Robert J. Adams Helen Joan Brish Julie A. Cohen Margaret Erdeen Davis Judith Bach Dixon Michael L. Dobra Matthew Scott Essenburg John E. Gates Jr. Stephen A. Gatto Stephanie T. Goecke Clyde C. Goodwin Jr. William J. Hassett John R. Hayes Robert L. Hindelang Joseph J. Jerkins Donald L. Johnson David A. King Suzanne Marie Krohn John R. Marquis Michael E. Mccarty Donna Mckneelen William P. O’leary Cameron H. Piggott Margaret L. Pittman John G. Posa Nancy M. Rade Edmund J. Sikorski Jr. Anne L. Sruba Robert D. Stalker Mary Wickens Clayton E. Wittman
Robert S. Bick Andrew T. Blum Butzel Cloie Y. Chidiac Nancy Samir-Haddad Derleth Debra A. Geroux Charlie Goode Brandon J. Hayes Ingham County Bar Association Courtney A. Lavender Bushra A. Malik MDTC James J. Murray Courtney L. Nichols Shanika A. Owens Reginald A. Pacis Erin Pawlowski Adomas N. Rauckis Richard Warren
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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The court held that the defendant-bank’s failure to bring a debt collection action as a counterclaim to the plaintiffs-Baumans’ prior FDCPA lawsuit did not waive its ability to sue for foreclosure in the future. The defendants prevailed in the FDCPA case, and the plaintiffs brought the current case, seeking to bar the defendants from bringing a future foreclosure action, and to quiet title. Even though the court had not “squarely addressed whether a counterclaim to collect the underlying debt is compulsory in a FDCPA action,” it looked to cases holding that “a counterclaim on the underlying debt” in a TILA action “is permissive rather than compulsory.” A “counterclaim on the underlying debt is not logically related to a TILA claim.” The plaintiffs could not establish that the foreclosure action was a compulsory counterclaim to the FDCPA action because they could not “show that the two claims ‘arise’ out of the same transaction or occurrence.” Their FDCPA claim involved different issues of law from a foreclosure action, and the fact issues of their FDCPA claims and a foreclosure action were not “‘largely the same.’” The court concluded that “the same policy reasons that compelled” it to “find that a counterclaim on the underlying debt in a TILA action is permissive support a similar holding here.” Finally, while the plaintiffs argued that the district court analyzed their complaint under an impermissible legal standard, the documents they provided to the district court created “an adequate basis to determine that the issues of fact and law presented in the FDCPA action are not ‘largely the same’ as those required to support a foreclosure claim.” The court affirmed the district court’s decision granting the defendants’ motion to dismiss.
Action to set aside a settlement agreement; Enforceability of an agreement to settle a pending lawsuit; MCR 2.507(G); Walbridge Aldinger Co. v. Walcon Corp.; Michigan Mut. Ins. Co. v. Indiana Ins. Co.; The essential elements of a valid contract; Hess v. Cannon Twp.; Kloian v. Domino’s Pizza, LLC; Stanton v. Dachille; Failure to preserve an issue; Walters v. Nadell
The court held that the trial court did not err by enforcing the settlement agreement between the appellants (Barbara and Patricia) and their brothers, the appellees (Robert and James), dismissing all pending objections and the petition, and closing the decedent’s (their mother) estate. The parties entered into the settlement agreement in order to resolve various claims surrounding decedent’s estate. On appeal, the court rejected appellants’ argument that the trial court erred in finding that a settlement agreement existed when it did not contain all material elements to resolve the case. They contended the agreement lacked mutual assent. It noted there was “nothing ambiguous about how the valuation of” an investment company was to be calculated, “nothing confusing” about the value of stock or distribution of the decedent’s personal property, and appellants released their claims as to medical and other expenses. Finally, it held that “any issue regarding fees associated with decedent’s timeshare was not preserved” for appeal and, in any event, “a review of the record shows that counsel for” appellants “stated that in receiving the timeshare in Nassau, ‘Any fees or expenses incurred in the transfer are the responsibility of'" appellants. Affirmed.
The court held that the defendants-eye doctor and practice (Sherrod) were entitled to a new trial as to damages, but that the trial court did not err by awarding attorney fees and expenses to the plaintiffs-eye doctor and practice (Sherman). It also held that the trial court erred by granting an additional $25,000 in case evaluation sanctions to third-party plaintiff-Garden City Hospital. Finally, it held that the trial court did not err in its order as to Sherrod’s Trust, or in holding Sherrod in contempt. Sherman sued Sherrod alleging a variety of claims including breach of contract. Sherrod counterclaimed alleging breach of contract and seeking an accounting, and filed a third-party complaint alleging that the hospital violated the WPA. The trial court granted summary disposition for both Sherman and the hospital, and granted them sanctions. In a prior appeal, the court found that the trial court properly granted summary disposition for the hospital, and for Sherman as to Sherrod’s counterclaims, but remanded as to Sherman’s breach of contract claim. On remand, a jury found for Sherman. The trial court later held Sherrod in contempt. On appeal, the court agreed that Sherrod was entitled to a new trial due to the trial court’s erroneous ruling that the court’s prior opinion limited the trial to the amount of damages only and precluded Sherrod from litigating the question of the causal relationship between the breach of contract and Sherman’s damages. “[T]he amount of damages attributable to the breach required testimony and evidence to establish that plaintiffs recovered only those damages as could be said to have directly, naturally, and proximately flowed from defendants’ breach.” The trial court “erred in ruling otherwise and in limiting the trial to a presentation of numbers only, without allowing testimony and evidence to support or discredit that the numbers were caused by defendants’ breach.” However, the court rejected Sherrod’s argument that the trial court erred by awarding attorney fees and expenses, noting that it “properly determined that the plain language of the indemnification clause applied,” and that Sherrod failed to identify anything that entitled her to an evidentiary hearing on the issue. The court also found that the trial court erred in granting additional case evaluation sanctions to the hospital, which “incurred no additional trial-related or trial oriented fees after its original award of case evaluation sanctions.” Affirmed in part, reversed in part, and remanded.
The court held that the trial court did not abuse its discretion in admitting the victim’s (AF) statement to her mother (SF) as an excited utterance, and did not deny the defendant his due process rights by denying his motion for a directed verdict on the CSC I charges. His ineffective assistance of counsel claims also failed. Thus, it affirmed his CSC I conviction. AF was his 11-year-old stepdaughter at the time of the crime. The court concluded that “AF waking up to discover that defendant had sexually abused her and that SF discovered the abuse was a startling event.” Further, “AF made the statement while still under the excitement caused by the startling event. SF testified that just before AF’s statement, AF was crying and seemed ‘disoriented’ and ‘shaky.’ SF’s testimony about AF’s demeanor and the two minutes that had passed between when SF walked into the bedroom and when AF made the statement” showed that AF “made the statement while still overwhelmed by the stress caused by the event.” Nothing in the record suggested that “AF had an opportunity for conscious reflection during the short interval between the event and her statement, such that AF was no longer overwhelmed, or had the capacity to fabricate her statement. Similarly, the statement was clearly related to the circumstances of the startling occasion.” As to the motion for a directed verdict, because “the prosecutor presented sufficient evidence of both essential elements that could have persuaded a rational trier of fact to conclude beyond a reasonable doubt that defendant committed the crime, his motion for a directed verdict was properly denied.” Further, there was “sufficient circumstantial evidence of his age for a rational trier of fact to conclude beyond a reasonable doubt that he was 17 years of age or older” for purposes of the mandatory 25-year minimum enhancement in MCL 750.520b(2)(b). Finally, defense counsel’s failure to investigate AF’s therapy records and to retain an expert “on the effect of repeated and suggestive questioning on children and the subsequent impact on the child’s credibility did not fall below an objective standard” of reasonableness.
“Other acts” evidence; MRE 404(b); People v. Katt; People v. VanderVliet; Relevance; People v. Knox; People v. Sabin (After Remand); MRE 403; Effect of the fact this was a bench trial; People v. Lanzo Constr. Co.; Applicability of MRE 404(b)(1) to “the admissibility of evidence of other acts of any person”; People v. Rockwell; The “doctrine of chances”; People v. Mardlin; Sufficiency of the evidence to support defendant-Johnson’s arson of an insured dwelling & second-degree arson convictions; MCL 750.76; MCL 750.73; “Willfully and maliciously” defined; People v. Nowack; Identity; People v. Yost; Credibility determinations; People v. McCray; Competency exam; People v. Kammeraad; MCL 330.2020(1); MCL 330.2024; MCL 330.2022(1); MCR 6.125(C)(2) & (4); Ineffective assistance of counsel; People v. Lopez; People v. Mack; People v. Trakhtenberg; People v. Vaughn; Principle that defense counsel is not required to make a meritless objection/request/argument; People v. Chelmicki; People v. Ericksen; Court costs; People v. Cunningham; People v. Konopka (On Remand); Waiver of restitution issue; People v. Kowalski; The Crime Victim’s Rights Act; People v. Fawaz; “Victim” defined (MCL 780.766(1)); People v. Allen
The court held that the challenged other acts evidence was properly admitted because the similarities between the prior fires and the fires here showed “a common plan, scheme, or system.” The trial court did not err in considering the doctrine of chances. The court also held that the evidence was sufficient to support defendant-Johnson’s arson of an insured dwelling and second-degree arson convictions. Further, defendant-Floyd did not show the trial court erred in ruling that the issue of her competency to stand trial was waived, and her ineffective assistance of counsel claims failed. However, the court remanded for a determination of the factual basis for the court costs imposed on Floyd. Floyd was also convicted of arson of an insured dwelling and second-degree arson. Defendants are mother and daughter. Johnson argued that the trial court erred in admitting evidence about prior fires that led to insurance claims by Johnson and her son. In “the prior uncharged acts, as well as the current situation, an insurance claim was submitted as the result of a fire. In two of the prior incidents, as well as in this case, insurance was procured for personal property in the dwellings approximately one month before a fire occurred. In all three prior instances, as well as in this case, there was a concurrent or immediately preceding theft in addition to the damages asserted from the fires.” None of the homes were occupied when the fires started. “All of the fires were suggestive of arson or of a suspicious origin.” At least two of the properties were owned by Floyd or her sister, “and rented to family members before the fires occurred. Thus, there was evidence of a common scheme or plan to set fires in order to submit claims on insured personal property.” The evidence was “relevant because it was probative of intent, motive, plan, or design.” Further, its probative value was not substantially outweighed by the danger of unfair prejudice. The evidence was “highly relevant to the issue whether defendants committed arson” here, and “the danger of unfair prejudice was minimal in light of the fact that there was a bench trial.” Defendants’ convictions and sentences were affirmed.
After remand to the trial court for a Ginther hearing on the defendant’s claim that his trial counsel was ineffective for failing to secure the trial presence of two eyewitnesses to the shooting, the court affirmed his convictions. He was convicted of first-degree premeditated murder and felony-firearm, arising out of a shooting at a convenience store. He was also convicted of solicitation to commit murder, a charge involving attempts to arrange a second murder. Under the circumstances, the court could not say that defense counsel’s performance as to eyewitness-M fell below an objective standard of reasonableness. Even assuming arguendo that counsel’s failure to call M as a witness was ineffective, the court could “not say that this failure resulted in a reasonable probability that the jury would have reached a different verdict.” It was “not at all clear that his testimony would have been significantly helpful to the defense. Although he reported to the police that the shooter was tall and thin—which defendant is not—he also reported that he did not see the shooting. Further, his testimony would have been subject to effective impeachment based on his distance from the shooting and the lighting conditions at the time of the shooting.” The situation was different as to eyewitness-S, whom counsel believed would provide stronger testimony. Counsel testified that “he did not make any particular efforts to have” S “available for trial, although he added that his investigator had tried to locate him. He testified that he did not attempt to subpoena” S or M, because “he thought that the prosecution was required to produce the witness pursuant to” Brady. In this case, counsel did not attempt to subpoena S because he erroneously believed the prosecution had a duty to procure S for trial. Moreover, when he learned that S was “in India and would not be available for trial, he did not request a due diligence hearing nor did he request a missing witness instruction.” Thus, the court held that counsel’s failure to subpoena S “fell below an objective standard of reasonableness.” However, defendant could not establish that, but for counsel’s failure to pursue S’s testimony, there was a reasonable probability that the outcome would have been different.
The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq.); MCL 15.362; Prima facie case; Whitman v. City of Burton; “Adverse employment actions”; Wilcoxon v. Minnesota Mining & Mfg. Co.; Peña v. Ingham Cnty. Rd. Comm’n; Whether the trial court properly analyzed the case pursuant to the burden-shifting framework of McDonnell Douglas v. Green; Debano-Griffin v. Lake Cnty.; Effect of “direct evidence”; Christopher v. Stouder Mem’l Hosp. (6th Cir.); Hazle v. Ford Motor Co.; Price Waterhouse v. Hopkins; Kneibert v. Thomson Newspapers, MI, Inc. (8th Cir.); Harrison v. Olde Fin. Corp.; Circumstantial evidence of improper motives; Shaw v. City of Ecorse; “Mixed-motive” case; Sniecinski v. Blue Cross & Blue Shield of MI; Veenstra v. Washtenaw Country Club
Concluding that the trial court failed to consider the plaintiff’s direct evidence of a retaliatory motive for her termination, and that genuine issues of material fact existed as to the causation element of her WPA claim, the court reversed the trial court’s grant of summary disposition to the defendant-former employer and remanded the case for further proceedings. Plaintiff formerly worked as a home health aide for defendant. She reported directly to the owner, G. The court rejected her claim that the trial court erred in limiting its consideration of G’s alleged adverse employment actions to plaintiff’s termination, concluding that the reduction of her hours was “not a ‘materially adverse’ employment decision, given the particular nature” of her line of work, and that forcing her to wait an extra day to pick up her paycheck constituted “an inconvenience, not a material adverse employment change or an ultimate employment decision.” However, the court found that she presented direct evidence linking her protected activity to G’s “intent to terminate plaintiff.” She claimed that G called her immediately after receiving notice that she had filed a complaint with the State about “her overtime pay, threatening that ‘paybacks are Hell.’” Another former employee’s (B) affidavit corroborated plaintiff’s allegations. B, “who was hired directly following plaintiff’s complaint filed with the State,” stated that G “told her that she would have to ‘work more hours because [plaintiff] was trying to get her into trouble with the State’” and that G “planned on terminating” plaintiff. G was “the primary decision-maker for defendant, and this statement clearly reflects a retaliatory attitude.” While G did not terminate plaintiff until nearly a year after she filed her overtime complaint, that G “may have formed an improper motive almost a year before acting on that motive does not necessarily lead to the conclusion that” B’s assertions were not direct evidence. The fact that G did not terminate plaintiff until 2/14 “and defendant presented proofs in the trial court that plaintiff violated several company policies” in 12/13 and 2/14 meant that this may be a mixed-motive case. Further, “there was a marked difference between the employment-related evaluations from before and after” plaintiff’s report to the State.
The Freedom of Information Act (FOIA) (MCL 15.231 et seq.); Whether plaintiff-Miller was entitled to reasonable attorneys’ fees under MCL 15.240(6); Krug v. Ingham Cnty. Sheriff’s Office; Principle that a litigant proceeding in propria persona (including an attorney acting on his own behalf) cannot claim attorneys’ fees under the FOIA; Laracey v. Financial Insts. Bureau; Schinzel v. Wilkerson; Omdahl v. West Iron Cnty. Bd. of Educ.; Whether Miller was “the requesting party”; MCL 15.235(8); MCL 15.240(1); MCL 15.233(1) & (2); Principle that only “the requesting party” has authority to initiate a civil FOIA suit; Miller v. Allstate Ins. Co.
Holding that plaintiff-Miller could not be a prevailing party in this FOIA action because he did not make a FOIA request, the court affirmed the trial court’s denial of the plaintiffs’ request for attorneys’ fees under MCL 15.240(6). The trial court granted Miller and the co-plaintiff-law firm (Rolfe) summary disposition on the basis of the defendant-Lake Templene Improvement Board’s failure to timely respond to a FOIA request, but denied plaintiffs’ request for attorneys’ fees. Miller argued on appeal that, “because he prevailed in his lawsuit to obtain the release of the requested information under the FOIA, he was entitled to reasonable attorneys’ fees” under MCL 15.240(6). He disputed “the trial court’s finding that Rolfe, not Miller, prevailed in the FOIA action.” The court concluded that Miller “was not ‘the requesting party’ and, insofar as Rolfe represented himself, he could not claim attorneys’ fees while proceeding in propria persona.” A “civil action under the FOIA may be commenced by ‘the requesting party.’” The court concluded that by “specifically naming ‘the requesting party’ in both MCL 15.235(8) and MCL 15.240(1) as the individual empowered to file suit, the Legislature has made plain that only ‘the requesting party’ has authority to initiate a civil FOIA suit under these provisions.” Further, Rolfe was plainly “the requesting party” here. The facts showed that “Rolfe sent FOIA requests in his own name” on 9/18/14 and that “these FOIA requests included absolutely no mention of Miller or the fact that Rolfe had been retained by Miller. Because Rolfe was ‘the requesting party,’ Rolfe could commence a civil action in his own name under MCL 15.240(1).” Given that Miller did not make a FOIA request, no provision empowered him “to file or maintain an action under the FOIA. Given that Miller could not maintain an action under MCL 15.240,” it followed that he “could not obtain attorneys’ fees under MCL 15.240(6).”
The trial court abused its discretion when it struck the plaintiff’s expert witness, and erred in granting the defendants’ motions for summary disposition. “During plaintiff’s laparoscopic cholecystectomy surgical procedure, clips used to close the cystic duct to the gallbladder were improperly placed and blocked the common bile duct, necessitating a second surgery and extensive medical treatment.” Plaintiff sued for medical malpractice, alleging in pertinent part that defendant-Lorenzo breached the SOC by not recognizing that the surgery had been performed improperly. The court held that plaintiff’s expert (Dr. M) was a reliable expert witness and able to testify as to the SOC in a medical malpractice case involving laparoscopic cholecystectomy surgery. It disagreed with the trial court that M’s testimony must be excluded because it stated a “negligence per se” standard. In this case, there was expert testimony so Woodward and Jones were inapposite. M’s opinion was “not that the surgeons were negligent merely because plaintiff was injured, but rather that the surgeons must have been negligent because a clip does not end up on the common bile duct unless someone is not using due care by following the stated precautions.” Also, as to the trial court’s holding that all the factors under MCL 600.2955 were not met, the trial court abused its discretion under the reasoning set forth in Elher. The dispute here was identical to that in Elher. M’s theory was that the “plaintiff’s common bile duct was clipped because her surgeon failed to exercise due care to ensure that it was not clipped.” Defendants argued that the “surgeons exercised due care and that the bile duct became clipped because it is an inherent risk.” Just like in Elher, the parties agreed that the SOC “is what a reasonable surgeon would do under similar circumstances.” Also, like in Elher, the real dispute was “whether clipping the common bile duct under the circumstances here constitutes a breach of that standard.” Finally, defendants argued that Elher does not control because it was “incorrectly decided.” Having “performed 2500 laparoscopic cholecystectomy procedures and being a board certified general surgeon” made M “qualified to give an opinion as to what is required of a reasonable surgeon under similar circumstances.” As the Elher court pointed out, “this is not something than can be subject to testing and replication—this is” the SOC. Reversed and remanded.
Probate court order denying appellant’s petition to remove decedent-Stuart’s surviving spouse (appellee) as personal representative of Stuart’s estate; MCL 700.3203; MCL 700.3611; MCL 700.3614; Discretion to determine whether an evidentiary hearing is necessary; Parks v. Parks; Jurisdiction to hear the appeal; MCR 5.801(B)(2)(a) & (l); Review of the probate court’s factual findings; In re Lundy Estate; Beason v. Beason; In re Duane V. Baldwin Trust; Denial of appellant’s request to disallow appellee’s election of spousal homestead & exempt property allowances; MCL 700.2404 & MCL 700.2402; MCL 700.3101; In re Jajuga Estate; Claim that the probate court erred in declining to order an appraisal of Stuart’s personal property at the expense of the estate
In an order, the court amended its opinion in this case [see e-journal #61454 in the 01/04/2016 edition] to correct a clerical error. “On page 5, first paragraph, the fourth sentence shall read: We conclude that the probate court did not clearly err when it found that the value of the items in the home would be below Tamara's spousal allowances, and it did not abuse its discretion by determining that an appraisal would be an unnecessary expense to the estate under those circumstances.” In all other respects, the opinion remained unchanged.