Speaker Law
Blog

Timing is Everything in Child Custody

Posted on Friday, July 28, 2017
               The Michigan Court of Appeals (MCOA) vacated and remanded the trial court’s order in Fante v Nova, Nos. 334735, 336085 saying of the changes made in this custody dispute that were not a short removal, even though classified as "temporary". "Removing a child for an indefinite time, however, equally obviously does implicate the Child Custody Act. Likewise, once a child is in a new environment for a significant length of time, the trial court must determine whether a new established custodial environment exists and may not simply “revert” the child back, even if the initial removal was intended to be temporary."

What was it about this custody matter that caused the MCOA to vacate and remand with such vitriol?

               First, a short review of the facts. In 2011, a consent judgment granted the parents joint custody and plaintiff mother sole physical custody. On March 4, 2015, plaintiff was charged misdemeanor child abuse and defendant filed a motion to change custody, which was granted by a referee, calling the change a “placement” not a change in custody. This order was affirmed by the court and stood until June 9, 2016 when the evidentiary hearing set for that date was adjourned to June 29th. The court nevertheless entered an order granting plaintiff mother temporary physical custody of the children until the later hearing, meaning the children were moved from the father’s home where they had been for over a year. When defendant father didn’t appear on the 29th, the court dismissed the defendant’s motion to modify custody.
               The MCOA noted that the central problem is that, although courts have the power to remove children from an unsafe environment, calling the move “placement” or “temporary” or “emergency” doesn’t change the fact such removal from an “established custodial environment” is a change of custody. “Any modification of custody is subject to the Child Custody Act” and requires the court to consider the best-interest factors.
               Also of concern to the MCOA was that “by the time of the orders being appealed, the children had been in defendant’s care” long enough for the children to have “an established custodial environment with the defendant.” The court went on to note that it didn’t matter how that environment was created, the trial court can’t change placement without first finding “that a proper cause…sufficient to re-visit an existing custody order” and then determine whether an established custodial environment actually exists. A missing party, said the court, is not the basis for “altering a child’s custody.”
               The court in vacating and remanding the court’s decision said that the outcome “may well have been proper. However, if so, it was by accident.” Stating that the trial court’s orders were an abuse of discretion because “the trial court simply failed to acknowledge and comply with rules and procedures governing custody and parenting time disputes.”

Labels: , , , , , , ,

Juvenile Code Doesn’t Allow a Pre-determined Flat Rate Probation Fee

Posted on Monday, July 24, 2017
             
               Michigan Court of Appeals, in People v Killich, No. 329941, held that the Juvenile Code doesn’t allow for the imposition of a flat rate probation supervision fee, and vacated the trial court order imposing the fee and remanded for a corrected order of disposition.
FACTS: 
               Respondent Taylor Killich, a juvenile, pled no contest to a juvenile petition and was placed on probation for three months. She accepted the disposition ordered by the referee, but her attorney objected to the $100 probation supervision fee, citing People v Juntikka, 310 Mich App 306; 871 NW2d 555 (2015). The argument was rejected and she requested a review hearing before the trial court.
               At the review hearing, defense counsel argued that the court did not have statutory authority under the Juvenile Code to impose a pre-determined flat rate fee and that the Juvenile Code only permitted the court to be reimbursed for individualized costs of probation supervision services extended to individual juveniles.
               Petitioner argued that three statutory provisions allowed for the imposition of a probation supervision fee: 1) MCL 712A.18(1)(b), 2) MCL 712A.18(3), and 3) MCL 712A.18(12). The trial court upheld the fee.


Opinion:
               While the Michigan Court of Appeals agreed with the trial court that local units of government share the costs for juvenile adjudication and supervision, it disagreed with the imposition of the $100 probation supervision fee, vacating and remanding the matter back to the trial court.

The court said:
  • Petitioner first contended the $100 probation supervision fee is authorized by MCL 712A.18(1)(b). The court disagreed. The language of the statute authorizes the court to order a juvenile to pay the state minimum state cost of not less than $68.00 for a felony. Thus, Killich must pay $68 but the law doesn’t authorize the $100 fee.
  • Petitioner next contends that the $100 probation supervision fee is authorized by MCL 712A.18(12). The court disagreed. The statute states that the court “shall order” a juvenile to pay an assessment fee if an order of disposition is entered. And, MCL 780.905 (3) authorizes a fee of $25.00.
  • Lastly, petitioner contends that the $100 probation supervision fee is authorized by MCL 712A.18(3). Again, the court disagreed. While the statute allows a court to impose a reimbursement provision before it has incurred any expense, whether it authorizes flat rate assessments is a different question. Because the fee doesn’t qualify as reimbursement for the “cost of service” for a particular juvenile, it isn’t authorized by the statute.
               The court, stating that there was no evidence on the record to conclude that the $100 fee is either more or less than the cost of service, vacated the trial court decision and remanded the case for entry of a corrected order of disposition.

Labels: , , , , , , , , ,

Cat’s Paw Theory of Discrimination Applies to FMLA

Posted on Monday, July 17, 2017

Cat’s Paw Theory: 
               The term Cat’s Paw comes from an old fable in which a conniving monkey convinces a cat to reach into a fire to get roasting chestnuts. The cat is duped, burns its paw and the monkey enjoys the chestnuts with no harm. In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks decision making power, uses the formal decision maker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” (EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles,) 450 F.3d 476, 484 (10th Cir. 2006).
               The Sixth Circuit in the case of Marshall v The Rawlings Company LLC,No. 16-5614, used the Cat’s Paw Theory to reverse the district court’s dismissal of the summary judgment motion of the plaintiff’s claims of Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) retaliation claims. The matter was remanded for further proceedings.


FACTS:
               The Rawlings Co. LLC provides recovery or “cost containment” services to health insurance providers. Plaintiff Gloria Marshall began working as a workers’ compensation analyst for Rawlings in 2006. She was promoted to team leader in 2011.
               Marshall suffers from depression, anxiety and posttraumatic stress disorder. She unexpectedly took leave under the FMLA, 29 U.S.C. §§ 2601-54, in February and March 2012 to address her acute mental health problems.

 Demotion:
               Vice President Jeff Bradshaw, concerned about Marshall’s performance, which he viewed as unsatisfactory, recommended to Laura Plumley, President of the Division, that Marshall be demoted from team lead to analyst. Without independent investigation, she agreed. Bradshaw and Mike Elsner, Marshall’s second level supervisors, met with her and she was demoted in September 2012. She claimed that in the month before her demotion, Bradshaw sarcastically asked if she would be out on leave any time soon and during the demotion meeting, Bradshaw raised his voice and belittled her. Marshall took periods of FMLA leave intermittently from March 2013 through August 2013.
               At a May 2013 celebration lunch for Marshall and four other analysts with the highest first-quarter recoveries, Marshall claimed that Bradshaw bullied her.

Productivity Problems:
               On Sept. 23, 2013, Elsner confronted Marshall about her productivity after observing she hadn’t been at her desk for a large portion of the day. When Elsner asked Marshall about it, she claimed that she had been harassed by Bradshaw and that she hadn’t reported the harassment because she was afraid of being fired. Elsner, required to report the allegations of harassment, did so.
               After meeting with Elsner and Marshall to discuss the allegations, Laura Plumley, president of the division, stated that she didn’t believe Bradshaw’s alleged harassment was actionable and that it was her impression that Marshall “was not doing her job, had been called on the carpet by her supervisor, and in order to deflect it, brought up the allegations of harassment against Bradshaw.”
               Plumley reported her conclusions to George Rawlings, the company’s owner. Rawlings then met with Marshall and decided during the meeting to terminate Marshall after concluding that Marshall was making false allegations of harassment “in order to avoid the consequences of her own excessive absences.” Rawlings later claimed that he was unaware at the time that Marshall had ever taken any FMLA leave or that she had any medical conditions.

ANALYSIS:
Reviewing the facts of the case, the Sixth Circuit held that the cat’s paw theory applies equally to FMLA retaliation claims as to other types of employment and retaliation claims. The cat’s paw theory accomplishes two goals:

  1.  It addresses situations where the decision makers adopt the recommendations of their biased lower-level supervisors, and 
  2. It stops the option for employers who try to evade liability through willful blindness to the source of reports and recommendations.
Once the court decided to apply the cat’s paw theory of liability to FMLA retaliation claims, it considered the following three questions:

  • Does the theory apply in situations involving more than one layer of supervision between plaintiff and the ultimate decision maker?
    • Yes. Here lower level supervisors Bradshaw and Elsner influenced intermediate supervisor Plumley who then, oblivious to and adopting the subordinates bias, influenced the big boss, Rawlings. The court: “there is no reason to forbid plaintiffs from pursuing a theory that a lower-level supervisor carried out a scheme to discriminate by influencing multiple layers of higher-level supervision."
  • What is the relationship between the McDonnell Douglas burden shifting framework and cat’s paw liability?
    • Under this framework—1) plaintiff has the burden to make a prima facie case of discrimination; 2) having done so, the defendant must show a non-discriminatory reason for the firing or demotion; and 3) if the defendant provides a non-discriminatory reason, the plaintiff must show that the reason given was pretext or had no basis in fact, didn’t provoke the termination or wasn’t sufficient to call for termination.
    • Those using the Cat’s Paw theory must satisfy the requirements of the McDonnell Douglas burden shifting.
  • How does the honest-belief rule apply to the cat’s paw theory of liability?
    •       Under the honest-belief rule, if an employer has an honest belief in its nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was an excuse simply because it is incorrect.
    •       Yet, under the Cat’s Paw liability, the honesty of the decision maker’s belief is irrelevant. What is relevant is that the belief is rooted in a biased recommendation. Under this theory, the allegation is that the biased subordinate intentionally manipulated the decision maker.
               The court noted that evidence of bias isn’t always sufficient to prove a cat’s paw theory. The traditional tort-law concept of proximate cause applies. An independent investigation
defeats a cat’s paw claim only when the investigation determines that the adverse action was,
apart from the supervisor’s recommendation, entirely justified.
               Applying the three questions to the facts of this case, the court concluded that there were genuine disputes of material fact as to whether Bradshaw and Elsner were biased against Marshall and sought to have her demoted and then fired. On the record presented, the court held that a reasonable jury could conclude that Plumley and Rawlings didn’t conduct an independent investigation and merely served as the conduit for their subordinate’s retaliatory intent.
               Therefore, the court reversed the district courts grant of summary disposition on the FMLA and ADA retaliation claims, while upholding the dismissal of the FMLA interference and the intentional infliction of emotional distress claims.

Labels: , , , , , , , , , ,

Michigan Supreme Court Holds that Summary Disposition Was Improper Where Plaintiff Suffered Injuries While Unloading Personal Items from his Truck

Posted on Tuesday, June 27, 2017
           
                 On June 15, 2017, the Michigan Supreme Court decided Kemp v Farm Bureau General Insurance Company of Michigan (Docket No. 151719), a case concerning a plaintiff’s claim for personal injury benefits when he was injured while unloading items from his vehicle. The Supreme Court first addressed whether the plaintiff satisfied the parked vehicle exception for lowering property from the vehicle, MCL 500.3106(1)(b). The Court found that the plaintiff was lowering property from his vehicle, and there was a question of fact as to whether he was injured as a “direct result” of that process. It was for the jury to decide whether the plaintiff’s property was “of sufficient size and weight to cause plaintiff’s injury.” Id., slip op. at 9. 
               Next, the Supreme Court considered whether the plaintiff had satisfied the transportational function requirement. The Supreme Court held that conveyance of one’s personal belongings is closely related to the transportational function of a motor vehicle and overruled the Court of Appeals decision in Shellenberger v Ins Co of North America to the contrary. The plaintiff had satisfied the test as a matter of law.
               Finally, the Court held that because the plaintiff had created a question of fact as to whether his injury was the direct result of lowering property from his vehicle, the plaintiff had also created a question of fact as to whether the causal relationship between his use of the motor vehicle as a motor vehicle and his injury was more than incidental, fortuitous, or but-for. The Supreme Court reversed the Court of Appeals and remanded for further proceedings.

Labels: , , , , , , , , ,

Supreme Court Promulgates New Court Rules for Probate Appeals

Posted on Thursday, June 22, 2017
         
              The Supreme Court released updated court rules for probate appeals, to accommodate the major legislative changes from 2016. Effective September 27, 2016, all orders from the probate courts are appealable to the Court of Appeals. MCL 600.683. 
file:///S:/Firm/Appellate%20Practice%20Section/probate%20rule%20proposal/2016-32_2017-06-21_AmendtOfProbateAppeals.pdf
The new court rules are effective immediately (issued June 21, 2017). In sum, they make the following changes: 

  • Clarify that the probate appeal is to the Court of Appeals, and eliminate references to circuit court
  • Simplify the language of MCR 5.801(B)(2)(a) – which previously allowed an appeal from an order appointing or removing a “personal representative, conservator, trustee” and now reads “fiduciary” which encompasses all of those categories, and possibly more
  • Adds an appeal by right for an adoption assistance determination
  • Identifies guardianship orders under EPIC as an appeal by right
  • Identifies an order under the Mental Health Code as an appeal by right
  • Identifies an appeal from a civil action commenced in probate court as an appeal by right
  • Requiring parties to identify on the front page of their appeal papers if the case involves an adult or minor guardianship, or an involuntary mental health treatment case.
  • Granting 28 days for an appellant’s brief and 21 days for an appellee’s brief for guardianship appeals and Mental Health Code appeals, and
  • Giving priority status to guardianship and Mental Health Code appeals.

Labels: , , , , , , , ,

Speaker Law Firm Wins Appeal for Two Fit Parents Wrongfully Subjected to Grandparenting Time Order

Posted on Wednesday, June 14, 2017
             
                The COA issued another published opinion in a grandparenting time case. Geering v Robinson, issued June 13, 2017 (Docket 335794). In that case, the parents had divorced. Although they struggled with some issues post-judgment of divorce, including litigation over parenting time and custody, they eventually resolved their differences and stipulated to a custody and parenting time order. In the meantime, the mother’s father (paternal grandfather) filed a motion for grandparenting time.  The parents submitted an affidavit opposing the grandparenting time. 
               According to MCL 722.27b(5) provides that “If 2 fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court shall dismiss a complaint or motion seeking an order for grandparenting time….” (Emphasis added).  Here, the trial court put the parties through a fitness trial, concluded that the parents were unfit, and awarded grandparenting time.


               The COA reversed the trial court’s decision, concluding that the trial court’s decision that the parents were unfit was against the great weight of the evidence.  Although the parents at one point had difficulty communicating with each other, were inconsistent in meting out discipline, were inconsistent in co-parenting, those difficulties had resolved themselves by the time the parents stipulated to parenting time and custody.  There was no evidence in this record that the parents were not adequately caring for their children (that is, there was no evidence they lacked fitness). The COA remanded for dismissal of the grandparenting time motion, as required by statute.

Labels: , , , , , , , , , ,

Failure to Call Key Witness Held Ineffective Assistance of Counsel

Posted on Friday, June 2, 2017

In this case of consolidated appeals, People v Thomas, No. 329448 and People v Gordon, No. 329449, the Michigan Court of Appeals affirms the case against Clifford Thomas but vacates Jasmine Gordon’s conviction and remands for a new trial due to the ineffective assistance of Gordon’s counsel.
FACTS:
At age 22 months, Jamila, Gordon’s daughter was evaluated because she couldn’t walk, talk or stand without support. It was discovered that she had a brain malformation resulting in 30% loss of her brain. Jamila continued to have numerous medical problems throughout her short life.
Gordon and Jamila’s father separated in March 2014. Several months later, Gordon and Thomas began living together. Gordon was the breadwinner of this new family unit. While Gordon worked, her sister and father sometimes cared for her children. At other times, Thomas was in charge. Over time, Thomas became Jamila’s regular caregiver.
On September 18, 2014, Thomas called Gordon at work to tell her that something was wrong with Jamila and to come outside her work where he was waiting in Gordon’s car with Jamila who was in backseat and unresponsive. Gordon did CPR on her as they drove to the hospital. Jamila couldn’t be resuscitated. She was declared dead at the hospital.

The Trial:
The defendants were tried together with separate juries. Gordon’s jury convicted her of child abuse and involuntary manslaughter while Thomas’s jury convicted him of involuntary manslaughter and resisting and obstructing a police officer, finding him not guilty of child abuse.
Dr. Kilak Kesha, a forensic pathologist employed by the Wayne County Medical Examiner’s Office, performed an autopsy on Jamila. At the trial, Kesha testified that Jamila’s “lacerated pancreas caused the sepsis, which caused the pneumonia, which killed the decedent.” Dr. Kesha said Jamila’s multiple injuries indicated she was the victim of child abuse. He ruled her death a homicide.
Dr. Ljuvisa Dragovic, the chief forensic pathologist and chief medical examiner for Oakland County, testified only on Thomas’s behalf. Dr. Dragovic did not testify for Gordon. His opinion departed from Dr. Kesha’s in several important ways. In Dr. Dragovic’s view, Jamila did not have sepsis. Rather, she had bronchial pneumonia which caused her death. He emphasized that had he performed the autopsy, he would not have called Jamila a victim of child abuse.
Gordon’s Appeal:
Gordon contends that her trial counsel’s performance was constitutionally deficient, leading to her convictions. Gordon preserved this issue by successfully moving in this Court for remand to conduct a hearing on this issue.
For an ineffective assistance of counsel claim, appellant must show:
1.      That counsel’s performance was deficient; that it fell below an objective standard of reasonableness under “prevailing professional norms,” and
2.      That the deficient performance prejudiced the defense—that there is a reasonable probability that but for counsel’s errors, the result of the proceedings would have differed.
The MCOA ordered a Ginther hearing at which John McWilliams, Gordon’s attorney, testified. McWilliams theory of the case was that Jamila died due to “natural causes from a congenital birth defect.” His theory that Jamila’s 2014 pancreatic laceration was related to the 2013 “failure to thrive” diagnosis or to her brain malformation was unsupported by any medical expert. More importantly, the court noted, McWilliams knew his theory was scientifically bankrupt before he decided to employ it, but he rested Gordon’s defense on it nonetheless.
At the trial, McWilliams told Gordon’s jury in his opening statement that the medical examiner for an “adjoining county” would testify as a defense expert witness. The doctor was not called.
Counsel’s performance was deficient:
First, several courts have held that that a defense attorney’s decision to break a promise made during opening statement to a jury may qualify as ineffective assistance of counsel. He knew what Dr. Dragovic had to say and that Dr. Kesha’s autopsy was incorrect in other respects. Nothing changed during the trial, other than McWilliams’ failure to elicit any concessions supporting his theory from Dr. Kesha. Nor did McWilliams ever explain what had happened to the expert he promised to produce. “But McWilliams’ broken promise, standing alone, would not require us to reverse Gordon’s conviction.”
Second, the failure to call to the stand Dr. Ljuvisa Dragovic, who had been retained by McWilliams as support for an exculpatory theory of the child’s death was ineffective. “McWilliams’ strategic decision to forego the expert and instead present an unsupportable medical theory through his argument and cross-examination constituted ineffective performance.” It was said to be a “fundamentally unsound theory strategy and constitutionally ineffective.”
Conclusion:
The court concluded that but for McWilliams deficient performance there is a reasonable probability that the outcome of Gordon’s trial would have been different. A jury that heard both Drs. Kesha and Dragovic apparently rejected Dr. Kesha’s view of the cause of death. In light of their verdict, Dragovic’s absence during Gordon’s trial raises a reasonable probability of her acquittal and undermines confidence in the jury’s guilty verdict.
The verdict in Gordon’s case is vacated and remanded for a new trial.

Labels: , , , , , , , , , ,

Whistleblower Loses at Summary Disposition

Posted on Wednesday, March 29, 2017

Michigan Court of Appeals (MCOA) in Kevin Smith v City of Flint, No. 320437, a for publication opinion, affirms lower court grant of summary disposition on Plaintiff’s claim under the Whistleblowers’ Protection Act (WPA) MCL 15.361 et seq.
FACTS: Kevin Smith, plaintiff and a police officer with the Flint Police Department, had been president of the City of Flint Police Officers Union since February 2011. He worked from 8:00 a.m. until 4:00 p.m., handling all work-related grievances filed by Flint police officers. On April 24, 2012, Michael Brown, Flint’s emergency manager, eliminated the position of full-time union president. In November 2012, Flint voters passed a five-year, six-million dollar millage to collect funds for public safety. After the millage increase was passed, Smith publicly complained that the revenue from the millage was not being used to hire as many new police officers as possible. On March 8, 2013, Smith was re-assigned to road patrol.
Smith asserted that defendant retaliated against him for publicly criticizing the misuse of the millage revenue by assigning him to road patrol. He filed a complaint against the City which included a claim for retaliation in violation of the WPA. The City moved for summary disposition under MCR 2.116(C)(8) of Smith’s WPA claim arguing that the assignment didn’t constitute an adverse employment action under the WPA.
Analysis
The WPA prohibits an employer from discharging or discriminating against an employee because the employee reports a violation or suspected violation of a rule, regulation or law of Michigan or the United States.

To establish a WPA violation Smith must show that:

  1.  He was engaged in a protected activity,
  2.  The City of Flint took an adverse employment action against the plaintiff, and
  3.  A causal connection exists between the plaintiff’s protected activity and the adverse employment action against the employee. 
The Supreme Court directed the MCOA to address whether Smith established a case with respect to the second element—that he suffered discrimination regarding his terms, conditions, location, or privileges of employment.
The court (Peña v Ingham Co Rd Comm, 255 Mich App 299) determined that to establish an adverse employment action under the WPA, a plaintiff must show that he was discharged, threatened, or otherwise discriminated against, in a manner that affected his compensation, terms, conditions, location, or privileges of employment. Namely, an adverse employment action must be more than a mere inconvenience or an alteration of job responsibilities. There must be some objective basis for concluding that the change is adverse. A plaintiff’s subjective impressions as to the desirability of one position over another are not controlling. See Peña, 255 Mich App at 314.

Smith failed on two counts:

  1.  He didn’t allege sufficient facts to show he suffered an actual adverse employment action within 90 days of filing his complaint. His removal as Union President and return to patrol officer was ordered in April 2012, over 90 days before he filed his complaint. And, the decision to return him to the field was made before he complained about the use of the millage revenue
  2.  His assignment to patrol duty in the north end of Flint doesn’t constitute an adverse employment action. The assignment to patrol duty is a “job duty” that falls squarely within the discretion of the police department. A change of location must be a significant, objective one such as a move to another city not as here, where the change of location is within the same city the officers are sworn to protect. 
Finally, the court held that Smith failed to establish he participated in any protected activity under the Whistleblower Statute. The court defined the two types of whistleblowers as follows:

“Type 1 whistleblower” is “one who, on his own initiative, takes it upon himself to communicate the employer’s wrongful conduct to a public body in an attempt to bring the, as yet hidden, violation to light to remedy the situation or harm done by the violation.” Henry v Detroit, 234 Mich App 405, 410; 594 NW2d 107 (1999).

“Type 2 whistleblower” is “[one] who participate[s] in a previously initiated investigation or hearing at the behest of a public body.” Id.

Labels: , , , , , , , ,

COA: Ordinary Negligence the Standard of Care When Driving a Golf Cart

Posted on Monday, January 23, 2017

When driving your golf cart on a golf course, ordinary negligence is the standard of care and not the “reckless misconduct” standard applicable to recreational activities according to the Michigan Court of Appeals in Bertin v Mann, No.328885.
FACTS:
Kenneth Bertin and Douglass Mann were playing golf at the Farmington Hills Golf Club on May 22, 2013. When they reached the 17th hole, Bertin got out of the cart, walked to the green where his ball was lying. As he began to walk toward his ball, Mann drove the cart, first knocking him down, then running over his leg causing injury.
Argument:
Bertin sued Mann for negligence, alleging that Mann acted with “active negligence” and “without due care and caution” when he struck him with the cart. Mann raised two affirmative defenses. One, the event was an unforeseeable accident and, two, Bertin’s own negligence was the sole cause or contributing cause of the accident.
The parties disagreed on the applicable standard of care. Bertin argued it should be ordinary negligence while Mann argued it should be reckless misconduct under the case of Richie-Gamester because the parties were playing a game of golf, a recreational activity. The trial court agreed with Mann and the jury entered a verdict for him.
The Court of Appeals agreed with Bertin. It said that Richie doesn’t imply that where injury occurs during a recreational activity, the incident must be held to the reckless misconduct standard. “Indeed, we think it more likely that players participate with the expectation that no liability will arise unless a participant’s actions exceed the normal bounds of conduct associated with the activity.”
Bertin raised two theories for applying the ordinary negligence standard:
  1. A golf cart is a “motor vehicle” and thus is subject to the civil liability provisions of the Motor Vehicle Code.
  2. A golf cart is not an inherent component of the game of golf and thus doesn’t full under the “reckless misconduct” standard of care under
The court dismissed the motor vehicle argument but agreed with the argument that the risks associated with the using of a golf cart are not an inherent component of golf and thus not subject to the “reckless misconduct” standard of care.
The court applied the following reasoning:  
  1. The US Supreme Court in PGA Tour, Inc. v Martin ruled that walking wasn’t an essential part of golf and that using a golf cart wouldn’t change the nature of the game in the context of the American with Disabilities claim.
  2. The US Golf Association’s Rules of Golf don’t refer to golf carts.
  3. The Farmington Hills Golf Course doesn’t require the use of golf carts.
The Court of Appeals, holding that the trial court applied the wrong standard of care, vacated the jury’s verdict, reversed the trial court’s verdict and remanded the case for further proceedings.

Labels: , , , , , , , ,

The Costs Related to an Appeal

Posted on Friday, December 30, 2016
Liisa Speaker Discusses the costs related to an appeal:


 How much will an Appeal cost?

The main factors are:
 
-The number of issues in the case
-The length of proceedings/and complexity of proceedings
- The number of days of the hearings or trial
- Ease of working with Opposing Counsel 
- Whether there are legal or factual issues on appeal
-The amount of contact the client needs throughout the process.
If you're looking into appealing your trial court order, please call our office at 517-482-8933 to speak to a member of our team.

Labels: , , , , , ,

Timely Notice Necessary for Courts to Collect on Bond Forfeiture

Posted on Wednesday, December 28, 2016
Recently we posted a case involving bail bond agencies (Calvert Bail Bond Agency, LLC v County of St. Clair, COA No. 324824) where the bond agency recovered its funds under MCL600.4835, when the defendant was returned to the court. The following case also orders the return of the funds this time due to the court’s failure to give proper notice.

The Michigan Court of Appeals held In re Forfeiture of Bail Bond, No. 328784, a published case, that a court cannot require a surety to pay the surety bond where it has failed to give the surety immediate notice of the bond forfeiture.

Facts: Appellant Leo’s Bail Bond Agency acting as agent for Roche Surety and Casualty Co., became surety on a $10,000 bond for defendant Antoine Stanford. Stanford, however, chose to skip his pretrial hearing on January 14, 2015. Since the dates in this case are important, we will list the events chronologically:
·         Jan. 20---circuit court revoked Stanford’s release and forfeited the bond,
·         Jan. 21---date on certificate of mailing on notice of forfeiture to Leo’s via first class mail,
·         Jan. 22---postmark on notice received by Leo’s
·         Jan. 23---date that Leo’s received notice of Stanford’s default and entry of order forfeiting the bond.
·         Feb. 20---Stanford failed to appear at the show cause hearing, and, finally,
·         Feb. 24---Circuit court entered a judgment against the Leo’s for $10,000 plus a 20% late fee.

The argument:

Appellant Leo’s moved to vacate the judgment because, since it hadn’t received notice within seven days of Stanford’s default as required by MCL 765.28(1), notice was untimely. The Circuit Court disagreed, stating that, since the date on the certificate of mailing was Jan 21, notice was timely per MCR 3.604(I)(2). The court also concluded that there was a conflict between the statute and the court rule as to procedural requirements and the court rule was controlling.

Michigan Court of Appeals Decision:

MCL 765.28(1) and MCR 3.604(I)(2) do not conflict. The statute (MCL 765.28 (1)) is the procedure for providing a surety notice of default. The court rule (MCR 3.604(I)(2), however, is the procedure to provide notice of hearing on a motion for a judgment. “These are two separate and distinct events. A default must be entered prior to a hearing to enter judgment on the default.”

Notice of default was defective:

According to the statute, a surety must receive immediate notice, “not to exceed seven days after the date of the failure to appear.” Notice, per the postmark, was mailed on the eighth day. And, according to the statute notice “shall be served upon each surety in person or left at the surety’s last known business address.” Thus, mailing the notice was not proper service.

But, notice of the hearing on the motion to enter judgment against Leo’s was timely under the court rule. However, although Leo’s had proper notice of the motion to enter the judgment against it doesn’t change the fact the he didn’t “receive proper notice of the default itself.”

The Circuit Court judgment against appellant Leo’s was reversed and the matter remanded for further proceedings consistent with the opinion. 

Labels: , , , , , , , , ,

Michigan Appeals Court Brings Some Clarity to Frivolous Defenses and Vexatious Appeals

Posted on Monday, December 19, 2016
If you’re curious about frivolous defenses and vexatious appeals, the case of Miller v Blue CrossBlue Shield Michigan, No: 326300, unpublished, is worth a read.

The facts concern a denial of coverage by Blue Cross Blue Shield Michigan (BCBSM) for care provided to Francis Miller, who, after challenging the denial, petitioned the Washtenaw County Circuit Court to review the decision. When that court issued an order awarding attorney fees, costs and statutory interest to Miller, BCBSM appealed. The Michigan Court of Appeals (MCOA) affirmed the lower court order, finding the BCBSM defense to Miller’s argument frivolous.

Facts: Miller was a patient at Heartland’s Skilled Nursing Facility (SNF) in Ann Arbor for 3 months. Her insurance, BCBSM, denied coverage for part of that time, claiming Miller only needed custodial care for which it didn’t pay. Miller submitted the matter to Office of Financial and Insurance Regulation (OFIR), which agreed with BCBSM decision.

Miller petitioned the trial court for review of the OFIR’s order, asking the court to reverse the order, pay for her treatment and award her attorney fees for having to seek review.

The trial court framed the issue as whether “there was substantial competent and material evidence to support the OFIR’s findings.” The trial court reversed the OFIR’s order, stating that it was frivolous for BCBSM to assert that petitioner Miller did not need a nurse to administer a feeding tube in place during the time in question and that “under [MCL] 600.2591 [respondent] had no reasonable basis to believe that the facts underlying their legal position were true and . . . their position was devoid of any arguable legal merit.”

BCBSM appealed that decision, arguing the trial court erred in finding its defense frivolous. The COA disagreed.

Frivolous Defense and Vexatious Appeal

The appeals court, in writing its opinion, offered some thoughts on the frivolous defense and vexations appeals. BCBSM argued that its defense was not frivolous per MCL 600.2591, as held by the trial court. The COA disagreed and upheld the trial court because “the definition of a frivolous defense under MCL 600.2591 is comparable to the definition of a vexatious appeal under MCR 7.216(C)(1)(b), and the trial court did not clearly err in concluding that respondent’s defense was frivolous.”

Under MCL 600.2591, a frivolous defense can occur in the following 3 ways:
1. The party’s primary purpose in . . . asserting the defense was to harass, embarrass, or injure the prevailing party,
            2. The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true, or
3. The party’s legal position was devoid of arguable legal merit.

MCR 7.216(C)(1)(b) allows the court to sanction a party advancing a vexatious “argument, brief, document, or record filed . . . [that] was grossly lacking in the requirements of propriety, violated court rules, or grossly disregarded the requirements of a fair presentation of the issues to the court.”

The COA ruled that because petitioner Miller didn’t file a complaint in circuit court and BCBSM didn’t assert its defense in a pleading, the trial court “plainly erred in awarding attorney fees under MCL 600.2591. Instead, “this case is governed by the appellate court rules, because the petitioner filed a petition for review of the OFIR’s final order in the trial court pursuant to MCL 550.1915 and MCR 7.103(A)(4), and respondent asserted its defense in a response. MCR 7.216(C); see also MCR 7.112 explaining that “the circuit court may grant relief as provided in MCR 7.216”).

The court stated in affirming the trial court’s decision:

 “Although we agree that respondent did not defend a “civil action” under MCL 600.2591, we nonetheless uphold the sanction because the definition of a frivolous defense under MCL 600.2591 is comparable to the definition of a vexatious appeal under MCR 7.216(C)(1)(b), and the trial court did not clearly err in concluding that respondent’s defense was frivolous. Further, we find that the trial court did not abuse its discretion in calculating the amount of attorney fees and costs to be awarded.

In his dissenting opinion, Hon. Mark T. Boonstra, stated “I have a definite and firm conviction that a mistake was made” and he would reverse the circuit court’s sanctions award.

He saw the issue as whether the circuit court properly sanctioned respondent (whether based on “frivolousness” or “vexatiousness”) in advocating on appeal (to the circuit court) for the affirmance of an administrative decision of OFIR.”

He argued that the majority was incorrect in equating a finding of frivolousness with a finding that an appeal is vexatious, that BCBSM argument that OFIR complied with MCL 550.1911(13) and (15) was a proper, non-vexatious argument on appeal (albeit unsuccessful) and was concerned that the trial court’s entire predicate for the its issuance of sanctions was its “medical” judgment regarding the need of skilled nursing care to administer a feeding tube. That judgement “has now spawned extensive litigation over the propriety of the resulting sanctions award.”

Labels: , , , , , , , , , , , , , ,

Unsigned Will May Sometimes Be Admitted to Probate

Posted on Wednesday, December 14, 2016

The probate Court can admit an unsigned will to probate if the proponent of the will establishes, by clear and convincing evidence, that the decedent intended the document to be his or her will. The Michigan Court of Appeals (MCOA) reached this decision in a published opinion (In re Estate of Sabry Mohamed Attia).

Facts: Sabry Attia, father of 4 children, died on Sept. 11, 2014. Attia executed a will on July 8, 1986 and two codicils to the will, one on February 17, 2009 and the other on February 1, 2013. Appellee Mayssa, personal representative, filed a petition to probate the July 1986 will and two codicils. Appellant, Marvat, filed an objection to the probate of the July, 1986 will and codicils and a petition to admit an unsigned will to probate.

Marvat claimed the decedent directed his attorney, to draft a new will and arranged to sign it on September 11, 2014, the day he died. Marvat argues that although MCL 700.2502 requires a will to be signed, MCL 2503 provides an exception to the signature requirement if the supporter of the will shows by clear and convincing evidence that the decedent intended for the document to be his will.

The Wayne County Probate Court granted Mayssa’s Motion for Summary Disposition stating “I think that the language in 2503, relates to a document which is executed but is flawed in the execution. So, I think it’s a bright line rule in Michigan and I certainly welcome the Court of Appeals to address it.”

The COA did address it stating,

1. MCL 700.2503 permits the probate of a will that doesn’t meet the requirements of MCL 700.2502.
2. One of the requirements is that the will be signed by testator or a person chosen by the testator, in the testator’s presence and at his direction. (MCL 700.2502(1)(b)
3. Thus, section 2503 allows admission of a will that doesn’t meet the signature requirement in section 2502 as long as the proponent establishes by clear and convincing evidence that the decedent intended the document to be a will.

The COA didn’t find a Michigan case on point, but did find persuasive a Superior Court of New Jersey, Appellate Division, decision concluding that a New Jersey statute containing nearly identical language to Michigan permits the probate of a will without a signature, but with clear and convincing evidence that the testator intended the document to be a will.


The COA reversed the lower court and sent the matter back for further proceedings. 

Labels: , , , , , , , , , , , ,

A Fetus is a Victim for Scoring Sentencing Offense Variable 9

Posted on Friday, December 9, 2016
The Trial Court’s scoring of sentencing Offense Variable (OV) 9 (MCL 777.39), which concerns the number of victims, was upheld by the Michigan Court of Appeals. In People v Ambrose, 317 Mich App 556, (2016) Docket 327877, the COA, affirming the lower court sentence, ruled that “without declaring the fetus in this case to be a “person” under the law, we conclude the trial court did not err in counting the fetus as a “victim” for purposes of scoring OV 9.”

Facts: Defendant pleaded guilty to feloniously assaulting his pregnant girlfriend, including wrestling her out of her wheelchair, threatening her with a knife, punching her in the abdomen, and holding her head under water. At sentencing, the trial court found that OV 9 was properly scored at 10 points for two to nine victims placed at risk of bodily injury or loss of life. The defendant is appealing the scoring of OV9, arguing the trial court erred by scoring OV 9 at 10 points (2-9 victims) instead of zero, because a fetus can’t be counted as a “victim.”

Analysis: The COA began at MCL 777.39(2)(a) which instruct courts to score each person who was placed in danger of physical injury or loss of life or property as a victim. The statute doesn’t limit the definition of “victim” to persons who were placed in danger, therefore, the court looked to the following:
            Merriam-Webster’s Collegiate Dictionary (11th ed), p 1394, defines “victim” as “one that is acted on and usually adversely affected by a force or agent.”
            Our Legislature has indicated that a fetus may be placed at risk of loss of life or bodily injury.
MCL 750.90a assault offenses against a pregnant individual that intends to cause and cause a miscarriage or stillbirth, the person is guilty of a felony,
MCL 750.90b assault offenses which cause harm to embryo or fetus, ranging from physical injury to death is guilty of a misdemeanor or felony, and
MCL 750.90c a person who drives recklessly or carelessly, causing an accident involving a pregnant individual and the accident results in miscarriage or stillbirth is guilty of a 2-year misdemeanor.

Hon. Peter D. O’Connell in his concurring opinion, states that with recent developments in the law “to criminalize acts against the unborn, to criminalize acts against embryos and fetuses, and the fact that case law defines a fetus as “another,” it is clear that fetuses can be victims for the purposes of OV 9 regardless of whether a fetus is a person. Therefore, I concur with the majority opinion.


Labels: , , , , ,

The Court of Appeals holds that a putative father may be unfit or unable to properly care for his child due to incarceration

Posted on Friday, December 2, 2016
In In re GRD (Docket No. 333131), the Court of Appeals addressed whether the rule of In re Mason, 486 Mich 142; 782 NW2d 747 (2010)—that a parent’s rights may not be terminated solely on the basis of parental incarceration in a Juvenile Code case—also applied to an Adoption Code case.

In Mason, the Michigan Supreme Court was simply interpreting MCL 712A.19b(3)(h), which allows parental rights to be terminated under the Juvenile Code where “[t]he parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.” The Court noted that the statutory provision requires more than mere incarceration—with three individual elements that must be satisfied. The Court also held that the parent need not personally care for the child in order to maintain his parental rights—he could arrange for care by his relatives instead.


In GRD, the respondent attempted to apply this same rule to a termination under the Adoption Code, arguing that his rights could not be terminated merely because he was incarcerated, when his relatives could care for the child in his stead. The Court of Appeals rejected his argument, stating that an Adoption Code termination (for a father who never supported the mother during her pregnancy) follows a completely different statutory framework than a Juvenile Code termination. Contrary to the Juvenile Code, which allows for the provision of care by relatives, the Adoption Code requires inquiry specifically into the putative father’s fitness and ability to care for the child. Thus, it was proper for the trial court to conclude that because the father would be incarcerated for another three years, he was unfit and unable to care for the child.

Labels: , , , , , , ,

Stick to the Rules in Child Protective Proceedings

Posted on Monday, November 21, 2016
The Court of Appeals recently reversed a trial court’s decision terminating parental rights based on the lack of jurisdiction and inadmissible evidence during the child protective proceedings. In Re Jones, unpublished per curiam, issued November 8, 2016 (Docket 332616). In Jones, the trial court relied on recordings of the children’s forensic interviews during a combined adjudicative and dispositional hearing. Id. The Court of Appeals found the trial court in Jones made two critical errors: (1) failure to conduct a separate dispositional and adjudicative hearing, and (2) fully relying on the legally inadmissible evidence of the recordings to find sexual abuse and to terminate parental rights.


Child protective proceedings must be separated into an adjudicative and dispositional proceeding. In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006).  First, the adjudicative proceeding happens in order to determine if the courts has jurisdiction over a child under MCL 712A.2(b). Id. During the adjudicative proceeding, hearsay evidence of a child’s statement is legally admissible under MCR 3.972(C)(2). In re Archer, 277 Mich App 71, 82; 744 NW2d 1 (2007). The Court of Appeals in Jones noted the trial court can view a recorded forensic interview during a separate tender-years evidentiary hearing in order to determine if hearsay testimony is allowed, but not admit the recorded interview itself. However,“a recorded forensic interview is admissible at all proceedings except the adjudication stage instead of the live testimony of the witness.” MCL 712A.17b(5) (emphasis added). If the trial court finds that it does have jurisdiction over the child after the adjudication proceeding, the parties continue to a dispositional hearing to determine what action to take for the child.  AMAC, 269 Mich App at 536-537. The court can terminate parental rights if it “finds on the basis of clear and convincing legally admissible evidence” during a dispositional hearing. MCR 3.977(E).

The trial court in Jones relied on the recorded forensic interview itself instead of non-hearsay evidence to establish jurisdiction over the children during a combined adjudicative and dispositional hearing. If the trial court in Jones had conducted a separate dispositional hearing, the forensic interview would be admissible evidence that could be a basis for parental termination. However, the fact that the evidence was used to establish jurisdiction during a combined adjudicative and dispositional hearing instead of relying on witness testimony during a separate adjudicative hearing, the trial court erred under MCL 712A.2(b) and MCR 3.972(C)(2). Therefore, the trial court committed grave procedural and evidentiary errors leading to an unfairness of Respondent-Father’s parental rights being terminated.

Labels: , , , , , ,

Does my Appeal Return to the Same Trial Court Judge?

Posted on Tuesday, November 15, 2016
Liisa Speaker answers a fequently asked question about Judges in the appellate process:


If you're looking into appealing your trial court order, please call our office at 517-482-8933 to speak to a member of our team.

Labels: , , , , , , ,

The Courts’ Discretion in Parenting Time Decisions Questioned

Posted on Thursday, November 10, 2016
While parenting time between the preliminary hearing and adjudication and after the termination petition is filed are controlled by court rules (MCR 3.965(C)(7)(a); MCR 3.977(D) ) and statutes (MCL 712A.13a(13) ; MCL712A.19b(4)), visitation after adjudication is controlled by the court.

Under In re Laster,303 Mich App 485, 2013, the Court of Appeals held that termination of parental rights, “In the absence of a court rule or statute, the issue of the amount…and conditions of parenting time is left to the sound discretion of the trial court…”  This decision allowed a trial court to deny a parent whose child had been removed from parental care from having parenting time with their child – even during the dispositional phase of the case when the goal of DHHS is to reunify the parent and child.

That is how matters stood until In re Newman, Minors, (Nos. 329063, 329076, unpublished, 9/29/2016), an opinion which put a chink in the armor of the Laster case. Newman was also an appeal of a termination of parental rights. The results, however, were vastly different. The Newman court reversed the trial court decision and remanded the matter back to evaluate the parents, prepare a parent-agency plan, order visitation and continue monitoring in order to properly determine a final disposition.

Of interest is footnote 5, addressing the issue of visitation, which was not argued on appeal and therefore not properly before the court. The court’s discussion, however, is telling.



In the court’s view, “the inability of the department to observe the children and parents together…greatly limited the facts available for the determination of the factual questions before the court, and…greatly increased the likelihood of error as to those questions.”

“Unfortunately,” the Court of Appeals stated “there does not appear to be any case law providing guidance as to when a denial of all services including even supervised visitation is an abuse of discretion, and as noted above, neither the magistrate nor the judge provided any grounds for that denial other than that it had the discretion to do so.”

“If the only test is whether the court has such discretion, see MCL 712A.19b(4), then it would seem that the discretion cannot be abused, i.e. that the discretion is wholly unfettered and unreviewable. It is questionable whether this was the legislature’s intent and whether it comports with due process.”

“In the absence of briefing on the issue, however, we will not explore the issue here other than to
note its potential significance. Additionally, we also note that that the problem is compounded
by the fact that respondents were apparently not appointed counsel when the initial denial of
parenting time occurred.” (emphasis added)

It seems that, with the right set of facts, the issue of a court’s “unfettered and unreviewable” discretion in parenting time decisions is ripe for appeal. 

Labels: , , , , , , , , , , ,

Do I have an Appeal?

Posted on Monday, October 31, 2016
 Liisa Speaker has some quick suggestions as to whether you may or may not have an appeal in your legal matter.


If you're looking into appealing your trial coiurt order, please call our office at 517-482-8933 to speak to part of our team.

Labels: , , , , , ,

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

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

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

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

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

Labels: , , , , , ,

Back to the top

RECENT POSTS

ARCHIVED POSTS

Content © 2016 Speaker Law Firm, PLLC   |   Website designed by AE Lansing Web Design
All major credit cards accepted.
Credit Cards Located 2 blocks from the Hall of Justice
230 N. Sycamore Street Lansing, MI 48933   |   (517) 482-8933