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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 for attorney fees from a decedent’s estate; Priority of claims; Whether MCL 700.5429(6) may override the priority of claims under MCL 700.3805; Advisable claims; MCL 700.5429(4); MCL 700.5429(b), (c), & (e); Personal representative (PR)
[This opinion was previously released as an unpublished opinion on 10/10/24.] The court held that the probate court erred by applying MCL 700.5429(6) to appellee-attorney’s claim for attorney fees from the decedent’s estate, and by ordering his claim to be paid before the DHHS’s higher priority claim pursuant to MCL 700.3805. Appellee filed a statement and proof of claim asserting he was owed $22,876.20 in legal fees for services concerning the decedent’s Medicaid eligibility. The successor PR listed appellee as the fourth and final creditor to be compensated in the amount of $0 due to insufficient assets. Appellee filed an objection asserting his legal services claim was of a higher priority than the DHHS’s claim under MCL 700.5429. On appeal, the court agreed with the DHHS that “the probate court erred when it entered its order of allowance providing that appellee’s claim be paid pursuant to MCL 700.5429(6) because MCL 700.3805 governed the priority of claims related to the distribution of a decedent’s estate and the DHHS’s . . . claim had higher priority under MCL 700.3805 than appellee’s predeath legal services’ claim.” It noted “the plain language of MCL 700.5429 reflects that it pertains to claims against a protected person during his or her lifetime, as opposed to the appropriate means of distributing the estate of protected persons after their death.” Appellee provided legal services to decedent’s conservators “regarding Medicaid eligibility greater than one year before decedent’s death. However, [he] failed to collect fees until after the administration of decedent’s estate; therefore, his claims are not the type contemplated in MCL 700.5429(6).” Even if MCL 700.5429(6) applied, it “does not address the priority of such ‘advisable’ claims, but MCL 700.5429(4) does.” Thus, under “MCL 700.5429(4), the DHHS’s claim, which falls under MCL 700.5429(b), would take priority over appellee’s claim, which may be considered under MCL 700.5429(c) as a claim incurred by the conservator for the care of decedent, as appellee’s legal services fundamentally pertained to decedent’s Medicaid eligibility, or MCL 700.5429(e), under all other claims.” In addition, appellee “failed to present an adequate reason to overlook the priority provision under MCL 700.3805, and to require the probate court to use its equitable power to bypass the Legislature’s clear intent and order payment of” his claim. “[A]ppellee’s conduct, while admirable, remains subject to the priority provision delineated under MCL 700.3805. The DHHS maintained a valid . . . claim, and pursuant to MCL 700.3805, its claim was of a higher priority than appellee’s claim when determining the appropriate distribution of decedent’s estate.” Reversed and remanded.
Attorney fees for court appointed counsel; In re Ujlaky; In re Foster
Concluding that the trial court erred by denying appellant’s “full fee request without making any findings” as to their reasonableness, the court vacated the attorney fee award and remanded “for the trial court to either award appellant the full amount of the requested fees or articulate its basis for concluding that the amount was not reasonable.” Defendant-Bell appealed his convictions and sentences. The court affirmed his convictions but remanded for resentencing. Appellant, his court appointed appellate counsel, “submitted an attorney fee request and itemized bill to the trial court for his work on defendant’s appeal, and the trial court awarded some, but not all, of the attorney fees requested.” The court held that as in Foster and Ujlaky, the trial court here “was not permitted to merely reduce appellant’s requested attorney fees based on a fee schedule or fee cap. Rather, it was required to consider whether the hours billed by appellant were reasonable. Because the trial court did not award the full amount of attorney fees requested, or in the alternative make findings concerning the reasonableness of the fees in relation to the actual services rendered, it abused its discretion.”
Sentencing; Scoring of OV 19; MCL 777.49(a); People v Dixon; A “jail” as a penal institution; People v Carpenter; Effect of the fact defendant was in the jail’s receiving area
The court held that the trial court did not err in scoring 25 points for OV 19 in sentencing defendant. He was convicted of malicious destruction of a building greater than $1,000 but less than $20,000, and multiple counts of resisting and obstructing a police officer. He was sentenced as a fourth-offense habitual offender to concurrent terms of 22 months to 30 years for malicious destruction and 14 months to 15 years for each resisting and obstructing conviction. He only challenged the scoring of OV 19 on appeal. He asserted the jail where his conduct took place “was not a penal institution for OV 19 purposes” and that even if it was, “the fact that his conduct occurred in the jail’s receiving area means that it did not occur in a penal institution.” The court disagreed. Generally, a jail is a "penal institution for the purposes of OV 19” and the court “has upheld the application of OV 19 to conduct in jails.” As to the fact he was in the receiving area, the court found “no statutory support for the proposition that only certain portions of a jail facility qualify as a penal institution.” Given that the receiving area was part of a county-operated facility “to physically detain charged or convicted inmates, the receiving area is part of a penal institution for the purposes of OV 19.” The court added that “OV 19 specifies that a defendant’s conduct must threaten a penal institution’s security, not that the conduct must take place within a penal institution. . . . Because defendant’s conduct threatened to injure several jail officers and required several officers to respond, thereby leaving the rest of the jail with less supervision, [his] conduct threatened the entirety of the jail’s security. Accordingly, even if the jail’s receiving area were somehow carved out from the penal institution encompassing it, [his] conduct would still satisfy the requirements for” scoring OV 19 at 25 points. Affirmed.
Divorce; Sole legal custody
The court concluded that plaintiff-mother “established by clear and convincing evidence it was in the children’s best interests to grant her sole legal custody. The trial court’s decision to award plaintiff sole legal custody [did] not constitute an abuse of discretion.” Defendant-father “argued granting plaintiff sole legal custody would not resolve the parties’ communication issues. While this reality was acknowledged by the referee, we assume the referee hoped, in rendering this decision, the placement of authority for major decisions involving the children with plaintiff would preclude the necessity of certain communications between the parties, which historically have been negative and contentious. The trial court adopted the referee’s recommendation. By granting plaintiff sole legal custody and reducing the need for the parties to communicate, some of the ongoing tensions could be alleviated. This ruling does not negate defendant’s ability to ‘decide all routine matters concerning the child[ren]’ while in his custody, in accordance with MCL 722.26a(4).” Also, it was “clear that retaining joint legal custody was improper because it is likely defendant will not make decisions in accordance with the children’s best interests. At times, he did not express concern about the children’s issues, such as [one of the children’s] self-stimulation, encopresis, and speech issues. Defendant disapproved of the children’s pediatrician, with whom the children had a long-standing relationship. Plaintiff complained defendant, who is a nurse, sometimes took the children’s medical care ‘into his own hands.’” In sum, the court held that “joint custody would cause the children further harm and would not be in their best interests given the parties’ long-standing acrimonious relationship.” Affirmed.
Probate court order authorizing involuntary mental-health treatment; Due process; The procedures in the Mental Health Code (MHC); Waiver of a respondent’s right to be present at court hearings; MCL 330.1455(1); Clinical certificates requirement; MCL 330.1452; Testimony requirement; MCL 330.1461(2); Effect of a stipulation to the entry of an order for mental health treatment; MCL 330.1455(2); Waiver of argument as to the terms & duration of the treatment
Rejecting respondent’s challenges to the probate court’s order authorizing her involuntary mental-health treatment, the court affirmed. She argued the probate court erred in “accepting her waiver of her right to be present at a hearing, including a stipulation to mental-health treatment, without first ascertaining whether that stipulation was made knowingly and understandingly, and that this violated her due-process rights.” In addition, she contended it “violated her due process rights by issuing an involuntary mental health treatment order that was not supported by any record evidence.” The court disagreed, noting it “‘has previously held that the procedures embodied in the [MHC] and the court rules by accepting respondent’s signed waiver of her right to be present at the hearing before the probate court, and by accepting her stipulation to receive mental-health treatment. [She] was represented by appointed counsel who also abided by the [MHC]. The probate court was not required to engage with respondent personally before accepting her waiver and stipulation.” As to her argument about the clinical certificates, because she stipulated to the entry of an order for mental health treatment, the probate court “was not required to rely on any clinical certificates in order to enter the order for treatment.” In addition, the record showed “that the initial petition was accompanied by clinical certificates. MCL 330.1461(2) permits clinical certificates to be presented to the court ‘before or at the initial hearing.’” Finally, the court found that she waived her argument “that the probate court’s order was not permissible because it exceeded the treatment initially sought in the petition.” While the petition “only initially sought inpatient hospitalization for respondent, the accompanying clinical certificates recommended inpatient mental-health treatment followed by additional outpatient treatment. More importantly, respondent stipulated to a combination of inpatient and outpatient treatment, and the probate court’s order conformed to her stipulation.”
Removal of a trustee by the probate court; MCL 700.7706; Motion for reconsideration; MCR 2.119(F); Service by mail; MCR 5.108(B)(1). Personal service; MCR 5.108(A); MCR 1.108
The court held that the probate court did not err by removing respondent as trustee of his mother’s trust, terminating the trust, and ordering a full accounting of the disposition of trust assets. Petitioner (respondent’s sibling) filed a petition with the probate court requesting that it determine the validity of their mother’s trust, supervise the administration and distribution of trust assets, and enjoin respondent from distributing trust assets. The probate court ultimately removed respondent as trustee and terminated the trust. On appeal, the court rejected his argument that the probate court erred by denying his motion for reconsideration. His principal claim was that the probate court erred by rejecting his arguments as to petitioner’s alleged financial and verbal abuse of their mother. “Respondent did not claim in his motion for reconsideration that he had only recently discovered the alleged abuse; rather, he specifically stated that his knowledge of petitioner’s abuse of [their mother] was the reason why he did not provide information about the trust’s assets to petitioner.” The court found that because this “argument and its accompanying evidence could have been presented in response to petitioner’s original motion,” the probate court did not abuse its discretion by rejecting it. “The same is true for respondent’s assertion, made for the first time in his motion for reconsideration, that the home he purchased with trust assets (which was solely titled in his name) was intended to” also be their mother’s residence. “Respondent was given the opportunity to raise these arguments at the settlement conference or in response to petitioner’s motion to remove respondent as trustee and terminate the trust, but he chose instead to claim that stress and medical issues had prevented him from providing petitioner with any accountings or responding to discovery requests.” In any event, his arguments did “not explain why he could not provide the [probate] court with the accountings and documentation that he had been repeatedly ordered to provide.” Finally, the court rejected his contention that he was not given the full 14-day period between service of a motion and the hearing on the motion. It “was confirmed on the record at the [1/23/24] settlement conference that respondent was personally served with the motion at that time, and the date for the hearing was set on that day for” 1/30/24. “In contrast to MCR 5.108(B)(1) (which applies to service by mail), MCR 5.108(A) states that personal service of a petition or motion must be made at least 7 days before the date set for the hearing. This personal service satisfied that requirement.” Affirmed.
Dispute over a dock & an irrigation tube; Quiet title; Adverse possession & prescriptive easement; Res judicata; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; Adair v State of MI; The “transactional” test; Garrett v Washington
The court held that the trial court did not err by granting defendant summary disposition of plaintiffs’ action seeking to quiet title. Plaintiffs sued defendant alleging they adversely possessed defendant’s land where their irrigation tube was located or had a prescriptive easement over the land. Defendant moved for summary disposition arguing that plaintiffs’ claims were barred by res judicata as their claims for adverse possession or prescriptive easement over his land for their irrigation tube could have been resolved in a previous case about their respective docks. The trial court found that the earlier “case resulted in a final judgment decided on the merits, that the parties in the cases were identical, and that the issue of plaintiffs’ irrigation tube involved the same portion of the bottomlands involved in the earlier case.” On appeal, the court rejected plaintiffs’ argument that the trial court erred by granting defendant’s motion. They contended res judicata did not bar the claim related to their irrigation tube because it did not arise from the same set of facts as their prior lawsuit regarding their dock and boat hoist. “The issue of plaintiffs’ irrigation tube involves the same time, facts, origin, and motivation as the issue of their dock. It would have been convenient to litigate the two issues at the same trial.” As such, the issues were “part of the same transaction and could have been litigated in the prior case. Plaintiffs, exercising reasonable diligence, could have raised the issue of their irrigation tube in the prior case, and therefore, res judicata applies to preclude their current claim.” Affirmed.
Alleged elevator malfunction; Premises liability; Dangerous condition; Notice of the condition; Possession & control of the premises; Product liability; Statute of repose; MCL 600.5839(1); “Improvement to real property”; Pendzsu v Beazer E, Inc; Waiver of arguments; Negligence; Breach of duty; Failure to warn; MCL 600.2948(2)
The court held as to plaintiffs’ premises liability claims against defendant-Greektown Casino that they (1) failed to show that the elevator at issue was defective and (2) there was no genuine issue of material fact that the casino lacked “actual or constructive notice of any alleged defect.” As to defendant-Otis Elevator, MCL 600.5839(1) barred plaintiffs’ claims for negligent “production and design and gross negligence.” Further, their negligence claim failed because they did not establish a question of fact as to breach of duty, and their failure to warn claim failed because Otis did not owe them a duty to warn. Finally, their premises liability claim against it failed because the casino, “not Otis, had possession and control of the premises at the time of the” incident. Thus, the court affirmed summary disposition for both defendants. It first noted that the “mere fact that plaintiffs were injured does not establish that the elevator was defective. The surveillance video” showed the elevator doors opened and passengers exited before plaintiff-Joel stepped inside “without incident. The surveillance video further reflects that the elevator doors were closing as” plaintiff-Marilyn approached “and before she entered the threshold. As the doors were closing, Marilyn stepped between them, resulting in contact with the doors as they closed. The doors opened after the contact, and remained fully open for approximately 24 seconds.” Plaintiffs did not “present any evidence establishing that Marilyn’s contact with the door was because the elevator was defective, as opposed to operating normally.” In addition, plaintiffs did not offer sufficient evidence that the casino “knew or should have known that riders of the elevator risked injury on the date of the incident.” As to the claims against Otis, the court rejected plaintiffs’ argument that the relevant statute of repose did not apply, concluding that in light of their admissions, they “waived any argument that their claims for negligent production and design and gross negligence are barred by the statute of repose.” Further, as to the negligence claim, there was “no evidence that the elevator malfunctioned after Otis completed its work” on the elevator before the incident. And as to the failure to warn claim, it “is common knowledge that an elevator’s doors may continue to close even when someone is in the way. It is also common knowledge that an elevator’s doors will close with enough force to cause harm to a person.”
Child’s best interests; Relative placement; “Relative”; MCL 712A.13a(1)(j); “Fictive kin”; MCL 712A.13a(1)(j)(ii)
Holding that “the trial court failed to duly consider whether CJM was placed with a relative at the time of termination,” the court vacated the trial court’s best-interests determination and remanded. Respondent-father argued, “among other things, that the trial court clearly erred by failing to consider whether Pulsipher was a ‘relative’ of CJM as defined by MCL 712A.13a(1)(j), and therefore whether CJM’s placement with her weighed against termination of his parental rights.” The court agreed. “The trial court did not consider whether Pulsipher fit the ‘fictive kin’ definition of ‘relative’ within MCL 712A.13a(1)(j)(ii), but the record in this case, as it now stands, suggests that she did. It was undisputed throughout the proceedings that Pulsipher regularly cared for CJM since birth, and the caseworker testified at the termination hearing that CJM considered Pulsipher to be his mother. DHHS specifically requested that the court directly place CJM in Pulsipher’s care due to their close relationship, and the trial court itself had referred to Pulsipher as CJM’s ‘fictive kin.’” Thus, there was “ample basis in the present record to conclude that Pulsipher constituted a ‘relative’ under the version of MCL 712A.13a(1)(j) applicable when respondent’s parental rights were terminated—which, in turn, would mean that CJM was in the care of a relative at the time of termination, and the trial court, when making its best-interests determination, was required to expressly consider CJM’s placement with Pulsipher as weighing against termination.” The court concluded that these “considerations were wholly absent from the trial court’s best-interests determination. And, as this Court has made clear, ‘[a] trial court’s failure to explicitly address whether termination is appropriate in light of the child[]’s placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal.’” It retained jurisdiction.