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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Breach of a confidentiality agreement; Elements of breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; Nominal damages; Kolton v. Nassar; Vandenberg v. Slagh; 4041-40 W. Maple Condo Ass’n v. Countrywide Home Loans, Inc.; Spousal privilege; MCL 600.2162; Freedom to contract; Wilkie v. Auto-Owners Ins. Co.; Attorney fees; Hackel v. Macomb Cnty. Comm’n; Attorney fees provided for by contract; Fleet Bus. Credit, LLC v. Krapohl Ford Lincoln Mercury Co.; Zeeland Farm Servs., Inc. v. JBL Enters., Inc.; Reasonableness; Smith v. Khouri; Pirgu v. United Servs. Auto Ass’n; Attorney fee billing; McNeel v. Farm Bureau Gen. Ins. Co. of MI; Attard v. Citizens Ins. Co. of Am.; Teran v. Rittley
The court held that the trial court did not err by entering a judgment for plaintiff-former employer and awarding nominal damages because defendant-former employee breached the parties’ confidentiality agreement by disclosing confidential information to his wife. It also held that the trial court did not abuse its discretion by awarding plaintiff attorney fees. Plaintiff sued defendant, claiming he breached their confidentiality agreement by sending confidential information to his own personal computer. An email he sent to his wife also contained “details of a sprinkler assembly manufacturing process.” The trial court found he breached the agreement and ruled in favor of plaintiff, including a significant award of attorney fees. On appeal, the court rejected his argument that plaintiff did not prove it sustained any damages as a result of the disclosure, and that “it is against public policy for a disclosure to a spouse to constitute a breach” of a confidentiality agreement. “Although spousal privilege bars a husband or wife from testifying against his or her spouse without that spouse’s consent,” he did not “cite any legal basis for why that spousal privilege should be extended here.” In addition, the contractual language at issue “unambiguously prohibited disclosure of any confidential information to any other person,” and there was no “basis for concluding that such a contractual provision violates Michigan law or public policy.” The court also rejected his claim that the trial court should have adjusted the attorney fee award downward, and that it inconsistently applied its own methodology when reviewing plaintiff’s attorney’s billing statements. “The trial court ultimately concluded that there was no justification for a downward adjustment of reasonable attorney fees” plaintiff incurred, which was “within the range of reasonable and principled outcomes, and therefore not an abuse of discretion.” Further, defendant failed to “identify or explain the methodology he believes the trial court used, or how the billing entries identified were analyzed using a second, unexplained methodology.” Affirmed.
Motion to withdraw a guilty plea; MCR 6.310(A)-E); People v. Al-Shara; People v. Brown; Whether a plea was voluntary & knowing; People v. Fonville; Registration requirements under the Sex Offender Registration Act (SORA) (MCL 28.721 et seq.); MCL 28.723(1)(a); “Listed offense”; MCL 28.722(j); Principle that CSC I is a tier III offense; MCL 28.722(w)(iv); Principle that an individual convicted of a tier III offense is required to register under SORA for his or her lifetime; MCL 28.725(12)
The court held that the trial court did not abuse its discretion by finding defendant was not entitled to withdraw his plea on the basis that it was not voluntarily and knowingly made, because it did not err by finding he was aware of the required lifetime registration under SORA at the time he entered his plea. He was convicted of CSC I and sentenced to 8 to 12 years. On appeal, the court rejected his argument that the trial court abused its discretion by denying his motion to withdraw his plea. He claimed the trial court should have granted his motion because he was not advised of the requirement that he register under the SORA. “[T]his case is distinguishable from Fonville because the Fonville Court concluded that the defendant was prejudiced as a result of his counsel’s failure to inform the defendant of the SORA registration requirement.” In this case, “defendant does not argue that his counsel was ineffective for failing to inform him of the SORA registration requirement.” Further, although he “argues that the trial court erred by failing to inform him of the lifetime SORA registration requirement, the record indicates that [he] was aware that a conviction of CSC I required lifetime SORA registration.” Affirmed.
Sentencing; People v. Lockridge; Proportionality; People v. Steanhouse; People v. Odom; People v. Dixon-Bey; Carrying a concealed weapon (CCW)
After remand for resentencing on defendant’s plea-based convictions, the court held that because the record contained support for the finding that he in fact sold the guns, and because the trial court adequately justified the departure, the upward departure was supported by the record. He was convicted of breaking and entering with intent to commit a felony, larceny by stealing a firearm, and CCW. On remand, he was sentenced to 5 to 10 years for the breaking and entering convictions, and 18 months to 5 years for each conviction of larceny and CCW, with 885 days credit for time served. In imposing these sentences, the trial court again exceeded the applicable guidelines range for the breaking and entering convictions. However, it explained that the “sentence was more proportionate to the offense and the offender in this case given the increased risk to the community presented by defendant’s sale of the guns to purchasers who then used the guns in connection with further criminal activity.” The record after remand contained support for this finding. Affirmed.
Ineffective assistance of counsel; People v. Trakhtenberg; People v. Ginther; Trial strategy; People v. Foster; Decision whether to call a witness; People v. Ackerman; A substantial defense; People v. Payne; People v. Chapo; Failure to advance a meritless argument; People v. Ericksen; Moot sentencing issue; People v. Tombs; People v. Richmond
Holding that defendant’s trial counsel did not provide ineffective assistance, and declining to consider his sentencing issue as moot, the court affirmed his conviction and sentence for being an accessory after the fact to a felony. He was sentenced to 18 to 60 months. In a police interview, he admitted that he and two other individuals (A) and (K) “took turns fatally cutting and stabbing the victim. Defendant threw the knife they used into a nearby creek and helped hide the victim’s body . . . .” He took police to the body. On appeal, he argued that his trial counsel was ineffective for not calling his guardian and therapist as witnesses. He contended that “his therapist’s testimony would have ‘provided extra support’ for his duress defense and would have showed that defendant was susceptible to influence from [A]. The therapist testified at the Ginther hearing that defendant ‘was struggling with depression and anxiety and he was having difficulty with sleep. And he was doing the best that he could to function.’” The therapist also testified that if she had been called as a witness “at trial, she would have stated that defendant had a ‘significant mental health history,’ that [he] had been depressed since he was 13 years old, and that he struggled academically.” But the court noted that evidence of his mental illness was “introduced during trial. A police officer testified that defendant told him that he had anxiety and took antidepressants. Video evidence was admitted in which defendant is heard telling the officer that he used antidepressants. Further, trial counsel advanced the defense of duress—not ‘a general susceptibility to social influence’ defense. Thus, defendant was not deprived of a substantial defense.” He further asserted that his guardian would have testified about his “complete history and mental health challenges,” and that he was delayed in his milestones, to show his history of susceptibility to others’ influence. But testimony about his “history of susceptibility to influence would show that defendant acted in conformity therewith on the date of this incident, and presumably have been inadmissible under MRE 404(b)(1).” Further, trial counsel stated that he did not call her as a witness due to concerns about what she might say on cross-examination and opening the door to evidence defendant acted to impress K.
Double jeopardy; People v. Smith; Convictions for assault & battery as well as resisting arrest; Convictions based on different conduct; People v. Lugo; Denial of motion for a judgment of acquittal on a resisting arrest charge; People v. Reese; People v. Nowack; People v. Lockett; People v. Eisen; People v. Lemmon
Because defendant’s assault and battery and resisting arrest convictions were based on different conduct, and the prosecution theory was that the assault was complete before he resisted arrest, the court held that he could be convicted of both crimes without violating the protection against double jeopardy. It also concluded that the trial court did not err in denying his motion for a judgment of acquittal on the resisting arrest charge. He was convicted of both offenses, but the trial court granted his motion for a new trial on the resisting arrest charge due to a jury instruction error. Thus, the court noted that his double jeopardy argument was “somewhat hypothetical” as to what relief it could grant even if it found error. In any event, it concluded that there was no double jeopardy violation. “It was the prosecution’s theory at trial that defendant first committed an assault and battery against” the deputy (B) when he shoved him, and then resisted arrest when B tried to arrest him for the assault. The court held in Lugo that there “is no violation of double jeopardy protections if one crime is complete before the other takes place, even if the offenses share common elements or one constitutes a lesser offense of the other.” As to his sufficiency of the evidence claim, the court held that a rational jury could find that B, “a police officer in uniform, told defendant he was under arrest after defendant assaulted him, that defendant responded by punching [B] and then actively resisted the arrest, and that [B] was acting within the scope of his duties when he arrested defendant.” Thus, there was sufficient evidence for a jury to determine that he committed the crime of resisting arrest. His arguments to the contrary were based on the premise that B’s testimony was less credible than “defendant’s testimony. These arguments relate to the weight of the evidence rather than its sufficiency, and” the court declined to reweigh the witnesses’ credibility. Affirmed.
Admission of photographic evidence; Relevance; MRE 401; Unfair prejudice; MRE 403; People v. Gayheart; People v. Head; Intent; People v. Stevens; Corroboration; People v. Mills; Sufficiency of the evidence; People v. Konrad; Assault with intent to do great bodily harm less than murder (AWIGBH); People v. Blevins; Unlawful imprisonment; MCL 750.349b; “Restrain”; MCL 750.349b(3)(a); Credibility; MCR 2.613(C); People v. Muhammad; Ineffective assistance of counsel; People v. Riley; Strickland v. Washington; People v. Pickens; People v. Hoag; Prejudice; People v. Nix; Right to the effective assistance of counsel in the plea-bargaining process; People v. Pennington; Sentencing; Reasonableness; People v. Dixon-Bey; People v. Powell; Proportionality; People v. Bowling; Principle that the court must affirm a within-guidelines sentence absent error; People v. Schrauben; Prohibition against cruel & unusual punishment; U.S. Const. amend. VIII; People v. Bullock
The court held that the trial court did not abuse its discretion by admitting the four close-up photos of the victim’s face, that the evidence was sufficient to support defendant’s convictions, and that he was not denied the effective assistance of counsel. It also held that there were no errors in sentencing. He was convicted of unlawful imprisonment and AWIGBH. The trial court sentenced him as a third-offense habitual offender to concurrent terms of 160 to 360 months for the unlawful imprisonment conviction and 160 to 240 months for the AWIGBH conviction. On appeal, the court rejected his argument that the trial court erred by admitting four close-up photos of the victim’s face because the prejudicial effect of the photos unfairly outweighed their probative value. It found that they “were relevant to assist the jury in determining whether defendant intended to inflict great bodily harm upon the [victim] or were injuries incurred in subduing her assault.” They also “provided the jury with a better understanding of the witnesses’ testimony regarding the nature and extent of the injuries.” The court next rejected his claim that the prosecution failed to present sufficient evidence of intent to support his convictions. As to AWIGBH, it noted that the evidence, which showed “an assault of overwhelming brutality, was sufficient for a trier of fact to infer that defendant intended the natural consequences of his actions, that is, the infliction of serious injury of an aggravated nature.” As to unlawful imprisonment, it found that “a rational juror could infer that defendant knowingly and forcibly confined the [victim] so as to interfere with her liberty and that he did so to facilitate the commission of the abuse.” The court further rejected his contention that he was denied the effective assistance of counsel in the plea-bargaining proceedings. Finally, it rejected his claim that his sentences were unreasonable, disproportionate, and constituted cruel and unusual punishment. It noted that it was required to affirm his within-guidelines sentence as he failed to show any error in scoring or reliance on inaccurate information. Moreover, he failed to overcome the presumption of proportionality, and thus, his sentence did not constitute cruel and unusual punishment. Affirmed.
Custody; Whether the trial court correctly found that the most recent order was the consent judgment of divorce; MCL 722.28; Statutory interpretation; Kubicki v. Sharpe; In re AP; Best interests of the child; Phillips v. Jordan; Interview with the children to determine their preferences for custody; Best interest factors; MCL 722.23; Factor (i); MCL 722.23(i); Maier v. Maier; The Child Custody Act (CCA); Retroactive change from an LGAL to a GAL; Waived issue; English v. Blue Cross Blue Shield of MI; Cadle Co. v. Kentwood
The court held that the trial court did not err in vacating the 9/7/18 order that should not have been entered in the first place; and it did not err in declining to treat the 8/18/17 order as if it was a custody order. Also, the trial court did not err in its analysis of factor (i) when determining the children’s best interests. Finally, the trial court never appointed a nonparty as an LGAL. Defendant argued that the trial court improperly vacated the 9/7/18 custody order and erroneously ignored the 8/18/17 order so that it could find the consent judgment of divorce to be the most recent custody order. The court held that the trial court did not err in vacating the 9/7/18 custody order. “That order was stipulated to by the parties, and the substitute judge who entered the order did not consider the best interest factors before entering the order.” The court held that the “trial court cannot blindly accept the stipulation of the parties, but must independently determine what is in the best interests of the child.” In Phillips, as in this case, “the trial court entered the stipulated order to change custody without making any independent determination regarding the best interests of the children pursuant to the” CCA. The court held “that the trial court erred in failing to make such a determination.” In addition, it “held that the trial court was required to set aside the stipulated order and to make its own determination regarding the best interests of the children.” Thus, here, the trial court properly vacated the stipulated order of 9/7/18, and made its own custody decision under the best interest factors. It also did not err by failing to treat the 8/18/17 order as the most recent custody order. The 8/18/17 order was not a custody order. Rather, that order merely released “the family counselor and provided that parenting time would be on the 2-2-5-5 schedule, i.e., the arrangement provided for by the consent judgment of divorce.” Affirmed.
Divorce; Spousal support; Berger v. Berger; Olson v. Olson; Deference to the trial court’s special ability to assess the witnesses’ credibility; Cassidy v. Cassidy; Relevance of the amount of marital property a party was awarded; Gates v. Gates; Reliance on a prognosticator program; Distinguishing Myland v. Myland; Attorney fees; MCL 552.13(1); MCR 3.206(D); Stackhouse v. Stackhouse; Maake v. Maake; MCR 3.206(D)(2)(b); Richards v. Richards
Holding that the trial court did not abuse its discretion in awarding plaintiff-ex-wife $2,910 a month in spousal support or $8,000 in attorney fees, the court affirmed the divorce judgment. As to spousal support, defendant-ex-husband argued that the trial court abused its discretion “because (1) the evidence did not establish that plaintiff was unable to work, (2) plaintiff was awarded substantial assets she could use to support herself, and (3) the trial court relied on a computer program rather than legal analysis” in calculating the award. The court disagreed. First, the trial court made findings on all of the Olson factors except fault, and its findings were not clearly erroneous. Defendant did not cite any “authority for the proposition that, to receive spousal support, a payee spouse must provide medical evidence that she or he is disabled under any particular definition of disability. Plaintiff testified that she had no education or training beyond high school. She had not worked in 27 years. Her chronic pain prevented her from sitting or standing for long periods, and she had to take breaks every 30 minutes while performing household tasks. Defendant did not produce any evidence to refute” her testimony. As to his contention that she was “capable of supporting herself from the substantial marital assets she was awarded[,]” under Gates, the amount of marital property she was awarded had “no bearing on whether the spousal support award” was appropriate. As to the trial court’s use of a prognosticator program to calculate the amount, unlike in “Myland, the trial court did not use an arbitrary formula in this case. The parties themselves used a prognosticator program to calculate their proposed spousal support awards.” Rather than simply multiplying “defendant’s income by an arbitrary number that it arrived at independent of the spousal support factors . . . the trial court considered the parties’ financial status quo and their respective needs and earning capacities.” As to the attorney fee award, plaintiff established that she could not bear the expense of the case, and “that a portion of her attorney fees were attributable to defendant’s violation of a court order.” The trial court awarded her attorney fees because, as “to both mediation and the sale of the marital home, defendant attempted to find loopholes in the trial court’s order, rather than participating in good faith, as he was required to do.” It did not abuse its discretion.
Withholding of removal; 8 USC § 1231(b)(3); The substantial evidence standard; Khalili v. Holder; Abdurakhmanov v. Holder; Mikhailevitch v. INS; Whether the Immigration Judge (IJ) & Board of Immigration Appeals (BIA) correctly apply the corroboration requirement in 8 USC § 1158(b)(1)(B)(ii); Gaye v. Lynch; INS v. Aguirre–Aguirre; The REAL ID Act; In Re S-M-J- (BIA); Matter of L-A-C- (BIA); Uzodinma v. Barr (8th Cir.); Chukwu v. Attorney Gen. of U.S. (3d Cir.); Ren v. Holder (9th Cir.); Rapheal v. Mukasey (7th Cir.); Wei Sun v. Sessions (2d Cir.); Liu v. Holder (2d Cir.); Avelar-Oliva v. Barr (5th Cir.); Soeung v. Holder (1st Cir.); Toure v. Attorney Gen. of U.S. (3d Cir.); Whether substantial evidence supported the IJ’s & BIA’s determination that petitioner inadequately explained why he failed to corroborate his past-persecution claim involving his stepfather; § 1229a(c)(4)(B) as amended by the REAL ID Act; § 1229a(c)(4)(B); § 1158(b)(1)(B)(ii); Fisenko v. Holder (Unpub. 6th Cir.); Urbina-Mejia v. Holder; Dragnea v. Lynch (Unpub. 6th Cir.); Brushtulli v. Holder (Unpub. 6th Cir.); Yanyun Ni v. Holder (Unpub. 6th Cir.); Ying Chen v. Holder (Unpub. 6th Cir.); Gjoni v. Gonzales (Unpub. 6th Cir.); Diallo v. INS (2d Cir.); Irhibayeva v. Holder (Unpub. 6th Cir.); Whether the BIA erred by rejecting petitioner’s claim that he was persecuted “because of” his membership in the particular social group; Matter of C-T-L- (BIA); Gonzalez-Posadas v. Attorney Gen. U.S. (3d Cir.); Barajas-Romero v. Lynch (9th Cir.); Singh v. Ashcroft
The court vacated the denial of petitioner-Guzman-Vazquez’s application for withholding of removal, holding that an IJ may not require corroborative evidence without giving the applicant an opportunity to explain its absence. It further held that the IJ and BIA’s determinations as to the unavailability of evidence to corroborate Guzman’s claim about abuse by his stepfather was not supported by substantial evidence, and that applicants for withholding of removal under § 1231(b)(3) must show “that a protected ground was at least one reason for their persecution[.]” Guzman claimed that he suffered persecution at the hands of his stepfather, who had considerable political influence and would react violently should Guzman return to Mexico. The IJ and the BIA did find that Guzman was a member of a protected group, “relatives of his father or children of his parents,” but ruled that he failed to explain why he could not obtain corroborating affidavits from family members, and that he “did not show that his stepfather ‘abused him because he was the child of his biological mother and father.’” The BIA adopted the IJ’s opinion and reasoning. The court first held that the IJ and BIA failed to correctly apply § 1158(b)(1)(B)(ii)’s corroboration requirement. It concluded that the IJ was not required to provide Guzman notice of the specific corroborating evidence that would be required to support his claim, under Gaye. However, joining its sister circuits, the court held that the IJ did err at the merits hearing by the requiring affidavits without giving Guzman an opportunity to explain why they were not reasonably available. It also held that the IJ’s and the BIA’s determinations that evidence to corroborate Guzman’s claim about abuse by his stepfather “was reasonably obtainable was not ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” It held that he gave adequate explanations as to why he had not obtained affidavits or letters where he explained that he had no communication with his sister, his mother was unable to write, and it was unlikely that his other relatives would have the necessary information. The court also held that in a “mixed motive,” case, applicants for withholding of removal under “§ 1231(b)(3) must demonstrate that a protected ground was at least one reason for their persecution,” and the court remanded the case for the BIA to apply the correct standard.
Order of adjudication assuming jurisdiction over a child; In re Brock; MCL 712A.2(b)(1); In re Long; In re Mason; Matter of Taurus F; In re Nelson; A parent’s ability to execute a power of attorney as to his or her child’s care & custody; MCL 700.5103(1); In re Martin; Abandoning an argument by failing to support it; VanderWerp v. Plainfield Charter Twp.
Holding that the trial court properly assumed jurisdiction over respondent-mother’s child (B) pursuant to MCL 712A.2(b)(1), the court affirmed the order of adjudication and the order of disposition removing B from respondent’s care and custody. The trial court ordered B removed and “placed in foster care after respondent was incarcerated and” the DHHS could not locate a relative or nonrelative with whom to place B. Respondent asserted that she arranged for B’s care and custody “before she was incarcerated by executing a power of attorney” (POA) so that a pastor could care for B. The trial court noted that while respondent had a POA in place, it “was insufficient because the pastor was not present when the DHHS filed its petition and because” B had never met him. Further, the trial court properly noted that respondent’s having a POA in place did not prevent jurisdiction because B “could be returned to an unfit environment at respondent’s whim.” In addition, the pastor was not present in the county when “the DHHS filed the petition, and the DHHS had not had time to evaluate the pastor or the appropriateness of his home. Finally, the [POA] that respondent granted the pastor was temporary and could have been revoked by respondent at any time, including after the trial court decided whether it had jurisdiction.” While respondent also contended that the trial court erred by assuming jurisdiction because a preponderance of evidence did not supporting finding that she abandoned B, posed a substantial risk of harm to B’s mental well-being, or that she kept B in an unfit home environment, “the trial court did not assume jurisdiction on those grounds.” It instead determined that she left B “without proper care and custody because respondent was incarcerated and she did not make proper arrangements for” B’s care and custody. It “stated its findings during the bench trial, and the adjudication order reflects those findings.” Thus, this argument had no merit.
Order of adjudication; Tender years motion; Indicia of trustworthiness; In re Martin; In re Brown; MCR 3.972(C); Jurisdiction over the children; In re BZ; Abandoned claims; Mettler Walloon, LLC v. Melrose Twp.; Burden of proof; In re Sanders; MCL 712A.2(b)(1) & (2)
The trial court did not abuse its discretion when it admitted the children’s (JM and JF) statements to a CPS worker (C). Also, the trial court did not err by holding that respondent presented a substantial risk to the well-being of the children, or that the exercise of its jurisdiction over the children was appropriate due to her “neglect, cruelty, criminality, or depravity.” Respondent argued that the trial court abused its discretion when it granted the DHHS’s motion and admitted the children’s statements to C during the forensic interviews. The trial court admitted the statements under MCR 3.972(C). C testified at the motion hearing that she conducted separate interviews with the children. They were under 10 years old at that time. Before C “asked about the allegations of physical abuse, she developed a rapport with the children by asking them personal questions.” Only after she “established that each child could follow her line of questioning and understand the difference between truth and a lie did she ask about the allegations of physical abuse." C’s questions were open ended, so that she did not dictate their responses. C testified that JF told her that she and JM were “routinely whipped with extension cords.” C observed bruises on JF’s forearm. JM “had scars and bruising on various parts of her body, including her back, legs, and thighs.” When C asked how respondent disciplined JM, JM said that she used an extension cord. JM also told C “that she was scared of respondent and scared to go home.” C testified that she had spoken to the mother, and she had admitted to C that she “‘whooped’ the children when they misbehaved.” In addition, Dr. G “testified to the injuries she had observed on the children, and that both children had told her, during separate examinations, that respondent hit them with a belt or extension cord.” The children gave consistent narratives and details as to “respondent’s use of an extension cord to punish them.” Their statements to C “were consistent with statements the children had made to foster care workers, and were also corroborated by medical documents, police reports, and respondent’s own admissions." Conversations that C “later had with the children were consistent with what the children had said during their interviews.” Their statements to C “were both consistent and independently corroborated.” The court held “that they had adequate indicia of trustworthiness.” It affirmed the order of adjudication.