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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Sufficiency of the evidence for FIP & felony-firearm convictions; Possession; People v Johnson; Parker v Renico (6th Cir); Error in the information; MCL 767.76; Harmless error review; MCR 6.112(G); Prejudice; People v Waclawski; Denial of motion for a mistrial; Testimony about prison photos of defendant; Effect of a stipulation as to the FIP charge; People v McDonald; Correction of the judgment of sentence (JOS)
The court held that there was sufficient evidence of possession to support defendant’s FIP and felony-firearm convictions. Further, he was not entitled to have his convictions vacated based on an alleged error in the felony information, and the trial court did not abuse its discretion in denying his motion for a mistrial due to a brief statement about prison photos of him. As to his sufficiency of the evidence challenge, the court concluded that, under Johnson, viewed “in a light most favorable to the prosecution, a rational jury could find that defendant had constructive possession of, at a minimum, the Draco found in the basement bedroom. The Draco was found in the room where [he] frequently stayed, under a board atop the bed platform.” A witness (R) testified that she purchased that gun “and brought it into the house that same day, and that she placed it on top of what she termed the ‘wooden platform’ in the basement bedroom.” But another witness (H) testified that R waited outside the “house that afternoon, but did not go inside. And” the court noted that, contrary to R’s statement about where she placed the Draco, it “was recovered underneath” the platform. Based on this record, a jury could credit H’s “testimony and conclude that it was defendant who brought the Draco into the house and placed it underneath the bed frame. Or it could” choose to credit R’s testimony “and conclude that defendant had moved the Draco and placed it under the board. On these facts, sufficient evidence was presented by the prosecution to enable a rational jury to conclude defendant had at least some indicia of control over the Draco.” Further, there was sufficient circumstantial evidence for the jury to infer that he knew of another gun’s location in the house “and had reasonable access to it.” All that was needed to support his FIP conviction was sufficient evidence that he “possessed a gun, not every gun.” As to his motion for a mistrial, the statement about the prison photos was unresponsive, “undetailed, and gave no indication as to why defendant had previously been incarcerated.” The court added that “any prejudice was mitigated because defendant stipulated to having previously been convicted of a felony.” He did not show any “prejudice from the challenged testimony[.]” Affirmed bur remanded for correction of the JOS as to his sentence.
Ineffective assistance of counsel; Alibi notice; MCL 768.20(1); People v Pickens; Hearsay; MRE 802; People v Smith; Other-acts evidence; Disclosure; MCL 768.27b; People v Wisniewski; Prior consistent statement; MRE 801(d)(1)(B); People v Jones; Character evidence; MRE 404(a)(1); People v Roper
The court held that defendant was not denied the effective assistance of counsel and affirmed his CSC III conviction. Defendant was convicted of CSC III after the victim testified that she woke up in her dorm room to him pulling down her pants, that he pinned her legs, pushed her down, shushed her, and said “it will be over soon,” and that he penetrated her while pinning her wrist above her head. The record also included testimony that he later told a friend that he had taken advantage of her while she was asleep. On appeal, the court held that counsel performed deficiently by failing to file an alibi notice despite intending to present school records and testimony from defendant’s mother, and it found “no conceivable strategic reason to omit filing the statutorily required notice.” It nonetheless ruled that defendant failed to show prejudice because the proposed alibi proof did not cover the full range of possible dates and, despite the trial court’s ruling, “the jury ultimately heard the contested alibi testimony” from defendant’s mother. The court next concluded that even if counsel should have objected to hearsay about the victim’s PTSD and other diagnoses, the error did not undermine confidence in the verdict given the “isolated and limited nature” of the testimony and the corroborating proofs, including defendant’s admission to a friend. It also determined that testimony about prior domestic-violence acts was admissible where the prosecution’s disclosures provided notice and the evidence explained why the victim said she did not fight back because “I was scared,” making it probative and “not outweighed by unfair prejudice.” The court further held that the roommate’s account of what the victim disclosed qualified as a prior consistent statement offered to rebut the defense theory that she fabricated the allegation as a “woman scorned.” It found no reasonable probability of a different outcome from counsel’s failure to object to the roommate’s brief comment that defendant was “slightly angry,” and it rejected challenges to similar testimony from the interviewing detective because any objection would have been futile.
New trial based on newly discovered evidence; People v Cress; Whether the evidence made a different result probable on retrial; Distinguishing People v Rogers
The court rejected the prosecution’s claim that “the trial court erred by granting a new trial because the newly discovered evidence did not make a different outcome probable on retrial.” Defendant-Milstead was convicted of seven counts of CSC I involving the minor daughter of his then-girlfriend. The parties did “not dispute that the first three Cress factors are satisfied.” Thus, the pertinent question was “whether the consideration of complainant’s recanting statements to Dr. [S, a psychiatrist] and her stepmother, complainant’s purportedly false contentions regarding the sexual incidents at school, complainant’s journal entries, and the contents of complainant’s The Right Door medical and mental health records, would make a different result more probable on retrial.” Unlike Rogers, in this “case, to date, there is no direct evidence that complainant retracted her allegations that she was sexually penetrated by Milstead.” The court found that “when evaluated under the fourth Cress factor—whether the newly discovered evidence would likely produce a different result on retrial—the trial court did not abuse its discretion in concluding that this standard was satisfied. Although complainant provided extensive testimony at trial describing the alleged sexual abuse, there were no other eyewitness to the assaults, and the physical evidence was inconclusive. As a result, Milstead’s convictions rested largely on complainant’s credibility.” The court concluded that ultimately, “because the case turned almost entirely on complainant’s credibility, the trial court reasonably concluded that the newly discovered evidence, if presented at retrial, would likely produce a different result, thereby satisfying the fourth Cress factor.” The trial “court properly determined that the recording depicting the pressure complainant’s stepmother placed on complainant to assert that the sexual abuse occurred—considered alongside complainant’s recanting statements to multiple individuals that the underlying assaults did not transpire, and her concerning journal entries—could lead to a different outcome on retrial.” Thus, the court found that “the trial court did not abuse its discretion in granting” the motion for a new trial. Affirmed.
Motion for plea withdrawal; Whether the plea was understanding, voluntary, & accurate; Whether the correct legal standard was applied; People v Wilhite; MCR 6.310(B); Whether there was a fair & just reason to withdraw the plea
Concluding that the trial court’s rulings on defendant-Phillips’s motions to withdraw his plea were not “outside the range of reasonable and principled outcomes, or based on an error of law[,]” the court affirmed. He was convicted of meth possession, meth delivery/manufacture, and operating a motor vehicle with a suspended or revoked license. He unsuccessfully sought to withdraw his plea before and after sentencing. He argued on appeal that “his plea was not understanding, voluntary, and accurate” because he was unaware of the guidelines range for the delivery/manufacture offense, “there were factual issues underlying the convictions he desired to address, and” he did not have adequate “time and resources to address his cases with counsel.” The court disagreed. The trial “court properly delineated the potential sentences accompanying the offenses, and it consistently inquired whether Phillips understood the penalties accompanying the guilty plea. [It] further detailed the benefits of entering the guilty plea[.]” The court noted that at no point “did Phillips indicate that he did not desire to proceed with the plea, or that he was otherwise conflicted regarding its terms. Further, considering [his] extensive legal history, it was less likely that he unaware of the potential implications of pleading guilty.” In addition, the trial court detailed the factual basis and elements of each offense during the plea hearing, and Phillips affirmed them. It also adjourned the hearing to allow him “and his attorney to discuss the plea agreement” and he responded positively when it asked if he had “sufficient time to discuss” the matter with counsel. As to his claim the incorrect legal standard was applied, the court found that “because the trial court reconsidered Phillips’s motion under the appropriate legal standard, . . . its ultimate ruling was not based on an error of law. Further, the trial court did not abuse its discretion in ruling that Phillips neglected to establish a fair and just reason to withdraw his plea.”
Rescission ab initio; Common-law fraud; Howard v LM Gen Ins Co; Material misrepresentation; Premium-rate impact; Odde v Jackson Nat’l Life Ins Co of MI; Equitable rescission; Wright factors; Pioneer State Mut Ins Co v Wright; Innocent third party; Equity balancing; Bazzi v Sentinel Ins Co; Michigan Assigned Claims Plan (MACP)
The court held that cross-defendant (AAA) validly rescinded the policy at issue based on material misrepresentations and that the balance of equities favored rescission. Defendant’s granddaughter was injured in a crash while driving his insured vehicle, AAA rescinded the policy as void back to 7/1/19, and the MACP assigned the claim to plaintiff-insurer, which paid PIP benefits and sued defendant for subrogation. On appeal, the court held that an insurer may rescind ab initio for a “material misrepresentation” if it proves common-law fraud, and it concluded AAA met that burden through documentary evidence showing the vehicle was regularly driven and garaged in Detroit and that other covered vehicles were garaged and owned inconsistently with the information used to rate the policy, including underwriting testimony that accurate disclosures would have increased premiums and affected eligibility. It further found defendant failed to create a fact issue because his affidavit was conclusory and did not address key rescission grounds, and “a self-serving affidavit containing only conclusory allegations is generally insufficient to establish a genuine issue of material fact.” Turning to equity, the court emphasized rescission is not automatic, noting “rescission does not function by automatic operation of the law” and the trial court must “balance the equites” when an innocent third party may be affected. Applying the Wright factors, it treated one factor as neutral, found one weighed against rescission, and concluded the remaining factors favored rescission, including that the injured claimant still obtained benefits through the assigned-claims process and enforcement would primarily relieve defendant of personal liability. Affirmed.
Beach of a purchase agreement; Real party in interest
Concluding that the trial court erred by holding that plaintiff-Tectara was not the real party in interest in this case alleging breach of a real property purchase agreement, the court reversed and remanded. The court held that Tectara is the real party in interest, “notwithstanding that the funds Tectara paid to [defendant-]Smith may have been derived from fraudulent conduct and may ultimately be determined to belong to and be properly payable to a nonparty (rather than Tectara). The trial court erred by deciding otherwise.” Smith argued that a nonparty (B), “rather than Tectara, was the source of the funds paid to Smith. Regardless of the source of the funds, however, Tectara was the party to the purchase agreement, and it therefore was the real party in interest. Moreover, although [B] repeatedly asserted his Fifth Amendment rights during his deposition, he did testify that” another individual (S) “was Tectara’s attorney, that Tectara had a bank account on [1/20/21], and that [S] ‘had money there to pay Angela Smith $250,000.’” Although Smith asserted that B “refused to answer more detailed questions about the origin of the funds wired to Smith by [S], [B’s] answers, viewed in the light most favorable to the nonmoving party, establish a genuine issue of material fact on this issue, particularly when considered along with Smith’s email acknowledging the wire transfer and stating that it was ‘towards the purchase’ of the property described in the purchase agreement.” Also, Smith’s claim that Tectara could not “establish an entitlement to damages fails for similar reasons.” The court appreciated “the trial court’s quandary in adjudicating a claim for breach of contract in which Tectara seeks to recover funds that may have been fraudulently obtained while [B] (who signed the purchase agreement for Tectara) refused to answer questions that could have clarified matters.” However, it had to “conclude that the trial court erred by holding that Tectara was not the real party in interest, and that it accordingly erred by granting Smith’s motion for summary disposition on those grounds.”
Request for a variance; The self-created hardship rule; Johnson v Robinson Twp; Detroit v Detroit Bd of Zoning Appeals; MCL 125.3606(1)(c); Ordinance 131,000 square feet lot size requirement; Equal protection; Zoning Board of Appeals (the ZBA)
The court concluded that Johnson controlled and thus, “the circuit court properly denied appellants’ appeal.” It also found that “the required square footage for a single-family dwelling in [their] agriculturally zoned district was properly determined to be 131,000 square feet.” Further, to the extent they directed its “attention to a circuit court decision commenting on appellee’s unequal enforcement of its zoning ordinance more than 30 years ago,” it was unpersuaded that decision supported their equal protection claim. Finally, because they offered no evidence showing “disparate treatment, or refuting” a ZBA member’s statements, they “failed to establish that the ZBA deprived them of their right to equal protection.” Thus, the court affirmed the order affirming appellee-Glen Arbor Township’s ZBA’s denial of appellants’ request for a variance. Appellants argued, among other things, “that the circuit court erred by finding that the self-created hardship rule was controlling.” There was no evidence to support their claim that their predecessor in interest, F, divided the property before the 1975 ordinance was enacted. The evidence that both parties submitted established that four couples, including appellants, purchased the subdivided lots from F “in 1977. The deeds were recorded in 1978 and appeared for the first time on the tax rolls in 1979. Accordingly, the ZBA’s finding that the hardship was created after the ordinance was enacted was ‘supported by competent, material, and substantial on the record.’” Despite appellants’ claims that Johnson did “not apply due to the cases’ factual differences, the requests for a variance in Johnson and in the instant case are nearly identical. Both parties requested a variance to build on lots that did not conform with the ordinance because of size. Both parties owned lots that were previously conforming, but their predecessors in title changed the size of the lots, rendering them nonconforming. Although appellants draw a distinction based on the familial connection in Johnson, this Court stated in Detroit, that ‘a zoning board must deny a variance on the basis of the self-created hardship rule when a landowner or predecessor in title partitions, subdivides or somehow physically alters the land after the enactment of the applicable zoning ordinance, so as to render it unfit for the uses for which it is zoned,’ indicating that a familial relationship was not required.”
Premises liability; Injuries from an electrical shock; Duty; Res ipsa loquitur
The court held that “the trial court did not err by concluding that there was no material factual dispute concerning whether there was an unreasonable risk of harm caused by a dangerous condition on the premises and thus defendant did not owe a duty to plaintiff.” Also, res ipsa loquitur did not apply to plaintiff’s claim. The parties presumed “that plaintiff was an invitee as a purported tenant and thus defendant owed plaintiff a duty ‘to exercise reasonable care to protect [him] from an unreasonable risk of harm caused by a dangerous condition of the land.’” Plaintiff alleged “that defendant created a dangerous condition by leaving the RV plugged into the home’s electrical system during the windstorm while the RV was parked near the location where an energized power line had previously fallen.” But the parties’ “experts testified that connection of the RV to the home electrical system was safe. And neither expert took issue with the location where the RV was parked. Although both experts agreed that the extension cords were the pathway that brought the electricity into the house, they both opined that the voltage would not have passed through the cords if the power line had not come down.” Thus, the “issue whether defendant owed plaintiff a duty rests upon whether plaintiff’s injury was reasonably foreseeable.” The court found that plaintiff “failed to show that the RV’s connection to the home’s electrical system constituted an unreasonably dangerous condition that posed an unreasonable risk of harm to plaintiff and thus defendant did not owe a duty to plaintiff.” It also found “no merit in plaintiff’s argument that MCR 2.116(G)(3) required defendant to support his motion for summary disposition with an affidavit.” Further, the doctrine of res ipsa loquitur was not applicable to plaintiff’s claim. He had “not presented any evidence to establish that defendant was negligent. Plaintiff must produce some evidence of wrongdoing beyond the mere happening of the event. There was no evidence that the extension cord was negligently used or that the RV was negligently parked.”
Motion to terminate an ex parte nondomestic relationship PPO; Initial grant of the PPO; MCL 600.2950a(1); Stalking (MCL 750.411h); Aggravated stalking (MCL 750.411i); Online stalking (MCL 750.411s); Unconsented contact; Hayford v Hayford; Due process; Meaningful opportunity to be heard on the motion to terminate; Cross-examination; HMM v JS
The court held that the trial court did not abuse its discretion in granting the ex parte nondomestic relationship PPO at issue. As to respondent’s motion to terminate the PPO, it held that while “the trial court erred by omitting cross-examination of the parties, respondent” failed to show this error affected the outcome. Thus, it affirmed the order denying his motion. As to the initial issuance of the PPO, petitioner detailed in her petition “that after she declined respondent’s repeated and unsolicited offers to perform home repairs or deliver meals, respondent continued to contact petitioner at her place of employment, appeared at her residence without invitation, monitored her social media activity, and criticized her online content and personal presentation. [She] asserted that, due to the escalating nature of respondent’s communications and his refusal to discontinue contact despite her requests,” she emailed him “outlining her concerns and informing him of her intent to block further communications. [She] further contended that respondent replied to her email in a manner she found cruel and frightening, disregarding her express concerns.” She also cited an incident where she delayed leaving her home after seeing him walk past “approximately five times; when she eventually left to walk her dog, respondent followed her, prompting petitioner to flee and seek assistance from a neighbor.” The court found that her petition set “forth allegations of numerous impermissible acts that constitute stalking with the meaning of MCL 750.411h and” 750.411i. As to the denial of the motion to terminate the PPO, only the parties testified at the hearing, neither was cross-examined, and counsel for neither party “expressly requested the right to cross-examination.” The court found that respondent did “not sufficiently demonstrate on appeal how cross-examination of petitioner would have altered the outcome of the proceedings, as the unwanted communications forming the basis of the PPO were essentially undisputed, regardless of [his] reasons for contacting” her. It distinguished this case from HMM, concluding it was unable to find “that absence of the cross-examination significantly curtailed respondent’s liberty interests, was inconsistent with substantial justice, or seriously undermined the fairness, integrity, and public reputation of the PPO proceeding.”
Conservatorship of a protected person; Breach of fiduciary duty; MCL 700.5416; Damages; Highfield Beach at Lake MI v Sanderson; Hearsay; Probate court investigatory report; MRE 803(6); Motion for reconsideration; Shenandoah Ridge Condo Ass’n v Bodary
The court held that plaintiff failed to produce substantively admissible evidence creating a genuine issue of material fact that defendant-conservator’s alleged breaches as conservator caused damages to the estate. Plaintiff alleged defendant breached fiduciary duties by failing to inventory the decedent’s coin and precious-metals collection and by selling it at an inadequate price. The trial court granted defendant summary disposition and later denied reconsideration. On appeal, the court held that even assuming a breach, plaintiff still had to prove damages and could not survive summary disposition on speculation, emphasizing that damages are “an essential element” of the claim and that summary disposition is proper when the nonmoving party fails to produce evidence of an essential element. It also held that plaintiff’s value proofs were inadequate because the decedent’s handwritten list was “inadmissible hearsay” and, in any event, reflected only what the decedent “believed his property was worth,” while the personal representative’s Internet research was unsupported and not shown to be admissible or expert-based. The court further rejected reliance on the probate court investigator’s report, reasoning plaintiff did not properly preserve or develop a business-records argument and, critically, did not satisfy the foundational requirements for MRE 803(6). It noted plaintiff offered no custodian testimony or certification and further, the trial court considered the report but found it was “‘unavailing in creating any genuine factual issues for trial.’” It also agreed the unnotarized affidavit was “cursory and unsupported,” and deposition testimony conceded there was no evidence defendant converted coins for personal use, leaving plaintiff without admissible proofs that any alleged inventory failures or sale decisions caused loss. Affirmed.
Due process; In re Rood; Service of process; MCL 712A.13; In re Lovitt; Summons requirement; MCR 3.920(B)(2)(b); Friend of the Court (FOC)
The court held that respondent-mother was denied due process because the DHHS did not comply with statutory service requirements, so the trial court lacked personal jurisdiction and the termination order was void. The child was placed under successive guardianships with relatives, and petitioners later sought termination to allow adoption after the mother had no contact with the child and did not comply with the guardianship plan. The mother could not be located, so the trial court permitted alternate service by publication “contemporaneously with” efforts to locate her, and then proceeded with a combined adjudication and termination hearing in her absence after publication ran. On appeal, the court held that due process requires notice “‘reasonably calculated’” to apprise a parent of the action and an opportunity to be heard, and it ruled that alternate service cannot be ordered unless the trial court first determines reasonable efforts were made to locate the parent. It found the record showed only that counsel had contacted a process server and that the trial court “checked a box” stating service was impracticable without a factual basis. The court concluded the trial court “put the cart before the horse” by authorizing publication before reasonable efforts were completed. It emphasized that merely contacting a process server “without more, is not a reasonable effort,” and the record lacked evidence of follow-up steps such as contacting known relatives, the FOC, incarceration facilities, shelters, or treatment centers. The court concluded the failure to comply with the statutory requirements was a “jurisdictional defect” rendering the proceedings void, so it vacated the termination order and remanded.