One Court of Justice

While Fred and Janet were married, they acquired two properties as tenants by the entirety. A tenancy by the entirety is a type of concurrent estate, unique to married couples, that includes the right of survivorship.  Although the probate court found that Frank was not a “surviving spouse” under the Estates and Protected Individuals Code (EPIC), MCL 700.2081(2)(e)(i), which states that a surviving spouse will not be treated as surviving the decedent if a breakdown in marriage is shown, the probate court determined that the statute does not destroy a tenancy by the entirety.  Thus, upon Janet’s death, the properties passed to Frank in fee simple absolute.  The personal representative of Janet’s estate brought this action to seek contribution from Frank for the expenses Janet incurred in maintaining the properties prior to her death.  The probate court granted Frank summary distribution on the estate’s contribution claim, and the Court of Appeals affirmed.  In a 4-3 opinion, the Michigan Supreme Court reversed.

In an issue of first impression, the Michigan Supreme Court held that the equitable doctrine of contribution can be applied between co-tenants by the entirety outside the context of a divorce or separate maintenance proceeding.  In an opinion authored by Justice Markman, and joined by Chief Justice Kelly, and Justices Cavanagh and Corrigan, the majority concluded that Frank had been unjustly enriched because he enjoyed sole ownership of the properties as a result of Janet’s maintenance payments, because they otherwise would have been subject to foreclosure. The majority concluded that the equitable doctrine of contribution could be applied in this context, given Frank’s willful absence in the 18 months prior to Janet’s death, the fact that Janet disinherited Frank and attempted to divest him of his interest in the properties, and the finding that Frank was not deemed a “surviving spouse” under EPIC. Read more »

On July 15, 2010, the Michigan Supreme Court issued a landmark opinion in Kyser v. Kasson Township, No. 136680, with dramatic economic implications for Michigan’s mining and construction industries.  Justice Markman, joined by Justices Corrigan, Hathaway, and Young, delivered the opinion of the Court, overturning its 1982-decision in Silva v. Ada Township, 416 Mich 153; 330 NW2d 663 (1982).  In Silva, the Court had recognized a long-standing rule that zoning ordinances that prevent mining are unreasonable unless “very serious consequences” would otherwise result.  In Kyser, the majority holds that this rule was not a constitutional requirement and was, in fact, unconstitutional as it violated separation of powers.  Moreover, the Court holds that this rule had been superseded by the exclusionary zoning provision in MCL 125.297a of the Township Zoning Act of 1979, now the Zoning Enabling Act.  Chief Justice Kelly, joined by Justice Cavanagh, dissented.  Justice Weaver recused herself due to her longstanding relationship with Kasson Township’s supervisor.

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In D’Andrea v. AT&T, No. 288483, defendant AT&T possessed a six-foot “Easement for Public Utilities” at the back of plaintiffs’ lot.  In the 1970s, AT&T installed a “crossbox cabinet” on the easement.  In 2005, AT&T replaced that cabinet with a new one, and also added additional cabinets, both above and beneath the ground.  The cabinets were placed on a concrete slab surrounded by bushes, and AT&T declined plaintiffs’ request to move the cabinets off of Plaintiffs’ property.  All of these items were within the easement’s boundaries, but plaintiffs complained that the new cabinets materially increased the burden on their property, because the new cabinets were bigger, reduced plaintiffs’ useable backyard area by almost half, and diminished the market value of the property.  The trial court granted summary disposition to AT&T.

The Court of Appeals reversed, holding that a fact finder could determine that AT&T’s activities went beyond the reasonable exercise of the use granted by the easement, even if those activities were confined entirely to the easement.   In reaching that conclusion, the Court rejected AT&T’s argument that the Land Division Act was relevant to the inquiry, and also rejected AT&T’s reliance on the fact that the local city and county authorities issued building permits for the cabinets.  The case was remanded for further proceedings.

In Shepherd Montessori Center Milan v. Ann Arbor Charter Township, the Michigan Supreme Court rejected a religious entity’s equal-protection challenge to the denial of a zoning variance because the religious entity failed to demonstrate disparate treatment of similarly situated entities based on religion.  Accordingly, the Court reversed the decision of the Court of Appeals and reinstated summary disposition in favor of the defendants.  Justice Hathaway wrote the unanimous decision for the Court. Read more »

In 1972, the creators of a subdivision in Hillsdale, Michigan, adopted covenants that restricted all structures in the subdivision to residential use.  The covenants had a 25-year duration, “after which time said covenants shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the then owners of the lots had been recorded, agreeing to change said covenants in whole or in part.”  Defendants began operating a hair salon in their home in 2007 and, when Plaintiffs complained, persuaded a majority of their neighbors to sign an amendment to the covenant—in the middle of a 10-year renewal period—allowing for certain home-based businesses, including hair salons.  The trial court granted summary disposition to Defendants on Plaintiffs’ claims for declaratory and injunctive relief, but the Court of Appeals reversed, holding that the plain language of the renewal provision indicated that the 10-year period was a “restriction as to the frequency of amendment by less than a unanimous vote.”  Because the amendment was by less than unanimous vote, it could not take effect until the end of the 10-year extension period, i.e., in 2017.  Accordingly, Plaintiffs were entitled to summary disposition.  The case is Brown v. Martin, No. 289030.

Robert Porter, seeking title to property previously owned by his deceased mother, brought a lawsuit against defendants who claimed to have received a quitclaim deed from Porter’s mother.  Porter filed the suit in his own name, rather than as a representative of the estate of his mother, and the defendants responded by moving for summary disposition because he was not a real party in interest.  While the trial court agreed with the defendants, it granted him leave to amend his complaint, rather than dismissing it.  But when Porter filed the amended complaint as a personal representative of the estate, the trial court granted the defendant’s second motion for summary disposition on the grounds that the amended complaint fell outside the statute-of-limitations period.  In Estate of Gloria Tice v. Tice, No. 290716, the Court of Appeals concluded that the amended complaint related back to the original, timely complaint, and it therefore reversed the grant of summary disposition.

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The Michigan Supreme Court granted leave to appeal in Tus v. Hurt, No. 139769.  The case arose after a mortgage company foreclosed on a house nearly 15 years after the last payment had been made and despite the fact that the house had been sold to a new owner.  The Court of Appeals ruled that the circuit court erred by quieting title in the name of the new owners who had failed to timely exercise their right of redemption because the circuit court’s action was an attempt to do equity contrary to the requirement of statutory law.  In the order granting leave, the Michigan Supreme Court instructed the parties to “include among the issues to be briefed the effect, if any, on this case of Brydges v. Emmendorfer, 311 Mich. 274, 279 (1945) (holding that “[t]he statute of limitations does not control the question of laches in equitable actions”) and Stokes v. Millen Roofing Co., 466 Mich. 660, 671-72 (2002) (concluding that courts should not avoid the application of a statute under the guise of equity because a statutory penalty is excessively punitive or harsh).”  The Court invited two sections of the State Bar of Michigan as well as the Michigan Association of Mortgage Professionals, the Michigan Mortgage Lenders Association, the Michigan Association of Realtors, the Michigan Association of Community Bankers, the Michigan Bankers Association, the American Civil Liberties Union of Michigan, the University of Michigan Law School General Clinic, and the Michigan Association for Justice to file briefs amicus curiae.

Justice Young issued an order denying the Attorney Grievance Administrator’s motion for him to participate in Grievance Administrator v. Miller, No. 140081.  Justice Young declined to participate in whether to grant leave in Miller because the grievance arose from Shelden Miller’s alleged unethical conduct while handling an employment lawsuit against AAA.  While the lawsuit was pending, Justice Young was general counsel for AAA.  Citing the new recusal standard, Justice Young refused to participate in the case even though his tenuous connection to the underlying litigation did not create any actual bias against any party.  Justice Young explained, “I believe that no basis exists for my disqualification in this case, but I chose the safest course under the new amorphous disqualification rule by voluntarily declining to participate in order to avoid a strategic or politically motivated motion to disqualify me, followed by the second guessing of my colleagues.”  The result of Justice Young’s decision not to participate is that the Court was unable to muster the four votes necessary to grant leave to appeal and thus leave was denied over the dissent of Justices Corrigan, Markman, and Weaver.

On April 6, 2010, the Michigan Court of Appeals published a per curiam opinion in Matthews v. Department of Natural Resources, No. 288040, affirming the ruling that plaintiffs had a prescriptive easement across state land, but reversing the ruling that they could fill the wetlands on that easement without obtaining a permit.  The Court of Appeals concluded that plaintiffs had properly tacked onto the possessory periods of their predecessors without a parol statement of conveyance because it was the only access they knew of and had used before the transfer of ownership.  However, their prescriptive easement did not excuse them from complying with environmental laws that required a permit before filling the wetland with pallets to use the easement. Read more »

On March 26, 2010, the Court denied leave to appeal in four cases, including Lighthouse Place Development, LLC v. Moorings Association, No. 139015, in which the Court had granted leave and heard oral argument.  In Lighthouse Place, the Court concluded that the questions presented regarding the standard for slander of title were worthy of review.  Our previous discussion of Lighthouse Place is here.  Justice Corrigan dissented in part and would have adopted the reasoning of Judge Wilder’s dissent from the Court of Appeals’ decision.

The Court also remanded People v. Keller, No. 139133, to the Court of Appeals for consideration on direct appeal because the defendant’s former appellate counsel’s failure to file an application for leave of the defendant’s plea-based conviction was constitutionally ineffective assistance of counsel.  Justice Corrigan would have referred the attorney to the Attorney Grievance Commission.

On March 23, 2010, the Court of Appeals issued an opinion authored by Judge Sawyer in Persell v. Wertz, No. 288858, partially reversing a jury verdict in favor of the plaintiff homeowners against their next-door neighbor for trespass, nuisance, defamation, and infliction of emotional distress.   The Court dismissed three of the plaintiffs’ four trespass and nuisance claims and remanded for a new trial on the plaintiffs’ claim of infliction of emotional distress, because it was impossible to determine the extent to which the jury relied on the dismissed claims in concluding that the defendant inflicted emotional distress or in assessing damages.

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On February 9, 2010, the Court of Appeals published its opinion in Citizens State Bank v. Nakash, No. 286990.  Here, a property owner owed a lender $250,000 pursuant to a promissory note secured by a mortgage on real property.  Ultimately, the property owner defaulted on the mortgage and the property was placed into foreclosure.  At the time of the Sheriff’s Sale, the amount due under the mortgage, along with subsequent loans, interest and costs was approximately $474,000.  The lender was the only bidder, and bid that exact amount.  A subsequent mortgage lender argued that initial lender’s mortgage lien was limited to $250,000, and the $474,000 bid created a surplus that they were entitled to as a junior lien holder on the property.  The initial lien holder countered, arguing that its initial mortgage was a future advance mortgage, and thus the bid did not create a surplus.  The initial mortgage itself did not contain any future advance language, but the initial lender argued that it incorporated the underlying promissory note that did use such language.  The Court of Appeals affirmed the trial court’s ruling that the initial mortgage was not a future advance mortgage, and the secondary lender was entitled to the surplus from the foreclosure bid.  The Court of Appeals relied on the statutory requirement that the instrument creating a future advance mortgage must be recorded.  Here, although the mortgage was recorded, it did not contain any of the necessary language.  All that language was in the underlying note, which was not recorded.  Thus, a future advance mortgage was not properly created, and the junior lien holder was entitled to the surplus from the bid on the foreclosed property.

On Wednesday January 27, 2010, the Michigan Supreme Court denied 19 applications for leave to appeal, denied the petitioner-appellants’ motion for reconsideration in the case of In re Brandon Gavin Handorf, Case Nos. 139742, 139753, 139754, and adopted the recommendation of the Judicial Tenure Commission in In re Nebel, Case No. 140203, and In re Sanders, Case No. 140202.  The Court also took substantive action in three civil and three criminal cases, which are discussed after the jump. Read more »

After oral argument, the Supreme Court vacated its order granting leave to appeal in Superior Hotels, L.L.C. v. Township of Mackinaw, No. 138696, and denied leave to appeal because the Court was “no longer persuaded that the question should be reviewed.”  The Court originally granted leave to address whether the State Tax Commission has jurisdiction to correct an error in the taxable value of real estate in earlier years where no portion of the property was omitted. 

The Court of Appeals concluded that the State Tax Commission did have jurisdiction to correct this type of error, reversing the decision of the Tax Tribunal.  The Court of Appeals’ published decision remains controlling authority on this issue.  Our earlier post on the decision is here.

On Friday, January 22, 2010, the Michigan Supreme Court granted leave to appeal in Beach v. Township of Lima to address whether a plaintiff who seeks to establish an adverse possession claim that affects property in a recorded plat must bring a claim under the Land Division Act if the plaintiff is not expressly requesting that the plat be vacated, corrected or revised.  The Court of Appeals held that a plaintiff need not bring a claim under the Land Division Act when he or she brings a quiet title action to establish adverse possession because a Land Division Act claim only alters the plat consistent with already existing property interests.  In other words, under the approach adopted by the Court of Appeals, a plaintiff may prevail in a quiet title action and later bring a claim under the Land Division Act to alter the plat–the two claims do not need to be brought simultaneously.  Such an approach has the effect of permitting inaccurate recorded plats.  The Michigan Supreme Court invited the Michigan Municipal League and the Real Property Section of the State Bar of Michigan to submit amicus briefs.  Our earlier post on the Court of Appeals’ decision is here.

Appellate criminal defense practitioners should note Justice Corrigan’s concurrence in People v. Henderson, No. 139375.  In Henderson, the Court of Appeals dismissed the defendant’s appeal because he did not timely file his appeal brief.  The Michigan Supreme Court remanded the case  to the Court of Appeals for consideration as though the defendant’s brief had been timely filed because the delay was solely attributable to the neglect of appellate counsel.  The Court concluded that defendant was deprived of effective assistance of counsel and ordered appellate counsel to pay costs to the Court.  Justice Corrigan concurred recommending that in cases where an attorney fails to timely prosecute a criminal appeal and thereby deprives the defendant of effective assistance of counsel, the Court should refer the negligent counsel to the Attorney Grievance Commission. Read more »

On January 12, 2010, the Court of Appeals published its opinion in Paris Meadows, LLC v. City of Kentwood, No. 286978.  This case presented the question of whether an as-yet undeveloped area of a condominium subdivision that had been designated in the master deed as part of the general common area, but which the developer retained the right to develop with additional units, could be taxed separately from the other condominium units.  The Court of Appeals concluded that it could not be taxed separately.  It analyzed the Michigan Condominium Act’s definitions and taxation provisions, and concluded that municipalities lack authority to tax any part of a condominium project separately from the units themselves, unless that part has been withdrawn from the common elements pursuant to the terms of the statute.  Here, the area in question was still part of the common elements, and was not withdrawn.  Thus, it was not subject to separate taxation.  Such common elements are only subject to taxation via pro rata shares attributable to the individual condominium units.

On December 15, 2009, the Court of Appeals published its per curiam opinion in Klooster v. City of Charlevoix, No. 286013, reversing the decision of the tax tribunal which found that a transfer of ownership occurred that allowed the reassessment of the taxable value of the property at issue in a process commonly known as “uncapping.”  The Court of Appeals held that the death of a joint tenant does not constitute a transfer of ownership under the General Property Tax Act (GPTA), MCL § 211.1 et seq.  

In 1994, Michigan adopted the “Proposal A” amendment to the State Constitution which caps property-tax increases unless there is a transfer of ownership.  The GPTA was enacted to carry out Proposal A’s mandate, and governs the process by which property is taxed in Michigan.  When a transfer of ownership occurs, the taxable value of the property is uncapped and the taxable value of the property is reassessed.  The GPTA provides a non-exhaustive list of events that constitute a transfer of ownership, as well as events that do not.  Read more »

Yesterday, the Michigan Supreme Court heard oral argument in Kyser v. Kasson Twp., No. 136680.  The issue before the Court was whether to reaffirm its decision in Silva v. Ada Township, 416 Mich. 153 (1982), which applies a heightened standard of reasonableness to decisions of local municipalities that prevent mining of valuable mineral resources.  Under Silva, a municipality’s decision will be deemed unreasonable if the plaintiff can show no very serious consequences would result from allowing the extraction of minerals.  The Michigan Supreme Court has not revisited Silva, or the line of cases on which it was based, since Silva was decided in 1982. 

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On Friday, October 16, 2009, the Michigan Supreme Court granted leave to appeal in Lighthouse Place Development, LLC v. Moorings Association to address whether recording a title on advice of counsel is a defense to slander of title.  The case arises from very contentious efforts by the plaintiff to use his property to re-site the Village of New Buffalo’s Amtrak station into the village.  The defendant called into question the defendant’s title to the property by recording an amendment to an earlier agreement to terminate certain parking easements near the New Buffalo harbor.  The Court of Appeals declined to declare that advice of counsel is a complete defense to slander of title as a matter of law and concluded that the defendant had failed to identify a sufficient basis in the record to show that it had actually argued advice of counsel as a defense.  The Court of Appeals decision is here.  Judge Wilder dissented and would have reversed the trial court on the slander of title claim based on the advice of counsel defense.

The Court also ordered the Kent County Prosecuting Attorney to respond to an application for leave to appeal in People v. Mitz.  In Mitz, the defendant claims that he pled no contest to a charge of operating a motor vehicle while under the influence (third offense) only after the trial judge told defendant’s counsel off the record that defendant would receive a prison sentence if he took his case to trial.  The sentencing guidelines provide for a term of jail or probation.  Accordingly, the defendant claims that the judge improperly stated or implied that he would receive a harsher sentence if he went to trial.  In a concurrence, Justice Corrigan specifically noted that the Court is considering an amendment to MCR 6.302(C)(1) that would require all discussions regarding a defendant’s plea to take place on the record.  The Court of Appeals denied a late application for leave to appeal leaving open the possibility that the Court will remand this case to the Court of Appeals as on leave granted.

On September 22, 2009, the Court of Appeals published its decision in Lamont Community Church v. Lamont Christian Reformed Church, No. 283154.  This case arises from a 2005 split in the congregation of the  Christian Reformed Church (“CRC”)-affiliated Lamont Christian Reformed Church (“LCRC”), whereby a number of people left LCRC and formed the Lamont Community Church (“LCC”).  LCC demanded that LCRC turn over real property that LCRC had transferred to a separate, nondenominational holding corporation in 1998.  The CRC hierarchy determined that the real property belonged to LCRC.  LCC disagreed and filed a civil action.  The Court of Appeals affirmed the trial court’s decision to uphold the CRC’s resolution of the property dispute, reiterating that in dealing with a heriarchical denomination, the court’s role is limited to enter judgment consistent with the denomination’s determination. Read more »

On July 30, 2009, the Michigan Supreme Court issued its opinion in Jackson v. Estate of Green, No. 136423.  The Court considered two issues:  whether an action to partition jointly owned real estate survives the death of the person who filed the action, and the point in time at which a cause of action accrues for a breach of verbal loan that did not include explicit terms for repayment.  The background and the Court of Appeals’ holdings are discussed here.  In plurality opinions, the Court affirmed the results reached by the Court of Appeals. Read more »