Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Dispute over mechanical permit application forms; The Stille-DeRossett-Hale Single State Construction Code Act; MCL 125.1510(1); Mootness; Construction Code Commission (CCC); Bureau of Construction Codes (BCC); Michigan Township Services Muskegon (MTSM)
In this dispute over mechanical permit application forms, the court concluded that “the alleged failure to adhere to MCL 125.1510(1)” had been resolved and that this case was moot, as there was no relief that it could offer to appellant-Forner. He appealed the CCC’s final decision denying his request that appellee-Spring Lake Township “submit its mechanical permit application form to the CCC for review.” The court noted that “the driving force behind this case is Forner’s belief that the Township violated MCL 125.1510(1) by failing to utilize a CCC-prescribed mechanical permit form. MCL 125.1510(1) states that applications for building permits ‘shall be on a form prescribed by the commission and shall be accompanied by payment of the fee established by the enforcing agency.’” The CCC approved a “BCC-promulgated mechanical permit form as well as all ‘substantially similar’ permit forms in” 1/24. Forner admitted “on appeal that the CCC has the power to prescribe all permit forms.” The court concluded the “CCC complied with MCL 125.1505(1) and MCL 125.1510(1) by adopting the BCC form and allowing for the use of substantially similar forms. There is no dispute that the Township’s mechanical permit form is substantially similar to the BCC form.” The court agreed with the Township and appellee-MTSM that this appeal was moot, and dismissed it as such.
Sufficiency of the evidence; CSC III; “Sexual penetration”; MCL 750.520a(r); Consecutive sentencing; MCL 769.1h(1); Rationale; People v Norfleet; Scoring of OV 4 (psychological injury); MCL 777.34(1)(a); People v White; Authentication; The best-evidence rule; MRE 1003; Hearsay; Excited utterance exception; MRE 803(2); Witness testimony under MRE 602; Other acts evidence; MRE 404(b)(1); Other acts of sexual assault; MCL 768.27b; Relevance; MRE 401; Unfair prejudice; MRE 403
Finding no errors requiring reversal, the court affirmed defendant’s (Higdon) convictions and sentences for CSC III and first-degree home invasion arising out of his sexual assault of the victim (with who he had been friends since they were teenagers) while she was asleep. On appeal, the court first found “the evidence was sufficient to support Higdon’s CSC-III conviction despite that—or even because—the victim testified that Higdon placed his mouth on and bit her vagina.” In addition, the court found that the trial “court sufficiently justified its decision to impose consecutive sentences.” Further, as to OV 4, the trial court did not err by finding the victim suffered a serious psychological injury requiring treatment. Finally, as to the admission of evidence, the court found that: (1) a recorded statement of his voice “was what the proponent claimed it was” and “technical difficulties with the recording were resolved”; (2) “witnesses permissibly testified about matters within their personal knowledge regarding conversations with Higdon, Higdon’s hat, and the bite marks”; and (3) the victim’s statement to her boyfriend about the event was an excited utterance as she “was still under the effects of the event” when she told him about it; and (4) “evidence of his other sexual assault conduct was not substantially more prejudicial than probative.”
Search & seizure; Automobile search; “Probable cause” to search a vehicle as “forfeitable contraband”; Other acts evidence; FRE 404(b); “Prejudicial variance” between the trial proofs & the indictment’s allegations as to conspiracy; Jury instructions; Sentencing; Procedural reasonableness; Base-offense level; USSG § 2D1.1(c)(4); Findings on the drug quantity; Obstruction of justice enhancement (§ 3C1.1); Minor participant reduction (§ 3B1.2); Enhancement for possessing a firearm (§ 2D1.1(b)(1)); Drug-premises enhancement (§ 2D1.1(b)(12))
The court held that the search of defendant-Simpson’s vehicle was supported by probable cause where the vehicle itself was forfeitable contraband. The court also rejected defendants’ evidentiary, jury instruction, and sentencing challenges. Thus, it affirmed their convictions and sentences related to their participation in a Ohio drug distribution scheme. Simpson argued that police lacked probable cause to stop and search his car. But the court disagreed, noting police knew that the former owner, “a known drug dealer, had traded his blue Charger for 330 grams of fentanyl and cash. This evidence alone made it fairly probable that the car had been used to facilitate the distribution of a controlled substance, rendering the vehicle forfeitable contraband under federal and state law.” It was found in a public place, and an inventory search was conducted. “In the end, all of this was by the books.” Defendant-Figures challenged the admission of evidence that he had drugs and cash on his person at a prior traffic stop, claiming it was improper under FRE 404(b). The court again disagreed, holding that the evidence he challenged “was not evidence of another crime; it was evidence of his charged conspiracy.” Thus, it was “intrinsic to the crimes charged.” The court also rejected his argument that he was not involved in the conspiracy but was only the “end purchaser” of the drugs, concluding there was ample evidence for a jury to find the narrow buyer-seller “exception was not at play.” Defendant-Wynn argued that “a legally fatal variance existed between the proof at trial and the conspiracy allegations in the indictment, which charged a single drug conspiracy among 15 codefendants.” He asserted that evidence of more than one conspiracy was presented to the jury. But the court concluded “there was no risk of jury confusion as to Wynn’s responsibility in the conspiracy.” And his “ultimate sentence, which turned on the cocaine he bought or sold” to the conspiracy’s “self-proclaimed ‘middleman king,’” was unaffected by any alleged variance. The court also rejected all three defendants’ sentencing challenges, including to the district court's drug quantity calculations, the obstruction of justice enhancement applied to Simpson, the possessing a firearm enhancement applied to Wynn, and the district court’s refusal to apply a minor participant reduction to Figures.
Negligence; Intentional & negligent infliction of emotional distress (IIED & NIED); Statute of limitations; Tolling; MCL 600.5856; Effect of a federal lawsuit alleging a claim under 42 USC § 1983
The court held that because plaintiff’s complaint alleging IIED, NIED, “and negligence was filed outside the limitations period of MCL 600.5805(2), the trial court correctly concluded that [his] claims were barred by the statute of limitations.” He argued “that the trial court erred by holding that the filing of the federal lawsuit did not toll the statute of limitations on the basis that defendant, sued in his personal capacity in the state claim, is not the same party as defendant, sued in his official capacity in the federal action.” The court concluded “that regardless of the trial court’s reasoning regarding that issue, [it] correctly determined that defendant was entitled to summary disposition. Plaintiff’s state-law claims accrued [10/15/17], the date that defendant called plaintiff’s mother to protest plaintiff’s derogatory Facebook posts, and a three-year period of limitations applied, extended by our Supreme Court’s administrative orders by 101 days.” Plaintiff argued “that his state-law claims were timely because the statute of limitations was tolled on [12/29/20], the date he filed his federal claim, and remained tolled by the federal action at the time he filed his complaint in state court on [10/14/22].” But his federal lawsuit alleged a claim under § “1983 for retaliation against plaintiff for exercising his First Amendment rights, and did not allege the state-law tort claims alleged in this action.” The court noted that “MCL 600.5856 tolls a statute of limitations when a complaint is filed, or at the time jurisdiction is otherwise acquired by the court over the defendant.” Plaintiff argued “that both of these subsections” applied to his filing of the federal suit. But while “the filing of a federal lawsuit may toll the statute of limitations regarding state-law claims that are brought supplemental to the federal claims,” there was no support for an argument that his “federal lawsuit that did not include his state-law claims and sought different relief tolled the statute of limitations regarding his state-law claims.” The court noted that his “complaint did not include his claims under state law, and the federal court thereafter declined jurisdiction over the state claims when it denied plaintiff’s motion to amend his complaint to add the claims.” Under the “circumstances, MCL 600.5856 does not toll the statute of limitations regarding claims that were never pending before the federal district court.” Affirmed.
Quiet title; Redemption; Requests for admission deemed admitted; MCR 2.312(B)(1); Motion for reconsideration
The court held that given “plaintiff’s admissions and the email exchange between the parties’ attorneys in which it is apparent that [it] did not tender payment within the redemption period, the circuit court correctly determined that there was no genuine issue of material fact on that issue. Plaintiff also failed to establish any question of fact that defendant had any obligation thereafter, contractual or otherwise, to permit [it] to redeem the properties, or that plaintiff ever actually attempted to tender payment to defendant at any time.” Finally, it found no merit in plaintiff’s claim the circuit court failed to consider its response in denying its motion for reconsideration. The cases involved two actions to quiet title. Plaintiff argued “that it offered to tender the payment to defendant during the redemption period and that after the redemption period, defendant agreed to accept payment.” Thus, plaintiff contended a question of fact existed “whether defendant is contractually obligated to permit [it] to redeem the property.” Defendant claimed “that plaintiff did not attempt to redeem the property within the redemption period, and that despite sending photos of checks that ostensibly would redeem the properties from forfeiture if tendered, plaintiff never presented the checks to defendant.” Defendant supported this claim, “in part, with proof of an email exchange between defense counsel and plaintiff’s then-counsel.” The court concluded that the record supported “the circuit court’s orders granting defendant summary disposition.” Contrary to plaintiff’s claim, there was no evidence that it “tendered payment to defendant to redeem the properties within the redemption period.” The emails showed “that plaintiff’s counsel contacted defendant’s counsel on [3/6/20], the last day of the redemption period, suggesting a meeting the following week to convey the checks to defendant, after the close of the redemption period. The meeting apparently never occurred, and plaintiff does not contend that it ever tendered the payment to defendant.” This was confirmed by subsequent emails “in which plaintiff’s counsel each time offers that plaintiff could pay for the two properties either within 30 days or in 30 days. Defense counsel responded . . . asking where the checks are that plaintiff proposed to use to pay defendant.” As to plaintiff’s reliance on the affidavit of its former counsel, it did “not establish that plaintiff tendered the payment to defendant during the redemption period; rather, [it] states that plaintiff’s counsel ‘tried to arrange’ to redeem the property.” Affirmed.
Children’s best interests; In re Gonzales/Martinez; Consideration of relative placement
Holding that the trial court satisfied the requirement that it “consider relative placement in making its best-interest determination[,]” the court affirmed the order terminating respondent-mother’s parental rights. She asserted that it erred in finding that “termination was in the children’s best interests, because it failed to consider that [they] were placed with a relative.” The court disagreed, determining that the record showed “the trial court made extensive findings that demonstrate express consideration of the children’s placement with their relative-grandparents. . . . [It] explicitly considered that placement and the grandparents’ willingness to adopt the children when making its best-interest determination. It also considered whether guardianship would better serve the children’s best interests than adoption.” It concluded “that adoption was more supportive of the children’s best interests than a guardianship or returning [them] to respondent, primarily because the children needed permanency and a stable home environment. In fact, the trial court expressly stated that there was no evidence to indicate that guardianship ‘would create a better environment or encourage respondent . . . to be a healthy addition’ to the children’s lives. As long as a relative-placement consideration is not ‘wholly absent from the trial court’s best-interest determination,’ the trial court is not required to articulate specific ‘magic words’ for best interests.” The court found that the trial court here “more than adequately satisfied” the relative-placement consideration requirement.
Termination under § 19b(3)(c)(i); Child’s best interests; MCL 712A.19b(5); In re Olive/Metts Minors; Relative placement; In re Schadler; Parent-child bond
Holding that § (c)(i) was met, and that termination was in the child’s (DLT) best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis of the child’s testing positive for drugs upon birth, as well as the mother’s challenges with substance abuse and mental health, lack of desire to parent, and unstable housing. On appeal, the court rejected her argument that a statutory ground for termination was not met, finding § (c)(i) was met. “[D]espite receiving a considerable number of services aimed at addressing her substance abuse and mental health issues, mother relapsed about a year after the initial disposition, and failed to demonstrate that she benefited from the services in which she participated.” The foster-care worker testified that she “likewise failed to progress beyond one hour of supervised visitation per week in the time that elapsed since DHHS filed the initial petition. The foster-care worker believed it would take a significant amount of time for mother to demonstrate her ability to remain substance-free, obtain independent housing, and provide permanency for DLT.” As such, the testimony “indicated there was no reasonable likelihood that mother would be able to rectify the conditions that brought DLT into care within a reasonable time considering DLT’s age.” The court also rejected her claim that termination was not in the child’s best interests. “DHHS presented evidence that mother’s parenting ability was poor when living outside of a structured environment. [Her] interactions with DLT were positive during their supervised visitation before mother relapsed, but mother stopped participating in visitation” for several months as a result of her relapse. There was some evidence of a bond, but the record showed “mother was only able to appropriately parent DLT in a time-limited, supervised setting.” Her involvement in the child’s “life became nonexistent during periods of relapse, suggesting that she would not be able to provide stability for DLT in the long term.” In contrast, “DLT had a stable and healthy home environment with her legal father, who was capable of meeting her needs.” In addition, the “foster-care worker testified that DLT’s health issues had improved while in her legal father’s care.” The trial court “considered DLT’s placement with her legal father and ultimately determined that DLT’s placement with a relative did not outweigh the ‘significant issues’ mother had to overcome ‘in order to be a safe and stable parent for [DLT].’”