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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Motion to enforce a consent judgment; Whether the consent judgment’s terms prohibited the appeal; “Arising from”; Restrictions imposed on an easement over state land; The Natural Resources & Environmental Protection Act; Applicability of MCL 324.2123, 324.2123a, 324.2124, & 324.2128; Kyser v Kasson Twp; Whether the consent judgment was fully integrated
The court held that the Court of Claims (COC) erred in “reading additional terms into the consent judgment” (CJ) entered into by the parties. Thus, it reversed the COC’s decision denying plaintiff-Prose’s motion to enforce the CJ entered into with defendant-DNR, and remanded. Plaintiff owns “five lots on a peninsula commonly known as Treasure Island. The DNR owns and controls the” rest of the land. In resolving prior lawsuits, he “agreed to pay the DNR $295,000 for bridge construction and an easement over portions of” roads that lead to his property, as well as administrative costs. The CJ provided that the easement was “to be formalized after entry of the judgment.” The parties unsuccessfully “engaged in discussions to draft the terms of the easement” for nearly two years. Prose moved to enforce the CJ, arguing its “terms unambiguously required the DNR to grant him an easement without restrictions on his ability to divide or sell his property, which consists of five buildable lots. The DNR also moved to enforce the” CJ. The COC denied Prose’s motion and granted the DNR’s motion. On appeal, the court initially addressed the DNR’s claim that the CJ’s terms prohibited this appeal. It noted that “Prose moved to enforce, but did not challenge the validity of, the” CJ. As to the merits, it found that “the condition the DNR seeks to impose on the easement he purchased—limiting easement access in the event of property subdivision, does not appear in the” CJ’s terms. Further, the statutes cited by the DNR did not apply to the easement. “Prose did not apply for an easement under the conditions specified in MCL 324.2123a, nor was he granted an easement pursuant to any other portions of subpart 8 or the prior statute referenced in MCL 324.2128.” And while the COC cited Kyser, that case “does not hold that the DNR cannot grant an easement over state lands without including subdivision conditions under MCL 324.2123a or” 324.2128. The court held that the COC erred in ruling that the easement did “‘not attach to any of plaintiff’s parcels subsequently sold or transferred to third parties absent compliance with statutory requirements by the purchasers and DNR approval.’” It also erred in deciding “that the DNR policy of easement termination upon subdivision of the property was implicitly incorporated into the” CJ. But the court noted its ruling did “not foreclose the DNR’s (or Prose’s) ability to negotiate the terms or conditions of the easement granted in the” CJ, as he asserted.
Accord & satisfaction; Replevin; MCR 3.105(C); Vehicle Identification Number (VIN)
In this replevin case, the court held that the trial court did not err under MCR 2.116(C)(8) and (C)(10) when it denied defendant-Oneal’s motion for summary disposition and granted plaintiff-US Bank summary disposition. The court found “US Bank properly pleaded a replevin claim under MCL 600.2920 and MCR 3.105.” It noted that the “complaint (1) described the Cadillac that Oneal possessed by providing the [VIN]; (2) provided the estimated trade-in value of the Cadillac; (3) explained the property in question was a vehicle capable of being possessed; and (4) demonstrated that Oneal defaulted on a loan with US Bank, which had the right to repossess the Cadillac if [she] defaulted. US Bank also explained that, to the best of its knowledge, the Cadillac had not been taken for tax or fines or seized under an execution or attachment against the property of Oneal.” Thus, it properly pled a replevin claim. In her answer to the complaint, she “denied the allegations but failed to provide any defenses against them. The only time that Oneal raised the affirmative defense of accord and satisfaction was in her motion for summary disposition.” But her summary disposition motion was “not a pleading.” As a result, “the trial court did not err under MCR 2.116(C)(9) when it granted US Bank’s motion for summary disposition.” The bank also moved for summary disposition under (C)(10), “arguing that there was no dispute that it was entitled to recover the Cadillac from Oneal.” US Bank claimed “there was no dispute of material fact that Oneal owed about $57,000 under the contractual agreement. [It] provided the loan agreement, which detailed: (a) the amount financed, which was $56,354.24; (b) the monthly payment schedule; and (c) Oneal’s signature along with the ‘dun alluju’ addition. The agreement also indicated that repossession was a remedy in the event of a breach. In addition,” a bank officer “submitted an affidavit stating that Oneal defaulted on the agreement and that US Bank had the right to recover the Cadillac.” Oneal contended “that the only dispute was whether she had liability under the agreement.” The court concluded that even if she “had not waived her argument of accord and satisfaction, she failed to establish the requirements.” The court noted that “Oneal provided evidence of two money orders for $2 each that she sent to US Bank, on which she wrote her intent that those payments be accepted by US Bank as the ‘complete amount’ of her debt. However, as the trial court noted, ‘writing something with English letters, but in another language’ did not establish Oneal’s good faith, but rather was a ‘crafty way to sign agreements with people’ that demonstrated Oneal had ‘no intention at all of paying anything.’ Moreover, [she] failed to present evidence contesting the loan agreement or her default. As such, the debt was not subject to a bona fide dispute[.]” Affirmed.
Right of confrontation; Right to a fair trial; Evidence from nontestifying confidential informant (CI); Legality of traffic stop; Abandoned issue; Michigan’s no one-man conspiracy rule
The court found “no plain error occurred when the trial court properly admitted evidence of nontestimonial information by the” CI through Officer R’s testimony. “Moreover, the trial court did not commit plain error in entering a guilty verdict for [defendant-Aceval’s] conspiracy charge where [he] was not jointly tried with” a co-conspirator (C), and C “agreed to plead guilty and testify against [him] in exchange for a lesser sentence.” He was convicted of conspiracy to deliver a controlled substance in an amount that exceeded 1,000 grams. The court held that the CI’s ‘“tips’ were not testimonial in nature and thus, no confrontation clause issues arise.” Rather, the CI “provided identifying information of Aceval, and officers conducted their own investigation to confirm information that was provided.” The court noted that at “trial, while it seems clear that the [CI] offered some additional information beyond Aceval’s name and identifying information (for example, that a massive drug shipment was forthcoming), the prosecution and defense on direct and cross examination failed to indicate what additional information was gathered.” R testified about the investigation, “including efforts to verify the tips, and explained why and how law enforcement began to survey Aceval. He did not offer the information gathered by the [CI] to prove the truth of the matter being asserted; he only offered the information to show the effect of the information on the investigation.” To obtain relief for this unpreserved claim of error, defendant must prove “‘that the error affected the outcome of the lower court proceedings.’” He did “not articulate how the outcome of the trial would have been different if the claimed erroneous testimony had been excluded or if defense counsel would have been allowed to cross-examine the confidential informant. That is particularly difficult where, as here, [C] and key partner in his drug operation testified against him.” Because Aceval failed “to establish error or that the outcome of the trial would have been different without the tip information, he is not entitled to relief.” Finally, he was “not entitled to relief under the common law rule because he and [C] were not tried together, and [C] received a plea-agreement to avoid being convicted of the conspiracy charge.” Affirmed.
Ineffective assistance of counsel; Failure to object to a sexual assault nurse examiner’s (SANE) testimony; People v Thorpe; People v Harbison; Failure to demand discovery about proposed testimony; MCR 6.201(A)(1) & (3); Advice as to whether to accept a plea deal; Denial of an evidentiary hearing; Factual predicate for an ineffective assistance claim; Sentencing; Reasonableness; Presumptive proportionality of within-guidelines sentences; People v Bowling
The court rejected defendant’s ineffective assistance of counsel claims and held that he failed to show the unusual circumstances required “to render his presumptively proportionate sentence disproportionate.” Thus, it affirmed his CSC I and felony-firearm convictions and his sentences, as a fourth-offense habitual offender, of 60 to 100 years for each CSC I conviction and 2 years for each felony-firearm conviction. He first argued that his trial “counsel was ineffective for not objecting to testimony from” the SANE (K) who examined victim-DE. He also asserted that K “was allowed to vouch for DE’s credibility by emphasizing to the jury that DE was a victim of sexual assault.” The court disagreed, concluding that he failed to show that K’s “testimony was objectionable. Her comments were about treating sexual assault victims in general. The comments did not directly address DE’s claims or credibility. More importantly, upon further questioning, [K] made it clear that she could not determine if there was consensual sex or a sexual assault in this case from conducting her examination. She treated DE (and other patients) on the basis of the history provided. Even if counsel had objected, the outcome would not have changed because [K’s] comments did not address DE’s credibility.” The court further determined, among other things, that K did not offer testimony outside the scope of her expertise and that defendant failed to show “his counsel was ineffective for not properly advising him on whether to accept a plea deal.” In addition, it found “that the trial court did not err by denying defendant’s motion for an evidentiary hearing.” As to his sentencing challenge, given “the escalating seriousness of defendant’s crimes, his poor record of rehabilitation, and the seriousness of the offenses” here, which involved vulnerable victims, the court declined to require that he be resentenced.
Dismissal for failure to appear for trial; Gueye v State Farm Mut Auto Ins Co; Claim that plaintiff did not have enough time to respond to defendant’s proposed jury instructions; MCR 2.512(A)(1); Failure to properly request an adjournment; MCR 2.503(B)(1)
The court held that the trial court improperly dismissed this case “without first considering alternative sanctions on the record.” Thus, it vacated the order dismissing this landlord-tenant case without prejudice and remanded. Plaintiff asserted the trial court abused its discretion in dismissing her case based on her “failure to appear for trial because [it] should have rescheduled the trial date to give [her] the opportunity to respond to defendant’s proposed jury instructions.” While the court disagreed with her argument, it agreed the case was improperly dismissed. Noting the nonexhaustive list of factors a trial court should consider before dismissing a case, the court found there was no indication in the record here “that the trial court took the requisite step of ‘carefully evaluat[ing] all available options on the record’ before concluding that dismissal was the proper sanction.” The order dismissing the case only stated “that the trial court did so because of ‘plaintiff’s failure to appear for trial.’ On the record at the trial, the trial court noted that plaintiff disagreed with defense counsel’s proposed jury instructions; stated that plaintiff ‘refuse[d]’ to appear for trial to discuss the jury instructions; and confirmed that the trial court, defense counsel, and potential jurors were all present and ready to proceed.” Although it “arguably weighed dismissal with prejudice against dismissal without prejudice when it stated that it would ‘dismiss . . . without prejudice . . . just in case something extreme has happened to [plaintiff],’ we do not believe that this constitutes a careful evaluation of the trial court’s available options.” The court noted that it found “plaintiff’s claim that the trial court should have rescheduled the trial date, rather than dismissing the case, because she did not have enough time to respond to defendant’s proposed jury instructions” meritless. Her assertion “that she should have been given time to respond” before the trial date was illogical given “that the parties were not required to submit the proposed jury instructions until the day of trial.” It also found no merit in her claim that she did not have enough time to submit her proposed instructions. In addition, she failed to “properly request an adjournment of the trial date.”
Medical malpractice; Causation; Deep vein thrombosis (DVT); Personal representative (PR); Medical examiner (ME)
On remand from the Supreme Court, the court concluded that plaintiff showed a question of fact existed as to whether plaintiff-PR’s decedent-Jones had a DVT when defendant-Dr. Zarghami evaluated him. Thus, it reversed the trial court’s order granting summary disposition for defendants and remanded for further proceedings. This was “a medical malpractice case in which the trial court granted summary disposition to defendants, holding that plaintiff could not prove the element of causation.” Plaintiff’s theory was “that Jones showed signs of DVT when he was seen by Dr. Zarghami, which went undiagnosed because Dr. Zarghami failed to refer him for an ultrasound. At the time Jones was examined by Dr. Zarghami, Jones did not display some symptoms associated with a DVT in the legs, such as redness or warmth of the skin. However, Dr. Zarghami agreed that there was edema or swelling in the right leg, as well as less swelling in the left leg. This difference in swelling of the legs was a possible symptom of a DVT condition.” One of plaintiff’s experts “testified at his deposition that the localized edema or swelling and shortness of breath Dr. Zarghami observed in the [3/18] visit suggested that Jones could have been ‘already shooting emboli at that’ time, because those were symptoms of DVT. [He] believed that Jones probably continued to develop blood clots until his death.” Another expert “also found that because there was no change in Jones’s swollen leg from the February visit to the March visit, this supported referring Jones for an ultrasound under the standard of care.” Defendants argued “there were other possible explanations for the swelling in the decedent’s legs at the time that Dr. Zarghami examined him.” They claimed “that obesity, medication side effects, or chronic venous insufficiency caused the leg swelling. However, plaintiff’s evidence ‘need not negate all other possible causes’ of the decedent’s death.” Plaintiff had “countered defendant’s arguments with evidence that if one or all of those conditions existed, they likely would have caused swelling to both legs, not just one.” Plaintiff’s experts agreed “that when a DVT occurs, it typically results in the affected leg swelling, not both legs.” Thus, plaintiff had “offered evidence to exclude other reasonable hypotheses offered by defendants.” Further, plaintiff had “put forth sufficient evidence to create a question of fact as to whether the decedent’s DVT developed within seconds to minutes before his death. Although plaintiff’s experts disagreed with the [ME] and defendants’ experts regarding the onset of the DVT, this disagreement does not contradict any established fact.” The court found that the ME's “conclusion was based on his objective findings from the autopsy, and so is plaintiff’s experts’ conclusion.” Plaintiff had “provided substantial evidence that a DVT could not have formed within seconds to minutes. Plaintiff is not relying on mere speculation or conjecture with regard to the factual cause of Jones’s death; the experts’ testimony is based on Jones’s medical record and objective findings and photographs from the autopsy.”
Reasonable reunification efforts; Venue & jurisdiction; MCR 3.926(B) & (D); Effect of respondent pleading no contest to the amended petition’s allegations & failing to challenge the adjudicatory process in an appeal from the initial order of disposition; MCR 3.971(B); Waived issue
The court concluded “that just as respondent waived any challenge to venue, [she] waived any challenge to the trial court’s exercise of its jurisdiction in this case.” But it vacated the order terminating her parental rights and remanded for further proceedings as to whether the DHHS made reasonable efforts to reunify the family. The parties did “not dispute that DHHS created a service plan for respondent.” However, she argued “that the services provided were not reasonable because they were not tailored to address adequately her mental illness.” Specifically, she asserted that the DHHS “failed to refer her to a psychiatrist who could prescribe antipsychotic medication.” The record indicated that the DHHS referred her “for a medical appointment, but the physician’s assistant who conducted the appointment was unwilling to prescribe antipsychotic medication, and the agency did not make another referral thereafter.” It also did not refer her “to family therapy as recommended.” The court found that the “most glaring deficit” in the services provided was “the absence of a current evaluation of respondent’s mental health before the termination hearing in” 7/24. Her “parental rights were terminated on one basis only: that the conditions that led to adjudication continued to exist and that there was no reasonable likelihood that [they] would be rectified within a reasonable time given the ages of the children.” The DHHS “contended, and the trial court agreed, that of the conditions that led to adjudication, only one condition remained that posed a barrier: respondent’s mental health.” The DHHS sought termination “largely based on the opinion of the psychologist who had evaluated respondent’s mental health in [12/22], despite a more recent evaluation of [her] mental health in [9/23] that reported that [she] was not demonstrating symptoms of schizophrenia.” The DHHS’s concern about her “mental health appears to have focused primarily upon [her] reluctance to take antipsychotic medication, even though no doctor had prescribed such medication for” her. While the trial court did not base its decision on her “reluctance to take antipsychotic medication, [it] emphasized that respondent had not attended counseling regularly and recently had stopped attending counseling because she did not find it beneficial.” However, under the circumstances here, “the lack of a current evaluation of respondent’s mental health makes it difficult to conclude that [she] was in need of continued counseling.” The court observed “that parental rights may be terminated if a parent is mentally ill, but not merely because a parent does not participate in counseling, unless it is demonstrated that the parent is in need of counseling to rectify a condition that is creating a barrier to reunification.” The DHHS has to “establish that a particular barrier continues to exist before declaring that the parent’s lack of participation in services to rectify that barrier is a basis for termination.”