Frozen embryo could be hot potato on remand

When Jude and Jayane Stratford were divorced in 2008, they thought they had resolved all their issues, though they did go back to court in 2009 to finalize who would get the dog.

But a couple of years later, they realized they had forgotten about something — their leftover frozen embryo at a fertility clinic.

Jude filed a motion, in which he told the court that through a mutual mistake, the parties failed to disclose the embryo’s existence. He wanted to donate the embryo to the clinic so that some other couple could use it. Jayane wanted the donation to be for medical research only.

Judge Elwood Brown of the St. Clair County Circuit Court found that Jude had the “superior interest” in the embryo. Brown’s post-judgment modification order stated

“Plaintiff [Jude Stratford] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple.

Jayane appealed.

The trial court’s order has several problems, the Michigan Court of Appeals ruled in Stratford v. Stratford. (Lawyers Weekly No. 08-77713 – 5 pages) (unpublished per curiam).

First, the order is too vague to be enforced.

The court’s order states, “That the plaintiff may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple.”

We conclude that the use of the permissive term “may” — as opposed to the mandatory term “shall” — renders the order inoperative. The court’s written opinion suggests that the court intended to resolve the dispute by granting plaintiff’s request to donate the embryo to the fertility clinic.

Nonetheless, the order neither grants nor denies the request. Rather, the order permits plaintiff to decide when and whether to donate the embryo.

Second, the order imposes obligations on a third party, the fertility clinic, “that the clinic may be unwilling to accept or unable to perform.” The COA noted that the clinic may not be able to make the embryo available for adoption, and might not be able or willing to accept the apparent restriction that only a couple, rather than an individual, can adopt the embroyo.

And who will pay the costs of keeping the embryo frozen until it is adopted, the COA wondered. The order doesn’t say. And what if Jude changes his mind — that could happen, the appeals court said, citing a law review article and several studies that documented changes of heart concerning the disposition of frozen embryos.

There are too many loose ends, the COA concluded.

And here’s a few other things to think about on remand, said the appeals court. We’re not sure whether the trial court could even modify the divorce judgment

Neither the motion nor the answer address the authority upon which the court was permitted to modify a final judgment based on mutual mistake more than two years after the judgment was final.

Beyond that, once the court decided who would get the dog, there was nothing left in the order requiring the court’s intervention, said the COA.

The COA ruled that the status quo should be preserved.

The frozen embryo will likely be a hot topic for the court, the parties, and the fertility clinic on remand.

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Don’t give ’em any ideas

In Wisconsin, Gov. Scott Walker has made no bones about his feelings for workers, particularly those who belong to the unions representing public employees. There’s little doubt that Walker will have to do any soul-searching before signing a newly passed bill that ends punitive and compensatory damages in workplace discrimination cases.

At the same time, Michigan’s Legislature has had no trouble supporting bills that also have the potential to hit workers pretty hard. Notably, Michigan lawmakers last year reformed the state’s worker compensation system in a way that could drastically limit injured worker benefits. And this year, the legislature has been focused on bills that could strike a blow to unions.

The conservative Mackinac Center for Public Policy noted late last year that the pent-up demand for labor and employment reforms is still strong in the Legislature, and predicted that there is more to come this year.

So I wonder — how long will it take for this idea to blow across Lake Michigan and all the way into Lansing? We’ll see.

COA: $1.1M home must go

The Michigan Court of Appeals has ordered the complete or partial destruction of a $1.1 million home in Macomb County because the owners built it too close to their property lines.

The home owners, Simon and Saca Palushaj have been locked in an eight-year dispute with Gerald and Aileen Thom. The Thoms are the next-door neighbors who are insisting that deed restrictions in Washington Township’s Lakewood Hills Subdivision be enforced.

The restrictions at issue require homes to be 100 feet apart and at least 40 feet from the side lot line. The Palushaj’s home is 80 feet from the Thom’s and 28 feet from the side lot line.

When the Palushajs began construction, the Thoms expressed concerns about deed restriction violations. They were concerned enough that, in 2004, they tried to enjoin construction. The trial court refused to grant an injunction, opining that the deed restrictions were either unenforceable or inapplicable. The court apparently questioned the Thoms’ motives, offering “unclean hands” as another reason to deny them relief.

But the court also cautioned the Palushajs to proceed at their own risk. Proceed they did, building a 9,000 square foot home, complete with specialized construction to aid one of their children who has cerebral palsy.

The Thoms proceeded as well, taking an appeal to the COA. In 2007, the appeals court ruled that the restrictions were enforceable. The panel handed Judge James Biernat of the Macomb County Circuit Court the unenviable task of fashioning a remedy.

On remand, the Thoms pressed for demolition of the home, or at least enough of it to eliminate the deed restriction violation.

Biernat said there were some equities to balance. After holding a hearing, he visited the parties’ homes. Biernat apparently wasn’t impressed with the Thoms’ claims that they were being “crowded in” by the Palushajs’ home. The Palushajs, on the other hand, would be economically crippled if ordered to raze the home.

Biernat ordered the Palushajs to pay the Thoms $183,000 in costs and attorney fees, and to maintain landscaping that limits the view between the two properties.

The Thoms went back to the COA and argued Biernat lacked the discretion to balance the equities and to order a remedy that didn’t actually enforce the deed restrictions.

The COA agreed. The appeals panel noted that when the case was remanded to Biernat:

[T]he burden [was] on the trial court “for a determination of the appropriate remedy.” Accordingly, the trial court must fashion a remedy consistent with this opinion and consistent with the controlling opinion of [Webb v Smith (Aft Sec Rem), 224 Mich App 203; 568 NW2d 378 (1997)]. Thoms v Palushaj, unpublished opinion per curiam of the Court of Appeals, issued August 23, 2007 (Docket No. 286074)[.]

In Webb, a case almost factually identical to the Thom-Palushaj dispute, the COA “noted that the amount of damages the defendants would incur if an injunction was issued was wholly immaterial to the process of determining a remedy.” The Webb court correctly upheld the trial court’s decision to refrain from balancing the equities.

So, the Thoms’ remedy is exactly what they asked for, ruled the COA. Along with the ruling, there was an undercurrent of “can’t we all just get along?”

[W]e vacate the trial court’s order and remand with instructions to enter an order requiring defendants to bring their home into compliance with the applicable deed restrictions. …

While it appears from the record that plaintiffs are unlikely to reach a compromise with defendants that will allow defendants to maintain their home as it currently exists, we note that such a compromise would perhaps best serve the interests of each of the parties.

The case is Thom, et al. v. Palushaj, et al.

Secrest Wardle exodus cancels city attorney agreement

Farmington Patch.com is reporting this morning that the departure of four attorneys from the Farmington Hills office of Secrest Wardle has led to the termination of a memorandum of understanding between the law firm and the City of Farmington.

One of the exiting lawyers, Thomas Schultz, is Farmington’s city attorney. He and colleagues Steven Joppich, Stephen Meads and Elizabeth Kudla Saarela, have left the firm to join a new firm, Johnson, Rosati, Schultz & Joppich.

Joppich is the City of Farmington Hills’ attorney. Internet news company Patch.com is not reporting on the status of the agreement between Farmington Hills and Secrest Wardle.

How dare you admit me into law school!

Still a couple weeks to go but here’s the early entry for Lawsuit of the Month.

Much has been made here and elsewhere about the lawsuits against law schools alleging falsified (or at the very least, inflated) job statistics. Most of these lawsuits are based in the idea that law schools care only about their bottom line and that they are letting in too many students without regard to what happens to them after graduation.

One student in Tennessee has sued her law school on a similar theory, I guess, a much more, shall we say, creative theory.  She’s suing the school claiming it negligently admitted her. [Knoxville News Sentinel via ABA Journal].

A student at Lincoln Memorial University is suing the institution in Knox County Chancery Court, claiming college administrators negligently allowed her to enroll in law school there even though she is ineligible to sit for the state bar exam.

Morgan Crutchfield, a part-time student at the Knoxville-based John J. Duncan Jr. School of Law, is asking for as much as $750,000 in damages after school officials told her she could enroll despite lacking 12 credit hours in her undergraduate degree, according to the complaint filed Tuesday.

“They discarded the rules at the very least, and I think that as attorneys and as administrators, they’re bound to know what the requirements are when they’re attempting to bring students into the law program,” said her attorney, Hugh Ward Jr. of the Knoxville firm Bernstein, Stair & McAdams.

According to the article, Crutchfield applied to the school before learning she was short of her requirements to graduate from Penn State. The school said it wasn’t a problem so long as she completed the credit before 3L. But when she applied for the Tennessee bar, the board wouldn’t allow her to sit for the exam because she had to finish the credit before starting law school.  It should also be noted that she still hasn’t completed the undergrad requirements, even though she’s 2 1/2 years into law school.

What are the odds?

After Norma Chesser was injured when she fell from a conference center stage, it was obvious that the condition she encountered was open and obvious.

Chesser and others were on the stage to deliver speeches to a conference. The stage was an elevated platform with a podium. There was a row of chairs set close to the back edge for Chesser and others to use while they waited for their turn at the podium.

The back of the platform was not up against a wall and had no railing or other guards. Chesser fell while walking between the chairs and the back edge of the platform.

Any reasonable person in Chesser’s position would have appreciated the hazard, the Michigan Court of Appeals ruled in Chesser v. Raddisson Plaza Hotel at Kalamazoo Center.

But to resolve Chesser’s premises liability claim, “[t]he more difficult question,” wrote COA Judge Amy Ronayne Krause, “is whether the hazardous condition was effectively unavoidable.”

The defense argued that Chesser, aware of the setup on the platform, could have chosen not to go up there.

True enough, Krause acknowledged.

However, the instant situation would not merely have generated awkwardness had Ms. Chesser elected to decline to ascend the stage, unlike the situation in Joyce v Rubin, 249 Mich App 231, 242-243; 642 NW2d 360 (2002).

Being on defendant’s stage [to deliver a speech at a conference] was the primary reason for her presence at defendant’s premises in the first place. Ms. Chesser could technically have avoided the hazard, but she could not have avoided the hazard without completely undermining her use of defendant’s facilities.

A condition is “effectively unavoidable”‘ if it cannot be avoided by an invitee without that invitee avoiding the premises altogether. Hoffner v Lanctoe, 290 Mich App 449, 461-464; 802 NW2d 648 (2010), lv pending 489 Mich 877 (2011) … .

“There is no meaningful difference between avoiding the premises and avoiding using the premises. Just because Ms. Chesser technically could have refused to ascend the stage, the hazard was not therefore effectively avoidable.

Well, defendant pointed out, others, including Chesser, had safely used the same route before Chesser fell.

“This argument has merit,” wrote Krause, “but strictly speaking, it goes too far.”

It’s a matter of the odds.

[I]t is entirely possible for someone to have a stroke of good luck when navigating a hazard, and furthermore, “effectively unavoidable” does not necessarily mean “absolutely unavoidable.”

Consequently, the fact that a plaintiff or other person passed a hazard unscathed does not, all by itself, dispose of whether a hazard is “effectively unavoidable.”

Nevertheless, this argument makes sense as applied to the particular situation before us now. The number of times a hazard is safely bypassed will eventually show that that avoidance of harm is not a statistical fluke.

Indeed, defendant cites to a number of unpublished opinions from this Court, all of which involved situations in which a hazard was faced numerous times by numerous people without any harm befalling them prior to any injury suffered by the plaintiffs.

Krause acknowledged the persuasive-only value of unpublished cases.

[But] [t]he cases cited by defendant are consistent with the most rational way of evaluating the effective unavoidability of a hazard where that hazard has been successfully avoided: the more frequently a hazard is traversed without harm, the more likely it is that the hazard is effectively avoidable. …

The hazard does not appear to have been faced by a great number of people over an extended period of time, but the available evidence shows that the statistical fluke was Ms. Chesser’s fall, not the other speakers’ safety.

Consequently, we conclude that under these circumstances, the facts show that the hazard was not effectively unavoidable.

And there you have it. It’s long odds for plaintiffs in premises cases, and the odds keep getting longer and longer.