs. Plaintiff divorced defendant-father, who was abusive to her and their children. Defendant eventually received supervised parenting time. Despite problems with the process, a psychologist who had been working on the case recommended reunification. The trial court found plaintiff was interfering with the reunification process and ordered her to pay a larger share of the children’s counseling costs and engage in therapy. It eventually held her in civil and criminal contempt based on her alleged involvement in the estrangement of the children from defendant and her purported failure to comply with court orders, and continued her obligation to pay 100% of reunification costs. It also ordered that defendant’s child support should be recalculated as a sanction. The court previously peremptorily reversed, noting that her alleged involvement in the estrangement of the children and purported failure to comply with the judge’s orders were not circumstances that rendered the MCSF unjust or inappropriate. In this appeal, the court agreed with plaintiff that the trial court abused its discretion when it found her in civil and criminal contempt. First, she “was not provided with adequate notice that the trial court might also consider civil contempt.” In addition, there was simply “no competent evidence . . . to support a finding that mother willfully disobeyed or disregarded any court orders.” Rather, the evidence showed that the trial court’s “insistence on forcing a particular timetable and punishing mother into, as father’s counsel literally and inappropriately stated, ‘suck[ing] it up,’ caused the children further trauma and is the real cause of the delays in reunification.” The court also agreed with plaintiff that the trial court abused its discretion by continuing its requirement that she pay 100% of the costs of reunification therapy, noting it “should, minimally, have recognized that progress was being made and followed through on its promise to reduce mother’s share of the reunification therapy costs by a minimal amount.” However, in light of defendant’s “egregiously unacceptable attitude that mother should just ‘suck it up,’ the trial court’s own contribution to the children’s additional traumas and the ensuing delay in reunification, and the trial court’s failure to afford mother reasonable due process,” her share must be reduced to 50%. Reversed and remanded.

    Full Text Opinion

  • Freedom of Information Act (1)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 76647
    Case: Blackwell v. City of Livonia
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam – K.F. Kelly, Jansen, and Rick
    Issues:

    Whether inbox messages sent to a mayor’s Facebook profile (which was not maintained or used by the office of the mayor) were public records under FOIA; Exceptions to FOIA’s disclosure requirement; MCL 15.243; “Public body”; MCL 15.232(h); Bisio v Village of Clarkston; “Public record”; MCL 15.232(i); Hopkins v Duncan Twp; West v Puyallup; Howell Educ Ass’n, MEA/NEA v Howell Bd of Educ

    Summary:

    Holding that inbox messages sent to defendant-city’s mayor’s Facebook page, which was not maintained or used by the office of the mayor, were not public records under FOIA, the court affirmed the trial court’s grant of summary disposition for defendant. Defendant denied plaintiff’s request for the messages, noting the Facebook account in question was used for the mayor’s political campaign purposes, and not to conduct city business. Plaintiff then sued, alleging the page was not strictly used for campaign purposes, and the writings he sought were public records. The trial court granted summary disposition for defendant, finding the messages were not subject to disclosure under FOIA because the Facebook account was not “prepared, owned, used, in the possession of, or retained by” defendant and, thus, the messages were not public records. On appeal, the court held that the trial court did not err by granting summary disposition for defendant because the direct messages sent to the Facebook profile were not subject to disclosure as public records under FOIA. “Defendant met its burden of sustaining its decision to withhold the requested records from disclosure because the record evidence indicates that the direct messages were not owned, used, in the possession of, or retained by [defendant’s] mayor’s office in the performance of an official function.”

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Family Law

    e-Journal #: 76627
    Case: Shindorf v. Shindorf
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Cameron, and Rick
    Issues:

    Contempt of court; In re Dudzinski; Comparing civil & criminal contempt; DeGeorge v Warheit; Comparing neglectful failure to obey a court order & willful disobedience; In re United Stationers Supply Co; Michigan Child Support Formula (MCSF)

    Summary:

    The court held that the trial court abused its discretion by finding plaintiff-mother in civil and criminal contempt and ordering that she continue to pay 100% of parental reunification costs. Plaintiff divorced defendant-father, who was abusive to her and their children. Defendant eventually received supervised parenting time. Despite problems with the process, a psychologist who had been working on the case recommended reunification. The trial court found plaintiff was interfering with the reunification process and ordered her to pay a larger share of the children’s counseling costs and engage in therapy. It eventually held her in civil and criminal contempt based on her alleged involvement in the estrangement of the children from defendant and her purported failure to comply with court orders, and continued her obligation to pay 100% of reunification costs. It also ordered that defendant’s child support should be recalculated as a sanction. The court previously peremptorily reversed, noting that her alleged involvement in the estrangement of the children and purported failure to comply with the judge’s orders were not circumstances that rendered the MCSF unjust or inappropriate. In this appeal, the court agreed with plaintiff that the trial court abused its discretion when it found her in civil and criminal contempt. First, she “was not provided with adequate notice that the trial court might also consider civil contempt.” In addition, there was simply “no competent evidence . . . to support a finding that mother willfully disobeyed or disregarded any court orders.” Rather, the evidence showed that the trial court’s “insistence on forcing a particular timetable and punishing mother into, as father’s counsel literally and inappropriately stated, ‘suck[ing] it up,’ caused the children further trauma and is the real cause of the delays in reunification.” The court also agreed with plaintiff that the trial court abused its discretion by continuing its requirement that she pay 100% of the costs of reunification therapy, noting it “should, minimally, have recognized that progress was being made and followed through on its promise to reduce mother’s share of the reunification therapy costs by a minimal amount.” However, in light of defendant’s “egregiously unacceptable attitude that mother should just ‘suck it up,’ the trial court’s own contribution to the children’s additional traumas and the ensuing delay in reunification, and the trial court’s failure to afford mother reasonable due process,” her share must be reduced to 50%. Reversed and remanded.

    Full Text Opinion

  • Municipal (3)

    Full Text Opinion

    This summary also appears under Freedom of Information Act

    e-Journal #: 76647
    Case: Blackwell v. City of Livonia
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam – K.F. Kelly, Jansen, and Rick
    Issues:

    Whether inbox messages sent to a mayor’s Facebook profile (which was not maintained or used by the office of the mayor) were public records under FOIA; Exceptions to FOIA’s disclosure requirement; MCL 15.243; “Public body”; MCL 15.232(h); Bisio v Village of Clarkston; “Public record”; MCL 15.232(i); Hopkins v Duncan Twp; West v Puyallup; Howell Educ Ass’n, MEA/NEA v Howell Bd of Educ

    Summary:

    Holding that inbox messages sent to defendant-city’s mayor’s Facebook page, which was not maintained or used by the office of the mayor, were not public records under FOIA, the court affirmed the trial court’s grant of summary disposition for defendant. Defendant denied plaintiff’s request for the messages, noting the Facebook account in question was used for the mayor’s political campaign purposes, and not to conduct city business. Plaintiff then sued, alleging the page was not strictly used for campaign purposes, and the writings he sought were public records. The trial court granted summary disposition for defendant, finding the messages were not subject to disclosure under FOIA because the Facebook account was not “prepared, owned, used, in the possession of, or retained by” defendant and, thus, the messages were not public records. On appeal, the court held that the trial court did not err by granting summary disposition for defendant because the direct messages sent to the Facebook profile were not subject to disclosure as public records under FOIA. “Defendant met its burden of sustaining its decision to withhold the requested records from disclosure because the record evidence indicates that the direct messages were not owned, used, in the possession of, or retained by [defendant’s] mayor’s office in the performance of an official function.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Election Law

    e-Journal #: 76648
    Case: Reed-Pratt v. Detroit City Clerk
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam – Cavanagh, Servitto, and M.J. Kelly
    Issues:

    Declaratory action challenging a candidate’s placement on a ballot based on attestations made in an affidavit of identity (AOI); MCL 168.558(4); Nykoriak v. Napoleon; Stumbo v Roe; Whether a filing complies with the Michigan Campaign Finance Act (MCFA); MCL 169.216(6); Corrections to a filing; MCL 169.216(7); Mootness; TM v MZ; Reviewing a moot issue if it is publicly significant, likely to recur, & yet likely to evade judicial review

    Summary:

    The court held that the trial court did not err by denying plaintiff’s request for declaratory relief challenging defendant-city council candidate’s (Ayers) placement on the election ballot based on attestations she made in her AOI. Plaintiff challenged Ayers’s candidacy for an at-large city council seat, contending her AOI contained a false statement because, “contrary to the attestation she made in her AOI, she had two outstanding campaign finance reports that were required to be filed under the” MCFA. When defendant-City Clerk refused to not certify Ayers’s name for placement on the ballot, plaintiff filed an action for declaratory relief and a motion asking the trial court to decree that “(1) Ayers failed to file seven amended campaign finance reports she was required to file under the MCFA, (2) Ayers made a false statement in her AOI when she affirmed that she had filed all required campaign finance reports, and (3) the City Clerk had a duty to not certify Ayers’s name to [defendant-election commission] under MCL 168.558(4).” The trial court denied the motion and dismissed the complaint, “concluding amended campaign finance reports did not fall within MCL 168.558(4) and that plaintiff” failed to show Ayers made a knowingly false statement in her AOI. On appeal, the court first noted that although the case was moot, it would review the merits as there remained “a reasonable expectation that the issues involved in this appeal could recur yet escape judicial review.” It then rejected plaintiff’s argument that the trial court erred by denying her motion for declaratory judgment. It noted that the plain language of MCL 168.558(4) “applies without distinction to both an initial report and an amended report.” But it found that the amended reports requested by the county clerk did not fall under the relevant provisions of the MCFA. The clerk requested the reports, but the “request was made more than four business days after the deadline for filing each report.” In addition, the clerk’s email “did not identify any error or correction in any of the seven campaign finance reports he requested. Instead, he asked that Ayers refile the reports as previously filed.” As such, this “request did not fall within the scope of MCL 169.216, and no party has identified any other provision of the MCFA that obligated Ayers to file a report or statement in response to the” clerk’s email. “Because the seven amended reports were not ‘required of the candidate . . . under the [MCFA],’ there is no evidence that Ayers made a false statement when she swore to have filed all reports required under the MCFA.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Open Meetings Act

    e-Journal #: 76619
    Case: Emsley v. Charter Twp. of Lyon Bd. of Trs.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Cavanagh, and Gadola
    Issues:

    Alleged violations of the Open Meetings Act (OMA); Closed session; MCL 15.268(h); Booth Newspapers, Inc v Wyoming City Council; Procedural requirements; Vermilya v Delta Coll Bd of Trs; Herald Co, Inc v Tax Tribunal; Request to amend the complaint to add allegations; Requirements for a motion under MCR 2.116(C)(10); MCR 2.116(G)(4); Whether summary disposition was premature; MCR 2.116(H); Civil conspiracy claim; Res judicata

    Summary:

    The court held that defendant-township Board did not violate the OMA by exceeding the permissible scope of closed sessions under MCL 15.268(h). Further, the trial court did not err in rejecting plaintiffs’ contentions “that the Board failed to adequately state its reasons for calling for closed sessions under” this provision and “that communications considered during the closed sessions were not the product of an attorney-client relationship.” It also did not err in denying the request to amend the complaint, the Board’s summary disposition motion was not deficient for failing to comply with MCR 2.116(G)(4), and summary disposition was not premature. Absent an underlying OMA violation, the conspiracy claim against the Board’s attorney or the individual Board members failed. Finally, some of plaintiffs’ allegations were barred by res judicata. In these consolidated cases plaintiffs asserted that “the Board violated the OMA when going into closed session on” specified dates, contending that it “improperly relied upon MCL 15.268(h) to meet in closed session with their attorney to discuss matters other than pending litigation.” The court noted that it has interpreted this provision “to encompass an attorney-client exemption under the OMA.” It concluded that there was no evidence “the Board exceeded the scope of the exception in MCL 15.268(h) by considering or discussing matters beyond the legal matters addressed in the privileged written material that was the basis for the closed sessions. After reviewing the minutes of the closed sessions and the written communications, the trial court found that the Board did not exceed the scope of a closed session under MCL 15.268(h), that the minutes of the closed sessions confirmed that the sessions were limited to attorney-client privileged written communications, and plaintiffs did not provide documentation to the contrary.” In addition, the court found that “nothing in the OMA or the FOIA obligated the Board to provide a more detailed explanation of the documents to be considered during the closed sessions.” As a result, the trial court did not err in rejecting one plaintiff’s “arguments that the Board failed to adequately state its reasons for calling for closed sessions under MCL 15.268(h).” Further, evidence supported the existence of an attorney-client relationship. Affirmed.

    Full Text Opinion

  • Negligence & Intentional Tort (1)

    Full Text Opinion

    e-Journal #: 76649
    Case: Albitus v. Greektown Casino, LLC
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam – Cavanagh, Servitto, and M.J. Kelly
    Issues:

    Premises liability; Notice; Lowrey v LMPS & LMPJ, Inc; Premises owners’ duty to inspect for dangers on behalf of invitees; Price v Kroger Co of MI

    Summary:

    While the court concluded that the trial court erred in finding “Lowrey abolished a premises owner’s duty to inspect for hazardous conditions on the property[,]” it affirmed summary disposition for defendant-casino based on lack of notice. Plaintiff alleged injuries after falling from a chair in the casino. The court noted that he was correct premises owners’ duty “to inspect for dangers on behalf of invitees is a longstanding principle of Michigan law.” In addition, “Lowrey explicitly affirmed this duty to inspect.” That case simply clarified how the duty operates at the summary disposition stage. The appeal depended on whether plaintiff presented “sufficient evidence to establish a genuine issue of fact concerning the element of constructive notice.” Defendant was correct that there was no evidence proving “the defect had ‘existed [for] a sufficient length of time that [defendant] should have know[n] of it.’” Rather, the evidence arguably indicated the contrary. Plaintiff relied on defendant’s safety manager’s testimony about “defendant’s use of 24-hour surveillance and employees regularly patrolling the casino floor to imply some failure in defendant’s duty to reasonably inspect the premises.” But without evidence “the defect existed for some significant amount of time before plaintiff’s fall or of some other negligent action, this testimony merely affirms that defendant had proper practices in place for detecting potential hazards. And defendant’s safety manager specifically recognized that no employees were made aware of any issue with the chair, either through prior incidents, customer complaints, or their own inspection practices. From this evidence, the more reasonable explanation is that the defect either had not existed for an amount of time that it should have been detected and fixed, or that the nature of the defect itself made it undiscoverable regardless of when it arose.” Next, the court agreed with the trial court that the surveillance video showed “no significant underlying defect that should have been discovered—giving rise to constructive notice of a dangerous condition. Even” if the chair back leaned backward a bit further than those of adjacent chairs, it was not “of such a character that ‘reasonable minds might differ’ on the issue of constructive notice.” Without more, this did not show that defendant should have known “the chair back was going to collapse.”

    Full Text Opinion

  • Open Meetings Act (1)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 76619
    Case: Emsley v. Charter Twp. of Lyon Bd. of Trs.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Cavanagh, and Gadola
    Issues:

    Alleged violations of the Open Meetings Act (OMA); Closed session; MCL 15.268(h); Booth Newspapers, Inc v Wyoming City Council; Procedural requirements; Vermilya v Delta Coll Bd of Trs; Herald Co, Inc v Tax Tribunal; Request to amend the complaint to add allegations; Requirements for a motion under MCR 2.116(C)(10); MCR 2.116(G)(4); Whether summary disposition was premature; MCR 2.116(H); Civil conspiracy claim; Res judicata

    Summary:

    The court held that defendant-township Board did not violate the OMA by exceeding the permissible scope of closed sessions under MCL 15.268(h). Further, the trial court did not err in rejecting plaintiffs’ contentions “that the Board failed to adequately state its reasons for calling for closed sessions under” this provision and “that communications considered during the closed sessions were not the product of an attorney-client relationship.” It also did not err in denying the request to amend the complaint, the Board’s summary disposition motion was not deficient for failing to comply with MCR 2.116(G)(4), and summary disposition was not premature. Absent an underlying OMA violation, the conspiracy claim against the Board’s attorney or the individual Board members failed. Finally, some of plaintiffs’ allegations were barred by res judicata. In these consolidated cases plaintiffs asserted that “the Board violated the OMA when going into closed session on” specified dates, contending that it “improperly relied upon MCL 15.268(h) to meet in closed session with their attorney to discuss matters other than pending litigation.” The court noted that it has interpreted this provision “to encompass an attorney-client exemption under the OMA.” It concluded that there was no evidence “the Board exceeded the scope of the exception in MCL 15.268(h) by considering or discussing matters beyond the legal matters addressed in the privileged written material that was the basis for the closed sessions. After reviewing the minutes of the closed sessions and the written communications, the trial court found that the Board did not exceed the scope of a closed session under MCL 15.268(h), that the minutes of the closed sessions confirmed that the sessions were limited to attorney-client privileged written communications, and plaintiffs did not provide documentation to the contrary.” In addition, the court found that “nothing in the OMA or the FOIA obligated the Board to provide a more detailed explanation of the documents to be considered during the closed sessions.” As a result, the trial court did not err in rejecting one plaintiff’s “arguments that the Board failed to adequately state its reasons for calling for closed sessions under MCL 15.268(h).” Further, evidence supported the existence of an attorney-client relationship. Affirmed.

    Full Text Opinion

  • Probate (2)

    Full Text Opinion

    e-Journal #: 76652
    Case: In re Estate of Carlsen
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Jansen, K.F. Kelly, and Rick
    Issues:

    The Estates & Protected Individuals Code (EPIC); Whether a contingent claim was presented within four months after it arose as required under MCL 700.3803(2)(b); “Claim”; MCL 700.1103(g); “Contingent claim” & “arises”; Applicability of the “fair contemplation test”; Southwestern Michigan Emergency Services, PC (SWMES); Personal representatives (PRs)

    Summary:

    The court held that because respondent-SWMES “presented its contingent claim for prevailing party costs within four months after the claim arose, the probate court did not err by denying petitioners’ petition to strike.” The claim for prevailing party costs and fees arose when the jury rendered a no-cause verdict in SWMES’s favor in the underlying medical malpractice case. The notice of contingent claim was presented in the probate court less than a month later. Petitioners (co-PRs of the estate of their daughter) contended that SWMES’s “contingent claim arose in 2013, when petitioners filed the underlying medical malpractice complaint.” As its answer to the complaint showed, that was when SWMES “first contemplated that it could win the case and that it might be entitled to prevailing party costs.” Petitioners contended “that the same conclusion results from application of the ‘fair contemplation’ test, a test used in bankruptcy courts to determine whether a creditor’s claim arose before the potential debtor filed a bankruptcy petition.” They urged the court to adopt and apply the test here. It declined to do so, holding that federal “bankruptcy law is not binding on this Court,” and petitioners made “no argument that the language of the bankruptcy statutes is similar to the language of the relevant provisions of the EPIC.” Their position failed “to identify a proper factual basis to support its conclusion that respondent’s contingent claim arose in 2013.” The court concluded that when arguing that SWMES “knew or should have known that it had a contingent claim in 2013, petitioners do not point to any discernable, underlying facts to support such a claim, other than respondent’s assessment of the medical malpractice complaint. But whatever confidence respondent had that it might prevail and that petitioners’ claims were frivolous, these are not facts of the sort that support a contingent claim.” SWMES’s claim for taxable costs arose under MCR 2.625(A)(1). The factual basis for the claim against the estate of taxable costs was the 2019 jury verdict of no cause of action in favor of SWMES, which “filed its notice of contingent claim approximately two weeks after the jury rendered its verdict, well within the time limit set by MCL 700.3803(2)(b). Respondent’s claim was contingent because the trial court had the discretion to award prevailing party costs or to ‘direct[] otherwise.’” Affirmed.

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    This summary also appears under Wills & Trusts

    e-Journal #: 76623
    Case: In re Beverly Howe Family Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, O’Brien, and Cameron
    Issues:

    Disbursement of trust assets; MCL 700.7816; Final accounting; Fees charged by the successor trustee

    Summary:

    The court remanded the probate court’s order approving the final account of appellee-Rizik, as successor trustee of the Beverly Howe Family Trust (the Family Trust), discharging Rizik as a fiduciary, and closing the file. It instructed the probate court on remand to provide factual findings as to appellant-Thomas Howe’s specific challenges to Rizik’s fees and charges sufficient to facilitate appellate review. Thomas argued that “the probate court erred by approving Rizik’s final account as successor trustee where Rizik disbursed assets from the Family Trust to pay for the care and maintenance of Beverly, who was not a beneficiary under the trust instrument.” The thrust of his argument was that “Rizik did not have authority to disburse trust funds for Beverly’s care and expenses.” However, he did not provide the court with an itemized list of disbursements that he challenged on appeal. Also, based on the record, he “did not indicate the specific disbursements or sum total of the disbursements that he deemed improper. Rather, appellant appeared to have raised a general objection to ‘Petitioner’s use of any of this money for a nonbeneficiary as it is not permitted by the Trust Code of Michigan . . . .’” The court noted that some of the disbursements “were approved in prior court orders, without objection, and Thomas did not appeal those orders.” He sought to appeal them as part of this appeal. However, the court “partially dismissed this appeal for lack of jurisdiction as it related to those prior orders, and also denied Thomas’s motion for reconsideration of that decision, because the prior orders were each final orders appealable by right under MCR 5.801(A)(2),” and he failed to timely appeal them. The court held that he was “not permitted to challenge any disbursements that were previously approved by the probate court, and for which Thomas did not file an appeal by right. Such action would amount to an impermissible collateral attack on these prior orders.” However, in approving Rizik’s final account, the probate court “did not address Thomas’s challenges to Rizik’s fees and charges. Without any findings or an explanation of the probate court’s decisions on these contested issues, this Court, as an error-correcting Court, is not in a position to review the probate court’s ultimate determination or determine whether it erred by approving the contested fees and charges.”

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  • Wills & Trusts (2)

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    e-Journal #: 76651
    Case: In re Grablick Trust
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Stephens, Borrello, and Servitto
    Issues:

    Whether dispositions to a stepchild were revoked under MCL 700.2807(1)(a)(i) due to divorce; “Relative of the divorced individual’s former spouse” (MCL 700.2806(e)); In re Fink Estate (Unpub); In re Monahan Estate (Unpub); “Affinity”; Bliss v Tyler; Reliance on a no-fault case – Patmon v Nationwide Mut Fire Ins Co (Unpub); The Estates & Protected Individuals Code (EPIC); The former Revised Probate Code (RPC)

    Summary:

    Rejecting appellant-former stepchild’s argument that she was related by affinity to decedent, the court held that she was not a beneficiary of his will or trust because the dispositions to her were revoked under MCL 700.2807(1)(a)(i) when he and her mother divorced. Thus, it affirmed summary disposition for appellees. Under the EPIC, absent “express terms to the contrary in the governing instrument, when a testator who has executed a will subsequently divorces his spouse, the divorce revokes any disposition or appointment of property to either the former spouse or the former spouse’s relatives.” The court found two unpublished cases – Fink Estate and Monahan Estate – persuasive and adopted their “substantively similar” analyses. Those cases found that the ex-spouse’s children were “‘not related to decedent by blood, adoption, or affinity; therefore, they would be considered "relatives of the divorced individual’s former spouse" pursuant to MCL 700.2806(e). Under MCL 700.2807(1)(a)(i),’” their right to take under the will would be revoked. While the exception in MCL 700.8101(2)(e) where there is “a clear indication of a contrary intent” applied in those cases because the wills were executed under the RPC, it did not apply here where the will was executed after EPIC became effective. Appellant contended that the Legislature, in using “affinity” in MCL 700.2806(e), “contemplated that a relative of the divorced individual’s former spouse may continue to be ‘related’ to the divorced individual after the divorce.” She asserted that due to her continuing “close, loving, father-daughter relationship with the decedent she” fell outside of the category of “‘relatives’ of the divorced individual’s former spouse whose putative bequests are revoked” by statute. The court found that even if the term affinity under no-fault “law would include her as a relative of the testator, such a definition would not apply to this case. However, even if it did, she cannot prevail.” While the court in Fink Estate and Monahan Estate “was not tasked with defining the term ‘affinity’ in the context of MCL 700.2806 and MCL 700.2807, this Court’s pronouncement that a testator’s ex-spouse’s children are not related to the testator by blood, adoption, or affinity and are considered ‘relatives of the divorced individual’s former spouse’ pursuant to MCL 700.2806(e) is both instructive and consistent with the definition of affinity in Bliss.”

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    This summary also appears under Probate

    e-Journal #: 76623
    Case: In re Beverly Howe Family Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, O’Brien, and Cameron
    Issues:

    Disbursement of trust assets; MCL 700.7816; Final accounting; Fees charged by the successor trustee

    Summary:

    The court remanded the probate court’s order approving the final account of appellee-Rizik, as successor trustee of the Beverly Howe Family Trust (the Family Trust), discharging Rizik as a fiduciary, and closing the file. It instructed the probate court on remand to provide factual findings as to appellant-Thomas Howe’s specific challenges to Rizik’s fees and charges sufficient to facilitate appellate review. Thomas argued that “the probate court erred by approving Rizik’s final account as successor trustee where Rizik disbursed assets from the Family Trust to pay for the care and maintenance of Beverly, who was not a beneficiary under the trust instrument.” The thrust of his argument was that “Rizik did not have authority to disburse trust funds for Beverly’s care and expenses.” However, he did not provide the court with an itemized list of disbursements that he challenged on appeal. Also, based on the record, he “did not indicate the specific disbursements or sum total of the disbursements that he deemed improper. Rather, appellant appeared to have raised a general objection to ‘Petitioner’s use of any of this money for a nonbeneficiary as it is not permitted by the Trust Code of Michigan . . . .’” The court noted that some of the disbursements “were approved in prior court orders, without objection, and Thomas did not appeal those orders.” He sought to appeal them as part of this appeal. However, the court “partially dismissed this appeal for lack of jurisdiction as it related to those prior orders, and also denied Thomas’s motion for reconsideration of that decision, because the prior orders were each final orders appealable by right under MCR 5.801(A)(2),” and he failed to timely appeal them. The court held that he was “not permitted to challenge any disbursements that were previously approved by the probate court, and for which Thomas did not file an appeal by right. Such action would amount to an impermissible collateral attack on these prior orders.” However, in approving Rizik’s final account, the probate court “did not address Thomas’s challenges to Rizik’s fees and charges. Without any findings or an explanation of the probate court’s decisions on these contested issues, this Court, as an error-correcting Court, is not in a position to review the probate court’s ultimate determination or determine whether it erred by approving the contested fees and charges.”

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