Issues: Claims under the Fair Debt Collection Practices Act (FDCPA); Whether defendants violated § 1692e, § 1692e(10), and § 1692f of the FDCPA; The "least sophisticated consumer" standard; Harvey v. Great Seneca Fin. Corp.; The "bona fide error" (BFE) defense (§ 1692k(c)); Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA; Constitutionality of the FDCPA; Whether the complaints the defendants filed in state court were protected by the First Amendment; Heintz v. Jenkins; Whether the application of the FDCPA should be limited by the Noerr-Pennington rule; Sosa v. DIRECTV, Inc. (9th Cir.); Gionis v. Javitch, Block & Rathbone, LLP (6th Cir. Unpub.);  McDonald v. Smith; Whether the FDCPA is unconstitutionally vague; Sensations, Inc. v. City of Grand Rapids; Substantive due process; Montgomery v. Carter County; Defendant-Great Seneca's claim of voluntary dissolution (whether it should be dismissed as a party)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Hartman v. Great Seneca Fin. Corp.

e-Journal Number: 43137

Judge(s): Moore; Concurrence - Oliver; Dissent - White

 

Concluding there was a genuine issue of material fact as to whether calling Exhibit A an "account" would have misled the "least sophisticated consumer" and defendants did not establish the BFE defense applied, the court reversed the district court's grant of summary judgment to defendants and remanded for further proceedings consistent with its opinion. The court also remanded as to whether defendant-Great Seneca's voluntary dissolution affected whether it should remain as a party. The plaintiffs both had credit-card accounts with Providian National Bank on which they allegedly owed money. Providian sold the accounts to Unifund CCR Partners, who sold the debts to Great Seneca. With the help of its attorneys (Javitch), Great Seneca filed collection complaints in state court against plaintiffs. Javitch attached a copy of the debtors' "account" to the complaints. In each case, the document they attached as an "account" resembled a credit-card statement but was generated on Great Seneca's behalf. The plaintiffs filed separate cases in the district court arguing defendants violated the FDCPA by representing in their state court complaints Exhibit A was a statement of their accounts. The district court held there was no genuine issue of material fact as to whether this violated the FDCPA and granted defendants summary judgment in each case. The court held the plaintiffs had raised a genuine issue of material fact as to whether defendants' representations were false and misleading, particularly where Exhibit A contained no information enabling a consumer to determine what had been charged or paid on the account or when the debt was accrued. Also, the only language indicating Great Seneca was a debt collector was the word "assignee," a legal term which would not help the least sophisticated consumer understand the relationship between the parties listed. Given the fact the document appears to be a recent credit-card bill, which it is not, and with few indications to the contrary, there was a genuine issue of material fact as to whether it would mislead the least sophisticated consumer. The court also held defendants had not established they qualified for the BFE defense because they did not show their alleged violation of the FDCPA was unintentional. Nor did they show by a preponderance of the evidence they had procedures intended to avoid the type of error which occurred. Their error was a mistake of law where they represented Exhibit A was an account in a manner which could be found to be misleading or deceptive. Reversed and remanded.

 

Issues: Whether the defendant-Gencor made express warranties to plaintiff; UCC (MCL 440.1101 et seq.); Sullivan Indus., Inc. v. Double Seal Glass Co, Inc.; MCL 440.2313; Salzman v. Maldaver; Klanseck v. Anderson Sales & Serv., Inc.; Spence v. Three Rivers Builders & Masonry Supply, Inc.; Piercefield v. Remington Arms Co.; Whether Gencor's initial sale of the rock classification machine was also accompanied by the implied warranties of merchantability and fitness for a particular purpose; McGhee v. GMC Truck & Coach Div.; Effect of the settlement agreement between plaintiff and defendant-MCAT; Release and discharge of any outstanding implied-warranty claims; Meridian Mut. Ins. Co. v. Mason-Dixon Lines, Inc.

Court: Michigan Court of Appeals (Published)

Case Name: Heritage Res., Inc. v. Caterpillar Fin. Servs. Corp.

e-Journal Number: 43140

Judge(s): Jansen and Markey; Concurrence - Hoekstra

 

Holding as a matter of law, defendant-Gencor made no express warranties to plaintiff, the court reversed the trial court's judgment in favor of plaintiff. Plaintiff, owned by the Velting brothers, had been involved in heavy aggregate mining for several years. It became interested in purchasing a Gencor rock classification machine, also known as a "trommel," from defendant-MCAT. Plaintiff and MCAT entered into a Sales Agreement. After transporting the Gencor machine to plaintiff's site, the Veltings realized the machine failed to conform with their wishes in several respects. Once the Gencor machine was up and running at plaintiff's site, other serious problems arose. However, after several repairs and modifications, by both MCAT and by plaintiff, the Gencor machine was made usable. At the time of trial, plaintiff was still using the Gencor machine to sort rocks for retail sale. Plaintiff sued Gencor, MCAT, and another defendant for, inter alia, breach of express warranty, breach of implied warranty of fitness for a particular purpose, and breach of the implied warranty of merchantability. Plaintiff entered into a settlement agreement with MCAT, which included a mutual release of claims. On appeal, plaintiff argued Gencor made express warranties running in its favor at the initial meeting between the parties, and Gencor's sale of the machine was also accompanied by certain implied warranties. The trial court's award of damages to plaintiff was based on its finding Gencor breached express warranties allegedly made to plaintiff at a lunch meeting. MCL 440.2313 clearly provides express warranties are limited to statements, descriptions, representations, samples, and models "made part of the basis of the bargain." Based on this statutory language, the court was compelled to conclude where there is no contract, and thus no "bargain," there can be no express warranty under MCL 440.2313. Since it was undisputed plaintiff had no contract with Gencor, the court held as a matter of law Gencor could not have made any express warranties directly to plaintiff. While there was a contract between Gencor and MCAT, and Gencor could have made express warranties to MCAT, plaintiff failed to provide any evidence concerning the express warranties, if any, contained in the Gencor-MCAT agreement. The court also held plaintiff's implied warranty claims against Gencor were barred by plaintiff's settlement with MCAT. In its settlement agreement with MCAT, plaintiff released "any and all actual and potential claims" against "any other person, firm, business entity or corporation charged or chargeable with responsibility which is or may be derivative from [MCAT]." The court concluded the language of the settlement agreement was broad enough to release and discharge plaintiff's implied-warranty claims against Gencor. Reversed and remanded for entry of judgment in favor of Gencor.

 

Issues: Contractual indemnification; Applicability of tort liability immunity (MCL 691.1407); Koenig v. City of S. Haven; Mack v. Detroit; Claim the indemnity clause was unenforceable because the defendant-city was not authorized to enter into an indemnity agreement; Ross v. Blue Care Network of MI; The "law of the case" doctrine; Reeves v. Cincinnati, Inc. (After Remand); Whether the plaintiff had to establish its actual liability in the underlying case to recover under the indemnity clause; Grand Trunk W. R., Inc. v. Auto Warehousing Co.; Ford v. Clark Equip. Co.; Detroit v. Grant; St. Luke's Hosp. v. Giertz; The "potential liability" standard; The reasonableness of the settlement; Whether the underlying factual situation was covered by the indemnity agreement; Sherman v. DeMaria Bldg. Co.; Whether there was internal inconsistency between finding the plaintiff had "potential liability" and the indemnity clause provision precluding its application if the damage or loss in the underlying case was caused by "active negligence of plaintiff, its agents or employees"; Case evaluation sanctions; Effect of the fact the only claim on which plaintiff prevailed was not submitted to case evaluation; McCarthy v. Auto Club Ins. Ass'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Detroit Edison Co. v. City of Detroit

e-Journal Number: 43101

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

Holding, inter alia, the underlying claim clearly fell within the scope of the parties' indemnity agreement and the defendant-city failed to show there was a genuine issue of material fact as to whether the plaintiff reasonably settled the underlying case for $2.3 million, the court affirmed the trial court's order granting plaintiff summary disposition. The case arose from the death of a 10-year old boy who was electrocuted by defendant's downed electrical wire. His estate sued plaintiff and defendant for negligence. Plaintiff entered into settlement negotiations with the estate and invited defendant to participate, but it declined. Plaintiff informed defendant it intended to settle the underlying case for $2.3 million and asked defendant to contribute toward the settlement, but defendant again refused. Plaintiff settled the case and filed this suit. After a prior appeal and remand, plaintiff filed an amended complaint asserting a claim for contractual indemnification based on the parties' contract for the supply of electricity. Noting the evidence showed defendant was given an opportunity to participate in the settlement negotiations but declined to do so, the court concluded it was only necessary for plaintiff to show its potential liability in the underlying case to recover on its indemnification claim. Under the "potential liability" standard, plaintiff only had to show the settlement was reasonable and the underlying factual situation was covered by the indemnity agreement. The evidence established a reasonable likelihood plaintiff would have been found liable if the underlying case had gone to trial. Plaintiff also produced evidence of jury verdicts in other electrocution cases far exceeding the settlement amount and evidence the settlement amount was within the range of usual settlements in electrocution cases. Defendant did not counter this evidence. The indemnity agreement required defendant to indemnify plaintiff when there was (1) loss or damage to any person, (2) resulting directly or indirectly from the use, misuse, or presence of plaintiff's electricity on the city's premises or elsewhere, (3) after the electricity passed the point of delivery to defendant. The underlying claim for loss to a person who was killed by the presence of electricity supplied by plaintiff after it was delivered to defendant fell within the scope of the agreement. Affirmed in Docket No. 278778. The court reversed the award of case evaluation sanctions in Docket No. 286460.

 

Issues: Claims related to the defendant's withdrawal of his guilty plea to second-degree murder, nolo contendere to manslaughter with a motor vehicle, and failure to stop at the scene of an accident when at fault resulting in death; The oath requirement in MCR 6.302(A); People v. Saffold; "Substantial compliance"; In re Guilty Plea Cases; Boykin v. Alabama; People v. Battistea; Rules of "automatic reversal" disfavored; People v. Hawthorne; People v. Mosly

Court: Michigan Court of Appeals (Published After Release)

Case Name: People v. Plumaj

e-Journal Number: 43139

Judge(s): Per Curiam - Beckering, Talbot, and Donofrio

 

[This opinion was previously released as an unpublished opinion on 4/23/09.] Since the trial court erred in granting the defendant's motions to withdraw his guilty plea to second-degree murder, his pleas of nolo contendere to manslaughter with a motor vehicle and failure to stop at the scene of an accident when at fault resulting in death without first determining whether the pleas were understanding, voluntary, and accurate, the court reversed and remanded for further proceedings in accord with the court's opinion. The first case arose from the January 2007 death of RB.  A truck driven by defendant struck RB as he was standing outside a stalled vehicle. He was charged with manslaughter and failure to stop at an accident when at fault. The second case arose from the February 2007 shooting death of TP and assault of KH. The prosecutor alleged the shooting of TP was done with the assistance and at the direction of defendant. He was charged with first-degree murder, two counts of assault with intent to murder, and felony-firearm. At a hearing the parties placed a plea agreement on the record, where defendant would plead nolo contendere to second-degree murder in the second case with a sentence of 25-1/2 to 35 years in prison. In the first case, he agreed to plead nolo contendere to manslaughter with a sentence of 10 to 15 years in prison to run concurrently to the sentence in the second case. The trial court accepted the pleas. However, at no time during the plea hearing did the trial court put defendant under oath. He was later sentenced under the parties' agreement. He moved to set aside both pleas claiming he was denied effective assistance of counsel, the trial court failed to place him under oath, and failed to comply with other aspects of the plea taking procedure. At a hearing before a different trial judge, the prosecutor conceded the oath requirement was not met, but argued noncompliance did not require reversal. Strict compliance with MCR 6.302 is not essential where the Supreme Court has adopted a "doctrine of substantial compliance." In Mosly, the court found violation of a court rule was not structural error requiring automatic reversal. Here, it was error for the trial court to apply the rule of "automatic reversal" for failure to strictly comply with the court rule instead of determining whether defendant's pleas were understanding or knowingly, voluntarily, and accurately given. The trial court must use "the decisional process to either grant or deny a motion to withdraw a plea and make findings in a hearing to support the application of discretion."

 

Issues: Failure to pay child support; Whether the Michigan Legislature intended the inability to pay to be a defense to MCL 750.165; People v. Adams; People v. McLaughlin; People v. Herrick; Presumption of innocence; Mootness; B P 7 v. Michigan Bureau of State Lottery; Due process; People v. Pitts; People v. Hayes; Whether MCL 750.165 wrongfully condemns a defendant with a "badge of infamy"; MCL 750.165(2); Cruel and unusual punishment; People v. Launsburry; People v. Lorent; Whether imprisoning a defendant for the inability to pay support under MCL 750.165 creates a debtor's prison; Toth v. Toth

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Brown

e-Journal Number: 43105

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

The court held the defendant was properly convicted of failure to pay child support and the Michigan Legislature did not intend the inability to pay to be a defense to MCL 750.165. During the course of the defendant's divorce proceedings, she suffered a complete kidney failure. A default judgment of divorce entered against her ordered her to pay child support of $320.67 a month for her two minor children based on disability insurance payments. The Attorney General's Child Support Division authorized a felony nonsupport warrant against her for violating MCL 750.165, which makes the nonpayment of child support a felony under certain conditions. She was subsequently arrested and waived her right to a preliminary examination. During trial, the trial granted the state's motion in limine prohibiting defendant from offering or introducing any testimony or evidence at trial relating to her alleged inability to pay child support, consistent with Adams. She received $27,453 in disability benefits from the Social Security Administration. The jury ordered her to pay $11,186.75 in restitution for child support, which she paid in full. She argued the Michigan Legislature intended the inability to pay to be a defense to MCL 750.165 when the support amount ordered was wrongfully determined and a disabled defendant is physically, mentally, and financially unable to modify the support order. Adams analyzed MCL 750.165 and held the statute created a strict-liability crime thus, the inability to pay was not a defense. The holding in Adams was precedentially binding, and the court was bound to follow it. The court also agreed MCL 750.165 creates a strict liability crime and inability to pay is not an available defense. Moreover, the court found the record devoid of evidence defendant could not modify the support order if, indeed, it was wrongfully determined. Affirmed.

 

Issues: Motion for substitute counsel; People v. Traylor; People v. Mack; Motion for an adjournment in order to obtain new counsel; People v. Akins; Plain error review; Ineffective assistance of counsel; People v. LeBlanc; Strickland v. Washington; People v. Carbin; People v. Kelly; People v. Rockey; Sufficiency of the evidence to support the defendant's identity theft (MCL 445.65) conviction; People v. McGhee

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Harris

e-Journal Number: 43110

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

Holding the trial court did not abuse its discretion in denying defendant's motion for substitute counsel because good cause did not exist to substitute counsel, and there was sufficient evidence to support his identity theft conviction, the court affirmed his conviction. He argued there was a breakdown in his relationship with defense counsel because counsel did not subpoena child support records he repeatedly requested, did not request a bond reduction hearing, and "made discouraging remarks to defendant." His primary claim the trial court abused its discretion was based on the fact defense counsel did not subpoena the requested records. The records apparently would have shown defendant obtained his job through a program offered by child services and thus, allegedly would have refuted the prosecution's theory he used the victim's social security number to avoid paying child support. While the records were never obtained, defense counsel elicited through defendant's testimony evidence he obtained his job through a program offered by child services and child services knew where he worked. Thus, the court concluded defendant and defense counsel agreed on this fundamental trial tactic. The court also noted there was no evidence the alleged records existed. Defendant's claim the prosecution did not produce sufficient evidence to prove he gave a false social security number in order to obtain employment also failed. MCL 445.65 provides in part "a person shall not ... with intent to defraud or violate the law, use or attempt to use the personal identifying information of another person" to obtain employment. Evidence showed defendant was required by law and by the employer to fill out employment forms, including federal and state tax forms, which required a social security number. Because the employer's HR specialist was required by law to collect defendant's social security number to employ him and he provided a false social security number, the court held the evidence was sufficient for a rational juror to find beyond a reasonable doubt he was guilty of using another person's personal identifying information to obtain employment. Affirmed.

 

Issues: Claim the defendant was denied an impartial judge when the trial judge's brother acted as the prosecutor in the district court proceeding; MCR 2.003; Cain v. Department of Corr.; People v. Wells; MCR 2.003(B)(6)(a) and (b); "Proceeding"; People v. Dycus; MCR 2.003(C)(1) and (2); Defendant's trial clothing; People v. Lewis; Plain error review; People v. Carines; Ineffective assistance of counsel; People v. LeBlanc; People v. McGhee; People v. Freeman; Decision about the witnesses to be called; People v. Ackerman; Sentencing; Scoring of OV 13; MCL 769.34(10); People v. Kimble; People v. Drohan

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hill

e-Journal Number: 43113

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

 

The defendant was not denied his right to an impartial judge because the trial judge's brother acted as the prosecutor in the district court proceeding. The court rules provide a judge is disqualified when the case cannot be impartially heard, including where a person within the third degree of relationship to the judge is "a party to the proceeding" or "acting as a lawyer in the proceeding." "Proceeding" is defined as "a particular action, or course or manner of action." While the trial judge's brother acted as the prosecuting attorney at the preliminary exam, he did not serve as the prosecutor at the trial court level. "Thus, the trial court's brother did not act as a lawyer in the circuit court proceeding." Further, defendant did not raise any issues related to the preliminary exam or the district court proceedings. The trial judge was never asked to review the proofs presented in the district court. The court also noted the trial judge did not act as the trier of fact in defendant's jury trial. Defendant also did not comply with the time for filing the motion, pursuant to MCR 2.003(C)(1), did not include an affidavit with the motion, pursuant to MCR 2.003(C)(2), and did not cite any authority supporting the motion. The court concluded he failed to overcome the presumption of judicial impartiality and did not establish the court rules required disqualification. Defendant's first-degree home invasion, domestic violence (third offense), resisting or obstructing a police officer, and malicious destruction of police property convictions and sentences were affirmed.

 

Issues: Motions for a mistrial and a new trial on the basis the prosecutor mentioned the word "polygraph"; People v. Ortiz-Kehoe; People v. Nash; Whether the trial court's cautionary jury instruction was sufficient to ensure the defendant received a fair trial; People v. Lukity; MCL 750.520h; People v. Lemmon

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Jensen

e-Journal Number: 43107

Judge(s): Per Curiam - Zahra and Whitbeck; Concurrence - M.J. Kelly

 

Concluding the prosecutor's mention of the word "polygraph" did not bolster or undermine any witness's credibility and the trial court's cautionary jury instruction was sufficient to ensure the defendant received a fair trial, the court affirmed his CSC III conviction. The prosecutor elicited evidence a police officer was a polygraph examiner. Defense counsel immediately objected. Outside the jury's presence, defense counsel moved for a mistrial because the mention of the officer's capacity as a polygraph examiner was inadmissible and should not have been made in front of the jury. The prosecutor responded his reference did not prejudice defendant because no polygraph exam was conducted and thus, there were no polygraph results. The trial court denied defendant's motion for a mistrial, determining a curative instruction would be sufficient. There were no more references to the word polygraph during the trial. While defendant argued identifying the officer as a polygraph examiner significantly bolstered his credibility, the court concluded the officer's testimony did not in any way undermine defendant's credibility. The officer in fact conveyed to the jury statements defendant made he believed were true. Also, in its cautionary instruction the trial court repeatedly stressed the mention of a polygraph had no relevance to the case, its only possible relevance was it went to show why the officer was meeting with defendant, but there was no polygraph given and none refused. The trial court emphasized the jury could not use this in deciding the case, and the fact there was no polygraph should not be held against either party, "very specifically not against [defendant]." In light of the cautionary jury instruction, the court held defendant could not establish sufficient harm to constitute reversible error. Further, it was not more probable than not a different outcome would have resulted absent the error. The victim's testimony was diametrically opposed to defendant's version of events, and the jury was free to decide who to believe. Pursuant to MCL 750.520h, the testimony of a victim in a CSC case does not need to be corroborated. The trial court did not abuse its discretion in denying defendant's motion for a mistrial or his later motion for a new trial. Affirmed.

 

Issues: Right of confrontation; People v. Carines; People v. Chambers; Davis v. Washington; People v. Bartlett; Ineffective assistance of counsel for not objecting to testimony; People v. Ginther; People v. Williams; People v. Toma; Whether the defendant's rights were violated when the prosecutor elicited details about his prior drug-related convictions; People v. Aldrich; People v. Carines; Other acts evidence; MRE 404(b)(1); People v. Knox; People v. Crawford; People v. Potra; Confidential informant (CI)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Taylor

e-Journal Number: 43111

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

 

Although the court agreed with the defendant admission of the officer's testimony concerning the CI's statements was plain error, he failed to show admission of this testimony affected his substantial rights. Defendant claimed his right of confrontation was violated by a police officer's testimony concerning statements purportedly made by a nontestifying CI indicating drug trafficking was occurring at the house where defendant lived with his mother and "Aaron" had sold him cocaine. The location of drug paraphernalia found in the home indicated defendant's room was used for drug-related activities, and his testimony indicated he was aware drugs were being used in the house. Although the CI's statements were probative of defendant's identity as the seller, a conviction for maintaining a drug house does not require proof the defendant was involved in the transactions. The court was not persuaded the outcome of the proceeding would have been different but for the informant's statements through the officer's testimony. Defense counsel's failure to object to this testimony did not deprive him of the effective assistance of counsel. His conviction for maintaining a drug house was affirmed.

 

Issues: Sufficiency of the evidence to support the trial court's "flight" instruction; People v. Carines; People v. Gillis; People v. Young; People v. Canales; People v. Lonnie Renee Johnson; People v. Coleman; People v. Hall; People v. Jones; CJI2d 4.4; Sentencing; Scoring of OV 9 (2 victims placed in danger); People v. Hornsby; Denial of motion for a directed verdict (evidence of intent to kill); People v. Wolfe; People v. Warren (After Remand); "Transferred intent"; People v. Lawton; People v. DeLisle; People v. Hollis

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Thompson

e-Journal Number: 43112

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

The trial court did not abuse its discretion in giving the "flight" jury instruction where he fled the scene immediately after the shooting and any error in giving the instruction did not affect the defendant's substantial rights. The record reflected defendant drove by the victim's house twice. The second time, he stopped, engaged in a heating argument with the victim's friend, pulled out a gun, twice tried unsuccessfully to fire the gun at them, and on the third try, the gun discharged. Defendant then "took off," or "pulled away," after he fired the gun. The record indicated defendant knew his behavior was illegal and admitted he nonetheless fired the gun. Thus, there was evidence defendant fled the scene of the crime knowing he had just broken the law. Defendant did not calmly depart the scene, but took off. The trial court instructed the jury there was some evidence defendant ran away after the alleged crime, and did not instruct the jury he ran from the police. Based on the evidence, the court could not say the trial court's decision to instruct the jury on flight fell below the range of principled and reasonable outcomes. Further, the trial court instructed the jury according to the model flight instruction, which provides flight evidence is insufficient to warrant conviction alone and an individual may flee for innocent reasons. These instructions were sufficient to protect defendant's rights. Defendant's jury convictions of assault with intent to commit murder and felony-firearm were affirmed.

 

Issues: Search and seizure; Motion to suppress firearm and ammunition evidence seized from the defendant's vehicle and his resulting inculpatory statement; Reasonableness of continued detention; Whren v. United States; Illinois v. Caballes; United States v. Erwin; Whether defendant's consent to search was valid; United States v. Worley; Schneckloth v. Bustamonte; United States v. Calhoun; United States v. Moon; Fed.R.Evid. 701; Torres v. County of Oakland; Whether the search exceeded the scope of consent; United States v. Garrido-Santana; Florida v. Jimeno; United States v. Gant; United States v. Campbell; 18 USC § 922(g)(1)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Canipe

e-Journal Number: 43138

Judge(s): Griffin, Sutton, and Lioi

 

The district court properly denied the defendant's motion to suppress firearm and ammunition evidence seized from his vehicle where Investigator H's brief detention and request for consent to search the truck after the initial stop were reasonable and did not transform the legal traffic stop into an unconstitutional seizure. Defendant contended the evidence, which led to his conditional guilty plea and 192-month prison sentence for felon in possession of a firearm and ammunition contrary to § 922(g)(1), was obtained in violation of his Fourth Amendment rights against unreasonable searches and seizures. He challenged the reasonableness of his continued detention and H's request for consent to search his vehicle after the issuance of the citation. He contended H's conduct, unaccompanied by evidence of any other criminal act, exceeded what was reasonably related to the circumstances justifying a typical stop for failure to wear a seatbelt. The court held H's continued detention and questioning of defendant after issuing him the traffic citation were reasonable. H knew defendant and received reliable information from his sister - through his supervisor - defendant was unlawfully possessing a firearm. The stop was not prolonged. H testified it was of "normal" duration for a traffic violation at that time of day and much of it was consumed by the purpose of the initial stop, including the need for H to complete the citation and retrieve information from the records dispatch. When defendant signed the citation and H returned his information, concluding the initial purpose of the stop, defendant neither refused H's immediate request for permission to search the truck nor asked to leave. In fact, H obtained defendant's consent to search by asking two simple questions - whether defendant had anything unlawful in his truck and whether H could look. To the first question, defendant responded "he didn't think so," from which "a fair inference of uncertainty or hesitation may be drawn." In light of his lukewarm response and the reliable information H had already acquired, it was reasonable for him to request permission to verify. Affirmed.

 

Issues: Motions to modify the defendants' sentences pursuant to 18 USC § 3582(c)(2); United States v. Wayne Carter; The "abuse of discretion" standard; United States v. Larry Carter; Whether the district court correctly found the defendants' sentences were based solely on powder cocaine and not on cocaine base; Eligibility for sentence reduction under § 3582(c)(2); USSG § 1B1.10(a)(1) and (2); Amendment 706 (lowering the base offense level under USSG § 2D1.1 for drug-trafficking crimes involving cocaine base); United States v. Johnson

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Johnson

e-Journal Number: 43136

Judge(s): Moore, Gilman, and Phillips

 

Since it was clear both defendants' sentences were calculated based on only the guidelines applicable to powder cocaine offenses, the district court correctly found it was not authorized to reduce their sentences under § 3582(c)(2). The defendants were charged in 1998 with, inter alia, conspiracy to possess with intent to distribute cocaine and cocaine base. Defendant-Johnson pleaded guilty to the single conspiracy count. Defendant-Moss went to trial and was convicted of the conspiracy count and one count of using a communication facility in committing a drug offense. They were both sentenced to 168 months' imprisonment and 5 years of supervised release. After the Sentencing Commission implemented retroactive guidelines applicable to offenses involving cocaine base, the defendants filed motions for a reduction of sentence under § 3582(c)(2). They argued because their convictions were based in part on cocaine base and their PSRs referred to conduct involving cocaine base, the district court's finding their sentences were not based on cocaine base was clearly erroneous. However, the defendants did not provide support for the proposition the district court should look at the basis for the conviction rather than focusing only on the basis for calculating the sentence. While Johnson pleaded guilty to conspiracy to distribute both powder cocaine and cocaine base, his PSR calculated his base offense level of 34 using the drug-quantity table for powder cocaine. His base offense level was derived from testimony at the sentencing hearing showing his responsibility for purchasing for distribution more than 15 but less than 50 grams of powder cocaine. If he had been sentenced based on cocaine-base quantity, he would have had a base offense level of 38. Thus, it was clear he was sentenced under the guidelines for powder cocaine offenses. Similarly, while both powder cocaine and cocaine base were part of the indictment under which Moss was convicted, his PSR calculated his base offense level of 34 using the drug-quantity table for powder cocaine. Because the defendants were not sentenced based on the guidelines applicable to offenses involving cocaine base, the district court properly denied their motions for sentence reduction under § 3582(c)(2). Affirmed.

 

Issues: Garnishment action; Whether the "occurrence" exclusion in the business liability insurance policy barred coverage; Hayley v. Allstate Ins. Co.; Henderson v. State Farm Fire & Cas. Co.; Whether defendant-Ngo's negligence constituted an "occurrence"; Michigan Basic Prop. Ins. Ass'n v. Wasarovich; Arco Indus. Corp. v. American Motors Ins. Co.; Effect of the fact the individual who stole the rings (Ngo's employee) was also an insured under the terms of the policy

Court: Michigan Court of Appeals (Unpublished)

Case Name: Great N. Ins. Co. v. Ngo

e-Journal Number: 43123

Judge(s): Per Curiam - Owens, Servitto, and Gleicher

 

The garnishee defendant-insurer (Farm Bureau) was properly granted summary disposition because the theft of the rings by defendant-Ngo's employee, who was also an insured under the policy issued by Farm Bureau, was clearly intentional and not a "chance happening" and thus, there was no "accident" and no coverage. Ngo owned and operated a store. An employee stole two diamond rings belonging to a customer, which were insured by the plaintiff. Farm Bureau insured Ngo under a business liability policy. Ngo's employees were also insureds under the policy. A jury convicted the employee of two counts of larceny for the theft. Plaintiff, as subrogee of the customer, sued Ngo for the theft, alleging he was negligent for failing to take measures to ensure the rings were not stolen. In a consent judgment, Ngo admitted the allegations in the first amended complaint. The consent judgment awarded plaintiff $196,000 plus interest. Pursuant to the consent judgment, Ngo assigned plaintiff any rights he might have under the policy. Plaintiff then filed a writ of garnishment against Farm Bureau. Moving for summary disposition, Farm Bureau argued, inter alia, there was no accident triggering coverage. The trial court granted Farm Bureau's motion, ruling there was no "occurrence" or accident since the rings were stolen and thus, Farm Bureau was not required to provide coverage under the policy. Plaintiff argued on appeal whether an "accident" occurred should be viewed from Ngo's standpoint, not from the standpoint of the employee who stole the rings, because Ngo did not intend the employee's act causing the injury. However, the court rejected a similar argument in Wasarovich. Affirmed.

 

Issues: Claims under the Fair Debt Collection Practices Act (FDCPA); Whether defendants violated § 1692e, § 1692e(10), and § 1692f of the FDCPA; The "least sophisticated consumer" standard; Harvey v. Great Seneca Fin. Corp.; The "bona fide error" (BFE) defense (§ 1692k(c)); Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA; Constitutionality of the FDCPA; Whether the complaints the defendants filed in state court were protected by the First Amendment; Heintz v. Jenkins; Whether the application of the FDCPA should be limited by the Noerr-Pennington rule; Sosa v. DIRECTV, Inc. (9th Cir.); Gionis v. Javitch, Block & Rathbone, LLP (6th Cir. Unpub.);  McDonald v. Smith; Whether the FDCPA is unconstitutionally vague; Sensations, Inc. v. City of Grand Rapids; Substantive due process; Montgomery v. Carter County; Defendant-Great Seneca's claim of voluntary dissolution (whether it should be dismissed as a party)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Hartman v. Great Seneca Fin. Corp.

e-Journal Number: 43137

Judge(s): Moore; Concurrence - Oliver; Dissent - White

 

Concluding there was a genuine issue of material fact as to whether calling Exhibit A an "account" would have misled the "least sophisticated consumer" and defendants did not establish the BFE defense applied, the court reversed the district court's grant of summary judgment to defendants and remanded for further proceedings consistent with its opinion. The court also remanded as to whether defendant-Great Seneca's voluntary dissolution affected whether it should remain as a party. The plaintiffs both had credit-card accounts with Providian National Bank on which they allegedly owed money. Providian sold the accounts to Unifund CCR Partners, who sold the debts to Great Seneca. With the help of its attorneys (Javitch), Great Seneca filed collection complaints in state court against plaintiffs. Javitch attached a copy of the debtors' "account" to the complaints. In each case, the document they attached as an "account" resembled a credit-card statement but was generated on Great Seneca's behalf. The plaintiffs filed separate cases in the district court arguing defendants violated the FDCPA by representing in their state court complaints Exhibit A was a statement of their accounts. The district court held there was no genuine issue of material fact as to whether this violated the FDCPA and granted defendants summary judgment in each case. The court held the plaintiffs had raised a genuine issue of material fact as to whether defendants' representations were false and misleading, particularly where Exhibit A contained no information enabling a consumer to determine what had been charged or paid on the account or when the debt was accrued. Also, the only language indicating Great Seneca was a debt collector was the word "assignee," a legal term which would not help the least sophisticated consumer understand the relationship between the parties listed. Given the fact the document appears to be a recent credit-card bill, which it is not, and with few indications to the contrary, there was a genuine issue of material fact as to whether it would mislead the least sophisticated consumer. The court also held defendants had not established they qualified for the BFE defense because they did not show their alleged violation of the FDCPA was unintentional. Nor did they show by a preponderance of the evidence they had procedures intended to avoid the type of error which occurred. Their error was a mistake of law where they represented Exhibit A was an account in a manner which could be found to be misleading or deceptive. Reversed and remanded.

 

Issues: Child custody; Whether the trial court properly ordered and conducted an evidentiary hearing for a change of custody determination when the court's prior remand was to only resolve a specific issue; Scope of the lower court's power on remand; McCormick v. McCormick

Court: Michigan Court of Appeals (Unpublished)

Case Name: Pecic-Badgley v. White

e-Journal Number: 43131

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

 

On the court's own motion, it ordered the June 9, 2009 opinion vacated (see e-Journal # 42961 in the 6/17/09 edition), issued a new opinion concurrently with the order, and remanded for further proceedings consistent with the new opinion. The court retained jurisdiction and ordered on remand the proceedings shall be given priority, shall be conducted on the record, and shall be conducted within 56 days of the Clerk's certification of the order. The trial court shall issue an order as directed in the opinion. The parties shall promptly file with the court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with the court copies of all orders entered on remand. The transcript of all proceedings on remand shall be prepared and filed with the court within 14 days after completion of the proceedings.

 

Issues: Garnishment action; Whether the "occurrence" exclusion in the business liability insurance policy barred coverage; Hayley v. Allstate Ins. Co.; Henderson v. State Farm Fire & Cas. Co.; Whether defendant-Ngo's negligence constituted an "occurrence"; Michigan Basic Prop. Ins. Ass'n v. Wasarovich; Arco Indus. Corp. v. American Motors Ins. Co.; Effect of the fact the individual who stole the rings (Ngo's employee) was also an insured under the terms of the policy

Court: Michigan Court of Appeals (Unpublished)

Case Name: Great N. Ins. Co. v. Ngo

e-Journal Number: 43123

Judge(s): Per Curiam - Owens, Servitto, and Gleicher

 

The garnishee defendant-insurer (Farm Bureau) was properly granted summary disposition because the theft of the rings by defendant-Ngo's employee, who was also an insured under the policy issued by Farm Bureau, was clearly intentional and not a "chance happening" and thus, there was no "accident" and no coverage. Ngo owned and operated a store. An employee stole two diamond rings belonging to a customer, which were insured by the plaintiff. Farm Bureau insured Ngo under a business liability policy. Ngo's employees were also insureds under the policy. A jury convicted the employee of two counts of larceny for the theft. Plaintiff, as subrogee of the customer, sued Ngo for the theft, alleging he was negligent for failing to take measures to ensure the rings were not stolen. In a consent judgment, Ngo admitted the allegations in the first amended complaint. The consent judgment awarded plaintiff $196,000 plus interest. Pursuant to the consent judgment, Ngo assigned plaintiff any rights he might have under the policy. Plaintiff then filed a writ of garnishment against Farm Bureau. Moving for summary disposition, Farm Bureau argued, inter alia, there was no accident triggering coverage. The trial court granted Farm Bureau's motion, ruling there was no "occurrence" or accident since the rings were stolen and thus, Farm Bureau was not required to provide coverage under the policy. Plaintiff argued on appeal whether an "accident" occurred should be viewed from Ngo's standpoint, not from the standpoint of the employee who stole the rings, because Ngo did not intend the employee's act causing the injury. However, the court rejected a similar argument in Wasarovich. Affirmed.

 

Issues: Zoning dispute involving township ordinance § 76-331(a)(2) prohibiting attached or detached garages from housing more than three cars and exceeding 920 square feet; Whether the defendant-township properly denied plaintiff's request for a variance to build a four-car garage; The Construction Code (MCL 125.1511(1)); Whether plaintiff's revised plans complied with § 76-331(a)(2)( a); Whether an appeal by plaintiff would be futile; Citizens for Common Sense in Gov't v. Attorney Gen.; Papas v. Gaming Control Bd.; Exhaustion of administrative remedies; Whether plaintiff had to appeal the township's denial of the requested variance to the ZBA before bringing his 42 USC § 1983 claim; Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City; Electro-Tech v. Campbell Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Daley v. Charter Twp. of Chesterfield

e-Journal Number: 43125

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

Concluding the proper avenue for plaintiff-Daley's appeal was to the defendant-township's ZBA, not the construction board of appeals and he failed to exhaust all available administrative remedies by appealing to the township's ZBA, the court held the trial court properly granted the defendants' motion for summary disposition. Plaintiff sought to build a 910 square-foot garage with two 16-foot-long garage doors to house 4 cars. In 2004, he applied to the ZBA for a variance, which was denied. He failed to appeal the decision and filed a complaint in the trial court alleging the ordinance provision was unconstitutionally vague. The trial court dismissed the complaint and the court affirmed. In 2007, plaintiff submitted a revised plan with space for 3 cars and a 100 ft. craft room and calling for 2 16-foot doors. The township denied the plans as not complying with the ordinance. Plaintiff argued the township was obligated to approve the plans because he complied with the ordinance, and he requested an appeal to the township's construction board of appeals. Defendants argued the decision was not a construction code dispute, but a zoning ordinance dispute. Plaintiff then filed this case seeking approval of his revised plans without appealing to the township ZBA or applying for a variance. Thus, the ZBA had not already made a final decision on the issue against plaintiff. The court noted the 2007 plans were revised to include the craft room, which could rebut the presumption decided in the first ZBA decision "that two 16-foot garage doors means a four-car garage." The court held the crux of the 2004 and 2007 plans was not exactly the same pursuant to MCL 125.3603(1), and an appeal as to the 2007 revised plans must be taken to the ZBA. Although plaintiff contended an appeal to the ZBA would be futile, the court held the futility exception to the exhaustion of administrative remedies does not apply when a plaintiff maintains the zoning board is biased against him when bias is impossible to determine because the plaintiff has failed to obtain a final decision from the board. Affirmed.  

 

Issues: Contractual indemnification; Applicability of tort liability immunity (MCL 691.1407); Koenig v. City of S. Haven; Mack v. Detroit; Claim the indemnity clause was unenforceable because the defendant-city was not authorized to enter into an indemnity agreement; Ross v. Blue Care Network of MI; The "law of the case" doctrine; Reeves v. Cincinnati, Inc. (After Remand); Whether the plaintiff had to establish its actual liability in the underlying case to recover under the indemnity clause; Grand Trunk W. R., Inc. v. Auto Warehousing Co.; Ford v. Clark Equip. Co.; Detroit v. Grant; St. Luke's Hosp. v. Giertz; The "potential liability" standard; The reasonableness of the settlement; Whether the underlying factual situation was covered by the indemnity agreement; Sherman v. DeMaria Bldg. Co.; Whether there was internal inconsistency between finding the plaintiff had "potential liability" and the indemnity clause provision precluding its application if the damage or loss in the underlying case was caused by "active negligence of plaintiff, its agents or employees"; Case evaluation sanctions; Effect of the fact the only claim on which plaintiff prevailed was not submitted to case evaluation; McCarthy v. Auto Club Ins. Ass'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Detroit Edison Co. v. City of Detroit

e-Journal Number: 43101

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

Holding, inter alia, the underlying claim clearly fell within the scope of the parties' indemnity agreement and the defendant-city failed to show there was a genuine issue of material fact as to whether the plaintiff reasonably settled the underlying case for $2.3 million, the court affirmed the trial court's order granting plaintiff summary disposition. The case arose from the death of a 10-year old boy who was electrocuted by defendant's downed electrical wire. His estate sued plaintiff and defendant for negligence. Plaintiff entered into settlement negotiations with the estate and invited defendant to participate, but it declined. Plaintiff informed defendant it intended to settle the underlying case for $2.3 million and asked defendant to contribute toward the settlement, but defendant again refused. Plaintiff settled the case and filed this suit. After a prior appeal and remand, plaintiff filed an amended complaint asserting a claim for contractual indemnification based on the parties' contract for the supply of electricity. Noting the evidence showed defendant was given an opportunity to participate in the settlement negotiations but declined to do so, the court concluded it was only necessary for plaintiff to show its potential liability in the underlying case to recover on its indemnification claim. Under the "potential liability" standard, plaintiff only had to show the settlement was reasonable and the underlying factual situation was covered by the indemnity agreement. The evidence established a reasonable likelihood plaintiff would have been found liable if the underlying case had gone to trial. Plaintiff also produced evidence of jury verdicts in other electrocution cases far exceeding the settlement amount and evidence the settlement amount was within the range of usual settlements in electrocution cases. Defendant did not counter this evidence. The indemnity agreement required defendant to indemnify plaintiff when there was (1) loss or damage to any person, (2) resulting directly or indirectly from the use, misuse, or presence of plaintiff's electricity on the city's premises or elsewhere, (3) after the electricity passed the point of delivery to defendant. The underlying claim for loss to a person who was killed by the presence of electricity supplied by plaintiff after it was delivered to defendant fell within the scope of the agreement. Affirmed in Docket No. 278778. The court reversed the award of case evaluation sanctions in Docket No. 286460.

 

Issues: Whether the trial court correctly found respondent-Decator harassed the petitioners and her actions caused them to suffer significant emotional distress; MCL 600.2950(4); Kampf v. Kampf; Pickering v. Pickering;"Stalking" defined (§ 411h(1)(d)); "Harassment" (§ 411h(1)(c)); "Unconsented contact" (§ 411h(1)(e)); "Emotional distress" (§ 411h(1)(b)); Hayford v. Hayford;  Whether the trial court correctly concluded respondent's behavior did not constitute constitutionally protected activity or serve a legitimate purpose; Nastal v. Henderson & Assoc. Investigations, Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Loll v. Decator

e-Journal Number: 43103

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

Concluding the trial court did not err in finding respondent-Decator initiated "unconsented contact" with the petitioners by falsely accusing them of crimes, they suffered emotional distress from respondent repeatedly accusing them of crimes they did not commit, and there was no evidence her conduct served a legitimate purpose, the court affirmed the trial court's modification of the previously-entered PPOs to restrain respondent from confronting, communicating, or approaching the petitioners. Petitioners have lived next-door to respondent since about 1996. They testified they experienced problems with her the entire time. The problems ranged from trivial fence disputes to allegations she repeatedly filed false police reports against them. The trial court refused to terminate the PPOs based on four instances when respondent contacted the police falsely accusing petitioners of committing crimes. First, she accused Kenneth Loll of damaging her car. Next, she accused him of peeking in her windows and breaking into her house. On another occasion, she claimed Nancy Loll trespassed on her property when, while mowing an elderly neighbor's yard, she strayed onto respondent's lawn. Finally, respondent accused both petitioners of stealing fascia board while her roof was being redone. The unrebutted testimony of petitioners, which the trial court clearly found credible, established on each of these occasions respondent's calls to the police were baseless and meant to falsely accuse them of crimes. Further, the court held the trial court could rationally conclude petitioners suffered emotional distress. They both testified at the hearing to terminate the PPOs and told the trial court of their respective accounts of respondent's actions. The trial court questioned them at length and found their testimony credible. They testified they were disturbed by her actions and were scared she would retaliate against them. The unrebutted evidence established her reports to the police were baseless, she provided no evidence to support her accusations, and there were no charges resulting from them. The trial court specifically found the respondent's conduct amounted to filing false police reports. Affirmed.

 

Issues: Zoning dispute involving township ordinance § 76-331(a)(2) prohibiting attached or detached garages from housing more than three cars and exceeding 920 square feet; Whether the defendant-township properly denied plaintiff's request for a variance to build a four-car garage; The Construction Code (MCL 125.1511(1)); Whether plaintiff's revised plans complied with § 76-331(a)(2)( a); Whether an appeal by plaintiff would be futile; Citizens for Common Sense in Gov't v. Attorney Gen.; Papas v. Gaming Control Bd.; Exhaustion of administrative remedies; Whether plaintiff had to appeal the township's denial of the requested variance to the ZBA before bringing his 42 USC § 1983 claim; Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City; Electro-Tech v. Campbell Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Daley v. Charter Twp. of Chesterfield

e-Journal Number: 43125

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

Concluding the proper avenue for plaintiff-Daley's appeal was to the defendant-township's ZBA, not the construction board of appeals and he failed to exhaust all available administrative remedies by appealing to the township's ZBA, the court held the trial court properly granted the defendants' motion for summary disposition. Plaintiff sought to build a 910 square-foot garage with two 16-foot-long garage doors to house 4 cars. In 2004, he applied to the ZBA for a variance, which was denied. He failed to appeal the decision and filed a complaint in the trial court alleging the ordinance provision was unconstitutionally vague. The trial court dismissed the complaint and the court affirmed. In 2007, plaintiff submitted a revised plan with space for 3 cars and a 100 ft. craft room and calling for 2 16-foot doors. The township denied the plans as not complying with the ordinance. Plaintiff argued the township was obligated to approve the plans because he complied with the ordinance, and he requested an appeal to the township's construction board of appeals. Defendants argued the decision was not a construction code dispute, but a zoning ordinance dispute. Plaintiff then filed this case seeking approval of his revised plans without appealing to the township ZBA or applying for a variance. Thus, the ZBA had not already made a final decision on the issue against plaintiff. The court noted the 2007 plans were revised to include the craft room, which could rebut the presumption decided in the first ZBA decision "that two 16-foot garage doors means a four-car garage." The court held the crux of the 2004 and 2007 plans was not exactly the same pursuant to MCL 125.3603(1), and an appeal as to the 2007 revised plans must be taken to the ZBA. Although plaintiff contended an appeal to the ZBA would be futile, the court held the futility exception to the exhaustion of administrative remedies does not apply when a plaintiff maintains the zoning board is biased against him when bias is impossible to determine because the plaintiff has failed to obtain a final decision from the board. Affirmed.