Thursday,
May 26, 2005
Case Summaries Today's e-Journal includes summaries of eight Michigan Court of Appeals published opinions under Consumer Rights, Family Law/Native American Law, Insurance, Litigation, Malpractice, Municipal/Tax, Negligence & Intentional Tort, and Wills & Trusts; and three Sixth Circuit Court of Appeals opinions under Constitutional Law/Municipal and Criminal Law. Cases appear under the following practice areas: |
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Case Summaries
Civil Rights
skip to next practice areaThis summary also appears under Employment & Labor Law
Issues: Discrimination claims under Title VII; Claim plaintiff failed to comply with its statutory obligation to conciliate prior to filing the lawsuit; EEOC v. Wilson Metal Casket Co.; Single filing rule; EEOC v. Keco Indus.; Request plaintiff be barred from the recovery of damages as to the class of individuals because plaintiff allegedly failed to specifically attempt conciliation as to the class; Motion to dismiss the claims of two individuals
Court: U.S. District Court Western District of Michigan
Case Name: Equal Employment Opportunity Comm’n v. Applegate Holdings, LLC
e-Journal Number: 27397
Judge(s): Enslen
Finding it would be improper to dismiss the claims as to “others similarly situated” on the existing record, the court denied in part defendant-Advance’s motion for summary judgment. Advance sought to have all the plaintiff-EEOC’s claims dismissed because it asserted the EEOC failed to comply with its statutory obligation to conciliate before filing the lawsuit. One employee, Tracy, filed a charge against both Advance and defendant-Applegate alleging discrimination based on her sex and religion. There was no indication from the pleadings as to the size of the work unit involved. The court found the present record did not indicate the nature of the work unit and which employees were similarly situated to Tracy at the time of the alleged discrimination. The court intended to limit trial testimony to others similarly situated whose claims arose out of the same discriminatory treatment and during the same time period as Tracy’s charged discrimination, but these determinations had to be reserved for later findings on a more complete record. The court also found the EEOC tried to conciliate with Advance as to Tracy, and it appeared Advance did not respond. The court reserved determination of whether the EEOC attempted good faith conciliation on behalf of the “others similarly situated.” The claims of two other individuals as to Advance were dismissed.
Full Text Opinion
Constitutional Law
skip to next practice areaThis summary also appears under Municipal
Issues: Whether the defendant-Water District’s policy tenants and other non-property owners could not establish water service accounts in their own names because they are not property owners violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment; Golden v. City of Columbus; Procedural due process; Substantive due process; Qualified immunity; Motion for leave to amend complaint to add an agency allegation; Proposed amendment to complaint to add an Equal Credit Opportunity Act claim
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Midkiff v. Adams County Reg’l Water Dist.
e-Journal Number: 27437
Judge(s): Ackerman, Suhrheinrich, and Gilman
The district court did not err in dismissing plaintiffs’ equal protection claim against the defendant-Water District because plaintiffs did not establish an equal protection violation since the Water District’s policy rationally distinguished between landlords and tenants and withstood equal protection scrutiny. Plaintiffs claimed the Water District’s policy violated the Equal Protection Clause of the Fourteenth Amendment because the policy discriminated between property owners and nonproperty owners, and no rational basis supported such a classification. Plaintiffs did not allege strict scrutiny applied. Rather, they alleged the Water District’s policy had no rational basis. The Water District, however, asserted its policy served the governmental interest in protection of the Water District’s financial stability because its policy “avoids problems with collections associated with tenants whose connection with the property is more transitory than that of the owner.” The Water District also argued its policy served the interest in water conservation. The policy encouraged landlords to rent to financially responsible tenants or to collect sufficient security in advance, and it also gives property owners an incentive to not waste water and to maintain their plumbing systems because they bear the responsibility for large water bills. These governmental interests are rationally related to the disparate treatment of landlords and tenants under the Water District rules and policies. Further, while the different classes of tenants in Golden were similarly situated, here the landlords and tenants were not so similarly situated. The court’s equal protection holding in Golden was distinguishable. Plaintiffs’ due process claims also failed. Affirmed.
Consumer Rights
skip to next practice areaThis summary also appears under Litigation
Issues: Taxation of costs; Breach of warranty and consumer protection action; Whether the cost-shifting provision of the Magnuson-Moss Warranty Act (MMWA) (15 USC § 2310(d)(2)) authorized the award of costs regardless of whether they were taxable under the Revised Judicature Act (RJA); Preemption; Michigan Consumer Protection Act (MCPA); Argument plaintiffs were not a “prevailing party” when there was a mutually agreed settlement; Appellate attorney fees
Court: Michigan Court of Appeals (Published)
Case Name: Lavene v. Volkswagen of Am., Inc.
e-Journal Number: 27446
Judge(s): Per Curiam – Neff, Owens, and Fort Hood
In an issue of first impression, whether the broad “aggregate amount of costs and expenses” language of the MMWA overrides state restrictions on an award of costs when a state court entertains an MMWA action, the court held the trial court properly awarded plaintiffs costs pursuant to the MMWA. Plaintiffs brought a breach of warranty and consumer protection action against defendants, alleging claims for liability under the MMWA and the MCPA. The parties reached a settlement in which defendants agreed to repurchase the motor home and pay plaintiffs’ attorney fees and costs to which they were entitled by statute or court rule. At issue was whether the cost-shifting provisions of the MMWA authorized the award of certain costs regardless of whether they were taxable under the RJA. Defendants argued various costs awarded by the trial court were not recoverable, including deposition transcripts, deposition fees, expert witness fees, copying, postage, and delivery costs, and computer research. The court concluded 15 USC § 2310(d)(2) preempts the RJA and authorized the trial court to award costs that might not be taxable under the RJA, including costs for depositions, expert witness fees, copying, postage, delivery, and computer research. Affirmed and remanded for a determination of an award of plaintiffs’ actual and reasonable appellate attorney fees.
Criminal Law
skip to next practice areaIssues: Juror misconduct; Other acts evidence; Whether defendant was prejudiced by the cumulative presentation of his audiotaped admission he committed the offense; Replaying of the tape during closing argument
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Brecht
e-Journal Number: 27428
Judge(s): Per Curiam - Neff, Owens, and Fort Hood
Defendant received a trial by an impartial jury. Defendant claimed a comment made by a potential juror tainted the entire venire. However, the potential juror was excused. Voir dire functioned exactly as it should have. Defendant merely stated the “testimony must, in the very nature of things, [have] had a strikingly emotional impact upon the jury.” Because defendant did not present any indication the remaining jurors were affected, he failed to affirmatively establish prejudice. A mere possibility of prejudice is insufficient to warrant a new trial. Moreover, when the trial court intervened, it instructed the jury regarding the presumption of innocence and encouraged the prospective jurors with preconceived notions to inform the trial court. When a court has instructed a jury not to be improperly influenced by a statement, and there is no indication the jurors paid attention to the statement or were affected by it, it can be assumed the jury was not improperly influenced. Therefore, no prejudice occurred and a new trial was not warranted. Affirmed.
Issues: Denial of motion for a directed verdict; Whether the trial court denied defendant the right to present a defense when it restricted the testimony of a defense witness; Erroneous exclusion of evidence; Whether the trial court admitted highly prejudicial statements without applying the appropriate evidentiary standard
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Campbell
e-Journal Number: 27430
Judge(s): Per Curiam - Neff, Owens, and Fort Hood
The trial court properly denied defendant’s motion for a directed verdict. There was sufficient evidence presented for a rational trier of fact to find beyond a reasonable doubt defendant intended to kill the victim, a police officer. Evidence indicated the victim and his partner attempted to perform a routine traffic stop on defendant. As they approached the car, the other officer, who approached from the driver’s side, noticed defendant draw a handgun from his “waist area.” Defendant reached out his right arm and pointed the handgun directly at the victim, who was standing in the passenger’s side doorway. Both officers noticed the muzzle of defendant’s handgun flash and saw defendant shoot once at the victim. Another witness also noticed defendant draw the handgun from his waist area. A gunshot residue test performed after the incident on defendant’s right hand, forehead, and face was positive and was consistent with defendant firing a weapon. After defendant’s vehicle was impounded, an evidence technician recovered a bloody .40 caliber handgun in the armrest while processing the vehicle. When the evidence technician released the magazine on the weapon, a live nine millimeter round fell out and one was stuck in the barrel. The weapon jammed because the gun was improperly loaded with nine millimeter ammunition. Affirmed.
Issues: Sufficient evidence to support defendant’s CSC III conviction
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Morrison
e-Journal Number: 27427
Judge(s): Per Curiam - Saad, Zahra, and Schuette
There was sufficient evidence to support defendant’s CSC III conviction. Defendant’s argument was the victim’s testimony was not credible, and the testimony of another witness also was not credible. However, “[i]t is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences.” Defendant came to know the victim when the victim was 10 years old, defendant volunteered with the Big Brother/Big Sister organization, and became the victim’s “Big Brother.” The victim testified that on the victim’s 12th birthday, the relationship between defendant and the victim became sexual when the victim accompanied defendant to his apartment, and there were other instances of sexual contact initiated by the defendant. Affirmed.
Issues: Sentencing; Whether the trial court erred in determining there were substantial and compelling reasons to depart upward from the sentencing guidelines; Whether defendant was entitled to resentencing for a second time because the trial court did not obtain an updated presentence report before resentencing him; Whether the trial court’s scoring of defendant’s OVs violated his right to a jury trial pursuant to Blakely v. Washington; People v. Claypool
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Stanko
e-Journal Number: 27429
Judge(s): Per Curiam - Saad, Zahra, and Schuette
The trial court properly held there were substantial and compelling reasons to depart upward from the sentencing guidelines. Defendant contended the departure was based on facts already taken into account in determining the guidelines range. The trial court departed upward from the guidelines range because defendant’s crime caused the death of a victim. As stated by the court in defendant’s previous appeal, “the guidelines prior to October 1, 2000, did not consider the fact that the victim died . . . .” Thus, the court rejected defendant’s argument the death of a victim is a factor already taken into account in determining the appropriate sentence range. “Death of a victim not considered by the guidelines is a factor that is objective and verifiable such[] that[,] upon proper articulation by the trial court, may be considered to determine if a substantial and compelling reason for upward departure exists.” The court held because defendant’s crime caused a victim’s death, the guidelines did not account for a victim’s death as a result of the crime, and death is an objective and verifiable factor that keenly grabs the attention and is of considerable worth in deciding the length of the sentence. The trial court did not abuse its discretion in determining this factor constituted a substantial and compelling reason to depart upward from the guidelines. Affirmed.
Issues: Jury instruction on accidental shooting; People v. Hess; Prosecutorial misconduct; Evidence defendant appeared on “Michigan’s Most Wanted”; Exclusion of provocation evidence; Double jeopardy
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Womack
e-Journal Number: 27426
Judge(s): Per Curiam - Saad, Zahra, and Schuette
The court agreed the trial court erred in denying defendant’s request to instruct the jury an accidental shooting is a defense to voluntary manslaughter, but held the case was distinguishable from Hess, because defendant was not convicted of voluntary manslaughter, but rather of two forms of murder and the jury was instructed accident was a defense to each theory of murder. Specifically, the jury was instructed the killing was not murder if the gun went off accidentally. The omitted accident instruction was properly classified as a nonconstitutional error. Applying the standard for preserved, nonconstitutional error, the court held reversal was not warranted because it was not more probable than not the instructional error was outcome determinative. Rather, the jury necessarily rejected defendant’s accident theory by finding him guilty of first-degree felony murder and second-degree murder, notwithstanding the trial court’s instructions that accident was a defense to these offenses. Defendant’s conviction and sentence for first-degree home invasion were vacated, but the court affirmed in all other respects.
Issues: Double hearsay; Admission by a party-opponent; Confrontation Clause; Crawford v. Washington; Ruling a count in the indictment failed to allege an offense under 18 USC § 1001; Judgment of acquittal on one count and a portion of another count alleging a conspiracy to conceal a material fact; Whether the reference to “hazardous conditions” in 30 CFR § 75.360(a) was unconstitutionally vague; Sufficient evidence to support convictions of conspiracy, making false statements to a federal agency, concealing material facts from a federal agency, and violating the Mine Safety and Health Act; Overt act; Statute of limitations; Sentencing; Increase in offense levels based on allegations of conscious or reckless risk of death or serious bodily harm; Role in the offense; Double counting; Adjustment of culpability score or offense level for obstruction of justice; Pecuniary gain from illegal conduct
Court: U.S. Court of Appeals Sixth Circuit
Case Name: United States v. Gibson
e-Journal Number: 27441
Judge(s): Gilman, Suhrheinrich, and Ackerman
The district court did not err in admitting testimony by the government’s witness, Griffin, concerning conversations he claimed he had with defendant-Gibson as an admission by a party-opponent, and the testimony did not violate either the hearsay rule or defendants’ rights under the Sixth Amendment Confrontation Clause. While defendants contended the testimony constituted inadmissible double hearsay, the district court concluded both Gibson’s and defendant-Mallicoat’s statements were those of party-opponents, and the court agreed. Although defendants argued for the first time on appeal Griffin’s testimony violated their Confrontation Clause rights, the court exercised its discretion to review the merits of the argument because of the potential impact of the Crawford decision. The court held Griffin’s testimony was admissible because it bore “particularized guarantees of trustworthiness.” Gibson’s statements were not made to the police or in the course of an official investigation, and he was not trying to curry favor or shift blame. Further, Crawford dealt only with testimonial statements and did not disturb the rule nontestimonial statements are constitutionally admissible if they bear sufficient indicia of trustworthiness. Therefore, admission of Griffin’s testimony did not violate defendants’ Confrontation Clause rights. Affirmed.
Issues: Sentencing; Whether the district court erred in departing downward eight levels from the base offense level in sentencing defendant; United States v. Booker
Court: U.S. Court of Appeals Sixth Circuit
Case Name: United States v. Jackson
e-Journal Number: 27438
Judge(s): Gibbons, Sutton, and Edgar
The district court erred in granting defendant’s motion for a downward departure, by departing eight levels from his base offense level. The government argued the district court imposed an unreasonable sentence because it failed to justify the decision to vary defendant’s sentence from the applicable guidelines range as well as the extent of the variance under 18 USC § 3553(a), and also relied on factors considered to be either discouraged or prohibited under the now advisory USSG. The district court decided to impose a sentence of three years' probation, including six months of home confinement, notwithstanding the fact defendant’s criminal history category and base offense level placed him within a Guidelines range of 27 to 33 months. In support of the imposition of the sentence, the district court provided a list of various characteristics of the defendant it considered during sentencing. The district court’s reasoning, however, did not include any reference to the applicable Guidelines provisions or further explication of the reasons for the particular sentence imposed. The court held even post-Booker, the list provided by the district court, without any accompanying analysis, was insufficient to justify the sentence imposed, as it rendered the court’s reasonableness review impossible. The court held Booker requires an acknowledgment of the defendant’s applicable Guidelines range as well as a discussion of the reasonableness of a variation from that range. Defendant’s sentence was vacated and the case was remanded for resentencing consistent with Booker.
Issues: Petition for writ of habeas corpus; Ineffective assistance of appellate counsel for failure to timely file an appeal as of right; Strickland v. Washington; Prejudice; Roe v. Flores-Ortega; Whether a presumption of prejudice was required; Grant of a certificate of appealability; Grant of leave to proceed on appeal in forma pauperis
Court: U.S. District Court Eastern District of Michigan
Case Name: Walker v. McKee
e-Journal Number: 27349
Judge(s): Gadola
The court denied the petition for writ of habeas corpus premised on petitioner’s claim he was denied the effective assistance of counsel when appellate counsel failed to timely file an appeal as of right with the Michigan Court of Appeals, but granted a certificate of appealability and leave to proceed on appeal in forma pauperis. Although petitioner was not permitted to pursue an appeal as of right due to his first appellate attorney’s conduct, he was able to file an application for leave to appeal in the Michigan Court of Appeals through new counsel to pursue his right of direct appeal, and he did so. Therefore, his direct appeal could not be considered “entirely nonexistent.” In addition, the record indicated the Michigan Court of Appeals considered the merits of his claims, since it denied his application for leave to appeal, “for lack of merit in the grounds presented.” Under the circumstances, it could not be said petitioner’s appeal was “presumptively unreliable.” He was not entitled to a presumption of prejudice after the Michigan Court of Appeals examined his claims through an application for leave to appeal and found they lacked merit. However, the court determined petitioner made a substantial showing of the denial of a constitutional right as to his habeas claim and reasonable jurists could find the court’s decision debatable or wrong. Thus, it granted the certificate of appealability.
Cyber Law skip to next practice area
This summary also appears under Intellectual Property
Issues: Claims for violation of the Digital Millennium Copyright Act and the Federal Communications Act by offering to the public, marketing, and trafficking in certain pirate software designed to circumvent plaintiff’s encryption and conditional access technological measures; Damages; Statutory damages permitted under 47 USC § 605(e)(3)(C)(i)(II) for a violation of 47 USC § 605(e)(4); Attorney’s fees
Court: U.S. District Court Western District of Michigan
Case Name: DIRECTV, Inc. v. Hughes
e-Journal Number: 27352
Judge(s): Quist
Defendant, by his default, having admitted all the facts to establish his liability, the court considered plaintiff’s request for an award of the maximum statutory damages permitted under § 605(e)(3)(C)(i)(II) for a violation of § 605(e)(4) and concluded an award of $100,000 was justified. Plaintiff alleged Hughes owned and/or operated a website dedicated to offering and marketing software enabling the user to circumvent DIRECTV’s encrypted satellite signals and receive programming without authorization. While DIRECTV was unable to show how many customers bought software or other products from the website, it produced evidence showing the website had 351,862 visitors as of a given date. The court concluded the evidence showed Hughes violated § 605(e)(4) and did so knowingly. Further, while there was no evidence concerning the number of violations, it was reasonable to conclude based on the number of “hits” on the website, there were numerous violations. An award of the maximum statutory damages was appropriate. DIRECTV was also awarded attorney fees in the amount of $850 pursuant to the statute, and the court granted a permanent injunction prohibiting Hughes from further violating § 605(a) and (e)(4).
Full Text Opinion
Employment & Labor Law
skip to next practice areaThis summary also appears under Civil Rights
Issues: Discrimination claims under Title VII; Claim plaintiff failed to comply with its statutory obligation to conciliate prior to filing the lawsuit; EEOC v. Wilson Metal Casket Co.; Single filing rule; EEOC v. Keco Indus.; Request plaintiff be barred from the recovery of damages as to the class of individuals because plaintiff allegedly failed to specifically attempt conciliation as to the class; Motion to dismiss the claims of two individuals
Court: U.S. District Court Western District of Michigan
Case Name: Equal Employment Opportunity Comm’n v. Applegate Holdings, LLC
e-Journal Number: 27397
Judge(s): Enslen
Finding it would be improper to dismiss the claims as to “others similarly situated” on the existing record, the court denied in part defendant-Advance’s motion for summary judgment. Advance sought to have all the plaintiff-EEOC’s claims dismissed because it asserted the EEOC failed to comply with its statutory obligation to conciliate before filing the lawsuit. One employee, Tracy, filed a charge against both Advance and defendant-Applegate alleging discrimination based on her sex and religion. There was no indication from the pleadings as to the size of the work unit involved. The court found the present record did not indicate the nature of the work unit and which employees were similarly situated to Tracy at the time of the alleged discrimination. The court intended to limit trial testimony to others similarly situated whose claims arose out of the same discriminatory treatment and during the same time period as Tracy’s charged discrimination, but these determinations had to be reserved for later findings on a more complete record. The court also found the EEOC tried to conciliate with Advance as to Tracy, and it appeared Advance did not respond. The court reserved determination of whether the EEOC attempted good faith conciliation on behalf of the “others similarly situated.” The claims of two other individuals as to Advance were dismissed.
Family Law
skip to next practice areaThis summary also appears under Native American Law
Issues: Termination of parental rights pursuant to § 19b(3)(c)(i); Applicability of the Indian Child Welfare Act (ICWA); In re SD; In re NEGP; Best interests of the child
Court: Michigan Court of Appeals (Published)
Case Name: In re Fried
e-Journal Number: 27449
Judge(s): Kelly, Sawyer, and Wilder
The trial court correctly held the ICWA did not apply because it is inapplicable to termination cases where the minor child is claimed to be an Indian child from an Indian tribe that is not recognized as eligible for services provided to Indians by the Secretary of the Interior. The ICWA does not apply to proceedings in which the child is not an “Indian child.” While it is for the tribe to determine whether a child is an “Indian child,” it is for the trial court to determine whether the tribe is an “Indian tribe.” The respondent-father submitted documentation indicating he was accepted into the Lost Cherokee Nation. However, the director for the Native American Affairs of the FIA testified the Lost Cherokee Nation is not recognized by the federal government and does not fall within the provisions of the ICWA. The minor child did not qualify as an “Indian child” by virtue of her potential membership in that tribe. Further, the Cherokee tribes having the required recognition indicated the child did not have ancestry in those tribes. The court also affirmed the trial court’s termination of respondent’s parental rights and the finding termination was in the child’s best interests. Affirmed.
Insurance
skip to next practice areaThis summary also appears under Negligence & Intentional Tort
Issues: Automobile negligence; Serious impairment of body function; Kreiner v. Fischer
Court: Michigan Court of Appeals (Published)
Case Name: Moore v. Cregeur
e-Journal Number: 27452
Judge(s): Per Curiam - Murphy, White, and Smolenski
The trial court erred by granting defendants’ motion for summary disposition in this action against defendants for recovery of noneconomic loss benefits under the no-fault statute. Plaintiff was involved in an automobile accident with defendants. The court held objective medical evidence existed to show plaintiff suffered multiple injuries from the automobile accident including detached retinas in both eyes. The injuries affected several of plaintiff’s important body functions, including her vision. Plaintiff failed to present sufficient evidence showing her rib injuries, fractures, and collapsed lung affected her general ability to lead her normal life as defined in Kreiner. Therefore, those injuries did not meet the threshold requirement under MCL 500.3135(1). However, the court disagreed with the trial court’s assessment of plaintiff’s vision loss. Plaintiff’s vision loss will affect every aspect of her life to some degree, and certain specific activities, such as hunting, even more. Plaintiff’s vision loss affects her general ability to lead her normal life, therefore, the vision loss was, as a matter of law, a serious impairment of a body function. Reversed and remanded.
This summary also appears under Negligence & Intentional Tort
Issues: Automobile negligence; Whether the injured plaintiff’s injuries met the statutory serious impairment of body function threshold in § 3135(7); Kriener v. Fischer; Kern v. Blethen-Coluni
Court: Michigan Court of Appeals (Published)
Case Name: Williams v. Medukas
e-Journal Number: 27450
Judge(s): Per Curiam – Murphy, White, and Smolenski
Since, as a matter of law, the injured plaintiff’s injuries constituted a serious impairment of body function, the trial court erred in granting summary disposition to the defendant. Following the accident, x-rays revealed the injured plaintiff sustained a fractured right shoulder and a fractured left hand. An orthopedic surgeon placed his left arm in a cast and immobilized his right arm with a double sling. During the time his arms were immobilized, plaintiff’s wife had to assist him with his needs, including dressing, eating, and performing hygiene functions. About six weeks after the accident the surgeon removed the immobilizer sling from plaintiff’s right shoulder. Approximately three months after the accident plaintiff returned to unrestricted work as a salesman and resumed coaching a girls’ basketball team. Plaintiff testified before the accident he played golf two to three times a week, but was unable to do so now and could not show the basketball team how to shoot basketball, or play with his grandchildren because he could not raise his right arm above his head. Plaintiff’s physician indicated he lacked full range of motion in his left wrist and his right shoulder had healed so its range of motion would be permanently limited. The court held given plaintiff’s prior involvement in sports activities, the limitations imposed by his injuries constituted a serious impairment of body function. Reversed and remanded.
Intellectual Property
skip to next practice areaThis summary also appears under Cyber Law
Issues: Claims for violation of the Digital Millennium Copyright Act and the Federal Communications Act by offering to the public, marketing, and trafficking in certain pirate software designed to circumvent plaintiff’s encryption and conditional access technological measures; Damages; Statutory damages permitted under 47 USC § 605(e)(3)(C)(i)(II) for a violation of 47 USC § 605(e)(4); Attorney’s fees
Court: U.S. District Court Western District of Michigan
Case Name: DIRECTV, Inc. v. Hughes
e-Journal Number: 27352
Judge(s): Quist
Defendant, by his default, having admitted all the facts to establish his liability, the court considered plaintiff’s request for an award of the maximum statutory damages permitted under § 605(e)(3)(C)(i)(II) for a violation of § 605(e)(4) and concluded an award of $100,000 was justified. Plaintiff alleged Hughes owned and/or operated a website dedicated to offering and marketing software enabling the user to circumvent DIRECTV’s encrypted satellite signals and receive programming without authorization. While DIRECTV was unable to show how many customers bought software or other products from the website, it produced evidence showing the website had 351,862 visitors as of a given date. The court concluded the evidence showed Hughes violated § 605(e)(4) and did so knowingly. Further, while there was no evidence concerning the number of violations, it was reasonable to conclude based on the number of “hits” on the website, there were numerous violations. An award of the maximum statutory damages was appropriate. DIRECTV was also awarded attorney fees in the amount of $850 pursuant to the statute, and the court granted a permanent injunction prohibiting Hughes from further violating § 605(a) and (e)(4).
Full Text Opinion
Litigation
skip to next practice areaThis summary also appears under Malpractice
Issues: Medical malpractice; Wrongful death medical malpractice action arising from the plaintiff’s decedent’s collapse in a county jail of alcohol-related causes; Whether the trial court properly granted defendant a directed verdict based on the absolute defense in MCL 600.2955a because the decedent’s intoxication was the proximate cause of his death; Whether alcohol withdrawal met the definition of an “event” as defined in Piccalo v. Nix (On Remand) for purposes of § 2955a(1); Wysocki v. Felt; Robinson v. Detroit; Whether the trial court erred in refusing to award defendant case evaluation sanctions pursuant to MCR 2.403(O)
Court: Michigan Court of Appeals (Published)
Case Name: Harbour v. Correctional Med. Servs., Inc.
e-Journal Number: 27448
Judge(s): Griffin, Bandstra, and Hoekstra
The trial court in this wrongful death action properly granted the defendant’s motion for a directed verdict pursuant to the absolute defense in § 2955a and consistent with Wysocki and Piccalo because the evidence unequivocally established the decedent’s intoxication was the proximate cause of his death. Plaintiff’s decedent was arrested for OUIL. At the county jail he was administered a breathalyzer test and registered 0.32, three times the then-existing legal limit. He was assessed by a nurse, one of defendant’s employees, who placed him on “sick call” in a holding cell to be seen by a doctor the next morning. The decedent collapsed in his cell about two hours later and died as a result of irregular heart rhythms caused by acute alcohol withdrawal, a manifestation of chronic alcoholism. It was undisputed when the decedent was arrested for OUIL, with a blood alcohol level of 0.32, he had an “impaired ability to function due to the influence of intoxicating liquor.” Given these facts, reasonable minds could not differ that as a result of the impairment, the decedent was 50 percent or more the cause of the “event”—acute alcohol withdrawal—resulting in his death. As a matter of law, defendant satisfied the requisite elements of § 2955a and was entitled to the absolute defense provided by the statute. Affirmed.
This summary also appears under Consumer Rights
Issues: Taxation of costs; Breach of warranty and consumer protection action; Whether the cost-shifting provision of the Magnuson-Moss Warranty Act (MMWA) (15 USC § 2310(d)(2)) authorized the award of costs regardless of whether they were taxable under the Revised Judicature Act (RJA); Preemption; Michigan Consumer Protection Act (MCPA); Argument plaintiffs were not a “prevailing party” when there was a mutually agreed settlement; Appellate attorney fees
Court: Michigan Court of Appeals (Published)
Case Name: Lavene v. Volkswagen of Am., Inc.
e-Journal Number: 27446
Judge(s): Per Curiam – Neff, Owens, and Fort Hood
In an issue of first impression, whether the broad “aggregate amount of costs and expenses” language of the MMWA overrides state restrictions on an award of costs when a state court entertains an MMWA action, the court held the trial court properly awarded plaintiffs costs pursuant to the MMWA. Plaintiffs brought a breach of warranty and consumer protection action against defendants, alleging claims for liability under the MMWA and the MCPA. The parties reached a settlement in which defendants agreed to repurchase the motor home and pay plaintiffs’ attorney fees and costs to which they were entitled by statute or court rule. At issue was whether the cost-shifting provisions of the MMWA authorized the award of certain costs regardless of whether they were taxable under the RJA. Defendants argued various costs awarded by the trial court were not recoverable, including deposition transcripts, deposition fees, expert witness fees, copying, postage, and delivery costs, and computer research. The court concluded 15 USC § 2310(d)(2) preempts the RJA and authorized the trial court to award costs that might not be taxable under the RJA, including costs for depositions, expert witness fees, copying, postage, delivery, and computer research. Affirmed and remanded for a determination of an award of plaintiffs’ actual and reasonable appellate attorney fees.
Malpractice
skip to next practice areaThis summary also appears under Litigation
Issues: Medical malpractice; Wrongful death medical malpractice action arising from the plaintiff’s decedent’s collapse in a county jail of alcohol-related causes; Whether the trial court properly granted defendant a directed verdict based on the absolute defense in MCL 600.2955a because the decedent’s intoxication was the proximate cause of his death; Whether alcohol withdrawal met the definition of an “event” as defined in Piccalo v. Nix (On Remand) for purposes of § 2955a(1); Wysocki v. Felt; Robinson v. Detroit; Whether the trial court erred in refusing to award defendant case evaluation sanctions pursuant to MCR 2.403(O)
Court: Michigan Court of Appeals (Published)
Case Name: Harbour v. Correctional Med. Servs., Inc.
e-Journal Number: 27448
Judge(s): Griffin, Bandstra, and Hoekstra
The trial court in this wrongful death action properly granted the defendant’s motion for a directed verdict pursuant to the absolute defense in § 2955a and consistent with Wysocki and Piccalo because the evidence unequivocally established the decedent’s intoxication was the proximate cause of his death. Plaintiff’s decedent was arrested for OUIL. At the county jail he was administered a breathalyzer test and registered 0.32, three times the then-existing legal limit. He was assessed by a nurse, one of defendant’s employees, who placed him on “sick call” in a holding cell to be seen by a doctor the next morning. The decedent collapsed in his cell about two hours later and died as a result of irregular heart rhythms caused by acute alcohol withdrawal, a manifestation of chronic alcoholism. It was undisputed when the decedent was arrested for OUIL, with a blood alcohol level of 0.32, he had an “impaired ability to function due to the influence of intoxicating liquor.” Given these facts, reasonable minds could not differ that as a result of the impairment, the decedent was 50 percent or more the cause of the “event”—acute alcohol withdrawal—resulting in his death. As a matter of law, defendant satisfied the requisite elements of § 2955a and was entitled to the absolute defense provided by the statute. Affirmed.
Municipal
skip to next practice areaThis summary also appears under Tax
Issues: Whether the Tax Tribunal erred by denying the petitioner-retirement system exemption from ad valorem taxation; MCL 211.7m; The Municipal Employees Retirement Act of 1984 (MERA) (MCL 38.1501 et seq.)
Court: Michigan Court of Appeals (Published)
Case Name: Municipal Employees Retirement Sys. of Mich. v. Charter Twp. of Delta
e-Journal Number: 27451
Judge(s): Per Curiam - Murphy, White, and Smolenski
The Tax Tribunal erred by denying petitioner an exemption from ad valorem taxation, holding real property owned for investment purposes is taxable even if the proceeds from the investment further an exempt purpose. Petitioner, a Michigan public corporation created pursuant to the MERA, purchased three contiguous parcels of vacant commercial property as an investment. Petitioner challenged the valuation and claimed the parcels were exempt from ad valorem taxation pursuant to MCL 211.7m because the parcels were being “used to carry out a public purpose” since they were part of a diversified portfolio benefiting public employees. The court held the land held by petitioner was properly exempt from taxation under MCL 211.7m as land used for a public purpose. The vacant properties were held by petitioner not for ancillary investment purposes, but as part of a diversified investment portfolio pursuant to petitioner’s statutory duty to administer funds. Under MERA, petitioner was required to hold and invest other assets, such as the land in question, for the purpose of meeting its disbursement requirements. Further, the statute specifically stated the assets held or invested “shall be used for no other purpose.” The phrase “used for no other purpose” necessarily contemplates the only proper “uses” for assets under the act, is to hold or invest them. Consequently, the act of holding real property assets in petitioner’s portfolio, ready for liquidation to meet its statutorily mandated disbursement requirements, was a present use rather than “an indefinite prospective use.” Reversed and remanded.
This summary also appears under Constitutional Law
Issues: Whether the defendant-Water District’s policy tenants and other non-property owners could not establish water service accounts in their own names because they are not property owners violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment; Golden v. City of Columbus; Procedural due process; Substantive due process; Qualified immunity; Motion for leave to amend complaint to add an agency allegation; Proposed amendment to complaint to add an Equal Credit Opportunity Act claim
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Midkiff v. Adams County Reg’l Water Dist.
e-Journal Number: 27437
Judge(s): Ackerman, Suhrheinrich, and Gilman
The district court did not err in dismissing plaintiffs’ equal protection claim against the defendant-Water District because plaintiffs did not establish an equal protection violation since the Water District’s policy rationally distinguished between landlords and tenants and withstood equal protection scrutiny. Plaintiffs claimed the Water District’s policy violated the Equal Protection Clause of the Fourteenth Amendment because the policy discriminated between property owners and nonproperty owners, and no rational basis supported such a classification. Plaintiffs did not allege strict scrutiny applied. Rather, they alleged the Water District’s policy had no rational basis. The Water District, however, asserted its policy served the governmental interest in protection of the Water District’s financial stability because its policy “avoids problems with collections associated with tenants whose connection with the property is more transitory than that of the owner.” The Water District also argued its policy served the interest in water conservation. The policy encouraged landlords to rent to financially responsible tenants or to collect sufficient security in advance, and it also gives property owners an incentive to not waste water and to maintain their plumbing systems because they bear the responsibility for large water bills. These governmental interests are rationally related to the disparate treatment of landlords and tenants under the Water District rules and policies. Further, while the different classes of tenants in Golden were similarly situated, here the landlords and tenants were not so similarly situated. The court’s equal protection holding in Golden was distinguishable. Plaintiffs’ due process claims also failed. Affirmed.
Native American Law
skip to next practice areaThis summary also appears under Family Law
Issues: Termination of parental rights pursuant to § 19b(3)(c)(i); Applicability of the Indian Child Welfare Act (ICWA); In re SD; In re NEGP; Best interests of the child
Court: Michigan Court of Appeals (Published)
Case Name: In re Fried
e-Journal Number: 27449
Judge(s): Kelly, Sawyer, and Wilder
The trial court correctly held the ICWA did not apply because it is inapplicable to termination cases where the minor child is claimed to be an Indian child from an Indian tribe that is not recognized as eligible for services provided to Indians by the Secretary of the Interior. The ICWA does not apply to proceedings in which the child is not an “Indian child.” While it is for the tribe to determine whether a child is an “Indian child,” it is for the trial court to determine whether the tribe is an “Indian tribe.” The respondent-father submitted documentation indicating he was accepted into the Lost Cherokee Nation. However, the director for the Native American Affairs of the FIA testified the Lost Cherokee Nation is not recognized by the federal government and does not fall within the provisions of the ICWA. The minor child did not qualify as an “Indian child” by virtue of her potential membership in that tribe. Further, the Cherokee tribes having the required recognition indicated the child did not have ancestry in those tribes. The court also affirmed the trial court’s termination of respondent’s parental rights and the finding termination was in the child’s best interests. Affirmed.
Negligence & Intentional Tort
skip to next practice areaIssues: Wrongful death; Whether the open and obvious danger doctrine applied to limit defendant’s liability under a theory of ordinary negligence as well as a theory of premises liability; Walker v. Flint; Premises liability; Whether the condition of the tractor was open and obvious
Court: Michigan Court of Appeals (Published)
Case Name: Laier v. Kitchen
e-Journal Number: 27445
Judge(s): Neff; Concurrence - Schuette; Concurring in part, Dissenting in part - Hoekstra
The court held the open and obvious doctrine was inapplicable to plaintiff’s ordinary negligence claim and although the open and obvious doctrine applied to plaintiff’s premises liability claim, genuine issues of material fact precluded summary disposition. The decedent, plaintiff’s son, was killed in an accident on defendant’s property while helping defendant with hydraulic hose repairs on the front-end loader of a tractor borrowed from plaintiff, which defendant broke while using it to compress materials in a dumpster. Both the decedent and defendant were aware the tractor’s hydraulic system was broken. The two set out to repair it, and defendant was in the position to control the bucket, which he raised four or five feet so the decedent could get into a position to work on the hydraulic hose and fitting. It was not at all clear what happened next to cause the bucket to fall and fatally injure the decedent, but it was arguable some action or inaction by defendant resulted in the fatal event. What was clear was defendant failed to secure the bucket in the raised position. Under these circumstances, questions of negligence and comparative negligence are properly for the jury. The court held it could not be said no genuine issue of material fact existed upon which reasonable minds could differ regarding plaintiff’s negligence claim. Therefore, the trial court erred by granting summary disposition for defendant and dismissing plaintiff’s wrongful death action. Reversed and remanded.
This summary also appears under Insurance
Issues: Automobile negligence; Serious impairment of body function; Kreiner v. Fischer
Court: Michigan Court of Appeals (Published)
Case Name: Moore v. Cregeur
e-Journal Number: 27452
Judge(s): Per Curiam - Murphy, White, and Smolenski
The trial court erred by granting defendants’ motion for summary disposition in this action against defendants for recovery of noneconomic loss benefits under the no-fault statute. Plaintiff was involved in an automobile accident with defendants. The court held objective medical evidence existed to show plaintiff suffered multiple injuries from the automobile accident including detached retinas in both eyes. The injuries affected several of plaintiff’s important body functions, including her vision. Plaintiff failed to present sufficient evidence showing her rib injuries, fractures, and collapsed lung affected her general ability to lead her normal life as defined in Kreiner. Therefore, those injuries did not meet the threshold requirement under MCL 500.3135(1). However, the court disagreed with the trial court’s assessment of plaintiff’s vision loss. Plaintiff’s vision loss will affect every aspect of her life to some degree, and certain specific activities, such as hunting, even more. Plaintiff’s vision loss affects her general ability to lead her normal life, therefore, the vision loss was, as a matter of law, a serious impairment of a body function. Reversed and remanded.
This summary also appears under Insurance
Issues: Automobile negligence; Whether the injured plaintiff’s injuries met the statutory serious impairment of body function threshold in § 3135(7); Kriener v. Fischer; Kern v. Blethen-Coluni
Court: Michigan Court of Appeals (Published)
Case Name: Williams v. Medukas
e-Journal Number: 27450
Judge(s): Per Curiam – Murphy, White, and Smolenski
Since, as a matter of law, the injured plaintiff’s injuries constituted a serious impairment of body function, the trial court erred in granting summary disposition to the defendant. Following the accident, x-rays revealed the injured plaintiff sustained a fractured right shoulder and a fractured left hand. An orthopedic surgeon placed his left arm in a cast and immobilized his right arm with a double sling. During the time his arms were immobilized, plaintiff’s wife had to assist him with his needs, including dressing, eating, and performing hygiene functions. About six weeks after the accident the surgeon removed the immobilizer sling from plaintiff’s right shoulder. Approximately three months after the accident plaintiff returned to unrestricted work as a salesman and resumed coaching a girls’ basketball team. Plaintiff testified before the accident he played golf two to three times a week, but was unable to do so now and could not show the basketball team how to shoot basketball, or play with his grandchildren because he could not raise his right arm above his head. Plaintiff’s physician indicated he lacked full range of motion in his left wrist and his right shoulder had healed so its range of motion would be permanently limited. The court held given plaintiff’s prior involvement in sports activities, the limitations imposed by his injuries constituted a serious impairment of body function. Reversed and remanded.
Tax
skip to next practice areaThis summary also appears under Municipal
Issues: Whether the Tax Tribunal erred by denying the petitioner-retirement system exemption from ad valorem taxation; MCL 211.7m; The Municipal Employees Retirement Act of 1984 (MERA) (MCL 38.1501 et seq.)
Court: Michigan Court of Appeals (Published)
Case Name: Municipal Employees Retirement Sys. of Mich. v. Charter Twp. of Delta
e-Journal Number: 27451
Judge(s): Per Curiam - Murphy, White, and Smolenski
The Tax Tribunal erred by denying petitioner an exemption from ad valorem taxation, holding real property owned for investment purposes is taxable even if the proceeds from the investment further an exempt purpose. Petitioner, a Michigan public corporation created pursuant to the MERA, purchased three contiguous parcels of vacant commercial property as an investment. Petitioner challenged the valuation and claimed the parcels were exempt from ad valorem taxation pursuant to MCL 211.7m because the parcels were being “used to carry out a public purpose” since they were part of a diversified portfolio benefiting public employees. The court held the land held by petitioner was properly exempt from taxation under MCL 211.7m as land used for a public purpose. The vacant properties were held by petitioner not for ancillary investment purposes, but as part of a diversified investment portfolio pursuant to petitioner’s statutory duty to administer funds. Under MERA, petitioner was required to hold and invest other assets, such as the land in question, for the purpose of meeting its disbursement requirements. Further, the statute specifically stated the assets held or invested “shall be used for no other purpose.” The phrase “used for no other purpose” necessarily contemplates the only proper “uses” for assets under the act, is to hold or invest them. Consequently, the act of holding real property assets in petitioner’s portfolio, ready for liquidation to meet its statutorily mandated disbursement requirements, was a present use rather than “an indefinite prospective use.” Reversed and remanded.
Full Text Opinion
Wills & Trusts
Issues: Exercise of a limited power of appointment granted in a marital trust; Special power of appointment (MCL 556.112(i)); Whether the donee could effect the transfer through a trust; Donee’s use of his own revocable living trust; Claim alleged exposure of marital trust assets to certain potential liabilities constituted a transfer to the benefit of persons outside the class delineated by the donor; Restatement Property (Donative Transfers), 2d, § 19.3, p 296
Court: Michigan Court of Appeals (Published)
Case Name: In re Estate of Reisman
e-Journal Number: 27447
Judge(s): Smolenski, Murphy, and White
Concluding the donee-husband effectively and properly exercised the limited power of appointment granted to him by the donor-wife, the court reversed the probate court’s decision the donee’s exercise of the power was invalid. The donor’s revocable living trust created a marital trust for the donee’s benefit, which had a clause granting him a limited power of appointment over the assets remaining in the marital trust. The donee exercised the power via a codicil to his will, which transferred the assets to the then acting trustee of his own revocable living trust, subject to the condition the trustee distribute the assets according to the terms stated in the donee’s trust. The recipients of the trusts were all members of the class delineated in the donor’s grant of power. Petitioners argued the exposure of the marital trust assets to potential liabilities constituted a transfer to the benefit of persons outside the class delineated by the donor. The court disagreed, concluding the language of the donee’s trust effectively stripped the trustee of any authority to use those assets for anything other than the specified distribution. The marital trust assets also could not be invaded by third parties for the payment of administration expenses, claims against the donee’s estate, or an allowance. Consequently, the donee’s exercise of the power through his trust did not benefit his estate or creditors, and it was not available to pay trust expenses. Reversed and remanded.