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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Appellate jurisdiction under the Federal Arbitration Act (the Act); 9 USC § 16(a) & (b); Jurisdiction over the district court’s injunction of a state-court action; Moglia v. Pacific Employers Ins. Co. (7th Cir.); AT&T Mobility LLC v. Concepcion; ConArt, Inc. v. Hellmuth, Obata + Kassabaum, Inc. (11th Cir.); Johnson v. Consumerinfo.com, Inc. (9th Cir.); Gulfstream Aerospace Corp. v. Mayacamas Corp.; 28 USC § 1292; Whether the district court’s orders were appealable as a “final decision” under the “final-judgment rule”; Green Tree Fin. Corp.–AL v. Randolph; ATAC Corp. v. Arthur Treacher’s, Inc.; Fed.R.Civ.P. 58; Fed.R.App.P. 4(a); Kraus v. Taylor; Great Earth Cos., Inc. v. Simons; Whether the court had pendant jurisdiction; AmSouth Bank v. Dale
The court held that it lacked appellate jurisdiction over the district court’s orders compelling the parties to arbitrate their claims, staying the federal case until the arbitration concluded, and enjoining the defendant-estate from proceeding against plaintiff-Preferred Care in the state-court action. The district court first ordered the parties to arbitrate their state-law claims under the terms of the arbitration agreement contained in the parties’ admission agreement. Review of this action is expressly forbidden by § 16(b)(2), which “remov[es] jurisdiction over orders ‘directing arbitration.’” Section 16(b)(1) prohibits jurisdiction “over orders ‘granting a stay’ of the federal court action until the arbitration end[s].” Section 16(b)(2) also barred review of the district court’s order enjoining the estate’s state-court action. The court noted that even though § 1292(a) provides for immediate appeals of injunctions, “§ 16 specifically forecloses appeals of pro-arbitration interlocutory orders[,] . . . § 16 is the more specific provision because it directly addresses the issue—arbitration-related appeals—and because its exception for § 1292(b) shows that the statute reflects (and limits) the pre-existing rules for appeals.” Thus, “the existence of an injunction does not give . . . appellate jurisdiction.” The court concluded that when “a district court directs arbitration and stays the proceedings, ‘[t]he only exception to § 16(b) is an appeal by permission under § 1292(b).’” Interlocutory orders are generally not appealable. The court rejected the estate’s argument that the injunction order was “structurally a final decision,” and held that under Green Tree, “if the district court enters a stay instead of a dismissal, ‘that order [is] not . . . appealable’ under § 16(b)(1).” The court could not exercise pendant jurisdiction over the other issues raised on appeal because in the absence of jurisdiction over the injunction, it had no “jurisdiction over anything potentially pendent to it.” It dismissed the estate’s appeal.
Personal liability as the guarantor of a mortgage purchase; Contract interpretation; Detroit Fire Fighters Ass’n, IAFF Local 344 v. City of Detroit
In an order in lieu of granting leave to appeal, the court vacated the part of the Court of Appeals opinion (see e-Journal # 62065 in the 3/17/16 edition) that held defendant-Makino was personally liable as the guarantor of a mortgage purchase, and remanded the case to that court for reconsideration. The court held that the Court of Appeals erred in relying on the testimony of the executive vice president of a managing partner of plaintiff-WNC Housing “in interpreting the provisions of the partnership agreement, and by reviewing the trial court’s interpretation of the partnership agreement for clear error.” The court directed the Court of Appeals on remand to review this issue de novo as a matter of law.
Challenge to the constitutionality of Michigan’s felon in possession (FIP) statute; MCL 750.224f; People v. Green; People v. Parker; Presumption of constitutionality; People v. Sadows; Claim that a legislative enactment is unconstitutional on its face; People v. Wilder; The right to bear arms; U.S. Const. amend. II; Const. 1963, art. 1, § 6; People v. Yanna; McDonald v. City of Chicago; District of Columbia v. Heller; United States v. Smoot (4th Cir.); United States v. Khami (6th Cir.); Principle that the right to bear arms is not unlimited; People v. Powell; People v. Deroche; People v. Wilder; People v. Swint; Principle that common law self-defense is a valid defense to a charge of FIP; People v. Dupree; Carrying a concealed weapon (CCW)
The court held that Michigan’s FIP statute is constitutional on its face under both the federal and state constitutions. The defendant was convicted of FIP, CCW, and felony-firearm, second offense. On appeal, the court rejected his argument that Michigan’s FIP statute is unconstitutional on its face under both the federal and state constitutions because it deprives an individual of the right to possess firearms for any purpose, including self-defense. First, it found that, “[i]n light of the rationale stated in Swint and the decision in Heller, there are clearly circumstances in which MCL 750.224f is constitutionally valid under the Second Amendment.” Thus, the court followed the dicta in Heller and concluded, in conformity with Swint, that Michigan’s FIP statute does not violate the Second Amendment. Second, it found that Dupree did not address the constitutionality of the FIP statute and is “factually distinguishable because, here, defendant was not actively defending himself from an attacker but was merely carrying the firearm for some hypothetical future need of self-defense.” Thus, it held that the statute is also constitutionally valid under the Michigan Constitution. Affirmed.
Sentencing; Scoring of OV 7; People v. Hardy; MCL 769.34(2); People v. Lockridge; People v. Francisco; Assault with intent to murder (AWIM)
In an order in lieu of granting leave to appeal, the court vacated the part of the Court of Appeals judgment (see e-Journal # 62878 in the 6/27/16 edition) addressing the trial court’s scoring of OV 7, and remanded the case to the trial court. The court concluded that the trial court record did not show “an assessment of a base level of fear or anxiety associated with the offense” of AWIM, and did not “include a determination whether the defendant’s conduct was intended to increase the victim’s fear or anxiety by a considerable amount.” The court directed the trial court on remand “to make the determinations required under Hardy for deciding whether points should be assigned for OV 7, using the version of the sentencing guidelines in effect on the date that the sentencing offense was committed.” If after doing so it “determines that OV 7 was correctly scored, it shall implement the relief ordered by the Court of Appeals pursuant to” Lockridge. If it determines that 0 points should have been scored for OV 7, it shall resentence defendant. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
Motion to suppress evidence of a firearm & less than 25 grams of heroin the police secured following a search of a vehicle in which the defendant was traveling as a passenger; People v. Tavernier; People v. Houstina; Arizona v. Gant; Carrying a concealed weapon (CCW)
On remand from the Michigan Supreme Court, the court held that the search of the minivan the defendant was traveling in and the safe contained in the minivan were lawful as incident to his arrest. Thus, it reversed the trial court’s suppression order and remanded. He was charged with CCW, possession of less than 25 grams of heroin, felony-firearm, and possession of marijuana. He moved to suppress evidence of a firearm and less than 25 grams of heroin that the police secured following a search of a minivan in which he was traveling as a passenger. On appeal, the thrust of the prosecution’s challenges to the trial court’s suppression order was that the minivan defendant was traveling in and the safe contained in the minivan were lawful as incident to his arrest. The record evidence adduced at the suppression hearing confirmed that it was reasonable for Officer J to suspect that evidence relevant to the crime of arrest would be yielded following a search of the minivan and safe. The court is “required to evaluate the totality of the circumstances leading up to the search, looking at the facts that were available to [J], and, deferring to his law enforcement experience, determine the legality of the search he undertook on that basis.” J testified that “he pursued the vehicle defendant was traveling in after receiving a call regarding a nearby disturbance and where the vehicle matched the description given by the caller to a 911 dispatcher.” The vehicle defendant was traveling in was stopped because it had an improper license plate. He initially lied to J and gave him an alias. After being confronted by police, he admitted that he had multiple outstanding warrants. He also admitted to police as he got out of the minivan that he was in possession of marijuana. Under these facts, it was certainly reasonable for J to conclude that “evidence relevant to the offense of marijuana possession would be retrieved following a search of the minivan and the safe.”
Other acts evidence; People v. Gipson; MRE 404(b)(1); Relevance; MRE 401; People v. VanderVliet; People v. Smith; Prejudice; MRE 403; People v. Pickens; People v. Sabin (After Remand); Balancing test; People v. Murphy (On Remand); People v. Wofford; Joinder of cases; People v. Gaines; MCR 6.120; Ineffective assistance of counsel; U.S. Const. amend. VI; Const. 1963, art. 1, § 20; People v. LeBlanc; People v. Trakhtenberg; Failure to object to the prosecutor’s motion to join the cases; Failure to adequately object (or to file a responsive pleading) to the prosecutor’s notice of intent to use other acts evidence under MRE 404(b); Failure to make a futile objection; People v. Thomas; Failure to investigate certain items; Factual predicate requirement; People v. Hoag; Sentencing; Whether defendant was entitled to resentencing because he was not sentenced as a fourth-offense habitual offender but the trial court calculated his sentencing guidelines range as enhanced for a fourth-offense habitual offender; MCL 777.21(3)(c)
The court held that the trial court did not abuse its discretion by admitting the other acts evidence, and did not err by ruling that the offenses were related and joinder was not an abuse of discretion. Thus, it affirmed the defendant’s convictions and sentences in each of the consolidated cases, but remanded for the limited purpose of amending the judgments of sentence to properly reflect his status as a fourth-offense habitual offender. He argued that the trial court erred in joining all three of his cases for trial, and also challenged its determination that evidence relating to each victim was admissible in the cases involving the other victims pursuant to MRE 404(b)(1). Although he asserted in passing the trial court convicted him because of his “propensity to commit the crimes,” the record showed that it “admitted the evidence to show a common scheme, plan, or system in doing an act, which is a proper, non-propensity purpose under MRE 404(b)(1).” Each incident occurred in Detroit, within approximately one month. He “targeted three young, black, female victims. Each victim was walking in public, in the dark. All of the victims were food-service employees, in uniform, on their way to or from work. Defendant approached each victim in a red vehicle and forced them inside by threatening them with what appeared to be a gun.” He took money from two of them. He also forced all of them to “put their heads down in the vehicle, and cover their heads with a hood, hat, or scarf.” He isolated each in “his own territory—either in his car or at his home—while he sexually assaulted them.” All of their clothes were removed. He fondled their breasts, and penetrated each with his finger. Also, he penetrated two with his penis, and washed them afterward. He also tried to bond with them through conversation, and even used information in two of their phones as topics of conversation. He dropped two of them off at home, and even kissed one goodbye and suggested that they see each other again. After his first victim gave him a false name and address, he later confiscated or photographed the other victims’ identifications. “It was not outside the range of principled outcomes for the trial court to conclude that these common features indicated the existence of a common plan.” The fact that it granted his motion for a directed verdict on one charge and acquitted him of several other crimes belied any claim that it convicted him due to the emotional impact of the other acts evidence. Also, as this was a bench trial, the trial court was presumed to consider the other acts evidence only for its proper purpose.
Motion for a new trial on the basis the defendant’s conviction was against the great weight of the evidence; People v. Young; People v. Ericksen; Credibility; People v. Lemmon; Sufficiency of the evidence to support a felonious assault conviction; People v. Henderson; People v. Kanaan; Whether the trial court properly ruled that questions regarding the legality of the repossession were irrelevant; People v. Layher; Relevant evidence; MRE 401 & 402; People v. Eliason; Judicial impartiality; People v. Stevens; MRE 614(b); People v. Cheeks
The court held that the trial court did not abuse its discretion when it denied defendant-Kirby’s motion for a new trial and there was sufficient evidence to support his felonious assault conviction. He was convicted of felonious assault and felony-firearm. He argued that the trial court abused its discretion by denying his motion for a new trial on the basis that his conviction was against the great weight of the evidence because victim-G’s testimony was so incredible that the jury should not have believed it. The only people who saw the entire confrontation (which occurred when G was trying to repossess a car) were G, Kirby, and witness-S (Kirby’s girlfriend). Kirby and S testified that Kirby did not threaten G with the gun, while G “testified that Kirby pointed it at him. This conflicting testimony was well within the ability of the jury to resolve.” Kirby also contended that G “gave inconsistent accounts of how Kirby handled the gun. In his first 911 call,” G only stated that “Kirby pointed the gun at him and told him to release the car.” At the preliminary exam, G testified that Kirby pointed the gun at the door of G’s truck. During trial, G testified that Kirby pointed his gun at the truck’s window. However, G “later explained that the window was part of the truck’s door.” The court held that G’s “testimony was not directly contradictory, nor was it so far impeached that it was deprived of all probative value.” Also, the jury had access to the remainder of the information Kirby claimed impeached G, including that G had strong motives to properly repossess S’s car, “and it reasonably chose to believe him.” Affirmed.
Ineffective assistance of counsel; Strickland v. Washington; People v. Pickens; Prejudice; People v. Messenger; Failure to present a duress defense & to request a jury instruction on the defense; People v. Daniel; People v. Barnett; Alleged lack of preparation; People v. Caballero; Failure to move to sever defendant-Williams’s trial from that of a codefendant; MCR 6.121(D); People v. Hana; Failure to make a futile motion; People v. Ericksen; Failure to object to the playing of a jail recording; People v. Wise; Sufficiency of the evidence to support Williams’s convictions on an aiding & abetting theory; MCL 767.39; People v. Smielewski; People v. Washburn; Intent; People v. Robinson; People v. Fetterley; Mere presence; People v. Wilson; Whether the evidence of defendant-Dudley’s identity as one of the perpetrators was sufficient to support his convictions; People v. Yost; People v. Newby; People v. Abernathy; Admission of an audio recording of Dudley’s police interrogation; MRE 403; Presumption jurors follow their instructions; People v. Petri; Cumulative/prosecutorial error; People v. Cooper; People v. Unger; Good-faith effort to admit evidence; People v. Abraham; Principle that pointing out the weakness of a defense theory is not prosecutorial error; People v. Fields
Rejecting defendant-Williams’s ineffective assistance of counsel claims and holding that there was sufficient evidence to support his convictions on an aiding and abetting theory, the court affirmed his convictions of armed robbery, assault with intent to commit armed robbery, and felony-firearm. It also held that there was sufficient evidence of defendant-Dudley’s identity as one of the perpetrators to support his convictions of the same crimes, and that the admission of an audio recording of his police interview did not result in plain error affecting his substantial rights. Further, it rejected his prosecutorial and cumulative error claims. Thus, it also affirmed Dudley’s convictions. Williams’s trial attorney was not ineffective for deciding “to pursue the defense of non-involvement over the defense of duress, and for not requesting a jury instruction on the defense that counsel did not advance.” The court rejected his claims that his counsel was not prepared for the trial and was ineffective for not moving to sever his trial from Dudley’s, agreeing with the trial court that defense counsel “presented a vigorous defense” and concluding that a motion for severance would have been futile. As to the jail recording, the “trial court did not err by recognizing as legitimate strategy defense counsel’s decision to agree to a limited presentation of the recording rather than risk having the prosecution make more damaging use of it as a consequence of an unsuccessful effort to bar its admission entirely.” The evidence was sufficient to allow a reasonable fact-finder to determine that “Williams acted with the intent to facilitate the commission of a robbery.” The court also rejected Dudley’s claim that the prosecution failed to prove his identity as one of the robbers, noting that three eyewitnesses identified him as a perpetrator “from having seen him earlier on the day of the robbery when his face was not covered, and having noticed that one of the masked robbers was wearing clothing similar to what Dudley was wearing” earlier. The two sightings took place within hours of each other. Also, two of the witnesses testified that they were already familiar with Dudley.
Sufficiency of the evidence; People v. Henderson; Credibility of witnesses; People v. Kanaan; Principle that whether a firearm was operable is not an element of felon in possession (FIP), carrying a concealed weapon (CCW), or felony-firearm; People v. Humphrey; Sentencing; Principle that while the trial court must score & consider the sentencing guidelines, it is not compelled to impose a minimum sentence within the calculated range; People v. Lockridge; Proportionality; People v. Steanhouse
The court held that there was sufficient evidence to support the defendant's firearm-related convictions, and that the trial court’s sentence was reasonable. He was convicted of FIP, CCW, and felony-firearm, second offense, for threatening his ex-girlfriend and her parents with a gun. The trial court sentenced him as a fourth-offense habitual offender to serve concurrent terms of 4 to 10 years’ imprisonment each for his FIP and CCW convictions, and a consecutive term of 5 years for his felony-firearm conviction. On appeal, the court rejected his argument that the evidence was insufficient to support his convictions because there was no physical evidence that he ever possessed a gun, and the only witness who claimed to see him with a gun was biased against him. “Viewing the mother’s testimony in a light most favorable to the prosecution, her statements that defendant approached her with a handgun in his hand and threatened to shoot her were sufficient to establish that defendant possessed a firearm.” Further, the prosecution was not required to establish that the firearm was operable, and “a rational jury could find that the [victim’s] mother—who was familiar with handguns and owned a handgun—would be able to tell the difference between a real firearm and a toy firearm at a distance of 20 feet.” The court also rejected his claim that the trial court imposed unreasonable sentences for FIP and CCW because it sentenced him to serve 4 to 10 years’ imprisonment, when his guidelines recommended a sentencing range of 46 months’ imprisonment. “The trial court considered defendant’s conduct during and after the offense and found that a sentence of 48 to 120 months’ imprisonment was more appropriate.” Affirmed.
Ineffective assistance of counsel; People v. Lockett; Strickland v. Washington; People v. Solloway; People v. Hoag; People v. Payne; Trial strategy; People v. Trakhtenberg; People v. Matuszak; People v. Dixon; People v. Ackley; Restitution under the Michigan Constitution (Const. 1963, art. 1, § 24) & the Crime Victim’s Rights Act (MCL 780.766); MCL 780.766(2); MCL 780.767(1); People v. Grant; People v. Fawaz; People v. Bell; People v. Lueth; Presumption that the presentence investigation report (PSIR) is accurate
The court held that the defendant was not denied the effective assistance of counsel, and that the trial court did not err in ordering him to pay restitution. He was convicted of carjacking and unarmed robbery. The trial court sentenced him as a fourth habitual offender to 12 to 20 years’ imprisonment for the carjacking conviction and 5 to 15 years for the unarmed robbery conviction. It also ordered him to pay $3,055 in restitution to the victim. On appeal, the court rejected his argument that his trial counsel provided ineffective assistance at the evidentiary hearing on his motion to suppress statements. It found he “failed to establish that trial counsel’s representation at the evidentiary hearing on defendant’s motion to suppress statements was objectively unreasonable.” The court noted that trial counsel presented a substantial defense – that defendant’s confession was involuntary “because he was promised that if he signed the papers, he would be able to go home.” Thus, his claim that trial counsel provided ineffective assistance by failing to present an expert witness to testify as to his mental health history was meritless. In addition, “[t]he evidence presented by defendant, and his allegation that a hypothetical expert witness would have testified in his favor, does not support the conclusion that trial counsel’s strategy was unreasonable. The fact that trial counsel’s strategy proved unsuccessful does not make it ineffective assistance.” Moreover, he was not prejudiced. The court also rejected his claim that the trial court erred by ordering him to pay restitution because no facts or documentation supporting the amount of restitution was provided at sentencing. “The trial court was entitled to rely on the PSIR in ordering restitution.” It “did not err by relying on the accuracy of the information [as to] damages, and trial counsel raised no objection.” Thus, “as no objection was raised, the trial court was not required to detail its findings regarding restitution on the record.” Further, he “did not contest his ability to pay restitution” and did “not provide any evidence that he would be unable to pay the $3,055.” Affirmed.
Divorce; Whether property was part of the marital estate or separate; Hodge v. Parks; Cunningham v. Cunningham; Distinguishing Gates v. Gates; Claim that the trial court erroneously believed that Michigan no longer recognizes separate property in a divorce proceeding; Valuation & division of the marital estate; Woodington v. Shokoohi; Attorney fees; Richards v. Richards; MCR 3.206(C); Veterans’ Administration (VA)
The court held that the trial court did not err by treating property formerly belonging to the defendant-ex-wife’s mother (L) as part of the marital estate instead of her separate property, and did not clearly err in its valuation of particular marital assets. Further, its overall distribution of the marital estate was fair and equitable in light of the parties’ circumstances, and it acted within its discretion by holding them responsible for their respective attorney fees. Thus, the court affirmed the divorce judgment. Defendant argued that the trial court erred in determining that two rental properties—which the parties acquired using funds received from L, as well as liquid assets of approximately $200,000 that originally belonged to L—were marital assets as opposed to defendant’s separate property. The trial court found that she had admitted to depositing approximately $390,000 received from L “into joint marital accounts and then using some of that money to purchase the rental properties.” It further found that the plaintiff-ex-husband had contributed to the appreciation of the rental properties by maintaining and repairing them. It rejected defendant’s claim that these assets were her separate property, finding that she “intentionally committed [L’s] money to the marital estate and then changed her mind when the divorce was a reality.” Defendant did not dispute that the bank account funds that she now sought as her separate property were placed into the parties’ joint accounts. The trial court found that the money was transferred to the parties so that L could qualify for VA benefits. Defendant maintained that the money was held in trust for L. “But apart from the fact that the funds were transferred into accounts in the parties’ joint names,” L could “not qualify for VA benefits and at the same time retain those assets for her support.” Because L had to relinquish those assets before her death “to qualify for VA benefits, the trial court did not err in rejecting defendant’s argument that there was no intent to transfer the assets to the parties before” L died. Their conduct in placing the money in the joint accounts, and in using some of it to purchase investment property that was managed by plaintiff, was also inconsistent with treating the property as defendant’s separate property. This case was factually distinguishable from Gates. Also, viewing the trial court’s comments in context, there was no merit to defendant’s argument that it “mistakenly believed that there was no longer a distinction between marital and separate property in Michigan.”
Personal jurisdiction; Yoost v. Caspari; Michigan’s long arm statute; MCL 600.715; Electrolines, Inc. v. Prudential Assurance Co., Ltd.; The Due Process Clause; Oberlies v. Searchmont Resort, Inc.; Aaronson v. Lindsay & Hauer Int’l, Ltd.; Sifers v. Horen; International Shoe Co. v. Washington; Jeffrey v. Rapid American Corp.; W H Froh, Inc. v. Domanski; Mozdy v. Lopez; “Purposeful availment”; Burger King Corp. v. Rudzewicz; Salom Enters., LLC v. TS Trim Indus., Inc. (ED MI)
Holding that the defendant was entitled to summary disposition due to lack of personal jurisdiction, the court reversed the trial court’s denial of defendant’s summary disposition motion, and remanded for entry of an order granting the motion. Plaintiff is a Michigan corporation. “Defendant is a Connecticut corporation that has no offices, employees, or agents in Michigan.” While it was “a close question whether the evidence was sufficient to satisfy the statutory standard of ‘[t]he transaction of any business within the state,’” the court concluded that “defendant’s performance under the contract, and its communication with and submission of payments to plaintiff in Michigan, is sufficient to satisfy MCL 600.715(1).” Thus, it proceeded to the due process step, using the established three-part test. As to the first prong, “defendant did not reach out to Michigan for the possibility of doing business” here. Instead, plaintiff “reached out to Connecticut to take advantage of business opportunities there.” Its representative went to a business conference in Texas and held an iPad raffle “to establish new contacts in other states. Plaintiff’s president went to Connecticut to personally deliver the prize and pitch plaintiff’s services to defendant.” The court found that the case the trial court primarily relied on, Salom, was factually distinguishable as well as non-binding. Next, it held that the second prong, whether the cause of action arose from the defendant’s business activities in the state, was also not met. “Plaintiff’s cause of action arose from defendant’s alleged failure to pay monies owed to plaintiff.” The failure to pay “occurred in Connecticut, where defendant is located and conducts all of its business, rather than Michigan, where plaintiff was awaiting payment.” As to the third factor, none of defendant’s alleged actions were substantially connected with Michigan “so as to make the exercise of jurisdiction there reasonable.” The parties apparently signed the contract in their home states and e-mailed their signatures to each other. It was “silent on choice of law or forum. As the drafter, plaintiff could” have tried to control those choices in the contract, but it did not do so. Nothing indicated “that Michigan is overall a more convenient forum” than Connecticut would be.
Medical malpractice; Craig v. Oakwoood Hosp.; Proximate cause; Skinner v. Square D Co.; Allard v. State Farm Ins. Co.; Credibility; Guerrero v. Smith; Hearsay; Records; MRE 803(9); MCL 333.2886; Principle that the facts contained in a death certificate are merely prima facie evidence that may be rebutted by contrary evidence; Kowalski v. Iron Workers Local No. 25 Pension Fund (Unpub. ED MI); “Prima facie evidence” defined; American Cas. Co. v. Costello
The court held that the trial court did not err in entering an order for “no cause of action” against the defendant-emergency room physician in the plaintiff-estate’s action alleging medical malpractice. Late in the evening on the day of her gallbladder surgery, the decedent experienced pain in her side and went to the emergency room where defendant found no evidence that she suffered from a post-operative infection or bowel perforation and discharged her with instructions that she see her general surgeon if the pain worsened. She did as instructed, but the general surgeon also found no evidence of any problems. However, the pain persisted and follow-up surgery was eventually performed, revealing a small bowel perforation, which was repaired. She died in her sleep five days after she was discharged from the hospital following that surgery. Plaintiff sued defendant claiming he was negligent in discharging the decedent from the emergency room, given her symptoms and recent gallbladder surgery. The case proceeded to trial, but the trial court entered a no-cause of action against defendant. On appeal, the court found that “[t]he jury’s determination that defendant acted below the standard of care in one or more ways plaintiff alleged did not compel a finding that [the decedent’s] injury was the result of defendant’s negligence.” Further, “[t]o the extent plaintiff argues that the jury simply got it wrong and should have rendered a verdict for plaintiff, there was ample competent evidence to support the jury’s verdict.” The court also rejected the estate’s claim that the trial court erred in permitting defendant to raise alternative theories of cause of death, noting that defendant was permitted to rebut the presumption that the death certificate contained a presumption as to the decedent’s death, and that “while the certified cause of death was presumptively correct, it was only prima facie evidence and could be rebutted.” Affirmed.
Termination under §§ 19b(3)(c)(i), (g), & (j); In re Laster; In re Moss Minors; In re White; In re BZ; Children’s best interests; In re Jones; In re VanDalen; In re Frey
The court held that the trial court properly terminated the respondent-mother’s parental rights to her children where the statutory grounds for termination were established by clear and convincing evidence and termination was in their best interests. Respondent is disabled, and while the specific nature of her incapacity was unclear from the record, it appeared that she “is indeed legally incapacitated, and has both short-term and long-term memory loss.” During her pregnancy, she was in a “coma for 8½ months, and she testified that her coma resulted from having a substance ‘slipped’ to her.” Since becoming disabled, she has required a legal guardian. A review of the record also confirmed that she did not have adequate support to help care for the children. There was record evidence confirming that she “required someone to be there to supervise and help her at all times with her children.” Thus, it was clear that she did not have the necessary support to provide proper care or custody for the children. At the termination hearing, she contended that “she did not need a guardian but admitted that she forgot appointments and forgot to take her medicine without her father” (her guardian at most points during the lower court proceedings) to remind her. Also, a psychiatrist evaluation, admitted into the record as an exhibit, concluded that “respondent’s prognosis for independent parenting of the children was ‘guarded[.]’” The court held that the “trial court did not clearly err in finding clear and convincing evidence that the conditions that led to the adjudication continued to exist, and there was no reasonable expectation that they would be rectified within a reasonable time considering” the children’s age. Also, the same facts provided clear and convincing evidence to support termination of respondent’s parental rights under §§ (g) and (j). “A parent’s failure to comply with his or her service plan is evidence that the parent will not be able to provide a child with proper care and custody and that the child may be harmed if returned to the parent’s home.” Affirmed.