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of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published).

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Cases appear under the following practice areas:

Banking (1)
Criminal Law (4)
Insurance (1)
Litigation (1)
Real Property (1)
Termination of Parental Rights (2)
Wills & Trusts (1)

Banking

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This summary also appears under Real Property

Issues: Quiet title action related to a foreclosure by advertisement; MCL 600.3204(1)(d); Residential Funding Co., LLC v. Saurman; The "law of the case" doctrine; Ashker v. Ford Motor Co.; Whether the trial court complied with MCL 600.2932(1) & (3); Whether summary disposition was premature; Peterson Novelties, Inc. v. Berkley; Whether the trial court properly denied the plaintiff the opportunity to amend his first amended complaint under MCR 2.116(I)(5); Validity of defendant-MERS's assignment of the mortgage to defendant-Bank of New York Mellon (BNYM)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bakri v. Mortgage Elec. Registration Sys.

e-Journal Number: 53125

Judge(s): Per Curiam – Borrello, Meter, and Shapiro

After a prior remand to the trial court, the court concluded that in light of the Michigan Supreme Court's decision in Saurman, the trial court properly granted the defendants summary disposition in this quiet title case arising from a foreclosure by advertisement. In the court's prior opinion, it held that "in order for an entity to foreclose on a mortgagor by advertisement, the mortgagee must also have an interest in the note itself, pursuant to MCL 600.3204(1)(d)." Thus, the court had remanded to the trial court to determine whether defendant-BNYM owned the note at the time that the plaintiff was served written notice pursuant to MCR 600.3205a. The court rejected plaintiff's claim that the trial court erred in denying him the opportunity to amend his first amended complaint. The court also found no merit in his argument that summary disposition was improper because defendant-MERS's assignment of the mortgage to BNYM was null and void where MERS was not the lender and thus, assigned the mortgage to the BNYM without the promissory note - the underlying debt. Because plaintiff granted MERS the power to assign the mortgage, the assignment of the mortgage to BNYM was valid. Further, because the mortgage specifically granted MERS the power to foreclose on and sell the property as nominee for the lender, BNYM, also had that power. While those findings supported the trial court's decision, the court previously ruled that the case was governed by its decision in Saurman. However, the Supreme Court later reversed the court's holding in Saurman. Given that reversal, the court now held that regardless of whether BNYM possessed an interest in the note, or the note itself, foreclosure by advertisement was available here. The court noted that the law of the case doctrine does not preclude reconsideration in light of a subsequent change in the law. Thus, it was not precluded from reversing its prior reliance on the holding in Saurman and upholding the trial court's grant of summary disposition. Further, the court noted that on remand the trial court found that BNYM had possession of the note at the time plaintiff was served with written notice, a finding he did not contest after the case returned to the court. The court also held that there was no violation of MCL 600.2932(1) or (3), and that summary disposition was not premature. Affirmed.

Full Text Opinion

Criminal Law

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Issues: Whether the trial court properly admitted part of a statement the defendant made to a police detective at the end of a police interview; People v. Gursky; People v. Sabin (After Remand); People v. Cornell; "Relevance"; MRE 401; People v. McGhee; MRE 402; Whether admission of the evidence undermined the reliability of the verdict; People v. Armstrong; People v. Abraham; MRE 403

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Elmore

e-Journal Number: 53161

Judge(s): Per Curiam - Shapiro, Gleicher, and Ronayne Krause

Considering that the overwhelming evidence admitted in the case, including the defendant being caught by the victims while breaking into their home, the admission of his statement that "they'll send me back to prison" did not undermine the reliability of the verdict. Thus, he was not entitled to a reversal or a new trial on that basis. Defendant told the police detective, after having given a statement ostensibly providing an innocent explanation that he was in the wrong place at the wrong time, that "I'd like to tell you the truth, but I can't because they'll send me back to prison." Defendant did not seriously challenge the fact that his statement was relevant. He was accused of armed robbery and first-degree home invasion based on the victims' allegations that he had broken into their home and threatened them. After his arrest, defendant gave an exculpatory statement to the police, claiming that he did not break into the victims' house or threaten anyone. His statement to the police formed his theory of defense at trial. This theory was advanced by defense counsel's arguments and questioning of witnesses at trial. Thus, while defendant did not testify at trial, his credibility, as it related to his theory of defense and his statement to police was at issue. Defendant contended on appeal that the trial court should have excised his proffered reason for why he would like to be honest, but could not be. The phrase "I'd like to tell you the truth but I can't," was relevant, even without the rest of his statement, because it supported that his exculpatory statement to police was not truthful. However, the phrase "because they'll send me back to prison" was also relevant where it provided a powerful explanation of why he did not tell the police the truth. Thus, the phrase, "because they'll send me back to prison" was relevant under MRE 401, and thus admissible under MRE 402 because it made the fact that he lied to the police more probable. The court did not believe the single reference to going back to prison would be so inflammatory that it raised the specter of the jury disregarding its instructions and the court did not perceive any indication in the record that the jury disregarded its instructions. However, the statement was not substantively much more prejudicial under MRE 403 when considered in context. Affirmed.

Full Text Opinion

Issues: Ineffective assistance of counsel; People v. Rodriguez; People v. Frazier; People v. Rockey; Trial strategy; People v. Unger; Failure to try to use past convictions to impeach a prosecution witness; MRE 609; People v. Redmon; Evidence that the defendant was previously convicted of fleeing and eluding where he was charged with second-degree fleeing and eluding in this case; MCL 257.602a(4); Meritless arguments; People v. Snider; Prosecutorial misconduct; People v. Watson; People v. Bahoda; "Plain error" review; People v. Callon; "Vouching"; People v. Knapp; Sentencing; Blakely v. Washington; People v. McCuller

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hall

e-Journal Number: 53131

Judge(s): Per Curiam – Jansen, Fort Hood, and Shapiro

Holding, inter alia, that the defendant failed to meet his burden to show that defense counsel's decision as to a prosecution witness's (B) prior convictions did not constitute reasonable trial strategy, the court rejected his ineffective assistance of counsel claims. The court also held that the prosecutor did not vouch for the credibility of the police witnesses. Defendant was convicted of breaking and entering, second-degree fleeing in a vehicle, UDAA, and driving without a license, second or subsequent offense. He argued, inter alia, that defense counsel provided ineffective assistance by not attempting to use B's past convictions to impeach him, citing Redmon in support of his claim. The court noted that it could not determine with certainty whether Redmon applied. Defendant claimed that a period of more than 10 years had elapsed since the date of B's "conviction[s] or of the release of the witness from the confinement imposed for [those] conviction[s]," but provided no evidence to support that claim. Even if Redmon did apply, the court was not persuaded that defense counsel's failure to impeach B with his prior convictions constituted ineffective assistance of counsel. B's prior convictions were theft offenses. Thus, they would only have been admissible if the trial court determined that they were of "significant probative value on the issue of credibility," by "consider[ing] only the age of the conviction and the degree to which a conviction of the crime is indicative of veracity." Since both of these factors weighed against admissibility in this case, it was not clear that the trial court would have admitted B's prior convictions even if defense counsel had sought their admission. Further, assuming that the trial court would have admitted the evidence, the court concluded that defense counsel was effective. The evidence of B's prior convictions was not the only evidence bearing on his credibility, and defense counsel impeached B's credibility in a variety of other ways. Defense counsel impeached B's credibility by pointing out that B received a plea agreement and a reduction in his sentence in exchange for his testimony, and B admitted that he was guilty of a felony. Defense counsel impeached B as to his assertion that he did not resist arrest despite police testimony to the contrary. Also, B admitted to being a willing participant in crimes in this case. The court affirmed defendant's convictions and sentences.

Full Text Opinion

Issues: Whether the trial court violated defendant's right to confront the witnesses against him by admitting a recording of the 911 call into evidence despite the fact that the callers were not presented as witnesses at trial; People v. Aldrich; People v. McDaniel; People v. Fackelman; U.S. Const, Am VI; Const 1963, art 1, § 20; Crawford v. Washington; Davis v. Washington; Claim that defendant was denied the right to a fair trial because the trial court allowed a police officer to testify as to his opinion of defendant's guilt; People v. Parks; People v. Bragdon; People v. Hubbard; Prosecutorial misconduct; People v. Watson; People v. Unger; People v. Callon; People v. Fyda; People v. Fields; Whether the trial court properly denied defendant's motion for bond pending appeal; People v. Tate; MCR 7.209(B)(2); MCL 770.9; People v. Stafford

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Parker

e-Journal Number: 53164

Judge(s): Per Curiam – Shapiro, Gleicher, and Ronayne Krause

The court held, inter alia, that because the primary purpose of the 911 operator's questions was to enable the police to effectively respond to an emergency, it discerned no Crawford violation. An unidentified woman called 911 and reported that "a guy is threatening peoples in the neighborhood" and "he says he got a gun." The woman identified the "guy" as LP and indicated that he was "grabbing his pocket and say he had a gun, say he gonna kill 'em." In the background, the voice of S was audible. She identified the suspect as LP and stated that he had "been in prison 30 years." S also indicated that her son, C, had "checked [defendant] out." S then took the phone and told the 911 operator that defendant "just got out of prison" and was acting "like he got a gun." S claimed that defendant lived with his mother and had accused S her son of breaking into his mother's house. S asserted that defendant threatened to hit her. Two police officers responded to the call. They approached defendant as he dried his freshly washed truck in his mother's driveway. When the officers walked toward defendant, he darted to the front of the truck, crouched down by the front driver's side tire, stood back up, and only then spoke to the officers. An officer inspected the area and found a handgun underneath the truck near the front driver's side tire. Suspiciously, the ground was wet, but the gun was dry. Since defendant was a convicted felon who had not had his right to possess a firearm restored, the officers placed him under arrest. Defendant asserted at trial that he was framed by S and C. Defendant contended that the trial court violated his right to confront the witnesses against him by admitting a recording of the 911 call into evidence despite that the callers were not presented as witnesses at trial. As in Davis, the unidentified caller's statements to the 911 operator primarily described actual events as they were unfolding, which the callers justifiably perceived as an on-going emergency. When S took the phone, she volunteered background information concerning defendant that was not responsive to any question posed by the operator. Nevertheless, the primary purpose of the call was to report defendant's aggressive behavior and that he appeared to be armed with a weapon. Affirmed.

Full Text Opinion

Issues: Whether the defendant's right to a public trial was violated when the trial court closed the courtroom during jury selection; People v. Vaughn; People v. Carines; MCR 6.431(B); People v. Miller; People v. Rao; Whether the trial court deprived defendant of a defense by barring the playing of a video recording of a six hour police interview; People v. Martin; People v. Hackett; MRE 611(a); People v. Unger; People v. Adamski; People v. Hayes; People v. Kowalski; Prosecutorial misconduct; People v. Fyda; People v. Blackmon; People v. Erb; People v. Fields; People v. Launsburry; People v. Ullah; People v. Bahoda; People v. Brown; Alleged Brady violation; People v.Williams; People v. Lester; "Newly discovered" evidence; People v. Cress; People v. Grissom; People v. Smallwood; Ineffective assistance of counsel; People v. LeBlanc; People v. Carbin; People v. Rockey; Trial strategy; People v. Horn; Sentencing; Scoring of OVs 1, 2, 3, and 9; Departure from the guidelines; People v. Smith; People v. Petri; People v. Underwood; Request for resentencing before a different trial court; People v. Hill

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Willis

e-Journal Number: 53139

Judge(s): Per Curiam - K.F. Kelly, Markey, and Servitto

In this case where a jury convicted the defendant of second-degree murder and arson of a dwelling house, in which a firefighter (H) died as a result of the burning roof collapsing on him, the court held that defendant was properly convicted and affirmed his convictions. However, the court remanded for resentencing. Defendant's convictions arose from his participation in an arson fire in 2008, which caused the H's death. The prosecution's theory of the case was that defendant paid an employee (D) to set fire to a house owned by defendant's then-girlfriend (M). D pleaded guilty to second-degree murder for his role in the offense and testified against defendant. Defendant denied any involvement in the offense and presented an alibi defense. The evidence showed that M bought the house from defendant in 2006, and obtained a mortgage loan to finance the purchase. A prior fire damaged the house in 2007, and M received insurance proceeds to make repairs. D testified that he intentionally set both fires at defendant's request. D said defendant drove him to a gas station to purchase gas for the second fire, dropped him off near the house, and gave him $20 after he set the fire. He said that he expected to receive additional compensation, but he never received it. When the firefighters arrived at the house shortly after 5:00 AM, fire was emanating from the top part of the two-story house. The roof collapsed while firefighters were inside the house. H was buried by debris. D pleaded guilty to second-degree murder pursuant to a plea agreement that entitled him to a minimum sentence of 17 years in exchange for his cooperation in testifying truthfully against defendant. Defendant filed a notice of alibi in which he named M as an alibi witness to testify that defendant was with her at the time of the fire. After he was sentenced he filed a motion for a new trial or resentencing, raising many of the claims he raised on appeal. He requested a Ginther hearing as to his claim of ineffective assistance of counsel, but the trial court determined that an evidentiary hearing was not necessary. Defendant contended on appeal that his right to a public trial was violated because the trial court closed the courtroom during jury selection. The record indicated that the trial court only ordered persons who would be testifying at trial to leave the courtroom before jury selection. When denying defendant's motion for a new trial, the trial court expressly found that it did not close the courtroom. Affidavits from defendant's relatives indicated that the deputies asked nonwitnesses to leave the courtroom because there was not enough room for potential jurors. Given the trial court's express finding that it did not close the courtroom and the absence of any indication in the record that the courtroom was closed, the court could not conclude that the deputies' alleged conduct asking nonwitnesses to leave could be attributed to the trial court.

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Insurance

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Issues: Payment for chiropractic services provided to defendant's insured under the No-Fault Insurance Act (the Act) (MCL 500.3101 et seq.); Whether the trial court properly retroactively applied MCL 500.3107b(b) (as amended on 1/5/10) to prohibit reimbursement for chiropractic services provided before 1/5/10; Unpreserved issues; Polkton Twp. v. Pellegrom; Heydon v. MediaOne of Se. MI, Inc.; Pre-amendment case law; Hofmann v. Auto Club Ins. Ass'n; MCL 333.16401; MCL 500.3107b(b); Application of a statutory amendment; Brewer v. A D Transp. Express, Inc.; Whether the amended version of MCL 500.3107b(b) must be read to incorporate the amended version of MCL 333.16401; Statutory interpretation; Alvan Motor Freight, Inc. v. Department of Treasury; MCL 333.16401(1) & (2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Warren Chiropractic & Rehab. Clinic, PC v. Home-Owners Ins. Co.

e-Journal Number: 53163

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

The court held, inter alia, that the trial court erred when it dismissed plaintiff's complaint in its entirety on the basis that MCL 500.3107b(b), as amended, applied. Defendant argued on appeal, however, that the trial court reached the right result because the treatments provided by plaintiff were not reimbursable under Hofmann. Defendant acknowledged that the trial court did not reach this question. This question involved evidentiary analyses, and the trial court must resolve it on remand. On appeal, plaintiff argued that it was entitled to no-fault benefits for chiropractic services despite amendments made to the Act effective 1/5/10. Plaintiff argued that the trial court improperly retroactively applied MCL 500.3107b(b), as amended on 1/5/10, to prohibit reimbursement for chiropractic services provided before 1/5/ 10. The parties and the trial court agreed that before the amendment of MCL 500.3107b, plaintiff's charges would have been governed by Hofmann. "A statutory amendment ordinarily has prospective application absent a clear contrary intention by the Legislature." Defendant argued that there is an exception when the amendment is clarifying an "uncertainty" and resolves a controversy surrounding its meaning. Defendant contended that there was a longstanding controversy surrounding the question of which chiropractic services should be covered by the Act. However, the court noted that the exception contemplates remedial statutory amendments that "neither create new rights nor destroy, enlarge, or diminish existing rights . . . ." In this case, the amendment changed the definition of which chiropractic services may be covered by the Act. This was "not a mere remedy of the statutory language, but a substantive change of law." Also, defendant's contention of a controversy described disagreements as to the policy of chiropractic coverage under the Act. Defendant noted that a remedial statute, for purposes of retroactivity, seeks to resolve a controversy "regarding [the] meaning" of the statute, not regarding the policy conclusions underlying the statute. The court held that there was no basis for concluding that the statute should apply retroactively, finding that defendant misapprehended the "remedial or procedural" exception to the general rule against retroactivity of statutory amendments. Affirmed in part, reversed in part, and remanded.

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Litigation

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This summary also appears under Termination of Parental Rights

Issues: Termination under § 19b(3)(a)(i); Whether the respondent-mother was properly served with a summons and notice of the proceedings; In re Rood; In re SZ; In re Brown; MCL 712A.13; MCR 3.920(B)(2)(b); MCR 3.920(B)(4)(a)-(b); MCL 712A.12; In re Adair; In re Atkins; Whether the trial court failed to advise respondent at her first court appearance that she had the right to an attorney and that an attorney could be appointed for her if she could not afford one; In re Powers; In re Trowbridge; MCL 712A.17c(4) & (5); MCR 3.915(B)(1); MCL 712A.17c(6); MCR 3.915(B)(1)(c); In re Williams

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Paige

e-Journal Number: 53144

Judge(s): Per Curiam - O’Connell, Donofrio, and Beckering

The court held that two errors in this case warranted reversal. First, the respondent-mother was not properly served with a summons and notice of the proceedings as required by Michigan law, rendering the proceedings void as to her rights. Second, the trial court failed to advise respondent at her first court appearance that she had the right to an attorney and that an attorney could be appointed for her if she could not afford one. Thus, the court reversed the trial court's order terminating her parental rights to the minor child under § 19b(3)(a)(i) and remanded. As to the first error, the court held that the statute and court rules regarding service were completely disregarded. "Service was attempted by mail and publication without any prior determination by the trial court that personal service was impracticable or could not be achieved." Personal service was only achieved after the adjudicative trial and before the termination petition was filed, so service of process was not in compliance with the requirements of the court rules or statute. "When respondent was personally served, she was not served timely with the relevant and necessary information to inform her of the nature of the proceedings." Michigan law required that respondent be personally served with a summons - "only if the trial court determined that such service was impracticable or could not be achieved could methods of substitute service be used." The trial court made no such determination thus, respondent was not served in compliance with Michigan law. The court declared the trial court proceedings as to respondent's rights void. As to the second error, the court held that respondent had a constitutional right to the assistance of counsel at the hearing in which her parental rights were terminated. "MCL 712A.17c(4) and MCR 3.915(B)(1) required the trial court to advise respondent at her first court appearance at the termination hearing that she had a right to an attorney and that counsel would be appointed for her if she could not afford an attorney." The trial court erred when it failed to do so. As a non-lawyer, respondent may not have been aware that she had the right to legal representation at the proceedings. Also, "because she was not properly notified of the proceedings, she could not have been reasonably expected to appear, assert her rights earlier, or even respond to the trial court's request for financial information so an attorney could have been appointed." While a respondent in a child-protection proceeding may waive the right to counsel, there was no indication that respondent's appearance without counsel was the result of knowingly, intelligently, and voluntarily waiving her right to counsel after being properly advised of her rights. She never indicated a desire to represent herself and forego the assistance of counsel. Rather, her appearance without counsel was the result of the trial court's failure to properly advise her of her right to counsel.

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Real Property

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This summary also appears under Banking

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bakri v. Mortgage Elec. Registration Sys.

e-Journal Number: 53125

Judge(s): Per Curiam – Borrello, Meter, and Shapiro

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Termination of Parental Rights

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

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Moore

e-Journal Number: 53166

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

Concluding that although the respondent-mother's efforts at sobriety beginning in 2/12 were commendable, they came too late to assure her nine-year old daughter, K's stability in the future, the court held that the trial court properly terminated the respondent's parental rights to K. The court also held that the trial court did not clearly err in finding that termination of respondent's parental rights was in K's best interests. The trial court terminated respondent's rights based on her inability to satisfactorily overcome her substance abuse issues within a reasonable time and continued relationship with her husband, an abusive person who acted as a "trigger" for respondent's drug use. The court held that the petitioner presented clear and convincing evidence to support termination under factor (c)(i). The primary reason the trial court assumed jurisdiction over the child was respondent's drug use. By the time of the termination, respondent had been clean for only 3 months, a relatively short period compared to her 18-year addiction problem. She remained in an inpatient program and required several more months of intensive treatment. Given her pattern of relapsing upon release from inpatient programs, she required additional time to prove her ability to remain sober. No one could guarantee that respondent would ever be able to provide a stable environment for K. Respondent had planned no further than bringing K to live with her at the inpatient facility, a place for which K had already stated her dislike. Under these circumstances, the court held that the court did not clearly err in finding that respondent would be unable to remedy the conditions leading to adjudication within a reasonable time. Respondent compared her situation to Mason. However, the court held that Mason was factually inapposite and did not support the return of K to respondent's custody. Affirmed.

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This summary also appears under Litigation

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Paige

e-Journal Number: 53144

Judge(s): Per Curiam - O’Connell, Donofrio, and Beckering

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Wills & Trusts

Issues: Surcharge of $168,058.84 for misappropriation of funds from trust; Whether the probate court's order violated appellant-Plumley's due process rights; Whether the probate court properly denied appellant's compensation for time spent on trust services and expenses related to the minor son; In re Baldwin Trust; In re Estate of Raymond; In re Green Charitable Trust; MCL 700.8206(1)(a); MCL 700.7901(1); MCL 700.7901(2)(a)-(j); MCL 700.7901(2)(h); MCL 700.7904(3); MCL 700.7901; MCL 700.7904; Whether the probate court properly found that P had not waived his $50,000 gift from the trust; Whether the surcharge should be reduced

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Tiffany Smith Trust

e-Journal Number: 53094

Judge(s): Per Curiam – Murphy, Sawyer, and Hoekstra

The court held, inter alia, that the probate court did not clearly err when it found that appellant-Plumley (the original managing trustee) was in breach of the trust. She violated several terms of the trust that were established for the benefit of the settlor's (Smith) minor son. She failed to fund an account to provide for the child's daily expenses and refused to give an accounting of the fund to her co-trustee. Also, she failed to provide appropriate documentation for her claimed services as trustee and expenses for the child. Thus, the court held that the probate court acted within its statutory authority under MCL 700.7901 and MCL 700.7904 when it denied appellant her requested compensation. The court affirmed the probate court's order imposing a surcharge for misappropriation of funds from the trust, but remanded the matter to the probate court to reduce appellant's surcharge to $118,058.84. When Smith learned that she was dying, she established a trust for the benefit of her son. The trust named Smith's cousin, Plumley, as managing trustee and named Smith's mother, Anderson, as both guardian of Smith's son and co-trustee. The trust was funded by Smith's life insurance policy and was created with a $400,751.09 payment upon her death. Of these funds, a $50,000 gift was to be paid directly to appellant, and an additional $50,000 gift was to be paid directly to P. The remaining balance was to be invested and used for the son's benefit. "Contrary to the express terms of the trust, appellant failed to fund an account for the son's daily expenses and, likewise, failed to report all trust activity to Anderson." Anderson filed a petition in probate court to compel appellant to make an accounting of the trust activity. Several court proceedings ensued. Appellant and Anderson stipulated to have an accountant and unrelated third party, M, named as replacement trustee of the trust. Appellant argued, inter alia, that the probate court erred by denying her compensation for time spent on trust services and expenses related to the minor son. She believed this error should result in a reduction of her surcharge. The court disagreed that appellant was denied rightful compensation, concluding instead that "the probate court acted within its statutory authority when it denied appellant her requested compensation." However, the court determined that the surcharge should be reduced by the $50,000 that would have been gifted to P because appellant settled P's claim.

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