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Due Process Rights in Termination Case Not Violated by Failure to Sua Sponte Appoint Counsel

Posted on Tuesday, September 27, 2016
 In this case (In re Trumble, No 330627) Respondent Mother appealed the Gladwin Circuit Court order terminating her parental rights to her child arguing that the trial court violated her due process by its failure to sua sponte or on its own appoint an attorney to represent her. The Court of Appeals, affirmed the trial court order, stating that because the respondent knowingly declined the offer of appointed counsel at the preliminary hearing and had never shown she suffered from an obvious cognitive impairment, she failed to show that the trial court denied her due process by declining to sua sponte appoint counsel.

The facts show that the Respondent:
          1.Waived counsel at the preliminary hearing stating she could read, she wished to      represent herself and admit to the petition and participate in a service plan.
2. Although the trial court told her such admissions could lead to termination, she admitted to the allegations.
3. She received notice of subsequent hearings but didn’t attend.
4. Only visited her child 5 times in 4 months.
5. Failed to comply with the service plans.
6. Failed to appear at the termination hearing although notified by mail and by phone and continued to reside in Indiana.

Parents have a fundamental liberty interest in making decisions regarding the care,
custody and control of their children that is protected by the due process clause of the Fourteenth Amendment of the United States Constitution. The court’s failure to sua sponte appoint counsel did not, however, deprive Respondent of due process. The court has interpreted MCR 3.915(B)(1) to require “affirmative action on the part of the respondent to trigger the appointment and continuation of appointed counsel in all hearings which may affect the respondent’s parental rights.” In re Hall, 188 Mich App 217, 218; 469 NW2d 56 (1991).
In this case, Respondent failed to appear at the termination hearing and moved out of state. By her behavior she affirmatively distanced herself from her own case rather than affirmatively working toward return of her child or asking for appointment of counsel.
Respondent also argued that the trial court should have appointed counsel because both the court and the case worker expressed concern about her understanding of the seriousness of her situation. Unlike the cited opinion In re Hicks/Brown, Minors, (Docket No. 328870, issued April 26, 2016), where the court held that the DHHS and courts must actively assist intellectually, cognitively or developmentally impaired parents, there were no overt signs of cognitive impairment in Respondent as was apparent in Hicks. Respondent was articulate and had no apparent difficulty asking and answering questions.

The Court of Appeals held that the trial court didn’t deny her due process rights by declining sua sponte counsel and the decision below was affirmed. 

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Named Insured Can Have An Insurable Interest In Property It Does Not Own

Posted on Friday, September 23, 2016
In A B Petro Mart, Inc v Prime One Ins, 317 Mich App 290 (2016) Docket 327481, an insurance coverage action, the Michigan Court of Appeals held that a corporate Plaintiff had an insurable interest in the property at issue, despite the fact that it did not own the property. In Petro Mart, the Plaintiffs sought coverage for damage to a gas pump at their gas station. The facts revealed that the corporate Plaintiff owned the gas station, but that the actual gas pumps were owned individually by the co-Plaintiff, Aref Bazzi, who was the sole owner of the corporation. The pumps were insured under a policy issued by the Defendant insurance company to the corporate Plaintiff only. Mr. Bazzi was not a named insured. As a result, the insurance company argued that the corporate Plaintiff had no insurable interest in the damaged gas pump and could not make a claim under the policy. The Trial Court agreed and granted summary disposition in favor of the insurance company.


The Court of Appeals reversed the Trial Court and held that the corporate Plaintiff had a sufficient legal interest in the gas pump such that it could insure it and receive an indemnity payment for the damage. In so doing, the Court of Appeals clarified the law with respect to the type of interest sufficient to allow a person or entity to insure a given property. The Court held that “an insured’s pecuniary interest in the insured property is sufficient to constitute an insurable interest.” Thus, regardless of the fact that the corporate Plaintiff was not the legal owner of the gas pump, its operation of the gas station was dependent upon the gas pump, which gave rise to a sufficient legal interest such that the corporate Plaintiff could insured the pump. The Court held that an “insurable interest” is not synonymous with “ownership,” but rather, that a showing that the insured would “suffer a direct, pecuniary loss from the property’s destruction” is sufficient.

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Court of Appeals Judge O’Connell Can’t Run for Election as Incumbent of Another Judge’s Position

Posted on Tuesday, September 20, 2016

Judge Peter D. O’Connell likes being a judge of the Fourth District of the Michigan Court of Appeals, a position to which he was elected in 1994 and reelected as an incumbent every six years to this day. Unfortunately for Judge O’Connell, because he will reach his 70th birthday before his current term expires in November, under Michigan law he can’t run for re-election. Judge O’Connell’s solution to this conundrum was not to turn back the hands of time but to run as an incumbent for a Court of Appeals position beginning in Jan. 2017 currently held by Judge Michael Gadola.

In February 2016, Judge O’Connell submitted an affidavit of candidacy for reelection as an incumbent judge of the Court of Appeals, Fourth District. Judge Gadola filed his affidavit of candidacy for reelection as an incumbent judge for the same position. The Director of Elections promptly rejected Judge O’Connell’s affidavit. Judge O’Connell then sought an order of mandamus in the Court of Claims (COC), arguing that the director had a clear legal duty to place his name on the ballot as an incumbent.

The Court of Claims first rejected Judge O’Connell’s request stating it didn’t have subject-matter jurisdiction. Judge O’Connell appealed that decision. The Court of Appeals reversed the COC, sending the matter back for further proceedings. See our blog post of Sunday, August 7, 2016.


The COC Judge Cynthia Diane Stephens denied Judge O’Connell’s complaint for mandamus. Under case law, the issuance of a writ of mandamus is only proper where:

            1. The person seeking the writ has a clear, legal right to the duty sought
            2. The Director of Elections has a clear, legal duty to perform
            3. The act is ministerial, and
            4. There is no other remedy that might achieve the same results.

Whether Judge O’Connell has a “clear, legal right” to the performance of the duty sought and whether defendants have a corresponding “clear legal duty” to perform depend on whether Judge O’Connell is entitled to appear on the ballot as an “incumbent” in his bid for election to the office currently held by Judge Gadola. Judge Stephens rightly concluded the Judge had failed to establish he was an “incumbent” to that position and, because he had not filed nominating petitions as required for non-incumbents, he wasn’t entitled to be placed on the regular election ballot.

The Court of Appeals (COA) affirmed the COC in a published opinion COC No. 334365.

Judge O’Connell’s argument is this: every judge on the Fourth District of the Michigan Court of Appeals is an incumbent of “the same office.” And, as such, he can run as incumbent for a different position than the one to which he was elected. The COA rejected his argument as follows:

            1. Const. 1963, Article 6, §22 contemplates that only certain judges are entitled to run as incumbents. It states that “Any judge of the court of appeals . . . may become a candidate in the primary election for the office of which he is the incumbent by filing an affidavit of candidacy. . . .”
2. Article 6, § 24 requires that judges seeking reelection to “the same office” they currently hold be designated as “Judge of the Court of Appeals” on the ballot.

The COC concluded: Art 6, § 22, “By referring to “the office of which he is the incumbent,” could not be plainer. With respect to the election scheduled for November 1, 2016, one judge is the incumbent for that judge’s office. Judge Gadola enjoys that status as to the term of office following the expiration of the term to which he was appointed; Judge O’Connell does not.”

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Appellate Attorneys Get Pass From Court of Appeals

Posted on Tuesday, September 6, 2016
The Court of Appeals held that an attorney could not be sued for legal malpractice, even if the attorney missed the deadline for filing a Claim of Appeal.  The Court of Appeals in MacDowell v Houghtaling, unpublished per curiam opinion, issued August 23, 2016 (Docket No. 328902), reasoned that the plaintiff could not establish the element of proximate cause based on the Court of Appeals' prior denial on a delayed application "for lack of merits in the grounds presented."  In reaching this holding, the Court is giving attorneys who commit legal malpractice a free pass - so long as they file a delayed application. The malpracticing attorney could even intentionally tank the case in the application and the leave denied order would forever insulate the attorney from liability.

The Court of Appeals reached this holding even though:

  •  85% of all applications are denied.
  • The Court of Appeals employs standard language for leave denied "on the merits" of the grounds presented in all denials except those that arise from interlocutory appeals.
  • Applicant undergo a different review process than appeals by right.
  • Oral Argument is not permitted on Application, thus denying the attorney an opportunity to advocate for the case.
  • The Court of Appeals does not have the trial court record when it decides an application, relying only on documents supplied by the Appellant.
  • Applications are decided by 3 judges from single district while Appeals by right are decided by a random draw of 3 out of 27 judges of the Court.


Stay tuned to see if this case sparks the interest of the Michigan Supreme Court.

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