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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Motion for an adjournment on the first day of trial; People v. Coy; People v. Steele; MCR 2.503(C); Sufficiency of the evidence; People v. Harris; People v. Nowack; Identity; People v. Yost; Safe-breaking; MCL 750.231; Larceny; People v. March; Larceny in a building; MCL 750.316; Possession of burglar’s tools; MCL 750.116; People v. Wilson; People v. Dorrington; Items contrived & adapted for breaking & entering; In re Forfeiture of One Front End Loader; Admission of an officer’s body camera video; Authentication; MRE 901; People v. Muhammad; Sentencing; Scoring of OV 13; MCL 777.43(1)(d); People v. Couzens; People v. Nelson; MCL 777.43(2)(a) & (c); People v. Gibbs; Use of “or”; Paris Meadows, LLC v. Kentwood; Restitution for the costs of a dismissed jury pool; People v. Juntikka (On Remand); MCL 769.34(6); MCL 780.766; People v. McKinley; MCL 769.1k(1)(b)(iii); People v. Konopka (On Remand)
The court held that the trial court did not abuse its discretion in denying defendant’s motion for an adjournment on the first day of trial, and that there was sufficient evidence to support his safe-breaking, larceny in a building, and possession of burglar’s tools convictions. Further, admission of an officer’s body camera video was proper because it was authenticated by the officer’s (Y) testimony, and the court upheld the 10-point score for OV 13. However, the trial court erred in ordering restitution for the cost of a dismissed jury pool. Thus, it affirmed his convictions and his sentences as a second-offense habitual offender to 7 months to 25 years for safe-breaking, 2 to 6 years for larceny in a building, and 47 months to 15 years for possession of burglar’s tools. But it vacated the restitution order and remanded for correction of his judgment of sentence. The court held that the trial court did not abuse “its discretion by denying yet another request for adjournment. Defendant’s fourth (and final) trial attorney was appointed in [7/18] and received two adjournments of the trial date in order to prepare.” Further, defendant waited until the day of the trial to seek another adjournment. The court found that he failed to show the approximately two-month period “between his most recent attorney’s appointment and trial was an insufficient amount of time to prepare.” It next held that there was sufficient evidence for the jury to find that he was the person who took victim-W’s personal property from his home “without permission and with the intent to steal that property. There was also sufficient evidence that defendant was the person who broke into [W’s] safe with the intent to steal the contents of the safe.” His admission to Y that he took the items from W’s home and broke W’s “safe was direct evidence of his identity.” Further, Y discovered him in a mobile home near W’s home, and defendant directed Y to a bedroom where W’s property was found. “Defendant was the only individual in the home at the time of” Y’s investigation, and he told Y “he was the only individual involved in the crimes.” As to the burglar’s tools conviction, the evidence allowed “the jury to conclude that the items defendant used were ‘contrived and adapted for breaking and entering.’” But the trial court did not have “the statutory authority to order restitution to the court on the basis of the dismissed jury.”
Sufficiency of evidence of “sexual penetration” to support a CSC I conviction; MCL 750.520b(1)(a); MCL 750.520a(r); People v. Lockett; Cunnilingus; People v. Legg; Victim’s testimony; People v. Bailey; Conflicting evidence; People v. Smith; Other acts evidence; MRE 404(b); People v. VanderVliet; MRE 404(b)(1); People v. Denson; People v. Steele; Common scheme, plan, or system; People v. Sabin (After Remand); MRE 403 balancing test; Unfair prejudice; Harmless error; People v. Solloway; People v. Elston; Judicial misconduct; People v. Stevens; People v. Willis; The trial court’s wide discretion to control the proceedings; People v. Biddles; MRE 611(a); Admission of testimony under MRE 803A; Hearsay; MRE 801(c); People v. Gursky; MRE 803A(3); Plain error review; People v. Carines
The court found that victim-S’s testimony provided sufficient evidence to support defendant’s CSC I conviction. Also, as in Sabin, because “this was a close evidentiary question, the trial court did not abuse its discretion by determining that the” other acts evidence here “was logically relevant to show a common plan, scheme, or system.” Further, it did not appear more probable than not that an error as to the admission of this evidence affected the outcome in light of the victims’ testimony and the expert witnesses. Finally, the trial court did not commit misconduct and deprive defendant of a fair trial. He was convicted of CSC offenses involving two young relatives. Defendant argued that there was not sufficient evidence of sexual penetration to support his CSC I conviction. S testified that he “touched her vagina and ‘the part you pee out of’ with his tongue.” This testimony established that he performed cunnilingus on S “by touching his mouth to her ‘urethral opening, vaginal opening, or labia.’” The court held that because “cunnilingus by definition constitutes an act of sexual penetration, [S’s] testimony sufficiently supported a finding that defendant sexually penetrated her.” To the extent that any other testimony conflicted with S’s account, the sufficiency of her “testimony was not affected because the jury could have believed [S] rather than the conflicting testimony in reaching its verdict.” Affirmed.
Subject-matter jurisdiction under the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) (MCL 722.1101 et seq.) to issue an order granting joint legal & physical custody; Jamil v. Jahan; Fisher v. Belcher; Atchison v. Atchison; MCL 722.1201(1); MCL 722.1201(1)(a); MCL 722.1203; MCL 722.1203(a); Custody; Whether the trial court properly modified the existing Ohio custody order without first holding an evidentiary hearing & making the required findings; In re AP; Shulick v. Richards; The Child Custody Act (MCL 722.21 et seq.); Lieberman v. Orr; MCL 722.27(1)(c); Grew v. Knox; Mann v. Mann; Mootness; Crampton v. Crampton; C D Barnes Assoc., Inc. v. Star Heaven, LLC
The court held that under MCL 722.1203, the trial court had jurisdiction to enter an order awarding joint legal and physical custody. Also, the issue as to whether the trial court properly modified the existing Ohio custody order without first holding an evidentiary hearing and making the required findings was moot because the challenged order was no longer in effect. Defendant-mother argued that the trial court lacked subject-matter jurisdiction under the UCCJEA to issue an order granting joint legal and physical custody. Michigan was their children’s home state for the nine years immediately preceding her relocation of the children to Ohio, and within 6 months of the time that plaintiff-father commenced proceedings and requested that the trial court accept jurisdiction under the UCCJEA. At that time, he continued to reside in Michigan. Michigan was thus the children’s home state under MCL 722.1201(1). Nonetheless, defendant asserted that “the Michigan trial court lacked jurisdiction because an initial custody determination had been entered in Ohio and the Ohio court has not relinquished jurisdiction.” The court disagreed. The “trial court had jurisdiction under MCL 722.1201(1)(a) to make an initial custody determination.” The question then became, “under MCL 722.1203(a), whether the Ohio court has determined that it no longer has exclusive, continuing jurisdiction.” The court held “that the Ohio court determined that it did not have exclusive, continuing jurisdiction over the matter because both parents and the children had lived in Michigan for the preceding nine years.” The trial court entered an order on 10/22/19 accepting jurisdiction. The order stated that the trial court had consulted with the magistrate "in the Common Pleas Court of Montgomery County, Ohio, Juvenile Division pursuant to the UCCJEA [and] [b]oth Courts agree that Kent County Circuit Court in the State of Michigan is the more appropriate forum due to the family residing in Kent County since 2010.’” Also, the Ohio court “entered orders dismissing a motion filed by defendant seeking a change of custody, denying defendant’s motion to retain jurisdiction in Ohio, denying defendant’s objection to the transfer of jurisdiction to Michigan, and stating that it no longer has exclusive jurisdiction and that jurisdiction was proper in Michigan because the children had resided in Michigan for the past nine years.” Affirmed.
Medical malpractice; Craig ex rel Craig v. Oakwood Hosp.; Whether there was a breach of the standard of care (SOC); Personal representative (PR)
Holding that when reviewing the SOC actually articulated by plaintiff-PR’s expert, defendant clearly did not breach that SOC, the court affirmed. This medical malpractice case concerned defendant’s (a ear, nose, and throat doctor) treatments of plaintiff's decedent, Thomas. Plaintiff argued that defendant breached the SOC “by not telling Thomas that a CT scan was necessary to rule out possible serious conditions like cancer, and that there is evidence that, had defendant not breached this [SOC], Thomas would have gotten the CT scan.” Unfortunately for plaintiff, her SOC “expert never testified that defendant had a duty to inform Thomas that a CT scan was necessary to rule out cancer or other serious conditions.” Plaintiff argued that defendant owed Thomas a duty “to explain the reasons for ordering a particular diagnostic test, including the potentially life-threatening conditions that the test is intended to screen for,” and breached that duty by not telling him that “he needed a CT scan so that defendant could rule out cancer or other potentially serious conditions.” Plaintiff relied on an excerpt from Dr. M’s (plaintiff’s SOC expert) testimony to support her stated SOC. The court held that it was clear that M “did not testify that a doctor owes a patient a duty to inform the patient that a test is needed to rule out potentially serious conditions.” Instead, M testified that a doctor satisfies the SOC “if the doctor tells the patient that a test is needed ‘to assist in diagnosing’ a problem that the doctor has been otherwise unable to diagnose.” The court held that there was “no genuine issue of material fact that defendant satisfied” the SOC. “Thomas testified that defendant told him a CT scan was necessary because defendant ‘didn’t really see nothing’ in the other tests that could explain Thomas’s problems. Likewise, defendant testified that he discussed with Thomas that a CT scan was needed to diagnose the cause of Thomas’s problems.” When viewing the evidence in the light most favorable to plaintiff, there was “no evidence that defendant failed to tell Thomas that the CT scan was needed to assist defendant in diagnosing Thomas’s otherwise undiagnosed problem.” Thus, there was no genuine issue of material fact that defendant did not breach the SOC articulated by M.
Whether the medical malpractice complaint was timely; Whether the exception listed under MCL 600.2912b(9) applied; Bush v. Shabahang; MCL 600.2912b(1) & (7); Burton v. Reed City Hosp. Corp.; Haksluoto v. Mt. Clemens Reg’l Med. Ctr.; Tyra v. Organ Procurement Agency of MI; Duncan v. Michigan; Principle that only the Supreme Court may overrule its decisions; Paige v. Sterling Heights; Equitable tolling; Houghton ex rel Johnson v. Keller
Holding that plaintiff’s medical malpractice complaint was untimely, the court affirmed the trial court’s order granting defendants’ motion for summary disposition. Plaintiff argued that his complaint was timely filed because the exception listed under MCL 600.2912b(9) applied. He relied on a conditional statement in defendants’ response to his notice of intent (NOI) to claim that they “represented they did not intend to settle the claim within the 182-day notice period of MCL 600.2912b. Specifically, defendants reserved ‘the right to modify or assert additional defenses after discovery has been initiated and further analysis is conducted by expert witnesses.’” Plaintiff contended that this reservation showed “defendants were essentially inviting plaintiff’s lawsuit before the expiration of the 182-day notice period because of the use of the word ‘discovery,’ and plaintiff reasonably relied on this reservation as showing defendants’ intent not to settle the claim during the 182-day notice period.” The Michigan “Supreme Court has held that ‘[a] defendant can either advise the plaintiff of the decision to waive or the defendant may do nothing at all, either of which triggers the shortened waiting period’ contained in MCL 600.2912b(9).” But neither of these happened in this case. “Defendants never directly—or impliedly—advised plaintiff that they wanted to waive the 182-day notice period. Furthermore, defendants did not ‘do nothing at all’ because they responded to plaintiff’s NOI in compliance with MCL 600.2912b(7).” Plaintiff failed to provide support for his claim “that reasonable reliance on his part should accelerate the 182-day notice period absent a writing demonstrating defendants’ intent not to settle.”
An insurer’s duty to defend an insured; Principle that the insurer must provide a defense if the allegations of a third party against the policyholder even arguably come within the policy coverage; Radenbaugh v. Farm Bureau Gen. Ins. Co. of MI; American Bumper & Mfg. Co. v. Hartford Fire Ins. Co.; Allstate Ins. Co. v. Maloney; Protective Nat’l Ins. Co. of Omaha v. City of Woodhaven; Detroit Edison Co. v. Michigan Mut. Ins. Co.; Auto Club Group Ins. Co. v. Burchell; The intentional tort exception to the Worker’s Disability Compensation Act (WDCA); MCL 418.131(1); Travis v. Dreis & Krump Mfg. Co.; The exclusive-remedy provision of the WDCA; Harris v. Vernier; Contract construction; Matouk v. Michigan Mun. League Liab. & Prop. Pool; Allstate Ins. Co. v. Fick; Frankenmuth Mut. Ins. Co. v. Masters; Michigan Nat’l Bank v. Laskowski; Auto-Owners Ins. Co. v. Harrington; Century Sur. Co. v. Charron; Allstate Ins. Co. v. Freeman
The court held that the trial court erred by denying defendant-insurer’s motion for summary disposition and by instead granting summary disposition for plaintiff-insured. Defendant defended plaintiff in a negligence action brought against plaintiff by its employee. The trial court in that matter granted summary disposition for plaintiff. However, the employee was allowed to amend his complaint to include new allegations, including intentional tort. Defendant then informed plaintiff that it was no longer obligated to defend it. The trial court disagreed and granted summary disposition for plaintiff. On appeal, the court agreed with defendant that the trial court erred by denying its motion for summary disposition and by instead granting summary disposition for plaintiff. It noted that defendant would not have been required to defend plaintiff if, from plaintiff’s standpoint, the injury was either intentionally caused or aggravated by plaintiff, or if it had actual knowledge that an injury was certain to occur and it willfully disregarded that knowledge. The court noted that the employee alleged that plaintiff had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. “Because this conduct was excluded from coverage by the policy, [defendant] did not have a duty to defend [plaintiff] against the intentional tort claim.” In addition, “even if the fact finder was to determine that [plaintiff] was not liable for an intentional tort because [the employee’s] injuries were caused by an accident, [the employee’s] claim would be barred under the exclusive-remedy provision of the WDCA.” Because there was “no possibility of coverage under the policy, it reasonably follows that [defendant] had no duty to defend [plaintiff] against” the intentional tort action. Finally, because defendant “was not contractually obligated to defend the intentional tort claim, it was also not required to defend the breach of contract claim.” Reversed and remanded.
Trip & fall on stairs; Premises liability; Duty owed to an invitee; Stitt v. Holland Abundant Life Fellowship (Stitt I); Hoffner v. Lanctoe; Buhalis v. Trinity Continuing Care Svcs.; Bertrand v. Alan Ford, Inc.; Open & obvious danger; Eason v. Coggins Mem’l Christian Methodist Episcopal Church; Knight v. Gulf & W. Props., Inc.; Constructive notice
The court held that the trial court erred by denying defendant’s motion for summary disposition of plaintiff’s premises liability claim. Plaintiff sued defendant for injuries she sustained when she tripped and fell on a set of stairs as she left defendant’s office building. Defendant moved for summary disposition asserting that the open and obvious doctrine precluded premises liability because plaintiff had not established that the stairs were anything other than ordinary deck stairs and that the minor flaws that existed were visible. The trial court rejected its argument, reasoning that plaintiff had provided “perhaps weak or meager” circumstantial evidence that her fall was caused by the condition depicted in the photograph showing the sloped front board. On appeal, the court rejected defendant’s open and obvious danger argument. “Even presuming that an average person of ordinary intelligence would readily observe that the stairs had not been expertly constructed, that does not necessarily establish that such a person should casually observe any specific defect.” However, it found the evidence was not sufficient to impute constructive notice upon defendant. “Presuming there was, indeed, a defect in the steps, the evidence in the record nevertheless does not establish that it had existed for long enough or was of such a character that defendant should, by exercising reasonable care, have discovered it.” Reversed and remanded.
Request for an ad valorem tax exemption under MCL 211.7o(1) or (5); Whether petitioner was a “charitable institution”; Wexford Med. Group v. City of Cadillac; Baruch SLS, Inc. v. Tittabawassee Twp.; OCLC Online Computer Library Ctr. v. City of Battle Creek; Michigan United Conservation Clubs (MUCC) v. Lansing Twp.; Distinguishing Kalamazoo Nature Ctr. v. Cooper Twp. & Moorland Twp. v. Ravenna Conservation Club, Inc.; Tax Tribunal (TT)
The court held that petitioner-UPLC was not entitled to a tax exemption under MCL 211.7o(1) or (5) because it did not qualify as a charitable institution given that the property at issue “was not used or offered for the benefit of the general public or an indefinite number of persons.” Thus, the court affirmed the TT’s order granting respondent-township summary disposition. UPLC, a nonprofit organization with federal tax-exempt status, sought an ad valorem tax exemption for approximately 600 acres of property that provides a home for bald eagles, loons, and moose, as well as vegetative species. “The public was allowed to engage in ‘nondestructive activities’ within” the property, including bird watching, cross country skiing, hiking, and snowshoeing, during daylight hours on existing trails. The court noted that in MUCC, the Michigan Supreme Court recently “held that a conservation club, situated on five acres, was not a charitable institution because the benefits it provided were not for an indefinite number of persons.” The court found MUCC “directly analogous.” It concluded that petitioner failed to satisfy Wexford factors 2, 3, and 4, which the TT “correctly identified as overlapping. Petitioner did not partake in, or offer, activities on or usage of the subject property for the benefit of the general public or an indefinite number of people. Although the property was nominally and legally open to the general public, the record demonstrates that the general public had restrictions on visiting the property that others, particularly the adjacent property owners, did not. The evidence from UPLC’s representatives strongly indicate that visiting the property without prior authorization was restricted and difficult.” Although some of the restrictions were “due to the remoteness of the property and the need to conserve the land, UPLC could have remedied this issue by hosting additional educational programs and further interacting with other local organizations. Yet, it had not done so, and it provided no adequate reason for not doing so beyond noting that it had only recently acquired the property.” While there were some differences between UPLC and the organization in MUCC, “notably that UPLC did not nominally or legally restrict the access to its property to only members, the organization in MUCC offered additional activities and educational events to the general public."
Termination under §§ 19b(3)(c)(i), (g), & (j); Jurisdiction; In re BZ; Failure to appoint a lawyer-guardian ad litem (LGAL) for the children at the adjudicatory hearing; MCL 712A.17c(7); MCR 3.915(B)(2)(a); “Shall” & “shall not”; Roberts v. Mecosta Cnty. Gen. Hosp.; Alleged due process violation; In re Ferranti; Children’s best interests; In re Moss Minors; MCL 712A.19b(5); In re Olive/Metts Minors
The court held that while the trial court clearly erred in not appointing a LGAL at the preliminary hearing, the error did not affect respondent-mother’s substantial rights or deprive the trial court of jurisdiction. Further, although it erred in terminating both respondents’ parental rights under § (g), the error was harmless because §§ (c)(i) and (j) supported termination. Finally, termination was in the children’s best interests. As to the mother’s argument the trial court violated her due-process rights and failed to properly take jurisdiction because the children were not appointed a LGAL at the adjudicatory hearing, it was required to do so by MCL 712A.17c(7) and MCR 3.915(B)(2)(a). But not appointing an LGAL did not deprive it of jurisdiction, because the trial “court first takes jurisdiction before the duty to appoint arises. Second, at the preliminary hearing, respondents admitted to allegations in the petition, and these admissions allowed the trial court to take jurisdiction over the children. Respondent mother voluntarily and knowingly made these admissions.” Further, she did not explain how exactly a LGAL’s presence “would have resulted in a different outcome. The LGAL’s duty is to the child, MCL 712A.17d(1), so the LGAL’s role would have been to advocate on” the children’s behalf. The trial court did not err in terminating respondents’ rights under § (c)(i). The record supported its conclusion that they had not rectified the conditions leading to the adjudication. It found that their “home remained in an unsuitable condition for the children despite two years to remedy the problem.” It was still cluttered “and continued to smell of smoke, urine, and marijuana.” They also both admitted they had “been unemployed for at least two years.” This issue had still not been fully rectified as the time of termination as they “had not displayed the ability to obtain stable employment or provide stable income for the children.” In addition, the father’s “failure to treat his psychiatric issues, or make adequate efforts to improve his parenting skills,” supported the determination that those “issues would not be rectified in a reasonable time.” As to the children’s best interests, while they “had numerous physical and mental needs” they were doing well in their placement with their grandparents, who provided them “with necessities, and consistently cared for their medical needs.” Affirmed.
Termination under § 19b(3)(h) (incarceration for more than two years); Child sexually abusive activity for the purpose of producing child sexually abusive material; MCL 750.145c(2); Best interests of the child; Waiver; Braverman v. Granger; The Cadle Co. v. City of Kentwood; Harbor erroring as an appellate parachute; Holmes v. Holmes; In re Hudson
Holding that respondent-mother waived the issue of whether termination of her parental rights was in the child’s best interests, the court affirmed the trial court’s order terminating her parental rights. She conceded that termination was appropriate after she was sentenced to 8 to 25 years for child sexually abusive activity for the purpose of producing child sexually abusive material for taking a video of the child in a sexually compromising position. However, she claimed that termination was not in the child’s best interests. The court disagreed. “At the termination hearing, respondent’s attorney stated: ‘My client understands that [termination of respondent’s parental rights] is in the best interest of her child.’” In addition, she “admitted at the termination hearing that the allegations in the petition were true and affirmatively stated that she was allowing her parental rights to be terminated.” Thus, because she “agreed with the determination below, she has waived this issue.”
Termination under § 19b(3)(c)(i); In re White; Reasonable reunification efforts; Accommodating disabilities under the Americans with Disabilities Act (ADA) (42 USC § 12101 et seq.); In re Hicks/Brown; Principle that children should not have to wait for long periods of time in foster care; In re Williams; A parent’s failure to undertake special efforts that a child’s special needs demand; In re LaFrance Minors; Ineffective assistance of counsel; In re Martin; People v. Horn; People v. Pratt; Whether the trial court should have adjourned the termination hearing due to a respondent’s unavailability; Due process; In re Sanders; Plain error review; In re Utrera; In re TK
The court held that the DHHS made reasonable reunification efforts as to both respondents, and rejected respondent-mother’s claims of ineffective assistance of counsel and a due process violation based on failure to adjourn the termination hearing. It also held that § (c)(i) supported terminating respondent-father’s parental rights. Thus, it affirmed the order terminating their parental rights. She asserted that the DHHS did not accommodate her disabilities under the ADA, and he contended that it failed to inform him “a trauma-informed parenting class would only be offered once and by requiring him to complete that class as a condition of reunification.” The court disagreed with both claims. It concluded that the record showed “no error, much less any plain error,” as to the reasonableness of the DHHS’s efforts to accommodate the mother’s “dyslexia, learning disabilities, and intellectual functioning challenges.” The record revealed that she “failed to participate in services aimed at reasonably accommodating her disability despite the trial court’s” and the DHHS’s efforts. As to the father, the court noted that when “a child has special needs, a parent’s failure to ‘undertake the special efforts that those special needs demand[]’ may support terminating the parent’s parental rights.” The trial court here determined that the father “failed to undertake these special efforts, despite being offered the services to aid him in doing so. The trial court’s decision was based on its assessment of the relative credibility of” the father and the caseworker. The court concluded that the DHHS made reasonable efforts to reunify him “with the children when it offered him the parenting class and he chose not to participate in it.” As to the denial of the mother’s request to adjourn the termination hearing, she voluntarily chose to leave the state while the request was pending, without knowing whether it would be granted. The court found that she “did not show a legally sufficient reason to adjourn the hearing on the basis of her absence[.]” As to the father and § (c)(i), he was “mistaken that his substance abuse was not a condition that led to adjudication” and the record supported that he failed to rectify this issue. He “was unsuccessfully discharged from a substance abuse counseling program and continually tested positive for marijuana and cocaine.”