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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Custody; Fees for an investigative guardian ad litem (GAL); Gusmano v. Gusmano (Unpub.); Right to appeal an issue; MCR 7.203(a)(1); Final judgment defined; MCR 7.202(6); GAL defined; MCL 722.22(g); Whether the fact the GAL was an attorney made her a lawyer-guardian ad litem (L-GAL); MCL 722.24; Whether the arbitrator acted outside the scope of his authority as to the change of domicile issue; MCL 722.31(3)-(4); Gagnon v. Glowacki; Mogle v. Scriver; Spires v. Bergman; Brausch v. Brausch; The Domestic Relations Arbitration Act (DRAA) (MCL 600.5070 et seq.); MCL 600.5081(2)(c); Eppel v. Eppel; Whether the trial court should have vacated the arbitration order; Washington v. Washington; Invited error; Cassidy v. Cassidy; Scope of the arbitration; MCL 600.5071; An arbitration agreement as a contract; Beattie v. Autostyle Plastics, Inc.; Altobelli v. Hartmann; Written agreement requirement for arbitration under the DRAA; Miller v. Miller; Cipriano v. Cipriano; Motions to disqualify the arbitrator; Standard of review; MCL 600.5075; MCR 3.216(E)(5); Ex parte communication; Gates v. USA Jet Airlines, Inc.; MCL 600.5081(2); Untimeliness of a motion to disqualify; MCR 2.003(D)(1)(d); In re MKK; People v. Gibson (On Remand); The partiality or bias required to overturn an arbitration award; North Am. Steel Corp. v. Siderius, Inc.; Due process right to an unbiased & impartial decision-maker; Mitchell v. Mitchell; Caperton v. Massey
In this child custody dispute, the court held that plaintiff-mother did not have an appeal of right from the order that she pay the investigative GAL’s fees as the record showed that the GAL, while incidentally an attorney, did not act as a L-GAL. Further, the trial court did not err in denying plaintiff’s motion to vacate the arbitrator’s opinion as to a change of domicile, and the court rejected her claim that the arbitrator had no basis for considering and deciding custody issues in light of the scope of the parties’ arbitration agreement. Finally, the trial court did not err in denying her motions to disqualify the arbitrator because her allegations in support lacked a basis in fact. Thus, the court affirmed the trial court’s rulings in all of these consolidated appeals. As to the order requiring plaintiff to pay the investigative GAL’s fees, she “sought, and received, an appointment of a GAL to investigate allegations of inappropriate conduct against” defendant-father. As the allegations had already been investigated, she “readily agreed to pay any and all expenses for the GAL. However, once the GAL determined that there was no basis for the allegations, plaintiff balked at paying.” While she contended “that the fee amounted to attorney fees for which” she had an appeal by right, the court disagreed as it was clear from the record that the GAL “was not acting as an attorney in her investigative process.” Plaintiff also requested that the arbitrator "approve a change of domicile. When things did not go her way, plaintiff switched tactics and argued that the arbitrator acted outside the scope of his authority when he denied” her motion for summary disposition on the issue. Once “again, it was plaintiff who placed the issue before the arbitrator. The parties’ agreement prevented such a move without the other parent’s consent or court order. Contrary to plaintiff’s argument, the fact that the move would have brought the child closer to defendant was of no consequence.” Thus, the trial court did not err in denying her motion to vacate the arbitrator’s opinion. As to her claim that “the arbitrator had no basis for considering and deciding issues of custody because the arbitration agreement did not specifically set forth what, exactly, would be arbitrated[,]” the court noted that it was “difficult to conceive of a broader scope of arbitration than ‘all issues in the pending matter,’ as used by the parties.”
The constitutionality of Michigan’s Newborn Screening Program; Standing; Shearson v. Holder; Spokeo, Inc. v. Robins; Injury-in-fact requirement; Clapper v. Amnesty Int’l USA; City of Los Angeles v. Lyons; National Rifle Ass’n of Am. v. Magaw; Town of Chester v. Laroe Estates, Inc.; Sovereign immunity & substantive due process claims against state actors arising from the collection of blood; Maben v. Thelen; Regents of Univ. of CA v. Doe; Qualified immunity; Barker v. Goodrich; Reichle v. Howards; Whether a person’s constitutionally protected liberty interest in refusing unwanted medical treatment extends to children; Cruzan v. Director, MO Dep’t of Health; Parham v. J. R.; Alleged violation of parents’ substantive due process rights when their children’s blood samples were collected & screened for diseases; Pierce v. Society of Sisters; Dubbs v. Head Start, Inc. (10th Cir.); Beleno v. Lakey (WD TX); Hearring v. Sliwowski; Prospective relief as to the alleged ongoing violation; Thiokol Corp. v. Department of Treasury, State of MI, Revenue Div.; Ex parte Young; Diaz v. Michigan Dep’t of Corr.; S & M Brands, Inc. v. Cooper; Williams v. Commonwealth of KY; Alleged violation of the children’s substantive due process right through the retention of blood samples; Schall v. Martin; Principle that parents’ substantive due process rights include the right to direct their children’s medical care; Santosky v. Kramer; Jacobson v. Massachusetts; Nikolao v. Lyon; Prince v. Massachusetts; Fourth Amendment claims; United States v. Jacobsen; Skinner v. Railway Labor Executives’ Ass’n; United States v. Place; Schmerber v. California; Pearson v. Callahan; Michigan Department of Health & Human Services (MDHHS)
[This appeal was from the ED-MI.] In an issue of first impression, the court held that children’s substantive due process rights were not violated when defendants drew their blood and screened it for diseases. However, a parent’s substantive due process right to make decisions as to the care, custody, and control of their children includes the right to direct their medical care. It concluded that the district court erred by dismissing the plaintiffs-parents’ claims for prospective relief as to their claims that their substantive due process and Fourth Amendment rights were violated by defendants’ retention, transfer, and storage of their children’s blood samples. Plaintiffs sued the MDHHS and its employees, as well as Michigan Neonatal Biobank, alleging that the practice of testing a newborn’s blood and retaining the “blood spots” under Michigan’s Newborn Screening Program, without parental consent, violated their substantive due process and Fourth Amendment rights. They sought declaratory and injunctive relief, as well as damages. The district court granted defendants’ motion to dismiss with prejudice. The court first concluded that plaintiffs had standing as to several of their claims. However, it upheld the dismissal of the damages claim based on sovereign and qualified immunity. It then considered whether the children’s substantive due process rights were violated when their blood was drawn and screened for diseases. It found no violation where “any substantive due process rights related to directing the medical care of children devolve upon the parents or legal guardians of the children, rather than the children themselves.” Sovereign and qualified immunity barred the parents’ substantive due process claims for the blood draws and testing. But the court held that the “parents’ substantive due process right ‘to make decisions concerning the care, custody, and control’ of their children includes the right to direct their children’s medical care.” Thus, it concluded that their claims for “prospective relief against the individual Defendants in their official capacities relating to their alleged violation of the parents’ substantive due process rights in connection with Defendants’ retention and ongoing storage of the blood samples” were not subject to qualified immunity and fell “within the Ex parte Young exception to state sovereign immunity.” As for the Fourth Amendment claims, it held that state sovereign immunity and qualified immunity barred all of the damages claims, but the district court erred in dismissing the claims for “prospective relief against the individual Defendants in their official capacities relating to their alleged violation of the children’s Fourth Amendment rights in connection with the ongoing storage, use, or transfer of the blood samples . . . .” Affirmed in part, reversed in part, and remanded.
Child custody; Validity of a settlement agreement; MCR 3.216(H)(8); MCR 2.507(G); Kloian v. Domino’s Pizza, LLC; Walbridge Aldinger Co. v. Walcon Corp.; Bandit Indus., Inc. v. Hobbs Int’l, Inc. (After Remand); Dykes v. William Beaumont Hosp.; Principle that parties are always permitted to voluntarily resolve part of their disputes & leave the remainder for court resolution; Brucker v. McKinlay Transp., Inc.; Washington v. Washington; A consent judgment; Union v. Ewing; Ahrenberg Mech. Contracting, Inc. v. Howlett; Calculation of income for child support purposes; 2017 MCSF 2.01(E)(4)(e)(vii); Credibility; Pierron v. Pierron; Attorney fees; Shinkle v. Shinkle (On Rehearing); Judicial bias; MCR 2.003(C)(1)(a) & (b); Mitchell v. Mitchell; Cain v. Michigan Dep’t of Corrs.; Liteky v. United States; Ireland v. Smith; Band v. Livonia Assoc.; Damages for a vexatious appeal; MCR 7.216(C)(1); Edge v. Edge; Bonkowski v. Allstate Ins. Co.; Michigan Child Support Formula (MCSF)
The court held that plaintiff-mother was entitled to a trial on the remaining issues not resolved by the parties’ agreement, and that the trial court erred in calculating defendant-father’s income for child support purposes. Thus, it vacated the judgment for custody, support, and parenting time, and remanded. The court rejected plaintiff’s argument that the trial court erred by forcing her to “accept a settlement agreement that was never signed, and the terms of which were never placed on the record.” She in fact “agreed on the record with” a statement by the trial court as to the agreement and it found that arrangement in the child’s best interests. As such, the agreement placed on the record and agreed to by plaintiff was binding on her. “The fact that this agreement as to custody and parenting time did not resolve all the disputes between the parties . . . does not render the partial agreement invalid.” However, it disagreed with defendant’s claim that “because the parties went through the items in the judgment for custody line-by-line at the” hearing, and plaintiff “declined the trial court’s offer to have a trial and permitted her attorney to sign the judgment for custody,” that judgment was “a settlement agreement in and of itself.” The trial court “so strongly recognized that plaintiff did not consent to the judgment for custody that it chose to go through the proposed judgment line-by-line partially in anticipation of her appeal.” Its decision to resolve the remaining issues through counsels’ argument “was not the appropriate means of decision.” The court also agreed with plaintiff that the trial court erred in adopting the referee’s support recommendation because defendant’s income was erroneously calculated. Defendant either “lied to the [IRS] or [he] lied to the trial court, but given [his] admission, either the referee or the trial court should have questioned [him] further about the extent to which his vehicle expenses were for personal purposes in order to calculate [his] income pursuant to the MCSF. Because they did not, they failed to properly apply the MCSF.” As to her request for attorney fees, it “was not necessarily defendant’s fault that an actual discovery order was never entered, nor was it clear from the record that [he] had resisted complying with the discovery that was orally discussed,” and thus, the denial of “attorney fees was not outside the range of reasonable and principled outcomes.” Finally, it “flatly reject[ed]” her contention that the trial judge exhibited bias and should be disqualified.
Ineffective assistance of counsel; People v. Trakhtenberg; People v. Carbin; People v. Seals; People v. Hoag; Padilla v. Kentucky; Strickland v. Washington; Trial strategy; People v. Russell; A substantial defense; Harrington v. Richter; Failure to seek public funds to hire an expert witness; MCL 775.15; People v. Ackley; People v. Kennedy; People v. Carnicom; Failure to advance a novel legal argument; People v. Reed; Shaken baby syndrome/abusive head trauma; Sissoko v. State (MD App.); Cavazos v. Smith; Indigent status; MCR 6.005(B); People v. Arquette
Holding that defendant was not denied the effective assistance of counsel, the court affirmed his conviction of first-degree child abuse, and his sentence of 2 to 15 years. His conviction arose out of head injuries sustained by his girlfriend’s child. He claimed the injuries were the result of a fall during his absence from the room. In a prior appeal, the court affirmed, and the Supreme Court denied leave to appeal. The federal district court eventually denied his motion for habeas relief, but the Sixth Circuit reversed and remanded, directing the district court that if it found prejudice it must conditionally grant the writ of habeas corpus. On remand, the district court directed the court to grant another appeal. On appeal, the court rejected his argument that the trial court erred and that his counsel provided ineffective assistance for failing to seek public funds to hire an expert witness, or alternatively, by failing to seek the assistance of an expert who would have provided services pro bono. It found this case “distinguishable from Ackley, where the defendant’s counsel did nothing to investigate the availability of a suitable expert and utterly failed to inform himself of the critical issues to enable putting forth a defense.” In Ackley, “counsel’s ineptitude deprived the defendant of a defense.” However, “such deficiencies are not present in this case. The record reflects that [counsel] acted prudently under the circumstances, developed a sound trial strategy, and presented a strong defense for defendant.” Further, “even a successful motion for expert funds likely would have provided defendant no guaranty of the ability to pay for” the expert’s trial testimony. As such, even if it were to find that counsel’s “conduct fell below an objective standard of reasonableness,” the court was “not convinced that, but for such purported deficient conduct, the outcome would have been different.”
Ineffective assistance of counsel; Strickland v. Washington; People v. Dendel; Failing to object to testimony; Whether a witness offered improper expert testimony; MRE 701; Failure to make a futile objection; People v. McGhee; Hearsay; MRE 801(c); Matters of trial strategy; People v. Payne; Prejudice; People v. Douglas; People v. Gursky; Failing to object to portions of a video of defendant’s police statement; Relevance; MRE 401; MRE 403; People v. Musser; Alleged vouching by the questioning detective; People v. Tomasik; Failure to object to other acts evidence; MRE 404(b)(1); People v. Crawford; People v. Watson; People v. VanderVliet; Failure to take the necessary steps to have photos admitted into evidence; Irrelevant evidence; MRE 402; Failure to impeach with testimony from a prior civil trial; Decisions about what evidence to present & how to question a witness as matters of trial strategy; People v. Garza; People v. Putman; Effect of the fact a strategy does not work; People v. Pickens; Failure to object to testimony from the victim’s mother about why she filed for divorce from defendant; A witness’s credibility as a material fact; People v. Mills; Whether error was outcome determinative; People v. Lukity; People v. Lyles; Sentencing; Reasonableness; People v. Lockridge; People v. Steanhouse; Proportionality; People v. Milbourn; Mandatory 25-year term under MCL 750.520b(2)(b); Denial of motion for a hearing under People v. Ginther; People v. Franklin
While it found one of defendant’s ineffective assistance of counsel claims had merit, and that the trial court abused its discretion in admitting certain testimony, the court held that he was not entitled to a new trial because he was not prejudiced by the former and the erroneously admitted testimony was not outcome determinative. Thus, it affirmed his CSC I convictions. However, it remanded for resentencing. The court rejected most of his ineffective assistance claims, but found there was “no sound strategic reason why defense counsel would not object to the hearsay of” the mother and the principal of the victim (K, his stepdaughter). Thus, “defense counsel’s performance fell below an objective standard of reasonableness when he failed to object to these witnesses’ accounts of what” K told them. But, in light of “the strength of the untainted evidence, particularly the relative force of” K’s testimony and defendant’s testimony, the fact that K “testified and was subject to cross-examination, and the fact that the challenged testimony corroborated rather than elaborated upon” her testimony, the court concluded that there was “no ‘reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.’” It also held that the trial court abused its discretion in denying defense counsel’s relevance objection to the testimony by K’s mother about why she filed for divorce and admitting her testimony that she did so “because, ‘[m]y daughter disclosed to me that [defendant] was sexually abusing her.’” The court concluded that a “person’s opinion that another is guilty of the allegations made against him, standing alone, has no probative value whatsoever, and it is irrelevant for that reason.” It also violated the prohibition on “one witness testifying as to the credibility of” another, and it was inadmissible as a matter of law. However, defendant failed to show that it was more probable than not that the error was outcome determinative given that “the weight and strength of the untainted evidence in this case is substantial, defendant’s testimony damaged his own credibility, and defense counsel challenged” K’s mother’s motivation for filing for divorce by suggesting it was an effort to improve her chances of retaining her parental rights. But the court agreed he was entitled to resentencing because the trial court did not explain why its five-year upward departure from the mandatory minimum was reasonable.
Sentencing; Whether the sentencing court properly considered defendant’s refusal to admit guilt when resentencing him; People v. Steanhouse; Reasonableness; Principle of proportionality; People v. Schrauben; People v. Rosa; People v. Payne; Whether the nonscorable conviction affected his sentencing guidelines range; 10-year gap rule in MCL 777.50; People v. Butler; Operating a motor vehicle while under the influence of alcohol (OWIL) causing death; Prior record variables (PRVs)
Holding that there was no scoring error or reliance on defendant’s refusal to admit guilt, the court affirmed his sentences. He was convicted of reckless driving causing death and OWIL causing death. He was originally sentenced to 9 to 15 years each for both convictions. After a remand, he was resentenced to 8 to 15 years each for both convictions. He argued that the trial court abused its discretion when it resentenced him because it improperly considered his refusal to admit guilt and failed to consider the fact that his guidelines range only increased due to the discovery of a minor, nonscorable conviction. His guidelines range at the time of his resentencing was 50 to 100 months. The trial court resentenced him to a minimum term of 96 months, which was within the guidelines range. The court must affirm his “sentences unless there was a scoring error or the trial court relied on inaccurate information.” Defendant did not assert that a scoring error occurred. He actually stated that he “[took] responsibility for killing [the victim]” at his resentencing hearing. Thus, it did not appear that he was maintaining his innocence at the time of that hearing. Second, the judge did not try to convince him to admit guilt at any point during resentencing. Third, there was no appearance that if he had admitted guilt his sentence would have been less severe. The trial court actually decreased his sentence from the original one imposed, in part, because it gave “a little bit of credence to [the fact] that [defendant is] turning it around” by completing classes to improve himself while incarcerated. It also noted that it saw some remorse at his resentencing. Thus, it did not improperly consider his refusal to admit guilt. Defendant also argued that it “should have considered the fact that his guidelines range was only increased in the time between his original sentencing and his resentencing because of a newly discovered, minor conviction,” driving while license suspended (DWLS) that is not scorable under the PRVs. This affected his guidelines range because of the “10-year gap” rule found in MCL 777.50. The discovery of his DWLS “conviction meant that there was no longer a 10-year period of time during which defendant went without a conviction, meaning that several of” his older convictions could be included in calculating his PRV score. Under Butler, it was proper to consider his DWLS “conviction when calculating his PRV score, and the sentencing court was under no obligation to consider the severity of” his DWLS conviction in sentencing him. Affirmed.
Sentencing; Whether the federal three strikes statute (18 USC § 3559(c)) mandated a life sentence for defendant’s kidnapping & sexual abuse convictions; United States v. Johnson (4th Cir.); § 3559(c)(2)(F)(i)–(ii); Whether his 2002 conviction for assault with intent to do great bodily harm less than murder (AWIGBH) under MCL 750.84 qualified as a “serious violent felony” under the “elements” clause of the three strikes statute; § 3559(c)(2)(F)(ii); Armed Career Criminal Act (ACCA); 18 USC § 924(e); Johnson v. United States (Johnson I); United States v. Ford; United States v. Harris; Raybon v. United States
[This appeal was from the WD-MI.] In an issue of first impression, the court held that the elements clause of the three strikes statute requires the same showing of Johnson I “violent force” required under the elements clause of the ACCA. Further, MCL 750.84 qualifies as a “serious violent felony” under the three strikes statute. Defendant-Ruska pled guilty to one count of kidnapping and three counts of sexual abuse. The court sentenced him to life in prison under the three strikes statute. He appealed his sentence, arguing that the district court erred by finding that his 2002 MCL 750.84 conviction for AWIGBH qualified as a “serious violent felony” under the elements clause of the three strikes statute because MCL 750.84 “does not have ‘as an element, the use, attempted use, or threatened use of physical force . . . .’” Applying the categorical approach, the court agreed with the parties that the answer here was the same as under the identically worded elements clause of the ACCA—a “‘force capable of causing physical pain or injury to another person.’” The court for the first time held that the definition of "violent felony" in the ACCA should be applied as the definition of a "serious violent felony" in the three strikes statute. The question then became whether AWIGBH under MCL 750.84 “has as an element, the use, attempted use, or threatened use of Johnson I ‘violent force.’” The court noted that it had previously reached this issue in Raybon and held that MCL 750.84 qualified as a “crime of violence” under USSG § 4B1.2(a)(1)’s elements clause. Thus, it held that MCL 750.84 “qualifies as a serious violent felony under the three strikes statute.” Affirmed.
Divorce; Modification of a settlement agreement; Calculation of annual household expenses; Actual defined; Whether the trial court included a “double set-off” for pension benefits received; Limitation on the scope of discovery
Rejecting plaintiff-ex-wife’s claim that the trial court erred in calculating her annual household expenses, and that the calculations gave defendant-ex-husband a “double credit” for her pension income, the court affirmed the order modifying his obligation to pay her living expenses under their divorce settlement agreement (SA). It also held that the trial court did not abuse its discretion in limiting the scope of discovery to his 2016 and 2017 income. Under the SA, defendant had “to continue making deposits into a joint bank account (household account)” for payment toward plaintiff’s living expenses. His annual obligation was $35,000. They agreed that once she began drawing monthly benefits from his pensions, there was to be a setoff of 90% of her pension payments against his obligation. When he reached the age of 67, he could petition the trial court to reevaluate his obligation. After a hearing, it found that his “new annual household account obligation was $12,521.71.” While food, entertainment, and clothing costs constituted “‘actual living costs’ and thus possibly could have been considered” in reevaluating the household account obligation, plaintiff did not offer evidence of these costs at the hearing. She did not include them “in the exhibit listing her household expenses,” or offer “any other evidence from which the trial court could have made findings as to how much of her income she spends on those items.” Thus, the trial court did not err in “not accounting for those costs in its reevaluation.” As to her claim that it “erred by not including future health insurance increases in” its calculations, the trial court noted that while she “requested the consideration of future expenses, the parties’ agreement did not authorize such considerations.” The SA made “no reference to projected future expenses.” Thus, they were “beyond the scope of the parties’ reevaluation criteria, and the trial court did not clearly err in rejecting” her request to consider them. It also correctly noted that “legal costs are not ‘commonplace expenditures routinely incurred in the ordinary course of life.’” There was also nothing improper about the trial court’s 90% reduction for plaintiff’s pension income, as the SA mandated it. “Regardless of how the trial court calculated the reevaluated obligation, ultimately that amount would have been further reduced by 90% of" her pension income.
Dismissal of a claim for personal protection insurance benefits on the basis of fraud under MCL 500.3173a(2); Whether plaintiff was afforded an opportunity to respond; Principle that a court speaks through its orders & judgments; Tiedman v. Tiedman; Discretionary authority under MCR 2.401(B) to enter scheduling orders; Kemerko Clawson LLC v. RXIV Inc.
The court held that the trial court abused its discretion by not reconsidering its ruling and setting aside its dismissal order because the record clearly showed that it mistakenly held the hearing on 9/1/17, when it had entered a scheduling order that set the deadlines for plaintiff’s response and the hearing on defendant-State Farm’s dispositive motions for 11/17. Thus, it reversed and remanded “to enable plaintiff to present her response to State Farm’s motion and to provide her an opportunity to be heard.” It declined to consider or rule on the merits of her claims or State Farm’s defenses in its motion to dismiss. Plaintiff argued that the trial court erred in granting State Farm’s motion to dismiss because she was not afforded an opportunity to respond because it heard the motion on 9/1/17, when its scheduling order specified that she had to respond to State Farm’s motion by 11/7/17, and the hearing date would be on 11/21/17. The court agreed. The trial court “entered an order after State Farm filed its dispositive motions against the plaintiffs that specified the date by which plaintiffs could respond to the motions and specified the date on which the trial court would hear the motions.” The record reflected that “plaintiff relied on the trial court’s order and in doing so she refrained from filing a response to State Farm’s motion to dismiss and anticipated filing her opposition according to the trial court’s order. Despite" plaintiff having obeyed the trial court’s order, it heard State Farm’s motion, found that “she did not oppose it and entered an order dismissing her claims.” The record showed that “plaintiff’s counsel, when asked to concur in the relief requested by State Farm, declined to concur and thereby indicated plaintiff’s opposition to the motion. At the hearing on State Farm’s motion, the trial court made neither findings nor stated conclusions of law.” Further, the record reflected that “plaintiff promptly sought reconsideration and the setting aside of the trial court’s order dismissing her claims.” She explained that she relied on the “scheduling order, only to be denied her opportunity to present her case and evidence to the trial court in opposition to State Farm’s motion.” The trial court denied her motion, stating “that she presented the same issues it already ruled on despite the fact that she never had the opportunity to present her opposition.”
No-fault benefits; The No-Fault Act (MCL 500.3101 et seq.); Whether plaintiff violated the fraud provision of her insurance policy; Bahri v. IDS Prop. Cas. Ins. Co.; The law of the case doctrine; Kasben v. Hoffman; Grievance Adm’r v. Lopatin; Bruce Twp. v. Gout (After Remand)
The court held that because the law of the case doctrine controlled, plaintiff’s claims were without merit. Also, even if it did not foreclose the relief she sought, the court would still affirm the dismissal of her claims because the trial court correctly held that plaintiff committed fraud in relation to her attempt to collect no-fault benefits and uninsured motorist benefits from defendant-Farm Bureau. Thus, the trial court did not err by granting summary disposition to Farm Bureau and dismissing plaintiff’s claims with prejudice. In a prior order, the court “directed the trial court to dismiss all of plaintiff’s claims because the trial court made a finding of fraud and Farm Bureau’s insurance policy’s fraud provision required dismissal of all of” her claims against Farm Bureau. She did not and could not argue in this appeal “that an intervening change of law occurred.” There had been no “intervening change in law and the facts of the case” had not changed since the court’s prior order. Further, her argument that the trial court erred by finding that she violated the fraud provision of her policy lacked merit. As the court “previously found, the fraud provisions of the insurance policy issued by Farm Bureau lack ambiguity.” The record showed that Farm Bureau offered “the trial court admissible evidence that established plaintiff’s fraudulent claims for benefits.” The court held that this case was not different from Bahri. “Even when viewed in a light most favorable to plaintiff, the evidence presented the trial court established that plaintiff’s claims for no-fault benefits were based upon fraud and false swearing. Reasonable minds could not differ that plaintiff engaged in fraud for the purpose of recovering no-fault benefits.” As a result, “Farm Bureau had the contractual right to void the policy and deny her no-fault benefits.” Affirmed.
Action by healthcare providers for no-fault benefits; Covenant Med. Ctr.., Inc. v. State Farm Mut. Auto. Ins. Co.; Leave to amend; Weymers v. Khera; MCR 2.118(A)(2); Boylan v. Fifty Eight, LLC; PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.; Whether the anti-assignment clause barred the assignment of rights; Rory v. Continental Ins. Co.; First of Am. Bank v. Thompson; Burkhardt v. Bailey; Employers Mut. Liab. Ins. Co. v. Michigan Mut. Auto Ins. Co.; Jawad A Shah, MD, PC v. State Farm Mut. Auto Ins. Co.; Roger Williams Ins. Co. v. Carrington; Binding effect of Michigan Supreme Court decisions; Associated Builders & Contractors v. City of Lansing; Waiver; Walters v. Nadell; Relation back of amended pleadings; MCR 2.118(D); Principle that there is no relation back of supplemental pleadings or to the addition of new parties; Grist v. Upjohn Co.; MCR 2.118(E); Miller v. Chapman Contracting; One-year-back rule; MCL 500.3145(1); Joseph v. Auto Club Ins. Ass’n; Devillers v. Auto Club Ins. Ass’n; Principle that an assignee stands in the shoes of the assignor; Professional Rehab Assocs. v. State Farm Mut. Auto. Ins. Co.; Ward v. Alpine Twp.; Jones v. Chambers
Applying Shah, the court found that the trial court erred in ruling that the insurance policy’s anti-assignment clause was enforceable against the plaintiffs-healthcare providers. It violated Michigan’s public policy by preventing the post-loss assignment of an accrued cause of action. But the proposed pleading would not relate back because it was a supplemental pleading and added a new party. Further, the proposed pleadings were legally insufficient to state a viable cause of action. In these consolidated appeals plaintiffs challenged the circuit court’s decision denying their motions to amend their complaints to comply with Covenant. They argued that the trial court erred in finding that defendant-State Farm’s anti-assignment clause barred an estate’s assignment of rights. The court agreed. The policy stated, ‘‘No assignment of benefits or other transfer of rights is binding upon us [State Farm] unless approved by us.” This language clearly prohibited “the assigning of benefits or the transfer of rights to anyone without State Farm’s approval.” It was undisputed that State Farm did not approve the assignments to the healthcare providers. They contended that “the anti-assignment clause did not apply to the decedent because he was not a ‘named insured’ under the policy, the decedent’s benefits derived from statute and not contract, and the clause violates public policy.” However, the decedent’s benefits derived from both MCL 500.3115(1)(a) and contract. Given that the policy language was clear and that the contract applied “to this decedent, the clause must be enforced against the healthcare providers, who as assignees stand in the decedent’s position, unless the clause would violate the law or public policy, which it does.” The court concluded that the assignment, which occurred after the loss and accrual of the claim, was “valid in so far that it sought only to assign past and present benefits and not those in the future, in accord with MCL 500.3143.” But the trial court did not err in finding that plaintiffs’ amendments were supplemental pleadings that did not relate back to the date of the original complaint, and the court held that their amendments were barred by the one-year-back rule. Affirmed.
Defamation; Mitan v. Campbell; Hope-Jackson v. Washington; Ghanam v. Does; Principle that the substantial truth of a statement is an absolute defense to a defamation claim; Collins v. Detroit Free Press, Inc.; Principle that a statement of opinion is not automatically shielded from an action for defamation because expressions of opinion may often imply an assertion of objective fact; Smith v. Anonymous Joint Enter.; Protected speech; Sarkar v. Doe; Fisher v. Detroit Free Press, Inc.; Milkovich v. Lorain Journal Co.; Intentional infliction of emotional distress; Cotton v. Banks; Hayley v. Allstate Ins. Co.; Lewis v. LeGrow; Mino v. Clio Sch. Dist.; Intentional interference with business expectancy claim; Lakeshore Cmty. Hosp. v. Perry; Dalley v. Dykema Gossett, PLLC; Civil conspiracy; Admiral Ins. Co. v. Columbia Cas. Ins. Co.; Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n
The court held that the trial court did not err by granting summary disposition for defendants-Bloem and the Feltons. Plaintiff-attorney and adjunct professor sued defendants alleging libel and slander, false light, intentional infliction of emotion distress (IIED), and civil conspiracy, based on media coverage of the parties’ dispute over a Twitter account that parodied plaintiff. On appeal, the court rejected his argument that the trial court erred by granting summary disposition for Bloem on the defamation claim. “Viewed in context, Bloem’s comment could not be reasonably interpreted as an assertion of fact.” Further, the trial court did not err by “relying on Milkovich, and it correctly applied the cited rule of law to grant summary disposition of the defamation claim relating to plaintiff’s teaching style.” It also rejected his claim that he presented sufficient evidence to support his claims of IIED as to all defendants, noting that the trial court correctly determined that he “failed to create a genuine issue of material fact whether Bloem’s conduct was extreme and outrageous.” It found that “the recording and sharing of a rant on a public sidewalk cannot reasonably be regarded as extreme and outrageous behavior.” The court next rejected his contention that the trial court erred by granting the Feltons summary disposition of his intentional interference with business expectancy claim. “The Felton defendants merely shared with others plaintiff’s own public statements. Regardless of their intent, defendants did not engage in unlawful or unethical behavior.” Finally, the court concluded that because the trial court “properly dismissed all of these claims and no underlying tort exists in this case, [it] also properly dismissed the civil conspiracy claim.” Affirmed.
Third-party auto negligence action; The No-Fault Act (MCL 500.3101 et seq.); Recovery of noneconomic damages upon showing a “serious impairment of a body function”; MCL 500.3135(1); McCormick v. Carrier; An “objectively manifested” impairment; Patrick v. Turkelson; General ability to lead one’s normal life; Caiger v. Oakley; Self-imposed restrictions; McDanield v. Hemker; Whether reasonable minds could differ as to the conclusions to be drawn from the evidence; Dextrom v. Wexford Cnty.
Holding that there was no objectively manifested impairment of an important body function, and that plaintiff did not show that any accident-related impairment changed her lifestyle, the court affirmed the trial court’s order granting defendant-Krieger summary disposition. Plaintiff was a passenger in one of the vehicles involved in the auto accident in 5/16 that gave rise to the case. Krieger was the driver of the other vehicle involved. “When plaintiff went to the hospital immediately following the accident, her CT scans and x-rays were negative for any fractures or bleeds. She was told that nothing was wrong with her, and was discharged home after half an hour. She let a month pass before meeting with her primary care physician” (G), who indicated that her “right back pain was chronic, and she had it for years.” He did not diagnose her “with any new conditions, but referred her to physical therapy.” The court noted that her “post-accident complaints of pain and suffering mirror her preaccident complaints.” Further, four “independent medical evaluations by physicians in separate fields and specialties concluded that plaintiff was not disabled and that her symptoms were not caused by the accident.” The only evidence that might support her position was G’s “Attending Physician’s Report” and “Disability Certificate.” However, he did not sign these documents until 3/18 and they were contradicted by his “prior, post-accident diagnosis of plaintiff’s back pain, which described the pain as chronic, as opposed to traumatic. Considering this evidence in a light most favorable to plaintiff, reasonable minds could not differ as to the conclusions to be drawn from the evidence.” As to plaintiff’s general ability to lead her normal life, the court agreed with the trial court that she “had restrictions before the accident, and her restrictions were ‘about the same’ after the accident.” While her outpatient rehabilitation medical records listed many things that she “had difficulty doing after the accident, as well as things she” was no longer able to do, the evidence showed that these were “the same things she had difficulty doing before the accident. Any additional restrictions” she faced were those she “imposed on herself and ‘do not establish the extent of any residual impairment.’”
Dismissal as moot; People v. Richmond; Whether respondent was a “person requiring treatment” under MCL 330.1401(1)(a) & (c)
Holding that there was no relief that may be granted, the court dismissed this appeal as moot. Respondent argued that the probate court clearly erred when it determined that he was a “person requiring treatment” under MCL 330.1401(1)(a) and (c). This issue was moot, however, and the court declined to address it. “Specifically, the probate court’s order for respondent to undergo up to 90 days of mental health treatment expired in November 2018. One of respondent’s mental health treatment providers petitioned for a second or continuing treatment order, but in February 2019, the probate court granted a motion to withdraw the petition.” Thus, the initial order for mental health treatment had expired and there was currently no petition for a second or continuing mental health order.