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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Whether a provision of the state construction code is enforceable only if it is found to be cost-effective; The Michigan Residential Code (MRC); The Stille-DeRossett-Hale Single State Construction Code Act (the Act) (MCL 125.1501 et seq.); MCL 125.1504(3)(f) & (g); Cost effective defined; MCL 125.1502a(p); Review of a final agency decision; VanZandt v. State Employees Ret. Sys.; MCL 24.306(1); Principle that the court will not decide issues having no practical legal effect on the case; In re Gerald L. Pollack Trust; Due process; Hughes v. Almena Twp.; Mathews v. Eldridge; People v. Kennedy; The Michigan Construction Code Commission’s failure to audio record a hearing; Right to equal protection; Shepherd Montessori Ctr. Milan v. Ann Arbor Charter Twp.; Department of Licensing & Regulatory Affairs (LARA)
The court held that MCL 125.1504 does not govern the Michigan Construction Code Commission’s review of decisions from a board of appeals, or permit the Commission to determine a rule is unenforceable on the basis it is not cost-effective as applied to a given project. It also rejected appellant-licensed mechanical contractor’s due process and equal protection challenges. Thus, it affirmed the Commission’s final decision upholding the decision from appellee-township’s construction board of appeals (the Township Board), which determined “that the MRC required the supply air ductwork in question to be sealed and that such a requirement was cost-effective.” Appellant asked the Commission to overturn that decision, and it “declined to do so, reasoning that it did not have the authority to rewrite the state construction code.” The court agreed with the Commission. It concluded that appellant’s reliance on MCL 125.1504 and MCL 125.1502a(p) was misplaced. MCL 125.1504 makes it clear that “the requirement of cost-effective rules applies to the director of LARA in drafting and revising the state construction code. That is, the director must promulgate cost-effective energy efficiency rules in accordance with the Act. MCL 125.1504 does not govern the Commission’s review of decisions from a board of appeals, nor does it allow the Commission to determine that a rule is unenforceable on the grounds that it is not cost-effective as applied to a particular project. Thus, the Commission correctly determined that it did not have the authority to grant appellant the relief he sought—to determine that sealing the air ductwork was not cost-effective. That would essentially constitute rewriting the MRC, which the Commission is not authorized to do.” While appellant contended that the Township Board had previously declined to enforce a code provision after determining it was not cost-effective, whether the Board has such discretion or was required to exercise it was not before the court. Its review was “limited to the Commission’s final decision,” and it agreed with its ruling in this case. Appellant also failed to “establish a due-process right to audio recordings of the Commission’s closed sessions” or that it “applied a general policy to him in a discriminatory manner.”
Contract dispute between agricultural merchants; Causation; Skinner v. Square D Co.; Craig ex rel Craig v. Oakwood Hosp.; Principle that a party cannot show a factual issue by relying on an affidavit contrary to an unfavorable deposition; Dykes v. William Beaumont Hosp.; Principle that testimony only showing a correlation between conduct & injury is insufficient to establish cause in fact; Teal v. Prasad; Evidence of a subsequent design change; Phillips v. J L Hudson Co.; Calculating interest using the rate in invoices rather than applying MCL 600.6013; Restatement Conflict of Laws 2d § 122; OrbusNeich Med. Co., Ltd., BVI v. Boston Sci. Corp. (D MA)
Holding that defendant-Bailey Farms did not show a material question of fact as to causation related to its countercomplaint claims for breach of contract as well as express and implied warranties related to seedless watermelons, the court affirmed summary disposition for plaintiff-Rispens Seeds. It also was unable to find that the trial court erred in calculating interest. Rispens sued after “Bailey Farms paid some, but not all, of the balance owing on the products it purchased from Rispens Seeds, indicating that the reduction in price was” due to a watermelon disease called “hollow heart.” Rispens sought payment alleging “breach of contract and account stated. Bailey Farms filed a countercomplaint, claiming breach of express and implied warranties and breach of contract on the basis that SP-6, used as recommended by Rispens Seeds, caused the hollow-heart issues.” Bailey Farms argued that SP-6’s failure to perform as promised supported its counterclaims and constituted a defense to Rispens’ claims. “According to Bailey Farms, it presented sufficient causation testimony in the form of expert deposition testimony from” its president (Bailey), expert deposition testimony from a university vegetable crop specialist (K), an affidavit from K, and information that third-party defendant-Syngenta “released a new product, SP-7, that improves upon SP-6.” The court disagreed, concluding that, assuming the witnesses “qualified as experts on the causes of hollow-heart in seedless watermelons in Bailey Farms’ fields in 2015, taken as a whole, their testimony provides evidence of, at most, a correlation between hollow-heart and Bailey’s use of SP-6.” In light of K’s “deposition testimony to the effect that he could not identify SP-6 as a cause with a reasonable degree of scientific certainty and that SP-6 was only a possible cause warranting further investigation, Bailey Farms” could not create a material question of fact by submitting a contradictory affidavit in which K tried “to more definitely identify SP-6 as an actual cause. Without the affidavit,” he and Bailey could only say “that hollow heart occurred in fields where Bailey planted SP-6 and that SP-6 may be a cause of the issue. ‘[T]estimony that only establishes a correlation between conduct and injury is not sufficient to establish cause in fact.’”
Child custody dispute; The Child Custody Act (MCL 722.21 et seq.); Harvey v. Harvey; Motion to change custody; Judicial review of an arbitration award; Washington v. Washington; The child’s best interests; MacIntyre v. MacIntyre; Harboring error as an appellate parachute; Valentine v. Valentine; Timing of an arbitration award; MCL 600.5078(1); Abandonment of an argument; Magee v. Magee; Change of circumstances; Gerstenschlager v. Gerstenschlager
The court held that the trial court did not err by confirming an arbitration award that granted defendant-father’s motion to change primary physical custody of the parties’ child, or by later issuing a revised order confirming the same arbitration award. On appeal, the court rejected plaintiff-mother’s argument that the arbitration award should be vacated because of the delay in the arbitration proceedings between the arbitration hearing and the issuance of the opinion and award. “[B]ecause plaintiff’s refusal to provide the required financial information and proposed findings of fact and conclusions of law led to the delay about which she now complains, she is barred from claiming on appeal that she is entitled to appellate relief on the basis of this delay.” In addition, the trial court “correctly recognized that it was not required to hold an evidentiary hearing in making that independent determination in this case, given the extensive record that exists.” Overall, she did not “establish that the arbitrator committed an error of law readily apparent on the face of the award without second-guessing the arbitrator’s thought processes and that the error was so substantial that, but for the error, the award would have been substantially different.” The court also rejected plaintiff’s claim that the trial court failed to make an independent determination that the arbitrator’s custody award was in the child’s best interests. It noted that the arbitrator “more than adequately explained his determination that plaintiff has been obstructionist in preventing defendant from exercising parenting time and that this comprised a significant change of circumstances that warranted revisiting the custody arrangement.” Moreover, the trial court “reviewed the extensive record and independently determined that the arbitrator’s custody award was in” the child’s best interests. Hence, “in these circumstances, no judicial review of the arbitrator’s factual findings is allowed.” Affirmed.
Availability of duress as an affirmative defense to felony murder; MCL 750.316(1)(b); People v. Aaron; People v. Lemons; People v. Dittis; People v. Gimotty; People v. Etheridge; Tully v. State (OK Crim App); McMillan v. State (MD); State v. Hunter (KS); Commonwealth v. Robinson (MA); People v. Henderson
Holding that duress may be asserted as an affirmative defense to a felony murder charge if it is a defense to the underlying felony, the court reversed the Court of Appeals and remanded to the trial court with instructions to give a duress jury instruction if requested by defendant and if it is supported by a rational view of the evidence. The court overruled Gimotty and Etheridge to the extent they held that duress is not an affirmative defense to felony murder. Defendant was charged with open murder under a felony murder theory for helping her boyfriend commit an armed robbery that resulted in the victim’s death. The trial court ruled that she could present her duress defense, but the Court of Appeals reversed, concluding that it was unavailable as a defense to felony murder under any circumstances. The court noted that it had not addressed the availability of the defense to this charge, but the Court of Appeals did so in Gimotty, where it determined that a duress instruction was not “warranted because ‘[i]t is well settled that duress is not a defense to homicide.’” But the court found that this conclusion made “little sense in light of the rationale for precluding the use of duress as an affirmative defense for other types of murder . . . .” When an individual has a choice between sparing his or her own life or the life of “an innocent, the law expects that individual to spare the innocent person’s life. But felony murder does not present that choice. Instead, in the felony-murder context, the individual faces a choice between whether to spare his or her own life or aid in a lesser felony (i.e., one that does not include as an element the killing of an innocent).” In addition, the court noted that ruling the defense unavailable to this crime “could lead to illogical and ‘unacceptable results.’ If the underlying felony alone were charged, duress could be used as an affirmative defense. But, where they are charged together, a defendant might be acquitted of the underlying felony on the basis of duress, but then be found guilty of felony murder.” The court rejected the prosecution’s argument that although “duress may be allowed as an affirmative defense to felony murder under the common-law felony-murder doctrine, it should not be an affirmative defense under MCL 750.316(1)(b).” The existence of a separate malice requirement under the statute did not alter the court’s conclusion.
Self-defense jury instruction applicable to the assault with intent to do great bodily harm less than murder (AWIGBH) charge, assault with intent to commit murder (AWIM), & crime of minor in possession of a firearm; People v. Dupree; People v. Unger; People v. Henderson; People v. McGhee; People v. Hartuniewicz; MCL 780.972; Whether self-defense was applicable to felon in possession; MCL 750.224f; MCL 750.234f; MCL 750.84; MCL 750.227b
Holding that errors in not providing a self-defense instruction seriously undermined the reliability of the jury’s verdict, the court vacated defendant’s convictions and remanded for a new trial. First, he argued that the trial court erred by failing to provide a self-defense instruction applicable to the AWIGBH charge. Because he had a right to a self-defense instruction on both his AWIM charge and the lesser-included charge of AWIGBH, the court held that the trial court erred by limiting the instruction to AWIM. Second, he argued that the trial court erred by failing to provide a self-defense instruction as to the crime of minor in possession of a firearm. The court held that the trial court erred by failing to provide a self-defense instruction to the jury as to MCL 750.234f. Taken together, these two errors allowed the jury to find him guilty of AWIGBH in two erroneous situations. First, the jury could have found that, although he acted out of self-defense in shooting the victim, it was required to find him guilty of AWIGBH because self-defense did not apply to that charge. Second, the jury could have erroneously found that, because he “was a minor carrying a firearm at the time of the shooting, he was not entitled to claim self-defense, even if his possession of the firearm was itself an act of self-defense.”
Sufficiency of the evidence to support a conviction of impeding a witness (MCL 750.122(6)); People v. Greene; Principle that the prosecution does not have to negate every reasonable theory consistent with a defendant’s innocence; People v. Konrad; The jury’s role in determining the weight of the evidence & witness credibility; People v. Wolfe; Denial of motion for a mistrial; People v. Dickinson; People v. Lugo; Unresponsive volunteered answer to a proper question; People v. Haywood; People v. Gonzalez; People v. Waclawski
The court held that there was sufficient evidence to support defendant’s impeding a witness conviction, and that the trial court did not abuse its discretion in denying his motion for a mistrial on the basis of the victim’s statement that “defendant was a ‘dope man.’” While in jail awaiting trial on other charges involving the victim, he called an individual (R) and asked her to call the victim. Defendant acknowledged at trial that he knew if the victim did not appear at the preliminary exam, the pending charges against him would be dropped. Contrary to his argument, defendant did not tell R to tell the victim to “come to court and tell the truth.” Instead, he told R to “tell this b**** she better not come to court lying on me about this bull**** she got me up here on.” The court concluded that based on “this statement, it was reasonable for the jury to find beyond a reasonable doubt that defendant intended that” R would call the victim in an attempt “to prevent or impede her from testifying at” the preliminary exam. This was in fact what occurred – the victim testified that five or six days before the preliminary exam, R “and defendant’s sister called her and told her ‘don’t go to court.’” As to the victim’s challenged comment, defendant conceded that it “was unresponsive to” the prosecution’s question about how the victim knew defendant. While there was no dispute that the statement was inadmissible, it was unresponsive, it “was struck from the record, and defendant himself admitted to smoking marijuana and purchasing pills and marijuana on the evening of the alleged offense.” Further, the jury was given a comprehensive curative instruction. Given that it acquitted him of five of the six most serious charges against him, it appeared that the statement did not prejudice him or deny him a fair trial. Affirmed.
Admission of photos; People v. Thorpe; Plain error review; People v. Carines; People v. Miller; Relevance; MRE 401 & 402; Gang rivalry; Balancing test of MRE 403; People v. Feezel; Probative value; People v. Smelley; Character evidence under MRE 404(a); Due process right to a fair trial; People v. Asevedo; People v. Roscoe; Ineffective assistance of counsel; People v. Ackley; Failure to inform of a plea offer made before jury selection; Failure to seek a plea agreement with the prosecutor earlier in the proceedings; Failure to present a witness; Factual predicate; People v. Hoag; Trial strategy; People v. Dixon; Prosecutorial error; People v. Cooper; Seeking admission of dreadlocks photos; Commentary as to defendant’s failure to testify; Deficient briefing; People v. Bowling; External influence on the jury; People v. Fletcher
The court held that the trial court properly admitted three photos and that defendant did not suffer a deprivation of his constitutional right to a fair trial. Also, he did not show that he received ineffective assistance of counsel, and there was no prosecutorial error. He was convicted of first-degree premeditated murder and felony-firearm. As to the first photo of his face, arm, and hand, his hair in dreadlocks, with him making a hand signal, the prosecution pointed out that the photos showed defendant making gang signs, and the prosecution’s theory was that he killed the victim as part of a gang rivalry. Thus, the photo was relevant and admissible under MRE 401. Also, the court could not conclude, as defendant argued on appeal, that the probative value of the photo was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,” when the jury was fully informed about the dreadlocks issue. As to the second photo of his face and hair in dreadlocks, which was simply a photo of defendant’s face, with nothing showing any gang affiliation, the court could not find that it had any probative value. However, even if the photo was improperly admitted, an “evidentiary error does not require reversal unless, after an examination of the entire cause, it appears more probable than not that the error affected the outcome of the trial in light of the weight of the properly admitted evidence.” As to the third photo depicting a gun, the court could not conclude that its probative value “was ‘substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.’” Affirmed.
Order granting a new trial; Ineffective assistance of counsel; People v. Head; Smith v. Spisak; People v. Trakhtenberg; Strickland v. Washington; Factual predicate; People v. Carbin; Prejudice; People v. Jackson; Principle that a jury is free to believe or disbelieve in whole or in part any of the evidence; People v. Perry; Granting a new trial on the basis other acts evidence should have been excluded; MCR 6.431(B); Plain error review; People v. Carines
Assuming for purposes of this interlocutory appeal that defense counsel’s failure to object to the other acts evidence was unreasonable, the court concluded that defendant did not show a reasonable probability the outcome of his trial would have been different because the evidence was not outcome-determinative. Thus, it reversed the trial court’s order granting defendant a new trial. He was convicted of first-degree home invasion and lying to a police officer. He moved for a new trial on the basis defense counsel was ineffective for not objecting to alleged other acts evidence. But the trial court appeared to grant his motion on the ground that the other acts evidence “should have been excluded as irrelevant and unfairly prejudicial.” As a result, the court considered both grounds. As to ineffective assistance of counsel, removing this “evidence from consideration still left the jury with the eyewitness’s testimony about defendant breaking into the home while she was present, and that defendant was wearing black gloves when he entered the home. Moreover, a police officer testified that defendant was wearing pajama bottoms similar to those described by the eyewitness. Although defendant told the officer that he was at home all day and was not involved, ‘a jury is free to believe or disbelieve, in whole or in part, any of the evidence presented.’” In light of the victim’s testimony and the circumstantial evidence of the gloves to show defendant’s intent, there was sufficient evidence to convict him without the purported other acts evidence. The court added that, even if the evidence at issue was considered other acts evidence, it applied plain error review to unpreserved evidentiary claims, and there was no “outcome-determinative error requiring reversal.”
Custody; The trial court’s subject-matter jurisdiction; The Uniform Child Custody Jurisdiction & Enforcement Act (MCL 722.1101 et seq.); MCL 722.1201(1); Foster v. Wolkowitz; Physical presence; Home state defined; MCL 722.1102(g); Consideration of an ex parte motion for emergency custody; MCR 3.207(B)(1); Verifying a pleading; Miller v. Rondeau; Abandoning an issue by not providing supporting legal analysis; Houghton ex rel Johnson v. Keller
Holding that the trial court had subject-matter jurisdiction to make the initial child custody determination, the court affirmed the denial of defendant-mother’s summary disposition motion and motion for reconsideration, and the final custody and parenting time order granting plaintiff-father sole legal and physical custody of their children. She argued that the trial court did not have “subject-matter jurisdiction to make an initial custody determination under MCL 722.1201(1).” The court disagreed, concluding that Michigan was the children’s home state under MCL 722.1102(g). Several witnesses testified at the evidentiary hearing “that the children lived in Michigan for a period of 12 consecutive months from” 7/17 to 7/18. They began living in Michigan with their maternal grandmother in 7/17. During that period, she acted “as a parent because she provided for all the children’s needs on a daily basis. Several witnesses also testified that plaintiff lived in Michigan with the children for a period of 10 consecutive months from” 9/17 to 7/18. Thus, they lived with a parent, “plaintiff, for at least six consecutive months immediately before the child custody proceeding” commenced in 8/18. The uncontested facts supported the trial court’s jurisdiction. Michigan became the children’s home state in 1/18, over six months before plaintiff’s custody motion was filed in 8/18. Further, while they were absent from Michigan when the proceeding was commenced, plaintiff remained here and continued to reside here. Due to lack of supporting legal analysis, defendant abandoned her claim that the trial court did not have jurisdiction over the matter because plaintiff’s ex parte “motion for emergency custody was based upon a fabrication of the facts, and plaintiff did not provide any supporting documents or information to prove that the children were being abused when” he filed the prayer for ex parte relief. Further, assuming the claim was not abandoned, the court found that the trial court properly exercised jurisdiction after considering the ex parte motion. Plaintiff’s abuse allegations “constituted specific facts set forth in a verified pleading.” Thus, the trial court properly considered his allegations pursuant to MCR 3.207(B).
Mortgage foreclosure; Principle that a mortgage is a lien on real property; Prime Fin. Servs., LLC v. Vinton; Foreclosure by advertisement; MCL 600.3204(1)(a) & (3); Residential Funding Co., LLC v. Saurman; Senters v. Ottawa Sav. Bank; Effect of a sheriff’s deed; MCL 600.3232; MCL 600.3236; Trademark Props. of MI, LLC v. Federal Nat’l Mtg. Ass’n; Mortgage assignment; MCL 600.3204(2) & (7)-(12); Kim v. JPMorgan Chase Bank, NA; Bryan v. JPMorgan Chase Bank; Deficiency judgment; MCL 600.3280; Bankers Trust Co. v. Rose; Schram v. Coyne (SD MI)
The court held that the trial court did not err when it granted defendant summary disposition because plaintiff-sheriff’s sale purchaser was not entitled to a deficiency judgment under the circumstances, and thus, failed to state a claim upon which relief could be granted. Defendant redeemed the property from the register of deeds. Plaintiff sued defendant seeking a deficiency judgment in the amount that allegedly remained on the original owners’ defaulted mortgage, alleging that defendant was liable to plaintiff for this remaining balance. On appeal, the court found that the trial court did not err when it granted defendant’s motion for summary disposition because plaintiff was not entitled to a deficiency judgment. It first found there was “no evidence of an assignment of the mortgage from [a previous lender] to plaintiff, let alone a recorded assignment, and therefore, plaintiff lacked any interest in the original mortgage.” In addition, “plaintiff’s sheriff’s deed became void upon redemption by defendant.” No authority exists “for the proposition that defendant was liable for the remaining amount owed on the mortgage under this statutory scheme.” Further, plaintiff “never became the mortgagee or holder of the mortgage obligation,” so it was not entitled to relief under MCL 600.3280. Moreover, because plaintiff “never took title to the property because defendant redeemed” it, plaintiff’s “reliance on MCL 600.3280 for its entitlement to a deficiency judgment [wa]s misplaced, and the trial court did not err when it granted defendant summary disposition.” Affirmed.