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• Administrative Law (1)

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  This summary also appears under Constitutional Law

  e-Journal #: 60368

  Case: The Detroit Edison Co. v. Stenman

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Per Curiam – Meter, Cavanagh, and Wilder

  Issues:

  Lawfulness of the installation of a “smart meter”; Regulation of public utilities; MCL 460.6(1); MI Admin. Code R 460.3101(4); “Meter” defined (R 460.3102(g)); Whether the defendants-homeowners’ health & privacy concerns justified or excused their conduct in removing the meter & installing an analog meter; R 460.3409(1); R 460.137(e) & (g); MCL 750.383a (providing that cutting, obstructing, or tampering with an electric utility’s property is a felony); An “affirmative defense”; Stanke v. State Farm Mut. Auto. Ins. Co.; Attorney Gen. ex rel Dep’t of Envtl. Quality v. Bulk Petroleum Corp.; Whether applying for & receiving electricity service is a voluntary act; R 460.106, .127, & .137-.144; Whether installation of a smart meter on defendants’ home constituted a warrantless search in violation of the Fourth Amendment; Lavigne v. Forshee; People v. McKendrick; The trial court’s decision to lift the partial stay; Michigan Public Service Commission (MPSC)

  Summary:

  The court held that there was no genuine issue of material fact as to whether the plaintiff-utility’s installation of a smart meter on the defendants’ home was lawful under the definition of “meter” in the applicable administrative rules and tariff. Further, defendants did not show a genuine issue of material fact as to whether their health and privacy-related concerns constituted valid affirmative defenses excusing or justifying their conduct in removing the smart meter. Plaintiff’s installation of a smart meter on their home did not violate defendants’ Fourth Amendment rights. Thus, the court affirmed the trial court’s order granting plaintiff partial summary disposition and its grant of plaintiff’s motion to lift the partial stay it had previously imposed. After unsuccessfully demanding that plaintiff remove the smart meter from their home, defendants removed it, mailed it back to plaintiff, and installed an analog meter. The court concluded that “the definition of ‘meter’ provided in R 460.3102(g)” applied, and that there was no genuine issue of material fact as to whether a smart meter qualified as a “meter” or whether plaintiff’s installation of a smart meter was lawful. Further, defendants failed to provide any authority in the trial court to support “their claim that their privacy and health-related concerns constituted valid affirmative defenses to their violations of the relevant statutes, regulations, and tariff.” The court also found “no basis for concluding that defendants’ concerns should deny relief to plaintiff,” and allow them “to continue receiving electricity service from plaintiff, while defendants continue to violate the applicable rules.” It concluded that “defendants must comply with the rules promulgated by the MPSC and the tariff provisions approved by the MPSC in order to continue receiving electricity service from plaintiff.” Further, “applying for and receiving electricity service from plaintiff is a voluntary act.” The court added that defendants did not establish the factual bases for their asserted defenses. As to their Fourth Amendment claim, they “failed to establish that plaintiff’s installation of smart meters constitutes governmental action for Fourth Amendment purposes.”

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• Constitutional Law (2)

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  This summary also appears under Administrative Law

  e-Journal #: 60368

  Case: The Detroit Edison Co. v. Stenman

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Per Curiam – Meter, Cavanagh, and Wilder

  Issues:

  Lawfulness of the installation of a “smart meter”; Regulation of public utilities; MCL 460.6(1); MI Admin. Code R 460.3101(4); “Meter” defined (R 460.3102(g)); Whether the defendants-homeowners’ health & privacy concerns justified or excused their conduct in removing the meter & installing an analog meter; R 460.3409(1); R 460.137(e) & (g); MCL 750.383a (providing that cutting, obstructing, or tampering with an electric utility’s property is a felony); An “affirmative defense”; Stanke v. State Farm Mut. Auto. Ins. Co.; Attorney Gen. ex rel Dep’t of Envtl. Quality v. Bulk Petroleum Corp.; Whether applying for & receiving electricity service is a voluntary act; R 460.106, .127, & .137-.144; Whether installation of a smart meter on defendants’ home constituted a warrantless search in violation of the Fourth Amendment; Lavigne v. Forshee; People v. McKendrick; The trial court’s decision to lift the partial stay; Michigan Public Service Commission (MPSC)

  Summary:

  The court held that there was no genuine issue of material fact as to whether the plaintiff-utility’s installation of a smart meter on the defendants’ home was lawful under the definition of “meter” in the applicable administrative rules and tariff. Further, defendants did not show a genuine issue of material fact as to whether their health and privacy-related concerns constituted valid affirmative defenses excusing or justifying their conduct in removing the smart meter. Plaintiff’s installation of a smart meter on their home did not violate defendants’ Fourth Amendment rights. Thus, the court affirmed the trial court’s order granting plaintiff partial summary disposition and its grant of plaintiff’s motion to lift the partial stay it had previously imposed. After unsuccessfully demanding that plaintiff remove the smart meter from their home, defendants removed it, mailed it back to plaintiff, and installed an analog meter. The court concluded that “the definition of ‘meter’ provided in R 460.3102(g)” applied, and that there was no genuine issue of material fact as to whether a smart meter qualified as a “meter” or whether plaintiff’s installation of a smart meter was lawful. Further, defendants failed to provide any authority in the trial court to support “their claim that their privacy and health-related concerns constituted valid affirmative defenses to their violations of the relevant statutes, regulations, and tariff.” The court also found “no basis for concluding that defendants’ concerns should deny relief to plaintiff,” and allow them “to continue receiving electricity service from plaintiff, while defendants continue to violate the applicable rules.” It concluded that “defendants must comply with the rules promulgated by the MPSC and the tariff provisions approved by the MPSC in order to continue receiving electricity service from plaintiff.” Further, “applying for and receiving electricity service from plaintiff is a voluntary act.” The court added that defendants did not establish the factual bases for their asserted defenses. As to their Fourth Amendment claim, they “failed to establish that plaintiff’s installation of smart meters constitutes governmental action for Fourth Amendment purposes.”

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  This summary also appears under Municipal

  e-Journal #: 60361

  Case: Yang v. City of Wyoming, MI

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Sutton and Gilman; Dissent – Clay

  Issues:

  Procedural due process claim related to the defendant-City’s demolition of the building on the plaintiffs’ commercial property; U.S. Const. amend XIV; “Notice”; Mullane v. Central Hanover Bank & Trust Co.; Karkoukli’s, Inc. v. Dohany; Mennonite Bd. of Missions v. Adams; Tulsa Prof’l Collection Servs., Inc. v. Pope; Jones v. Flowers; Posted notices; Greene v. Lindsey; Post-hearing notice; McKinney v. Pate (11th Cir.)

  Summary:

  [This appeal was from the WD-MI.] The court held that the plaintiffs-property owners (the Yangs) received adequate notice before the defendant-City of Wyoming demolished their “dilapidated” commercial building. The city sent notice through signature-required certified mail, but the letter was returned unclaimed. Then, “the city made four other attempts to reach the Yangs on top of the certified mail it sent to the couple’s home address.” Notices were posted on the Yangs’ building, and they received a notice regarding the demolition hearing by regular mail. This hearing notice was also forwarded to the Yangs’ realtor. After the hearing and before the demolition, the city sent them an additional letter by regular mail. “All of these forms of notice considered, the city satisfied due process before tearing down a building that even the Yangs do not deny was dangerous and dilapidated.” The court rejected the Yangs’ “divide and conquer approach” in attacking the adequacy of notice, noting that “neither Jones nor any other case holds that the city acts unreasonably simply because its subsequent responses would not—each by themselves—independently satisfy due process . . . .” At “some point, the question must turn from how often—and in how many forms—notice is due to how many times the property owner neglects to respond with the diligence that is due. Either way, the city satisfied its reasonableness requirements.” The fact that the Yangs “chose (apparently) not to visit their property for fourteen months or chose (apparently) not to open their mail does not diminish the city’s reasonable efforts at providing notice. ‘The law expects at least some diligence from the property owner,’ . . . and that reality necessarily affects how courts gauge reasonable efforts.” The court affirmed the district court’s grant of summary judgment to the city.

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• Criminal Law (3)

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  e-Journal #: 60338

  Case: People v. Hutchons

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Meter, Cavanagh, and Wilder

  Issues:

  Ineffective assistance of counsel; People v. Putman; People v. Lockett; People v. Vaughn; Failure to make a futile motion to suppress the defendant’s purported confession; People v. Neal; People v. Dunigan; Determining whether a statement was made voluntarily; People v. Tierney; People v. Fike; Possession of a controlled substance; People v. Bylsma; Intent to deliver; People v. Williams; Advice to waive the right to a preliminary exam; People v. McGee; Failure to seek an independent lab analysis of the seized contraband; People v. Trakhtenberg; Matters of trial strategy; People v. Bosca; People v. Russell; Failure to object to the contents of the lab report & the lab technician’s testimony based on chain of custody deficiencies; People v. White; Decision whether a defendant will testify; People v. Bonilla-Machado; People v. Tommolino; People v. Simmons

  Summary:

  Rejecting the defendant’s ineffective assistance of counsel claims, the court affirmed his convictions of possession with intent to deliver 50 to 449 grams of cocaine, possession of amphetamine, and possession of marijuana. He argued that defense counsel was ineffective for, among other things, failing to challenge the testimony of the officer in charge that defendant admitted that the drugs belonged to him and he sold cocaine. Defendant argued that defense counsel should have moved to suppress the confession. The court disagreed, noting that to the extent his claim was “based on his allegation that he never made the purported confession, any request for a motion to suppress on that basis would have been futile.” Determining whether “a statement was actually made is solely a question of fact for the jury.” The jury was “instructed that it could not consider defendant’s out-of-court statement unless it first determined” that he actually made it. It was apparent from the verdicts “that the jury concluded that the statement was accurate.” Defendant also argued that defense counsel should have sought a Walker hearing to determine whether the confession was voluntary. The court noted that “defendant was old enough to rent his own living space[,]” and there was no evidence that he “was of an education or intelligence level that interfered with his ability to understand his rights or his ability to voluntarily choose to make a statement about the offenses.” Given that he was a fourth habitual offender, he clearly “had prior experience with law enforcement, and his previous convictions were also drug-related.” There was no suggestion that the questioning was prolonged, and the record indicated that he was read and shown his Miranda rights before he answered questions. The court added that there was “not a reasonable probability” that, but for defense counsel’s alleged deficiency, the jury would have acquitted defendant, in light of the “overwhelming evidence” supporting his convictions “independent of the confession.” The “vast majority of the drugs” were located in the bedroom he rented, where he was “physically present when the police entered” the house, and “where several documents and forms of identification” in his name were also found.

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  e-Journal #: 60346

  Case: People v. Johnson

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – M.J. Kelly, Wilder, and K.F. Kelly

  Issues:

  Docket No. 320014 - Claim that the trial court violated the defendant’s constitutional right to due process by allowing jurors to ask questions of witnesses; MCR 2.513(I); People v. Heard; Stare decisis; Trademark Props. v. Federal Nat’l Mtg. Ass’n; Jury instruction on a manner of sexual penetration for CSC I that was not charged; Waiver; People v. Chapo; People v. Kowalski; Ineffective assistance of counsel; Failure to object to the jury instruction; Claim of enhanced sentence based on facts not found by the jury; Alleged violation of Alleyne v. U.S.; Apprendi v. New Jersey; United States v. Booker; Blakely v. Washington; People v. Herron; Docket No. 316983 – “Other acts” evidence; MRE 404(b); Counsel’s failure to object to the other acts evidence; Advising defendant not to testify on the basis that he had a prior conviction; Factual predicate requirement; People v. Hoag; Docket No. 316314 - Jury instruction as to the consideration of prior inconsistent statements; MRE 801(d)(1)(A); People v. Malone; Whether CJI2d 4.5(2) was applicable; Prosecutorial error; People v. Dobek; “Vouching”; People v. Thomas; People v. Seals; Comment on defendant’s demeanor in the courtroom during trial; Claim that his due process rights were violated when the trial court admonished defense counsel on the record in the jury’s presence during deliberations; Cain v. Department of Corrs.; In re MKK; People v. Conyers; Sentencing; Whether the trial court sufficiently justified its sentences departing from the applicable guidelines ranges; People v. Smith; People v. Anderson; MCL 771.21(2); MCL 771.14; People v. Lopez; MCL 771.14(2)(e)(i)

  Summary:

  The court affirmed the defendant’s convictions in these consolidated cases, but vacated his sentence in Docket No. 316314 and remanded for further proceedings in that case. In Docket No. 316314, he appealed his jury trial convictions of CSC I and felonious assault. The trial court imposed consecutive sentences of 25 to 50 years for the CSC I conviction and 30 to 48 months for the felonious assault conviction. In Docket No. 316983, he appealed his jury trial conviction of felonious assault. In Docket No. 320014, he appealed his jury trial convictions of kidnapping and two counts of CSC I. In Docket No. 320014 he argued, among other things, that the trial court violated his constitutional right to due process by allowing jurors to ask questions of witnesses during the trial. Defendant argued that the questions showed that the “jury was actively involved in seeking out facts, filling in any perceived gaps in the prosecutor’s proofs, and deliberating before the conclusion of the case.” However, in Heard the Michigan Supreme Court explained that “the purpose of allowing jurors to ask questions is to ‘help unravel otherwise confusing testimony’ and to ‘aid the fact-finding process.’” Also, the trial court “instructed the jury that it could not discuss the case until the trial court sent it to the jury room for that purpose.” Defendant did not offer any evidence that the jury began deliberating before the close of the trial and thus, failed to show plain error affecting his substantial rights as to the juror questions. In Docket Number 316983, the court held that defendant was not denied the effective assistance of counsel. In Docket No. 316314, the court agreed that “the trial court gave no explanation for the particular departures” it imposed in sentencing defendant and “failed to justify why the sentences imposed are more proportionate than sentences within the guidelines recommendation would have been.”

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  e-Journal #: 60334

  Case: People v. Willis

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Jansen, Sawyer, and Fort Hood

  Issues:

  Sufficiency of the evidence of an intentional burning to support the defendant’s arson conviction; MI Crim JI 31.2; People v. Williams; People v. Horowitz; People v. Nowack; Great weight of the evidence; People v. Horn; Whether a discovery violation required a new trial; People v. Schumacher; People v. Chenault; Right to self-representation; People v. Russell; Whether defendant made an unequivocal request to represent himself; The trial court’s failure to give MI Crim JI 31.1; People v. Clark; Whether defense counsel was ineffective for failing to request the instruction; People v. Armstrong; The magistrate’s issuance of an arrest warrant; MCL 764.1a; People v. Elston; Defense counsel’s failure to raise a futile challenge; People v. Ericksen; Admissibility of evidence obtained while firefighters are lawfully on the premises putting out a fire; The “plain view” doctrine; People v. Taylor; Principle that the constitutional right to be free from unreasonable searches & seizures is personal & may not be invoked by third parties; People v. Zahn; Search conducted pursuant to a property owner’s consent; People v. Beydoun

  Summary:

  Holding that the circumstantial evidence was sufficient for the jury to find beyond a reasonable doubt that a burning of the dwelling occurred and that it was the result of an intentional criminal act by the defendant, the court rejected his sufficiency of the evidence and great weight of the evidence claims. It also held that he was not denied his right to self-representation, and that there was no error as to the trial court’s failure to give MI Crim JI 31.1. Defendant was convicted of arson of a dwelling house and domestic violence. A fire started in the closet of victim-D’s home. D and defendant were involved in a romantic relationship. D testified that “defendant consumed alcohol and became very aggressive and agitated. He assaulted and threatened to kill her, demanded that she return to her residence, and threatened to kill her ferrets.” D did not re-enter her home while he was still there. She saw “defendant running from the home and speaking on his phone requesting a ride. Shortly after she re-entered the home, she discovered smoke and a fire in the closet. Arson investigators determined that the fire originated in the closet and discovered a propane torch in the closet.” A fire marshal (S) “rejected the defense theory that an accidental burning occurred.” S’s analysis “of the charring and burn patterns caused him to conclude that the fire was intentionally set. He opined that the burn patterns indicated that someone held the propane torch to clothing hanging in the closet.” S also checked “for other mechanical, electrical, or gas issues, as well as accidental causes such as the failure to extinguish a candle or cigarette. He eliminated all other causes.” Defendant admitted that he went into the closet to smoke crack cocaine with the torch and a pipe. The jury could find from the evidence that he was enraged at D “because he was in a paranoid state from his use of drugs and believed that she had called the police, and because she refused to comply with his demands to return to the home.” Whether or not he “tried to open the ferrets’ cage, the jury could find that he decided to use the propane torch to start a fire in the closet,” where D “kept her family mementos, because he was angry” at her. Affirmed.

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• Family Law (1)

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  e-Journal #: 60369

  Case: In re ASF

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Per Curiam – Hoekstra, Jansen, and Meter

  Issues:

  Whether the denial of consent to adopt was “arbitrary and capricious”; MCL 710.45; MCL 710.45(7); In re Keast; In re Martin; In re Cotton; Involuntary dismissal under MCR 2.504(B)(2); Whether the trial court complied with MCR 2.517; Whether the superintendent’s consideration of the petitioners’ ages violated MCL 722.957(1) & the Michigan Civil Rights Act (CRA) (MCL 37.2101 et seq.); The Foster Care & Adoption Services Act (MCL 722.951 et seq.) (addressing adoption facilitators and refusal to provide services); Whether the superintendent and the trial court considered the child as well as her individual circumstances; In re CW; Claim that the motion for involuntary dismissal was prematurely granted; Claim that the trial court violated the child’s rights to due process and equal protection by refusing to permit the lawyer-guardian ad litem (LGAL) to present evidence and call witnesses at the § 45 hearing; Abandoned issue; Yee v. Shiawassee Cnty. Bd. of Comm'rs; Michigan Children’s Institute (MCI)

  Summary:

  Holding that the trial court did not clearly err by concluding that petitioners failed to present clear and convincing evidence showing that the MCI superintendent’s decision denying them consent to adopt was arbitrary and capricious, the court affirmed. Petitioners, the grandparents of the child (ASF), sought to adopt ASF after the parental rights of ASF’s biological parents were terminated. After conducting a hearing pursuant to MCL 710.45(2) (“§ 45 hearing”), the trial court found that the superintendent’s decision was not arbitrary or capricious and, thus, it upheld that decision. The court noted that the “MCI’s motion for involuntary dismissal under MCR 2.504(B)(2) was properly granted if, during their presentation of evidence, petitioners failed to show their entitlement to relief under MCL 710.45.” To obtain relief at a § 45 hearing, they “bore the burden of establishing, by clear and convincing evidence, that the superintendent’s denial of consent was arbitrary and capricious.” In reviewing the trial court’s assessment of the superintendent’s decision, the court noted that the trial court “made findings of fact and conclusions of law as required by MCR 2.517.” Petitioners asserted that the trial court did not comply with MCR 2.517 because it “referred to reasons offered by the superintendent that petitioners believe were contrary to the evidence.” The fact that they disagreed with the trial court’s findings as to the conflicting evidence did “not render the trial court’s findings inadequate under MCR 2.517.” Further, it was “clear that the superintendent’s opinions and the findings of the trial court were supported by the evidence.” While there may have been some conflicting evidence, “these conflicts were resolved by the superintendent and the trial court,” and thus, the trial court’s findings were supported by the evidence. “Recognizing that there was underlying factual support for the superintendent’s determinations, contrary to arguments by petitioners and LGAL,” the court also concluded that “the trial court did not clearly err when, at the close of petitioners’ case, it determined, based on the facts and laws, that petitioners were not entitled to relief because they had not shown, by clear and convincing evidence, that the superintendent’s denial of consent was arbitrary and capricious.” Also, the superintendent did not violate MCL 772.957(1) or the CRA by considering petitioners’ ages. He “did not withhold consent to adopt solely because of” their ages.

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• Intellectual Property (1)

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  e-Journal #: 60360

  Case: CFE Racing Prods., Inc. v. BMF Wheels, Inc.

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Clay, Cole, and Moore

  Issues:

  Trademark infringement; The Lanham Act; 15 USC §§ 1114(1)(a) & 1125(a); The defendants’ “waiver” of the sufficiency-of-the-evidence claim; Innovation Ventures, LLC v. N2G Distrib., Inc.; Fed.R.Civ.P. 50(a)(2) & 50(b); Maxwell v. Dodd; Libbey-Owens-Ford Co. v. Insurance Co. of N. Am.; Motion for a new trial; Fed.R.Civ.P. 59; FRE 403; Legal opinion testimony; Torres v. County of Oakland; Alleged improper statements by plaintiff’s counsel; Strickland v. Owens Corning; Whether the verdict was against the weight of the evidence; Frisch's Rest., Inc. v. Shoney's Inc.; Homeowners Group, Inc. v. Home Mktg. Specialists, Inc.; Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr.; Injunctive relief; Cancellation of a trademark registration; 15 USC § 1119; Coach House Rest. v. Coach & Six Rests. (11th Cir.); Central Mfg., Inc. v. Brett (7th Cir.); Gracie v. Gracie (9th Cir.); Scope of injunctive relief; § 1116(a); ALPO Petfoods, Inc. v. Ralston Purina Co. (DC Cir.); ProNational Ins. Co. v. Bagetta (ED MI); Juicy Couture, Inc. v. Bella Int’l Ltd. (SD NY); Attorney fees under the Michigan Consumer Protection Act (MCPA) (MCL 445.901 et seq.); Jordan v. Transnational Motors, Inc.; Mayhall v. A.H. Pond Co.; Civil contempt; Rolex Watch U.S.A., Inc. v. Crowley

  Summary:

  [This appeal was from the ED-MI.] The court affirmed judgment for the plaintiff in this trademark infringement case but remanded to the district court to award attorneys’ fees, modify the injunction to prohibit the defendants from using the infringing mark “BMF Wheels,” and to cancel their registered “BMF Wheels” trademark. The plaintiff manufactures high-performance cylinder heads, while the defendants sell aftermarket wheels. The court held that the defendants waived their claim regarding the sufficiency of the evidence of “the likelihood of confusion between the marks” because they failed to make the challenge before the case was submitted to the jury. It rejected the defendants’ claim that they were entitled to a new trial based on evidentiary issues. Although the plaintiff’s founder’s testimony as to his understanding of the scope of its trademark application and registration was improperly admitted, the error was harmless and cured by jury instructions. Further, the plaintiff’s attorney’s statements were not “outrageous” or “egregious” enough to entitle the defendants to a new trial. Under the facts presented, “the nearly identical nature of the marks and the relatedness of the goods” were sufficient for the court to reject the defendants’ claim that the verdict was against the weight of the evidence. “The similarity of the marks ‘is a factor of considerable weight,’ and here, it weighs very strongly in favor of a finding of likelihood of confusion.” The court agreed with the plaintiff that the district court “abused its discretion in declining to cancel Defendants’ trademark and in permitting Defendants to continue using the phrase ‘BMF Wheels,’ subject to redesign of the logo and disclaimers of affiliation in some instances.” The jury explicitly found, by special verdict form, “that Defendants’ use of its mark ‘BMF Wheels’ created a likelihood of confusion with ‘[P]laintiff’s registered BMF trademark.’” This likelihood was “fatal to the validity of the ‘BMF Wheels’ registration[.]” The district court’s injunction should have also addressed “the harm to Plaintiff’s interest in its registered trademark, not simply in its logo.” It also erred by denying the plaintiff attorney fees under the MCPA because “Michigan courts have allowed plaintiffs to recover reasonable attorneys’ fees without establishing actual damages.”

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• Municipal (2)

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  This summary also appears under Negligence & Intentional Tort

  e-Journal #: 60365

  Case: Cannon Twp. v. Rockford Pub. Schs.

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Boonstra, Servitto, and Beckering

  Issues:

  Claim under the “sewage disposal system event” exception to the Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq.); MCL 691.1416 - MCL 691.1419; Linton v. Arenac Cnty. Rd. Comm’n; Whether the plaintiff-township was the “real party in interest”; Barclae v. Zarb; Kearns v. Michigan Iron & Coke Co.; Burkhardt v. Bailey; Whether the township was a “claimant”; MCL 691.1416(c); Governmental immunity; Willett v. Charter Twp. of Waterford; MCL 691.1417(2); Whether the water filtration system is a “sewage disposal system”; MCL 691.1416(j); “Sewer” or “sewage”; Whether the system had a “defect”; MCL 691.1416(3); Whether the defendant-Rockford Public Schools (RPS) “knew, or in the exercise of reasonable diligence should have known, about the defect”; The Michigan Municipal League Liability & Property Pool (MMLLPP)

  Summary:

  The court held that the plaintiff-township was bringing this lawsuit “on behalf of” two claimants and thus, was a claimant in its own right. It also held that because the township could show that the water filtration system is a “sewage disposal system” for purposes of the “sewage disposal system event” exception to the GTLA, defendant-RPS was not entitled to summary disposition on this basis. Further, plaintiff presented sufficient evidence of a “defect” of some kind, whether in design, construction, or operation, in the system sufficient to avoid governmental immunity. Finally, there was a genuine issue of material fact as to the extent to which RPS was aware of the defect in its water filtration system before 8/20/11. RPS argued that the trial court erred in concluding that the township was the real party in interest. There was no dispute that the township did not suffer damages and did not itself pay any money to the homeowners (the Ms). However, both the Ms and the MMLLPP (the township’s insurer), “who each had a right of action against RPS, assigned their respective rights to the township.” By “virtue of the assignments, the township became the real party in interest.” The court recognized that the MMLLPP did not assign its rights to the township until after the lawsuit was filed. “Thus, at the time the township initiated the lawsuit, it was not the real party in interest as it pertained to the first $50,000 of damages sought in the complaint.” However, the trial court granted the township leave to amend its complaint to properly reflect that it was litigating as the assignee of both the Ms and the MMLLPP. RPS did not assert, and the court did not find, “any error in the trial court’s grant of leave to amend.” Further, while the township agreed to “remit any damages awarded by the trial court above $50,000” to the Ms, “to be a real party in interest, a plaintiff need only be vested with the right of action on the claim; the beneficial interest may be with another.” RPS also argued that the township could not be considered a “claimant” as defined by the “sewage disposal system event” exception. There was no dispute that the Ms “are property owners who suffered damages from what was alleged to have been a sewage disposal system event.” There was also no dispute that they were “reimbursed $50,000 from the MMLLPP to cover some, but not all, of those alleged damages. Thus, under the plain terms of the statute,” both the Ms, as the property owners, and the MMLLPP, “as a subrogee, would have been entitled to bring a claim” under the exception.

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  This summary also appears under Constitutional Law

  e-Journal #: 60361

  Case: Yang v. City of Wyoming, MI

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Sutton and Gilman; Dissent – Clay

  Issues:

  Procedural due process claim related to the defendant-City’s demolition of the building on the plaintiffs’ commercial property; U.S. Const. amend XIV; “Notice”; Mullane v. Central Hanover Bank & Trust Co.; Karkoukli’s, Inc. v. Dohany; Mennonite Bd. of Missions v. Adams; Tulsa Prof’l Collection Servs., Inc. v. Pope; Jones v. Flowers; Posted notices; Greene v. Lindsey; Post-hearing notice; McKinney v. Pate (11th Cir.)

  Summary:

  [This appeal was from the WD-MI.] The court held that the plaintiffs-property owners (the Yangs) received adequate notice before the defendant-City of Wyoming demolished their “dilapidated” commercial building. The city sent notice through signature-required certified mail, but the letter was returned unclaimed. Then, “the city made four other attempts to reach the Yangs on top of the certified mail it sent to the couple’s home address.” Notices were posted on the Yangs’ building, and they received a notice regarding the demolition hearing by regular mail. This hearing notice was also forwarded to the Yangs’ realtor. After the hearing and before the demolition, the city sent them an additional letter by regular mail. “All of these forms of notice considered, the city satisfied due process before tearing down a building that even the Yangs do not deny was dangerous and dilapidated.” The court rejected the Yangs’ “divide and conquer approach” in attacking the adequacy of notice, noting that “neither Jones nor any other case holds that the city acts unreasonably simply because its subsequent responses would not—each by themselves—independently satisfy due process . . . .” At “some point, the question must turn from how often—and in how many forms—notice is due to how many times the property owner neglects to respond with the diligence that is due. Either way, the city satisfied its reasonableness requirements.” The fact that the Yangs “chose (apparently) not to visit their property for fourteen months or chose (apparently) not to open their mail does not diminish the city’s reasonable efforts at providing notice. ‘The law expects at least some diligence from the property owner,’ . . . and that reality necessarily affects how courts gauge reasonable efforts.” The court affirmed the district court’s grant of summary judgment to the city.

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• Negligence & Intentional Tort (2)

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  This summary also appears under Municipal

  e-Journal #: 60365

  Case: Cannon Twp. v. Rockford Pub. Schs.

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Boonstra, Servitto, and Beckering

  Issues:

  Claim under the “sewage disposal system event” exception to the Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq.); MCL 691.1416 - MCL 691.1419; Linton v. Arenac Cnty. Rd. Comm’n; Whether the plaintiff-township was the “real party in interest”; Barclae v. Zarb; Kearns v. Michigan Iron & Coke Co.; Burkhardt v. Bailey; Whether the township was a “claimant”; MCL 691.1416(c); Governmental immunity; Willett v. Charter Twp. of Waterford; MCL 691.1417(2); Whether the water filtration system is a “sewage disposal system”; MCL 691.1416(j); “Sewer” or “sewage”; Whether the system had a “defect”; MCL 691.1416(3); Whether the defendant-Rockford Public Schools (RPS) “knew, or in the exercise of reasonable diligence should have known, about the defect”; The Michigan Municipal League Liability & Property Pool (MMLLPP)

  Summary:

  The court held that the plaintiff-township was bringing this lawsuit “on behalf of” two claimants and thus, was a claimant in its own right. It also held that because the township could show that the water filtration system is a “sewage disposal system” for purposes of the “sewage disposal system event” exception to the GTLA, defendant-RPS was not entitled to summary disposition on this basis. Further, plaintiff presented sufficient evidence of a “defect” of some kind, whether in design, construction, or operation, in the system sufficient to avoid governmental immunity. Finally, there was a genuine issue of material fact as to the extent to which RPS was aware of the defect in its water filtration system before 8/20/11. RPS argued that the trial court erred in concluding that the township was the real party in interest. There was no dispute that the township did not suffer damages and did not itself pay any money to the homeowners (the Ms). However, both the Ms and the MMLLPP (the township’s insurer), “who each had a right of action against RPS, assigned their respective rights to the township.” By “virtue of the assignments, the township became the real party in interest.” The court recognized that the MMLLPP did not assign its rights to the township until after the lawsuit was filed. “Thus, at the time the township initiated the lawsuit, it was not the real party in interest as it pertained to the first $50,000 of damages sought in the complaint.” However, the trial court granted the township leave to amend its complaint to properly reflect that it was litigating as the assignee of both the Ms and the MMLLPP. RPS did not assert, and the court did not find, “any error in the trial court’s grant of leave to amend.” Further, while the township agreed to “remit any damages awarded by the trial court above $50,000” to the Ms, “to be a real party in interest, a plaintiff need only be vested with the right of action on the claim; the beneficial interest may be with another.” RPS also argued that the township could not be considered a “claimant” as defined by the “sewage disposal system event” exception. There was no dispute that the Ms “are property owners who suffered damages from what was alleged to have been a sewage disposal system event.” There was also no dispute that they were “reimbursed $50,000 from the MMLLPP to cover some, but not all, of those alleged damages. Thus, under the plain terms of the statute,” both the Ms, as the property owners, and the MMLLPP, “as a subrogee, would have been entitled to bring a claim” under the exception.

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  e-Journal #: 60367

  Case: Clay v. Doe

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Per Curiam – Saad, M.J. Kelly, and Shapiro

  Issues:

  Action for a slip and fall on a bus; Retroactive application of Atkins v. SMART; Paul v. Wayne Cnty. Dep’t of Pub. Servs.; People v. Quinn; Pohutski v. Allen Park; Whether plaintiff complied with MCL 124.419 when he mailed a claim for no-fault benefits to defendant-Suburban Mobility Authority for Regional Transportation’s (SMART) insurance administrator; Nuculovic v. Hill

  Summary:

  The court held that it “must follow the general principle that gives ‘judicial decisions . . . full retroactive effect,’ and apply Atkins’ holding to this case.” For this reason alone, plaintiff’s suit was properly dismissed pursuant to MCR 2.116(C)(7). Also, it held that he did not comply with the mandates of MCL 124.419. While boarding a SMART bus, plaintiff slipped and fell on the wet floor of the bus aisle. He claimed that the “bus driver accelerated too quickly as he drove the bus away from the stop, and caused plaintiff to slip and fall, and incur injuries.” While plaintiff asserted that “Atkins should not apply to his suit, because the Michigan Supreme Court issued its decision after the events in issue,” this contention was not supported by Michigan law. Contrary to his arguments, under Michigan case law, there was “no reason that Atkins should not be applied to his action.” As SMART accurately observed, “Atkins did not create a ‘new principle of law’ or overrule binding case law—it merely interpreted a statute, MCL 124.419.” Plaintiff could “not reasonably rely on an ‘old rule’ that classified a request for no-fault benefits as compliance with MCL 124.419’s notice provisions, because no such ‘old rule’ existed.” Were the court to assume that Atkins’ ruling did not apply to plaintiff’s suit, “his claim should also be dismissed because he failed to comply with the notice provisions of MCL 124.419 under his preferred, but incorrect, interpretation of the statute.” As the trial court correctly held, MCL 124.419 requires “written notice” of an “ordinary claim against a common carrier” to be “served upon the authority no later than 60 days from the occurrence through which such injury is sustained . . .” Plaintiff did not “provide SMART’s insurance administrator with ‘written notice’ of his demand for no-fault benefits within 60 days of his fall—instead, SMART’s insurance administrator received plaintiff’s demand 78 days after the event.” He did not “serve” “written notice” on defendants “no later than 60 days” after his injury, and thus, did not comply with the mandates of MCL 124.419. Affirmed.

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• Real Property (1)

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  e-Journal #: 60366

  Case: Tuscany Grove Ass'n v. Peraino

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Per Curiam – Hoekstra, Jansen, and Meter

  Issues:

  Enforceability of a condo bylaw (the “supermajority” provision) requiring approval from 66-2/3% of the co-owners before the plaintiff-Association could incur legal expenses incident to litigation; The Michigan Condominium Act (MCA) (MCL 559.101 et seq.); MCL 559.153; Interpreting bylaws according to the rules of contract interpretation; Rossow v. Brentwood Farms Dev., Inc.; McCoig Materials, LLC v. Galui Constr., Inc.; Claim that “absurd” results would arise from enforcing the supermajority provision; Port Liberte II Condo Ass'n, Inc. v. New Liberty Residential Urban Renewal Co., LLC (NJ Super.); Freedom to contract; Wilkie v. Auto-Owners Ins. Co.; Whether the supermajority provision conflicted with the MCA or the Michigan Nonprofit Corporation Act (MNCA) (MCL 450.2201 et seq.); MCL 450.2261; MCL 559.206(a); MCL 559.156(a); Whether plaintiff complied with the supermajority provision by obtaining approval via petitions; Ratification after the fact; David v. Serges; Barrow v. Detroit Election Comm’n

  Summary:

  Rejecting the plaintiff-Association’s arguments as to why the supermajority provision in the condo bylaws should not be enforced, the court held that the trial court properly granted the defendant-condo unit owner summary disposition on the basis that plaintiff lacked authority to file this action. Plaintiff sought to compel defendant’s compliance with fencing-related restrictions in the bylaws. The trial court determined that plaintiff violated the bylaws “by failing to obtain the requisite approval of a supermajority of owners before incurring legal expenses involved with litigation.” The provision requires plaintiff “to obtain approval from 66-2/3% of co-owners before incurring any legal expenses incident to litigation.” Plaintiff argued that applying the provision leads to absurd results. However, the court concluded that “there is nothing absurd about requiring approval before permitting the Board of Directors to incur potentially extensive legal expenses on behalf of the owners. Such a clause functions as nothing more than a reasonable effort to protect the owners’ financial interests.” Plaintiff also argued that the provision could not be enforced because it conflicted with the MCA and the MNCA. However, the court concluded that “the supermajority requirement is a permissible limitation on the Association’s power to sue and it does not impermissibly conflict with MCL 450.2261(1)(b).” It also concluded that while MCL 559.206(a) “recognizes that an association might pursue an action for damages or injunctive relief against a co-owner, it does not prohibit co-owners from choosing to limit this authority to instances in which a supermajority of owners deem the litigation worth pursuing.” Finally, the court concluded that, in light of the bylaws’ requirements for actions outside of a meeting, the petitions collected by plaintiff “did not serve to ratify the litigation against defendant because the petitions did not satisfy the formalities necessary to authorize litigation through an affirmative vote.” Since “plaintiff failed to comply with those formalities, the belated petitions were not sufficient to ratify the litigation against defendant.” Affirmed.

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