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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.

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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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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.

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Insurance Company Can’t Deny Benefits When They Take Your Money

Posted on Tuesday, May 23, 2017

Michigan Court of Appeals reversed and remanded the case of Yu v Farm Bureau, Docket 331570, to the lower court to enter a judgment in favor of Plaintiff Yu on the issue of coverage and to proceed to determine damages. 
FACTS: 
The history of the Yu’s experiences with their home on West Lake in Portage is as follows:
1.         They bought the house in 2006,
2.         In 2010 Yu accepted a new job in Lansing,
3.         They moved to Lansing and used the West Lake house on weekends,
4.         In 2013, they listed the house for sale, fixing a recent water leak with funds from an insurance claim,
5.         In November 2013, they renewed and paid the premium for their homeowners’ insurance with Farm Bureau General Insurance for a year effective December 8, 2013,
6.         On December 25, 2013, Yu received a notice from neighbors that icicles were forming on the exterior of the house, Yu drove there and discovered another water leak causing $80,000 in damages;
Yu filed a claim with his insurance company. In response on December 16, 2013, the Company notified the Yu’s that their coverage was cancelled effective January 18, 2014 because the house was vacant or unoccupied for more than 60 days. In June 2014, the Yu’s received notice that their claim for the water damage on December 25, 2013 was denied because 1) the family didn’t live in the house at the time of the loss, 2) the house had been unoccupied for 60 days and 3) the home had not been occupied for more than 6 months.

The Lower Court Opinion
Plaintiffs filed suit for breach of contract. Following the filing of cross-motions for summary disposition, the trial court concluded that there was no genuine issue of material fact in that defendant could deny coverage for the reasons stated by Farm Bureau and that plaintiffs had not established their claim under equitable estoppel. Plaintiffs now appeal and we reverse.
The Court of Appeals
The COA agreed with the Plaintiff that because the insurance company defendant repeatedly accepted the plaintiff’s late payments and continued to renew the Yu’s policy, the principle of equitable estoppel bars defendant from enforcing the automatic nonrenewal provision of the insurance contract.
Going on to explain the concept the COA said that for equitable estoppel to apply, the Plaintiff must prove:
  • That the defendant’s acts or representations induced plaintiff to believe that the policy was in effect at the time of the accident,
  • That the plaintiff justifiably relied on this belief, and
  • That plaintiff was prejudiced as a result of his belief that the policy was still in effect.
The facts that support the concept are 1) the defendant knew in February 2013 that the plaintiffs were “actively moving”, 2) despite this, it renewed the policy in December 2013 and 3) despite knowing those facts, it kept a pro rata share of the premium including the time period when the loss of Dec. 25, 2013 occurred.
Because of these facts, the COA sent the case back to the trial court to enter a judgment in favor plaintiff on the issue of coverage and proceed to determine damages.

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Child Welfare Act Creates Private Right to Foster Care Payments

Posted on Friday, April 28, 2017

According to a recent (1-27-2017) opinion of the US Court of Appeals, 6th Circuit (D.O.; A.O.;R.O. v  Glisson, Sec. Cabinet for Health and Family Services, ___US____, No.16-5461 (6th Circuit 2017), reversing a district court’s decision, the Federal Child Welfare Act creates a private right to foster-care maintenance payments enforceable by a foster parent under 42 U.S.C. Sec. 1983.


FACTS: 
As is often the case with important cases, the facts are simple. In 2012, Kentucky’s Health and Family Services brought a Dependency, Neglect and Abuse proceeding against the mother of two boys. The mother stipulated to the charges and the boys were placed in foster care. Plaintiff R.O, the mother’s aunt, sought and secured custody of the children. In Sept. of 2014, the family court closed the action and granted joint custody to both the mother and the aunt, although the boys continued living with the aunt.
R.O. filed a motion with family court seeking foster care maintenance payments. The family court declined to rule so RO turned to the state court arguing:
·            That the federal Child Welfare Act required the state to provide maintenance payments and
·            Failure to make payments violated the Constitution’s Equal Protection and Due Process Clauses.
The Cabinet removed the case to federal court and filed a motion to dismiss. The district court granted the Cabinet’s motion, reasoning that:
·            The Child Welfare Act doesn’t provide private enforceable rights,
·            The family lacked a property interest in the payments and
·            Kentucky’s scheme rationally distinguished between relative and non-relative foster care providers.

The family appealed.
The appellate court cited three sections of the Child Welfare Act, which supports state-run foster care and adoptions for children removed from low income families. First, to be eligible for federal funds, a state must submit a 35-point plan to the Secretary of Health and Human Services. Second, the plan must provide foster care maintenance payments for each child and, finally, once the moneys are spent, the state can be reimbursed by the federal government.

The 6th Circuit saw as the central issues on appeal:
·             Whether the Act confers upon foster families a private right to foster care maintenance payments; and
·             Whether that right is enforceable under sec. 1983.

The 6th Circuit held that the Act confers upon families an individually enforceable right to foster care maintenance payments because:
·             The Act mandates payments “on behalf of each child.” 42 U.S.C sec.672(a)(1),
·             The Act confers a monetary entitlement upon qualified foster families and includes an itemized list of expenses, and
·         The Acts “shall make” language “imposes a binding obligation on the States.”

Both the Supreme Court and the Sixth Circuit have found that laws phrased in the active voice, with the state as the subject, confer individually enforceable rights.
Enforcement under Sec 1983:
Having shown that the statute creates a private there is a rebuttable presumption that the right is enforceable under sec. 1983. Stating that “Absent resort to sec 1983, foster families possess no federal mechanism to ensure compliance with the Act,” the court held that the “Act confers families with an individual right to foster care maintenance payments enforceable under Sec.1983.
Are the Plaintiffs entitled to maintenance payments?
Yes. Section 672(a) restricts the class of children entitle to benefits in two ways; (1) the child must be in Cabinet’s custody—once placed in permanent guardianship, no payments are required and (2) child must be placed in an approved “foster family home.”

The facts supporting the payment:
·             The children were not discharged from the Cabinet’s care because the “order of permanent custody was not on the required form AOC-DNA 9 according to Kentucky law,”
·             The Cabinet didn’t provide evidence that the family court held a permanency hearing or discharged the children from the Cabinet’s care.

Is the aunt’s home an approved “foster family home?”
·             The law provides for two types of foster families—licensed foster homes that provide care for unrelated children and foster homes that provide care for relative children,
·             The Cabinet approved R.O. to be a foster parent

Where the Cabinet fails to make maintenance payments on the distinction between relative and non-relative foster care providers, it violates federal law. Rather any home the State approves as meeting its licensing standards falls within the definition. If Kentucky is denying benefits because the aunt is related to the children, it is violating federal law.
The court reversed the district court’s decision. Upon remand the court shall determine whether the Cabinet maintains responsibility for the children’s placement and care. If the Kentucky discharges the children, the district court shall dismiss the case. If not, the court shall award foster care maintenance payments.

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New Article by Sandra Lake: Opening Pandora’s Box: Legal Malpractice and the “Suit Within a Suit” Doctrine

Posted on Tuesday, April 25, 2017

Recently published in The Journal of Insurance & Indemnity Law, Sandra Lake's article discusses application of the commonly known "suit within a suit" doctrine as applied to claims of legal malpractice, when it applies, and the difference between having to show that a party would have prevailed but for attorney negligence and having to show them that party could have achieved a better outcome but for the alleged malpractice.
You can read the whole article on page 16 HERE.

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Pre-Case Evaluation Sanctions Enforceable Despite Accepted Case Evaluation Award

Posted on Wednesday, April 12, 2017

The Michigan Court of Appeals has held that unpaid discovery sanctions imposed against a party prior to the case evaluation hearing are still enforceable despite the parties’ acceptance of the case evaluation award. Brown v Farm Bureau Ins, unpublished opinion per curiam of the Court of Appeals, issued March 28, 2018 (Docket 331893).
Relying on the Supreme Court’s opinion in CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549; 640 NW2d 256 (2000), the defendant argued that once the parties accepted the case evaluation award, all claims in the action were resolved, which defendant interpreted as including the pending discovery sanctions. The plaintiff argued, however, that the sanctions were not a part of the “claims” presented in the case, but rather were a punishment to defendant for violating the court’s discovery order, and were not disposed of upon acceptance of the case evaluation award. For that reason, argued plaintiff, the pre-CAM Construction case of Merit Mfg & Die v ITT Higbie Mfg Co, 204 Mich App 16; 514 NW2d 192 (1994) (holding that court-ordered discovery sanctions awarded prior to mediation are distinct from the mediation award), was controlling.

In agreeing with plaintiff, the Court of Appeals made an important distinction between sanctions sought pursuant to the no-fault act (such as an award of attorney fees under MCL 500.3148) and Section 2591 of the Revised Judicature Act of 1961 (regarding frivolous actions or defenses), which would not be permitted once the parties resolved the case via case evaluation, see Larson v Auto-Owners Insurance Company, 194 Mich App 329; 486 NW2d 128 (1992), and sanctions imposed to vindicate the authority of the court.  

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Michigan Probate and Estate Planning Journal: Long-Awaited Probate Appeals Legislation Brings Uniformity and Efficiency

Posted on Monday, April 10, 2017

In the Winter 2016 Michigan Probate and Estate Planning Journal, Liisa has an article: "Long-Awaited Probate Appeals Legislation Brings Uniformity and Efficiency" which you can read HERE.


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March Family Law Journal Article: What's the Difference Between "Reverse" and "Vacate"?

Posted on Monday, April 3, 2017

The March 2017 Michigan Family Law Journal contains an Article written by two of our attorneys, Liisa Speaker and Jennifer Alberts.  The article is called "What's the Difference Between "Reverse" and "Vacate"?  on page 33.  The Family Law Journal is only available to members of the Michigan Family Law Section, more information HERE.

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MCOA Overturns Termination Based Solely on Prior Terminations

Posted on Monday, March 20, 2017

The Michigan Court of Appeals reversed the lower court decision terminating the father’s rights to his child because of the termination of his rights to two children in the past (MCL 712.19b (3)(l)—termination where parent’s rights to another child have been terminated.)
FACTS: According to the facts, the father had provided KDR, KDR’s mother and a child belonging to KDR’s mother of In re Rutherford (Docket 332582, December 22, 2016) with consistent housing either in his apartment or his mother’s home before birth. There was no evidence presented that KDR was neglected, abused or even poorly cared for.  
The Court of Appeals reversed on several grounds; however, two are of note:
Termination due to prior termination violates due process:
Clear and convincing evidence was presented to support termination of the father’s parental rights under subsection (l), which requires only that a respondent’s parental rights to one or more of the child’s siblings have been terminated pursuant to statute. However, as the court noted, this subsection no longer supports termination since the Court ruled it unconstitutional in a recent opinion by this Court. See Gach, ___ Mich App at___; slip op at 8. This Court explained that in cases where there has been an earlier termination, if it is not clearly and convincingly proved that the parent failed to remedy the earlier abuse or neglect that led to the earlier termination, such as necessary under subsection(3)(i), “application of statutory ground (3)(l) disdains present realities in deference to past formalities” and simply “forecloses the determinative issues of competence and care.” Id. “MCL 712A.19b(3)(l) thus fails to comport with due process in light of the fundamental liberty interests at stake.”
The Court was concerned about the retroactive effect of the Gach decision, decided 18 days after the trial court entered its opinion. However, the Court was persuaded “Not only is Gach directly on point, it involves the due process right of respondent to parent, and is a likely candidate for either full or limited retroactivity.” After reviewing the factors, the Court decided full retroactivity of the rule in Gach was justified.
Termination not in the child’s best interests where relative placement ignored.

Although the Court didn’t have to consider the trial court’s best interests determination, once it was determined there were no statutory grounds, it stated: “the trial court’s best interest determination was in error because it neglected to consider KDR’s relative placement.”
The referee who wrote the 25-page best interest section of the opinion never mentioned the fact that KDR was placed with his mother, a relative. “A trial court’s failure to explicitly address whether termination is appropriate in light of the [child’s] placement with relatives renders the factual record inadequate to make a best interest determination and requires reversal.” Olive/Metts, 297 Mich App at 43 (citation omitted). Thus, because the trial court failed to consider KDR’s relative placement, reversal is required, regardless of the failure of statutory grounds previously discussed.”

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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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COA Affirms Trial Court Decision that Defendants Conspired to Defraud Plaintiff Wife

Posted on Wednesday, February 22, 2017

To understand these three inter-related appeals, Cassidy v Cassidy and Hansen, No. 328004, No. 328024 and Cassidy v Cassidy, No. 333319, we first must state the facts of this not-so-simple divorce matter. Joy and Robert Cassidy were married in 1997. Joy filed for divorce from Robert in 2012 after confirming that Robert had been having an affair with Mary Hansen. During the course of the affair, Robert gave Hansen over $300,000 to remodel her East Ellen Street house. By the time of the trial, Robert decided the money was a “loan.”
Much of the trial focused on whether Robert and Hansen, named as a defendant, conspired to defraud Joy of her share of the marital estate. While Robert agreed that the money should be considered part of the marital estate, he denied he and Hansen acted together to thwart Joy’s share of the family money. Joy claimed to be ignorant of the family’s financial situation.
After 15 days of trial, Genesee Circuit Court Judge F. Kay Behm found that Robert and Hansen conspired to defraud Joy of her right-full share of the marital estate. She ordered that a constructive trust existed over East Ellen Street home.


Three appeals resulted:
No. 328004—Hansen appealed the judgment of divorce claiming that the trial court erred in failing to grant Hansen a summary disposition on Joy’s claim under the Uniform Fraudulent Transfer Act (UFTA), arguing that:

1. UFTA doesn't apply because Joy was not a creditor at the time of the transfer and there was no active concealment of assets,
2. The court erred in denying jury request, and
3. The court erred in ordering Hansen to pay back more than the loan amount and in placing a lien in favor of ConRadical (Robert's business) who was a non-party to the divorce. 
No: 328024—Defendant Robert appealed challenging the division of property, which included holding him responsible for substantial tax liability for under-payment of taxes, $1000 a month spousal support and an award of over $150,000 in attorney fees.
No: 333319—Defendant Robert challenged a trial court contempt order requiring to spend 10 days in jail until he paid the attorney fees.
The COA upheld the trial court’s decisions on all three appeals.
NO. 328004: Hansen Appeal
According to the COA, Hansen’s attorney led the trial court into an “unnecessary dialogue regarding what ‘cause of action’ was raised against Hansen and, once plaintiff settled on the UFTA, whether Hansen was entitled to a jury trial. Those inquiries were unnecessary, given the trial court’s express equitable power in the divorce proceeding to determine and distribute the marital estate.
The court reasoned that Hansen was properly brought into the case because:

  1. The jurisdiction of the divorce court is statutory and limited to determining the rights and obligations between the husband and wife, to the exclusion of third parties.
  2. There is an exception (Estes v Titus, 481 Mich 573 (2008)) when fraud is raised, third parties can be added if they conspired with one of the parties to defraud the other spouse of a property interest.
  3. Although Hansen was brought into the case involuntarily, the court, after reviewing Wiand v Wiand,178 Mich App 137 (1989), and Thames v Thames, 191 Mich App 299 (1991), found that the trial court may “adjudicate the rights of third parties even when they are not named as parties” due to the deliberate hiding of marital assets from one of the spouses.
The court also decided that Hansen had no right to a jury trial writing: “Given that a trial court may adjudicate the rights of third parties even when they are not named as parties, as in Donahue [v Donahue, 134 Mich App 696; 352 NW2d 705 (1984)] and Wiand [v Wiand,178 Mich App 137; 443 NW2d 464 (1989)], it follows that there is no right to a jury trial when the third party has been named as a party.”
And, finally, Hansen argued that the court erred in placing a lien on the East Ellen home that included the $364,000 she “borrowed” from Robert and the $70,000 she received from ConRadical. The trial court determined the funds were Robert’s wages and part of the “loan” received by Hansen and thus part of the marital estate.
In this well-reasoned opinion, the trial court decisions in both appeals NO: 333319 (contempt of court) and NO: 328024 (challenges to the distribution of the marital estate) were affirmed and plaintiff may tax costs.

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Federal Appeals Court Denies Stay to Executive Branch on Travel Ban Order

Posted on Friday, February 10, 2017

In Washington v Trump, the 9th circuit court of appeals declined to grant a stay of the federal district court’s order.  In doing so, the court had to review the likelihood that the executive branch would succeed on the merits.
The executive branch argued that “the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” The Executive Branch relied on the separation of powers.
The judiciary confirmed that there is a constitution and that all branches of government are bound by it.  The 9th circuit court of appeals observed that the Executive Branch’s argument “runs contrary to the fundamental structure of our constitutional democracy.”  The court then provided a primer on democratic principles: “Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case. Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”  [Citations omitted].  The court further noted that even executive actions in the name of national security are subject to judicial review --   “federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.”

As the validity of the executive action, the court concluded that executive action violated due process in several ways – (1) by denying re-entry to “certain lawful permanent residents and non-immigrant visaholders” without notice or opportunity to be heard, (2) by prohibiting “certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States,” and (3) by violating federal statute which sets up a process by which “refugees seeking asylum and related relief in the United States.”
The court also examined the first amendment challenge to the executive action because the executive order intended to disfavor a class of people on the basis of their religion. The court noted that it could look at evidence beyond the face of the executive order itself to determine the purpose of that executive action.  In that regard, the court examined public statements made by the president about the intent to implement a “Muslim ban.”  The court acknowledged that the challenges to the executive order raise “serious allegations and present significant constitutional questions.”  It reserved consideration of these claims until a full merits review on appeal.

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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.”

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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. 

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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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U.S. Supreme Court declines Michigan deputies’ appeal in excessive force case

Posted on Tuesday, May 10, 2016
   The United States Supreme Court has denied an appeal in the case of two Macomb County deputies who were sued for civil rights violations when making an arrest.
   The 6th U.S. Circuit Court of Appeals, in Baynes v Cleland (Docket No. 14-2235), ruled the defendant police officers could be held liable for handcuffing the plaintiff, Alan Baynes, too tightly during his domestic violence arrest. In so finding, the 6th Circuit reversed the Eastern District of Michigan, which had granted summary judgment for the defendants based on qualified immunity.
   During his arrest, the plaintiff claimed that he told the defendants that his handcuffs were too tight. After he was released from jail, the plaintiff was treated for injuries to his wrists and was diagnosed with “bilateral radial sensory neuropathy from handcuffs.” He was prescribed wrist guards to wear.
   The plaintiff sued the defendants under 42 USC § 1983, asserting they violated the Fourth and Fourteenth Amendments by using excessive force that caused him severe and permanent injuries. After the Eastern District granted summary judgment for the defendants, the plaintiff appealed.
   The 6th Circuit reversed the Eastern District. In so doing, the court emphasized there is plenty of case law holding that excessively tight handcuffing is a constitutional violation. In particular, the 6th Circuit cited the U.S. Supreme Court’s ruling in Hope v Pelzer, 536 US 730 (2002), for the proposition that officials must be on notice that their alleged conduct was unconstitutional.
   “In Hope, the Supreme Court established that, for purposes of qualified immunity, the precise factual scenario need not have been found unconstitutional for it to be sufficiently clear to a reasonable official that his actions violate a constitutional right — that is, for the right to be ‘clearly established,’” the 6th Circuit said. “In fact, the Supreme Court determined that government officials can still be on notice that their conduct violates established law even in novel factual circumstances.”
   The 6th Circuit further noted the court has consistently held that excessively forceful handcuffing violates the Fourth Amendment, and that its rulings sufficiently put a reasonable officer on notice that “unduly tight handcuffing” is a constitutional violation. Therefore, “the law is sufficiently clear for the purpose of the clearly established prong of the qualified immunity analysis,” the 6th Circuit said.  
   Applying these principles this case, the 6th Circuit said that, while the Eastern District recognized there is a general right to be free from unduly tight handcuffing, the district court proceeded to mistakenly find that the right was not clearly established in this case because a reasonable officer would not have known that he was violating the plaintiff’s Fourth Amendment rights.
   According to the 6th Circuit, the Eastern District relied too heavily on the unpublished opinion in Fettes v Hendershot, 375 F App’x 528 (6th Cir, 2010). “It was at this point that the district court erred,” the 6th Circuit said. “The factual nuances the district court noted to distinguish [the plaintiff’s] case from this Court’s extensive precedent on unduly tight handcuffing amount to precisely the kind of rigidity the Supreme Court foreclosed in Hope.”
   The defendants thereafter appealed the 6th Circuit's decision to the U.S. Supreme Court, which denied the petition for writ of certiorari on March 7, 2016 (Docket No. 15-852).


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Party didn’t meet MCR 3.206 requirements: Must pay own attorney fees

Posted on Monday, April 25, 2016
An ex-wife who filed a motion to modify a custody order was not entitled to attorney fees associated with the motion, because she was able to pay her own fees and the fees were not the result of her ex-husband’s failure to obey a court order, the Michigan Court of Appeals has ruled.
   In Hayley v Martin (Docket No. 324689), the plaintiff ex-wife filed a motion to modify the custody and parenting-time order, which the trial court granted in part. Afterward, the plaintiff filed a motion for attorney fees pursuant to MCR 3.206(C), which the trial court denied, finding that both parties worked and were responsible for their own fees.
   MCR 3.206(C) says:
“(1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the action, and that the other party is able to pay, or
(b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.”
   The plaintiff appealed and the Court of Appeals remanded the case, finding the trial court did not adequately address the plaintiff’s fee request.
   On remand, the trial court determined the plaintiff improperly sought appeal costs and post-appeal costs, and so the requested fee amount was reduced. The trial court also held that the billable rate and number of hours claimed were reasonable.
   The trial court ultimately found the plaintiff failed to prove that she could not pay her own attorney fees or that the defendant was able to pay her fees. Because the requirements of MCR 3.206(C)(2)(a) were not met, the trial court denied the plaintiff’s fee request. The trial court also held the plaintiff was not entitled to fees under MCR 3.206(C)(2)(b), because she did not establish that the fees were incurred because the defendant had violated a previous court order.
   Therefore, the trial court held — as it did the first time — that both parties were responsible for their own attorney fees.
    On appeal for the second time, the plaintiff argued the trial court applied an incorrect standard to determine whether she could pay her attorney fees. The Court of Appeals disagreed, finding the trial court adequately considered the ability to pay, as required by MCR 3.206(C)(2)(a).
    In particular, the Court of Appeals noted that the plaintiff had been paying her own legal fees throughout the case. And while the appeals court said the plaintiff had to prove that financial assistance was necessary, it noted that she had already paid $71,000 in attorney fees.
   “Further, plaintiff earned about $62,000 a year and testified that she was paying her attorney $150 a month,” the Court of Appeals said. “Thus, … plaintiff did not prove that she was unable to pay her attorney fees incurred by the filing of her motion to modify the consent judgment of divorce.”
   The Court of Appeals also rejected the plaintiff’s argument that the trial court applied an incorrect legal standard.
   According to the Court of Appeals, the trial court properly found that the plaintiff failed to show the defendant was “living an extravagant lifestyle and earning $200,000 to $400,000 a year.” The appeals court also noted that the defendant had his own attorney fees to pay. Therefore, the trial court correctly held that the plaintiff did not meet her burden of proof under MCR 3.206(C), and the trial court’s ruling was “amply supported by the record evidence.”
   Regarding MCR 3.206(C)(2)(b), the Court of Appeals said the plaintiff did not point to any evidence indicating that she filed her motion to modify custody because the defendant had failed to comply with a prior order. As a result, the appeals court ruled the trial court did not abuse its discretion in finding that the plaintiff was not entitled to fees under MCR 2.306(C)(2)(b).




    “In summary, the trial court did not abuse its discretion in denying plaintiff’s request for attorney fees related to the filing of her motion to modify the custody and parenting time provisions of the consent judgment of divorce,” the appeals court concluded.

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