Spouse "Waives" Goodbye to Argument in Divorce Appeal

In Vulaj v Vulaj, the Court of Appeals held that the plaintiff-husband waived his right to challenge the arbitrator's failure to comply with the Domestic Relations Arbitration Act, MCL 600.5070. When the defendant filed a motion for entry of judgment based on the arbitration award, the plaintiff's attorney, speaking of the arbitration award, simply stated, "my client just didn't like the arbitration," without formally objecting to it.

Plaintiff waited to challenge errors in the arbitration procedure on appeal. The COA held that plaintiff had expressly waived his right to challenge the arbitration errors at the hearing on the motion for entry of the arbitration award. Although the COA noted that preservation rules are discretionary, it reasoned that failure to apply them to cases like this encourages parties to sit on their objections. The COA stated, "there is nothing to stop a trial lawyers from either holding back on issues for use in a subsequent appellate attack on an unfavorable judgment, or to stop newly retained appellate counsel from sifting through the record and presenting issues to our Court for the first time. Under either approach, not only will there be a limited finality to any judgment of divorce entered after an arbitration award......but it will aslo result in unfettered gamesmanship in our appellate courts."

What can attorneys take from the Court's admonishment? When it comes to trial court objections, flaunt em' if you've got em' or "waive" them goodbye on appeal!

COA Offers Brief Berating

To an attorney who does not make a living writing briefs, the recent COA decision in In re D.A.S., Minor, will almost surely go unnoticed. Yet those of us who toil in the appellate arena should see it as a glaring reminder that the quality of our representation is judged almost solely on our briefing........and it better be good!

Although the panel in D.A.S. found no reversible error, the opinion lambasted the work of the relatively experienced appellate attorney (the attorney was listed as lead counsel on at least 14 appeals and has been practicing for a number of years). The Court’s language warrants a long post here:

Although the trial court did not err when it terminated both respondents’ parental rights to De’Zyre, we feel compelled to express our concerns regarding the quality of the brief filed on behalf of respondent Javon Frederick Martin. This case, like all cases regarding the termination of parental rights, involves serious allegations of abuse and neglect leading to the termination of parental rights. The termination of parental rights involves one of the more severe actions that the State can take against an individual, and implicates an individual’s fundamental liberty interest in raising one’s child. See Santosky v Kramer, 455 US 745, 758-759; 102 S Ct 1388; 71 L Ed 2d 599 (1982). Thus, there is an important constitutional right at issue in every such appeal. Adding to that already important feature, in this case the trial court heard significant expert and medical testimony regarding the circumstances surrounding Hunter Sims’ death.

Also at issue is which of the two respondents actually inflicted these injuries on Hunter. Despite the detailed facts and important legal principles, the brief filed on behalf of Mr. Martin was deficient in all respects. For one, the statement of facts comprised no more than a page and a quarter of respondent’s brief. Not that length is always necessary or encouraged, but after seven days of trial and numerous lay and expert witnesses on the cause of death, one would expect something more than just over a page of essentially conclusory statements and procedural comments. The court rules certainly require more. See MCR 7.212(C)(6).

Additionally, the brief’s argument section failed to comply with MCR 7.212(C)(7). There was not a single citation to a statute or case, no citations to the record, and the three arguments, including headings, comprised approximately one page. Indeed, the entirety of respondent’s second argument, which challenged whether there was clear and convincing evidence that it was in the best interests of the child to have her father’s rights terminated, simply states, “father Javon Martin was bonded to his daughter . . . and it was not in her best interest to have his parental rights Terminated (sic).” In the next and final argument, which was entitled “[w]as the court’s decision clearly erroneous,” respondent simply argued that one of the witnesses testified that the death could have been caused by an accident and that no evidence attributed the injuries to the father. Again, these are merely conclusory statements made without any citation to law or fact.

This is unacceptable, and counsel is advised to either submit any forthcoming briefs to this Court in full compliance with our court rules, or face further action.1

This opinion should remind us that we work in a genre where there is little opportunity for a “do-over.” Although turning in one bad brief may not change the course of our day to day lives, it is important to remember that the same my not be true for the effect of one bad brief on the life of the client we represent.

COA Directs Trial Court to Mind Its "l's" and "m's"--PUBLISHED OPINION

In a published decision, the Court of Appeals found that the Kent County Circuit Court erred in terminating a mother's parental rights under MCL 712A.19b(3)(l), where the mother had voluntarily released her rights to a different child under the Adoption Code. In In re MAJJ, minor, the Court held that MCL 712A.19b(3)(l) only permitted mandatory termination of parental rights where the prior termination was entered under the Juvenile Code, not the Adoption Code.

The Court of Appeals affirmed the Trial Court, despite its citation to the wrong statute by finding alternatively that MCL 712A.19b(3)(m) clearly applied to the facts of the case permitting termination of respondent's parental rights. Specifically, subsection (m) applies because the voluntary release of parental rights under the Adoption Code happened after proceedings were initiated pursuant to the Juvenile Code.

Interestingly, this is another case recognizing a repeated pattern where the Court of Appeals expressly states that an appellate attorney did not brief the issue which essentially resulted in the resolution of the case on appeal. Most people are told to mind their "P's" and "Q's," however, in tpr appeals involving voluntary releases followed by subsequent terminations, perhaps we should mind our "l's" and "m's."

Appellate Courts to Review Constitutionality of SORA as Applied to Juveniles?? Only Time Will Tell....

In a September 30, 2009 opinion, Washtenaw County Family Court Judge, Hon. Darlene O'Brien, called into question the constitutionality of SORA's application in juvenile cases. Specifically, O'Brien reasoned the mandatory reporting requirement as applied to juveniles does not serve a legitimate purpose given the most current evidence indicating a low recidivism rate for juvenile sex offenders in light of the overall purpose of juvenile law: rehabilitation not punishment.

Although the Court of Appeals has upheld the constitutionality of SORA's registration requirement as applied to juveniles, it did so in In re Ayers, decided in1999. At that time, juveniles were exempt from public registration. Since Ayers, juveniles are no longer exempt from public reporting. Also, in In re Wentworth, the COA questioned, "[T]he propriety of publicly and permanently labeling juveniles as convicted sex offenders" noting that, "public notification provisions of SORA appear to conflict with out traditional reluctance to criminalize juvenile offenses and our commitment to keep juvenile records confidential."

Judge O'Brien highlighted that the recidivism rates cited by the COA in Ayers are no longer accurate in light of recent published research. Without current data supporting high recidivism rates, or the protections afforded by non-public registration, Judge O'Brien concluded that mandatory reporting for a juvenile convicted of CSC II was unconstitutional.

As of this post, the prosecution has not filed an appeal. However, this issue has been a hot topic for Michigan practitioners since the opinion came out. If I asked my appellate Magic 8 Ball whether an appeal is likely, it would say, "All signs point to YES!"

COA Gives Stamp of Approval to Trial Court in Published WDCA Case

In Fries v Mavrick Metal Stamping, Inc, et al, the Michigan Court of Appeals affirmed the trial court's decision denying defendants' motion for summary disposition under MCR 2.116(C)(10) in a published opinion. In Fries, the plaintiff was injured at work when her lose clothing triggered operation of a stamping machine while her hands were underneath the moving parts. She presented deposition testimony to the trial court illustrating that both a manager and supervisor at Mavrick had been advised that loose clothing actually did trigger operation of the machine on a prior occasion. Although the machine operator was not injured on the previous occasion, his deposition testimony revealed that the incident caused him to button his clothing behind his back any time he operated that particular stamping machine.

Despite defendants' argument that plaintiff's claim did not fall within the intentional tort exception to the WDCA, the Court of Appeals, in an opinion authored by Judge Gleicher, agreed with the trial court that the pleadings created a genuine issue of material fact as to whether the tort exception applied.

The COA cited the Michigan Supreme Court's decision in Golec v Metal Exch Corp, to dispel defendants' claim that testimony illustrating that management had been advised that the machine that injured plaintiff had been triggered by loose clothing on a prior occasion did not create a fact issue regarding actual knowledge. Defendants' argument was premised on the fact that nobody was injured on the prior occasion and therefore, plaintiff could not establish that there was any disregard of an injury that was certain to occur.

In Golec, the Supreme Court explained that where the facts alleged by a plaintiff, if established at trial, establish a continually operative dangerous condition known to defendant, then a genuine issue of material fact is presented regarding whether the injury was certain to occur. In this case both the trial court and COA concluded that the evidence presented, if proven at trial, established that the potential of loose clothing triggering operation of heavy machinery was a continually operative dangerous condition which management knew of, consequently there was a genuine issue of material fact as to whether injury was certain to occur.

Court's decision may tie hands of appellate practitioners

The Court of Appeals issued a published opinion in Barnard Manufacturing v Gates Performance Engineering, which could cause problems for many appellate attorneys appealing trial court orders on summary disposition. In Barnard,although the Court of Appeals recognized that the defendant's evidentiary support "could have been better organized and presented," the Court of Appeals would not consider evidence attached to the motion and response that created a fact issue for plaintiff's case because plaintiff had failed to call attention to evidence in its response.

The Court interpreted MCR 2.116(G)(5) -- which states that "The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1) - (7) or (10) -- to mean that the trial court did not have to consider all of those pieces of evidence unless they were specifically addressed in the response to the summary disposition motion.

The practical effect of this opinion is that an appellate attorney, possibly facing imperfect trial court briefing but good evidence attached to the motion or response, will be unable to make the case on appeal that there is a genuine issue of material fact.

Supreme Court to review the hotly debated Kreiner decision

In a long-awaited ruling among no-fault automobile practitioners, the Supreme Court granted leave in McCormick v Carrier (Docket No 136738), which challenges the Kreiner court's interpretation of the No-Fault Act's threshold for serious impairment of a body function. The internal dispute on the Supreme Court continues as to the propriety of the Supreme Court reconsidering decisions it had made while Chief Justice Taylor was still on the bench, with a dissent by Justice Corrigan and a response by Justice Weaver. The next year should be very interesting indeed!