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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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42 USC § 1983; Qualified immunity; Courtright v. City of Battle Creek; Cahoo v. SAS Analytics Inc.; First Amendment retaliation; Dixon v. University of Toledo; Lucas v. Monroe Cnty.; Chappel v. Montgomery Cnty. Fire Prot. Dist. No. 1; Marohnic v. Walker; See v. City of Elyria; Paige v. Coyner; Refusal to contribute to a political campaign as protected activity; O’Hare Truck Serv., Inc. v. City of Northlake; Adverse action; Hill v. Lappin; Causation; Vereecke v. Huron Valley Sch. Dist.; Rudd v. City of Norton Shores; Equal protection; TriHealth, Inc. v. Board of Comm’rs, Hamilton Cnty.; “Class of one”; Village of Willowbrook v. Olech; Engquist v. Regon Dep't of Agric.; Johnson v. Morales; Absolute immunity; Bogan v. Scott-Harris; Legislative activity; Haskell v. Washington Twp.; Governmental immunity under Michigan law; MCL 691.1407(5); Acts outside executive authority; Marrocco v. Randlett; Defamation; Mitan v. Campbell (MI); Ghanam v. Does (MI App.)
[This appeal was from the ED-MI.] The court reversed the denial of qualified immunity to defendant-Hall on the basis plaintiff-Area Towing failed to allege that he engaged in adverse action to support its First Amendment retaliation claim. It also vacated the judgment as to defendant-Cuevas on plaintiff-Anders’ equal protection class-of-one claim, concluding that it was insufficiently pled. But it otherwise affirmed the denial of qualified immunity, absolute immunity, and governmental immunity under Michigan law. Anders owns Area Towing and plaintiff-Star Towing, which provided services to the Michigan State Police (MSP). He alleged that after he gave investigators the names of officers to whom he had given sporting-event tickets, Hall and Cuevas retaliated by interfering with his towing business with the MSP. Area Towing alleged that defendant-Sollars, a mayor, interfered in its business relationship with the city because Anders refused to contribute to his campaign and cooperated with a federal investigation. In addition to First Amendment retaliation and equal protection claims, Anders and Area Towing sued defendant-Ramik, a member of the city council, for defamation. The district court denied Sollars absolute and qualified immunity, Ramik governmental immunity, and Hall and Cuevas qualified immunity. The court held that Star Towing made its prima facie case of First Amendment retaliation against Cuevas and that he was not entitled to qualified immunity on this claim. Assuming its “allegations are correct in that Cuevas’ removal of Star Towing from the non-consent tow list was based on Anders’ speech to state investigators, the law was clearly established that so doing would violate the First Amendment.” But it held that Area Towing did not establish that Hall engaged in an adverse action. As to Anders’ equal protection claim against Cuevas, accepting as true his “allegation that the towing companies were treated ‘differently’ than other towing vendors,” the court could not draw any other facts from the amended complaint that would plausibly show “Anders himself was treated differently than other towing company owners, much less that those owners faced similar circumstances.” It next found that Sollars failed to establish that his actions were “legislative,” and it agreed with the district court that, for purposes of an adverse action, there is a difference between a month-to-month business relationship and a three-year contract. As to Ramik, it upheld the denial of his motion to dismiss because “the factual context surrounding” his statements were not clear. Remanded.
Motion to enforce a mediation-settlement agreement; Contract interpretation; Requirement that carpet be “attached”; Waiver; Nexteer Auto Corp v Mando Am Corp
Agreeing with the trial court that defendants-Lamberts’ placement of carpet on nonslip padding on their hardwood floor met the requirement in the parties’ mediation-settlement agreement that the carpet be “attached,” the court affirmed the order partially granting and partially denying plaintiffs’ motion to enforce the agreement. The Lamberts replaced the carpeted floors in their condo unit with hardwood floors, allegedly in violation of the condo association’s bylaws. After acquiring the unit below, plaintiffs found the noise coming from walking on the hardwood floors intolerable, and sued. The mediation-settlement agreement followed. In relevant part, it “specified that the Lamberts were ‘to add attached carpet with padding to’ certain areas of” their unit. Plaintiffs eventually approved a carpet and pad the Lamberts proposed, but later learned that the carpet and pad “would not be affixed to the floor using staples, adhesive, or any similar way of securing it to the floor. Plaintiffs moved to enforce the parties’ agreement, contending that the Lamberts’ installation method was in violation of the requirement that the carpet be ‘attached.’” The court noted that the agreement did “not specify any particular manner of ‘attachment,’ nor does it state that it must be so permanent that the carpet cannot be removed for any reason whatsoever.” In addition, it was clear that, at least as to “the area rugs, mechanical anchoring is not appropriate and might not meaningfully increase the difficulty of its removal. Furthermore, the evidence indicated that a rubber pad would cause carpet to ‘stick’ to the floor, rendering it immobile in at least two dimensions.” The court concluded that while “the word ‘attached’ seems clear, it is manifestly apparent that as applied, there is some latent ambiguity.” Thus, it agreed with the trial court “that the use of rubber padding as an ‘attachment’ does fasten, join, or connect the carpets in at least two dimensions, which under the circumstances is consistent with the use of the word in the agreement, the goals the agreement was intended to serve, and the evidence introduced at the evidentiary hearing.”
Sufficiency of the evidence; Second-degree murder; MCL 750.317; People v Fletcher; Malice; People v Mayhew; Great weight of the evidence; Self-defense; Killing without justification; Prosecution’s failure to provide defendant with the trial exhibits pursuant to MCR 7.210(C); Ineffective assistance of counsel; Whether counsel should have moved to disqualify the trial judge; Failure to admit evidence; Failure to maintain the trial exhibits; Advising him to waive his right to a jury trial
The court held that the trial court in the bench trial could properly conclude that defendant acted with malice and committed second-degree murder. Also, the prosecution presented sufficient evidence to rebut his theory of self-defense, which lacked any evidentiary support. Thus, the trial court’s finding that he did not act in self-defense was not against the great weight of the evidence. He also failed to assert any error that may be contained in any of the trial exhibits he was not provided, and he was not denied the effective assistance of counsel. Defendant first argued that the prosecution presented insufficient evidence to prove that he acted with malice when he killed the victim. The evidence established that after the mother of defendant’s child, A, “slapped the unarmed victim, he started to walk away from her when defendant drew his gun and lethally shot the victim in the back. The prosecution also presented evidence that established that” after he shot the victim, he fled the scene, threw away his gun, and lied to a detective about his and A’s involvement in the shooting. This evidence allowed the trial court to properly find “beyond a reasonable doubt that defendant acted with malice and committed second-degree murder.” Defendant also argued that his conviction “was against the great weight of the evidence because ‘there was no proof’ that he acted with malice.” But the evidence showed that he “had a handgun that he used to shoot and kill the victim. Defendant admitted during his trial testimony that he shot the victim with a nine-millimeter handgun.” Bystanders testified that they saw him shoot the unarmed victim when he walked away from A. Defendant failed to establish the existence of any plain error. He argued next that the prosecution presented insufficient evidence to disprove his self-defense theory. But the evidence did not support any justification for his conduct. “Shooting an unarmed person in the back while retreating lacks justification.” Affirmed.
Sufficiency of the evidence for a felony-firearm conviction; MCL 750.227b; People v Avant; Possession; “Firearm”; MCL 8.3t; Use of a toy gun; People v Schofield; People v Brooks
“Presuming that a toy gun would not suffice for purposes of establishing the crime of felony-firearm,” the court held that the victims’ consistent descriptions of the firearm, which they identified as a semiautomatic handgun, together with video surveillance footage, was sufficient to support defendant’s felony-firearm convictions. He was also convicted of armed robbery in each of these consolidated cases. He argued that the evidence was insufficient to support his felony-firearm convictions “because the object used during the commission of the armed robberies could have been a toy gun and there was no testimony at trial that the object used was in fact a real firearm.” However, the court noted that neither victim testified “that the weapon used against them was a toy.” Victim-C testified that it “was a semiautomatic handgun” and victim-N, who testified he was somewhat familiar with guns, “described the weapon as a black and silver semiautomatic handgun. The home surveillance video from the [C] robbery revealed a silver and blue object in the defendant’s possession. Thus, there was direct evidence that the object was in fact a gun.” Although there was no definitive proof the object was a gun because it was not recovered, a rational fact-finder could conclude from the victims’ testimony and the video evidence that the essential elements of felony-firearm were established. Affirmed.
Ineffective assistance of counsel; Stating in closing argument that an arson had occurred; Failing to object to remarks by the trial judge; Sentencing; Scoring of OV 1
Holding that defendant was not denied the effective assistance of counsel and the trial court did not err in assessing 5 points for OV 1, the court affirmed. He was convicted of second-degree arson, preparation to commit arson, and felony-firearm. He was sentenced to concurrent prison terms of 5 to 20 years for second-degree arson, 17 months to 10 years for preparation to commit arson, and a consecutive 2-year term for felony-firearm. Defendant argued that defense counsel provided ineffective assistance by admitting in closing argument that defendant was guilty of arson. The record reflected that “counsel expressly argued that defendant did not commit arson, consistent with the defense strategy of claiming that” someone else actually set the fire. Defendant’s claim that counsel admitted his guilt to the arson was not supported by the record. Thus, his claim lacked merit. Counsel’s performance did not fall below an objective standard of reasonableness and the court found no errors apparent on the record. Defendant also argued that counsel provided ineffective assistance by “failing to object to a remark by the trial court. The trial court’s comment did not advocate for a party or improperly influence the jury because the remark did not indicate advocacy or partiality and it was made to the attorneys at a side-bar conference outside of the hearing of the jury. The trial court did not offer an opinion about defendant’s guilt.” Thus, his claim that counsel should have objected lacked merit.
Voluntariness of statements made to police; Mincey v Arizona; People v Cipriano; Sentencing; People v Lockridge; Reasonableness & proportionality; People v Dixon-Bey; Requirement that the trial court provide reasoning for a departure sentence; People v Steanhouse; Consecutive sentencing for CSC I convictions; MCL 750.520b(3); People v Norfleet
Holding that defendant’s confession was voluntarily made, the court affirmed her five CSC convictions. However, it remanded for the trial court to either articulate its rationale for imposing consecutive sentences or to resentence her. Her convictions arose out of her involvement in acts of sexual abuse that her husband committed against their three-year-old daughter. On appeal, the court rejected her argument that the trial court improperly admitted statements she made during her interview with the detectives because, “under the totality of the circumstances, her statements were involuntary.” Considering the “totality of the circumstances surrounding her interview, and the statements she made during the interview,” the court held that her statements to the detectives were voluntarily made. However, it agreed with defendant, and the prosecution conceded, that the trial court abused its discretion by imposing a departure sentence and consecutive sentences. “The trial court here gave no explanation for why it imposed consecutive sentences, which precludes this [c]ourt from reviewing whether consecutive sentencing was proper.”
Sufficiency of the evidence; CSC I under MCL 750.520b(1)(a) & CSC II under MCL 750.520c(1)(a); Denial of second request for substitute counsel; People v McFall; Ineffective assistance of counsel; Failure to inform defendant that the trial court was held to the same standard of impartiality as a jury; Failure to request that the trial court recuse itself
Holding that there was sufficient evidence to support defendant’s bench trial convictions for CSC I and II, that the trial court did not abuse its discretion in denying his second request for substitute counsel, and that he was not denied the effective assistance of counsel, the court affirmed. He claimed that the abuse could not have occurred as the victim claimed because they never lived in the same household. But the victim testified that he lived with her family at the A Avenue residence (defendant’s mother’s home) and on E Street. Her mother corroborated this. Although the mother was unsure about “dates, she testified that her family lived with defendant’s mother both with defendant and without defendant. Moreover, the detective testified that officers responded to defendant’s address on” A Avenue for a domestic violence dispute involving the victim’s mother in 2009. Defendant’s parole paperwork showed that he lived on E Street in 2010. His “mother contradicted some of this testimony. She stated that defendant lived with her when he was released from prison and that the victim’s family did not move into her home until after defendant was back in prison. The trial court did not find this testimony credible.” Thus, there was sufficient testimony to support the claim that defendant abused the victim while they were living together on A Street and E Street. “The parties stipulated to the dates in which defendant was incarcerated. As a result, the abuse was required to have occurred” in a 14-month period. “Although the victim was unsure of the exact dates on which the incidences occurred, the evidence showed that it was possible that defendant abused the victim at his mother’s home and at a residence on” E Street in 2009 and 2010. Defendant also argued that “the victim alleged that the abuse occurred over a five-year period, which was impossible considering the dates that defendant was incarcerated.” But the court did not “believe that the victim’s agreement with a statement made by a police officer during an interview negates her trial testimony regarding events that occurred almost 10 years prior when she was approximately 9 or 10 years old.” Finally, defendant contended that the fact that the victim did not disclose any abuse to medical staff when she went to the hospital in 2010, showed that the abuse did not occur. However, her “failing to disclose abuse and the attending medical staff’s failure to discover" it was not dispositive.
Sentencing; Effect of a within-guidelines sentence; MCL 769.34(10); People v Posey; People v Odom; Unusual circumstances; Lack of a criminal history & defendant’s age; Articulation requirement; Express reliance on the guidelines; People v Conley
Holding that defendant failed to show unusual circumstances rendering his within-guidelines sentences disproportionate, and that the trial court satisfied the articulation requirement in the court’s remand order, the court affirmed his sentences of 225 months to 55 years for his CSC I convictions. The trial court originally sentenced him to 25 to 55 years for the counts at issue, without justifying the upward departure from the guidelines range of 135 to 225 months. The court previously affirmed his convictions but vacated his sentences on these counts and remanded for resentencing. On remand, the trial court sentenced him within the guidelines range. He argued that these sentences were unreasonable and disproportionate. However, the court noted that a within-guidelines sentence is presumed proportionate and it is only required to review departure sentences for reasonableness. To overcome the presumption of proportionality, a defendant must establish unusual circumstances. Defendant asserted that his minimum sentences were “not proportionate because the trial court failed to consider that he did not have a significant criminal history, was 66 years old at the time of resentencing, and” he had a good record while incarcerated. But his criminal history was taken into account “in the scoring of the guidelines, and in any event, a lack of criminal history is not an unusual circumstance sufficient to overcome the presumption of proportionality.” His age was also insufficient to do so, and his prison record was likewise not an unusual circumstance. As to his claim that the trial court did not articulate reasons for the sentences imposed on remand, the obligation for a trial court “to articulate its reasons for imposing a sentence is satisfied when the trial court expressly relies on the sentencing guidelines in imposing the sentence.” Further, the trial court in resentencing him “explained why it believed that the original 25-year minimum sentences were appropriate before ultimately sentencing defendant within the guidelines range.”
Jury instructions on the lesser-included offenses of voluntary & involuntary manslaughter; People v Mendoza; People v Roper; People v Holtschlag; Prosecutorial misconduct; Judicial misconduct; People v Stevens; The trial court’s discretion to control proceedings; People v Conley; Sentencing; Scoring of OV 5; Psychological injury; MCL 777.35(1)(a); People v Calloway; Resentencing; People v Francisco
The court held that the trial court did not err in instructing the jury, and neither the prosecution nor the judge committed error. However, it agreed with the prosecution that remand for resentencing was required. Defendant was convicted of voluntary manslaughter and felony-firearm for shooting and killing his son (H) during a physical confrontation. The trial court sentenced him to 19 months to 15 years for the former, and a consecutive 2-year term for the latter. The court rejected his argument that the trial court erred by instructing the jury on voluntary manslaughter. “A rational view of this evidence supported a finding that defendant was provoked by [H’s] act of striking [him] in the face, which caused [him] to react by discharging his firearm at [H] in the heat of passion. The trial court’s decision to instruct the jury on voluntary manslaughter did not fall outside the range of reasonable and principled outcomes.” As to the denial of his request for an instruction on the lesser offense of involuntary manslaughter, no “rational juror could conclude that defendant’s conduct of intentionally shooting his firearm at [H], who was running away, could be characterized as only an act of gross negligence, committed without malice.” The court next rejected his contention that the prosecution erred by arguing there was evidence of adequate provocation to support voluntary manslaughter, but then arguing at sentencing that there was not adequate provocation. The prosecution argued that “defendant’s intent was consistent with second-degree murder, rather than voluntary manslaughter, an argument the trial court correctly rejected in deference to the jury’s verdict.” Further, he did not explain how an argument about an OV “made before the trial court at sentencing could have affected the jury’s verdict at trial, even if that argument could be described as inconsistent.” It further rejected his claim that the trial court “pierced the veil of impartiality when, instead of simply ruling on the prosecutor’s objections to defense counsel’s closing arguments, the trial court ‘took it upon himself to extensively chastise defense counsel,’ thereby calling defense counsel’s character into question and demonstrating juridical bias in favor of the prosecutor.” It found that the trial court “appropriately exercised its discretion to control the trial to prevent improper arguments and to move the trial along.” Finally, the court agreed with the prosecution that the trial court erred by finding no evidence to support a 15-point score for OV 5. Affirmed in part, vacated in part, and remanded.
Motion to modify spousal support; Change of circumstances (COC); Loutts v Loutts; Gates v Gates; Laffin v Laffin
The court held that the evidence indisputably established new facts and a COC when comparing the facts and circumstances as they existed at the time of divorce to the facts and circumstances as they existed when plaintiff-ex-husband “moved to modify his spousal support obligation. The threshold having been satisfied, [the] trial court must now determine an amount of spousal support that is fair and equitable under the circumstances.” Thus, it reversed the trial court’s order denying his motion to modify spousal support, and remanded. Plaintiff argued that the trial court abused its discretion when it held that no COC “had occurred and denied his motion for modification of spousal support on the sole basis of its determination that plaintiff knew that his businesses were failing when the divorce judgment was entered.” The trial court held that, “at the time of the divorce, plaintiff had known that his companies were financially unstable and would have to be liquidated. Nevertheless, the trial court viewed as dispositive plaintiff’s concession that he knew at the time of the divorce that he would have to invoke the modification provision at some point before defendant reached age 62. The trial court indicated that having this belief and still signing the divorce judgment bordered on fraud on plaintiff’s part. This accusation was not deserved or appropriate.” The record reflected that defendant-ex-wife “was also aware of the financial difficulties of the businesses at the time of mediation, yet she agreed to the inclusion of a modification provision” as to spousal support. Moreover, the divorce judgment precluded a finding of a COC “on the basis of plaintiff’s receiving a future inheritance, but there was no comparable provision in regard to the potential demise of plaintiff’s businesses even though both parties were aware of that possibility. Plaintiff’s belief that the modification provision would have to be employed at some point in the future did not eliminate his ability to rely on it once a” COC actually occurred. Also, the fact was that “the companies had not yet been dissolved when the divorce judgment was entered; consequently, their subsequent dissolution was indeed a new fact and constituted a change of circumstances. Furthermore, the trial court should have considered whether plaintiff’s financial situation deteriorated beyond the extent that he expected when he signed the divorce judgment.”
Medical malpractice; Emergency motion to adjourn based on the unavailability of a witness; MCR 2.503(C) & (D)(1); Expert testimony; Kalaj v Khan
The court held that the trial court abused its discretion by denying plaintiff’s emergency motion to adjourn based on the sudden unavailability of her expert witness. Plaintiff’s mother sued defendants for a serious shoulder injury plaintiff suffered during birth. A few days before trial, plaintiff filed a motion to adjourn when plaintiff’s expert informed plaintiff’s attorney that his employer would not allow him to testify at trial. The trial court denied plaintiff’s motion and granted defendants’ motion to dismiss. On appeal, the court agreed with plaintiff that the trial court abused its discretion by denying her emergency motion to adjourn trial. “While the trial court’s frustrations with plaintiff’s prior failures to act diligently with conducting discovery in this case are understandable and warranted, [the expert’s] sudden unavailability was of no fault of plaintiff, and to deny plaintiff’s timely motion to adjourn on this basis would result in prejudice to plaintiff and falls outside the range of reasonable and principled outcomes.” As such, the trial court also erred by granting summary disposition for defendants. It “should have granted plaintiff a reasonable, yet finite, amount of time to find a new expert witness and expeditiously dispose that witness. If plaintiff were to be unable to find a new expert witness, or failed to conduct limited discovery in a timely manner, then the trial court could explore options such as sanctions against plaintiff, costs and attorney fee awards in favor of defendants, or a renewed motion for summary disposition. To have done so at this junction, however, was premature.” Reversed, vacated, and remanded.
Premises liability; Trip & fall due to a parking lot pothole; Whether the condition was “open & obvious”; Lugo v Ameritech Corp, Inc; Hoffner v Lanctoe; “Special aspects”
Holding that the condition causing plaintiff’s fall, whether it was the pothole in the parking lot or an exposed rebar in the pothole, was open and obvious, and that the condition was not unreasonably dangerous, the court affirmed summary disposition for defendants in this premises liability case. It noted that the Supreme Court held in Lugo that a pothole is generally an open and obvious condition. While plaintiff asserted that the exposed rebar was the condition that caused her fall, the court concluded that the evidence “clearly established that an average person with ordinary intelligence would have discovered both the pothole and the exposed rebar in the pothole upon casual inspection.” Thus, the trial court properly ruled that the condition causing her fall was open and obvious. As to plaintiff’s argument that the condition was not open and obvious because she did not see it until after she fell, the Supreme Court addressed this “in Lugo and held that a condition is open and obvious even if a plaintiff ‘fail[s] to notice it.’” Plaintiff further contended that, even if the condition was open and obvious, defendants still had a duty to warn her because “the location of the pothole with the exposed rebar—'in a busy thoroughfare with cars driving about’—made the condition unreasonably dangerous.” However, the Supreme Court also rejected this argument in Lugo, concluding that “there is certainly nothing ‘unusual’ about vehicles being driven in a parking lot, and, accordingly, this is not a factor that removes this case from the open and obvious danger doctrine.” The court found that Lugo was directly on point.