• Bankruptcy (1)
• Constitutional Law (1)
• Contracts (1)
• Criminal Law (7)
• Insurance (1)
• Litigation (2)
• Municipal (1)
• Negligence & Intentional Tort (1)
• Tax (1)
• Termination of Parental Rights (1)

Bankruptcy

 

Issues: Chapter 7; Fines and penalties for violating subsections of 11 USC §§ 110 and 526

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Hills v. McDermott

e-Journal Number: 53644

Judge(s): Guy, Rogers, and Hood

 

In an order originally issued as an unpublished decision that the court designated for publication, the court held that the bankruptcy court did not err in ordering the appellant to pay penalties and fines for assisting the debtor with her bankruptcy filing. On appeal, the court rejected appellant's argument that the bankruptcy court abused its discretion in imposing fines and penalties because it should not have credited the testimony of the debtor, who admitted to lying under oath. The court noted that the debtor unequivocally recanted her initial testimony that appellant did not assist her with her bankruptcy filing, and explained that she lied under oath because she feared retribution from appellant. The court also noted that the debtor's testimony during the deposition and at the hearing corroborated the information that she provided in her amended declaration, indicating that she was assisted by a man named "Derek" (appellant's first name is Derrick) at Crane and Shore. The appellant admitted that he was the sole owner of Crane and Shore. The court also held that the bankruptcy court properly calculated and imposed the penalties it assessed against appellant. The appellant appeared to also argue that the bankruptcy court violated his rights by preventing him from working as a bankruptcy petition preparer. The court noted that the injunction preventing appellant from preparing bankruptcy petitions was issued by a different judge in a separate case, and appellant could not challenge that injunction in the appeal. Further, it found, the sanctions imposed in this case stemmed from appellant's violations of §§ 110 and 526, specifically, his failure to inform the debtor of the prior injunction, his failure to include required information in the documents that he prepared for the debtor, and his instructions to the debtor to conceal his identity. Affirmed.

 

Constitutional Law

 

This summary also appears under Municipal

 

Issues: 42 USC § 1983; Search and seizure; U.S. Const. amend. IV; Devenpeck v. Alford; "Probable cause"; Michigan v. DeFillippo; Hale v. Kart; Meaning of "force" in criminal sexual conduct (CSC) statute; People v. Berlin; Sexual contact by surprise; People v. Vaidya (Unpub. MI App.); People v. Lowery (Unpub. MI App.); People v. Hubbell (Unpub. MI App.); People v. Bazzy (Unpub. MI App.); People v. Tran (Unpub. MI App.); In re Craven (Unpub. MI App.); Unconsented to sexual contact; People v. Patterson; Disorderly person ordinance; "Public indecency"; United States v. Whitmore (ED MI); In re Certified Question; "Battery" ordinance; Qualified immunity; Miller v. Sanilac Cnty.; Saucier v. Katz; Pearson v. Callahan; Arrest without probable cause; Leonard v. Robinson; Malicious prosecution; Matthews v. Blue Cross & Blue Shield of MI; Municipal liability under § 1983; Constitutional violations arising from official policy; Monell v. Department of Soc. Servs.; Bryan Cnty. Bd. of Comm'rs v. Brown; Failure to train; City of Canton v. Harris; "Deliberate indifference"; Hill v. McIntyre; Seizure of personal property; United States v. Place; Arizona v. Gant; Ross v. Duggan; Abuse of process; Friedman v. Dozorc; Bonner v. Chicago Title Ins. Co.; Three Lakes Ass'n v. Whiting

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Alman v. Reed

e-Journal Number: 53645

Judge(s): Keith and Moore; Concurring in part, Dissenting in part - Boggs

 

The court held that the district court erred in finding probable cause to support the charges against plaintiff-Alman, and that defendant-Swope (a police officer) was not entitled to qualified immunity because Alman's clearly established Fourth Amendment rights were violated. However, the district court properly dismissed Alman's malicious prosecution and failure to train claims. The court also held that the district court erred in dismissing plaintiff-Barnes's Fourth Amendment claim, but properly dismissed his abuse of process claim. Plaintiffs sued defendants for their involvement in Alman's arrest and the seizure of Barnes's vehicle during an undercover operation. The district court granted summary judgment for defendants, finding that probable cause existed for the various state and municipal offenses that Alman was charged with violating. On appeal, the court first held that the district court erred in finding that probable cause existed to support Alman's arrest for CSC IV, solicitation or accosting, disorderly person, and battery. The court next held that qualified immunity did not shield Swope. Third, the court held that Alman's claim of malicious prosecution was properly dismissed because he failed to establish the elements of the tort, specifically that he failed to produce any evidence establishing malice. The court then concluded that Alman's allegations as to his failure to train claim were too generalized to support municipal liability. Finally, the court found that the district court erred in dismissing Barnes's claim that the seizure of his vehicle violated the Fourth Amendment, noting that Alman's arrest was not supported by probable cause. While "the statute and the Constitution may allow the state to seize a vehicle during an arrest for sexual conduct offenses, neither authorizes such a seizure without probable cause." However, it held that Barnes's claim for abuse of process was properly dismissed. Affirmed in part, reversed in part, and remanded.

 

Contracts

 

This summary also appears under Insurance

 

Issues: Breach of contract; Whether the policy was ambiguous as to whether plaintiff-Washington was required to reside at the premises; Insurance policy interpretation; City of Grosse Pointe Park v. Michigan Mun. Liab. & Prop. Pool; Tenneco Inc. v. Amerisure Mut. Ins. Co.; Klapp v. United Ins. Group Agency, Inc.; Liparoto Constr., Inc. v. General Shale Brick, Inc.; "Dwelling" and "insured premises" defined; Heniser v. Frankenmuth Mut. Ins. Co.; McGrath v. Allstate Ins. Co.; Morinelli v. Provident Life & Accident Ins. Co.; Whether Washington had a duty to read the contract; Parmet Homes, Inc. v. Republic Ins. Co.; Auto Owners Ins. Co. v. Zimmerman; Casey v. Auto Owners Ins. Co.; Applicability of the Casey exception; Wilkie v. Auto-Owners Ins. Co.; Ile v. Foremost Ins. Co.; Whether a "special relationship" existed; Harts v. Farmers Ins. Exch.; "Equitable estoppel"; Conagra, Inc. v. Farmers State Bank; Whether the trial court properly relied on Heniser

Court: Michigan Court of Appeals (Unpublished)

Case Name: Washington v. Allstate Prop. & Cas. Ins. Co.

e-Journal Number: 53716

Judge(s): Per Curiam – Hoekstra, K.F. Kelly, and Beckering

 

The court held, inter alia, that the trial court properly granted defendant-Allstate's (insurer) motion for summary disposition because the policy was unambiguous as to whether plaintiff-Washington (insured) was required to reside at the premises in this breach of contract case. The case arose from an insurance policy Allstate issued to Washington in 12/08. He testified that in 4/08 he purchased a residence intending to operate it as a rental property. After finishing the necessary repairs, he contacted Allstate to obtain insurance for the property. He called Allstate's "800" number and spoke with an Allstate employee about an insurance policy. He claimed, and Allstate conceded for the purpose of its summary disposition motion, that Washington requested a landlord, or "rental dwelling," insurance policy. After completing the application process and receiving a quote over the phone, Washington purchased the insurance policy. Allstate mailed Washington a copy of his insurance policy. He claimed he read "the important stuff" in the policy, but did not read the entire policy. His policy was a "homeowners policy." In 1/09, he obtained a tenant, who occupied the residence until the property suffered damage due to an arson fire in 4/9. During its investigation of Washington's property loss claims, Allstate learned for the first time that he was not residing at the insured premises, but rather, was operating it as a rental property. Allstate refused to pay Washington's claims under the policy, which required him to reside at the insured property. He filed a complaint alleging breach of contract. Washington claimed that, given the language used in the policy, it was unreasonable to require him to discover the residency requirement and inform Allstate about the apparent discrepancy. He argued that, because the definition of "residential premises" did not state that the insured must reside at that location, and the term "reside" was not defined, the residency requirement was ambiguous. "A holistic reading of the definition section of the policy" showed that the policy unambiguously required the insured to reside at the insured premises. The policy defined "dwelling" as "the single family building structure identified as the insured property on the Policy Declarations, where you reside and which is principally used as a private residence." This definition stated that the "dwelling" is the "insured property" where the insured resides. Also, the policy defined "insured premises" as "the residence premises[,]" and that term was defined as "the dwelling, other structures and land located at the address stated on the Policy Declarations." These definitional provisions were not susceptible to varying interpretations. "Had Washington read the policy, he would have known the policy required him to reside at the insured premises." Also, the absence of a definition of "reside," a common and ordinary term, was insufficient grounds for finding an ambiguity. Affirmed.

 

Criminal Law

 

Issues: Sentencing following the defendant's guilty plea to second-degree home invasion where the trial court originally sentenced him to 75 to 180 months' imprisonment; Review; People v. Steele; People v. Francisco; MCL 777.51(2); Scoring of convictions from other states (Ohio); Statutory interpretation; People v. Lange; People v. Powell; Whether the Ohio statute "corresponded" to the Michigan statute for sentencing  purposes; Scoring of PRV 5; Defendant's PSIR; Ineffective assistance of counsel; People v. Davis; People v. Pickens; Failure to object to the scoring of PRV 1; People v. Reed; People v. Goodin

Court: Michigan Court of Appeals (Published)

Case Name: People v. Crews

e-Journal Number: 53872

Judge(s): Per Curiam - Hoekstra, K.F. Kelly, and Beckering

 

In an issue of first impression, the court held that "corresponding" for purposes of MCL 777.51 is properly interpreted as being "similar or analogous." The court also held that the trial court's calculation of the defendant' minimum sentence range under the guidelines was accurate, and affirmed. Defendant pleaded guilty to second-degree home invasion. At the sentencing hearing, the trial court found that his minimum sentence range was 50 to 100 months, and sentenced him to 75 to 180 months' imprisonment. He did not challenge the information in his PSIR or the scoring of the guidelines at the hearing. He later filed a delayed application for leave to appeal to the court, which it denied. Defendant filed an application for leave to appeal to the Supreme Court, which also denied leave to appeal. Later, he filed a motion for a Ginther hearing and for resentencing in the trial court, which denied the request for a Ginther hearing, but granted his motion for resentencing. At that hearing, the parties stipulated that OV 12 was improperly scored. He did not challenge the scoring of his PRVs or any other OVs. His minimum sentence range was recalculated to 36 to 71 months. The trial court opined that it felt its original sentence was appropriate, and sentenced him to 71 to 180 months' imprisonment. Defendant filed another motion for resentencing, and the trial court held another hearing where he argued that he received ineffective assistance of counsel at his prior sentencing hearings and there were several scoring errors as to the calculation of his minimum sentence range including errors in PRVs 1, 2, and 5. He argued PRV 1 was improperly scored because his Ohio burglary convictions did not correspond to any Michigan felony and could not be used as prior high severity offenses under PRV 1. He also contended that one of his convictions on which the PRV 2 score was based "does not exist," and that at least one of the offenses relied on for the PRV 5 score was not a crime that could be scored under PRV 5. The trial court denied his request for resentencing finding that defendant failed to show ineffective assistance of counsel or any error as to the score assessed for PRV 1 or PRV 5. However, the trial court ordered that his PSIR be corrected as to PRV 2 and OV 11. Defendant filed a delayed application for leave to appeal the trial court's order and the court granted the application. He appealed the trial court's 7/22/11 order denying his 6/30/11 motion for resentencing. He argued that the trial court erred by scoring 50 points under PRV 1 and that defense counsel was ineffective as to his failure to object to the scoring. The court disagreed and affirmed his sentence, concluding, inter alia, that the Ohio statute under which he was convicted of second-degree burglary corresponded to second-degree home invasion.

 

Issues: Search and seizure; Motion to suppress; Warrantless entry into the defendant's home; Applicability of the "community caretaking" exception to the warrant requirement; People v. Slaughter; People v. Davis; Applicability of the "exclusionary rule"; Davis v. United States; People v. Frazier

Court: Michigan Court of Appeals (Published)

Case Name: People v. Hill

e-Journal Number: 53871

Judge(s): Murphy and Whitbeck; Dissent – Markey

 

The court held that the warrantless entry into the defendant's home by police did not violate the Fourth Amendment or the Michigan Constitution because the community caretaking exception to the warrant requirement applied. The court also noted that even if it assumed that a constitutional violation occurred, it would conclude that the exclusionary rule did not apply because there was no evidence of police misconduct. The district court granted defendant's motion to suppress the evidence (marijuana plants) discovered in a bedroom closet in his home and dismissed the manufacture of marijuana charge against him. The circuit court affirmed. The court reversed and remanded the case for reinstatement of the charge. The court concluded that the "lower courts mistakenly relied on a lack of direct evidence definitively showing that defendant was present and in actual need of aid or assistance. Although there were no signs of forced entry or sounds of someone in distress, the circumstances were such that an officer could reasonably conclude that defendant may be in need of aid or assistance." A neighbor told the officers that defendant would leave his house and return on a normal basis using his car, but his car, covered with some leaves, had been sitting in the driveway unused for several days and was parked there when police arrived. "This would reasonably suggest that defendant was in his house when police came upon the scene," which was also supported by evidence that it was after midnight and the lights were on in his house. According to the neighbor this was common because defendant worked in his house at night. The court noted that "extensive efforts by the police to obtain a response from anyone inside the home failed, including knocking on the door and yelling through a window, and the neighbor had not heard any work activity that night by defendant, which was uncommon." Considering all of the surrounding circumstances, it was "reasonable to conclude that defendant was not only present but in need of attention, aid, or some kind of assistance." The court also noted the presence of a phonebook on the front porch and that a few days of mail had accumulated in defendant's mailbox. Further, the neighbor told police she was worried about defendant and that the situation at his home was unusual. Considering all of the pieces of information "together and not individually, the sum of their parts equates to specific and articulable facts that would lead an officer to reasonably conclude that defendant was in need of aid. And the steps taken by the responding officers, who were motivated by the perceived need to render assistance, were no more than reasonably necessary to determine whether defendant was truly in need of aid."

 

Issues: Manufacturing marijuana; The Michigan Medical Marihuana Act (MMMA)(MCL 333.26421 et seq.); Remedy for the trial court's error in refusing to allow the defendant to raise an affirmative defense under § 8 of the MMMA (MCL 333.26428); People v. Kolanek; People v. Bylsma; People v. Anderson; People v. King; Right to present a defense; Ignorance of the law or mistake of law; People v. Motor City Hosp. & Surgical Supply, Inc.; Prosecutorial misconduct; People v. Brown; Effect of curative jury instructions; People v. Unger

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Agro

e-Journal Number: 53747

Judge(s): Per Curiam – Hoekstra, K.F. Kelly, and Beckering

 

The court held that the appropriate remedy for the trial court's error in refusing to allow the defendant to present an affirmative defense under MMMA § 8 was remand to the trial court for a continuation of the evidentiary hearing. Defendant was convicted of manufacturing marijuana. She was 70 years old and lived with her husband until his death in 9/10. They had applied for caregiver cards, but defendant had not received her card at the time of the raid. She had approximately 17 marijuana plants growing in her basement. She moved to dismiss, arguing that she was protected from prosecution under MMMA § 4. Alternatively, she argued that she could raise a § 8 affirmative defense at trial. After the evidentiary hearing, because defendant failed to show that she was in compliance with § 4, the trial court concluded, in keeping with King, that she could not assert an affirmative defense under § 8. The prosecution conceded on appeal that the trial court's conclusion, while valid at the time, was contrary to Kolanek. The issue on appeal was the proper remedy. Defendant argued that she was entitled to a new trial. The prosecution argued that she was entitled to a continuation of her pretrial hearing. The court agreed with the prosecution. "At the hearing, the trial court must determine whether there are questions of fact related to defendant's § 8 affirmative defense." If there are no material questions of fact and defendant establishes the elements in § 8(a), then "'the charges shall be dismissed,'" pursuant to MCL 333.26428(b). If she establishes a prima facie case, but there are material questions of fact, then the defense must be submitted to the jury and she is entitled to a new trial. If there are no material questions of fact and she fails to establish the elements in § 8(a), then she is not entitled to assert the defense at trial and there would be no basis to vacate her conviction. The court rejected defendant's claim that she was deprived of her right to present a defense that she mistakenly believed she was complying with the law or that she had a medical necessity for marijuana. The court agreed that the prosecutor's comments, which suggested that the trial court believed the case against defendant was "legally sound" or it would not have been before the jury, were improper. However, the court concluded that the trial court's jury instructions cured any potential harm to defendant.

 

Issues: Sufficiency of the evidence of defendant's "identity" to convict him of unarmed robbery; People v. Oliphant; People v. Kern; People v. Hardiman; People v. Davis; People v. Konrad; Sentencing; People v. McLaughlin; People v. Conley; People v. Powell; People v. Piotrowski; People v. Seiders; Whether the initial warrant was issued on an allegedly defective complaint; People v. Darden; People v. Hotrum; People v. Gillis; MCR 6.101; MCL 764.1a(3); The prosecutor's witness list; MCL 767.40a; People v. Carines; Whether there was an independent basis for B's in-court identification of defendant; People v. Williams; People v. Kurylczyk; People v. Hornsby; The photographic lineup; People v. McAllister; Right to counsel at the photographic lineup; People v. Wyngaard; People v. McKenzie; People v. Lee; Denial of defendant's motion to quash the information and dismiss the charges; People v. Libbett; People v. Oliver; People v. Dunham; Whether defendant was denied a fair trial where there was no psychiatric evaluation; People v. Vaughn; People v. McCray; Timely transcripts; People v. Metamora Water Serv., Inc.; People v. Missouri; The victim's prior inconsistent statement; People v. Coy; MRE 613(b); Barnett v. Hidalgo; MCL 750.530; Ineffective assistance of counsel; People v. Sabin (On Second Remand); People v. Horn; People v. Payne; People v. Kelly; People v. Dixon; Cumulative error; People v. Ackerman

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Cornell

e-Journal Number: 53722

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

 

The court held, inter alia, that there was sufficient evidence to convict the defendant of unarmed robbery where he was seen by four different witnesses in close proximity within the grocery store immediately before and during the robbery. At least two witnesses identified him as the perpetrator with absolute certainty in the photographic lineup, while the other two witnesses indicated substantial certainty in the photographic lineup that his photograph was close in resembling their recollection of the perpetrator's appearance. Descriptions provided to police by the witnesses were consistent with defendant's physical appearance. Thus, it was reasonable for the jury, as the finder of fact, to hold that these witnesses were credible and to reject defendant's contention that he did not try to use his bridge card in the store on that day. About 8:00 AM, H was the victim of an unarmed robbery while buying groceries at a grocery store. H was completing his purchase at a self-scan or U-Scan station in the checkout area of the store. While placing his bagged groceries back into his cart, H was struck in the neck from behind and pushed. While off balance H fell to the floor and the perpetrator removed H's wallet from his right rear pant pocket. While H did not see the perpetrator's face, he described the person as a black male with a shaved head and wearing a gray jacket. Store employees produced testimony that indicated that defendant was the perpetrator. B had just finished his evening shift at the store when defendant approached him to ask what time the pharmacy opened. At trial B indicated that he was close to defendant and was able to look him in the eye. A short time later, B was outside the store when he observed defendant run out of the store. He testified that defendant was wearing a large gray coat. When shown a photographic lineup containing defendant's photo, B immediately identified defendant and indicated the certainty of his identification both at the preliminary examination and at trial. Defendant's conviction and sentence were affirmed.

 

Issues: "Other acts" evidence; Waiver of objection to admission of evidence; People v. Carines; People v. Fetterley; People v. Buie; MRE 404(b); People v. Buie (On Remand); People v. Benton; People v. Pipes; People v. Johnigan; People v. Kahley; MRE 401; People v. Abraham; Ineffective assistance of counsel; People v. Payne; People v. Lockett; People v. LeBlanc; Strickland v. Washington; People v. Armstrong; MRE 404(b)(2); People v. Hawkins; People v. Williams

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Dickerson

e-Journal Number: 53721

Judge(s): Per Curiam - Wilder and Stephens; Concurring in result only - Talbot

 

The court held that defense counsel was not ineffective for not filing notice of intent to offer other acts evidence as to H's prior arson conviction where the trial court granted the prosecution's motion in limine to preclude this evidence because of defense counsel's failure to file the motion. However, the trial court, not defense counsel, erred because only the prosecution is required under MRE 404(b)(2) to provide notice before trial of its intent to introduce other acts evidence. The case involved arson of a home that resulted in the death of the victim. Defendant argued that the trial court improperly admitted evidence related to an attempted arson that occurred on 9/29/07 the night before the 9/30/07 arson of the same house. Defendant also argued that the trial court improperly admitted evidence relating to defendant's tether monitoring device on 9/29/07. The prosecution asserted that because defendant argued for the admissibility of the attempted arson, he waived his right to challenge the admissibility of this evidence on appeal, and that evidence related to defendant's tether on 9/29/07 was presented for a proper purpose because it showed that he had the opportunity to commit the attempted arson. The prosecution also noted that defendant failed to object to the admission of the tether evidence. Thus, the issue was not properly preserved. The right to raise an objection on appeal to such evidence on appeal can be waived. "Waiver is the intentional relinquishment or abandonment of a known right." "A defendant may not waive objection to an issue before the trial court and then raise it as an error this court." "One who waives his rights under a rule may not seek appellate review of a claimed deprivation of those rights for his waiver has extinguished any error." The prosecution filed a motion in limine to exclude all evidence relating to the attempted firebombing on 9/29/07. The prosecution argued that the video evidence as to the 9/29/07 attempted firebombing should be excluded under MRE 404(b). Specifically, the prosecutor argued that the evidence was of a separate and irrelevant bad act because defendant was only charged with the 9/30/07 firebombing. However, defense counsel argued that the evidence as to the 9/29/07 firebombing should be admitted. Having previously argued in the trial court that the evidence as to the 9/29/07 firebombing was admissible in the trial court, defendant waived his argument that the trial court erred by admitting it. Further, defendant failed to preserve the issue as to the tether evidence from 9/29/07, because defense counsel did not object to the admission of the evidence. If trial counsel does not object to an evidentiary issue at the trial court level, the issue is not preserved for appeal. Affirmed.

 

Issues: Sentencing; Whether the trial court articulated sufficient "substantial and compelling" reasons for imposing a 10-year minimum sentence (an upward departure from the minimum under defendant's calculated guidelines range); People v. Hicks (Unpub.) (Hicks II); MCL 769.34(3); People v. Babcock; People v. Smith; People v. Compagnari; Whether the extent of the trial court's departure from the guidelines range constituted an abuse of discretion; People v. Garza

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hicks

e-Journal Number: 53715

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

 

Holding, inter alia, that the trial court did not abuse its discretion in finding substantial and compelling reasons to justify an upward departure from the sentencing guidelines, the court affirmed defendant's sentence of 10 to 15 years' imprisonment imposed at resentencing for his jury trial conviction of CSC II. Defendant was charged with several counts of CSC I and II based on allegations that his daughter, who was 13 years old at trial, made against him. The court concluded that the trial court gave substantial and compelling reasons for imposing a 10-year minimum sentence on defendant for CSC II. During resentencing, the trial court cited defendant's exploitation of the victim's vulnerabilities as a substantial and compelling reason to depart from the recommended minimum sentence range. Notably, in Hicks II, a panel of the court found that "the failure of the guidelines to give proper weight to defendant's exploitation of victim's vulnerabilities provided a substantial and compelling reason to depart from the recommended minimum sentence range." The court found no reason to vary from this finding and defendant provided it with none. Also, the trial court cited defendant's five other counts of CSC, including three counts of CSC I. "A sentencing court may consider offenses established by evidence offered at trial in imposing an appropriate sentence, even if defendant was acquitted of those offenses." Thus, defendant was incorrect in his assertion that the trial court erred in considering the evidence associated with his five other counts of CSC. Finally, the trial court cited "defendant's multiple years of sexual abuse perpetrated on the victim and that the abuse took place in front of the victim's younger brother."

 

Issues: Admission of impeachment evidence; MRE 613(b); People v. Kilbourn; "Other acts" of domestic violence evidence; MRE 404(b); People v. Sabin; People v. Railer; People v. Mills; People v. Crawford; People v. Starr; Admission of flight and capture evidence; People v. Unger; People v. Abraham; Assault with intent to commit murder (AWIM)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Zielinski

e-Journal Number: 53752

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

 

The court held that the trial court did not err in admitting impeachment evidence of defendant's brother, other acts evidence from defendant's past girlfriends, or evidence of defendant's flight and capture. The victim and defendant dated briefly for a couple of weeks before she ended the relationship. She came home to her apartment one day to find defendant inside. He knocked the victim onto her bed and then strangled her until she lost consciousness. Defendant's brother testified that defendant called him on the day of the victim's attack and was speaking of suicide. His brother claimed that defendant did not mention harming the victim. Defendant's mother, however, testified that she received a phone call from defendant's two brothers and they indicated that defendant confessed that he may have killed the victim. A police officer present for the phone call testified that one of defendant's brothers said that defendant thought he killed the victim. Defendant argued that the trial court erred in admitting evidence impeaching his brother. The prosecutor elicited testimony from defendant's brother that on the day of the attack he received a telephone call from defendant, in which defendant spoke of suicide. However, defendant's brother testified that defendant did not make any statement about hurting the victim. The prosecutor then called defendant's mother and a police officer to the stand to verify that defendant's brother previously told her that defendant said he thought he killed the victim. Defendant argued that the impeachment evidence was relevant to a central issue of the case because it went toward his intent to kill, an element of the crime. However, whether defendant thought he may have killed the victim did not illuminate whether he intended to kill her. He admitted at trial that he choked the victim, she struggled, she went limp, and she coughed. Thus, defendant's statement that he may have killed the victim only revealed that he caused her significant harm, a fact he did not dispute at trial. Further, he failed to establish the second prong of the test, namely, that his brother provided no other evidence pertinent to his credibility. His brother testified that defendant said he was suicidal, which was relevant to defendant's state of mind. The jury could have found that defendant's suicidal state of mind implied that he was behaving irrationally and did not have the intent to kill the victim, an element of the crime. Thus, this was "other testimony" for which the brother's credibility was relevant. The trial court also made it clear in its instructions that the purpose of the prior inconsistent statement was to assess the witness's truthfulness, not to prove that the earlier statement was true. Thus, the court found no error in the trial court's decision to admit evidence of a prior inconsistent statement to impeach defendant's brother. His convictions of AWIM and first-degree home invasion were affirmed.

 

Insurance

 

This summary also appears under Contracts

 

Issues: Breach of contract; Whether the policy was ambiguous as to whether plaintiff-Washington was required to reside at the premises; Insurance policy interpretation; City of Grosse Pointe Park v. Michigan Mun. Liab. & Prop. Pool; Tenneco Inc. v. Amerisure Mut. Ins. Co.; Klapp v. United Ins. Group Agency, Inc.; Liparoto Constr., Inc. v. General Shale Brick, Inc.; "Dwelling" and "insured premises" defined; Heniser v. Frankenmuth Mut. Ins. Co.; McGrath v. Allstate Ins. Co.; Morinelli v. Provident Life & Accident Ins. Co.; Whether Washington had a duty to read the contract; Parmet Homes, Inc. v. Republic Ins. Co.; Auto Owners Ins. Co. v. Zimmerman; Casey v. Auto Owners Ins. Co.; Applicability of the Casey exception; Wilkie v. Auto-Owners Ins. Co.; Ile v. Foremost Ins. Co.; Whether a "special relationship" existed; Harts v. Farmers Ins. Exch.; "Equitable estoppel"; Conagra, Inc. v. Farmers State Bank; Whether the trial court properly relied on Heniser

Court: Michigan Court of Appeals (Unpublished)

Case Name: Washington v. Allstate Prop. & Cas. Ins. Co.

e-Journal Number: 53716

Judge(s): Per Curiam – Hoekstra, K.F. Kelly, and Beckering

 

The court held, inter alia, that the trial court properly granted defendant-Allstate's (insurer) motion for summary disposition because the policy was unambiguous as to whether plaintiff-Washington (insured) was required to reside at the premises in this breach of contract case. The case arose from an insurance policy Allstate issued to Washington in 12/08. He testified that in 4/08 he purchased a residence intending to operate it as a rental property. After finishing the necessary repairs, he contacted Allstate to obtain insurance for the property. He called Allstate's "800" number and spoke with an Allstate employee about an insurance policy. He claimed, and Allstate conceded for the purpose of its summary disposition motion, that Washington requested a landlord, or "rental dwelling," insurance policy. After completing the application process and receiving a quote over the phone, Washington purchased the insurance policy. Allstate mailed Washington a copy of his insurance policy. He claimed he read "the important stuff" in the policy, but did not read the entire policy. His policy was a "homeowners policy." In 1/09, he obtained a tenant, who occupied the residence until the property suffered damage due to an arson fire in 4/9. During its investigation of Washington's property loss claims, Allstate learned for the first time that he was not residing at the insured premises, but rather, was operating it as a rental property. Allstate refused to pay Washington's claims under the policy, which required him to reside at the insured property. He filed a complaint alleging breach of contract. Washington claimed that, given the language used in the policy, it was unreasonable to require him to discover the residency requirement and inform Allstate about the apparent discrepancy. He argued that, because the definition of "residential premises" did not state that the insured must reside at that location, and the term "reside" was not defined, the residency requirement was ambiguous. "A holistic reading of the definition section of the policy" showed that the policy unambiguously required the insured to reside at the insured premises. The policy defined "dwelling" as "the single family building structure identified as the insured property on the Policy Declarations, where you reside and which is principally used as a private residence." This definition stated that the "dwelling" is the "insured property" where the insured resides. Also, the policy defined "insured premises" as "the residence premises[,]" and that term was defined as "the dwelling, other structures and land located at the address stated on the Policy Declarations." These definitional provisions were not susceptible to varying interpretations. "Had Washington read the policy, he would have known the policy required him to reside at the insured premises." Also, the absence of a definition of "reside," a common and ordinary term, was insufficient grounds for finding an ambiguity. Affirmed.

 

Litigation

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Applicability of governmental immunity to intentional torts; Odom v. Wayne Cnty.; "Collateral estoppel"; Leahy v. Orion Twp.; Monat v. State Farm Ins. Co.; Whether the "probable cause" issue was already litigated; Ghaith v. Rauschenberger (ED MI); False arrest, false imprisonment, and malicious prosecution claims; Burns v. Olde Discount Corp.; Lewis v. Farmer Jack Div., Inc.; Matthews v. Blue Cross & Blue Shield of MI; Abuse of process claim; Bonner v. Chicago Title Ins. Co.; Concert of action and civil conspiracy claims; Holliday v. McKeiver; MCL 750.147b(1) (ethnic intimidation); "Hearsay" (MRE 801(c)); Statements not offered to prove the truth of the matter asserted; People v. Knolton; Probable cause requirements; Criss v. City of Kent (6th Cir.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Ghaith v. Rauschenberger

e-Journal Number: 53730

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

 

The court held that collateral estoppel applied to prohibit the plaintiff from re-litigating probable cause in this case and as a result, his claims failed as a matter of law and the defendant-officer was entitled to governmental immunity. Thus, the court reversed the trial court's order denying defendant's summary disposition motion and remanded the case. The court noted that while governmental immunity generally does not apply to intentional torts, it does apply when - "(1) the challenged acts were undertaken during the course of employment and the employees were acting, or reasonably believed that they were acting, within the scope of their authority, (2) the acts were undertaken in good faith, and (3) the acts were discretionary, as opposed to ministerial." The court held that the first element was met here, as plaintiff's claims arose out of defendant's "exercise of police authority that he undertook while on duty and in the course of his public employment." As to the second element, plaintiff could not show that defendant acted outside of his authority or in bad faith because of estoppel. The third element was met because, by definition, the investigatory police work challenged here was discretionary and not ministerial or operational. The court noted that generally, for collateral estoppel to apply, three elements must be satisfied - (1) a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment, (2) the same parties must have had a full and fair opportunity to litigate the issue, and (3) there must be mutuality of estoppel. The court concluded that "the keystone" of plaintiff's tort claims "crumbles because he is barred as a matter of law from alleging that he was arrested or prosecuted without probable cause." His two earlier attempts to challenge probable cause (at his preliminary exam and in his federal court § 1983 case) were unsuccessful and he did not get a third opportunity in the court. Thus, there could be "no genuine question of material fact for any claim that includes lack of probable cause as an essential element. More fundamentally," because defendant "had probable cause, he is entitled to governmental immunity for any tort claim." The court also held that plaintiff's abuse of process claim failed, noting that there was no indication in the record that defendant "did anything other than his job." Further, because plaintiff could not prove any underlying tort against defendant, he could not sustain claims of concert of action and civil conspiracy.

 

Issues: Motion for partial summary disposition; Effect of the fact discovery was ongoing; Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club; Ensink v. Mecosta Cnty. Gen. Hosp.; Abandoned claims; Blazer Foods, Inc. v. Restaurant Props., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Huntington Nat'l Bank v. 2400 Sci. Parkway, LLC

e-Journal Number: 53731

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

 

Concluding that the defendants-appellants (2400 Science Parkway, Speckin Forensic Laboratories, and Speckin) failed to either present evidence of a factual dispute or allege how more discovery would produce evidence establishing a genuine issue of material fact, the court held that the trial court did not err in granting the plaintiff-bank partial summary disposition before the close of discovery. The case arose from a series of loans and guarantees executed between the bank, the appellants, and the other defendants. The bank asserted claims for breach of promissory notes, breach of guaranties, foreclosure of mortgages, collection of rents, claim and delivery for vehicles, and for appointment of a receiver. Before the close of discovery, the bank moved for partial summary disposition under MCR 2.116(C)(10) of counts I-XI of the complaint, arguing there was no genuine issue of material fact as to those claims. The trial court granted the motion, finding that Speckin, 2400 Science Parkway, and another defendant defaulted on their notes by failing to make the required payments. The trial court also found that the guarantors, Speckin Forensic Laboratories, Speckin, and other defendants, failed to make the required payments after the demand was made. The trial court held that the primary note holders were liable for the outstanding payments and the guarantors owed similar amounts pursuant to the guaranty agreements. The trial court held that the bank was the owner and holder of the notes and guaranties. The trial court entered judgment against each defendant. After the bank moved for partial summary disposition, appellants served it with a second request for production of documents, seeking all documents relating to the loans and all internal records and communications relating to the indebtedness. At the hearing on the bank's motion for partial summary disposition, the trial court questioned appellants about their argument that summary disposition was improper because discovery was not over. "Appellants failed to assert what evidentiary support they expected to uncover, or how such evidence would support their position. They also failed to identify errors in the calculations or contest the authenticity of the loan documents" the bank provided. They "offered nothing other than mere speculation that there might be some favorable documentation in existence." Since they failed to identify any prospective evidence that would support a defense, their claim that discovery would uncover additional support for an unidentified defense was "the type of conjecture and speculation that is insufficient to render a motion for summary disposition premature." Affirmed.

 

Municipal

 

This summary also appears under Constitutional Law

 

Issues: 42 USC § 1983; Search and seizure; U.S. Const. amend. IV; Devenpeck v. Alford; "Probable cause"; Michigan v. DeFillippo; Hale v. Kart; Meaning of "force" in criminal sexual conduct (CSC) statute; People v. Berlin; Sexual contact by surprise; People v. Vaidya (Unpub. MI App.); People v. Lowery (Unpub. MI App.); People v. Hubbell (Unpub. MI App.); People v. Bazzy (Unpub. MI App.); People v. Tran (Unpub. MI App.); In re Craven (Unpub. MI App.); Unconsented to sexual contact; People v. Patterson; Disorderly person ordinance; "Public indecency"; United States v. Whitmore (ED MI); In re Certified Question; "Battery" ordinance; Qualified immunity; Miller v. Sanilac Cnty.; Saucier v. Katz; Pearson v. Callahan; Arrest without probable cause; Leonard v. Robinson; Malicious prosecution; Matthews v. Blue Cross & Blue Shield of MI; Municipal liability under § 1983; Constitutional violations arising from official policy; Monell v. Department of Soc. Servs.; Bryan Cnty. Bd. of Comm'rs v. Brown; Failure to train; City of Canton v. Harris; "Deliberate indifference"; Hill v. McIntyre; Seizure of personal property; United States v. Place; Arizona v. Gant; Ross v. Duggan; Abuse of process; Friedman v. Dozorc; Bonner v. Chicago Title Ins. Co.; Three Lakes Ass'n v. Whiting

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Alman v. Reed

e-Journal Number: 53645

Judge(s): Keith and Moore; Concurring in part, Dissenting in part - Boggs

 

The court held that the district court erred in finding probable cause to support the charges against plaintiff-Alman, and that defendant-Swope (a police officer) was not entitled to qualified immunity because Alman's clearly established Fourth Amendment rights were violated. However, the district court properly dismissed Alman's malicious prosecution and failure to train claims. The court also held that the district court erred in dismissing plaintiff-Barnes's Fourth Amendment claim, but properly dismissed his abuse of process claim. Plaintiffs sued defendants for their involvement in Alman's arrest and the seizure of Barnes's vehicle during an undercover operation. The district court granted summary judgment for defendants, finding that probable cause existed for the various state and municipal offenses that Alman was charged with violating. On appeal, the court first held that the district court erred in finding that probable cause existed to support Alman's arrest for CSC IV, solicitation or accosting, disorderly person, and battery. The court next held that qualified immunity did not shield Swope. Third, the court held that Alman's claim of malicious prosecution was properly dismissed because he failed to establish the elements of the tort, specifically that he failed to produce any evidence establishing malice. The court then concluded that Alman's allegations as to his failure to train claim were too generalized to support municipal liability. Finally, the court found that the district court erred in dismissing Barnes's claim that the seizure of his vehicle violated the Fourth Amendment, noting that Alman's arrest was not supported by probable cause. While "the statute and the Constitution may allow the state to seize a vehicle during an arrest for sexual conduct offenses, neither authorizes such a seizure without probable cause." However, it held that Barnes's claim for abuse of process was properly dismissed. Affirmed in part, reversed in part, and remanded.

 

Negligence & Intentional Tort

 

This summary also appears under Litigation

 

Issues: Applicability of governmental immunity to intentional torts; Odom v. Wayne Cnty.; "Collateral estoppel"; Leahy v. Orion Twp.; Monat v. State Farm Ins. Co.; Whether the "probable cause" issue was already litigated; Ghaith v. Rauschenberger (ED MI); False arrest, false imprisonment, and malicious prosecution claims; Burns v. Olde Discount Corp.; Lewis v. Farmer Jack Div., Inc.; Matthews v. Blue Cross & Blue Shield of MI; Abuse of process claim; Bonner v. Chicago Title Ins. Co.; Concert of action and civil conspiracy claims; Holliday v. McKeiver; MCL 750.147b(1) (ethnic intimidation); "Hearsay" (MRE 801(c)); Statements not offered to prove the truth of the matter asserted; People v. Knolton; Probable cause requirements; Criss v. City of Kent (6th Cir.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Ghaith v. Rauschenberger

e-Journal Number: 53730

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

 

The court held that collateral estoppel applied to prohibit the plaintiff from re-litigating probable cause in this case and as a result, his claims failed as a matter of law and the defendant-officer was entitled to governmental immunity. Thus, the court reversed the trial court's order denying defendant's summary disposition motion and remanded the case. The court noted that while governmental immunity generally does not apply to intentional torts, it does apply when - "(1) the challenged acts were undertaken during the course of employment and the employees were acting, or reasonably believed that they were acting, within the scope of their authority, (2) the acts were undertaken in good faith, and (3) the acts were discretionary, as opposed to ministerial." The court held that the first element was met here, as plaintiff's claims arose out of defendant's "exercise of police authority that he undertook while on duty and in the course of his public employment." As to the second element, plaintiff could not show that defendant acted outside of his authority or in bad faith because of estoppel. The third element was met because, by definition, the investigatory police work challenged here was discretionary and not ministerial or operational. The court noted that generally, for collateral estoppel to apply, three elements must be satisfied - (1) a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment, (2) the same parties must have had a full and fair opportunity to litigate the issue, and (3) there must be mutuality of estoppel. The court concluded that "the keystone" of plaintiff's tort claims "crumbles because he is barred as a matter of law from alleging that he was arrested or prosecuted without probable cause." His two earlier attempts to challenge probable cause (at his preliminary exam and in his federal court § 1983 case) were unsuccessful and he did not get a third opportunity in the court. Thus, there could be "no genuine question of material fact for any claim that includes lack of probable cause as an essential element. More fundamentally," because defendant "had probable cause, he is entitled to governmental immunity for any tort claim." The court also held that plaintiff's abuse of process claim failed, noting that there was no indication in the record that defendant "did anything other than his job." Further, because plaintiff could not prove any underlying tort against defendant, he could not sustain claims of concert of action and civil conspiracy.

 

Tax

 

Issues: Calculation of the true cash value (TCV) of the petitioner's residential property; MCL 211.27(1); President Inn Props., LLC v. Grand Rapids; The "cost-less-depreciation" approach; Meadowlanes Ltd. Dividend Hous. Ass'n v. City of Holland; "Functional and economic obsolescence depreciation"; Petitioner's burden of proof; MCL 205.737(3); Review of Michigan Tax Tribunal (MTT) decisions; Const. 1963, art. 6, § 28; Great Lakes Div. of Nat'l Steel Corp. v. Ecorse; Fair market value (FMV); Taxable value (TV); Board of Review (BOR)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Grewal v. Township of Williamstown

e-Journal Number: 53736

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

 

Holding that the MTT did not commit an error of law in adopting the cost-less-depreciation valuation as depicted on the property record card as its independent valuation of the petitioner's residential property's TCV, the court affirmed the MTT's order. Petitioner disputed the 2010 original assessed value of $563,700 before the March BOR, which deducted value for the condition of the property and lowered the 2010 assessed value to $556,179. Petitioner appealed the BOR's decision to the MTT's Small Claims Division, asserting that the property's FMV was $300,000, thus rendering its TV $150,000. The MTT adopted the referee's proposed opinion as its final judgment, finalizing the property's values as follows - 2010 TCV $1,112,358, TV $556,179, 2011 TCV $1,158,400, TV $565,634. Petitioner did not argue that the MTT erred in choosing the cost-less-depreciation approach, but instead argued that it erred by failing to deduct functional and economic obsolescence depreciation in its TCV calculation using this approach. He asserted that, in the absence of rebuttal evidence from the respondent, the MTT should have accepted his appraiser's depreciations for functional and economic obsolescence. The court concluded that this argument lacked merit. The MTT found petitioner's appraisals unpersuasive, and it was not required to accept either party's theory of valuation. Petitioner was required to prove his valuation by a preponderance of the evidence before the MTT. However, he was entitled to reversal only if the MTT's decision was not supported competent and substantial evidence. The MTT determined that "respondent's property record card was 'more detailed and more accurately depicts the subject property' than petitioner's appraisals," and thus was the most reliable indicator of the property's value. The MTT "was free to accept respondent's valuation and reject petitioner's," and it expressed its rationale for doing so.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Olive/Metts; In re Fried; In re LE; Hunter v. Hunter; In re Trejo Minors; In re JK; The child's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Banks

e-Journal Number: 53767

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

 

The court held that the trial court properly terminated the respondent-mother's parental rights to the minor child where the statutory grounds for termination were established by clear and convincing evidence and termination was in the child's best interests. The initial dispositional order was entered on 1/14/10. More than 2 years later, on 3/5/12, the trial court held a hearing on termination. Thus, more than 182 days elapsed between the trial court's initial dispositional order and the hearing on statutory grounds for termination. There was clear and convincing evidence that the conditions leading to the adjudication continued to exist. These included - failure to provide suitable housing, no source of income, mental health problems, a lack of parenting skills, and prior noncompliance with a treatment plan concerning another child. During the course of the proceedings, substance abuse problems also came to light. Those conditions continued to exist at the last hearing. Respondent did not have suitable or stable housing. She moved multiple times during the course of the proceedings and most of the homes she was living in were not suitable for the minor child. At the time of the last hearing, respondent was still living in an unsuitable house. Also, she did not provide the DHS with proof that she had a legal source of income to support the minor child. Respondent also failed to address her mental health and substance abuse issues. Throughout the proceedings, she repeatedly missed or failed the required drug tests. She completed some of her therapy and initially appeared to be making some progress. However, she then only sporadically attended therapy sessions, she was on the verge of being terminated from the program throughout most of the proceedings, was terminated from one substance abuse program, and despite ample opportunity, never attended the mandatory psychological examination. Finally, although respondent acted appropriately with the minor child during parenting time and completed her parenting classes, she only attended 56 of the 96 parenting visits. Also, she only attended 3 of 13 parenting visits in the 3 months leading up to the termination. There was also no reasonable likelihood that respondent would rectify the conditions in a reasonable amount of time given the minor child's age. Affirmed.

 

Classifieds

Announcement
Association Desired
Employment Available
Employment Wanted
Event/Seminar
For Sale
Office Space
Public Notice
Referrals
Advertising Marketplace

Fields of Practice

Adoption
ADR
Appellate Practice
Arbitration & Mediation
Attorney Discipline
Business Law
Commercial Litigation
Copyrights
Divorce
Family Law
Federal False Claims
Health Care
Immigration
Intellectual Property
Law Enforcement
Legal Malpractice
Lemon Law
Licensing
Medicare Liens
Patents
Personal Injury
Stockbrokers
Taxation
Trademarks

Disclaimer