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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Habitual offender sentencing; MCL 769.10; Whether a crime committed in another state would be a felony in Michigan; Home-invasion crimes; MCL 750.110a; Scoring of PRVs 2 & 6; MCL 777.52(1)(d); MCL 777.56(1)(c)
The court held that the trial court on remand did not err in determining that defendant’s “Ohio conviction would be a felony in Michigan” and in enhancing his maximum sentence pursuant to MCL 769.10. Further, it did not err in scoring 5 points for PRV 2 and 10 points for PRV 6. Thus, defendant was not entitled to resentencing. He was convicted of intentional discharge of a firearm at a building and, after remand from the court, resentenced as a second-offense habitual offender to 5 to 15 years. The trial court originally did not determine whether his prior “Ohio offense would be a felony in Michigan before relying on that offense to enhance defendant’s sentence. However, on remand, [it] corrected this error by conducting a hearing and making a determination on this issue before resentencing defendant.” The Ohio offense in question was trespass in a habitation, a fourth-degree felony. He argued “that the analogous offense in Michigan is a misdemeanor pursuant to MCL 750.115[.]” But the trial court determined that the “conduct would be a felony in Michigan, particularly either a first or third-degree home invasion.” The court concluded that the record supported the “determination that the facts of defendant’s Ohio crime would constitute felony home invasion if committed in Michigan.” The facts supported that he “entered a dwelling without permission when a person was lawfully present, satisfying most of the elements of both first and third-degree home invasion pursuant to MCL 750.110a(2) and (4). The only remaining element for either felony is whether [he] entered the home with intent to commit a felony, larceny, or assault, MCL 750.110a(2), or with the intent to commit a misdemeanor, MCL 750.110a(4).” The court held that the trial court could infer his “intent to commit at least a misdemeanor in” the victim’s (W) “home, given that he entered the home through a kitchen window in the middle of the night and fled when [W] called the police. . . . Because [he] had intent to commit at least a misdemeanor, his actions constituted at least third-degree felony home invasion.” Affirmed.
Imposition of a consecutive rather than concurrent sentence; People v Norfleet (Norfleet I & II); People v Johnson
The court found that the record showed “that the trial court articulated with particularity its rationale for imposing consecutive sentences and that its decision to depart from the heavy presumption in favor of concurrent sentences was within the range of reasonable and principled outcomes.” Thus, it held that the trial court did not abuse its discretion. Defendant was convicted of second-degree arson and third-degree killing or torture of an animal. He was sentenced as a fourth-offense habitual offender to 156 to 360 months for the former and a consecutive term of 46 to 180 months for the latter. On appeal, he challenged the trial court’s imposition of consecutive, rather than concurrent, sentences. Defendant contended “that the trial court abused its discretion by considering elements of the offense ‘already contemplated by the offense statute,’ i.e., the intent to kill or torture the dog, in its rationale for the imposition of consecutive sentences.” He argued “by analogy that, because a trial court cannot ‘base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range’ under MCL 769.34(3)(b) in a sentencing guideline departure analysis, likewise here the trial court should not have been able to contemplate the elements of the offense in its rationale for consecutive sentencing.” The court was not persuaded for several reasons. “First, defendant’s analogy breaks down when one compares the statutes in play.” Second, he failed “to cite any authority that prevents trial courts from considering facts related to an element of the offense in justifying the imposition of consecutive sentences.” Third, it was “clear that the trial court did not base its decision to impose consecutive sentencing solely on an element of the offense. Rather, [it] expressly stated that it was a combination of disturbing facts[.]” The court found that the “trial court’s explanation, which gave ‘particularized reasons” as required by Norfleet I, . . . goes well beyond merely relying on an element of the offense.” The record reflected “that the dog’s death was not merely incidental to the arson; defendant stated his intent to kill [E’s] dog and burn down his house, and when confronted by neighbors said ‘F*** the dog. The crackhead stole my car, so I lit it on fire.’” Thus, sentencing him “to terms of incarceration beyond what would have been imposed for the arson conviction alone is consistent with the goal of discouraging those who commit arson from committing additional crimes such as the one carried out here.” Finally, the court disagreed with his “assertion that the trial court’s explanation did not include particularized reasons specific to the defendant.” Affirmed.
Divorce; The Domestic Relations Arbitration Act; MCL 600.5072; Division of personal property; Effect of allegations of domestic abuse; Spousal support; Attorney fees; Judgment of divorce (JOD); Personal protection order (PPO)
The trial court’s judgment as to arbitration of the division of the parties’ personal property was vacated, as was its “denial of spousal support and attorney fees for” plaintiff-ex-wife. The JOD was affirmed in all other respects and the case was remanded. The court concluded that because “the parties did not agree to arbitration as specified by MCL 600.5072, the trial court was not authorized to order [them] to participate in arbitration to divide their personal property.” Defendant-ex-husband argued “that the trial court’s error in this regard is harmless,” but the court disagreed. “Before arbitration commences in a divorce action, there must be a written agreement between the parties, MCL 600.5071, and [they] must verify in writing or on the record that they were informed of the scope of the arbitration and the arbitrator’s powers, as well as the finality of the arbitration award, and that the arbitration is voluntary, as required by MCL 600.5072.” While the parties “signed the judgment indicating their consent, absent [their] agreement complying with MCL 600.5071 and MCL 600.5072, the trial court was not authorized to order [them] to arbitrate the division of their personal property.” The court also found “that arbitration was not appropriate under MCL 600.5072(2) because this case involves allegations of domestic abuse.” During the trial court proceedings, “the trial court issued plaintiff a [PPO] against defendant. [It] found convincing plaintiff’s testimony that defendant was physically and emotionally abusive to [her] during the marriage, and found that [her] testimony regarding the abuse was corroborated by other witnesses. Given the finding of domestic violence, arbitration in this case is not recommended. Moreover, absent the parties’ waivers in compliance with MCL 600.5072 indicating [their] agreement to arbitrate despite the finding of domestic violence, the trial court was precluded from ordering [them] to arbitrate the division of their personal property.” The court also agreed with plaintiff “that the trial court erred and abused its discretion by denying her request for spousal support.” She contended that the trial court’s ruling was “not supported by the factual findings.” The court agreed. It noted that she “received the marital home encumbered by over $16,000 in debt, and two income-producing rental properties, which generate $33,600 annually.” Because she had “no other income and very limited means of obtaining income, without spousal support plaintiff will be compelled to deplete her assets to pay her living expenses. By contrast, defendant received two income-producing properties generating $30,000 annually in addition to his salary, for a total of over $130,000 yearly, creating a significant disparity in the parties’ financial resources. Because the trial court’s denial of spousal support for plaintiff is not consistent with [its] findings of fact and is almost certain to impoverish plaintiff,” the court concluded that it “abused its discretion by denying spousal support for plaintiff.” It also found the trial court abused its discretion as to attorney fees.
Medical malpractice; Motion to exclude expert testimony; Danhoff v Fahim; MRE 702; MCL 600.2955(1); Elher v Misra; Edry v Adelman; Standard of care (SOC)
On remand from the Supreme Court, the court held in this interlocutory appeal that Danhoff did “not alter or negate the conclusion” in its prior opinion in this case that the trial court clearly erred in finding that plaintiffs’ SOC expert’s (Dr. S) “opinion testimony satisfied the factors in MCL 600.2955(1), and thus the trial court abused its discretion by admitting the testimony.” As a result, it again reversed and remanded “for entry of an order granting defendants’ motion to exclude” S’s testimony. The case was on remand for reconsideration in light of the Supreme Court’s decision in Danhoff. In its prior opinion, the court concluded the evidence was insufficient to show that S’s opinion was reliable. The court found that its “previous analysis comports with the standard announced in Danhoff, which reaffirmed the Supreme Court’s prior rulings in Elher and Edry, and confirmed as proper the application of MRE 702 and MCL 600.2955 upon which” the court’s opinion here rested. It concluded to “the extent that Danhoff clarifies that Elher and Edry do not preclude the admissibility of an expert’s opinion as reliable when the adverse medical event is rare and no supporting medical literature exists, the analysis in this case does not change.” The court noted that “unlike Danhoff, in this case the adverse medical event was not entirely rare and medical literature discussing the circumstances of the event was not absent. Moreover, unlike Danhoff, this Court in this case did not find the expert opinion testimony unreliable because it was unsupported by medical literature; rather, [it] held that [S’s] testimony and the literature proffered to support his opinion did not properly articulate a” SOC. The court noted that it “is insufficient to establish the [SOC] simply to describe a bad outcome and decry it; rather, the [SOC] should explain what a reasonably prudent doctor would do, in keeping with the standards of professional practice, to avoid that bad outcome.” The court found that the proffered published material here “suffers from the same defect inherent in [S’s] testimony.” Both the literature and S “merely counsel against a certain bad result, but without instructing how to avoid the bad result. The failure of [S’s] testimony” was that it did not articulate a SOC. The court’s holding was based on this deficiency, “not strictly on the lack of scientific literature in support of it, which was the issue addressed in Danhoff.”
Offer of judgment; Abandoned issue; MCR 2.405(A)(1); “Offer”; “Sum certain”; Knue v Smith; Tortious interference with a contract or business expectancy; Sanctions for submitting a frivolous filing under MCL 600.2591
The court held that under “the circumstances, the offer of judgment would culminate in the sale of a business, including a medical-marijuana provisioning center license, which is something other than a judgment for a sum certain. Under Knue and the plain language of MCR 2.405(A)(1), the offer-of-judgment rule did not apply to the offer made by defendants,” and they were not entitled to costs and fees under the rule. Also, they “did not present evidence that plaintiffs acted fraudulently and with malice or that they initiated or litigated this case with an intent to interfere with defendants’ contract, expectancy, or business relationship with” nonparty-MedMen. Finally, the court was not left “with a definite and firm conviction that the trial court made a mistake when it found that plaintiffs did not file a frivolous complaint, and” thus, it did not abuse its discretion in denying defendants sanctions under MCL 600.2591. As an initial matter, the court determined that defendants abandoned their offer of judgment “issue by failing to properly present it on appeal.” Further, it disagreed with the merits of their argument. It concluded that applying “the reasoning in Knue, if defendants offered to stipulate to the entry of judgment in plaintiffs’ favor for $2,180,000, it would fall within MCR 2.405(A)(1) as an offer of judgment. Instead, [they] offered to sell their medical-marijuana license to plaintiffs for $2,180,000, which is an offer to exchange a license for money. Defendants’ offer was similar to the impermissible offer in Knue—an offer of money in exchange for a deed.” They next argued “that the trial court erred by granting plaintiffs’ motion for reconsideration of its order denying plaintiffs’ motion for summary disposition under MCR 2.116(C)(10) . . . on defendants’ tortious-interference claim.” The court again disagreed. It noted that defendants’ “claim of tortious interference did not involve a per se wrongful act, but [they] maintained that plaintiffs filed their lawsuit with malice and that the lawsuit was unjustified in law. Under this theory, [they] had to show specific, affirmative conduct to establish that plaintiffs acted with an unlawful purpose to interfere with the contract or expectancy. Moreover, ‘in order to succeed under a claim of tortious interference with a business relationship, the plaintiffs must allege that the interferer did something illegal, unethical or fraudulent.’” The trial court was correct that “simply filing a lawsuit, whether groundless or not, does not meet any of these criteria.” In addition, when a “‘defendant’s actions were motivated by legitimate business reasons, its actions would not constitute improper motive or interference.’” The court found that while “plaintiffs did not prevail in their lawsuit, the record” reflected that their president filed it “for a legitimate business reason.” Moreover, it found that “defendants presented insufficient evidence to establish a genuine issue of material fact that plaintiffs knew about defendants’ contract or relationship with MedMen.” Affirmed.
Termination under §§ 19b(3)(c)(i) & (j); Children’s best interests; In re Olive/Metts; Effect of relative placement; In re Gonzales/Martinez
Holding that the trial court did not clearly err in finding that §§ (c)(i) and (j) were established and that termination was in the children’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. As to § (c)(i), 534 days elapsed between the initial dispositional order and the start of the termination trial. And the court concluded the “trial court did not clearly err by finding that the conditions leading to the adjudication continued to exist.” Respondent’s assertion “that no new issues of improper supervision, i.e., exposing the children to domestic violence, arose” lacked merit because § (c)(i) “requires only that the conditions leading to adjudication ‘continue to exist,’ not that new specific instances must occur.” The record also supported that she “did not rectify the condition of domestic violence because she continued to engage with” the father of two of the children (R and N), with whom she had a history of domestic violence, despite participating in domestic violence counseling. And while she contended “the other conditions leading to adjudication, including parenting skills, unemployment, and housing insecurity, were” rectified, the record reflected that she “did not maintain consistent employment or obtain stable housing for the pendency of the case.” As to her “parenting skills, the caseworker did not see any improvement after respondent completed a 10-week parenting class.” Turning to § (j), the court concluded that her “behavior in choosing to reside with [R and N’s] father placed the children at continued risk of physical and emotional harm.” As to the children’s best interests, the court held that “the trial court did not clearly err by finding that terminating respondent’s parental rights to 4 of” them was in their best interests. It “determined that termination was not in the best interests of the other six children because they were safely placed with their fathers, whereas that was not the case with” the four children at issue on appeal. R and N were two months old when removed “and spent the majority of their lives in foster care to the extent that they called their caregiver ‘mom’ and did not recognize respondent.” The trial court also did not err as to the other two children, given their age, the length of time they had been out of “respondent’s care, the lack of progress” she made on her reunification barriers, and their strong bond with their caregivers.