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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Legal malpractice; Coleman v Gurwin; Duty; Simko v Blake; The “suit within a suit” concept; Charles Reinhart Co v Winiemko
The court held that the trial court properly found that defendant failed to establish a genuine question of material fact to support his legal malpractice counterclaim, and did not err by granting third-party defendant-attorney’s (Silverman) motion for summary disposition and dismissing the case. Plaintiff-law firm represented defendant in his divorce case. Following the divorce, the firm sued defendant for payment of legal fees. Defendant filed a counterclaim and third-party complaint against the attorney for legal malpractice. On appeal, the court noted that defendant “did not address in his response to Silverman’s motion for summary disposition how he would have received a more favorable outcome in the divorce case had” she deposed his ex-wife. Next, he “did not demonstrate a genuine question of material fact about the existence of any damages” resulting from the attorney’s recording of a quitclaim deed or failure to move the trial court as to his retrieving personal property. Further, he failed to show that any error she committed by not obtaining an appraisal of his horses was a “proximate cause of any damages.” As to his claims that she “failed to formulate a proper trial strategy to demonstrate to the trial court that his disability made him vulnerable to” his ex-wife’s manipulation and control, the fact that another attorney may have questioned his mental health professionals differently did not raise a genuine question of fact to sustain his claims. Further, he failed to provide any support for his claim that the attorney refused to file for an annulment. Finally, the court noted that the trial court addressed the properly pleaded counts in defendant’s most recent counter-complaint. To the extent that he now argued “for the first time on appeal that there are additional claims nested within Count IX, such haphazard allegations within unrelated counts do not meet this judiciary’s pleading standards. Even setting the pleading standards aside, the allegations found in Count IX are largely, if not wholly, duplicative of allegations found in Counts I through VIII, which the trial court properly addressed.” Affirmed.
The Telephone Consumer Protection Act (TCPA); Sending unsolicited advertising faxes; 47 USC § 227(b)(1)(C); Whether the faxes constituted an “advertisement”; § 227(a)(5); Distinguishing Sandusky Wellness Ctr, LLC v Medco Health Sols, Inc; Principle that liability falls on the sender of the fax rather than the seller of a product; Lyngaas v Curaden AG; United Concordia Cos, Inc (UCCI)
[This appeal was from the ED-MI.] The court held that defendant-UCCI’s faxes sent to plaintiff-dental practice “were advertisements under the TCPA.” Thus, it reversed summary judgment for UCCI and remanded. Plaintiff filed a class action against UCCI under the TCPA for faxing it “‘at least two’ unsolicited advertisements via a fax machine.” Plaintiff contracted with UCCI to participate in UCCI’s Fee for Service Dental Network. One of the benefits to dentists in the network “was the ‘Value Add Program’ (VAP), which provided discounts from third-party vendors.” UCCI sent the faxes at issue as part of the VAP. The district court granted UCCI summary judgment, ruling “that the faxes were not advertisements because UCCI’s profit incentive was too remote.” But the court held to the contrary. It concluded that “UCCI facially promoted direct sales by its third-party partners, and its profit motive was sufficiently direct because it sent the promotions as part of negotiated marketing agreements.” The court’s precedent further supported this determination “by placing liability for third-party sales on the sender of a fax rather than the seller of the product.” The court noted that plaintiff could only recover for faxes it actually received. Thus, a third fax that it was unable to show it received must “be removed from litigation going forward.”
Whether it is an unconstitutional ex post facto punishment to require registry under the 2021 Sex Offenders Registration Act (SORA); People v Kiczenski
Holding that it was bound to follow Kiczenski, the court affirmed, even though “the trial court’s stated reasons for denying defendant’s motion were erroneous” because it “reached the correct result under Kiczenski.” It noted that in 2008, he sexually assaulted his former girlfriend. In 2009, he pled no contest to CSC I and was sentenced to 17½ to 50 years. His conviction classified him as a Tier III offender under SORA, requiring him to register as a sex offender for life. He argued that he was entitled to immediate removal from the “registry because it is an unconstitutional ex post facto punishment to require him to register under the 2021 SORA.” The court held that because it “determined that the 2021 SORA did ‘not constitute punishment as applied to [CSC I] offenders,’ there was no ex post facto violation.”
Sentencing; Conflicts between the oral sentence pronounced at the sentencing hearing & the written judgment of sentence (JOS); Applicability of defendant’s appeal waiver; Whether defendant was challenging the written JOS rather than the sentence itself; United States v Hayden; Using the written JOS to resolve ambiguity in the oral sentence; United States v Denny
The court joined other circuits by holding that a defendant arguing that the written JOS and oral sentence conflict is not challenging the sentence but rather, “is seeking to avoid enforcement of the written” JOS. Thus, defendant-Shaw’s plea agreement appeal waiver did not waive his right to challenge the differences between the district court’s oral sentence pronouncement and its written JOS. It also found that the written JOS could be used to resolve an ambiguity in the oral sentence, and that substance-abuse treatment was “part of Shaw’s sentence, with the treatment program, frequency, and duration” to be decided by the probation office. His plea agreement provided he could not appeal his sentence if it was within the guideline range, which it was. The parties disagreed whether he needed substance abuse treatment. The district court stated that it would “include the condition on three years of supervised release, as directed by probation. They may decide he doesn’t need it either. But if directed by the Office of Probation, that he participate in substance abuse treatment, in addition to” other things, “all as directed.” The written JOS stated that “defendant shall participate in substance abuse testing and treatment as directed by the probation officer.” The court first rejected the government’s argument that the plea agreement prohibited an appeal. Shaw asked it “to ‘vacate the written judgment’s mandatory substance-abuse treatment condition’ because he believes that condition was not part of his actual sentence—i.e., it was not orally pronounced.” Thus, his argument was outside the scope of his appeal waiver. As to the merits, when an oral sentence conflicts with the written JOS, the oral sentence controls. But where the oral sentence was “ambiguous, the written judgment ‘can be used to resolve’ that ambiguity.” The court noted that because “probation officers are ‘non-judicial officers,’ they cannot constitutionally impose supervised-release conditions.” But it has “held that it is constitutional for a sentencing court to order that a defendant ‘shall participate’ in a drug-treatment program ‘as directed by the probation officer.’” It was difficult to determine “whether the district court at the sentencing hearing sought to impose treatment ‘as directed’ or ‘if directed’ by probation.” Because the court could not say that the oral sentence was clear, it could consider the written JOS, and it “has interpreted identical sentencing language to ‘clearly specif[y]’ that treatment is required, leaving only ‘the details of the treatment’ to the probation office.” Affirmed.
Search & seizure; Motion to suppress; “Reasonable suspicion” to stop defendant; United States v Gross; “Totality of the circumstances”; United States v McCallister
[This appeal was from the WD-MI.] The court held that police officers’ decision to stop defendant-Smith resulting in the recovery of a gun was based on a reasonable suspicion of criminal activity under the “totality of the circumstances.” He was charged with FIP. Smith argued that the police lacked reasonable suspicion to stop and frisk him. After a hearing, the district court ruled that the police could detain Smith where they “had a ‘reasonable suspicion that criminal activity, particularly an armed robbery or carjacking, was afoot,’ and that the frisk was lawful because, ‘[b]ased on the totality of the circumstances, the officers reasonably suspected Mr. Smith was armed and dangerous when they detained him.’” He entered a conditional guilty plea, preserving the right to appeal the suppression ruling. The court explained that a reasonable suspicion exists where, based on the totality of the circumstances, an “officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’” It noted that this was “a low bar,” and found that it was met in this case. It concluded that an officer’s (W) “reasonable suspicion that Smith intended to carjack or rob him was supported by articulable facts and permissible inferences from those facts. First, and perhaps most important to our analysis, [W] made the ‘commonsense judgment[],’ . . . that Smith and his companions had come out of the stolen Chrysler.” He noted that the Chrysler had reappeared “at the scene twice before parking down the street, and he had previously observed [its] occupants watching him as the car passed by. [W] knew from his training and experience that stolen cars were often used in the commission of other offenses like carjackings and robberies.” In addition, Smith and his companions spread out as they walked toward his car, and each had a hand obscured. When W “drove away, the men immediately retreated towards the Chrysler.” The court added that this all “took place in a high-crime area that had seen previous carjackings, and [W’s] unmarked car was a model that was frequently stolen.” It held that the “totality of the circumstances gave rise to a reasonable suspicion that Smith and his companions intended to carjack or rob” W. It rejected Smith’s assertions that W’s beliefs were only a “hunch.” Affirmed.
Medical exam request in a custody dispute; MCR 2.311; Burris v KAM Transp, Inc (On Remand); Good cause; Judicial bias; Trial court examination of a witness; MRE 614; People v Stevens; Custody order; Best interest factors (MCL 722.23); Award of primary physical custody to one parent & sole legal custody to the other; Huntington’s disease (HD); Children’s Protective Services (CPS)
The court affirmed the trial court’s order: (1) denying defendant-mother’s request for a medical exam of plaintiff-father, (2) changing the parties’ parenting-time schedules, and (3) awarding sole legal custody to the father. The trial court’s conclusion that the mother had “not met her burden in proving good cause exists for ordering a medical examination at this particular point in time, was not an abuse of discretion.” As it observed, the record did not establish he “had any physical symptoms of HD.” It also reasoned his “anxiety, depression and irritability were borne out of the being separated from his children against his will and the ‘rather large number of [CPS] investigations, none of which resulted in substantiated abuse or neglect.’” The court found that the trial court’s reasoning was sound. Next, the mother contended that the trial judge displayed bias. She took issue with, among other things, how it “treated an impeachment issue related to” the testimony of one of the parties’ children (EG1). At the custody hearing, the father’s attorney asked EG1 if she had told the father in the past that the mother had told her to say “‘bad stuff’” about him. When EG1 denied this, his “attorney played a video in which EG1 disclosed that she was being coached by” the mother. The mother argued the trial court erred by allowing the father’s “attorney to continue questioning EG1 about whether she was speaking in the video.” The court held that even if there “was ultimately error by the trial court on an evidentiary issue, that error does not amount to judicial bias.” The mother also took “issue with some of the trial court’s findings in its custody order and” asserted that it erred in awarding the father sole legal custody and ordering that the children attend a certain school district. The court concluded her arguments were “largely rooted in credibility and weight, which were the province of the trial court,” and it found “no error in the trial court’s fact-finding or application of the law as to the best-interest factors.” Lastly, she contended “it was contradictory for the trial court to have awarded her primary physical custody but” the father sole legal custody. The trial court was faced with the problem of the mother having interfered with the father’s “ability to act as a parent for two years. It was reasonable, therefore, for [it] to conclude that joint legal custody was not feasible and that [he] should be the one to retain legal custody so he could make decisions on the children’s schooling, medical care, and religious education.” Even if the mother was “favored” on more factors than the father, “the salient issues in terms of legal custody were the alienation issues and failure to include [him] in decision making.” The trial court’s reasoning was “sufficiently apparent from reading its opinion as a whole, and the decision is adequately rooted in the evidence. This new custody arrangement does not fall outside the range of principled outcomes.”
The Seller Disclosure Act (SDA); Seller’s Disclosure Statement (SDS); “Environmental hazard” disclosure requirement; MCL 565.957(1); The Natural Resources & Environmental Protection Act (NREPA); MCL 324.20101(p); “Hazardous substance”; MCL 324.20101(x)(i) & (ii); “Contamination”; MCL 324.21302(g); Groundwater; MCL 324.21302(k); Groundwater contaminated with trichloroethylene (TCE); Whether reliance on the SDS was reasonable; Effect of an “as is” clause; “Personal knowledge”
Noting that there was “no binding precedent directly on point,” the court held that known contaminated groundwater is an “environmental hazard” to be disclosed under the SDA, “even when, as here, there is no known associated contamination of the soil or vapor intrusion in the home.” It also found that there was a genuine issue of material fact whether plaintiffs-home buyers reasonably relied on defendants-sellers’ SDS disclosure. The home is located near a former auto plant. TCE has been found in the surrounding groundwater. The current owner of the plant property has installed monitoring wells in the area. Defendants checked “no” in response to the SDS form’s question about environmental problems. Alleging violation of the SDA, fraudulent misrepresentation, and silent fraud, plaintiffs sought rescission of the purchase agreement. The question was whether groundwater contaminated with TCE is “itself an ‘environmental hazard’ under the [SDA], even though (1) the contamination had not migrated to the adjacent soil or residential building, and (2) the building did not draw water from the groundwater?” The court rejected the position “that the surface soil or residential building itself must necessarily be contaminated to trigger disclosure, as opposed to ‘merely’ contamination of the groundwater under the home.” It concluded that as “long as there remains an actual, viable vector through which the contaminant in the groundwater can migrate to the soil and air, there is a risk to the environment.” Given that the SDA does not define “environmental hazard,” the court looked to environmental statutes, including NREPA, for guidance. It found that a reasonable reading of the term under the SDA means “an unacceptable risk to a person’s health, safety, or welfare posed by the presence of a substance, material, or product in the soil, surface water, groundwater, air, or building materials associated with the” property. Applying this definition, it held that the trial court erred in granting defendants summary disposition on the basis that there was no “environmental hazard” to disclose under the SDA. There was no question that (1) “TCE is a carcinogen that, with exposure above a sufficient level, endangers a person’s health, safety, or welfare” and (2) it “was present in levels above those set by the EPA in the groundwater below the” property. And there was “at least a question of fact that, at the time of transfer, there was an actual, viable contaminate vector from the groundwater to the property’s soil and air.” Reversed and remanded.
Ineffective assistance of counsel in a child-protective proceeding; In re Martin; Child’s best interests; In re White
Rejecting respondent-father’s ineffective assistance of counsel claims and holding that the trial court did not err in finding that termination was in the child’s (KS) best interests, the court affirmed the termination order. Respondent contended his “trial counsel failed to request that he be permitted to visit with KS.” But the record showed “that trial counsel requested that respondent[] be permitted to communicate with KS despite being incarcerated.” Thus, respondent failed to show “that counsel’s performance was objectively deficient or prejudiced him.” The court also determined that even “if trial counsel was ineffective for failing to ask about relative placements before the best-interest hearing,” respondent did not show “prejudice because the DHHS communicated with the relatives that [he] identified in 2024, years after KS was first removed, and did not find any suitable placements.” The DHHS complied with the requirement that it investigate relative placements, and respondent did not show “how questions from trial counsel about the issue would have altered the trial court’s termination findings.” Further, even assuming that trial counsel’s failure to question witnesses about the provision of services “was deficient performance, there is no basis to find that” it prejudiced respondent given that “the trial court’s termination decision did not depend on whether [he] engaged in services.” As to KS’s best interests, the record showed that he “did not know or ask about respondent[] and believed that he did not have a father, evidencing that there was no bond between” them. There was no evidence that respondent “tried to write letters or send gifts to KS, or even that [he] had any parenting skills.” The court also noted that the record showed he “had a history of sexually assaulting minors. [He] stipulated that there was clear-and-convincing evidence that there was a reasonable likelihood of KS being harmed if returned to” his care. KS had also “been in foster care for much of his life, and nothing in the record contradicts the trial court’s findings that KS needed permanence, stability, and finality.”