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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Jury selection; Right to a fair & impartial jury; Anonymous jury; People v Hanks; Curative instruction; Prosecutorial misconduct; Right against self-incrimination; People v Barritt; Ineffective assistance of counsel; Failure to make a futile objection; Prejudice
The court held that: (1) the use of juror numbers was not a violation of defendant’s right to a fair and impartial jury; (2) the prosecution did not commit misconduct; and (3) he was not denied the effective assistance of counsel. He was convicted of CSC I and II for sexual abusing the victim over the course of several months when she was eight years old. On appeal, the court rejected his argument that the trial court: (1) erred by referring to jurors by number, instead of by their names, meaning he was erroneously tried by an anonymous jury; and (2) failed to mitigate the prejudice caused by this practice by giving a cautionary instruction to the jury. Defendant’s “trial was only held before an anonymous jury ‘in a literal sense,’ purely because the jurors were referred to by pool number. The record contains no evidence that any of the potential dangers stemming from anonymous juries were present here. The use of juror numbers was therefore not a violation of defendant’s due-process right to a fair and impartial jury.” The court also rejected his claim that the prosecutor committed misconduct during her direct examination of the detective and during closing argument. “At most, the testimony that the prosecutor elicited referred to defendant’s prearrest silence, given that CPS and the police unsuccessfully attempted to contact him during the investigation.” Further, even “if the prosecutor had directly stated that defendant fled the state because he was attempting to avoid prosecution, ‘a prosecutor may comment on the inferences that may be drawn from a defendant’s flight.’” Finally, the court rejected his contention that defense counsel was constitutionally ineffective for (1) failing to object to the prosecutor’s questioning of the detective; (2) failing to object to the prosecutor’s statement regarding his flight from the state during closing argument; and (3) eliciting testimony regarding his refusal to speak with CPS or the police. “Even if we agreed that trial counsel’s questioning was objectively unreasonable, defendant cannot show that he was prejudiced by defense counsel’s performance, given that the prosecutor presented ample additional evidence in support of his guilt.” Affirmed.
Motion to modify physical custody; Appropriate evidentiary standard; Established custodial environment (ECE); Sabatine v Sabatine; Findings on the statutory best-interests factors (MCL 722.23); Factors (e), (g), (h), (j), & (k); Motion for change of domicile; The MCL 777.31(4) factors
The court held that the trial court did not commit clear legal error in not applying “the clear-and-convincing-evidence standard” in ruling on plaintiff-mother’s motion to modify physical custody of the parties’ child. And the trial court’s findings on “best-interests factors (e), (g), (h), (j), and (k) were not against the great weight of the evidence[.]” Finally, the court rejected defendant-father’s claim that some of the findings on the MCL 777.31(4) “factors were against the great weight of the evidence and did not support” the decision on his motion to change domicile. The trial court granted plaintiff’s motion as to physical custody, denied defendant’s motion to change the child’s domicile, and established a parenting-time schedule. As to the evidentiary standard the trial court applied in making its custody decision, the court noted that Sabatine makes it clear the touchstone of an ECE “is the relationship between the parent and child, which depends on more than simply when or how often a parent exercises his or her parenting time.” In addition, it was the child’s “standpoint as the child rather than plaintiff’s standpoint as a parent that controls the trial court’s analysis in this matter.” The court found that the “trial court’s custody award comports with these principles; although the award would work a substantial change in the preexisting parenting-time arrangement, the [trial] court concluded it would still maintain [the child’s] existing relationships with each party and not alter” the ECE. Defendant did not show any reversible error in that assessment. The court also rejected his argument “that several of the trial court’s best-interests findings were against the great weight of the evidence and did not support its decision to award the parties equal custody of” the child. It was unpersuaded that the trial court’s “decision to grant plaintiff’s motion to modify custody was ‘palpably and grossly violative of fact and logic.’” Finally, it concluded “the trial court’s findings under change-of-domicile factors (a), (c), and (e) were not against the great weight of the evidence, and” it found defendant’s claims of error in this regard had no merit. Affirmed.
Medical malpractice; Vicarious liability; Cox ex rel Cox v Board of Hosp Managers for City of Flint; Actual agency; Laster v Henry Ford Health Sys; Ostensible agency; Grewe v Mount Clemens Gen Hosp; Markel v William Beaumont Hosp
The court held as to plaintiff-estate’s vicarious liability medical malpractice claim against defendant-hospital (McLaren) that while there was no “genuine issue of fact as to actual agency, there” was one as to ostensible agency. Thus, it reversed the trial court’s order granting McLaren summary disposition and remanded. While plaintiff’s decedent (Baker-Olson) was at McLaren awaiting aortocoronary bypass surgery, she “suffered cardiopulmonary arrest and died.” The court first concluded that plaintiff did not “provide any evidence of an actual agency relationship between” McLaren and defendant-doctor (Martin). “Because plaintiff did not meet the requisite burden of proof, the trial court properly rejected this theory.” But there was a genuine issue of material fact as to whether McLaren was “vicariously liable under a theory of ostensible agency. A reasonable fact-finder could determine that Baker-Olson reasonably believed Martin was an agent of McLaren. Baker-Olson presented to Harbor Beach emergency complaining of chest pain. She was subsequently transferred to McLaren, where [she] had a surgical consultation with Martin and was recommended for surgery. Baker-Olson did not have a preexisting relationship with Martin before going to McLaren, and she sought treatment from McLaren for her emergent heart condition.” The court added that “Martin did not indicate to Baker-Olson that he was an independent contractor. The only evidence suggesting this is the fact [he] performed surgeries at other hospitals in the area. But the fact that Martin worked at multiple hospitals does not necessarily lead to the conclusion that he was not an agent of McLaren. Baker-Olson was never given ‘clear notice’ of Martin’s employment status.” The court found that the “trial court’s emphasis on Markel III was misplaced.” Apart from the fact that Markel III was an unpublished decision, it was “distinguishable because, in Markel III, the issue of reliance was not contested by the plaintiff.” In addition, “there were key factual differences between Markel III and this case.” The court concluded a “reasonable fact-finder could determine Baker-Olson sought treatment at McLaren and relied on [it] to provide her physicians for treatment.” And while McLaren asserted “that Grewe’s holding is limited to” ER treatment, “nothing in Grewe suggests this to be the case[.]”
The No-Fault Act (NFA); MCL 500.3009(1); Applicability of the increased minimum bodily injury or death liability limits for no-fault insurance policies enacted in 2019 PA 21 & 22; Progressive Marathon Ins Co v Pena
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see eJournal # 80036 in the 8/24/23 edition), which held “that the increased minimum bodily injury or death liability limits for no-fault” policies enacted in 2019 PA 21 and 22 “do not apply to policies delivered or issued for delivery before” 7/2/20, and remanded the case to that court for further consideration. The court held that by “delivering a policy that did not comply with the minimum liability limits specified in Subsections (1)(a) and (1)(b)” of MCL 500.3009, defendant-Progressive “issued a policy that failed to comply with the minimum requirements of the” NFA. The court noted that in reaching this conclusion, it rejected “the Court of Appeals’ conclusion that the date ranges in Subsections (1)(a) and (1)(b) . . . modify the verb phrase ‘must not be delivered or issued for delivery’ in Subsection (1).” It found this reading was “contrary to the statute’s plain language and organization.” The court determined that “Subsection (1) of MCL 500.3009 requires that a policy may not be delivered or issued for delivery unless it provides all of the minimum liability coverage prescribed in Subsections (1)(a) and (1)(b), while Subsections (1)(a) and (1)(b) specify what coverage level is to be provided and differentiate between the required coverage level before [7/2/20], and after” 7/1/20. It concluded that the “general effective date of 2019 PA 21 and 2019 PA 22—[6/11/19]—governs, such that policies delivered or issued for delivery after that date must comply with ‘all’ the coverage requirements in Subsections (1)(a) and (1)(b) unless the insured selects a different coverage level under Subsection (5).” In addition, it rejected “Progressive’s argument that this interpretation is inconsistent with Subsection (1)’s provision that it is subject to Subsections (5) to (8).” Dissenting, Justice Zahra (joined by Justice Welch) would affirm the Court of Appeals’ judgment because he agreed with the panel that the Court of Appeals’ decision in Pena was dispositive. He determined that the Court of Appeals in Pena “correctly concluded that the increased bodily injury minimum liability limits for no-fault insurance policies enacted in 2019 PA 22 do not apply to insurance policies issued or delivered before” 7/2/20.
Pre-amendment version of MCR 2.403(O) allowing recovery case-evaluation sanctions; Reitmeyer v Schultz Equip & Parts Co, Inc; RAD Constr, Inc v Davis (overruled in part by Webster v Osguthorpe); “Injustice” exception to MCR 1.102; Uninsured motorist (UM) benefits
Concluding that “the trial court’s determination did not constitute an abuse of discretion in the circumstances of this case,” the court affirmed the order granting plaintiff-Grant’s motion for case-evaluation sanctions under former MCR 2.403(O). He was injured in a motor-vehicle accident. He filed this breach-of-contract action against defendants-Auto Owners and Home Owners (collectively Auto Owners) seeking UM benefits. A jury rendered a verdict in his favor. On appeal, Auto Owners challenged “the trial court’s decision to apply former MCR 2.403(O) and award case-evaluation sanctions rather than the amended court rule, which does not provide for case-evaluation sanctions.” Auto Owners primarily relied on RAD Constr and argued that this case required the same result. It asserted “that, as in RAD Constr, the trial court in this case lacked authority to impose case-evaluation sanctions. After the parties filed their briefs on appeal in this case, and this Court heard oral argument,” the Supreme Court decided Webster, in which it overruled RAD Constr in that regard. Thus, the court held that “Auto Owners’s reliance on RAD Constr for the proposition that the trial court lacked authority to apply the former rule is unavailing.” Further, as stated in Reitmeyer, “whether the ‘injustice’ exception to MCR 1.102 applies is to be determined on a case-by-case basis.” The court examined the facts and circumstances in this “case in reviewing the trial court’s decision to apply the old rule” here. It found that “the trial court record does not include the full transcript; only the transcript of Grant’s motion for case-evaluation sanctions is included in the record. Without the jury-trial transcript, or an alternative trial court filing that details Grant’s injuries and sensibilities as well as the nature of the incident, we cannot conclude that the trial court abused its discretion by determining that those factors warranted application of the former court rule.” The court noted that in “addition to those factors, the trial court reasoned that the former court rule had been in effect during much of the lower court proceedings and that Grant’s attorney agreed to substitute for previous counsel because case-evaluation sanctions were available at the time that he substituted in” this case. The court found that the “trial court properly relied on factors set forth in Reitmeyer—including timing, gamesmanship, and reliance—in deciding whether applying the new rule would work an injustice.”
Inquiry as to a child’s Indian heritage; MCR 3.977(G); Application of The Indian Child Welfare Act & the Michigan Indian Family Preservation Act; In re Beers; “Indian child”; MCL 712B.3(k); Effect of a trial court’s knowledge that a child may be Indian; MCL 712B.9 & 11; Notice; Conditional reversal; MCL 712B.9(4)(a); In re Morris
Holding that the trial court erred by failing to conduct a proper inquiry into respondent-mother’s claim that she and the child have Indian heritage, the court conditionally reversed and remanded for compliance with notification requirements. Her rights were terminated on the basis of her significant mental health issues and long history with CPS. On appeal, the court agreed that the trial court erred by failing to conduct a proper inquiry into her claim that she and the child have Indian heritage. “Mere statements in court reports that an inquiry was made and that the child was not determined to be Indian is insufficient documentation that the potential tribe was notified.” Respondent clearly “indicated that she and the child were Cherokee.” As such, “statutory-notice requirements were plainly triggered by” her statements. “The trial court relied on court reports, which indicated that the inquiry had been made in an earlier case, and concluded that the child was not Indian. However, no additional documentation or receipt of notice to the Cherokee Nation was provided in the record.” It also mentioned that it had a note that a previous child protective proceeding determined that respondent’s older child was not Indian; however, MCL 712B.9 does not indicate that the trial court or agency may rely on previous inquiries to satisfy notification and determination requirements.” Although its “conclusion may be correct, in the absence of any proof that the Cherokee Nation was properly notified, we must err on the side of caution because Indian tribes change their eligibility requirements such that an older child may not have been eligible for membership while a younger child born to the same parents could be, and vice versa.”
Uncapping the taxable value (TV) of real property; The General Property Tax Act (GPTA); Const 1963, art. 9, § 3; Klooster v Charlevoix; Effect of the transfer of shares in petitioner-property owner (a cooperative); “Transfer of ownership” (MCL 211.27a(6)); Exemptions (MCL 211.27a(7)); The Tax Tribunal (TT); Board of Review (BOR)
In an order in lieu of granting leave to appeal, the court affirmed the Court of Appeals’ judgment (see eJournal # 80510 in the 11/27/23 edition). It concluded that the BOR, the TT, and the Court of Appeals correctly determined that the “conveyances of more than 50% of” petitioner-domestic nonprofit corporation’s “shares presented an uncapping event under the GPTA.” Petitioner’s sole purpose is to hold “a family cottage on behalf of its members. The corporation was formed with five distinct memberships, some held individually and some as joint tenancies between spouses. In 2021, existing members [nonparties-DB and WB] bought two different interests from several of their fellow members, totaling a 48% interest in the business. Later that year, they sold a portion of their ownership interest in the property—20%—to one existing and two new members.” The issue was whether these conveyances constituted “an uncapping event under the GPTA. The [BOR] and the [TT] answered yes, and the Court of Appeals affirmed.” The court held that their interpretations were “consistent with the canons of statutory interpretation and the Legislature’s intent as derived from the statute’s text.” It noted that to determine if an uncapping event occurred here, the law directed it “to determine whether a conveyance has occurred; whether it conveyed title or a present interest ‘the value of which is substantially equal to the value of the fee interest,’ MCL 211.27a(6); and whether, more specifically, the ownership interest’ conveyed was ‘more than 50% of the corporation,’ MCL 211.27a(6)(h).” In this case, 68% “of the corporation was conveyed, although not all at once. The [Bs] themselves went from an equal-share minority interest of 24%, up to a supermajority of 72%, down to a simple majority of 52%. A ‘transfer of ownership’ occurred, both as a matter of common sense and under the plain language of MCL 211.27a(6).” Petitioner asserted “that a conveyance of the ‘same’ ownership interest across multiple transfers should not be considered an uncapping event. But if the Legislature meant to reach that outcome, it could have done so. In fact, the Legislature did provide for both exclusion of cumulative conveyances for some types of corporations—not including petitioner—and also exceptions for when transfers of ownership do not occur for purposes of uncapping.” It further noted that “MCL 211.27a(7) expressly exempts certain conveyances from the definition of ‘transfer of ownership.’” Dissenting, Justice Bernstein (joined by Justice Zahra) believed that the Court of Appeals and the TT erred in concluding that the TV of petitioner’s property had been uncapped. “A cumulative conveyance can result in a transfer of property ownership—but only if [it] is of more than 50% of the corporation’s ownership interest.” The dissent found that “simply adding together individual shares that have been conveyed in a series of transactions and concluding that the sum is more than 50% of the total shares does not necessarily mean that more than 50% of the ownership interest has been conveyed.”
Termination under §§ 19b(3)(a)(ii) & (b)(ii); Jurisdiction under MCL 712A.2(b)(1); Hearsay within hearsay; Kuebler v Kuebler; Anticipatory neglect; In re Kellogg; Reunification efforts; Aggravating circumstances; MCL 722.638; In re Barber/Espinoza; Children’s best interests; “Relative”
The court held that the trial court erred by finding: (1) it had jurisdiction over the children at issue; (2) the DHHS was not required to make reunification efforts; (3) statutory grounds were met; and (4) termination was in the children’s best interests. Respondent-mother’s rights to her sons (the boys) were terminated based on “‘willful ignorance’ and failure to follow up on ‘red flags’ and ‘clues’ regarding the situation inside” the home of her daughters’ (the girls) father (Shelton), who was charged with multiple crimes arising out of the death of one of his girlfriend’s sons. One of respondent’s daughters lived in that home. On appeal, the court agreed with respondent that the trial court erred by finding statutory grounds to assume jurisdiction over the boys when no evidence indicated they were abused, abandoned, or neglected. “[F]or the trial court to assume jurisdiction over the boys on the basis that respondent neglected the girls,” it first had to determine she neglected the girls. But the record did not support its determination that she “neglected any of her children.” The evidence and testimony “did not support that respondent knew about the conditions in Shelton’s home.” Considering the “scarcity of evidence that respondent actually knew or should have known about the abuse occurring in Shelton’s home,” the court was not convinced she neglected the girls. Moreover, “the doctrine of anticipatory neglect [did] not support the trial court’s jurisdiction over the boys.” The court also agreed with her that the trial court erred by releasing the DHHS from its obligation to make reasonable reunification efforts in the absence of aggravating circumstances. The trial court “erred by finding that the boys were subjected to aggravating circumstances because” the abusers “were not a parent, guardian, or custodian of the boys, and nothing in the record” suggested they ever resided with the boys. The court further agreed with respondent that the trial court erred by finding statutory grounds were met. As to § (a)(ii), nothing in the record suggested she abandoned the boys. As to § (b)(ii), the picture this case painted was “not that of a neglectful mother. To the contrary, the record supports that [she] repeatedly made efforts to investigate Shelton.” Finally, as to the children’s best interests, the “trial court did not articulate any findings specific to the best interests of the boys, focusing instead on the girls. Most notably, [it] acknowledged that the girls’ placement with their grandmother weighed against termination, but [it] failed to similarly consider that the boys resided with” their father. Reversed and remanded.
Termination under § 19b(3)(c)(i); Case-service plan (CSP)
Concluding that under the circumstances, the trial court did not err by finding that DHHS established § (c)(i) for terminating respondent-father’s parental rights to his daughter, NCS, the court affirmed. He argued that “he was not given the opportunity to demonstrate his willingness and ability to make the necessary changes.” He pointed “to his successful completion of anger-management classes and claims that he was not given time to use those new skills. NCS was removed from father’s care in [10/23]. The termination hearing took place in” 10/24. Thus, he “was given more than 182 days to rectify the conditions leading to NCS’s removal.” His claim “that he was not given enough time to rectify the conditions that led to NCS’s removal” was unavailing. He also “failed to abide by his CSP. [He] was released on bond in the child abuse case while the child protective proceedings were ongoing. As part of his bond conditions, father’s CSP required him to abstain from alcohol and drug use.” The trial court noted that, although he “completed a substance-abuse program, he continued to test positive for marijuana and alcohol.” Also, the record showed that he “did not complete parenting classes, refused to allow DHHS to conduct a home visit, and did not respond to referrals for a psychological evaluation.” Further, he “stated that he was participating in services only because his children got him in trouble.” Thus, the record showed that he “failed to fully benefit from reunification services and failed to acknowledge his responsibility for bringing NCS into DHHS’s care in the first instance.”