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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
View Text Opinion Full PDF Opinion
Restrictive covenants; Waiver; Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham; Effect of an anti-waiver clause; Quality Prod & Concepts Co v Nagel Precision, Inc; Keeping cows on the property; Construction of a fence; Allowing vehicles to be driven on nonconcreted parts of the property; Construction of a shelter for animals; Award of attorney fees as prevailing parties; Amount of the fees; Smith v Khouri; Wood v Detroit Auto Inter-Ins Exch
The court held that even if defendants were correct that the two property restrictions at issue had been waived to a limited extent, this waiver did “not allow the ‘more serious’” violations that occurred here. Further, there was no material question of fact that defendants violated the restrictions by (1) keeping cows on their property, (2) constructing a fence, (3) allowing vehicles to be driven on nonconcreted parts of their property, and (4) constructing a shelter for the cows and a ram. The court also found that the trial court did not abuse its discretion in awarding plaintiffs $56,370 in attorney fees as prevailing parties. Thus, it affirmed summary disposition for plaintiffs and the attorney fee award. The parties “own lots in a five-lot neighborhood governed by a restrictive covenant known as the” agreement. Defendants first argued “that the neighbor association members waived their right to enforce parts of the agreement by” not contesting various past violations. But the court noted the agreement contained an anti-waiver clause. Under Bloomfield Estates, only “‘if the present violation constitutes a “more serious” violation of the deed restriction may a plaintiff contest the violation despite the plaintiff’s acquiescence to prior violations of a less serious character.’” Among the restrictions at issue here, Restriction 2 “prohibits off-driveway use of vehicles on the lots, and Restriction 20 . . . prohibits temporary structures ‘except as may be necessary during the period of construction of permanent structures.’” The court concluded that even if Restriction 2 had “been waived to a limited extent by boat towing, that waiver does not allow the ‘more serious’ violation of Restriction 2 that occurred in this case by the off-driveway use of trucks on a daily basis.” And even if violations of Restriction 20 had “been waived to a limited extent by the existence of a storage shed, that waiver does not allow the ‘more serious’ violation of Restriction 20 that occurred in this case by the animal shelter.” The court also held that the trial court correctly determined “there was no genuine issue of material fact that cows are included in the agreement’s definition of exotic animals and defendants violated Restriction 7 by keeping cows on their property.” Further, defendants “violated the agreement by constructing the fence” and the shelter “because they failed to provide the neighbor association with plans and specifications for” them before constructing them.
Family court jurisdiction; MCL 712A.2(a)(1); People v Thenghkam; Waiver of jurisdiction; MCL 712A.4(1); Due process; Prejudice; Delay
The court held that the trial court did not err by waiving jurisdiction over respondent. As a juvenile (14 years old), respondent was charged in a delinquency petition with CSC II and accosting a child for immoral purposes for allegedly sexually assaulting his niece, who was 5 years old at the time. At the Phase I hearing, the trial court found that petitioner established probable cause that respondent committed offenses that would be felonies if committed by an adult. At the Phase II hearing, it found that the interests of the public and the juvenile would be served by granting a waiver of jurisdiction to the court of general criminal jurisdiction. On appeal, the court rejected respondent’s argument that “it violates his constitutional right to due process to be treated as an adult for a crime that he allegedly committed as a juvenile, when the chief reason for treating him as an adult was that he aged out of any programming available in the juvenile court system.” First, the “record supports that respondent was 14 years old, such that the waiver process under MCL 712A.4 was appropriate.” Second, the trial court’s analysis of the six statutory criteria at the Phase II hearing was appropriate. As to factor (a), “despite the lack of a weapon in this case,” the trial court did err by finding “that this sex-based crime against a young child was ‘a very serious offense’ that offset respondent’s lack of prior record and related lack of prior programming.” As to factor (b), because the court defers to the special ability of the trial court to judge the credibility of witnesses, it did not err in its finding regarding respondent’s culpability on the basis of AS’s credibility. As to factors (e) and (f), respondent did “not dispute that there are no programming or dispositional options for him.” As such, “the trial court fulfilled its mandate to consider all six specified criteria, and none of its findings create a definite and firm conviction that a mistake has been made.” Finally, the court found that respondent’s due process rights were not violated, noting he was subject to the proper procedure. “Respondent’s age at the time of the charges set up a dismiss-or-waive dichotomy, but this is the process established by the laws and cases discussed. Therefore, neither the reporting delay nor the subsequent waiver violated respondent’s right to due process, and the trial court did not err by waiving its jurisdiction over respondent.” Affirmed.
Search & seizure; Traffic stop; Probable cause to believe that defendant was driving while intoxicated; Ineffective assistance of counsel; Failure to move to suppress the breathalyzer evidence
The court held that “the trial court did not plainly err by admitting the breathalyzer evidence, and defendant’s Fourth Amendment rights were not violated.” Also, he was not denied the effective assistance of counsel as to the failure to move to suppress the breathalyzer test. He was convicted of OUI with an occupant under 16 years old, second offense and operating with a license suspended or revoked. He argued that “his constitutional right to be free from unreasonable searches and seizures was violated because Deputy [P] did not have probable cause to believe that defendant was driving while intoxicated.” The court concluded that P “had probable cause to believe that a traffic violation was occurring because defendant was driving an unregistered, motorized scooter meant for one person on a public road, with his daughter standing on the floorboard.” Thus, it found that “the stop was permissible.” The court concluded that his “breathalyzer test was a search for the purposes of the Fourth Amendment.” But, his “Fourth Amendment rights were not violated because the test was taken pursuant to two established exceptions to the warrant requirement: search incident to a lawful arrest and consent.” The court held that he “was lawfully arrested at the time that the breathalyzer test was performed.” It noted that he “committed multiple traffic violations.” Moreover, the court found that “defendant consented to the breathalyzer test.” And there was “no indication that defendant’s consent was coerced or involuntary.” Affirmed.
Constitutionality of MCL 750.231a; Vagueness challenge; Whether a statute gives fair notice; People v Noble; “Readily accessible”; CCW in a vehicle; MCL 750.227(2); People v Nimeth; “Carrying”; People v Barbee; Constructive possession; People v Johnson; Constitutionality of MCL 750.227(2); New York State Rifle & Pistol Ass’n, Inc v Bruen; People v Langston; Ineffective assistance of counsel; Failure to raise a futile objection; Concealed pistol license (CPL)
The court rejected defendant’s constitutional challenges to MCL 750.231a & MCL 750.227(2). He was convicted of CCW in a vehicle and sentenced to 150 days in jail and 2 years of probation. After his release, he moved the trial court for post-conviction relief or a new trial, arguing that MCL 750.227(2) was unconstitutional under Bruen. The trial court denied his motion. On appeal, the court rejected his argument that “the language of the exemption to MCL 750.227(2) found in MCL 750.231a is unconstitutionally vague and overbroad, and that MCL 750.227(2) is itself unconstitutional under the Second Amendment . . . and Bruen.” It disagreed with defendant’s claim that “the phrase ‘readily accessible’ in MCL 750.231a fails to provide fair notice to the public of the proscribed conduct and gives the jury unlimited discretion to determine if an offense has been committed.” The prosecution “was already required to prove that defendant had actual or constructive possession of a pistol in a vehicle in order to sustain a conviction for CCW in a vehicle; the exemption found in MCL 750.231a merely provides guidance on how to transport a pistol without being found to have constructively possessed it in violation of MCL 750.227(2). Persons of ordinary intelligence can discern when an item is or is not readily accessible by the occupant of a vehicle; accordingly, the phrase in question is not unconstitutionally vague.” The court also disagreed with defendant’s contention that MCL 750.227(2) is itself unconstitutional and that his defense counsel was ineffective for not raising that issue under Bruen, noting it is bound by established precedent. “Defendant argues that the very requirement of a CPL runs afoul of the Second Amendment and Bruen. The same argument was made, and rejected, in . . . Langston, where this Court explicitly ruled that ‘the requirement of MCL 750.227 that a person must possess a valid CPL in order to carry a pistol in an automobile does not violate the Second Amendment.’ We are bound to follow Langston.” As such, defendant did not establish “that MCL 750.227(2) is unconstitutional, and defense counsel was not ineffective for failing to raise this issue.” Affirmed.
Joinder; MCR 6.120(B) & (C); People v Williams; People v Gaines; People v McCune; Other acts evidence; MRE 404(b)(1); People v Ackerman; MCL 768.27b; Unfair prejudice; MRE 403; People v Watkins; Constitutional challenge to MCL 768.27b; People v Muniz; American Bar Association (ABA)
In this case in which defendant was “accused of leveraging his medical practice to sexually assault five patients and two student interns[,]” the court held that the trial court did not err in joining the patient cases for trial. Further, the trial court did not err in ruling that other acts evidence would be admissible in that trial. Lastly, the court rejected his constitutional challenge to MCL 768.27b, finding its reasoning in Muniz, where it “rejected a nearly identical challenge to” MCL 768.27a, equally applied here. Thus, it affirmed the trial court in these consolidated interlocutory appeals. As to joinder, the “central inquiry is whether these offenses are ‘related.’” The trial court reasoned “that ‘due to the similarity of the scheme, location, and access to victims[,] [the patient cases] are both the same conduct and are a series of acts that constitute part of a single scheme . . . .’” The court found “this conclusion consistent with Williams and Gaines. The common allegation is that defendant exploited his role as an obstetrician-gynecologist to obtain secluded access to patients and engage in sexual misconduct under the guise of medical” exams. The court noted that this was “a more consistent modus operandi than the one found sufficient for joinder in Gaines[.]” In addition, it was “a more identifiably distinct modus operandi than that in Williams[.]” While defendant relied on McCune, the court was “unpersuaded. Whatever general commentary from the ABA this Court quoted in McCune—several years before we would be bound by any such statement under MCR 7.215(J)(1)—cannot supersede the actual holdings in cases like Williams and Gaines, where joinder was permitted for ‘schemes’ less distinctive than those alleged here. And since ‘the unambiguous language of MCR 6.120 does not mandate the existence of temporal proximity between several offenses,’” the court did not find “the 16-year timespan is an obstacle to joinder either.” As to the other acts evidence, the court noted that the “prosecution need only rely on MCL 768.27b” here. Considering MRE 403, the court determined that defendant did not establish “that the evidence would be unduly prejudicial. Although the alleged acts vary in certain details, all the charged offenses and uncharged conduct share a common pattern involving defendant taking advantage of his position as a doctor to sexually assault his patients.”
Order for involuntary mental health treatment; In re Londowski; The Mental Health Code (MHC); MCL 330.1468(2); Holding a second-demand hearing; MCL 330.1455(8); MCL 330.1452(1)(d); Clear & convincing evidence; “Person requiring treatment”; MCL 330.1401(1)(a) & (c); Requiring medication as part of the treatment plan
The court concluded in this civil-commitment proceeding under the MHC that the probate court did not abuse its discretion in holding a second-demand hearing. It further determined that the probate court’s findings “that respondent satisfied the definition of ‘person requiring treatment’ under MCL 330.1401(1)(a)” and (c) were supported by the record. And it found that the probate court’s “order to require medication as part of” her treatment plan was proper. Thus, it affirmed the probate court’s order for involuntary mental health treatment under MCL 330.1468(2). As to respondent’s procedural argument regarding the holding of the second-demand hearing, she did “not cite any support for the notion that it was erroneous for petitioner to initiate the demand for hearing, rather than respondent herself. MCL 330.1452(1)(d) and MCL 330.1455(8) do not explicitly limit which party must notify the court that a hearing should be convened, and MCL 330.1455(8) explicitly states that a demand for hearing may be filed ‘[i]f the individual, at any time during the period in which the hearing is being deferred, refuses the prescribed treatment or requests a hearing . . . .’” The record reflected “that respondent refused her prescribed treatment during the deferral period.” The court also rejected her assertion that the probate court erred in “ordering involuntary mental health treatment, including medication, when respondent was experiencing adverse side effects.” A doctor (K) testified at the hearing “that respondent was an individual with a mental illness, specifically, ‘bipolar disorder, manic with psychotic features,’ which is a mood disorder. [K] explained that, based on her mental illness, respondent was unable to make good decisions at that time. During the first few days of her hospitalization, [she] was ‘very focused’ on attempting to call and communicate with her former boyfriend, who had a restraining order against her for stalking. [K] believed that respondent’s behaviors posed a substantial risk of intentional or unintentional physical injury to respondent or” the former boyfriend. The court held that “the probate court properly determined that there was clear and convincing evidence that respondent was a ‘person requiring treatment’ under MCL 330.1401(1)(a)” and (c).
Admission of deposition testimony; Unavailable witness under MRE 804(b)(5)(A); Opportunity & similar motive to develop testimony; Waived issue as to jury instructions
The court concluded that the “trial court did not abuse its discretion by determining that” plaintiff-Brunner’s supervisor (nonparty-S) “was an unavailable witness under MRE 804(b)(5)(A).” It also did not abuse its discretion by finding that defendant-Concentrix “had an opportunity and similar motive to develop [S’s] testimony at her deposition.” Thus, the court affirmed the trial court’s judgment entered after a jury trial, awarding Brunner $1,090,391.96 plus costs and attorney’s fees. Concentrix argued “that Brunner failed to demonstrate that [S] was an unavailable witness.” The court noted that the “trial court found that [S] lived more than 100 miles from the place of trial. Concentrix has not challenged that finding and does not argue that [S’s] absence was procured by Brunner.” Concentrix also argued “that it ‘did not have the same motive to examine [S] at her discovery deposition as at trial.’” It contended it would have used an e-mail S had sent “on cross-examination to impeach [her] credibility if she had testified at trial; because it was unable to do so, it was deprived of the opportunity to cross-examine [S] about her unfounded allegations.” But the court noted that Concentrix introduced the “email at trial during its examination of another witness, and was not prohibited from arguing that the email impeached [S’s] credibility because it did not contain any comments about Brunner’s termination or any concerns about age discrimination.” The court further noted that “two witnesses testified that [S] never raised concerns with them regarding Brunner’s termination.” The court found that “Concentrix had the same motive to cross-examine [S] at her deposition as it did at trial: to show that” her supervisor’s (JS) “decision to terminate Brunner was not based on his age, or even that [JS] was not aware of Brunner’s age. The deposition was conducted by Concentrix, lasted for several hours, and occurred a full year after the e-mail was sent. Moreover, Concentrix admitted [S’s] e-mail into evidence at trial, and had the opportunity to argue that she never raised any complaints to management regarding Brunner’s termination.”
Foreclosure; Motion to set aside a default; MCR 2.603(D)(1); “Good cause”
Concluding that the trial court did not err in refusing to set aside the default, the court affirmed. “The case originated in the circuit court with plaintiff’s complaint seeking a foreclosure judgment on a real estate granted mortgage by” defendant-Green. She argued “that the trial court erred in refusing to set aside the default and that [she] ‘did not know’ that she was required to file an answer or otherwise respond. [She] also claimed that ‘mortgage fraud’ was her meritorious defense.” The court concluded that as “the trial court meticulously explained in its opinion, defendant has failed to show good cause or, for that matter, a meritorious defense.” Her appellate argument was “devoted to injustices perpetrated upon her by plaintiff or those in association with plaintiff. It neither addresses the factors of irregularity in the proceeding below nor provides a reasonable excuse for the failure to timely file an answer. Nor, for that matter, does it demonstrate a manifest injustice would result if the default is not set aside. Indeed, if anything, the default judgment works to defendant’s advantage, at least with respect to the current litigation.” The court noted that “Count I was dismissed outright. While it potentially allows plaintiff to take action in the future that is adverse to defendant’s interests, in the context of the matter before us, it is to defendant’s advantage to have a count dismissed.” Similarly, as “to Count II, the prior foreclosure and Sheriff’s Deed were set aside. Again, [in] the current context, that is to defendant’s advantage. In short, [her] argument, while perhaps relevant to other litigation involving this property, it is not relevant to this particular matter.” As for her claim “that she should have been granted summary disposition and awarded damages, there was no motion for summary disposition filed. Again, this might be an issue relevant in other litigation, but it is not relevant here.”
Claim for proceeds from tax foreclosure sales; MCL 211.78t(2); Rafaeli, LLC v Oakland Cnty; Exclusivity; Retroactivity; MCL 711.28t(1)(b) & (6); Schafer v Kent Cnty; Due process; Notice (Form 5743); MCL 211.78i & t; In re Petition of Muskegon Cnty Treasurer for Foreclosure; Takings claim; Const 1963, art 10, § 2; US Const, Amends V & XIV; AFT MI v Michigan; Nelson v City of New York; Ripeness; The “harsh-&-unreasonable” consequences exception; Distinguishing Mays v Snyder
The court held that respondents failed to show that MCL 211.78t is not the exclusive procedural mechanism for the recovery of tax-foreclosure proceeds, but that remand was required to determine whether they received proper notice. Thus, it affirmed in part, reversed in part, and remanded. In each of these consolidated appeals, the trial court denied respondents’ motion to disburse remaining proceeds after their properties were sold at a tax foreclosure sale and their tax debt was satisfied. On appeal, the court rejected respondents’ argument that MCL 211.78t is not the exclusive procedure for the recovery of tax-foreclosure proceeds. “The Legislature stated in MCL 211.78t(11) that § 78t ‘is the exclusive mechanism for a claimant to claim and receive any applicable remaining proceeds under the laws of this state.’ Legislative intent can hardly be more clearly expressed.” In addition, contrary “to respondents’ argument, subsection (6) is entirely inapplicable because their properties were not transferred or sold before” 7/18/20. And their takings claim was meritless. However, addressing notice, the court held that “[v]ested property interests are protected by due process, and ‘a former property owner has “a cognizable, vested property right to the surplus proceeds resulting from the tax-foreclosure sale of their properties.”’” And it is “imperative to provide explicit notifications that detail the right to claim any remaining proceeds, as outlined in MCL 211.78i, and the procedures specified in MCL 211.78t.” It found their remaining due process claims meritless. The court next declined to address their contention that the government’s retention of their remaining proceeds was a “classic taking” requiring compensation under Takings Clauses in state and federal constitutions, noting it was not ripe for review. Finally, the court found that the “harsh-and-unreasonable consequences doctrine” was inapplicable under the circumstances.
Interpretation & application of Michigan’s Uniform Unclaimed Property Act (UUPA); “Action or proceeding”; MCL 567.250(2); Harmonization; Tolling of the statute of limitations
In these consolidated appeals concerning Michigan’s UUPA, the court held that “an ‘action or proceeding’ includes an examination initiated by the Treasurer.” It further held “that the initiation of an examination by the Treasurer does not toll the statute of limitations.” The first question was “whether an examination conducted by the Treasurer pursuant to MCL 567.251 and MCL 567.251a falls within the meaning of ‘action or proceeding’ under MCL 567.250(2).” The court held that “that although an examination is a ‘proceeding’ for purposes of MCL 567.250(2), the commencement of an examination does not toll the statute of limitations. However, because the limitations period applicable to ‘an action or proceeding’ commenced by the Treasurer ‘with respect to any duty of a holder under this act’ runs from the date ‘the duty arose,’ identification of the specific duty that the Treasurer seeks to enforce is a prerequisite to determining whether the limitations period has run. Plaintiffs each obtained declaratory and prospective injunctive relief preventing the Treasurer from initiating a future action to compel compliance with the results of the examinations at issue on the basis that such an action would be untimely under MCL 567.250(2).” The court found that to “decide whether the nature and scope of the granted prospective relief was proper, it is necessary to determine whether a holder’s obligation to comply with the results of an examination after receiving a ‘notice of examination determination,’ is a separate legal duty from a holder’s annual duty to report and remit abandoned property[.]” The court concluded that this “question was not clearly resolved by the Court of Appeals and has been sparsely briefed in this Court.” Thus, it reversed in part, affirmed in part, and vacated in part the judgments of the Court of Appeals and remanded these cases to that Court for resolution of the remaining issue.