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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Attorney fees; FedRCivP 54; Additional discovery; Rule 23(h)); Standing to appeal the “common benefit structure” of the attorney-fee award & an awarded expense; Whether the district court abused its discretion in awarding attorney fees & expenses
[This appeal was from the ED-MI.] The court affirmed the district court’s attorney-fee awards in this Flint Water Crisis litigation. It rejected appellants-Objectors’ claims that they were entitled to additional discovery, and held that they lacked standing to appeal the common benefit structure of the attorney-fee awards. After a settlement was reached, plaintiffs’ court-appointed attorneys, Co-Lead Class Counsel and Co-Liaison Counsel, requested attorneys’ fees and reimbursement for expenses. The district court granted their request in part and denied it in part, using “the percentage-of-the-fund method with a lodestar cross-check.” It awarded plaintiffs’ Counsel $7,147,802.36 for expenses. As to fees, it awarded a Common Benefit Assessment of 6.33% of the total $626.25 million settlement amount, and “capped the aggregate amount that may be paid in other fees and common benefit awards at 25%[.]” Appellants (the Hall Objectors, the Chapman Objectors, and the Roberts Objector) appealed the award. They argued they should have had been allowed to conduct a more “detailed discovery of Counsel’s billing and costs records, that the fee award’s common benefit structure constitutes an abuse of discretion, and that a $500 charge for bone lead scans performed by Co-Liaison Counsel was unreasonable.” The court held that while “Rule 23(h) clearly affords class members the right to object to counsel’s fee request, nothing in the Rule’s plain language specifically entitles class claimants to detailed discovery.” It was not persuaded by the Objectors’ citations to cases from other jurisdictions or by their references to due-process protections. The court characterized their claims that a more extensive review would have revealed inaccurate charges as “entirely speculative.” It then held that they lacked standing to challenge the district court Fee Order’s Common Benefit Assessment. They challenged certain “special assessments” imposed on claimants who did not retain counsel or retained counsel later in the litigation. The court held that “because the Hall Objectors would fare no better with or without the Common Benefit Assessments applicable to their claims, they fail to demonstrate that they have suffered an injury in fact.” The court also held that since the Chapman Objectors were “not aggrieved by the Fee Order’s common benefit structure, they lack standing to appeal the Order’s Common Benefit Assessments.” The court further found that Roberts lacked standing to appeal the order as to the bone scan expense.
Severance pay; Breach of contract; Consideration; Promissory estoppel; Reliance
Holding that plaintiff did not state a legally sufficient claim for either breach of contract or promissory estoppel in this severance pay dispute, the court affirmed summary disposition for defendants-former employers. As to her breach of contract claim, the only allegation she made in her complaint as to consideration was that defendant-Phifer “stated that the severance pay he promised was ‘for all [her] work over the years and because [she] had not received any raises during that time period.’ Thus, the reasons for the promise cited in the complaint consist entirely of past performance of duties.” While all reasonable inferences are to be drawn in favor of the nonmoving party, “plaintiff provided only these past consideration reasons for the promises. To infer that there were additional reasons for the promises that plaintiff failed to mention is not a reasonable inference to make. Even if one infers consideration of continued service similar to a vesting requirement, which has been a prerequisite to make a severance pay promise binding, plaintiff fails to allege the necessary element of mutual agreement. In her complaint, plaintiff fails to specify the period of continued service required of her. In short,” she failed to allege “valid legal consideration and even if, as she argues, this element should be inferred, she has not alleged a mutual agreement.” The court held that her promissory estoppel claim was also insufficient due to lack of reliance. She “failed to allege any change of position, either in the form of action or forbearance, she undertook in reliance on the promise of severance pay. Plaintiff was paid for her work during the office closure period.” She contended that “defendants, as her employers and supervisors, and in a position of trust, should have reasonably expected the promise of severance would induce [her] to continue her employment through the closure period.” But the court found no reason “to infer actual acts or forbearance or reliance when plaintiff had the opportunity to allege such actions, but did not.”
Sentencing; Imposition of life in prison without the possibility of parole (LWOP) for first-degree murder committed when defendant was a minor; Const 1963, art 1, § 16; The Eighth Amendment; Effect of the fact defendant was convicted only as an aider & abettor (not as a principal); Miller v Alabama; People v Carp; People v Stovall
On remand from the Supreme Court, the court held that, based on Miller and Carp, “there is no categorical bar to imposing an LWOP sentence even though defendant was convicted as an aider and abettor” for a first-degree murder committed when he was a minor. Thus, it remanded to the trial court for resentencing consistent with its opinion and the Supreme Court’s directives in its decision in this case (Taylor). The court determined it was clear the U.S. Supreme Court in Miller did not “conclude as a matter of law that the Eighth Amendment categorically barred” a defendant from being sentenced to LWOP. Rather, his or her “role in aiding and abetting the murder was to be treated as a factor for the lower court to consider when contemplating whether an LWOP sentence was appropriate.” In Carp, the Michigan Supreme Court ruled “‘that neither the Eighth Amendment nor Const 1963, art 1, § 16 categorically bars the imposition of a sentence of [LWOP] on a juvenile first-degree-murder offender or a juvenile convicted of felony murder on the basis of an aiding-and-abetting theory.’” The court rejected defendant’s argument Carp has no precedential value because it was vacated by the U.S. Supreme Court. Carp was vacated as to its ruling on whether Miller was retroactive; other aspects of Carp, including its ruling as “to aiders and abettors, remain controlling.” The Michigan Supreme Court recently cited it “for propositions unrelated to retroactivity[.]” The court concluded that “for purposes of the Eighth Amendment and Const 1963, art 1, § 16, defendant in this case can potentially be sentenced to LWOP for first-degree felony murder even though he was convicted as an aider and abettor[.]” But on remand the trial court must “implement the procedures and apply the legal framework set forth” in Taylor. The court noted it was not its “place to evaluate whether Carp is obsolete on” the issue of whether it is “impossible in even the worst aiding-and-abetting scenario” to overcome the presumption that LWOP is a disproportionate sentence and “whether Taylor undermined or effectively overruled Carp on the matter[.]” Likewise, it could not determine “that the Stovall Court clearly intended to overrule or modify Carp in regard to felony-murder cases involving aiding and abetting.” These are matters for the Supreme Court.
Right to a fair trial; Right against self-incrimination; Admissibility of evidence of a defendant’s nonresponsive conduct; People v McReavy; Alibi; MCL 768.20; Notice; People v Merritt; Effect of a party-opponent admission under MRE 801(d)(2)(A); Admissibility of extrinsic evidence of a prior inconsistent statement by a witness; Use of extrinsic evidence to impeach witness credibility under MRE 613(b); People v Stanaway; Jury instructions
Holding that there were no errors requiring reversal, the court affirmed defendant’s convictions. He was convicted of felony murder, armed robbery, felony-firearm, and AWIM for robbing a health food store. On appeal, the court rejected his argument that he was deprived a fair trial because “(1) the trial court committed various evidentiary and instructional errors, and (2) the prosecution improperly commented on his silence during cross-examination.” First, with no “constitutional barrier to admission of defendant’s partial silence during the interrogation,” the trial court “did not abuse its discretion by allowing this minimal questioning by the prosecutor.” Next, the court disagreed with defendant that he withdrew the alibi notices, and “while defendant’s trial counsel did ultimately forgo presenting any alibi witnesses at trial, defendant nevertheless testified on his own behalf that he was elsewhere during the robbery and shooting.” In addition, even if “one or both notices were withdrawn, there existed . . . sufficient contradictions for the notices and related questioning to be admissible as party-opponent admissions for impeachment purposes under McCray.” Further, defendant “was not prejudiced by the challenged jury instructions. Specifically, defendant never requested a limiting instruction regarding the alibi notices, and neither the trial court nor the prosecution suggested to the jury that the alibi notices could be used as substantive evidence.”
Habeas corpus; The Antiterrorism & Effective Death Penalty Act’s one-year statute of limitations (28 USC § 2244(d)(1)); Whether an ineffective assistance of trial counsel claim should be reviewed under United States v Cronic or Strickland v Washington; Whether the state’s court’s denial of petitioner’s claims under Strickland was contrary to or an unreasonable application of clearly established federal law
[This appeal was from the ED-MI.] The court held that Strickland, not Cronic, governed petitioner-Moss’s ineffective assistance of trial counsel (IATC) claims and that the state court’s denial of his claims under Strickland was not contrary to, nor an unreasonable application of, clearly established federal law. Thus, it reversed the district court’s order granting Moss’s habeas petition. He was convicted in Michigan state court of possession with intent to deliver 10 or more kilograms of cocaine and felony-firearm. His convictions were affirmed. He then unsuccessfully moved for relief from judgment, claiming his trial attorney “constructively abandoned” him at pre-trial proceedings and at trial. His habeas petition raised the same claims, relying on Cronic. He also alleged that his appellate counsel was ineffective for failing to raise the IATC claims on direct appeal, thus excusing their procedural default. The district court ruled that although the petition was untimely under the statute of limitations, it would apply equitable tolling. It then denied the petition under Strickland. But on reconsideration, the district court changed its mind and granted him habeas relief under Cronic. The court declined to consider whether equitable tolling was proper, and instead proceeded to the merits. It held that Strickland governed Moss’s claims, not Cronic, because there was no evidence he received a “complete denial of counsel” where he did not show that “counsel was physically absent throughout an entire phase of the litigation or that a state actor prevented Moss’s counsel from adequately representing him.” The court also found that there was no entire failure “‘to subject the prosecution’s case to meaningful adversarial testing[,]’” the second Cronic scenario. Trial counsel’s “approach at trial did not deprive Moss of the opportunity to present a defense because no defense was viable or available to him.” Thus, the court held that “Strickland, not Cronic, governs Moss’s” IATC claims and that the state court’s ruling that he failed to establish the prejudice prong of Strickland was dispositive. Because the state court’s denial of his IATC “claims under Strickland was not contrary to nor an unreasonable application of clearly established federal law,” the court deferred to its decision that he was not entitled to habeas relief. Remanded with instructions to deny the petition with prejudice.
Action seeking PIP benefits for attendant care & replacement services; The one-year-back rule; MCL 500.3145(1); ; Tolling; Devillers v Auto Club Ins Ass’n; Whether the preamendment version of MCL 500.3145 applied; General rule that the relevant inquiry in determining the applicability of a statute is the date on which the cause of action arose; Accrual; MCL 500.3110(4); Bronson Health Care Group, Inc v USAA Cas Ins Co
The court held that the trial court erred by denying defendant-insurer’s motion for partial summary disposition because the preamendment version of MCL 500.3145(1) barred some of plaintiff’s claims and the current version of the statute barred others. Plaintiff sued defendant seeking payment of PIP benefits for injuries she sustained in a car accident. The court found that “plaintiff’s loss was incurred when she received attendant care and replacement services, and the claims for those services accrued at that time. The preamendment version of MCL 500.3145 applies to plaintiff’s claims for attendant care and replacement services accruing before [6/11/19], because the amendments became effective on that date. The trial court erred to the extent it concluded otherwise.” The current version of MCL 500.3145 governed plaintiff’s claims accruing on or after 6/11/19, and they were “subject to the tolling provision in MCL 500.3145(3), if she made a specific claim for these services to defendant.” As such, plaintiff’s claims “for attendant care and replacement services accruing before [6/11/19], are barred by the one-year-back rule of the preamendment version of MCL 500.3145(1).” In addition, based on the trial court record, it did “not appear that plaintiff provided any evidence she made specific claims for payment of expenses actually incurred for attendant care and replacement services until after the filing of her complaint. Significantly, plaintiff does not dispute that she did not submit such claims to defendant before filing suit. Since plaintiff did not timely submit claims for attendant care and replacement services to defendant, there is nothing to toll under MCL 500.3145(3). Despite the availability of MCL 500.3145(3),” she was still restricted by the one-year-back rule as to reimbursement. MCL 500.3145(3) did not apply, and plaintiff could not recover for attendant care or replacement services rendered between 6/11/19 and 11/3/19. Reversed and remanded.
Wrongful death settlement proceeds; MCL 600.2922(6)(d); In re Claim of Carr; Consideration of a party’s failure to attend a ceremony at which the decedent’s ashes were buried; Consideration of evidence that was not part of the record; Credibility assessments; Claim the personal representative (PR) breached fiduciary duties; In re Schwein Estate
Holding that the trial court did not err in distributing the settlement proceeds in this wrongful-death case or in failing to sanction the PR (Webster), the court affirmed. Appellant-Chase (decedent-Desiree’s father) argued that the trial court erred in awarding 100% of the settlement proceeds to Webster (Desiree’s mother). The court concluded that given its “deferential standard of review, the repeated turbulence in the relationship between appellant and Desiree, and the clear, central role Webster played in Desiree’s life as the primary parent, we cannot say that the trial court clearly erred in awarding 100% of the net settlement proceeds to Webster.” Appellant argued “the trial court erred by stating that Desiree expressed to one of her counselors that she feared appellant.” The court determined that the asserted error “was not decisive and thus does not require reversal.” Appellant also contended “the trial court improperly considered his failure to attend a ceremony at which Desiree’s ashes were buried or his failure to ask where she was buried until his deposition.” The court concluded that any “error in referring to appellant’s failure to attend the burial or to ask for the gravesite location was not decisive to the outcome and does not require reversal.” Appellant next asserted “the trial court erred by considering evidence that was not part of the record.” But the court found that he did not establish “any outcome-determinative error arising from Webster’s submission of her bench brief.” Appellant next argued “the trial court erred in assessing the credibility of Webster and” Desiree’s older sister. The court held that he did not identify any basis on which it “should disturb the trial court’s credibility assessments, nor has he shown that the trial court clearly erred in distributing all of the net settlement proceeds to Webster.” Finally, it found no grounds for concluding “that Webster breached any fiduciary duties in her capacity as” PR.
Auto negligence; Vehicle-pedestrian accident; Duty or obligations owed by a pedestrian; Malone v Vining; A driver’s duty owed to pedestrians; Birkhill v Todd; Applicability of MCL 600.2955a(1); Sudden emergency doctrine
The court held that the trial court did not err in denying defendant-Knapp’s summary disposition motion in light of the documentary evidence. Further, “MCL 600.2955a(1) did not serve as a basis to dismiss plaintiff’s complaint.” Lastly, defendant’s reliance on the sudden emergency doctrine was misplaced, and the officers’ determination that he was credible did not remove the issue from the jury. “Defendant was driving on the freeway when his vehicle collided with the decedent, a pedestrian.” The court held that at “common-law, defendant had a duty to look out for pedestrians such as the decedent. Because this duty was established, the trier of fact was required to determine if defendant breached the duty of reasonable care owed under the circumstances.” The court noted that defendant’s testimony was “subject to a credibility determination. It was certainly curious that two other individuals described a person in all black clothing walking on or near the shoulder of the freeway and called 911 to express their concerns. The decedent was visible to these two individuals. Yet, defendant testified that he never saw the decedent, and the first sight of the decedent was when the contact occurred. Whether defendant was looking at the roadway, as he testified, or was distracted by his phone, tiredness, or some other factor presented a credibility determination for the trier of fact.” Defendant contended “that the decedent as a pedestrian also was subject to duties and cited to the fact that the decedent was walking on the freeway, wearing dark clothing, was in a dark area, and was intoxicated.” While defendant also “submitted that the decedent chose to go to the area at night to work on his car[,]” the court noted that “the decedent’s chosen time to attend to his vehicle and his attire did not alleviate the duty owed by defendant. Rather, the decedent’s actions pertain to comparative negligence[,]” not duty. As to defendant’s reliance on MCL 600.2955a(1), while he asserted that the decedent was more than 50% at fault for the collision due to his intoxication, the “medical examiner did not opine that the decedent was impaired at the time of the accident, and the toxicology report did not positively detect any compounds, contrary to” an officer’s testimony. Affirmed.