Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Sentencing; Imposition of a no-contact condition; People v Lafey
Holding that the trial court was not authorized to impose a no-contact condition on defendant, the court reversed and remanded for removal of that condition from her sentence. She pled guilty to aggravated child sexually abusive activity, CSC II, second-degree child abuse, surveilling an unclothed person, and CSC III, arising out of her enablement of and participation in the sexual assaults of her daughter and granddaughter. The trial court sentenced her to concurrent terms for each of the offenses and imposed additional conditions of sentence, including a condition that essentially prohibited her from having contact with anyone outside of prison other than legal counsel (no-contact condition). On appeal, the court agreed with defendant that the no-contact condition was impermissible and unconstitutional. “None of the statutes under which defendant was sentenced contain a reference to the trial court’s authority to prohibit contact with virtually all individuals outside of prison.” In addition, “there is no statute expressly authorizing the trial court to impose a blanket no-contact condition of sentence as was imposed in this case, and we are unaware of any statute that authorizes such a sentence by implication.” Further, as in Lafey, “the trial court did not have the inherent authority to impose the no-contact condition.” It lacked “statutory or inherent authority to impose the no-contact condition, rendering it unauthorized by law.”
Consent judgment of divorce (JOD); Child support pursuant to the Michigan Child Support Formula (MCSF) & the Uniform Child Support Order (UCSO); Deviations from the MCSF; MCL 552.605(2) & (3); Holmes v Holmes; Support & Parenting Time Enforcement Act (SPTEA)
The court held that the trial court adhered to MCL 552.605 in deviating from the MCSF and calculating plaintiff-ex-wife’s child support award. The trial court entered the parties’ JOD, UCSO, and an accompanying MCSF deviation addendum. Although it calculated plaintiff’s child support award under the MCSF as totaling $1,735 per month, it deviated from that figure and instead awarded her $510 per month. It found the MCSF was unjust because defendant-ex-husband provides a substantial amount of the children’s day-time care and directly contributes toward a significantly greater share of their cost than those reflected by the overnights used to calculate the offset for parental time. It noted that the UCSO requires a payment of $510. On appeal, the court rejected plaintiff’s argument that the trial court erred by failing to adhere to the SPTEA in deviating from the MCSF. “[T]he trial court adhered to MCL 552.605 in deviating from the MCSF. Although the parties could not bargain away their children’s right to child support, MCL 552.605(3) specifically permitted the trial court to enter a child support award that deviated from the MCSF based on the parties’ agreement, provided” it complied with MCL 552.605(2). It “did so by addressing in writing the child support award as determined by the MCSF, the manner in which the actual child support award deviated from that figure, the reasons why the application of the MCSF was unjust or inappropriate, and that there was no property or other support awarded in lieu of child support.” While the trial court “did not address the specific child support award on the record, the UCSO and accompanying deviation addendum set forth in writing each criterion required under MCL 552.605(2).” Affirmed.
Divorce; Fault; Value of the parties’ marital home & cattle; Distribution of the parties’ marital property
The court held that because “the parties did not dispute the respective values of their marital home or cattle, the trial court did not clearly err by distributing the parties’ marital assets without specifically assessing their value.” And because the record supported “the trial court’s findings underlying its distribution of the parties’ marital assets, the trial court did not abuse its discretion by awarding the parties’ marital home to” plaintiff-ex-wife. Defendant-ex-husband argued “that the trial court clearly erred by failing to assess the value of the parties’ marital home and cattle before distributing their marital assets.” He also argued “that the trial court abused its discretion by inequitably distributing the parties’ marital property in” plaintiff’s favor. The court found that because “the value of such marital property was not in dispute, the trial court did not clearly err by failing to specifically assess the value of the parties’ marital home and cattle before distributing their marital assets.” The record reflected “that the trial court did not focus solely on [defendant’s] fault and otherwise supports the trial court’s departure from an equal property distribution in” plaintiff’s favor. The trial court considered other factors, including the “duration of the parties’ marriage, [her] disproportionate contribution to the marital estate, the parties’ ability to work, the parties’ good health, and [defendant’s] failure to comply with orders throughout the proceedings. In doing so, the trial court validly exercised its broad discretion by placing greater weight on [his] acts and omissions in fashioning its ruling.” The court held that because the record reflected “that the trial court did not focus solely on [his] fault and otherwise supports the trial court’s departure from an equal property distribution in [plaintiff’s] favor, the trial court’s dispositive ruling was equitable in light of the relevant circumstances.” Affirmed.
Action for injuries sustained due to a road defect; The highway exception to governmental immunity; MCL 691.1404’s notice requirement; Service on a governmental agency; MCR 2.105(G)(2); Effect of failing to provide adequate notice; McLean v Dearborn; “May”; Wigfall v Detroit
Holding that plaintiffs’ notice failed to meet MCL 691.1404’s requirements, the court found that defendant-city (Pontiac) was entitled to summary disposition under MCR 2.116(C)(7). Thus, it reversed the trial court’s order denying the city summary disposition and remanded. Plaintiffs were injured in a moped accident when they encountered a road defect. The city asserted that governmental immunity barred their claims because they “failed to serve an individual who may lawfully be served with civil process, as MCL 691.1404 requires.” It argued on appeal that the trial court erred in “finding that plaintiffs properly served Pontiac with the notice required by MCL 691.1404.” The court agreed. Plaintiffs “sent their notice of intent to ‘City of Pontiac Department of Public Works’ via certified mail. The return receipt was signed by” a Department of Public Works employee. The notice was “defective because it was not served upon ‘the mayor, the city clerk, or the city attorney’ of Pontiac, or ‘an officer having substantially the same duties[,]’ as required by MCR 2.105(G)(2). This defect was fatal to plaintiffs’ case, . . . and the trial court erred by failing to grant Pontiac’s motion for summary disposition on this basis.” The court was unpersuaded by their “argument that the word ‘may’ in MCL 691.1404 and MCR 2.105(G)(2) is a permissive term that allowed service of process on any city department in Pontiac. Plaintiffs’ argument glosses over the fact that the permissive term ‘may’ is used in the context of three individuals—the mayor, the city clerk, or the city attorney—or ‘an officer having substantially the same duties[.]’” They did not cite any authority supporting “their broad construction of MCL 691.1404 or MCR 2.105(G)(2).” The court further found that their argument was undermined by the Michigan Supreme Court’s holding in Wigfall.
An electrical utility company’s duty to maintain overhead power lines; Schultz v Consumers Power Co; Groncki v Detroit Edison Co; Valcaniant v Detroit Edison Co; Duty; El-Jamaly v Kirco Manix Constr, LLC
The court held that the trial court did not err by finding defendant-electrical utility company owed no duty to plaintiff. Plaintiff sued defendant for injuries he sustained when he was electrocuted by power lines while power washing near the roofline of a residential home. He claimed “defendant breached its duty to maintain its power lines and to position them in a location that ensured the safety of persons conducting reasonably foreseeable activities in the surrounding area.” The trial court granted summary disposition for defendant. In a prior appeal, the court vacated and remanded. On remand, the trial court again granted summary disposition for defendant. The court then affirmed. After it decided El-Jamaly, the Supreme Court vacated the court’s decision in this case and remanded for reconsideration. On remand, the court again found defendant owed no duty to move the power lines. As “in Groncki, ‘impos[ing] a duty to relocate, insulate, or de-energize power lines whenever third parties construct buildings near power lines would interfere with’ the public policy of providing necessary electrical power at a reasonable cost.” The power lines “were installed in 1949, and [the] home was built in 1977, almost 30 years later.” In addition, while “the record indicates that the power lines previously required repair or replacement, the record fails to indicate any previous hazardous situations involving the mere location of the power lines. Further, in Groncki, our Supreme Court acknowledged that a person’s skill, experience, and knowledge of the danger of operating equipment near power lines are relevant factors in determining the foreseeability of injury.” Plaintiff in this case “was a professional power washer with 20 years of experience who was aware of the power lines behind him. In fact, he testified that the power lines ‘[l]ooked concerning.’” Considering his “experience and knowledge of the risks involved, it was not foreseeable that he would continue to power wash the home near the roofline after seeing water ricochet off the gutter toward the power lines.” Affirmed.
Validity of a will; Presumption of undue influence; In re Estate of Karmey; Confidential or fiduciary relationship; Distinguishing Salvner v Salvner
The court held that the probate court did not err in finding a presumption of undue influence and that appellant failed to rebut the presumption. There was no dispute that the second and third factors for the presumption were satisfied. Appellant “would certainly benefit from inheriting the house, and had the opportunity to influence” the decedent’s (Helen) “decision because he was her caregiver and lived in her home.” Thus, the only issue was whether his “relationship with Helen constituted a confidential or fiduciary relationship.” Appellant claimed “that the probate court concluded a fiduciary relationship existed merely because they were mother and son. [He] mischaracterizes the trial court’s reasoning. Unlike in Salvner, in which the children had no more than what appeared to be a standard parent-child relationship with their father, appellant had a profound role in Helen’s life.” The court found that his “relationship with Helen was demonstrably one of inequality, . . . not because it was a mother-son relationship, but because ‘there [was] confidence reposed on one side and the resulting superiority and influence on the other.’” The record supported “the conclusion that appellant had a confidential or fiduciary relationship with Helen. Thus, the probate court did not err when it found a presumption of undue influence.” The probate court further “reasoned that appellant had failed to rebut the presumption of undue influence because ‘there [was] little question’ that” he was her “caretaker” at the time the will was executed, given his “own testimony regarding just how dependent on him Helen was. Additionally, Helen, ‘at the time this Will was created suffered from serious physical and mental health problems which made her very susceptible to such influence.”’ While appellant relied on the medical conclusion that she was not incompetent, the fact “she was not formally declared incompetent does not negate the numerous circumstances the probate court considered rendered Helen ‘a vulnerable adult.’” Appellant also heavily relied “on the testimony of the attorney who drafted the 2018 will that nothing in her meeting with Helen and appellant gave her cause for concern for Helen’s mental health or wellbeing and that she felt Helen entered the will ‘freely and willingly and knowingly.’” But the court found that “the attorney’s limited insight into Helen’s circumstances undermines her testimony.” It held that “it was insufficient in the face of the extensive evidence provided by” appellees. The court affirmed the order declaring the 2018 will invalid.
Validity of a lis pendens; Malice; Wells Fargo Bank v Country Place Condo Ass’n; Falsity; Slander of title; MCL 565.108; Anton, Sowerby & Assoc, Inc v Mr C’s Lake Orion, LLC; Stonehenge Condo Ass’n v Bank of NY Mellon Trust Co, NA (Unpub); Value Investors LLC v Yatooma (Unpub); The “raise or waive” rule; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC; Special damages; Failure to mitigate damages
The court held that the trial court did not err by granting appellees summary disposition as to their slander of title claims or in its calculation of damages. Appellants sought reversion of appellees’ condo units and recorded a notice of lis pendens against the units. Appellees sought summary disposition and, while their motion was pending, they amended their counterclaim to include slander-of-title claims, alleging the lis pendens contained knowingly false statements and was filed with malice. The trial court ruled in favor of appellees in 2020 on appellants’ claims and in 2022 on appellees’ counterclaim. It granted them special damages, and denied appellants’ motion for reconsideration. On appeal, the court rejected appellants’ argument that the trial court committed palpable error by awarding summary disposition to appellees. “First, we note that the trial court ruled that [they] acted maliciously when they did not release the lis pendens after the award of summary disposition” in 11/20. They also did not carry “their burden of demonstrating that the trial court committed palpable error in concluding that malice was present when [they] maintained their lis pendens after the award of summary disposition” in 11/20. “Their argument that a slander-of-title claim cannot be premised on the wrongful continuation of a lis pendens is not consistent with published opinions regarding liens generally or with this Court’s unpublished opinions concerning lis pendens specifically.” Further, the “trial court had discretion on the motion for reconsideration to decline to consider new legal theories that could have been presented when the motion was initially decided.” As such, it “did not abuse its discretion when it declined to grant reconsideration on the basis of” appellants’ new legal theory that “the trial court erred by finding that they acted maliciously by not removing the lis pendens after the award of summary disposition because there was no final judgment and they could still appeal that decision.” Based on the arguments appellants “made to the trial court, they are arguably precluded from contending on appeal that they maintained a reasonable belief in the validity of the lis pendens even after the” 11/20 award of summary disposition. They “cannot establish that the trial court abused its discretion by denying their motion for reconsideration with respect to the elements of malice and falsity.” The court also rejected their claim that the trial court abused its discretion by denying their motion for reconsideration of the special damages awards because appellees failed to mitigate their damages. “[T]he trial court did not abuse its discretion by declining to grant reconsideration on the basis of that new legal theory.” And the court declined to address it further. Affirmed.
Termination under § 19b(3)(j); Statutory grounds to exercise jurisdiction; MCL 712A.2(b)(2); The anticipatory-abuse doctrine; In re Kellogg; In re Powers; Children’s best interests; In re White; Due process; Consideration of a guardianship; In re Lombard; MCL 712A.19a(9); Plain error review
The court held that the trial court did not clearly err in “finding statutory bases to exercise jurisdiction over” respondent-father’s children under MCL 712A.2(b)(2) and to terminate his parental rights under § (j). It also did not clearly err in determining that termination was in their best interests or in failing to consider and rule out a guardianship as an alternative. The “trial court found that respondent repeatedly sexually abused” his teenaged niece (LL). Applying the anticipatory-abuse doctrine, it concluded that his “sexual abuse was probative of how he would treat his children.” On appeal, the court concluded that, contrary “to respondent’s contention, the anticipatory-abuse doctrine is not limited to instances in which a parent abuses a child over whom they have some degree of parental authority.” It also rejected his assertion that the probative value of his “sexual abuse was diminished by differences between LL and his children . . . .” The record showed that LL differed from his “children because she did not live in [his] home and was not [his] child. Yet, LL spent considerable time in respondent’s home and occasionally spent the night. She testified that [he] behaved inappropriately or sexually abused her nearly every time they were alone together. In light of the evidence that respondent repeatedly sexually abused his biological niece in the home where he lived with his children, the probative value of [his] sexual abuse was not negated by the fact that LL lived elsewhere or the fact that” she was not his child. Further, the fact that she is female and one of his children (J) “is male did not negate the probative value of respondent’s prior sexual abuse as it related to” J. The court further noted that “the trial court did not rely solely on the anticipatory-abuse doctrine. [It] also found that respondent’s sexual abuse of LL posed a risk of significant emotional harm to the children if [he] sexually abused one of their friends in the future.” As to their best interests, the record reflected “that respondent’s repeated sexual abuse of LL posed a significant risk of harm to the children. The trial court considered the extent to which [his] access to certain resources could alleviate the risk he posed to the children” and found that there were none “that could sufficiently benefit [him] given the heinous nature of his sexual abuse and failure to take responsibility for his actions. [It] also appropriately considered the children’s respective relative placements and nevertheless concluded that termination served their best interests.” Affirmed.