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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Breach of contract claim for failure to pay royalties; Terms of a license agreement; Omni MedSci, Inc v Apple Inc
In an order in lieu of granting leave to appeal, the court vacated Section II.A. of the Court of Appeals judgment (see e-Journal # 72894 in the 5/7/20 edition) “addressing ‘Ownership of the ‘946 Patent,’ together with all conclusions and holdings derived from this section,” and remanded the case to the Court of Appeals. It directed the Court of Appeals to hold the case in abeyance pending the United States Court of Appeals for the Federal Circuit’s decision in Omni MedSci. Once that case is decided, “the Court of Appeals shall reconsider this case in light of Omni MedSci.”
District court subject-matter jurisdiction; The amount in controversy; MCL 600.8301(1); Treatment of contractual attorney fees; Ferrell v Glenwood Brokers, Ltd (CO); MCR 4.002(A)(1) & (B)
In an issue Michigan courts had not squarely addressed, the court held that contractual attorney fees are a form of general damages and thus, included in the amount in controversy for purposes of determining whether the district court has subject-matter jurisdiction. The parties’ commercial lease included a fee-shifting provision. The issue on appeal was how to treat a claim for attorney fees under such a provision, whether as damages that are “included in the amount in controversy, or as litigation expenses” that are excluded. Defendant-tenant argued that the district court erred in ruling that attorney fees awarded under such a provision count against its $25,000 jurisdictional cap. The court disagreed. It noted that federal “courts have a rich body of case law” on the issue in the context of “whether attorney fees required by contract or statute are to be included in the amount-in-controversy calculation for purposes of diversity jurisdiction. The weight of case law confirms that” they are included. Defendant relied on a decision by the Colorado Supreme Court, Ferrell. But the court found that the line of federal cases was more persuasive. The federal courts, like Michigan courts, “recognize that the American rule of bearing one’s own litigation expenses is the general rule and, therefore, attorney fees should not ordinarily be considered as part of the amount in controversy. Like with Michigan courts, the federal courts also recognize that the American rule is not absolute, and parties can contract around that rule with a fee-shifting provision. And, like with Michigan courts, the federal courts further recognize that attorney fees that are sought under a fee-shifting provision are a form of damages, and damages are considered as part of the amount in controversy. It follows deductively that, like with federal courts, Michigan courts should recognize that a claim for attorney fees under the parties’ contractual fee-shifting provision is part of the amount in controversy.” Further, the court found that there were several reasons why Ferrell was not persuasive. The “district court did not err in capping the award of contractual attorney fees to defendant at $22,307.44, nor did the circuit court err in affirming” this ruling. Affirmed.
Jurisdiction to enter an order of acquittal; MCR 7.104(A)(1) & (B); MCR 2.105(J)(1); Whether the Double Jeopardy Clause barred defendant’s retrial on the charge of resisting or obstructing a police officer; MCL 750.81d(1); Sanabria v United States; United States v Houston (6th Cir)
The court held that the “circuit court had jurisdiction to enter the order of acquittal and that the Double Jeopardy Clause bars defendant’s retrial on the charge of resisting or obstructing a police officer.” Thus, it reversed the circuit court’s order remanding to the district court for a new trial, and remanded to the circuit court. Under “MCR 7.104(A)(1) and (B), jurisdiction was vested in the circuit court because defendant timely filed her claim of appeal and her fees were waived.” This was true regardless of whether she “properly served the prosecution with her claim of appeal because the service-of-process provisions contained in the court rules ‘are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances. These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant.’” Thus, even if she “did not properly serve her claim of appeal on the prosecution, it did not divest the circuit court of jurisdiction to enter its judgment of acquittal.” As to the constitutional prohibition against double jeopardy, the circuit court “stated that defendant was ‘an innocent person.’” The court concluded that its “statements on the record may only be reasonably understood to be an acquittal for the purposes of the Double Jeopardy Clause.” Having determined that “the order of acquittal was an ‘acquittal’ for the purposes of the Double Jeopardy Clause, retrial is barred. The order of acquittal ‘precludes reexamination of guilt’ in all cases except ‘a prosecution appeal to reinstate the . . . verdict of guilty.’” In this case, the prosecution did “not seek to reinstate the jury’s guilty verdict because it has acknowledged, as it must under the factual and procedural history here, that the underlying instructional error would require a new trial, not the reinstatement of a guilty verdict.” Thus, the Fifth Amendment’s Double Jeopardy Clause applied and barred defendant’s retrial. Lastly, the court acknowledged that “the circuit court, on reconsideration, set aside its order of acquittal and instead remanded to the district court for a new trial on the basis that the error in the original trial was merely instructional.” Such reasoning was “not without force.” But while it later tried to reverse course, “its ruling on reconsideration cannot supersede its earlier order of acquittal for the purposes of the Double Jeopardy Clause because that earlier order, as evidenced by its unequivocal language, was not tentative in any respect.”
Motion to suppress preliminary breath test (PBT) results; A PBT not administered in compliance with MI Admin Code R 325.2655; Cases involving the 15-minute observation period requirement for Breathalyzer tests; People v Boughner; People v Wujkowski
[This opinion was previously released as an unpublished opinion on 3/18/21.] Concluding that this case was much more like Boughner than Wujkowski, the court found that the violation of R 325.2655 was significant here and called into question the accuracy of the PBT results. Thus, it held that the trial court erred in denying defendant’s motion to suppress the evidence of his PBT results. He was involved in an accident. After being bound over to the circuit court, he moved to suppress the PBT results on the basis “the PBT was not administered in accordance with the administrative rules” because the officer who administered it did not observe him for 15 minutes before doing so. There did not appear to be any dispute on this point. “The officers who arrived on the scene began assisting the other driver.” Thus, defendant was not observed during that period. Then an officer observed him “for approximately three minutes before administering the PBT. Thus, the officer who conducted the PBT did not observe defendant for 15 minutes, either continuously or collectively. Nor did the officer ask defendant questions to determine whether he smoked, regurgitated, or placed anything in his mouth for at least 15 minutes.” Defendant relied on two cases involving noncompliance with “the administrative rule requiring a 15-minute observation period before administering a Breathalyzer test” – Boughner and Wujkowski. The court found them instructive given the similarity of the applicable administrative rules. “Unlike Wujkowski, there was much longer than six seconds of nonobservance. Rather, similar to Boughner, the officer who administered the test only observed defendant for three minutes, and there is no evidence that anyone else observed defendant for the additional 12 minutes before the test was administered. Further, defendant was left unobserved for a substantial period of time following the accident.” The court remanded so that he may file a motion challenging whether there was probable cause for his OWI arrest absent the PBT results.
Revocation of probation; MCL 771.4; Sentencing by an alternative judge; MCR 2.613(B); People v McIntosh; The chief judge’s authority to reassign defendants’ cases; MCR 8.110 & 111; People v Watkins
The court held that the trial court did not err by allowing defendant’s probation violation hearing to be conducted by a different judge. He pled guilty to possession of less than 25 grams of a controlled substance and was sentenced to probation. Shortly thereafter, he was sentenced by the chief judge to 18 months to 15 years for violating his probation. On appeal, the court rejected his argument that the chief judge erred by conducting the probation violation hearing because it should have been held by the original judge. The chief judge “acknowledged at the probation violation hearing that the case had been transferred to him because [the original judge] had a very congested docket, including 11 trials.” As such, it appears he “properly exercised his power, under MCR 8.111, to reassign defendant’s case to address docket control problems.” Thus, even though the original judge “should have presided over the probation violation hearing had he still been presiding over the case, he was ‘unable to act,’ under MCR 2.613(B), and thus,” the chief judge “was ‘otherwise empowered to rule in the matter’ by operation of his powers under MCR 8.111.” Affirmed.
Sentencing; Reasonableness & proportionality; People v Lockridge; People v Walden; People v Milbourn; Scoring of OV 3; “Bodily injury"; People v McDonald; “Requiring medical treatment”; MCL 777.33(3); People v Maben; Scoring of OV 7; “Excessive brutality”; MCL 777.37(1)(a); People v Rosa; Cruel & unusual punishment; People v Powell
The court held that the trial court did not abuse its discretion by departing upward from the guidelines in sentencing defendant. He was convicted of AWIGBH for assaulting and seriously injuring his girlfriend. The trial court initially sentenced him to 38 months to 10 years, using as its basis, conduct for which he was acquitted. In consideration of Beck, which was decided the same day, the trial court ordered resentencing. At resentencing, his guidelines were calculated at 0 to 17 months, but the trial court departed upward by imposing a minimum sentence of 24 months. On appeal, the court rejected defendant’s argument that the trial court abused its discretion by departing from the guidelines minimum range and that his sentence was disproportional. Although it agreed that OV 3 already accounted for the fact that the victim suffered a bodily injury requiring medical treatment, it noted that “such a conclusion does not address the rationale provided by the trial court for its sentence.” It concluded that “OV 3 did not account for the extent of the victim’s injury.” In addition, for the trial court to assign 50 points to OV 7, “it would have to find that defendant treated the victim with savagery or cruelty beyond the usual brutality of AWIGBH.” It found that “the severity of the victim’s injury warranted more than the 10 points added defendant’s OV 3 score. At the resentencing, the trial court was careful not to even suggest that defendant’s assault went beyond the usual brutality of AWIGBH, lest it run afoul of Beck.” Finally, it held that defendant’s minimum sentence of two years was “proportional to the severity of his offense.” Affirmed.
Sufficiency of the evidence; Felonious impersonation of a peace officer; MCL 750.215(3); Reckless driving; MCL 257.626(2); Child abuse; MCL 750.136b(7); Felonious assault; Intent; Felony-firearm; Due process; Disqualification of prosecutors; The prosecutor’s prior representation of defendant’s ex-wife in a proceeding that ended with defendant obtaining custody of their children; Whether there was a conflict of interest; Harboring error as an appellate parachute; Appeal to the jurors’ sense of civic duty
The court held that there was sufficient evidence to support defendant’s convictions, except his felonious impersonation of a peace officer conviction. It also concluded that he did not show the prosecutor had a conflict of interest, that he had to be disqualified, or that defendant’s due process rights were violated due to the prosecutor’s failure to inform the trial court he had represented defendant’s ex-wife in in a prior child abuse and neglect case. While it was a close question whether the prosecutor crossed the line into an improper civic duty argument, the court found that defendant failed to show plain error. Thus, it affirmed his convictions of reckless driving, child abuse, felonious assault, and felony-firearm, but vacated his conviction and sentence for felonious impersonation of a peace officer. It remanded for the trial court “to replace that conviction with one of misdemeanor impersonation of a peace office, MCL 750.215(1), and to sentence defendant accordingly.” He asserted that “his due process rights were violated when the prosecutor failed to inform the trial court that he had represented defendant’s ex-wife in a child abuse and neglect case as her court-appointed counsel before he was appointed to his current position.” That proceeding ended with defendant gaining custody of their children. The court first noted that he did not raise this issue until a motion for a new trial filed six months after the trial. Further, he did not offer any factual support for his assertion “it was the prosecutor’s intent to aid defendant’s ex-wife by ensuring that defendant would be incarcerated, only speculation. There is no proof that the prosecutor even knew who was awarded custody of the children. To the contrary, the prosecutor told the trial court that his representation of defendant’s ex-wife ended after the jurisdictional phase of the proceeding[.]” As to the felonious impersonation conviction, the court held that committing a crime must “be the purpose of the misrepresentation.” It vacated his conviction because “there was no evidence that the specified crime of felonious assault was the goal of the impersonation[.]” Instead, the evidence showed that he “committed the misdemeanor offense of impersonating a peace officer by showing his” expired police auxiliary officer badge to effectuate a traffic stop.
Promissory estoppel; Effect of a debt being “charged off”; Statute of limitations applicable to an action for a deficiency judgment on a promissory note; MCL 600.5807(9); Distinguishing Guardian Depositors Corp of Detroit v Hebb & Guardian Depositors Corp of Detroit v Savage
Although, the trial court erred in summarily dismissing plaintiff-RCS’s action based on promissory estoppel grounds, the court affirmed the result based on the statute of limitations. Defendant-Matthews purchased a home with a loan secured by a first mortgage. He took out another loan, secured by a second mortgage. He defaulted on both the first and second, and the holder of the first mortgage foreclosed on the property. Years later, RCS took over servicing the second mortgage loan and filed this suit. Both parties filed competing motions for summary disposition. “Matthews asserted that the second mortgage was extinguished when the senior lien holder foreclosed on the property and the second mortgage holder failed to redeem the property. As the mortgage was extinguished, Matthews contended, RCS had only six years to file a claim for money damages arising from the contract breach, not the 10-year period that would have applied to a mortgage action. Matthews also contended that RCS was barred from recovery” due to, among other things, the doctrine of promissory estoppel. RCS claimed that the 10-year limitation period applied. The court held that RCS was correct Matthews was not entitled to summary disposition on promissory estoppel grounds. However, it affirmed on alternative grounds. The cases on which RCS relied as to its statute of limitations argument, Hebb and Savage, were distinguishable “because RCS’s predecessor in interest did not bid on the property at the foreclosure sale, leading to the extinguishment of the second mortgage and the right to enforce the mortgage and its covenants. As a result, RCS’s lawsuit was filed on the basis of the note and the six-year statute of limitations applies.”
Consent judgment of divorce; Property division; “Divided equally”; Federal administrative agencies’ handling of state domestic relations orders affecting federal pensions; Division of an employee’s pension after the employee’s death; §§ 838.302(b), 222(b), 803(b), 804, & 237; Assignment of a pension, annuity, or retirement benefits; MCL 552.101(4); Hudson v Hudson; Court Order Acceptable For Processing; The “seven-day rule”; MCR 2.603(B)(3); Hessel v Hessel
Holding that the trial court should have held an evidentiary hearing to determine the parties’ intent and understanding as to the meaning of “divided equally” in the consent judgment, and should not have entered the Court Order Acceptable For Processing pursuant to MCR 2.603(B)(3), the court vacated the order and remanded. They “negotiated a consent agreement that, very generally, divided their assets and debts equally.” It specified, in part, that defendant-ex-wife would be named a surviving spouse for purposes of plaintiff-ex-husband’s federal pension, and spousal support was waived. Defendant’s counsel prepared a Court Order Acceptable For Processing, but plaintiff objected to the provision directing payment of defendant’s half of the pension to her estate if she predeceased him, asserting it was a departure from their agreement and a windfall to her. The trial court signed the proposed order. On appeal, plaintiff argued that defendant’s “share” should be understood to mean half of his pension during her lifetime and her survivor benefit if she outlives him. The court noted that he appeared “to be correct in asserting that defendant will receive a survivor annuity if plaintiff predeceases” her, and in asserting that “by default, defendant’s half of his pension would revert to him upon defendant’s death, in the event she predeceases him.” It then found that while continuing to divide the pension after defendant’s death was not forbidden, it must be explicitly specified. Nevertheless, it was “persuaded that plaintiff would have reasonably expected that his pension annuity would be divided only for defendant’s lifetime, rather than for his own lifetime, unless expressly stated otherwise.” It also noted that it “would be reasonable for defendant to have expected that under MCL 552.101(4), she would continue receiving half of that pension annuity for the entirety of the existence of that pension; again, unless specifically provided otherwise.” The court found that, “[u]nder the circumstances, including plaintiff’s lack of counsel, the trial court’s clear misapprehension of plaintiff’s argument, and the readily-apparent factual confusion during the hearing on plaintiff’s objection” he did request an evidentiary hearing.
Insurer-priority; Rescission; Farm Bureau Gen Ins Co of MI v ACE Am Ins Co (Farm Bureau II); The five nonexclusive factors for courts to consider in determining whether rescission as to a third party is equitable
Holding that the trial court did not abuse its discretion or commit legal error by denying rescission as to defendant third party-Robynn Rueckert under the circumstances here, the court affirmed. The case concerned a no-fault policy that defendant-Mark Rueckert and his step-daughter defendant-Maryan Petoskey procured from plaintiff-Farm Bureau for a 1996 Dodge Ram van they jointly owned. Farm Bureau sent Mark a letter informing him that the policy was being cancelled because of an incomplete or inaccurate application and that his coverage would end on 5/25/13. Three days before the cancellation date, Robynn was severely injured as a pedestrian when she was struck by a garbage truck and suffered traumatic brain injuries resulting in permanent cognitive deficits. The garbage truck was insured by defendant-ACE. “The 1996 Dodge Ram was not involved in the accident.” Farm Bureau sought rescission of the policy and a declaratory judgment that ACE was first in priority to pay Robynn’s no-fault benefits. The trial court denied summary disposition to Farm Bureau and granted it to ACE “on the grounds that Farm Bureau’s decision to cancel the policy prevented it from later rescinding the policy.” On appeal, the court reversed, reasoning that “the insurer cannot be estopped from [rescinding the policy] on the basis of facts of which the insurer was actually unaware, even if those facts could have been easily ascertained.” On remand from the Supreme Court, the trial court reasoned that Robynn was “truly blameless, whereas Farm Bureau should be assigned some blame for the problems at the root of this case.” In this appeal, Farm Bureau argued that the trial court abused its discretion by denying rescission here. The court concluded that two of the factors identified by Justice Markman in Farm Bureau II “weighed against rescission, two weighed in favor, the fifth factor was inapplicable and a sixth factor identified by the trial court weighed against rescission. But the factors are not to be merely counted up, and the ultimate issue is which innocent party should bear the loss.” The court determined that the trial court carefully weighed the equities “after holding a multiday evidentiary hearing and concluded that rescission would be inequitable.” The court was “also mindful that the burden was on Farm Bureau to show that rescission was warranted.”
Dismissal due to discovery delays; Failure toconsider the pertinent factors on the record; Vicencio v Jaime Ramirez, MD, PC; Adams v Perry Furniture Co (On Remand)
Concluding that the trial court failed to consider the factors pertinent to its decision to dismiss on the record, including the suitability of possible lesser sanctions, the court reversed the order dismissing the parties’ claims and counterclaims in response to their discovery delays. It remanded for further consideration on the record of the appropriate sanction under the circumstances—including the possibility of dismissal with prejudice. Plaintiff argued that the trial court abused its discretion in failing to consider on the record the factors pertinent to the dismissal decision. The court found that “without explanation why the protracted litigation justified dismissal with prejudice, as opposed to a lesser available sanction, in light of the factual disputes presented,” it could not review the decision for an abuse of discretion. The trial court neither made a record of any analysis as to “the parties’ conduct in light of the pertinent factors, nor explained why lesser sanctions than dismissal with prejudice were inadequate.” While it indicated “it reviewed the documents submitted by the parties and the discovery master’s recommendation, the court did not elaborate about that recommendation or the reasons for it.” In the absence of any findings as to the fact-intensive issues present here, it was “not apparent, aside from the protracted nature of the litigation, what the trial court considered in reaching its determination that dismissal, as opposed to lesser sanctions, was appropriate.”
Dramshop action; MCL 436.1801(1); “Visible intoxication”; Reed v Breton; Blood alcohol content (BAC)
The court held that plaintiff failed to show a genuine issue of material fact as to whether defendant-Linklater appeared visibly intoxicated when she was served alcohol at defendant-AMC Sault Ste. Marie’s restaurant. Thus, it reversed the trial court’s denial of AMC’s summary disposition motion as to plaintiff-estate’s dramshop claim against AMC. The court noted that “no witness testified that Linklater displayed visible signs of intoxication” and that she testified she did not think her behavior before she left the restaurant “was indicative of being visibly intoxicated.” The person who served her “testified that she did not recall seeing Linklater stagger or have a difficult time leaving the restaurant. She further testified that she did not hesitate to continue serving” Linklater beer that night. The restaurant manager testified “she did not witness anything about Linklater’s behavior that night that concerned her regarding Linklater’s level of intoxication.” In addition, video surveillance footage that was presented “did not depict any outward or visible conduct by Linklater that would indicate that she was intoxicated.” While she appeared to spill a drink in the footage, this took place as she was “reaching across the table.” The court further determined that depictions of her touching her friend’s “hair and hands and kissing him was not indicative of intoxication. None of these interactions lasted for more than a few seconds, nor did they appear excessive or out of control. An objective observer would merely think that the two were involved in a romantic relationship.” As to the fact she “teetered slightly and ran into a doorjamb” when she left the restaurant about an hour after last being served, “while one could infer from this evidence that Linklater was intoxicated and had been for some time before leaving the restaurant, the evidence was insufficient to demonstrate actual visible intoxication at the time of service. Finally, the circumstantial evidence—Linklater’s BAC, the number of drinks that she consumed, and her small body size—did not constitute evidence of Linklater’s actual visible intoxication.” Remanded for entry of judgment for AMC.
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); Reasonable reunification efforts; MCL 712A.19a(2); In re Rippy; A parent’s commensurate responsibility to participate in & benefit from the services provided; In re Frey; In re TK; Best interests of the child; MCL 712A.19b(5); In re Olive/Metts Minors
Holding that the DHHS made reasonable reunification efforts and that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her parental rights were terminated based on her failure to benefit from services and failure to provide proper care and custody of the child. On appeal, the court rejected her argument that the DHHS failed to make reasonable reunification efforts. “Respondent did not benefit from those services, but this was not the fault of the DHHS. Despite receiving various services,” she demonstrated no ability to care for the child “and had not rectified the conditions that led to DHHS involvement.” It also rejected her claim that termination was not in the child’s best interests, noting the child “needed permanency, stability, and finality, and respondent demonstrated no ability to provide a safe, stable home for him.”