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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Nuisance action asserting violation of a blight ordinance; Claim for attorney fees & costs under the Michigan Right to Farm Act (RTFA); MCL 286.473b; Whether the award of fees to a prevailing farm or farm operation is mandatory; Clay Twp v Templeton (Unpub); Richmond Twp v. Rondigo, LLC (Unpub)
While the court rejected defendant’s argument that the award of attorney fees and costs to a farm or farm operation that successfully defends a nuisance action is mandatory under the RTFA, it remanded the case to the district court to explain its rationale for denying his request for fees and costs on the record. The court issued an order as to the proceedings on remand, and retained jurisdiction. Plaintiff-township issued defendant a municipal civil infraction citation “for alleged violations of its blight ordinance and the Michigan Residential Code. The matter was heard by the district court, where defendant successfully asserted an affirmative defense under” the RTFA to part of the citation. Both parties unsuccessfully requested costs and fees. Defendant argued on appeal that the RTFA’s plain language, in MCL 286.473b, “grants a farmer or farm operation discretion to decide whether to seek attorney fees and costs, and the court has discretion only in determining what amount of fees and costs are reasonable.” But the court noted that there is persuasive authority directly contradicting this position – two unpublished opinions, Templeton and Rondigo. Further, his argument asked the court to ignore the plain language of the statute and the Legislature’s intent. “As the circuit court accurately stated in its opinion and order, the term ‘may,’ as used in MCL 286.473b, afforded the district court discretion whether to award defendant attorney fees and costs.” The court also noted that he only partially prevailed in the district court, and it is commonplace “to decline to assess costs and fees when neither party has prevailed in full.” However, the district court failed to explain its reasoning for denying both parties’ requests for fees and costs. As a result, the court was “not in a position to properly review the district court’s reasons for denying defendant’s request.” Affirmed but remanded.
Entry of judgment;“Shall”; Attorney fees; Reasonableness
Holding that the trial court abused its discretion by refusing to award plaintiff-CIGL the entirety of its requested attorney fees, the court reversed and remanded for entry of CIGL’s requested judgment and attorney fee award. CIGL argued that the trial court ignored the clear language of its settlement agreement with defendants (collectively “CM”) when it declined to enter a consent judgment in CIGL’s favor. CIGL presented the trial court with an affidavit of noncompliance, stating that CM failed to make its payment. It further claimed that “CIGL had incurred $440 in attorney fees and costs, and that a balance of $61,649.84 remained due under the consent judgment. CM merely provided an explanation for why it had missed the payment.” There was nothing ambiguous about the parties’ agreement. It was undisputed CM defaulted under the agreement. “Because CIGL clearly presented the affidavit required by the agreement, [it] was entitled to its requested entry of the consent judgment and actual attorney fees and costs. The trial court made no finding that the agreement was illegal or in violation of public policy, so it was required to enforce the” agreement as written. Instead, it “effectively ordered that CM’s default be overlooked in exchange for its reimbursement of less than half of CIGL’s attorney fees.” This was an abuse of discretion. CIGL also argued “the trial court abused its discretion in declining to award the entire amount of attorney fees requested because its ‘request for $440 in attorneys’ fees was not unreasonable.’” The court agreed. The trial court made no findings as to “the reasonableness of CIGL’s requested fees, but rather simply ordered CM to pay $200 with no explanation.” The court held that the trial court “was not authorized to depart from the plain terms of the parties’ agreement.” Ordinarily, it would remand for a determination of the reasonableness of the attorney fee request. However, “doing so would not be an efficient use of judicial resources under the circumstances, especially in light of the ongoing COVID-19 crisis and the evidence already in the record or readily available. We have consulted the 2020 edition of the State Bar of Michigan’s Economics of Law Practice survey,” and the biography of CIGL’s lawyer attached to its motion. CIGL’s requested hourly rate of $220 an hour was less than the 25th percentile billed in Oakland County, and it “less than the 25th percentile for the average billing rates in the attorney’s stated practice areas.” The court found “it extremely unlikely that $220 an hour was an unreasonable rate,” or that 2 “hours of work was unreasonably long.”
Sentencing; Whether the trial court followed the proper Crosby procedure; Resentencing without an updated PSIR; Distinguishing People v Crook; Harmless error
Noting that it was obvious from the record that defendant was present for his resentencing, the court rejected his claim that the trial court did not follow proper Crosby procedure on remand by resentencing him in absentia. While it was inclined to agree with him that the absence of an updated PSIR was erroneous given the four-year span between sentencing hearings, it held that any error was harmless here. Thus, it affirmed his sentences on resentencing of 17 to 30 years for carjacking and armed robbery, and the reimposition of his original sentences on his other convictions (12 to 20 years for home invasion and 2 years for felony-firearm). Given that he exercised his right to allocution, he did not establish the factual predicate for his argument that he was “not produced in open court and not given an opportunity to be heard.” The PSIR prepared for his original sentencing early in 2015 “included detailed information on the crimes at issue” and his criminal record. A new or updated one was not prepared for his resentencing in 2019. The court noted “that there is no ‘bright line’ test for when a PSIR becomes stale or outdated.” However, it presumed “that a span of four years likely did call for preparation of an updated PSIR.” Nonetheless, defendant failed to “identify any changed circumstances or new information that should have been in an updated PSIR.” In a motion, he informed the trial court that since his incarceration he “had (a) obtained several misconducts, (b) attended religious services, (c) participated in a mental health group, (d) attended some classes when available at his location, and (e) begun writing to constructively occupy his time. In his allocution, defendant made a vague statement expressing regret for ‘things,’ that he was learning from his mistakes, and he was working to improve himself. The record” suggested only fairly minor changes in circumstances since his initial sentencing, in contrast to those in Crook. While the PSIR “was arguably outdated purely due to the passage of time,” the court was not provided with any “argument, evidence, offer of proof, or indication from the record that the information in the PSIR was actually stale or incomplete.” Thus, it was unlikely that the absence “of an updated PSIR resulted in prejudice that affected defendant’s resentencing outcome.”
Great weight of the evidence; People v Unger; AWIM; People v Jackson; Identity; Credibility; Motion for a new trial based on newly-discovered evidence; People v Cress; Recantation; People v Canter; Prosecutorial misconduct; People v Orlewicz
The court held that defendant was not entitled to a new trial, and that the prosecution did not commit misconduct. He was convicted of AWIM and felony-firearm. On appeal, he argued that he was entitled to a new trial because (1) the verdict was against the great weight of the evidence and (2) there was “newly discovered evidence” in the form of a letter penned by the victim. The prosecution’s theory of the case centered around the victim “and his mother being fearful of testifying against defendant. The prosecution argued that the jury should disregard their trial testimony and focus on their prior statements and testimony. Those statements, if believed, provided a reasonable finder of fact with sufficient evidence to find beyond a reasonable doubt that defendant committed the offenses for which he was convicted.” While there was conflicting testimony, it could not “be said that the evidence of defendant’s guilt was ‘so far impeached that it was deprived of all probative value or that the jury could not believe it, or [that it] contradicted indisputable physical facts or defied physical realities . . . .’” Further, he did not present any “basis upon which to conclude that the verdict was ‘the result of causes outside the record, such as passion, prejudice, sympathy, or some other extraneous influence.’” The court next found that the proffered evidence did not constitute newly discovered evidence. The victim’s recanting “statements that defendant was not the shooter had already been presented” to the jury, and “other witnesses testified that another person was the shooter.” As such, it “would merely be cumulative of the” victim’s trial testimony. The prosecution also did not deprive defendant of his right to a fair trial by “continuously arguing to the jury that this case was an example of the vernacular, ‘snitches get stiches.’” The prosecution used this expression “as a rhetorical tool to illustrate its theory of why the [victim] recanted and to persuade the jury that his initial statement was truthful.” The prosecution also did not make an improper appeal to the jury’s sense of civic duty by stating during rebuttal: “We submit that justice happens here, as a result of jury verdicts. Not as a function of peer pressure. And not as a function of threats. Which is why we’re asking you for verdicts of guilty as to all four counts. Thank you.” Affirmed.
Sentencing; Upward departure; Proportionality; Consecutive sentences; Operating while intoxicated, third offense (OWI-third); OWI causing serious injury (OWI-injury)
The court reversed the trial court, holding that it erred by imposing upward departure sentences and consecutive sentences, and remanded for resentencing. Defendant was convicted of OWI-third and OWI-injury. She was sentenced to 40 to 60 months for OWI-third and 36 to 60 months for OWI-injury, to be served consecutively. As an initial matter, it was unclear from the record that the trial court understood that imposing consecutive sentences was discretionary, not mandatory, as it stated that it was imposing a “mandatorily consecutive” sentence. But even assuming it understood it had discretion, the court held that the trial court failed to clearly set forth its reasons for imposing consecutive sentences. It was “presumably relying on its general discussion of the crimes and the reasons it gave for imposing departure sentences. But each consecutive sentence must be justified to ‘help ensure that the “strong medicine” of consecutive sentences is reserved for those situations in which so drastic a deviation from the norm is justified.’” Thus, the court vacated the imposition of consecutive sentences. On remand, if it “exercises its discretion to impose consecutive sentences, it shall identify specific aspects of the offenses and offender supporting that decision.” As to the departure sentences, review was problematic because in sentencing her “for the OWI-third conviction, the trial court relied exclusively on the circumstances underlying the other conviction, i.e., OWI-injury.” The court noted that “OWI-third was the first offense that led to the initial arrest and defendant being released on bond, not the offense that occurred while” she was out on bond. Thus, the trial court’s explanation for exceeding the guidelines appeared “to be relevant to the second offense in time, i.e., OWI-injury, rather than the earlier OWI-third.” Given this, it was “unclear whether the trial court was relying on defendant’s post-offense conduct in sentencing her for OWI-third, or if the court simply confused the two sentencing offenses.” The court concluded that the prudent course of action was to also vacate the underlying sentences. If the trial court “again concludes that a departure sentence for either conviction is warranted, it must articulate supporting reasons and explain why a departure sentence is more proportionate to the offense and offender than a sentence within the guidelines range. The court should consider whether there are factors not adequately accounted for by the” guidelines, and justify the extent of any departure sentence. The court retained jurisdiction.
Child custody; Proper cause or a change of circumstances warranting reconsideration of a custody decision; MCL 722.27(1)(c); Vodvarka v Vodvarka
The court held that the trial court erred by dismissing defendant-father’s motion for joint legal custody of the parties’ child. The trial court previously found defendant to be the child’s father, awarded plaintiff-mother sole legal and physical custody, ordered defendant to pay plaintiff child support, and awarded defendant parenting time. Several years later, it dismissed defendant’s motion for joint legal custody on the basis that he failed to demonstrate a change of circumstances or proper cause to justify a change in the child’s legal custody. On appeal, the court agreed with defendant that the trial court erred by denying his motion to modify the order granting plaintiff legal custody because it incorrectly limited its consideration to whether there had been a change in circumstances since its denial of his earlier motion to modify legal custody. “[I]n arguing there had been a change of circumstances, defendant was permitted to rely on events that occurred any time after the initial custody order.” The court acknowledged that “in ruling on defendant’s previous motion to modify legal custody asserting that the circumstances had changed significantly" since the original order, the trial court “determined that defendant had not established that the circumstances had changed significantly in that time.” Presumably, if defendant presented no more evidence than he presented at the most recent motion, the trial court would conclude that he “again has failed to establish a significant change in circumstances since the” original custody order that established the child’s current legal custody. “Nonetheless, the trial court is required to consider the circumstances from the [original] custody order that established the current custody of the child, consistent with Vodvarka,” and “‘on remand, [it] should consider up-to-date information.’” Vacated and remanded. The court retained jurisdiction.
The Freedom of Information Act (FOIA); Failure to answer a request; FOIA deposit; Prevailing party for purposes of MCL 15.240(6)
The court reversed the trial court’s order dismissing plaintiff-Tooles Group’s claim that defendant-Road Commission violated FOIA when it denied the existence of any documents that satisfied plaintiff’s Request 5. The trial court should have denied the Commission’s motion and granted Tooles Group’s motion as to that claim. The court remanded for entry of an order granting Tooles Group’s summary disposition motion as to that claim, and providing that Tooles Group was entitled to its attorney fees as a prevailing party. In all other respects, the court affirmed the trial court’s order. Tooles Group was a minority-owned contractor whose bid on a construction project was not accepted. In Request 5, it asked the Road Commission to provide any documents related to the “Road Commission’s hiring or utilization of Minority-owned and/or Disadvantaged Business Entities on” county road projects. The court noted that the request language “was not ambiguous: it asked the Road Commission to disclose any document that has some relation to the Road Commission’s ‘hiring or utilization’ of minority-owned businesses or businesses that are classified as disadvantaged business entities. The request was also sufficiently particular to limit the Road Commission’s search to a narrow set of documents, which should have been readily identifiable by those persons familiar with the hiring and utilization of minority-owned or disadvantaged businesses.” In addition, subrecipient forms identified during the case “clearly included information about the Road Commission’s ‘hiring or utilization’ of disadvantaged business entities.” The court concluded that the trial court misapplied the law when it found “that Request 5 did not sufficiently describe the records sought.” As a result, it erred in dismissing Tooles Group’s claim based “on the failure to disclose the subrecipient forms; rather, because it was undisputed that the Road Commission failed to disclose the subrecipient forms until after Toole Group sued, the trial court should have granted summary disposition in Tooles Group’s favor on that claim.” Further, because Tooles Group had to litigate its claim involving Request 5 “to establish its right to have a copy of the subrecipient forms, it has prevailed for purposes of a mandatory award of attorney fees.”
Cancellation of removal; 8 USC § 1229b(b)(1); Application for a “provisional unlawful presence waiver”; 8 CFR § 212.7(e)(4)(iii); Whether immigration judges (IJs) & the Board of Immigration Appeals (BIA) have the authority to grant administrative closures; Matter of Castro-Tum (AG); §§ 1003.10(b) & 1003.1(d)(1)(ii)
The court held that IJs and the BIA have the authority to grant administrative closure so that noncitizens may apply for a provisional unlawful presence waiver. While petitioner-Garcia’s removal proceedings were pending, he applied for Cancellation of Removal and married an American citizen. She filed a I-130 Petition for Alien Relative. At the cancellation of removal merits hearing, Garcia requested a continuance pending resolution of his I-130 Petition, but the IJ noted proceedings had been pending for several years and denied it. The IJ ruled him ineligible for cancellation of removal because he had not established the 10-year period for continuous residence, or that his removal would cause “exceptional and extremely unusual hardship for his qualifying relatives.” During his appeal to the BIA, his I-130 petition was granted. Despite this, he still had to “clear a series of hurdles before he can become a permanent resident.” Regulations allow “applicants to apply for a provisional unlawful presence waiver while in the United States and prior to departing the United States for their consulate interview” required as part of that process. But this “workaround did not extend to noncitizens in removal proceedings, ‘unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the application for a provisional unlawful presence waiver.’” The BIA denied Garcia’s motion for administrative closure, citing Matter of Castro-Tum, where Attorney General Sessions ruled that IJs and the BIA do “not have general authority to grant administrative closure.” However, the court held that IJs and the BIA have the authority under § 212.7(e)(4)(iii), in conjunction with §§ 1003.10(b) and 1003.1(d)(1)(ii), “to grant administrative closure for the limited purpose of permitting noncitizens to apply for a provisional unlawful presence waiver.” It reasoned that in Garcia’s case, administrative closure was “‘appropriate and necessary’ . . . Absent administrative closure, Garcia and other noncitizens in removal proceedings who are seeking permanent residency would be unable to apply for a provisional unlawful presence waiver despite the authorizing regulation.” The court noted that allowing administrative closure for this limited purpose “will not lead to non-adjudication of immigration cases.” Rather, it “increases the likelihood that noncitizens will obtain legal status and resolve their immigration proceedings.” The court granted the petition for review, vacated the BIA’s order, and remanded.
Premises liability; Trip & fall over a cable in defendant’s store; Open & obvious danger; Whether the condition was unreasonably dangerous
Holding that the trial court erred by finding a genuine issue of material fact existed as to whether the wire was an open and obvious danger and that the cable did not pose an unreasonable risk of harm, the court reversed and remanded for entry of an order granting defendant summary disposition. Plaintiff-Renee Pinsky was injured when she tripped over a cable in defendant’s store. “An employee had just minutes before strung that cable from one side of the closed checkout lane through the shopping cart’s basket in the middle of the checkout lane to the other side of the” lane. The parties did not dispute Renee’s status as an invitee. Although she “testified that she did not see the cable before she fell, the appropriate standard is not whether she saw the hazard, but rather whether an average person in the position would have been able to do so.” The court noted that she “specifically testified at her deposition that she had been ‘looking ahead into the store,’ rather than looking at the pathway in front of her. She admitted that she saw the two-tier shopping cart in the middle of the aisle and did not recall anything obstructing her view. No evidence established that the lighting had been insufficient or that anything obstructed Renee’s view of the cable that ran across the checkout lane securing the shopping cart in place.” Also, she admitted at her deposition that the photos of the incident scene taken by plaintiff-David Pinsky “right after she fell clearly depicted the cable that caused her fall.” The evidence presented by defendant “indicated that an average person in the same situation could have seen the cable upon casual inspection.” The court concluded that plaintiffs “proffered no evidence that established that an ordinary person of average intelligence would not have been able to see the cable upon casual inspection.” The evidence indicated that “Renee would not have been injured had she been looking at her path through the checkout lane and observed the open and obvious cable.” The court also held that “the height of the wire alone is not dispositive of whether the hazard was open and obvious because even floor-level hazards can be open and obvious, and therefore, a cable at knee level is not too low to be open and obvious.” The court noted that “Renee testified at her deposition that she saw the shopping cart while looking beyond it into the store, chose to walk past the cart, and proceeded past it. Although she did not see the cable at the time, she testified that she could see” it in photos taken later. The court concluded that the hazard was open and obvious.