Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Sentencing; Proportionality challenge to departure sentences; People v Dixon-Bey; People v Boykin; People v Smith; Acquitted conduct; People v Beck; Consecutive sentencing; MCL 750.110a(8); People v Norfleet (Norfleet I & II)
Finding that defendant failed to show the trial court violated the principle of proportionality or considered his acquitted conduct, the court held that the trial court did not abuse its discretion in imposing departure sentences. Further, it concluded “the trial court gave ample reasons” for imposing consecutive sentences and it was clear that the decision to do so was based only on consideration of the conduct for which he was convicted. Thus, there was also no abuse of discretion in imposing consecutive sentences. He was convicted of first-degree home invasion and conspiracy to commit first-degree home invasion. He was acquitted of first-degree felony murder, assault with intent to rob while armed, armed robbery, and felony-firearm. Departing upward from the guidelines range, the trial court imposed consecutive sentences of 140 to 240 months for each conviction. The court previously affirmed defendant’s convictions but remanded as to sentencing in light of Beck. On remand, the trial court again “departed from the guidelines range, imposing consecutive sentences of 85 to 240 months” for each conviction. In this appeal, he argued that those sentences, a departure from the guidelines recommended minimum range of 36 to 60 months, were “disproportionate and were based in part on the trial court’s improper consideration of acquitted conduct.” The court disagreed. It was unpersuaded that the departure sentences were “disproportionate to the seriousness of the offenses of which defendant was convicted and defendant’s background, or that the sentences were improperly based on acquitted conduct. The trial court’s comments at resentencing made it very clear that it was considering only defendant’s actions in committing a home invasion in the middle of the night of a home occupied by elderly residents, who were asleep, after previously participating in a similar offense against another victim earlier that night, and [it] repeatedly stated that it was not holding defendant accountable for” one victim’s murder. The court held that the trial “court did not clearly err in identifying factors not adequately accounted for in the” guidelines scoring. Further, consecutive sentences were authorized here by MCL 750.110a(8), and the trial court gave “particularized reasons for imposing” them. Affirmed.
Evidence of other acts of sexual assault; MCL 768.27b; People v Cameron; Unfair prejudice; MRE 403; People v Watkins
The court held that the trial court’s exclusion of other acts evidence under MRE 403 was not outside the range of principled outcomes. Defendant was charged with CSC I arising out of an alleged sexual assault against CC. The trial court granted his motion to exclude other acts evidence noticed by the prosecution. On appeal, the court rejected the prosecution’s argument that the trial court abused its discretion by excluding evidence that defendant engaged in other acts of sexual assault with another victim, JW, agreeing with the trial court that there was a significant risk of unfair prejudice. “First, there is a stark contrast in circumstances surrounding CC’s and JW’s allegations against defendant. CC alleged that defendant sexually assaulted her by forcibly penetrating her vagina at a party within a few hours of meeting her. But JW is expected to testify that defendant, with whom she was in a dating relationship at the time, allegedly held her captive in her home and repeatedly sexually assaulted her by penetrating her orally, vaginally, and anally over the course of several days two years after he allegedly assaulted CC.” Further, because the “other alleged acts involving JW have not resulted in a conviction, there are reliability concerns that present a risk of unfair prejudice that outweighs the evidence’s probative value.” Finally, the “evidence supporting the current charges is expected to come from CC’s testimony, physical evidence, and several other witnesses that were present on the day of the assault. There is no need to supplement this evidence and testimony with JW’s testimony.” While JW’s testimony “may have some probative value, the probative value is substantially outweighed by the risk of unfair prejudice . . . .” Affirmed.
Sentencing; Upward departure sentence; Reasonableness & proportionality; People v Dixon-Bey
The court held that because the sentence in this case was proportionate to the offense and offender, the trial court did not abuse its discretion by imposing a 38-month minimum prison sentence. Defendant was convicted of AWIGBH and felony-firearm, arising out of a shooting incident at the home of his former girlfriend. The trial court departed upward from the guidelines and sentenced defendant to 38 months to 10 years for the AWIGBH conviction. On appeal, the court rejected his argument that the trial court abused its discretion by imposing a disproportionate sentence that fell outside the applicable guidelines range, noting it was “not persuaded that the challenged departure sentence [was] disproportionate to the seriousness of the offense of which defendant was convicted and” his background. “In departing by 15 months from the minimum sentencing guidelines range, the court considered rehabilitation, deterrence, and punishment.” In terms of rehabilitation, it told defendant he needed to learn the appropriate circumstances to use a firearm, and recognized that even if it accepted his suggestion that the victim had “bullied” him, he “did not just point the firearm at the victim; [he] fired multiple shots at the victim at close range, which could have taken the victim’s life.” The trial court “took into consideration that it not only had to teach defendant that he cannot act in this manner in the future, but it also had to teach other individuals that they cannot act like defendant did in this incident.” In addition, it “considered whether the guidelines minimum sentence range reflected the severity of the crime, and agreed with the prosecution ‘that the guidelines don’t do it justice.’” It believed the “severity of the offense, particularly the fact that defendant shot at the victim nine times, justified the court’s upward departure from 23 months to 38 months for the minimum sentence.” Defendant failed to show “any basis for concluding that the principle of proportionality was violated.” Affirmed.
Effect of a 2020 City Charter amendment to change the mayor’s term to the same limits of other elected city officials; Interpretation of a statute or a municipal charter; Whether the language was ambiguous; “Terms served prior”; Retroactivity; LaFontaine Saline, Inc v Chrysler Group, LLC; Hughes v Judges’ Ret Bd; Declaratory relief; Writ of mandamus
Concluding that plaintiff-Warren City Council (the Council) had shown it was entitled to a writ of mandamus precluding defendants from certifying nonparty-Mayor Fouts as a candidate, the court reversed the circuit court’s grant of summary disposition to defendants, and granted the Council’s complaint for a writ of mandamus in this election matter. The case concerned “the effect of a 2020 amendment to the Warren City Charter to change the mayor’s term to the same term limits of other elected city officials.” The specific issue was whether the Mayor of Warren, Fouts, whose fourth and current term expires in 11/23, “is eligible to run for a fifth term in office in light of the voters’ approval of a 2020 charter amendment limiting mayors to the greater of three terms or 12 years.” The court held that “the relevant charter sections’ failure to specify that time in office before the 2020 amendment will be counted does not make them ambiguous.” Nor did it “find dispositive the fact that the ‘terms served prior’ language was not in the ballot proposal question itself, where the language actually was on the ballot within the proposal section. Additionally, a prospective application of the charter is applied here, and its reliance on antecedent events does not run afoul of the general rule against retroactivity.” It also found the materials reflected “that the Council has shown that it has a clear legal right to the correct application of the charter language, that the city election defendants have a clear legal duty to not certify Mayor Fouts for the ballot, that the duty is ministerial, and that mandamus is the proper remedy.” Finally, defendant-Buffa in her capacity as Election Commissioner was ordered “to immediately disqualify Mayor Fouts as a candidate for mayor in 2023 and not place his name on the ballot for election. A public question being involved, no costs may be taxed under MCR 7.219. This opinion shall have immediate effect pursuant to MCR 7.215(F)(2).”
Action to recover unpaid benefit contributions under the Retirement Income Security Act & the Labor Management Relations Act; Whether defendant’s Full-Service Maintenance Technicians (FMTs) performed work covered by the relevant collective bargaining agreement (CBA), triggering defendant’s obligation to pay plaintiffs-Funds for the hours the FMTs worked; Whether the CBA’s title was dispositive of who was covered under the CBA; Brotherhood of RR Trainmen v Baltimore & OH RR Co; Whether the CBA’s “substantive provisions” were ambiguous; United States v Cain; Tonguette v Sun Life & Health Ins Co (Unpub 6th Cir)
[This appeal was from the WD-MI.] The court concluded that questions remained whether certain employees were covered under the relevant CBA, and that the district court should have considered whether the CBA’s “substantive provisions” were ambiguous before basing its decision on who was covered on a caption in the CBA. Thus, the court reversed summary judgment for defendant-Pro Services. Plaintiffs, the trustees of three multi-employer benefit funds, sued to recover unpaid benefit contributions. Pro Services is an industrial contractor in Michigan that supplies skilled-trade workers to both the construction and manufacturing industries. The issue on appeal was whether the work of the employees at issue, FMTs, was covered under the CBA, triggering Pro Services’ payment obligation to the Funds. The district court granted Pro Services summary judgment on the basis the CBA’s caption stated that it covered “the construction industry” and it was undisputed the FMTs worked in manufacturing. The court first considered the part that “titles” play when determining a contract’s meaning. Under Trainmen, headings and titles are only of use when there is some ambiguity in what the text provides. They “‘are not meant to take the place of the detailed provisions of the text,’ and they ‘cannot limit the plain meaning of the text.’” The court held that the CBA’s “plain meaning is that the Agreement covers all employees of Pro Services engaged in the sheet metal work described, regardless of industry, and regardless of whether they work in ‘manufacture,’ ‘installation,’ or ‘repairing and servicing[.]’” Because some questions remained “as to how much covered work the FMT’s” actually performed, summary judgment was inappropriate. Remanded.
Whether federal law preempted plaintiffs’ state-law claims; The Environmental Protection Agency (the EPA or the agency); The Energy Policy & Conservation Act (EPCA); The Supremacy Clause (US Const art VI, cl 2); “Implied preemption”
[This appeal was from the ED-MI.] The court held that plaintiffs’ fraud-on-the-agency claims against defendant-Ford regarding allegedly fraudulent fuel economy reporting were impliedly preempted because they conflicted with the EPCA and its regulatory scheme, which specifically control fuel economy testing. Ford conducted such testing on the F-150 and Ranger trucks, and provided the figures to the EPA, which published the estimates. Several Ford employees questioned the test results, and Ford announced it would investigate. Federal agencies, including the EPA, tested the vehicles, and “independent car reviewers performed ‘real-world mileage’ tests and determined that the actual performance of the Ranger and other vehicles was ‘nowhere close’ to the EPA estimates.” Plaintiffs’ testing led them to conclude that Ford had “fraudulently reduced the road-load resistance level used in the dynamometer testing[,]” which resulted in inaccurate mpg results. They filed several putative class actions. They were then directed to file a consolidated complaint, which included claims for contract breach, negligent misrepresentation, breach of express warranty, fraud, and unjust enrichment under the laws of all the states. Ford argued federal law preempted their state-law claims, and that the EPA had primary jurisdiction over the case. The district court agreed and dismissed the complaint. The court agreed that implied preemption called for dismissal. It noted that while no other circuit has addressed implied preemption under these specific circumstances, “a host of caselaw exists addressing similar fraud-on-the-agency claims in the context of implied preemption.” The court noted the EPA has been given the means to investigate and respond to any potential fraud in the reporting requirements, and has “significant discretion” throughout the procedures, as illustrated by the fact it “does not require the figures to be strictly accurate; rather, they must be reasonably related to the testing performed and the EPA’s expected fuel economy ratings.” The court found that juries could not be left to “second guess” or “rebalance” the agency’s objectives, and state-law tort claims would skew the disclosures that manufacturers are required to make to the agency. Further, “plaintiffs’ claims could not exist apart from federal law. . . . [C]rucially, the regulatory scheme governing fuel economy standards requires the EPA to approve those figures and publish them as its own. While Ford must provide the requisite testing data to the EPA, it is the EPA’s responsibility to determine whether that data is ‘reasonable’; after doing so, the EPA adopts those figures.” Any fraud Ford committed on consumers was merely “a byproduct of alleged fraud committed on the EPA.”
Divorce; The court’s jurisdiction; Appeal from a postjudgment order awarding or denying attorney fees & costs; MCR 7.203(A)(1); MCR 7.202(6)(a)(iv)
Concluding that plaintiff-ex-wife failed to present any issues that were properly before it, the court held that it lacked jurisdiction to address her claims of error. Thus, it affirmed the 2022 order appealed from, which awarded defendant-ex-husband attorney fees and costs. His jurisdictional challenge implicated its limited scope of jurisdiction under MCR 7.203(A)(1), and the court found “that none of plaintiff’s claims of error are reviewable in this appeal.” It noted that she “was first ordered to pay the underlying attorney fees and costs on” 11/24/21. When she did not do so, the trial court entered another order, directing her “to issue a check or money order for the attorney fees and costs that day and mail it to defense counsel by the following evening. Plaintiff again failed to comply, leading to entry of the” 3/14/22 order appealed from here. Each order “contained an explicit award of attorney fees, albeit the same fees arising from plaintiff’s frivolous motion practice, and each was a final order as defined in MCR 7.202(6)(a)(iv), appealable by right under MCR 7.203(A)(1).” The court noted that when “‘a final order is entered, a claim of appeal from that order must be timely filed. A party cannot wait until the entry of a subsequent final order to untimely appeal an earlier final order.’” In this case, as plaintiff failed to appeal the initial “2021 order awarding attorney fees, any argument regarding the trial court’s reason for awarding sanctions or the reasonableness of those fees” was not reviewable. Rather, the court’s jurisdiction was “limited to issues specifically pertaining to the [3/14/22] order, which was entered well after the underlying attorney fees had been awarded in a final order that was not appealed.” The court determined that her 14 stated issues could be categorized into 5 claims of error. Only the fourth related “specifically to the order appealed, and even that issue does not address the award of attorney fees and costs therein[.]” The second and third ones related “to the initial award of attorney fees, and the first issue has a tangential relation to the attorney fees in that it speaks to whether plaintiff’s motions were frivolous. Even so, these issues” were not within the court’s limited jurisdiction because she did not appeal the “2021 order containing the initial award of attorney fees. The last issue is not remotely germane to any of the orders awarding attorney fees” and was also not reviewable here.
Action challenging a city “franchise fee” under the Headline Amendment (MCL 141.91) & the Foote Act (264 PA 1905); Prohibition against a city’s imposition of a new local tax without voter approval; Const 1963, art 9, § 31; Taxpayers Allied for Constitutional Taxation v Wayne Cnty (TACT); Taxpayer standing; Const 1963, art 9, § 32; Limitations period for actions brought under the Headlee Amendment; MCL 600.308a(3); Accrual; Morgan v City of Grand Rapids; Whether plaintiff’s unjust enrichment & assumpsit claims were distinct from his Headlee claims; Abrogation of the Foote Act; Const 1908, art 8, § 28; Vested claims; Lansing v Michigan Power Co; Real party in interest
The court held that the trial court erred by finding plaintiff’s Headlee claim was not barred by the statute of limitations. It also held that his unjust enrichment and assumpsit claims were not distinct from his Headlee claim, and were thus, likewise time-barred. Finally, it held that plaintiff was not a real party in interest for purposes of enforcing the Foote Act. He brought this class action challenging a “franchise fee” charged by a nonparty-utility and passed on to defendant-city pursuant to a franchise agreement. Plaintiff claimed it was as an unlawful tax imposed in violation of the Headlee Amendment and the Foote Act. The trial court partially denied defendant’s summary disposition motion. On appeal, the court agreed with defendant that the trial court erred by finding the Headlee claim was not barred by the statute of limitations. “[L]ike in Morgan, plaintiff’s only means of contesting the franchise fee as an allegedly unlawful tax under the Headlee Amendment was through a suit on behalf of the public as identified in TACT, which accrued when the franchise fee was passed by ordinance. It follows that, because more than one year has passed since that time, plaintiff’s Headlee claim” was time-barred. The court also agreed with defendant that plaintiff’s equitable claims premised on MCL 141.91 were likewise time-barred as they were identical to his Headlee claim, noting that, as in TACT: “‘If legal limitations periods did not apply to analogous equitable suits, a plaintiff could dodge the bar set up by a limitations statute simply by resorting to an alternate form of relief provided by equity.’” Finally, the court agreed with defendant that plaintiff was not a real party in interest for purposes of enforcing the Foote Act. “The Foote Act plainly applies only to electric utility providers. Thus, the entity here with a potential ‘vested right’” was the utility company. Plaintiff “and the class have no rights or interests stemming from the Foote Act.” Reversed and remanded for entry of an order granting defendant summary disposition.
Duty to use due care to avoid physical harm to foreseeable persons & property; Clark v Dalman; Loweke v Ann Arbor Ceiling & Partition Co, LLC; Intangible economic losses; Rinaldo’s Contr Corp v Michigan Bell Tel Co; Mercedes-Benz U.S. International (MBUSI)
Holding that the damages plaintiffs asserted were the type of “intangible economic losses” to which the general common law duty to use due care does not extend, the court affirmed summary disposition for defendant. The case arose from a fire at defendant’s manufacturing facility. Defendant had a contract to supply nonparty-MBUSI with certain goods. MBUSI, an affiliate of nonparty-Daimler AG, used the goods obtained from defendant to manufacture some Daimler vehicles. Due to the fire, “Daimler suffered significant business interruptions and profit losses as a result of the forced reduction of production and assembly operations of its vehicles. Daimler, who was insured by plaintiffs, filed a claim for losses that it suffered as a result of the fire, and plaintiffs paid the claim. Plaintiffs, as insurers and assignees of Daimler,” brought a negligence action against defendant. The court noted it was true that “defendant owed Daimler, as a member of the public, a general common law duty to use due care during its undertakings, and this duty was separate and distinct from its contractual obligations to MBUSI.” However, the Michigan Supreme Court held in Rinaldo’s that this duty “does not extend to ‘intangible economic losses.’” In Clark, the Supreme Court held that “the duty is limited to preventing harm to ‘the person or property of others.’” The court determined here that “one could consider the complaint as alleging that by allowing the fire to occur defendant breached its duty to use ordinary care during its undertakings. However, plaintiffs only alleged economic harm. In their complaint, plaintiffs described the damages suffered by Daimler as a ‘business interruption,’ the ‘loss of business income,’ and ‘lost profits.’ These damages are precisely the sort of ‘intangible economic losses’ to which” the Supreme Court has clearly ruled the duty does not extend. The court added that the fact “Daimler’s economic losses were caused by damage to MBUSI’s property does not change the fact that Daimler only suffered intangible economic losses. While defendant did have a duty to exercise due care as to not damage MBUSI’s property, this is not a duty that was owed to Daimler because the breach of this duty caused Daimler to suffer only intangible economic losses.”
Quiet title; Acquiescence for the statutory period; Walters v Snyder; Veracity of the witnesses
In this quiet-title action, the court affirmed the trial court’s order granting title of the disputed area to plaintiffs/counter-defendants (the Oeschgers.) Defendants/counter-plaintiffs (the Youngs) argued “the trial court erred in finding the Oeschgers acquired title to the disputed area through acquiescence. Further, even if title by acquiescence was established, the trial court impermissibly applied tacking as a basis for awarding title of the disputed area.” The court held that “the trial court correctly focused its analysis on how the parties’ predecessors in interest treated the disputed property line. There is no error in the trial court’s analysis because its finding that the parties’ predecessors treated the tree line as the property line during the statutory period is supported by the record.” The court noted the Youngs raised “the curious argument that the trial court erred because it failed to factor the adverse possession elements into its analysis.” However, given that “the trial court expressly rejected the Oeschgers’ adverse possession claim[,]” consideration of the elements of adverse possession was irrelevant to the question of title by acquiescence here. The Youngs also appeared to challenge the veracity of the Oeschgers’ witnesses. The court noted that it defers to the fact-finder on issues of witness credibility. Finally, because “the property line was fixed when the Oeschgers acquired title to their property in 2014, the trial court correctly awarded” them the disputed area. Affirmed.
Children’s best interests
In these consolidated appeals, the court held that the trial court clearly erred by concluding that termination of respondent’s parental rights to RM was not in that child’s best interests. It also determined that the trial court did not clearly err when it determined “that termination of her rights was in JW1’s and JW2’s best interests.” As to RM, the court held that while respondent “participated in the preventative services, it is clear that she did not benefit from them. She did not learn to manage her anger issues.” Although the trial “court mentioned in passing that respondent had ‘a history of violent outbursts including the incident that brought this case to court,’ it did not consider in any meaningful way the implications of respondent’s inability to control her temper and the harm it caused to her children.” Had the trial “court properly balanced all the evidence before it, and given that evidence the weight it deserved, it would have been left with the inescapable conclusion that under no circumstance would RM benefit from a continued relationship with respondent.” Thus, the court was “left with a definite and firm conviction that a mistake has been made. More than a preponderance of the evidence favored termination of respondent’s parental rights to RM.” Therefore, it reversed in part the trial court’s order and remanded for entry of an order terminating her parental rights to RM. Next, she challenged the trial court’s finding that termination of her parental rights to JW1 and JW2 was in the children’s best interests. The record supported “a finding that respondent was not able to safely parent her children, and would not be able to do so within a reasonable time. By contrast, the children were thriving in their relative placement and their needs were being met. Termination of respondent’s parental rights was the best avenue for the children to achieve stability, permanency, and finality.” Affirmed in part, reversed in part, and remanded.
Termination under §§ 19b(3)(c)(i) & (j); Reasonable reunification efforts
Concluding that § (j) existed and reasonable reunification efforts were made, the court affirmed termination of respondent-mother’s parental right to the child. She did not insist that she had a bond with the child, but instead focused on the causes of that weak bond. Although respondent contended the weak bond resulted from issues beyond her control, the reasons for the weak bond were “immaterial to the analysis of the trial court’s decision that termination was warranted under” § (j). However, “the trial court clearly erred when it found that the conditions that led to adjudication had not been rectified and that termination of respondent’s parental rights was justifiable under” § (c)(i). Nevertheless, because the court affirmed the trial court’s decision that termination was appropriate under § (j), the fact that the trial court erred when it held that termination was appropriate under § (c)(i) did not require reversal. Respondent also argued “DHHS failed to make reasonable efforts because it did not provide individual psychiatric therapy. Respondent claims that individual psychiatric therapy would have helped her with her tendency to ‘close down’ when being observed and instructed during parenting-time visits.” But she ignored the extensive efforts DHHS “made to rectify that precise issue, which included weekly meetings with caseworkers, conducting a bonding assessment, and referrals for mental and emotional therapy opportunities. Respondent was referred to multiple trauma-focused therapy services that were aimed at helping her open up.” In addition, when DHHS became aware of her “cognitive impairment, extensive efforts were made to accommodate that impairment and to ensure that the services were adjusted in a way that made them easier for respondent to understand.” Thus, DHHS’s efforts “were, at the very least, reasonable, so the trial court did not clearly err in making that determination.”