Become a mentor! The Mentor Center needs experienced attorneys to offer support & advice to young attorneys.
 
  • News and Moves

    Bodman PLC
    Michael D. Calvert
    Rachel L. Combs
    Laura M. Dinon
    Beth S. Gotthelf
    Sarah Harper
    Susan L. Johnson
    Michigan State University
    MDTC
    Aleanna B. Siacon
    Thomas S. Vaughn
    Michael E. “Mike” Wooley

 

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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary


Cases appear under the following practice areas:

  • Criminal Law (3)

    Full Text Opinion

    e-Journal #: 75283
    Case: People v. Bessner
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Fort Hood, Gadola, and Letica
    Issues:

    Hearsay; Excited utterance exception; MRE 803(2); Principle that police reports are excluded from the hearsay exception for public records & reports; MRE 803(8); Statements against interest exception; MRE 804(b)(3); Principle that invoking one’s Fifth Amendment right not to testify does not make the statement against penal interest; People v Barrera; Declarant unavailable due to wrongdoing exception; MRE 804(b)(6); Residual hearsay exception; MRE 804(b)(7); Right to present a defense; People v King; Evidentiary hearing; People v Ginther; Other acts evidence; MRE 404(b)(1); People v Kelly; Unfair prejudice; People v Danto; Sentencing; Reasonableness & proportionality; People v Dixon-Bey

    Summary:

    The court held that the trial court did not abuse its discretion by refusing to admit defendant-state trooper’s partner’s police report, and that he was not entitled to an evidentiary hearing. It also held that the trial court did not err by admitting other acts evidence, and that his departure sentence was not unreasonable or disproportionate. He was convicted of involuntary manslaughter and sentenced to 5 to 15 years. His conviction arose out of an incident in which he fired his Taser at the teenaged victim, who was driving an ATV, causing the victim to crash into a parked car, which resulted in his death. On appeal, the court rejected his argument that the trial court abused its discretion by refusing to admit his partner’s police report under various hearsay exceptions, finding he failed to show that the police report itself was admissible under any recognized hearsay exception, and he was not denied his right to present a defense. It also found he failed to show that he “was entitled to an evidentiary hearing on his claim that the prosecutor failed to turn over impeachment information about” another state trooper who was a prosecution witness. The court next rejected his claim that the trial court erred by admitting other acts evidence at his second trial, finding the evidence at issue “was highly probative to establish defendant’s motive, intent, plan, or system of using his Taser on persons who opposed him. And there was no unfair prejudice that could have substantially outweighed that probative value.” Finally, the court rejected his contention that his five-year minimum sentence, which was above the advisory guidelines range, was disproportionate and unreasonable. “Overall, the [trial] court provided an adequate basis for its conclusion that the five-year minimum sentence was proportionate to the circumstances of the offense and the offender.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75282
    Case: People v. Bowman
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Servitto, and Rick
    Issues:

    Ineffective assistance of counsel; The prosecution’s closing argument as to self-defense; Request for remand for a Ginther hearing; Sentencing; PRV 2; MCL 777.52(1)(a) & (c); OVs 3 & 5; MCL 777.33(1)(c); MCL 777.35(1)(a) & (2); Habitual offender sentencing; MCL 769.11(1) & 769.12(1); MCL 777.21(3)(b) & (c)

    Summary:

    The court rejected defendant’s ineffective assistance of counsel challenges to his convictions and his request for remand for a Ginther hearing. But it agreed with the parties that he was entitled to resentencing due to an error in scoring PRV 2 and because he should have been sentenced as a third-offense (rather than fourth-offense) habitual offender. He was convicted of second-degree murder, FIP, and felony-firearm. He was sentenced to 40 to 60 years for second-degree murder, 5 to 10 for FIP, and 2 years for felony-firearm. While he asserted that defense counsel should have more forcefully questioned an eyewitness (W), the court found that the cross-examination was vigorous and reasonable. As to the failure to object to the prosecution’s closing argument, the prosecution “was not precluded from arguing that the facts and circumstances of this case did not support the defense theory of self-defense.” In addition, even if the argument could be “read to improperly suggest that a defendant charged with” FIP cannot assert self-defense, defendant’s claim still failed because defense counsel may have reasonably declined to object “in order to avoid drawing the jury’s further attention to defendant’s status as a convicted felon.” He also failed to show prejudice. But while the court rejected defendant’s challenges to the OV scoring, it held that he was “entitled to resentencing because defense counsel was ineffective in agreeing to the erroneous assessment of 30 points for PRV 2.” The prosecution conceded on appeal that the PSIR showed defendant only had 2 prior low severity felony convictions and thus, he should have only been assessed 10 points under PRV 2. The prosecution also conceded on appeal that he “should have been sentenced as a third-offense habitual offender rather than a fourth-offense habitual offender. . . . Defense counsel was ineffective because there was no valid strategic reason to agree to sentencing defendant as a fourth-offense habitual offender. Defendant was prejudiced because the upper limit of the guidelines range is increased by 50% for third-offense habitual offenders but by 100% for fourth-offense habitual offenders.” Affirmed as to his convictions but remanded for resentencing.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75261
    Case: Miller v. Genovese
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Bush, Batchelder, and Moore
    Issues:

    Habeas corpus; Sixth Amendment right to confront witnesses

    Summary:

    The court reversed the district court’s denial of petitioner-Miller’s petition for habeas relief where the Tennessee Court of Criminal Appeals unreasonably applied clearly established Confrontation Clause law by redacting a witness’s (B) testimony that she was threatened with jail if she did not “remember” that she saw Miller in a car that looked like the victim’s car. At the first trial, B claimed she could not remember anything about the event. The trial court sent B “to jail, and to help her remember, gave her reading material from both parties[.]” When she was again called to the stand, she testified “in line with the statements the State had provided for her to read while she was in jail.” When defense counsel asked how she regained her memory, B replied: “I don’t want to go to jail.” The jury convicted Miller. The Tennessee Court of Criminal Appeals reversed, and he was retried. However, B could not be found. The trial court admitted her prior testimony as an unavailable witness, but prohibited introduction of “‘any reference of incarceration or intimidation or anything by her being a court witness’ from the transcript.” Miller claimed that this omission prevented the jury from hearing that B testified against him “because she did not want to go to jail.” The court first noted that the State’s case “was not airtight,” where the main witness had “credibility problems.” The only parts of B’s testimony the jury heard was that her memory was often faulty due to drug use, that she saw Miller around 2:00 am the night of the murder and he told her about the victim’s death the next “day before anyone else could have known about it.” Miller was again convicted, and the Tennessee Court of Criminal Appeals rejected his claims on appeal. The court held that it erred by rejecting Miller’s claim as to B’s testimony. He had the right to present to the jury at his first trial B’s “statement that she had suddenly remembered her damning testimony because she did not want to return to jail. At his second trial, he retained that same right.” The court rejected the State’s argument that his confrontation right was not violated by B’s testimony and that any error was harmless. It noted that the State went to great lengths to introduce B’s testimony, and cited the testimony in its opening statement. Further, B “alone said that Miller knew of the murder first—no one corroborated her testimony on that point.” By redacting her testimony, the jury was deprived of its right to decide whether it believed her, and Miller’s confrontation right was violated. Remanded for grant of a conditional writ of habeas corpus.

    Full Text Opinion

  • Family Law (2)

    Full Text Opinion

    e-Journal #: 75260
    Case: Alpert v. Alpert
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Shapiro, Cavanagh, and Redford
    Issues:

    Divorce; Adequacy of the trial court’s factual findings; Property division; “Equitable distribution”; Failure to explain a departure from congruence; Spousal support; Child support; Imputing income; Division of retirement accounts

    Summary:

    Determining that the trial court failed to make adequate factual findings on the record as to the property division, the spousal support award, and child support, the court reversed the divorce judgment and remanded for the trial court to make the necessary findings of fact. As to the parties’ homes, “the trial court did not equally distribute the accrued equity between the parties” and failed to give any explanation for its decision, “either during the divorce trial or in the judgment of divorce itself.” The parties also disagreed over the division of their various accounts, as well as "who would pay their outstanding marital debts. The record lacks clarity regarding how and why the trial court decided the marital property division as it did.” The court noted that while the trial court did not have to equally divide the marital property, “it had the obligation to make ‘an equitable division in light of all the circumstances.’” The court has determined “that an ‘equitable distribution of marital assets means that they will be roughly congruent. Any significant departure from that goal should be supported by a clear exposition of the trial court’s rationale.’ In this case, the trial court, although required to do so, failed to explain its departure from congruence.” Likewise, while it ordered plaintiff-ex-husband to pay defendant-ex-wife $1,519 a month for 5 years in spousal support, it “failed to make the requisite record indicating consideration and weighing of the relevant factors.” The court noted that it appeared “to have simply entered a uniform spousal-support order and a uniform child-support order without setting forth on the record its findings of fact and conclusions of law.” In addition, it “clearly erred by failing to clarify how the parties were to divide their retirement accounts.” The court directed it on remand “to make the requisite findings of fact on the record regarding division of property, spousal support, and child support and enter an appropriate judgment based upon its findings of fact and conclusions of law.” If it concludes that additional briefing or more evidence “would assist it, the trial court, in its sole discretion, may order the parties to do so.” The court retained jurisdiction and issued an order as to the proceedings on remand.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75259
    Case: Davis v. Turner
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Custody; Change of custody; Change of circumstances (COC); Vodvarka v Grasmeyer; Established custodial environment (ECE); Change of child’s domicile; The Child Custody Act; MCL 722.31(4)

    Summary:

    The court held that the trial court erred by failing to adhere to the Vodvarka framework before issuing an order that changed custody, and by failing to follow MCL 722.31(4) before issuing its order to change the child’s domicile. The court held that despite the fact the 11/9/20 order changed the custody of the child, the trial court did not adhere to the Vodvarka framework and determine whether proper cause or a COC existed that warranted modification of the custody arrangement. Rather, it first considered whether an ECE existed and, after determining that an ECE existed with both parents, it ordered the change of custody. In doing so, it failed to consider whether the ECE “would be altered and failed to evaluate the best-interest factors identified in MCL 722.23 to determine whether a change in the minor child’s custodial environment was in his best interests.” Reversed and remanded.

    Full Text Opinion

  • Insurance (1)

    Full Text Opinion

    e-Journal #: 75286
    Case: Saad v. Westfield Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Jansen, and Cameron
    Issues:

    No-fault action; Insurance fraud; Bahri v IDS Prop Cas Ins Co; Meemic Ins Co v Fortson; Effect of postprocurement fraud; Haydaw v Farm Bureau Ins Co; Fashho v Liberty Mut Ins Co; Williams v Farm Bureau Mut Ins Co of MI

    Summary:

    The court held that because plaintiff’s alleged fraud occurred after the parties entered into the insurance contract and did not amount to a substantial breach of the insurance contract, it could not be used to invalidate the insurance contract. Plaintiff was involved in a car accident, but defendant-insurer denied her claim for PIP benefits. Plaintiff then sued, but the trial court granted summary disposition for defendant on the basis that there was no genuine dispute of material fact that she misrepresented her ability to drive in her deposition. On appeal, the court noted that, when taken together, Haydaw, Meemic, Fashho, and Williams “establish that, unless an insured’s fraud results in a substantial breach of the insurance contract, fraud provides a basis for the opposite party to a contract to rescind the contract only if the fraud occurred before the contract was signed and before litigation commenced.” It then noted that plaintiff’s “alleged fraud—that she falsely claimed she was unable to drive herself to medical appointments from August 2017 until about March 2018—occurred after the insurance contract was signed, but before litigation commenced.” As such, even if her “claim was fraudulent, it was postprocurement fraud and thus can only be used to invalidate the insurance contract if it amounted to a substantial breach of the insurance contract, which is not the case here.” Reversed and remanded.

    Full Text Opinion

  • Negligence & Intentional Tort (1)

    Full Text Opinion

    e-Journal #: 75277
    Case: Tyson v. Dawkins
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Beckering and Shapiro; Concurring in the result only - Sawyer
    Issues:

    Negligence; Duty; Principle that merchants generally have no obligation to anticipate & prevent criminal attacks against invitees; MacDonald v PKT, Inc; Whether a bar owner can avoid liability where a plaintiff’s injuries occur outside the front door; Schneider v Nectarine Ballroom, Inc (On Remand); Shortall v Hawkeye’s Bar & Grill (IL App); Distinguishing between claims arising from ordinary negligence & claims premised on a condition of the land; Lymon v Freedland

    Summary:

    The court held that the trial court erred by finding defendant-bar owed plaintiff-patron no duty because another bar patron (defendant-Dawkins) assaulted him on the sidewalk in front of the bar. Plaintiff sued for serious injuries he sustained when he was twice assaulted by Dawkins “just outside the bar’s front door, which according to several witnesses was due to the color of plaintiff’s skin.” The trial court granted summary disposition for the bar, finding it owed no duty to plaintiff because the altercation did not occur on its premises. On appeal, the court agreed with plaintiff that the trial court erred by finding that because Dawkins assaulted him on the sidewalk outside, defendant owed him no duty. “[A]fter Dawkins called plaintiff a racial slur, punched him in the face just outside the front entrance, and reentered the bar, while another patron entered the bar and announced that an ‘N-Word’ had been knocked out, . . . there arose a risk of imminent harm that the physical altercation would continue, especially considering the parties’ ongoing argument and the involvement of bystanders.” As such, this incident “triggered a duty by the defendant to reasonably expedite the involvement of the police.” As for the location of the assault, “simply because plaintiff had not made it through the threshold of the front door when he was knocked out by a bar patron does not mean he was not an invitee or that defendant did not owe him a duty to reasonably respond once any employee or agent learned he had been knocked out. A reasonable jury could conclude that because defendant’s bar patrons congregated out front on the sidewalk on bike nights and flowed in and out of the bar on a regular basis while temporarily leaving their drinks at the bar, the area around the front entrance was effectively defendant’s premises.” Reversed and remanded.

    Full Text Opinion

  • Real Property (1)

    Full Text Opinion

    This summary also appears under Tax

    e-Journal #: 75284
    Case: Petersen Fin., LLC v. City of Kentwood
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Markey, and Letica
    Issues:

    Effect of a foreclosure on encumbrances to the property such as a special assessment; Whether there were “future installments” of a special assessment that survived foreclosure under MCL 211.78k(5)(c); The voluntary special-assessment/development agreement (VSADA); “Private deed restriction”; Effect of a city’s resolutions as to the special assessment

    Summary:

    The court held that although defendant-City “levied a ‘special assessment’ through adoption of a resolution, efforts to extend the term for payment of this assessment were invalid; consequently, the special assessment was extinguished by the foreclosure because there were no ‘future installments’ owing at the time of foreclosure.” It also held that “postforeclosure efforts to revive the extinguished assessment either by contract or resolution were void.” Thus, it reversed summary disposition to defendants and remanded for entry of judgment in plaintiff-Petersen’s favor, removing the liens on the property. The issue was whether plaintiff, “as the purchaser of property following a tax foreclosure, became liable for the previous owner’s obligations connected to public improvements benefiting the property” or whether the obligations were extinguished by the judgment of foreclosure. There were “three documents—(1) the VSADA, (2) Resolution 96-04, and (3) Resolution 50-14—relevant to” whether there was a preforeclosure obligation as “to the property that survived foreclosure under MCL 211.78k.” The court held that the VSADA was “a contract, and as a contract rather than a special assessment, the VSADA did not survive foreclosure under MCL 211.78k(5)(c), which only creates an exception for (1) future installments of (2) a special assessment.” It also found there was “no merit to Petersen’s assertion that in light of the VSADA, Resolution 96-04 somehow created only a contractual obligation rather than a special assessment. Instead, Resolution 96-04 created a ‘special assessment,’ and whether this obligation survived foreclosure under MCL 211.78k(5)(c) requires a determination whether there remained ‘future installments’ of the special assessment. Relevant to this ‘future installment’ question, Resolution 96-04 set a 10-year term for the special assessment.” Annual interest-only payments were due beginning in 9/05, and the final balloon payment, including principal and interest, was due in 9/14. The foreclosure occurred in 3/15, “after the final payment set by Resolution 96-04 came due. If Resolution 96-04 controlled the time for payment of the special assessment,” there was no future installment. Finally, “absent a legal basis for the adoption of Resolution 50-14, defendants’ arguments that the City Commission legally extended the term of the special assessment” lacked merit. Without this extension, “all installments of the special assessment were due and payable before the foreclosure” and as a result, the assessment did not survive under MCL 211.78k(5)(c).

    Full Text Opinion

  • Tax (1)

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 75284
    Case: Petersen Fin., LLC v. City of Kentwood
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Markey, and Letica
    Issues:

    Effect of a foreclosure on encumbrances to the property such as a special assessment; Whether there were “future installments” of a special assessment that survived foreclosure under MCL 211.78k(5)(c); The voluntary special-assessment/development agreement (VSADA); “Private deed restriction”; Effect of a city’s resolutions as to the special assessment

    Summary:

    The court held that although defendant-City “levied a ‘special assessment’ through adoption of a resolution, efforts to extend the term for payment of this assessment were invalid; consequently, the special assessment was extinguished by the foreclosure because there were no ‘future installments’ owing at the time of foreclosure.” It also held that “postforeclosure efforts to revive the extinguished assessment either by contract or resolution were void.” Thus, it reversed summary disposition to defendants and remanded for entry of judgment in plaintiff-Petersen’s favor, removing the liens on the property. The issue was whether plaintiff, “as the purchaser of property following a tax foreclosure, became liable for the previous owner’s obligations connected to public improvements benefiting the property” or whether the obligations were extinguished by the judgment of foreclosure. There were “three documents—(1) the VSADA, (2) Resolution 96-04, and (3) Resolution 50-14—relevant to” whether there was a preforeclosure obligation as “to the property that survived foreclosure under MCL 211.78k.” The court held that the VSADA was “a contract, and as a contract rather than a special assessment, the VSADA did not survive foreclosure under MCL 211.78k(5)(c), which only creates an exception for (1) future installments of (2) a special assessment.” It also found there was “no merit to Petersen’s assertion that in light of the VSADA, Resolution 96-04 somehow created only a contractual obligation rather than a special assessment. Instead, Resolution 96-04 created a ‘special assessment,’ and whether this obligation survived foreclosure under MCL 211.78k(5)(c) requires a determination whether there remained ‘future installments’ of the special assessment. Relevant to this ‘future installment’ question, Resolution 96-04 set a 10-year term for the special assessment.” Annual interest-only payments were due beginning in 9/05, and the final balloon payment, including principal and interest, was due in 9/14. The foreclosure occurred in 3/15, “after the final payment set by Resolution 96-04 came due. If Resolution 96-04 controlled the time for payment of the special assessment,” there was no future installment. Finally, “absent a legal basis for the adoption of Resolution 50-14, defendants’ arguments that the City Commission legally extended the term of the special assessment” lacked merit. Without this extension, “all installments of the special assessment were due and payable before the foreclosure” and as a result, the assessment did not survive under MCL 211.78k(5)(c).

    Full Text Opinion

  • Termination of Parental Rights (2)

    Full Text Opinion

    e-Journal #: 75321
    Case: In re Hagenson/Baker
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Markey, and Letica
    Issues:

    Termination under §§ 19b(3)(c)(i) & (c)(ii); Doctrine of anticipatory neglect; In re LaFrance; Children’s best interests

    Summary:

    Holding that the trial court did not clearly err in determining that §§ (c)(i) and (c)(ii) were established by clear and convincing evidence, and that termination was in the children’s best interests, the court affirmed the order terminating respondent-father’s parental rights. The conditions leading to the “adjudication included, essentially, improper supervision, exacerbated by substance use, and touching of a sexual nature. Respondent was ordered to comply with a case-service plan designed to improve his parenting skills and keep the children safe.” During the following 11 months, further “conditions arose, including more concerning substance abuse for which respondent was given an opportunity to address and correct. Respondent was repeatedly ordered to comply with the assessments that would have benefited reunification efforts. Despite this, he refused to candidly and meaningfully engage in the assessments.” He indicated during the termination hearing “he would not benefit from substance-abuse treatment because he did not have any substance-abuse issues.” The court found that it was clear “the conditions that led to adjudication and the conditions that arose thereafter continued to exist, and there was no evidence that they would be rectified within a reasonable time considering the young ages of the” children at issue. While he relied on LaFrance, the court found that the doctrine of anticipatory neglect “had little application to this case at the time of termination.” In contrast to LaFrance, the conditions here at the time of termination, which he refused to address, “placed respondent’s own children at risk of harm should they be returned to his care. There was clearly a nexus between his drug and alcohol use and his parenting[.]” As to the children’s best interests, the trial court weighed their “ages, respondent’s lack of progress with the case-service plan, and the children’s need for permanency, safety, and stability.” His three youngest children were doing well in their biological mothers’ custody without contact with him. “Children, especially ones as young as [these children], require a parent who can provide them with a safe, stable, and permanent environment." The evidence showed that they would be at risk of harm in his care.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75308
    Case: In re Smith
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Borrello, and Swartzle
    Issues:

    Termination under §§ 19b(3)(g) & (j); Due process; Reasonable reunification efforts; In re Hicks/Brown

    Summary:

    The court reversed the trial court’s order terminating respondent-mother’s parental rights to her two children, JS and JB, and remanded to allow her to participate in services. The case stemmed from the alleged physical abuse of JS by his father. Respondent argued that her due process rights to a fair proceeding were violated by the DHHS’s pervasive reliance on argument and evidence that she ”failed to comply with and benefit from a case service or treatment plan when respondent was never ordered to comply with a case service plan and” there was no such plan in the court file. The DHHS concurred on appeal that she was entitled to relief on this basis, having filed a motion for peremptory reversal in which it acknowledged that she “was never ordered to comply with a service plan” and asked the court to reverse and remand to properly allow her to participate in services. Although the trial court orally referenced certain services for her, it was undisputed that the court file contained “no service plan and that an order requiring respondent to comply with and benefit from a case service plan was never entered.” The court held that “services could assist in insuring that respondent would be a stable figure in JS’s life as well as possibly prevent a future termination of her parental rights.” Nonetheless, when the DHHS decided to seek termination of her rights to both JS and JB, it relied heavily on claiming that she “had failed to comply and benefit from a nonexistent service plan in order to justify” its actions in seeking termination “and to demonstrate evidentiary support for the statutory grounds warranting termination.” The children’s foster-care worker and CPS specialist “testified that respondent had not complied with or benefited from ‘the’ treatment plan.” The reason that was probably true was there was no treatment plan. After the trial court recognized the lack of a service plan in the file, it appeared that it ruled in accordance with the DHHS’s “responsive argument that services were not required since the goal was never reunification.” Even if this was true, which was “very difficult to ascertain given the unconventional and meandering procedural path of this case, the record” was clear that her “so-called failure to comply with a nonexistent formal treatment plan was held against her in a substantial way that resulted in the termination of her parental rights.” Because no treatment plan existed, she “could not be faulted for failing to complete a nonexistent treatment plan.”

    Full Text Opinion

Ads