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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Attorney fee sanctions under MCR 2.114; Amount of the sanctions; Reed v. Reed; Smith v. Khouri; Waiver of the issue of the reasonableness of the hourly rates; Roberts v. Mecosta Cnty. Gen. Hosp.; Reasonableness of the hours billed; Failure to support an argument; Mitcham v. City of Detroit; Reducing hours when faced with “vague” & “redundant” billings; Gratz v. Bollinger (ED MI); Review of the trial court’s factual determinations; Hill v. City of Warren; Burden on the appellant to show a mistake was made; Beason v. Beason; “Block billing”; Attorney fees for pursuing attorney fees; Maryland Cas. Co. v. Allen
Concluding that appellant-attorney did not show any error by the trial court as to the amount of attorney fee sanctions it awarded defendants under MCR 2.114, the court affirmed the $86,386.71 award. Appellant represented the plaintiffs in the underlying case. The only issue on appeal was whether the amount of sanctions was reasonable. The court found that appellant waived the issue of whether the hourly rates were reasonable. As to the reasonableness of the hours billed, it declined “to accept that there is necessarily a correlation between the number of issues raised by a party and the number of those issues a court is obligated to accept.” Appellant asserted that several billing entries were impermissibly vague. He made this same argument to the trial court, which deducted “a number of hours because it could not determine whether the time expended was reasonable.” He did not explain how many billed hours were “covered by the allegedly vague billing entries beyond simply citing to an array of entries.” Given that he made “the exact same argument on appeal as he made to the trial court, it is difficult determine how much of appellant’s requested relief was actually granted by the trial court.” He also contended that federal courts “faced with vague and redundant billings” have reduced the billed hours by 10%-20%. While “Gratz seemingly stands for the proposition that the trial court might not have necessarily abused its discretion had it” reduced the requested number of billed hours by more than the 6% it did, Gratz did “not stand for the proposition that the trial court was required to do so.” The court concluded that he did not show that “the trial court made any mistakes of law or clearly erroneous factual findings.” As to his assertion, “without any supporting authority, that the trial court was not legally permitted to impose attorney fees for any event that occurred after” it entered the order granting summary disposition, the court noted that it “has explicitly held that ‘reasonable expenses’ imposed under MCR 2.114 may include costs of seeking those sanctions.”
Registration of vacant properties & warrantless searches; U.S. Const. amend. IV; Kentucky v. King; Administrative-search exception to the warrant requirement; City of Los Angeles v. Patel; Camara v. Municipal Court; Liberty Coins, LLC v. Goodman; Motion for a preliminary injunction; McGirr v. Rehme
[This appeal was from the ED-MI.] The court held that the district court properly dismissed the plaintiffs-property owners’ constitutional claims arising from the City of Saginaw, Michigan’s “Dangerous Building Ordinance” where warrantless searches of dangerous properties are already permitted under the Fourth and Fourteenth Amendments. The Ordinance required all owners of vacant property to register with the City. The registration form contained a provision permitting the City to enter the property “if it ‘becomes dangerous as defined by’” the Ordinance and gave “‘permission for the City, its agents, employees, or representatives, to enter and board the premises or do whatever necessary to make the property secure and safe.’” The property owners claimed that this provision violated their constitutional right to be free from warrantless searches. The court reviewed the administrative-search exception to the warrant requirement and held that the Ordinance complied with its specifications and that the consent form did “not waive any cognizable Fourth Amendment rights.” A property must be declared unsafe according to a formal administrative process that occurs before any warrantless search. The property owner is notified of the hearing (which “has many fairness guarantees”), has further recourse to the Housing Board of Appeals, and is entitled to judicial review. “Because the registration form requires the property owner to allow entrance to his property only after a fair administrative process determines the building is dangerous, it does not require the waiver of any Fourth Amendment rights.” Since the property owners’ action was properly dismissed for failure to state a claim, their request for a preliminary injunction was also properly rejected. Affirmed.
The Rape-Shield Statute (MCL 750.520j); People v. Sharpe; Whether evidence of an unidentified male’s DNA contained in the victim’s rape kit was evidence of a specific instance of the victim’s sexual conduct for the purpose of MCL 750.520j(1); MRE 402 & 403; Right result reached for the wrong reason; People v. McLaughlin
On remand from the Michigan Supreme Court for reconsideration in light of Sharpe, the court held that the trial court correctly ruled that the Rape-Shield Statute did not bar admission of evidence of an unidentified male DNA donor. However, it vacated in part the trial court’s decision allowing defendant to cross-examine the witnesses and offer rebuttal witnesses as to the DNA sample results, concluding that the prosecution should be allowed to challenge the admission of this evidence on remand under MRE 402 or 403. Defendant was charged with CSC III under MCL 750.520d(1)(c) and (1)(b). In a pretrial order, the trial court ruled that he could cross-examine witnesses and present rebuttal witnesses as to “the results of a DNA sample obtained from the victim’s rape kit, which included the DNA of both defendant and a second, unidentified man,” under MCL 750.520j(1)(b). Sharpe led the court to conclude that the evidence did not fall within the scope of the Rape-Shield Statute, which “applies to ‘[e]vidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct . . . .’” The evidence of the second male DNA donor clearly was “not opinion evidence of the victim’s sexual conduct or reputation evidence of” her sexual conduct. The issue was whether it constituted “evidence of a specific instance of the victim’s sexual conduct.” The court found that, under Sharpe’s reasoning, it did not. While the DNA evidence “could imply that sexual activity occurred that caused the unknown male’s DNA to be present in the victim’s vulva, it is not evidence of a specific instance of sexual conduct.” The evidence did “not describe a particular or specific sexual encounter but rather demonstrates at most that some type of sexual activity may have occurred at some point between the victim and the unidentified male.” Thus, his DNA sample obtained from the rape kit was “not evidence of a particular occurrence of sexual conduct” and did not fall within the scope of the statute. But it “could still be inadmissible under MRE 402” or 403. Affirmed in part, vacated in part, and remanded.
Transporting over 3,000 cigarettes without a license to transport them; The Tobacco Products Tax Act (TPTA) (MCL 205.421 et seq.); MCL 205.428(3) & (6); MCL 205.423(1); Motion to quash; Probable cause; People v. Laws; Bindover; People v. Shami; Criminal intent; People v. Janes; People v. Nasir; Vagueness; People v. Roberts; Notice; People v. Noble; “Person” defined; MCL 205.422(o); “Transporter” defined; MCL 205.422(y); People v. Assy
The court held that the circuit court did not err by denying defendants’ (Davis and Magnant) motion to quash the bindover or their motion to dismiss based on vagueness. They were bound over on charges of transporting over 3,000 cigarettes without a license to transport them. The circuit court denied their motion to dismiss, concluding that the statute provided adequate notice that individuals can be transporters in violation of the statute. It also denied their motion to quash, concluding that there was evidence of at least constructive possession and evidence of knowledge that the truck they were driving had illegal cigarettes. On appeal, the court rejected defendants’ argument that because there was no evidence that they knew they were required to have a license to transport tobacco products, the district court could not have found probable cause to bind them over. It noted that “the circuit court’s determination that the district court applied an appropriate intent standard to MCL 205.428(3)” was not an error of law, and that “there was sufficient circumstantial evidence that . . . Davis knew of the cigarettes to present the question to the jury.” The court also rejected their claim that the circuit court erred by denying their motion to dismiss based on their assertion that MCL 205.428(3) is unconstitutionally vague. First, “the plain language of the statute indicates that an individual violates the TPTA by possessing for transport large quantities of tobacco without a license. Second, even if the department’s interpretations are credited, the statute makes clear that someone—either the individual or the individual’s employer—must have a license authorizing the possession for transport of a large quantity of tobacco. Thus, the statute is sufficiently clear to put defendants on notice that, if they did not personally hold individual licenses to possess the tobacco for transport, they should have inquired as to whether their employer—the KBIC—held such a license before accepting the load for transport.” Finally, the court rejected the dissent’s assertion that Assy applied, finding that this case was distinguishable “in that the ordinary meaning of the term ‘transporter’ reasonably includes the individuals who drive truckloads of cigarettes.” Affirmed.
Sufficient evidence to convict of aiding & abetting the delivery/manufacture of marijuana; People v. Cline; People v. Robinson; The Michigan Medical Marijuana Act (MMMA) (MCL 333.26421 et seq.); Application of the MMMA; People v. Hartwick; Immunity; § 4 of the MMMA (MCL 333.26424); MCL 333.26424(b); “Medical use of marihuana” defined; MCL 333.26423(f); § 4(i); People v. Mazur; Michigan v. McQueen; Right result reached for a different reason; Gleason v. Michigan Dep’t of Transp,; “Enclosed, locked facility” defined; MCL 333.26423(d); “Usable marijuana”; People v. Carruthers; MCL 333.26423; Marijuana infused products; Presumption the Legislature is aware of existing statutes when enacting new laws or amending statutes; GMAC LLC v. Treasury Dep’t; Principle that the MMMA does not apply retroactively; People v. Kolanek; Maintaining a drug house; MCL 333.7405(1)(d); Affirmative defense under § 8 of the MMMA (MCL 333.26428); People v. Bylsma; MCL 333.26428(a); Prohibiting the admission of MMMA evidence; Relevance; MRE 402; Failure to instruct the jury on the meaning of keep & maintain related to maintaining a drug house; Right to a properly instructed jury; People v. Armstrong; People v. Bartlett; People v. Norfleet; Ineffective assistance of counsel; Failure to request an instruction; People v. Thompson; People v. Ericksen
Holding, among other things, that there was sufficient evidence to convict defendant of the two charges of aiding and abetting the delivery/manufacture of marijuana, that he was not entitled to immunity under MMMA § 4, and that he was not entitled to assert a defense under MMMA § 8, the court affirmed his convictions. Defendant, who owned and operated a medical marijuana dispensary, was convicted of delivery/manufacture of marijuana, aiding and abetting the delivery/manufacture of marijuana, maintaining a drug house, and possession of marijuana. As to the aiding and abetting charges, it was alleged that defendant aided and abetted his employees, J and M, in the delivery/manufacture of marijuana. The court held that there was sufficient evidence showing that the employees “each committed the crime of delivery/manufacture of marijuana, that defendant performed acts or gave encouragement that assisted in the commission of those crimes, and that defendant intended the delivery/manufacture of marijuana or had knowledge that [J and M] intended to commit these crimes at the time defendant gave aid and encouragement.” Thus, defendant was not entitled to a new trial on the charges of aiding and abetting the delivery/manufacture of marijuana.
Search & seizure; U.S. Const. amend. IV; Const. 1963, art. 1, § 11; People v. Slaughter; People v. Snider, Probable cause; People v. Wood; People v Kazmierczak; People v. Beuschlein; Effect of a warrantless seizure; People v. Lemons; People v. Brown; Inevitable discovery; People v. Hyde; People v. Brzezinski; Joinder; MCR 6.120; People v. Williams; People v. Gaines; Related offenses; MCR 6.120(B)(1) & (2); A common scheme or plan; MCR 6.120(B)(1)(c); Severance; MCR 6.121(C); People v. Hana; Motion for a directed verdict; People v. Lemmon; People v. Mehall; Sufficiency of the evidence; Identity; People v. Yost; People v. Davis; People v. Carines; People v. Bass; Identification procedure; Stovall v. Denno; People v. Leverette; People v. Colon; People v. Gray; People v. Kachar; Expert testimony; MRE 702; Daubert v. Merrell Dow Pharms., Inc.; People v. Kowalski; People v. Smith; People v. Blevins; Sentencing; Scoring of PRV 2; MCL 777.52(1); The Holmes Youthful Trainee Act (MCL 762.11 et seq.); People v. Temelkoski; People v. Garner; Scoring of OV 4; “Psychological injury to a victim”; MCL 777.34(1); People v. White; People v. Johnson; People v. Lockett; People v. Wellman; People v. Ericksen
The court held that defendant-Taylor’s right against unreasonable seizures was not violated, and that the trial court did not err by refusing to sever his trial from defendant-Blake’s or by refusing to direct a verdict in his favor on the charges involving the robbery of a pizza shop. It also held that there was sufficient evidence to support Blake’s convictions, that the trial court did not err by refusing to allow his expert testimony or by allowing one of the sub shop workers to identify him, and that there were no errors in sentencing. They were convicted of five counts of armed robbery, two counts of conspiracy to commit armed robbery, and felony-firearm arising out of the robberies of a pizza shop and a sub shop. Taylor was sentenced to 25 to 26 years for each of the robbery convictions (to run concurrently) and to a consecutive 2-year term for felony-firearm. Blake was sentenced to 220 to 360 months for his armed robbery convictions, and to a consecutive 2-year term for felony-firearm. The court rejected Taylor’s argument that his right to be free from unreasonable seizure was violated when an officer took his shoes while he was in custody in a separate case. “Because Taylor was never released from custody, all of his personal items, including clothing, would have been processed and seized anyway. Discovery of his shoes was inevitable.” As to his severance claim, both defendants’ actions involved a series of acts constituting parts of a scheme to rob the two restaurants, and “evidence of the other defendant’s conduct would have been admitted in each defendant’s trial in any event.” Further, the trial court properly denied his motion for a directed verdict on the pizza shop robbery charges. The “circumstantial evidence and reasonable inferences thereto could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt.” As to the sufficiency of the evidence to support Blake’s convictions, “there was both affirmative identification of Blake at trial by two witnesses and other circumstantial evidence to support his identity as the gunman for each robbery.” The trial court also did not err when it refused to allow him to present an expert on eyewitness identification testimony, or by allowing one of the sub shop workers to identify him during trial. Given the witness’s testimony about “his ability to clearly view Blake during the entirety of the . . . robbery, there was an independent basis for his identification and no substantial likelihood of misidentification.” Finally, it rejected his claim that the trial court erred in scoring PRV 2 and OV 4. Affirmed.
Sentencing; Whether defendant’s five-month sentence for having a cell phone in prison was procedurally reasonable; United States v. Morgan; 18 USC § 3553(a); United States v. Rayyan; Principle that a challenge to a sentence based upon “unreasonable speculation” is a challenge to its procedural rather than substantive reasonableness; United States v. Van (Unpub. 6th Cir.); United States v. Hughes (Unpub. 6th Cir.); United States v. Cabrera; United States v. Turner (Unpub. 6th Cir.); United States v. Israel (Unpub. 6th Cir.); Whether the sentence was based on unreasonable speculation; United States v. Howder (Unpub. 6th Cir.); Substantive reasonableness; United States v. Vonner; §§ 3553(a)(1) & (a)(2)(A); Disparities in sentencing; United States v. Jones; United States v. Richardson; United States v. Gamble; United States v. Wallace
[This appeal was from the ED-MI.] The court affirmed defendant-Parrish’s five-month sentence for having a cell phone in prison, holding that the sentence, which fell near the bottom of the Guidelines’ range, was both procedurally and substantively reasonable. Parrish, who was serving a 250-month prison sentence on a drug charge, pled guilty to misdemeanor possession of contraband after a woman outside prison reported to law enforcement that he was texting her. He argued that the five-month sentence was substantively unreasonable because the district court based it only upon “unreasonable speculation”—that he was using his cell phone to harass a woman outside of prison and not to contact his family. After first determining that his claim challenged the procedural, rather than substantive, reasonableness of his sentence, the court concluded that it was not unreasonable for the district court to conclude that the woman’s decision to report Parrish indicated that she did not want him to contact her. He also failed to substantiate his claim that he used the cell phone only to contact his children. After holding that his sentence was procedurally reasonable, the court addressed whether it was substantively reasonable and concluded that the presumption of reasonableness attached to sentences within the Guidelines, such as Parrish’s, overcame any of his arguments. The court rejected his claim that the district court improperly “focused solely on deterrence” when fashioning his sentence. “By reasonably inferring that Parrish’s contact with the woman was unwanted and thereby concluding that the case was more concerning than others, the district court appropriately considered the nature and circumstances of the offense . . . as well as its seriousness . . . .” The court found no merit to his argument that he should have only received a one-day sentence like other inmates convicted of the same crime, noting that the district court clearly stated why it rejected this argument—Parrish was contacting someone who did not wish to be contacted. Additionally, “the district court was not even required under § 3553(a)(6) to assess the local disparities of a sentence; rather, the focus of § 3553(a)(6) is on ‘national disparities, not specific individual cases.’”
Request to modify a parenting time schedule; Shade v. Wright; MCL 722.27a(1); Request to remove a right-of-first-refusal parenting time provision from the divorce judgment; Proper cause or a change of circumstances justifying a change to an existing condition on the exercise of parenting time; Kaeb v. Kaeb
The court held that defendant-father could not meet the easier Shade standard to support modifying the parenting-time schedule, and did not show proper cause or a change of circumstances justifying a determination that the right-of-first-refusal (RFR) parenting-time condition in the divorce judgment no longer served the child’s best interests. Thus, it affirmed the denial of his requests to modify the schedule and to remove the RFR provision from the judgment. He argued that he met Shade’s requirements by showing that the child was growing up, engaging in “extracurricular activities, and spent overnights with him on most Tuesdays for nearly nine months due to” plaintiff-mother’s work schedule. He suggested that modification was in the child’s best interests because she loves him and has “stability with him, and because the proposed modifications will result in less ‘back and forth’ for” her. The court disagreed, concluding that the fact plaintiff offered the RFR for several Tuesday overnights for approximately nine months did not constitute a change of circumstances under Shade – rather, it maintained the status quo effectuated by the consent divorce judgment. This case was distinguishable from Shade, as there was “no discernible change in circumstances, other than minor progressions in a grade-school-aged child.” There was no evidence that the existing parenting-time schedule was no longer in her best interests or had “in any way affected defendant’s strong relationship with the child.” Given that “proper cause or a change of circumstances is not precisely defined in a parenting-time situation, and because the changes in the child’s age and activities” here were so minor, the court held “that the trial court’s finding that defendant failed to meet the Shade standard was not against the great weight of the evidence.” Further, it appeared that the source of contention between the parties was not the RFR’s existence but “plaintiff’s attempt to enforce defendant’s compliance with” it. The court found that he did not “show that any diminishment in the parties’ communication quality and ability to co-parent outweighed” the RFR’s benefit to the child or required the trial court’s intervention.
Priority dispute as to liability for paying personal protection injury (PIP) benefits; Accident involving a motorcycle & a motor vehicle; Whether a vehicle was “involved in” the accident for purposes of the No-Fault Act; Auto Club Ins. Ass’n v. State Auto. Mut. Ins. Co.; MCL 500.3114(5); Effect of non-observance by itself; Dalton’s Estate v. Grand Trunk W. R.R. Co.; Principle that circumstantial evidence can present a genuine issue of fact; Bergen v. Baker; Denial of an emergency motion to amend answers; MCR 2.118(A)(2); Weymers v. Khera; PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.
Concluding that a genuine issue of material fact existed as to whether the van insured by defendants was “involved in” the accident, the court held that the trial court properly denied their summary disposition motion. It also held that the trial court did not abuse its discretion in denying their emergency motion to amend their answers, determining that the record did not support a finding that they suffered an injustice. Thus, it affirmed the judgment entered after a jury trial declaring them equal in priority to plaintiff for the payment of PIP benefits to the injured nonparties (the Ls). Given that defendants did not prevail on their claims in Docket No. 340622, the court also affirmed the trial court’s order imposing case evaluation sanctions, their contingent issue raised in Docket No. 341541 in these consolidated appeals. According to plaintiff, its insured failed to stop in time at a red light and rear-ended the Ls, who were on their motorcycle, and the impact pushed them into the van operated by defendants’ insured. In asserting that the van was not involved in the accident, defendants relied on the fact no one “testified to actually seeing the motorcycle hit the van or to seeing the [Ls] hit the van before separating from their motorcycle.” However, the court concluded that defendants erred “by overestimating the probative value of non-observance of an event and underestimating the probative value of circumstantial evidence with respect to the event in presenting a question of fact. ‘The mere fact of non-[observance], standing alone, ordinarily has no probative value whatever as to the occurrence, or non-occurence [sic], of the event.’” Viewing defendants’ evidence in the light most favorable to plaintiff, the court found that the witnesses’ negative testimony “had no probative value as to whether the [Ls] hit the van.” Further, assuming defendants met the initial burden of showing the probative value of their negative evidence, the court held that plaintiff “met its burden to show that a genuine issue of material fact existed that precluded summary disposition.” A jury could reasonably infer from the evidence that the motorcycle hit the van before the Ls separated from it.
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); In re Mason; In re White; In re Powers Minors; In re Hudson; Child’s best interests; In re Moss Minors; In re Olive/Metts Minors; Right to a jury; In re AMB; In re Mathers; In re Sanders; Associated Builders & Contractors v. Lansing; Plea consequences; Ineffective assistance of counsel; Trial strategy; People v. Horn; Failure to object to the trial court’s decision to take “judicial notice” of criminal history; People v. Ericksen; MRE 201; MRE 201(b); Knowlton v. Port Huron
The court held that the trial court properly terminated both respondents-parents’ parental rights to the child where the statutory grounds for termination were established by clear and convincing evidence and it was in the child’s best interests. Also, it held that they were entitled to a jury only at the adjudication, not at the termination hearing. While the trial court erred by failing to inform them of the consequences of their pleas, the error did not require reversal because it did not affect the outcome of the proceedings. Finally, the mother was not denied the effective assistance of counsel. The conditions that brought the child into care included respondents’ possession and use of marijuana, unsafe living conditions, and domestic violence. The trial court found that § (c)(i) was supported by the father’s lack of participation in the service plan, which indicated there was no sufficient likelihood of change. The trial court’s findings were insufficient under § (c)(ii). However, this error was harmless. Finally, as to §§ (g) and (j), the record reflected that the father had not complied with his service plan or benefitted from it. As to the mother regarding § (c)(i), the trial court’s findings that substance abuse and domestic violence continued to be issues were not clearly erroneous. Also, as to §§ (g) and (j), the record indicated that she did not participate in or benefit from services designed to help her become more financially stable. The court was not definitely and firmly convinced that the trial court made a mistake when it found that her lack of participation in and benefit from the service plan showed that she could not provide proper care and custody and that her child was likely to be harmed if returned to her home. Affirmed.