Full Text Opinion http://www.michbar.org/file/opinions/appeals/2016/032416/62336.pdf

Issues:

Transfer of a liquor license; Writ of superintending control; Whether the defendant waived the right to challenge the grant of declaratory relief; Steward v. Panek; Standing; Mootness; Standards of review; The Administrative Procedures Act; J & P Mkt., Inc. v. Liquor Control Comm’n; Const. 1963, art. 6, § 28; English v. Blue Cross Blue Shield of MI; Northwestern Nat’l Cas. Co. v. Commissioner of Ins.; MI Admin. Code, R 436.1133(c); Liquor Control Commission (LCC)

Summary:

Holding that the trial court abused its discretion in granting the plaintiff’s request for superintending control and related declaratory relief under the circumstances, the court reversed and remanded for entry of summary disposition in favor of defendant-Baldwin Express. The case arose from a decision of the defendant-LCC granting Baldwin’s request for a transfer of a liquor license. The trial court ordered the LCC to immediately withdraw its approval of Baldwin’s application. Plaintiff contended on appeal that Baldwin challenged plaintiff’s request for a writ of superintending control, but failed to challenge plaintiff’s request for declaratory relief. Thus, plaintiff argued, Baldwin waived the right to challenge the trial court’s order to the extent the order granted declaratory relief. However, it was clear from the lower court record that the “two remedies plaintiff sought were inextricably linked and concerned the same underlying transaction, which is at issue in this appeal.” Further, consideration of the issue was “necessary to a proper determination of the case;” thus, the court had discretion to review the issue. As to the merits, the court concluded that the LCC exercised “its lawful discretion to interpret and apply the relevant regulatory rule.” Given that the “LCC’s decision was not arbitrary or capricious, did not violate a statute or the constitution, and was not based on improper procedure, the decision was authorized by law.” Thus, the trial court lacked “discretion to delve into the facts behind the decision reached by the LCC.”

Full Text Opinion http://www.michbar.org/file/opinions/appeals/2016/032916/62365.pdf

This summary also appears under Negligence & Intentional Tort

Issues:

Negligent/innocent misrepresentation; Zaremba Equip., Inc. v. Harco Nat’l Ins. Co.; Fraudulent/intentional misrepresentation; Requirement that plaintiffs plead a fraud claim with particularity; MCR 2.112(B)(1); Cooper v. Auto Club Ins. Ass’n; Breach of contract claim; Miller-Davis Co. v. Ahrens Constr., Inc.; Elements of a valid contract; AFT MI v. Michigan; Whether the plaintiffs were third-party beneficiaries of the contract between defendant-Stout Risius Ross (SRR) & the General Retirement System of the City of Detroit (GRSCD); Schmalfeldt v. North Pointe Ins. Co.; Denial of motion to amend pleadings; Cole v. Ladbroke Racing MI, Inc.; Futility; Weymers v. Khera; Formall, Inc. v. Community Nat’l Bank of Pontiac

Summary:

The court concluded that there were no genuine issues of material fact to support that defendant-SRR engaged in negligent or innocent misrepresentation, and the plaintiffs’ fraud claim failed for the same reasons as their negligent misrepresentation claim. Further, a waiver letter did not constitute a contract between SRR and plaintiffs. Thus, their breach of contract claim failed as a matter of law. They also were not third-party beneficiaries of the contract between SRR and nonparty-GRSCD, and the trial court did not abuse its discretion in denying as futile their motion to amend their complaint. Thus, the court affirmed the trial court’s grant of summary disposition to SRR. Plaintiffs have a business interest in a corporation that GRSCD retained to manage some of its assets. GRSCD later hired SRR to perform a forensic audit of an investment that GRSCD had made at the corporation’s recommendation. Due to prior dealings, SRR sent a letter to the GRSCD and one of the plaintiffs “requesting that they sign a ‘formal waiver of any potential conflicts.’” After SRR completed its audit, GRSCD sued the corporation and the plaintiffs individually. Plaintiffs then filed this action against SRR. The court concluded that they failed to “allege any facts to support the third, fourth, and fifth elements of their misrepresentation claim.” There were “no facts to support that SRR made a false representation with the intent to induce plaintiffs to rely on that representation” or to support that they “relied on any of SRR’s representations in a manner that injured plaintiffs and benefitted SRR.” Further, they “failed to plead their fraud claim with particularity.” As to their breach of contract claim, “there was no consideration that passed between the parties and SRR did not have any obligation to plaintiffs under the terms of the waiver.” As to their third-party beneficiary argument, “SRR, as the promisor in the GRSCD-SRR audit contract, did not undertake to give or do or refrain from doing anything directly to or for plaintiffs.” It “undertook to perform an audit for the GRSCD. None of the benefits of that contract were intended to flow to” plaintiffs, who were “simply the owners of the investment firm that managed” the investment to be audited.

Full Text Opinion http://www.michbar.org/file/opinions/appeals/2016/042116/62537.pdf

Issues:

Jury instructions; Request for a special jury instruction; Right to a properly instructed jury; People v. Dobek; Model jury instructions; MCR 2.512(D)(2); The trial court’s discretion to modify the model instructions; MCR 2.512(D)(4); Bouverette v. Westinghouse Elec. Corp.; Standard home invasion instruction; M Crim JI 25.2a (formerly CJI2d 25.2a); First-degree home invasion; MCL 750.110a(2); People v. Wilder; People v. Mosher (Unpub.); “Dwelling” defined; MCL 750.110a(1)(a); “Structure,” “shelter,” & “abode” defined; A breaking of an inner portion of a building; People v. Toole; People v. Brownfield (After Remand); Bowie v. State (TX App.); Cartey v. State (FL App.); State v. Cookson (ME); People v. Clark; Statutory construction; People v. Loper; People v. Armstrong; People v. Giovannini; Principle that Court of Appeals decisions published before 11/01/90 are not binding; MCR 7.215(J)(1); Principle that unpublished opinions are not binding; MCR 7.215(C)(1); People v. Green

Summary:

The court held that “a factual scenario in which a person lawfully enters a home, but then breaks and enters or enters without permission an interior room within the home,” does not “fall within proscribed conduct under the plain language of MCL 750.110a(2).” Thus, the trial court erred by granting the prosecution’s request to provide a special home invasion jury instruction because the instruction did not properly inform the jury of the applicable law. Defendant was charged with first-degree home invasion, felonious assault, and resisting or obstructing a police officer arising out of his assault of a woman who had allegedly barricaded herself in a bedroom in a house they apparently shared at times. Because he had permission to be in the house, the prosecution believed the standard home invasion jury instruction was insufficient and instead requested the following instruction: “‘Where a [d]efendant [g]ains access to a building without breaking, but has no right to enter an inner portion of that building, the defendant’s use of force to gain entry into that inner portion is a breaking.’” The trial court granted the request. The court denied his appeal. The Supreme Court then remanded the matter to the court for consideration of the jury instruction issue. On remand, the court found that the home invasion statute does not allow “the prosecution of a person who, while lawfully inside a dwelling, accesses an inner portion of the dwelling that he or she does not have permission to enter.” It noted it is “evident that the term ‘dwelling’ . . . refers to the whole structure or shelter used as a place of residence.” Once a defendant “enters a dwelling with permission, he cannot unlawfully enter the same dwelling where he is already lawfully present. This becomes clear when one considers that a ‘dwelling,’ under the definition of the term the Legislature supplied, includes a ‘structure,’ used as a ‘place of abode.’ Nowhere did the Legislature define this term to include the component parts of the structure. If instead the Legislature wanted to include interior rooms within ‘a structure or shelter that is used permanently or temporarily as a place of abode’ . . . as ‘dwellings’” it “could have done so,” but “thus far has not.” Reversed and remanded.

Full Text Opinion http://www.michbar.org/file/opinions/appeals/2016/032216/62306.pdf

Issues:

Admission of a rap video; Relevance; MRE 401; People v. Mills; MRE 403; People v. Schaw; People v. Blackston; People v. Foster (Unpub.); Harmless error; People v. Lukity; Due process; Coleman v. Mitchell; Waiver of instructional error claim; People v. Kowalski; Ineffective assistance of counsel; People v. Uphaus (On Remand); People v. Carbin; MRE 105; Failure to obtain an expert; People v. Dixon; A “substantial defense”; In re Ayres; Failure to request a voluntary manslaughter instruction; People v. Mendoza; Failure to make a futile request; People v. Unger; Denial of motion for a new trial; Alleged “finger-pointing” by a codefendant’s counsel during closing arguments; Failure to conduct an evidentiary hearing; Motion for a new trial based on a recanting witness’s affidavit; People v. Blair; Prosecutorial error; “Vouching”; People v. Thomas; Reference to a plea agreement containing a promise of truthful testimony; People v. Bahoda; Whether convictions for felony murder & the underlying armed robbery felony violated the protections against double jeopardy; People v. Ream; People v. Smith; Assault with intent to do great bodily harm (AWIGBH); Felon in possession (FIP)

Summary:

In these consolidated appeals, the court held that the challenged rap video was relevant and, as used in this joint trial, was not unfairly prejudicial under MRE 403. Further, it did not violate defendant-Slaughter-Butler’s due process rights. The court also rejected both defendants’ ineffective assistance of counsel claims, and concluded that the trial court did not abuse its discretion in denying Slaughter-Butler’s motions for a new trial. Slaughter-Butler was convicted of felony murder, armed robbery, three counts of AWIGBH, and felony-firearm. Defendant-Overstreet was convicted of the same crimes and FIP. Four men were shot and one killed during a robbery. At trial, L and H testified that another man (Foster) had planned the robbery and that they, along with the defendants here, participated in it. The court concluded that “the trial court abused its discretion in holding that the rap video was relevant to Slaughter-Butler’s intent because it was a celebration, by the participants, of the commission of violent crimes and robberies.” The video was played for the jury once, and after reviewing it, the court found “it would have been impossible for the jury to understand the lyrics, except for a few select words, after hearing it just one time.” However, because L and H “offered relevant testimony, the question whether they testified truthfully and accurately was itself relevant.” They testified that they were in a rap group, and that the group “included Foster and Slaughter-Butler. It was undisputed that these four men, but not Overstreet, were in the rap video.” Thus, it “had a tendency to make it more likely than not that a close connection” existed between “the testifying codefendants and Slaughter-Butler that did not exist” between L, H, and Overstreet. Because L and H “attributed an apparent greater culpability to Slaughter-Butler than to Overstreet, the rap video had a tendency to make it more likely than not” that they “were testifying truthfully and accurately.” The court noted that the “basis for admitting the video in this case was entirely different” than in Foster’s case, and it was “not constrained to reach the same conclusion” as in his appeal (that its admission was erroneous). Further, any “evidentiary error was harmless.” Affirmed.

Full Text Opinion http://www.michbar.org/file/opinions/us_appeals/2016/040416/62389.pdf

Issues:

Whether a defendant can be convicted of violating 18 USC § 924(c) twice on the sole basis of using the same firearm one time to simultaneously further two different conspiracies; United States v. Johnson; Applicability of “underlying offense” case law analysis; United States v. Taylor; United States v. Burnette; United States v. Nabors; United States v. Graham; One § 924(c) charge for one “use”; United States v. Rentz (10th Cir.); United States v. Phipps (5th Cir.); Hobbs Act convictions; United States v. Turner; United States v. Stewart; United States v. Ostrander; Jackson v. Virginia; United States v. Cecil; United States v. Baugh (Unpub. 6th Cir.); United States v. Lanier (Unpub. 6th Cir.); “Double jeopardy” & claims of “multiplicity”; U.S. Const. amend. V; United States v. Swafford; United States v. Sinito; United States v. Goff (Unpub. 6th Cir.); Whether the defendant’s sentence was “substantively unreasonable”; Sufficient evidence that the defendant was a felon possessing a firearm; United States v. Walker; United States v. Campbell; United States v. Garcia; United States v. Arnold

Summary:

In an issue of first impression, the court held that the simultaneous violation of two federal conspiracy statutes (Hobbs Act robbery and drug trafficking) could not support four counts of using a firearm to further these conspiracies in violation of § 924(c) (two for each robbery) on the sole basis of one firearm use for each robbery. “This case presents an issue of first impression in our circuit:  whether a defendant can be convicted of violating § 924(c) twice on the sole basis of using the same firearm one time to simultaneously further two different conspiracies.” The court declined to apply the rationale used in “underlying offense” case law, and instead applied Johnson to hold that “[i]n order for the government to convict a defendant of more than one § 924(c) charge, the defendant must use, carry, or possess a firearm—even if it is the same one—more than once.” Under the “rule of lenity,” the court noted that “‘the government must prove both a use, carry, or possession, as well as a qualifying crime.’” The defendant “took one affirmative firearm act (brandishing a handgun) while simultaneously committing two predicate offenses (conspiring to commit Hobbs Act robbery and to traffic drugs), and this does not support two § 924(c) convictions.” The court vacated two of the § 924(c) convictions, and remanded for entry of a revised judgment and sentence. It affirmed the defendant’s Hobbs Act convictions, finding that “the evidence supporting an interstate nexus for both robberies [wa]s more than enough” to allow a trier of fact to find the essential elements of a Hobbs Act violation beyond a reasonable doubt. The court rejected the defendant’s claim of a “multiplicity” violation on his two conspiracy charges, concluding that three of the five relevant factors militated against finding an “overarching conspiracy.” It also concluded that his sentence was not “substantively unreasonable.” Finally, there was sufficient evidence to convict him of being a felon in possession of a firearm where “at a minimum, defendant constructively possessed a firearm,” and there was sufficient incriminating evidence, including the “defendant’s own statements connecting him to the gun . . . .”

Full Text Opinion http://www.michbar.org/file/opinions/appeals/2016/032216/62318.pdf

Issues:

No-fault personal protection insurance benefits; Whether the plaintiff was an “out-of-state resident” at the time of the accident; MCL 500.3163(1); Tienda v. Integon Nat’l Ins. Co.; Distinguishing “residence” & “domicile”; Grange Ins. Co. of MI v. Lawrence; Workman v. DAIIE; Dairyland Ins. Co. v. Auto-Owners Ins. Co.; Whether defendant-Geico General Insurance Company should be estopped from relying on alternative bases for denying plaintiff’s request for benefits under the “mend the hold” doctrine; Smith v. Grange Mut. Fire Ins. Co. of MI; Reimold v. Farmers Mut. Ins. Co.; Power of attorney (POA)

Summary:

Holding that the plaintiff was not an “out-of-state resident” for purposes of MCL 500.3163 at the time of the accident, the court concluded that the trial court erred in ruling that defendant-Geico was obligated to pay her Michigan no-fault benefits. Further, Geico’s assertion of an alternate ground for denying her claim was not inequitable under the facts of the case. Thus, it reversed the trial court’s decision in Docket No. 324698, vacated its opinion and order granting plaintiff summary disposition, and vacated its order compelling Geico to reimburse defendant-Frankenmuth Mutual Insurance Company and pay costs and interest. The court declined to consider the other issues raised in Docket No. 324698 and those raised in Docket No. 325225. In Docket No. 325225, it vacated the trial court’s order compelling Geico to pay plaintiff’s costs as a prevailing party. It remanded for entry of an order granting Geico’s summary disposition motion and for further proceedings. The court concluded that the undisputed facts showed plaintiff “had established her domicile in Lansing, Michigan just before her accident.” Thus, MCL 500.3163 did not apply. Geico insured her van under a policy issued when she lived in Virginia. Plaintiff admitted that “she no longer had a physical residence in Virginia.” She vacated her apartment, placed most of her personal property in storage, and left “to travel across the country and visit with family.” Once she arrived in Lansing, there was evidence that she “intended to adopt a new domicile, at least for an indefinite period, in Michigan.” She used her POA “to act on her husband’s behalf and entered into a year-long lease for an apartment. Although she denied that she intended to permanently move to Michigan,” plaintiff “agreed that she planned on staying in the apartment until her husband’s deployment ended and he received his new assignment. She further indicated that the stay could be for weeks.” Because plaintiff “no longer had a physical residence in Virginia when she entered into the lease in Lansing, her acquisition of a physical residence in Lansing along with the intent to stay there for the time being was sufficient to effect a change in domicile.”

Full Text Opinion http://www.michbar.org/file/opinions/appeals/2016/032916/62365.pdf

This summary also appears under Contracts

Issues:

Negligent/innocent misrepresentation; Zaremba Equip., Inc. v. Harco Nat’l Ins. Co.; Fraudulent/intentional misrepresentation; Requirement that plaintiffs plead a fraud claim with particularity; MCR 2.112(B)(1); Cooper v. Auto Club Ins. Ass’n; Breach of contract claim; Miller-Davis Co. v. Ahrens Constr., Inc.; Elements of a valid contract; AFT MI v. Michigan; Whether the plaintiffs were third-party beneficiaries of the contract between defendant-Stout Risius Ross (SRR) & the General Retirement System of the City of Detroit (GRSCD); Schmalfeldt v. North Pointe Ins. Co.; Denial of motion to amend pleadings; Cole v. Ladbroke Racing MI, Inc.; Futility; Weymers v. Khera; Formall, Inc. v. Community Nat’l Bank of Pontiac

Summary:

The court concluded that there were no genuine issues of material fact to support that defendant-SRR engaged in negligent or innocent misrepresentation, and the plaintiffs’ fraud claim failed for the same reasons as their negligent misrepresentation claim. Further, a waiver letter did not constitute a contract between SRR and plaintiffs. Thus, their breach of contract claim failed as a matter of law. They also were not third-party beneficiaries of the contract between SRR and nonparty-GRSCD, and the trial court did not abuse its discretion in denying as futile their motion to amend their complaint. Thus, the court affirmed the trial court’s grant of summary disposition to SRR. Plaintiffs have a business interest in a corporation that GRSCD retained to manage some of its assets. GRSCD later hired SRR to perform a forensic audit of an investment that GRSCD had made at the corporation’s recommendation. Due to prior dealings, SRR sent a letter to the GRSCD and one of the plaintiffs “requesting that they sign a ‘formal waiver of any potential conflicts.’” After SRR completed its audit, GRSCD sued the corporation and the plaintiffs individually. Plaintiffs then filed this action against SRR. The court concluded that they failed to “allege any facts to support the third, fourth, and fifth elements of their misrepresentation claim.” There were “no facts to support that SRR made a false representation with the intent to induce plaintiffs to rely on that representation” or to support that they “relied on any of SRR’s representations in a manner that injured plaintiffs and benefitted SRR.” Further, they “failed to plead their fraud claim with particularity.” As to their breach of contract claim, “there was no consideration that passed between the parties and SRR did not have any obligation to plaintiffs under the terms of the waiver.” As to their third-party beneficiary argument, “SRR, as the promisor in the GRSCD-SRR audit contract, did not undertake to give or do or refrain from doing anything directly to or for plaintiffs.” It “undertook to perform an audit for the GRSCD. None of the benefits of that contract were intended to flow to” plaintiffs, who were “simply the owners of the investment firm that managed” the investment to be audited.

Full Text Opinion http://www.michbar.org/file/opinions/appeals/2016/032916/62355.pdf

Issues:

Duty of care; Doe v. Henry Ford Health Sys.; Fultz v. Union-Commerce Assoc.; Clark v. Dalman; Bailey v. Schaaf (On Remand); Whether there is a duty of care by an “organizer of an outdoor event . . . to warn a spectator of approaching severe weather”; Dykema v. Gus Macker Enters., Inc.; Whether there is a duty of care to exercise reasonable care in contractual undertakings; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Scott v. Harper Recreation, Inc.; Breach; Badiee v. Brighton Area Schs.; Alleged breach of the duty of reasonable care when installing the tent flap behind the fryer despite knowing that a storm was imminent; Hill v. Sears, Roebuck & Co.; Right result reached for the wrong reason; Etefia v. Credit Techs., Inc.; “Open & obvious danger”; Buhalis v. Trinity Continuing Care Servs.; Laier v. Kitchen; Eason v. Coggins Mem’l Christian Methodist Episcopal Church; Duty owed to “licensees”; Stitt v. Holland Abundant Life Fellowship; Pippin v. Atallah

Summary:

The court held that the undisputed evidence showed that defendants-Kalamazoo Jaycee, Dastoli & Associates, and Events were entitled to summary disposition. However, it held that the trial court erred in dismissing the claims against defendant-Shawarma; as a premises possessor, Shawarma owed plaintiffs-Arwa and Ibtihaj “a duty of care and there was evidence that—when considered in the light most favorable to them—would permit a reasonable jury to find that Shawarma breached the duty and caused the injuries at issue.” Whether the open and obvious danger doctrine applied under the facts must be determined by the finder of fact. Thus, it affirmed in part, reversed in part, and remanded. Arwa and her then six-year-old daughter, Ibtihaj, went to the Kalamazoo Island Festival and were injured when the “winds billowed in the tent walls, which apparently struck and knocked over the table with the hot-oil fryer.” They argued that the trial court erred when it determined that Jaycee, Dastoli, Events, and Shawarma did not owe them any duty of care. There was “no evidence that Jaycee or Events took any action that caused the hot-oil fryer to fall and injure Arwa and Ibtihaj.” Further, to the extent that their “visit to the festival gave rise to a special relationship with Jaycee and Events—as the organizer and manager of the festival”—the court has held that “there is no duty on the ‘organizer of an outdoor event . . . to warn a spectator of approaching severe weather.’” Rather, inclement weather is “readily apparent to reasonably prudent people” and thus, it is “one’s own responsibility to protect himself from the weather.” Since Jaycee and Events did “not actively contribute to the creation of the danger at issue and had no duty to warn of impending inclement weather, the trial court did not err when it determined that Arwa and Ibtihaj could not establish that either Jaycee or Events breached its duty of care to them.” Alternatively, plaintiffs argued that “Events voluntarily undertook the task of monitoring the weather and using the information to protect the festivalgoers.” For that reason, they contended, Events “agreed to conduct this task with reasonable care and failed to do so by warning the festivalgoers belatedly and inadequately.” However, there was no evidence that Jaycees or Events explicitly guaranteed the plaintiffs’ safety as to inclement weather or the appliances used by vendors. Thus, there was no evidence to support the imposition of this duty.

Full Text Opinion http://www.michbar.org/file/opinions/appeals/2016/032916/62366.pdf

Issues:

Termination under §§ 19b(3)(c)(i), (g), & (j); In re Moss Minors; In re Mason; Children’s best interests; In re White

Summary:

The trial court properly terminated the respondent-mother’s parental rights to the children where the statutory grounds for termination were established by clear and convincing evidence and termination was in the children’s best interests. As to § (c)(i), more than 182 days elapsed between the issuance of the initial disposition order and the termination decision, and the conditions that led to adjudication, namely her mental health problems, her failure to obtain adequate housing, and her ongoing problems as to domestic violence continued to exist. Also, there was “no reasonable likelihood that the conditions would be rectified within a reasonable time considering the ages of the children given” that she “failed to make substantial progress with regard to the conditions between the initial disposition and the termination of her parental rights.” Further, the trial court did not err in deciding that termination was proper under § (g). The facts also established that respondent “did not provide proper care or custody for the children and that there was no reasonable expectation” she “would be able to provide proper care and custody within a reasonable time considering the ages of the children.” Further, they would have been at risk of harm in her “care given her continuing issues with drug use, domestic violence, and mental health. The evaluating psychologist testified that the oldest child, SRT, in particular, was likely to develop polarity, like respondent, if left in a chaotic environment. He also did not believe that respondent and SRT were a ‘good match’ considering respondent’s own mental health problems.” She had “ongoing substance abuse problems, lacked adequate housing, and continued to maintain a relationship with a man who had engaged in domestic violence in spite of her domestic violence classes.” Thus, the trial court did not err in deciding that termination of her parental rights was proper under § (j). Affirmed.