Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Challenge to national park camping fees under the Federal Lands Recreation Enhancement Act (FLREA or the Act) (16 USC § 6801 et seq.); Kentucky Riverkeeper, Inc. v. Rowlette; The Administrative Procedure Act (APA); 5 USC § 706; § 706(2)(A); Failure to publish “notice” in the Federal Register & local newspapers; 16 USC § 6803(b); §§ 6812–13; Statutory interpretation in agency guidance documents; Christensen v. Harris Cnty.; The Act’s “public-participation” requirement (§ 6803(a)); The Park Service’s internal fee-collection manual; Principle that agencies are bound to follow their own regulations; Wilson v. Commissioner of Soc. Sec.; Reich v. Manganas; Non-binding nature of the manual; Long Island Care at Home, Ltd. v. Coke; Wilderness Soc'y v. Norton (DC Cir.); Whether the Park Service’s decision to modify its plan before the public-engagement process was “arbitrary or capricious”; National Ass’n of Home Builders v. Defenders of Wildlife; Harmless-error review applicable to claims of noncompliance with administrative procedures; Rabbers v. Commissioner Soc. Sec. Admin.; Denial of the plaintiffs’ motion to supplement the record under the APA; Sierra Club v. Slater; Latin Ams. for Soc. & Econ. Dev. v. Administrator of the Fed. Hwy. Admin.
The defendant-National Park Service did not violate the FLREA by imposing a new fee on backcountry campers at Great Smoky Mountains National Park to fund its on-line reservation system. Plaintiffs-Southern Forest Watch and three individuals challenged the fee, claiming that the Park Service did not follow the proper procedures required under the FLREA when assessing the fee. The court held that the Park Service was not required to publish a notice in Federal Register before assessing the fee. Because the park was already “charging recreation fees when it sought to impose the backcountry fee, Great Smoky Mountains was not a new recreation fee area subject to the requirements of § 6803(b).” The Park Service also did not violate the Act’s public-participation requirement when a fee has been developed or changed. The procedures outlined in its internal fee-collection manual were not “binding,” and “the Park Service fulfilled its duty to solicit public input.” Further, its “decision to modify its plan in advance of the public-engagement process was not arbitrary or capricious.” There was “no reason to believe that the Park Service deceived the public when it said it would hire rangers.” Additionally, the Park Service substantially complied with the Act’s publication requirement in § 6803(b) where “it widely disseminated its proposal and the Great Smoky Mountains fee plan was widely reported in the local media.” Plaintiffs also appealed the district court’s denial of its motion to supplement the administrative record. However, the court found that the evidence requested was not “relevant or deliberately excluded.” It affirmed the district court’s grant of summary judgment to the defendants.
“Unitary business group” defined; MCL 208.1117(6); 26 USC § 957; Revenue Admin Bull 2010-1; Attribution rules under 26 USC § 318 of the Internal Revenue Code & § 117 of the Michigan Business Tax Act (MBTA) (MCL 208.1101 et seq.); Statutory construction; United States Fid. Ins. & Guar. Co. v. Michigan Catastrophic Claims Ass’n; Michigan Bell Tel. Co. v. Department of Treasury; Detroit Edison Co. v. Department of Treasury; “Ownership or control” defined; Determining the meaning of terms that are not defined under the MBTA; Town & Country Dodge, Inc. v. Department of Treasury; Consumers Power Co. v. Department of Treasury; Stock ownership; 26 USC § 958; Federal regulations directing that constructive ownership rules are to be applied to determine indirect ownership; 26 CFR §§ 1.382-2T(f)(15) & 1.704-1(b)(2)(iii)(d)(6); Federal regulations directing that constructive ownership rules are used to determine whether “stock is owned (directly or indirectly under the provisions of section 544)”; §§ 1.856-1(d)(5) & 1.861-8T(c)(2)(ii); Delineation between indirect & constructive ownership; § 1.871-14 (g)(2)(iii)(A); § 1.1291-1T(a)(8)(i); § 1.902-1(a)(4)(ii); “Owned indirectly” defined in the context of consolidated returns; § 1.1503(d)-1(b)(19); “Tiering”; In re Air Crash Disaster Near Roselawn (7th Cir.)
In an order, the court amended its published opinion (see e-Journal # 62375 in the 4/4/16 edition) to correct a clerical error. “The word ‘issue’ was omitted after the word ‘dispositive’ in the first sentence of the last paragraph on page 3.” The corrected sentence reads: There is no dispute that the dispositive issue here is what is meant by the phrase “owns or controls, directly or indirectly.” The opinion remained unchanged in all other respects.
The trial court correctly granted partial summary disposition as to the breach of employment contract claim. However, summary disposition should have been granted on the unjust enrichment claims based on the existence of an express contract concerning the same subject matter. Plaintiff was precluded from pursuing simultaneous claims of promissory estoppel. Also, he was collaterally estopped from pursuing his breach of contract claims based on the assertion of employment discrimination under the CRA due to the federal district court’s factual determination that defendant’s reasons for its actions were not pretextual. Plaintiff asserted that “throughout his employment, defendant breached his contract by engaging in gender, race and age discrimination in determining his compensation.” He further contended “he was subject to retaliation by defendant for his complaints to defendant’s representatives.” Plaintiff alleged “he was paid at lower rates than other partners who were younger, female and not of European descent despite his commensurate or better billing levels and generation of income for the partnership.” On appeal, defendant argued that the trial court erred by failing to find that plaintiff’s claims for breach of his employment contract, promissory estoppel, unjust enrichment, and fraudulent misrepresentation were barred by the applicable statutes of limitation. It asserted that his claims involved “the abrogated continuing wrong doctrine and, thus, should be precluded.” Defendant further asserted that the existence of an express contract barred a number of plaintiff’s claims. “Plaintiff’s contract required periodic calculations of compensation.” The court noted that “contracts that provide for regular or periodic payments have been deemed similar or analogous to installment contracts.” Under “this type of contract, a separate and distinct breach of contract claim is recognized to accrue with each deficient payment.” The trial court properly divided plaintiff’s breach of contract claims into two distinct periods – “(a) those claims that arose more than six years before plaintiff’s filing of a complaint and (b) claims that occurred within the six year period immediately preceding plaintiff’s filing of a cause of action in this matter.” Affirmed in part, reversed in part, and remanded.
Sentencing; Scoring of OV 9; MCL 777.39(1)(c); “Proportionality”; Principle that scoring decisions must be supported by a preponderance of the evidence; People v. Steanhouse; Judicial fact-finding; People v. Lockridge; United States v. Crosby (2d Cir.); Presentence investigation report (PSIR)
The court held that remand was required as to the defendant’s sentences. He pleaded no contest to two counts of CSC involving a young child. The trial court imposed upward departure sentences for each conviction. On appeal, he challenged the factual basis for scoring OV 9 and the proportionality of the sentences. The court found “no error in the scoring of” OV 9, which “provides for the assessment of 10 points for OV 9 when ‘two to nine victims . . . were placed in danger of physical injury or death.’” It noted the “main victim” was a seven-year-old girl, and “at the time of the assault, [her] four-year-old brother was in the room.” Further, the evidence “suggested that defendant had already, or planned to, assault the young boy as well. The female victim indicated that defendant had inappropriately touched her brother’s buttocks. The children’s mother heard defendant talking to both children about ‘dirty butts’ before she opened the bedroom door and caught defendant touching her daughter. And defendant reported to the agent preparing his [PSIR] that he had played a game with both children, whom he had just met, called ‘stinky butt.’” The court next found that although defendant’s contention that the trial court failed to state substantial and compelling reasons in support of the upward departure sentences is now irrelevant, it could not “be certain whether the trial court would have imposed the same sentences had it been aware that the mandatory legislative sentencing guidelines were unconstitutional and that its departure sentences must be reasonable rather than based on substantial and compelling reasons.” Thus, it remanded for consideration of whether resentencing is required pursuant to Crosby. “The trial court must consider the reasonableness of the sentences before we can consider their proportionality.” Thus, further review was “not ripe.”
Defendant-Reco Simmons was not denied the effective assistance of counsel. Defendant-Aquire Simmons was not deprived of a fair trial by comments made by the trial court during voir dire, admission of challenged statements did not violate the Confrontation Clause, and his statements were admissible under MRE 804(b)(3). Finally, there was sufficient evidence to support defendant-Fredrick Young’s conviction of first-degree home invasion. The case arose out of an armed robbery and murder. Reco was convicted of second-degree murder, armed robbery, first-degree home invasion, and felony-firearm. His brother and codefendant Aquire was convicted of AWIGBH, armed robbery, and first-degree home invasion. Fredrick was convicted of first-degree home invasion. On appeal, Reco argued that counsel was ineffective for admitting in closing argument he was guilty of murder, but only in the second-degree. “At trial, substantial evidence of Reco’s involvement in the crimes was presented.” The evidence included multiple witnesses who testified that another man involved in the crimes told another individual that Reco shot victim-J, as well as Reco’s statement to his aunt, in which Reco admitted firing at J. “Recognizing that this evidence would likely result in a murder conviction, defense counsel argued in closing that ‘the verdict in this case is guilty. But the question is guilty of what? Is it first degree—excuse me. First degree felony murder? Is it second degree?’” Reco argued that by admitting guilt, trial counsel was ineffective. As the U.S. Supreme Court has recognized, “in cases where a client’s guilt is clear, such a strategy may well be reasonable. Given the evidence admitted at trial, which overwhelmingly demonstrated that Reco was a participant in a robbery during which a victim was shot and killed, and moreover, that Reco was likely the shooter, pleading for leniency in the form of a sentence of second-degree murder was a reasonable strategy. It was also successful. Despite strong evidence” that he was guilty of first-degree murder, the jury convicted him only of second-degree murder, allowing him to “avoid the mandatory sentence of life imprisonment without parole that would attach to a first-degree murder conviction.” The court will “not second guess counsel’s trial tactic of admitting guilt of a lesser offense.” Affirmed.
Sufficiency of the evidence to support armed robbery & conspiracy to commit armed robbery convictions; People v. Chambers; People v. Cain; Taking money without the owner’s consent; “Owner” defined; People v. Pohl; People v. Hatch; People v. Jones; Conspiracy; People v. Mass; People v. Jackson; Sentencing; Failure to prepare a sentencing information report (SIR); MCL 771.14(1) & (2)(e); MCR 6.425(A)(1) & (D); People v. Johnson; MCL 777.21(1)(b); People v. Lockridge; Sixth Amendment right of confrontation; Coy v. Iowa; Maryland v. Craig; Crawford v. Washington; “Hearsay” (MRE 801(c)); Statement by a co-conspirator (MRE 801(d)(2)); People v. Martin; Prosecutorial error; People v. Bennett; People v. Cross; “Vouching”; People v. Bahoda; People v. Thomas; People v. Goodin; Denigrating defense counsel; People v. McLaughlin; People v. Unger; People v. Matuszak; Cumulative error; People v. LeBlanc; People v. Knapp; Ineffective assistance of counsel; People v. Trakhtenberg; People v. Vaughn; Factual predicate; People v. Hoag; Plea-bargaining process; People v. Douglas; Decision whether to call a witness as a matter of trial strategy; People v. Rockey; People v. Dixon; A “substantial defense”; People v. Chapo; Presumption the jury followed its instructions; People v. Graves
Holding that defendant’s co-conspirator (P) lacked the authority to consent to the taking of the store’s money, the court concluded that there was sufficient evidence to uphold his armed robbery conviction. Further, the testimony established that they entered into an agreement to take money from the store and for “defendant to use a cell phone as a gun during the robbery.” Thus, the evidence was also sufficient to support his conspiracy to commit armed robbery conviction. However, due to the trial court’s error in failing to prepare a SIR, the court vacated his sentences and remanded for resentencing. Defendant argued that the prosecution failed to establish the fifth element of larceny – that he took the money without the owner’s consent. The court noted that “although an employee may be considered an ‘owner’ for purposes of the larceny statute so that a taking from them can constitute a larceny, an employee’s status as an ‘owner’ does not render their consent to a taking of property valid consent that transforms that conduct from a larceny into embezzlement.” There was testimony indicating that P “was the only employee in the store at the time of the robbery who had a key to the cash register and the authority to open it.” His “assistant manager status gave him the authority to lock up and run the daily activity of the store. However, after the robbery,” he called a store manager, who instructed him to call 911. The evidence also indicated that P “was not in charge of actually scheduling the employees for shifts at the store. Thus, there was testimony” indicating his “authority at the store was limited.” There was no testimony indicating that he “had dominion over the store’s money such that he had similar power to it as the owner. While the actual owner of the store had conferred limited possession of the store’s money” to P, it did “not appear as if he was empowered with sufficient authority over the money to give valid consent to its taking.” Finding the facts here analogous to those in Jones, the court concluded that “legal possession of the money remained with” the store.
The court held that the pieces of personal identification found in the house where the defendant was arrested were relevant to the charged conduct and admissible under MRE 401. Further, they were properly admitted under MRE 403 and MRE 404(b). It concluded that any error in admitting two shotguns also found in the house was harmless. Further, the evidence was sufficient to support his armed robbery conviction, and the court rejected his ineffective assistance of counsel claims. He was “charged with armed robbery and the larceny element was at issue because no property was actually taken from the victim.” The fact that he was “arrested near various identifications that did not belong to him make it seem more probable that his intention was to rob the victim near the ATM that had been the location of numerous robberies.” While the identifications were not valid res gestae evidence, “they were admissible under MRE 404(b).” Given the “possible pattern of repeated ATM robberies, the evidence of other ATM robberies was logically relevant to show that the armed robbery of the victim was committed as part of characteristic ‘scheme, plan, or system in doing an act.’” Further, their admission “did not violate MRE 403. Defendant’s intent when approaching the victim in the parking lot was an essential fact at issue necessary to prove the larceny element of the armed robbery charge.” The risk of unfair prejudice also “did not substantially outweigh the probative force” of the evidence. As to the sufficiency of the evidence, the victim testified that “defendant approached her van while she was using an ATM that was alone in an empty parking lot.” He “seemed to act in concert with a man hiding in bushes. As the victim fled the parking lot, she saw defendant with a handgun and heard a gunshot.” Testimony showed that they “had no prior relationship that could have provided an alternative motive for defendant chasing her van with a gun.” While she was able to flee before he “could take any property from her,” and he “did not verbally demand any property from the victim, the reasonable inference from defendant’s actions” was that he intended to steal her “money after she used the ATM.” Affirmed.
There was sufficient evidence of premeditation to support the defendant’s first-degree murder conviction. On appeal, he challenged the evidence identifying him as a perpetrator, but the thrust of his argument was that he lacked premeditation and deliberation. First, there was sufficient evidence to support the jury’s conclusion that he was the perpetrator. His own witness testified that he was nearby during an argument between victim-S and C about S’s choice to bring his children to an adult party. Later, S’s 11-year-old son, GLJ, observed defendant threaten to “kill this n*****” when he was looking for S. S’s girlfriend, K, “specifically identified defendant as a part of the angry crowd that approached” S. K was “familiar with defendant from high school and family relationships.” Although S’s “friend could not identify the shooter at trial, he explained that the same person who he heard threatening to ‘blow . . . somebody’s face off’” later shot S. K and GLJ “identified defendant as that shooter when making reports to police, in photographic lineups, and at trial.” They were eyewitnesses to the shooting. It took place in front of K’s van with GLJ in the backseat. They “both testified to clearly observing defendant raise a black gun to” S’s head and shooting S. Given all of these facts, a reasonable jury could conclude that defendant was the perpetrator. Second, the record showed that he did not take a second look after observing the argument between C and S. “Instead, more than 30 minutes later, he had not calmed down like the rest of the crowd, he was searching for” S, and he was threatening to kill him. “Defendant also had time to reconsider his actions after he looked for” S in K’s minivan, as he walked down the street with the crowd in search of S. Once he found S, “he still could have taken a second look when he was ordering” S to get into the van and leave. Instead, when S did not comply, defendant shot him. Also, the “jury could infer that defendant was conscious of his guilt when, after the shooting, he went to another state, and when confronted by police there, used a false name and refused to provide his birthdate.” These actions did not refute that defendant premeditated the shooting. Affirmed.
The district court violated the STA when it began defendant-Brown’s drug-offense trial intending to immediately recess after conducting voir dire and empaneling a jury and reconvene for trial two weeks later. In an issue of first impression, the court also held that his oral objections to the delays satisfied the Act’s “motion requirement.” Citing the two seminal cases, Crane and Richmond, the court rejected “maneuvers aimed at merely paying lip service to" the STA’s requirements and determined that before it could uphold such a “start-and-stop” method of complying with the Act’s 70-day deadline, it was required to “examine whether such a procedure was warranted under the Act.” The court concluded that the district court’s method of resolving the STA problem only “paid lip service” to the Act where it “sought to continue trial to a date beyond the 70-day limit from the outset . . . and only subsequently determined that it would commence trial prior to the expiration of the 70-day deadline” (by conducting voir dire on 9/8 and then taking a 2-week recess until 9/22) after calculating the 70-day deadline. Moreover, both attorneys said that they could be ready for trial on 9/15. The district court erred by citing the Act’s exception for “unavailable” witnesses because the record showed that the government ’s counsel may not have “exercise[d] due diligence” in attempting to procure the witness for the 9/8 trial date, “and the Act explicitly prohibits district courts from granting continuances based on the government attorney’s ‘failure to obtain available witnesses.’” Also, the government had the option of subpoenaing the witness for the 9/8 date. The district court could not justify the delay under an “ends of justice continuance,” and it failed to state the actual reasons for the delay or weigh the interests at stake. The court found that Sherer did “not control and did not preclude Brown from effectively moving to dismiss the indictment based on the STA violation.” Further, Brown’s oral objections to the delays satisfied the Act’s motion requirement (“although defendants should normally make their § 3162(a)(2) motions in writing”). The court vacated his convictions at trial and remanded for a determination as to whether the indictment should be dismissed with or without prejudice. It affirmed the revocation of his separate supervised release in a matter originally filed in another court, and corresponding sentence.
Medical malpractice; Woodard v. Custer; Expert testimony; MCL 600.2912a(2); Craig v. Oakwood Hosp.; Skinner v. Square D Co.; O'Neal v. St. John Hosp. & Med. Ctr.; Causation; “Cause in fact” or “but for” cause; Genna v. Jackson; Ykimoff v. Foote Mem’l Hosp.; Robins v. Garg (On Remand); “Legal” or “proximate” cause; Wiley v. Henry Ford Cottage Hosp.; Jones v. Detroit Med. Ctr.; “Intervening” cause; Auto Owners Ins. Co. v. Seils; McMillian v. Vliet; Principle that negligent medical care in the treatment of an injury is typically considered foreseeable; Richards v. Pierce; People v. Schaefer; Taylor v. Wyeth Labs., Inc.
Holding that a factual question remained as to whether the defendants-doctors’ (Dr. Mittal and Dr. Badawi) alleged negligence was a proximate cause of the plaintiff’s injuries, the court reversed the trial court’s grant of summary disposition for those defendants and remanded. Plaintiff, through her guardian, sued defendants for medical malpractice, alleging their failure to properly treat her urinary tract infection caused her sepsis and resulted in a long hospital stay. The trial court found causation lacking and granted summary disposition for the doctors. On appeal, the court first found that a question of fact clearly remained as to whether Dr. Mittal was a proximate cause of plaintiff’s injuries, noting that “the chain of causation described by [plaintiff’s] experts leads straight from Dr. Mittal’s continuation of an inappropriate antibiotic to [her] urosepsis and lengthy ICU stay. Because [plaintiff] offered evidence to show that it [wa]s more likely than not that, but for Mittal’s conduct, a different result would have been obtained, summary disposition was improper.” The court next found that a question of fact also remained as to Dr. Badawi. It noted there was “disagreement among the doctors, but this disagreement merely establishes the existence of a fact question for the jury.” Further, “[v]iewing the record in a light most favorable to” plaintiff, “reasonable minds could conclude that Dr. Mittal’s negligence in failing to modify Dr. Badawi’s improper Cipro prescription was foreseeable, meaning that a question of fact remains for the jury regarding whether Mittal’s negligence should be seen as a superseding cause.”
Rejecting the plaintiffs’ argument that “a covered loss occurred as a result of their contractor’s unauthorized removal of water-damaged material and that such a peril was not excluded by the faulty workmanship” exclusion in their homeowners’ policy, the court affirmed the trial court’s order granting the defendant-insurer summary disposition. During the demolition phase of a renovation project, “the contractor discovered water damage and what he believed to be mold.” Attributing the damage to improper roof installation and leaks, the “contractor executed an extensive demolition of what he said were the water-damaged portions of the home.” Plaintiffs filed a claim with defendant “for both mold and ‘over-demolition.’” When the adjuster inspected the home, “none of the alleged mold affected material was on-site.” The contractor “managed the material” and it “was disposed of after the claim was filed.” The policy stated that it covered “perils that cause ‘direct physical loss to property,’ absent an applicable exclusion.” Where the policy, as here, “does not define the phrase ‘direct physical loss,’” it is “consistent with Michigan law to define the phrase as indicating an ‘immediate or proximate cause, as distinct from one that is remote or incidental.’” The demolition “was done either due to the contractor’s error or his faulty workmanship, or due to the contractor correctly addressing faulty workmanship of the persons responsible for the roof and window installation. The contractor was not an unknown interloper. He was plaintiffs’ agent.” While they presented “evidence that he acted in error and without” their permission, even if true, “such action equates to faulty workmanship on his part and is excluded from recovery under the homeowners policy.” They offered “no Michigan authority to support their argument to limit the exclusion to authorized actions” and the foreign authority was not persuasive. The court also rejected their claim that the trial court erred in dismissing the case based on their failure to preserve evidence of the mold, noting that “express language in the policy made preserving samples of the mold for defendant’s testing a condition precedent to recovery for the remediation of the mold.”
Action for judicial foreclosure; Claim that the complaint should have been dismissed for failure to include the promissory note; MCR 2.113(F)(1); MCR 2.116(I)(5); Harmless error; MCR 2.613(A); Waiver of claim the summary disposition motion should have been dismissed when plaintiff failed to appear for the hearing; In re Gerald L Pollack Trust; Allowing new grounds of argument to be raised in reply briefs; Kinder Morgan MI, LLC v. City of Jackson; Failure to provide the relevant transcript; MCR 7.210(B)(1)(a); PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.; Principle that an affidavit using conclusory language unsupported by underlying facts is insufficient for purposes of MCR 2.116(C)(10); Jubenville v. West End Cartage, Inc.
Concluding that the plaintiff could have easily cured any defect in the complaint, and that any error in allowing plaintiff to raise new grounds of argument in its reply briefs would have been harmless, the court affirmed the trial court’s orders granting plaintiff summary disposition and entering judgment in its favor in this action for judicial foreclosure. On appeal, the defendants-Hatchett argued that the trial court should have dismissed the case pursuant to MCR 2.113(F)(1) due to plaintiff’s “failure to include the promissory note with its complaint.” However, they failed “to contemplate that, pursuant to MCR 2.116(I)(5), even if the trial court had summarily disposed of plaintiff’s claim, plaintiff would have been permitted to amend its pleadings. Considering plaintiff later filed the promissory note prior to any decision on” the summary disposition motion, it stood to reason that it “could have easily cured any defect in the complaint.” Given that “the same result would have occurred in either circumstance,” defendants provided no basis for reversal. They waived their argument that plaintiff’s summary disposition motion “should have been dismissed when plaintiff failed to appear at the original hearing.” Further, MCR 2.119(E)(4)(b), on which they relied, “does not permit the trial court to dismiss plaintiff’s motion as a sanction for failing to attend a hearing.” In their final procedural argument, defendants referred to a hearing on “plaintiff’s motion for summary disposition where, both parties agree, there was a discussion and decision by the trial court regarding reply briefs to be filed by plaintiff.” The court noted that its ability to review this argument was hindered by defendants’ failure to provide it with the relevant transcript. It added that “any such error would have been harmless pursuant to MCR 2.613(A), because defendants were given a full and fair opportunity to respond to the reply brief, and because the trial court had the power, pursuant to MCR 2.116(I)(1),” to sua sponte enter an order granting plaintiff summary disposition “in light of the newly presented evidence and argument.”