Michigan Supreme Court hears oral arguments Oct. 9-1

The Michigan Supreme Court will hear arguments on Oct. 9-11, starting at 9:30 a.m. each day. In keeping with tradition, the Court will hear the first case of the new session, Boertmann v Cincinnati Insurance Company, in the Old Supreme Court Courtroom in the Capitol in Lansing. The Court will hear the 11 other cases in its courtroom on the 6th floor of the Michigan Hall of Justice in Lansing. The Court’s oral arguments are open to the public.
As a public service, the Court provides summaries of the cases it will hear at www.courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Oral-Arguments/Pages/default.aspx.
Please note: These brief accounts may not reflect the way that some or all of the Court’s seven justices view the cases. The attorneys may also disagree about the facts, issues, procedural history, and significance of these cases. For further details about the cases, please contact the attorneys.

TUESDAY, OCTOBER 9,
AFTERNOON SESSION
(Michigan Hall of Justice)

ADER v DELTA COLLEGE BOARD OF TRUSTEES (case no. 143621)
Attorney for plaintiff Timothy Ader: Roland J. Jersevic
Attorney for defendant Delta College Board of Trustees: Joseph Nimako
Attorney for amicus curiae Michigan Municipal League, Michigan Townships Association, and Public Corporation Law Section of the State Bar of Michigan: Steven D. Mann
Trial Court: Saginaw County Circuit Court
The plaintiff contends that the defendant college board of trustees, which was being sued by one of its members, violated the Open Meetings Act by holding a closed session that included that member and his attorney, in addition to the board’s own legal counsel.
Background:
While a journalism student at Delta College in 2008, Timothy Ader investigated a lawsuit that had been filed by Delta College Board of Trustees member Kim Higgs against the board of trustees. Ader learned that the board of trustees had spent $25,707 in legal fees on the lawsuit. Soon after, Ader attended a June 2008 board of trustees meeting; toward the end of this meeting, the board voted to go into closed session to consult with its attorneys regarding the Higgs litigation. After 30 to 45 minutes, the boardroom door opened and Higgs and his attorney were asked to join the board and its lawyers. No one else was allowed into the boardroom.
Ader sued, alleging that the latter part of the closed session – the portion attended by Higgs and his lawyer — violated the Open Meetings Act. Section 8(e) of the Open Meetings Act, MCL 15.268(e), allows a public body to meet in a closed session only for specific purposes, including to “consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.” Ader argued that, when the board of trustees invited Higgs and his attorney into the closed session, it became an illegal closed meeting for three reasons: (1) the board was no longer consulting with its attorney regarding trial or settlement strategy, (2) there was no detrimental financial effect on the board’s litigation or settlement position, compared with holding an open meeting, and (3) it was legally impossible for the board to consult with its attorney because the opposing party was present.
Ader requested a declaratory judgment finding that the closed meeting violated the OMA, and injunctive relief compelling the board of trustees to comply with the OMA; he also asked for costs and attorney’s fees.
Ader moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that he was entitled to judgment in his favor, including his costs and attorney’s fees, as a matter of law. The board of trustees filed its own motion for summary disposition pursuant to MCR 2.116(C)(7) and (8), asking the court to dismiss the lawsuit on several grounds. In particular, the board argued that Ader lacked standing to sue – that he was not personally affected or injured by the board going into closed session and so lacked the legal right to sue. Ader responded that he was granted standing to sue by section 11(1) of the OMA, MCL 15.271(1), which states that, if a public body is not complying with the act, “the attorney general, prosecuting attorney of the county in which the public body serves, or a person may commence a civil action to compel compliance or to enjoin further noncompliance with this act.”
The trial court granted the board of trustees’ motion, concluding that Ader lacked standing to sue because he failed to suffer an injury as a result of the board of trustees’ alleged violation of the OMA. Ader appealed to the Court of Appeals, which initially agreed with the trial court. But the Michigan Supreme Court directed the Court of Appeals to reconsider its ruling in light of the recent decision in Lansing Schools Education Ass’n v Lansing Bd of Education, 487 Mich 349 (2010). In an unpublished per curiam opinion, the Court of Appeals reversed the trial court and reinstated Ader’s lawsuit, remanding the case to the trial court for further proceedings. The Court of Appeals held that Ader had standing to sue because “[t]he OMA allows an individual to commence a civil action for injunctive relief to either compel compliance with the OMA or enjoin further noncompliance with the act.” The court noted that “[i]n light of the Supreme Court’s removal of the constitutional limitation on standing [in Lansing Schools Education Ass’n], the OMA alone is sufficient to confer standing on plaintiff.”
The board of trustees appeals.

ESTATE OF DARRYL ILE, et al. v FOREMOST INSURANCE COMPANY (case no. 143627)
Attorney for plaintiffs Debra Ile, as Personal Representative of the Estate of Darryl Ile, and Debra Ile, individually and on behalf of themselves and all others similarly situated: Thomas A. Biscup/(586) 566-726
Attorney for defendant Foremost Insurance Company: Jason L. Byrne
Attorney for amicus curiae Insurance Institute of Michigan: Kimberlee A. Hillock
Trial Court: Wayne County Circuit Court
A motorcyclist was killed when his motorcycle collided with a parked vehicle. After his estate collected $20,000 — the limit on that policy — from the parked car’s insurer, the estate sought to recover an additional $20,000 in underinsured motorist (UIM) benefits from the defendant, which insured the motorcycle. The defendant insurer denied the estate’s claim, contending that when a policyholder selects the minimum UM/UIM coverage limits of $20,000/$40,000, as the deceased did, it is impossible for another vehicle to be defined as “underinsured.”
Background:
Darryl Ile was riding his motorcycle when he hit a parked car and was killed. Debra Ile, as personal representative of his estate, collected $20,000 from Titan Insurance Company, which insured the parked car; this was the maximum amount payable under the Titan policy.
Darryl Ile’s motorcycle was insured under a policy issued by Foremost Insurance Company. Ile had uninsured motorist (UM) and underinsured motorist (UIM) coverage with limits of $20,000 per person and $40,000 per accident – the lowest available limits. UM and UIM insurance, which is optional under the no-fault act, permits an injured motorist to obtain coverage from his own insurance company to the extent that a third-party claim would be permitted against an uninsured or underinsured at-fault driver. In general, UM and UIM insurance is intended to provide insurance proceeds an insured could have recovered from another driver if that driver was not uninsured or underinsured.
With regard to UM coverage, the Foremost policy stated that the company “will pay compensatory damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured motor vehicle’ because of ‘bodily injury[.]’”
Foremost’s UIM coverage states that the company “will pay compensatory damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘underinsured motor vehicle’ because of ‘bodily injury[.]’” The policy defines “underinsured motor vehicle” as “a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage.” But the policy also states that an “underinsured motor vehicle” does not include a vehicle “[t]o which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which ‘your covered auto’ is principally garaged.” Under Michigan law, the minimum limit for bodily injury liability is $20,000/$40,000.
Foremost’s insurance policy also includes reducing clauses that preclude policyholders from collecting UM/UIM benefits for any losses paid by the other driver. With respect to an underinsured driver, the policy states that the “limit of liability shall be reduced by all sums paid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible.”
After collecting the $20,000 policy limits from the insurer of the parked vehicle, the estate sought to recover an additional $20,000 from Foremost. The insurance company denied the claim, taking the position that the parked vehicle was neither uninsured nor underinsured. According to Foremost, the parked vehicle was not uninsured because it carried bodily injury liability coverage at the minimum limit required by law, and it was not underinsured because its coverage was not less than the $20,000 coverage level selected by Darryl Ile. Foremost acknowledges that, when a policyholder selects UM/UIM coverage limits of $20,000/$40,000, it is impossible for another vehicle to be defined as “underinsured.” If the vehicle has no insurance, or has insurance with bodily injury liability limits of less than the Michigan statutory minimum of $20,000/$40,000, the vehicle is considered “uninsured.” And if the other vehicle has insurance with bodily injury liability limits equal to or greater than $20,000/$40,000, the vehicle is considered adequately insured under the policyholder’s selected limits and there is no coverage.
The plaintiffs sued Foremost for breach of contract and misrepresentation. The trial court ruled that Foremost’s policy language was unambiguous, but that the UIM coverage was illusory, because it provided no coverage whatsoever. The trial judge held that Darryl Ile’s estate is entitled to recover up to an additional $20,000 in UIM benefits to the extent the estate’s damages exceed the $20,000 already paid Titan Insurance. The trial court rejected the argument that Rory v Continental Ins Co, 473 Mich 457 (2005), required enforcement of the insurance contract as written. Rory did not prevent the court from considering whether UIM coverage under the contract was illusory, the court said.
The Court of Appeals affirmed in a published opinion. The Court of Appeals agreed with the trial court that the doctrine of illusory coverage applied where part of the insurance premium is specifically allocated to a particular type of coverage and that coverage turns out to be functionally nonexistent. The appellate court rejected Foremost’s argument that the UIM coverage was not illusory because the insured could potentially recover under the UM part of the policy. The Court of Appeals held that the trial court’s remedy – to require Foremost to reimburse the estate’s damages in an amount up to $20,000 – was appropriate, because that is the amount of benefits that an insured covered by the policy would expect to be paid if his damages exceeded the amount paid by the other driver.
Foremost appeals.

WEDNESDAY, OCTOBER 10,
MORNING SESSION

PEOPLE v ZAJACZKOWSKI (case no. 143736)
Prosecuting attorney: Timothy K. McMorrow
Attorney for defendant Jason Joseph Zajaczkowski: Ronald D. Ambrose
Attorney for amicus curiae Family Law Section of the State Bar of Michigan: Katherine L. Root
Trial Court: Kent County Circuit Court
The defendant and the 14-year-old victim in this criminal sexual conduct case share the same legal father; the defendant was conceived and born during the marriage of his mother to his legal father, and a 1979 divorce judgment identifies the then-boy as the child of the marriage. The defendant seeks to reduce his first-degree CSC charge – an element of which is that the defendant is related to the victim “by blood or affinity” — on the basis of DNA testing that shows he is not his legal father’s biological son.
Background:
The defendant and the 14-year-old victim in this criminal sexual conduct case share the same legal father; the defendant was conceived and born during the marriage of his mother to his legal father, and a 1979 divorce judgment identifies the then-boy as the child of the marriage. The defendant seeks to reduce his first-degree CSC charge – an element of which is that the defendant is related to the victim “by blood or affinity” – on the basis of DNA testing that shows he is not his legal father’s biological son.
Jason Zajaczkowski was born in January 1977, during the marriage of Walter and Karen Zajaczkowski; when Walter and Karen divorced in 1979, the divorce judgment identified Jason Zajaczkowski as the “minor child of the parties.” But DNA testing later established that Walter was not Jason’s father. Walter later entered into a relationship with another woman, with whom he had a daughter, the victim in this case.
When the victim was 14 years old, Jason Zajaczkowski fathered a child by her. The prosecutor charged Zajaczkowski with first-degree criminal sexual conduct under MCL 750.520b(1)(b)(ii), which provides that “[a] person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: . . . (b) [t]hat other person is at least 13 but less than 16 years of age and any of the following: . . . (ii) [t]he actor is related to the victim by blood or affinity to the fourth degree.”
Zajaczkowski argued that he was not guilty of first-degree criminal sexual conduct, because it is undisputed that he is not Walter’s son, and does not have a blood relationship with the victim. At most, Zajaczkowski argued, he was guilty of third-degree criminal sexual conduct, pursuant to MCL 750.520d(1)(a), under which, “[a] person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if . . . [t]hat other person is at least 13 years of age and under 16 years of age.” He filed a motion to dismiss the first-degree criminal sexual conduct, or to reduce the charge to criminal sexual conduct in the third-degree.
The prosecution opposed the motion, noting that the 1979 judgment of divorce between Walter and Karen identified Zajaczkowski as the “minor child of the parties.” The prosecution contended that, because Walter was married to Karen when Zajaczkowski was born, and because Walter had been decreed to be Zajaczkowski’s father at the time of the divorce, Walter and Zajaczkowski were related by affinity. In any case, argued the prosecutor, regardless of whether Zajaczkowski and Walter were actually related by blood, Zajaczkowski was Walter’s legal son, while the victim was Walter’s legal daughter. The trial court denied the motion to dismiss, and Zajaczkowski agreed to plead guilty as charged to first-degree criminal sexual conduct (as a fourth offender), under a plea bargain that reserved his right to challenge on appeal the conclusion that he was guilty of first-degree criminal sexual conduct, rather than third-degree criminal sexual conduct, and with the further agreement that the trial court would impose a sentence using the guidelines for third-degree criminal sexual conduct (fourth felony offense).
The Court of Appeals affirmed in a published opinion. The panel agreed with the prosecutor that the absence of a biological relationship does not affect the legal conclusion that Zajaczkowski and the victim are brother and sister because they share the same legal father. The criminal sexual conduct statute does not, the panel noted, define the terms “related by blood” or “affinity.” Looking to the case law addressing the presumption of legitimacy in the divorce, paternity, child custody, child protective proceeding, and intestate succession contexts, the Court of Appeals concluded that, “because defendant was conceived and born during his mother’s marriage to the victim’s father, the strong presumption of legitimacy arose.” Thus, because, “defendant lacks standing to challenge that he is the legitimate issue of the victim’s father,” it follows that “as a matter of law, defendant and the victim are related by blood—brother and sister sharing the same father—and they are related within the second-degree of consanguinity by descent from a common ancestor.”
Zajaczkowski appeals.

DEBANO-GRIFFIN v LAKE COUNTY, et al. (case no. 143841)
Attorney for plaintiff Cheryl Debano-Griffin: Mark R. Granzotto
Attorneys for defendants Lake County and Lake County Board of Commissioners: John R. McGlinchey, Kristen L. Baiardi
Trial Court: Lake County Circuit Court
The plaintiff, the former director of Lake County’s 911 department, seeks to pursue a Whistleblowers Protection Act claim against the county. She contends that she was fired because, among other matters, she objected to a transfer of money from the county’s ambulance fund.
Background:
Cheryl Debano-Griffin was the director of Lake County’s 911 Department. Before Debano-Griffin was hired, the voters of Lake County passed a millage to raise funds for a countywide ambulance service. The ballot language stated that the funds raised by the millage would be used solely and “specifically for the purpose of operating the Lake County Ambulance Service.” The county contracted with Life EMS, Inc. to provide ambulance services. Life EMS was to provide two ambulances in the county 24 hours per day, seven days per week.
In 2002, Debano-Griffin learned that Life EMS was using one of the ambulances to provide services for residents of other counties; she reported this to the Lake County’s Board of Commissioners. She also objected to the board’s decision to transfer funds from the ambulance fund to another county account, contending that the transfer violated the terms of the millage proposal. The board voted to return the transferred funds to the ambulance fund — and also voted to eliminate Debano-Griffin’s position. According to Debano-Griffin, an earlier draft of the proposed budget — prepared before she expressed her concerns about the transfer of money from the ambulance fund – included her position. When she asked county officials why her position was eliminated, she was told that the action was “due to budgetary constraints.”
Debano-Griffin sued Lake County and its board of commissioners. She claimed that the defendants terminated her employment in retaliation for her reporting problems with Life EMS ambulance services, or because she raised concerns about the legality of the transfer from the ambulance fund. Debano-Griffin’s complaint alleged three causes of action, including a claim brought under the Whistleblowers Protection Act, MCL 15.361 et seq. The WPA protects an employee who has reported a violation or suspected violation of the law to a public body. MCL 15.362. To establish a claim under the WPA, a plaintiff must prove that (1) she was engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action.
The defendants filed a motion for summary disposition, arguing that Debano-Griffin’s WPA claim should be dismissed. She had not engaged in protected activity under the WPA, the defendants contended. They also argued that Debano-Griffin could not establish a causal connection between the decision to terminate her position and her reporting of suspected improper conduct. The defendants maintained that Debano-Griffin’s position was eliminated because of the county’s fiscal crisis, but she disputed this, presenting evidence that, with one exception, the other employees in her department received a pay raise in 2005, and that new employees were hired.
The trial court denied the defendants’ motion for summary disposition. A jury awarded Debano-Griffin $350,000 in damages, finding that that the defendants had violated the WPA.
The defendants appealed and the Court of Appeals reversed, concluding that Debano-Griffin’s WPA claim failed as a matter of law because she was not engaged in protected activity. The Michigan Supreme Court reversed this ruling and remanded the case to the Court of Appeals, directing the Court of Appeals to consider whether Debano-Griffin could demonstrate a causal connection between her protected activity and the defendants’ decision not to fund her position. In a split unpublished decision, the Court of Appeals again reversed the trial court’s order denying the defendants’ motion for summary disposition, this time holding that Debano-Griffin failed to establish a genuine issue of material fact as to the causal connection element of her claim. The Court of Appeals majority concluded that Debano-Griffin’s evidence established only a temporal relationship between her complaints and the elimination of her job. She established that her job was eliminated after she complained about possible unlawful activity, but she did not present evidence that her job was eliminated because she complained about possible unlawful activity.  The judges in the majority also noted that neither the courts nor a jury may second-guess an employer’s business judgment (in this case, the commissioners’ decision regarding how to address the county’s budgetary problems). The dissenting judge would have affirmed the trial court’s ruling that Debano-Griffin presented sufficient evidence to establish causation.
Debano-Griffin appeals.

KIM v JP MORGAN CHASE BANK (case no. 144690)
Attorney for plaintiffs Euihyung Kim and In Sook Kim: Bernhardt D. Christenson
Attorney for defendant JP Morgan Chase Bank: Jill M. Wheaton
Attorney for amicus curiae Michigan Association of Realtors: Gregory L. McClelland
Attorney for amicus curiae Michigan Bankers Association: Nicole L. Mazzocco
Attorney for amicus curiae Real Property Law Section of the State Bar of Michigan: James L. Allen
Trial Court: Macomb County Circuit Court
The bank holding the plaintiffs’ mortgage failed, and the failed bank’s loans were bought by JP Morgan Chase Bank pursuant to the Financial Institutions Reform, Recovery and Enforcement Act of 1989. The plaintiffs challenge Chase’s foreclosure of their home, arguing in part that the foreclosure was legally void because there was no recorded assignment from their failed bank to Chase.
Background:
Euihyung and In Sook Kim obtained a $615,000 loan from Washington Mutual Bank (WaMu) on July 11, 2007 to refinance their residence at 3455 Brookland Street in Utica. As security for the loan, they granted WaMu a mortgage on the Brookland property. The mortgage granted WaMu, as the mortgagee and lender, the power of sale in the event of default. The mortgage was recorded.
On September 25, 2008, the federal Office of Thrift Management closed WaMu and appointed the Federal Deposit Insurance Corporation as receiver for WaMu. That same day, FDIC, in its capacity as receiver, sold virtually all of WaMu’s assets to JP Morgan Chase Bank pursuant to the Financial Institutions Reform, Recovery and Enforcement Act of 1989, or FIRREA (12 USC § 1451 et seq.). Under 12 USC § 1821(d)(2)(G)(i)(II), FDIC is empowered to transfer the assets of failed banks “without any approval, assignment, or consent….” Chase acquired WaMu’s loans pursuant to a Purchase and Assumption Agreement dated September 25, 2008.
According to the Kims, they sought a loan modification in early 2009 because they were having financial difficulties. They contend that they were advised by a WaMu representative that they were not eligible for a modification because they were not at least three months in arrears on their mortgage payments. Because of this advice, the Kims claim, they allowed the mortgage to become delinquent. Sometime during the spring of 2009, the Kims retained an out-of-state attorney to assist them with the loan modification negotiations. The Kims claim that the attorney assured them that the loan modification had been approved, and that they signed some documents to modify their loan; they believed that the matter was resolved.
In May 2009, the Kims received a foreclosure notice from Chase. Chase published the required notice of foreclosure in May and June 2009. The sheriff’s sale was conducted on June 26, 2009. Chase acquired the property for a bid of $216,000. The Kims’ total indebtedness on the loan, including interest and fees was $624,000.
The Kims sued Chase on November 30, 2009, seeking to set aside the sheriff’s sale on the ground that they had requested a loan modification and that Chase had not bid fair market value for the property at the sheriff’s sale. They also alleged violations of the Fair Debt Collection Practices Act. The statutory redemption period expired June 26, 2010.
Chase filed a motion for summary disposition, arguing that the statute of frauds barred the Kims’ claim regarding a loan modification. Chase also contended that the Kims were not legally entitled to set aside the sheriff’s sale based on Chase’s allegedly low bid price, and that the Fair Debt Practices Act applies only to collection agencies and not the direct lender. In response, the Kims claimed that Chase was not the owner of the indebtedness as required to foreclose by advertisement under § 3204(1)(d), and that no assignment of the mortgage from WaMu to Chase had been recorded before the sheriff’s sale as required by § 3204(3).
The trial court granted Chase’s motion. The court concluded that Chase acquired the loan by operation of law; accordingly, § 3204(3) did not apply, the court said. With respect to the bid price claim, the court relied on case law stating that a homeowner’s ability to redeem the property for the bid price justifies the conclusion that a low bid at the sheriff’s sale is not a valid basis on which to set aside the sale.
The Kims appealed to the Court of Appeals, contending that Chase failed to comply with § 3204(3), and, as a result, the sheriff’s sale was void ab initio (meaning that the sale was legally improper and could not stand). In a published opinion, the Court of Appeals reversed the trial court’s ruling and remanded for entry of judgment for the Kims. The Court of Appeals concluded that the plain language of § 3204(3) applied to Chase because Chase was not the original mortgagee and acquired the loan by assignment. Accordingly, it was incumbent on Chase to record an assignment before the sheriff’s sale, the appellate court said. In addition, the Court of Appeals held that Chase did not, in fact, acquire the loan by operation of law. Rather, FDIC, as the receiver of WaMu’s assets, acquired WaMu’s assets by operation of law, but Chase was merely the purchaser of those assets, the appellate panel said. The Court of Appeals also held that the failure to record an assignment prior to the sale rendered the sheriff’s sale void ab initio. The Court of Appeals remanded the case to the trial court, directing the court to enter judgment for the Kims.
Chase appeals.

AFTERNOON SESSION
PEOPLE v KIYOSHK (case no. 143469)
Prosecuting attorney: Heather S. Bergmann
Attorney for defendant Christopher Blayne Kiyoshk: Arthur H. Landau
Trial Court: Kalamazoo County Circuit Court
As an adult, the defendant pled guilty to a sexual assault that he may have committed when he was too young to be subject to adult court jurisdiction. At issue is whether his guilty plea must be vacated.
Background:
Christopher Kiyoshk was born on December 24, 1985. In 2006, the Kalamazoo County prosecutor charged Kiyoshk with four counts of first-degree criminal sexual conduct. Kiyoshk agreed to plead guilty to count II, which alleged that Kiyoshk engaged in sexual intercourse with a victim under 13 years old in 1999. The other counts were dismissed. The trial court accepted Kiyoshk’s plea and sentenced him to five to 25 years in prison.
In August 2009, Kiyoshk moved for relief from judgment under MCR 6.508(D), arguing that the trial court lacked jurisdiction to accept his guilty plea because he was only 13 years old when he committed the crime. The trial judge denied the motion, ruling that Kiyoshk waived the jurisdictional challenge by entering his unconditional guilty plea. The court did have jurisdiction, the trial judge added, because, although Kiyoshk was a minor at the time of the crime, he was an adult when he was arrested and entered his guilty plea.
But, in an unpublished per curiam opinion, the Court of Appeals reversed the trial court and vacated Kiyoshk’s plea. The appellate panel noted that MCL 712A.2(a) and MCL 764.1f(1) authorize a trial court to exercise jurisdiction over a defendant who is at least 14 years old and charged with certain felonies, including first-degree criminal sexual conduct. The defendant’s age at the time of the commission of the offense controls, held the Court of Appeals, citing People v Schneider, 119 Mich App 480 (1982). Count II, the count to which Kiyoshk pled guilty, was listed as occurring in 1999. Although there was information to suggest that an incident involving Kiyoshk and the victim occurred on New Year’s Eve, when Kiyoshk would have been 14 years old, the panel concluded that the only express reference to sexual intercourse between Kiyoshk and the victim occurred in July 1999; moreover, Kiyoshk did not admit that he was 14 years old at the time of the offense when he entered his plea, the panel noted. For these reasons, the Court of Appeals held, Kiyoshk appears to have been 13 years old at the time of the incident to which he pled guilty, so the trial court lacked jurisdiction. The panel noted, however, that two of the dismissed counts occurred in 2000, when Kiyoshk was 14 years old; the trial court had jurisdiction over those counts, held the panel, and they could be reinstated on remand. If the prosecutor intended to reinstate count I, which was also alleged to have occurred “in 1999,” the trial court would need to make a factual determination as to Kiyoshk’s age at the time of the charged offense, the Court of Appeals said.
The prosecutor appeals.

PEOPLE v TRAKHTENBERG (case no. 143386)
Prosecuting attorney: Matthew A. Fillmore
Attorney for defendant Jacob Trakhtenberg: Robyn B. Frankel
Trial Court: Oakland County Circuit Court
The defendant, who was convicted of three counts of second-degree criminal sexual conduct, unsuccessfully sued his attorney for legal malpractice. One issue in this case is whether rulings in that civil case bar the defendant from seeking a new criminal trial on the ground that he was denied his constitutional right to effective assistance of counsel.
Background:
Jacob Trakhtenberg was convicted of three counts of second-degree criminal sexual conduct for the sexual abuse of his daughter. On appeal, Trakhtenberg contended that his trial counsel was ineffective for failing to impeach the victim’s mother, Liliya Tetarly, with evidence showing that she was biased against him. The Court of Appeals affirmed defendant’s convictions.
Tetarly, acting on behalf of her daughter, then filed a civil lawsuit against Trakhtenberg, alleging assault and battery and intentional infliction of emotional distress. A jury returned a verdict in Trakhtenberg’s favor of no cause of action.
Trakhtenberg also filed a civil lawsuit against his criminal defense attorney, claiming that the lawyer had committed legal malpractice. The trial court granted summary disposition in the attorney’s favor and the Court of Appeals affirmed, holding that defense counsel “acted as would an attorney of ordinary learning, judgment or skill under the same or similar circumstances, and her alleged acts and omissions were matters of trial tactics based on reasonable professional judgment.” Trakhtenberg then sought leave to appeal to the Michigan Supreme Court; his application remains pending in that court.
Attempting to vacate his criminal convictions, Trakhtenberg filed a motion for relief from judgment. He argued that he was entitled to a new trial based on newly discovered evidence and due to the ineffective assistance of his

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