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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Recovery of no-fault attorney fees; MCL 500.3148(1); Moore v Secura Ins; Prevailing party costs; MCR 2.625; Claim that the use of face masks denied plaintiff a fair trial; Due process in civil cases; United States v Crittenden (Unpub MD GA); Whether the verdicts as to additional PIP benefits for replacement services & work loss were against the great weight of the evidence; MCL 500.3107(1)(c) & (b)
The court concluded that the trial court did not err by holding that plaintiff was not entitled to no-fault attorney fees even though the jury found that payment for mileage was overdue. However, it erred by ruling that he was not the prevailing party. He did not show that he was "entitled to relief because the jurors, attorneys, or some of the witnesses wore cloth face masks during trial." Finally, he was not entitled to relief as to the jury’s verdict refusing to award additional PIP benefits for replacement services and wage-loss benefits. Thus, it affirmed the jury’s verdicts and the trial court’s denial of attorney fees, but vacated the denial of court costs and remanded for “the trial court to determine, within its discretion, whether plaintiff’s motion for costs should be denied even though he is the prevailing party under MCR 2.625.” He was involved in a car accident in which his car was struck from behind by a vehicle owned by one of the defendants and driven by another of the defendants. Plaintiff maintained that he sustained injuries and was entitled to PIP benefits from his insurer, defendant-Auto-Owners, “which initially paid benefits, but then stopped.” Plaintiff argued that he was entitled to no-fault attorney fees because Auto-Owners "did not present any evidence to rebut the presumption that its failure to pay this amount was unreasonable." However, contrary to his argument, "the decision to put plaintiff’s claim under investigation was reasonable under the circumstances. At trial, conflicting evidence was presented about the continued severity of plaintiff’s injuries and recommended courses of treatment." The court concluded that the trial court did not clearly err when it held that "Auto-Owners’ initial refusal to pay for the mileage ultimately awarded by the jury was reasonable under the circumstances." But the court found that the trial court should have reviewed his motion for prevailing party costs “under MCL 600.2421b(3)(b) and the second sentence of MCR 2.625(B)(2) to determine whether plaintiff was the prevailing party. Under the applicable provisions, plaintiff was the prevailing party. A party need not recover the full amount of requested damages to be a prevailing party entitled to costs under MCR 2.625. Rather the party must only show that its position was improved by the litigation.” But he was not automatically entitled to costs on this basis.
Other acts evidence; MRE 404(b); Commonality; People v Smith; MRE 403; Sufficiency of the evidence for a CSC III conviction under MCL 750.520d(1)(c); Hearsay; Prior consistent statements; MRE 801(d)(l)(B); Admission of an email sent by the victim; Adequate foundation; MRE 901(a) & (b)(1); A command distinguished from a statement; Relevance; Late production to the defense; MCR 6.201(J); The best evidence rule; MRE 1002, 1001(3), & 1003; Prosecutorial misconduct; Vouching; Denigration of defendant or defense counsel; Sentencing; Scoring of OV 13; MCL 777.43(1)(c); Uncharged conduct; Cumulative error
The court held that the trial court did not abuse its discretion in admitting other acts evidence and that there was sufficient evidence to support defendant’s CSC III conviction. It rejected his hearsay and prosecutorial misconduct claims. It also concluded that an adequate foundation was laid for admission of an email from the victim, and that the email and an accompanying news article were relevant. Further, “the trial court did not abuse its discretion by failing to exclude the e-mail as a discovery sanction” and there was no merit to defendant’s assertion it should not have been admitted because the prosecution did not produce “the ‘original’ news article.” The court also rejected his unfair prejudice and cumulative error claims, and upheld the 25-point score for OV 13. Witness-HK testified “she was defendant’s former girlfriend and that a few days before the charged assault against the victim, defendant initiated nonconsensual anal sex with HK while HK was sleeping.” The prosecution offered the evidence to show, among other things, a common plan by defendant. Applying the Smith rationale, the court held that the prosecution presented “sufficient indicia of commonality between the prior assault of HK and the charged offense to show the existence of a common system, plan, or scheme. In both instances, defendant engaged in unwelcomed sexual penetration of women with whom he had either a friendship or romantic relationship, and he initiated the sexual activity while the women were asleep next to him. His actions showed a common plan of exploiting a relationship to surprise a helpless victim to engage in sexual penetration. Although there were some differences between the two incidents, there were sufficient common features for reasonable persons to infer the existence of a common plan or method.” The evidence was also relevant to show he “did not accidentally or mistakenly touch the victim.” Further, it was not unfairly prejudicial. As to the sufficiency of the evidence, “the victim testified that she recognized her assailant’s arm as defendant’s arm,” and that when she later confronted him, “he responded that they ‘did not do that much.’ Defendant’s response allowed the jury to infer that he tacitly admitted that he was the person in the bed beside the victim and had touched her.” Another witness’s testimony also supported his identification. Affirmed.
Speedy-trial violation; Barker v Wingo
The court reversed the trial court’s order dismissing defendant’s case without prejudice on the basis of a speedy-trial violation, and remanded for application of the Barker factors to defendant’s motion. The prosecution argued that “the trial court erred by finding a speedy-trial violation based on its estimate about when defendant’s case would proceed to trial.” The court held that the “trial court did not apply the Barker factors, but instead summarily concluded that defendant’s right to a speedy trial had been violated because defendant’s trial would not commence for at least another 18 months. This was error. The trial court made an educated guess about how long it would be before defendant would stand trial, and then on the basis of its speculation, concluded that defendant’s right to a speedy trial would be violated by that time. That a defendant’s right to a speedy trial could be—or even would be—violated at some point in the future is clearly not a reason for concluding that the defendant’s right to a speedy trial had been violated.” Thus, the court concluded that “the trial court’s reasoning that defendant’s right to a speedy trial had been violated on the basis of the anticipated delay before defendant would stand trial was error.”
Habeas corpus; Motion for an order authorizing the district court to consider a second or successive petition under 28 USC § 2254; Reliance on a new, previously unavailable rule of constitutional law; §§ 2244(b)(2)(A) & (b)(3)(C); Miller v. Alabama; Whether petitioner sought a “frivolous extension” of Miller to persons who were 18 years old at the time of their crimes; United States v Marshall
[This appeal was from the WD-MI.] In an order newly designated for publication, the court denied petitioner-Manning the right to file a second or successive petition for a writ of habeas corpus based on a “new rule of constitutional law” where his argument that Miller should be extended to 18-year-olds did “not show ‘possible merit’ . . . .” Manning was convicted of first-degree murder, carrying a weapon with unlawful intent, and felony-firearm. He had previously filed habeas petitions without success. In this petition, he claimed that he could rely “‘on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.’” He relied on Miller, where the Supreme Court “held that defendants ‘under the age of 18 at the time of their crimes’ cannot be sentenced to a mandatory term of life imprisonment without the possibility of parole.” The court noted that the “Supreme Court has since made clear that Miller announced a ‘new rule’ of constitutional law that applies retroactively to cases on collateral review.” In his motion, Manning sought “to extend Miller’s new rule to persons who (like Manning) were 18 years old at the time of their offense.” However, the court concluded that his successive petition sought a “frivolous extension” of Miller. Miller applies to those individuals “under 18” at the time of their crimes, and the court held in Marshall that an individual’s 18th “‘birthday marks [a] bright line’ between juveniles and adults.” It has also made this “same point in many similar orders denying motions to file a second or successive habeas petition seeking an extension of Miller to those who were 18 or older at the time of their offense.”
Self-representation; Knowing & voluntary waiver of the right to counsel; The requirements of Farretta v California; Right to compulsory process & to present a defense under the Sixth Amendment; The district court’s refusal to review letters regarding defendant’s witness list; Other acts evidence; FRE 404(b); FRE 404(a)(2)(A); Sentencing; Procedural & substantive reasonableness; Determination that unlawful imprisonment under MCL 750.349b was analogous to USSG §2A4.1 for kidnapping, abduction, & unlawful restraint; United States v Epley; Whether the witness tampering counts should have been grouped together; USSG §3D1.2(a); Adequate application of the 18 USC § 3553(a) factors; Reassignment of the case on remand; Assistant U.S. Attorney (AUSA)
[This appeal was from the ED-MI.] Joining other circuits and applying de novo review to the waiver of the right to counsel, the court held that defendant-Johnson was entitled to a new trial where the district court failed to hold a formal Faretta “colloquy to inform him ‘of the dangers and disadvantages of self-representation, so’” the record could establish that his waiver was knowing and voluntary. A jury convicted him of unlawful imprisonment, assault of a domestic partner by strangulation and suffocation, interstate domestic violence, witness tampering, and assault. Before trial, he successfully requested that his appointed attorney no longer represent him, asserting ““overfamiliarization” with the AUSA. He also became angry with the second attorney, accusing him of colluding with the AUSA. The second attorney successfully moved to withdraw, and Johnson made an oral motion to proceed pro se. At a hearing, he again said he wanted to represent himself. After discussion, the district court issued an order stating that Johnson had “knowingly and voluntarily waived his right to counsel.” He was unable to call any witnesses at trial because he had not had them subpoenaed, even though he claimed to have sent a list to standby counsel and to the district court. At one point during trial, the district court refused his request to have standby counsel take over a cross-examination, but eventually let standby counsel take over the remainder of the trial and sentencing. The court noted that for a waiver of the right to counsel in the Sixth Circuit, “‘district courts must conduct a colloquy akin to that in section 1.02 of the Bench Book for United States District Judges.’” Concluding that the de novo standard of review is “appropriate for reviewing the district court’s Faretta inquiry,” the court held that “the district court should have held a formal colloquy . . . .” It found that the questions the district court asked Johnson about his wish to represent himself did “not reflect that the requirements of the Bench Book were met” and fell “far short” of the Faretta inquiries it had approved in other cases. Further, there was not sufficient evidence that he waived his right through his “conduct toward his attorneys.” The court also reversed on the basis that the district court violated his right to compulsory process and to present a defense. While it rejected his challenges to the admission of other acts evidence, it held that the district court erred by not adequately applying the § 3553(a) factors in sentencing him. It reversed his convictions and sentence, and remanded for a new trial before a different judge.
Whether plaintiff’s claim sounded in medical malpractice or negligence; Bryant v Oakpointe Villa Nursing Ctr (MI); Applicability of Michigan’s affidavit-of-merit (MCL 600.2912d) & presuit-notice (MCL 600.2912b) medical malpractice requirements in federal diversity cases, Hanna v Plumer; Walker v Armco Steel Corp; Gallivan v United States; Erie RR Co v Tompkins; The Rules Enabling Act
[This appeal was from the ED-MI.] In this diversity action, the court reversed the district court, holding that Michigan’s affidavit-of-merit and presuit-notice requirements do not apply to diversity medical malpractice actions in the federal courts where they conflict with the Federal Rules of Civil Procedure. Plaintiff-Albright, an Ohio resident, sued defendant-Christensen, a Michigan resident, and his medical practice in Michigan federal court for administering drugs that allegedly caused her physical and emotional harm. Defendants argued that Michigan’s medical malpractice affidavit-of-merit and presuit-notice requirements applied, while Albright argued that her case sounded in negligence and that those requirements do not apply in federal court. The district court ruled that Albright’s claim was for medical malpractice, and that even though the affidavit-of-merit requirement did not apply in federal court, her failure to comply with the presuit-notice requirement entitled defendants to summary judgment. It dismissed the case with prejudice. The court first held that Albright’s claim sounded in medical malpractice under Michigan law, concluding that it met the Bryant criteria. It then considered whether the two medical malpractice requirements apply in diversity cases. Applying Hanna, it considered whether the state law conflicted with federal law, and held that “Michigan’s affidavit-of-merit requirement conflicts with the Federal Rules of Civil Procedure.” However, unlike the district court, the court held that the presuit-notice provision also conflicts with federal law, where its requirements exceed those of the federal rule. Thus, the court held that under Hanna, Michigan’s affidavit-of-merit and presuit-notice requirements do not apply in federal diversity cases. As a result, Albright had no duty to comply with them before she filed her medical malpractice action in federal court. Remanded.
Trip & fall in a pothole; Governmental immunity; MCL 691.1407(1); Nawrocki v Macomb Cnty Rd Comm’n; The highway exception; MCL 691.1402; Principle that a party must plead in avoidance of governmental immunity; Mack v City of Detroit; Liability under the Recreational Land Use Act (RLUA); MCL 324.73301(1); Neal v Wilkes; Leave to amend; MCR 2.116(I)(5); PT Today, Inc v. Commissioner of Office of Fin & Ins Servs
The court held that the Court of Claims did not err by dismissing plaintiff’s claim on the basis of governmental immunity, or by denying her leave to amend, but did err by finding the RLUA did not apply to bar plaintiff’s negligence claim. Plaintiff sued defendants for injuries she sustained when she tripped and fell in a pothole on a road in a state park. The Court of Claims granted summary disposition for defendants and dismissed her claims for failing to plead in avoidance of governmental immunity. On appeal, the court found that plaintiff “did not expressly plead that she was bringing her claim under the highway exception,” and did not “state a claim that fit within a statutory exception” to governmental immunity. Thus, she “failed to satisfy her burden of pleading in avoidance of governmental immunity because she did not plead that the defect in the roadway that caused her injury was in the portion of an improved highway that was designed for vehicular travel.” The court agreed with defendants that the Court of Claims erred by finding the RLUA did not apply because the injury took place on public land. She “did not pay defendants for the use of the campsite,” she “was on defendants’ land for the purpose of camping,” and she “did not pay the owner of the land on which her claim arose.” In addition, she did not allege her injury “was caused by defendants’ gross negligence or willful and wanton misconduct.” As such, her claim was “barred by the plain language of the RLUA. It is immaterial to this analysis that another individual paid defendants to allow plaintiff to camp on its land.” Finally, the court rejected her argument that the trial court erred when it rejected her request for leave to amend her complaint. “The motion was not filed until the case had already been dismissed, and after the time for filing a motion for reconsideration of that dismissal had also already expired. To the extent that the trial court denied plaintiff’s post-dismissal motions as untimely, and did not specifically state that the motion for leave to amend was the product of undue delay, that error was one of semantics and does not amount to an abuse of discretion resulting in an injustice.” Affirmed.
Termination under § 19b(3)(c)(i); Reasonable reunification efforts; In re Hicks/Brown; A parent’s commensurate responsibility to participate in & benefit from the services offered; In re Frey; Effect of a parent’s incarceration; In re Mason; Parent agency treatment plan (PATP)
Holding that the DHHS made reasonable reunification efforts and that § (c)(i) was met, the court affirmed termination of respondent-father’s parental rights. Respondent’s and the children’s mother’s rights were terminated when they failed to participate in and benefit from services. In a prior appeal, the court vacated the trial court’s order assuming jurisdiction over the children and its order of adjudication, and remanded. The DHHS subsequently filed a new petition, alleging it was contrary to the children’s welfare to be in “respondent’s care and custody because of his ‘substantial criminal history, substance abuse, failure to participate and benefit from services and his current incarceration for an extended period of time.’” Although reunification was initially the goal, the DHHS filed a supplemental petition seeking termination. The trial court ultimately found that “more than 182 days had passed since the initial disposition,” that the conditions leading “to adjudication continued to exist and that there was no likelihood that they would be rectified within a reasonable time in light of the children’s ages.” In the present appeal, the court rejected his argument that “the DHHS did not make reasonable efforts at reunification in light of his incarceration, the COVID pandemic, and the lack of services that could feasibly be offered to him.” It found that the DHHS “made reasonable efforts to engage respondent in the PATP given the unique circumstances of this case, but there was no evidence that respondent availed himself of any accessible resources.” As to a statutory ground for termination, he contended that, under § (c)(i), the 182-day period needed to occur between the initial disposition and the statutory review and permanency planning hearing when the goal was changed to adoption and a petition was authorized to terminate. “Contrary to respondent’s assertion, 182 days must elapse between the initial disposition and termination, not when the goal is changed from adoption to termination.” The time here between the “initial disposition and the termination trial was 260 days, and the time between the initial disposition and the termination petition was 219 days.” As such, “more than 182 days had elapsed.”
Petition to return bank accounts that were transferred into a trust; Effect of a joint bank account with a deposit; MCL 487.703; Lewis Estate v Rosebrook; Hearsay; Then existing state of mind; MRE 803(3); Petition to return real property that was transferred into the trust; The test for mental capacity; Barret v Swisher; Durable power of attorney (DPOA)
Finding no error in the probate court’s determination that there was a genuine issue of material fact as to the realities of the ownership of the accounts (the PNC accounts) between petitioner and her late husband (the decedent), the court affirmed its denial of summary disposition to petitioner. It concluded that she failed to show that the probate court relied on hearsay. Further, the probate court did not err in denying her petition for the return of real property that had been transferred into the Trust at issue, as there was sufficient evidence supporting its finding that she knew what she had signed and its effect. “During the decedent’s life and after the Trust’s creation, funds from two jointly held PNC bank accounts were transferred into the Trust.” Petitioner also met with the decedent’s lawyer “and signed deeds transferring real property into the Trust.” She now disputed those “transfers and filed petitions to have the funds and property returned to her, arguing that she did not understand what she was doing when she transferred the real property and that” respondent-trustee improperly transferred the accounts. The court noted that determining “the realities of ownership is an intensive factual inquiry that will depend on the facts of each case. Petitioner’s affidavit showed that the decedent handled all of their marital finances and gave” her money when she needed it. He took care of her, and she “was largely unaware of their assets or financial status; in fact, she claimed to be unaware of the Trust or DPOA altogether. This is much different than” Lewis, where ownership was more equal. The probate court was concerned whether transferring the “account funds to the Trust was in keeping with how the parties had treated those accounts during their lives and whether distributing small amounts of the accounts to petitioner through the Trust was essentially no different. Contrary to petitioner’s position, establishing prima facie evidence from the accounts’ creation and deposit was not the end of the discussion; this evidence could be rebutted,” and her affidavit showed this was a possibility. As to the real property, the probate court “found no basis to void the transfers” based on her evidence. There was no evidence of undue influence, and her “poor memory and testimony supported the finding that petitioner did not meet her burden to show why the transfers should be voided.”