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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Sufficiency of the evidence; First-degree premeditated murder; MCL 750.316; Premeditation & deliberation; People v Oros; First-degree felony murder; MCL 750.316(1)(b); First-degree home invasion; “Dwelling”; MCL 750.110a(1)(a); “Without permission”; MCL 750.110a(1)(c)
Holding that there was sufficient evidence to support defendant’s convictions of first-degree premeditated and felony murder, the court affirmed. The jury had more than sufficient evidence upon which it could draw the reasonable inference that he acted with premeditation and deliberation. His relationship with the victim (his wife) provided evidence that her killing was premediated. The evidence “indicated that right before defendant left the first time, he saw the victim on the couch cuddling with” N and kissing his hand. Also, N “confirmed that he was on the couch with the victim and that the victim had her legs over him.” This occurred after months of conflict between the victim and defendant, with defendant accusing the victim of cheating. He testified that he was “heartbroken when he saw them that close together on the couch.” He also testified that he “felt [his] life was coming, falling apart.’” He then started walking back toward his truck when he realized he “could either confront them in the home or go home, and he did not feel like going home.” Also, his actions before the murder indicated he acted with premeditation and deliberation. The evidence showed that when he entered the home, he first targeted and shot N and then fired his gun a second time. This meant that sometime after he shot N, “because he was using a single-shot .410 shotgun, he manually reloaded the shotgun and manually cocked the hammer. During that time, [he] had time to take a ‘second look.’” The record also indicated that “the gun fired a second time while defendant and the victim struggled with the gun, so during that time, [he] once again had time to take a ‘second look.’” Also, because he “fired his gun a third and final time killing the victim, the record indicates [he] had to stop to manually reload the shotgun and manually cock the hammer after it fired the second time.” During that time, he again was able to take a second look. Further, his “actions after the murder provided the jury with evidence that the killing was premediated because he tried to conceal what he did after he shot the victim. Defendant testified that after he shot the victim, he fled the scene. He did not contact the police. He did not attempt to help the victim. He returned to his home where he attempted to kill himself and burn down his home.”
Sufficiency of the evidence; First-degree murder (felony murder) & first-degree child abuse; MCL 750.316(1)(b); MCL 750.136b(2); Whether defendant caused the fatal act; People v Maynor; MCL 750.136b(1)(f); Specific intent for first-degree child abuse; Corpus delecti argument; Credibility
The court held that there was sufficient evidence to conclude that defendant caused the fatal act. Also, his conduct evidenced the requisite specific intent as to the child abuse charge. Thus, the court affirmed his convictions of first-degree murder (felony murder) and first-degree child abuse. The case arose from the death of a two-year-old child, L. Defendant argued that he was entitled to a new trial because there was insufficient evidence to support his convictions. The court was satisfied that the evidence established that he committed the charged acts and that they caused L’s death. Medical testimony showed that when L “was brought to the hospital, her body was riddled with injuries, from bruises and bone fractures to bleeding and damaged internal organs. These injuries" qualified as serious physical harm, as defined in MCL 750.136b(1)(f). Further, Dr. C explained how L’s “head injury would have caused her to go unconscious almost immediately.” Dr. C and Dr. B both explained that L’s “most severe injury was the head injury, which ultimately lead to cardiac arrest and her cause of death. Finally, both medical experts testified that these injuries were consistent with blunt force trauma.” In fact, L’s injuries were consistent with “punching or slamming.” Defendant admitted to pushing and hitting L, which was consistent with the medical testimony. Defendant was the last person with L while she was still conscious. Not only did L “become unconscious while left alone with defendant, but defendant admitted that she went unconscious after he pushed her.” While L’s mother, S “was gone, neighbors heard the child scream, and when [S] returned, defendant was holding the nonresponsive child. The jury heard defendant’s admission that he caused [L] to go unconscious, along with the medical testimony stating that the fatal injury rendered her unconscious.” Affirmed.
Timeliness of appeal; Fed.R.App.P. 4(b)(1)(A); United States v. Gaytan-Garza; Whether the government could withdraw its opposition to the appeal; Sua sponte dismissal of late appeals; Deloatch v. Sessoms-Deloatch; United States v. Mitchell (10th Cir.); Whether the district court had jurisdiction to grant a defendant leave to file a late notice of appeal; United States v. Carman; Sentencing; Four-level leader enhancement under USSG § 3B1.1(a); Procedural waiver; United States v. Hall (Unpub. 6th Cir.); “Career offender” status under § 4B1.1
The court held that the government was free to withdraw its opposition to defendant-Jackson’s appeal where Rule 4(b) is simply a claims-processing rule, and the government withdrew its opposition before an order was entered. It also found that he waived his sentencing challenges, and that defendant-Combs was properly sentenced as a career offender. Defendants pled guilty to participating in a cocaine distribution ring. Both challenged their sentences on appeal. Jackson’s appeal was untimely. He claimed his attorney failed to file it. The district court ruled that a letter he sent to that court would be considered his request for leave to appeal, and that his second letter would constitute the filing of an appeal. The government did not oppose that first letter but did oppose the second. It later dropped its opposition. The court considered whether it could withdraw its opposition, and held that it could where “Rule 4(b) is merely a claims-processing rule” and the government withdrew its opposition before an order was entered. However, the court noted that it retained the power to sua sponte dismiss an untimely appeal “if the appeal ‘implicates the important judicial interests of finality of convictions and efficient administration of claim processing.’” It concluded that, while in some circumstances the six-month delay in Jackson’s appeal “might be considered enough to warrant dismissal, if it implicated important judicial interests[,]” those concerns did not exist here. But the court vacated the district court’s grant of leave to file a late notice of appeal (based on the first letter) where jurisdiction had already been transferred to the court based on the second letter. As to Jackson’s challenge to his four-level leader enhancement, his attorney acknowledged the validity of the enhancement in district court, which constituted a procedural waiver. The court noted that even if the claim had been preserved, there was ample evidence that the enhancement was appropriate. As for Combs, it held that his prior Kentucky drug-trafficking offense qualified as a “controlled substance offense.” Affirmed.
The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq); MCL 15.362; Prima facie case of retaliatory termination; Causation; Effect of a temporal relationship standing alone; Burden-shifting framework in cases involving circumstantial evidence; Whether plaintiff presented direct evidence of retaliatory motive; Pretext; Collective bargaining agreement (CBA)
The court concluded that plaintiff did not present direct evidence of causation, that defendant-county offered evidence that the real reason for her discharge was nonretaliatory, and that she failed to show this was merely a pretext. Thus, the court affirmed summary disposition for defendant on her WPA claim. The only issue was whether there was a causal connection between her protected activity and her discharge. The court first found that her purported direct evidence of retaliatory motive was not “direct evidence of causation.” Rather, the statement on which she relied only reflected the county Board of Commissioners’ dissatisfaction with her “performance of her supervisory responsibilities.” As to circumstantial evidence, the court agreed with defendant that she did not show “anything more than a temporal connection between several different events.” That is insufficient by itself to establish a causal connection. But assuming her theory was sufficient to permit an inference of such a connection, shifting the burden to defendant to offer evidence of a nonretaliatory true reason for her discharge, her termination letter included four reasons. “The testimony of several individuals, including plaintiff’s own testimony, supports a conclusion that the events identified within the first three reasons for termination indeed occurred and caused the Board displeasure with plaintiff’s mishandling of the events.” Thus, the burden shifted back to her to show pretext. The court held that she failed to do so. Rather, the record supported defendant’s contention that her actions in “posting and hiring an individual to fill the Appraiser II position were not in conformance with the governing CBA.” In addition, the court found that “by hiring an individual who was not fully qualified at the time of hire, and paying that hired individual a wage that was higher than what he was eligible for, plaintiff caused defendant to incur unnecessary costs. That defendant later corrected the hired individual’s wage does not eliminate the initial additional expenses.” It was also undisputed that a class-action grievance resulted, which the Board had to resolve. “Given these circumstances,” she had to show that a reasonable fact-finder could still find that her “protected activity was a ‘motivating factor’ for” her discharge. She did not do so.
Medical malpractice; The discovery rule limitations period; MCL 600.5838a(2); “Should have discovered”; Solowy v Oakwood Hosp Corp; Jendrusina v Mishra; Sufficiency of a notice of intent (NOI); MCL 600.2912b(4); Amendment of errors or defects; MCL 600.2301; Bush v Shabahang; Whether an ostensible agency relationship existed between a doctor & hospital; Chapa v St Mary’s Hosp of Saginaw; Dismissal with or without prejudice; Freedom Medical Clinic, PC (FMC); St. Mary Mercy Hospital (SMMH); Statute of limitations (SOL)
Concluding that plaintiffs should have learned of the potential cause of action against defendants-Daitch and FMC over 6 months before the 12/16 NOI, the court affirmed summary disposition for Daitch, FMC, and defendant-SMMH as to vicarious liability for Daitch based on the expiration of the SOL. Also, plaintiffs’ first NOI did not place SMMH on notice of a vicarious liability claim against it based on Daitch’s actions, and correction under MCL 600.2301 was unavailable because they failed to “at least make a good-faith effort to comply with MCL 600.2912b(4) as to” Daitch in that NOI. Further, there was no evidence to support an ostensible agency claim against SMMH based on defendant-Tahir’s conduct. Finally, summary disposition with prejudice was proper. As to Daitch and FMH, the court considered “the totality of the information available to plaintiffs before the expiration of the” SOL, and concluded that they had reason to know about the contents of [plaintiff-]Colleen’s medical records and the potential claim over a year and a half before” its expiration. While a letter from one of their attorneys to Daitch was based “on liability due to ‘improper dosages of chemotherapy,’ rather than thiamine therapy, there is no question that plaintiffs had time to conduct additional discovery to investigate the details of this claim. During this discovery, plaintiffs should have discovered the merits of any other theories. Even if plaintiffs did not have complete records, the six-month period begins when a plaintiff becomes aware of a potential claim, not when the plaintiff has accumulated sufficient medical documentation to prove it.” As to the sufficiency of the first NOI, it set “forth nothing as to” Daitch even though his involvement in the case was clear from the medical records, and the court agreed with SMMH that nothing prevented “plaintiffs from asserting claims against Dr. Daitch with the particularity required by MCL 600.2912b within the first NOI.” As to the applicability of MCL 600.2301, the first NOI was “not defective due to a scrivener’s error, or accidentally omitting one component of the required content.” None of MCL 600.2912b(4)’s content requirements were present as to Daitch. All of the trial court’s challenged orders were affirmed.
First party no-fault action; Due diligence in trying to locate a higher priority insurer before filing a claim with the Michigan Assigned Claims Plan (MACP); MCL 500.3172(1); The MACP assigned insurer as the insurer of last priority; Distinguishing Spencer v Citizens Ins Co
Concluding that Spencer was distinguishable, the court held that a higher-priority insurer was readily identifiable when plaintiff-estate’s decedent, Miller, filed his claim with the MACP and thus, defendant-Nationwide, the insurer assigned the claim by the MACP, was properly granted summary disposition. Miller was riding a bicycle when he was allegedly struck by a car driven by nonparty-D. Miller did not have a no-fault policy, or live in a household with someone who did. Defendant-Allstate insured D’s car. Miller later applied for PIP benefits through the MACP. He sued both insurers, alleging they failed or unreasonably refused to pay his claim. On appeal, plaintiff challenged the grant of summary disposition for Nationwide, arguing that “Miller exercised due diligence in attempting to locate a higher-priority insurer before submitting his claim to the MACP, but no such insurer could be identified.” The court disagreed, finding that documents presented by Nationwide in the trial court indicated that coverage applicable to his injury was available. “Allstate’s answers to Nationwide’s request for admissions” revealed that at the time of the accident, a no-fault policy covering D “and the vehicle she was driving was in effect, and that it was not subsequently rescinded.” Miller testified in a deposition “that he exchanged information with [D] at the scene and wrote down her license plate number.” He gave this information to the police, and later obtained a copy of the incident report. Thus, “within weeks of the accident Miller had detailed information including [D’s] full name, her address, telephone number, driver’s license number, and the year, make, model, color, license plate number, and VIN number of her car.” Nationwide’s evidence indicated that she told Miller she was insured and gave him the insurer’s name “well before he filed his application with the MACP. At the very least, he possessed substantial information that he could have used to identify her insurer.” While plaintiff relied on Spencer, “Nationwide neither refused to pay nor paid any no-fault benefits to plaintiff; Nationwide was still at its initial investigatory stage when it discovered that Allstate was the higher-priority insurer. Additionally, unlike in Spencer, Miller immediately learned who struck him.” Affirmed.
Collateral estoppel; King v Munro; The Summary Proceedings Act (MCL 600.5701 et seq); MCL 600.5750; Principle that claims for recovery of possession of property do not require joinder of all other claims; JAM Corp v AARO Disposal, Inc
Holding that the trial court correctly ruled that the prior district court summary possession proceedings had no collateral estoppel effect on plaintiffs’ trespass claims, the court rejected defendant-Angela DeVrou’s argument that the claim was barred by collateral estoppel. Thus, it affirmed the order granting plaintiffs partial summary disposition. During their divorce, Angela and defendant-Sean DeVrou decided to sell the marital home. Plaintiffs entered into a buy-sell agreement with Sean after entry of the divorce judgment. When Angela initially refused to sign a needed quit claim deed, plaintiffs filed this action for specific performance and quiet title. Angela signed the deed after receiving a settlement payment from Sean, but asserted that she was entitled to stay in the house for 21 more days. Plaintiffs began a summary eviction proceeding in district court against her. After a delay in that proceeding, she moved out and the district court entered a judgment of no cause of action. Plaintiffs learned she “had removed a number of fixtures and other items from the house that allegedly should have been left.” They then added trespass and conversion claims against Angela in this case. She argued that the no cause of action judgment barred their trespass claim under the collateral estoppel doctrine. The court noted that she “unilaterally precluded the summary possession claim from even being justiciable, and allegedly she intentionally delayed the proceedings to ensure that the claim would be moot. Under the circumstances, . . . there cannot have been a true ‘final judgment’ in the district court matter for purposes of collateral estoppel. However, even if the district court entered a true final judgment, the summary proceedings did not address the trespass issue.” The only purpose of those proceedings was to determine whether plaintiffs “had a present right to recover possession of the property. That would not have addressed whether Angela had been trespassing at the commencement of the instant proceeding, or whether any such trespass caused” them damages. Pursuant to MCL 600.5750 and JAM, “a final judgment in a summary proceeding has no res judicata or collateral estoppel effect on any other claims.”
Destruction of trees by a drain commissioner in performing maintenance work; Whether trees were within the drain maintenance easement; Release interpretation; “And” & “also”; The preceding grant; “Include” & “survey”; “Each” & “side”
On remand from the Supreme Court, the court again affirmed summary disposition for defendant-county drain commissioner, expressly reaffirming and readopting its prior opinion, while providing a clarifying analysis. A double row of trees along a portion of plaintiff’s property were destroyed during maintenance work defendant performed on a drainage ditch along the edge of the property. In its prior opinion, the court “held that (1) the drain commissioner was only empowered to remove trees within an easement granted to Sanilac County for purposes of maintaining the drain; (2) both rows of trees were within that easement; (3) the drain commissioner did not commit an uncompensated taking despite plaintiff’s claimed damage to his property; (4) the drain commissioner did not engage in abusive or selective enforcement of his powers; and (5) plaintiff had not actually entered into a contract with the drain commissioner, so the drain commissioner could not have” committed a breach of contract. The Supreme Court vacated that opinion and remanded for reconsideration of the court’s determination “that both rows of plaintiff’s trees—as opposed to one row that was undisputed—was within the drain maintenance easement.” It directed the court to answer five specific questions in doing so. The court began by reviewing the language of the 1929 releases, noting that “both unambiguously provide for ‘a strip of land 50 feet wide on each side of a line.’” Reviewing the meaning of “and” as well as “also,” it determined that “the only sensible understanding of the release language is that the clause ‘sufficient ground on either side of the center line of said drain for the construction thereof and for the deposit of the excavations therefrom’ was demarked as a separate grant in addition to a preceding grant.” It then identified the preceding grant, using dictionaries from the time to determine the meaning of the words include, survey, each, and side. The court concluded “that the releases granted a conveyance consisting of two parts: (1) a 100 foot wide strip centered over the center-line of the drain itself, with the addition of (2) something beyond those 100 feet, the width of which is not specifically defined but rather guided by the need for such additional land for construction purposes.”