Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Alleged violations of a consent judgment; Considering the terms of the judgment as contractual provisions; Provision for the payment of attorney fees; “Prevailing party”; Attorney fees under a settlement agreement entered on the record in open court; Waiver of any entitlement to attorney fees under MCR 3.206(D), MCL 600.1701, MCL 600.1711, & MCL 600.1715(1)
The court held that plaintiff was not a prevailing party as required by ¶ 6 of the consent judgment to be entitled to have defendants pay her attorney fees under it. And she “waived the right to seek fees under MCR 3.206(D), MCL 600.1701, MCL 600.1711, and MCL 600.1715(1).” But under an agreement placed on the record at a hearing, she was entitled to recover attorney fees for a specified period. “The trial court erred by not settling the attorney fee amount and entering an appropriate order.” Thus, it abused its discretion as to the attorney fee issue requiring reversal of this aspect of its final order and remand for it “to settle the attorney fee amount and enter an appropriate order.” The case arose from a property dispute. Following the consent judgment, plaintiff moved for entry of an order to show cause why defendants should not be held in contempt. At the show cause hearing on 9/27/21, they reached a settlement agreement on the record. Among other things, they agreed “defendants would pay plaintiff’s attorney fees from” 8/7/21 to 9/15/21. An approach to determining the fees was agreed to, but the trial court did not enter an order after the hearing. The parties later returned to the trial court over the attorney fee issue. The trial court entered a “final order requiring defendants to remit to plaintiff attorney fees as determined at the” 9/27/21 hearing and ordering the dismissal of her motion to show cause. On appeal, the court concluded that because “the parties settled the disputed issues” at the 9/27/21 hearing, “the trial court did not render any decision by which plaintiff could claim that she prevailed.” Thus, she could not recover her attorney fees as a prevailing party under ¶ 6. But the settlement of the issues giving rise to her “motion to show cause was enforceable entitling plaintiff to recover attorney fees” incurred from 8/7 to 9/15/21. “The trial court did not consider or determine whether plaintiff’s requested amount of fees was actually incurred for work performed during the period, nor did it establish the amount to which [she] was entitled.” As a result, its final order lacked “clarity because the record of the [9/27/21] hearing did not decide the amount of attorney fees which defendants would pay.” On remand, if the parties fail to agree on a specific amount, “the trial court is to determine how much, if any, attorney’s fees” she is entitled to receive for the 8/7 to 9/15/21 period.
Sentencing; Scoring challenge that would not change defendant’s guidelines range; Validity of the sentence; Misconception of law; Goals of sentencing; People v Sabin; Failure to mention “reformation”; Proportionality challenge to a within-guidelines sentence; MCL 769.34(10); People v Posey; “Unusual circumstances”
The court rejected defendant’s claim that her sentence was invalid because it was based on misconceptions of law by the trial court, and concluded she failed to show unusual circumstances to overcome the presumption her within-guidelines sentence was proportionate. The court declined to consider her challenge to the scoring of OV 16 given that reducing this score would not change her guidelines range. She next argued “her sentence was invalid because the trial court erroneously stated that it was required to impose a minimum sentence at the top end of the guidelines.” But the trial court made the challenged statement “in the context of providing its reasoning for the sentence, emphasizing the seriousness of the crime and defendant’s criminal history. [It] presumably would not have explained the reasons for the sentence if it believed that it was legally obligated to issue a particular minimum sentence at the top end of the guidelines.” It also started the statement by referring “to this ‘particular case,’ noting that the guidelines provided a ‘range’ for the minimum sentence.” And at the hearing on her motion for resentencing, the trial court judge clarified “I clearly understood that the sentencing guideline range did not dictate or mandate that I had to sentence her at the high end.” The court concluded it was “patently clear that the trial court was not operating on a misconception of law; it fully appreciated that it had the discretion to impose a minimum sentence that was not at the top end of the guidelines range.” Defendant also asserted it sentenced her “under a misconception of law when it failed to mention ‘rehabilitation’ as” a sentencing goal. But the trial court judge explained this at the motion for resentencing hearing – “I did not say reparations. I said reformation and the transcriptionist typed it wrong, so it’s just an error.” Thus, the trial court, “on the record, included reformation of the offender, or, synonymously, rehabilitation, when listing the purposes of sentencing.” She did not offer any reason to doubt its explanation. Finally, her claims “about the trial court’s purported trauma from courtroom violence and about the two other court cases in Michigan, aside from being evidentially flawed, simply do not establish unusual circumstances attendant to this particular case. The 10-year minimum sentence was proportionate and not cruel or unusual.” Affirmed.
Right of confrontation; People v Fackelman; Principle that the introduction of out-of-court testimonial statements violates this right unless the declarant appears at trial or the defendant has had a previous opportunity for cross examination; MRE 804(a)(5); Crawford v Washington; Whether a witness is unavailable; People v Bean; Production of an out-of-state witness; Due diligence; People v Serra; People v Gaffney; Harmless error
The court held that even if the trial court erred by allowing defendant’s brother’s (W) testimony to be read into the record, the error was harmless. He was convicted of first-degree felony murder, armed robbery, FIP, and felony-firearm for the murder of the victim in an armed robbery gone wrong. The trial court sentenced him to life in prison without parole. On appeal, the court rejected his argument that he was denied his right to confront a witness because the trial court admitted W’s preliminary exam testimony over defendant’s objection. “[T]he prosecution made a good-faith effort to procure [W] for trial.” As such, the trial court “did not abuse its discretion when it ruled at trial that the prosecution made a good-faith effort to procure the out-of-state witness and permitted the prosecution to present [W’s] preliminary exam[] testimony which had been subject to cross-examination.” Moreover, any error was harmless. Even without W’s preliminary exam testimony, “the jury heard corroborating evidence independently sufficient to convict defendant. That evidence makes it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the claimed error.” Affirmed.
Petition to terminate a limited guardianship; Whether MCL 700.5208 applied; Whether the trial court was required to determine substantial compliance with the limited guardianship placement plan; MCL 700.5209(1); The trial court’s authority to either terminate or continue the guardianship based on the child’s best interests; MCL 700.5209(2)(b); In re Portus
The court held that the trial court did not abuse its discretion by denying respondent-father’s petition to terminate the limited guardianship of the child, or by denying his motion for reconsideration. In 2015, the child was placed in a limited guardianship with her maternal aunt. The same year, it was determined that respondent, who was incarcerated at the time, was the child’s biological father. In 2022, after being released, he petitioned to terminate the limited guardianship and requested that the child be placed in his custody. The DHHS investigator opined it would be harmful to the child’s mental health to move to his home at that time. As such, the report recommended the petition be denied. The trial court agreed and denied it, finding that respondent had not substantially complied with the limited guardianship placement plan and that it was in the best interests of the child that the guardianship be continued. It also denied his motion for reconsideration. On appeal, the court rejected his argument that the trial court abused its discretion by denying his petition and his motion for reconsideration. It first noted that because no evidence established that the child’s biological mother did not have a right to custody of the child, respondent’s petition was not brought under MCL 700.5208. And because he “did not file his petition to terminate under MCL 700.5208, then MCL 700.5209(2) governed, and not MCL 700.5209(1).” Here, the trial court found “continuation of the guardianship for a period not to exceed one year served the child’s best interests and it entered an order reflecting that decision. In so doing, [it] did not abuse its discretion because it acted under the authority granted to it by MCL 700.5209(2)(b). This determination did not require a finding that respondent had not substantially complied with the limited guardianship placement plan.” In addition, the court was “not persuaded by respondent’s argument that the trial court’s opinion regarding the guardian’s moral fitness required a professional evaluation.” Finally, to the extent the trial court found “respondent did not substantially comply with the limited guardianship placement plan, that finding appears to be in error. That error, however, does not require reversal because, to continue the limited guardianship, the trial court only needed to find that it served the child’s best interests to do so.” Affirmed.
Divorce; Custody; Findings required by MCL 722.27(1)(c); MCL 552.507(4); “Shall”; Alternative dispute resolution (ADR)
Concluding the trial “court did not follow the statutory framework governing custody disputes[,]” the court remanded for a de novo evidentiary hearing as to custody of the parties’ child. Plaintiff-mother (Tas) argued, among other things, “that she was precluded from presenting additional testimony to show that [child-YK] had an established custodial environment with only her rather than both parties, which subsequently affected the [trial] court’s findings on the statutory best-interest factors.” She contended “the trial court committed clear legal error by basing its determination only on the evidence presented at the FOC evidentiary hearing, and” she challenged at least one of the trial court’s findings on the best-interest factors. The court concluded it was necessary to remand for a de novo custody hearing. “At the hearing, the parties may rely on evidence and testimony previously presented to the [trial] court. However, the parties must also be permitted to expand the previous record.” The court noted that after “entering the ex parte order placing the child in Tas’s sole custody, the [trial] court was required to expeditiously conduct a custody hearing pursuant to MCL 722.27(1)(c).” But the trial court “skipped this step, sending the parties first to ADR. Eventually, the FOC referee conducted an evidentiary hearing. But the referee limited the evidence that could be presented, and Tas requested a de novo hearing. When the [trial] court conducted a hearing it designated as ‘de novo,’ it relied on the truncated hearing conducted by the referee in rendering its factual findings and refused to entertain additional proofs.” Pursuant to MCL 552.507(4), upon a timely objection by a party to a referee’s recommendation, the trial “court ‘shall hold a de novo hearing.’” The court has interpreted “shall” to constitute a mandatory directive in a statute, and it has “construed ‘hearing’ as requiring more than mere de novo review of the record created by the referee.” Affirmed in part, vacated in part, and remanded.
No-fault priority dispute; Lay witness testimony; MRE 701; Expert testimony; MRE 702
The court held that the trial court erred by granting defendant-insurer (Sentinel) summary disposition in this no-fault insurer priority dispute. Plaintiff sued Sentinel and defendant-Progressive seeking PIP benefits for injuries she allegedly sustained and/or exacerbated in two different motor vehicle accidents. Intervening plaintiff also sought PIP benefits. The trial court granted Sentinel’s motion for summary disposition, and dismissed with prejudice the complaints of plaintiff and intervening plaintiff against Sentinel. On appeal, the court agreed with Progressive that the trial court erred by granting summary disposition for Sentinel. “Because Progressive provided plaintiff’s medical records that contradicted plaintiff’s deposition testimony, summary disposition was improper.” It also agreed with Progressive that the trial court improperly considered plaintiff’s deposition testimony as expert medical testimony under MRE 702. “As Progressive asserts and plaintiff, herself acknowledged, plaintiff is not a medical expert with the knowledge or background to opine on the causation or extent of her injuries. Although plaintiff’s testimony regarding the existence of her physical injuries may be admissible under MRE 701, her testimony concerning the cause and extent of her injuries and whether or not her injuries had been fully healed by the” second accident was not admissible. In light of this record, the court concluded “there was conflicting evidence directly relating to whether plaintiff’s injuries resulting from the [second] accident were related to or distinguishable from plaintiff’s injuries resulting from the” first one. “Given this conflicting evidence, a genuine issue of material fact” remained as to whether the second accident “aggravated plaintiff’s preexisting injuries from the [first] accident or caused new injuries.” Finally, the court agreed with Progressive that the trial court erred by applying the wrong standard of review and finding that its role was to act as a “gatekeeper.” It noted the trial court “appeared to weigh conflicting evidence.” Reversed and remanded.
Property line dispute; Acquiescence; Kipka v Fountain; Killips v Mannisto
Concluding that a genuine issue of material fact existed as to whether the parties acquiesced to a boundary line differing from the original plat line, the court reversed summary disposition for plaintiff and remanded. Although plaintiff contended “defendants conceded in the trial court that the trees, fence, and breakwall in Lake Huron established the agreed-upon boundary line for decades, defendants did not do so.” Rather, they indicated in their answer to the complaint that original plat line was the boundary line. They “did not admit that the boundary line had changed in recent decades based upon certain markers.” The court found that while they agreed “the trees, fence, and breakwall are approximately near the true boundary line, they did not agree that these markers precisely formed the true boundary line.” Further, the court held that plaintiff did not meet his burden to show “there was no genuine issue of material fact as to whether the boundary line should be moved under the doctrine of acquiescence[.]” The only documentary evidence he offered in support of his summary disposition motion was his affidavit. “Nothing in that affidavit established that the parties had acquiesced, for a 15-year period, in a boundary line reflected by the trees, fence, and breakwall.” Rather, at most it indicated “defendants conceded in their answer that the true boundary line was reflected by those markers.” But the court found that they did not do so but instead had asserted “throughout this case that the true boundary line is the original plat line and that they did not acquiesce to a different one. Consequently, plaintiff failed to satisfy his burden of proof with respect to his motion for summary disposition, and the trial court therefore erred by granting it.”
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); Children’s best interests
The court held that §§ 19b(3)(c)(i), (c)(ii), (g), and (j) were established and termination of respondent-mother’s parental rights was in the children’s best interests. Contrary to her “argument, the trial court did not clearly err by finding that she failed to rectify the conditions of mental health, emotional stability, and parenting skills and that there was no reasonable likelihood that respondent would rectify them within a reasonable time.” The court concluded “under the totality of the evidence, the trial court did not clearly err by finding that termination of respondent’s parental rights was proven by clear and convincing evidence under” § (c)(ii). As to § (c)(i), the court held that “the trial court did not clearly err by finding that respondent failed to accomplish any meaningful change in her substance abuse problems and that there was no reasonable likelihood that the substance abuse issues would be rectified within a reasonable time considering the children’s ages.” It also concluded “the trial court did not clearly err by finding that there was clear and convincing evidence supporting termination under” §§ (g) and (j).
Termination under § 19b(3)(j); Anticipatory neglect; Child’s best interests
Holding that § (j) was established and terminating respondent-mother’s parental rights was in the child’s (MM) best interests, the court affirmed. The trial court admitted without objection the court’s prior opinions affirming termination of her “parental rights and took judicial notice of the court file, which contained petitions and orders in the child protective proceedings involving MM” and another child, SLJ. “Together with the testimony from the bench trial, the evidence presented to the trial court substantiate[d] that MM faced a reasonable likelihood of harm if returned to respondent’s custody.” The court noted that her prior “terminations all stemmed from findings that she failed to protect LCM [MM’s half-sibling] from sexual abuse perpetrated by [J, MM’s father] and placed all her children at risk of harm.” The court held that not only did she “fail to protect LCM from the sexual abuse when it happened, she amplified the harm to LCM and her other children by maintaining a relationship with [J] and disbelieving LCM for so long.” Although respondent testified “she now believed LCM—and had since the [6/21] termination trial involving SLJ—the trial court found her claims lacking credibility.” The court defers to a trial court’s special ability to judge witness credibility, and the trial court’s “credibility determination was well-supported by ample evidence of respondent’s ongoing failure to believe LCM. [It] reasonably believed that respondent was simply saying what she needed to say this time around to retain rights to MM, when her actions suggested otherwise.” Further, the court noted that “respondent remained in a relationship (sexual or otherwise) with [J] for at least two years after LCM’s disclosure of sexual abuse. Despite respondent’s protestations that she was not in a relationship with [J] in [3/21] when conceiving MM, she chose to have sexual relations with a man who multiple courts found had sexually abused her older daughter.” The court found that even accepting her “contention that she only resided with [J] for financial reasons, the trial court correctly noted that there is a major difference between residing with the man who sexually abused your daughter out of necessity and conceiving another child with that man.” Respondent’s continually “poor decision-making, culminating in sexual activity with [J] that led to MM’s birth, establishes a reasonable likelihood that MM would suffer harm if returned to” her custody. Also, the doctrine of anticipatory neglect supported the trial court’s finding of statutory grounds.