• Attorneys (3)
• Bankruptcy (1)
• Criminal Law (7)
• Employment & Labor Law (1)
• Family Law (1)
• Freedom of Information Act (1)
• Malpractice (2)

Attorneys

 

This summary also appears under Freedom of Information Act

 

Issues: Attorney fees, costs, and disbursements pursuant to the FOIA (MCL 15.240(6)); Whether the trial court should have applied the procedures required by Smith v. Khouri for determining a reasonable fee under the FOIA; Allard v. State Farm Ins. Co.; Wood v. DAIIE; Taylor v. Currie; Michigan Tax Mgmt. Servs. Co. v. City of Warren; Booth Newspapers, Inc. v. Kalamazoo Sch. Dist.; Detroit Free Press, Inc. v. City of Southfield; Whether plaintiffs' request for $380 an hour was reasonable under the factors in Wood; Application of a "procedural due process" rationale to reduce plaintiffs' attorney fees; Denial of plaintiffs' request for attorney fees for pre-complaint activities undertaken to discover the existence of documents subject to the FOIA requests; MCL 15.233 and 15.235; Local Area Watch v. City of Grand Rapids; Limitation of plaintiffs' attorney fees for participation in post-judgment hearings and other legal proceedings related to pursuit of their attorney fees; Expert testimony; Woodard v. Custer; MRE 702; Whether the trial court abused its discretion in precluding plaintiffs from placing into evidence the hours defendant's attorneys spent on the case; MRE 401; Allocation of plaintiffs' attorney fees despite the Supreme Court's determination they had prevailed; Whether the trial court assessed an attorney fee rate unsupported by the testimony and required evidence pursuant to Smith

Court: Michigan Supreme Court

Case Name: Coblentz v. City of Novi

e-Journal Number: 44304

Judge(s): Cavanagh, Corrigan, Young, Jr., Markman, and Hathaway; Concurrence - Kelly; Concurring separately - Weaver

 

In an order in lieu of granting leave to appeal, the court reversed in part the Court of Appeals judgment (see e-Journal # 42490 in the 4/24/09 edition). The Court of Appeals erred in affirming the trial court's application of a "due process" analysis in its April 24, 2008 order awarding the plaintiffs' attorney fees, costs, and disbursements pursuant to the FOIA. MCL 15.240(6) provides the courts shall award reasonable attorneys' fees, costs, and disbursements to prevailing FOIA plaintiffs. In determining the reasonable attorney fees due the plaintiffs, the trial court considered whether the city's conduct was "corrupt enough" to justify a sanction amounting "to a severe criminal penalty," and whether the requested attorney fees would bankrupt the city or whether a sanction would "burden . . . the public welfare." Nothing in § 240(6), or decisions of the court, authorizes consideration of such factors in determining a reasonable attorney fee award. For the same reason, the Court of Appeals clearly erred in analyzing whether the documents were substantively useful to the plaintiffs' case. The court remanded the case to the trial court for a redetermination of the plaintiffs' reasonable attorney fees pursuant to the factors in Smith. In all other respects, leave to appeal was denied, because the court was not persuaded the remaining questions presented should be reviewed by the court.

In her concurrence, Justice Kelly agreed with the order remanding to the trial court for a redetermination of reasonable attorney fees pursuant to Smith. As the court's most recent decision on the issue, Smith controlled. However, were it not for Smith, the justice would remand for a redetermination of reasonable attorney fees based on the court's decision in Wood.

Justice Weaver agreed with the result, but wrote separately to say she continues to believe Smith, a 4-to-3 opinion where she signed a well-reasoned dissent, was wrongly reasoned and decided.

 

This summary also appears under Malpractice

 

Issues: Legal malpractice based on defendants-attorneys' alleged failure to secure plaintiff long-term disability benefits through a separation agreement; Spiek v. Department of Transp.; Maiden v. Rozwood; Simko v. Blake; Proximate cause; Manzo v. Petrella; Skinner v. Square D Co.; Pontiac Sch. Dist. v. Miller, Canfield, Paddock & Stone; Charles Reinhart Co. v. Winiemko

Court: Michigan Court of Appeals (Unpublished)

Case Name: Heikkinen v. Gibbons

e-Journal Number: 44279

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

The trial court in this legal malpractice case, properly granted the defendants' motion for summary disposition holding the plaintiff could not show the insurer's (Guardian) decision to stop benefits was caused by the separation agreement. The issue concerned plaintiff's alleged loss of disability benefits. Plaintiff applied for short- and long-term disability benefits, listing Parkinson's disease as the basis for his disability and providing medical documentation to support his claim. Acting on defendants-attorneys' advice, he contacted his neurologist, asking him to indicate on the application plaintiff was disabled as a result of the Parkinson's disease as of March 24, 2003. However, his employer-EPP indicated in the "employer" portion of the long-term benefits application the reason plaintiff left work was his termination, rather than disability. The form was submitted on April 21, 2003. The insurer approved both applications, and plaintiff received short-term benefits for six months and then long-term benefits. In late 2003, Guardian conducted a routine audit of the claim and asked for a copy of his "termination agreement." Plaintiff consulted with defendants, who advised him by letter, dated July 9, 2004, to send Guardian a copy of the severance agreement. Plaintiff sought advice from defendants, but they declined in a letter dated October 11, 2004, citing "present workload rather than the merits of your claim" as the reason. The policy providing disability benefits unambiguously provided coverage ended on the date the employee's active full time service ends for any reason unless the employee's active service ended because he became disabled. The policy also stated: "The employee must . . . become disabled while insured by this plan." Finally, the plan defined "disability" within the first 36 months an employee is sick or injured as meaning - "he or she is completely unable to perform the major duties of his or her regular occupation on a full-time basis; and . . . the employee's current monthly earnings, if any, are less than 80% of his or her indexed prior monthly earnings." There was no dispute plaintiff's employment ended on April 4, 2003. EPP completed the benefit application indicating the date and indicating the reason was "termination." Guardian had the document in May 2003, long before defendants were able to get EPP to agree to a separation agreement. There was no dispute, despite his illness, plaintiff was working full time and at full salary up to the time he was terminated. At that moment, he ceased being entitled to disability benefits. The only way defendants could help him regain those benefits was to get EPP to agree to a separation agreement providing language to the effect it erred in saying he was "terminated" in April 2003 but he left because of disability. However, once plaintiff failed to take disability before EPP terminated him, something about which defendants had warned him, defendants had little bargaining power with EPP in reaching the separation agreement. He failed to prove defendants committed legal malpractice. Affirmed.

 

This summary also appears under Employment & Labor Law

 

Issues: Award of equitable restitution to the plaintiff-ERISA plan against the defendant-attorney; Sereboff v. Mid Atl. Med. Servs.; Williamson v. Aetna Life Ins. Co.; Celotex Corp. v. Catrett; Anderson v. Liberty Lobby, Inc.; Moore v. Philip Morris Cos.; Smith Wholesale Co. v. R.J. Reynolds Tobacco Co.; § 502(a)(3) of ERISA (29 USC § 1132(a)(3)); Mertens v. Hewitt Assocs.; Great-W. Life & Annuity Ins. Co. v. Knudson; Gilchrest v. Unum Life Ins. Co. of Am. (Unpub. 6th Cir.); Whether Sereboff and Gilchrest applied to defendant; Ward v. Wal-Mart Stores Inc. (Unpub. 6th Cir.); "Judicial estoppel" combined with a change in law; Teledyne Indus., Inc. v. NLRB; Browning v. Levy; Jarrard v. CDI Telecomms., Inc. (7th Cir.); Folio v. City of Clarksburg (4th Cir.); United States v. Vastola (3rd Cir.); Whether the "rights of reimbursement and subrogation" provision contained in the plan was self-executing and created an automatic lien on the tort recovery; Health Cost Controls v. Isbell

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Longaberger Co. v. Kolt

e-Journal Number: 44303

Judge(s): Griffin, Batchelder, and Tarnow

 

In an issue of first impression regarding judicial estoppel combined with a change in law, the court held judicial estoppel is inapplicable where a party argued an inconsistent position based on a change in controlling law. The court also held the district court properly denied the defendant-attorney's motion for summary judgment and granted summary judgment for the plaintiff-ERISA plan in this case seeking to enforce the terms of the plan's reimbursement provisions. S was involved in an automobile accident in which he was seriously injured. Plaintiff's self-funded plan covered S (as the dependent child of plaintiff's employee T), paying his medical bills. Defendant, an Ohio attorney, represented S and T in civil tort actions against the negligent drivers involved in the accident. In July 2004, defendant reached settlements with the insurance companies of the negligent drivers, receiving $35,000 from one carrier and $100,000 from the other carrier. Defendant deposited the $135,000 into his IOLTA. He argued on appeal the district court erred in awarding plaintiff equitable restitution against him. He maintained because the majority of the settlement funds in his IOLTA had already been disbursed before plaintiff filed its suit, plaintiff was pursuing a claim for money damages rather than equitable relief against him, and such claims are outside the scope of ERISA's permissible remedies. Defendant argued due to plaintiff's "delay and inaction, there was no longer any specifically identifiable fund" in his possession on which its lien could be imposed. However, "an equitable lien by agreement does not require tracing or maintenance of a fund in order for equity to allow repayment." The Supreme Court held in Sereboff there is no tracing requirement applicable to equitable liens by agreement. Here, the plan contained clear and unambiguous reimbursement provisions, indicating its "rights of reimbursement and subrogation are reserved whether the liability of a third party arises in tort, contract or otherwise. . . . [and] attach to any full or partial judgment, settlement or other recovery." Further, the explicit terms of the plan stated it "shall automatically have a first priority lien upon the proceeds of any recovery by you or your Dependent(s) from such party to the extent of any benefits provided to you or your Dependent(s) by the Plan." Thus, the plan language identified a fund distinct from the beneficiary's general assets - "the proceeds of any recovery by you or your Dependents(s)" from a third party, and identified a particular share of the fund to which the plan was entitled - "the extent of any benefits provided to you or your Dependent(s) by the Plan." Accordingly, plaintiff's equitable lien attached to the settlement fund when it was identified and received in July 2004. While defendant argued Sereboff and Gilchrest did not apply to him because he was not a plan fiduciary or beneficiary, there was no statutory barrier preventing him from being a defendant in a suit filed pursuant to ERISA § 502(a)(3) as long as the relief sought was equitable. Plaintiff asserted an action for equitable in rem relief to recover its assets via use of a constructive trust and reimbursement lien. Under Sereboff, plaintiff was free to follow part of the settlement funds into defendant's hands. Affirmed.

 

Bankruptcy

 

Issues: Motion to dismiss the Chapter 11 bankruptcy case filed on behalf of the debtor by a receiver appointed by a state court; Whether the receiver's authority under the appointing orders included the authority to have filed the voluntary bankruptcy petition in this case

Court: U.S. District Court Eastern District of Michigan

Case Name: In re Miller Park Townhome Condos., LLC

e-Journal Number: 44306

Judge(s): Shapero

 

Since the bankruptcy court's orders dated February 13, 2008 and February 25, 2009 clearly gave the Receiver appointed by a state court the authority to file the Chapter 11 petition and to follow through after the filing to complete the administration of the Chapter 11 case in accordance with the applicable law, the court dismissed the motion to dismiss. The Receiver was appointed in orders emanating from proceedings initiated by the first mortgagee of the debtor's principal asset seeking a judicial foreclosure and appointment of a receiver. The movants (members of the debtor) argued whatever power the Receiver had under the appointing orders, it did not include the authority to file the voluntary bankruptcy petition in this case. The court disagreed and held based on the language of the two orders at issue, particularly the second order, there could be little doubt the Receiver by virtue of the orders had the authority to file the Chapter 11 petition for the debtor entity. The movants contended even if the state court receiver's appointive orders might have allowed the Receiver to sign and file the Chapter 11 petition, authority to do so should be distinguished from supplanting the members of the debtor from acting subsequently. However, the court held such a distinction was incompatible with the language and apparent intent of the orders. The language of the latter order meant more than just filing the actual papers initiating the case, it meant following through after the filing to complete the administration of the case in accordance with applicable law. The Receiver was obligated to act in place of and in stead of the members of the debtor and those responsible for its governance and to perform the duties and responsibilities under the provisions of the Bankruptcy Code and other applicable law. In conducting the debtor's affairs and administering the property of the estate, he must take into account, and act in the best interests of all of the creditors and other interested parties, including the members of the debtor where appropriate, and not just the interests of the mortgagee whose actions caused his appointment in the first place.

 

Criminal Law

 

Issues: Prosecutorial misconduct; People v. Swartz; People v. Wise; People v. Marji; People v. Siler; Plain error review; People v. Carines; People v. Unger; Commentary to the effect the prosecution's evidence was unrebutted; People v. Guenther; Presumption jurors follow their instructions; People v. Graves; Sentencing; Scoring of OV 13 (continuing patterns of criminal behavior); People v. Phillips; People v. Potrafka; MRE 1101(b)(3)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Drew

e-Journal Number: 44263

Judge(s): Per Curiam - Murphy, Meter, and Beckering

 

Concluding the bulk of the prosecutor's arguments were properly tied to the evidence and applicable law, the challenged commentary fairly reflected the prosecution's theory of the case, and had little potential to cause undue sympathy for the victim, the court rejected defendant's unpreserved prosecutorial misconduct claim. Defendant was convicted of assault with intent to commit CSC II against his daughter. He argued on appeal the prosecutor improperly tried to elicit sympathy for the victim in saying during the opening statement, inter alia, the victim was going to tell the jurors "in many respects, she wished those visitation[s] never happened, because the man that she wanted to know, the man that she loved, the man who was her biological father, instead of reconnecting with her, chose to use that time to sexually molest her." Defendant also contended the prosecutor underscored the alleged impropriety in closing argument by saying the "excitement and the joy of being able to connect with her father, was torn apart when the defendant, instead of engaging in behavior that is loving and kind and caring, decided to use a time when they were lying on the couch watching television, to satisfy his own deviant desires." The court noted while a prosecutor cannot urge a jury to convict due to sympathy for the victim, a "prosecutor is free to argue from the evidence, including all reasonable inferences arising from it." Minimal argument tending to arouse sympathy for the victim is not prejudicial where most of the prosecutor's arguments were properly tied to the evidence and applicable law. Further, the trial court instructed the jury not to allow sympathy or prejudice to influence its decision, and it is well established jurors are presumed to follow their instructions. Defendant's conviction and sentence as a second offense habitual offender to three to seven and a half years' imprisonment were affirmed.

 

Issues: Sentencing; Scoring of OV 11; People v. Steele; People v. Endres; The trial court's scoring based on the preponderance of the evidence; People v. Osantowski; People v. Ratkov (After Remand)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Frazier

e-Journal Number: 44266

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

The trial court's decision to score 25 points for OV 11 in sentencing the defendant for his attempted CSC III conviction was affirmed because there was evidence supporting the scoring. Defendant was charged with CSC III, attempted CSC III, and CSC IV. The jury convicted him of attempted CSC III but acquitted him of the other charges. He was sentenced to 23 months to 5 years in prison. On appeal, he challenged the trial court's scoring of OV 11 at 25 points for 1 sexual penetration. He contended the victim's testimony indicated only one penetration, which was the penetration forming the basis of his conviction, and thus OV 11 should have been scored at 0 points. The court concluded the trial court's statements at sentencing indicated it concluded there were two penetrations and one of them, rather than an attempted penetration, formed the basis of defendant's conviction. This conclusion was consistent with the summary of the victim's account in the PSIR, according to which, defendant was also successful in penetrating her vagina after she rolled away from him. The fact defendant was only convicted of attempted CSC III was consistent with a determination by the jury he attempted to penetrate the victim while she was lying on her side. "Whether the attempt was successful is immaterial for the purpose of this issue." The critical point was the initial penetration described by the victim was not "the 1 penetration that forms the basis" of defendant's conviction. Thus, MCL 777.41(2)(c) did not prohibit the trial court from scoring points for this penetration. While the jury's verdict indicated it did not find this penetration was established beyond a reasonable doubt, the trial court's scoring, based on the preponderance of the evidence standard, does not have to be consistent with the verdict. Affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's domestic violence third offense conviction; People v. Herndon; People v. Hardiman; People v. Terry; Circumstantial evidence; People v. Carines; Intent; People v. McRunels; Admission of testimony from defendant's deceased former girlfriend about prior assaults; Right of confrontation; People v. Pipes; People v. Ho; Crawford v. Washington; People v. Yost; Davis v. Washington; Harmless constitutional error; People v. Shepherd; Admissibility of the evidence under MCL 768.27b and c; People v. Pattison; People v. Mills

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Latting

e-Journal Number: 44272

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

The prosecution presented sufficient evidence to support the defendant's domestic violence, third offense conviction where the fact he struck the victim (J) was established by several sources, and testimony from J's sister and the investigating officer, together with evidence of his past similar actions, could cause a reasonable jury to find he intended to strike J. While the victim testified defendant did not intend to harm her, she admitted she had a reason to protect him and she did not welcome the police involvement. In light of the difficulty of proving an actor's state of mind, "minimal circumstantial evidence is sufficient to establish the element of intent." Defendant had a history of deliberately assaulting girlfriends during arguments while intoxicated, and the court held the jury could reasonably find he did so again, despite J's testimony. Defendant also argued the admission of testimony from his deceased former girlfriend (E) about prior assaults violated his right of confrontation. The court agreed E's statements to the police were improperly admitted. While those statements were admissible pursuant to MCL 768.27c, "the admission of hearsay statements under MCL 768.27c must yield to" defendant's right of confrontation. E's statements were testimonial statements because their primary purpose was to tell the officers who had committed the crime against her and what defendant had done, not to enable the police to assist her in an ongoing emergency. The trial court erred in allowing the prosecution to present those statements, at least without a showing defendant had a prior opportunity to cross-examine E. However, this constitutional error was harmless because it was clear beyond a reasonable doubt a jury would have convicted defendant without the erroneously admitted evidence. MCL 768.27b, like MCL 768.27c, allows what previously would have been inadmissible propensity evidence in domestic violence cases, as long as it admissible pursuant to MRE 403. Pursuant to MCL 768.27b, the evidence of defendant's prior domestic violence convictions, his admissions of guilt, and the officers' observations about E's injuries were still properly admissible. This evidence was highly relevant to establish intent, was directly related to the main issue in the case and thus, was not improperly prejudicial. The court held the outcome of the trial would have been the same, even absent the improperly admitted testimony. Affirmed.

 

Issues: Ineffective assistance of counsel for failing to move to suppress the victim's in-court identification; People v. Toma; People v. Flowers; Review limited to errors apparent on the record; People v. Williams; Whether the on-the-scene identification was so impermissibly suggestive it gave rise to a very substantial likelihood of irreparable misidentification; Simmons v. United States; Stovall v. Denno; Case precedent upholding prompt on-the-scene identifications; People v. Johnson; People v. Purofoy; People v. Libbett; Russell v. United States (DC Cir.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Mayze

e-Journal Number: 44275

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

Defense counsel did not perform below an objective standard of reasonableness by not moving to suppress the victim's in-court identification of defendant as tainted by the on-the-scene identification in light of case precedent indicating a motion to suppress would have been futile. Defendant was convicted of first-degree home invasion. He was seen riding a stolen bicycle within minutes after it was taken and was apprehended with the bicycle in his possession. He denied he was the person who entered the victim's home and took the bicycle. The 13-year old victim heard the door to the breezeway of his home open twice and then saw a man riding his bicycle, which was stored in the breezeway. He testified he saw a side view of the man, whom he described by race, with very short black hair, wearing a green varsity jacket and plain black pants. The man had a medium to heavy build. The victim saw him for about 30 seconds from a distance of about 8 to 15 feet. The victim woke his father, who drove through the neighborhood trying to locate the thief. He saw a person riding a bicycle, which appeared to be his son's, and the person was wearing a green jacket with white sleeves resembling a varsity jacket. He called the police and followed the man to a gas station, where the police arrived and questioned him. The father later brought the victim to the gas station, and the victim testified when he arrived, he knew the man who stole his bicycle was in the back seat of the police car because his father told him this. A police officer testified before the victim viewed defendant at the gas station, he said the person who stole his bicycle was large and heavy set, wearing some sort of cloth on his head and a dark green jacket. According to the officer, defendant was wearing a dark green jacket and a black bandana. The victim said after he wrote a statement, an officer escorted him to the police car, and the victim testified he was sure the person in the car was the one he saw taking his bicycle. The court noted it has upheld prompt on-the-scene identifications in several cases. Defense counsel was not ineffective for failing to file a futile motion. Affirmed.

 

Issues: Motion to suppress evidence of a voice recognition lineup; People v. Murphy (On Remand); People v. Williams; People v. Hayes; People v. Hornsby; Whether there was evidence defendant was properly represented by counsel during the voice recognition lineup; Plain error; People v. McRunels; Double jeopardy; People v. Webb; People v. Calloway; Blockburger v. United States; The "Blockburger test"; People v. Nutt; People v. Chambers; Sufficiency of the evidence to support the defendant's armed robbery, felonious assault, and felony-firearm convictions; People v. Lueth; People v. Johnson; People v. Kern; People v. Heikkinen; People v. Hardiman; Whether defendant's 10 to 30-year sentence for armed robbery constituted cruel and unusual punishment; MCL 769.34(10); People v. Powell; People v. Lee; People v. Lemons; Ineffective assistance of counsel; People v. Yost; People v. Rodriguez

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. McDonald

e-Journal Number: 44292

Judge(s): Per Curiam - Hoekstra, Murray, and M.J. Kelly

 

The trial court, inter alia, properly denied the defendant's motion to suppress evidence of a voice recognition lineup where the court could not conclude the physical differences between the lineup participants were so impermissibly suggestive as to lead to a substantial likelihood of misidentification. He contended the voice lineup was unnecessarily suggestive because, compared to the other participants in the lineup and defendant, one participant was noticeably older and another participant was noticeably larger. The witness who participated in the lineup testified he not only eliminated the two outlying participants because of their physical differences, but also eliminated them because their voices were distinct from that of the robber. The witness was positive defendant was one of the masked robbers at the store where he worked as a cashier. The witness stated he first encountered defendant during the robbery and he heard him make several comments, including demands for the money. During this time, the witness noted a raspy or scratchy quality to the robber's voice, which he then recognized in defendant's voice at the lineup. His armed robbery, felonious assault, and felony-firearm convictions were affirmed.

 

Issues: Whether statements by the defendant's son in his murder trial were testimonial and wrongly admitted in defendant's trial on perjury and witness tampering charges; Crawford v. Washington; Sixth Amendment right of confrontation; People v. Beasley; People v. McPherson; People v. Chambers; Limiting jury instruction where evidence is admissible for one purpose but not others; MRE 105; People v. Basinger; Presumption jurors follow their instructions; People v. Graves; People v. Pickens

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. O'Non

e-Journal Number: 44256

Judge(s): Per Curiam - Hoekstra, Bandstra, and Servitto

 

On remand from the Supreme Court for consideration as on leave granted, the court held while the testimony of defendant's son (M) in his murder trial was clearly "testimonial," the statements were not offered for their truth, they were not inadmissible hearsay, and defendant's right of confrontation was not violated. Defendant was convicted by a jury of perjury and witness tampering. In a prior case, M was convicted of first-degree murder for killing two men he owed money due to his involvement in drug trafficking. M testified at his trial the killings were in self-defense because one of the victims allegedly exited the car and shot at him with a pistol. The victims' bodies were found wrapped in tarps and buried on property owned by the defendant. She testified at M's trial she had told him to purchase the tarps to help move woodchips around the property, and she had found a pistol shell casing (which she discarded) near the driveway where the victims' car had been parked. In this case, both defendant and M asserted their Fifth Amendment right against self-incrimination and to remain silent. The transcripts of their testimony from M's murder trial were read into the record. M's testimony was corroborated by and consistent with defendant's testimony she had told him to buy the tarps for yard work. The Supreme Court directed the court on remand to consider whether the transcript of M's prior testimony was "testimonial" under Crawford, and whether any statements in his prior testimony were offered to prove the truth of the matters asserted and thus, barred by Crawford. The court noted it has previously recognized the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted. As in Chambers and McPherson, the prosecution clearly did not offer M's prior testimony about why he bought the tarps to prove his account was true. Rather, it was offered to show how farfetched his account was, and "how defendant's testimony dovetailed precisely with that account." Thus, his testimony "provided a context by which defendant's statements could reasonably be adjudged by the fact-finder to be perjurious." M's "testimony tended to show the falsity of defendant's testimony, not its own truthfulness." Affirmed.

 

Issues: Habeas corpus; The petitioner's challenge to his 2004 convictions for first-degree murder, assault with intent to commit great bodily harm less than murder, and felony-firearm; Prior habeas action challenging the same convictions; Harris v. McQuiggin; Exhaustion of state court remedies; Davis v. United States Parole Comm'n; Flowers v. Trombley (ED MI); Harrington v. Stegall (ED MI)

Court: U.S. District Court Eastern District of Michigan

Case Name: Harris v. Capello

e-Journal Number: 44305

Judge(s): Lawson

 

Since the petitioner has already filed an habeas action challenging the same convictions with the court (currently before another district judge), and the case was stayed and administratively closed so the petitioner could exhaust state court remedies as to several of his habeas claims, the court dismissed this case as duplicative or successive to his stayed petition. Should the petitioner wish to pursue the claims raised in this case, he should file a motion to re-open the habeas petition in his previously-filed case before the other district judge. The petitioner may not challenge the same convictions in two different habeas actions. The court dismissed the petitioner's petition for writ of habeas corpus without prejudice.

 

Employment & Labor Law

 

This summary also appears under Attorneys

 

Issues: Award of equitable restitution to the plaintiff-ERISA plan against the defendant-attorney; Sereboff v. Mid Atl. Med. Servs.; Williamson v. Aetna Life Ins. Co.; Celotex Corp. v. Catrett; Anderson v. Liberty Lobby, Inc.; Moore v. Philip Morris Cos.; Smith Wholesale Co. v. R.J. Reynolds Tobacco Co.; § 502(a)(3) of ERISA (29 USC § 1132(a)(3)); Mertens v. Hewitt Assocs.; Great-W. Life & Annuity Ins. Co. v. Knudson; Gilchrest v. Unum Life Ins. Co. of Am. (Unpub. 6th Cir.); Whether Sereboff and Gilchrest applied to defendant; Ward v. Wal-Mart Stores Inc. (Unpub. 6th Cir.); "Judicial estoppel" combined with a change in law; Teledyne Indus., Inc. v. NLRB; Browning v. Levy; Jarrard v. CDI Telecomms., Inc. (7th Cir.); Folio v. City of Clarksburg (4th Cir.); United States v. Vastola (3rd Cir.); Whether the "rights of reimbursement and subrogation" provision contained in the plan was self-executing and created an automatic lien on the tort recovery; Health Cost Controls v. Isbell

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Longaberger Co. v. Kolt

e-Journal Number: 44303

Judge(s): Griffin, Batchelder, and Tarnow

 

In an issue of first impression regarding judicial estoppel combined with a change in law, the court held judicial estoppel is inapplicable where a party argued an inconsistent position based on a change in controlling law. The court also held the district court properly denied the defendant-attorney's motion for summary judgment and granted summary judgment for the plaintiff-ERISA plan in this case seeking to enforce the terms of the plan's reimbursement provisions. S was involved in an automobile accident in which he was seriously injured. Plaintiff's self-funded plan covered S (as the dependent child of plaintiff's employee T), paying his medical bills. Defendant, an Ohio attorney, represented S and T in civil tort actions against the negligent drivers involved in the accident. In July 2004, defendant reached settlements with the insurance companies of the negligent drivers, receiving $35,000 from one carrier and $100,000 from the other carrier. Defendant deposited the $135,000 into his IOLTA. He argued on appeal the district court erred in awarding plaintiff equitable restitution against him. He maintained because the majority of the settlement funds in his IOLTA had already been disbursed before plaintiff filed its suit, plaintiff was pursuing a claim for money damages rather than equitable relief against him, and such claims are outside the scope of ERISA's permissible remedies. Defendant argued due to plaintiff's "delay and inaction, there was no longer any specifically identifiable fund" in his possession on which its lien could be imposed. However, "an equitable lien by agreement does not require tracing or maintenance of a fund in order for equity to allow repayment." The Supreme Court held in Sereboff there is no tracing requirement applicable to equitable liens by agreement. Here, the plan contained clear and unambiguous reimbursement provisions, indicating its "rights of reimbursement and subrogation are reserved whether the liability of a third party arises in tort, contract or otherwise. . . . [and] attach to any full or partial judgment, settlement or other recovery." Further, the explicit terms of the plan stated it "shall automatically have a first priority lien upon the proceeds of any recovery by you or your Dependent(s) from such party to the extent of any benefits provided to you or your Dependent(s) by the Plan." Thus, the plan language identified a fund distinct from the beneficiary's general assets - "the proceeds of any recovery by you or your Dependents(s)" from a third party, and identified a particular share of the fund to which the plan was entitled - "the extent of any benefits provided to you or your Dependent(s) by the Plan." Accordingly, plaintiff's equitable lien attached to the settlement fund when it was identified and received in July 2004. While defendant argued Sereboff and Gilchrest did not apply to him because he was not a plan fiduciary or beneficiary, there was no statutory barrier preventing him from being a defendant in a suit filed pursuant to ERISA § 502(a)(3) as long as the relief sought was equitable. Plaintiff asserted an action for equitable in rem relief to recover its assets via use of a constructive trust and reimbursement lien. Under Sereboff, plaintiff was free to follow part of the settlement funds into defendant's hands. Affirmed.

 

Family Law

 

Issues: Divorce; Physical custody; Fletcher v. Fletcher; Berger v. Berger; The Child Custody Act (MCL 722.21 et seq.); Harvey v. Harvey; Grew v. Knox; The statutory best interest factors (MCL 722.23); Helms v. Helms; Factors (a)-(f); Ireland v. Smith; Spousal support; Moore v. Moore; Olson v. Olson; MCL 552.23; Korth v. Korth; Lee v. Lee; Attorney fees; Reed v. Reed; Stallworth v. Stallworth; MCR 3.206(C)(2)(a); Property valuation; Jansen v. Jansen; Pelton v. Pelton

Court: Michigan Court of Appeals (Unpublished)

Case Name: Williams v. Williams

e-Journal Number: 44282

Judge(s): Per Curiam - Servitto, Bandstra, and Markey

 

Concluding the trial court's findings on the challenged statutory best interest factors were not against the great weight of the evidence, the court held it did not abuse its discretion in awarding the plaintiff-father physical custody of the parties' two minor children. The defendant-mother challenged the trial court's findings as to factors (a)-(f). The trial court weighed factor (a) equally, weighed factors (b)-(e) in plaintiff's favor, and did not place any weight on factor (f). As to factor (a), the court noted plaintiff was involved with the children from the time they were born, and witnesses who observed his interaction with them testified he was a good parent. The trial court met with the children in chambers, and stated they loved and were affectionate with both parents. While defendant was the children's primary caregiver for most of their lives, beginning in 2007 she left the marital home and children on several occasions. The court concluded the record did not show her affection, emotional ties, and love were greater than plaintiff's, and did not "clearly preponderate in the opposite direction" of weighing this factor equally. The court also held the trial court's findings in plaintiff's favor as to factors (b)-(e) were not against the great weight of the evidence. The evidence showed defendant's commitment to the children and the family unit conflicted with her relationship with another man (S) beginning in late 2007, she "brought stress and tension into the family unit by engaging in relationships with other men, and she was dishonest regarding her whereabouts and contacted friends to help her conceal her behavior." Defendant also "engaged in acrimonious behavior directed at plaintiff," she failed to attend scheduled counseling sessions or obtain other counseling, and she violated a court order by permitting S to have contact with the children during her parenting time visits. She did not offer any evidence showing her efforts to obtain employment, she quit a job after making two child support payments, and the court concluded her "unpredictable behavior during the time period leading to the divorce evidenced instability" in contrast to "plaintiff's consistent lifestyle where he has worked and provided for his family while remaining involved in the children's lives." The court also rejected defendant's claims the trial court erred in denying her requests for spousal support and attorney fees. Affirmed.

 

Freedom of Information Act

 

This summary also appears under Attorneys

 

Issues: Attorney fees, costs, and disbursements pursuant to the FOIA (MCL 15.240(6)); Whether the trial court should have applied the procedures required by Smith v. Khouri for determining a reasonable fee under the FOIA; Allard v. State Farm Ins. Co.; Wood v. DAIIE; Taylor v. Currie; Michigan Tax Mgmt. Servs. Co. v. City of Warren; Booth Newspapers, Inc. v. Kalamazoo Sch. Dist.; Detroit Free Press, Inc. v. City of Southfield; Whether plaintiffs' request for $380 an hour was reasonable under the factors in Wood; Application of a "procedural due process" rationale to reduce plaintiffs' attorney fees; Denial of plaintiffs' request for attorney fees for pre-complaint activities undertaken to discover the existence of documents subject to the FOIA requests; MCL 15.233 and 15.235; Local Area Watch v. City of Grand Rapids; Limitation of plaintiffs' attorney fees for participation in post-judgment hearings and other legal proceedings related to pursuit of their attorney fees; Expert testimony; Woodard v. Custer; MRE 702; Whether the trial court abused its discretion in precluding plaintiffs from placing into evidence the hours defendant's attorneys spent on the case; MRE 401; Allocation of plaintiffs' attorney fees despite the Supreme Court's determination they had prevailed; Whether the trial court assessed an attorney fee rate unsupported by the testimony and required evidence pursuant to Smith

Court: Michigan Supreme Court

Case Name: Coblentz v. City of Novi

e-Journal Number: 44304

Judge(s): Cavanagh, Corrigan, Young, Jr., Markman, and Hathaway; Concurrence - Kelly; Concurring separately - Weaver

 

In an order in lieu of granting leave to appeal, the court reversed in part the Court of Appeals judgment (see e-Journal # 42490 in the 4/24/09 edition). The Court of Appeals erred in affirming the trial court's application of a "due process" analysis in its April 24, 2008 order awarding the plaintiffs' attorney fees, costs, and disbursements pursuant to the FOIA. MCL 15.240(6) provides the courts shall award reasonable attorneys' fees, costs, and disbursements to prevailing FOIA plaintiffs. In determining the reasonable attorney fees due the plaintiffs, the trial court considered whether the city's conduct was "corrupt enough" to justify a sanction amounting "to a severe criminal penalty," and whether the requested attorney fees would bankrupt the city or whether a sanction would "burden . . . the public welfare." Nothing in § 240(6), or decisions of the court, authorizes consideration of such factors in determining a reasonable attorney fee award. For the same reason, the Court of Appeals clearly erred in analyzing whether the documents were substantively useful to the plaintiffs' case. The court remanded the case to the trial court for a redetermination of the plaintiffs' reasonable attorney fees pursuant to the factors in Smith. In all other respects, leave to appeal was denied, because the court was not persuaded the remaining questions presented should be reviewed by the court.

In her concurrence, Justice Kelly agreed with the order remanding to the trial court for a redetermination of reasonable attorney fees pursuant to Smith. As the court's most recent decision on the issue, Smith controlled. However, were it not for Smith, the justice would remand for a redetermination of reasonable attorney fees based on the court's decision in Wood.

Justice Weaver agreed with the result, but wrote separately to say she continues to believe Smith, a 4-to-3 opinion where she signed a well-reasoned dissent, was wrongly reasoned and decided.

 

Malpractice

This summary also appears under Attorneys

 

Issues: Legal malpractice based on defendants-attorneys' alleged failure to secure plaintiff long-term disability benefits through a separation agreement; Spiek v. Department of Transp.; Maiden v. Rozwood; Simko v. Blake; Proximate cause; Manzo v. Petrella; Skinner v. Square D Co.; Pontiac Sch. Dist. v. Miller, Canfield, Paddock & Stone; Charles Reinhart Co. v. Winiemko

Court: Michigan Court of Appeals (Unpublished)

Case Name: Heikkinen v. Gibbons

e-Journal Number: 44279

Judge(s): Per Curiam - Stephens, Cavanagh, and Owens

 

The trial court in this legal malpractice case, properly granted the defendants' motion for summary disposition holding the plaintiff could not show the insurer's (Guardian) decision to stop benefits was caused by the separation agreement. The issue concerned plaintiff's alleged loss of disability benefits. Plaintiff applied for short- and long-term disability benefits, listing Parkinson's disease as the basis for his disability and providing medical documentation to support his claim. Acting on defendants-attorneys' advice, he contacted his neurologist, asking him to indicate on the application plaintiff was disabled as a result of the Parkinson's disease as of March 24, 2003. However, his employer-EPP indicated in the "employer" portion of the long-term benefits application the reason plaintiff left work was his termination, rather than disability. The form was submitted on April 21, 2003. The insurer approved both applications, and plaintiff received short-term benefits for six months and then long-term benefits. In late 2003, Guardian conducted a routine audit of the claim and asked for a copy of his "termination agreement." Plaintiff consulted with defendants, who advised him by letter, dated July 9, 2004, to send Guardian a copy of the severance agreement. Plaintiff sought advice from defendants, but they declined in a letter dated October 11, 2004, citing "present workload rather than the merits of your claim" as the reason. The policy providing disability benefits unambiguously provided coverage ended on the date the employee's active full time service ends for any reason unless the employee's active service ended because he became disabled. The policy also stated: "The employee must . . . become disabled while insured by this plan." Finally, the plan defined "disability" within the first 36 months an employee is sick or injured as meaning - "he or she is completely unable to perform the major duties of his or her regular occupation on a full-time basis; and . . . the employee's current monthly earnings, if any, are less than 80% of his or her indexed prior monthly earnings." There was no dispute plaintiff's employment ended on April 4, 2003. EPP completed the benefit application indicating the date and indicating the reason was "termination." Guardian had the document in May 2003, long before defendants were able to get EPP to agree to a separation agreement. There was no dispute, despite his illness, plaintiff was working full time and at full salary up to the time he was terminated. At that moment, he ceased being entitled to disability benefits. The only way defendants could help him regain those benefits was to get EPP to agree to a separation agreement providing language to the effect it erred in saying he was "terminated" in April 2003 but he left because of disability. However, once plaintiff failed to take disability before EPP terminated him, something about which defendants had warned him, defendants had little bargaining power with EPP in reaching the separation agreement. He failed to prove defendants committed legal malpractice. Affirmed.

 

Issues: Medical malpractice; Whether the trial court properly granted the defendants a directed verdict based on plaintiff's alleged failure to articulate a percentage of "loss of opportunity"; Stone v. Williamson; MCL 600.2912a(2); Weymers v. Khera; Falcon v. Memorial Hosp.; Lanigan v. Huron Valley Hosp.; Klein v. Kik; Compton  v. Pass; Velez v. Tuma; Measuring the minor plaintiff's damages; Bonelli v. Volkswagen of Am., Inc.; Berrios v. Miles, Inc.; Gilbert v. DaimlerChrysler, Inc.; Agency; Whether the trial court properly granted a directed verdict to defendant-McPherson Hospital on the basis plaintiff failed to show defendant-Wu was its ostensible agent; Grewe v. Mt. Clemens Gen'l Hosp.; Zdrojewski v. Murphy; Chapa v. St. Mary's Hosp. of Saginaw; Vanstelle v. Macaskill; Whether the trial court properly refused to admit expert testimony as to the reasonableness of plaintiff's belief Wu was an agent of McPherson Hospital; People v. Dobek; Respiratory distress syndrome (RDS)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Soufane v. Wu

e-Journal Number: 44288

Judge(s): Per Curiam - Hoekstra, Fitzgerald, and Zahra

 

In this medical malpractice case, the court affirmed the trial court's decision granting defendant-McPherson Hospital's motion for directed verdict on the agency issue, but reversed the trial court's decision granting defendants' motion for directed verdict on the theory plaintiff failed to present sufficient evidence of proximate cause. Plaintiff suspected she was pregnant, which was confirmed by urine tests done at the hospital. She was given defendant-Wu's phone number and address by a McPherson employee who told her Wu was an obstetrician and was "their doctor." On October 6, 1990, she saw Wu for a regular visit. He diagnosed her with a urinary tract infection and prescribed a drug. Late on October 9th, plaintiff felt a "spurt of fluid," but went to bed, and to work the next day. She called Wu and told him of the "spurt." He disputed this, and said she called to tell him the drug was not working and she was having frequent urination. Wu told her to go to McPherson for a urinalysis, which she did and then returned to work. She continued to have random discharge the next day and called Wu, but the test results were not ready. She went to work. Later in the day, she began to have pain near her kidneys. She called Wu, he told her to go to the ER in Lansing, which was closer to her work, or McPherson. A friend drove her to McPherson. Wu ordered an IV drip and performed a vaginal exam. He diagnosed her with "prematurity and a premature ruptured membrane." She was transferred to U of M Hospital, where McPherson sent its high-risk pregnancy cases. She arrived at U of M around 8 PM, and the child, Bryan, was born prematurely the next day at around 29 weeks gestation. He suffered from RDS, cerebral palsy, and various neurological disabilities. On March 12, 2004, as Bryan's next friend, she filed a medical malpractice case alleging, inter alia, Wu was negligent in "[f]ailing to hospitalize the patient at the first sign of premature rupture of membranes." She contended the U of M hospital would have given her steroids had she arrived earlier. The trial court entered a judgment for defendants because plaintiff failed to quantify the percentage of lost opportunity caused by the malpractice and dismissed the case. The court held the trial court erred in granting defendants' motion for directed verdict based on plaintiff's failure to articulate a percentage of "loss of opportunity" where under Stone, this was not a "loss of opportunity" case. Rather, plaintiff alleged a direct harm resulting from the failure to diagnose her ruptured membranes, which if timely diagnosed earlier would have required her to be hospitalized at U of M, whose steroid treatment would have increased the likelihood of a better medical outcome. Plaintiff presented evidence to establish a defendant's acts or omissions more than likely caused Bryan's injuries. Reversed and remanded as to this issue.

 

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