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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Insurance coverage dispute; Policy contract interpretation; Unaddressed issues of fact & law precluding complete summary disposition
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 80146 in the 9/15/23 edition) to the extent that it directed entry of judgment for plaintiff-Village, and remanded to the trial court for further proceedings. It concluded that the “Court of Appeals erred to the extent that its opinion remanded to the circuit court with instructions to enter judgment for plaintiff in full, precluding consideration of issues not yet decided.” In this breach of contract action, plaintiff sought “insurance coverage for judgments [it] paid arising out of its decision to end retiree healthcare benefits for some former employees.” In moving for partial summary disposition, defendant “argued, among other things, that there was no coverage because plaintiff failed to notify defendant of the wrongful acts or claims as allegedly required by the policy. However, the trial court did not address whether this provision applied to plaintiff’s claim in its oral ruling denying defendant’s motion. The parties did not raise it in their briefing in the Court of Appeals. And it was not addressed in the Court of Appeals’ order granting leave to appeal, . . . or its subsequent opinion granting summary disposition and ordering judgment” for plaintiff. On appeal to the court, defendant also argued in its briefing “that plaintiff had a duty to cooperate with it in investigating and defending such suits and obtaining consent to settle. This issue was not raised in the trial court or considered by the trial court or the Court of Appeals.” Thus, the court concluded that, “on the present record, there remain unaddressed issues of fact and law that preclude complete summary disposition for plaintiff at this time.” It directed the trial court on remand to “consider any unaddressed issues of fact and law that have not been abandoned or litigated.” The court denied the application for leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented. Concurring in part and dissenting in part, Justice Zahra agreed “with the majority that the Court of Appeals improperly reversed and remanded for entry of judgment for” plaintiff. He disagreed with its “decision not to squarely address the more significant question presented in this case[.]” Thus, he would grant the application.
Registration under the Sex Offenders Registration Act (SORA); The SORA’s “recapture” provision; MCL 28.724(1); Motion to correct an invalid sentence; MCR 6.429(B); Conditions incident to a sentence; MCR 6.427(9); Retroactive application of SORA; People v Lee, People v Galloway, & People v Nunez; Ex post facto punishment; People v Betts & People v Lymon; The procedural requirements outlined in MCL 28.724(5); Mootness
On second remand from the Supreme Court, the court held that defendant could not be obligated to register under SORA and recommended that the Supreme Court dismiss his appeal as moot. He was convicted of OWI-III and possession of less than 25 grams of a controlled substance. As part of his probation, he was ordered to register as a sex offender under SORA’s “recapture” provision. In a prior appeal, the court disagreed with his contention that this amounted to an unconstitutional ex post facto punishment and affirmed. But the Supreme Court vacated and remanded for reconsideration in light of Betts. On remand, the court again affirmed the registration requirement. Before the Supreme Court could weigh in again, the prosecution moved for remand to the trial court to determine whether defendant could be required to comply with SORA. It noted he violated probation and was resentenced, but his new sentence did not reference SORA. He was subsequently released without ever registering. In response to the prosecution’s motion, he asserted “the Supreme Court should dismiss his appeal as moot because he cannot be required to comply with SORA.” The Supreme Court again remanded. The court now held that defendant “cannot be obligated to register under SORA under the facts of this case, which include that the [trial] court did not follow the appropriate procedures to require him to register under SORA, [it] did not place the registration requirement on the judgment of sentence, [he] never registered as a sex offender under SORA, he was discharged from his sentence nearly three years ago, the order of probation was revoked and no longer has any legal effect, and the time to amend the judgment of sentence has long expired.”
Motion in limine as to references to complainants as victims; People v Wisniewski; “Victim” as defined in the CSC context (MCL 750.520a(s)) & in the Crime Victim’s Rights Act (CVRA) (MCL 780.752(1)(m)(i)); A defendant’s presumption of innocence; Other acts evidence; MCL 768.27b(1); Limits on cross-examination; Relevance; MRE 401; Exclusion under MRE 403; Harmless error; MCL 769.26
The court held that the trial court did not (1) abuse its discretion in denying defendant’s motion in limine to preclude references to two complainants as “victims” or (2) err in limiting his cross-examination regarding other acts evidence. Thus, it affirmed his convictions of discharging a firearm in or at a building causing injury and felony-firearm. The case arose from the shooting of his former girlfriend, C, and her friend K. As to the trial court allowing references to them as victims, the court in Wisniewski “recently recognized that ‘no published Michigan decision or other authority . . . precludes the prosecution from referring to’” a complainant as a victim. The court noted here that unlike “cases involving CSC charges, the CVRA does not acknowledge that the term victim applies to an individual making allegations. Instead, it applies to an individual who suffered from the commission of a crime, which the statute also notes, happens ‘upon conviction.’” The court further noted “that such references to complainants as victims prior to a finding of guilt potentially implicates a defendant’s presumption of innocence. The trial court noted the potential impact on defendant’s presumption of innocence when it denied [his] motion, and stated it would instruct the jury accordingly, which it subsequently did. In addition to this instruction, [it] also instructed the jury that the trial attorneys’ statements, arguments, and questions to witnesses were not evidence to be considered. Thus, any potential error was cured by the trial court’s jury instructions.” And although the “victim” term arose with some frequency during the trial testimony, the court was unconvinced that these references “over the course of a six-day jury trial, which produced over 1,000 transcript pages, amounts to an abuse of discretion on the part of the trial court.” The court further noted that the jury found defendant was not guilty of AWIM “or its lesser included offenses, along with an array of related felony-firearm charges.” In light of this, his “argument that the repeated references to [C and K] as victims undermined his presumption of innocence is unavailing.” As to the limits on his cross-examination of C, even assuming that his “sought-after testimony was relevant, the trial court properly excluded it under MRE 403.” And he could not show that any alleged error was outcome-determinative.
The Child Custody Act (CCA) (MCL 722.21 et seq.); Custody; Defendant-guardian’s status; Heltzel v Heltzel; Best-interests; MCL 722.23; Burden of proof; Factor (i); Joint custody; MCL 722.26a(1)(b)
The court concluded that the trial court erred by finding defendant-guardian “had to prevail on every best-interest factor, by failing to properly consider factor (i), and by failing to make the required findings under MCL 722.26a(1)(b).” Thus, it vacated and remanded because “the trial court must analyze the considerations outlined in MCL 722.26a(1) and all the best-interest factors delineated under MCL 722.23 by considering up-to-date information, and must rearticulate and explain its reasons for granting or denying” plaintiff-father’s request for joint physical and legal custody. Defendant (the mother and temporary legal guardian of the children’s incapacitated mother, EH) argued that, “as EH’s guardian, she was statutorily required to defend EH’s parental interests and thus the trial court clearly erred by determining that [she] was a third party custodian and applying the parental-presumption doctrine.” The court found “no merit in her argument on appeal. Generally, EH, as the children’s biological mother, would have been a proper defendant in plaintiff’s paternity action.” But because “EH was legally incapacitated, plaintiff commenced the paternity action against defendant as EH’s temporary guardian. Once the trial court adjudged plaintiff to be the children’s legal and biological father and awarded sole legal and physical custody to defendant, [she] had a right to defend plaintiff’s custody dispute and present evidence that the children’s best interests were served by the continued placement of the children with” her. But until she moved for reconsideration of the trial court’s order, she claimed “it was in the children’s best interests that she have sole legal and physical custody as a third party.” She did not argue “that EH should have custody,” or that she was “simply advocating on behalf of EH as her guardian.” While EH was involved in the children’s lives and had significantly recovered, EH remained legally incapacitated and under guardianship. “Given defendant’s status as a third-party custodian and EH’s incapacity to exercise custody of the children herself, the trial court’s application of the parental-presumption doctrine” was not erroneous. Defendant further argued “that even if she was a third-party custodian, the trial court erred by holding that she had to prevail on each and every” best-interest factor to meet her clear-and-convincing-evidence burden, by failing to determine the children’s reasonable preferences, and by failing to determine whether the parties could cooperate as to joint legal custody. The court agreed, noting that neither it nor the Supreme Court have ruled that Heltzel “requires the third party to prevail clearly and convincingly on each and every one of the 12 best-interest factors in order to be awarded custody.” The trial court erred by finding defendant had to prevail on every best-interest factor to show she “met the clear-and-convincing evidence burden.” As to factor (i), the court found “the children were eight years old and six years old, respectively, at the conclusion of the evidentiary hearing, and nothing in the record suggested that [they] could not voice their individual reasonable preferences. The trial court’s failure to evaluate” their preferences was erroneous. The court also held that the “trial court failed to comply with MCL 722.26a(1)(b),” and this omission constituted clear legal error.
Auto negligence; Statutory owner liability; Wrongful death; Factual dispute over the operability of a vehicle’s turn signals; Comparative fault; Duty to anticipate that another driver would attempt to pass on the right; Distinguishing Briggs v Knapp; Sanctions for the spoliation of records
In an order in lieu of granting leave to appeal, the court vacated in part and reversed in part the Court of Appeals judgment (see eJournal # 81015 in the 2/21/24 edition), vacated the trial court’s order granting plaintiff’s motion for spoliation sanctions, and remanded to the trial court for further proceedings. The court held that the Court of Appeals erred in vacating “the trial court’s order denying defendant’s motion for summary disposition under MCR 2.116(C)(10). Genuine issues of material fact exist that must be resolved by a fact-finder.” The case arose from a fatal collision between the car driven by plaintiff’s decedent and the truck operated by defendant-Neal in the course of his employment with defendant-NSS Construction. The court concluded that “reasonable minds could differ on whether the truck’s turn signals were functioning properly at the time of the incident.” The court found that “the Court of Appeals majority improperly disregarded the findings of a post-collision investigation and, as a result, failed to view the evidence in the light most favorable to plaintiff as the nonmoving party.” The court further noted that “the factual dispute over the operability of the truck’s turn signals is material to plaintiff’s claims of negligence, statutory owner liability, and wrongful death.” In addition, it found that the trial court “correctly denied summary disposition on the issue of comparative fault.” And it disagreed “with defendant’s alternative argument for affirming the Court of Appeals—that Neal had no legal duty to anticipate that the decedent would attempt to pass on the right.” The court concluded that Briggs was distinguishable. “Unlike that case, reasonable minds could differ here on whether Neal should have perceived the decedent’s vehicle.” Whether that “vehicle should have been apparent to Neal as it approached on the right, and after Neal had passed the vehicle on the left seconds earlier, is a determination properly left to a fact-finder.” Because the trial court did not err in denying defendant’s summary disposition motion, the court reversed the Court of Appeals judgment to the contrary. As to plaintiff’s argument “that the Court of Appeals erred by vacating the trial court’s award of sanctions against defendant for the spoliation of” records, the court found that because “the trial court did not make the necessary findings to impose sanctions for the spoliation of employment and maintenance records, it was unnecessary for the Court of Appeals to resolve the merits of this issue.” Thus, it vacated “Parts II(A)(1), (2), and (3) of the Court of Appeals judgment, and” remanded for the “trial court to reconsider its ruling.”
Medical malpractice; Danhoff v Fahim; Expert testimony; MRE 702; MCL 600.2955(1); Reliability; Edry v Adelman; Damages; Loss of future earnings & services under the Wrongful Death Act (WDA); MCL 600.2921; MCL 600.2922(6); Denney v Kent Cnty Rd Comm’n; Daher v Prime Healthcare Servs-Garden City, LLC; A trial court’s discretion as to new evidence in a motion for reconsideration; Yoost v Caspari
On remand from the Supreme Court, the court held that the trial court erred in “failing to grant defendants’ partial motion for partial summary disposition related to plaintiff’s claims of loss of financial support and services.” It remanded for the trial court to reconsider the issues as to expert testimony on causation. Plaintiff sued defendants for medical malpractice due to the death of the decedent following her birth by cesarean section (C-section). Defendants moved for partial summary disposition of plaintiff’s claims related to the timing of the C-section on the basis that there were no scientific or factual bases for the causation opinions of plaintiff’s experts. They also moved for summary disposition of the claims of loss of financial support and services The trial court found “plaintiff had provided sufficient evidence regarding proximate cause for the issue of whether the prolonged labor caused the excessive uterine tone and contributed to” the decedent’s injuries. In a prior appeal, the court reversed on the basis that the earning potential was too speculative, and also held that the trial court did not err by finding that the proffered expert testimonies were admissible. The Supreme Court remanded for reconsideration of these issues in light of Daher. On remand, the court found that the “WDA provides for ‘damages for the loss of financial support,’ MCL 600.2922(6), and there is no other provision allowing for the recovery of household services without such a showing of support.” As to the expert testimony, the trial court’s “limited consideration of the proposed testimony under MRE 702 and MCL 600.2955 requires remand for” a determination as to “whether the proposed opinions were reliable.” The court noted that a “trial court has discretion to decline to consider new evidence submitted with a motion for reconsideration that could have been presented with the initial motion.” However, such materials may “be relevant on remand, with the trial court more properly positioned to make factual findings regarding the reliability of the expert opinions under the proper standards. On remand, the trial court must reexamine the plaintiff’s experts’ testimony under MCL 600.2955 and MRE 702, and in light of Danhoff, to determine whether it can meet the standard of reliability despite the lack of scientific research.” If it finds, “after considering all of the appropriate factors, that the opinions are reliable and admissible, it must then determine whether plaintiff has demonstrated a genuine question of material fact on causation.” Reversed and remanded.
Trip & fall on a metal stub paved into & protruding from a sidewalk; Governmental immunity; MCL 691.1407(1); The sidewalk exception; MCL 691.1402a; Municipalities’ affirmative duty to maintain public sidewalks in reasonable repair; Whether the metal stub was a “defect” or “dangerous condition” “in the sidewalk” for purposes of MCL 691.1402a(3); “Sidewalk” (MCL 691.1401(f)); Distinguishing LaMeau v Royal Oak
In an order in lieu of granting leave to appeal, the court reversed Part II(B)(2) of the Court of Appeals judgment (see eJournal # 80450 in the 11/15/23 edition) and remanded to the trial court for further proceedings. It held that the metal stub at issue in this case “was a sidewalk defect under MCL 691.1402a.” Plaintiff was walking on “the sidewalk when he tripped over a circular metal stub that was 5 inches high and 4 inches wide. The metal stub was paved into, and protruding from, the sidewalk.” The case asked the court to decide “whether the metal stub was a ‘defect’ or ‘dangerous condition’ ‘in the sidewalk’ for purposes of MCL 691.1402a(3). In short, the answer is yes. Because the stub measured 5 inches tall, it created a ‘vertical discontinuity defect of 2 inches or more.’” In addition, it was “embedded into the sidewalk’s concrete in the middle of the pedestrian pathway. Therefore, it created a ‘dangerous condition in the sidewalk itself.’” Defendant-city argued that MCL 691.1401(f)’s definition of a sidewalk “as a ‘paved public sidewalk’ limits its liability to defects in the sidewalk’s pavement. But the language the Legislature used in MCL 691.1402a(3)—'vertical discontinuity . . . in the sidewalk’ and ‘dangerous condition in the sidewalk itself’—does not limit its application to the pavement itself. The reference to ‘a paved public sidewalk’ in MCL 691.1401(f) merely serves to limit municipalities’ liability to paved public sidewalks, as opposed to unpaved or private sidewalks. This specific fact pattern distinguishes the present case from the precedent relied upon by the Court of Appeals majority and places the metal stub at issue squarely within the scope of MCL 691.1402a(3). The Court of Appeals majority erred by focusing its analysis on factually distinguishable precedents, rather than examining the statutory language to ascertain and effectuate the Legislature’s intent.” The court found that recognizing “this unique hazard as actionable under MCL 691.1402a(3) not only aligns with the Legislature’s intent to impose liability for sidewalk defects but also underscores the city’s failure to address a safety risk embedded in the middle of the pedestrian pathway.” The court added that this conclusion was consistent with its holding in LaMeau. The trial court correctly denied the city’s summary disposition motion under MCR 2.116(C)(7). Concurring, Justice Welch wrote “separately only to say that the object at issue in this case, as shown in” an image included in the order, was “plainly a ‘defect in the sidewalk’ and certainly the type of hazard that the Legislature intended to guard against when it enacted MCL 691.1402a.” Dissenting, Justice Zahra found that the Court of Appeals correctly concluded that the signpost stub “at issue was not part of the sidewalk itself, and therefore the sidewalk exception to governmental immunity” did not apply. He would deny leave to appeal because he agreed “with the Court of Appeals that defendant is entitled to summary disposition[.]”
Appointment of a guardian of an incapacitated individual; MCL 700.5306(1); In re Guardianship of Malloy; “Incapacitated individual”; MCL 700.1105(a); Effect of an incapacitated person’s patient advocate designation (PAD); MCL 700.5306(2) & (5); Selection process under MCL 700.5313; Whether the requested person is “suitable & willing to serve”; MCL 700.5306a(1)(aa); Best interests; Durable power of attorney (DPOA)
The court held that the trial court did not abuse its discretion by finding that the appointment of a guardian other than appellant-CY’s son (appellee-Jukowski) was vital to ensuring CY’s continuing care and supervision, by selecting a professional guardian, or by doing so despite the existence of CY’s PAD. Appellees-CY’s daughters successfully sought the appointment of a guardian of an incapacitated individual in the probate court. They alleged CY suffered from dementia and cognitive issues, and claimed Jukowski, as the self-appointed power of attorney, was not acting in her best interests. On appeal, the court rejected CY’s argument that the trial court had no basis to supplant Jukowski with a professional guardian. “The appointment of a guardian other than Jukowski was critical to ensure CY’s well-being because she lacked adequate nutrition, supervision, and hygiene while under [his] care.” The record showed “CY suffered from significant weight loss, she was unable to ask for food, she suffered from poor hygiene, including soiled diapers, and she had ‘eloped’ from her apartment on one occasion after Jukowski acquired powers as her patient advocate and medical DPOA.” Although he “described his withholding of CY’s medical information as a means of respecting” her privacy, her “‘health and well-being has declined to the extent that she requires around-the-clock care[,]’ indicating further involvement from the daughters mattered.” The court found the “trial court properly faulted Jukowski’s ‘laissez faire’ approach to CY’s care because she was a 93-year-old woman who was experiencing notable memory issues and cognitive decline.” Further, his decision to employ “an untrained 70-year-old man as CY’s primary caregiver was unwise in light of CY’s extensive ailments.” The court also rejected CY’s contention that the trial court abused its discretion by appointing a professional guardian without expressly stating whether it was in her best interests to do so. It found “the trial court explained how the appointment of a professional guardian was in CY’s best interests, [and] acted in accordance with MCL 700.5106(2)(a).” Finally, it rejected CY’s claim that the trial court appointed a professional guardian without adequately considering whether the PAD she signed sufficiently satisfied her needs. “[T]he statutory scheme for court-appointed guardianships contemplates that the trial court could appoint a person other than Jukowski to serve as the guardian for an ‘incapacitated person’ such as CY, even though” she made a PAD. Affirmed.
Denial of disability benefits & supplemental security income (SSI); “Disabled” under the Social Security Act; 42 USC § 423(a)(1)(E); The administrative law judge’s (ALJ) application of the analysis for assessing whether a claimant is disabled; 20 CFR § 404.1520(a)(4); Whether the claimant “can adjust to other work”; “Significant number” of available jobs in the national economy; Taskila v Commissioner of Soc Sec; Nejat v Commissioner of Soc Sec (Unpub 6th Cir); Whether there was “substantial evidence” supporting the ALJ’s decision; Biestek v Berryhill; Post-traumatic stress disorder (PTSD); Social Security Administration (SSA); Vocational expert (VE)
The court held that the ALJ did not err by denying plaintiff-Norris’s application for social security disability benefits and SSI because substantial evidence supported the ALJ’s finding that he could still perform a significant number of jobs in the national economy. Norris asserted that he was disabled and limited in his ability to work where he has “anxiety, depression, hereditary hemorrhagic telangiectasia, chronic obstructive pulmonary disease, [PTSD], panic disorder, irritable bowel syndrome, migraines, and agoraphobia.” The SSA denied him benefits. After a hearing and expert testimony, the ALJ concluded that he was not disabled where he “could successfully adjust to other jobs that exist in significant numbers in the national economy.” The Appeals Council denied his request for review. He then filed this action. The district court affirmed the ALJ’s ruling. Norris argued on appeal that the ALJ erred by finding there were a significant number of jobs open to him. He first claimed that the court had erred by previously finding what constituted a significant number of jobs. The court explained that it has never set a specific number, and that what “constitutes a significant number of jobs is determined case by case.” Norris argued that it did so in Taskila and Nejat and that those cases “erroneously conflated regional data with national data[.]” The court rejected this claim, and found that absent “any categorical rule setting the baseline number for a significant number of jobs, Taskila and Nejat do not dictate the outcome of this case.” As to his invitation to overrule Taskila, it noted among other things that his reliance on the Supreme Court’s decision in Biestek was misplaced. “Biestek does not establish a minimum number of jobs that must be available in the national economy, nor does it undermine this court’s holding in Taskila[.]” The court also rejected his attempt to impose a categorical threshold based on decisions in other circuits. And it concluded the ALJ applied the correct legal standard in considering the VE’s “testimony about the number of jobs in the national economy available to Norris.” A qualified VE’s testimony “may amount to substantial evidence. . . . The ALJ’s opinion discussed the [VE’s] testimony, including the jobs available to Norris; verified that the testimony was consistent with the information available in the Dictionary of Occupational Titles; and concluded this number was significant in the national economy.” Affirmed.