adverse presumption in Michigan

2021See Lagalo v Allied Corp (On Remand), 233 Mich App 514, 520-521 ; 592 NW2d 786 (1999), abrogated on other grounds by Kelly v Builders Square, 465 Mich 29, 38 ; 632 NW2d 912 (2001) (explaining difference between adverse presumption instruction and adverse inference instruction).

2021See Lagalo v Allied Corp (On Remand), 233 Mich App 514, 520-521 ; 592 NW2d 786 (1999), abrogated on other grounds by Kelly v Builders Square, 465 Mich 29, 38 ; 632 NW2d 912 (2001) (explaining difference between adverse presumption instruction and adverse inference instruction).

2018“It is well settled that missing evidence gives rise to an adverse presumption only when the complaining party can establish intentional conduct indicating fraud and a desire to destroy evidence and thereby suppress the truth.” Ward v Consol Rail Corp, 472 Mich 77, 84 ; 693 NW2d 366 (2005) (quotation marks and brackets omitted). 4 DTE’s reference to trial proofs, specifically Charles Fricke’s trial testimony, in order to make a hindsight argument that the court’s grant of partial summary disposition was premature, will not be considered by this Court. “[A]ppellate review of the trial court’s d

2018“It is well settled that missing evidence gives rise to an adverse presumption only when the complaining party can establish intentional conduct indicating fraud and a desire to destroy evidence and thereby suppress the truth.” Ward v Consol Rail Corp, 472 Mich 77, 84 ; 693 NW2d 366 (2005) (quotation marks and brackets omitted). 4 DTE’s reference to trial proofs, specifically Charles Fricke’s trial testimony, in order to make a hindsight argument that the court’s grant of partial summary disposition was premature, will not be considered by this Court. “[A]ppellate review of the trial court’s d

2014However, “missing evidence gives rise to an adverse presumption only when the complaining party can establish ‘intentional conduct indicating fraud and a desire to destroy [evidence] and thereby suppress the truth.’ ” Id. at 84 , quoting Trupiano v Cully, 349 Mich 568, 570 ; 84 NW2d 747 (1957).

2014However, “missing evidence gives rise to an adverse presumption only when the complaining party can establish ‘intentional conduct indicating fraud and a desire to destroy [evidence] and thereby suppress the truth.’ ” Id. at 84 , quoting Trupiano v Cully, 349 Mich 568, 570 ; 84 NW2d 747 (1957).

2023Davy v Trustees of Protestant Episcopal Church for Diocese of Mich, 250 Mich 530, 533-534 ; 231 NW 83 (1930).

2023Davy v Trustees of Protestant Episcopal Church for Diocese of Mich, 250 Mich 530, 533-534 ; 231 NW 83 (1930).

2005But always it is the inference and not the presumption that must be weighed against the rebutting evidence. [ Id. at 289 , 373 N.W.2d 538 .] It is well settled that missing evidence gives rise to an adverse presumption only when the complaining party can establish" `intentional conduct indicating fraud and a desire to destroy [evidence] and thereby suppress the truth.'" Trupiano v. Cully, 349 Mich. 568, 570 , 84 N.W.2d 747 (1957), quoting 20 Am.

2005But always it is the inference and not the presumption that must be weighed against the rebutting evidence. [ Id. at 289 , 373 N.W.2d 538 .] It is well settled that missing evidence gives rise to an adverse presumption only when the complaining party can establish" `intentional conduct indicating fraud and a desire to destroy [evidence] and thereby suppress the truth.'" Trupiano v. Cully, 349 Mich. 568, 570 , 84 N.W.2d 747 (1957), quoting 20 Am.

2005The trial court’s erroneous ruling on the adverse presumption and the numerous references by plaintiffs counsel to the ruling during trial fundamentally prejudiced defendant with respect to the FSAA claim because it significantly interfered with the jury’s ability to “ ‘decide the case intelligently, fairly, and impartially.’ ” Cox, supra at 15 (quoting Johnson, supra at 327 ).

2005The trial court's erroneous ruling on the adverse presumption and the numerous references by plaintiff's counsel to the ruling during trial fundamentally prejudiced defendant with respect to the FSAA claim because it significantly interfered with the jury's ability to "`decide the case intelligently, fairly, and impartially.'" Cox, supra at 15 , 651 N.W.2d 356 (quoting Johnson, supra at 327 , 377 N.W.2d 713 ).

2005The trial court’s erroneous ruling on the adverse presumption and the numerous references by plaintiffs counsel to the ruling during trial fundamentally prejudiced defendant with respect to the FSAA claim because it significantly interfered with the jury’s ability to “ ‘decide the case intelligently, fairly, and impartially.’ ” Cox, supra at 15 (quoting Johnson, supra at 327 ).

2005The trial court's erroneous ruling on the adverse presumption and the numerous references by plaintiff's counsel to the ruling during trial fundamentally prejudiced defendant with respect to the FSAA claim because it significantly interfered with the jury's ability to "`decide the case intelligently, fairly, and impartially.'" Cox, supra at 15 , 651 N.W.2d 356 (quoting Johnson, supra at 327 , 377 N.W.2d 713 ).

1976Jennings v Sheldon, 44 Mich 92 ; 6 NW 96 (1880).

1976Jennings v Sheldon, 44 Mich 92 ; 6 NW 96 (1880).

1939“In McLaughlin v. Barnum, 31 Md. 425, 454 , Judge Miller delivering the opinion of the court, uses this language: ‘All that is required to entitle a defendant to claim this equity is that he be a bona fide occupant *25 or possessor, and not a mere tortfeasor or mala fide intruder, holding with full knowledge of his own position and of the adverse claim.’ The supreme court, in Green v. Biddle, 8 Wheat. (21 U. S.) 1, 79, have defined a bona fide possessor, according to the doctrine of the civil law, to be one ‘who not only supposes himself to be the true proprietor of the land, but who is ignora

1915In the last cited case the court said: “The defendant asserted no adverse right to the use or occupancy of the dock, nor did he deny that plaintiff was entitled to compensation for such use.” It is elementary that an action fór use and occupation, being founded on contract, express or implied, will not lie where the occupancy of the one sought to be charged has been tortious, he being a trespasser, or has been under an adverse claim, as where he has acquired, and maintained under a different or adverse title, or disputes the present owner’s title; and a mere trespasser cannot be made liable fo

1906Howatt v. Green, 139 Mich. 289 .

1902Dec. 524 ), this was held to preclude one taking title from asserting an adverse claim under a tax deed based on such a tax in any case; and while this rule is questioned, as too broad, in the case of Blackwood v. Van Vleit, 30 Mich. 118 , that case seems to recognize the rule that one cannot assert such a title where it was his duty to the State to pay the tax, or where it would be inequitable as between him and the holder of the existing title.

1896In this view, it seems to me obvious that the strength of the presumption, the force of the inference from such evidence, must depend much upon the situation of the parties, the nature of the property, and the surrounding circumstances, in each particular case.” See, also, Cook v. Clinton, 64 Mich. 309 ( 8 Am.

1892As was said by Graves, J., in Kunzie v. Wixom, 39 Mich. 384 : “Having repudiated the conditions essential to that tenancy, and set up an adverse claim, he must submit to the consequences.” There is no error in the record, and the judgment is affirmed, with costs to plaintiff.

1890In Wilcoxson v. Andrews, 66 Mich. 553 , it was also held that— “An agreement between a constable and judgment creditor, lor the payment of a sum in excess of the statutory fees allowed for serving an execution, is void as against public policy; nor can such officer evade the statute by recovering on a quantum meruit.” The circuit judge in the present case sought to fix the equitable rights of the parties to the controversy, but there was no warrant of law for the order made, and it must be set aside.

1873And in such case, therefore, when the entry is not shown to have been under an adverse claim of right, the acts of a tenant in possession, to amount to an ouster of the co-tenant, must be substantially such as would constitute an ouster of a landlord by his tenant, or of one to whom he stood in some other fiduciary relation. — Holley v. Hawley, 89 Vt., 534 ; Roberts v. Morgan, 30 Vt., 319 . .It is well settled that neither the sole possession by one who is tenant in common nor his reception and appropriation of all the rents and profits, will amount to an ouster. — 2 Cruise Dig. (by Greenleaf)