e-Journal

The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), and the U.S. Sixth Circuit Court of Appeals (published).

Case Summaries e-Mail to a Friend Printer Friendly Version

Cases appear under the following practice areas:

Corrections (1)
Criminal Law (7)
Environmental Law (1)
Family Law (2)
Litigation (1)
Termination of Parental Rights (2)

Corrections

skip to next practice area

Issues: The State Correctional Facility Reimbursement Act (SCFRA) (MCL 800.401 et seq.); MCL 800.404(1) & (3); "Assets" defined (MCL 800.401a(a)); The anti-alienation provision of the ERISA (29 USC § 1056(d)(1)); "Assignment" or "alienation" defined (26 CFR §§ 1.401(a)-13(c)(1)(ii)); State Treasurer v. Abbott; Guidry v. Sheet Metal Workers Int'l Ass'n (Guidry II) (10th Cir.); Binding effect of Michigan Supreme Court precedent; Paige v. Sterling Heights; Guidry v. Sheet Metal Workers Nat'l Pension Fund (Guidry I); ERISA preemption; 29 USC § 1144(a); Mackey v. Lanier Collection Agency & Serv.; Due process rights under the Fourteenth Amendment; Substantive due process; Wilson v. Taylor; Procedural due process; Al-Maliki v. LaGrant

Court: Michigan Court of Appeals (Unpublished)

Case Name: State Treasurer v. Letzgus

e-Journal Number: 53689

Judge(s): Per Curiam – Talbot, Wilder, and Stephens

The court held that the trial court's order did not constitute alienation or assignment of the defendant's pension benefits and thus, did not violate ERISA. The court affirmed the trial court's order requiring defendant to direct his pension plan to send his pension checks to his prison address and ordering the warden to direct 90% of the benefits from defendant's prison account to the state on a monthly basis. The court also rejected defendant's claim that the trial court's order violated his due process rights under the Fourteenth Amendment. The court noted that the Michigan Supreme Court addressed a similar argument in Abbott. "Here, as in Abbott, the trial court did not order defendant to have his funds sent to another person, but instead, simply ordered him to have the benefits sent to his prison address." The trial court did not transfer legal title in the pension benefits to the warden or any other person, and no other person had rights enforceable against the plan itself. "Rather, the trial court ordered the warden to direct a portion of the funds to the state only after defendant received the funds at his prison address and deposited them into his prison account." Defendant argued that ERISA's anti-alienation provision extends to benefits once they have been disbursed to the beneficiary, citing a dissenting opinion in Guidry II. However, the Supreme Court addressed and resolved this argument in Abbott. Since the court was bound by the Supreme Court's precedent, "the trial court did not violate ERISA when it ordered pension benefits held in defendant's bank account or prison account be directed to the state under the SCFRA." Defendant also cited Guidry I in support of his claim that the U.S. Supreme Court "'held specifically that it is inappropriate to approve any generalized equitable exceptions to [29 USC 1056(d)(1)].'" However, the court concluded that his reliance on Guidry I was misplaced. "In that case, the Supreme Court held that a constructive trust imposed on future unpaid pension benefits violated ERISA's anti-alienation provision." The trial court here did not impose a constructive trust on defendant's unpaid pension benefits and its order did not impact the plan itself. Rather, the order impacted pension benefits that had already been sent to defendant and deposited into his prison account. "ERISA's anti-alienation provision does not extend to pension benefits that have been disbursed to the pensioner." The court also rejected defendant's argument that the SCFRA was preempted by ERISA. Pursuant to SCFRA, the trial court ordered the warden to direct defendant's pension benefits to the state only after they were disbursed by the plan and received by defendant. The order "did not burden or infringe on the benefit plan itself. Thus, because the SCFRA does not relate to or have any impact on an employee benefit plan," it was not preempted by ERISA.

Full Text Opinion

Criminal Law

skip to next practice area

Issues: Motion for directed verdict of acquittal on CSC III charge; MCR 6.419(B); People v. Lemmon; People v. Schultz; People v. Harverson; Circumstantial evidence and reasonable inferences; People v. Carines; People v. Hardiman; Questions of credibility; People v. Harrison; People v. Wolfe; Identity element; People v. Yost; Identification testimony; People v. Davis; MCL 750.520h; People v. Phelps; CJI2d 2.6; "Plain error" review; "Hearsay" (MRE 801(c)); People v. Stamper; The "excited utterance" hearsay exception (MRE 803(2)); People v. McLaughlin; People v. Smith; Statements made for the purposes of medical diagnosis hearsay exception (MRE 803(4)); People v. Meeboer (After Remand); MRE 701; Applicability of United States v. Lopez-Medina (6th Cir.); Prosecutorial misconduct; People v. Jones; People v. Mann; People v. Bahoda; People v. Dobek; People v. Ackerman; Presumptions that jury instructions are curative and that jurors follow their instructions; People v. Bauder; Ineffective assistance of counsel; People v. Fonville

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Adkins

e-Journal Number: 53734

Judge(s): Per Curiam – Owens, Fitzgerald, and Riordan

Holding, inter alia, that the trial court did not err in denying the defendant's motion for a directed verdict of acquittal because, based on the victim's testimony, there was sufficient evidence for the jury to find him guilty, the court affirmed his CSC III conviction. The jury found defendant not guilty of CSC IV. The victim testified that defendant was her assailant. She attended a birthday party thrown by college students for a friend. According to the victim, earlier in the night defendant had been wearing a white shirt and green basketball shorts. She was eventually moved to his bed and was awakened by someone wearing a white shirt that was tugging on her pants. Further, "defendant had a bad body odor or stench and she could smell it while he was in bed with her and any other time she was around him. Thus, although she did not see her assailant's face, she was sure it was defendant because of what he did to her earlier in the night in the bathroom, the fact the assailant was wearing a white shirt, and the particular odor of her assailant." The court noted that the jury was responsible for determining whether the victim's testimony was credible and whether to believe any or all of her testimony. The jury was also free to find defendant guilty based solely on the victim's testimony without any additional evidence. While he contended that the victim's testimony conflicted with her police statements and that the jury could not reasonably believe he committed CSC III and not believe he committed CSC IV, a jury does not have to accept all testimony as true and can determine whether to believe some, all, or none of a witness's testimony. Defendant also argued that only the DNA evidence could have possibly identified him as the assailant, but the DNA evidence was not conclusive. The court concluded that this argument was meritless. A Michigan State Police forensic scientist testified that defendant could not be excluded as a possible donor based on a DNA analysis of 10 out of 13 loci and that the probability of a random person matching the DNA mixture in this case was "'one in 60,000 in the Caucasian population and one in 44,000 in the African American, and one in 24 of the Hispanic.'" The jury was responsible for determining what weight to give this evidence. "The jury was free to determine that the DNA evidence was persuasive and what inferences could be drawn from it including whether defendant was the donor or not." The court held that based on the victim's testimony and the DNA evidence, there was sufficient evidence to support the jury's verdict.

Full Text Opinion

Issues: Sufficient evidence to support the defendant's convictions of first-degree murder for the killing of his girlfriend, H, and second-degree murder for the killing of A, the wife of defendant's cousin; People v. Tombs; People v. Carines; People v. Kanaan; People v. Wolfe; People v. Nowack; Credibility; People v. Unger; "Premeditation and deliberation"; People v. Bennett; People v. Anderson; People v. Plummer; "Self-defense"; People v. Dupree; The Self-Defense Act; MCL 780.972; People v. Gonzalez; People v. Schollaert

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Beebe

e-Journal Number: 53719

Judge(s): Per Curiam – Gleicher, O’Connell, and Murray

The court held that the prosecutor presented sufficient evidence from which the jury could conclude beyond a reasonable doubt that defendant was the individual who killed A and that he killed H with premeditation and deliberation rather than in self-defense. Thus, the court affirmed his convictions and sentences. He challenged the sufficiency of the evidence, arguing that the prosecutor failed to prove that he killed A and failed to disprove his claim of self-defense in relation to H's shooting. Defendant's challenge to A failed because it was based on witness credibility. Defendant was the only living witness to the shooting. He alone claimed that H shot A and the jury disbelieved his tale. Supporting the jury's verdict, the forensic team found only defendant's DNA evidence on the .410 rifle used to shoot A. Further, defendant's deceptive actions following A's death, including his attempts to hide the bodies and clean up the scene, his false declarations of ignorance as to A's whereabouts, and his feigned pleas for information from the public evidence "consciousness of guilt." Also, he offered no explanation for the premortem bruises, scratches, and abrasions suffered by A, which otherwise implied that she was involved in a struggle. The jurors adjudged the credibility of the witnesses, weighed the evidence, and made rational inferences from the information placed before them. The court would not interfere with the jury's determination that defendant, not H, killed A. The prosecutor also presented sufficient evidence to support his first-degree premeditated murder conviction as to H. The prosecutor presented sufficient evidence to establish defendant's intent and to disprove his claim of self-defense. First, the prosecutor injected reasonable doubt as defendant's honest belief that he was in danger of death or serious harm. Second, the physical evidence was inconsistent with defendant's claim that he accidentally shot H in the back of her head while struggling for the shotgun. Third, even if defendant's first shot at H was taken in self-defense, there was no evidence that he believed he was in continuing danger when he fired the second time. The prosecutor also sufficiently supported the theory that he acted with premeditation and deliberation. The prosecutor presented evidence that H and defendant had a "rocky" relationship. Defendant's mother and H's daughter also testified that defendant may have physically abused H in the past. There was some evidence that defendant took steps before the shootings to prepare. Also, after the shootings, he went to great lengths to conceal his crime. The manner of the killing also supported an inference that defendant acted with premeditation and deliberation.

Full Text Opinion

Issues: Whether the prosecution established the corpus delicti of the crime of possession with intent to deliver 1000 grams or more of cocaine; People v. King; People v. Schumacher; People v. Konrad; People v. Mumford; Sufficiency of the evidence to support defendant's conviction; People v. Nowack; Motion to suppress defendant's police statements; Miranda v. Arizona; Whether defendant was "in custody"; People v. Coomer; Howes v. Fields; Whether defendant's statements were "voluntary"; People v. Gipson; People v. Sexton (After Remand); Jury instruction on accomplice testimony; "Plain error" review; People v. Carines; Ineffective assistance of counsel; People v. Solmonson; Double jeopardy; People v. Herron; Remand for resentencing; People v. Jackson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Croton

e-Journal Number: 53732

Judge(s): Per Curiam – Owens, Fitzgerald, and Riordan

Holding, inter alia, that there was sufficient circumstantial evidence to establish the corpus delicti and that the trial court properly denied the defendant's motion to suppress his inculpatory police statements, the court affirmed his convictions of possession with intent to deliver 1000 grams or more of cocaine and conspiracy. However, the court vacated his conviction for possession of 1000 grams or more of cocaine on double jeopardy grounds and remanded for resentencing. Defendant argued that his confession was the only evidence that any cocaine existed or that he possessed any cocaine. He told his daughters (M and T) that he buried the cocaine, and it was never recovered. The court concluded that the testimony established - (1) defendant intended to purchase cocaine in Texas, (2) M saw a package that, based on her experience with drugs and drug-dealers, she assumed was cocaine, (3) "large quantities of cocaine are typically transported the same way that the cocaine was allegedly transported in this case," (4) defendant told T he purchased two kilos of cocaine, (5) he told T and M that he buried the cocaine, and (6) he told T and M that he needed to "cut" the cocaine. "That is all circumstantial evidence that defendant had cocaine and that he possessed it. Perhaps, standing alone, they do not show defendant's guilt beyond a reasonable doubt" - however, there only needs to be a preponderance of direct or circumstantial evidence other than the inculpatory statement in order to satisfy the corpus delicti rule. Defendant also argued that his inculpatory statements should have been excluded because they were taken in violation of Miranda and were not voluntary. The court held that he was not in custody and thus, the police were not required to read him his Miranda rights. Two "major facts" leaned toward finding a custodial situation - defendant was incarcerated and the interview was long. "However, the trial court found that the interview was long because defendant made it long, so that fact actually cuts against a custodial environment." Further, "several key facts" weighed "strongly in favor of a non-custodial environment." Defendant initiated the interview, and he was not restrained during the interview. He was allowed coffee and bathroom breaks. There were no threats or abuse alleged. Rather, the record showed "that this was a relaxed conversation between the police detective and defendant that was initiated by defendant and primarily directed by defendant." The court also held that his statements were voluntary. Affirmed in part, vacated in part, and remanded.

Full Text Opinion

Issues: Whether the police officers' entry into defendant's apartment was unconstitutional; "Plain error"; People v. Carines; People v. Unger; United States v. Sanchez (2nd Cir.); "Exigent circumstances"; People v. Beuschlein; Whether reliance on People v. Moreno was misplaced; Whether the jury should have been instructed that the prosecution must prove the lawfulness of defendant's underlying arrest and that he had a common-law right to resist an unlawful arrest; People v. Carter

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Howell

e-Journal Number: 53718

Judge(s): Per Curiam – Donofrio, Fort Hood, and Servitto

Because defendant's warrantless arrest in his apartment was not unconstitutional and he waived appellate review of his claim of instructional error, the court affirmed his conviction of resisting or obstructing a police officer causing injury. His conviction stemmed from a domestic disturbance. At trial, H (defendant's daughter) denied that she had called 911, denied that defendant had allowed the officers to enter the apartment, and denied that she had allowed the officers into the apartment. Defendant contended that the officers' entry into his apartment was unconstitutional because he did not give them permission to enter, they did not have a warrant for his arrest, and there were no exigent circumstances that would have justified their entry into the apartment. The record belied defendant's contention that he did not consent to the officers' entry. Officer C testified that after negotiating with him and attempting to calm him down, defendant stepped aside and allowed the officers to enter the apartment. Defendant's conduct in stepping aside and allowing the officers to enter constituted consent to enter the apartment without a warrant. Thus, the record showed that defendant consented to the officers' entry into the apartment. Their entry into the apartment was also proper because there existed exigent circumstances that justified the officers' entry. They had probable cause to believe that a crime had recently been committed in the apartment and that defendant had committed it. They were dispatched to defendant's apartment because of a 911 call as to a domestic disturbance. The caller had indicated that her father was "out of control." When the officers arrived, they heard loud music and a man screaming inside the apartment. When defendant opened the door, he appeared agitated and upset and wanted to know why the officers were there. C observed H crying near the back of the living room. Because of the nature of the dispatch, C wanted to talk to H to ensure that she was safe. Defendant, however, told H that she was not permitted to talk to the officers and told the officers they were not talking to H. Thus, specific and objective facts indicated that immediate action was necessary to ensure H's safety. Based on the exigent circumstances that existed, the police officers' entry into defendant's apartment was lawful. His warrantless arrest inside his apartment did not violate his constitutional protections. Defendant's reliance Moreno was misplaced.

Full Text Opinion

Issues: Whether the trial court properly admitted "other acts" evidence pursuant to MRE 404(b)(1); People v. Benton; People v. Unger; People v. VanderVliet; People v. Golohowicz; People v. Ho; Defendant's identity; People v. Oliphant; People v. Hine; MRE 403; People v. Crawford; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Saunders

e-Journal Number: 53692

Judge(s): Per Curiam - Talbot, Wilder, and Stephens

In this case where the jury convicted the defendant of CSC I, kidnapping, and AWIGBH, the court held that the trial court did not abuse its discretion in admitting the other acts evidence under MRE 404(b). The trial court properly determined that the evidence was offered for a proper purpose, and properly weighed the probative value of the evidence against the potential for undue prejudice under MRE 403. Also, the trial court provided a limiting instruction directing the jury not to consider the evidence for propensity purposes. Thus, defendant failed to show that the trial court committed an evidentiary error that denied him his right to a fair trial. The case arose from an incident in 1/10. The victim alleged that she met defendant outside a store. During the encounter, she testified that defendant offered to assist her in the purchase of some "loose cigarettes" from the store. The victim agreed to have sex with defendant in exchange for him providing her with crack cocaine. They went to an abandoned home. The windows and doors were boarded up and the victim waited for defendant to climb through a window and let her into the home. One inside, they smoked crack cocaine. Defendant told her to take off her clothes and she complied. He tried to have sex with her, however, she testified that she could not have sex with him because she felt like she had to go the bathroom every time he penetrated her. She went to the bathroom. Defendant hit her on the head with a hammer. She testified that he continued to punch her when she would not have sex with him, threatened to make her perform oral sex on his dogs, and penetrated her vagina with the hammer handle. The prosecution gave pretrial notice of its intent to introduce other acts testimony from three women who claimed that defendant "accosted and raped" them after having agreed to exchange crack cocaine for sex under similar circumstances (luring them to an abandoned home with promises of crack cocaine for sex). He then beat them, raped them, and held them captive against their will. The prosecutor argued that the other acts evidence showed a "similar pattern of behavior, a modus operandi" and "[i]t goes to the issue of consent and all of the questions before the Court." The court concluded that the other acts evidence was logically relevant to show that defendant engaged in a common plan or scheme where he lured prostitutes to his abandoned home with promises of crack cocaine in exchange for sex. The trial court gave a legally sufficient explanation of why the evidence was more probative than prejudicial, and did not abuse its discretion in doing so. Affirmed.

Full Text Opinion

Issues: Right to proceed without counsel; Faretta v. California; Martinez v. Court of Appeal of CA; Waiver of counsel; Iowa v. Tovar; U.S. v. Williams; U.S. v. McBride; U.S. v. Cromer; Competency hearing; Godinez v. Moran; U.S. v. McDowell; Attempt to delay trial; King v. Bobby; U.S. v. Herrera-Martinez; Need for counsel at competency hearing; 18 USC § 4247(d); U.S. v. Franklin; Evidence of competency at one point during the proceedings; Drope v. Missouri; U.S. v. White; Competence threshold for self-representation; Indiana v. Edwards; Self-representation at a competency hearing; U.S. v. Zedner (2nd Cir.); U.S. v. Klat (DC Cir.); U.S. v. Purnett (2nd Cir.); Black v. Bell; Assistance of standby counsel; McKaskle v. Wiggins; U.S. v. Jones; Wise v. Bowersox (8th Cir.); "Meaningful adversarial testing" standard; U.S. v. Cronic; U.S. v. Collins (10th Cir.); Appel v. Horn (3rd Cir.); Raymond v. Weber (8th Cir.); French v. Jones; Remedy for deprivation of counsel at a competency hearing; Van v. Jones; U.S. v. Bergman (10th Cir.); Admission of polygraph evidence; Barnier v. Szentmiklosi; U.S. v. Gantley; Speedy Trial Act; U.S. v. Schaffer; Waiver; U.S. v. Stewart; Cause of delay; U.S. v. Tinklenberg; Necessity of witness; Fed.R.Crim.P. 17(b); Compulsory process; U.S. v. Cannon (8th Cir.); Judicial bias; U.S. v. Blood; Prosecutorial misconduct; U.S. v. Owens; U.S. v. Modena; U.S. v. Crosgrove; Discovery violations; "Exculpatory" evidence; Brady v. Maryland; Strickler v. Greene; U.S. v. Crayton; U.S. v. Davis; Ineffective assistance of counsel; Wilson v. Parker; U.S. v. Lopez-Medina; Sufficiency of evidence; U.S. v. Stafford; Witness credibility; U.S. v. Henderson; Inconsistent verdicts; U.S. v. Lawrence; Sentencing enhancements; General rule that persons jointly indicted should be tried together; U.S. v. Driver; Zafiro v. U.S.; "Unfair prejudice"; U.S. v. Atcheson (9th Cir.)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Ross

e-Journal Number: 53614

Judge(s): Stranch and Carr; Concurring in part, Dissenting in part - Boggs

Deciding an issue of first impression (the appropriate remedy for deprivation of counsel at a competency hearing), the court saw no reason to create an exception to its established rule that complete deprivation of counsel during a critical stage warrants automatic reversal without consideration of prejudice. The court remanded the case to the district court for an evidentiary hearing to determine whether defendant-Ross was unconstitutionally deprived of representation. The court held that defendant-Burston's conviction was proper, but that the district court committed error when, upon granting a competency hearing, it failed to reappoint full-time counsel to represent Ross until the issue of competency was resolved. Thus, the court affirmed Burston's conviction, but remanded as to Ross. Defendants were convicted on multiple charges relating to a counterfeit-check scheme. On appeal, the court first found that, based on the record, it could not conclude that Ross was sufficiently represented by counsel at the competency hearing, nor could it conclude that Ross was completely deprived of representation at his competency hearing. It noted that, although standby counsel did not present argument during the competency hearing, it was "conceivable that he did satisfy the minimum standard by adequately investigating, undertaking appropriate preparation for the hearing and then making an independent, strategic decision not to contest competency." However, it was unclear from the record "whether or not standby counsel satisfied Cronic's requirement that his representation of Ross provided 'meaningful adversarial testing' of Ross's competency." The court rejected defendants' arguments as to the admission of polygraph evidence, right to a speedy trial, compulsory process, judicial bias, prosecutorial misconduct, discovery violations, sufficiency of evidence, and sentencing enhancements. The court also rejected Burston's argument that the "cumulative effect of the aberrant trial conduct" of Ross deprived him of a fair trial. It held that Burston failed to identify any specific prejudice he suffered as a result of Ross's self-representation, and that the jury was appropriately instructed that anything Ross did or said should not be used to convict Burston. Lastly, the court held that the district court did not abuse its discretion in admitting a photocopy of a check that bore an inked fingerprint that the bank required Burston to produce before cashing the check.

Full Text Opinion

Issues: Sufficiency of the evidence to support carjacking and using and carrying a firearm during a crime of violence convictions; U.S. v. Avery; U.S. v. Fekete; Federal carjacking statute; 18 USC § 2119; Whether the testimony of a single witness is sufficient to support a conviction; U.S. v. Gallo; "Conditional intent"; Holloway v. U.S.; Whether the government must show a nexus between the intent to do harm and the objective of stealing the car; U.S. v. Applewhaite; U.S. v. Harris; Evidence of crimes of dishonest acts or false statement; Fed.R.Evid. 609(a)(2); U.S. v. Rodriguez; U.S. v. Ortega; U.S. v. Seamster; Crimes of stealth; U.S. v. Sellers (11th Cir.); U.S. v. Yeo (8th Cir.); U.S. v. Smith (DC Cir.); U.S. v. Entrekin (5th Cir.); U.S. v. Scisney; McHenry v. Chadwick; U.S. v. Dunson; Whether a judge can provide advice to a confused jury; U.S. v. Nunez; Right to testify; U.S. v. Dunnigan; "Life threatening injuries"; U.S. v. Baggett; U.S. v. Helton

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Washington

e-Journal Number: 53613

Judge(s): Rogers, Keith, and Martin

The court held that there was sufficient evidence to support the defendants' convictions and sentences. Defendants were sentenced to 180 months and 330 months imprisonment, respectively, for carjacking, and in defendant-Jones's case, for the use and carrying of a firearm during a crime of violence. On appeal, the court rejected defendants' argument that there was insufficient evidence to support their convictions. It found that the government provided sufficient evidence at trial to persuade a rational trier of fact that Jones possessed the requisite intent. The court observed that the district judge noted at sentencing that the jury was entitled to credit the victim's testimony that defendants intended to harm him in order to steal his property, including his car. Further, it noted that the district judge also alluded to the testimony and crime scene evidence that Jones fired a fourth shot from the vehicle, and that this could be construed as evidence that Jones intended to harm the victim in order to facilitate defendants' getaway with the car. The court held that this evidence was sufficient to support the jury's finding of intent. The court also rejected defendants' argument that the district court erred in excluding evidence of the victim's previous conviction for theft of services because such convictions must be admitted under Rule 609(a)(2), which applies to crimes involving dishonest acts or false statements. It held that theft of services is not automatically admissible as a crime of dishonesty or false statement, and the district court did not err in excluding evidence of this prior conviction for impeachment purposes. The court also rejected defendants' argument that the district court abused its discretion in responding to the questions asked by the jury, noting that the jury's confusion over premeditation indicated confusion about an important legal issue, and the district court properly provided advice to eliminate that confusion. Finally, the court rejected defendants' argument that the district court improperly applied a sentencing enhancement for obstruction of justice based on Jones's false testimony during trial, noting that because the district court properly relied on the evidence available to it and made the requisite findings of fact, it did not commit clear error. It also held that, given the nature and extent of the victim's wounds, the district court did not commit clear error in applying a sentencing enhancement for permanent or life threatening injuries. Affirmed.

Full Text Opinion

Environmental Law

skip to next practice area

This summary also appears under Litigation

Issues: Action alleging violations of the Natural Resources & Environmental Protection Act (NREPA) (MCL 324.101 et seq.) and creation of a public nuisance; Attorney fees; Ypsilanti Charter Twp. v. Kircher; Dessart v. Burak; Sanctions against defense counsel; MCR 2.114; Guerrero v. Smith; Maryland Cas. Co. v. Allen; Jerico Constr., Inc. v. Quadrants, Inc.; Proposed order submitted under MCR 2.602(B)(3)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Department of Envtl. Quality v. Cole Tire Co.

e-Journal Number: 53733

Judge(s): Per Curiam – Owens, Fitzgerald, and Riordan

The court held that "in light of defendants' illegal and egregious conduct," it could not conclude that the trial court's award of attorney fees to the plaintiffs fell outside the range of reasonable and principled outcomes. Further, it was "not left with the definite and firm conviction" that the trial court erred in finding that the proposed order submitted by defendants contained an intentional misrepresentation and justified sanctioning defense counsel in the amount of $500. Defendants operated two scrap tire collecting sites. Plaintiffs filed this lawsuit in 2002 claiming that defendants were engaged in numerous violations of the NREPA and were responsible for creating a public nuisance. "Some of the alleged violations included the lack of bonding, lack of registration, lack of on-site access, improper storage, and that one of the sites had experienced a fire that left smoldering tire remnants." The trial court granted plaintiffs' motion for summary disposition only on the common-law public nuisance claim. Defendants were required to abate the nuisance. The trial court also granted plaintiffs attorney fees and costs for the litigation up until the trial court's order clarifying that defendants were liable for the public nuisance and had to abate it. At a later hearing on defendants' motion to compel as to various discovery issues, the trial court agreed that defendants were entitled to a hearing pursuant to MCR 2.602(B)(3) on the amount of attorney fees and costs. However, the trial court referred to the upcoming proceeding as more of an evidentiary hearing rather than an actual trial. After that hearing, defendants submitted a proposed order allegedly reflecting the trial court's ruling from the bench, stating that a jury trial should be scheduled. The trial court found that defense counsel behaved frivolously and intentionally in submitting the proposed order that scheduled a jury trial, as it was clear that no jury trial would occur and that the trial court had not scheduled one. As to the attorney fees, the court found Kircher instructive. "Plaintiffs provided evidence establishing the overwhelming number of violations at both sites, including an affidavit from an Environment Quality Analyst who found that the fire at one of the sites left smoldering remnants that led to the contamination of the groundwater and soil. While defendants may not agree that their conduct was illegal or egregious, this difference of opinion is not enough to establish that the trial court erred when considering evidence to the contrary." As to the sanctions, the court noted that "when the trial court was rendering its decision from the bench, it stated that rather than a trial, the next hearing would be more like an evidentiary hearing. The trial court never stated that it was ordering a jury trial." Thus, the court held that defendants' submission of a proposed order scheduling a jury trial was baseless. Affirmed.

Full Text Opinion

Family Law

skip to next practice area

Issues: Divorce; Review; Neville v. Neville; Hayford v. Hayford; Whether the trial court properly denied the plaintiff-wife's motion for rehearing and to set aside the judgment; Nonconforming judgment; MCR 2.507(G); MRE 408; Gorman v. Soble; Evidentiary hearing on the issue of plaintiff's mental state; Lentz v. Lentz; Keyser v. Keyser; Whether plaintiff's consent to the judgment was illusory; Vittiglio v. Vittiglio; Whether the settlement terms were "unconscionable"; Tinkle v. Tinkle; Clark v. DaimlerChrysler Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Battles v. Battles

e-Journal Number: 53688

Judge(s): Per Curiam - Talbot, Wilder, and Stephens

The court held, inter alia, that the trial court did not err in declining to hold an evidentiary hearing to allow the plaintiff-wife to develop her claim that she was incompetent to contract on the day of the settlement hearing. Further, the trial court did not abuse its discretion by declining to set aside the divorce judgment. Plaintiff contended that the judgment, which the trial court entered over her objection, did not conform to the terms of the settlement placed on the record in open court on 3/11/11. She argued that the trial court erred by entering the judgment and by failing to set it aside on her motion. The court disagreed. The settlement was memorialized in agreements as to the division of assets, described as alternatives A and B. Plaintiff did not dispute that prior to the 3/11/11 hearing, she and the defendant-husband had agreed to alternative A. In fact plaintiff's attorney stated as much in open court at the settlement hearing. Later at the settlement hearing, plaintiff's counsel asked her whether she had "heard every bit of the recitations" that "we've placed on the record today" to which she answered "yes." She also affirmed that she "knowingly and voluntarily" agreed to the settlement provisions. After the hearing, plaintiff fired her attorney and retained new counsel. She then argued that the 3/9/11 settlement letter was non-record evidence and the trial court could not rely on it. Plaintiff contended that the record settlement included only the specific terms stated orally by the parties at the settlement hearing, and that certain assets described in the settlement letter were not mentioned at the settlement hearing. Thus, she argued that the judgment of divorce was nonconforming, should not have been entered by the trial court, and should be set aside. The court again disagreed. She offered no support for her position that, under MCR 2.507(G), parties cannot incorporate by reference terms agreed upon by the parties in out of court negotiations ahead of time. Thus, she abandoned this argument. Further, the transcript of the hearing was clear that all involved, including the trial court, understood that the 3/9/11 letter controlled the parties' intent. The court noted that plaintiff's principal objection to the divorce judgment was that it contained a provision where she waived all claims to defendant's $206,000 retirement account. The parties made no mention of the retirement account at the settlement hearing. But the letter did - the letter was clear that plaintiff agreed to waive all claims to the account. The divorce judgment accurately reflected that parties' intent memorialized in the 3/9/11 letter, which in turn was incorporated by reference by plaintiff's attorney in open court. Affirmed.

Full Text Opinion

Issues: Divorce; Claim the trial court did not enforce the terms of the consent judgment of divorce; Whether the trial court erred in denying defendant-wife's motion on the basis that there was no "wrongdoing" or that defendant failed to show that plaintiff-husband "spent money," had a "lavish lifestyle," or "did something with" the money; Rose v. Rose; Reed v. Reed; Laffin v. Laffin; McNamara v. Horner

Court: Michigan Court of Appeals (Unpublished)

Case Name: Petty v. Lauharn

e-Journal Number: 53717

Judge(s): Per Curiam – Talbot, Wilder, and Stephens

The court held that the trial court erred in denying defendant-wife's motion to set a sum certain and payment plan after an accounting pursuant to the parties' divorce judgment on the basis that there was no "wrongdoing" or that she failed to show that plaintiff-husband "spent money," had a "lavish lifestyle," or "did something with" the money. Thus, the court vacated the part of the trial court's order stating that plaintiff did not owe the defendant any monies for claims of withdrawals under B's accounting. The court remanded for the trial court to apply the plain language of the judgment and order plaintiff to pay defendant 100% of any funds that were previously concealed, hidden, placed in an "unexpected" place, or otherwise "unaccounted for." The parties were married in 1976. Plaintiff filed for divorce in 2005. During the course of their marriage, plaintiff acquired a 42% interest in Power Plus Products, LLC and the parties (individually and jointly) held numerous retirement and brokerage accounts. The pertinent part of the judgment of divorce provided the parties stipulated that if B, a CPA, found that "any money was concealed, hidden, withdrawn or put in a place that is unexpected (not simply transferred to another brokerage account or lost in the market) or otherwise unaccounted for by the party that made the transfer or withdrawal, the wrongdoer shall pay the other party one hundred percent of the sum transferred or withdrawn from his or her separate funds." Defendant claimed that the trial court erred because it did not enforce the terms of the consent judgment of divorce. The court agreed. Defendant was entitled to prevail upon a showing that plaintiff concealed or hid money, put the withdrawals in an "unexpected" place, or "otherwise unaccounted for" the withdrawals. In this regard, plaintiff and the trial court misinterpreted the word "wrongdoer" as it was used in the consent judgment. Read in context, the word "wrongdoer" simply referred back to the immediately preceding noun phrase, "the party that made the transfer or withdrawal," and was properly interpreted simply to mean the party who concealed, hid, withdrew, or failed to account for any of the retirement funds, in contravention of the parties' stipulation. The record was clear that "plaintiff withdrew certain funds and closed various accounts and not only failed to disclose these withdrawals or closures prior to entry of the judgment of divorce, but also failed to account for the disposition of many of these funds."

Full Text Opinion

Litigation

skip to next practice area

This summary also appears under Environmental Law

Court: Michigan Court of Appeals (Unpublished)

Case Name: Department of Envtl. Quality v. Cole Tire Co.

e-Journal Number: 53733

Judge(s): Per Curiam – Owens, Fitzgerald, and Riordan

Full Text Opinion

Termination of Parental Rights

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Trejo Minors; In re BZ; In re Williams; The child's best interests; In re LeFlure

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Jackson

e-Journal Number: 53704

Judge(s): Per Curiam – Owens, Fitzgerald, and Riordan

The court held that the trial court properly terminated the respondent-mother's parental rights to her minor child where the statutory grounds for termination were established by clear and convincing evidence and termination was in the child's best interests. In a prior case allegations of domestic violence in the home between respondent and her boyfriend were substantiated and, in 1/10, respondent began receiving intensive services, including domestic violence counseling. That case was closed in 7/10 because respondent's boyfriend was incarcerated. However, the same day the case was closed, the boyfriend was released and he returned to her home within a week. In 11/10, upon receiving reports about the boyfriend's continued presence, the DHS interviewed respondent and requested that she place the child with a relative. She agreed. She admitted numerous violations of a no-contact order and probation orders, and her drug screen was positive. The present case was initiated because of concerns about substance use and ongoing domestic violence and, in 1/11, respondent entered a plea giving the trial court jurisdiction over the case. The court held that there was no question that until respondent entered Odyssey House (a therapeutic community substance abuse treatment facility) six months before the termination hearing, she had done little to rectify the conditions that led to adjudication. "The question was whether her progress and accomplishments at Odyssey House were sufficient. Based on the record, they were not." Respondent's main issue was always domestic violence. Although she completed the YWCA program, there was no evidence that she received any benefit from it. Respondent previously completed counseling in her prior case and yet, immediately upon its closing, she returned to her boyfriend, going so far as leaving the child and moving to Indiana to be with him, returning only because he kicked her out. Also, there was no reasonable likelihood that respondent would be able to rectify these problems within a reasonable time. There was no evidence that she could parent appropriately in an uncontrolled setting and she was going to remain in a controlled setting for the foreseeable future. Given "respondent's history of making poor choices and exhibiting no benefits even after participating in services, viewing her actions in an uncontrolled setting was essential to a determination" of her fitness. Affirmed.

Full Text Opinion

Issues: Termination of parental rights to the respondents-parents' three minor children under §§ 19b(3)(c)(i) and (g); In re Olive /Metts; In re Mason; Best interests of the children; In re Trejo Minors; In re JK; In re VanDalen

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Williams

e-Journal Number: 53763

Judge(s): Memorandum - Jansen, Borrello, and Beckering

After remand, the court held that the trial court properly terminated the respondents-parents' parental rights to their three minor children because the statutory grounds for termination were established by clear and convincing evidence and termination was in the children's best interests. The court initially vacated the trial court's best interests decision as to AW and remanded for further consideration of that issue where AW was placed with his maternal cousin. The court now concluded that the trial court did not clearly err by finding that termination of the respondents' parental rights was in AW's best interests. A foster care worker (B) testified that although AW was currently placed with his maternal cousin, termination was in his best interests because of his need for permanency. According to B, a guardianship would not provide AW with the permanency needed at his young age when compared to adoption, which is more permanent. B emphasized that AW has lived every day comfortably with his cousin since he was born about three years ago. Her home was the only home AW has known. AW identifies her as his mother, and she is committed to adopting him. Further, respondents are unable to provide him with a safe and appropriate home environment given their continued extensive drug use. Thus, the court was not left with a definite and firm conviction that the trial court mistakenly determined that termination of respondents' parental rights was in AW's best interests. Affirmed.

Full Text Opinion