Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Divorce; Child custody; Parenting time; Attorney fees; Whether the arbitrator erred by failing to conduct an evidentiary hearing on attorney fees; Cassidy v Cassidy; Due process; Abandonment of an issue; Waiver; Effect of an untimely motion to vacate; MCR 3.602(J)(3); Valentine v Valentine; Subject-matter jurisdiction; Usitalo v Landon
The court held that the trial court did not err by confirming the arbitrator’s opinions and awards of attorney fees to defendant-father in this protracted litigation arising from a custody dispute over the parties’ daughter. In multiple prior appeals, the court rejected all of plaintiff-mother’s attempts to disqualify the arbitrator and circumvent the arbitrator’s various rulings. The trial court ultimately affirmed the arbitrator’s child-support and parenting-time determinations, as well as the award of attorney fees in favor of defendant. On appeal, the court rejected plaintiff’s argument that the arbitrator erred by denying her request for an evidentiary hearing and discovery regarding defendant’s request for attorney fees. It noted that the arbitrator reviewed and considered plaintiff’s written submissions, “including her written motion for an evidentiary hearing and discovery as well as her written response to defendant’s motion for attorney fees. In accordance with Cassidy, the arbitrator determined that an evidentiary hearing was unnecessary. Plaintiff was not denied due process.” In addition, given her failure to file a timely motion to vacate the “arbitration awards of attorney fees, she is not entitled to appellate relief on the basis of her arguments challenging the awards.” Further, there was “no basis to exclude the issue of attorney fees from the scope of the arbitrator’s authority.” Finally, the court rejected plaintiff’s claim that the trial court lacked subject-matter jurisdiction to confirm the arbitration awards on attorney fees. “[T]he Michigan trial court reopened the Michigan case in order to confirm the arbitrator’s awards on attorney fees. [It] correctly recognized that the Michigan case had only been closed, not dismissed, subject to being reopened if the Colorado court declined to act on the pending arbitration.” The Colorado court “expressly declined to exercise jurisdiction with respect to this arbitration on attorney fees.” Affirmed.
The Wolf-Dog Cross Act (the Act); Procedural error; Failure to delay the start of the forfeiture proceeding; Distinguishing In re Forfeiture of 301 Cass St; Prejudice; Stay of proceedings; MCL 287.1020; Waived issue of whether the forfeiture of all the wolf-dog hybrids constituted an excessive fine; Breeding of wolf-dogs; Physician-patient privilege; Michigan Department of Natural Resources (DNR)
In this forfeiture case involving wolf-dog hybrids, the court held that “any error in failing to delay the start of the forfeiture proceeding could not have prejudiced defendants.” Also, the trial court was correct that “defendants could testify in the forfeiture hearing without fear that their testimony would be used against them.” Further, the trial court’s finding that the pups were bred while at defendant-Howling Timbers was not clearly erroneous. Finally, any error in the admission of physician-patient privilege testimony and evidence was harmless. The court held that “the trial court’s decision to expedite the first day of the proceeding was reasonable on the facts of this case and did not amount to an abuse of discretion.” The record also “showed that defendants had notice and an opportunity to be heard at a meaningful time and in a meaningful manner over the nine days of hearings covering several months.” Thus, the trial court did not deprive them of due process. Finally, they did not show “that any error in expediting the first day of the proceeding and refusing to allow more formal discovery prejudiced them.” The evidence that defendants violated the Act “by failing to report all the wolf-dog attacks that resulted in injuries to persons was overwhelming and unrebutted despite the fact that defendants had months to prepare a defense.” Defendants next argued “the trial court’s failure to stay the proceedings prevented them from testifying on their own behalf out of fear that their testimony might be used against them.” The court concluded that the “grant of use immunity alleviated the concern” as to their Fifth Amendment rights. Defendants also argued “that holding a civil forfeiture hearing under the Wolf-Dog Cross Act before a criminal proceeding under the same act is inherently absurd.” But the court held that “the prosecutor had the option of bringing the forfeiture action as part of the criminal proceeding or as part of a separate civil proceeding.” Defendants also indirectly argued “that forfeiture should apply to the individual wolf-dogs associated with a particular violation.” The court found that the “Legislature plainly stated its intent that an owner who has violated the act should forfeit all of their wolf-dogs.” Defendants further “read MCL 287.1020 as establishing that there must be a criminal charge in order to allow a civil forfeiture, notwithstanding the language of MCL 287.1016(1) and MCL 287.1016(3).” The court noted that the “case did not involve the seizure and holding of living wolf-dogs pending the forfeiture proceeding.” As a result, “MCL 287.1020(1) did not apply. Additionally, the context of the various provisions in MCL 287.1020(1) for triggering a return of seized animals demonstrates that the Legislature treated forfeitures under MCL 287.1015 and MCL 287.1016 as distinct methods of forfeiture, which provided for the return of the animals only upon the resolution of either procedure in the owner’s favor.” Affirmed.
Sufficiency of the evidence; Admission of a confession under the corpus delicti rule; People v Schumacher; Use of a confession to elevate the crime to one of a higher degree or to establish aggravating circumstances; People v Ish; Due process; Sentencing; Reasonableness of a within-guidelines sentence; Proportionality; People v Posey
The court held that the evidence was sufficient for the jury to find beyond a reasonable doubt that defendant was guilty of CSC III under a theory of digital penetration, and that the prosecution did not abuse its discretion in sentencing him. He was convicted of CSC III for sexually assaulting the victim while she was asleep. The trial court sentenced him to 51 months to 15 years for each count, to be served concurrently. On appeal, the court rejected his argument that the evidence was insufficient to sustain his conviction involving digital penetration as it was admitted in violation of the corpus delicti rule, which violated his right to due process. His “statements were not confessions of guilt. Although [he] admitted to digitally penetrating the victim, [he] maintained [she] was actively participating in and enjoying the sexual intercourse. The corpus delicti rule does not apply to admissions not amounting to confessions of guilt.” In other words, defendant’s “statements were not a confession but a factual assertion regarding the consensual nature of the interaction.” In addition, even if his statements were a confession of guilt, “the prosecution established corpus delicti by, independent of defendant’s statements, putting forth evidence [he] sexually assaulted the victim while she was sleeping and physical evidence of her injury.” The corpus delicti rule “was not violated, and the prosecution introduced sufficient admissible evidence to justify the guilty verdict.” The court also rejected his claim that he was entitled to resentencing because, without that conviction, his guidelines score would be altered. Because the prosecution did not violate the corpus delicti rule, the minimum sentencing guidelines remained unchanged. Further, defendant “provided no additional reason why his sentence, which falls at the low end of the minimum sentencing guidelines, is unreasonable and disproportionate. The trial court correctly considered the seriousness of the crime when sentencing” him, and “considered the emotional and psychological impact this incident had on the victim.” Affirmed.
Right to an impartial jury; Challenge for cause; MCR 2.511(E); MCR 6.412(D)(1) & (2); People v Eccles; Ineffective assistance of counsel for failure to challenge a juror; People v Unger; Failure to take a meritless position; Sentencing; Reasonableness & proportionality; People v Posey; Mitigating factors; A trial court’s justification for its sentences
The court held that the trial court did not err by failing to dismiss two jurors and defense counsel was not ineffective for failing to challenge them for cause. It also held that the trial court did not fail to consider specific mitigating factors or provide the reasoning for the sentences it imposed. In three incidents, defendant “sexually assaulted his former girlfriend twice, threatened her with a gun and fired it in her presence, and chased her with an axe.” He was convicted of CSC I, discharging a gun in a dwelling, felonious assault, and felony-firearm. The trial court sentenced him to 10 to 30 years for each CSC I, 2 to 10 for discharging a firearm in a dwelling, 257 days in jail for each felonious-assault, and a consecutive 2-year term for each felony-firearm. On appeal, the court rejected his argument that he was denied his right to an impartial jury because the trial court failed to sua sponte dismiss two jurors for cause, and that defense counsel was ineffective for failing to challenge them for cause. He contended, “without substantive analysis, that Juror No. 4 and Juror No. 10 could not be impartial because their answers ‘were clearly problematic’ and revealed their bias against” him. But he did not articulate how information they gave during voir dire showed bias towards him, and bias was not readily apparent. “Juror No. 4 agreed that there was no reason that he should not serve on the jury, and Juror No. 10 affirmatively stated that he believed he could be impartial and that he did not believe he was biased in any way.” Defendant failed to show “that a cause challenge to either one of those jurors would have been successful. Defense counsel is not ineffective for failing to take a meritless position[.]” The court also rejected his claim that his within-guidelines sentences were disproportionate to the offenses and the offender because the trial court failed to consider specific mitigating factors or provide the reasoning for its sentences. “The trial court explained that, although defendant had made progress in the years between the commission of the crimes and the sentencing hearing, the seriousness of the offenses, which occurred on multiple occasions, coupled with the lasting and severe psychological damage to the victim, warranted ‘a significant sentence.’” In addition, the court could not “fathom how defendant’s anxiety should serve as a mitigating factor for the violent and terrifying crimes that defendant committed against [the victim], who suffered lasting psychological damage[.]” Further, he did not explain how the trial court’s “consideration of his rehabilitative potential was inadequate” and the trial court “did not act unreasonably in deciding that the seriousness of the offenses warranted significant sentences because it outweighed both defendant’s remorse and the progress that he had made.” Affirmed.
Correction of an invalid sentence; MCR 6.429(A); Whether probation-violation proceedings were warranted; People v Laurent; Effect of a sentence based on inaccurate information; People v Miles; Constitutionality of OV 19 & MCL 777.49; Interference with the administration of justice; MCL 777.49(c); People v Barbee
The court held that because defendant’s initial sentence was invalid, the trial court had the authority to correct the judgment of sentence sua sponte. It also held that OV 19 is not unconstitutionally vague and the trial court properly scored it. He was convicted of possession of meth. The trial court initially sentenced him to 12 months in jail followed by 24 months’ probation, noting its intention to hold the jail sentence “in abeyance” and to refer him to drug-court programming, over the objection of the prosecution. However, after it learned he was not eligible for the program, it sua sponte resentenced him to 28 months to 10 years. On appeal, the court rejected his argument that the trial court should have conducted a probation-violation proceeding rather than a resentencing, and his alternative argument that it did not have the authority to resentence him because his inability to complete the drug-court program, was not enough to render his sentence invalid. “[T]he trial court did not rely on defendant’s alleged probation violations after his initial sentencing as a basis for resentencing. Rather, the reason for resentencing was that [he] was not eligible to participate in the drug-court program . . . .” More importantly, his “initial sentence was invalid because it was imposed on the basis of the trial court’s misapprehension that [he] was eligible for the drug-court program.” Simply put, the trial court “had inaccurate information, provided by defense counsel, that defendant would be able to enroll in the drug-court program.” It relied on this inaccurate information and decided to depart downward at the initial sentencing. “This rendered the downward departure invalid, and the trial court was permitted to correct it.” The court also rejected his claim that OV 19 is unconstitutionally vague and that the trial court improperly scored it. First, “defendant had fair notice of the sort of conduct that is contemplated by OV 19, and MCL 777.49 is not unconstitutionally vague for failure to provide fair notice.” Second, the fact that his possession of meth “had not yet been discovered at the time that he called his friend from jail is inconsequential as to whether OV 19 could be scored.” Affirmed.
The No-Fault Act; Whether plaintiff was barred by MCL 500.3113(a) from recovering no-fault benefits; Swoope v Citizens Ins Co of the Midwest; Ahmed v Tokio Marine Am Ins Co; Monaco v Home-Owners Ins Co; Spectrum Health Hosps v Farm Bureau Mut Ins Co of MI; Rambin v Allstate Ins Co
Concluding Swoope resolved this case, the court held that there was no question of material fact that MCL 500.3113(a) barred plaintiff-Tiburcio Pena-Cruz from receiving no-fault benefits. Thus, the trial court should have granted defendant-State Farm’s summary disposition motion. There was “no question that Tiburcio willingly operated or willingly used” his wife’s (Maria) vehicle (an F-150), “so the first prong from Ahmed is satisfied. As to the second and third prongs, Tiburcio did not have a valid driver’s license, he knew he did not have a valid driver’s [license], and he took Maria’s F-150 anyway without her permission and without taking any steps to ensure that his taking of the F-150 was authorized.” Given his lack of permission, this case was unlike Monaco and “more like Ahmed and Swoope; that is, Tiburcio ‘took’ the F-150 when he drove it. That ‘taking’ was unlawful—and therefore satisfied the second prong from Ahmed—'because operating a vehicle without a valid license is unlawful for purposes of MCL 500.3113(a).’” As to the third prong, the court determined that he “knew or should have known that this taking was unlawful because (1) Tiburcio knew that he did not have a valid license, (2) he should have understood that driving without a valid license was unlawful, (3) he admitted that he did not have Maria’s permission to drive the F-150, and (4) he failed to take any steps to ensure that his taking of the F-150 was authorized. In accordance with Swoope and Ahmed, these facts sufficiently satisfied the third prong from Ahmed.” Based on Spectrum Health, he asserted “only violations of the Michigan Penal Code can constitute an ‘unlawful taking’ under MCL 500.3113(a).” However, the court concluded “Spectrum Health plainly did not” so hold, and further, Ahmed and Swoope both rejected this argument. He also contended that his lack of a “license when he took the F-150 is of no consequence because that only rendered his use of the F-150 illegal.” Among other things, the court found that to the extent he relied “on Spectrum Health, Rambin, and Monaco in support of this argument, those cases are distinguishable.” Reversed and remanded for entry of an order granting State Farm’s summary disposition motion.
Sanctions; Whether a claim was frivolous; MCL 600.2591(1) & (3)(a)(iii); The Michigan Zoning Enabling Act (MZEA); The automatic-stay provision of MCL 125.3604(3); MCL 125.3604(1) & (5); MCL 125.3103(1)-(3); Zoning Board of Appeals (ZBA)
Holding that “plaintiff’s claim was not frivolous because it was sufficiently grounded in” fact and law, the court reversed the award of sanctions to defendants and remanded. The parties own parcels of lakefront property in a township. The case arose from plaintiff’s efforts to prevent defendants from dredging the lakeshore and building a boathouse. The court noted “the trial court essentially assumed that the automatic-stay provision of MCL 125.3604(3) only applies to a specific zoning permit sought by a landowner.” The trial court determined that absent “a pending permit for the dredging and boathouse project or facts showing that defendants may begin the project without applying for required permits, MCL 125.3604(3)” did not apply to plaintiff’s claim. But the court concluded the MZEA supported her “argument that an appeal of a determination that no permit is necessary for a project triggers the automatic-stay provision.” While resolving the underlying issue may turn out to be a close question, there was legal merit to her assertion “the automatic-stay provision applies to construction while an appeal regarding a determination relating to the project is pending. The facts of this case demonstrate how excluding construction from the statute’s application would be problematic and contrary to the purpose of allowing an appeal. In this case, had defendants actually begun dredging, there would have been no means to prevent the irreparable destruction of a portion of the lakeshore. Importantly, the [ZBA] ultimately concluded” plaintiff’s interpretation of the township “zoning ordinance was correct and that the ordinance prohibited dredging and the construction of boathouses on the shoreline. Under the circumstances, plaintiff’s claim was sufficiently grounded in law.” The court further determined that her claim was “sufficiently grounded in fact to state a claim upon which relief could have been granted. [She] alleged facts in her amended complaint, supported by evidence offered in her initial verified complaint, to plausibly support the contention that defendants planned to begin dredging the shoreline before the” ZBA decided her appeal. The court held that the trial court abused its discretion in awarding defendants “costs and attorney fees because it committed legal and factual errors.”