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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Contract dispute; Elements of fraud or negligent misrepresentation; Roberts v Saffell; Principle that fraud must be pled with specificity; MCR 2.112(B)(1); A promissory note as a written contract; Principle that a promise by a bank must be in writing; MCL 566.132(2); Partial performance; Zander v Ogihara Corp; Promissory estoppel; Whether a valid release existed; Negligence; Lelito v Monroe; Duty
The court held that the trial court did not err by granting defendant-bank summary disposition of plaintiffs-business owner’s (Lammy) and businesses’ claims. Lammy engaged with defendant to fund the buyout of his partner in their concrete business (Livingston) and refinance the debt of his other business (Modern). The parties eventually agreed on two loans: the Livingston loan and the Modern loan. After closing the Livingston loan, Lammy objected to changes in the amount of the notes and the payment terms of the Modern loan from the initial proposal. Plaintiffs later sued defendant alleging it negligently engaged in self-dealing and unilaterally changed the terms of the loans, breached its fiduciary duty by failing to properly distribute the Modern loan proceeds to plaintiffs, rather than itself, and “engaged in constructive fraud and misrepresentation by waiting to disclose unilateral changes to the final loan documents until plaintiffs had no choice but to close on the loans.” On appeal, as to plaintiffs’ fraud claim, the court concluded that because “MCL 566.132(2) clearly and unambiguously imposes an evidentiary burden for any claim seeking to enforce a promise by a financial institution, plaintiffs cannot avoid the statute of frauds by framing his request to enforce an oral promise as a fraud claim.” And because each of the notes were “for a term greater than one year, defendant’s partial performance of an alleged oral promise did not exempt application of MCL 566.132(2).” Further, defendant’s “failure to disclose a last-minute material change to the payment terms of the Modern loan” was not fraudulent, and plaintiffs’ “reliance on promissory estoppel to advance its fraud claim, which sought to enforce an oral promise against a financial institution, was barred.” The court also rejected their claim that “(1) no release provision as to the Modern loan exists and, therefore, defendant’s reliance on the release provision was misplaced, and (2) the release provision did not apply to plaintiffs’ claims asserted after the Livingston loan was closed.” Because plaintiffs did not “dispute their voluntary agreement to, and signature on, the release provision, the trial court properly concluded the release provision barred” their claims as to the Livingston loan, and “made no error with respect to the release.” Finally, the trial court did not err by dismissing the negligence claims, as it “properly found that plaintiffs failed to establish any duty arising outside of defendant’s contractual relationship with plaintiffs.” Affirmed.
Hearsay; Statements offered to show the effect on the listener; Commands distinguished from assertions; Present sense impression hearsay exception; MRE 803(1); People v Chelmicki; Excited utterance exception; MRE 803(2); Text messages; Ineffective assistance of counsel; Failure to make a futile objection; Other acts evidence; MCL 768.27b; MRE 403; MCL 768.27; Testimony about cell phone locational information; Lay witness opinion testimony; MRE 701; Cumulative error; Results of a forensic search of defendant’s cell phone; Affidavit in support of the search warrant; People v Hughes (On Remand); Probable cause
Concluding that the challenged out-of-court statements by the victim either were not hearsay or fell under an exception, the court held that the trial court did not admit inadmissible hearsay and defense counsel was not ineffective for failing to object. Further, the trial court did not abuse its discretion in admitting other acts evidence from two of defendant’s former girlfriends, or testimony by a police officer about cell phone locational information. In addition, while “a reasonably cautious person could not have concluded that there was a substantial basis for finding a fair probability that evidence of the crime would be found on defendant’s cell phone[,]” any error in admitting the phone’s search history was harmless. Thus, the court affirmed his first-degree murder conviction. The victim was his wife. Three of the challenged utterances “were offered to show that a quarrel occurred and likely had an effect on defendant rather than to prove the truth of the matters asserted,” and thus, were not hearsay. Further, “the victim’s directives to defendant to refrain from buying cigarettes and to pack his bags and leave were commands rather than assertions, and therefore were not statements under MRE 801(a), and” not hearsay. The second group of challenged utterances were admissible under MRE 803(1) and (2). The victim’s statements to a witness (J) “described the encounter she just had with defendant outside the home, the statements were the victim’s perceptions of the encounter, and the statements were made to [J] immediately upon the victim entering the home after [J] heard the victim and defendant arguing outside.” Thus, they qualified as present sense impressions. They also qualified as excited utterances. According to J, “the victim appeared shaken, and the statements arose from and were related to the encounter between the victim and defendant that [J] had just overheard outside the home.” Further, the victim’s text messages to defendant “asserting that the marriage was over, that she did not want to reunite with defendant, and that the police were on the way were not offered to prove that the marriage was over or that the police were on the way, but” rather to show that they “were continuing to quarrel and that defendant might have believed that the victim was ending the relationship and had called the police, thus” revealing a motive for him to shoot her.
Ineffective assistance of counsel; Eliciting testimony from an expert witness that was “misleading” & “prejudicial”; MRE 702’s relevancy & reliability requirements; “Opening the door” for the prosecutor to elicit testimony bolstering the victim’s credibility; Trial strategy; Prosecutorial error; Vouching; Eliciting testimony about the victim’s character for truthfulness; Prejudice; Other acts evidence; Notice that certain witnesses would be testifying; Constitutionality of MCL 768.27a; Request for a remand for a Ginther hearing
The court concluded that defendant was not denied the effective assistance of counsel, and although it held that plain prosecutorial error occurred, under the circumstances, he was not entitled to a new trial. Further, as to his other acts evidence claims about “his sexual assaults of the victim’s sister and two other individuals,” the court found that he “failed to establish plain error affecting substantial rights.” Finally, his claim that he was unfairly prejudiced by the admission of evidence from these witnesses had no merit. He was convicted of CSC I. The trial court qualified witness-G, “over defendant’s objection, as an expert in the area of ‘child sexual abuse and behavior’ on the basis of her education and extensive experience.” Defendant claimed that counsel’s cross-examination of G “was so ‘unhelpful, unreliable, and prejudicial’ to defendant’s case that it deprived him of his Sixth Amendment right to counsel.” However, defendant failed “to acknowledge that his attorney obtained several useful concessions from [G] that, although rare, children do lie about sexual abuse and sometimes even intentionally misidentify their abuser. Defense counsel used these concessions his during closing argument to support his theory that the victim’s allegations against defendant were false.” But the court acknowledged that “counsel’s question about how often children make false claims led to an answer that undermined defendant’s theory of victim fabrication. Nevertheless, on the whole, defense counsel had a sound, strategic reason for asking the now challenged questions in order to support defendant’s theory. In addition to the question being a component of an overall strategy that required establishing that children do lie, counsel would have likely expected the jury to inevitably learn that such false claims are uncommon. Even viewing the question in isolation, counsel could reasonably have concluded that it would be better if the jury heard it on cross-examination, where counsel had a greater modicum of control than on redirect.” While the court concluded that the prosecution committed plain error in eliciting testimony about the victim’s character for truthfulness when defense counsel had not directly challenged this, it found that the jury did not convict an actually innocent man, noting that “the evidence against defendant was overwhelming.” Affirmed.
Sentencing; Scoring of OV 14; Whether defendant was a leader in a multiple offender situation; MCL 777.44(1)(a); People v Dickinson; “Lead”; People v Rhodes (On Remand)
The court held that the trial court did not err by scoring 10 points for OV 14. Defendant pled guilty to breaking and entering with intent to commit a larceny for breaking into a church. The trial court sentenced him to 38 months to 10 years. On appeal, the court rejected his argument that he was entitled to resentencing because the trial court erred by scoring 10 points for OV 14. At the plea hearing, defendant testified that both he and his girlfriend entered the church through the broken window to steal money. “This was sufficient evidence to show a multiple offender crime.” In addition, there was sufficient evidence to find defendant took a leadership role in the breaking and entering. First, he “admitted to being the person who actually broke the window to gain entry to the building.” Second, it was reasonable to infer he “was driving the van because [his girlfriend] was in the passenger seat when police discovered her. And driving to the scene of a crime is a form of directing the action.” Further, the shoeprints taken from the scene and the gloves with his name written on them, paired with the fact that his girlfriend “was found in the van and defendant was not, all at least suggest that defendant took the more active role during the break-ins. Taken together, the evidence and the reasonable inferences drawn from it tends to show that defendant acted first or was an otherwise a primary cause of the break-ins.” Affirmed.
Sentencing; Motion for “compassionate release”; 18 USC § 3582(c)(1)(A)(i); Career-offender enhancement; USSG § 4B1.1; United States v Havis; Whether a Havis error could constitute an “extraordinary & compelling” reason for a sentence reduction; Whether Havis can be applied retroactively; United States v Hunter; Motion under 28 USC § 2255
The court affirmed the district court, holding that defendant-McKinnie was not entitled to a sentence reduction under § 3582(c)(1)(A)(i) based on a Havis error because Havis does not apply retroactively and thus, does not constitute an “extraordinary and compelling reason” to modify an inmate’s sentence. When sentencing McKinnie for drug crimes, the district court ruled that he was a career offender under § 4B1.1 where he had two prior convictions for controlled-substance offenses: a conviction for conspiring to distribute crack cocaine and a conviction for an attempted-trafficking offense. After the court’s decision in Havis, he petitioned under § 2255, arguing that those offenses could not provide a basis for the career-offender enhancement. But the district court rejected the petition, concluding that even though his career-offender designation “was seemingly a Havis error,” he was not entitled to collateral relief. McKinnie then moved for “compassionate release” under § 3582(c)(1)(A), arguing that the Havis error, obesity and hypertension, and the risk of contracting COVID-19 constituted “‘extraordinary and compelling reasons to reduce his sentence.’” The district court also denied this motion. After the court remanded, the district court again denied the motion. The court first held that a Havis error cannot constitute an extraordinary and compelling reason to grant a sentence reduction under § 3582(c)(1)(A)(i). Even though Havis held that attempted drug-trafficking offenses could not provide a basis for a career-offender enhancement, Havis came down after McKinnie’s sentence became final. Thus, the issue was “whether new judicial decisions concerning the Guidelines are ‘extraordinary and compelling’ reasons to modify an inmate’s sentence.” Noting that it confronted this question in Hunter, the court concluded that “federal sentencing law presumes that judicial decisions are not retroactive[,]” and it saw no reason to upset that presumption in this case. McKinnie then argued that combining the Havis error with his other allegations should succeed under § 3582(c)(1)(A)(i). But the court rejected this argument, holding that “his obesity and hypertension, risk of complications from COVID-19 infection, conditions of incarceration, and good behavior while in prison” did not satisfy the “extraordinary and compelling” standard required to justify a sentence reduction.
Subject-matter jurisdiction over proceedings as to a change of situs of a trust from Michigan to Illinois; MCL 700.7105(1); Whether the trust had its principal place of administration in another state; In re Doll Trust (Unpub); Distinguishing In re Seneker Trust (Unpub); Order for the trustee to turn over a tax form (form 706) to the beneficiaries; Standing to request the form
In Docket No. 355947, the court held that appellant-trustee (Costello) “effectuated a change to Illinois of the principal place of administration of the Trust and that” the probate court lacked authority to invalidate that transfer. In Docket No. 356500, the court held that his assertion “the entire proceedings in the probate court must be declared a nullity at this point in time” had no merit. It noted that if, on remand in Docket No. 355947, the probate “court entertains outstanding petitions, its order to provide Trust information would be valid.” Costello argued that the probate court erred by holding that it had subject-matter jurisdiction over the proceedings. Given the language of MCL 700.7205(1), the court concluded that an important question was “whether the Trust did, in fact, have its principal place of administration in another state by virtue of what Costello did before any proceedings were initiated.” He argued that the terms of the Trust “allowed him to transfer the principal place of administration of the trust to Illinois without following the notice requirements set forth in MCL 700.7108.” Appellees contended that he “needed to follow this statute and that the lack of 63 days of notice, as required by MCL 700.7108(4), rendered his attempt to transfer the principal place of administration from Michigan to Illinois ineffective.” Costello relied on MCL 700.7105(1). The court held that the Trust was “unambiguous in stating that the trustee can change the principal place of administration of the Trust by simple ‘notice’ to each beneficiary.” It was not disputed that they received “notice of the change. Rules of trust construction indicate that Costello effectively transferred the principal place of administration of the Trust to Illinois.” The court found In re Doll Trust persuasive. The court there stated that “because the Trust agreement governs the change of situs, the probate court was correct to conclude that [the trustee] was not required to provide the Trust’s beneficiaries notice of her intent to move the Trust’s situs in accordance with the Michigan Trust Code.” The Trust here also governed the change of situs. While it did “not include the ‘sole discretion’ language used in In re Doll Trust, it” did state that the trustee had “the power to perform every act that a reasonable and prudent investor would perform” to administer the trust “without the approval of any court or beneficiary” and had the authority to “Change the situs and principal place of administration of any trust under this Agreement by notice to each current beneficiary.” The court noted that whether "MCL 700.7205(1)(b) should be used for further petitions is a question for further proceedings." Reversed in part and remanded.
Termination under §§ 19b(3)(c)(i) & (g); Harmless error
While the court concluded that the trial court erred in terminating respondent-father’s parental rights under § (g), it found the error was harmless because termination was appropriate under § (c)(i). The trial court here “incorrectly applied the pre-amended version of” § (g), under which termination was proper if “[t]he parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.” Under the amended version, termination “is proper when ‘[t]he parent, although, in the court’s discretion, financially able to do so, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.’” Because it applied the pre-amendment version, “the trial court did not determine if respondent was financially able to provide proper care or custody for” the child at issue, MW. In addition, given that it determined he “‘was not employed other than briefly at the beginning of the case,’ respondent presumably did not have the financial ability to provide proper care and custody of MW.” But the error was harmless because there was ample record support for terminating his parental rights under § (c)(i), and only one statutory ground must be established. The conditions that led to his adjudication “were respondent’s substance abuse, domestic violence, mental health issues, and a lack of employment. Given respondent’s lack of compliance with the case service plan, the trial court did not clearly err by finding that respondent failed to rectify these conditions and was unlikely to do so within a reasonable time.” Affirmed.