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December 2013

Dec 2013
23
December 23, 2013

MSC sends dispute over landlord's lease termination to trial despite undisputed demand for compliance and tenant's failure to comply

The Michigan Supreme Court, reversing the Court of Appeals by order, held there was a genuine issue of material fact precluding summary judgment in a breach-of-contract claim.  In Majestic Golf, L.L.C. v. Lake Walden Country Club, Inc., the parties’ lease provided the landlord a right of termination where the tenant failed to comply with the lease after 30-days’ notice.  The landlord sent a letter requesting compliance with an easement provision within 30 days, but the tenant failed to comply.  The Court held that the letter did not automatically entitle the landlord to terminate the lease.  Genuine issues of material fact remained regarding whether the letter constituted proper notice under the lease and whether the landlord had waived the termination provision.

Dec 2013
23
December 23, 2013

Trial court erred by reading an “and” rather than “or” in pandering statute

The consolidated cases of People v. Norwood and People v. Hagar, the Michigan Court of Appeals held that MCL 750.455 has eight different grounds on which a person may be guilty of pandering, any one of which is sufficient to find a person guilty of pandering without proving elements of the other prongs. In these two cases, the Court concluded that the couple could be held over under the sixth prong of the statute that says, “Any person ... who shall inveigle, entice, persuade, encourage, or procure any female person to come into this state or to leave this [state] for purposes of prostitution” and that there was no requirement under this prong that the person actually would “become a prostitute.” Accordingly, the Court reversed the district court's decision refusing to bind the defendants over to circuit court, and remanded the case for further proceedings.

Dec 2013
23
December 23, 2013

Defendant waives right to appellate review of in limine ruling on admissibility of conviction when he fails to take the stand

In People v. McDonald, the defendant chose not to take the stand in his own defense because the trial court had ruled in limine that his prior conviction would be admissible if he took the stand. On appeal, the defendant argued that his conviction should be overturned because the trial court’s erroneous ruling in limine had prevented him from testifying. The Michigan Court of Appeals held that a failure to testify and preserve the issue was a waiver of his Fifth Amendment right. The Court reasoned that it would be impossible to review the error without the defendant actually testifying and the prosecution actually offering the conviction as evidence because of the lack of a record to review. The court noted that the trial court was free to reverse its decision at the time the defendant gave his testimony, and that it was not a certainty that the prosecutor would offer the evidence.

Dec 2013
23
December 23, 2013

MSC gives COA a second chance to determine whether defendant was prejudiced when expert testified that complainant was victim of criminal sexual conduct

After oral argument on the application for leave to appeal, in People v. Harris, the Michigan Supreme Court granted leave to and vacated the Michigan Court of Appeals decision.  On remand, the Court of Appeals will reconsider whether Harris was denied the right to a fair trial by his trial counsel’s failure to object to the expert's testimony that the expert had “diagnosed” the complainant as a victim of criminal sexual assault.

Dec 2013
20
December 20, 2013

COA calls for a special panel to consider when a successful OMA plaintiff is entitled to his attorney fees

A plaintiff may obtain attorney fees where he successfully obtains a declaratory judgment that a public body has violated the Open Meetings Act (“OMA”). In Speicher v. Columbia Township Board of Trustees, on a motion for reconsideration, the Court of Appeals vacated its prior denial of attorney fees to the plaintiff. In its previous decision the Court had held that the Board had “technically” violated the OMA; therefore, the plaintiff was entitled to declaratory relief, but not an injunction. Following what it viewed as the plain language of the OMA, the Court had denied the plaintiff attorney fees because he had not obtained injunctive relief. On reconsideration, the Court stated that it was compelled to vacate its attorney-fee decision and to follow precedent that allowed a successful declaratory-judgment plaintiff to recover his fees—even though it viewed that precedent as contrary to the OMA’s plain language.  The Court called for a special panel pursuant to MCR 7.215(J)(3) to reconsider the existing state of the law.

Dec 2013
19
December 19, 2013

COA holds that a trust's spendthrift provision did not prevent a beneficiary from gifting his interest in the trust upon his death

In in re Estate of Theodora Nickels Herbert Trust, the Court of Appeals affirmed the trial court’s interpretation of a trust agreement and held that a spendthrift provision did not prevent a beneficiary from gifting his interest in the trust upon his death. 

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