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In the body,=20 type:? unsubscribe ejournal and on the next line type:? subscribe=20 ejournal-text [IMAGE] Ad 1 [IMAGE] [IMAGE] [IMAGE] [IMAGE] [IMAGE] [IMAGE] The e-Journal is available to members of the State Bar of Michigan at no= =20 additional charge thanks in part to the generous support of our advertiser= s.=20 Please be sure to support these State Bar partners and visit their Interne= t=20 sites frequently for information about their products and services. =09?= =09 =09=09 =09=09 =09=09 =09=09[IMAGE] =09=09 =09=09 =09=09 =09=09 =09=09 =09=09State Bar of Michigan e-Journal for Thursday, May 17, 2001 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09?qlink =09=09 =09=09?Use our specifically designed hypertext links --Quicklinks -- to j= ump to=20 the desired area of today's=20 =09=09e-Journal =20 =09=09 =09=09 =09=09 =09=09?cases =09=09Cases affecting the following practice areas are summarized in toda= y's=20 e-Journal: =20 =09=09 =09=09Administrative Law =20 =09=09Civil Rights =20 =09=09Constitutional Law =20 =09=09Construction Law =20 =09=09Corrections =20 =09=09Criminal Law =20 =09=09Employment & Labor Law =20 =09=09Family Law =20 =09=09Litigation =20 =09=09Municipal =20 =09=09Negligence & Intentional Tort =20 =09=09Real Property =20 =09=09 =09=09Special Notes: Today's e-Journal includes summaries of four Michiga= n=20 Supreme Court opinions and six Michigan Court of Appeals published opinion= s=20 in the following practice areas: Administrative Law, Civil Rights,=20 Constitutional Law, Construction Law, Employment & Labor Law, Family Law,= =20 Litigation, Negligence & Intentional Tort, and Real Property. =09=09 =09=09Due to technical difficulties, a summary of the Supreme Court decis= ion in=20 Bolt v City of Lansing will appear in tomorrow's e-Journal.=20 =09=09 =09=09[IMAGE] =20 =09=09 =09=09?editorial =09=09Please click here to read today's Other Editorial =09=09[IMAGE] =20 =09=09 =09=09Tell Us What You Think =09=09Visit Our New Townhall Forum Electronic Bulletin Board =09=09 =09=09Amendment of Local Court Rules 2.100 and 8.108 of the Wayne Circuit = Court,=20 and Repeal of Local Court Rules 2.301, 2.401 and 2.503=20 =09=09 =09=09?classified =09=09Listings in the following areas are in today's Classified Section: = =20 =09=09 =09=09Confidential Records Destruction =20 =09=09Expert Witness =20 =09=09Lawsuit Financials =20 =09=09Legal Research =20 =09=09Office Space Available =20 =09=09Positions Available=20 =09=09Services =20 =09=09 =09=09 =09=09 =09=09?fieldspractice =09=09 =09=09Need to refer a case? See today's Fields of Practice Listings:=20 =09=09 =09=09ADR/Arbitration/Mediation =20 =09=09 =20 =09=09Administrative Law =20 =09=09Adoption =20 =09=09 =20 =09=09Alternative Dispute Resolution =20 =09=09 =20 =09=09Antitrust/Advertising/Trade Regulation=20 =09=09 =20 =09=09Appeals =20 =09=09 =20 =09=09Appellate Law=20 =09=09 =20 =09=09Automotive Warranty Law=20 =09=09 =20 =09=09Business & Taxation=20 =09=09 =20 =09=09Construction Law=20 =09=09 =20 =09=09Copyrights =20 =09=09 =20 =09=09Criminal Law=20 =09=09 =20 =09=09Environmental Law=20 =09=09 =20 =09=09Family Law=20 =09=09 =20 =09=09Federal False Claims (Qui Tam) Actions=20 =09=09Health Law=20 =09=09 =20 =09=09Hospital & Medical Negligence=20 =09=09 =20 =09=09Immigration & Naturalization=20 =09=09 =20 =09=09Immigration Law=20 =09=09 =20 =09=09Insurance Law=20 =09=09 =20 =09=09Intellectual Property Law =20 =09=09 =20 =09=09Labor & Employment Law=20 =09=09 =20 =09=09Litigation =20 =09=09 =20 =09=09Medical Malpractice=20 =09=09 =20 =09=09Real Estate=20 =09=09 =20 =09=09Special Education Law=20 =09=09 =20 =09=09Tax Litigation & Disputes=20 =09=09 =20 =09=09Transportation Law=20 =09=09 =20 =09=09Worker's Compensation =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09?newsandmoves =09=09 =09=09See this week's News & Moves for information about your colleagues:= =20 =09=09 =09=09 =09=09 =09=09barevents?=20 =09=09 =09=09See today's Bar Events section for news about upcoming programs an= d =20 activities: =20 =09=09 =09=09Criminal Law Brown Bag "Therapeutic Drug Court"=20 =09=09Eighth Trailblazers Dinner =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09case summaries =20 =09=09 =09=09 =09=09 =09=09Administrative Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09Issues:? Registration fees for interstate motor carriers under the 1= 991 =20 Intermodal Surface Transportation Efficiency Act (ISTEA); Whether effect o= f=20 reciprocity agreements must be considered in determining amount of fee=20 charged or collected on November 15, 1991; Interstate Commerce Commission= =20 (ICC) =09=09Court:? Michigan Supreme Court =09=09Case Name:? Yellow Freight Sys., Inc. v. State of Michigan =09=09e-Journal Number:? 10238 =09=09Judge(s):? Weaver, Corrigan, Taylor, Young, Jr., and Markman; Dissen= t =01) =20 Kelly; Dissent =01) Cavanagh =09=09 =09=09In an issue of first impression in any state court, the court held t= hat=20 under the plain language of the ISTEA, reciprocity agreements were=20 irrelevant in determining what registration fees were charged or collected= =20 as of November 15, 1991. Plaintiff alleged that defendants collected =20 registration fees in excess of the amount allowed under ISTEA, contending = =20 that Michigan could not alter its reciprocity agreements because these wer= e=20 frozen at their November 15, 1991 levels. The court declined to defer to t= he=20 ICC=01,s interpretation banning states from charging registration fees in= =20 excess of preexisting reciprocal discounts. The court determined that the= =20 plain meaning of the ISTEA was clear and applied the statute as written=20 without reaching the agency interpretation. The ISTEA itself referred only= =20 to the fees collected or charged, and contained no reference to reciprocit= y=20 agreements. The court concluded that it must look at the generic fee=20 Michigan charged or collected from carriers as of November 15, 1991, not a= t=20 the fees paid by plaintiff in any given year. Reversed and remanded.=20 =09=09 =09=09Justice Kelly, dissenting, disagreed with the conclusion that recipr= ocity=20 agreements were not relevant to determining the registration fees that=20 Michigan charged and would have affirmed the decisions of the Court of=20 Appeals and Court of Claims in favor of plaintiff. =09=09 =09=09Justice Cavanagh, also dissenting, likewise found the statutory lang= uage=20 ambiguous and that the ICC permissibly construed it in taking into account= =20 reciprocity agreements. =09=09 =09=09Full Text Opinion=20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Civil Rights =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09This summary also appears under Employment & Labor Law =09=09 =09=09Issues:? Whether an alleged adverse employment action against an emp= loyee =20 on the basis of her former intimate relationship with her supervisor =20 presented a cognizable claim of sex discrimination under the CRA; Quid pro= =20 quo sexual harassment; Hostile work environment; Respondeat superior; Sex= =20 discrimination; Breach of contract; Intentional infliction of emotional=20 distress =09=09Court:? Michigan Court of Appeals (Published) =09=09Case Name:? Corley v. Detroit Bd. of Educ.=20 =09=09e-Journal Number: 10218 =09=09Judge(s):? Neff, Holbrook, Jr., and Jansen =09=09 =09=09In an issue of first impression regarding whether alleged adverse=20 employment action against an employee on the basis of her former intimate= =20 relationship with her supervisor presents a cognizable claim of sex=20 discrimination under the CRA, the court held that it does. Therefore,=20 summary disposition of plaintiff=01,s sexual harassment claim in favor of= =20 defendants was improper. Plaintiff alleged that she was subjected to a=20 hostile work environment, sexual harassment, disparate treatment, and=20 unlawful termination because of her sex and her prior relationship with=20 defendant-Smith. Plaintiff established sufficient facts to survive a motio= n=20 for summary disposition under either quid pro quo sexual harassment or=20 hostile work environment. Affirmed in part, reversed in part, and remanded= . =09=09 =09=09Full Text Opinion=20 =09=09 =09=09Back to Quicklinks=20 =09=09 =09=09This summary also appears under Employment & Labor Law =09=09 =09=09Issues: Alleged discrimination based on race and marital status; The= CRA=20 statute of limitations; Wrongful discharge; Failure to timely initiate an= =20 appeal of an administrative agency's final decision to the circuit court;= =20 Constitutional issues not within the agency's jurisdiction may be raised i= n=20 the circuit court through the Administrative Procedures Act (APA) review= =20 procedure =09=09Court: Michigan Court of Appeals (Published) =09=09Case Name: Womack-Scott v. Department of Corrections =09=09e-Journal Number: 10219 =09=09Judge(s): Per Curiam - Doctoroff, Hoekstra, and Markey =09=09 =09=09Since the plaintiff-former employee failed to bring her CRA claims w= ithin=20 three years of the date of her initial discharge for violation of one of= =20 defendant's work rules, the trial court properly granted summary=20 disposition to defendant. Plaintiff argued that the trial court used the= =20 wrong date when calculating the limitation period and should have used th= e=20 last day she was employed by defendant. Although plaintiff was technically= =20 reinstated for a period of time as a result of administrative decisions an= d=20 again discharged, the court disagreed that the second and final discharge= =20 should apply for purposes of calculating the limitations period.=20 Accordingly, plaintiff's race and marital status discrimination claims=20 accrued on the date of her initial discharge that was for allegedly=20 discriminatory reasons. Plaintiff's wrongful discharge claim was also=20 properly dismissed by the trial court because plaintiff failed to appeal t= he=20 final administrative decision to the circuit court within the 60-day time= =20 limitation provided by the APA. Affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09This summary also appears under Employment & Labor Law =09=09 =09=09Issues:? Age, gender, and race discrimination; Retaliation =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? Jones v. Wayne State Univ. =09=09e-Journal Number: 10195 =09=09Judge(s): Per Curiam =01) Bandstra, Zahra, and Meter=20 =09=09 =09=09Plaintiff=01,s claims of age, gender, and race discrimination were p= roperly=20 dismissed. Plaintiff, a 55-year old African-American female, alleged that= =20 her reassignment was motivated by defendant-employer=01,s administrators= =01, =20 desire to assemble a young, Caucasian male staff. Plaintiff alleged that a= =20 statement by defendant=01,s manager was direct evidence defendant discrimi= nated=20 against her based on age. However, at most, plaintiff=01,s testimony=20 established that defendant=01,s manager observed that the department was m= ade=20 up of young, inexperienced employees. Further, plaintiff=01,s subjective= =20 impressions of her reassignment as a dead-end job were insufficient to=20 establish a prima facie case of discrimination. Plaintiff=01,s discriminat= ory=20 replacement arguments based on gender and race failed because she was not= =20 replaced by a nonmember of the protected class. Summary disposition in=20 favor of the defendant was affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Constitutional Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09This summary also appears under Real Property =09=09 =09=09Issues: The constitutionality of the Opening of Private Roads and Te= mporary =20 Highways Act (the Private Roads Act (MCL 229.1 et seq.)); Whether the act= =20 authorizes a taking primarily benefiting a private rather than a public=20 purpose; Overruling Bieker v. Suttons Bay Twp. Supervisor and McKeighan v.= =20 Grass Lake Twp. Supervisor II =09=09Court: Michigan Supreme Court =09=09Case Name: Tolksdorf v. Griffith =09=09e-Journal Number: 10240 =09=09Judge(s): Kelly, Corrigan, Cavanagh, Weaver, Taylor, Young, Jr.; Not= =20 participating - Markman =09=09 =09=09The court struck down the Private Roads Act (allowing a private land= owner to=20 petition a township supervisor to open a private road across another=20 landowner's property) as providing for an unconstitutional taking under=20 art. 10, o 2 of the Michigan Constitution of 1963, because it authorizes = a=20 taking that primarily benefits a private rather than a public purpose.=20 Plaintiffs owned landlocked property and defendants owned a neighboring=20 parcel. Defendants refused plaintiffs' requests seeking a paved road acros= s=20 their parcel and an easement for utility lines. Plaintiffs sued requesting= a=20 writ of mandamus compelling the township supervisor to proceed under the= =20 act. The trial court ruled against plaintiffs and the Court of Appeals fou= nd=20 error in the refusal to issue the writ. The court concluded that since the= =20 act gives individuals a permanent and continuous right to pass over=20 another's property, it allowed a permanent physical occupation of private= =20 property by means of government action, and was a taking. The taking=20 authorized by the act appeared to merely be an attempt by a private entity= =20 to use the state's powers to acquire what it could not get through arms'= =20 length negotiations with defendants, and the primary benefit inured to the= =20 landlocked private owners, rather than the public. Reversed and the trial= =20 court's ruling for defendants was reinstated. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Construction Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09Issues:? Statute of limitations for civil claims brought under the M= ichigan =20 builder=01,s trust fund act; Accrual of civil claims under builder=01,s tr= ust fund=20 act =09=09Court:? Michigan Court of Appeals (Published) =09=09Case Name:? DiPonio Constr. Co., Inc. v. Rosati Masonry Co., Inc. =09=09e-Journal Number:? 10217 =09=09Judge(s):? Smolenski, Zahra, and Gage =09=09 =09=09In an issue of first impression, the court ruled that the six-year s= tatute=20 of limitations found in MCL 600.5813 applies to civil claims brought unde= r=20 the Michigan builder=01,s trust act therefore, the trial court erred in=20 dismissing plaintiff-subcontractor=01,s action on the basis it was time-ba= rred.=20 Applying analysis found in case precedent, the court concluded that when a= =20 statute itself does not provide a limitation period, a cause of action=20 arising from a statutory violation is subject to the six-year limitation= =20 period found in o 5813. Plaintiff=01,s claim accrued when defendants were = paid=20 on the project and defendants failed to pay plaintiff the amounts due on= =20 that project. Reversed. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09This summary also appears under Negligence & Intentional Tort =09=09 =09=09Issues:? Retained control over the construction project; Immunity un= der the =20 exclusive remedy provision of the WDCA; Reliance on the Supreme Court=01,s= =20 plurality opinion in Bitar v.Wakim; Expert=01,s testimony on the vibration= from=20 a bulldozer theory; Duty to warn =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? Piraine v. BDP Dev. =09=09e-Journal Number: 10192 =09=09Judge(s):? Per Curiam- Griffin, Holbrook, Jr., and Murphy =09=09 =09=09The court corrected a clerical error and ordered that the final para= graph of=20 the earlier opinion (see e-Journal # 10080 in the 5/3/01 edition) be=20 stricken and replaced with the following language: =01&The lower court=01,= s orders=20 denying summary disposition are affirmed and the matter is remanded for=20 further proceedings consistent with this opinion. We do not retain=20 jurisdiction.=018 The opinion remained the same in all other respects. The= =20 earlier release date was vacated.=20 =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Corrections =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09Issues:? Parole; Legitimate reasons for parole board to deny parole = to a=20 prisoner assessed with only an average probability of parole =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? Searles v. Parole Bd. =09=09e-Journal Number:? 10210 =09=09Judge(s):? Memorandum =01) Gage, Cavanagh, and Wilder =09=09 =09=09Defendant-parole board did not abuse its discretion in denying parol= e to=20 plaintiff, a prisoner assessed with only an average probability of parole,= =20 and the trial court erred in reversing the parole board=01,s decision. The= =20 parole board identified several legitimate reasons for denying plaintiff= =20 parole, including (1) the type of crime (CSC II), (2) the identity of the= =20 victim, (3) plaintiff=01,s unstable domestic and employment histories, and= (4)=20 her inability to follow rules, reflected in her misconduct record. The tri= al=20 court=01,s order was reversed and the parole board=01,s decision denying p= arole=20 was reinstated. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Criminal Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09Issues:? Sufficiency of evidence to support conviction of third-degr= ee=20 fleeing or eluding a police officer; Alleged police brutality =09=09Court: Michigan Court of Appeals (Unpublished)=20 =09=09Case Name:? People v. Buchanan =09=09e-Journal Number: 10198 =09=09Judge(s):? Per Curiam =01) Gage, Cavanagh, and Wilder =09=09 =09=09There was sufficient evidence to support defendant=01,s conviction o= f=20 third-degree fleeing or eluding a police officer. Defendant argued that th= e=20 evidence failed to show that he refused to obey a clear signal to stop his= =20 vehicle. The evidence showed that defendant continued to drive at a high= =20 rate of speed, even after a marked police vehicle activated its overhead= =20 lights, and that defendant only pulled into a parking lot because two poli= ce=20 vehicles blocked his path. The evidence also demonstrated that defendant w= as=20 driving with an unlawful blood alcohol level, had a suspended license, and= =20 was a parole absconder, which supported an inference that he was=20 intentionally trying to evade the police. Affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues: Whether the trial court's refusal to give the requested inst= ruction =20 on the lesser included offense of larceny from a person was harmless error= ;=20 The Carines/Olano plain error rule =09=09Court: Michigan Court of Appeals (Unpublished) =09=09Case Name: People v. Davidson =09=09e-Journal Number: 10187 =09=09Judge(s): Per Curiam - Holbrook, Jr. and McDonald; Dissent - Wilder =09=09 =09=09Since the erroneous unarmed robbery instructions seriously affected = the=20 fairness, integrity, or public reputation of judicial proceedings=20 independent of the defendant's innocence and the error was not harmless,= =20 defendant's conviction of two counts of unarmed robbery was reversed and= =20 the case remanded for a new trial. The prosecution conceded that the tria= l=20 court erred in refusing to give the requested instruction on the lesser=20 included offense of larceny from a person, but argued that the error had a= =20 negligible effect on the outcome of the case and was harmless. The court= =20 disagreed because the jury was improperly instructed on the crime of unarm= ed=20 robbery, the crime for which defendant was convicted, and specific intent.= =20 The court could not conclude that the jury's verdict would have been the= =20 same had it been given the proper instruction for unarmed robbery. The=20 court also concluded that the instructions given by the trial court=20 conflated the crime of unarmed robbery and accessory after the fact. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues:? Motion for a new trial; Whether complainant=01,s recanting = affidavit =20 was newly discovered evidence; Whether defendant demonstrated a miscarriag= e=20 of justice; Whether constitutional rights were violated; Waiver of trial b= y=20 jury =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? People v. Felder =09=09e-Journal Number: 10201 =09=09Judge(s):? Per Curiam =01) Hood, Doctoroff, and Kelly =09=09 =09=09Defendant=01,s motion for a new trial was properly denied because co= mplainant=01, s affidavit recanting her testimony was unreliable. The record relating t= o=20 the circumstances immediately preceding complainant=01,s recantation suppo= rted=20 the trial court=01,s finding that defendant engaged in inappropriate and= =20 harassing behavior toward complainant, which indicated that defendant=20 coerced the complainant=01,s recanting testimony. The record indicated tha= t=20 defendant contacted the complainant four times by telephone, followed her = in=20 her vehicle, confronted her in the presence of her children, and drove by= =20 her home. The complainant testified that she was afraid, that she agreed t= o=20 recant her trial testimony because she wanted no further contact with=20 defendant, and wanted him to stop harassing her. Defendant=01,s conviction= of=20 assault with a dangerous weapon was affirmed.=20 =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues: Whether defendant revoked his waiver of rights and unambiguo= usly =20 requested an attorney; Sufficiency of evidence to support convictions of= =20 second-degree murder and felony-firearm; Whether defendant had a=20 constitutional right to present witnesses at the preliminary examination =09=09Court: Michigan Court of Appeals (Unpublished) =09=09Case Name: People v. Harris =09=09e-Journal Number: 10202 =09=09Judge(s): Per Curiam - Gage, Cavanagh, and Wilder =09=09 =09=09Since conduct and silence do not constitute an assertion of the righ= t to=20 remain silent, the trial court did not err by admitting defendant's=20 statements made after he placed his hand over a question on the police=20 officer's statement form and told the officer, "don't write that". After= =20 being informed of his Miranda rights before questioning began, defendant= =20 chose to voluntarily answer questions. Defendant answered the first nine= =20 questions, however after initially answering the next question, he put his= =20 hand over the question on the form and asked the officer not to write down= =20 his response because it was untruthful. Defendant did not answer two more= =20 questions he was asked, then informed the officer he would not answer any= =20 more questions, and wanted an attorney. Defendant claimed that his act of= =20 placing his hand over the statement form and telling the officer not to = =20 write down his response constituted an assertion of the Fifth Amendment =20 right to remain silent and revoked his previous waiver of that right. The= =20 court disagreed because it was not until after the officer asked two=20 subsequent questions, that defendant verbally and unambiguously invoked hi= s=20 right to an attorney. Affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues: Sufficiency of evidence to convict of first-degree felony mu= rder =20 and felony-firearm; Failure to instruct on lesser included offenses; =20 Distinction between lesser included offense and a cognate lesser included= =20 offense; Prosecutorial misconduct; Jury instructions on stricken testimony= ;=20 Ineffective assistance of counsel =09=09Court: Michigan Court of Appeals (Unpublished) =09=09Case Name: People v. Williams =09=09e-Journal Number: 10193 =09=09Judge(s): Per Curiam - Kelly, Smolenski, and Meter =09=09 =09=09Even in the absence of direct evidence identifying defendant as the= =20 perpetrator, the circumstantial evidence and reasonable inferences from it= =20 were sufficient for the jury to conclude that defendant knew the victim's = =20 daily routine of leaving for work about 5:00 a.m., knew of the victim's =20 habit of carrying large sums of money, and thus shot and ultimately killed= =20 the victim while attempting to rob him. At 5:03 a.m., the victim's widow= =20 heard a gunshot, discovered her husband outside with a gunshot in the neck= ,=20 and that his wallet was missing. A neighbor saw defendant leave her house,= =20 where he lived, just before the shooting. Another neighbor saw defendant= =20 walking very fast down the street right after the shooting. A gunshot=20 residue test performed about three hours after the shooting revealed that= =20 defendant had residue on his hands and that the residue came from a gun=20 being fired. Affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Employment & Labor Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09This summary also appears under Family Law =09=09 =09=09Issues:? Whether certain categories of payments made by defendant to= its =20 employees constituted =01&earnings=018 within the meaning of the Federal C= onsumer=20 Credit Protection Act (CCPA); Support and Parenting Time Enforcement Act= =20 (SPTEA) =09=09Court:? Michigan Supreme Court =09=09Case Name:? Genesee County Friend of the Court v. General Motors Co= rp. =09=09e-Journal Number: 10241 =09=09Judge(s):? Per Curiam =01) Corrigan, Cavanagh, Weaver, Kelly, Taylor= , Young,=20 Jr., and Markman=20 =09=09 =09=09The court held that all categories of payments (profit-sharing, reco= gnition =20 awards, and signing bonuses) made by defendant to its employees constitute= d=20 =01&earnings=018 within the meaning of CCPA and are subject to a limitatio= n on the=20 amount that may be captured by income withholding orders under SPTEA. The= =20 lower courts held that profit-sharing payments and recognition awards were= =20 not earnings, but that signing bonus payments were. After receiving the=20 income withholding orders, defendant paid to the Friend of the Court 50% o= f=20 the disposable earnings because it believed that the category of payments = at=20 issue were subject to the federal percentage limits on garnishment. The=20 judgments of the Court of Appeals and the circuit court were reversed in= =20 part, and remanded. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks=20 =09=09 =09=09This summary also appears under Civil Rights =09=09 =09=09Issues:? Whether an alleged adverse employment action against an emp= loyee =20 on the basis of her former intimate relationship with her supervisor =20 presented a cognizable claim of sex discrimination under the CRA; Quid pro= =20 quo sexual harassment; Hostile work environment; Respondeat superior; Sex= =20 discrimination; Breach of contract; Intentional infliction of emotional=20 distress =09=09Court:? Michigan Court of Appeals (Published) =09=09Case Name:? Corley v. Detroit Bd. of Educ.=20 =09=09e-Journal Number: 10218 =09=09Judge(s):? Neff, Holbrook, Jr., and Jansen =09=09 =09=09In an issue of first impression regarding whether alleged adverse=20 employment action against an employee on the basis of her former intimate= =20 relationship with her supervisor presents a cognizable claim of sex=20 discrimination under the CRA, the court held that it does. Therefore,=20 summary disposition of plaintiff=01,s sexual harassment claim in favor of= =20 defendants was improper. Plaintiff alleged that she was subjected to a=20 hostile work environment, sexual harassment, disparate treatment, and=20 unlawful termination because of her sex and her prior relationship with=20 defendant-Smith. Plaintiff established sufficient facts to survive a motio= n=20 for summary disposition under either quid pro quo sexual harassment or=20 hostile work environment. Affirmed in part, reversed in part, and remanded= . =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09This summary also appears under Civil Rights =09=09 =09=09Issues: Alleged discrimination based on race and marital status; The= CRA=20 statute of limitations; Wrongful discharge; Failure to timely initiate an= =20 appeal of an administrative agency's final decision to the circuit court;= =20 Constitutional issues not within the agency's jurisdiction may be raised i= n=20 the circuit court through the Administrative Procedures Act (APA) review= =20 procedure =09=09Court: Michigan Court of Appeals (Published) =09=09Case Name: Womack-Scott v. Department of Corrections =09=09e-Journal Number: 10219 =09=09Judge(s): Per Curiam - Doctoroff, Hoekstra, and Markey =09=09 =09=09Since the plaintiff-former employee failed to bring her CRA claims w= ithin=20 three years of the date of her initial discharge for violation of one of= =20 defendant's work rules, the trial court properly granted summary=20 disposition to defendant. Plaintiff argued that the trial court used the= =20 wrong date when calculating the limitation period and should have used th= e=20 last day she was employed by defendant. Although plaintiff was technically= =20 reinstated for a period of time as a result of administrative decisions an= d=20 again discharged, the court disagreed that the second and final discharge= =20 should apply for purposes of calculating the limitations period.=20 Accordingly, plaintiff's race and marital status discrimination claims=20 accrued on the date of her initial discharge that was for allegedly=20 discriminatory reasons. Plaintiff's wrongful discharge claim was also=20 properly dismissed by the trial court because plaintiff failed to appeal t= he=20 final administrative decision to the circuit court within the 60-day time= =20 limitation provided by the APA. Affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09This summary also appears under Civil Rights =09=09 =09=09Issues:? Age, gender, and race discrimination; Retaliation =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? Jones v. Wayne State Univ. =09=09e-Journal Number: 10195 =09=09Judge(s): Per Curiam =01) Bandstra, Zahra, and Meter=20 =09=09 =09=09Plaintiff=01,s claims of age, gender, and race discrimination were p= roperly=20 dismissed. Plaintiff, a 55-year old African-American female, alleged that= =20 her reassignment was motivated by defendant-employer=01,s administrators= =01, =20 desire to assemble a young, Caucasian male staff. Plaintiff alleged that a= =20 statement by defendant=01,s manager was direct evidence defendant discrimi= nated=20 against her based on age. However, at most, plaintiff=01,s testimony=20 established that defendant=01,s manager observed that the department was m= ade=20 up of young, inexperienced employees. Further, plaintiff=01,s subjective= =20 impressions of her reassignment as a dead-end job were insufficient to=20 establish a prima facie case of discrimination. Plaintiff=01,s discriminat= ory=20 replacement arguments based on gender and race failed because she was not= =20 replaced by a nonmember of the protected class. Summary disposition in=20 favor of the defendant was affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09This summary also appears under Litigation =09=09 =09=09Issues: Whether the trial court erred in affirming the arbitration a= ward =20 because the arbitrators? exceeded their authority; Whether defendants =20 breached the employment agreement (EA); Interpretation of the EA and relat= ed=20 documents; Whether the trial court erred in refusing to award statutory=20 interest from the date of the arbitration award; Whether plaintiffs were= =20 entitled to 12% interest because the arbitration award was rendered on a= =20 written instrument; Economic development commission (EDC) =09=09Court: Michigan Court of Appeals (Unpublished) =09=09Case Name: Young v. Sault Ste. Marie Tribe of Chippewa Indians =09=09e-Journal Number: 10190 =09=09Judge(s): Per Curiam - Collins, Jansen, and White =09=09 =09=09The arbitrators did not exceed their authority when they issued the= =20 arbitration award against the defendant-tribe EDC for breach of plaintiff'= s =20 EA, therefore the trial court did not err in confirming the award. =20 Defendants argued that the joint venture master agreement, which was signe= d=20 by the tribe EDC, contained an arbitration provision and a waiver of=20 sovereign immunity, but contended that the arbitrators did not have=20 authority to decide whether the tribe EDC breached the EA because the trib= e=20 EDC did not sign the EA and was not a party to it. The court concluded tha= t=20 when the various documents, which referred to each other, were read togeth= er=20 the parties intended that the documents be construed as one agreement.=20 Accordingly, a breach of the EA constituted a breach of the joint venture= =20 master agreement, the claim was subject to arbitration, and the tribe EDC = =20 could be held liable for the breach. Affirmed, but remanded for modificati= on=20 of the judgment to include post-arbitration award interest at 12%. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Family Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09This summary also appears under Employment & Labor Law =09=09 =09=09Issues:? Whether certain categories of payments made by defendant to= its =20 employees constituted =01&earnings=018 within the meaning of the Federal C= onsumer=20 Credit Protection Act (CCPA); Support and Parenting Time Enforcement Act= =20 (SPTEA) =09=09Court:? Michigan Supreme Court =09=09Case Name:? Genesee County Friend of the Court v. General Motors Co= rp. =09=09e-Journal Number: 10241 =09=09Judge(s):? Per Curiam =01) Corrigan, Cavanagh, Weaver, Kelly, Taylor= , Young,=20 Jr., and Markman=20 =09=09 =09=09The court held that all categories of payments (profit-sharing, reco= gnition =20 awards, and signing bonuses) made by defendant to its employees constitute= d=20 =01&earnings=018 within the meaning of CCPA and are subject to a limitatio= n on the=20 amount that may be captured by income withholding orders under SPTEA. The= =20 lower courts held that profit-sharing payments and recognition awards were= =20 not earnings, but that signing bonus payments were. After receiving the=20 income withholding orders, defendant paid to the Friend of the Court 50% o= f=20 the disposable earnings because it believed that the category of payments = at=20 issue were subject to the federal percentage limits on garnishment. The=20 judgments of the Court of Appeals and the circuit court were reversed in= =20 part, and remanded. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues:? Divorce; Judicial review of property division award rendere= d =20 pursuant to binding arbitration; Alimony in gross as property division; =20 Arbitration award providing that if sum certain awarded to spouse is not= =20 paid it shall be considered spousal support and nondischargeable in=20 bankruptcy; Arbitrator=01,s factual findings; Whether arbitrator violated= =20 Michigan law =09=09Court:? Michigan Court of Appeals (Published) =09=09Case Name:? Krist v. Krist =09=09e-Journal Number:? 10220 =09=09Judge(s):? Per Curiam =01) Hood, Doctoroff, and Kelly =09=09 =09=09Defendant-spouse did not satisfy the exacting =01&manifest disregard= of the=20 law=018 standard required for judicial intervention in a property division= =20 award issued after binding arbitration and incorporated into the parties= =01, =20 divorce judgment. Defendant argued that the arbitration decision contained= =20 an award of spousal support in contravention of the settlement agreement.= =20 The offending paragraph in the award actually provided for a lump sum=20 payment, or alimony in gross, which was in the nature of the division of= =20 property and was completely consistent with the parties=01, binding arbitr= ation=20 and settlement agreement. The court also found no error with the arbitrato= r=01, s provision that if the sum certain awarded to plaintiff was not paid, tha= t=20 amount would be considered spousal support and nondischargeable in=20 bankruptcy. The language employed in the award was a mechanism to frustrat= e =20 any attempt by defendant to circumvent the property division by filing for= =20 bankruptcy and discharging the obligation owed to plaintiff. Affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues:? Divorce; Marital assets; Whether the trial court invaded=20 defendant's separate property; Pre-marital agreement; Spousal support;=20 Whether plaintiff's first husband should share in the burden of the spousa= l =20 support award =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? Cowen v. Cowen =09=09e-Journal Number: 10204 =09=09Judge(s):? Per Curiam =01) Wilder, Cavanagh, Hood =09=09 =09=09The trial court properly held that the parties=01, home and Florida = condominium=20 were part of the marital estate. It was undisputed that both the home and= =20 condominium were purchased after the parties married. Defendant testified= =20 that plaintiff was a joint owner of the marital home and that he intended= =20 the condominium to be owed jointly between them, which showed that defenda= nt=20 intended that plaintiff be the joint owner of the properties. By adding=20 plaintiff=01,s name to each deed of title, defendant willingly included bo= th=20 properties in the marital estate, therefore whether plaintiff helped=20 acquire, improve, or accumulate the property was irrelevant. Affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues: Termination of parental rights; Alleged denial of right to j= ury =20 trial =09=09Court: Michigan Court of Appeals (Unpublished) =09=09Case Name: In re Curry =09=09e-Journal Number: 10212 =09=09Judge(s): Memorandum - McDonald, Smolenski, and Kelly =09=09 =09=09Since the respondent-father had notice of the proceedings but chose = to=20 remain uninvolved until after the adjudication, and waited until the=20 termination hearing to request a jury, the trial court did not err in=20 denying his request for a jury trial. The trial court's order terminating= =20 respondent's parental rights was affirmed. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues: Termination of parental rights; Whether release of parental = rights=20 should be revoked; Failure to petition the family court to revoke release =09=09Court: Michigan Court of Appeals (Unpublished) =09=09Case Name: In re Kelly =09=09e-Journal Number: 10211 =09=09Judge(s): Memorandum - McDonald, Smolenski, and Kelly =09=09 =09=09Since the respondent-mother failed to petition the family court to r= evoke=20 her release of parental rights, the issue was not properly before the cour= t.=20 The court affirmed the family court's order terminating respondent's=20 parental rights to one of the children following her voluntary release of= =20 parental rights pursuant to MCL 710.29. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Litigation =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09This summary also appears under Negligence & Intentional Tort =09=09 =09=09Issues:? Alleged negligence by violating state and local law in prov= iding =20 alcohol to minors; Jury instruction regarding the impairment defense; =20 Failure to strike plaintiff=01,s testimony regarding her percentage of fau= lt;=20 Failing to cure the violation of plaintiff=01,s substantial rights when de= fense=20 counsel improperly referred to a fee agreement and improperly elicited=20 testimony from police officers that had been excluded =09=09Court:? Michigan Court of Appeals (Published) =09=09Case Name:? Piccalo v. Nix =09=09e-Journal Number: 10215 =09=09Judge(s):? Hood and McDonald; Dissent =01) Zahra =09=09 =09=09The trial court erred in instructing the jury regarding the impairme= nt =20 defense because it would be absurd to allow the defense of impairment to a= n=20 individual who caused or created the impairment of the injured person. Due= =20 to the cumulative effect of errors regarding the trial court=01,s rulings = there=20 was cumulative prejudice. Plaintiff, a passenger in a van where there were= =20 only two seats, laid or sat in the back of the van and was injured by tire= s=20 inside the van, when the driver, an underage drinker, who was served alcoh= ol=20 at defendant=01,s home, failed to manipulate a slight curve in the gravel = road=20 and drove the van into a tree. The case was reversed and remanded for a ne= w =20 trial.=20 =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks=20 =09=09 =09=09This summary also appears under Employment & Labor Law =09=09 =09=09Issues: Whether the trial court erred in affirming the arbitration a= ward =20 because the arbitrators? exceeded their authority; Whether defendants =20 breached the employment agreement (EA); Interpretation of the EA and relat= ed=20 documents; Whether the trial court erred in refusing to award statutory=20 interest from the date of the arbitration award; Whether plaintiffs were= =20 entitled to 12% interest because the arbitration award was rendered on a= =20 written instrument; Economic development commission (EDC) =09=09Court: Michigan Court of Appeals (Unpublished) =09=09Case Name: Young v. Sault Ste. Marie Tribe of Chippewa Indians =09=09e-Journal Number: 10190 =09=09Judge(s): Per Curiam - Collins, Jansen, and White =09=09 =09=09The arbitrators did not exceed their authority when they issued the= =20 arbitration award against the defendant-tribe EDC for breach of plaintiff'= s =20 EA, therefore the trial court did not err in confirming the award. =20 Defendants argued that the joint venture master agreement, which was signe= d=20 by the tribe EDC, contained an arbitration provision and a waiver of=20 sovereign immunity, but contended that the arbitrators did not have=20 authority to decide whether the tribe EDC breached the EA because the trib= e=20 EDC did not sign the EA and was not a party to it. The court concluded tha= t=20 when the various documents, which referred to each other, were read togeth= er=20 the parties intended that the documents be construed as one agreement.=20 Accordingly, a breach of the EA constituted a breach of the joint venture= =20 master agreement, the claim was subject to arbitration, and the tribe EDC = =20 could be held liable for the breach. Affirmed, but remanded for modificati= on=20 of the judgment to include post-arbitration award interest at 12%. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Municipal =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09This summary also appears under Real Property =09=09 =09=09Issues: Circuit court order compelling city to approve site plan for= a fast=20 food restaurant; Writ of mandamus; Superintending control; Decision=20 involving discretionary authority; Decision based on competent, material,= =20 and substantial evidence; Insufficient stacking spaces to support=20 drive-through windows; Traffic study report; Absence of clear right to leg= al=20 performance =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? Kanakry v. City of St. Clair Shores =09=09e-Journal Number:? 10194 =09=09Judge(s):? Per Curiam =01) Hood, Doctoroff, and Kelly =09=09 =09=09The court could not uphold the trial court=01,s order compelling def= endants to=20 approve plaintiffs-property owners=01, site plan for a McDonald=01,s resta= urant =20 because the decision to deny approval of the plan involved discretionary = =20 authority and was supported by competent, material, and substantial =20 evidence. The trial court erred by issuing a writ of mandamus instead of a= n=20 order for superintending control, but this was not the basis for reversal.= =20 Plaintiffs=01, site plan only provided for 9 stacking spaces, but 14 were= =20 required for plaintiffs to have two drive-through windows. This=20 nonconformance with the zoning ordinance alone was sufficient for defendan= ts=20 to deny the site plan. Defendants also found that the deficient number of= =20 stacking spaces would create a traffic hazard and cause an unduly harmful= =20 impact on the city as a whole. Reversed and remanded. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Negligence & Intentional Tort =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09Issues:? Premises liability; Whether the volunteer doctrine barred p= laintiff=01, s premises liability action =09=09Court:? Michigan Supreme Court =09=09Case Name:? James v. Albert =09=09e-Journal Number: 10239 =09=09Judge(s):? Taylor, Corrigan, Cavanagh, Weaver, Kelly, Young, Jr., an= d=20 Markman =20 =09=09 =09=09The court abolished the volunteer doctrine and agreed, but for diffe= rent =20 reasons, with the Court of Appeals that this doctrine did not bar plaintif= f=01, s claim, and affirmed reversal of the trial court=01,s grant of summary=20 disposition for defendant. The court returned this area of the law to=20 traditional agency and tort principles, because it believed that they will= =20 better resolve the matters to which the doctrine might have applied.=20 Plaintiff incurred injuries while assisting defendant in digging a trench = on=20 defendant=01,s property. The parties disagreed about whether defendant inv= ited=20 plaintiff to assist him in digging the trench. Affirmed, and remanded. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks=20 =09=09 =09=09This summary also appears under Litigation=20 =09=09 =09=09Issues:? Alleged negligence by violating state and local law in prov= iding =20 alcohol to minors; Jury instruction regarding the impairment defense; =20 Failure to strike plaintiff=01,s testimony regarding her percentage of fau= lt;=20 Failing to cure the violation of plaintiff=01,s substantial rights when de= fense=20 counsel improperly referred to a fee agreement and improperly elicited=20 testimony from police officers that had been excluded =09=09Court:? Michigan Court of Appeals (Published) =09=09Case Name:? Piccalo v. Nix =09=09e-Journal Number: 10215 =09=09Judge(s):? Hood and McDonald; Dissent =01) Zahra =09=09 =09=09The trial court erred in instructing the jury regarding the impairme= nt =20 defense because it would be absurd to allow the defense of impairment to a= n=20 individual who caused or created the impairment of the injured person. Due= =20 to the cumulative effect of errors regarding the trial court=01,s rulings = there=20 was cumulative prejudice. Plaintiff, a passenger in a van where there were= =20 only two seats, laid or sat in the back of the van and was injured by tire= s=20 inside the van, when the driver, an underage drinker, who was served alcoh= ol=20 at defendant=01,s home, failed to manipulate a slight curve in the gravel = road=20 and drove the van into a tree. The case was reversed and remanded for a ne= w =20 trial.=20 =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues:? Premises liability; Whether plaintiff=01,s premises liabili= ty action =20 was preempted by the dramshop act; Instructing jury with both SJI2d 19.03= =20 and SJI2d 19.05; Additur; Application of collateral source rule; Offset fo= r=20 payment by a codefendant insurer =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? Mann v. Shusteric Enters., Inc. =09=09e-Journal Number:? 10188 =09=09Judge(s):? Per Curiam =01) Kelly, White, and Wilder =09=09 =09=09Plaintiff=01,s premises liability action against defendant for injur= ies=20 sustained in a slip and fall in the parking lot of defendant=01,s bar was = not =20 preempted by the dramshop act. Defendant=01,s service of alcohol was only= =20 implicated as it related to defendant=01,s knowledge of plaintiff=01,s con= dition=20 and whether defendant=01,s conduct in failing to inspect or clear the park= ing=20 lot and failing to warn plaintiff was reasonable. The trial court did not= =20 err in instructing the jury with both the general duty to business invitee= =20 instruction and the duty regarding natural accumulation of ice and snow=20 instruction, because the instructions are not inconsistent. The jury=01,s= =20 verdict, denying all noneconomic damages, was inadequate because the jury= =20 ignored an entire category of damages for which plaintiff produced=20 uncontroverted evidence. The trial court abused its discretion in denying= =20 plaintiff=01,s motion for additur. Affirmed in part, reversed in part, and= =20 remanded. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09This summary also appears under Construction Law =09=09 =09=09Issues:? Retained control over the construction project; Immunity un= der the =20 exclusive remedy provision of the WDCA; Reliance on the Supreme Court=01,s= =20 plurality opinion in Bitar v.Wakim; Expert=01,s testimony on the vibration= from=20 a bulldozer theory; Duty to warn =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? Piraine v. BDP Dev. =09=09e-Journal Number: 10192 =09=09Judge(s):? Per Curiam- Griffin, Holbrook, Jr., and Murphy =09=09 =09=09The court corrected a clerical error and ordered that the final para= graph of=20 the earlier opinion (see e-Journal # 10080 in the 5/3/01 edition) be=20 stricken and replaced with the following language: =01&The lower court=01,= s orders=20 denying summary disposition are affirmed and the matter is remanded for=20 further proceedings consistent with this opinion. We do not retain=20 jurisdiction.=018 The opinion remained the same in all other respects. The= =20 earlier release date was vacated.=20 =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Real Property =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Back to Quicklinks =09=09 =09=09This summary also appears under Constitutional Law =09=09 =09=09Issues: The constitutionality of the Opening of Private Roads and Te= mporary =20 Highways Act (the Private Roads Act (MCL 229.1 et seq.)); Whether the act= =20 authorizes a taking primarily benefiting a private rather than a public=20 purpose; Overruling Bieker v. Suttons Bay Twp. Supervisor and McKeighan v.= =20 Grass Lake Twp. Supervisor II =09=09Court: Michigan Supreme Court =09=09Case Name: Tolksdorf v. Griffith =09=09e-Journal Number: 10240 =09=09Judge(s): Kelly, Corrigan, Cavanagh, Weaver, Taylor, Young, Jr.; Not= =20 participating - Markman =09=09 =09=09The court struck down the Private Roads Act (allowing a private land= owner to=20 petition a township supervisor to open a private road across another=20 landowner's property) as providing for an unconstitutional taking under=20 art. 10, o 2 of the Michigan Constitution of 1963, because it authorizes = a=20 taking that primarily benefits a private rather than a public purpose.=20 Plaintiffs owned landlocked property and defendants owned a neighboring=20 parcel. Defendants refused plaintiffs' requests seeking a paved road acros= s=20 their parcel and an easement for utility lines. Plaintiffs sued requesting= a=20 writ of mandamus compelling the township supervisor to proceed under the= =20 act. The trial court ruled against plaintiffs and the Court of Appeals fou= nd=20 error in the refusal to issue the writ. The court concluded that since the= =20 act gives individuals a permanent and continuous right to pass over=20 another's property, it allowed a permanent physical occupation of private= =20 property by means of government action, and was a taking. The taking=20 authorized by the act appeared to merely be an attempt by a private entity= =20 to use the state's powers to acquire what it could not get through arms'= =20 length negotiations with defendants, and the primary benefit inured to the= =20 landlocked private owners, rather than the public. Reversed and the trial= =20 court's ruling for defendants was reinstated. =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09Issues: Whether plaintiff's prior recorded judgment lien had priorit= y over=20 defendants' subsequent mortgage interest =09=09Court: Michigan Court of Appeals (Published) =09=09Case Name: Graves v. American Acceptance Mortgage Corp. =09=09e-Journal Number: 10216 =09=09Judge(s): Gage, Sawyer, and Jansen =09=09 =09=09Since the subsequent mortgage constituted a purchase money mortgage,= which=20 takes priority over earlier creditors' interests even though the earlier= =20 interest was duly recorded, the trial court erred in concluding that=20 plaintiff's earlier recorded judgment lien had priority over defendants'= =20 mortgage interest. The divorce judgment granted plaintiff a lien on the=20 property to the extent of Diaz' (her ex-husband) then existing equitable = =20 title interest in the property as the land contract vendee. The mortgage= =20 Diaz granted American Acceptance constituted a purchase money mortgage=20 because Diaz, who had defaulted on the land contract payments, utilized th= e=20 mortgage proceeds to obtain legal title to the property by paying off the= =20 land contract vendors. Accordingly, notwithstanding that plaintiff filed h= er=20 judgment lien before the execution of the Diaz mortgage, the purchase mone= y=20 mortgage by which Diaz secured legal title to the property, had priority= =20 over plaintiff's judgment lien which arose against Diaz prior to his=20 acquisition of title to the real estate. The trial court failed to accord= =20 defendants' purchase money mortgage interest the priority to which it was= =20 entitled by law. Reversed and remanded.=20 =09=09 =09=09Full Text Opinion =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09This summary also appears under Municipal =09=09 =09=09Issues: Circuit court order compelling city to approve site plan for= a fast=20 food restaurant; Writ of mandamus; Superintending control; Decision=20 involving discretionary authority; Decision based on competent, material,= =20 and substantial evidence; Insufficient stacking spaces to support=20 drive-through windows; Traffic study report; Absence of clear right to leg= al=20 performance =09=09Court:? Michigan Court of Appeals (Unpublished) =09=09Case Name:? Kanakry v. City of St. Clair Shores =09=09e-Journal Number:? 10194 =09=09Judge(s):? Per Curiam =01) Hood, Doctoroff, and Kelly =09=09 =09=09The court could not uphold the trial court=01,s order compelling def= endants to=20 approve plaintiffs-property owners=01, site plan for a McDonald=01,s resta= urant =20 because the decision to deny approval of the plan involved discretionary = =20 authority and was supported by competent, material, and substantial =20 evidence. The trial court erred by issuing a writ of mandamus instead of a= n=20 order for superintending control, but this was not the basis for reversal.= =20 Plaintiffs=01, site plan only provided for 9 stacking spaces, but 14 were= =20 required for plaintiffs to have two drive-through windows. This=20 nonconformance with the zoning ordinance alone was sufficient for defendan= ts=20 to deny the site plan. Defendants also found that the deficient number of= =20 stacking spaces would create a traffic hazard and cause an unduly harmful= =20 impact on the city as a whole. Reversed and remanded. =09=09 =09=09Full Text Opinion =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09fields of practice listings =09=09 =09=09 =09=09 =09=09 =09=09 =09=09ADR/Arbitration/Mediation =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09ASHER N. TILCHIN, a member of the American College of Civil Trial M= ediators=20 and Michigan Arbitration and Mediation Association provides mediation for= =20 pre, early, and matured lawsuits. He has been a successful mediator since = =20 1991. Tilchin also provides arbitration services as a single or multi-pane= l=20 arbitrator. Cases involving construction, real estate, commercial=20 transactions, and legal malpractice invited. Asher N. Tilchin, 31731=20 Northwestern Hwy., Suite 106, Farmington Hills, MI 48334, (248)855-0995 or= =20 Fax (248) 855-0850, e-mail antilchin@aol.com =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Administrative Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09JAMES R. VIVENTI, James R Viventi PLLC, 3670 Powderhorn Drive, Okemo= s, MI=20 48864-5924, Phone: (517) 381-0670, FAX: (517) 381-0671.=20 =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Adoption =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09MONICA FARRIS LINKNER, Sommers, Schwartz, Silver & Schwartz, PC, 200= 0 Town=20 Center, Suite 900, Southfield, MI 48075-1100, Phone: (248) 746-4011, FAX:= =20 (248) 936-1976, e-mail: mlinkner@s4online.com. =20 =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Alternative Dispute Resolution =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09DONNA CRAIG, Donna Craig & Associates PLC, 999 Haynes Street, Suite = 245,=20 Birmingham, MI 48009, Phone: (248) 682-7750, FAX: (248) 682-2376, e-mail:= =20 craigassoc@earthlink.net. Visit www.adr-resource.com =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Antitrust/Advertising/Trade Regulation =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09DAVID G. CHARDAVOYNE specializes in the regulation of business comp= etition,=20 including: antitrust law, unfair competition, and the regulation of=20 advertising, labeling, and other trade practices. Former Chairperson of=20 State Bar antitrust and trade regulation section, more than 15 years'=20 experience in this field. Will consult regarding antitrust issues=20 (monopolies, mergers, price fixing, exclusive dealing, tying arrangements,= =20 price discrimination, dealer termination, market allocation); premerger = =20 notice filings under Hart-Scott-Rodino Act; discussions with State and=20 Federal regulatory agencies (FTC, Justice Department, Attorney General);= =20 compliance with laws regulating advertising (substantiation of claims,=20 product labels, consumer price displays); and all other matters relating t= o=20 business competition. David G. Chardavoyne, 26755 La Muera Ave., Farmingto= n=20 Hills, MI 48334-4613, (248) 477-6308, e-mail chardavoyne@aol.com =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Appeals =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09LAURIE S. LONGO, 214 South Main, Suite 210, Ann Arbor, MI 48104-2122= , Phone:=20 (734) 913-5619, e-mail: 42203@msn.com. Visit http://michiganappeals.com. = =20 =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Appellate Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09SAFFORD & BAKER, PLLC, 40900 Woodward Avenue, Suite 110, Bloomfield = Hills,=20 MI 48304, Phone: (248) 646-9100, FAX: (248) 646-9102. Visit =20 www.saffordbaker.com =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Automobile Warranty Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09LIBLANG & ASSOCIATES: Specializing in "Lemon Law", UCC, Magnuson-Mo= ss,=20 Odometer Fraud and Consumer Protection Act. Available for trials,=20 consultations or referrals. Cases accepted statewide. Over 17 years and=20 5,000 cases. Michigan's most experienced lemon law attorneys, Dani K. =20 Liblang and Scott J. Sinkwitts. Please call (248) 540-9270 or e-mail =20 NoLemons@aol.com=20 =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Business & Taxation =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09LAW OFFICES OF RALPH W. PEZDA. Oakland County practitioner with an = LL.M.=20 degree in taxation from New York University will assist your clients or fi= rm=20 with taxation, business, interdisciplinary, and white collar criminal=20 matters. Referrals paid. 27700 Northwestern Hwy., Suite 411, Southfield, = MI=20 48034. (248) 352-5632. E-mail address: rwp@cdlcorp.com =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Construction Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09JOHN V. TOCCO, attorney, construction engineer, and civil engineeri= ng=20 professor, with over twenty years experience in the construction industry,= =20 provides mediation and arbitration services for all construction matters.= =20 Also provides litigation support and claims analysis. Cases accepted=20 statewide. Call (313) 406-2040 for CV, or review Profile at=20 www.johntocco.com E-mail john@johntocco.com =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Copyrights =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09CAROL R. SHEPHERD, Arborlaw Associates, PLLC, 320 S Main St, PO Box = 8403,=20 Ann Arbor, MI 48107-8403, Phone: (734) 668-4646, FAX: (734) 822-4646,=20 e-mail: shepherd@arborlaw.com. =20 =09=09 =09=09Back to Quicklinks =20 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09Criminal Law =09=09 =09=09 =09=09 =09=09 =09=09 =09=09 =09=09F. RANDALL KARFONTA, Attorney @ Law, 113 North Main, PO Box 565, Lel= and, MI=20 49654, Phone: (231) 256-2200. Visit http://www.leelanau.com or=20 http://www.leelanau.com/professional/karfonta. =20 =09=09 =09=09Back to Quicklinks
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