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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Whether the Michigan Consumer Protection Act (MCPA) (MCL 445.901 et seq.) barred plaintiffs’ claims arising from their residential leases; De Bruyn Produce Co. v. Romero; Trade or commerce defined; MCL 445.902(g); Exception in MCL 445.904(1)(a); Liss v. Lewiston-Richards, Inc.; The Housing Law (MCL 125.401 et seq.); MCL 125.529; MCL 125.523; MCL 125.534(8); Detroit Ordinances § 9-1-35(d)(11); Failure to disclose the lack of certificates of compliance for residential rental properties; Whether the Legislature intended for the MCPA to apply; Statutory interpretation; Universal Underwriters Ins. Group v. Auto Club Ins. Ass’n; In pari materia; SBC Health Midwest, Inc. v. City of Kentwood; Fraud; Pleading with particularity; MCR 2.112(B)(1); State ex rel Gurganus v. CVS Caremark Corp.; Determining the gravamen of an action; Adams v. Adams; Opportunity to amend the complaints; PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.; Hayford v. Hayford; Jawad A Shah, MD, PC v. State Farm Mut. Auto. Ins. Co.; Waiver; Braverman v. Granger; Futility; Lane v. KinderCare Learning Ctrs., Inc.; Delay; Weymers v. Khera; MCR 2.118(A)(4); Lown v. JJ Eaton Place; Importance of the submission of a written proposed amended complaint; Anton, Sowerby & Assoc., Inc. v. Mr C’S Lake Orion, LLC; Failure to cite supporting authority; Mettler Walloon, LLC v. Melrose Twp.; Ability to file motions to amend when responding to a summary disposition motion; Sharp v. City of Lansing; Ability to file motions to amend after the grant of summary disposition; Jackson v. White Castle Sys. Inc.
The court held that the trial court did not err by granting summary disposition to defendants because the MCPA did not apply in the circumstances of this case. Plaintiffs were tenants and former tenants in defendants’ residential rental buildings. They argued, among other things, that “defendants violated the MCPA by failing to disclose to plaintiffs that defendants did not have certificates of compliance for their residential rental properties.” However, under MCL 445.904(1)(a), the MCPA does not apply to “[a] transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.” Relevant here, Detroit “passed ordinances governing when landlords of residential rental properties must obtain certificates of compliance and the penalties a landlord faces for failing to do so.” Landlords in the city “are not permitted to rent residential property without a certificate of compliance.” Further, the “Housing Law of Michigan grants municipalities, like Detroit, the authority to enforce its provisions through such ordinances.” Therefore, the “general transaction of whether a landlord in Detroit may rent his or her residential property without a certificate of compliance is specifically addressed by Detroit’s ordinances.” Finally, “when determining whether the MCPA’s ‘specifically authorized’ exception applies to a given case ‘the relevant inquiry is whether the general transaction is specifically authorized by law, regardless of whether the specific misconduct alleged is prohibited.’” The court concluded that the “general transaction of a landlord leasing residential property in Detroit is specifically authorized by Detroit’s ordinances and, therefore, the MCPA does not apply to the circumstances of this case even though ‘the specific misconduct alleged,’ leasing residential rental property without first obtaining certificates of compliance, is prohibited by Detroit’s ordinances.” Affirmed.
Action under the Freedom of Information Act (FOIA) (MCL 15.231 et seq.); MCL 15.233(1); Amberg v. Dearborn; “Public record”; MCL 15.232(i); “Official function”; The Michigan Community Foundation Act (MCFA) (MCL 123.901 et seq.); MCL 123.905(3); “And” & “or”; People v. Comella; OfficeMax, Inc. v. United States; Heckathorn v. Heckathorn
Holding that plaintiff alleged sufficient facts to establish a prima facie claim under the FOIA, the court reversed the judgment of the Court of Claims and remanded. Plaintiff filed a FOIA request with defendant-university seeking scholarly research and writings that were donated to its library, including those marked as “closed” until 2035 by the donor. Defendant denied the request, asserting the papers were closed to research until 2035 and were therefore not “public records” subject to FOIA disclosure. Plaintiff eventually filed suit in the Court of Claims, which granted defendant’s motion for summary disposition. On appeal, the court found that “plaintiff sufficiently pled that defendant was storing and maintaining the . . . papers, which is consistent with the stated purposes of the” library’s official functions. “The fact that those materials were not subject to disclosure to students or research does not detract from the fact that the act of keeping those materials is part of” its purpose. “Importantly, plaintiff’s complaint can be read to allege that the . . . papers were ‘closed’ to research” until 2035. “The clear implication is that [defendant] was holding the papers with the intent to open them to research (and students) at that later time.” Thus, its “acts of collecting and preserving the papers were in furtherance of its official purpose.” As such, the complaint alleged that “defendant ‘maintained the records’ in the performance of an official function, which, under FOIA’s definitions, renders them ‘public records.’” Therefore, the complaint stated “a valid claim that the papers are public records.” Further, “a public library receiving a gift is authorized by statute to ‘hold, use, and apply’ the gift for the purposes set forth in the donor’s agreement, subject to any conditions or limitations expressly made.” Thus, the library “carries out an ‘official function’ as it relates to its gifts and donations when it holds onto such gifts and donations in accordance with the donation agreement.”
Uninsured motorist benefits; DeFrain v. State Farm; Insurance policy interpretation; Twichel v. MIC Gen. Ins. Co.; Use of dictionary definitions; Michigan Millers Ins. Co. v. Bronson Plating Co.; Uninsured motor vehicle defined; Effect of the fact the object struck was stationary; Ordinary meaning of “hit”; Principle that identical language should receive identical construction when found in the same act; Empire Iron Mining P’ship v. Orhanen
After hearing oral argument, in lieu of granting leave to appeal the court reversed the Court of Appeals judgment (see e-Journal # 67303 in the 3/1/18 edition for the published opinion), holding that it erred in ruling that the unidentified truck did not cause an object to hit the insured vehicle (an ambulance) when the ambulance hit drywall the truck had left in the road. The Court of Appeals affirmed summary disposition for defendant-insurer on the basis plaintiff-insured was not entitled to coverage under the “policy’s uninsured motor vehicle provision as a matter of law.” The court noted there was no dispute that the drywall left the truck bed, “came to rest in the road; and that, shortly thereafter, the ambulance collided with the drywall as the drywall lay stationary in the road. Using the commonly understood meaning” of the policy’s terms, “one way of triggering coverage under the provision is for an unidentified vehicle to cause an object to come in contact with a covered auto.” This was what occurred here when the unidentified truck “lost its load in the path of the oncoming ambulance. By depositing the drywall directly in the path of an oncoming vehicle, the unidentified vehicle caused the drywall to come in contact with the oncoming vehicle. Thus, whether the drywall was moving or was stationary at the time of the contact is not dispositive.” While the dissent wanted to “reframe the issue as a theoretical semantic one, asking whether a stationary object can be said to ‘hit’” a moving one, this did not “apply the ordinary meaning of the term ‘hit’ or” interpret it in the context in which it appeared in the policy. Rather, the proper inquiry under the policy was whether a vehicle that lost its load in the road, “placing a stationary object in the path of a moving vehicle, can be said to have caused the stationary object to come in contact with the moving vehicle. When the question is properly framed, the answer is straightforward: depositing drywall directly in the path of an oncoming vehicle is sufficient to cause it to come in contact with that vehicle. Accordingly, the phrase ‘cause an object to hit’” did not bar coverage simply because the drywall was stationary at the time. This conclusion was also supported by “the presence of the word ‘hit’ in both scenarios in which a hit-and-run accident may give rise to” benefits under the provision. Remanded to the trial court. The dissent found that the correct disposition of the case turned “on one specific issue: whether the stationary drywall can properly be said to have ‘hit’ the moving insured motor vehicle.” The dissenting justices concluded that, as the parties conceded the drywall was “stationary when the accident occurred, the unidentified vehicle did not cause an object to ‘hit’ the insured vehicle” and thus, plaintiff was not entitled to coverage.
Third-party no-fault action; Serious impairment of body function; MCL 500.3135(1); MCL 500.3135(2)(a)(i) & (ii); MCL 500.3135(5); McCormick v. Carrier; Patrick v. Turkelson; The “closed-head injury provision” of § 3135; Churchman v. Rickerson
The court held that the trial court failed to address the nature and extent of plaintiff’s closed-head injury, but found his claims meritless in all other respects. Plaintiff sued defendants for injuries he sustained when defendant-truck driver drove off the road and crashed. Plaintiff was sleeping in the truck’s sleeper cab at the time. The trial court granted disposition for defendants, finding that plaintiff failed to show an objectively manifested impairment of a body function, and that any alleged injury did not affect his general ability to lead his normal life. On appeal, plaintiff argued that the trial court erred by failing to address the threshold question of whether there was a factual dispute regarding the nature and extent of his injuries. The court found that the trial court erred as to his alleged closed-head injury, but found his claim meritless in all other respects. “[T]he trial court failed to address the nature and extent of plaintiff’s closed-head injury,” and thus, under Churchman, “remand is required so that the trial court may address this threshold question.” It also failed to address the medical diagnosis “when it applied the McCormick three-prong test to plaintiff’s closed-head injury.” As such, it directed the trial court on remand to “reevaluate the evidence of the closed-head injury in a light most favorable to” plaintiff, if it “reaches the McCormick test after answering the threshold question . . . .” The court next rejected his contention that, even if there was no factual dispute as to the nature and extent of his shoulder, neck, and back injuries, the trial court nonetheless erred by concluding that he did not suffer a serious impairment of a body function. It found “no objectively manifested impairments” with his dislocated shoulder and his neck and back spasms. It also rejected his argument that the trial court erred by holding that his injuries did not affect his general ability to lead his normal life, noting there was “no showing that the shoulder, neck, or back injuries have affected his ability to do any of" the activities he cited, "and the medical records all indicate normal functioning.” Finally, it found that the trial court “did not err in its analysis, and summary disposition was properly granted in favor of defendants as to the shoulder, neck, and back injuries.” Affirmed in part, vacated in part, and remanded.
Termination under §§ 19b(3)(b)(i), (g), & (j); In re Williams; In re Ellis; In re VanDalen; People v. Iannucci; Froling v. Carpenter; In re TK; Abandoned issue; In re JS & SM; In re HRC; Child’s best interests; In re Moss Minors; In re White
The court held that the trial court properly terminated respondent-father’s parental rights to the child where at least one statutory ground (§ (g)) was established by clear and convincing evidence and it was in the child’s best interests. The court assumed for purposes of this opinion that the trial court’s statutory grounds determination was not clearly erroneous. Moreover, it reviewed the record and was not left with a definite and firm conviction that the trial court was mistaken in determining that the DHHS established facts by clear and convincing evidence that satisfied § (g), “which permits terminating parental rights when ‘[t]he parent, although, in the court’s discretion, financially able to do so, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.’ It is only necessary to establish one statutory ground as a basis to support terminating a respondent’s parental rights.” Affirmed.
Termination under §§ 19b(3)(c)(i), (g) & (j); In re VanDalen; In re HRC; In re White; Children’s best interests; In re Schadler; In re Conley; In re AH; In re Olive/Metts Minors; Reasonable reunification efforts; In re Hicks/Brown; In re Mason; In re Fried; In re Frey
The court held that the trial court properly terminated both respondents’ parental rights to the children where the statutory grounds were established by clear and convincing evidence and it was in their best interests. As to § (c)(i), the issues that led to adjudication were “domestic violence between respondents, medical neglect of the oldest child, and” respondent-mother’s substance abuse. After adjudication, neither respondent engaged in domestic violence counseling, and the mother became involved in a second relationship that included domestic violence. “Neither respondent participated in the oldest child’s medical care after his removal from their custody.” The mother participated in only 14 of 116 drug screens, 5 of which were positive for marijuana. Her “substance abuse evaluation recommended intensive outpatient rehabilitation services, but she never engaged in those services.” Upon release from jail, the respondent-father “failed to participate in the case service plan, failed to meet with the agency, and engaged in criminal activity, which resulted in his again being incarcerated.” During his re-incarceration, he failed to contact the agency. Thus, the evidence established that the conditions that initially led to adjudication continued to exist. Also, because respondents failed to participate in, benefit from, or comply with their service plans, the trial court did not err by terminating their parental rights under § (g). Similarly, when examining § (j), the court has held that “a parent’s failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent’s home.” Therefore, their failure to comply with their case service plans supported termination under § (j) as well. Affirmed.
Termination under §§ 19b(3)(c)(i), (g), & (j); In re Gazella; In re Miller; In re JK; In re White; Children’s best interests; In re Moss Minors; In re Laster; In re Trejo Minors; Reasonable reunification efforts to modify respondent’s service plan to accommodate her cognitive disability; In re Frey; The Americans with Disabilities Act; In re Terry; MCR 3.977(K); In re Mason; In re Hicks/Brown; Jurisdiction; In re Ferranti Minor; Plain error review; People v. Carines; Whether respondent’s plea was knowingly, understandingly, & voluntarily made; MCR 3.971(C)(1); MCR 3.971(B); Whether the trial court established a factual basis to support a statutory ground for jurisdiction; MCR 3.971(C)(2); MCL 712A.2; MCL 712A.2(b)(1) & (b)(2)
The court held that the trial court properly terminated respondent-mother’s parental rights to the children where the statutory grounds were established by clear and convincing evidence and it was in their best interests. Also, the trial court did not clearly err in finding that the DHHS made reasonable efforts for reunification by providing her with services to accommodate her cognitive disability. There was clear and convincing evidence to support termination of respondent’s parental rights under § (c)(i). The children were removed because “respondent’s 13-month-old daughter had suffered a non-accidental right humerus fracture and was also diagnosed with ‘failure to thrive,’ and her two-year-old son was found to be severely neglected, dirty, and with scars and lesions all over his body. Both children had been burned with cigarettes. The home was infested with roaches and was unclean.” Also, she had “abandoned her older daughter to the maternal grandmother, whose parental rights to all of her children had been terminated.” One of the primary areas of concern was her “inability and failure to obtain suitable housing, independent from her living-together partner who was the legal father of one of the children and the putative father of another. His parental rights had been terminated due to the abuse of these children.” She knew that the children would never be safely returned to her as long as she continued to live with him. However, throughout the case, she continued to do so. She had shown "that she could not rectify the conditions that led to the adjudication and there was no evidence that she would be able to rectify them within a reasonable time considering the children’s ages.” Also, there was clear and convincing evidence to support termination under § (g). Respondent did not have the parenting skills, income, or independent housing needed to provide proper care and custody for her children. Although she had participated in many services, she did not show a benefit. Also, she “had refused to participate in some of the services, had not maintained communication with the service providers, and had missed appointments. After two years of services, it was clear that there was no reasonable expectation that respondent would be able to provide proper care and custody within a reasonable time considering the children’s ages.” During the visitations, she was unable to manage the children. “She was not able to focus on more than one child at a time. She had not been able to retain or implement any of the parenting skills that the service providers had tried to teach her.” Affirmed.
Denial of a request to maintain existing LED exterior lighting on a property; The Michigan Zoning Enabling Act; MCL 125.3606(1); Edw C Levy Co. v. Marine City Zoning Bd. of Appeals; Nonconforming use; MCL 125.3208(1); Century Cellunet of S. MI Cellular, Ltd. P’ship v. Summit Twp.; Kopietz v. Zoning Bd. of Appeals for City of Vill. of Clarkston; Deference to the findings of the trial court & the zoning board; Norman Corp v. City of E. Tawas; The court’s jurisdiction over the appeal; Whether MCR 7.203(A)(1)(a) applied; Whether an administrative agency’s determination is adjudicatory in nature; Natural Res. Def. Council v. Department of Envtl. Quality; Zoning Board of Appeals (ZBA)
After holding that it had jurisdiction, the court concluded that the circuit court did not err in ruling that competent, material, and substantial evidence supported the appellee-ZBA’s decision to deny appellant’s request for a variance. While the ZBA contested the court’s jurisdiction to hear the case, the circuit court’s order was a final order under MCR 7.202(6)(a)(i), and thus, it was appealable as of right under MCR 7.203(A)(1). Appellant argued that “the circuit court erred in affirming the ZBA’s denial of appellant’s variance to maintain the existing LED exterior lighting on the outside of” the hotel. Specifically, it asserted that the ZBA’s denial “was in contravention of appellant’s right to maintain the existing LED lighting on the hotel because appellant has a vested property right in the lighting because it is a nonconforming use.” It argued that the originally installed neon tube light was lawfully installed approximately 15 years before “the enactment of the amended ordinance, and the existing LED lighting” was a continuation of this vested nonconforming use. It also contended that “the modification of the lighting from the original neon tube lighting to the existing LED lighting did not expand, enlarge, or change the nature of the lighting,” and as a result, it was entitled to maintain the existing lighting. The ZBA argued that “appellant lost any right that it had to maintain the neon tube lighting after the effective date of Section 5.22-4 of the amended ordinance when appellant removed the neon tube lighting from the hotel and commenced work on the unlawful installation of the existing LED lighting.” The circuit court agreed with the ZBA. The court concluded that the circuit court did not err in affirming the ZBA’s denial of the variance. It was unclear exactly when appellant began work on the LED light installation. There was a moratorium period before the effective date of Section 5.22-4. However, the court concluded that “whether appellant installed the LED lighting during the moratorium period or after the effective date of Section 5.22-4, the ZBA did not err in denying appellant’s request” for a variance. The time period in which the work on the LED lighting began was not dispositive. Affirmed.