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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Court costs; MCL 769.1k(1)(b)(iii); Principle that the trial court must establish a factual basis for the costs; People v Konopka (On Remand); Constitutionality of MCL 769.1k(1)(b)(iii); People v Johnson
Holding that the trial court erred by failing to demonstrate that the court costs imposed against defendant were reasonably related to its actual costs, the court affirmed his convictions and sentences, but remanded for articulation of the factual basis for the costs imposed. He was convicted of second-degree murder and FIP and was sentenced to concurrent terms of 50 to 75 years and 3 to 5 years respectively. The court noted the trial court “imposed court costs in the amount of $2,500 without explanation, thereby failing to demonstrate that the court costs were reasonably related to the trial court’s actual costs. Remand is therefore necessary to permit the trial court to articulate the factual basis for the costs imposed and, if warranted, to alter the amount of costs.” The court rejected his challenge to the constitutionality of MCL 769.1k(1)(b)(iii), noting that because Johnson is controlling on this issue, defendant’s challenge was without merit.
Breach of contract & warranty claims; Doctrine of substantial performance; Unjust enrichment claim where there is an express contract; Michigan Department of Transportation (MDOT); Dan’s Excavating, Inc (DEI)
The court held that plaintiff-DEI’s failure to “reject the appeal recommendation within five business days” constituted an acceptance of the “recommendation, which operates as a release of liability for” defendant-MDOT under their contract. Thus, the Court of Claims did not err in dismissing plaintiffs’ breach of contract and breach of warranty claims under MCR 2.116(C)(7). The Court of Claims also correctly ruled “that plaintiffs were precluded from asserting unjust enrichment arising from the same subject matter governed by the express contract between DEI and MDOT.” Plaintiffs contended the Court of Claims erred in granting defendants summary disposition of their breach of contract and breach of warranty claims. The parties did “not dispute that the contract relationship between DEI and MDOT was governed by an express contract, which provided for a dispute resolution procedure.” They also did “not dispute that the dispute resolution procedure required DEI to either accept or reject the” Dispute Resolution Board’s (the Board) “appeal hearing recommendation within five business days, and that failure to do so constituted acceptance of the recommendation.” Further, the parties did “not dispute that DEI failed timely to reject the Board’s appeal hearing recommendation.” However, plaintiffs raised “equitable arguments to refute defendants’ assertion that DEI, by failing timely to reject the recommendation of the Board, released defendants from liability. Plaintiffs argue that the contract notice provision is contrary to notions of reasonableness and fair play, that they substantially performed under the contract because they provided actual notice of their claim to defendants in other ways, and that they had a legitimate basis for failing to timely respond to the recommendation.” As to the substantial performance argument, the court held that the “Court of Claims correctly concluded that the doctrine of substantial performance does not apply to express contract terms.” The parties did “not dispute that the parties’ obligation to respond to the appeal hearing recommendation of the Board within five days was an express term of the parties’ contract. As” a result, the Court of Claims was correct that plaintiffs could not “successfully argue that their obligation to comply with that express provision was met by substantial compliance.” The court also found that “the Court of Appeals correctly held that plaintiffs did not demonstrate that the notice provision of the contract had become objectively impossible to perform.” Affirmed.
Ineffective assistance of counsel; Motion for a new trial or an evidentiary hearing; Failure to interview or call certain witnesses; Failure to secure a ballistics expert or an audio expert; Failure to object to a prosecution argument; Failure to offer evidence of defendant’s lack of a violent history for a period of time; MRE 404(a)(1); Testimony defendant cut his tether after the arrest warrant was issued; MRE 401; MRE 403; Applicability of MRE 404(b)(1)
The court held that the trial court abused its discretion in denying defendant’s motion for a new trial or an evidentiary hearing as to his claim that his trial counsel was ineffective for failing to interview or call certain witnesses (S, B, and K). But it rejected his other ineffective assistance claims and his argument the trial court erred in permitting the prosecution to offer testimony indicating he “cut his tether after the arrest warrant was issued in” the case. He was convicted of AWIGBH, carrying a weapon with unlawful intent, FIP, and felony-firearm, second offense. The court concluded he set forth facts requiring “development of the record to determine whether trial counsel provided ineffective assistance by failing to conduct a reasonable investigation into witnesses” S, B, and K. The court noted the “defense asserted at trial was that defendant was not armed on” the date of the incident and that the victim (T) “was shot by her brother. Because the trial court did not conduct an evidentiary hearing, the only record evidence of trial counsel’s investigation into [B, S, and K] as potential witnesses are the affidavits attached to defendant’s motion for a new trial.” B and K stated that trial counsel never contacted them about testifying at trial. S stated “that she spoke with trial counsel but they did not discuss [S] testifying, nor did trial counsel ask her what she witnessed.” The fact that trial “counsel stated during opening statement that defendant was with ‘his wife [S], his two daughters [B and J], and his wife’s sister [K]’ when the altercation occurred” indicated that he was aware they were potential witnesses. In addition, their affidavits showed “that their testimony would have supported the defense theory asserted at trial, which was largely unsupported by record evidence.” The prosecution argued, and the trial court found, that their testimony would have been cumulative. The court disagreed, concluding “the different perspectives from which the witnesses observed the events . . . could have provided valuable testimony as to events not observed by [T], who denied seeing her brother with a gun, and” J. The court vacated “in part the order denying defendant’s motion for a new trial or an evidentiary hearing,” and remanded the case “for an evidentiary hearing limited to [his] claim that trial counsel was ineffective for failing to investigate three witnesses.” It retained jurisdiction.
Motion to correct an invalid sentence; People v Boykin
The court held that “the trial court did not abuse its discretion when it denied defendant’s motion to correct his allegedly invalid sentence.” On appeal, defendant argued that his 40-to-60-year sentence for his CSC I conviction was “invalid because the trial court failed to consider the mitigating factor of his youth when sentencing him.” Here, the record showed “that the original sentencing judge considered defendant’s youth as a mitigating factor during sentencing. At the sentencing hearing, defendant’s counsel explicitly argued that defendant was only 17 years old. Defense counsel argued that defendant’s young age, lack of prior record, and good upbringing were mitigating factors, and thus, the court should focus on defendant’s rehabilitation instead of his punishment.” The court held that like in Boykin, “defense counsel explicitly advanced an argument based on defendant’s youth at sentencing, therefore, the [trial] court was aware of defendant’s age and juvenile status when making its determination.” Further, the court held that “because an ‘on-the-record sentencing explanation is not necessary to ensure that a sentencer considers a defendant’s youth,’ . . . the trial court did not err by failing to make an explicit finding regarding defendant’s youth as a mitigating factor.” The record established “that defendant’s youth was argued at the sentencing hearing, and thus, the [trial] court necessarily considered defendant’s youth in making its determination.” Also, the trial “court properly tailored its sentence to defendant and gave specific reasons for imposing the sentence, including the disciplining of defendant, the protection of society, and deterrence.” Affirmed.
Ineffective assistance of counsel; Failure to object to improper testimony & inadmissible evidence; MRE 701; Lay opinion; Other acts evidence; Whether photos of the victims’ bodies were irrelevant & unfairly prejudicial; Attorney fees
The court concluded that defendant did not receive ineffective assistance of counsel. Also, other acts evidence was properly admitted. Further, the trial court did not abuse its discretion by admitting photos of the victims’ bodies. Finally, the trial court properly imposed $2,000 in attorney fees. She was convicted of first-degree murder and first-degree arson. Defendant contended “trial counsel was ineffective for eliciting prejudicial information from a witness for no strategic reason.” The court held that while “the jury ultimately did not believe [the defense] theory, it was not an objectively unreasonable strategy.” Defendant asserted “that trial counsel’s failure to adequately cross-examine the witnesses was so flagrant that ‘no prejudice need be shown.’” The record clearly showed “that trial counsel vigorously cross-examined witnesses, obtained concessions from fire investigators that a cigarette could have caused the fire, and significantly impeached testimony regarding a prior threat allegedly made by defendant. The presumption of prejudice only applies if counsel totally fails to subject the prosecution’s case to any opposition whatsoever.” The court held that was not the case here. Defendant also asserted “that counsel was ineffective for failing to object when the prosecutor asked” her former boyfriend’s friend (B) “if he ever saw defendant acting jealous. Defendant contends there was ‘insufficient foundation for [B] to opine on her emotions or emotional state….’ However, this question was proper because it was based on the witness’s first-hand observations.” Thus, there was no reason for trial counsel to object. Defendant argued that Detective M’s “testimony was improper, and defense counsel was ineffective for failing to object.” The court held that “pursuant to MRE 704, lay opinion testimony is not objectionable just because it encompasses an ultimate issue that the trier of fact must decide. [M] testified that the video showed the person who started the fire. She did not identify defendant as the person in the video. The detective’s opinion was based on her perception of the video, helpful to the jury, and not invasive of the province of the jury. Trial counsel, therefore, had no basis to object.” The court held “that defendant did not receive ineffective assistance of counsel. Because [M’s] testimony was not speculative, defense counsel was not ineffective for failing to raise an objection.” Affirmed.
Petition to modify a child’s guardianship to require that petitioner-parent be allowed video contact with the child; Whether the probate court had to review the best-interest factors in MCL 700.5101(a); Parenting time; MCL 700.5204(5)
The court held that the probate court properly considered, and did not abuse its discretion in denying, the petition to modify respondents-grandparents’ guardianship of the child (LMW) to require them to allow petitioner-father video conference contact with her. She has lived with respondents exclusively since 2013. Petitioner was convicted in 2014 “of possession and distribution of child pornography” and was sentenced to 5 years in prison and 20 years’ supervised release. Respondents were granted full guardianship of LMW, with parenting time at their discretion “and in accordance with existing court orders.” As to the petition at issue, the probate court ruled that petitioner could have contact with LWM “by written letters under respondents’ supervision, but declined to require LMW to participate in video conferencing; [it] explained that respondents have discretion to permit LMW to video conference with [him] in the future if LMW changes her mind and wants” such contact. He contended it was required to review the best-interest factors in MCL 700.5101(a). But given that he sought parenting time, “the probate court was not required by MCL 700.5204(5) to specifically consider or make findings regarding the statutory best-interests factors when ruling on” his petition. He further asserted it erred in only considering “LMW’s preferences when determining the mode of communication permitted between” them. But the court disagreed that the probate court did so, noting it also considered that he “was convicted of child pornography charges, was still on probation related to those charges, and had violated his probation after he was released from prison. [It] also specifically considered that, due to the digital format of the proposed contact, [he] would be able to take screenshots of LMW during the chats. [It] also expressed concern over [his] recent Facebook posts that depicted sexually suggestive content.” The court agreed “with the probate court that video contact with LMW may be contrary to her welfare considering petitioner’s child pornography conviction, his recent Facebook posts, and the potential to use LMW’s image. Taken together with LMW’s preference that” their contact stay limited to letters, the court found the probate court did not clearly err in determining “that video contact would be contrary to LMW’s welfare.” Affirmed.
Medical malpractice; Vicarious liability; Ostensible agency; Grewe v Mt Clemens Gen Hosp; Markel v William Beaumont Hosp; Effect of consent form language; Stempniak v Prime Health Servs Garden City, LLC (Unpub); Distinguishing Grzywacz v Hidalgo, MD; Standard of care expert testimony; Bahr v Harper-Grace Hosps; Cox v Flint Bd of Hosp Managers
The court held that the trial court did not err in denying defendant-hospital (PHS) summary disposition on the issue of ostensible agency as to defendant-doctor (Kattoo). It concluded the “patient consent form did not clearly inform the decedent that Dr. Kattoo was not an employee of the hospital, which is especially true where [he] took affirmative steps to imply that he was.” But the court rejected plaintiff-estate’s claim on cross-appeal that the trial court erred in granting PHS summary disposition as to unnamed other ICU staff members. Plaintiff’s decedent underwent a total knee replacement and after experiencing “a decline in pulmonary status while in recovery” was transferred to the ICU. Dr. Kattoo later approved the decedent’s transfer “from the ICU to a general medical floor that” he also supervised. Two days later, the decedent was found dead in his hospital bed. PHS contended there was no genuine issue of fact that Dr. Kattoo was not its agent. The court disagreed. PHS asserted “that because the decedent’s initial contact with Garden City Hospital was for an elective surgery with his own orthopedic doctor, [he] did not ‘look to’ the hospital for treatment.” But the court found this argument ignored “that while the decedent may not have initially looked to Garden City Hospital for treatment, once his medical prognosis worsened, he was placed in the hospital’s ICU. The ICU was not simply the location chosen by the decedent’s physician, but rather the most logical location for care and treatment given [his] critical status.” As to PHS’s reliance on its patient consent form, similar to the form at issue in Stempniak, the “form the decedent signed put him on notice that some doctors may not be employees of Garden City Hospital, but did not inform him of Dr. Kattoo’s status. This is particularly relevant where here, Dr. Kattoo was not ‘just’ a physician working in the hospital, but the director of the ICU itself, which he described as his ‘team.’ [His] conduct while the decedent was in his care did nothing to dispel any belief about his agency and, quite the opposite, bolstered it.” The court concluded “no reasonable patient would believe that the director of the ICU, with power to make transfer decisions within other departments in the hospital, was not an employee of the hospital simply because the patient was informed that ‘[s]ome doctors and staff are not employees . . . .’” Affirmed and remanded.
Civil action involving alleged police misconduct; Motions to strike; MCR 2.115(B); Amended pleadings; MCR 2.118(A); MCR 2.116(I)(5); MCR 2.110(A); Ligons v Crittenton Hosp; Leniency allowed pro se litigants in pursuing their claims; Principle that ignorance of the law is no excuse even for pro se litigants; Summary disposition under MCR 2.116(C)(8); The trial court’s authority to issue a scheduling order & manage its docket; MCR 2.401(B)(2)(a); Perjury
The court held that the trial court did not abuse its discretion by striking plaintiff’s improperly filed amended complaints, and that it properly granted summary disposition for defendant-sheriff’s office. Plaintiff sued defendant alleging police misconduct by a sergeant. On appeal, the court rejected plaintiff’s argument that the sergeant, while “working for defendant, committed police misconduct during an investigation that led to plaintiff’s arrest and” pending criminal case. “The trial court struck, citing MCR 2.115(B), all but two complaints plaintiff filed, and only considered those initially filed on” 8/2/23. The court found this “decision was within the range of reasonable and principled outcomes.” It noted that plaintiff’s “right as a matter of course to amend his complaint under MCR 2.118(A)(1) was not triggered by defendant moving for summary disposition of plaintiff’s claims set forth in his original” complaints. His “later filings, all made without leave to amend, did not comport with the requirements of MCR 2.118(A)(1). The trial court, therefore, did not abuse its discretion by striking [his] improperly filed amended complaints.” Further, although “pro se litigants are allowed some leniency” they are still required to “abide by the court rules. Ignorance of the law is no excuse even for pro se litigants.” The court also found that the trial court properly granted defendant summary disposition. Plaintiff’s 8/2/23 “complaints included no factual allegations whatsoever, nor even any clear statements of law. Rather, plaintiff merely presented a string of apparent, hard-to-follow conclusions devoid of any, even minimal, factual or legal explanation. Given plaintiff’s failing, summary disposition was warranted under MCR 2.116(C)(8).” Further, although “what issues have been decided at this point in plaintiff’s criminal case is unclear from the available record, it is clear he is attempting to use this case largely as a vehicle to challenge rulings and prevent further adverse proceedings in the separate criminal case—and to challenge his prior unrelated probate proceedings—rather than seeking appropriate civil remedies for” the sergeant’s alleged misconduct. And to the extent he claimed the sergeant “perjured himself at the preliminary examination in plaintiff’s related criminal case, this was not a proper claim before the trial court in the instant action.” Affirmed.