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Jennifer Alberts Quoted in Michigan Lawyers Weekly Regarding Geering Appeal

Posted on Friday, July 7, 2017
           
              This week's Michigan Lawyer's Weekly issue covered the recent Speaker Law Firm published victory in Geering v Geering.
               Jennifer M. Alberts, plaintiffs attorney in the Geering case, said, "Grandparents do not have rights to visitation, so parents' rights will always be favored over the interests of the grandparents. The only concern that may outweigh the parents' rights is the well-being of the child, but it is presumed that parents act in their child's best interests.Thus, it is a high bar for grandparents to meet."
               "These cases largely reaffirmed what has been the law for years and what is clearly laid out in the statute.- Alberts, of Speaker Law Firm PLLC, said the "main takeaway from Geering is the definition of parental fitness: the Court defined a fit parent as one who 'adequately cares for his or her children.'"
               "This is important as the protections the statute affords to parents are specifically afforded to 'fit parents,'" she said. Whether there is a high bar depends on the circumstances, Alberts said.
               "If two fit parents deny grandparenting time, then under the statute, the case ends. That is all there is to it. If only one fit parent denies grandpa renting time, then the grandparent has to prove that the denial creates a substantial risk of harm to the child. The parent or parents who deny grandparenting time are unfit only if they do not 'adequately care for' their children. It is a high bar," she said.
               "If the parents disagreed, then the grandparents would have had to prove that the denial of grandparenting time created substantial risk of hann to the child, rather than having to prove that the parents were unfit," Alberts said.
               "It is still a high bar because there is still a presumption that the parent who is denying grandparenting time is acting in the best interests of the children, but it is a rebuttal presumption, rather than the irrebuttable presumption created by filing a joint affidavit."

Read our previous blog about Geering v Robinson HERE.

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Several Speaker Law Firm Appeals Made the Michigan Lawyers Weekly “Most Important Decisions for January – June 2017”

Posted on Monday, July 3, 2017

From the Michigan Lawyers Weekly July 3, 2017:
Family Law
Reliance on FOC findings is prohibited
               The court, itself, must find that there is adequate evidence to support a determination of whether proper cause or a sufficient change in circumstances exists to warrant an investigation into the best interests of a child, held the Michigan Court of Appeals in a published opinion.
               Bowling v. McCarrick; Michigan Lawyers Weekly July 3, 2017 Issue No. 07-93885, 3 pages
The court’s goal is equity
               Although marital property need not be divided equally, it must be divided equitably in light of a court’s evaluation of the parties’ contributions, faults and needs, held the Michigan Court of Appeals in a published opinion.
               Elahham v. Al-Jabban; Michigan Lawyers Weekly July 3, 2017 Issue No. 07-94159, 15 pages
Deference is owed to the parents’ decision
               Parents have a constitutionally protected right to raise their children as they see fit, therefore, if two fit parents both oppose visitation, their joint opposition effectively creates an irrebuttable presumption that denial of grandparenting time will not create a substantial risk of harm to the child, and the grandparents’ petition must be dismissed, held the Michigan Court of Appeals in a published opinion.
               Geering v. King; Michigan Lawyers Weekly July 3, 2017 Issue No. 07-94926, 6 pages
All factors need not be stated on the record
               Consideration of every factor need not be stated on the record; however, before permitting a change in a minor child’s legal residence, the court shall consider each of the factors set forth under MCL 722.31(4), with the child as the primary focus in the court’s deliberations, held the Michigan Court of Appeals in a published opinion.
               Yachcik v. Yachcik; Michigan Lawyers Weekly July 3, 2017 Issue No. 07-94107, 15 pages.
Probate Law
Attorney represents the conservator, not the estate
               An attorney hired to perform legal services for a conservator represents the conservator and does not have an attorney-client relationship with the estate, held the Michigan Court of Appeals in a published opinion.
               Estate of Tyler Jacob Maki v. Coen; Michigan Lawyers Weekly July 3, 2017 Issue No. 07-93797, 7 pages

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Court of Appeals Changes the Prenuptial Agreement Landscape, Michigan Association for Justice Journal Article by Liisa R. Speaker

Posted on Tuesday, May 9, 2017

The Michigan Association for Justice published an article by Liisa Speaker on “Court of Appeals changes the Prenuptial Agreement Landscape” (Spring Journal 2017). The article pertains to the recent COA decision in Allard v Allard, on remand from the Michigan Supreme Court. The COA held that the parties through their prenuptial agreements cannot waive the trial court’s authority to do equity in divorce cases. The article examines the Allard decision and its impact, along with the future utility of prenuptial agreements.

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Veterinarian Malpractice Damages Award Upheld

Posted on Wednesday, March 15, 2017

In this veterinary malpractice case, Elvin v Gubert, DVM, No. 326563 and 326566, the Michigan Court of Appeals held that the trial court did not err in calculating damages, instructing the jury, or determining sanctions.
FACTS: The defendant-veterinarian, Karl Gubert, DVM, performed a castration on Larry Elvin’s horse, a two-year-old Pennsylvania Standardbred named Abundance Star. Shortly after the procedure, the horse seized-up, stopped breathing and died. The cause of death was inconclusive, but it was noted in the necropsy that the horse had a small and diseased liver.
Elvin sued Gubert, claiming he hurried the procedure, failed to perform a proper physical and failed to properly monitor the horse during the procedure leading to the death of the horse. Gubert claimed he followed the Standard of Care and that it was the diseased liver that caused the death.
At trial, there was testimony regarding horse racing. The experts agreed that horse racing in Michigan was dead, however, Abundance Star, a Pennsylvania Horse, could race in that state where gaming was state sponsored. The possibility of racing was reflected in the plaintiff’s expert appraisal of the horse, which was $100,000. Defendant’s expert originally valued the horse at $6,600, however, when he learned of the liver disease, he adjusted the value to $500.
The jury found Gubert professionally negligent and awarded Elvin $80,000. The trial court denied Gubert’s motion for a new trial (remittitur) and added $118,049 in case evaluation sanctions to the $80,000 award for a total of $198,049 and an additional $107,121 in attorney fees.
Gubert appealed.
The COA rejected Defendant’s arguments as follows:
  1.  Defendant’s argument that his motion for a new trial should have been granted because of the excessive damages. After reviewing outstanding case law, the COA held the measure of damages was properly limited to the horse’s fair market value at the date of death and was not remote, contingent or speculative.
  2. Defendant’s argument that the trial court was wrong to use Mich Civil Jury Instruction 12.01, which allowed the jury to infer negligence from lack of record keeping. Defendant’s own expert agreed that failure to keep proper or any records was below the standard of care.
  3. Defendant’s argument that the trial court’s attorney’s fee award was based on exorbitant hourly rate—COA held the court properly looked at empirical data as well as the attorneys’ skill, experience and reputation.
The trial court opinion was affirmed.

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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.

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Ruminations on the Delayed Application Court Rule

Posted on Monday, May 16, 2016
Under MCR 7.205(G)(3), appellate counsel has always assumed that there was a 6 month absolute deadline for filing an application for leave in the Court of Appeals (subject to specific jurisdictional and criminal exceptions). MCR 7.205(G)(3) states:

[L]eave to appeal may not be granted if an application for leave to appeal is filed more than 6 months after the later of: 
(a) entry of a final judgment or other order that could have been the subject of an appeal of right, or 
(b) entry of the order or judgment to be appealed from....

However, upon close examination, the court rule states only that the Court may not grant leave, it does not say that an application may not be filed. This leads to the question:

Can the Court of Appeals grant other forms of relief when an application is filed after the 6 month mark?

Under MCR 7.216(A) and (B), it appears the answer could be yes. MCR 7.216(A)(7) authorizes the Court to “enter any judgment or order or grant further or different relief as the case may require.” Further, MCR 7.216(B) states,

When any nonjurisdictional act is required to be done within a designated time, the Court of Appeals may permit it to be done after expiration of the period on motion showing that there was good cause for delay or that it was not due to the culpable negligence of the party or attorney.

Accordingly, it appears that the Court could grant relief after the cutoff date for filing has expired, so long as the delay is not the fault of the party or counsel. MCR 7.205(G)(3) simply prohibits the Court of Appeals from granting leave when the application is filed after 6 months, not granting other relief, such as a peremptory reversal.

Warning, this theory has not been tested, but it is an interesting argument to raise if a client is beyond the 6 month deadline.

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Why a COA Opinion is Forcing Me to Change Insurance Companies

Posted on Tuesday, May 18, 2010
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.

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Common Sense Prevails; Only Explanation for Ladder in Road is That it Fell Off a Motor Vehicle

Posted on Tuesday, April 20, 2010
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.

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

Posted on Friday, March 26, 2010
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.

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