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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Claim of lien on a bond; Construction Lien Act (CLA); Time price differential; Waived issue; Continental Building Company (CBC); North American Construction Enterprises, LLC (NACE)
The trial court did not err in concluding third-party plaintiff-Gypsum had a valid claim against plaintiff/third-party defendant-CBC and defendant/third-party defendant-Hartford on a bond they filed to discharge its claim of lien. Thus, the trial court’s order granting Gypsum summary disposition was affirmed. CBC and Hartford claimed “that Gypsum had 10 days to object to the bond pursuant to MCL 570.1116(2), and it did not do so. But MCL 570.1116(2) provides that the lien claimant has 10 days to object to the sufficiency of the surety on the bond. Without any objections to the sufficiency of the surety, Gypsum did not waive its ability to enforce a claim on the bond, as CBC and Hartford imply.” CBC further argued “that it did not have a direct contract with Gypsum; that CBC’s offer to pay Gypsum directly was never accepted by [defendant-]NACE, so an agreement was never reached, and the plain language of MCL 570.1107(1) bars Gypsum from claiming a lien against CBC.” But the court held that pursuant “to MCL 570.1116(1) and the language of the bond, Gypsum, the obligee, was entitled to file its action to enforce its claim of lien under the bond against CBC and Hartford, the obligors. The trial court applied the plain and ordinary meaning of MCL 570.1116(1) and properly concluded that Gypsum had a valid CLA claim against CBC and Hartford.” The court also found that “CBC and Hartford failed to establish a genuine issue of material fact” concerning the amount and legitimacy of Gypsum’s lien. As to CBC’s claim that it was “not liable under the bond because there was no underlying contract between” it and Gypsum, the court concluded that “there is no specific requirement in the CLA that a lien claimant have a contract with the obligor of the bond.” Given that the trial court’s opinion and order discussed “evidence beyond the pleadings such as invoices and waivers[,]” the court found that it “erred in granting summary disposition under (C)(9). Nevertheless, where summary disposition is granted under the wrong subsection of MCR 2.116, we will review the trial court’s order under the correct rule.” The court held that because “the trial court correctly found that Gypsum was entitled to summary disposition under MCR 2.116(C)(10) and (I)(2), reversal is not warranted.”
Whether a tolling agreement was ambiguous; McCoig Materials, LLC v Galui Constr, Inc; Interpreting an undefined term; Terrien v Zwit; Computing time; MCR 1.108(1)
Concluding the failure to define “Effective Date” did not render the parties’ tolling agreement ambiguous, the court held that defendant was properly granted summary disposition based on the statute of limitations. The parties’ real property purchase agreement “provided for a one-year period after closing for plaintiff to bring any claims related to the condition of the property.” She experienced basement flooding within the one-year period. Her “insurance company denied her claim after a consulting firm concluded that previous repairs had been made to the area, but were not effective. Plaintiff and defendant” then entered into the “tolling agreement to give plaintiff an additional 45 days to negotiate with defendant or” sue him for damages. She later filed this action. “The trial court agreed with defendant that plaintiff did not file her complaint until after the tolling period expired . . . .” The court determined that because “the parties both signed the document on July 19, the execution date of the contract was July 19, and according to the agreement, the tolling period expired 45 days from July 19.” Plaintiff asserted that because the agreement did not define “Effective Date,” the method of computing the 45-day “tolling period in ¶ 1(b) was ambiguous and should not be enforced.” She contended the time computing method “in MCR 1.108(1) should be followed.” But the court noted that “the parties expressed their intention to compute the tolling period using a method that differed from MCR 1.108(1).” They agreed that the “45-day period began on and included the ‘Effective Date.’ MCR 1.108(1) does not include the day the designated period of time begins to run.” The court concluded “the tolling period began on the ‘Effective Date’” and that this date was “the date the parties executed the contract. . . . As the ‘Expiration Date’ is defined as 45 days from the date of execution, [7/19/22], then the ‘Tolling Period’ began on the date of execution, which must also be the ‘Effective Date.’ According to the computing method provided for in the agreement, the tolling agreement expired on [9/1/22]. This interpretation gives effect to every word, phrase, and clause in the agreement and does not render any part of it as surplusage or nugatory.” Plaintiff’s complaint was untimely because she did not file it “or extend the tolling agreement by [9/1/22].”
Sentencing; Scoring of OV 19 (interference with the administration of justice); MCL 777.49(c); People v Hershey; Consideration of conduct after the completion of the sentencing offense; People v Smith; Interfering with a police officer’s attempt to investigate a crime; People v Barbee; Right against self-incrimination; Distinguishing People v Wright; Ineffective assistance of counsel; Failure to make a meritless or futile objection
The court held that the trial court did not err by assessing 10 points for OV 19, and defense counsel was not ineffective for failing to make a meritless or futile objection. Defendant was convicted of possession of meth, second or subsequent offense, following a stop and search of the vehicle in which he was a passenger. The trial court sentenced him to 21 months to 20 years. On appeal, the court rejected his challenge to the assessment of 10 points for OV 19 and his counsel’s failure to object to the assessment. “Defendant argues that his statements to the police officer were only maintaining his innocence and the statements did not interfere with the police investigation. The record does not support defendant’s argument.” He made “statements to the police officer ‘diverting suspicion onto others and away from him.’” The facts supported the trial “court’s finding that defendant had ‘legally possessed’ the box [containing the meth], intended to deceive the police officer, and did something more than merely denying culpability.” The court also disagreed with his claim that his failure to appear for a PSIR interview could not be used against him. Distinguishing Wright, it noted he “was instructed after the jury trial that he was required to meet with the Department of Corrections. Defendant did not appear at the interview and remain silent; instead, he did not appear at the interview at all.” Moreover, he “did not attend the initially-scheduled sentencing hearing, causing a bench warrant to be issued and judicial and law enforcement resources to be expended to hold him accountable for his conviction.” Finally, because “assessing 10 points for OV 19 was not erroneous and was supported” by the record, defense counsel “did not provide ineffective assistance by failing to make a meritless or futile objection.” Affirmed.
Search & seizure; Motion to suppress; Automobile exception to the warrant requirement; People v Bullock
The court held that probable cause to further inspect defendant’s vehicle for open alcohol containers “did not support a search of locations in the vehicle where a container could not be concealed.” Thus, it reversed the denial of his motion to suppress and remanded for entry of an order suppressing the cocaine at issue. It noted that he correctly did “not challenge the seizure of the open bottle of Patron, which the officers found in plain view as they looked from the outside of the vehicle into the interior with flashlights.” However, the officers who searched the “vehicle were looking for another bottle that contained an alcoholic beverage, yet their search extended to areas of the vehicle that could not conceal a bottle. Specifically, the officers thoroughly searched the entire passenger compartment, lifting up items and moving around shoes on the floorboard. Finally, [they] searched under a floormat and in the ‘floorboard/running board area,’ where [an officer] found a small, rock-like substance that formed the basis for the” possessing less than 25 grams of cocaine “charge against defendant. Because that vehicle search included places in which a bottle could not be located, the search exceeded the permissible scope of an automobile search, as defined by Bullock . . . . As a result, the trial court erred as a matter of law in denying defendant’s motion to suppress the small, rock-like substance found during that search[.]”
Sentencing; Scoring of 15 points for OV 19; Use of force; People v McGraw; People v Smith; “Force”; Preoffense conduct
Concluding that the trial court properly assessed 15 points for OV 19, the court affirmed. Defendant was convicted of resisting and obstructing a police officer and sentenced as a fourth-offense habitual offender to 42 months to 15 years for each conviction. He argued that the trial court erroneously assessed 15 points for OV 19 by classifying his “slipping his hand from handcuffs as a use of force, and by considering conduct that occurred before the sentencing offense.” The court concluded that to “the extent that the trial court considered preoffense conduct in its scoring of OV 19, it erred.” In this case, troopers maced him “in a separate incident before he slipped from his handcuffs and fled postarrest, which formed the basis for both counts of his resisting and obstructing charges against each trooper. At sentencing, the investigating case manager, the prosecutor, and the trial court mentioned in support of scoring 15 points that troopers maced defendant.” The court held that “McGraw and Smith interpreted the language of OV 19 to include postoffense conduct but not preoffense conduct, and therefore, the trial court erred in its scoring assessment by considering that defendant had been maced.” However, it concluded that “aside from considering the preoffense conduct, the trial court’s assessment of OV 19 at 15 points was supported by a preponderance of the evidence because defendant’s actions constituted a use of force.” The court held that while “handcuffed with Michigan State Police-issued handcuffs, defendant used his right hand to slip the cuff off of his left wrist in order to escape police custody. The minimal amount of force used in opening a camper door is similar to the amount of force defendant likely exerted against the handcuffs when he slipped his wrist from them. There is no requirement for the property to be damaged under OV 19 as a prerequisite to assess 15 points.” Therefore, his “exertion of force against police handcuffs was sufficient to assess 15 points under OV 19.”
Special land use application; The Michigan Zoning Enabling Act; MCL 125.3502(4); Judicial review; Const 1963, art 6, § 28; Whether the Planning Commission’s decision was supported by competent, material, & substantial evidence; Lakeview Vineyards, LLC v Oronoko Charter Twp (Unpub); Whether the trial court properly directed it to consider additional evidence on remand; Applicability of MCL 125.3606(2); Effect of failing to present the evidence to the Planning Commission before asking the circuit court to consider it; Zoning board of appeals (ZBA)
The court held that defendant-Township’s Planning Commission (PC) did not adequately articulate its basis for denying plaintiff-Beck’s “special land use application as required by MCL 125.3502(4).” But the circuit court erred in directing the PC “to consider additional evidence on remand because Beck failed to present the evidence before the [PC] before asking the circuit court to consider it.” The court noted that “MCL 125.3502(4) states that a [PC’s] decision on a special land use application shall be incorporated in a statement of findings or conclusions. During the [PC] meetings, the commissioners individually expressed concerns regarding the Premier Academy development’s incompatibility with adjacent land uses, incompatibility with the Township’s master plan, and adverse impact on nearby traffic. Yet, none of the individual commissioners made findings. And the [PC] never incorporated its members’ individual concerns in a statement of findings or conclusions specifying the basis for its denial of” the application. As a result, the court concluded here, as it did in Lakeview Vineyards, that the PC “failed to comply with MCL 125.3502(4). Therefore, the circuit court did not misapply legal principles or otherwise misapply the substantial-evidence test by vacating the [PC’s] denial of Beck’s special land use application and remanding for further proceedings before the” PC. However, the “circuit court misapplied legal principles by directing the” PC to consider a report on remand. The court found that “the statute under which the circuit court required the [PC] to consider [the] report, MCL 125.3606(2), does not apply to an appeal of a [PC’s] special land use decision. It only applies to an appeal involving a” ZBA’s decision. Further, as Beck did not present the report as evidence before the PC, the circuit court “should not have considered the report in determining whether the [PC’s] decision was authorized by law and whether its findings were supported by competent, material, and substantial evidence on the whole record.” The court affirmed the circuit court’s decision to remand the matter to the PC. It reversed “the circuit court’s decision to the extent it required the” PC to consider the report. “On remand, the [PC] shall make findings and conclusions regarding the special land use application as provided by MCL 125.3502(4). As part of that process, it may, but is not required to, hold additional hearings or consider additional evidence.”
Wrongful death; Governmental immunity; Odom v Wayne Cnty; Gross negligence; MCL 691.1407(2)(c); MCL 691.1407(8); Tarlea v Crabtree; The interplay between an entity’s internal rules & regulations & the standard of care in negligence cases; Meyers v Reick; Civilian aid (CA)
Holding that reasonable jurors would agree that defendants-police officers’ conduct did not amount to gross negligence, the court reversed and remanded for entry of judgment in their favor. Plaintiff sued defendants for the wrongful death of her sister, Priscilla, who died in her jail cell after being arrested. She alleged they “engaged in gross negligence and wanton and willful misconduct by not obtaining medical care and treatment for Priscilla and not properly monitoring her health status despite her extreme intoxication, which nonfeasance was the proximate cause of her death by alcohol withdrawal syndrome.” The trial court denied defendants’ motion for summary disposition, finding “reasonable minds could differ on the issue of gross negligence and that there otherwise existed ‘questions of fact all over the place.’” On appeal, the court agreed with defendants that (1) “no reasonable juror could find [they] were grossly negligent and that (2) no reasonable juror could conclude that” their conduct was the proximate cause of Priscilla’s death. First, “the documentary evidence established as a matter of law that” Officers L and J and Lieutenant S “did not engage in conduct so reckless as to demonstrate a substantial lack of concern for whether Priscilla might suffer an injury.” The documentary evidence also failed to show that Detective R “engaged in conduct so reckless as to demonstrate a substantial lack of concern for whether an injury resulted to Priscilla.” In addition, CAs O, R, A, and W “did not engage in conduct so reckless as to demonstrate a substantial lack of concern for whether an injury resulted to Priscilla.” As to those defendants, “their knowledge of Priscilla’s intoxication and drug use might demonstrate ordinary negligence for failure to procure medical assistance or treatment, but it does not constitute gross negligence.” Finally, there was “insufficient documentary evidence to create an issue of fact regarding whether” Officer M and O “were grossly negligent for failing to secure medical care and treatment for Priscilla in light of her level of intoxication.”
Motion to terminate a PPO; Due process; Petitioner’s off-camera testimony; Curtailment of cross examination; Burden of proof; Request for remand to a different judge
The court held that where “the petitioner testified off-camera for no discernible reason; cross examination was curtailed by the circuit court; and, most critically, the circuit court shifted the burden of proof from the petitioner to the respondent, the proceedings lacked the due process needed for continuation of the PPO.” But it denied respondent’s request to reassign the case to a different judge. He argued that three aspects of the hearing on his motion to terminate the PPO undermined his right to due process. Beginning with the off-camera testimony, the court concluded that with “the limited testimony and inability of the circuit court to see petitioner, the [circuit] court did not have the ability to assess petitioner’s credibility fully. Nor did respondent’s counsel have the opportunity to see petitioner testify and respond accordingly to her demeanor or credibility.” Next, the record confirmed “that the circuit court curtailed respondent’s opportunity to cross-examine petitioner.” The court found that by depriving him “of the opportunity to cross-examine petitioner about the alleged sexual assault, the circuit court increased the risk of erroneously depriving respondent of significant liberty interests.” Finally, the court concluded the “circuit court impermissibly shifted the burden of proof to respondent.” It held that “the circuit court abused its discretion by prohibiting respondent’s counsel from fully cross examining petitioner. The circuit court also abused its discretion by (1) permitting petitioner to testify off-camera and (2) shifting the burden of proof from petitioner to respondent, and these errors were plain. The errors affected respondent’s substantial rights, specifically his liberty interests. These errors were ‘inconsistent with substantial justice,’ and ‘seriously affected the fairness, integrity, [and] public reputation’ of these PPO proceedings.” Thus, the court vacated the circuit court’s order denying respondent’s motion to terminate the PPO and remanded.