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A Better Partnership

July 2015

Jul 2015
July 16, 2015

COA: Condominium association must follow formalities in bylaws before initiating suit

In Tuscany Grove Association v. Peraino, No. 320685, the Court of Appeals held that a condominium association may not initiate an action that will incur litigation costs unless the association complies with the requisite formalities in its bylaws. Therefore, the court affirmed the trial court’s order granting defendant’s motion for summary disposition because the condominium association did not obtain a supermajority vote before filing its action.

Jul 2015
July 14, 2015

COA - WPA plaintiffs must be a current employee and are obligated to prove their whistleblowing objectively advances the public interest

In Whitman v. City of Burton, No. 294703, the Michigan Court of Appeals considered for the third time the case of Bruce Whitman, a former police chief of the City of Burton, and once again held that Mr. Whitman was not entitled to protection under the Whistleblower Protection Act (“WPA”). The Court determined that Mr. Whitman was not a current employee, nor did his whistleblowing objectively advance the public’s interest, and therefore he was not entitled to WPA protection.

Jul 2015
July 13, 2015

COA: DNA is material to defendant’s identify under MCL 770.16(3) even where blood-type evidence at trial excluded defendant as perpetrator

In People v. Poole, No. 315982, the Court of Appeals ruled that blood samples sought to be tested for DNA are material to the issue of a convicted felon’s identity as the perpetrator of the underlying crime, even where blood-type testing presented at the 1989 trial excluded the defendant. In so doing, the Court of Appeals also clarified the proper approach to analyze whether the defendant’s request for DNA testing must be granted under MCL 770.16. Because the trial court either improperly conflated the two phases of MCL 770.16 or improperly found that the biological material at issue was immaterial to the perpetrator’s identity, the Court of Appeals reversed and remanded for the trial court to order DNA testing.

Jul 2015
July 09, 2015

MSC resurrects real estate transfer tax exemption for homeowners

Many who sold their homes in the last four years are now entitled to a refund of transfer taxes from the Michigan Department of Treasury, thanks to the Michigan Supreme Court’s decision today in Gardner v Dep't of TreasuryNos. 150293-5.  Like the Petitioners in this case, many homeowners paid transfer taxes to the state during the recession, not realizing they were exempt under Section 6 of the State Real Estate Transfer Tax Act.  The statute exempts homeowners from transfer tax when (1) the principal residence exemption was claimed under MCL 211.7cc, and (2) the state equalized value (SEV) of the property at the time of sale was equal to, or less than, the SEV at the time of purchase.  That same statutory section, however, contains an exception to this exemption stating the seller will have to pay the tax (and potentially a 20% penalty) if "the sale or transfer of property is found by the treasurer to be at a value other than the true cash value."  In September of last year, the Court of Appeals interpereted this last provision to mean that the home must be sold for exactly twice the then-current SEV, making the exemption so narrow it would practically never apply (see blog post here).  The Michigan Supreme Court reversed, holding that it does not matter what price the home sells for, as long as it is a price that a willing buyer and seller would arrive at in an arm's length transaction.

Jul 2015
July 08, 2015

MSC: Is evidence of pre-arrest silence admissible if defendant fails to immediately come forward with a claim of self-defense?

In People v. Wooten, No. 149917, the Michigan Supreme Court granted mini-oral argument to consider defendant’s application for leave to appeal.  At the oral argument, parties were directed to address whether the defendant’s Fifth Amendment right against self-incrimination was violated where, in its case-in-chief, the prosecutor elicited testimony at trial from a law enforcement officer regarding defendant’s pre-arrest silence and failure to come forward with a claim of self-defense.  The trial court suggested that the prosecutor may have been deliberately creating grounds for a mistrial in order to get a “second strike” at the case.  The Court of Appeals ruled that the defendant’s pre-arrest silence was admissible as substantive evidence because there was no evidence that at the time in question defendant was invoking his Fifth Amendment right against self-incrimination.

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