e-Journal

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of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.

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Cases appear under the following practice areas:

Criminal Law (7)
Family Law (2)
Insurance (1)
Municipal (1)
Negligence & Intentional Tort (1)
Real Property (1)
Termination of Parental Rights (1)

Criminal Law

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Issues: Right to self-representation; U.S. Const., Am. VI; Const. 1963, art. 1, § 13; MCL 763.1; Martinez v. Court of Appeals of CA; Procedures for proceeding pro se; People v. Russell; Waiver of attorney; MCR 6.005(D)(1); People v. Williams; Opportunity to consult with attorney; MCR 6.005(D)(2); Denial of right to self-representation; McKaskle v. Wiggins; Effect of the trial court's requirement that the defendant wear shackles during trial on his exercise of his constitutional right to self-representation; Standards for pro se defendant; Baird v. Baird; Defense attorney's discretion as to trial strategy; People v. Pickens; People v. Rockey; Due process right to a fair trial; Presumption of innocence; Deck v. Missouri; Shackling of a defendant; People v. Dixon; People v. Dunn; "Prejudice"; People v. Payne

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Arthur

e-Journal Number: 52035

Judge(s): Per Curiam – Talbot and Owens; Dissent – O’Connell

The court held that the trial court's requirement that defendant wear shackles during trial nullified its grant of defendant's request for self-representation and denied him his right to a fair trial. Defendant was convicted and sentenced on a variety of crimes. On appeal, he argued that he was denied his constitutional right to self-representation because the trial court required that he wear shackles on his legs during trial. The court agreed with defendant's argument that "the trial court's refusal to allow him to appear in court without shackles rendered his right to represent himself illusory" and its "insistence without justification on such restraints operated as a de facto denial of his right to self-representation because of its prejudicial effect." The court found that the condition imposed on defendant's self-representation prohibited him from using any trial strategy or tactic that would require him to walk in the presence of the jury, which restricted him from approaching witnesses with evidence, moving between the podium and counsel table, or engaging in a bench conference. Further, the court noted, defendant "would have been forced to remain seated at counsel table throughout trial, even as he questioned witnesses, impermissibly putting him on unequal footing with the prosecution." As a result, the court held that defendant was left with no choice but to relinquish his constitutional right to represent himself. The court also agreed with defendant's argument that the trial court's requirement that he wear shackles violated his due process right to a fair trial. The court found that the trial court failed to articulate any "extraordinary" circumstance compelling the use of shackles during trial. The trial court simply cited a "security issue" and did not elaborate. The court also concluded that he demonstrated prejudice, since the record suggested that the jury saw his shackles, and held that the trial court's decision was reversible error. Reversed and remanded.

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's convictions of five counts of CSC III; People v. Ericksen; Credibility; People v. Nowack; People v. Lemmon; Whether defendant was denied his right to a fair trial by the trial court's refusal to admit a photograph he offered at trial as evidence; People v. Brown; People v. Huffman; Abandonment of issue; MCR 6.201(H); MCR 6.201(A)(6); Prosecutorial misconduct; People v. Abraham; People v. Gist; People v. Schumacher; Sentencing; Whether defendant was sentenced on the basis of an accurate PSIR; People v. Spanke; Scoring of OVs 3, 4, 10, 11, 13, and 19; People v. Underwood; People v. Cathey; People v. Althoff; People v. Johnson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Fritz

e-Journal Number: 52076

Judge(s): Per Curiam – Jansen, Cavanagh, and Hoekstra

Concluding that the prosecution presented sufficient evidence to support the verdict, the court affirmed the defendant's convictions of five counts of CSC III. Defendant claimed that the prosecution failed to establish that the victim was between the ages of 13 and 15 years old when he engaged in sexual intercourse with her. His argument focused primarily on a portion of the victim's testimony from the preliminary examination in which she discussed what type of car she drove while engaged in the relationship with him. Specifically, at defendant's preliminary examination, the following exchange occurred between defense counsel and the victim - "Q. You drove a black Taurus during the time you were in a dating relationship with my client, true? A. No, green." The victim testified at trial that she did not buy the Taurus or drive until she was 16. When asked by defense counsel whether she recalled previously testifying that she was driving the Taurus while dating defendant, she explained that she misunderstood the question, and meant only to clarify that while she did own a Taurus when she was 16, it was green, not black, and not that her relationship with defendant began when she was 16. In essence, defendant's argument was that his testimony was more credible than the victim's. However, the court must make "'credibility choices in support of the jury verdict,' and must defer to the jury's superior ability to assess the credibility of witnesses." The court held that the jury apparently found the victim's explanation credible, and reversal was unwarranted because there was some inconsistent testimony presented at trial. Even if the victim's testimony was understood to mean that she drove a green Taurus during her dating relationship with defendant, the court held that it did not establish that she was over 16 when the sexual activity first took place. She testified that the last time she and defendant went on a date was 2/24/07. At that point she had been 16 for 3 months. By defendant's own admission, they dated for a year. Thus, she would have been driving the Taurus "during the time" she and defendant were dating. Further, the overwhelming weight of the other testimony offered at trial, including most of the victim's testimony, the testimony of two of her softball teammates, as well as defendant's own written statement, established that she was 14 years old when she first became sexually involved with defendant. In the written statement, provided by defendant to the investigating detective, and read into evidence at trial, he claimed that he had started dating the victim in "May of 2005 . . . [when] I was 22 and [the complainant] was 14. I was dating [her] for one year." The only explanation he offered as to why his written statement was in error was his claim that "he was given the wrong year for a frame of reference" by the investigating detective. However, the detective testified that he did not give defendant guidance as to what to write, nor did defendant make any attempt to clarify his confusion regarding the victim's age while writing his statement. Affirmed.

Full Text Opinion

Issues: Sufficiency of the evidence of the defendant's intent to find him guilty of first-degree premeditated murder; People v. Ericksen; People v. Railer; People v. Bennett; People v. Herndon; People v. Jackson; People v. Taylor; "Other acts" evidence; MRE 404(b); People v. Waclawski; People v. Orlewciz; People v. Knapp; People v. Knox; People v. Mardlin; People v. Sabin (After Remand); People v. Starr; Admission of a 1969 confession to police; People v. Conte; People v. Harrington; People v. Dendel

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. George

e-Journal Number: 52162

Judge(s): Per Curiam - O'Connell, Jansen, and Riordan

In this case where the defendant was convicted by a jury of first-degree premeditated murder for the 1968 killing of P, the court held, inter alia, that the similar nature of the deaths of P and B indicated that he had a common plan or scheme, which was further evidence that he specifically intended to kill P and acted with the requisite premeditation and deliberation for a conviction of first-degree murder. Defendant was previously convicted of second-degree murder and involuntary manslaughter in the deaths of two other women (B and G). He contended here that there was insufficient evidence to find him guilty of first-degree, premeditated murder, because he lacked the specific intent required for a conviction of this crime. The court concluded that there was ample evidence presented at trial from which a reasonable juror could conclude that he intentionally killed P with premeditation and deliberation. The evidence showed that he had sexual intercourse with P, beat her several times in the head, and then strangled her with her own pantyhose. These actions would have required time, giving him the chance to "take a second look" at what he was doing before he actually killed her. Also, ligature strangulation is not an instant death. It takes 7 to 10 seconds for an individual to lose consciousness by strangulation when pressure is consistently and directly applied. One to two minutes of direct and consistent strangulation are required to cause death. In this case, pinpoint bleeds in P's neck indicated that force was applied, released, and then reapplied. Because the force was not consistent, the time frame for P to lose consciousness and then die from asphyxiation would have been even longer. Also, he did not strangle her with his hands. He used the pantyhose that P was wearing, which would have required more time and effort. First, he had to take off the pantyhose, or retrieve them. He then wound them tightly around P's neck and knotted them multiple times. These actions also indicated a plan, further evidencing that defendant acted with premeditation and deliberation. Not only did the circumstances of P's death indicate that he had the specific intent to kill her, the evidence also showed that he intended to make her suffer and prolong her death. Defendant also had a motive and common plan for killing women in the same manner as P, which also showed that he acted with premeditation and deliberation. He enjoyed strangling women because he liked to watch them kick and struggle. Two of his former inmates testified that defendant told them he liked to strangle women and watch them struggle, and he had done it "multiple times before." The injuries to P and B were consistent with this testimony. Further, defendant killed B in almost the same fashion as he killed P. He inflicted significant blunt force trauma to B's head, strangled her with her own underwear, and then left her body in a car in the back corner of a bar parking lot. Defendant also beat G on the head repeatedly before leaving her in a field to die from hypothermia. All of these women were left partially undressed and all recently had intercourse. The similar nature of these deaths indicated that defendant had a common plan or scheme. Affirmed.

Full Text Opinion

Issues: Exclusion of medical evidence that the defendant sustained a traumatic brain injury that caused him to suffer from memory loss and forgetfulness; People v. Yost; People v. McGhee; Constitutional right to present a defense; People v. Orlewicz; People v. Unger; "Relevant evidence"; MRE 404(a)(1); People v. Roper; MRE 405(a); Failure to place an offer of proof on the record; MRE 103(a)(2); People v. Witherspoon; Detroit v. Detroit Plaza, Ltd. P'ship; The "diminished capacity" defense; People v. Carpenter; Whether defendant offered a diminished capacity defense or offered the evidence for a different purpose; Sentencing; Whether the trial court articulated "substantial and compelling" reasons for refusing to sentence defendant to an "intermediate sanction"; People v. Smith; People v. Babcock; People v. McCuller; People v. Stauffer; Effect of the fact defendant was "a danger to the community"; People v. Solmonson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hamama

e-Journal Number: 52087

Judge(s): Per Curiam – Meter and Fort Hood; Concurring in part, Dissenting in part – Servitto

The court held that the trial court did not abuse its discretion in excluding the defendant's medical records or in imposing a 15-month minimum prison sentence instead of sentencing him to an intermediate sanction. He was convicted of surveilling an unclothed person. He argued that the trial court erred by preventing him from presenting medical evidence that he sustained a traumatic brain injury that caused him to suffer from memory loss and forgetfulness. The court noted that the prosecution moved to exclude defendant's defense of "diminished capacity or special mental traits." At the hearing on the motion, the trial court ruled that defendant was raising an issue of diminished capacity that was barred by case law. However, the trial court also ruled that he could admit evidence of a character trait provided that he did not rely on medical evidence. Defense counsel did not place an offer of proof as to the excluded evidence on the record. "When the trial court's ruling excludes evidence, it is incumbent on the party seeking admission to make an offer of proof, and error may not be predicated on the exclusion of evidence unless a substantial right of the party is affected." In light of the absence of an offer proof, "defendant failed to establish plain error affecting his substantial rights." However, the court addressed his argument and concluded that while his medical records detailing his traumatic brain injury would have been admissible pursuant to MRE 401 and MRE 404(a)(1), they would have been inadmissible pursuant to MRE 405(a). The medical records evidence was relevant to the defense that he forgot the victim was in the room. The evidence was also admissible pursuant to MRE 404(a)(1), because his forgetfulness was a pertinent character trait that made it less likely that he committed the crime. "However, a defendant may only introduce evidence of a pertinent character trait through reputation or opinion testimony." His medical records were not reputation or opinion testimony. Defendant's statement that he was taking prescription medication for memory loss was also not opinion or reputation testimony. The trial court allowed him "to admit, during his testimony, evidence that he was forgetful and how his forgetfulness and surrounding circumstances led to his alleged mistaken entry into the occupied tanning room." The court also rejected defendant's claim that the trial court did not articulate substantial and compelling reasons for refusing to sentence him to an intermediate sanction. The court held that his "past criminal sexual deviant behavior was given inadequate and disproportionate weight in the trial court's calculation of the minimum sentencing guidelines," and thus, was a substantial and compelling reason to depart. "Defendant's lack of respect for the court system was also a substantial and compelling reason to justify departing from the minimum sentencing guidelines range. It was objective and verifiable." He failed to comply with the sex offender registry provisions several times after his 2002 conviction. While the trial court's conclusion that defendant was a danger to the community was not a substantial and compelling reason to depart because it was not objective and verifiable, it reinforced the trial court's previously articulated substantial and compelling reasons for the departure. Affirmed.

Full Text Opinion

Issues: Whether the defendant's conviction as an aider and abettor to torture (MCL 750.85) and unlawful imprisonment (MCL 750.349b) was against the great weight of the evidence; MCR 2.611(A)(1)(e); People v. Lacalamita; People v. Lemmon; People v. Jaffray; People v. Railer; People v. Ericksen; People v. Robinson; People v. Palmer; Ineffective assistance of counsel as to the cross-examination of the victim (P) ; People v. LeBlanc; People v. Payne; People v. Carbin; Strickland v. Washington; People v. Taylor; Sentencing; Scoring of OVs 3 and 8; People v. Hornsby; People v. Elliott; People v. McCuller; People v. Spanke

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Jenkins

e-Journal Number: 52159

Judge(s): Per Curiam - O'Connell, Jansen, and Riordan

The court held that the weight of the evidence supported the defendant's convictions as an aider and abettor to torture and unlawful imprisonment where the trial court found the defendant's testimony inherently incredible and the victim-P's testimony was not inherently implausible, contradictory to physical reality, or impeached to the point of worthlessness. Defendant was a part of a group of three men who held and injured P in a house in a city. The other two men in the group were G and a man known as "Snoop." P obtained $100 worth of crack cocaine from G on credit, telling G that he would stay in the house until midnight and would then go with G to withdraw money from an ATM to pay for the crack. P's wages were to be available by direct deposit at midnight. At that time, the three men drove with P to the ATM, but P's funds were not available. They tried again later, but P was still unable to withdraw funds. The men took P back to G's house where they repeatedly beat him, kept him in a gated room, and poured a pot of scalding hot water and grease on him. Also, G's mother (J) hit P in the head with a skillet when he tried to escape. Defendant's primary argument on appeal was that P's testimony was so inconsistent that it was rendered worthless for the purpose of proving defendant's guilt. However, the court held that P's testimony was not so unbelievable that it was worthless. P testified that defendant went with him, G, and Snoop to the ATM to collect the $100 P owed G for crack, and after finding P had insufficient funds, all three men took him back to the house, where defendant took part in the beating. P testified that defendant struck his hands with a two-by-four, and after G took him to the gated room upstairs the three men continued to beat him. P said defendant opened the gate for G to bring through the pot of scalding-hot water and grease, which G threw on him. P also said that defendant tussled with P in the kitchen to prevent him from escaping, until J hit him on the head with the skillet. The court concluded that this evidence showed that G, Snoop, and defendant knowingly restrained P, intentionally keeping him in the house until they could be paid for the crack P smoked. The two-by-four, the scalding water, and the skillet were all dangerous weapons or instruments used to confine P, either through use or threat of use. Also, P was secretly confined for the purpose of the unlawful imprisonment statute. Knowing restraint of a person under each of these circumstances independently supported a conviction for unlawful imprisonment. The evidence did not clearly preponderate against a finding that defendant aided and abetted unlawful imprisonment. The evidence also showed that G, Snoop, and defendant intended to cause P cruel or extreme physical pain and suffering. The blows Snoop and defendant struck P with the two-by-four were deliberate, methodical, and resulted in serious injuries to P's head and hands. Also, the scalding water caused severe burns. The men beat P both before and after the burns. P required skin grafts and weeks of hospitalization to treat his burns. Further, the last element of torture was met because P was within their custody or physical control. Affirmed.

Full Text Opinion

Issues: Motion for relief from judgment; People v. Fonville; People v. Sexton; "Plain error"; People v. Martin; People v. Carines; People v. Jones; Failure to object to the jury instructions or the verdict form; People v. Ferguson; People v. Hawthorne; People v. White; People v. Wade

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Muhammad

e-Journal Number: 52079

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

Concluding that the jury verdict form in this case gave the jury the option to return a general verdict of not guilty as to Count II of the charged offenses, the court held that the form was not defective. Also, defendant failed to establish plain error. His convictions arose from a bank robbery and shooting that occurred while fleeing a police pursuit. Following his convictions, in 1993, he filed a motion for a new trial, which was denied, as well as a motion to set aside judgment, which was also denied. In 1994, he filed a motion for relief from judgment, which was similarly denied. In 2009, in Wade, the court held that a "verdict form was defective, requiring reversal, because it did not give the jury the opportunity to return a general verdict of not guilty." Following the release of Wade, defendant filed another motion for relief from judgment with the trial court, asserting that his conviction for assault with intent to do great bodily harm less than murder should be overturned because the jury verdict form used in his case was analogous to the error in Wade. The trial court denied his motion. The court held that there were similarities between the form used in Wade and the form used at defendant's trial. Both forms had a count that included the charged offense and two lesser included offenses, and both forms lacked specific "not guilty" options for those lesser included offenses. However, the court also held that there were also clear distinctions between the procedural posture of the cases as well as between the form used in Wade and the one used in this case. In Wade, "the defense counsel objected to the verdict form's placement of 'not guilty' in relationship to the lesser included offenses and the objection was overruled, thereby preserving the issue for appellate review." In this case, defense counsel did not object on this basis in the trial court and thus, defendant had the burden of proving plain error affecting substantial rights. As to the verdict form, in Wade, the court noted that "the 'NOT GUILTY' box in Count I appears right under the list primary charge (first-degree premeditated murder), which could be understood as referring only to that charge." In this case, "the header for Count II only identifies the count and does not include a defining complimentary element - the crime charged - as was the case in Wade." The court further noted that the "distinction is further drawn in presentation of the 'Not Guilty' option, which is placed underneath the 'Count II' header and makes no reference to the crime charged. In this way, the verdict form informs that the 'Not Guilty' option applies to all listed crimes that follow." Also, the court held that the form was consistent with CJI2d 3.26, the commentary of which makes reference to the requirements of Wade. Further, the court held that the trial court made it clear during jury instructions that there were four, distinct options under Count II, and that the jury was only to select one of those options. The trial court instructed as follows - "Count two, count two has four options . . . . I want to point out to you that under count two, you have to make one choice, but you have four options to count two." Affirmed.

Full Text Opinion

Issues: Motion for relief from judgment and resentencing based on the use of a 1995-plea based conviction to enhance the defendant's 2006 sentence; People v. Clark; People v. McSwain; Koon v. U.S.; MCR 6.508(D)(3); "Good cause" and "actual prejudice"; Jurisdictional defect; People v. Carpentier; Whether the 1995 trial court's failure to inform defendant that he could request counsel to apply for leave to appeal deprived him of his Sixth Amendment right to counsel; Const. 1963, art. 1, § 20; People v. Smith; People v. Gazaway; People v. Bulger; Halbert v. Michigan; People v. Maxson; MCR 6.425(E); Ward v. Wolfenbarger (ED MI); United States v. Tucker; Burgett v. Texas

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Richardson

e-Journal Number: 52089

Judge(s): Per Curiam – K.F. Kelly, Wilder, and Boonstra

The court held that when the trial court ruled that the defendant's 1995 conviction was unconstitutional based on his lack of appellate counsel and thus, it could not be used to enhance his 2006 sentence, the trial court retroactively applied Halbert contrary to Maxson. "In light of the trial court's legal errors, its decision to grant defendant relief from judgment was an abuse of discretion." Defendant was convicted in 2006 of possession with intent to deliver less than 50 grams of heroin, possession with intent to deliver less than 50 grams of cocaine, possession with intent to deliver marijuana, felon in possession, and felony-firearm (third offense). He was sentenced as a habitual third offender to concurrent terms of 10 months to 40 years each for the possession with intent to deliver heroin and cocaine convictions, 6 months to 8 years for the possession with intent to deliver marijuana conviction, and 6 months to 10 years for the felon in possession conviction, to be served consecutive to 10 years for the felony- firearm conviction. After an unsuccessful appeal, he moved for relief from judgment and resentencing based on the trial court's use of a 1995 plea-based conviction to enhance his sentence. Defendant claimed that, after the 1995 conviction, the sentencing court failed to inform him that he could request counsel to apply for leave to appeal. He asserted that, because he had been denied the opportunity to request appellate counsel, his 1995 conviction was constitutionally infirm and could not be used to enhance his 2006 sentence. The trial court agreed and ordered resentencing. The prosecution claimed on appeal that the trial court abused its discretion in granting defendant's motion for relief because, at the time of his 1995 conviction, Michigan did not recognize a right to counsel to apply for leave to appeal plea-based convictions under either the Michigan or the U.S. Constitution. The prosecution argued the sentencing court's failure to inform defendant of his opportunity to request counsel did not deprive him of his Sixth Amendment right to counsel and that his 1995 conviction was not constitutionally infirm and could be used to enhance his 2006 sentence. The court agreed. "Under Bulger, defendant cannot claim he was deprived of his constitutional rights when he was not informed of his right to request counsel because he was not constitutionally entitled to appointment of counsel." In 2005, the U.S. Supreme Court, in Halbert, abrogated Bulger. However, in Maxson, the Michigan Supreme Court held that Halbert is not to be applied retroactively and thus, "defendants who were denied appellate counsel after the 1994 amendment, but before the 2005 Halbert decision, cannot collaterally attack their convictions based on a denial of appointment of appellate counsel." Defendant could not claim any relief under Halbert because its holding did not operate retroactively. Rather than claiming reliance on Halbert, defendant based his argument on MCR 6.425(E) as it provided as of 1/1/1995. However, the 1995 trial court's failure to follow the guidelines in MCR 6.425(E) was not a constitutional violation. Further, the trial court's reliance on Tucker, which involved deprivation of trial counsel, not appellate counsel, was erroneous. Reversed and remanded for reinstatement of defendant's original sentence.

Full Text Opinion

Family Law

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Issues: The plaintiff-mother's appeal of the trial court's order modifying parenting time in defendant-father's favor and holding plaintiff in criminal contempt; In re Kabanuk; DeGeorge v. Warheit; Vanderpool v. Pineview Estates, LC; People v. Dixon; In re Rapanos; Bates Assoc., LLC v. 132 Assoc., LLC; Brausch v. Brausch; Genna v. Jackson; "Stipulations"; Gates v. Gates; Thomas Canning Co. v. Johnson; Mikonczyk v. Detroit Newspapers

Court: Michigan Court of Appeals (Unpublished)

Case Name: Klass v. Klass

e-Journal Number: 52114

Judge(s): Per Curiam - Fort Hood, Cavanagh, and K.F. Kelly

The court held, inter alia, that the trial court properly modified parenting time in the defendant-father's favor and held the plaintiff-mother in contempt. A divorce judgment was entered on 1/31/08 that divided the parties' marital property and outlined a parenting time schedule for their two minor children. The parties continued to seek rulings from the trial court as to the schools the children would attend, violations of the parenting time provision, and violation of the provision addressing the expenses for their cottage. At a hearing, the trial court advised the parties that they should work together to resolve their issues and if a party acted unreasonably, the party would be subject to costs. Later the trial court held a hearing as to an order to show cause why plaintiff should not be held in contempt about the cottage expenses and parenting time. The trial court ordered her to comply with the judgment terms, a receiver would be appointed to sell the cottage if it was not sold in 60 days, and referred the custody matter to a psychologist (TA) for evaluations. Defendant filed a petition for contempt as to the cottage expenses. The trial court held her in contempt, ordered her to spend 14 days in jail and pay bond in the amount of the cottage expenses. Plaintiff had cash in the amount of $6,500 on her when she was taken into custody, which exceeded the amount she owed on the shared cottage expenses. In 1/10, testimony was taken on the custody issues. TA testified and recommended that the plaintiff's boyfriend and his child move out of the marital home and that plaintiff delay wedding plans. Later, pursuant to the parties' stipulation, the trial court ordered that the boyfriend and son move out, inter alia. He did move out - to a camper on plaintiff's driveway. At a later hearing, after the trial court learned of the camper situation, the camper was moved to nearby area in the subdivision. Later, plaintiff married the boyfriend. When informed by court staff, the trial court held her in criminal contempt, which she appealed. The court rejected her challenge to the sufficiency of the evidence to support the criminal contempt. The court held that her challenge had no support in the lower court record, the trial court did not deprive her of her fundamental right to marry, and the trial court properly modified parenting time (which the court held was a moot issue because the parties had agreed to modify the trial court's ruling in open court). Thus, plaintiff's various claims on appeal had no merit. Affirmed.

Full Text Opinion

Issues: Divorce; Division of marital property; Whether the funds were commingled with the marital estate such that they lost their separate property character; Cunningham v. Cunningham; Pickering v. Pickering; Dart v. Dart; Whether even if the trial court erred in finding the $95,000 to be separate property the trial court ultimately divided the property equitably

Court: Michigan Court of Appeals (Unpublished)

Case Name: Lagalo v. Lagalo

e-Journal Number: 52054

Judge(s): Per Curiam – K.F. Kelly, Sawyer, and Ronayne Krause

Concluding that the funds were commingled with the marital estate such that they lost their separate property character, the court held that the trial court erred in classifying it as separate property and removing it from the marital estate. Thus, the court reversed the trial court's judgment of divorce that awarded to plaintiff-husband $95,000 as separate property from the proceeds of the sale of the marital home, and remanded for the trial court to divide the property between the parties with the $95,000 included as marital property. The case involved the dissolution of a 37-year marriage. During the marriage, plaintiff inherited, from his parents, a total sum of $125,000, which was placed in the parties' joint account. While the money was moved a couple times, the funds ultimately were placed in a joint account belonging to both the parties and $96,000 was used from that amount to pay off the marital home. During the course of the divorce proceedings, defendant requested that the trial court approve the sale of the marital home for $275,000, which was granted, and the funds were placed in escrow. Plaintiff then filed a separate property claim to $95,000 of those funds which he asserted was money from his inheritance and thus, should not be divided between the parties. The court held that defendant correctly relied on Cunningham, arguing that once the funds from plaintiff's inheritance were placed into the joint account and used to pay off the mortgage, it lost its status as separate property. "Plaintiff's attorney responded during argument by incorrectly stating that Cunningham is an unpublished case and has no precedential value. The trial court followed plaintiff's assumption and stated that, as an unpublished case, Cunningham had no value and it would not follow Cunningham. While the trial judge ultimately rendered a decision on this matter at the parties' divorce trial, he found that the $95,000 used to pay off the mortgage was separate property and therefore belonged to plaintiff." The trial court incorrectly characterized the $95,000 as separate property merely because the funds originated from plaintiff's inheritance. The court held that "inheritance could only have retained its character as separate property by being kept and treated as separate property." In Cunningham, the court found that "the defendant's award of workers compensation was originally separate property, but it became marital property when the defendant commingled the property with marital property and jointly used it to purchase the marital home. The action of using it with marital property and buying the marital home caused the character of the property to change." The case at bar was a very similar situation. Even though plaintiff received an inheritance (instead of workers compensation) it was originally separate property. Plaintiff then took that property and commingled it with marital property by placing it in a joint account and using it to pay off the mortgage on the marital home. These actions led to the property being characterized as marital and no longer separate. The trial court erred in holding that, due to the original nature of the property, the property remained separate. The trial court also erred by apportioning the $95,000 to plaintiff prior to an equitable division.

Full Text Opinion

Insurance

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Issues: Whether the trial court properly determined that plaintiff-Debra Langley's deceased husband Eric Langley did not as a matter of law make any misrepresentations on his application for life insurance that would void the policy; Contract interpretation; Henderson v. State Farm Fire & Cas. Co.; Michigan Citizens for Water Conservation v. Nestlé Waters N. Am., Inc.; Fraud in the inducement; John Hancock Mut. Life Ins. Co. v. Dick; Breach of warranty or misrepresentation; National Life & Accident Ins. Co. v. Nagel; Bonewell v. North Am. Accident Ins. Co.; Perry v. John Hancock Mut. Life Ins. Co.; MCL 500.4016; General Am. Life Ins. Co. v. Wojciechowski; "Good faith exception"; Franklin Life Ins. Co. v. William J. Champion & Co. (6th Cir.); Howard v. Golden State Mut. Life Ins. Co.; Mutual Benefit Life Ins. Co. v. Abbott; Prudential Ins. Co. v. Cusick; Whether the trial court's grant of summary disposition in favor of plaintiff was the result of its determination that the questions at issue were ambiguous; Klapp v. United Ins. Group Agency; "Arterial"; The doctrines of ejusdem generis and noscitur a sociis; Neal v. Wilkes; Statutory interest; The Uniform Trade Practices Act (MCL 500.2001 et seq.); Whether the first sentence of MCL 500.2006(1) required defendant-Auto-Owners to timely pay plaintiff's claim or pay 12% interest; Griswold Props. LLC v. Lexington Ins. Co.; MCL 500.2006(3)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Langley v. Auto-Owners Life Ins. Co.

e-Journal Number: 52072

Judge(s): Per Curiam – Markey, Beckering, and M.J. Kelly

The court held, inter alia, that the trial court did not err when it determined that defendant-Auto-Owners had to present evidence that plaintiff's deceased husband Eric Langley knew or should have known that his answers were actually false before it would be entitled to void the policy at issue. The court held that the trial court also did not err when it determined that Auto-Owners failed to establish a question of fact as to whether Eric made a representation that was actually false when he answered "no" to question 3.A on the application. Thus, the trial court properly granted summary disposition as to the claim that answer constituted a misrepresentation. However, the court also held that Auto-Owners established a question of fact as to whether Eric's answer to question 2.A constituted a material misrepresentation. Eric, who had a history of heart issues, filled out a simplified application for $50,000 in life insurance from Auto-Owners. He answered a heart disease question and a diagnostic test question by checking the boxes for "no." By signing the application, he agreed that his "statements and answers" were "true and complete" and he agreed that "they will form a part of any insurance policy issued hereon." Auto-Owners accepted Eric's application and issued him a $50,000 life insurance policy with plaintiff, his wife, as the primary beneficiary. Because Eric died within 2 years of the date that he applied for life insurance, Auto-Owners conducted an investigation before paying under the policy. At the conclusion of its investigation, Auto-Owners rescinded the policy on the ground that Eric had made two material misrepresentations in the application - he denied that he had been diagnosed with heart disease and he denied that he had been advised to take a diagnostic test and had not yet done so. Plaintiff sued Auto-Owners for payment on the policy. Auto-Owners unsuccessfully moved for summary disposition. After additional discovery, plaintiff successfully moved for summary disposition. She argued that Auto-Owners had no evidence that Eric actually believed that he had heart disease when he denied having or having been diagnosed with heart disease. She also argued that there was no evidence that he had been advised to take a diagnostic test, which he had not done by the time he filled out the application. Auto-Owners contended that the undisputed evidence showed that Eric actually had heart disease at the time of his application - as that term is commonly understood - and represented that he did not. Auto-Owners asserted that Eric's subjective understanding about the nature of his heart condition was irrelevant because the cases that address whether an applicant had a subjective good faith belief that his or her answer was true apply only to questions asking for the applicant's opinion and the question at issue did not ask for Eric's opinion. Auto-Owners conceded that Michigan courts have adopted the good faith rule stated in Franklin Life, but argued that the rule should be limited to the type of question at issue in that case - questions asking for an opinion. "But the decisions adopting the good faith rule have applied it to questions involving matters of historic fact." Thus, the court could not agree that application of the good faith rule must be limited to questions that involve the applicant's opinion. Rather, the court held that, "in order to void a policy for a misrepresentation an insurer must prove that the applicant made a representation that was actually false, that the applicant knew or should have known that the representation was false, and that the representation was material to either the risk or hazard assumed." The only question was whether Eric knew or should have known that his answers were false. The court concluded that there was evidence from which a reasonable finder of fact could find that Eric knew or should have known that he had aortic stenosis, or had been diagnosed with aortic stenosis, when he answered "no" to question 2.A, and aortic stenosis plainly constituted heart disease. Affirmed in part, reversed in part, and remanded.

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Municipal

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This summary also appears under Negligence & Intentional Tort

Issues: Governmental immunity; Bennett v. Detroit Police Chief; Whether defendant-Silver was entitled to "absolute immunity" as the chief of police; Petipren v. Jaskowski; Marrocco v. Randlett; Whether defendant-Fick (a police officer) was immune as to the plaintiff's malicious prosecution, false arrest/false imprisonment, abuse of process, and intentional infliction of emotional distress claims; Odom v. Wayne Cnty.; Norris v. Lincoln Park Officers; "Discretionary acts"; Oliver v. Smith; Jurisdiction; Walsh v. Taylor; MCR 7.203(A)(1); "Final order"; MCR 7.202(6)(a)(v); Pierce v. City of Lansing; Bonner v. Chicago Title Ins. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Minor v. City of Sylvan Lake

e-Journal Number: 52080

Judge(s): Per Curiam – Murray, Whitbeck, and Riordan

Holding that the plaintiff's claims against defendant-Silver, the police chief, were barred by absolute governmental immunity pursuant to MCL 691.1407(5), the court reversed the trial court's order denying Silver's summary disposition motion. However, the court concluded that whether defendant-Fick's (a police officer) actions were done in good faith presented an issue in need of further factual development. Thus, the court affirmed the trial court's order denying Fick's summary disposition motion. In 11/07, plaintiff testified for the plaintiff in a sexual harassment suit filed against the defendant-City and Silver. On 3/28/09, he was at his home doing yard work when his neighbor's dog, which he was watching, wandered onto the roadway. He immediately called the dog back, but at the same time Fick exited his police car and informed plaintiff that he was violating the City's leash law. Fick proceeded to arrest him and took him to the county jail. According to plaintiff, once Fick informed him that he was violating the City leash ordinance, Fick grabbed him by the arm and began pulling him toward his patrol car. Fick refused to answer his inquiries about why he was being arrested. Plaintiff tried to video his arrest with his cell phone, but Fick grabbed the phone, handcuffed him, and then placed him in the back of the patrol car "after hitting plaintiff on the side of the head and on the back of his leg. Once other officers arrived at the scene, plaintiff was taken out of the patrol car, shoved onto the vehicle's trunk, patted down, and his handcuffs were tightened before he was placed back into the patrol vehicle and driven to the jail." He remained in jail for two days before his arraignment, where he was charged with resisting an officer and disturbing the peace. He alleged that on the way to his arraignment, Silver looked into the patrol car and smiled at him. Silver also attended plaintiff's preliminary exam. The prosecution later moved to dismiss the criminal charges against plaintiff. The court held that assuming the facts as alleged were true, plaintiff's claims against Silver were barred by governmental immunity because Silver was acting within the scope of his executive authority. Pursuant to the City Code, his duties included investigation, issuance of citations, and appearance in court related to ordinance violations. Plaintiff's first amended complaint failed to allege that Silver intentionally used or misused his governmental authority. It did not allege that he was involved in the decision to arrest plaintiff, to detain him for two days, or to charge him. Rather, the complaint only alleged that Silver had an improper motive when he permitted plaintiff's detainment. However, the "proper inquiry focuses solely on whether the official acts within the scope of his executive authority." As to Fick, it was clear that he acted within the course of his employment and the scope of his authority when he arrested plaintiff. However, under Odom, the inquiry was whether Fick acted in good faith - without malice - when he arrested him. Plaintiff's undisputed allegations were that a leash ordinance violation is only a ticketable offense, that his arrest for the leash violation was unprecedented in the City, and that Fick used excessive force in arresting him. "Such facts call into question whether Fick's arrest of plaintiff was malicious, necessitating the need for additional evidence before a proper ruling can be made."

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Negligence & Intentional Tort

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This summary also appears under Municipal

Court: Michigan Court of Appeals (Unpublished)

Case Name: Minor v. City of Sylvan Lake

e-Journal Number: 52080

Judge(s): Per Curiam – Murray, Whitbeck, and Riordan

Full Text Opinion

Real Property

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Issues: Whether a purchaser at a sheriff's sale has the same rights as the "mortgagee" under MCL 600.3241a; Statutory interpretation; Klooster v. City of Charlevoix; Dimmitt & Owens Fin., Inc. v. Deloitte & Touche (ISC), LLC; Defining terms undefined in the statute; MCL 8.3a; Brackett v. Focus Hope, Inc.; Defining "mortgagee"; Presumption that the Legislature is familiar with the rules of statutory construction; In re Messer Trust

Court: Michigan Court of Appeals (Unpublished)

Case Name: Leggio v. Huffer

e-Journal Number: 52104

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

Rejecting the defendants' argument that the term "mortgagee" as used in MCL 600.3241a should be defined to include third parties who purchase foreclosed properties at sheriff sales, the court held that the trial court properly denied their summary disposition motion, and affirmed the trial court's order granting the plaintiff's cross-motion for summary disposition. The relevant facts were not in dispute. Plaintiff defaulted on a mortgage she had with a non-party mortgage company, which began a foreclosure action that resulted in the property being sold to defendant-Huffer at the sheriff's sale on 4/2/10. The sheriff's deed was recorded and indicated that the property may be redeemed by 10/2/10. Huffer later went to the property and surmised that it appeared abandoned. He then advised his agent, defendant-Roberts, to proceed with the necessary actions required to shorten the redemption period. Roberts went to the property and posted a notice of presumptive abandonment and apparently mailed a copy to plaintiff's last known address, which was the foreclosed property. An affidavit of abandonment was apparently recorded with the register of deeds on 7/23/10, which indicated that the redemption period was shortened to 30 days from the date of the sheriff's sale (which was allegedly 6/3/10) pursuant to MCL 600.3241a. Defendants failed to respond to plaintiff's three requests for payoff information to redeem the property. She then filed this action, alleging in relevant part that the affidavit of abandonment failed to comply with MCL 600.3241a and thus, was null and void because neither defendant was the "mortgagee." She requested declaratory relief in that regard and that defendants be required to provide the precise redemption information. The trial court agreed with plaintiff, holding that MCL 600.3241a plainly states that only the "mortgagee" is permitted to take measures to reduce the redemption period due to abandonment and the statutory language had to be enforced as written. Defendants argued on appeal that the trial court erred in granting plaintiff summary disposition because a purchaser at a sheriff's sale "stands in the shoes of the mortgagee" and thus, has the same rights as the mortgagee under MCL 600.3241a. The court disagreed. "The term 'mortgagee' is not defined in MCL 600.3241a, but there can be no reasonable doubt that the plain and ordinary meaning of the term is that it refers to the holder of a mortgage on the property that was subject to the foreclosure proceeding and not the holder of a sheriff's deed." The court noted that the Legislature is presumed to be familiar with the rules of statutory construction, and the consequences of its use of specific statutory language. The Legislature was clearly aware of the foreclosure proceeding process, including that sheriff sales are a part of that process, yet it choose to use the specific term "mortgagee" as to the rights afforded by MCL 600.3241a. The court declined "defendants' invitation to re-write the plain and unambiguous language so as to grant those same rights to third-party sheriff sale purchasers."

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Termination of Parental Rights

Issues: Termination of parental rights pursuant to §§ 19b(3)(b)(i), (g), and (j); Whether the prosecutor committed a discovery violation and denied the respondent-father the right to a fair trial by failing to provide various materials to respondent and his counsel; In re Rood; People v. Carines; In re Utrera; MCR 3.922; Grubor Enters., Inc. v. Kortidis; Whether the trial court properly assumed jurisdiction; In re SLH; "Hearsay"; MRE 803(3); Whether the prosecutor should have requested a "tender years" hearing; MCR 3.972(C)(2)(a); People v. DeWitt; UAW v. Dorsey (On Remand); Whether the trial court relied on "stale" evidence of the respondent's prior alcohol and marijuana use

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Spitler

e-Journal Number: 52174

Judge(s): Per Curiam - Gleicher, Saad, and Beckering

The court held that the trial court properly terminated the respondent-father's parental rights to the minor child (KS) because the statutory bases for termination were established by clear and convincing evidence. A CPS worker filed a petition seeking trial court jurisdiction of KS and her older half-brother-BS, and an order removing respondent from the home. The petition alleged that KS (five years old) was examined by a hospital nurse after the child asked her grandmother (B) "why her daddy touches her privates." According to the petition, KS repeated the sexual abuse allegations during a forensic interview with a police detective and described that respondent had also sexually abused KH, her younger half-sister. The petition also named as a respondent KS's mother (S). The petition averred that S allowed respondent to remain in the home and to care for her children despite that he used marijuana, "drank to the point of getting 'smashed,' and behaved abusively toward her and BS." At a later preliminary hearing, respondent's counsel conceded that the "allegations and the testimony do meet the standard for 'probable cause.'" Respondent's counsel filed a discovery request pursuant to MCR 5.922. Later, the trial court assumed jurisdiction based on S's admission that she had taken no action after KS acted out sexually, and she also admitted to allowing respondent to remain in her home despite that he was verbally abusive to her in front of her son. The trial court overruled respondent's counsel's objection, finding that S had permitted respondent to "reside on and off with her" and to supervise the children despite KS's statement suggesting sexual abuse. A friend of S testified at the dispositional hearing as to sexual acting out by KS, as did B, who testified that she witnessed respondent playing kickball with the children while smoking marijuana and heard him yelling and swearing in their presence. She also testified that while giving KS a bath, KS volunteered that she asked "my daddy why he rubs my private." Respondent objected to this testimony and the trial court allowed it under MRE 803(3) as a statement of KS's then mental, physical, and emotional condition. After KS's disclosures, B and S took her to a "forensic nurse" at a hospital. The nurse interviewed KS and called the police. A police detective (N) described her forensic interview with KS and said that while respondent had not been criminally charged, a polygraph was pending. The trial court terminated respondent's parental rights finding that there was clear and convincing evidence that there was some sexual and/or physical abuse of KS, ongoing issues of marijuana and alcohol abuse, and a reasonable likelihood that KS would suffer injury or abuse if placed in his home. The court held that the prosecutor should have provided respondent with the information sought in his discovery request, but he had not shown prejudice to his due process rights. The court also concluded that KS's statements made to B should not have been admitted into evidence, and the trial court erred in doing so. However, other legally admissible testimony clearly and convincingly substantiated the trial court's determination that the prosecutor established grounds for termination of respondent's parental rights. Affirmed.

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