Michigan Appeals

COA strictly construes MCL 600.2591 and sanctions attorney.

2012-01-30T10:05:00.000-05:00

In the underlying action of In re Moore, unpublished per curiam opinion of the Court of Appeals, Docket No. 298100, December 22, 2011, an interested party in a probate estate (son) alleged that the personal representative provided fraudulent misinformation about the legal obligation to repay a mortgage loan secured by a mortgage on real property. The personal representative of the deceased father of Moore failed to list the mortgage loan as debt of the estate and failed to advise Moore of his obligation to pay the mortgage loan. The decedent’s estate was closed in 2007. The personal representative moved for summary disposition in this case because the 6-year statute of limitations on fraud passed. The personal representative also argued that Moore had all the information about the mortgage loan and moved for sanctions against Moore and his attorney under MCL 600.2591.

The probate court granted sanctions against Moore, but not against his attorney. The Court of Appeals modified the probate court’s sanction award to include sanctions against Moore’s attorney. The Court of Appeals stated that the statutory language and the definition of “and” were clear. It held that the statue required that sanctions be against both the party and the attorney when the trial court determines that a frivolous lawsuit has been filed.

Court of Appeal issues published domicile decision in Kessler v Kessler

2011-12-13T09:00:00.003-05:00

From Kessler v Kessler, a published opinion from the Court of Appeals, issued December 6, 2011. The Court held that the lower court was not obligated to consider the change of domicile factors, MCL 722.31, when the domicile change was requested as part of the original custody order. Moreover, the trial court still has to determine the established custodial environment, even though it was making the original custody decision and even though the parties still lived together in the same house.

Both these decisions make sense in the context of established custody law.

Whitmore v Charlevoix County Road Commission

2011-12-09T11:22:00.000-05:00

The Michigan Supreme Court heard arguments on December 7, 2011 in a highway defect case this week in Whitmore v Charlevoix County Road Commission. The Court had lots of questions for both sides (Bill Henn for Defendant and Liisa Speaker for Plaintiff).

You might be able to catch a rerun on MGTV. Stay tuned for a decision on the case by the end of the term.

SORA not Punishment for Juvenile's CSC Adjudication

2011-05-27T13:54:00.003-05:00

In a published opinion, In re TD, the Court of Appeals held that application of SORA was not "punishment," so it could not be deemed unconstitutional on grounds that it was cruel and unusual as applied to the respondent.

The respondent was convicted of CSC II at the age of 15 and was subject to registration requirements of SORA. When he reached 18, he petitioned the trial court for relief from SORA's registration requirements. The trial court recognized that the statute did not provide an exemption for his listed offense, but granted respondent's requested relief anyway, finding that SORA, as applied to the juvenile, was cruel and unusual punishment.

The Court of Appeals reversed. The Court concluded that SORA was not "punishment" and thus, could not be cruel and unusual punishment. Consequently, the the statute was constitutional as applied to respondent.

In a well-written concurrence, recent judicial appointee, Judge Amy Krause, raised some valid concerns with application of SORA to juvenile offenses. Judge Krause opined that "the critical problem is simply that registering people who are demonstrably not dangerous makes it more difficult conceptually to regard SORA as the non-punishment tool it should be."

Fortunately, new legislation addresses some of these concerns by providing that no juvenile offenders will be listed on the public registry. The changes also remove reporting requirements for certain offenses depending on the ages of the parties involved. While these changes do not eradicate every concern related to application of SORA to juveniles, it is a good starting point.

COA "Curbs" Governmental Immunity Claim

2011-04-22T09:11:00.002-05:00

In Sharp v City of Benton Harbor, the COA held that a curb comes withing the definition of "a public highway, road, or street," for purposes of applying the highway exception to governmental immunity to municipalities. In Sharp, the plaintiff sustained injuries when she stepped onto a crumbling curb. The defendant city acknowledged jurisdiction over the curb where plaintiff fell. Plaintiff sued the city for failure to maintain the curb. The city moved for summary disposition on the basis of governmental immunity. The trial court denied the city's motion and the COA affirmed.

The COA reasoned that the city was not entitled to governmental immunity where the statutory purpose of making highways "reasonably safe and fit for travel" is best served by abrogating immunity for governmental agencies with jurisdiction over structures such as curbs. The Court noted that the Legislature's decision to list structures both included within and excluded from the definition of "highway" illustrated that the lists of inclusion and exclusion were not exhaustive. Consequently, unidentified structures, such as curbs, could fall within the definition of highway.

COA Publishes Prescription for Privacy

2011-04-08T09:10:00.003-05:00

The Court of Appeals issued a published opinion addressing application of federal law (HIPAA) and state law of physician-patient privilege to discovery requests for non-party patient information. In Steiner v Bonanni, the plaintiff alleged that the defendant breached an employment contract by essentially stealing clients from plaintiff. To prove his case, the plaintiff requested discovery of defendant's current patient list. The defendant objected, claiming the list was covered under HIPAA and also protected by the physician-patient privilege. On appeal, the COA reasoned that Michigan Law is more protective of patients' privacy rights than HIPAA and, therfore, under HIPAA state law applies to discovery requests involving non-party patient information. Specifically, the COA noted that HIPAA allows disclosure of patient information upon notification to the patient, whereas, Michigan law precludes disclosure without actual patient consent. Consequently, the trial court did not abuse its discretion when it denied plaintiff's discovery request. In this case the COA issued a prescription for patient privacy.

The Kline Conflict -- A Row over Rowland

2011-03-02T09:29:00.003-05:00

In Kline v Dep't of Tranportation, the Court of Appeals "begrudgingly" followed McCahan v Brennan, holding that the defendant was entitled to summary disposition where the plaintiff failed to comply with the notice provision contained in MCL 600.6431. In its opinion, the Court invoked conflict procedures in MCR 7.215(J)(2), indicating that it was following McCahan only because it had to, but that McCahan was wrongly decided.

In McCahan, the Court of Appeals relied on the Michigan Supreme Court's ruling in Rowland v Washtenaw Co Rd Comm, where the Court held that the notice provision of MCL 600.1404 did not contain a prejudice requirement and that the judiciary cannot read such a requirement into the statute. The panel in McCahan held that the Supreme Court's reasoning in Rowland was not limited to the MCL 600.1404 and should also be applied to MCL 600.6431(3) (The Court of Claims Act).

The majority (Judge Hoekstra dissented) in Kline opined that "McCahan was wrongly decided and that Rowland does not dictate the outcome in this case because it involves a different statutory provision. But for the mandate in MCL 7.215(J)(1), we wouldn not follw McCahan. Rather, we would affirm the trial court's order denying summary disposition." Stay tuned for updates on how this row over Rowland is resolved.

The Case of the Pink Diamond Could Have Jeweler Seeing Red

2010-12-10T09:00:00.005-05:00

In Harris vs. J.B. Robinson Jewelers, a published opinion, the Sixth Circuit Court of Appeals reversed the District Court's Opinion granting Defendant, J.B. Robinson Jewelers, summary disposition. Plaintiff alleged that when she took her wedding ring, featuring a 2 carat pink diamond, to Defendant for sizing, the pink diamond was replaced with a smaller, colorless stone. To support her claim, Plaintiff presented affidavits of three witnesses who attested to seeing the pink diamond at one time or another.

Defendant filed a motion for summary and supported the motion with an affidavit from a gem expert. The expert's affidavit stated that the gem currently in the ring was cut manually, and was consistent with the style of ring Plaintiff's husband would have purchased in 1973. The expert further indicated that the ring's color characteristic would have been printed on Plaintiff's warranty because rare coloring drastically affects the value of a stone -- but it was not.

The District Court granted Defendant's motion, reasoning that Plaintiff failed to present admissible evidence supporting her claim. On appeal, the Sixth Circuit majority reiterated the standard for summary disposition, emphasizing that all evidence must be viewed in the light most favorable to the non moving party. In this case, the affidavits of three witnesses, although not expert witnesses, were admissible and created a genuine issue of material fact as to Plaintiff's claim.

In his strenuous dissent, Judge Guy opined that the majority ignored the "overarching principle of what is necessary for a plaintiff to defeat a well-pleaded motion for summary judgment." He continued, "there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." He noted that Defendant presented a "tsunami" of evidence that Plaintiff's claim could not survive.

Whether this opinion clarifies or confuses the standard for summary motions is certainly debatable -- but one thing is sure --the appellate victory for this in pro per Plaintiff is definitely a diamond in the rough.

COA: Equitable Spousal Support - Factors, Not Formulas!

2010-11-29T07:48:00.003-05:00

The Court of Appeals released a published opinion addressing spousal support and attorney fees in divorce cases in Myland v Myland. In Myland, the trial court fashioned a spousal support award by implementing an arbitrary formula and without considering the relevant spousal support factors. The Court of Appeals reversed, explaining that, without considering the relevant factors, the trial court's spousal support award did not account for the needs and circumstances of the parties and was thus, contrary to law. Specifically, the COA reasoned that the wife's serious medical condition, physical inability to work, and substantial health care costs should have been considered when fashioning the spousal support award.

In Myland, the COA also concluded that the trial court abused its discretion when it failed to award attorney fees based on plaintiff's needs. The trial court declined to award attorney fees, proclaiming that it only awards attorney fees where a party has engaged in egregious conduct. The trial court's statement was contrary to law, given that MCR 3.206(C)(1) expressly provides for an award of fees based on a financial inability to defend a divorce action.

The bottom line is that this opinion cements the notion that a trial court presiding over a divorce action cannot completely disregard need in its spousal support or attorney fees analysis. So, when in need, Myland is a friend indeed!

COA: No Seal of Approval for Sealing Court Orders

2010-10-28T10:06:00.003-05:00

In a published opinion, the Michigan Court of Appeals held that MCR 8.119(F)(5) does not give a trial court the discretion to seal prior court orders. Jenson v Puste arose out of a 2006 divorce case where the plaintiff wife obtained a PPO against her ex-husband. The PPO lasted for a year. In 2009, the ex-husband sought an order vacating the PPO. He argued that the court had discretion to seal the order for good cause. To support the motion he cited difficulty obtaining employment as a result of the PPO on his record.

The COA declined to read MCR 8.119(F)(5) as discrtionery. To the contrary, it held that the court rule only allows discretion to seal court records -- and specifically prohibits a court from sealing orders and opinions. Defendant's proposed interpretation of the rule ignores the rule's purpose of granting public access to court records -- whether those records inhibit employment prospects or not. The lesson: to gain an employer's "seal of approval" don't participate in activity that would generate court records that cannot be sealed.

Tennyson "tends to" Clarify Application of Criminal Child Neglect Statute

2010-09-09T14:15:00.006-05:00

In People v Tennyson, the MSC held that the possession of drugs and firearms, by itself, was not legally sufficient to support the defendant's conviction under MCL 750.145 for doing an act that "tended to cause a minor child to become neglected or delinquent so as to tend to come under the jurisdiction of the family division of the circuit court."

In Tennyson, the prosecutor presented evidence that: the defendant's home was raided by police; the defendant had drugs under his bed; the defendant kept loaded firearms in his dresser drawer; and, that the defendant's stepson was present in the home at the time of the raid in another room. Citing the lack of evidence regarding whether the child knew of the drugs or guns in the house or whether there was a causal relationship between the defendant's criminality and any child neglect or delinquency, the majority concluded that the statute was not satisfied.

Interpreting the Legislature's intent, the majority analyzed the phrase "tend to" as used in the statute. In doing so, the majority reasoned that the phrase was not intended to be used as a directional phrase, whereby the statute could be satisfied if the defendant's acts led the child toward delinquency or neglect. Instead, it concluded that the Legislature intended the phrase to mean that the defendant's acts have caused it to be more likely than not that a minor child would "become neglected or delinquent" and that the defendant's conduct caused it to be more likely than not that a minor child would come under family court jurisdiction (as defined by MCL 712A.2(b)(1) and (2).

The Court's opinion is interesting, yet there is some dispute as to whether the holding will make its way into child protective proceedings. For now, it provides the defense bar with some clarity on proper application of this particular statutory provision.

MSC declines to 86 Nix when prosecution harboured error at trial

2010-09-03T13:49:00.007-05:00

In People v Szalma, the Michigan Supreme Court held that the Court of Appeals' decision remanding a case for a new trial would subject a defendant to double jeopardy where the trial court had already determined that the prosecutor failed to present sufficient evidence to convict and granted a directed verdict of acquittal. On appeal, the prosecutor argued, and the Court of Appeals agreed, that the trial court's determination regarding the sufficiency of evidence was based on legal error. Specifically, the trial court, with the agreement of the parties, added the element of "sexual purpose" to the CSC-I charge.

The element is not part of the statute. The Court relied on the holding in People v Nix, upholding the proposition that legal error, like the error by the trial court in this case, precludes retrial in cases like this where there has already been a determination regarding sufficiency of evidence. The Court explained that had the prosecutor not agreed to the erroneous addition of an element of the crime at trial, the Court could review whether Nix was correctly decided. "Our adversarial system of justice precludes the prosecution from harboring error at the trial level and subsequently seeking relief on the basis of that error."

The lesson: Nix the errors in the trial court to Nix the possibility that the appellate court will opine "this Court is left with no other option."

Sixth Circuit: 9-1-1 May be Invitation to Warrantless Entry....

2010-08-26T15:03:00.002-05:00

In a published opinion, the Sixth Circuit Court of Appeals addressed an issue of first impression in our circuit: Whether a 9-1-1 "hang call" gives rise to an exception to the 4th Amendment protections against warantless searches. In Johnson v City of Memphis, et al., Johnson was killed when officers entered his home without a warrant after receiving a report from dispatch that there was a hang-up call to 9-1-1 followed by an unanswered return call from the 9-1-1 to Johnson's residence. Johnson's widow filed a lawsuit under sec. 1983, alleging that the warantlees entry by two Memphis officers into Johnson's home without a warrant violated Johnson's 4th Amendment right to be free from unreasonable searches and seizures. The district court granted the City's motion for summary judgment.

While hesitant to fashion a per se ruling that 9-1-1 hang calls alone satisfy the exegincy exception to the 4th Amenment's warrant requirement, the Sixth Circuit held that where there is a 9-1-1 hang call, an inability to reach the caller by phone on a return call, and the door of the residence from which the call came is open upon the officer's arrival, the officers have an objectively reasonable basis in which to believe there is someone inside the residence who needs emergency assistance -- thus, satisfying the exigency exception to the 4th Amendment.

The Court noted that the very purpose of a call to 9-1-1 is a request for emergency assistance, and any use of 9-1-1 for non-emergencies places the caller in jeopardy of being charged with a midemeanor. Common sense would dictate that we should hope that officials would follow up on our 9-1-1 calls. It is not unlikely that a caller facing medical crisis would become unconscious during a call to 9-1-1, rendering the caller unable to address the dispatcher further. A rule that limits the authority of rescuers to follow up and provide emergency aide simply because the caller cannot articulate the emergency belies common sense.

MSC to Appellant: "Disobey trial court orders and your no Friend of Mine."

2010-08-16T15:00:00.003-05:00

After hearing argument on application, the Michigan Supreme Court recently issued an Order in lieu of granting leave. remanding a divorce case to the circuit court for clarification of an alimony award. In Friend v Friend , the parties sought a divorce after a 25 year marriage producing two children. The trial court ordered joint legal custody of the couple’s two minor children, while awarding the wife sole physical custody. The trial court permitted the mother to relocate to South Carolina with the children but entered orders for parenting time.

Unfortunately, the children did not wish to see their father for parenting time. The husband suspected that the mother was encouraging the children’s disinclination to see their father. As divorce proceedings continued, the wife continuously refused to abide by court orders entered in an effort to facilitate the relationship between the children and their father. Her lack of effort to take the children to court ordered counseling resulted in a finding of contempt by the trial court. Meanwhile, the trial court ruled on the couple’s property division and spousal support issues.

The wife appealed to the Court of Appeals, seeking clarification of the award. The Court of appeals affirmed and she sought leave to appeal to the Supreme Court. In response to the wife's application, the husband argued that the fugitive disentitlement doctrine barred the wife from seeking redress in the appellate courts because she had failed to follow the trial court's orders in the case.

Although the Supreme Court remanded the case to the trial court for clarification of the alimony award due to the ambiguity as to whether the award was intended to be periodic or alimony in gross, it declined to address the fugitive disentitlement doctrine. Instead, the Court ruled that the wife must abide by the parenting time orders to “purge herself of any outstanding findings of contempt in the circuit court within 90 days of the date of this order.”

Even though the Court declined to adopt the fugitive disentitlement doctrine per se, it is clear from the Court's order that an attorney representing a client in Mrs. Friend's position would be wise to begin rectifying (or prevent) the conditions that led to findings of contempt in the trial court prior to seeking relief on appeal.

Why a COA opinion is forcing me to change insurance companies

2010-05-18T11:19:00.003-05:00

Some auto insurance companies include an exclusion that lowers the amount the insured can recover for bodily injury if the injured person is a family member. The exclusion is known as the "family drop down" and it was at issue in Ruzak v USAA Insurance Agency (Docket 274993). Although this opinion was issued on June 24, 2008, it only recently came to my attention and is making me start investigating to switch auto insurance carriers from USAA to a carrier that does not include a family drop-down. The carriers known to use such a provision include USAA, Geico, Nationwide, and Farm Bureau.

This is the way the drop-down works: if your auto insurance policy contains a family drop-down, then if you pay for $300,000, $500,000, or even $1,000,000 in coverage, if a family member is injured in the accident, then the coverage for their bodily injury is dropped down to $20,000 per person and $40,000 per accident(the statutory minimum under the No-Fault Act). It may not have seemed like a big deal until I thought about the fact that I or my husband could be driving our car, get into an accident where it is our fault, causing injury to one of our daughters (ages 2 years and 3 months). Our girls' coverage for their bodily injuries would be limited to $20,000 ($40,000 per accident), even if we are paying monthly premiums for an $800,000 liability policy.

The Court of Appeals held in Ruzak that the insured had a choice to go with a different carrier, stating "there was no evidence that [the insured] had no other options regarding automobile insurance and that his only choice was to accept the terms as presented in defendant’s policy. Under a fair appraisal of the circumstances, [the insured]was free to accept the policy terms or reject them and to obtain automobile insurance through another provider."

Indeed, I do have a choice and I am choosing with my feet by taking my hard-earned premium money to a different carrier, one that does not include a family drop-down provision.

Common sense prevails; only explanation for ladder in road is that it fell off a motor vehicle

2010-04-20T08:12:00.003-05:00

Common sense prevailed in the published Court of Appeals opinion of Dancey v Travelers Property Casualty Co, issued April 6, 2010. In that case, a motorist was injured in single-vehicle accident after her vehicle hit a ladder lying in the roadway. Her insurance company denied her uninsured motorist benefits (which covers situations where there is a hit-and-run vehicle or where there is no direct physical contact with the hit-and-run vehicle). The insurance company argued that the insured was not entitled to benefits because she "no one could affirmatively state that the ladder fell off another vehicle."

After reviewing a series of older appellate decisions, the Court of Appeals affirmed the trial court's decision denying summary disposition. Even though none of the witnesses saw the ladder falling off a particular passing vehicle, the location of the ladder at the intersection of two freeways "supports an inference that the ladder in question must have fallen off another vehicle." The Court held that a jury could find that there was a substantial physical nexus between a hit-and-run vehicle and the ladder struck by plaintiff.

COA Holds City Not Entitled to Immunity from Residents' Waste Woes

2010-03-26T08:38:00.004-05:00

In Dybata v Wayne County, a published opinion, the COA held that the county was not entitled summary disposition based on governmental immunity because the sewage exception to immunity applied even where the plaintiffs failed to expressly comply with notice requirements. The plaintiffs filed suit against the city and county to recover damages resulting from a sewage back-up after after heavy rainfall. The Defendants filed motions for SD claiming governmental immunity based on plaintiffs' failure to follow notice provisions. Both the district and circuit courts denied the SD, reasoning that plaintiffs' notice of the "event" was sufficient to meet the statutory standard of filing a notice of intent to file a "claim."

The Court of Appeals affirmed for different reasons. The COA concluded that the list of names and addresses of those who had property damage, which plaintiffs provided to the county, was insufficient to meet the notice requirements of the statutory exception to governmental immunity. However, the COA pointed to the Defendant's obligations under the statute, finding that once the county received notice of the "event," it was required to provide the residents with notice of where and how to file notice of intent to file claims against the city and county. Because the residents' failure to provide notice of their claims to the county was the direct result of the county's failure to provide them with information on how to do so, as required by statute, the residents were not barred from filing claims against the city and county.

Accordingly, the county was not protected by governmental immunity because the sewage exception applied. The lower court reached the right result when it denied Defendant's summary disposition, albeit for the wrong reason, and the COA sent Defendant's argument swirling down the drain.

Exclusive remedy as in Monroe? MSC says, "NO! NO! NO!"

2010-03-15T13:24:00.005-05:00

In Michigan Dep't of Agriculture v Appletree Marketing, Inc, the Michigan Supreme Court held that the Agricultural Commodities Marketing Act (ACMA) does not provide the exclusive remedy for its violation and does not supersede preexisting statutory remedies or abrogate common law remedies.

The Court concluded that the Court of Appeals erred by relying on Morales v Auto-Owner's Insurance Co. In Morales, the Supreme Court stated, "[i]f a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.'" The Court distinguished Morales, noting that the proposition is inapplicable where the statute in question plainly states that it does not provide the exclusive remedy for its violation.

The Court further held that, "[t]he proposition articulated in Monroe Beverage should not be applied as a general statement concerning statutes that provide new rights and remedies irrespective of the specific language of such statutes. It should not, in other words, be applied outside the facts that give rise to its application or in a manner that is contrary to the plain meaning of statutory language."

COA holds that homeless man does not violate SORA

2010-02-03T09:16:00.002-05:00

In People v Dowdy, the Court of Appeals issued a published opinion interpreting SORA -- the Sex Offender Registry Act. A homeless man was prosecuted for not complying with SORA's requirements that a sex offender "report his or her new residence or domicile within 10 days after the individual changes or vacates his or her new residence [or] domicile..." MCL 28.725.

The Court of Appeals examined the statutory and dictionary definitions of "residence" and concluded that "the provisional location where a homeless person happens to spend the night does not fall within the ambit of these definitions. A homeless person is not provided an accommodation by another as a place to habitually sleep or store personal items." Indeed, the COA noted that the "concepts of habitually and regularity are antithetical to the circumstances of homelessness."

The COA affirmed the trial court's dismissal of the charges against the homeless defendant, and invited the Legislature to include a provision in SORA to address the reporting requirements for the homeless.

COA "Adopts" Use of Stays in the Battle of Paternity Act vs. Adoption Code

2009-12-23T15:34:00.007-05:00

The COA released a published opinion providing some clarification on whether paternity actions can ever take precedence over adoption proceedings. In MKK, Minor, the COA reversed the trial court's order denying the putative father's motion to stay adoption proceedings pending resolution of his paternity action. The COA also reversed the trial court's order denying him custody of the minor child.

The putative father filed his paternity action in April 2008. Just a month later, a petition to adopt was filed along with the birth mother's petition for a hearing to identify the father and terminate his parental rights. The putative father argued that the adoption proceedings should be stayed pending the outcome of the paternity action because the paternity action would render the adoption proceedings moot. At the hearing, DNA results were revealed showing a 99.99 probability that the putative father was, in fact, the child's biological father. Despite this evidence, his motion to stay the adoption proceedings was denied. The court continued with a best interest hearing under the adoption code, finding that custody with the putative father was not in the child's best interest, but declining to terminate his parental rights.

The COA cited the statutory exception to the statutory mandate that adoption proceedings take priority reasoning adoption proceedings may be stayed upon a showing of good cause, to be determined on a case-by-case basis. The COA held that the trial court erred in denying the motion in this particular case because the putative father was the biological father, wished to be present for the child's birth, had been diligent in attempting to perfect paternity, and he had made efforts to prepare for fatherhood.

Foreshadowing commentary to come, the COA stated, "we do not intend to create a "race to the courthouse," where a paternity action takes precedence over an adoption proceeding merely because the paternity action was filed first; rather, the timing of a paternity claim is but one factor to be considered in determining whether there is good cause under MCL 710.25(2) to stay adoption proceedings." It further explained that because Michigan courts follow the presumption that the best interests of a child are served by awarding custody to the natural parents, giving a paternity action priority over an adoption proceeding does not necessarily conflict with protecting the best interests of the child.

Given the conflicting views on the interplay between the Adoption Code and Paternity Act, there is sure to be substantial commentary on this new opinion--"stay" tuned!

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

2009-12-17T10:08:00.005-05:00

The Michigan Supreme 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.

Judgment creditors can go after some assets transferred to non-debtor spouse in divorce judgment

2008-07-03T10:00:00.003-05:00

In Estes v Titus, a woman brought a wrongful death suit against the man who killed her husband. She obtains a judgment but when it came time to collect the wrongful death judgment, the man was in prison for the murder with no assets (because he had transferred all of his assets to his wife when they divorced after the wrongful death suit began).

The wrongful death judgment creditor tried to intervene in the divorce action. The Supreme Court agreed with the trial court that third parties cannot intervene in divorce judgments. She then initiated a supplemental proceeding in the wrongful death case, alleging that the husband fraudulently transferred property to his ex-wife to avoid judgment creditors. She also tried to bring in the murderer’s ex-wife into the UFTA action so that she could collect her judgment from the property that had been transferred to the murderer’s ex-wife in the judgment of divorce. The trial court would not allow the wrongful death judgment creditor to pursue her UFTA claim against the ex-wife. The Supreme Court ruled—with a caveat--that a property division in a divorce could be the subject of an UFTA action. The caveat is that if the parties held the property as tenants by the entirety when they were married, then the judgment creditor could not go after those assets transferred in the divorce judgment.

Disincentive for Personal Injury Attorneys to Handle their own Appeals

2008-05-28T14:52:00.004-05:00

The Court of Appeals prohibited a trial attorney from recovering additional fees for his work in the appeal to the Court of Appeals in Reed v Breton. In that case, the trial attorney had a one-third contingency fee agreement with the plaintiff, but the agreement excluded any appeals. When the trial attorney sought the contingency fee plus the hourly fee for the appeal, the trial court said no because the total fee recovered was more than one-third of the plaintiff's net recovery. The COA relied on MCR 8.121, which sets a maximum attorney fees in personal injury and wrongful death actions. Even though the trial attorney entered in a separate hourly fee agreement for his client's appeal, the Court said that, under MCR 8.121, the trial attorney could not recover the additional sum for the work on the appeal. Interestingly, the Court did not apply this rule to another law firm who had worked on the Supreme Court phase of the appeal because those attorneys only worked under an hourly fee agreement and payment for their work was not at all contingent upon the result in the underlying case. Because this decision creates a disincentive for trial attorneys to work on their own appeals, it may turn out to be a boon for appellate attorneys.

COA Cleans up DHS Mess

2008-05-16T16:55:00.002-05:00

In re Orozco Minors , a rare published termination of parental rights case, the COA reversed a decision of the Macomb County Family Court terminating respondents’ parental rights when they were deported to Guatemala.
The case involved three respondents who were Guatemalan immigrants (husband, wife, and wife’s adult daughter). Between them, the respondents had four children. In 2005, DHS investigated the male respondent for alleged sexual abuse which was never substantiated. Another investigation followed in 2006 and the kids were removed from the home and DHS filed a petition to terminate parental rights on two of the respondents. After a combined trial, the court found that the petitioner failed to meet the burden of showing a statutory basis for termination by clear and convincing evidence, but took jurisdiction over the children anyway.
After failing to provide services and bring the children for scheduled visits, DHS phoned the INS and intentionally caused their deportation. At a 2007 hearing, the family court found that the petitioner’s actions were “morally repugnant” and noted that, despite the lack of cooperation from DHS, respondents still made attempts to visit the children.
DHS again sought to terminate parental rights, supplementing the original petition based on respondents’ alleged failure to attend visits and also because on the fact that respondents were deported. Testimony at the dispositional hearing revealed the caseworker’s extreme lack of effort to: (1) find the respondents services (to comply with agency agreement) in Guatemala, or, (2) send the children home to Guatemala with their parents. Nonetheless, the court found termination appropriate under §19(b)(3) based on the respondents’ inability to provide proper care and custody for the children because of their deportation.
The COA, citing United States Supreme Court, held that the family court could not properly terminate respondents’ parental rights on §19(b)(3) because the petitioner intentionally set out to create the ground for termination (based on deportation). By doing so, the petitioner violated respondents’ due process rights.
In addition to reversing on statutory and constitutional grounds, the COA held that the family court erred in its finding that termination was not clearly contrary to the children’s best interests. It cited the fact that the children are bonded with their parents, the only time they failed to visit was petitioner’s fault, and no abuse allegations were ever substantiated. In fact, the COA the record supported the COA conclusion that termination would harm the children as they would lose ties to their Guatemalan culture.
The COA further held that the family court’s continued exercise of jurisdiction over the children based on the supplemented petition was contrary to substantive due process because it constituted a de facto termination based on less than clear and convincing evidence of parental unfitness.
In this case, the actions of DHS, unnecessarily ripped a family apart. In many cases, these “morally repugnant” policies and actions are resolved by the family court before a family is subjected to prolonged separation. When it is not, as in this case, families suffer. Nobody can say for certain how frequently these alarming scenarios occur, but this Opinion definitely highlights the need for consistency on the part of all players in a termination proceeding. If an agency has too much power and acts contrary to a child’s best interests, the safety nets (L-GALS, Referees, Family Court Judges) must react swiftly, or nobody will be there to break the family’s fall.

COA Puts Brakes on Step-Parent Adoption; Reverses TPR

2008-04-25T12:05:00.002-05:00

In the case In re Michael Robert Benbow III, Minor, the COA reversed an order of the Clinton County Family Court terminating a father’s parental rights in a step-parent adoption case. The Trial Court based its ruling on the fact that the father failed to substantially support the child for more than two years pursuant to MCL 710.51(6)(a). Specifically, the court found that the father failed to make payments during a large portion of time between July of 2005 and July 2007. However, the court neglected the fact that his obligation to pay support was abated due to incarceration for most of 2005. When the ordered obligation was reinstated the father began making his child support payments regularly, with the exception of a few months. The trial court failed to consider the “substantial compliance” portion of MCL 710.51(6)(a) in terms of compliance with the support order that was in place, as directed by the statute. Instead, the COA concluded that the trial court made its erroneous finding by incorrectly considering the time period in which the support was abated. Consequently, the Court reversed the termination order, thus putting a kibosh on the step-parent adoption.

Custody Hearing Allowed for Weekend Parent

2008-04-18T09:55:00.004-05:00

In Powery v Wells, the COA affirmed a trial court’s order changing custody of a minor child based on the mother’s move from Ludington to Traverse City. The trial court ordered the change even though the move was less than 100 miles and the child had an established custodial environment with both parents. The COA reasoned that the father met his burden of illustrating a change in circumstance by showing that the move to Traverse City would disrupt the current parenting time arrangement. It further held that the modification of parenting time triggered by the mother’s move amounted to a change in the established custodial environment because it would turn one parent into a “weekend parent.” The COA concluded that the move was not in the child’s best interest based on the disruption in parenting time. Although the trial court failed to include a statement in its opinion that modifying the custody order to grant defendant weekly physical custody during the school year was in the child’s best interest, the Court inferred that conclusion from the trial court’s written opinion. The opinion resulted in the father obtaining custody during the school year if the mother chooses to stay in Traverse City. Interestingly, this decision ends in the same result that the trial court ostensibly wanted to avoid--turning the mother into the weekend parent. This begs the question: what is the relevance of the 100 mile rule if a change in circumstance can be found with any move that slightly alters the status quo?

Disproportionately weighing extramarital affair in property division

2008-03-26T14:54:00.003-05:00

In Berger v. Berger, a Defendant-father appealed from a judgment of divorce to the
Michigan Court of Appeals following a Trial Court ruling that the Plaintiff-mother was to receive custody of the parties two children as well as a 70/30 division of marital property. While the Court of Appeals agreed with the Trial Court’s weighing of the best interest factors in favor of the mother receiving custody, it reversed the Trial Court's 70/30 division of property. Upon review of the Trial Court’s findings, the Court of Appeals stated that it appeared the Trial Court’s motives in diverging from the normal equitable division of property were based on the desire to “punish the Defendant for his affair with Johnson (the nanny), which the court found particularly egregious.” While the Trial Court was within its discretion to consider and weigh the factor of the extramarital affair by Defendant, the Court of Appeals pointed out that it was clear the lower court gave this factor disproportionate weight and the division of property was in fact, biased and inequitable.

One might wonder how the holding in this case matches up with that of the decision recently in Jackson v. Jackson, (see blog entry dated February 20, 2008) where the Court of Appeals affirmed a 97/3 division of marital property based on fault by the Defendant in the marriage. While seemingly similar factually, the Berger case can be contrasted with Jackson because here the Defendant’s conduct (an extramarital affair) while egregious, is certainly not on par with the Defendant’s efforts in Jackson to poison her husband in order to be with another man and take her husband’s money. There, the Court said that the behavior was so egregious it was appropriate to weigh it heavily, in Berger, the Court specifically stated that while the affair by Defendant should be a factor, it should not have been weighed as heavily as the Trial Court did.

COA releases two published opinions on termination of parental rights

2008-03-03T13:47:00.002-05:00

COA Reverses TPR Case: Says to Trial Court Mind Your Pleas and Q’s

In DHS v Holm, the Court of Appeals reversed a decision terminating respondent’s parental rights after holding that the trial court improperly exercised jurisdiction. The respondent allegedly sexually abused two of his daughters. The abuse allegation was verified as to one of the daughters because respondent’s wife actually walked in on respondent while having sex with their daughter. DHS submitted a petition to the trial court stating that all four of respondent’s children were within the jurisdiction of the court based on respondent’s sexual abuse of two of the girls and past criminality. However, the petition only alleged sexual abuse against two of the girls and contained a paragraph about the instance witnessed by the mother. At a preliminary hearing the mother agreed to plea to that paragraph of the petition. The trial court exercised jurisdiction on that basis alone. The COA held that the trial court may only exercise jurisdiction in such cases where one of the statutory grounds expressed in MCL 712A.2(b) is met. In this instance, none of those grounds existed since it was the mother who agreed to plea to an allegation contained in the petition and not the “respondent” as required by statute. Consequently the trial court could not obtain jurisdiction and the order terminating rights was vacated.

Prior Parental Conduct Can Support Termination Prior to Paternity

In DHS v Dwayne Davis and Karen Jordan, the respondent father claimed that the trial court could not properly consider his criminal conduct while he was only the putative father (before he perfected paternity) to decide whether termination is appropriate pursuant to 712A.19b(3)(g) because, at that time, he did not owe the child a legal duty. The court disagreed, noting that the issue had only been addressed previously in one unpublished case In re Maddox. The Court agreed with the panel in Maddox, this time in a published opinion, holding that even though a putative father may not owe a legal duty to a child, he owes a moral duty as the biological father and he certainly could have offered support to his child. The court further held that the father’s failure to timely perfect paternity (he waited 15 months) could be used against him as evidence of his failure to provide care and custody. The decision appealed to a common sense interpretation found in Maddox where the Court reasoned that adopting respondent’s position as to prior conduct would, “contravene the fundamental purpose of child protective proceedings by excluding from consideration a parent’s conduct no matter how egregious, until paternity was established.” Now this sensible conclusion is binding precedent....conduct of a parent prior to establishing paternity can be used to support termination of his parental rights.

Sixth Circuit Holds Serial Harasser's Conduct Violates Title VII

2008-02-27T09:28:00.002-05:00

Four female employees sued Anheuser-Busch arising from sexual harassment claims against a male employee (Robinson) occurring over Robinson’s ten-year span of employment. Each time, the employer investigated the claims internally by interviewing the women and Robinson. After the first reported incident Anheuser tried to fire Robinson but was unable to due to union opposition under the collective bargaining agreement. The investigations never resulted in punishment until Robinson was finally terminated in 2003. The District Court granted summary judgment in Hawkins v Anheuser-Busch, holding that none of the women provided sufficient evidence to establish that the alleged harassment was sufficiently severe or pervasive to create a hostile work environment and that no reasonable juror could conclude the employer knew or should have known of the male employee's harassment or that the employer failed to take prompt action.

According to the Sixth Circuit, for conduct to be “severe and pervasive” it has to be more than offensive and must consist of more than words that have sexual content or connotation. The workplace, rather, has to be “permeated with ‘discriminatory intimidation, ridicule or insult’ sufficiently sever or pervasive to alter the conditions of employment.” Factors such a frequency, physical threats, and how much it interferes with the employees work environment must be considered. The Court pointed out that harassment that is continual or has physical invasion is more likely to be pervasive and severe. Two of the four women had shown enough proof in their depositions to establish that they were harassed continually while at work by Robinson and that he physically invaded them by “rubbing up against them,” which was sufficient to withstand summary judgment on the issue of whether the harassment was severe or pervasive under Title VII.

The Sixth Circuit also clarified that a “fact finder may consider similar acts of harassment of which a plaintiff becomes aware during the course of her employment, even if the harassing acts were directed at others or occurred outside the plaintiff’s presence.” It is the job of the fact-finder to weigh this type of evidence for relevancy; the more proximate in time the harassment is to plaintiff’s case, the more relevant it becomes. These women knew of other female employees who had claimed they had been harassed by Robinson and that knowledge played a part in their feeling afraid to come forward and that the work environment was, in fact, hostile.

The Court went on to address the adequacy of Anheuser’s response to the notice of harassment. Because Robinson was known to be a serial harasser, the employer is liable if its responses were permissive or not reasonable to end the harasser’s pattern of harassment. Based on the facts in this case, the Court held that the employer did act unreasonably when they knew that Robinson was a serial harasser because they did nothing more than move the women to a new line at work. They did not send Robinson to counseling pursuant to company policy and they did not reprimand him or attempt to fire him because of their inability to do so after the first incident of harassment.

Compare the serial harasser in this case to an interesting line of cases in the Michigan appellate courts involving serial harasser Daniel Bennett, a supervisor at the Ford Wixom Plant, in Elezovic v Ford and Bennett (Supreme Court and Court of Appeals on remand and second trip to Supreme Court) and Perez v Ford and Bennett (Court of Appeals and Supreme Court).

Attempting to murder husband will affect share of property division

2008-02-20T14:27:00.004-05:00

What was this defendant thinking? In Jackson v Jackson the Court of Appeals affirmed a property division that awarded 97% to the husband and 3% to the wife, after the wife tried to murder her husband with rat poison. She was also having an affair with another man and had conversations with him about what assets she would receive in the event of her husband's death. The trial court held that defendant was at fault for the breakdown of the marriage, her conduct was shocking and egregious, and she should not be allowed to benefit from her wrongdoing.

While the Court of Appeals recognized that fault should not constitute a punitive basis for an inequitable property division, defendant’s conduct was so egregious that it was “appropriate
to weigh fault very heavily in deciding an equitable distribution of the marital estate.” The Court concluded that the wife's argument that the property division was "unfair and inequitable" was meritless.

Supreme Court approves equitable tolling; rule change on horizon

2008-02-13T11:07:00.003-05:00

The Michigan Supreme Court has re-confirmed "equitable tolling" for delayed applications for leave to appeal in the Court of Appeals in Beavers v Barton Malow. In that case, the appellant's case had been previously dismissed for failure to timely file appellant's brief and the court reporter certificate. The appellant filed an application for leave to the Supreme Court, which was denied.

By the time of the denied application in the Supreme Court, the one-year time period for delayed applications under MCR 7.205(F)(3) had already passed. However, appellant filed a delayed application in the Court of Appeals, seeking relief under the doctrine of equitable tolling while his case had been previously pending in the Court of Appeals and Supreme Court. The Court of Appeals rejected his argument and appellant filed a second application in the Supreme Court, this time on the equitable tolling issue.

Although the Supreme Court's order allowed the filing of a delayed application for leave beyond the one-year filing period because equitable tolling applied, the Court wants to consider a rule change. Time will tell whether the rule change will incorporate the common law equitable tolling provision, or clarify a party's inability to rely on equitable tolling.

Children Can Testify in Custody Disputes

2008-01-25T17:09:00.000-05:00

In Surman v. Surman, the trial court allowed a 12-year-old boy to testify in open court during a custody trial regarding what type of abuse had occurred between the child and his father. The Appellant-Father argued on appeal that the trial court should not have allowed any open court testimony by his son in a custody battle. The Court of Appeals affirmed the trial court and concluded that a child’s testimony in open court during a custody dispute is appropriate when the testimony bears on allegations of abuse and neglect.

The Court of Appeals reasoned that in abuse and neglect cases, the child involved in the incident is often the only available witness with firsthand knowledge of what happened. Thus, the child has to be allowed to testify as to these incidents in open court in order to prevent infringement on the allegedly abusive parent’s due process rights. If the court were to conduct this interview regarding abuse in camera, there is a good possibility the accused parent’s due process rights would be violated. This is particularly important when there are allegations of abuse because the trial court “is called upon to make credibility determinations, weigh the evidence, and, most importantly, resolve factual conflicts, all of which must be supported by the great weight of the evidence.” The evidence presented regarding the abuse and neglect allegations directly ties into the trial court’s best interests analysis.

Dog attack not "provoked"

2008-01-09T12:13:00.000-05:00

On January 8, 2008, the Court of Appeals issued a published opinion analyzing Section 287.351 of the dog bite statute in Koivisto v Davis. In that case, two huskeys managed to escape from the kennel where they were being boarded and came over to the plaintiff's yard. The plaintiff was sitting on her back porch with her two cats. The dogs attacked the cats, and in the process of trying to save her cats, the plaintiff sustained 28 puncture wounds to her hands, which may result in permanent nerve damage.

Under Michigan statute, "[i]f a dog bites a person, without provocation . . . the owner of the dog shall be liable for any damages suffered by the person bitten..." MCL 287.351(1). The Court in Koivisto examined whether the dogs had been provoked by the plaintiff when she gouged their eyes and took other steps to defend her cats. The Court concluded that the plaintiff did not provoke the dogs, because when the dogs came on to her property they were already provoked. The Court noted that when the dogs entered plaintiff's property, they "immediately exhibited vicious and aggressive behaviors" and concluded that plaintiff's response to that aggression could not amount to "provocation" under the statute because they had exhibited this aggressiveness before plaintiff took any action to defend her cats.

Two interesting notes on this case: (1) the Court of Appeals seems to be publishing more per curiam opinions. It would be nice for the judges to take credit for their opinions, and (2) apparently not an issue in this appeal, was whether the dog owner's liability could be limited in anyway by the fact that the dogs were at a kennel when they escaped, rather than in the owner's care. I would think that the owners should be able to bring an indemnity (or some other action) against the kennel owners.

From the Mouths of Babes...

2007-12-28T17:10:00.000-05:00

In lieu of granting Defendant’s application for leave in a case involving the murder of a four-year old child, the MSC issued a memorandum opinion in People v Michael William Stamper, on December 27, 2007. The Court affirmed the defendant’s conviction and the decision of the Court of Appeals. In doing so, the Supreme Court held that a child can have the capacity to be conscious of his own impending death for purposes of the dying declaration exception to the general hearsay rule. The Defendant’s girlfriend heard her four year old son crying after Defendant had given him a bath. When she asked the child to open his eyes, he said, “Mom, I can’t, I’m dead.” The child also said, “don’t bother me, I’m already dead,” and later at the hospital, and shortly before his death, the child indicated that his bruising was, “from Mike [Defendant],” who was, “Mom’s wife.” The Court concluded that, despite the child’s young age, the facts of the case satisfied the hearsay exception and his statements against Defendant were properly admissible as dying declaration.

COA affirms that election law is unconstitutional

2007-11-18T14:03:00.001-05:00

In a case of first impression that has brought Michigan national attention, the Court of Appeals affirmed Ingham County Circuit Court's (Judge Collette) decision that rendered Michigan's new election law unconstitutional. The State of Michigan brought Grebner v State of Michigan as an emergency appeal and the Court issued its opinion on November 16, 2007 (Judges Meter and Owen in the majority, Judge Whitbeck dissenting).

The State's appeal presented the narrow question to the Court of whether voter lists were "public property being used for private purposes" because the Act required the Secretary of State to provide the lists of the names of persons who voted in the Presidential primary and whether they voted in the Democrat or Republican primary. Chief Judge Whitbeck noted in his dissenting opinion that the reasons this narrow and tangential issue has reached the forefront of the State's attention is because, when the Legislature enacted the law, it included a non-severability clause, which means that if any part of the Act is unconstitutional, then the entire act falls, including the portion of the Act which changed Michigan's election primary date for this year's presidential primary election to January 2008.

According to the Michigan Constitution, "The assent of two-third of the members elected to and serving in each house of the legislature shall be required for the appropriation of public money or property for local or private purposes." The Legislature did not garner a 2/3rds vote to appropriate State funds for the purpose of distributing the voter lists to the two major political parties. The majority and dissent disagreed as to whether distributing the list was "for a private purpose."

It remains to be seen whether the Legislature will be able to fix the Act in time for Michigan to hold a presidential primary election, or whether the Michigan Supreme Court will take issue with the Court of Appeals' majority decision. Either way, time will tell...and soon. [NOTE: The Supreme Court reversed the COA's decision on November 21, 2007, in a 4-3 vote. Click here for the Supreme Court order].

Same-Sex Harassment Falls under Civil Rights Act

2007-11-07T09:46:00.001-05:00

The Court of Appeals recently decided that a man could bring a hostile work environment claim based on the conduct of another male co-worker in Robinson v Ford Motor Co (published on 10/30/07). In Robinson, a co-worker/defendant at Ford Motor Company described his conduct as sexual horseplay by a heterosexual male. This “sexual horseplay” included slapping plaintiff on his buttocks, pinching his nipples, exposing his testicles to another co-worker while grasping plaintiff’s hand and attempting to make plaintiff touch them. You'll have to read the opinion for more of the salacious details.

First, the Court of Appeals held that plaintiff’s same-gender hostile work environment claim is cognizable under the Civil Rights Act. The Court relied on the United States Supreme Court's decision in Oncale v Sundowner Offshore Servs, 523 US 75, 80 (1998), that interpreted an identical phrase found in CRA. In reaching the decision in Robinson, the Court unequivocally held that the defendant's conduct was of a “sexual nature.” The term of “sexual nature” does not limit behavior pertaining to “sexual relations.” The Court held that when the perpetrator is heterosexual and member of the same sex, the conduct does not have to involve homosexual advances or sexual desires. The conduct in Robinson was of a sexual nature because it involved “direct contact with sexual organs or sexual parts of the body accompanied by either express or implied references to sexual activity.”

Second, the Court remanded to the trial court because the trial court had not examined whether the harassment was “because of sex” (which is an element of a sex discrimination claim, but not an element of the hostile work environment claim). Oncale provided sample avenues of showing discrimination was “because of sex”: (1) the harasser made sexual advances out of sexual desire, (2) the harasser is motivated by general hostility to the presence of men in the workplace, (3) the plaintiff offers ‘direct comparative evidence’ about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

If a plaintiff like the one in Robinson could show that the harasser treated men differently than woman (in order to establish “because of sex”) then what happens to the pervert who is an equal opportunity harasser against men and women? Is his employer immune from liability for its employee's lewd acts at the workplace unless the victims can show he is bi-sexual and had sexual desire for both men and women?

COA’s Reversal of TPR TERMINATED!

2007-11-06T10:55:00.000-05:00

On August 9, 2007, the Michigan Court of Appeals released an unpublished opinion reversing an order terminating parental rights. In re Engle, unpublished per curiam opinion of the Michigan Court of Appeals, released August 9, 2007 (Docket No. 275064). Since reversals of termination cases are few and far between we immediately blogged the case (see blog entry "It is Possible! COA reverses TPR case" dated August 17, 2007). But just like Michigan summers, the reversal did not last. On November 2, 2007, the Michigan Supreme Court issued an order peremptorily reversing the Court of Appeals’ decision to reverse the termination and reinstating the order of the Oakland County Circuit Court terminating the biological mother’s parental rights.

In its order, the Court cited three reasons for peremptory reversal, stating that the COA: (1) misapplied the clear error standard by substituting its own judgment for that of the trial court, (2) failed to acknowledge that the applicable statutes and court rules do not require efforts for reunification or provision of services under the circumstances of the case, and (3) rendered a decision that was contrary to the clear and convincing evidence supporting the statutory grounds for termination and the best interests of the minor children. And so the Supreme Court has restored the trend affirming TPR cases....for now.

COA Upholds Limitation on Grandparent Visitation

2007-10-18T08:01:00.000-05:00

In Brinkley v Brinkley, the Court of Appeals rejected appellants' argument that MCL 722.27b(5) unconstitutionally violates grandparents; due process and equal protection rights. The statutory provision grants deference to the decisions of the biological parents by providing that a grandparents' complaint or motion seeking visitation must be dismissed where two fit parents sign an affidavit opposing visitation.

In determining whether the provision passes constitutional muster, the Court declined to apply a strict scrutiny standard and clarified that grandparents do not have a fundamental right to a relationship with their grandchildren. The Court instead found that the rational basis standard was applicable because the case turned on issues concerning the rights of parents versus the rights of grandparents as opposed to issues of government interference with familial relationships.

Although the Court recognized that grandparents can play an important role in a child's life, it highlighted that the statutory scheme gives deference to parents' preferences, except in narrowly prescribed circumstances. To allow grandparents an opportunity to challenge an affidavit signed as directed by MCL 722.27b(5) would "thwart" the whole statutory scheme. Following that reasoning, the Court further concluded that the statute was rationally related to the legitimate purpose of preserving fit parents' fundamental right in managing the care, custody, and control of their children.

The Court also denied the grandparents' equal protection claim and found a rational basis for the legislature distinguishing between the class of grandparents who may seek court intervention, and those who may not. It illustrated the rational basis by noting that parents have the right to make decisions regarding their children's welfare, including contacts with grandparents, unless special circumstances justify state intervention. Those "special circumstances" recognized by the statute are all indicative of situations where the child's natural parents would not be able to make decisions in child's best interest and, thus, court action would be required.

This decision closes the door on grandparent visitation where both parents oppose grandparent visitation. In the case of parents v. grandparents, parents prevail once again.

Court of Appeals Halts Downward Departure

2007-10-11T08:55:00.000-05:00

In People v McNeil, an unpublished per curiam opinion of the Michigan Court of Appeals, decided October 4, 2007, the Court of Appeals found that the trial court had abused its discretion by granting the defendant a downward departure from the sentencing guidelines for reasons that were not substantially compelling. The defendant pleaded guilty to CSC I and was sentenced to 10 to 22 months, although the recommended statutory range for the offense is 27 to 45 months. The trial court indicated that the departure was warranted because the defendant was attending school, had completed sex offender counseling, had registered as a sex offender, had tested negative for drugs and alcohol, and had reported to the probation department as required. Basically, the defendant did what he was supposed to do.

The Court of Appeals reasoned that a defendant should not be rewarded for doing what is expected of him and that granting a downward departure under these circumstances constitutes an abuse of discretion absent any other substantial and compelling reason for the downward departure. The sentence was vacated and remanded to the trial court for re-sentencing. The lesson: if a defendant has not stepped up and done more than what is naturally expected of him, his sentence is not likely to be stepped down.

Attorney Contempt Upehld

2007-09-20T16:01:00.000-05:00

On September 11, 2007, the Court of Appeals issued a published decision regarding attorney contempt and sanctions in DeGeorge v Warheit. A trial court had sanctioned plaintiff and his attorney for filing a frivolous lawsuit. The trial court then ordered that the attorney not transfer any funds, except funds needed for food, clothing, and shelter. The attorney violated the order by transferring money, claiming that the money was a loan. The trial court then held the attorney in criminal contempt and ordered the attorney's incarceration for 30 days, or until the attorney could show cause as to why he should not be held in further contempt. The trial court adopted the bankruptcy court's findings regarding the attorney that the attorney “intended to hinder, delay and defraud [opposing party] and create a sham transaction to prevent
[opposing party] from reaching [the attorney]’s interest in his law firm through the appointment of a receiver[.]”

The attorney raised many arguments on appeal (including due process violations, improper findings by the trial court who relied on bankruptcy court's findings). He also asserted that the trial court's sentencing him to jail was an improper attempt to collect a debt. The Court of Appeals held that, unlike a contractual debt for which the attorney could not be imprisoned, the trial court imprisoned the attorney for failing to comply with the court order that forbade him from transferring his assets. According to the Court, there is "no indication that the trial court employed the criminal contempt citation as a punishment for [the attorney]’s failure to pay the debts he owed appellees."

It is possible! COA reverses TPR case

2007-08-17T09:58:00.000-05:00

In Michigan, it is well-known that termination of parental rights cases are very rarely reversed on appeal. Yet, in an unpublished opinion, DHS v Engle, released August 9, 2007, the Court of Appeals did just that.
The respondent had her parental rights to 6 minor children terminated because she failed to protect the children from long-term sexual abuse at the hands of her husband and failed to properly provide for their medical needs and education. The issue before the Court was whether the mother could properly parent the children within a reasonable time given that her husband was now incarcerated, she had divorced him, and she had completed parenting classes and is now receiving counseling.
Although the Court of Appeals agreed that she had failed to protect the children in the past, it was persuaded that the change in circumstances via the removal of her abusive husband from the situation rendered termination inappropriate. The Court was convinced that a mistake had been made where the trial court neglected testimony by professionals who illustrated that the mother was open and willing to receive treatment and that her passive-dependant disorder was caused by an abusive relationship spanning 27-years. The Court reasoned that because the home environment had changed due to the abusive husband’s long-term incarceration, the mother would now be able to properly parent the children.
Finally, the Court of Appeals decided that termination of the mother’s parental rights was contrary to the children’s best interested, stating that, “Emotional harm [suffered by children due to termination] outweighed the speculative harm or neglect that respondent’s passive nature would cause the children in the future.”
It is unclear whether this unpublished case is any indication that the Court of Appeals will be more apt to look for change in circumstances as a persuasive reason to reverse termination cases. It is clear, however, that the appellate courts in Michigan face an extremely delicate statutory balance between acting in the child’s best interest and giving a parent a second chance.

Getting away with murder

2007-07-27T15:00:00.000-05:00

In a travesty of justice, the Michigan Supreme Court ruled on July 25 that the discovery rule is no longer applicable to wrongful death actions--even if it was impossible to bring the suit within three years of the death. The Court reversed decades of precedent in Trentadue v Gorton, a case that arose from the tragic and brutal murder/rape of a woman in Flint in 1986. The killer was able to evade authorities until 2002, when DNA evidence finally linked him to the crime.

Within 6 months of learning the identity of the killer (he worked for a lawn sprinkler company that was servicing the property on which the victim lived), the victim's daughter filed a wrongful death action against the lawn sprinkler company and her former landlord [note: The sprinkler company was owned by the murderer's parents and they knew he had been convicted of assaulting women. The victim had also asked her landlord to provide better security on the premises where she lived]. Even though there was no way for the victim's daughter to know who her mother's killer was until the police connected the DNA evidence to the murderer in 2002, according to the Supreme Court, she is barred from bringing an action by the statute of limitations.

Michigan Supreme Court puts Birmingham park "in the doghouse"

2007-07-20T12:26:00.000-05:00

On July 18, 2007, the Michigan Supreme Court issued its Opinion in Bloomfield Estates Improvement Association, Inc v City of Birmingham, holding a dog park to be a violation of a deed covenant restricting land use to solely residential purposes. Further, the Court held that Plaintiffs could enforce the covenant against the city even where they had watched without objection as the land had been used as a park for the past seventy years because a dog park is a "more serious violation" of the restriction.
The majority reasoned that a dog park is not a residential purpose pursuant to the language contained in the deed restriction because a dog park, unlike a fenced in back yard, is not attached to a residence and could contain an unlimited number of dogs. The majority went so far as to equate a dog park with a public kennel.
In its Opinion, the majority also concluded that a party who has failed to object to a violation of a deed restriction does not lose the right to object to a more serious violation of that restriction. Although it admitted that the determination of what is a “more serious” violation is dependant on the facts of each case, it made a conclusory determination that a dog park is a “more serious” violation of the residential purposes restriction than a regular park. In doing so the Court conducted a factual analysis appropriate for a trier of fact. Depriving the jury of its role in cases that require weighing of credibility and application of facts to law, is a dangerous trend that could inevitably serve to upset the delicate balance between the role of the jury as trier of fact and the role of the judge.
The Bloomfield Estates Opinion may have a profound impact on the enforcement of restrictive covenants and on the means in which such covenants are construed in Michigan. Although it is yet unclear how far these impacts will reach, one thing is certain: for Michigan dog lovers, finding a place for casual recreation may no longer be a walk in the park.

Attorney fees requires agency relationship

2007-06-30T16:09:00.000-05:00

The Michigan Supreme Court reversed the Court of Appeals' award of attorneys fees to the in pro per attorney under the Open Meetings Act in Omdahl v. West Iron Board of Education. The Open Meetings Act allows the recovery of "actual attorney fees." The Court reasoned that an "attorney" implies an agency an agency relationship with another person or entity. Therefore, to obtain attorney fees under the Act, the attorney has to represent another, and not himself. The majority opinion did not analyze whether the attorney fees were actually incurred.

Grandparent Visitation statute constitutional

2007-06-07T17:26:00.000-05:00

The Court of Appeals held that the statute permitting a petition for grandparenting time is constitutional in Keenan v. Dawson. The case arises from a tragic series of facts, and will likely be appealed to the Michigan Supreme Court. The Court considered and rejected the father's as-applied challenge to the constitutionality of MCL 722.27b(4). Although there is a presumption that a fit parent's decision to deny grandparenting time does not create a substantial risk of harm to the child's mental, physical, or emotional health, the Court agreed with the trial court's findings that the presumption was rebutted in this case.

Offer of Judgment rule

2007-05-24T09:12:00.001-05:00

Although the Michigan Supreme Court rarely addresses the offer of judgment rule, MCR 2.405 (I could only find one previous case--Freeman v Consumers Power Co., 437 Mich 514, 473 NW2d 63 (1991)), the Court issued an opinion this week regarding the interplay of offers of judgment in equity actions in Knue v Smith. In this quiet title action, a party made an offer of judgment of $3,000 in exchange for a quitclaim deed. The Court held, in a highly divided decision, that the offer was not an offer to stipulate to "the entry of a judgment in a sum certain" as required by MCR 2.405. The decision has important implications for attorneys in real property disputes, which typically involve equity issues.

Apsey and out-of-state notary requirements

2007-05-02T08:49:00.000-05:00

The Michigan Supreme Court issued a long-awaited decision in Apsey v. Memorial Hospital yesterday. The opinion clears up an important area of law that was muddied by the Court of Appeals' decision in 2005. Although this decision arose from a medical malpractice case, its implications are far-reaching. I predict that Apsey will be the Court's most important decision of the 2006-2007 decisional year. Interestingly, each of the nine amicus curiae briefs (including briefs from the MDTC, MTLA, and SBM) that were submitted in this case supported the plaintiff who had lost in the Court of Appeals because the notarized affidavit of her expert witness was not authenticated by a clerk of the court in the county in which the affidavit was made. In short, the Supreme Court's decision confirms that an out-of-state affidavit that is notarized in accordance with the laws of that state satisfies Michigan's affidavit and notarial requirements and can be accepted in Michigan judicial proceedings without further authentication.

Silent 911 call does not create Reasonable Suspicion

2007-04-24T17:45:00.000-05:00

The Sixth Circuit affirmed a trial court's motion to suppress evidence in United States v. Cohen. In that case, police officers responded to a silent 911 call. Although other circuits have ruled that a 911 call is more reliable than an anonymous tip, the court declined to extend that rule to the facts of this case "Given the almost complete absence of information communicated by the silent 911 hang-up call and the limited additional information known to Officer Pender when he stopped Cohen’s car." The court held that, under the totality of the circumstances, the police officers did not have reasonable suspicion to conduct the investigatory stop.

Courts Citing to Wikipedia

2007-04-06T16:33:00.000-05:00

As I was reading COA's decision in Frost v Minnesota Life Insurance Co, I noted the court's citation to DSM-IV (the leading diagnostic treatise for mental disorders). That citation made me recall another case where the Michigan Supreme Court cited to Wikipedia to define a psychological term. In MDOT v Haggerty Corridor, Justice Young relied on Wikipedia to define a psychological phenomenon known as "hindsight bias" (see note 36 of the opinion). In Justice Young's defense, the case had nothing to do psychology; instead he was making an analogy. But it seems that the courts are more willing to cite to Wikipedia, and presumably so are the litigants before them. It seems dangerous to rely on a "source" that can be edited by anyone at any time, regardless of accuracy of the post or expertise of the poster.

Another chance to consider paternity

2007-03-29T11:00:00.000-05:00

Coincidentally after posting about Barnes v Jeudevine last night, I learned this morning that the Court of Appeals recently issued an opinion on another paternity case: Sutton v. Diane. I would not be surprised if this case is appealed to both the Michigan Supreme Court and then to the United States Supreme Court because it raises issues of equal protection and due process when suit was filed on behalf of a minor child to learn the identity of the child's father so as to access medical history and other information about the child's biological father. The COA said that the child did not have standing to commence the paternity action. Although DNA tests revealed that the mother's husband was not the child's biological father, the COA held that "we are not prepared at this time to find constitutionally protected interests under the facts presented, such that this 'paternity' action may proceed."

Supreme Court Battles Over Paternity

2007-03-28T20:39:00.000-05:00

The case of Barnes v. Jeudevine came out last summer, but is still worthy of discussion. The Supreme Court hotly debated this paternity appeal. I particularly admire Justice Markman's dissenting opinion. The Court held that the biological father of a child did not have standing to sue for paternity, even though he and the mother had signed an acknowledgment of paternity and even though he was the only father the child had ever known. The case also raises interesting questions about default judgments in the divorce context.

Unnatural Accumulation of Snow & Ice

2007-03-22T10:06:00.000-05:00

The Court of Appeals recently decided a case that I had been following since it hit the local news stations after two young girls were hit by a drunk driver after they walked onto Saginaw Street because the sidewalk was impassable due to snow and ice in Estate of Buckner. The only issues on appeal involved the case against the City of Lansing (the trial court denied summary disposition). The COA held that an unnatural accumulation of snow and ice could fall under the highway exception to governmental immunity. The Court noted that more discovery was needed to determine whether, under the facts of this case, the City is entitled to immunity.

Argument in Omdahl

2007-03-07T17:17:00.000-05:00

The justices had many questions today for the attorneys in the Omdahl case. Many of the questions related to the meaning of the term "actual attorneys fees" as used in the statute, whether an attorney has to represent a client to recover, and whether attorneys fees are actual if a financial obligation is not incurred by the client. Based on the questions, I did not leave the argument with a sense for how the Court might rule. I wish the parties had talked about the broader implications of the court ruling in their favor, because it could certainly affect attorney fees cases outside of the Open Meetings Act. Here is a question, how can attorney only be an attorney when the attorney represents a client, if the attorney has ethical obligations regardless of whether the attorney is in court and/or representing a client?

Omdahl and Attorneys Fees

2007-03-06T09:21:00.000-05:00

Omdahl is a case that came out last year, but is scheduled for a MOAA (mini oral argument on application) before the Michigan Supreme Court tomorrow, March 7, 2007. The Court of Appeals held that an attorney representing himself in an Open Meetings Act (OMA) challenge could recover attorneys fees. I think this case could have implications for the recovery of attorneys fees beyond the OMA. I haven't decided whether I agree with the COA's decision. I think the case could potentially be good for attorneys who decide to reprsent themselves because they can be compesnated for the time they devote to a case even though they did not have a cash outlay to hire an attorney. But the case could be bad for our clients who we represent in cases where any in pro per attorney is on the other side and the in pro per attorney did not actually expend money on attorneys fees.

Introduction to Liisa R. Speaker's blog

2007-03-06T09:12:00.000-05:00

I am an appellate attorney in Lansing, Michigan and wanted a blog to share commentary on recent cases that I thought were inteteresting or significant. My idea for the blog arose after I noticed that during my daily reading of the e-journal, I would find at least one or two cases every week that gave me pause to consider the decision, print the case, and/or discuss the case with colleagues. I hope this blog will become a forum for attorneys to discuss appellate decisions that affect our clients.