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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Involuntary dismissal of a hearing tried without a jury; MCR 2.504(B)(2); In re ASF; Marderosian v. Stroh Brewery Co.; A family court’s review of the superintendent’s decision to withhold consent to adopt a state ward; MCL 710.45; In re Keast
The court held that the trial court did not err in dismissing the petitioner’s adoption request. The superintendent denied petitioner’s request to adopt the child rather than the child’s guardian with whom the child had lived with for the prior three years. The trial court affirmed, noting it could not find by clear and convincing evidence that the superintendent’s decision was arbitrary and capricious. It observed that the child had been in her guardian’s care more than three years, that there was no evidence that the guardian had been abusive or neglectful, and that petitioner did not dispute findings as to the child’s absences from school during the guardianship, the impact of petitioner’s health issues on caring for the child, and her financial situation. Further, the superintendent “testified that an investigation was undertaken into petitioner’s complaints about the care” the guardian was providing, but that the complaints were unsubstantiated. “In light of the length of time [the child] had resided with her guardian and the possible impact petitioner’s health and finances could have on petitioner’s ability to care for [her], the trial court’s decision that the [superintendent’s] decision to withhold consent for adoption was not arbitrary and capricious.” Affirmed.
Whether the debtor retained sufficient rights in the assigned rents under Michigan law for those rents to be included in the bankruptcy estate; Assignment of rents in Michigan; MCL 554.231 & 232; Smith v. Mutual Benefit Life Ins. Co. (MI); Otis Elevator Co. v. Mid-America Realty Investors (MI App.); Ashley Livonia A&P, L.L.C. v. Great Atl. & Pac. Tea Co., Inc. (Unpub. MI App.); The assignor’s residual rights; Security Trust Co. v. Sloman (MI); Scope of the bankruptcy estate; Demczyk v. Mutual Life Ins. Co. of NY; United States v. Whiting Pools, Inc.; In re Mount Pleasant Ltd. P’ship (Bankr. WD MI); In re Madison Heights Group, LLC, (Bankr. ED MI); In re Woodmere Investors Ltd. P’ship, (Bankr. SD NY)
[This appeal was from the ED-MI.] In this Chapter 11 bankruptcy case, the court reversed the bankruptcy court’s ruling and held that under Michigan law, the debtor (Town Center Flats) did not retain sufficient rights in the rents that had been assigned to appellee-ECP Commercial II for those rents to be included in the bankruptcy estate. The case involved Town Center’s rights to an assigned stream of rents under Michigan law, which determines whether the rents constitute part of the Chapter 11 bankruptcy estate. The bankruptcy court ruled that Town Center had a continuing property interest in the rents. But the district court disagreed, concluding that an assignment of rents transfers ownership under Michigan law; thus, the rents were not part of the bankruptcy estate. The court agreed with the district court, holding that Town Center “did not retain sufficient rights in the assigned rents under Michigan law for those rents to be included in the bankruptcy estate." ECP held the loan that financed Town Center’s apartment complex, and the mortgage agreement provided that if Town Center defaulted, rents would be assigned to ECP. MCL 554.231 permits creditors to collect rents directly from tenants on specific mortgaged properties. Because “Michigan courts have generally treated the assignment of rents as a transfer of ownership once the agreement has been completed and recorded and a default has occurred[,]” the court predicted that “the Michigan Supreme Court would treat a completed assignment of rents as a transfer of ownership.” Given that, under these circumstances, MCL 554.231 permits an ownership transfer, the court concluded that “Town Center did transfer ownership in the assigned rents to ECP before the bankruptcy petition was filed[,]” and that the agreement’s “broad language . . . evidence[d] an intention to transfer ownership.” The court rejected Town Center’s argument that it had a “future interest” in the rents. Further, neither “the Michigan Supreme Court nor the Michigan Court of Appeals has concluded that . . . restrictions on the assignee’s use of rent money create a property right vested in the assignor.” The court held that “Michigan law treats a completed assignment of rents as a change of ownership and the assignor of those rents does not retain residual property rights in the assigned rents.” This result “is in line with the majority of bankruptcy court decisions that have addressed this issue.”
Dismissal after a prosecution witness (a police officer) failed to appear for trial a third time; MCL 767.40a; People v. Everett; People v. Williams; MCR 2.503(C)(2); People v. Jackson
The court held that the trial court abused its discretion by dismissing the charges against the defendant when the prosecution was ready to proceed without the officer (J) who failed to appear for trial. If the trial court believed J was a vital witness, “an adjournment would have been the proper remedy.” Thus, the court reversed the order granting defendant’s motion to dismiss and remanded for further proceedings. The trial court’s ruling was based on two findings – that (1) J was a key witness who was vital to defendant’s case and (2) the trial had already been delayed by adjournments. The court noted that while the prosecution had a duty to produce J (an endorsed witness), her failure to appear did “not necessarily amount to a violation of MCL 767.40a.” The prosecution properly served her with “a subpoena and had no reason to expect that she would be unavailable for trial. The officer’s nephew was in a car accident on the trial date. This emergency continued to the next day, the adjourned trial date. The trial court understood the officer’s reason for failing to appear and did not fault” her. Even if her failure to appear constituted “a violation of MCL 767.40a, dismissing the charges against defendant when the prosecution is ready to proceed is an abuse of discretion.” The prosecution stated that it was ready to proceed without J’s testimony. “The trial court never found that there was insufficient evidence or that the prosecutor’s actions were illegal or unconstitutional.” Further, there would have been “no prejudice to defendant by allowing the case to proceed without” J because a detective’s (F) report “contained the victim’s inconsistent statements.” F was “also an endorsed witness, and his testimony could have served the same purpose as the missing officer’s, even though he was not the first officer on scene.” The court concluded that “an adverse inference instruction would have been a proper remedy to” J’s absence, particularly as to the use of the statements in the report. As to another adjournment, the court noted that the first one was related to defendant’s motion to quash and the second one was at his request.
Ineffective assistance of counsel; People v. Carbin; People v. Toma; Matters of trial strategy; People v. Davis; People v. Trakhtenberg; Responsibility to prepare, investigate, & present all substantial defenses; People v. Chapo; Due process & equal protection; Whether the trial court should have given a mistake-of-age jury instruction; Principle that a reasonable mistake of age is not a defense to a CSC III charge; People v. Cash; People v. Kilgo; Sentencing; Scoring of OVs 11 & 19; MCL 777.41(2)(a) & (c); People v. Johnson; MCL 777.49(c); People v. Hershey; People v. Smith; Whether defendant was entitled to resentencing; People v. Francisco
Concluding that the defendant failed to show that the documents he asserted defense counsel should have presented would have made a difference at trial, the court rejected his ineffective assistance of counsel claim. It also rejected his claim that he was or may have been entitled to a mistake-of-age jury instruction, given the existing state of the law. However, it held that he was entitled to resentencing because OV 11 was improperly scored and subtracting these points altered his minimum guidelines range. He was convicted of CSC III and sentenced to 7 to 15 years. He challenged defense counsel’s failure to investigate and present documents that would have allegedly corroborated his testimony and proved he could not have committed the crime. One document was “a letter from the owner of the daycare center that provided care for defendant’s children,” stating that they were dropped off at 2:00 PM on 3/10/14. The other was “a timecard report from defendant’s employer,” indicating that he clocked in at 2:55 PM on 3/10/14. He also provided maps indicating the distances and times between his house, the daycare, his work, and the victim’s home. Assuming that it could even consider this documentation, which was attached to an unsuccessful motion to remand and his appellate brief, the court found that reversal was unwarranted. The documents did not disprove the victim’s version of events. The fact remained that defendant did not claim “that there would be any concrete evidence after further investigation that would show what he was doing between” 12:30 PM and 2:00 PM, which was “approximately the timeframe that the sexual assault had allegedly occurred. The jury could have very well believed” his timeline and still convicted him. As to his jury instruction claim, the Michigan Supreme Court held in Cash that a reasonable mistake of age is not a defense to a CSC III charge, and it denied leave to appeal in Kilgo to consider whether Cash remains viable. Finally, while the court upheld the assessment of 10 points for OV 19, the prosecution conceded that 25 points were erroneously assessed for OV 11. The court affirmed the conviction but remanded for resentencing.
Right of confrontation; U.S. Const. amend. VI; Const. 1963, art. 1, § 20; People v. King; People v. Nunley; Right of cross-examination; People v. Gaines; Scope of cross-examination; People v. Morton; Witness bias; People v. McGhee; Principle that criminal defendants may cross-examine witnesses about potential civil lawsuits in order to discredit the witness by exposing bias or an ulterior motive; People v. Adamski; People v. Grisham; Due process; Right to present a defense; People v. Solloway; People v. Unger; Relevance; MRE 401; People v. Mann; People v. Watkins
The court held that the trial court erred by excluding all evidence of the alleged victim’s possible desire to bring a civil lawsuit against the defendant, but did not err by excluding evidence of photographs of the alleged victim posted to her Facebook page. Defendant was charged with CSC IV. The trial ended in a hung jury, and a new trial was scheduled. After the trial court rendered its decision on two evidentiary motions, the court granted an interlocutory appeal. It first agreed with defendant that the trial court erred in granting the prosecution’s motion to exclude evidence that the alleged victim intended to file a civil lawsuit against defendant. Defendant contended that her sexual assault allegations “stemmed from her motivation to collect money damages” in a civil lawsuit, and that he should be able to cross-examine her about it. “Defendant will be denied his right to confront his accuser if he is prevented from cross-examining [her] about her intent to bring a civil lawsuit against” him. However, the court disagreed with defendant’s contention that the trial court erred when it denied his motion in limine and refused to admit three photographs the alleged victim posted to her Facebook page. He claimed that the photos show that she “drastically changed her appearance” for purposes of trial, and that the failure to admit them constituted a deprivation of his right to present a defense. “The obvious, and improper purpose is to suggest that [she] is a licentious woman who was likely to provoke or consent to defendant’s sexual advances.” Affirmed in part, reversed in part, and remanded.
Whether the police officer had reasonable suspicion to perform an investigatory stop (a Terry stop) of the defendant’s vehicle; Terry v. Ohio; People v. Barbarich; People v. LoCicero (After Remand); People v. Oliver; People v. Tooks; People v. Estabrooks; Principle that the state’s interest in preventing drunk driving is strong; Michigan Dep’t of State Police v. Sitz; Principle that erratic driving can give rise to a reasonable suspicion of unlawful intoxication so as to justify an investigatory stop; People v. Christie
The court held that, under the totality of the circumstances, the police had reasonable suspicion to conduct an investigative stop of the defendant’s vehicle even if they did not have probable cause to make an arrest at that time. He was convicted of carrying a concealed weapon and operating a motor vehicle with a high blood alcohol content, and was sentenced to concurrent terms of 365 days in jail for both convictions. On appeal, the court rejected his argument that the police officer who stopped him did not have the requisite reasonable suspicion to do so and thus, the stop was illegal and all evidence obtained from it should have been suppressed. “The gravamen of defendant’s argument is that at the time of the traffic stop, neither officer involved had personally and directly observed defendant either consuming alcohol or driving in an erratic, unsafe, or improper manner; and the information the officer did have came from unreliable informants.” Indeed, the officer “expressly stated that he “did so entirely on information he had received from the dispatcher. Initially, however, there is no absolute legal prohibition against effectuating a traffic stop on the basis of reports from informants, and we are unpersuaded that the reports provided to the officer here were insufficiently reliable.” The court noted that it was not necessary for the witnesses “to observe defendant drinking to perceive that he was” intoxicated, and “it was not necessary for officers to personally observe defendant consuming alcohol or driving erratically.” Affirmed.
Child support; Principle that a trial court may modify a child support order if modification is justified by a change in circumstances; Kosch v. Kosch; Lemmen v. Lemmen; Principle that property-settlement agreements are generally final & cannot be modified; Smith v. Smith; Principle that a provision’s location in a judgment is a distinction lacking a meaningful difference; Holmes v. Holmes; Principle that retroactive modification of a support payment due under a support order is permissible with respect to a period during which there is pending a petition for modification, but only from the date that notice of the petition was given to the payer or recipient of support; MCL 552.603(2); Uniform Child Support Order (UCSO); Uniform Spousal Support Order (USSO); Michigan Child Support Formula (MCSF)
Holding that the trial court erred by denying the plaintiff-mother’s motion to modify child support and seek Friend of the Court (FOC) services without considering the motion on the merits, the court reversed and remanded. The parties’ divorce judgment included a property settlement and incorporated by reference spousal and child support orders. Plaintiff sought an increase in child support and FOC services, claiming the defendant-father’s income had increased substantially, which constituted a change in circumstances. The trial court denied her motion. On appeal, the court noted that plaintiff could not “collaterally attack the original divorce judgment,” but could “file a motion to change support based on a change of circumstances.” In that respect, it concluded that “the trial court erred by holding that the child support provisions and the property settlement are inextricably tied together and that the support provisions are non-modifiable.” It found that the “parties’ testimonies combined with the plain language of the UCSO, USSO, and property settlement support that plaintiff’s salary was child support and spousal support, which plaintiff received in lieu of direct support payments, not a property settlement.” As such, “the trial court erred by not considering the motion to modify support on its merits.” Further, the “parties’ testimony demonstrate[d] that, despite their best efforts to provide specifics, no one really knows how much of plaintiff’s salary is specifically attributable to child support as opposed to spousal support, and so comparisons to the MCSF lack[ed] a clear basis.”
Action for third-party no-fault benefits; The No-Fault Insurance Act (MCL 500.3101 et seq.); MCL 500.3135; Serious impairment of body function; MCL 500.3135(5); McCormick v. Carrier; Principle that causation is generally an issue for the trier of fact; Nichols v. Dobler; Principle that whether a condition temporally follows an event is not conclusive evidence of causation; West v. General Motors Corp.; The spine as an important part of a person’s body; Chouman v. Home-Owners Ins. Co.; Movement of one’s back as an important body function; Shaw v. Martin; Sherrell v. Bugaski; Principle that being able to use one’s neck & back are important body functions; Harris v. Lemicex; Requirement that the impairments affected the injured plaintiff’s general ability to lead his normal life
The court held that the plaintiffs presented evidence creating questions of fact as to whether the injured plaintiff’s (Hawamda) injury met the statutory threshold for a serious impairment of body function, whether any such impairment was caused by the accident, and whether his general ability to lead his normal life was affected. Thus, it reversed the trial court’s orders granting the defendants summary disposition and remanded. It first concluded that the trial court erred in deciding “as a matter of law that no factual dispute existed as to the nature and the extent of Hawamda’s injuries.” Plaintiffs presented “documented manifestations of Hawamda’s subjective symptoms through medical records that traced Hawamda’s symptoms and treatment from the time of the accident in 2011, through 2014. Plaintiffs also offered objective manifestations of a serious impairment through MRIs” of his cervical and lumbar spine. Defendants cited “unremarkable MRIs of Hawamda’s brain and neck taken on the same day as the car accident.” Plaintiffs produced MRIs of his lumbar and cervical spine taken in 1/13 and 1/14 pursuant to his treating physician’s order. Defendants challenged those MRIs “because they were taken some two and three years after the accident.” However, the court noted that “the plain language of MCL 500.3135 does not include a temporal requirement. Together, the objective MRIs and medical records offered by plaintiffs relate the findings and subjective complaints to the accident.” It also noted that the ability “to use one’s neck and back are important body functions.” As to Hawamda’s general ability to lead his normal life, plaintiffs presented deposition testimony that his activities were “more sedentary since the accident.” He reported that he has been unable to work even part-time, can no longer lift heavy items, and “that while he was independent with self-care, he sometimes needed help dressing. He was able to do some cooking, use the telephone, help his wife watch their children, and drive ‘when necessary (but not alone).’ While this evidence is not overwhelming,” it supported that his “claimed manifested impairments affected his ‘general ability to lead his or her normal life.’”
Auto negligence; Principle that violation of MCL 257.402(a) creates a rebuttable presumption of negligence; White v. Taylor Distrib. Co., Inc.; Applicability of the sudden emergency doctrine; VanderLaan v. Miedema; Socony Vacuum Oil Co. v. Marvin; Whether a jury should have decided whether the doctrine applied; Cashaw v. Great Lakes Greyhound Lines; Principle that where reasonable jurors cannot disagree as to the reasonableness of a defendant’s actions, the issue is a matter of law; Fiser v. Ann Arbor; Nichols v. Dobler
Holding that the trial court properly ruled that the sudden emergency doctrine applied and that no reasonable juror could find that defendant-Tucker acted negligently under the circumstances, the court affirmed the order granting the defendants-appellees’ motion for summary disposition in this auto negligence case. The action arose from a multi-vehicle accident. Plaintiff was driving a semi-truck and Tucker was driving behind him in his own semi-truck. According to both of them, defendant-Cameron was driving a pickup truck, heading in the same direction in the far left lane on the highway “at a high rate of speed. When Cameron got ahead of plaintiff’s position, he ran into some accumulated snow near the left guard rail,” causing his truck to spin sideways and hit the guard rail, “which created a large cloud of snow.” In the resulting sequence of events, plaintiff managed to avoid any contact with a silver pickup (towing a trailer) that was struck by Cameron’s truck. Tucker “was struck along the side by the silver pickup trailer immediately before rear-ending plaintiff.” The fact that he undisputedly hit the rear of plaintiff’s truck created a rebuttable presumption that he was negligent. However, the statutory presumption may be rebutted by showing a sudden emergency existed. The issue on appeal was whether the trial court erred in concluding that no genuine issue of material fact precluded application of the doctrine. Noting that the doctrine applies “when a situation arises that is unsuspected or unusual and not of the defendant’s own” making, the court concluded that this was “precisely what the evidence shows happened here.” Tucker testified that “he could see nothing except for the cloud of snow.” The fact that plaintiff “arguably did not suffer a ‘white out’ condition from the snow spray does not mean that defendant did not and could not have encountered one.” Plaintiff’s reliance on photos taken after the accident that showed no snow on Tucker’s vehicle did not address the condition outside his “windshield at the time of the accident.”