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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Sufficiency of the evidence; People v. Harverson; People v. Reese; People v. Hampton; Operating or maintaining a meth lab; MCL 333.7401c(1); People v. Meshell; “Lab equipment”; MCL 333.7401c(7)(b); Using meth; MCL 333.7404; Constructive possession; People v. Fetterley; People v. Konrad; People v. McKinney; Circumstantial evidence; People v. Lee; Sentencing; Reasonableness & proportionality; People v. Lockridge; People v. Milbourn; People v. Walden; People v. Steanhouse (On Remand); People v. Odom; Principle that the court must affirm a within-guidelines sentence absent an error; MCL 769.34(10); People v. Anderson; People v. Schrauben; Payment of court-appointed attorney costs; MCL 769.1k & l; MCL 771.3(6)(b); Fuller v. Oregon; People v. Jackson
The court held that there was sufficient evidence to support defendant’s convictions, that there were no errors in sentencing, and that the trial court did not err by requiring him to pay court-appointed attorney costs from his prison account. He was convicted of operating or maintaining a meth lab, second or subsequent offense, possession of meth, second or subsequent offense, and use of meth, second or subsequent offense. The trial court sentenced to him to 10 to 40 years for operating or maintaining a meth lab, 46 months to 20 years for possession of meth, and 13 to 24 months for use of meth. On appeal, the court rejected his argument that the evidence was insufficient to support his convictions of operating or maintaining a meth lab or using meth. The prosecution “presented legally sufficient evidence that defendant had possession of the materials necessary to manufacture” meth, and also, legally sufficient evidence that he used it. Further, defendant did not “allege that the trial court relied on inaccurate information or that there was an error in scoring offense variables or any prior record variables.” Finally, the court rejected his contention that the trial court erred by requiring him to pay $1,900 in court-appointed attorney costs and by garnishing his prison account for this purpose, noting he did not present “a petition or proofs of his unique and extraordinary financial circumstances that would necessitate a finding by the trial court ‘that enforcement would work a manifest hardship on the [him] or his immediate family.’” Affirmed.
Sentencing; Upward departure; Reasonableness; People v. Lockridge; People v. Steanhouse; Proportionality; People v. Walden; People v. Hendrick; People v. Horn
Holding that under the circumstances, an upward departure of 12 months from the guidelines was not an abuse of discretion, the court affirmed. Defendant pled guilty to domestic violence, third offense, and felonious assault. He was originally sentenced to concurrent sentences of 5 years’ probation and 10 months in jail. Shortly after being released from jail, he was charged with violation of his probation and he pled guilty. The trial court revoked probation and sentenced him to a minimum sentence of 35 months, which was 12 months more than the high end of the guidelines range. It “based its departure on factors not contemplated by the guidelines, and [it] adequately explained why the imposed sentence was proportionate to the offense and offender.” Its reasons for deviating from the guidelines, including his multiple prior domestic violence assaults against his ex-girlfriend (K), were not contemplated by the guidelines. The court “acknowledged that the ‘relationship between the victim and the aggressor’ is not a factor not taken into account by the guidelines.” The trial court scored 10 points for OV 10. “But this OV does not contemplate multiple domestic relationship offenses against the same individual, as noted by the trial court at sentencing. The trial court assessed five points each for OV 1 and OV 2, which contemplate the aggravated use of a weapon and the lethal potential of a weapon possessed or used, respectively.” Neither contemplate multiple violent offenses toward an individual. The trial court also relied on his ‘“material’ probation violation, another factor that is not contemplated by the sentencing guidelines. A trial court may take a probation violation into consideration when resentencing a defendant.” The violation here “was especially concerning because it involved defendant contacting [K] shortly after he was released from jail.” Also, the trial court warned him that a violation of his probation would result in imprisonment. In addition to his repeated victimization of K “and his probation violation, the trial court considered defendant’s criminal record, which included three juvenile offenses and 15 adult misdemeanors, including several alcohol related offenses, disorderly conduct, and malicious destruction of property.” While his “history was taken into consideration by the scoring of the prior record variables, a sentencing court may consider a defendant’s repeated failure at rehabilitation.” The court held that the trial court reasonably held that the imposed sentence was proportional to the circumstances of the offense and the offender. That was, it considered that the case involved re-victimization of K, that the probation violation also pertained to K, and that defendant had a long criminal record not fully reflected in the guidelines.
Ineffective assistance of counsel; People v. Schrauben; People v. Vaughn; People v. Hoag; People v. Ginther; Trial strategy; People v. Trakhtenberg; People v. Dunigan; People v. Stewart (On Remand); People v. Dalesandro; Failure to advance a meritless argument or raise a futile objection; People v. Ericksen; Counsel’s refusal to knowingly assist in the presentation of perjured testimony; People v. Toma; Alibi defense; MCL 768.20 & 21; People v. Travis; People v. Seals; Great weight of the evidence; People v. Cameron; People v. Herbert; People v. Lemmon; People v. Anderson; Credibility; People v. Davis; People v. Goodchild; People v. Morlock; Principle that eyewitness testimony is sufficient to prove the commission of a crime beyond a reasonable doubt; People v. Thomas; Sentencing; The legislative sentencing guidelines (MCL 777.1 et seq.); MCL 769.34(2) & (3); People v. Lockridge; People v. Conley; Scoring of OVs 1, 3, & 10; Habitual offender notice; People v. Head
The court held that defendant was not denied the effective assistance of counsel, and that the verdict was not against the great weight of the evidence. However, it found that remand was required for articulation of the trial court’s reasons for imposing the sentences. He was convicted of FIP, felony-firearm, felonious assault, and aggravated domestic violence for attacking and pistol-whipping his girlfriend. The trial court sentenced him as an habitual offender, third offense, to 2 to 10 years for FIP, 5 years for felony-firearm second-offense, 2 to 5 years for felonious assault, and time served for aggravated domestic violence. On appeal, the court rejected his argument that trial counsel was ineffective for failing to investigate and file a notice of an alibi defense. Although the trial court after the Ginther hearing “found that that [defendant’s father’s] version was not credible, the testimony cited by [his father] and the court’s ultimate holding indicates that defense counsel acted in a manner designed to present defendant’s theory while abiding by his ethical obligation addressing the presentation of evidence.” The court also rejected his claim that the verdict was against the great weight of the evidence, finding the evidence was “sufficient to apprise the trier of fact that an assault with a weapon occurred upon the victim, she identified defendant as her assailant, and the eyewitness and police officer presented circumstantial evidence and reasonable inferences to support her testimony.” Finally, it agreed with defendant that he was entitled to resentencing where the trial court recalculated the sentencing guideline range on remand, but imposed the same sentence without explanation. “Because the trial court did not articulate reasons for imposing the second sentence despite the reduction of the guidelines after removing the OV scores,” remand for an articulation of the reasons for imposing the sentence was required. Affirmed, but remanded.
Sentencing; Procedural reasonableness; Whether the district court properly added three kilograms of crack cocaine found in a safe in defendant’s home to its determination of “relevant conduct”; USSG § 1B1.3(a)(2); United States v. Gill; United States v. Bradley, Gall v. United States; § 2D1.1; United States v. Phillips; United States v. Buchanan; United States v. Moore (Unpub. 6th Cir.); Food Lion, LLC v. Dean Foods Co. (In re Se. Milk Antitrust Litig.); United States v. Woods; United States v. Henry; United States v. Shannon; United States v. Hill; United States v. White; United States v. Rayyan; Substantive reasonableness; United States v. Clayton; United States v. Faulkner; United States v. Vonner
The court held that the district court did not err by considering drugs found in an upstairs safe at defendant-Benton’s residence as “relevant conduct” when sentencing him for trafficking drugs. He pled guilty to conspiring to possess with the intent to distribute and conspiring to distribute cocaine. He challenged his sentence, arguing that the district court erred by adding three kilograms of crack cocaine found in a safe in his home to its determination of relevant conduct under the USSG. The crack cocaine in the safe was found pursuant to a search of his home right after a transaction involving powder cocaine. The court considered his challenge to be essentially one of procedural reasonableness, and emphasized that “[a] defendant’s uncharged trafficking offense for one controlled substance can constitute relevant conduct when the defendant is sentenced for trafficking in another.” Thus, Benton’s “uncharged instance of possession with intent to distribute crack cocaine constitutes ‘relevant conduct’ if it is ‘part of the same course of conduct or common scheme or plan’ as Benton’s cocaine trafficking offense.” He argued that the cocaine in the safe was “unsellable junk” and could not be considered when determining relevant conduct. However, the court framed the issue as “not whether Benton could sell the crack cocaine at the time it was seized, but whether he intended to sell (and thereby distribute) that crack cocaine.” It held that wiretap evidence, the fact that the cocaine was in a safe near a gun, along with other evidence, indicated an intent to sell. Also, the court held that the powdered cocaine and the crack cocaine in the safe were “‘sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.’” Further, the district court gave sufficient reasons for sentencing Benton to a longer sentence than his co-conspirator, and the court held that his 260-month sentence was substantively reasonable considering that he was “a career criminal who regrettably broke the law as a matter of course. Whether it was possessing, abusing, or trafficking drugs, carrying weapons while on probation, driving under the influence, or domestic violence, crime was Benton’s lifestyle.” Affirmed.
Sentencing; The First Step Act (the Act); The Fair Sentencing Act; United States v. Beamus; United States v. Blewett; Sentence “modification”; United States v. Alexander; 18 USC § 3582(c)(1)(B); United States v. Hegewood (5th Cir.); Fed.R.Crim.P. 43(b)(4); Whether § 3582(c)(2) requires a plenary sentencing procedure; Dillon v. United States; Pepper v. United States; United States v. Allen; United States v. Flack; United States v. Payton (ED MI); United States v. Curry (4th Cir.); United States v. Hamilton (7th Cir.); United States v. Williams (8th Cir.); Whether the sentence was “unreasonable” where the district court used a modified Form AO 247 form to explain its decision; United States v. Bowers; Rita v. United States; Gall v. United States; Chavez-Meza v. United States
[This appeal was from the WD-MI.] The court held that resentencing under the First Step Act does not require the district court to conduct a plenary sentencing procedure, and that its use of a sentencing form order was not procedurally unreasonable. Defendant-Smith was convicted of several drug and firearm charges. The district court initially sentenced him to 360 months on the first 2 counts, but then became aware of the mandatory life sentence under the then-applicable guidelines and sentenced him accordingly. Smith later moved for a sentence reduction under the First Step Act. The district court reduced his sentence for the 2 counts to 360 months, to run concurrently to his unchanged 360-month sentence for the powder-cocaine count. It did not conduct a new sentencing hearing and instead used a modified AO 247 order form titled “Order Regarding Motion for Sentence Reduction Pursuant to” § 3582(c)(1). The parties agreed that the Act applied to the first two drug counts, but Smith argued that the district court should have conducted a full sentencing hearing and applied the First Step Act reduction to all of his sentences. The court noted that it has treated sentence modifications under the First Step Act and “§ 3582(c)(1)(B) as analogous to sentence modifications based on” § 3582(c)(2), and cited various cases from other circuits and Dillon for their holdings that “§ 3582(c)(2) authorizes ‘only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding[.]’” Thus, the court held that Smith was not entitled to a new hearing. He also argued that his sentence was procedurally unreasonable where the district court used a modified Form AO 247 when resentencing him that he asserted did not adequately explain the reasoning behind the 360-month sentence. However, the Supreme Court has previously accepted the use of a form in a USSG sentencing modification, and the court followed suit with the First Step Act. It also noted that the district court had originally sentenced Smith to 360 months before it was made aware of the required mandatory life sentence, and had adequately explained its reasoning at the initial sentencing hearing. Because the district court sentenced Smith at the bottom of the USSG range in both the initial sentencing and in the sentence modification, its use of the form fell within the sentencing judge’s “lawful professional judgment.” Affirmed.
Federal Railroad Safety Act (FRSA) (49 USC § 20101 et seq.); Claim that plaintiff was fired from his job in retaliation for reporting a workplace injury in good faith; §§ 20109(a)(4) & (d)(1); Gunderson v. BNSF Ry. Co. (8th Cir.) § 20109(d)(3); Motions for summary judgment; Anderson v. Liberty Lobby, Inc.; Lujan v. National Wildlife Fed’n; Viet v. Le; Gardner v. Evans; Fed.R.Civ.P. 56(e)(4); Parker v. Winwood; Chain-of-events theory of causation; Koziara v. BNSF Ry. (7th Cir.); BNSF Ry. Co. v. U.S. Dep’t of Labor (10th Cir.)
The court affirmed summary judgment for defendant-Norfolk on plaintiff-Lemon’s retaliation claim brought under the FRSA’s “kick-out” provision because the record showed that Norfolk discharged him not for reporting an injury but rather for “making false statements” about how and where he was injured, a dischargeable offense at Norfolk. The parties agreed “that Lemon must show that his injury report was a ‘contributing factor’ in the railroad’s decision to fire him, and Lemon cannot prevail if the railroad would have fired him anyway.” The court held that Lemon’s injury report was not a contributing factor in Norfolk’s decision to fire him, noting that Norfolk’s investigation and hearings all concerned the false statements. Lemon charged that Norfolk had “cook[ed] up” the false-statement explanation as a pretext for retaliation, but the court rejected this argument where Lemon only offered “vague, conclusory statements” to support his contention, and where any evidence he offered was inadmissible hearsay. Also, there was evidence that Norfolk “regularly enforced its policy against making false statements.” The court further rejected his argument that “his injury report was a contributing factor in the railroad’s decision to fire him because, without the injury report, he would not have lied to his supervisor about speaking to others and, without that falsehood and others discovered later, he would not have been fired.” It found that there were two problems with this. First, it was “hard to think of any event in a person’s life that could not be viewed as a contributing factor under this theory.” Second, “it would authorize employees to engage in banned behavior so long as it occurs during protected conduct.”
Custody; Adequacy of the trial court’s findings as to the existence of an established custodial environment (ECE); MCL 722.27(1)(c); MCR 2.517(A)(1)-(3); Statutory best interest factors; MCL 722.23; Harvey v. Harvey; Spires v. Bergman; Thompson v. Thompson; Rivette v. Rose-Molina; Parenting-time; MCL 722.27a; Judicial bias; Kern v. Kern-Koskela; Waiver; People v. Fetterley; A trial court’s wide latitude in exercising its discretion to control the trial proceedings; People v. Conley; The trial court’s inherent discretion to control its docket; Baynesan v. Wayne State Univ.; Due process; Mettler Walloon, LLC v. Melrose Twp.; Child support; MCL 552.519(3)(a)(vi); Ghidotti v. Barber; Imputing income to a parent without considering the factors in the Michigan Child Support Formula (MCSF) Manual; Preclusion of means-tested income in determining income; 2017 MCSF 2.04(A); Grant of custody to the mother pursuant to MCL 722.1006 (part of the Acknowledgment of Parentage Act); Sims v. Verbrugge; Mootness; Michigan Nat’l Bank v. St. Paul Fire & Marine Ins. Co.; Barrow v. Detroit Election Comm’n
While the court held that the trial court’s findings as to an ECE only with plaintiff-mother were adequate, it concluded that the trial court erred in awarding her sole legal and physical custody of the parties’ younger child (R) without discussing the statutory best interest factors. It rejected defendant-father’s judicial bias and due process claims, but agreed that the trial court erred in imputing income to him for child support purposes without reviewing the MCSF Manual factors. Thus, the court affirmed in part, reversed in part, and remanded for further proceedings. It first found that defendant’s arguments as to the older child were moot because he recently turned 18. As to R, plaintiff was granted custody pursuant to MCL 722.1006. But this statutory grant of custody “was without prejudice to a later determination of defendant’s custodial rights and could not, by itself, ‘affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.’” Defendant was correct that, in making the initial custody determination, the trial court had “to evaluate the factors in MCL 722.23 and state its conclusions on each factor to determine the child’s best interests.” The court noted that in the “recommended order, the referee discussed the best-interest factors in MCL 722.23 and determined that it was in the best interests of both children to award plaintiff sole physical and legal custody. The referee also discussed the parenting-time factors in MCL 722.27a.” But after the de novo hearing, the trial court only discussed the parenting-time factors. As to the referee’s findings, it “stated only, ‘I find that [the referee] had it absolutely succinct from the same evidence I heard and I heard a whole new trial over again.’” The court found that its brief statement was insufficient to determine whether the trial “court was adopting the referee’s findings and rationale concerning parenting time, best interests, or both.” But unlike in Rivette, the referee here made best-interest findings. While the trial court’s statement about its agreement with those findings was ambiguous, it “clearly adopted at least part of the referee’s analysis. Under the circumstances,” the court remanded for “the trial court to clarify its rationale for its custody determination” as to R. It reversed the child support order and also remanded for further proceedings in that regard.
Custody; The Child Custody Act (MCL 722.21 et seq.); MCL 722.28; Fletcher v. Fletcher; Modification of custody & parenting time; Proper cause or a change of circumstances (COC); Vodvarka v. Grasmeyer; Principle that stipulations are favored & generally upheld; Napora v. Napora; Findings on the statutory best interest factors (MCL 722.23); Berger v. Berger; Factors (d), (g), (h), & (j); Clear & convincing evidence; In re Martin; Assumption the trial court knows the law & only considered the evidence properly before it; In re Archer; Hearsay; MRE 801(c); Inapplicability of the Confrontation Clause to civil proceedings; Galien Twp. Sch. Dist. v. Department of Educ.
Holding that the trial court did not err in accepting the stipulation in the parties’ divorce judgment as to what evidence would show proper cause or a COC, and that its findings on the best interest factors were not against the great weight of the evidence, the court affirmed the order awarding the parties joint physical custody of their child and modifying parenting time. The parties agreed in the judgment that if either of them “relocated closer to the other, such a move would be considered sufficient proper cause or a [COC] for a” petition for review of the custody and parenting time order. The gravamen of plaintiff’s argument was that the trial court still had “to make additional, independent findings” as to whether defendant-father established proper cause or a COC by a preponderance of the evidence. But she did not provide any argument or authority for the position that their agreement was insufficient to meet his burden. In challenging the trial court’s findings on the best interest factors, she asserted as to (d) that it did not consider that the child primarily lived with her and improperly found that her “reason for moving was self-serving. However, the record shows that the trial court clearly considered that the child had lived with plaintiff since birth. To the extent” her arguments were based on its credibility determination, the court deferred to the trial court’s credibility assessment. She did not show that the evidence clearly preponderated against its findings on (d). As to (g), the record showed that while “the trial court noted that plaintiff’s testimony appeared to substantiate certain of the findings in her psychological evaluation,” its conclusions were based on facts and testimony presented in the evidentiary hearing. Thus, the record did not support her claim that it “relied heavily on her psychological evaluation when assessing factor (g).” Further, the court could not say that the trial court’s judgment that (h) slightly favored defendant, and that (j), which it heavily weighed, also favored him was against the great weight of the evidence. The weight to give each factor was within its discretion. Lastly, even if it erred in admitting “two hearsay statements from plaintiff’s psychological evaluation,” there was no evidence she was prejudiced, and there was no “constitutional violation because the Sixth Amendment’s Confrontation Clause does not apply to civil proceedings such as” this.
Dispute over a child’s surname; Right to decide a child’s surname; MCL 333.2824; Garling v. Spiering; Paternity; In re MKK; In re Miller; Establishing paternity where a child is born out of wedlock; The Paternity Act (MCL 722.711 et seq.); The Acknowledgment of Parentage Act (MCL 722.1001 et seq.); The Genetic Parentage Act (MCL 722.1461 et seq.); MCL 333.2801; MCL 333.1104(1); MCL 333.2824(3) & (4)
[This is a modified summary.] The court held that the trial court erred by granting plaintiff-father’s request to change the parties’ child’s surname to one defendant-mother did not choose. Plaintiff and defendant, both high schoolers, were dating, but eventually broke up. Shortly thereafter, defendant gave birth to a baby (genetic testing later showed plaintiff was the biological father). Plaintiff subsequently sought to establish paternity, custody, parenting time, and support, and requested that his name be added to the birth certificate, and that the child’s surname to be changed to his surname. The trial court entered a temporary order and allowed the name change. On appeal, the court found that the trial court erred by allowing the name change, noting that “the law gives the mother the legal right to choose the child’s surname.” The trial court’s “sole proffered reason for changing the surname the child’s mother had given the child was simply that plaintiff was the child’s biological father. This is not sufficient reason and contravenes the clear and unambiguous language of MCL 333.2824(4), which plainly states that ‘[i]f the paternity of a child is determined by a court of competent jurisdiction . . . [t]he surname of the child shall be entered on the certificate of birth as designated by the child’s mother.’” Reversed in part and vacated in part.
Whether misrepresentations triggered the policy’s fraud provisions; Bazzi v. Sentinel Ins. Co.; Cole v. Auto-Owners Ins. Co.; Replacement services; MCL 500.3107(1)(c); Hmeidan v. State Farm Mut. Auto. Ins. Co.; An insurance policy as a contract; West Am. Ins. Co. v. Meridian Mut. Ins. Co.; Waldan Gen. Contractors, Inc. v. Michigan Mut. Ins. Co.; Assertion that a contract is void or voidable as an affirmative defense; MCR 2.111(F)(3); Deciding whether an insured committed fraud; Meemic Ins. Co. v. Fortson; Shelton v. Auto-Owners Ins. Co.; Bahri v. IDS Prop. Cas. Ins. Co.; Motion for JNOV; Hecht v. National Heritage Acads., Inc.; Heaton v. Benton Constr. Co.; Dawe v. Bar-Levav & Assoc., PC (On Remand); Case evaluation sanctions; Elia v. Hazen; Allard v. State Farm Ins. Co.; Smith v. Khouri; Peterson v. Fertel; Determining a reasonable attorney fee; Wood v. v. Detroit Auto. Inter-Ins. Exch.; Pirgu v. United Servs. Auto. Ass'n
Holding that the trial court’s denial of defendant’s motions for summary disposition and JNOV were supported by the record, the court affirmed the judgment of $120,641.75 in plaintiff’s favor. It also affirmed the award of case evaluation sanctions to plaintiff. Defendant argued that surveillance video recordings and affidavits showed that “plaintiff was able to, and in fact did, perform tasks that she represented to defendant she could not do and that she asserted were performed by her husband on those dates.” It asserted that these misrepresentations triggered the policy’s fraud provisions, thereby voiding coverage. It relied primarily on Bahri. More recently, the court in Shelton affirmed the trial court’s decision “that the defendant insurer was not entitled to summary disposition of the plaintiff’s claim for medical expenses despite video evidence showing the plaintiff performing activities that the claim suggested were not possible for her to perform.” The court in Shelton distinguished Bahri in part. Here the court reviewed de novo whether the record supported “the trial court’s denial of defendant’s motion for summary disposition, which was based on the ground that plaintiff engaged in fraud or misrepresentation to obtain PIP benefits, and thereby had triggered the fraud provision of the contract, consequently voiding the contract. To establish the contract defense of fraud, defendant was required to show that plaintiff knowingly or recklessly made a material misrepresentation of a fact that she knew was false when she made it, and did so intending that defendant act upon it.” The court considered specifically “whether the video evidence and affidavits demonstrated that there was no question of fact remaining that plaintiff made material misrepresentations of a fact or facts that she knew were false when she made them, and did so intending that defendant act upon them, regarding her need for and receipt of replacement services . . . .” It concluded that the video did “not establish that the form requesting replacement services necessarily contained a false statement.” Plaintiff’s explanation about the video evidence was “not contradictory to her statements made in requesting replacement services reimbursement. Her position is that she never said she was entirely incapable of driving, walking, or running errands, only that she often needs help to do these activities.” She contended that her abilities varied from day to day, and that she was trying “to improve her condition by doing tasks to the extent that she can.”
The circuit court’s appellate jurisdiction; MCR 4.201(N)(2); MCR 7.104(A) & (B); Requirement that the appellant pay $150 to the court clerk before filing a claim of appeal; MCL 600.2529(1)(b); MCR 8.119(C); Whether defendant should have been granted a 14-day window to rectify defense counsel’s mistake under MCR 7.113(A)(1) & (2); Whether MCL 600.2331 required the circuit court to allow defendant to perfect its claim of appeal; Mandatory e-filing & the new e-filing rules; MCR 1.109(G)(5)(a)(ii), (b), & (c); Filing defined; MCR 7.202(4); Administrative Order 2011-4 (AO 2011-4); Case law on e-filing & notices of appeal; Farzana K v. Indiana Dep’t of Educ. (7th Cir.); Vince v. Rock Cnty., WI (7th Cir.); The MCRs mechanism for rectifying mistakes as to the untimely filing of an appeal to the circuit court; MCR 7.105(G)(1); Potential confusion warranting relief; Allied Elec. Supply Co., Inc. v. Tenaglia
Concluding that, in light of the unique facts of the case, the circuit court abused its discretion in dismissing defendant-commercial lease tenant’s appeal from a district court ruling, the court reversed and remanded to the circuit court. Plaintiff-landlord initiated eviction proceedings against defendant after a dispute arose over the rent due, and successfully moved for partial summary disposition. It was “undisputed that defense counsel timely submitted a claim of appeal via e-filing on” the day it was due. But because of a “submission error, clicking on the wrong box in selecting a case type, he was not prompted to pay the fee and, the following day, the circuit court’s Clerk rejected his claim of appeal for filing because it failed to include a case code and was not accompanied by the requisite filing fee.” It was also undisputed that defendant actually filed a claim of appeal one day later, which satisfied the statutes and MCRs apart from being untimely. The court noted that “the e-filing system is a work in progress and continues to develop. One of its anticipated future improvements is providing the participating courts with the capability to edit a filing.” Consistent with its reading of AO 2011-4, the court found that the circuit court abused its discretion here. If defense counsel “had had the option of filing his appellate paperwork by actually handing it over to the Clerk, she would have asked him about the appropriate case-code type or affixed it herself, she would have requested the $150 fee, and, then, she would have time-stamped and filed the claim of appeal.” But the court cautioned counsel that it was “his responsibility to ensure that the document was received. He should have been alerted to the possibility of misfiling by the email indicating that he had filed a miscellaneous motion and further recognized that he had neither been prompted to pay, nor paid, the requisite filing fee.” The court also noted that MCR 7.105(G)(1) provides “a specific mechanism for rectifying mistakes regarding the untimely filing of an appeal to the circuit court.” It concluded that, given “the circumstances—a failed, but timely e-filing of a claim of appeal, notice of the deficiency after time to correct it had expired, and, then, a quick, but untimely, e-filing of a claim of appeal—the circuit court should have granted defendant’s motion for reconsideration, exercised its power to treat [the] untimely July 9th claim as a delayed application, and granted it.”
Slip & fall; Governmental immunity; Beals v. Michigan; The Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407; Nawrocki v. Macomb Cnty. Rd. Comm’n; Goodhue v. Department of Transp.; The highway exception; MCL 691.1401(c); MCL 691.1402(1); Duty to maintain sidewalks; MCL 691.1402a; Distinguishing Bernardoni v. Saginaw; Expert testimony; MCR 2.116(G)(5); Dextrom v. Wexford Cnty.; Whether the notice of injury & defect conformed to MCL 691.1404(1); Milot v. Department of Transp.; Russell v. City of Detroit
The court held that defendant-city was not entitled to summary disposition on the basis of governmental immunity or deficiencies in the notice of injury and defect. Defendant argued that the highway exception did “not apply because plaintiff failed to provide evidence that defendant knew, or should have known, that the defect in the sidewalk existed at least 30 days before plaintiff’s injury occurred, in accordance with MCL 691.1402a(2).” Defendant relied on Bernardoni. However, this case was distinguishable from Bernardoni “because plaintiff submitted photographs and additional evidence demonstrating that the defect existed at least 30 days before plaintiff was injured.” In addition to the photos, plaintiff presented an affidavit from F, who opined that the sidewalk and curb “existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before March 2, 2016.” F’s opinion was on the basis of his “experience as a construction worker for a family business, which focused primarily on ‘commercial and residential cement work including sidewalks, driveways and roads.’” When paired with the photos, F’s affidavit suggested “that the deteriorated condition of the sidewalk would have existed more than 30 days before plaintiff was injured. Thus, plaintiff presented sufficient evidence to support his argument.” Nevertheless, defendant asserted that the trial court should not have considered F’s affidavit because it constituted inadmissible expert testimony. Defendant directed the court to MRE 702, and argued that F’s “affidavit was inadmissible because it contained no facts, data, or information regarding the methods that [F] used to draw his conclusions regarding the condition of the sidewalk. However, under MCR 2.116(G)(5), the content of an affidavit need only be admissible in substance, not in form.” Also, an “expert witness’s qualifications and descriptions of his or her methodology do not need to be incorporated into an affidavit that is submitted in response to a motion for summary disposition.” Further, whether F “will ultimately meet the MRE 702 requirements to be sworn as a witness is a matter reserved for trial.” The trial court did not err by considering F’s “affidavit when ruling on defendant’s renewed motion for summary disposition. Under these circumstances, plaintiff presented proof that defendant knew or should have known about the condition of the sidewalk at least 30 days before plaintiff’s injury.” Affirmed.
Subject-matter jurisdiction to hold an individual in civil contempt of court; In re Vansach Estate; Const. 1963, art. 6, § 15; In re Geror; EPIC (MCL 700.1101 et seq.); MCL 700.1302(d); MCL 700.1303(h); In re Moroun; MCL 600.847; Whether “under Michigan law, contempt proceedings may not be instituted on civil debts where those debts may be obtained through execution of an estate”; Former MCL 600.1701(5); MCL 600.1701(e); Due process; Porter v. Porter; In re Contempt of Henry; Effect of accepting appointment as a personal representative (PR); MCL 700.3602; The PR as a fiduciary of the estate; MCL 700.7303(1); An action of the estate as an action of the PR; Shenkman v. Bragman; The PR’s liability; MCL 700.3712; Notice; MCL 600.1968(4); MCR 2.107(B)(1)(b); MCR 3.920(H); Waived issue; Whether the probate court properly held appellant in contempt without conducting an evidentiary hearing; Cassidy v. Cassidy; Contempt fine; MCL 600.1715
The court held that the probate court had subject-matter jurisdiction to enforce the order holding appellant-Stacey Bittner, individually and in her fiduciary capacity, in civil contempt of court. It also saw no merit in her claim “that contempt proceedings may not be instituted on unpaid debts in the court where the debt arose simply because an estate file has been opened elsewhere.” Further, her argument that the probate court “failed to consider the appropriate evidence or make sufficient findings of fact” lacked merit, and the court found no plain error by the probate court. Finally, it “did not impose a penalty that exceeded the statutory maximum set by MCL 600.1715.” There was no dispute that the Macomb County Probate Court had subject-matter jurisdiction to appoint appellees-Adams and his firm (collectively Adams) as special fiduciary or enter the order obligating the Estate to pay $23,000 in special fiduciary fees. The dispute was over whether the probate court had jurisdiction to enforce that order. According to Stacey, it “was divested of jurisdiction when the estate case was opened in Genesee County.” The court disagreed, ruling that the probate court had subject-matter jurisdiction to enforce the order holding her, “individually and in her fiduciary capacity, in civil contempt of court.” First, her argument that the probate court was deprived of jurisdiction by closing the conservatorship file lacked merit. It had subject-matter jurisdiction to hold her in civil contempt through its contempt power. And, although the “order—which reflected the parties’ settlement agreement—would have resolved the case, it did not do so because the Estate failed to comply with that order. It is well-established that a probate court has the authority to enforce its own orders.” The court also rejected her contention that the probate court erred in holding her in contempt without conducting an evidentiary hearing. “Where a contempt action is civil, an individual’s simple violation of a ‘duty to obey the court’ is sufficient for the court to find contempt.” There was no question that she was aware of the “order that the Estate pay Adams $23,000 in special fiduciary fees by” 12/31/18, and thus aware of her obligation, as the Estate’s PR, to comply with the order. There was also no question that she failed to do so.
Mortgage foreclosure; Foreclosure by advertisement; MCL 600.3201; Cheff v. Edwards; Effect of defects or irregularities in a foreclosure proceeding; Kim v. JPMorgan Chase Bank, NA; Whether there was a defect in the foreclosure notice rendering the foreclosure deeds void; Jackson Inv. Corp. v. Pittsfield Prod., Inc.; Whether a redemption period should have been extended due to a claimed irregularity in the foreclosure process; MCL 600.3240; Gordon Grossman Bldg. Co. v. Elliott; An equitable extension period to redeem; Schulthies v. Barron; Necessary party; MCR 2.205(A); Mason Cnty. v. Department of Cmty. Health; Quiet title; Michigan Nat’l Bank & Trust Co. v. Morren; Summary disposition under MCR 2.116(C)(10); Bazzi v. Sentinel Ins. Co.; Breach of contract; Principle that a trial court is not bound by a party’s choice of labels; Stephens v. Worden Ins. Agency, LLC
Concluding that the trial court should have extended the redemption period as to one of the properties at issue because the evidence showed a possible irregularity in the foreclosure process, the court reversed summary disposition for defendant as to that property. But it affirmed as to the other property, finding no error in that regard. It also affirmed the dismissal of plaintiffs’ breach of contract claim because the claim was not distinct from the quiet title claim. They purchased two houses from defendant. Plaintiff-Angela Allstead bought the 11th Street property and plaintiff-Glen Allstead bought the 16th Street property. They argued on appeal that the trial court erred in not setting aside the foreclosure sale deeds due to a defect in the foreclosure notice (which stated that the foreclosure sale would occur on 5/31/18 when it was in fact scheduled for 5/24/18). The court disagreed that “there was a defect in the foreclosure notice that rendered the deeds void.” But it agreed that “the trial court should have extended the redemption period on the basis of the claimed irregularity in the foreclosure process that plaintiffs had satisfied the mortgage on the 11th Street property.” The court determined that the defect in the notice here “rendered the sales voidable, not void.” It noted that plaintiffs were not prejudiced by the defect, as they “were fully able to challenge the validity of the foreclosure, on the basis of their assertion that they satisfied the mortgages.” However, a clear showing of irregularity or fraud can support “an equitable extension period to redeem a property . . . .” Attached to their complaint plaintiffs presented “a copy of defendant’s handwritten ledger for the 11th Street property.” There were two statements at the bottom of the ledger: “Glen & Angela Allstead paid [$]61,000 on 5-[indiscernible]-2014,” and “House paid on 5-16-14.” The court held that at a minimum, these statements on defendant’s ledger established “an irregularity in the foreclosure process related to the 11th Street property.” But plaintiffs offered no evidence supporting “their argument that the mortgage for the 16th Street property was similarly paid off.” The trial court erred in granting defendant summary disposition on plaintiffs’ quiet title claim as to the 11th Street property but not as to the 16th Street property. Partially reversed and remanded.
Termination under §§ 19b(3)(a)(ii), (c)(i), (c)(ii), (j), & (k)(i); In re White; In re Ellis; In re VanDalen; In re Laster; In re Williams; In re Smith; Children’s best interests; In re Olive/Metts Minors; In re Moss Minors; In re Schadler; In re TK; In re Contempt of Henry
Holding that §§ (a)(ii), (c)(i), (c)(ii), (j), and (k)(i) existed and the trial court did not clearly err in finding termination of respondent-mother’s parental rights was in the best interests of the children, the court affirmed. There was clear and convincing evidence placed on the record that the mother abandoned the young children for a period in excess of 91 days. As a result, the trial court did not err in terminating her parental rights under §§ (a)(ii) and (k)(i). Also, the evidence showed not only that she “had failed to rectify the conditions that brought the children into care but also, through her failure to participate in or benefit from services, that there was no reasonable likelihood that respondent would rectify the conditions in a reasonable time.” Thus, the trial court did not clearly err in terminating her parental rights under § (c)(i). Further, the evidence “demonstrated other conditions that could lead the children to come under the court’s jurisdiction and a failure on the part of respondent to rectify these issues. As a result, the trial court did not clearly err in terminating” the mother’s parental rights under § (c)(ii). Finally, she “failed to engage in the majority of the services mandated in her treatment plan. As a result, the trial court could reasonably find that respondent was unable to provide proper care and custody for the children, there was a reasonable expectation of future harm to the children if returned to respondent’s care, and there was no reasonable expectation that respondent would be able to provide proper care in the future.” Thus, the trial court did not err in terminating her parental rights under §§ (g) and (j).