Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Interpretation of the parties’ employment agreement as to monetary payout for unused vacation time; MCL 408.471 of the Payment of Wage & Fringe Benefits Act (PWFBA); “Fringe benefits” & “wages”; Administrative Law Judge (ALJ)
Holding that the ALJ made a clear legal error in his interpretation of the parties’ employment agreement, and the circuit court clearly erred by failing to correct that error, the court reversed and remanded. Respondent’s employment agreement allowed him to take vacation time without losing pay while he was employed. However, it did not provide him “with the right to a monetary payout for his unused vacation time.” The decisions of the ALJ and the circuit court “improperly rewrote the parties’ employment agreement to include a benefit not provided in the agreement.” The court held that “respondent’s employment agreement did not provide for the payment for more vacation days than it already paid him and that the PWFBA also does not require the payment of additional accrued and unused vacation time.”
Exclusion of disputed portions of the DNA analysis report; Relevance; MRE 401 & 402; Unfair prejudice; MRE 403
The court held that the trial court did not err by excluding disputed portions of the DNA analysis report. Defendant was convicted of two counts of CSC III and one count of CSC IV for sexually assaulting his adult daughter. The trial court sentenced him to 5 to 15 years for each CSC III conviction, and 1 to 2 years for the CSC IV conviction. On appeal, the court rejected his argument that the trial court erred in applying the rape-shield statute, noting the trial court did not rely on it in rendering its evidentiary ruling. Rather, it applied MRE 401, 403, and 802 to exclude the DNA evidence at issue. It also properly applied the relevant evidentiary rules. In addition, he offered “no other theory as to how the presence of another male’s DNA on [the victim] made it less likely that he had sexual contact with” the victim. As such, the presence of the other male’s DNA on the victim “was irrelevant and would have been misleading to the jury.” Moreover, the forensic biologist testified that “DNA can transfer through even indirect contact, and that she could not say how defendant’s DNA ended up on” the victim. Thus, defendant “was able to present his argument through other means and admission of the disputed evidence for defendant’s purposes would have been cumulative.” Moreover, even if exclusion of the evidence was improper, reversal was not warranted because the evidence did not support the conclusion that defendant was actually innocent or that the alleged error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Affirmed.
Sufficiency of the evidence for a CSC I conviction; “Sexual penetration”; MCL 750.520a(r); People v Anderson; Jury instruction on the definition of anal opening; Exclusion of evidence of a false prior sexual assault accusation by the victim; People v Williams; Applicability of the rape-shield statute (MCL 750.520j); MRE 403
The court held that there was sufficient evidence of sexual penetration to support defendant’s CSC I conviction and that the trial court did not err in instructing the jury on the definition of anal opening. Further, it did not abuse its discretion in excluding evidence of an allegedly false prior sexual assault allegation by the victim (J). Defendant was also convicted of CSC II, accosting a child for an immoral purpose, disseminating sexually explicit matter to a minor, and indecent exposure. The court recently held in Anderson “that intrusion into the crease of the buttocks, but not into the anal cavity itself, is sufficient to satisfy the penetration element.” J testified in this case “that defendant pushed his penis up against her butt and that his penis went ‘[b]etween the cheeks but not like all the way in[,]’ in other words ‘not to where the poop comes out.’ She further stated that defendant then took his penis ‘out of the crack.’” Thus, this “testimony was sufficient to establish that defendant’s penis entered the crease of her buttocks,” establishing the penetration element. The court rejected his argument that Anderson was wrongly decided and it should invoke MCR 7.215(J)’s conflict resolution procedure. It also found that the trial court’s challenged jury instruction was consistent with Anderson. Finally, while the trial court erred in determining “that the rape-shield statute did not govern the admission or exclusion of defendant’s proffered evidence” about J’s prior accusation, it reached the correct result in excluding it. The trial court “primarily relied on its finding that there was no accusation, possibly because no formal criminal charges were filed.” The court noted that while “Williams suggested that the lack of criminal charges was relevant[,]” Michigan case law has not held “that formal charges are required in order for a prior false accusation of sexual conduct to be admissible.” However, the trial court was correct that defendant did not offer “sufficient proof that the accusation was even made.” Thus, it could have properly excluded this evidence based on the rape-shield statute alone. In addition, it was properly excluded under MRE 403. The probative value of a statement by J made “when she five or six years old, eight years before trial, simply did not warrant the risk of confusing the issues or misleading the jury.” Affirmed.
Sentencing; Scoring of 10 points for OVs 1 & 3; People v Chelmicki; People v Lampe; Distinguishing People v McGraw
Holding that the trial court did not err in scoring 10 points each for OVs 1 and 3, the court affirmed defendant’s sentences. He pled guilty to breaking and entering a building with intent to commit larceny and felonious assault. He was sentenced as a third-offense habitual offender to concurrent terms of 8 to 20 years for each breaking and entering conviction and 6 to 8 years for felonious assault. The court previously issued a peremptory order vacating the felonious assault sentence and remanding for resentencing in accordance with the two-thirds rule, but denied his application for leave to appeal in all other respects. The Supreme Court remanded for consideration as on leave granted with instructions to analyze whether the trial court correctly scored OVs 1 and 3. As to OV 1, the court rejected defendant’s argument “that the trial court improperly considered conduct outside of the sentencing offense because” he struck the felonious assault victim (V) with a vice grip "during a separate offense, not while breaking and entering.” He admitted at the plea hearing that he hit V “in the head with the vise grip at the yacht club. He further affirmed that he did so at the ‘same date and time’ that he broke into the boats and the shed. The vice grip qualified as a weapon for purposes of OV 1 because defendant used it ‘for attack.’” The trial court determined that “the breaking and entering was still ongoing when defendant hit [V] with the vise grip. Unlike in McGraw, where the defendant had already fled from the scene of the crime at the time the conduct in question occurred, . . . [V] encountered defendant while defendant was still on the yacht club property, loading property stolen from the yacht club’s shed into his van.” As to OV 3, the court noted that V had to go to the hospital and get stitches due to defendant striking him in the head with the vise grip. The trial court’s finding that he hit V while the breaking and entering was ongoing established “a causal link between the breaking and entering and [V’s] injury.” The court was not left with a definite and firm conviction that it was mistaken.
Sufficient evidence of an agreement to distribute drugs; The “buyer-seller” exception to the drug-conspiracy statute (21 USC § 846); “Wharton’s Rule”; Sufficiency of the evidence for a communication-facility (§ 843(b)) conviction
The court reversed defendant-Wheat’s drug conspiracy conviction where the government did not present enough evidence of an agreement between Wheat and a drug dealer (R) to distribute heroin to third parties. But it affirmed his communication-facility conviction based on his use of his phone to facilitate a drug felony. Wheat gave R a .3-gram free “sample” of heroin and nothing else. The court reviewed the “‘buyer-seller’ rule that refuses to equate a buyer-seller agreement with a conspiratorial ‘agreement.’” It noted that it has “identified additional ‘factors’ that allow a jury to find an agreement between a buyer and seller to go beyond their own sale.” These include repeated purchases of large drug quantities or more complicated “consignment” or “credit” purchases. But the court held that the “critical element” remains that the conspiracy must “involve more than an agreement to transfer drugs from one party to another.” It concluded that even though Wheat could have been charged with distributing to R, there was insufficient evidence that he conspired with R. Their contact consisted “almost entirely of their phone call before the exchange,” and the exchange itself. There was no evidence that they ever spoke again. Additionally, there was no evidence that Wheat “knowingly agreed that [R] would transfer his sample to a third party in order to turn their two-person distribution into a conspiracy whose ‘essential object’ was this redistribution.” The court opined that the jury in this case based its finding of a conspiracy on the sample transfer alone, but that there was “insufficient evidence of any agreement between Wheat and [R] beyond their own exchange of the sample.” However, the court held that there was sufficient evidence to support Wheat’s conviction under § 843(b) for using his phone in furtherance of a drug-trafficking crime. It noted that “courts regularly hold that a phone makes a drug-distribution crime easier where, as here, the defendant uses the phone to coordinate the logistics of the distribution.”
Competing petitions for probate; Whether there was good cause to grant a motion to extend discovery; MCR 2.503(B)(1) & (C)(2); Ruffin v Kent; Pauley v Hall; Personal representative (PR)
The court held that the probate court did not err by granting summary disposition for appellee-PR, or by denying appellant’s request for an extension of the discovery period, adjournment of mediation, and issuance of subpoenas and by dismissing his petition for probate. The parties filed competing petitions for probate, attached the decedent’s death certificate and purported last will and testament, and sought appointment as PR. Appellant later filed a petition to amend or extend discovery, adjourn mediation, and for the issuance of subpoenas to several of the decedent’s alleged medical providers. On appeal, the court rejected appellant’s argument that the probate court abused its discretion by denying his motion to extend discovery and granting appellee’s summary disposition motion. Although he tried to explain that “his counsel’s failure to complete discovery was because of Hospice, the record is devoid of any attempts by [his] counsel to secure a signed subpoena from the probate court for [the decedent’s] medical records from Hospice.” As such, he failed to show “an adequate explanation for his counsel’s failure to complete discovery necessitating an extension or adjournment.” In addition, he did not “exercise due diligence by waiting to issue two subpoenas for” the decedent’s medical records just before the discovery deadline, and not trying to engage in any other discovery. Counsel stated he had only apparently received records about the decedent’s “cognitive status,” but they had not been provided to the probate court. And because his counsel “admitted that Hospice had not yet even supplied the records he ‘believed’ were vital to the determination of [the decedent’s] testamentary capacity (much less formed any expert opinions or located any relevant evidence as a result of the medical records), the probate court could also conclude the medical records from Hospice would not be material, or that [appellant] had not shown an adequate reason for the failure to subpoena the records from Hospice during the agreed-upon time for discovery.” Affirmed.
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); Children’s best interests; Reasonable reunification efforts; Notice provisions of the Indian Child Welfare Act (ICWA) (25 USC § 1901 et seq) & the Michigan Indian Family Preservation Act (MIFPA) (MCL 712B.1 et seq); § 1912(a); MCL 712B.9(1); In re Morris
The court affirmed the trial court’s order as to the substantive issues raised by respondents-parents on appeal. But it conditionally reversed the trial court’s termination order and remanded for the limited purpose of ICWA and MIFPA notice compliance. The court held that considering “respondent-mother’s extensive history, there was no credible evidence that she would be in a position to parent her children anytime soon.” Thus, the trial court did not err when it terminated her parental rights under §§ (c)(i), (c)(ii), (g), and (j). Based on her “unresolved substance abuse issues, the children’s tenuous bond with respondents, the children’s clear bond with the maternal grandmother, the advantages of the grandmother’s home over respondent’s home, the possibility of adoption, the grandmother’s reluctance to enter into a guardianship because of her strained relationship with respondents, and the children’s needs for permanence, stability, and finality,” the court held that the trial court did not clearly err in finding that termination was in the children’s best interests. As to respondent-father, the court found no merit to his claims that the DHHS failed to make reasonable efforts to reunify him with the children. However, while neither respondent raised the issue on appeal, the DHHS correctly acknowledged “that it and the trial court failed to comply with the notice provisions of the” ICWA and the MIFPA, which were triggered because the father informed the DHHS he had Native American heritage and the DHHS informed the trial court of this information.
Termination under §§ 19b(3)(c)(i), (g), & (j); “Active efforts” required by the Indian Child Welfare Act (ICWA) (25 USC § 1901 et seq) & the Michigan Indian Family Preservation Act (MIFPA) (MCL 712B.1 et seq); MCL 712B.3(a); MCR 3.002(1); In re JL; “Serious emotional or physical damage”; § 1912(f); 25 CFR § 23.121(c)-(d); Child’s best interests
The court rejected respondent-mother’s claim that the DHHS failed to make the active efforts to prevent the breakup of the family required by the ICWA and the MIFPA, and concluded the trial court did not err in finding beyond a reasonable doubt that her continued custody of the child “was likely to result in serious emotional or physical damage to the child.” It also did not err in determining that §§ (c)(i), (g), and (j) supported termination, and that this was in the child’s best interests. Thus, the court affirmed the order terminating respondent’s parental rights. While the child’s two older siblings were originally also involved in the case, one turned 18 during it and the goal for the other was changed to a guardianship, so only one child was at issue in this appeal. The court first concluded that the trial court did not err in finding the DHHS made active efforts to develop “an appropriate supervision plan, but that respondent simply refused to make the changes in her own life that were necessary to implement any viable supervision plan.” In addition, while she made “a fair argument that it would have been more natural to have visits involving all three children at once, and she should not have been required to do all of the driving[,]” in light of their various issues and placements, it was “not clear from the record that regular joint sessions were actually possible,” or that driving them “around would have ensured their safety.” The court further determined that the trial court did not err in suspending her parenting time “after the child reported that respondent had instructed her to act out in her placement.” As to the issue of serious emotional or physical damage, the evidence, including opinion testimony by a Native American expert (C), “reflected that respondent and the children all had serious emotional problems that interfered with their ability to function. [C’s] opinion was supported by her knowledge of and involvement in the case. Respondent unilaterally ended her therapy without much benefit and consistently failed to show a willingness to provide a supportive and supervised environment. The child had a severe need for stability and support that respondent clearly was unable to provide and, in fact, . . . undermined throughout the case.”
Auto negligence action; Whether plaintiff suffered a serious impairment of body function; MCL 500.3135(1); McCormick v Carrier
Holding that plaintiff failed “to show any objectively manifested impairment evidenced by actual symptoms or conditions that someone other than she would observe or perceive as impairing a body function,” the court affirmed the trial court’s grant of summary disposition for defendant. Plaintiff sued defendant for injuries she sustained when defendant rear-ended the vehicle in which she was a passenger. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting summary disposition for defendant because a genuine issue of material fact remained as to whether objective neurological findings showed that she suffered a head injury in the accident that caused her persistent headaches. She “failed to show a physical basis for her subjective complaints of headaches. [Her] medical records clearly document that [she] is in subjective pain. But other than [her] subjective complaints of pain, plaintiff did not present any medical records or medical testimony to show that she has suffered an objectively manifested impairment as is required to recover noneconomic damages under the” No-Fault Act. “All imaging such as MRI scans, CT scans, and X-rays, as well as physical exams, were recorded as normal or benign. All other diagnoses appear to have been made from plaintiff’s subjective complaints of pain. [She] underwent three independent medical examinations, none of which indicated [she] suffered an objectively manifested impairment caused by the accident at issue.”
Termination under §§ 19b(3)(c)(i) & (g); Best interests of the children; In re Moss Minors; In re Olive/Metts Minors
Holding that termination was in the children’s (MP and LG) best interests, the court affirmed termination of respondent-mother’s parental rights. Her parental rights were terminated based on physical abuse. On appeal, the court rejected her argument that termination was not in the children’s best interests as the trial court failed to adequately consider “the principle that ‘a child’s placement with relatives weighs against termination.’” It noted that the record showed the trial court “expressly took this factor into consideration, but nonetheless determined that termination of respondent’s parental rights was in each child’s best interests.” As to each child, the trial court “recognized that relative placement weighed against termination but identified adequate reasons why termination was nonetheless warranted. Given the children’s need for stability and the lack of any indication that respondent would be able to provide stability,” the trial court did not err in its best-interests determinations. The court also rejected respondent’s claim that the trial court should have considered custody orders instead of termination, noting it “repeatedly encouraged the parties to pursue this avenue throughout the case. Ultimately, however, MP’s father did not want respondent in MP’s life, and LG’s grandparents were not ready to enter into a guardianship over LG.”
Termination under § 19b(3)(c)(i); In re White; Reasonable reunification efforts; Failure to comply with offered services; Child’s best interests
Holding that § (c)(i) was established, that reasonable reunification efforts were made, and that termination was in the child’s (M) best interests, the court affirmed the order terminating respondent-mother’s parental rights. The record showed she “failed to comply with the services that were offered to her, including parenting classes, substance abuse therapy, and drug screens.” While the DHHS failed to make a referral for a psychological evaluation, she did not show “how she would have fared better had she undergone” one. Further, the DHHS gave a parent partner two numbers for respondent, and the parent partner tried to contact her, but she “never returned the parent partner’s voicemails[.]” As to § (c)(i), the termination order was issued over 182 days after the initial disposition order. “Respondent’s unsuitable housing and drug issues were the primary conditions leading to adjudication.” She did not rectify either one. While she “had her own apartment for a brief period in 2018” she otherwise was unable to maintain stable housing as “she went in and out of treatment facilities throughout” the case. She also “failed to comply with services such as drug court and drug rehabilitation to help her address her substance abuse issues.” Her housing issues went back to 2017. She “admitted that she began using cocaine when 20 years old and failed to benefit from the services provided to help her achieve sobriety.” The court found that there was no reasonable likelihood “the conditions that led to adjudication would be rectified within a reasonable time considering” M’s age. Finally, “the trial court appropriately considered the applicable factors for” determining M’s best interests. It acknowledged the bond between M and respondent. But respondent failed to comply with her service plan or to visit M, and was absent from M’s “life for an extended period.” M’s foster family was willing to adopt her, and had the ability and desire to provide M “the permanency and stability that respondent lacked . . . .”
Termination under § 19b(3)(c)(i); Children’s best interests
Holding that § (c)(i) existed and termination of respondent-mother’s parental rights was in the children’s best interests, the court affirmed. Evidence presented at the termination hearing established that she showed a general lack of parenting skills throughout the case. Her inability to control them and her discipline style directly impacted their “behavior toward each other and contributed to their sometimes acting out following in person visits with respondent.” The court noted that this “proceeding spanned more than two years and multiple services, but yielded no demonstrable improvement in respondent’s parenting skills.” Respondent contended that termination was premature because she had obtained housing, a vehicle, was employed, and had taken classes at a shelter for women, but she had been unable to show “what she had learned due to COVID-19 restrictions on in-person parenting. In light of the services respondent had received over the course of the previous two years, not to mention the services she received in 2017, during CPS’s prior involvement, and the absence of appreciable benefit from those services,” the court found unpersuasive the suggestion that she “would have been able to internalize and apply lessons learned during two additional months of services in any significant way.” The court concluded that the trial court did not clearly err in holding that there was no reasonable likelihood that she would be able to rectify her parenting skills within a reasonable period of time and in terminating her parental rights under § (c)(i).