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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.

Labels: Clinton County, genuine issue of material fact, MCR 2.116, Michigan, summary disposition

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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.

Labels: adoption code, Clinton County, Michigan, termination of parental rights

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