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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Dispute over property owners’ rights in docks & boat moorings; An easement as an interest in land subject to the statute of frauds; Lake Doster Lake Association (the LDLA); Lake Doster Development Corporation (the LDDC)
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 72137 in the 1/31/20 edition) and reinstated the trial court’s decision granting defendant-LDLA summary disposition. The court agreed with the Court of Appeals’ dissent that plaintiffs-back lot owners’ use and maintenance of their docks was subject to the LDLA’s regulation and oversight and was “not a permanent and irrevocable property interest.” They could not point to any “written conveyance manifesting a clear intent to create an easement granting dock rights.” Instead, they asserted a property interest was created when (1) the LDDC orally approved their “request or a predecessor’s request to install a dock and (2) the LDLA agreed, as a benefit of membership, that it would agree to allow the continuance of ‘all past permitted rights.’ Neither of these bases, whether considered separately or in tandem, satisfies the requirements for establishing a permanent interest in realty.” As to the first, assuming the LDDC meant to convey an interest in real estate when it gave oral approval, “and absent any indication of fraud, an attempted conveyance of an interest in real estate is void if it is not in writing.” Further, in the absence of observing “the formalities required for creating an express easement, only a mere license was created.” The reliance of plaintiffs and their predecessors for many years did not make any difference – “Michigan does not recognize ‘irrevocable licenses’ or ‘easements by estoppel’ stemming from a licensee’s expenditures made in reliance on representations about the duration of a license.” As to the second basis, assuming the LDLA membership application was an enforceable contract, it only stated “that the LDLA will allow the LDLA member and their successors-in-interest to continue ‘past permitted rights.’” This language, which was “conditioned on plaintiffs and all future owners abiding by the LDLA’s overall governance and control,” was consistent with the court’s determination “that the prior oral approval process created a revocable license, i.e., ‘a permission to do some act or series of acts on the land of the licensor without having any permanent interest in it.’”
Due process; The right to be present at one’s trial; MCL 768.3; People v Montgomery; Waiver of the right to be present by being so disorderly or disruptive that the trial cannot be continued while defendant is present; People v Buie (On Remand); Whether defendant was warned that he might be removed based on disruptive conduct; Illinois v Allen; The purpose of closing argument; People v Finley; Whether defendant was prejudiced by his removal; People v Armstrong; The right to representation; “Standby” counsel; Jury instructions; People v Traver; Adverse possession; Beach v Lima Twp; M Crim JI 7.5; People v March; Claim-of-right; Smith v Feneley
The court held that defendant’s right to be present and his right to representation were not violated when the trial court removed him from the courtroom for repeatedly objecting during the prosecutor’s closing argument. It also rejected his claims as to the jury instructions. After remand for a new trial, he was convicted of conducting a criminal enterprise and false pretenses ($1,000 or more but less than $20,000) for attempting to sell properties he did not own. On appeal, the court rejected his argument that he was entitled to another new trial because his right to be present and his right to representation were violated when the trial court removed him from the courtroom during a portion of the prosecutor’s closing argument and during the prosecutor’s rebuttal argument. “[W]ith defendant repeatedly interrupting the prosecutor’s argument for unfounded reasons, it is clear that defendant was being disruptive and was subject to being removed.” However, there was “no indication in the record that the trial court warned [him] that his continued behavior of interrupting the proceeding could result in his removal.” As such, it appeared “that the trial court erred—not by removing defendant, but by removing him without first warning him that removal would be a consequence of his continued disruptive actions.” However, his “inability to raise a futile objection cannot constitute prejudice.” In addition, “he was not prohibited from raising objections to anything that was said while he was absent from the courtroom.” Further, the fact that standby counsel “did not raise any objections during the remainder of the prosecutor’s closing argument or during the prosecutor’s rebuttal argument should not be considered significant where defendant does not identify any specific, valid grounds for an objection, and none are apparent.” Thus, he could not show “he was without representation during closing arguments.” The court also concluded that “the trial court did not err by refusing to provide an instruction on adverse possession when it was undisputed that the elements were not satisfied.” And because “M Crim JI 7.5 addresses larceny-type crimes,” it did not err by failing to provide the instruction given that “this case dealt with real property that cannot be the subject of a larceny.” Moreover, it would not have been proper “to provide the requested instruction regarding a claim of right.” Affirmed, but remanded for the ministerial task of correcting the amended judgments of sentence.
Ineffective assistance of counsel; Failure to present evidence as to where exactly on defendant’s person the holster was located; Trial strategy; Sufficiency of the evidence; Felony-firearm; Consecutive sentencing; Judgment of sentence (JOS); Michigan State Police (MSP)
The court held that defendant was not denied the effective assistance of counsel and rejected his legal challenge to his felony-firearm convictions. Thus, it affirmed, but remanded to the trial court to amend defendant’s JOS such that his CCW sentence runs concurrently to his two felony-firearm sentences. He was convicted of FIP, FIP of ammunition, CCW, and felony-firearm, second offense. He was sentenced, as third-offense habitual offender, to concurrent terms of 1 to 5 years for FIP, as well as 1 to 10 years for FIP of ammunition and for CCW, to run consecutively with sentences of 5 years for each of his felony-firearm convictions, which run concurrently with each other. The case arose from a traffic stop effectuated by MSP troopers in response to a report that gunshots had been fired. Defendant argued, “in essence, that counsel should have made clear to the jury that the holster was in his pocket at the time of his arrest, rather than being worn.” He also argued that “he told his trial counsel that he wanted to testify at trial to explain that he was not wearing the holster, and instead the holster was ‘serving as a pill bottle’ and being used to hold ‘some pills that he and his companions were sharing.’” The court held that because “defendant expressly testified under oath that he agreed with trial counsel’s strategic decision not to testify, the latter argument” was waived. Further, counsel “relied during closing argument on the fact that it made little sense for defendant to have retained the holster but not the gun, and counsel could have concluded that defendant’s testimony would have opened the door to more damaging testimony.” Given that the holster was specifically fitted to the gun, the court thought that such a risk would have been a serious one. Thus, it could not hold that “counsel’s advice against defendant testifying was unsound trial strategy.” The argument as to the specific location of the holster was a much closer one, however, because that information could have been elicited from an officer on cross-examination. The court was unable to say that the absence of explicit testimony as to the specific location of the holster was harmless. Although it held that there was a reasonable probability the outcome might have differed, it was “unable to conclude that counsel’s decision not to clarify the location of the holster was an unsound strategic decision at the time it was made. Because a claim of ineffective assistance of counsel requires the establishment of both an objectively unsound strategy and a reasonable probability that the outcome would have differed,” the court rejected defendant’s claim of ineffective assistance of counsel. Moreover, because it considered his offer of proof on appeal, it could not hold that there would be any benefit to remanding for an evidentiary hearing.
Prosecution request to nolle prosequi charges against defendants after the trial court rejected Cobbs pleas; Genesee Cnty Prosecutor v Genesee Circuit Judge; People v Curtis; MCL 769.29; People v Grove
Holding that the trial court’s authority to deny the prosecution’s request to nolle prosequi charges was limited and that it exceeded that limited authority in doing so here, the court reversed and remanded with instructions to grant the nolle prosequi and enter an order dismissing the charges. For the trial court to have the authority to deny a nolle prosequi, it must be shown that the prosecution “is committing malfeasance, or otherwise is acting in an unconstitutional, illegal, or ultra vires manner. And this must be evaluated in light of the fact that the trial court’s authority in the first place to reject a nolle prosequi is to safeguard the defendant’s rights and to protect against prosecutorial harassment. None of these conditions” were shown here. The court noted that defendants did not object to the nolle prosequi request. In fact, it was prompted by an agreement between the defense and the prosecution that “the best course of action was a juvenile disposition rather than adult incarceration, including the availability of rehabilitation services in the juvenile justice system.” Additionally, the court was not persuaded that there was “any indication of an improper motive by” the prosecution or that “granting leave of the court to dismiss the charges would in any way be contrary to the public interest.” It appeared that the trial court’s decision was rooted in its view that dismissing the charges would infringe upon its role in sentencing. The court disagreed, noting that the prosecution’s “charging decision affects the sentence that a trial court may impose” and that, had the prosecution “originally decided to only proceed in the family division, there never would have been the possibility of there being an adult conviction upon which the trial court could impose an adult sentence.”
The Whistleblowers' Protection Act (WPA); “About to report” claim; “Report”; Causal connection; Unlawful retaliation in violation of Michigan public policy; WPA preemption; “Public body”; State Bar of Michigan (SBM)
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 70192 in the 4/8/19 edition for the published opinion), the court affirmed the ruling that plaintiff failed to show a genuine issue of material fact as to whether she “‘engaged in a protected activity by being about to report a violation or suspected violation of law’ to the police.” It also affirmed the ruling that she did not establish a material question of fact as to whether there was a causal connection between her “communication with defendant’s attorney and her termination.” But it vacated the holding that this communication “was not a ‘report’ under the WPA, as” it was unnecessary. It reversed the holding in Part III(D) of the Court of Appeals opinion that the WPA preempted plaintiff’s public-policy claim. The court first determined that the evidence did not establish “that plaintiff herself was ‘about to report . . . a suspected violation of a law,’ MCL 15.362, but rather that she wanted defendant to so report and was upset that it would not. There is a legally significant distinction between being ‘about to report . . . a suspected violation of a law’ and merely wanting someone else to so report;” while the former is protected activity under the WPA, the latter is not. The court found the “holding that plaintiff’s communication with defendant’s attorney was not a ‘report’ under the WPA” was unnecessary given its agreement with the Court of Appeals’ “conclusion that summary disposition was warranted based on plaintiff’s failure to establish a causal connection between [her] communication with defendant’s attorney and her termination.” As to her public policy claim, she asserted two factual bases for this claim – (1) her attempt to report an employee’s (LS) “actions to the police, and (2) her refusal to conceal and/or compound LS’s violations of the law.” Because she did not establish “a question of fact that this conduct entitles her to recover under the WPA, her public-policy claim based on this conduct is not preempted by the WPA.” The court remanded to the Court of Appeals “to address whether, viewing the evidence in the light most favorable to plaintiff, there is a genuine issue of material fact that her termination was unlawful in violation of public policy, including, if necessary, whether she can establish a causal connection between her conduct and her termination.” Justice Zahra fully concurred in the order, but wrote separately because he continued “to believe ‘a persuasive argument can be made that the [SBM] is not a “public body” under the’” WPA and as a result, “an attorney, as a member of the SBM, would not constitute a member of a public body for purposes of the WPA.” But it was not necessary to reach this issue to resolve this case. Justice Viviano, joined by Justice Welch, also fully concurred in the order, and wrote separately “only to highlight a curious interpretation that has been given to the [WPA] that was incidentally involved in” this case. Justice Viviano questioned whether the Legislature intended the result that an employee would gain the WPA’s protections “by reporting or being about to report a suspected violation of law to any licensed attorney in the state—even if that employee had no prior relationship with that attorney.” He believed that the court should closely consider in a future case whether a “narrower definition of ‘member’ applies to the WPA and” who falls within it. But these questions did not need to be addressed here.
Custody; Modifying children’s established custodial environment (ECE) in a temporary order without conducting an evidentiary hearing; MCL 722.27(1)(c); Daly v Ward; Reassignment to a different judge
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 72519 in the 3/18/20 edition), the court vacated the trial court’s judgment and remanded the case to that court for further proceedings with instructions to assign it to a different judge. It held that the trial court erred in modifying the children’s ECE in a temporary order without conducting an evidentiary hearing. That order suspended defendant-mother’s “parenting time, precluded her from initiating contact with the children, and continued granting” plaintiff-father full-time parenting time. In doing so, it had the effect of modifying the children’s ECE and thus, MCL 722.27(1)(c) applied, requiring the trial court to first conduct an evidentiary hearing. The court noted that it was “impossible to effectively remedy the error in entering” the order given that “15 months passed before an order properly based on an evidentiary hearing was issued. The trial court’s . . . final opinion and order relied on events that occurred in a custodial environment that was erroneously altered in” 11/17. Thus, the court could not find the error “harmless. On remand, the trial court shall conduct a hearing within 14 days of the date of this order to determine how the case should proceed.” It also instructed “the trial court to expedite its consideration and resolution of this case.” Concurring, Justice Clement noted that, “rather than falling under the allowance for ex parte orders as provided in MCL 722.27a(12) to (14)” relating to parenting time, the order fell within MCL 722.27(c)(1)’s requirement, and “the trial court ignored this procedural requirement.” She also concurred in the decision to reassign the case. Justice Viviano, concurring in part and dissenting in part, agreed with much of the court’s order, but dissented from the decision to reassign the case. He also found that it failed to give the trial court “any real guidance on” what to do next, and stated that he would follow the court’s “precedent and remand for reevaluation while the status quo is maintained.” Dissenting, Justice Zahra would deny defendant’s application for leave to appeal, concluding that her failure to appeal the 11/17 “order and her decision to instead request several adjournments of the evidentiary hearing renders her claim presented in this appeal either waived or harmless.”
Divorce; Property settlement; Whether a bank account should have been treated as marital property; Claim that a party contributed to the improvement of a parcel of real property; MCL 552.401; Separate funds invested in a parcel of real property
The court held that given the trial court’s factual findings as to the savings account at issue, its ruling awarding the entirety of the account to plaintiff-ex-wife as her separate property was fair and equitable. It also upheld the trial court’s decision to not invade a separate asset (a parcel of real property) belonging to plaintiff under MCL 552.401. But because of the inadequate record as to its findings and reasoning for distributing another parcel of real property, the court reversed the trial court’s ruling in this regard and remanded. At issue was the parties’ property settlement as it related to a bank account and two parcels of real property. Defendant-ex-husband argued that the “savings account should have been treated as marital property and divided equally because plaintiff did not prove that it was separate property. The only factual dispute as to this savings account was the source of the funds it contained.” The court noted that resolution of this factual dispute “was of crucial importance to the analysis because ‘income earned by one spouse during the duration of the marriage is generally presumed to be marital property,’ . . . while ‘workers’ compensation benefits awarded for periods before the marriage or after its dissolution are akin to a party’s individual earnings and are to be considered separate property because those earnings fall outside the beginning and the end of the marriage.’” The only evidence the trial court was presented as to the source of the money in the account was the parties’ conflicting testimony It “ruled without further explanation that the savings account would be awarded to plaintiff as ‘her sole property.’” Therefore, it “necessarily credited plaintiff’s testimony over defendant’s testimony because plaintiff’s testimony involved a claim that the money was obtained before the marriage and thus was separate property, while defendant claimed in his testimony that the money was earned during the marriage and thus was marital property.” The court was not left “with a definite and firm conviction that a mistake was made.” But it was left with a definite and firm conviction that a mistake was made as to the Knox Road property, given that “the factual findings on which the trial court based its ruling” as to that property “were clearly erroneous because they were unsupported by the record evidence.” Affirmed in part, reversed in part, and remanded.
Probate court order requiring respondent to receive involuntary mental health treatment; A “person requiring treatment” under MCL 330.1401(1)(a) & (c); The procedure & content requirements for a petition for mental health treatment; MCL 330.1434(2)-(4); Notice requirements; MCL 330.1453; MCR 5.734; Consultation with counsel; MCL 330.1454(1); Counsel requirements; MCL 330.1454(7)-(9); Prejudice
The court held that the probate court did not err by finding respondent to be a “person requiring treatment” and ordering him to receive involuntary mental health treatment. The probate court entered the order on the basis of his mental illness. On appeal, the court rejected his argument that the probate court erred when it conducted a hearing on a petition for mental health treatment that did not set forth sufficient facts. It noted that the social worker, G, “detailed how she personally observed respondent’s paranoid and somatic” delusions, and “expressed concern that respondent could inflict unintentional harm and lacked the ability to maintain safety.” In addition, her petition included “two clinical certificates, one of which was completed by a psychiatrist.” Each clinical certificate “included facts that supported each doctor’s findings regarding respondent and their conclusions that he required treatment for his mental illness.” As such, the petition “complied with the requirements set forth under MCL 330.1434.” The court also rejected his claim that the probate court failed to address whether he received notice and whether his attorney properly consulted with him in a meaningful way before the hearing. It found that G personally served him with the notice “two days before the hearing on the petition for mental health” treatment, and that he “was aware of the hearing because” one of the doctors testified that respondent did not want to attend. Further, “respondent’s appointed counsel attended the hearing and did not object to, or disagree with, the probate court’s conclusion that respondent received notice of the hearing.” Finally, although the probate court erred “when it did not confirm on the record that appointed counsel consulted with respondent about the petition for mental health treatment and related hearing or require respondent’s appointed counsel to file the certificate required under” MCL 330.1454(9), this error did not “in itself demonstrate prejudice to respondent.” He failed to show “how he might have been prejudiced by the alleged failure of his counsel to consult with him as required by the statute.” Affirmed.
Judicial discipline; Conditional suspension; In re Probert; Liability for costs, fees, & expenses; MCR 9.202(B); Judicial Tenure Commission (JTC)
In an order, the court adopted in part the JTC’s recommendations while rejecting as moot its recommendation that respondent be removed from office given that he no longer held judicial office as of 1/1/21. It conditionally suspended him without pay for a period of six years, to become effective only if he “regains judicial office during that period.” It also found him liable for costs, fees, and expenses incurred by the JTC in prosecuting the complaint. The court’s order was based on misconduct alleged in the amended complaint, including that he (1) “pled no contest to a crime in 2016 and later made false statements about whether he had done so”; (2) “took several types of funds that belonged to Lapeer County and improperly handled them by depositing them in his and his family’s personal bank accounts and by failing to keep any records related to those funds” (the court declined to formally adopt the JTC’s conclusion that this constituted embezzlement); (3) “improperly failed to disclose his relationships with” three attorneys when he presided over cases in which they appeared or to disqualify himself from the cases; and (4) “testified falsely that he was unaware of Lapeer County’s policy regarding public contracts and that he gave the entire payment for a” money order to a county prosecutor’s office employee. The court adopted the JTC’s factual findings “and conclusions of law to the extent they” were consistent with this order, and the JTC’s “analysis of the appropriate sanction. The cumulative effect and pervasiveness of respondent’s misconduct convinces this Court that respondent should not hold judicial office.” It ordered the JTC to submit an itemized bill of costs. Concurring, Justice Cavanagh (joined by Justice Clement) agreed with the majority’s findings of fact and conclusion of misconduct, and agreed that, assuming the court “has the authority to impose a conditional suspension on one who is no longer a judge,” a six-year conditional suspension without pay was “a proportionate sanction” here. She wrote separately to express doubts as to Probert’s conclusion that the court “may discipline a former judge who is no longer serving his or her term in office.”
The district court’s subject-matter jurisdiction; Hodge v State Farm Mut Auto Ins Co; Effect of a joint stipulation in good faith to an amount in controversy that has been court-approved; Effect of the parties’ failure to explicitly stipulate to an appropriate amendment of the complaint when they requested the circuit court transfer the case to the district court; Administrative Order No. 1998-1
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 71572 in the 11/4/19 edition), reinstated the district court’s judgment, and remanded to the district court. It held that the Court of Appeals erred in ruling that the district court lacked subject-matter jurisdiction given that “the parties jointly stipulated in good faith to an amount in controversy less than $25,000.” The court concluded that their “good-faith joint stipulation to an amount in controversy less than $25,000 vested the district court with subject-matter jurisdiction over the action, as plaintiffs’ pleading alleging an amount in controversy more than $25,000 was unjustifiable in light of that stipulation.” In addition, the parties’ “failure to explicitly stipulate to an appropriate amendment of the complaint when they requested that the circuit court transfer the case to the district court, as required by Administrative Order No. 1998-1, . . . did not deprive the district court of subject-matter jurisdiction over the” case, and defendants waived any error that may have taken place when the circuit court transferred it “without an express stipulation to an appropriate amendment of the complaint. Finally, because the district court had subject-matter jurisdiction upon the parties’ good-faith joint stipulation to the amount in controversy, it possessed the authority to allow plaintiffs to amend their complaint after the jury’s verdict but before the entry of judgment.” Thus, it had subject-matter jurisdiction over the case and had the authority to enter judgment for plaintiffs. Concurring, Justice Clement supported the outcome the court reached, but disagreed with much in the “order, primarily the assertion that parties can stipulate to a court’s subject-matter jurisdiction.” However, because Michigan “law allows liberal amendment of pleadings, with no exception applicable here, . . . the defective prayer for relief could be, and was, amended, making the district court’s judgment a proper exercise of its power.” Dissenting, Justice Zahra concluded that, absent the parties’ stipulation “to an appropriate amendment of the complaint alleging that plaintiff’s damages were less than $25,000 . . . there was no authority upon which plaintiffs could file an appropriate amended complaint that would bring their case within the district court’s jurisdictional amount.” He also disagreed “with the majority’s extension of the limited ‘bad faith’ exception discussed in Hodge to resolve this case.”
Compliance with MCL 600.6431(1) of the Court of Claims Act (COCA); Tyrrell v University of MI; The Persons With Disabilities Civil Rights Act (PWDCRA); The Worker’s Disability Compensation Act (WDCA)
Concluding that Tyrrell rendered the circuit court’s foundational premise in granting defendant summary disposition erroneous, the court reversed and remanded. Plaintiff asserted claims under the PWDCRA and the WDCA against defendant. In moving for summary disposition, defendant successfully argued that her claims were barred because it “is an arm of the state and plaintiff had not filed a notice of intention to file a claim with the clerk of the Court of Claims pursuant to MCL 600.6431.” The issue on appeal was whether she was required to comply with MCL 600.6431(1) “in pursuing her claims against defendant in the circuit court where she sought a jury trial.” The court recently held in Tyrrell that “absent the Legislature conditioning its consent to suit on compliance with the COCA, a plaintiff properly bringing a claim in circuit court against the state or a state defendant to which MCL 600.6431 applies is not required to comply with MCL 600.6431 for his or her claim to proceed in that court.” The court went on to conclude that the Legislature intended that “no claim may be maintained against the state in the Court of Claims” (as opposed to any court in the state) absent certain conditions being met. The trial court ruled that by its “clear language, the notice requirement applies to all claims against the state and its political subdivisions, not merely, as Plaintiff argues, to all claims filed or pending in the Court of Claims.” The court noted that defendant agreed that the holding in Tyrrell mandated reversal.