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February 2014

Feb 2014
26
February 26, 2014

COA determines that mandamus action to enforce a Tax Tribunal order is not within the exclusive jurisdiction of the Tribunal and can be heard by the Circuit Court

In Sal-Mar Royal Villages LLC v. Macomb County Treasurer, the Court of Appeals answered a question posed by the Michigan Supreme Court on remand:  whether plaintiff's complaint fell within the exclusive jurisdiction of the Michigan Tax Tribunal.  In this case, Plaintiff's complaint was a Circuit Court mandamus action alleging that the Macomb County treasurer had violated a prior Tax Tribunal consent order.  Specifically, Plaintiff and Macomb Township had resolved a property tax dispute through that consent order, which included a waiver-of-interest provision.  Nevertheless, the treasurer sought to collect interest, and the mandamus action followed.  In addressing the Supreme Court's question on remand, the Court of Appeals noted that while the Tax Tribunal may have the authority to order the Treasurer to waive interest, it did not have the capacity to enforce that order. As the mandamus action in question was simply seeking enforcement of an already-existing order from the Tax Tribunal, the Court of Appeal concluded that it did not fall within the Tribunal's exclusive jurisdiction.

Feb 2014
26
February 26, 2014

COA applies Michigan law to deficiency claims from promissory notes issued by Michigan residents to Michigan bank, and secured by Nevada real property

In Talmer Bank & Trust v. Parikh et. al., the Court of Appeals conducted a choice of law analysis to determine whether Nevada or Michigan law applied to the bank's action to collect on the deficiencies that remained on defaulted promissory notes after the bank had foreclosed upon and sold the real property that secured those notes.  In this case, the notes were executed by Michigan residents in favor of a Michigan bank, and secured by real property in Nevada.  After default on the terms of the notes, the bank foreclosed on the properties, sold them at auction and initiated legal actions in Michigan to collect the remaining balance on the notes.  The borrowers defended those actions arguing that Nevada law applied to the collection action, and that the application of Nevada law could greatly reduce the amount owed.  In two separate cases, the trial courts held that Michigan law applied and awarded the bank summary judgment for the entire amount of the deficiency on the note.  In a consolidated appeal, the Court of Appeals conducted a detailed choice of law analysis noting that the relevant factors including residency, as well as the place of contracting and performance all favored the application of Michigan law to an action on the obligations of the promissory note.  In addressing Nevada's competing interests, the Court "question[s] Nevada's interests in seeing Michigan residents avoid deficiency judgments at the hands of a Michigan bank merely because the properties securing the loans, which originated and were paid in Michigan, were located in Nevada."  The Court of Appeals, therefore, upheld the judgments in favor of the bank.  Additionally, because they were specifically required in the contract, the Court of Appeals required the award of reasonable attorney fees to the bank.            

Feb 2014
22
February 22, 2014

MSC holds that a purported father is not required to attest to his parentage under the Acknowledgement of Parentage Act

In In re E.R. Moiles, the Michigan Supreme Court reversed by order, in lieu of granting leave to appeal.  The Court held that under the Acknowledgement of Parentage Act, “an acknowledging father is not required to attest that he is the biological father.”  Accordingly, the Court of Appeals “erred in concluding that the parties’ knowledge of the possibility that respondent was not the biological father of the child was sufficient to demonstrate either fraud or misrepresentation under MCL 722.1437(2).”  The Court also held that the “circuit court similarly erred when, in partial reliance on the DNA identification profiling results, it granted the petition for revocation of the acknowledgment of parentage.”  The Court then remanded the matter to the circuit court.
 
 

Feb 2014
21
February 21, 2014

COA rules that a plaintiff may hold a principal liable for his breach of duty, even where the negligence claims against the agents have been dismissed

In Bailey v. Schaaf, the Court of Appeals held that negligence claims against a principal for his breach of duty may continue, even though the negligence claims against the agents have been dismissed, because the claims against the principal arise from a separate duty than the claims against the agents. There, two security guards, allegedly ignored warnings that a person at an apartment complex was threatening others with a gun at an outdoor gathering. The gunman shot and injured Plaintiff Devon Bailey, who subsequently brought multiple claims against the landlord (Evergreen Regency Townhomes, Ltd.), the building manager (Radney Management and Investments), the security company (Hi-Tech Protection, Inc.), and others, on theories of premises liability, negligence, breach of contract and vicarious liability. On remand from the Michigan Supreme Court, the Court of Appeals was asked to consider (1) whether Hi-Tech owed Bailey a duty to protect or assist him; and (2) whether Evergreen and Radney could be held liable for a breach of their duty to involve the police after learning of an ongoing emergency.

Feb 2014
21
February 21, 2014

COA holds that MRAA and MCPA do not protect patient’s access to independent-medical-evaluation records

In Paul v. Glendale Neurological Associates, the Michigan Court of Appeals held that neither the Medical Records Access Act (“MRAA”) nor the Michigan Consumer Protection Act (“MCPA”) protect patient access to medical records for procedures performed in the context of receiving an an independent medical evaluation (“IME”).

Feb 2014
19
February 19, 2014

COA defines "threat" vs. mere "display" of weapon for purposes of Michigan Sentencing Guidelines

In People v. Brooks, the Michigan Court of Appeals considered for the first time what actions constitute a “threat” rather than a “display” of a weapon for the purposes of sentencing under Offense Variable 1 (aggravated use of a weapon), MCL 777.31(1).  In this case, the trial court sentenced the defendant to 8 to 40 years’ imprisonment for unarmed robbery, assessing him 15 points for threatening the victim with a knife under MCL 777.31(1)(c).  The defendant argued that the court should have only assessed him 5 points under MCL 777.31(1)(e) because, while he may have displayed the knife, he never pointed it at the victim.  The Court of Appeals noted that whether displaying or implying something creates a threat is “highly context-specific,” and, in affirming the trial court’s sentencing, the Court held that the defendant’s attempt at pulling a knife out of his sock was enough to constitute a threat under MCL 777.31(1)(c).  The Court distinguished a threat from mere presence when the defendant “in any way suggests, by act or circumstance that the weapon might actually be used against the victim” such that there is some reason, “however slight,” for the victim to reasonably perceive that the weapon will be used against him or her.  The Court stated that even merely reaching for a knife would be enough to constitute a threat in the context of a robbery because a reasonable person would interpret this as an indication that the knife would be used to inflict harm on the victims. 

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