Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Fourth Amendment seizures in the mental health context; U.S. Const. amend IV; Monday v. Oullette; Ziegler v. Aukerman; Fisher v. Harden; Bruce v. Guernsey (7th Cir.); Qualified immunity; Hayden v. Green; Scott v. Harris; District of Columbia v. Wesby; Claim for violation of substantive due process rights
[This appeal was from the WD-MI.] The court reversed the district court, holding that defendant-police officer (Olney) was entitled to qualified immunity for taking plaintiff-Machan’s daughter (T.R.) to a hospital for a mental evaluation and a blood draw where there was ample evidence providing probable cause to believe that she had been considering suicide. T.R. told her middle school principal that she had been considering suicide for about a month. The principal called the school police officer, Olney, who called Machan. He refused to permit Olney to take the child to the hospital ER. Despite Machan’s objections, Olney did so. Machan sued, alleging that Olney violated T.R.’s and his constitutional rights by taking the child to the ER without permission and by authorizing a blood draw. In the district court, Machan maintained that T.R. had not told her principal that she was contemplating suicide. However, on appeal he conceded this, as a hospital video supported that T.R. had done so. The court reviewed Fourth Amendment law in cases involving mental health and their holdings that to be constitutional, there must be probable cause to believe that that the person being seized for a mental-health evaluation “‘is dangerous to himself or others,’” and that only “‘a probability or substantial chance of dangerous behavior’” is required, not an actual showing of such behavior. T.R. sought out the principal and explained that she had been having suicidal thoughts “for about a month,” and that she was afraid that she would hurt herself with the guns and kitchen knives around her home. “Those facts provided Olney with ample grounds to think that T.R. posed a danger to herself, and thus provided probable cause for Olney to take T.R. into protective custody for a mental evaluation. And where the person is suicidal, the mental evaluation can reasonably include a determination whether the person has already acted upon her suicidal thoughts; which means the officer can authorize a blood draw as part of that evaluation.” The court noted that Machan’s consent for the visit was not necessary when probable cause was established, and held that there was no Fourth Amendment violation. His substantive due process claim also failed where he could not cite any cases that would have made it clear to a reasonable officer that Olney’s actions were unlawful.
Unlawful arrest & detention; 42 USC § 1983; U.S. Const. amend. IV; Whether the defendant-police officer was entitled to judgment as a matter of law; Sykes v. Anderson; Whether plaintiff’s detention violated due process; Baker v. McCollan; Gray v. Cuyahoga Cnty. Sheriff’s Dep’t; Russo v. City of Bridgeport (2d Cir.); Patton v. Przybylski (7th Cir.); Thurmond v. County of Wayne (Unpub. 6th Cir.); Atkins v. City of Chicago (7th Cir.); Powe v. City of Chicago (7th Cir.); “Probable cause” under Michigan law; Peterson Novelties, Inc. v. City of Berkley (MI App.); Odom v. Wayne Cnty. (MI); People v. Yost (MI); “Gross negligence”; The Michigan Government Tort Liability Act; MCL 691.1407(2) & (8)(a); Wood v. City of Detroit (MI App.); Tarlea v. Crabtree (MI App.)
[This appeal was from the ED-MI.] The court reversed the $3.5 million verdict for plaintiff-Seales on his wrongful detention claims where the defendant-police officer (Zberkot) only handled the case for less than three hours, and where the court’s prior decision in this case found probable cause to arrest. Zberkot arrested Seales, mistakenly believing that he was a man (Siner) whose alias was Marvin Seals. Plaintiff sued Zberkot, the City of Detroit, and Wayne County for unlawful detention under federal and Michigan law. All the defendants were dismissed except Zberkot, who appealed his denial of immunity. The court previously rejected plaintiff’s false arrest claim based on the similarities between Seales and the suspect, but “allowed the federal due process unlawful detention claim and related state claims to” go to a jury. A jury awarded Seales $3.5 million on those claims. The court noted that its review of the unlawful detention claim was controlled by its prior appellate decision that probable cause existed to arrest and detain Seales. Zberkot had little to do with the detention itself, spending less than three hours on the case. The court concluded that Seales had sued the “wrong person.” He should have sued the jailers for unlawful detention, not the arresting officer. As to whether Zberkot was deliberately indifferent to plaintiff’s plight, the court noted that he had no access to any information that would have shown he arrested the wrong man. As for the state-law claims, Michigan law provides that “‘[i]f the arrest was legal, there has not been a false arrest or false imprisonment.’” Zberkot had probable cause. “‘Seales had essentially the same name as Siner’s alias, was the same sex, same race, and the same age as Siner, and was working in the same geographic location in which Siner resided. Additionally, [the task force] had previously developed the address for where the team could find Siner and Zberkot found Seales at that address.’” The court rejected plaintiff’s argument that the finding of probable cause in his first appeal only applied to his federal, not his state-law claim where there was no evidence that the standard was different. “[U]nder Michigan and federal law: A person of ‘ordinary prudence’ would have ‘a reasonable belief’ that Seales was the right man.” His gross-negligence claim under Michigan law failed where he offered insufficient evidence that “Zberkot acted grossly negligent toward him or that his conduct proximately caused Seales’ harm.” The court repeated that Seales sued the wrong man.
Emergency motion for bond pending appeal; MCL 700.9a(2); Administrative Order No. 2020-1 (AO 2020-1); Executive Order 2020-62
In an order in lieu of granting leave to appeal the Court of Appeals order denying defendant’s emergency motion for appellate bond, the court vacated the trial court’s order denying his emergency motion for bond pending appeal. The court held that the trial court abused its discretion in considering the existing statutory factors under MCL 770.9a(2) “along with the public health factors arising out of the present state of emergency.” The court noted that under AO 2020-1, “[d]uring the state of emergency, trial courts should be mindful that taking reasonable steps to protect the public is more important than strict adherence to normal operating procedures . . . .” The trial court here failed to “address the first factor under MCL 770.9a(2)(a),” and the court found that it was not obvious from the record that defendant posed “a danger to others. While the trial court considered MCL 770.9a(2)(b), its conclusory determination that [his] appeal does not raise a substantial question of law or fact failed to consider the timing of [his] emergency motion and that the plain language of the statute does not require a showing of success on appeal. Finally,” it clearly erred in its factual determinations as to the public health emergency. Contrary to its “statements, there are many indications that incarcerated individuals are at a greater risk of COVID-19 infection.” The court also concluded that it clearly erred by not adequately considering “defendant’s documented health conditions.” Thus, the court remanded the case to the trial court for reconsideration of his motion in light of the court’s order and his present medical condition.
Motion in limine to preclude defendant from presenting expert testimony about his post-traumatic stress disorder (PTSD) in support of his self-defense claim; People v. Douglas; People v. Bosca; People v. Carpenter; People v. Orlewicz; Phillips v. Wainwright (5th Cir.); Right to remain silent; People v. Rajput; MCL 780.972(1)(a); People v. Hoskins; Waived issue; People v. Carter; Missing-witness instruction; M Crim JI 5.12; People v. Eccles; People v. Cummings; People v. Bean; Ineffective assistance of counsel; People v. Pickens; Trial strategy; People v. Tommolino; Prejudice; People v. Johnson; Factual predicate; People v. Hoag; Failure to review photographic evidence with defendant before trial; Agreeing that the prosecution had exercised due diligence to produce a witness; People v. Davis; Sentencing; Effect of a within guidelines sentence; People v. Anderson; Felon in possession (FIP)
The court held that the trial court did not abuse its discretion in excluding defendant-Foy’s proposed expert testimony about his PTSD, or infringe on his “constitutional right to remain silent by compelling him to testify in order to receive a jury instruction on self-defense” where it did not force him to testify. It also did not abuse its discretion by finding that reasonable efforts were made to produce witness-A for trial, so defendant was not entitled to the missing-witness instruction. Further, he was not denied the effective assistance of counsel. Finally, the court affirmed his within guidelines sentence as he did not assert “that the guidelines were erroneously scored” or that the trial court relied on inaccurate information in imposing his 60 to 100-year sentence for second-degree murder. He was also convicted of FIP and felony-firearm. He argued the trial court erred by granting the prosecutor’s motion in limine to preclude him from presenting expert testimony as to his PTSD in support of his self-defense claim. Before trial, the trial court appointed Dr. S “to evaluate Foy, who claimed that he suffered from PTSD because he was the victim of a prior shooting that left him with brain damage and partial paralysis.” S determined “that at the time of the shooting Foy had a PTSD condition that diminished his capacity to control his impulses, especially when he felt threatened.” The prosecutor successfully argued that this proposed use of the PTSD evidence was inconsistent with Carpenter. On appeal, Foy argued “that he should have been permitted to present this evidence because his history and psychological makeup was relevant to explain the reasonableness of his belief that he was in danger when he shot” the victim. While he was correct “that his state of mind and the circumstances as they appeared to him at the time of the shooting would have been probative of his claim of self-defense, the proposed testimony by [S] was not relevant to this purpose. [S’s] opinion that Foy’s PTSD condition limited his ability to control his impulses, especially when he felt threatened, was not probative of Foy’s state of mind at the time of the shooting.” S was not otherwise qualified to offer an opinion as to “Foy’s actual state of mind or understanding of the circumstances at the time of the shooting.” While it was possible that S “could have testified generally about PTSD without offering an opinion on Foy’s state of mind with regard to self-defense, Foy did not seek to offer his testimony for that purpose.” Further, the trial court allowed “him to offer testimony of his past circumstances and background as they related to his perception of the circumstances as they appeared to him at the time of the shooting.” Affirmed.
Prosecutorial misconduct; People v. Dobek; Relevant evidence; People v. Sabin; MRE 401; Other acts evidence; MRE 404(b)(1); Expert testimony; MRE 702; Lay witness opinion testimony; MRE 701; People v. Oliver; Felon in possession (FIP); Carrying a concealed weapon (CCW)
Concluding that the prosecutor’s questions were not improper and that no other acts evidence was admitted, the court rejected defendant’s prosecutorial misconduct claims. Further, an officer’s (S) testimony was not expert testimony and was permissible under MRE 701. He was convicted of FIP, felony-firearm, and CCW. He contended that the prosecutor committed misconduct by eliciting officers’ testimony about their affiliation with the police department’s Gang Suppression Unit, because it was irrelevant and, combined with their familiarity with him, “allowed jurors to infer that defendant was affiliated with gangs.” The court disagreed, concluding that the questions about their “employment were relevant to establish that the officers were members of the police force, that they were part of the same unit, and that their unit was assigned to patrol the area where they encountered defendant. Thus, the evidence was relevant, and the prosecutor’s questions were not improper.” Further, to the extent the jury could infer that defendant was gang-affiliated, any error in this “respect would not be attributable to prosecutorial misconduct.” The prosecutor did not imply such an affiliation, or “ask or elicit testimony about whether defendant had any gang affiliation, and none of the witnesses testified that they were surveilling” his neighborhood due to gang activity. The prosecutor also made no mention of the officers’ employment with the unit during closing arguments. The court further found that evidence they were assigned to the unit did not constitute other acts evidence that should have been excluded under MRE 404(b)(1). Finally, S’s “testimony that he saw defendant pull out of the driveway after he passed by, and that the car was facing the opposite direction when police found it,” was based on what he rationally perceived. Upon further inquiry by defense counsel, S “confirmed what he saw and explained that, in his opinion, this was consistent with things he had observed in the past from other persons driving without a license. This opinion assisted the factfinder in determining whether defendant drove without a license, which was in issue because defendant denied driving the car. Applying MRE 701 liberally,” the testimony was permissible. Affirmed.
Child custody; Principle that mere disagreement with the trial court’s decision does not demonstrate that the ruling was palpably & grossly violative of fact & logic; Riemer v. Johnson; Principle that a significant reduction in the number of overnights a child spends with a parent can have the effect of changing physical custody; Lieberman v. Orr; Abandonment of an issue; Mitchell v. Mitchell
The court held that the trial court’s custody order did not constitute an abuse of discretion. The parties’ judgment of divorce provided that they would have joint legal and joint physical custody of their son, and equal parenting time. Defendant-father sought a change in custody and parenting time based on issues of domestic violence occurring in plaintiff-mother’s home between plaintiff and her new husband. The trial court awarded him primary physical custody, but ruled that the parties would continue to share joint legal custody. It also reduced plaintiff’s parenting time to five overnights per every two weeks during the school year, ordered that the parties would have parenting time on alternate weeks during the summer break, and that they would alternate spending major holidays with the child. In addition, it ordered that plaintiff’s new husband was not to be present during parenting time exchanges and was not to be left alone with the child. On appeal, the court rejected defendant's argument that the trial court’s terms were not significant enough, noting that mere “disagreement with the trial court’s decision does not demonstrate that the ruling was ‘palpably and grossly violative of fact and logic.’” Further, its order “provided defendant with roughly two-thirds of the overnights during the school year, which makes up the vast majority of the calendar year, whereas the parties previously had 50/50 physical custody.” Its order “simultaneously reduced plaintiff’s overnights with the child to roughly one-third of the school-year overnights.” The court noted that a “significant reduction in the number of overnights a child spends with a parent can have the effect of changing physical custody.” Affirmed.
Due process; Probate rules of procedure; MCR 5.001(A); Principle that an interested person may object to a pending petition orally or in writing; MCR 5.119(B); The probate court’s authority to limit oral argument with respect to such matters; MCR 5.119(D); Personal representative (PR)
The court held that the probate court did not err by approving appellee-PR’s petition for complete estate settlement of appellant’s father’s estate. In a prior appeal, the court affirmed the probate court’s order that granted appellee the authority to take certain actions, finding it did not abuse its discretion by (1) granting appellee’s petition to deduct the value of a vehicle and related attorney fees and costs from appellant’s brother’s distributive share of the estate’s residue; (2) determining the amount to deduct; and 3) denying the brother’s petition to remove appellee as PR where he “had asserted without any apparent support” that appellee committed acts “constituting misconduct and breaches of his fiduciary duties.” The probate court later approved appellee’s petition for complete estate settlement of the estate. In the present appeal, the court rejected appellant’s argument that “she was entitled to present her objections and arguments orally at the hearing and that because she was not allowed to do so, she was denied a meaningful opportunity to be heard in violation of her due process rights.” It noted that this argument ignored the fact that she “actually had a meaningful opportunity to be heard on her objections via her written filing that the probate court indicated had been read and considered.” There was nothing in her “vague, conclusory assertions that comprised her written objections to suggest that further oral argument was necessary to allow the probate court to understand and resolve the issues.” Rather, it was clear from the nature of her “written objections that her claims were factually unfounded.” Appellant did not “cite any authority for the proposition that she was absolutely entitled to additionally present further oral argument” and thus, “the probate court did not err by declining to hear oral argument from [her] at the hearing; [she] was given a meaningful opportunity to be heard because she filed her written objections in the probate court and [it] expressly considered those objections. She was free to raise all of her objections in detail within the context of her written submission, and she was not entitled to rely on oral argument to make explanations or raise issues that she failed to include in her written filing. The probate court’s decision to base its ruling on consideration of the written filings without hearing additional oral argument was not erroneous.” Affirmed.
Sanctions; FMB-First MI Bank v. Bailey; MCR1.109(E)(5) & (6); Smitter v. Thornapple Twp.; Motion for reconsideration; Effectuate service; Jurisdiction; Lawrence M Clarke, Inc. v. Richco Constr. Inc.; Jackson City Bank & Trust Co. v. Fredrick; Service of process on a domestic corporation; MCR 2.105(D)(1); “Or”; Ellison v. Department of State; Service of the motion for entry of default judgment; MCR 2.603(B)(1)(b) & (c); Relief under MCR 2.603(D); General rule that where a statute contains criminal penalties for violations of its provisions, no private cause of action based on alleged violations of the statute will lie; Lane v. KinderCare Learning Ctrs. Inc.; Whether an honest, ordinarily cautious man would have made further inquiries into a conveyance; Kastle v. Clemons; Motion to set aside the default judgment under MCR 2.612; MCR 2.612(C)(1)(c) & (2); MCR 2.612(C)(1)(f); Heugel v. Heugel; MCR 2.612(B); Motion for reconsideration; Traverse City Light & Power Bd. v. Home Ins. Co.; Leave to file a counterclaim; MCR 2.203(E)
The court held that because service on the president (V) of defendant-Peaceways was sufficient under MCR 2.105(D)(1), the trial court had jurisdiction over Peaceways when it entered the default judgment. Thus, Peaceways was not entitled to have the default judgment set aside. Also, because plaintiff-Tia Corporation complied with the mandates in MCR 2.603(B)(1)(b) and (c), the court held that Peaceways was properly notified of the default proceedings. Further, Peaceways failed to establish in its motion to set aside the default judgment that it was entitled to relief. Finally, the court held “that Peaceways’ motion for leave to file a counterclaim and motion for reconsideration were not ‘well grounded in fact and [were not] warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law.’” Thus, because defendant-Roesti signed the motions, the trial court did not clearly err in finding that sanctions were appropriate under MCR 1.109(E)(6). Peaceways was a nonprofit organization. Roesti was its secretary. In this quiet title action Roesti argued that the trial court improperly ordered him to pay $250 in sanctions. “Peaceways argued that Tia Corporation should have served the summons and a copy of the complaint on Roesti instead of” V. The court disagreed. Under “MCR 2.105(D)(1), Tia Corporation could make service of process on Peaceways by serving a summons and a copy of the complaint on an officer or its resident agent. At the time of service, [V] was Peaceways’ resident agent, and there was no dispute in the trial court that [V] signed the acknowledgment of service in his capacity as Peaceways’ resident agent. Thus, because service on [V] was sufficient under MCR 2.105(D)(1), the trial court had jurisdiction over Peaceways when it entered the default judgment.” As result, Peaceways was not entitled to have the default judgment set aside. Peaceways further claimed “that the default judgment should be set aside because Roesti was not served with Tia Corporation’s motion for entry of default judgment.” The court again disagreed. Because Tia Corporation complied with MCR 2.603(B)(1)(b) and (c), the court held “that Peaceways was properly notified of the default proceedings. Thus, Peaceways was not entitled to relief on this ground.”
Automobile negligence; Sudden emergency doctrine; Vander Laan v. Miedema; White v. Taylor Distrib. Co., Inc. (White I & II); “Reasonably prudent person”
In this third-party no-fault case, the court held that the trial court properly granted summary disposition to defendants on the basis of the sudden emergency doctrine, and affirmed. Plaintiff argued that “defendants failed to present clear, positive, and credible evidence sufficient to overcome the presumption of negligence that arises out of defendant-driver crossing the centerline and colliding head-on with plaintiff’s vehicle.” The court disagreed. Plaintiff used “the majority of his brief on appeal to highlight what he perceives to be inconsistencies in defendant-driver’s statements relating to the symptoms he experienced immediately before blacking out.” It was true that he “reported slightly different symptoms in the days following the accident. [He] reported to officers at the scene, and testified in his deposition, that he experienced a violent coughing fit before blacking out. Comparatively, [he] reported to his treating physicians that he felt a twinge in his chest, or crushing chest pain, and then blacked out.” However, what plaintiff failed to appreciate was that defendant “consistently maintained that all of his symptoms came on suddenly and with no advanced warning before” he was rendered unconscious. Further, the physical evidence was clear that he “never applied the brakes: there were no pre-collision skid marks at the scene, and the satellite GPS log from the semi” he was driving indicated that he never braked. The physical evidence supported his “position that he experienced a sudden medical emergency.” Plaintiff also argued that a reasonably prudent person with defendant’s “cardiac history would not have been driving a semi. However, [he] had undergone rigorous testing as recently as 2013 in order to recertify his Class A driving endorsement.” There also was no evidence in the record to even suggest defendant “had experienced any cardiac symptoms contemporaneously to the accident, or that [he] had ever experienced an episode of sudden unconsciousness.” The court found that he presented sufficient “evidence that he experienced some type of syncopal episode while driving without any advance notice, and that he was entitled to rebut the presumption of negligence as a matter of law. In response, plaintiff failed to identify anything in the existing record, or to offer any new evidence, to show that defendant-driver could have done anything differently to avoid the accident” or that there was any genuine issue of material fact to submit to a jury.