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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Divorce; Attorney fees for repeated delay in satisfying judgment terms; MCR 3.206(D); Waived reasonableness issue
Concluding that the trial court did not abuse its discretion by awarding attorney fees under the circumstances, the court affirmed the order holding defendant-ex-husband in contempt and requiring him to pay plaintiff-ex-wife “$5,000 in attorney fees for the repeated delay in satisfying the terms of the divorce judgment.” The court noted that he “was required to make three payments to [her] within a specified period in order to execute the divorce judgment terms. [He] claimed that he made the first two payments to his attorney. When the veracity of that statement was called into question, [he] failed to present documentary evidence in support. Instead, [he] claimed that plaintiff was obligated to provide a quitclaim deed. After [he] was ordered to make the payments or sell the property, he sought relief from the judgment, claiming that he was damaged by plaintiff’s dissolution of an LLC. Yet, defendant could not identify specific damages and once again failed to provide proof of his payment of his obligations under the divorce judgment. Finally, although plaintiff requested over $15,000 in attorney fees, the trial court awarded only $5,000.”
Legal malpractice; Charles Reinhart Co v Winiemko; Attorney-judgment rule; Simko v Blake; Credibility determinations; Proximate cause; Successor counsel
The court held that genuine issues of material fact existed on breach of the standard of care and proximate cause in plaintiff-NPC’s legal malpractice claim, so summary disposition for defendant-Butzel was improper. In 2008, Butzel represented NPC concerning a property dispute tied to a golf course development that allegedly overlapped NPC’s land. The firm advised NPC that it had no viable claim to prevent or delay construction, after which NPC later lost its ability to pursue the underlying quiet-title relief. The trial court granted Butzel’s motion for summary disposition, finding that Butzel was not negligent, that NPC failed to show Butzel was the proximate cause of its harm because NPC retained new counsel in 2009 but did not file the quiet-title action until 2011, and that further discovery would not change the outcome. On appeal, the court held that summary disposition was improper because the trial court impermissibly weighed evidence and made credibility determinations when it discounted NPC’s expert affidavit. “‘The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes,’” and the record created factual disputes regarding whether Butzel breached the standard of care in advising NPC and handling communications and filing decisions. The court also found a triable causation question because the equitable-delay findings in the underlying property litigation relied on “NPC’s ‘silence on the title issue’” during construction, and the record supported that at least part of the delay period the courts relied upon began while Butzel still represented NPC, making it a fact question whether Butzel’s alleged inaction and advice contributed to the loss of the underlying claim. Reversed and remanded.
Sufficiency of the evidence for a reckless driving causing death conviction; MCL 257.626(4); The willful or wanton disregard element; People v Fredell; People v Carll; Ineffective assistance of counsel; Failure to advance a meritless argument
Holding that there was sufficient evidence to prove that defendant-Coker “willfully or wantonly disregarded the safety of others[,]” the court affirmed his reckless driving causing death convictions. He challenged the sufficiency of the evidence as to the second element of the offense. “The trial court defined willful or wanton disregard for the jury as ‘more than simple carelessness[] but does not require proof of an intent to cause harm. It means knowingly disregarding the possible risks to the safety of people or property.’ This instruction comports with the caselaw: ‘To show that a defendant acted in wilful and wanton disregard of safety, something more than ordinary negligence must be proved.’” The court noted that Carll provided an “example of sufficient evidence of the” negligence required. The evidence here showed that “Coker was driving while willfully distracted by his cell phone.” His appellate brief asserted that a call he made right before the collision, using a Bluetooth device, showed “Coker ‘was not knowingly disregarding the possible risks to the safety of those around him. It shows that [he] was concerned with the risks. [He] cancelled his future trip to assess the risks, and was travelling near the posted speed limit at the time of the accident.’ But that was not the exclusive manner in which Coker used his phone. The jury also heard evidence that [he] was distracted and not looking up at the road.” The court concluded that the “riffling through documents, using his left hand to hold the documents on his steering wheel, holding his iPhone with his right hand to photograph the documents for a span of two to three minutes, all while holding a six minute long conversation with a colleague rather than looking up at the road demonstrated a culpable state of mind, that Coker knowingly disregarded the safety of those around him. Viewing the evidence in a light most favorable to the prosecution, a juror could find, beyond reasonable doubt, that these actions willfully and wantonly disregarded the safety of others around him.”
Ineffective assistance of counsel; Failure to use remaining peremptory challenges; Failure to call expert witnesses as to the forensic protocol & the side effects of Singulair; Failure to move to strike a police witness’s testimony; Whether the trial court should have sua sponte stricken that testimony; Denial of defense counsel’s request to define “sexual conduct”; People v Lemons
The court held that defendant-Smith “was not denied his constitutional right to a fair trial, his trial defense counsel was not ineffective, and the trial court did not abuse its discretion in denying defense counsel’s request for a” jury instruction defining sexual conduct. Thus, it affirmed Smith’s CSC I and II convictions. He was charged with multiple counts involving two children. His convictions concerned only one (ES); the jury acquitted him of the other charges. As to his claim that his trial counsel was ineffective for not using remaining peremptory challenges and allowing certain jurors (3. 115, and 122) to remain on the jury, the court concluded that the “failure to dismiss Jurors 115 and 122 could have been strategy[.]” Juror 115 disclosed that she had been the victim of sexual assault, and Juror 122 stated that family members had been victims of sexual assault. But both “swore that they could try the case justly.” The court noted that case law requires it “to presume jurors follow their instructions,” and to “accept their oath of impartiality as true.” In contrast, it doubted “that allowing Juror 3 to serve on the jury was sound trial strategy. Juror 3 disclosed her step-daughter was sex-trafficked for five years[.]” When asked whether she could separate the facts of this case and follow the trial court’s instructions, she “responded ‘I believe so.’ Stating ‘I believe so’ is different than stating a firm ‘yes’ when asked whether one can be fair and impartial.” But the court found there was “no reasonable probability that if Juror 3 or any other juror was dismissed, the outcome of Smith’s trial would have been different.” It noted that his supplemental brief offered “no substantive argument that the outcome” would have been altered. And “the record contains evidence of the opposite, that the jury carefully considered the facts and the law and rendered a fair and impartial verdict.” Among other things, “the jury did not wholesale find Smith guilty on every count.” As to the ineffective assistance claims related to defendant’s assertion “the forensic interview protocol was not followed during ES’s forensic interview,” the court found that it appeared the police detective (D) did follow the protocol. Thus, “defense counsel was not ineffective for failing to move to strike [D’s] testimony, and the trial court could not have plainly erred by failing to sua sponte strike” it.
Habeas corpus; The Antiterrorism & Effective Death Penalty Act’s (AEDPA) one-year statute of limitations; 28 USC § 2244(d)(1)(A); Whether defendant’s postconviction motion tolled the statute; Applicability of the “prison-mailbox rule” under MCR 1.112; Whether the court rule applies retroactively; Whether the motion was timely deposited in the prison mailbox; Filing dates under the MCRs; MI Sup Ct IOP 7.202(4)-1; MCR 6.503(A); Equitable tolling; Whether the petition would have succeeded on the merits; Ineffective assistance of counsel; Strickland v Washington
[This appeal was from the ED-MI.] The court reversed petitioner-Borns’s conditional grant of habeas corpus, holding that his petition was untimely under the AEDPA’s one-year statute of limitations, and that the statute was not tolled by his postconviction motion. Borns was convicted in Michigan state court of AWIM and illegally possessing a gun, and his appellate efforts failed. He filed for habeas relief, arguing, among other things, that his trial counsel was ineffective for failing to investigate and call certain witnesses and for failing to raise issues on appeal. The district court rejected the government’s argument that the petition was time-barred under the AEDPA’s one-year statute of limitations and granted Borns a conditional writ. There was no question that his petition fell outside the limitations period, but Borns argued that the postconviction motion he filed in state court tolled the statute. The parties disputed when this motion was filed. The court looked to Michigan law and held that the current “prison-mailbox” rule did not apply where he filed his motion before the current court rule took effect. His claim that the rule should be applied retroactively failed where Michigan requires a “clear intent” for retroactive application and “the rule’s text says nothing about retroactivity.” The court also held that his attempt to invoke the earlier appellate prison-mailbox rule was futile as that rule did not cover postconviction motions. Further, even if the prison-mailbox rule applied, he failed to show that he timely deposited the motion in the mailbox, instead relying on his signature date. Where the prison-mailbox rule does not apply, “the Michigan Supreme Court considers a document ‘filed’ ‘only when it is received by the Clerk’s Office in Lansing.’” Here, the motion was received outside the time limit. The court declined to apply equitable tolling, and further found that even if the petition had been timely, it would not have succeeded on the merits where Borns’s trial counsel was not deficient under Strickland’s deferential standard.
Plea agreement waiver of defendant’s right to appeal a within or below Guidelines sentence; United States v Morrison; Effect of the fact the sentence was imposed after a probation revocation hearing
The court dismissed defendant-Appleton’s appeal of her sentence where her plea agreement waived her right to appeal it, holding that the fact her sentence was imposed after a probation revocation hearing provided no reason to treat her waiver differently. She pled guilty to possessing controlled substances with intent to distribute and possessing stolen ammunition. The district court sentenced her to five years’ probation rather than the 41 to 51 months recommended under the Guidelines. Her plea contained an appeal waiver under which she “waived her right to appeal any sentence for her offense of conviction within or below the Guidelines range[.]” She was later arrested for possessing an unprescribed drug, thus violating her probation and resulting in the district court’s imposition of a 44-month sentence. She appealed, challenging her sentence’s procedural and substantive reasonableness. Appleton argued that the plea agreement waiver did not apply where “the district court sentenced her to imprisonment only after revoking her initial sentence of probation.” However, the court reviewed the plea agreement, and noted that the 44-month sentence “safely fell” within the Guidelines range for her initial offense. It held that, contrary “to Appleton’s suggestion, ‘revocation sentences are part and parcel of the sentence underlying the original conviction,’ not a freestanding, unrelated sentence.” The revocation took her “back to where she started, from a sentencing standpoint, including being subjected to her negotiated appeal waiver.”
Negligent hiring, retention, & supervision claims; Mueller v Brannigan Bros Rests & Taverns LLC; Employer liability for an employee’s torts; Hamed v Wayne Cnty; Constructive knowledge of alleged prior acts of sexual assault
On remand, the court held that there was a genuine issue of material fact as to “whether defendants had constructive knowledge of” defendant-Babu-Rao’s (their employee) alleged prior sexual assaults “through the housekeepers’ actual knowledge.” Thus, the trial court correctly denied defendants’ summary disposition motion. Babu-Rao’s claimed “prior history at the current hotel or a previous hotel, or both, specifically included one or more sexual assaults. Further, the assaults against both plaintiffs involved physical touching of a sexual nature. The assaults were consistent with Babu-Rao’s history, so it follows that, if defendants had constructive knowledge of [his] prior sexual assault(s) of hotel guests, his assaults of plaintiffs were foreseeable.” To show constructive knowledge, plaintiffs relied, “in relevant part, on the statements of two housekeepers and their knowledge of Babu-Rao’s prior assaults as expressed to [plaintiff-]Cummings, which she described in her deposition[.]” The court noted that “the housekeepers allegedly told Cummings that they had knowledge that Babu-Rao had sexually assaulted, or perhaps harassed, other people. Moreover, while not directly stated in Cummings’s deposition testimony, it may reasonably be inferred that this conduct occurred against other female guests of the hotel, and that the housekeepers became aware of this conduct in the course of their employment. If the housekeepers’ statements were true, then the owner defendants, i.e., Jagu and Patel, arguably had constructive knowledge of Babu-Rao’s alleged prior acts.” The court concluded that to “be clear, while only knowledge of certain ‘material’ facts may be imputed to the employer, not all facts known by its employees,” it found “at this stage of the proceedings, . . . that the knowledge allegedly possessed by the housekeepers of sexual assault committed by Babu-Rao may fairly be imputed to defendants. That is, it is reasonable to infer that the housekeepers became aware of Babu-Rao’s prior acts during the housekeepers’ employment duties, and they had some unique obligation to remit that knowledge to their employer.” Thus, the court concluded that “given the housekeepers’ statements to Cummings, plaintiffs established a genuine issue of material fact regarding whether defendants had constructive knowledge of Babu Rao’s alleged prior sexual assaults before his sexual assault of” plaintiff-Turrentine. Affirmed.
Termination under §§ 19b(3)(b)(i) & (k)(ii); Doctrine of anticipatory neglect; Comparing In re Mota; Advice of appellate rights; MCR 3.972(F); Child’s best interests; In re Olive/Metts; Effect of relative placement
The court held that terminating respondent-father’s parental rights was supported under §§ (b)(i) and (k)(ii), that he was properly advised of his appellate rights, and that termination was in the child’s (JBI) best interests. The case arose from “respondent’s sexual assault of JBI’s half-sister, TM.” TM testified about respondent’s actions, and the trial court found her “testimony to be sincere and credible.” It was unpersuaded by respondent’s efforts to discredit her “by stating that she had a motive to lie to get out of trouble and pointing out that she was unable to provide the precise dates and times of the abuse. Deferring to the trial court’s special opportunity to judge the witnesses’ credibility,” the court found that its reasoning supported “a finding that respondent’s sexual abuse under” §§ (b)(i) and (k)(ii) “was proved by clear and convincing evidence.” Further, because the children were “siblings, respondent’s sexual abuse of TM supported termination of his rights as to JBI under” these statutory grounds. The court rejected respondent’s assertion that there was no evidence showing “a reasonable likelihood that JBI will be harmed if he is returned to respondent’s care, and that the doctrine of anticipatory neglect” did not apply. He “repeatedly sexually abused his stepdaughter. On one occasion, [he] sexually abused TM while JBI was present in the same room sleeping.” Under the circumstances, there was “evidence to believe that [he] may not restrain himself from sexually abusing JBI. It was thus appropriate for the trial court to evaluate a respondent’s potential risk to JBI by analyzing how respondent treated TM.” As to the advice of appellate rights, he was advised of his rights “after the best-interest portion of the combined termination hearing” and in writing. The court also found that, while several factors weighed against it, the trial court did not clearly err in finding that termination “was in JBI’s best interests. Respondent’s parenting ability was concerning.” In addition to his abuse of TM, a form of domestic violence, there was testimony that JBI’s dental needs were not met while in his care. “Finally, stability and permanency would be beneficial for JBI.” In his grandparents’ care, he “was able to maintain relationships with his siblings,” which he would not be able to do in respondent’s care. The grandparents’ willingness to adopt him also favored termination. Affirmed.
Termination under § 19b(3)(c)(i); Reasonable reunification efforts; Child’s best interests
In these consolidated appeals, the court affirmed the trial court’s order terminating respondent-father’s parental rights to child-RS and respondent-mother’s parental rights to children-RS, HD, and CD. The father contended “that the trial court clearly erred by finding statutory grounds to terminate his parental rights when he substantially complied with his parent-agency treatment plan.” The court could not “say that the trial court clearly erred in determining that clear and convincing evidence established” § (c)(i) as a statutory basis for the termination of his parental rights. It further found that given the “record, the trial court did not plainly err by determining that DHHS met its obligation to accommodate respondent-mother’s cognitive and intellectual disabilities and, therefore, that DHHS’s efforts at reunification were reasonable under the circumstances.” Also, given the “facts, it was not clearly erroneous for the trial court to determine that termination of [the] mother’s parental rights was in RS’s best interests.” Further, the court found that “the trial court did not clearly err when it concluded that termination of [her] parental rights was in the children’s best interests.” Finally, under “these circumstances, and in light of the grounds for the trial court’s best-interest determination and ultimate ruling, respondent-mother has not shown a due process violation.”