Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Attorney fees; The “American rule”; Dessart v Burak; Burnside v State Farm Fire & Cas Co; The prior litigation exception; Brooks v Rose; Comparing G & D Co v Durand Milling Co, Inc; The malice, fraud, or wrongful conduct standard; In re Thomas Estate; Effect of Coats v Bussard & Warren v McLouth Steel Corp
The court held that the trial court did not err by granting defendant-law firm summary disposition of plaintiff-former client’s action seeking attorney fees it incurred defending itself against a former employee’s second litigation. Plaintiff claimed defendants acted negligently when they failed to inform plaintiff of the employee’s threat of additional litigation and offer to settle. The trial court granted defendants’ motion for summary disposition on the basis that plaintiff pled “that defendants acted negligently when the prior litigation exception to the American rule required a pleading of malice, fraud, or other similar wrongful conduct to recover damages.” On appeal, the court rejected plaintiff’s argument that it only needed to plead negligence to state a claim for attorney fees under the prior litigation exception. While plaintiff relied on Coats and Warren, the court noted neither is binding, and that it was bound by its holding in Thomas Estate “that the party seeking attorney fees under the prior litigation exception must plead that the wrongdoer’s conduct was malicious, fraudulent, or similarly wrongful.” The court also rejected plaintiff’s request that it “carve out a mitigation and legal malpractice exception to the prior litigation exception.” It noted that attorney fees “are available in legal practice actions if the party can plead malice, fraud, or similar wrongful conduct. This same logic applies to plaintiff’s argument that the duty to mitigate conflicts with this rule. Mitigation damages in the form of attorney fees are available if sufficiently” pled. Plaintiff “was required to plead that defendants engaged in malicious, fraudulent, or similarly wrongful conduct” to survive summary disposition. However, it pled “only that defendants were negligent.” Affirmed.
Prosecutorial misconduct; Vouching for witness’s credibility; Appealing to the sympathy of the jury; MRE 401 & 402; Use of the word “victim”; Prejudice; Prosecutorial misconduct; Distinguishing People v Stanaway; Denigrating defense counsel during rebuttal argument; Cumulative error; Ineffective assistance of counsel; Referring to complainant as the “victim” or “alleged victim” during jury selection; Failure to object to the alleged prosecutorial misconduct; Sentencing; Scoring of PRV 6, OV 4, & OV 10
The court held that the prosecutor did not commit misconduct, that defendant was not entitled to a new trial on the basis of cumulative error or denied the effective assistance of counsel, and that the trial court did not err in assessing 10 points under PRV 6, 10 points for OV 4, and 5 points under OV 10. He was convicted of CSC I, kidnapping, and unarmed robbery for sexually assaulting the victim, 64-year-old BR, at a convenience store, and stealing another woman’s money. He was sentenced as a fourth-offense habitual offender to 70 to 150 years for each count of CSC I, 30 to 75 years for kidnapping, and 9 to 75 years for unarmed robbery. On appeal, the court found the prosecutor did not improperly vouch for BR’s credibility, noting that nothing in the prosecutor’s closing argument “even suggested that she had ‘some special knowledge of the witness’s truthfulness.’” She simply “argued from the facts that BR was credible.” The court noted that defendant’s and BR’s testimony “differed on whether the sexual encounter was consensual, which was a central issue at trial.” As such, it was proper for the prosecutor to comment on BR’s credibility. The prosecutor “did not commit misconduct by vouching for BR’s credibility, and [her] comments manifestly did not rise to the level of plain error.” The court also found the prosecutor did not commit misconduct by appealing to the sympathy of the jury when she asked BR a question about BR’s personal background. The “fact that BR’s answer went beyond the scope of the prosecutor’s question and offered additional information cannot provide the basis for a valid claim of prosecutorial misconduct.” Further, the prosecutor’s use of the word “victim” at trial did not prejudice defendant. The court has “repeatedly rejected the contention that Stanaway has any bearing upon the propriety of using the word ‘victim’ to describe the complaining witness at a criminal trial where the defendant faces charges of" CSC. Instead, it has “regularly relied upon the definition of ‘victim’ in MCL 750.520a(s) as the governing rule for referring to a ‘victim’ in trials on charges of [CSC],” and did so again here “by stating that the prosecutor did not err in referring to the complaining witness as a ‘victim.’” The prosecutor’s “repeated use of the term ‘victim’ in this case did not rise to the level of plain error.” It also did not affect defendant’s substantial rights because the evidence “established beyond all doubt that the sexual encounter between defendant and the complaining witness was not consensual.” Finally, any error as to the prosecutor’s use of the word “victim” was addressed by the trial court’s jury instruction that “[t]he lawyers’ statements and arguments are not evidence.”
Search & seizure; Warrantless entry; Resisting arrest; MCL 750.81d(1); People v Quinn; Whether the police officers’ actions were lawful; People v Moreno; Exigent circumstances; People v Trapp; “Exigent”; People v Anthony; Witness bribery; MCL 750.122(1)(a); Penalty where the underlying violation is assault by strangulation; MCL 750.84(1)(b); MCL 750.122(7)(b)
The court held in these consolidated cases that the trial court did not err by denying defendant’s motion for a directed verdict on his resisting arrest charge, or by allowing his conviction of witness bribery to stand even though he was acquitted of the underlying offense. He was convicted of witness bribery, resisting arrest, and domestic violence. His convictions arose out of an incident in which he assaulted his then-girlfriend, later resisted arrest, and then attempted to influence the victim and bribe her not to testify against him. On appeal, the court rejected his argument that the trial court erred by denying his motion for a directed verdict on the resisting arrest charge because no exigent circumstances existed to justify the warrantless entry. “[T]he trial court correctly determined that the police officers’ warrantless entry into the cabin was based on exigent circumstances.” As such, defendant “had no common-law right to resist the arrest.” The court also rejected his claim that the trial court erred by allowing his conviction of witness bribery to stand because he was acquitted of the underlying offense, i.e., assault by strangulation. “[T]he statute’s only requirement is that the witness interference occur ‘in a criminal case for which the maximum term of imprisonment for the violation is more than 10 years.’” Notably absent from this language “is any requirement that the defendant be convicted of the underlying offense.” Thus, defendant’s “interpretation reads language into the statute that is not present.” Further, the jury “was instructed consistent with M Crim JI 37.5a including that ‘[i]t does not matter whether the official proceeding took place as long as the defendant knew or had reason to know that [the victim] could be a witness at that proceeding.’” Defendant did not “dispute that this model jury instruction accurately states the law.” Affirmed.
Premises liability; Slip & fall on snow-and-ice-covered driveway; Whether the claim sounded in premises liability or ordinary negligence; Whether the driveway was an unsafe condition on the land; Open & obvious doctrine; United States Postal Service (USPS)
Holding that the open and obvious doctrine shielded defendant from liability for plaintiff’s (a USPS worker’s) injuries, the court affirmed. Plaintiff, as an invitee on his property because she entered his property to deliver his “mail—a business purpose,” was injured after falling on his snow-and-ice-covered driveway. The focus was whether the driveway was an unsafe condition on his land. Thus, the claim sounded only in premises liability. On appeal, plaintiff argued that a genuine question of material fact existed as to “whether special aspects existed that negated the open and obvious doctrine, namely, that the ice was unavoidable.” The court noted that she “admitted that she knew there could be a layer of ice beneath the snow. So both legally and factually, plaintiff is rightly imputed with the knowledge that the driveway presented a risk of harm.” She did “not deny that the hazardous condition of the driveway was open and obvious.” Rather, she asserted that it was unavoidable. The court held that the “hazardous condition was not avoidable simply because plaintiff could have walked on the snow-covered grass rather than the driveway because both the driveway and grass presented open and obvious dangers which plaintiff would have had to encounter if she delivered defendant’s mail.” It concluded that even “conceding that the grass and driveway presented a dangerous condition plaintiff would have had to encounter if she delivered defendant’s mail, plaintiff admitted that she could have refused to deliver the mail to defendant and that she has refused to deliver mail on previous occasions. Thus, there was no genuine issue of material fact regarding whether plaintiff could have refused to deliver defendant’s mail on the day of her accident.” The court noted that she “agreed that, ‘In any event, there are procedures in place so that you don’t have to access a property where you don’t feel that you can safely do your job.’” She admitted “that she could have refused to enter the property that day if she felt unsafe doing so, and she had refused to deliver to plaintiff in the past. Plaintiff testified that she does not get reprimanded for refusing to deliver mail if she feels unsafe doing so.” Thus, based on her “own testimony, she had a reasonable alternative to confronting the open and obvious danger of crossing defendant’s snow-covered property.” Because she “could have refused to deliver defendant’s mail, she was not required to confront the hazard.” As a result, “reasonable minds could not differ on the conclusion that the snowy driveway was avoidable.”
Trespass & nuisance claims; Waiver; Statute of limitations; MCL 600.5805(2); Accrual; Whether summary disposition was premature; Quiet title; Acquiescence to a boundary line for the statutory period; Houston v Mint Group, LLC; Kipka v Fountain
The court concluded that plaintiff waived any challenge to the trial court’s grant of summary disposition for defendants on her trespass and nuisance claims by conceding to that ruling. And even if she had not, it found the claims failed on the merits. It also held that the trial court did not err in determining that defendants established acquiescence for the statutory period over a fence post and by quieting title in their favor. But while it affirmed, it also remanded “for clarification to ensure the trial court’s judgment” was consistent with the court’s opinion, and retained jurisdiction. The parties are next-door neighbors. The court noted after the trial court’s oral ruling that included dismissal of the trespass and nuisance claims, “plaintiff moved for reconsideration. But plaintiff did not seek reconsideration of the dismissal of her trespass and nuisance claims. Rather,” she specifically stated in writing that she conceded to the ruling as to those claims. Thus, she “waived appellate review of any claim of error.” Further, the court held that her trespass claim was barred by the three-year statute of limitations in MCL 600.5805(2). And summary disposition of her nuisance claim was proper under MCR 2.116(C)(10) because she did not “establish any genuine issue of material fact about whether defendants’ installation of the post caused the water damage in her basement.” As to the trial court’s quiet title ruling, a “chain link fence existed when plaintiff bought her home in 1999, it has remained there ever since, and plaintiff and defendants each maintained their property on each side of the fence. Because the parties treated the fence line as a property line for more than 15 years, defendants established acquiescence to the fence as a boundary.” Additionally, the evidence showed that the post had “been connected to the chain link fence for more than 15 years, and that plaintiff acquiesced to any property rights over the land on which the post sits.” However, the trial court wrote in its final order and judgment “that it was quieting title in defendants’ favor ‘to the disputed property adjacent to their driveway including the gate and fence post.’ To the extent” its order related to the gate and fence post, the court affirmed. “But the order’s reference to disputed property next to the driveway ‘including the gate and fence post’ suggests a broader ruling[,]” and the court found this required remand.
Termination under § 19b(3)(c)(i); In re Williams; Children’s best interests; In re White; Effect of relative placement; In re Olive/Metts Minors
While the court held that clear and convincing evidence established that termination was warranted under § (c)(i), it concluded that remand was required due to the trial court’s failure to consider the fact that the children were placed with a relative. Thus, it affirmed the trial court’s ruling that a statutory ground for termination existed but vacated the finding that termination was in the children’s best interests and remanded for further fact-finding. As to § (c)(i), over 182 days had elapsed since the initial dispositional order was issued related to respondent-mother, and she “did not accomplish any meaningful change in the conditions that led to adjudication. The children were removed from respondent’s care in 2019 primarily because of her physical abuse of the children. Respondent was convicted of third-degree child abuse twice, and the second conviction was related to abuse that occurred less than two weeks after respondent had regained custody of the children.” The caseworker testified that one child “stated that he was afraid that respondent would ‘beat him up’ after she was released from prison if he did not lie about the abuse as she instructed him to.” Two of the children informed “the caseworker that they were afraid of respondent.” The court also determined the record supported “the trial court’s finding that there was no reasonable likelihood that respondent would rectify the conditions within a reasonable time.” While she emphasized her participation in and completion of all the services that DHHS provided her, “a respondent’s ‘mere participation is not the same as overcoming the barriers in place.’” The court noted that the caseworker testified that even though respondent completed the offered services, she showed no benefits from them “because she continued to drink alcohol and physically abuse her children.” In light of her history, “the caseworker did not believe that respondent would benefit from additional services if given more time, and the trial court agreed.” However, as to the children’s best interests, nothing in the record indicated the trial court considered the fact that they were placed with their great grandmother at the time of termination. The “trial court must consider this placement” in assessing the children’s best interests. The court retained jurisdiction.