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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
View Text Opinion Full PDF Opinion
Effect of the release contained in a settlement agreement; Subsequent action under the Uniformed Services Employment & Reemployment Rights Act (USERRA); Wysocki v IBM Corp; Whether the rights plaintiff received under the settlement agreement were “more beneficial” than the ones he gave up; 38 USC § 4302
The court held that the release in the settlement agreement plaintiff-Ward signed related to his employment with defendant-Shelby County encompassed this action under the USERRA where “he expressly released ‘any and all claims whatsoever[.]’” Ward, an Army reservist, entered into the agreement with the County after he was terminated from his job based on allegedly taking fraudulent paid leave. He appealed to the county civil service merits board. The settlement agreement was subsequently reached, providing for his reinstatement. It also contained the release at issue here. He then decided not to return to his employment, and four years later brought this suit under the USERRA. The district court ruled that the settlement agreement did not apply to Ward’s USERRA claim and entered a $1.5 million judgment against the County. Noting that federal law applies when determining the validity of a release of a federal cause of action, the court held that the settlement’s plain language, releasing “‘any and all claims whatsoever’” spoke for itself. The district court erred in ruling otherwise. The district court relied on Wysocki in determining the USERRA claim fell outside the scope of the release. The fact that the court in Wysocki “chose to highlight the term ‘veteran status’—among all the belts and suspenders the release employed there—did not make that term magic words necessary for release of a USERRA claim.” And the terms of the release here “patently encompassed” Ward’s USERRA claim. As applied to a settlement agreement, the USERRA also “requires that the agreement ‘establish[]’ rights that are ‘more beneficial’ for the servicemember than the ones he gives up.” The court noted that “§ 4302 does not make the courts guardians of servicemembers who choose to settle their USERRA claims.” It determined in Wysocki that “servicemembers can ‘waive their USERRA rights without unnecessary court interference, if they believe that the consideration they will receive . . . is more beneficial than pursuing their rights through the courts[.]’” Thus, the court concluded the “issue whether Ward believed benefits from the settlement agreement outweighed his USERRA claim” was for a jury to decide. It vacated the district court’s judgment and remanded.
Vagueness challenge to the third-degree child abuse statute (MCL 750.136b(5)); People v Lawhorn; People v Gregg; Ineffective assistance of counsel; Failure to request a jury instruction further defining “reasonable force”; MCL 750.136b(9); M Crim JI 17.21; Failure to request a specific unanimity instruction; The trial court’s failure to sua sponte give a specific unanimity instruction; Other acts of domestic violence evidence; MCL 768.27b; Unfair prejudice; Sentencing; Acquitted conduct; Correction of the PSIR
The court rejected defendant’s vagueness challenge to the third-degree child abuse statute. It concluded the “statute provides fair notice of the conduct prohibited when applied to the facts of” his case. Further, he failed to show defense “counsel performed deficiently, as opposed to strategically, in failing to request a jury instruction further defining ‘reasonable force.’” It also determined the trial court did not err in failing to sua sponte give a specific unanimity instruction and that defense counsel was not ineffective for failing to request one. In addition, the court upheld the admission of other acts of domestic violence evidence, and rejected his sentencing and PSIR challenges. He was convicted of third-degree child abuse and sentenced as a fourth-offense habitual offender to concurrent terms of 3 to 15 years. The court noted that in Gregg, it “rejected a similar argument that MCL 750.136b is overly broad because it does not define ‘reasonable force.’ [It] reasoned that the term ‘reasonable’ is easily ascertained by consulting dictionaries.” As a result, the meaning of the “phrase is easy to ascertain by consulting dictionaries and current caselaw.” The court further determined that “defendant’s as-applied challenge fails because a defendant’s action of beating a child with a belt causing scars clearly falls within the conduct that MCL 750.136b(5) prohibits. Regardless of whether the punches, slaps, and pinches constituted reasonable force,” both of his children testified that he “struck them with a belt, and multiple witnesses—including the doctor who evaluated the children’s injuries in [1/19]—testified about the bruises that had resulted. Even setting aside the children’s graphic descriptions of their beatings, the force that defendant used fell within the definition of force that was not fair, proper, or moderate.” As to his ineffective assistance claims, the court noted that had defense “counsel sought an instruction further defining ‘reasonable force,’ he would have highlighted that the standard by which defendant’s acts were to be evaluated was objective, not subjective.” The court added that, even assuming defense “counsel had performed deficiently, defendant” did not establish prejudice in light of “the strong evidence of [his] infliction of numerous severe bruises on these young children by striking them with a belt for their misbehaviors and the trial court’s instructions[.]” Affirmed.
Sufficiency of the evidence for a CSC II conviction under MCL 750.520c(1)(b)(iii); Coercion; “Subjugate”; People v Regets; People v Premo; Admission of an “intake form”; The business-records hearsay exception (MRE 803(6)); Relevance; MRE 401; Unfair prejudice; MRE 403; Ineffective assistance of counsel; Prejudice; Sentencing; Scoring of OV 12; Reliance on acquitted conduct; People v Beck
The court held that there was sufficient evidence to support defendant’s CSC II convictions. Further, assuming without deciding that an intake form was hearsay that did not fall within MRE 803(6), and that a “reference to the suicide in the form was irrelevant and unfairly prejudicial,” the court found defendant could not show that had it “not been admitted, it was more probable than not that the” outcome of his trial would have been different. He also failed to establish the prejudice prong of his ineffective assistance of counsel claim. But the court held that he was entitled to resentencing because the trial court relied on acquitted conduct in sentencing him. Thus, it affirmed his convictions but vacated his sentences and remanded. The case arose from his “sexual abuse of the victim in 1984 . . . when the victim was 14 years old and defendant was a priest at the church the victim attended with his family.” In 2018, the victim’s wife called a “tip line” that was opened to investigate sexual abuse within the Catholic diocese. Her statements were recorded on the intake form. As to “whether defendant used a position of authority ‘to coerce the victim to submit’ to sexual contact,” the court concluded that here, as “in Regts, the evidence supported the prosecutor’s theory that defendant used his status to establish a relationship with the victim that would permit defendant’s sexual advances to be accepted without protest.” The court noted that the victim “was taught to respect priests and viewed defendant as having a position of authority over him.” The court found that the evidence adequately supported “the coercion element because defendant manipulated his position of authority to have the victim alone where defendant could sexually assault him.” It concluded that his “actions constituted implied, legal, or constructive coercion because, as a trusted adult and spiritual leader, defendant was in a position of authority. He used this position of authority to accomplish the assaults.” As to sentencing, the court agreed with defendant he was “entitled to resentencing because the trial court violated his due-process rights by considering acquitted conduct when assessing points to OV 12 and fashioning his sentence.” He was acquitted of a CSC I charge but it was clear the trial court relied on there being a “criminal sexual penetration” in scoring 25 points for OV 12.
Sentencing; Right of allocution; MCR 6.425(D)(1)(c); Distinguishing People v Dixon-Bey; Ineffective assistance of counsel; Failure to make a futile objection; Prosecutorial misconduct; Admission of autopsy photos; People v Mills; Relevance; MRE 401; Unfair prejudice; MRE 403; Right to a fair trial
The court held that the trial court did not violate defendant’s right of allocution and did not err by admitting autopsy photos, that his right to a fair trial was not violated, and that he was not denied the effective assistance of counsel. He was convicted of first-degree felony murder, first-degree home invasion, FIP, CCW, felonious assault, domestic violence, and felony-firearm for assaulting his former girlfriend, D, and shooting her friend, J, who eventually died. The trial court sentenced him to concurrent terms of life without parole for the murder conviction, 140 months to 20 years for home invasion, 2 to 5 for FIP and CCW, 18 months to 4 years for felonious assault, and 93 days (time served) for domestic violence, to be served consecutively to concurrent 2-year terms for the felony-firearm convictions. On appeal, the court rejected his argument that he was entitled to resentencing because the trial court violated his right of allocution by allowing J’s mother to display an urn containing his remains and photos of J in a casket during her oral victim impact statement. “The trial court complied with MCR 6.425(D)(1)(c) by providing defendant the opportunity to address the court before imposing sentence; [he] chose not to do so.” And unlike Dixon-Bey, the trial court “did not interrupt, restrict, or discourage defendant from addressing the court.” Defendant’s decision “to waive allocution was a choice, just as” his actions on the night he committed the crimes were a choice. Further, because he “was not denied allocution by the victim impact statement, defense counsel’s failure to object to [J’s] mother’s display of the two items during her statement was not objectively unreasonable.” The court also rejected his claim that the trial court erred by permitting the prosecutor to introduce into evidence autopsy photos. “[T]here is nothing in the record in this case to support that the prosecutor acted in bad faith in moving for the admission of the” photos, which “were relevant to corroborate the medical examiner’s testimony.” And again, “counsel’s failure to object . . . was not objectively unreasonable.” Finally, the court rejected his contention that D’s testimony violated his rights to a fair trial and to remain silent, noting he failed to provide any meaningful argument or cite to any relevant authority, and there was “no reasonable probability that counsel’s failure to object affected the outcome of defendant’s trial.” Affirmed.
Motion to amend the complaint to add an insurer as a party; Equitable estoppel; Statute of limitations; Distinguishing Cincinnati Ins Co v Citizens Ins Co & Matti Awdish, Inc v Williams; Necessary joinder of parties; MCR 2.205; Abandoned issue
The court held that the trial court did not err by denying plaintiff leave to amend her complaint to add defendant-Tranz 1’s insurer, Old Republic, as a defendant. The case arose after two vehicles drove onto plaintiff’s lawn and got stuck. The court concluded it could not “be seriously disputed that, absent tolling, any claim against Old Republic resulting from the [6/5/19] accident would be barred by the statute of limitations in MCL 500.3145(5).” The court noted that if “Old Republic was added as a party now and was permitted to raise a statute-of limitations defense, [it] would plainly prevail because any claim against it arising out of the [6/5/19] accident would be time-barred.” To avoid this result, plaintiff argued “that Old Republic should not be permitted to assert (or, stated differently, should be estopped from asserting) the statute of limitations as a defense.” Plaintiff relied on Cincinnati Ins and Matti Awdish. Unlike the plaintiff in Cincinnati Ins, plaintiff in this case could not “rely on the doctrine of equitable estoppel to toll the statute of limitations for Old Republic because plaintiff cannot point to any intentional or negligent conduct by Old Republic that induced [her] to bring an untimely action.” The court noted that “communications after the limitations period expired could not induce plaintiff to bring her action after the limitations period expired.” More generally, nothing in the record suggested “that Old Republic did anything to induce plaintiff to bring an untimely action.” Unlike the defendant in Cincinnati Ins, Old Republic did not respond to “a request in a way that induced plaintiff to believe that her claim would be processed without difficulty once all the documentation was received. On this record, plaintiff cannot attribute the delay in filing her complaint to Old Republic’s conduct or representations.” With that being the case, she could not “invoke the doctrine of equitable estoppel to prevent Old Republic from raising a statute-of-limitations defense.” Also, this case was “readily distinguishable from Matti Awdish on its facts. In Matti Awdish, the plaintiffs brought a complaint that would have been timely against Farmers if it had named Farmers as a defendant. Here, plaintiff’s [3/21] complaint would not have been timely against Old Republic.” The court rejected her claim “that the trial court should have granted plaintiff’s request to amend her complaint on the basis of” the court’s decision in Matti Awdish. Finally, plaintiff abandoned her necessary joinder argument.
Eligibility for disability insurance benefits & supplemental security income (SSI); Interpreting § 202.00(c) of the Medical Vocational Guidelines; Lounsburry v Barnhart (9th Cir); Maxwell v Saul (9th Cir); Whether the word “work” in the regulation equates with “job” or “occupation”; “Significant range of work”; Social Security Administration (SSA); Administrative law judge (ALJ)
[This appeal was from the ED-MI.] Declining to adopt the Ninth Circuit’s interpretation of § 202.00(c) of the Medical Vocational Guidelines, the court affirmed the district court’s decision upholding the SSA’s denial of benefits to plaintiff-Hamilton. Hamilton, who had worked as a retail cashier at a store, sought disability benefits and SSI, citing her “degenerative disc disease, left cubital tunnel syndrome, and obesity.” Her case turned on the fifth step of the “five-step evaluation sequence for determining whether an applicant qualifies as ‘disabled’ . . . .” This step asks if an applicant “could ‘make an adjustment to other work.’” Relying on the testimony of a vocational expert, the ALJ found that Hamilton, who at 56 years of age qualified as a “‘person of advanced age,’” had some “transferable work skills, including cashiering and payment processing.” The ALJ further concluded these skills permitted her “to switch to two semi-skilled sedentary occupations: food checker and auction clerk. Because jobs in these two general fields existed ‘in significant numbers in the national economy,’ the ALJ concluded that Hamilton was not disabled and denied her applications.” On appeal, the court found the case hinged “on a narrow question: What does § 202.00(c) mean when it states that an ALJ must find applicants like Hamilton disabled unless they have skills that are ‘readily transferable to a significant range of semi-skilled or skilled work that is within [their] functional capacity’?” Hamilton, relying on Ninth Circuit cases (Lounsburry and Maxwell), interpreted the word “work” to mean “occupation.” But the court agreed with the SSA’s interpretation that “a single occupation with many different types of jobs itself can encompass a ‘significant range of work.’” The court held that “the regulatory context leaves no doubt that § 202.00(c) refers to ‘jobs.’” It found the Guidelines “consistently equates ‘work’ with ‘jobs’—not ‘occupations.’” The court disagreed with the Ninth Circuit’s approach and its reasoning.
Termination under § 19b(3)(a)(ii); Effect of a parent’s incarceration; In re Mason; Guardianship; In re Prepodnik; Good cause for declining relative placement; MCL 722.954a(2)(a) & (e); Reasonable reunification efforts; Best interests of the children; MCL 712A.19b(5); In re White
The court held that (1) the trial court did not err by finding termination of respondent-mother’s parental rights was in the children’s best interests, (2) a guardianship would not have been appropriate, and (3) § (a)(ii) was met as to respondent-father. Thus, it affirmed termination of both parents’ parental rights. The trial court found DHHS made reasonable efforts toward reunification for both respondents before filing the supplemental petition for termination. As to the mother, it found she “made no progress managing her substance abuse or mental health issues, had failed to maintain stable employment and appropriate housing, had missed 97 of 218 parenting time visits, and had shown up late for 24 visits.” As to the father, it noted his earliest release date from prison appeared to be 1/26, and that there was no evidence that he would be able to provide proper care and custody of the child at issue in his case (JG) in a reasonable amount of time. On appeal, the court rejected the mother’s argument that the trial court erred by declining to place the children in a guardianship with her parents in Georgia. “Under the circumstances, it would have been detrimental to the children to uproot them from their foster placements and send them out-of-state to live with relatives in Georgia. Good cause for declining to place the children with relatives existed under MCL 722.954a(2)(a) and (e).” In addition, the “children deserve stability and permanency, which mother has simply not shown she can provide in a reasonable amount of time, regardless of whether the children are placed under guardianship.” The court also rejected the father’s claim that the trial court erred by finding statutory grounds existed to support terminating his parental rights under § (a)(ii), and by declining to consider a guardianship for JG with her paternal grandparents. “[T]here was clear and convincing evidence that [he] deserted and abandoned JG for more than 91 days.” And he spared “little thought for whether removing JG from her current foster placement, where she lives with two of her siblings and is reportedly thriving, would be in her best interests.”