Michigan Appeals

There's No Place Like "Home State!" MSC to Decide UCCJEA Case

2009-12-17T10:08:00.004-05:00

Jurisdictional issues involving competing states can be both complex and confusing for practitioners, parties, and attorneys, especially where non-traditional family arrangements suggest that one or many statutes may be necessary to resolve jurisdictional issues. At the heart of this dilemma is the oft understood UCCJEA. Fortunately, the Michigan Supreme Court will soon resolve the unique issues involved in this case.

The Court granted leave in Foster v Wolkowitz. The Court will address: (1) whether the Court of Appeals erred in relying on the Michigan Acknowledgement of Parentage Act (MAPA) rather than the UCCJEA to determine that Michigan should exercise subject-matter jurisdiction in this interstate custody dispute; (2) if the COA correctly relied on the MAPA to establish subject-matter jurisdiction in Michigan, whether the statute violates the Equal Protection Clauses of the state and federal constitutions by creating a suspect classification of unmarried fathers who are treated differently than married fathers; and (3) if jurisdiction properly lies in Illinois, as the child's "home state" under the UCCJEA, whether Michigan is the more convenient forum for resolution of the case.

Justice Corrigan commented separately, asking parties to address how child support issues relate to or affect jurisdiction over custody. Although there are likely to be many different answers to these questions, one thing is clear: any clarification on frequently encountered jurisdictional dilemmas arising where provisions of other statutes conflict with the UCCJEA is both long-awaited and helpful!

Spouse "Waives" Goodbye to Argument in Divorce Appeal

2009-12-04T11:01:00.004-05:00

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

2009-11-19T15:42:00.003-05:00

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

2009-10-30T13:06:00.004-05:00

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....

2009-10-21T13:48:00.003-05:00

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

2009-10-15T12:39:00.004-05:00

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

2009-09-01T09:48:00.002-05:00

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

2009-08-21T13:23:00.004-05:00

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!

COA Says TPR Not the Solution to Every Unsolved Mystery

2009-08-18T11:51:00.007-05:00

In In re ALNW, Minor, the Court of Appeals reversed an order terminating parental rights to both parents of the minor child. When the child's mother, then 20 years-old, noticed a popping sound in the four month old's chest, she immediately called her doctor seeking advice. Since the child was not experiencing other symptoms, the doctor advised the mother to wait until the child's next check-up to have the child looked at. After x-rays revealed that the child had suffered several broken ribs, DHS became involved.

Although both of the child's parents sought immediate medical attention and seemed genuinely concerned about the child, they were unable to explain how the child's injuries occurred. Given the severity of the child's injuries and lack of a reasonable explanation, DHS filed a petition seeking immediate termination of both parent's rights to the child. They were not offered services simply because they failed to explain how their infant child was injured.

At trial, the child's guardian ad litem opined that the parents, who were young and inexperienced, could be good parents if offered the opportunity to participate in parenting classes. He highlighted the lack of evidence of any neglect, abuse, or even negligent actions on the part of either parent and advocated that termination was not in the child's best interest. Despite the guardian ad litem's recommendation against termination, the trial court found that there was clear and convincing evidence satisfying several statutory grounds for termination and that termination of both parent's rights was in the child's best interest.

The Court of Appeals disagreed, reasoning that the mere fact that the child was injured without explanation, absent any other evidence of abuse or neglect is insufficient to satisfy any of the statutory grounds for termination of parental rights cited by the trial court.

The Court further explained that the trial court had more options than just termination and returning the child to the parent's unsupervised care. The COA opinion was amply supported by The Michigan Supreme Court's recent opinion on the issue in In re Rood where the Court held, "It is only when timely and intensive services are provided to families that agencies and courts can make informed decisions about parents' ability to protect and care for their children." The COA urged that the trial court could have asserted temporary jurisdiction, offering the parents a service plan and opportunity to improve their parenting.

Fortunately, the COA recognized the importance of a parent's fundamental liberty interest in raising children and re-emphasized the role of the probate courts in working to reunify families. Instead of allowing the trial court to apply something similar to the tort doctrine of res ipsa loquitor to a termination of parental rights case, the COA properly directed the trial court to provide the parents with an opportunity to improve their parenting skills. The facts and procedure in this case are indicative of a trend that is all too common--immediate termination simply because DHS does not like the parent's explanation with regard to some basis for jurisdiction. However, the appellate courts are consistently identifying those instances where the trial courts rubber stamp the DHS recommendation on a less than convincing record.

Sadly, by the time these cases reach the appellate courts, many of these families have been separated for a lengthy period of time--something that can never be repaired by an appellate decision. Clearly child welfare law does not mandate that parents must provide explanations in order to earn services. To the contrary, Michigan law favors reunification whenever possible.

Equitable Parenthood: Not an Ageless Doctrine

2009-08-14T15:07:00.003-05:00

In Vanderark v Vanderark, the Court of Appeals concluded the the trial court erroneously held that the plaintiff was the equitable parent of a minor child born to plaintiff's wife during the marriage. Plaintiff and Defendant married in 2002, but defendant began an affair in 2007. During the course of the affair, defendant conceived a child with her lover and the record showed that she never told plaintiff (her husband) that he was the child's father or that there was any uncertainty regarding the child's paternity.

Defendant moved out of the marital home three months prior to giving birth. Although she never informed her husband of the child's birth, she brought the child to see him three days later and allowed him to spend time with the child. She continued to bring the child to the marital home for visits with her husband from April to August 2008. Even though she knew the child was not her husband's she allowed him to care for the child on three separate occasions without supervision. She abruptly stopped contact between child and her husband. He responded by filing for divorce when the child was 10 months old.

After an evidentiary hearing, the trial court found that the facts of the case satisfied the test for establishing equitable parenthood under Atkinson. The trial court determined that prong (1) of Atkinson, requiring the husband and child to mutually acknowledge a realtionship as father and child, or the mother of the child has cooperated in the development of such a relationship ofover a period of time prior to the filing of the complaint for divorce, despite the fact that the child was too young to acknowledge the parent child relationship, where the defendant allowed plaintiff to have weekley contact with the child prior to divorce.

The COA found that the weekly contact between the father and infant was not sufficient to establish the first prong of Atkinson given facts showing that defendant never really held plaintiff out to be the father, she only provided him with information about the pregnancy via text message and e-mail, and did not call him when she was in the hospital. Further, the COA was persuaded that defendant was not cooperating in facilitating a parent child relationship between plaintiff and the child because she did not allow him to participate in the child's medical appointments and made excuses to prevent him from seeing the child. Further, the COA noted that plaintiff did not provide financial support to the child and waited nearly two months to take legal action after defendant cut off his contact with the child. Consequently, the COA reversed the case, holding that plaintiff was not the child's equitable parent.

Despite being a 3 page unpublished opinion, this case raises some interesting considerations surrounding how to treat the equitable parent doctrine with regard to an infant or toddler. Essentially, an infant or toddler will almost always be considered to young to "mutually acknowledge a parent child relationship." Thus, the only way to satisfy (1) of Atkinson is if the mother cooperates to facilitate a parent child relationship between her "love child," and the husband she is or was cheating on. This cooperation by the cheating mother is necessary to establish (1) of Atkinson even where the husband wants to participate in the child's life.

Since it is unrealistic to expect a cheating spouse to be "cooperative" it could perhaps be said that a husband seeking equitable parenthood of an infant or toddler could never satisfy (1) of Atkinson if cooperation in facilitating a parent child relationship requires the cheating spouse to go out of her way to make the husband part of the child's life. It seems that there would be little reason for a mother to allow even minimal contact and participation between a child she knows is not her husband's child and the husband, unless she was trying to facilitate a relationship between the two.

Consequently, where an infant or toddler is involved, the "cooperative" element of Atkinson should not require daily contact, or a certain type of communication (i.e., telephone versus e-mail), but should instead look to the reasons behind the level of participation whether minimal or extensive. In such a circumstance the trial court is in the best position to assess the mother's credibility and to determine whether the facts establish cooperation sufficient to establish (1) of Atkinson. Unless there is a complete absence of facts illustrating cooperation, the trial court's determination of whether (1) of Atkinson is established with regard to an infant or toddler after an evidentiary hearing should not be disturbed.

The question remains: how likely is it that a husband can actually establish (1) of Atkinson where the child is an infant or toddler? Seemingly, not very likely. Although there is no written age limitation for application of the equitable parent doctrine, common sense dictates otherwise.

High Court Offers Supreme View

2009-07-30T12:30:00.002-05:00

The Michigan Supreme Court and State Bar of Michigan recently teamed up to create a virtual courtroom. Now, oral arguments and administrative hearings can be viewed by anyone with internet access at http://www.michbar.org/courts/virtualcourt.cfm.

Summarizing the driving force behind the virtual program, Chief justice Kelly said that it creates openness and transparency. “In a digital age, the public increasingly expects not only physical access, but also virtual access, to government. With this expansion of the Court’s online presence, viewers will need only an Internet connection to watch the Court at work,” she said.

In addition to allowing the public to see what goes on at the Hall of Justice, the program also provides a benefit to appellate practitioners. Although presenting argument before seven Justices can be intimidating, the opportunity for practitioners to view prior arguments heard by the Court offers a unique learning experience.

On the other hand, the ability to watch arguments with the click of a mouse does have one significant drawback: it will now be easier to play "Monday Morning Quarterback." Since the arguments will be posted 24 to 48 hours after they are heard, any party who argues a case can easily--at times painfully--dissect his argument without paying twenty-five dollars to order a DVD copy of argument.

Despite the obvious and inevitable pain of one-click argument review, the ease in doing so is likely to cause more attorneys to evaluate their performance in order to improve their advocacy skills. In the long-run, there is no question that the virtual court will have the added and maybe unintended side-effect of improving oral advocacy in Michigan's appellate courts.

In re Hansen: Questioning the Question Presented– Another Preservation Pitfall

2009-07-24T09:56:00.004-05:00

In a published opinion, In re Hansen, the Court of Appeals affirmed the termination of respondent’s parental rights despite the fact that the trial court applied a best interest standard that was replaced by legislation effective in July 2008. The COA concluded that application of the out-dated and oft misunderstood “contrary to the best interest” of the minor child standard, although erroneous, yielded the correct result because a statutory ground for termination had been met and the child could not be left in limbo while waiting for her father to be released from prison.

Presumably, this opinion was published, unlike most termination cases, to clarify that the trial courts should apply the statutory standard prescribed by the legislature in July 2008, requiring the trial courts to find that both a statutory ground for termination has been met and that termination is in the best interest of the child. Notably, the statute itself clarifies this legal issue and the case did not construe the statute, nor did it present application of the new statutory language to a unique set of facts. Seemingly, the case does not fit the criteria for publication under MCR 7.215(B).

In reaching the right result, the COA noted that the appellate counsel failed to preserve the best interest issue because the issue, although briefed, was not properly phrased in Appellant’s questions presented. For this proposition, the COA cited a case that has become the nemesis of appellate attorneys across the state, People v Yarbrough (“an issue is not preserved for appeal if it is not raised in appellant’s statement of questions presented”). Although the COA addressed the issue anyway, the very idea that an appellant could lose review of an issue that could impact the care and custody of his minor child for failing to properly phrase a question presented is frightening to say the least.

Even though Yarbrough pronounces that an issue is unpreserved if it is not stated in a question presented, it does so without citing to a court rule, or Michigan Supreme Court case addressing the reasoning for disposing of an issue that has been briefed simply because the question presented is imprudently phrased. As any appellate practitioner knows, the rule providing for a brief’s contents is MCR 7.212(C). Under this rule an appellant is required to provide within an appellant’s brief a statement of questions involved, “stating concisely and without repetition the questions involved in the appeal.” Nowhere in this rule is there a directive that failing to do so will result in a finding that the issue has been unpreserved and will not be reviewed on appeal. The rule includes provisions regarding the requirement of a jurisdictional statement, table of contents, index of authorities, and statement of facts.

However, when any of these other sections are inadvertently omitted or improperly executed, appellant’s counsel is faced with a defect letter providing an opportunity to cure the defect before the appeal is dismissed or an issue is waived. It doesn’t follow then, that failing to properly execute questions presented, also contained within MCR 7.212(C), would not be met with the same defect letter instead of an essentially unreviewable conclusion that the issue, although properly objected to in the trial court an properly briefed, is unpreserved.

Certainly In re Hansen is not the first case, and won’t be the last, citing Yarbrough to hold that an issue is “unpreserved.” The impact of this finding varies greatly from case to case. This issue prompts several questions: (1) How concise can a question presented realistically be if an issue can be rendered unpreserved when it is too concise? (2) If the issue is properly briefed and contains a proper standard of review, isn’t the failure to raise it in the question presented harmless? (3) Does the punishment of rendering an issue “unpreserved” properly address the actual harm or inconvenience actually caused by the improper phrasing of a question presented?

Despite the numerous concerns presented by this situation, one thing is clear: if the question presented problem is going to continue to be applied in a manner that renders issues unpreserved and therefore, unreviewed, appellate practitioners may need some guidance to avoid a preservation pitfall.

COA Prescribes Dose of Civil Liability for Mute Medics

2009-07-16T12:58:00.010-05:00

Have you ever wondered whether mandatory reporters will really be held to have civil liability if they fail to report suspected child abuse? The Court of Appeals addressed this issue in the Estate of Rufus Young JR. v Detroit Medical Center and Children's Hospital, et al. In this case, a doctor failed to report suspected child abuse where the child, who had a history of abuse, exhibited bruising during examination. The doctor said that he did not report suspected abuse because the explanation of the foster mother seemed sincere and she was genuinely concerned. Sadly, the child was murdered a short time later after suffering 11 blows to the head at the hands of his foster dad. The personal representative of the child’s estate sued the doctor and hospital. The physician was sued under a theory of ordinary negligence for his failure to follow the mandatory reporting statutes, MCL 722.623 and MCL 722.622. The hospital was sued on the basis of vicarious liability.

The Defendants filed Motions for Summary arguing that Plaintiff should have brought a medical malpractice claim and that the hospital could not be vicariously liable where the statute provided that only the person failing to report was liable. The Trial Court granted the physician's motion but denied DMC's motion.

On appeal, the COA held that summary was inappropriately granted because the doctor is liable for failing to report as a mandatory reporter under the statute and that such a claim can be brought under ordinary negligence. The COA reasoned that identifying suspected child abuse does not require expert medical knowledge as demonstrated by the fact that the statute specifically identifies mandatory reporters who are not medical professionals.

Additionally, the COA opined that imposing civil liability on doctors is consistent with purpose of child welfare law because it encourages medical professionals to be vigilant and take an active role in reporting suspected abuse. The COA further held that the hospital could be vicariously liable because the common-law doctrine of vicarious liability is not abrogated simply because the statute specifically imposes liability on the non-reporter. The Court noted, “such a doctrine cannot be abolished by implication.”

The bottom line is that there is a reason the Legislature listed “mandatory” reporters, not “suggested” reporters—it’s a duty that should be taken seriously no matter who you’re insured by. Given that this is a highly contested issue (see Dissent), the prognosis for further appellate action looks good--stay tuned.

Court of Appeals Spoils Plaintiff’s Cause of Action-Davis Dissents

2009-07-10T13:47:00.002-05:00

In Teel v Allstate Insurance, __Mich App__; __NW2d___ (2009), the Court of Appeals held that Michigan does not recognize a cause of action for spoliation of evidence. In Teel, Plaintiff lost his wife in an apartment fire. While he was in the hospital recovering, Plaintiff’s landlord permitted an Allstate Insurance Co. representative into the apartment. Contrary to statute, Plaintiff did not receive notice that the inspector would be allowed into the apartment. During the inspection, the investigator removed items from the apartment and altered the scene. Plaintiff alleged that these actions resulted in spoliation of evidence of the fire’s origin and resulted in hindering Plaintiff’s ability to succeed in litigation against the landlord relating to the fire. The trial court granted summary disposition in favor of Defendant, holding that plaintiff failed to state a claim under which relief could be granted because Michigan did not permit a cause of action for spoliation of evidence.

The Court of Appeals agreed. The court reasoned that such a cause of action has not been recognized in Michigan. Additionally, that the courts have no business developing such a cause of action because doing so would require defining the scope of the duty to preserve evidence. Noting that the Legislature has comprehensive Legislation addressing the insurance industry, including more than 1,000 sections in the insurance code evidences the Legislature’s intent to provide for and regulate the rights and remedies available to the public concerning business in the insurance arena. Alternatively, the court reasoned that even if there were such a cause of action in this state, it would be inapplicable in Teel because the Plaintiff failed to show that there were no other remedies available (citing criminal contempt as an example).

Judge Davis disagreed. In his dissent, Judge Davis framed the case as one calling for the court to fashion a remedy–not create an entirely new cause of action. Davis stated, “Although the cases in Michigan have, thus far, only addressed spoliation of evidence by litigants, spoliation of evidence is nevertheless recognized as a legally wrongful act. In other words, there is already a well-established right in Michigan of a litigant to the integrity of evidence in a lawsuit. It follows that the courts are not only empowered, but obligated to provide a remedy for violations of that right.” It is too soon to tell whether the Supreme Court will weigh-in on the battle of rights versus remedies.

US Supreme Court holds that justice should have recused himself

2009-06-08T15:00:00.002-05:00

In the much-anticipated decision regarding judicial recusal, the United States Supreme Court ruled in Caperton v Massey Coal Co. that the West Virginia Supreme Court justice who received $3,000,000 in campaign contributions from a person who had a case pending before the Court should have recused himself because there was a "serious, objective risk of actual bias." The Court held that the petitioner's due process rights were violated when the W.Va. high court reversed the $50,000,000 trial court ruling in its favor, and instead, ruled in favor of the party who had contributed significant sums to one of the justice's recent campaign for election.

The majority opinion was particularly concerned by the "extreme" nature of this case, and considered the amount of campaign contributions in comparison to the total amount contributed and to the total amount spent in the election, along with the temporal relationship bewteen the campign contributions, the justice's election, and the pendency of this case. The Court noted that the "extraordinary contributions were made at a time when he [the donor] had a vested stake in the outcome" of the election due to his case that was being appealed to the West Virginia Supreme Court.

The dissenting opinion by Justice Roberts raises concerns about how to implement the standard of what gives rise to the "probability" or "appearance" of bias. The dissent lists 40 questions that courts will have to answer in order to decide a recusal issue, such as (#1) how much money is too much money, (#7) how long does the probability of bias last, and (#13) must the judge's vote be outcome determinative in order for his non-recusal to constitute a due process violation?

Michigan COA rejects foreign divorce entered without due process

2009-05-20T14:52:00.004-05:00

The Court of Appeals reversed a Michigan trial court's decision to recognize a foreign divorce in Tarikonda v Pinjari (unpublished decision). In that case, the parties are Muslim citizens of India who married in India, then moved to Michigan. The parties had one child, and when they separated, the wife stayed in Michigan with their son while the husband moved to New Jersey. At some point, the husband went to India and obtained a divorce under the Muslim personal law through the procedure known as the "triple talaq." Under Muslim law, a husband may summarily divorce his wife by pronouncing language such as, "I divorce thee," three times.

The month following the triple talaq divorce, the wife filed for divorce in Michigan. The husband moved to dismiss the complaint based on the existing divorce judgment from India. He presented a divorce certificate from India. The trial court dismissed the wife's divorce complaint, and instructed her to register the Indian divorce in Michigan and file a separate complaint for custody and child support.

The Court of Appeals held that the triple talaq violated the wife's constitutional rights and refused to affirm the trial court's recognition of the foreign divorce judgment because the wife did not have prior notice of the husband's pronouncement of the triple talaq, she was not represented by an attorney and had no right to be present at the pronouncement, and there was no opportunity to be heard on the merits.

Why aren't there more conflicts panels?

2009-04-10T16:34:00.002-05:00

Over the years, I have observed that there are many times when the Court of Appeals in a published decision does not acknowledge a prior published opinion that is on point, or disagrees with a prior published opinion. In those instances, the later panel is supposed to call a conflicts panel under MCR 7.215(J), but that does not always happen. It seems that the later court's failure to convene a conflicts panel does a disservice to the parties, and all the litigants whose cases might be affected by the conflict.

For instance, in Froling Revocable Living Trust v Bloomfield Hills Country Club, a published opinion from April 9, 2009, the Court of Appeals recognized a previous conflict in Court of Appeals' published decisions on the issue of whether the Supreme Court's decision in Garg v Macomb County Community Mental Health Services regarding the continuing violations doctrine applied to all cases (including the nuisance and trespass case at issue in Froling) or only to civil rights cases (the issue presented by Garg). The published Court of Appeals' decisions after Garg disagreed on whether Garg abrogated the doctrine for all cases or just for civil rights employment discrimination cases. Because the later panels of published decisions failed to convene a conflicts panel, the Court of Appeals in Froling decided that it was bound by the earlier published decisions, and thus, the continuing violations doctrine has been abrogated for all cases in Michigan. Based on the reasoning of Froling, any time the Court of Appeals fails to convene a conflicts panel when a later published opinion does not follow a prior published opinion, other panels must follow the earlier decision and disregard the latter decision.

Attorney faces criminal contempt

2009-03-24T13:22:00.001-05:00

In the recent case of In re Contempt of Henry, a published opinion of the Court of Appeals, the Court addressed a criminal contempt matter arising from appellant, attorney Kathy Henry’s, involvement with her brother, defendant Charles Henry’s, post-divorce judgment child support enforcement case. The trial court held that the attorney committed criminal contempt based on a series of violations, including: “violations of the Michigan Rules of Professional Conduct, committing perjury, affirmatively lying to the court and lying to the court by omission, violating court orders, and failing to deliver and fully account for the funds at issue.” The trial court sentenced the attorney to two days in jail, a fine in the amount of $7,500, and attorney fees.

Among the many issues included in the attorney's appeal, the attorney challenged the $7,500 fine on the ground that the penalty violated the ex post facto clauses of the United States and Michigan Constitutions. The amount of fine available under the criminal contempt statute changed while the attorney's contempt case was pending. The new legislation changed the maximum contempt fee from $250 to $7,500. MCL 600.1715(1). The attorney argued that her contemptuous acts occurred before March 30, 2007, so it violated her rights to fine her $7,500 for her conduct.

The Court of Appeals held that the “retroactive application of the amended version of MCL 600.1715 enhancing the fine recoverable from appellant violates constitutional ex post facto prohibitions by increasing the level of punishment applicable when appellant committed her criminal contempt before the amendment.” The Court vacated the $7,500 fine and remanded the case for compliance with the prior version of MCL 600.1715. The Court affirmed on all other grounds.

Attorney judgment rule going to trial

2009-02-16T16:24:00.001-05:00

In Shannon v Foster Swift Collins & Smith, P.C., former clients brought a legal malpractice suit against the law firm and attorney who represented them in a real estate matter. The circuit court granted the law firm's motion for summary disposition on the ground that the attorney-judgment rule should shield the attorney from malpractice because he gave legal advice in good faith, even though the advice may not have been correct.

The Court of Appeals disagreed with the circuit court and reversed its grant of summary disposition. The Court stated that regardless of whether the attorney based his advice on well-recognized Michigan law, the standard of care still required him to function as an advocate for his clients. In this case, the attorney’s firm represented every bank involved in the real estate transaction, and failed to disclose one of the potential conflicts of interest to his clients. The attorney then convinced his clients to go through with the deal by stating that they would be held to the rent payments under the unsigned contract regardless of their actions. The Court of Appeals held that whether the attorney was acting in a manner consistent with the fiduciary standard of care depending on what a reasonable attorney would have done under the circumstances – a determination that must be made by the jury. Based on the circumstances of this case, the Court reversed and remanded the matter to the circuit court to be tried before a jury. [Judge Fitzgerald would have affirmed the circuit's decision].

Non-refundable Retainers Do Not Violate the Ethics Rules

2008-12-17T08:54:00.001-05:00

The Supreme Court issued an order on the long-awaited non-refundable retainer case pending before it in Cooper v Attorney Grievance Commission. In that case, the client hired an attorney to represent her in a divorce action. The attorney charged a $4,000 nonrefundable retainer and her fee agreement with the client stated that the $4,000 was a “minimum fee.” In exchange for the minimum fee, the attorney would work on the client’s case according to her standard hourly rates without any additional fee. Once the attorney’s work exceeded the minimum fee, then the client would be obligated to pay for those additional hours. The fee agreement also stated that “Client understands that NO portion of the MINIMUM FEE referred to above is REFUNDABLE to the client, under any circumstances.”

When the client decided against going through with her divorce before her attorney had worked $4,000 worth of hours, the client demanded a refund. Although the attorney gave her a partial refund (contrary to the terms of the fee agreement), the client filed a grievance against the attorney. The hearing panel of the attorney discipline board dismissed the grievance complaint, but the Attorney Grievance Commission pursued the case and issued an order sanctioning the attorney for charging a nonrefundable retainer. The Grievance Commission ruled that the nonrefundable retainer agreement violated MRPC 1.5 (reasonable fees) and MRPC 1.16 (safekeeping of client property).

The Supreme Court’s order stated that the attorney’s fee agreement “unambiguously provided that the [attorney] was retained to represent the client and that the minimum fee was incurred upon execution of the agreement, regardless of whether the representation was terminated by the client before billings at the stated hourly rate exceeded the minimum.” Accordingly, the Supreme Court held that the non-refundable retainer in this case did not violate the ethics rules. Justice Kelly concurred with the Court’s decision but wrote separately to note that fewer grievances might be filed if an attorney’s nonrefundable fee agreement “designate[s] the number of hours the attorney will work without additional charge, and specify an hourly rate to be charged thereafter.”

Self-representation is risky...and for good reason

2008-11-24T15:24:00.002-05:00

You surely are familiar with the adage, "the man who represents himself has a fool for a client." This phrase took on special meaning in the Court of Appeals decision People v Cochrane, in which the Court determined that the trial court did not err in refusing to allow a criminal defendant to represent himself. As many attorneys know, the self-represented party does not only face the hurdle of not being educated in the law and court procedures; the even bigger hurdle is that the self-represented party cannot view his case objectively, and is clouded by his emotions.

In Cochrane, the defendant asked to represent himself many times, including with multiple letters and motions to the trial court, the contents of which were described by the Court of Appeals as "simply ridiculous." Indeed, the trial court denied his motions because the self-representation would "disrupt, unduly inconvenience, and burden the court and the administration of the court's business" (one of the bases for denying a defendant his constitutional right to self-representation). The defendant went through four appointed attorneys, and "fired" attorneys who refused to succumb to his demands to raise motions in the trial court. During trial, the defendant continually interrupted the court by "rambling on about anythign and everything" and even spit at his appointed attorney. It is not hard to imagine that Defendant lost credibility with the courts due to his conduct.

High Court Make-Over to Dress-up Appellate Advocacy

2008-11-14T15:16:00.001-05:00

Legal circles are abuzz with speculation about the possible impact the stunning election of Wayne County Circuit Court Judge Diane Hathaway will have on the Michigan Supreme Court and more importantly, Michigan Law. It is uncertain, but there is some consensus that it is bound to be an improvement where there has been so much contention on the bench commonly attributed to insurance friendly rulings from the gang of four.
There is also agreement that the Court between 1998 and present, overturned binding precedent 5 times as much as the average from previous years, mainly using strict constructionism to interpret Michigan Statute. Key issues affected by the Taylor Court’s controversial rulings include: premises liability, consumer protection law, standing in environmental cases, employer liability for rape of employee, landlord liability, governmental immunity exceptions, liability of drug companies, Michigan no-fault law, and virtual abrogation of the exclusionary rule in Michigan, to name a few.
The high Court is still comprised of a majority of conservative Justices including: Justices Markman, Weaver, Corrigan, and Young, but Justice Weaver’s votes are unpredictable as she has a reputation for breaking from the pack. Even though the Court must give deference to the rulings made under the conservative “gang of four” Court under the doctrine of stare decisis, there will certainly be an increase in the number of applications to the Michigan Supreme Court in an attempt to reverse or clarify some of the decisions that created roadblocks to avenues of relieve for aggrieved citizens in almost every area of law. Regardless of the outcome of these cases, the outpouring of increased interest in Michigan appellate law will increase the quality of appellate briefing, leading to more thoughtful argument. Consequently, the new court is a winning situation for everyone!

COA Lets Divorce Attorney Keep Fees

2008-10-15T15:56:00.002-05:00

Getting stuck with joint liability for attorneys’ fees after a reversal in the COA is like being saddled with the dinner tab after a bad date--no fair. Thanks to a recent published opinion from the court of appeals, divorce attorneys can breathe a little easier in knowing that the former will no longer happen to them. In Kasben v Hoffman, attorney Gary Bergstrom represented Beryl Hoffman through a heated divorce. The trial court awarded Hoffman attorney’s fees based on financial need and her husband’s unreasonable conduct. Hoffman filed for bankruptcy during the proceedings and the $125,989.98 awarded was placed in escrow in anticipation of the trial court’s distribution of property. The trial court split the amount between the parties to compensate Kasben for property wrongfully distributed by the bankruptcy trustee. An appeal followed and the COA concluded that the trial court erred in dividing the money and that all of it should have gone to Kasben.

On remand, the trial court, citing the COA’s decision, determined that it was required to hold both Hoffman and her attorney jointly and severally liable for the entire amount of $125,989.98. The Court of Appeals reasoned that, since it first remanded only with direction that the sum wrongfully awarded be paid back to Kasben, but did not address who should pay it, the trial court must have concluded that the COA order required it to hold the attorney liable since Hoffman authorized the money in escrow to be used to pay Kasben for representing her. In resolving the issue, the COA held that, by ordering the attorney to reimburse Kasben, the trial court was erroneously adjudicating the rights of a third party in a divorce proceeding. It further once Hoffman authorized the funds held for her benefit to be paid to her attorney, the attorney could no longer be charged with liability for those funds whether they were wrongfully awarded or not, absent a showing of fraud. Now when cases with fees in escrow are reversed and remanded, the appellee’s attorney won’t be left empty-handed.

Heidi's Law not an Ex Post Facto Violation

2008-09-09T07:13:00.003-05:00

The Court of Appeals upheld Heidi's Law in People v Perkins. Heidi's Law is MCL 257.265 and increases the penalty for persons convicted of driving under the influence if the person has been convicted of the offense 3 or more times at any time, even though the statute of limitations is 10 years.

The trial court held that Heidi's law was an ex post facto violation as applied to defendant's case. Ex post facto laws are ones that: (1) attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant.” The Court of Appeals held that, although Heidi's Law certainly works to defendants' disadvantage, the "amendment did not attach legal consequences to their prior offenses, which occurred before the amendment's effective date. Rather, the amendment made the consequences of their current offenses, which occurred after January 3, 2007, more severe based on defendants' prior convictions."

This issue is popping up in circuit courts all over Michigan, and certainly will be the subject of an appeal to the Michigan Supreme Court, if not the United States Supreme Court.

Accrual of attorneys' cause of action for unpaid balances

2008-07-24T07:46:00.002-05:00

Recently, the Court of Appeals took on an interesting battle between attorney and former client in Seyburn v Bakshi (Docket No. 272903), where Law Firm was suing its Former Client for unpaid legal fees. Law Firm represented Former Client in multiple cases and lost the trial court litigation and one appeal for Former Client. After paying $92,000 in legal fees, Former Client ceased payment and eventually accrued over $55,000 in legal fees owed to Law Firm. The unpaid fees, not surprisingly, resulted in conflict between the two men and Law Firm moved to withdraw as Former Client’s counsel. The motion to withdraw was granted in September 1993.

In October 1993, Former Client requested his file from Law Firm. Law Firm had its paralegal review the file and charged Former Client $182 to review the file and $250 to copy the documents out of it. Former Client proceeded to file a legal malpractice suit against Law Firm in 1995 which was dismissed because it was barred by the two year statute of limitations. The final straw in this heated battle between the two men took place when Law Firm filed suit to recover the outstanding legal fees owed by Former Client. Law Firm filed suit in October 1999 while the legal malpractice suit was still ongoing. Former Client claimed the suit was barred by the six-year statute of limitations. Law Firm claimed that because it had done legally billable work for Former Client in October 1993 (reviewing and copying the Former Client file) that its claim was within the six year limitations period.

The Court of Appeals took the opportunity in this case to settle the dispute about when the attorney client relationship properly ends. The Court reasoned that the attorney client relationship is not extended merely because the “attorney renders a compensable, but ministerial, service, like returning a Former Client’s file, as occurred in this case.” In this case, the date the attorney client relationship ended was September 1993 (when the trial court granted Law Firm’s motion to withdraw), which is the accrual date for the six year statute of limitations.

The Court made an analogy in this case to legal malpractice, noting that the performance of the ministerial task of copying and returning the file to the client would not extend the accrual date for the Former Client’s legal malpractice suit. It can be inferred from this decision that the accrual date (at least for litigation matters) is the same for legal malpractice and collection of unpaid legal fees–the date of the termination of services. The dissenting opinion discusses this issue.