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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Telephone Consumer Protection Act (TCPA); 47 USC § 227; Fax advertisements sent by computers; § 227(b)(1)(C); “Sender”; 47 CFR § 64.1200(f)(10); Personal jurisdiction; Fed.R.Civ.P. 4(k)(2); Class certification, Fed.R.Civ.P. 23(b)(3); Out-of-state class members; Bristol-Myers Squibb Co. v. Superior Court of CA, San Francisco Cnty.
[This appeal was from the ED-MI.] In this case involving unsolicited faxes under the TCPA, the court decided several issues of first impression in the Sixth Circuit. It held that under Rule 4(k)(2), personal jurisdiction can exist over a foreign company based on its contacts with the U.S. as a whole. It also held that faxes received by computers fall within the scope of the TCPA. Further, at the class-certification stage, courts are not required to conclusively decide what evidence will ultimately be admissible at trial. Finally, the court declined to extend Bristol-Myers Squibb so as to “require the district court to have personal jurisdiction over the defendant as to each unnamed class member.” Plaintiff-Lyngass and other class members received two unsolicited fax advertisements from defendant-Curaden USA, which they claimed violated the TCPA. Curaden USA was the exclusive U.S. distributor of defendant-Curaden AG’s products. The court agreed with the district court that pursuant to Rule 4(k)(2), “it had personal jurisdiction over Curaden AG due to Curaden AG’s contacts with the United States as a whole.” It noted that Curaden AG had decided to enter the American market, and that it had retained the right of approval over Curaden USA’s marketing materials. But the court agreed with Curaden AG that it was not liable as a “sender” under the TCPA, holding that “the TCPA does not impose strict liability on a manufacturer simply because its products wind up on the face of an unsolicited fax advertisement; the manufacturer must independently fit the role of a ‘sender.’” Because Curaden AG had no knowledge of the faxes, it was not a sender. The court next held that faxes received by computers fall within the scope of the TCPA where its definition of a telephone facsimile machine encompasses “‘equipment’ that has the ‘capacity . . . to transcribe text or images,’ . . . from or onto paper—as long as the electronic signal is transmitted or received over a telephone line.” Addressing another issue of first impression, the court held that the district court “did not abuse its discretion in granting class certification when it relied on evidence that had yet to be authenticated.” Further, it did not abuse its discretion in excluding the summary-report logs, and its establishment of a claims-administration process was proper. In an additional matter of first impression, the court held that “Bristol-Myers Squibb does not extend to federal class actions.” Rather, a district court “need analyze only the claims raised by the named plaintiff, who in turn represents the absent class members[.]” Affirmed.
Sufficiency of the evidence; Whether defendant was the perpetrator; Identity; Motion for a Wade hearing; Identification evidence; Driving with a suspended license (DWLS)
The court held that defendant was the perpetrator of the offenses for which he was convicted. Also, because he failed to present evidence that Officer T’s identification was tainted by a suggestive and impermissible pretrial procedure, the trial court did not abuse its discretion by denying his request for a Wade hearing. Likewise, because he failed to show that the identification procedure that led to T’s identification was suggestive, the trial court did not clearly err by admitting the evidence. He was convicted of second-degree fleeing and eluding a police officer and DWLS, second or subsequent offense. Defendant argued that the prosecution presented insufficient evidence he was the perpetrator of the offenses for which he was convicted. In front of the jury, T identified defendant as the individual he pulled over. T “testified that he identified defendant as the driver shortly after the incident occurred when he saw a picture of defendant in a police database and immediately recognized defendant as the driver. [T] stated that he was confident in his identification of defendant as the driver. The jury also viewed a video of the stop and [T’s] interaction with the driver taken from [T’s] body camera, and still shots taken from the body-cam video. In the video and photographs, the left side of the driver’s face, and at one point nearly all of the driver’s face is visible. The jury had the opportunity to compare defendant’s face to the face depicted in the video and still photos, and decide whether defendant was the person in the photo and videos.” Based on the video, photos, and T’s testimony, the jury could reasonably determine beyond a reasonable doubt that defendant was the driver of the vehicle.
Resentencing; Reasonableness & proportionality; Waived issue
Holding that there was no basis whatsoever to reverse the minimum sentences the trial court imposed for defendant’s CSC I convictions, the court affirmed. He contended that the 126-month minimum sentences were unreasonable and disproportionate; thus, he was entitled to resentencing. He argued that he had “no juvenile or adult criminal history, that his ‘prison history is stellar and he has participated in many programs and continues to do so,’ and that the trial court did not explain why the minimum sentences were fair and proportionate.” The court held that he “waived his sentencing challenge given that he expressly requested the trial court to impose a minimum sentence of 126 months” for each of his CSC I convictions. Even “without either the waiver or the application of MCL 769.34(10), the 126-month minimum sentences were reasonable because they were proportionate to the circumstances surrounding the offenses and the offender.” Although he had no criminal history, the “case entailed a particularly brutal and horrific rape with multiple perpetrators.” The minimum sentences for his CSC I “convictions not only fell within the guidelines range, they were also at the lowest end of the range; consequently,” defendant was effectively seeking a downward departure. But his arguments in support of resentencing lacked merit and did not justify a downward departure. As to the absence of a juvenile or adult criminal record, the court noted that he “already received the benefit of a low prior-recordvariable score that kept the guidelines range down.” As to defendant’s alleged “stellar” prison history, the court took issue: the record revealed that “he has received 13 major misconduct citations, evidencing far from stellar conduct.” Also, he provided no evidence establishing his claimed participation in “many programs” in prison. Lastly, although he complained that the trial court failed to provide an explanation for the sentences it imposed, the court noted that “when a court imposes a sentence within the guidelines range, the court’s expressed reliance on the guidelines is explanation enough.”
Divorce; Division of marital property; Separate property
The court reversed the trial court’s order on remand holding that plaintiff-ex-wife’s 10% ownership in a business (Hammer) was separate property and not subject to division in the parties’ divorce action. Plaintiff’s father gifted to her a 10% interest in Hammer. Shortly thereafter, the parties were married. Defendant-ex-husband argued that the trial court erred by holding that the Hammer stock was separate property and was not part of the marital estate without considering whether it was commingled with marital property during the marriage. The court agreed. Additionally, on the basis of the evidence collected on remand, the court further held that the stock was part of the marital estate and must be divided accordingly. “Plaintiff testified that she and defendant maintained separate bank accounts throughout the marriage, and that she at all times deposited distributions from the Hammer stock into her individual checking account.” However, she “did not testify that she kept distributions from the Hammer stock separate from any other funds in her bank account, including her income as a Hammer project manager. Notably, the latter undoubtedly constituted marital funds.” Also, she testified that she used distributions from the “stock— in addition to her other income—to pay certain marital expenses and household bills.” Her conduct, including her failure to separate the proceeds related to the “stock from other marital funds and her use of the funds to pay marital expenses, indicates that the Hammer stock was a marital asset.”
Proximate cause; Whether there was a genuine issue of material fact that the decedent committed suicide; Distinguishing Aetna Life Ins Co v Kent (6th Cir.); Suicide as a superseding cause
The court held that there was no genuine issue of material fact that plaintiff’s decedent (J) committed suicide. Further, in light of this, defendants could not be held liable for J’s death because J’s intentional act of suicide broke the chain of causation and there was no evidence that they should have foreseen that J might harm or kill himself. Because all of plaintiff’s claims required her to prove that defendants’ conduct was the proximate cause of J’s death, and J’s “suicide operates as a superseding cause of his injury severing the chain of causation, the trial court properly dismissed all of plaintiff’s claims.” Plaintiff is the mother of J, who died at age 14 from a self-inflicted gunshot wound to the head. At the time of his death, J was living with defendants, his grandmother and her husband. Plaintiff alleged that defendants were liable for J’s death under several different theories because, while living at their home, J “had access to the loaded, unsecured firearm used in the shooting.” Defendants claimed in part that because J “committed suicide, their alleged conduct was not the proximate cause of his death.” On appeal, plaintiff argued that the trial court erred by concluding there was no genuine issue of material fact that J’s death was a suicide, rather than an accidental shooting. The court agreed that circumstantial evidence surrounding J’s death raised possible questions about whether J planned to commit suicide. No note was left and J “had not expressed any depressive or suicidal thoughts. He did not seem to be experiencing any new or serious problems in his life. He had also paused a video game he was playing, suggesting that he intended to return to it. However, these matters only raise questions about whether” he planned his death. This evidence did not refute that J “purposefully obtained the gun from the house and brought it with him to the barn in the first instance, and it does not refute the physical evidence of an intentional shooting.” Thus, the circumstantial evidence surrounding J’s life did “not raise a question of fact whether he accidentally shot himself when he placed the gun in direct contact with his temple.” Unlike in Kent, where “there was direct evidence that the decedent unintentionally shot himself during a demonstration in which the decedent believed that the gun was unloaded,” there was no evidence supporting a theory of an accidental shooting here.
Auto negligence; Recovery of noneconomic damages under the No-Fault Act; MCL 500.3135; Serious impairment of body function; McCormick v Carrier; “Objectively manifested impairment”; MCL 500.3135(5); Patrick v Turkelson
Holding that plaintiff failed to establish an objectively manifested impairment, the court affirmed the trial court’s grant of summary disposition for defendant-driver. Plaintiff sued defendant for injuries she allegedly sustained when he rear-ended her vehicle at a stoplight. The trial court granted defendant’s motion for summary disposition on the basis that plaintiff failed to establish a genuine issue of material fact as to whether she sustained an objectively manifested impairment. On appeal, the court rejected plaintiff’s argument that the trial court’s decision was erroneous. “The only evidence of an objective medical diagnosis that linked the motor vehicle accident with these subjective problems were the differences between her two MRIs; however, even her own doctor could not conclude that the accident caused the ‘minimal’ progression, and he also testified that the progression was consistent with natural deterioration.” Plaintiff’s failure to “produce medical evidence connecting her impairments to the accident is especially significant in light of her extensive medical history. [She] has failed to establish ‘a physical basis for [her] subjective complaints.’” The court also rejected her claim that the depression she has suffered after the accident constituted an objectively manifested impairment, noting she failed to provide “any evidence of how her depression has objectively manifested.” Rather, she supplied “only her testimony that she has had depression since the collision and was prescribed an antidepressant. This is insufficient to satisfy the requirements articulated in McCormick.”
Termination under § 19b(3)(j)
Holding that § (j) was met, the court affirmed termination of respondent-father’s parental rights to the child. His rights were terminated based primarily on his lack of parenting skills and the fact that the child would be at risk of harm if returned to the home. On appeal, the court rejected his argument that the DHHS failed to prove a statutory ground for termination. It noted he failed to properly supervise the child and did not understand when the child was in harm’s way. In addition, his “behavior during the pendency of this case strongly suggests that, were he to receive constructive criticism from physicians, teachers, and others in the future, he would not react well to it, resulting in a risk of harm to the child.” Overall, the court was not left with a “definite and firm conviction that a mistake has been made with respect to the trial court’s determination that termination was proper under” § (j).
Children’s best interests; Placement with their biological mother; “Relative”; MCL 712A.13a(1)(j); Respondent’s bond with the children; Children’s preferences; Parenting ability; Doctrine of anticipatory neglect; Children’s need for permanency, stability, & finality; Impact of foster care worker’s opinion
Holding that the trial court did not clearly err when it concluded that terminating respondent-father’s parental rights was in the four children’s best interests, the court affirmed. Initially, the trial court correctly held that it was not required to consider the children’s placement with their biological mother as a factor that weighed against termination. A “child’s biological mother is not a ‘relative’ as defined under MCL 712A.13a(1)(j)." Thus, their placement was not a factor that weighed against termination. Also, while respondent’s bonds with two of the children weighed against termination, his bonds with the other two children did not. Further, while one of the children’s preference weighed against termination, the preferences of the other three did not. Additionally, while he acted “as a loving parent to his biological children, his parenting ability weighed in favor of termination because of his prior acts of sexual abuse” against his stepchildren. Further, the termination of his parental rights served the children’s need for permanency, stability, and finality. Finally, the opinion of the foster care worker weighed in favor of termination.