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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
View Text Opinion Full PDF Opinion
Dog bite; MCL 287.351; Implied license to approach a house; Kelsey v Lint; People v Frederick; “Provocation”; Brans v Extrom
Concluding a genuine issue of material fact existed as to “whether plaintiff was a licensee when she was bitten by defendant’s dog,” the court held that the trial court erred in deciding the issue as a matter of law. It also held that there was a genuine issue of material fact as to whether plaintiff provoked the dog. Thus, it reversed summary disposition for defendant and remanded. The parties are neighbors. The court concluded a reasonable juror could determine “that, when the evidence is viewed in the light most favorable to plaintiff, her conduct could be viewed as akin to that of a solicitor who sees someone outside in front of a house and stops to talk to them. Plaintiff, while driving by defendant’s house, saw [him] in his garage, so she pulled into his driveway intending to ask him a question. When [she] parked, she saw that [he] had already gone into his backyard, so (by plaintiff’s telling) she went to the front of her car and—standing in defendant’s driveway—yelled ‘hello’ to try to get [his] attention. While one could reasonably view this conduct as intrusive, we think that, considering the conduct in the light most favorable to plaintiff, there is a genuine issue of material fact whether [she] exceeded the scope of the implied license to approach a house and try to make contact with its occupants (which is typically achieved by approaching the front door and knocking).” The court clarified that it was “not concluding that, if the jury believes plaintiff’s version of events, then it must conclude that she was a licensee. To the contrary, even if a jury credits [her] testimony, it could still conclude that she exceeded the scope of ‘the implied license to approach a house.’” Rather, it held “that a jury could reasonably conclude the opposite as well.” Next, it noted that, for “an act to constitute provocation, ‘there must be some action directed toward the animal or, if not, the animal’s response must be proportional to the victim’s action.’” Viewing the evidence in the light most favorable to plaintiff, her shout to defendant got the attention of his dog, which approached her from the “backyard. When the dog got close, plaintiff talked to the dog and stuck out the back of her hand for the dog to sniff. The dog then bit [her]. On these facts, jurors could reasonably conclude that plaintiff’s actions did not amount to provocation.”
Breach of contract; MCL 440.9610 (requirement that the sale of secured assets be “commercially reasonable”); Waiver of a lack of personal jurisdiction defense
In this breach-of-contract dispute, the court affirmed the trial court’s order granting plaintiff-TIR Capital’s motion for summary disposition under MCR 2.116(C)(10). Defendants highlighted two arguments that defendant-Merer “raised in his ‘motion to dismiss’ that defendants believe provided a basis for denying plaintiff relief.” As an initial matter, “assuming without deciding that defendants are correct and that the trial court erred by not treating Merer’s ’motion to dismiss’ as a response to plaintiff’s motion for summary disposition,” the court concluded that the error was harmless. Defendants alleged that plaintiff’s disposition of defendant-Hush Entertainment’s collateral was not commercially reasonable as required by MCL 440.9610 “because plaintiff conducted a private sale in which plaintiff sold Hush Entertainment’s assets ‘to himself.’ But Merer failed to provide any evidence to support the factual assertion that plaintiff sold the secured assets ‘to himself.’” Thus, Merer “failed to place plaintiff’s compliance with MCL 440.9610 ‘in issue,’ so plaintiff was not required to prove that it complied with the UCC in the sale of Hush Entertainment’s secured assets, . . . and its ‘failure’ to do so did not trigger the provisions of MCL 440.9626(c). Accordingly, any error that the trial court made by not considering Merer’s argument related to the UCC was harmless.” Second, defendants reiterated “the argument Merer made in his ‘motion to dismiss’ that the trial court lacked personal jurisdiction over” him. The court noted that “Merer’s first responsive pleading in this case was his answer to plaintiff’s complaint. That answer had a separate and distinct heading labeled ‘affirmative defenses,’ but under that heading, Merer never listed lack of personal jurisdiction as an affirmative defense. Accordingly, applying the court rules as written, that defense was waived.” The court held that because “Merer waived lack of personal jurisdiction as a defense, the trial court’s failure to consider Merer’s lack-of personal-jurisdiction argument before granting plaintiff’s motion for summary disposition was harmless.”
Plea validity; Facial challenge to the constitutionality of the FIP statute (MCL 750.224f) & CCW statute (MCL 750.227(2)); People v Hughes; People v Langston; New York State Rifle & Pistol Ass’n, Inc v Bruen; Unpreserved constitutional error claim; Plain error review
Noting that defendant’s challenge to the constitutionality of MCL 750.224f was considered and rejected in Hughes, and that his similar challenge to MCL 750.227(2) was rejected in Langston, the court affirmed his convictions. He was convicted of FIP, FIP of ammunition, and CCW after shooting and killing someone in self-defense. As an initial matter, the court rejected his assertion that his unpreserved error claims should be reviewed de novo. He “did not object to the constitutionality of either statute before this appeal.” The court reviews an unpreserved claim of constitutional error “for plain error affecting substantial rights.” Most of his argument as to MCL 750.224 centered on the federal FIP statute and federal court cases interpreting it. He did “not cite any binding authority to support his argument and” ignored Michigan case law that has “already determined that MCL 750.224f is constitutional.” The court noted that in Hughes, it “held that ‘MCL 750.224f’s restrictions are consistent with the Nation’s historical precedent of regulating firearm possession by persons convicted of felonies, and defendant’s facial challenge regarding the constitutionality of the felon-in-possession statute fails.’” Hughes is binding precedent. The court found that defendant “abandoned his challenge to his CCW conviction because he failed to cite any authority to support an argument that statutes banning the carrying of a concealed weapon are unconstitutional under Bruen’s historical tradition framework.” In any event, the court “rejected the same argument in Langston,” which was binding precedent.
Ineffective assistance of counsel related to a jury trial waiver & preparing defendant for trial; Sufficiency of the evidence for possession with intent to deliver less than 50 grams of fentanyl, possession with intent to deliver meth, & felony-firearm; Constructive possession; People v Wolfe; Judgment of sentence (JOS)
Agreeing with the trial court that defendant did not establish that his trial attorney’s (S) representation was objectively unreasonable, the court concluded the trial court properly denied his motion for a new trial. The court also held that there was sufficient evidence of his constructive possession of the drugs and firearms to support his convictions. He was convicted of possession with intent to deliver meth and less than 50 grams of fentanyl, and felony-firearm. His ineffective assistance of counsel claims were rooted in the fact that S “did not know that [he] read at a third-grade level. Defendant contends that this was significant because, without this knowledge, [S] could not have made ‘special efforts to ensure’ that [he] understood the things that [S] discussed with him.” The court found that this claim suffered “from a glaring problem—it conflates defendant’s ability to read with his ability to comprehend concepts that are explained to him. While [he] testified that he had difficulty reading, he never testified that he had problems with comprehension in general. Nor is there any evidence suggesting that [his] struggles with reading were rooted in an intellectual disability that required a special accommodation like having things to be explained to him in simple terms.” And nothing in the record suggested he “ever communicated to [S] that he did not understand what it meant to waive his right to a jury trial or that he was unsure what he was giving up by doing so. Given this, it is unclear how [S] was supposed to know about defendant’s purported lack of understanding. This is especially true considering [S’s] testimony at the Ginther hearing that there was ‘[n]o question’ in his mind that, following his conversations with [him], defendant understood the difference between a bench trial and a jury trial when he decided to waive his right to a jury trial.” The court also found that it was reasonable for the trial court to infer from the evidence that defendant lived at the house, or at least resided there sometimes in the “only bedroom. And given the large amount of controlled substances and the number of firearms” discovered scattered around the “house—including in plain view on a table alongside packaging material—it was reasonable” to infer that the person residing in the “bedroom knew of the items in the house and exercised control over them.” Affirmed but remanded for correction of the JOS.
Divorce; Supervised parenting time; MCL 722.27(1)(b); MCL 722.27a; MCL 722.27a(8); Discovery sanction; Judgment of divorce (JOD)
The court affirmed the JOD entered by the trial court insofar as it granted defendant-ex-husband supervised parenting time with the two children. Also, the trial court did not err by preventing him from cross-examining plaintiff-ex-wife’s witnesses at trial. He argued that the trial court erred by “granting him parenting time without specifying the days and times for the parenting time.” The court disagreed. The trial court properly granted his “parenting time in general terms under MCL 722.27(1)(b), when it ordered supervised parenting time at the agency and defendant failed to request parenting time in specific terms as required under MCL 722.27a(8).” He incorrectly argued “that the parenting time provision in the [JOD] must be reversed because it failed to specify the days and times for his parenting time. Under MCL 722.27(1)(b), the circuit court may ‘[p]rovide for reasonable parenting time of the child by the parties involved . . . by general or specific terms and conditions.’ MCL 722.27(1)(b) then states that parenting time of a child by the parents is governed by MCL 722.27a.” Under MCL 722.27a(8), “‘[p]arenting time shall be granted in specific terms if requested by either party at any time.’ Read together, the statutes’ plain and ordinary meanings clearly establish that the trial court may grant a party parenting time in general or specific terms. However, if a parent requests parenting time in specific terms, the trial court must grant parenting time accordingly.” The court noted that “the trial court granted defendant parenting time in general terms by allowing him supervised parenting time at the agency without specifying the days and times for such visitation. Defendant never asked the trial court to specify the days and times for such visits as is required under MCL 722.27a(8). Therefore, because MCL 722.27(1)(b) clearly allowed the trial court to grant defendant parenting time in general terms, there was nothing improper with the parenting time provision in the” JOD.
Redacted information; Mootness; Attorney fees & punitive damages; In camera review; Receipt of requested records without a court order compelling disclosure; Attorney General (AG)
In the main appeal, the court affirmed “the Court of Claims’ decision not to award attorney fees, costs, and punitive damages, as well as [its] decisions not to permit plaintiff to depose” an assistant AG “and not to conduct an in camera review of the records designated as exempt from production.” In the cross-appeal, it reversed “the portion of the Court of Claims’ order holding that defendant was required to disclose unredacted (apart from Social Security information) versions of the trial exhibits to plaintiff.” In defendant’s cross-appeal, the court found that “the Court of Claims erred by ordering the exhibits disclosed in unredacted form solely because they had been used at a trial. The Court of Claims faulted defendant for failing to seek a protective order or to redact information during the criminal trial, and it reasoned that defendant’s failure to do so ‘prevents an argument that disclosure of these same public records, in response to a FOIA request, constitutes an unwarranted invasion of any individual’s privacy.’ But ‘[t]he disclosure of information of a personal nature into the public sphere in certain instances does not automatically remove the protection of the privacy exemption and subject the information to disclosure in every other circumstance.’” The court held that the “fact that plaintiff arguably could obtain the unredacted information by reviewing the public records of the criminal proceeding does not relieve defendant of its obligation to redact personal information under MCL 15.243(1)(a).” In the main appeal, plaintiff argued “that the Court of Claims erred by holding that he did not prevail in full regarding either of his FOIA requests, and that he accordingly was entitled to attorney fees and costs.” He also argued that it “erred by holding that defendant did not act arbitrarily and capriciously when it withheld information from disclosure, and” as a result, he was entitled to punitive damages. Lastly, he argued “that the Court of Claims erred by not allowing him to depose [an assistant AG] and by declining to review the records responsive to his second FOIA request in camera.” The court disagreed in all respects. As to attorney fees and costs, “plaintiff should not have prevailed to the extent that he did regarding his first FOIA request.” Thus, he was “not entitled to attorney fees and costs for having fully prevailed on either of his FOIA claims[.]” The court also found “that the Court of Claims did not abuse its discretion by not awarding proportionate attorney fees and costs.” In addition, “defendant articulated sufficient reasons for any delay or denial of disclosure, and the Court of Claims accordingly did not err (much less clearly err) by declining to find that defendant acted arbitrarily and capriciously, and by declining to award punitive damages.” Finally, the court found no abuse of discretion in the Court of Claims’ decision not to conduct an in camera review.
Fraud in procurement; Titan Ins Co v Hyten; Material misrepresentation; Oade v Jackson Nat’l Life Ins Co of MI; Rescission; Equity balancing; Webb v Progressive Marathon Ins Co
The court held that defendant-insurer established common-law fraud in the procurement and was entitled to rescind plaintiff’s policy without any equity balancing, so summary disposition was proper. Plaintiff applied for a policy on 1/9/24 and represented that she was the only household member age 14 or older and that neither she nor any rated household member had a license suspension within the past three years. She then sought first-party no-fault benefits after a 1/18/24 crash. Defendant later discovered plaintiff had a suspension from 3/27/19 to 6/3/21, and plaintiff testified she lived with her fiancé, whose driving record also reflected a suspension within three years. On appeal, the court held that the misrepresentations were material. A misrepresentation is material if the insurer would not have issued the policy or would have charged a higher premium, and defendant’s underwriter averred it would not have issued the policy had plaintiff answered accurately. The court next held that the knowledge element was satisfied because procurement fraud is proven if the insured either knew the statement was false or made it “recklessly, without any knowledge of its truth,” and the record supported recklessness where plaintiff signed the declarations page requesting issuance “in reliance on these statements” despite later admitting a household member existed and despite the suspension history. The court noted that “the law requires [a driver] to know [their] driving status[.]” The court also found no genuine issue that plaintiff intended reliance and that defendant relied. The application itself stated plaintiff sought issuance “in reliance on these statements,” and the underwriter affidavit established reliance in issuing coverage. Finally, the court held the trial court was not required to balance equities because plaintiff was not an innocent third party and, once fraud in procurement was established, the insurer is “‘entitled to rescind coverage’” and “’the trial court need not engage in any balancing of the equities[.]’” Affirmed.
Termination under §§ 19b(3)(c)(i) & (j); In re Sanborn; Child’s best interests; In re Atchley; Reasonable reunification efforts; In re Hicks/Brown; Due process; In re Walters
The court held that §§ (c)(i) and (j) were met, termination served the child’s best interests, and the DHHS made reasonable reunification efforts. The DHHS removed the child after she disclosed sexual abuse by respondent-mother’s boyfriend, placed her briefly with respondent-father, and then removed her after learning the father’s CSC III conviction involved sexual abuse of young foster sisters and after the child disclosed being locked in a room and “whoop[ed].” On appeal, the court held that § (c)(i) was satisfied because the father showed no “meaningful change in the conditions” driving jurisdiction, including stopping counseling after four sessions, reengaging only after termination was sought, failing to complete safety planning until late, and continuing to be alone with children despite the safety-plan premise. It also held that § (j) was proven because the record showed a “reasonable likelihood” of emotional harm if the child returned, highlighted by “angry outbursts,” becoming “physically aggressive” after visits, and improvement once parenting time was suspended. The court next found that termination served the child’s best interests because she needed permanency and “a clear, stable, and nurturing environment,” was doing well in a preadoptive placement, and adoption provided “finality” that a guardianship could not. It also held that the DHHS made reasonable efforts and did not deny due process, emphasizing the father’s “commensurate responsibility . . . to participate,” while acknowledging the travel-funding problem was “very troubling” and a “close call,” and warning that “[a]ny harm” from an inability to afford visits would be “laid squarely at the feet of the DHHS.” Affirmed.
Termination under §§ (a)(i), (g), & (j); Reasonable reunification efforts; In re Hicks/Brown; Exceptions to reasonable efforts; MCL 712A.19a(2); In re Walters; Prior sibling terminations; MCL 712A.19a(2)(c); In re Atchley; Aggravated circumstances; In re Barber/Espinoza; “Abuse”; MCL 722.622(g); In re Simonetta
The court held that the trial court erred by terminating parental rights at the initial disposition without first finding that an exception to reasonable reunification efforts applied, so it vacated the termination order and remanded. The trial court authorized a petition seeking termination at initial disposition after respondent-mother was “noncompliant with every aspect of her case service plan,” was homeless, left the newborn with the maternal grandmother, and had no contact with the child thereafter. On appeal, the court held that “[g]enerally, ‘[the DHHS] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights,’” and that “MCL 712A.19a(2) contains an exclusive list of the exceptions” and “[u]nder no circumstances may a trial court terminate a parent’s rights without first finding that one of these exceptions applies.” It concluded the trial court’s apparent reliance on MCL 712A.19a(2)(c) was legally and factually unsupported because “it is undisputed that respondent’s parental rights to her other children had not been terminated at the time her rights to [the child] were terminated,” so the finding of “four previous terminations” was erroneous. The court also held the record could not support excusing services under MCL 712A.19a(2)(a) because the trial court “never made any findings of abuse,” and under MCL 722.638(1)(a) aggravated circumstances require abuse that “included” one of the listed circumstances such as “(i) Abandonment of a young child.” It emphasized that “child abuse perpetrated by a listed individual is not independently sufficient” and “must also have ‘included’ certain circumstances,” and here the trial court did not find that leaving the child with the maternal grandmother constituted “abuse including abandonment,” nor did it make “a factual finding based on clear and convincing evidence that aggravated circumstances exist.” The court therefore vacated and remanded for the trial court to “either order that the petitioner provide reasonable services to the respondent, or articulate a factual finding based on clear and convincing evidence that aggravated circumstances exist such that services are not required.”