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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Claim for an attorney fee based on a contingency-fee agreement; Rippey v Wilson; Quantum meruit; Reynolds v Polen; Amendment of a 2014 default judgment; MCR 2.612(C)(1)(e) & (f); Waiver; Motion to renew judgment; MCL 600.5809; Whether the trial court had jurisdiction to renew the judgment at the time; MCR 7.208(A); Sanctions; MCR 1.109(E); Tien Chin Yu Machinery Manufacturing Company, Ltd (TCY)
Addressing multiple appeals, the court held in Docket No. 362481 that while appellant-Hilborn did not show he was entitled to a contingency fee, an evidentiary hearing as to his quantum-meruit claim was warranted. In Docket No. 364538, it rejected plaintiff-Alcorn’s claim that the trial court erred in amending a 2014 default judgment against defendant-TCY in 2022 because TCY waited too long to request this relief and did not establish sufficient grounds justifying it. In Docket No. 366030, it found no error in the trial court’s decision to (1) vacate “its renewal of the 2014 judgment against TCY because” Alcorn’s ex parte motion to renew “omitted the judgment’s 2022 amendment” and (2) impose sanctions. These appeals arose after “Alcorn was seriously injured in an industrial accident” and sued TCY and defendant-Latitude Machinery Corp. In his appeal, Hilborn asserted that he was entitled to an attorney fee based on “a contingency-fee agreement for his work in securing a default judgment against Latitude. Alternatively,” he sought a hearing on his entitlement to fees for this work based on quantum meruit. Both he and appellee-Parsons cited Rippey. The court found that, “to the extent Parsons maintains that, under Rippey, Hilborn’s eventual abandonment of the Latitude matter categorically forecloses him from receiving any compensation whatsoever for his prior work,” it disagreed. But it did “not read Rippey to support the notion that Hilborn would be entitled to a contingency-fee award for that work, given his abandonment before it was complete. In light of this authority and Hilborn’s own arguments on appeal,” the court concluded “that a contingency-fee award is not appropriate because Hilborn did not complete his services in the case against Latitude.” But it agreed with him “that recovery in quantum meruit for his work on the Latitude matter might still be appropriate.” In Docket No. 364538, the court found, among other things, that under “the very unusual circumstances of” this case, relief under MCR 2.612(C)(1)(f) “was within the range of principled outcomes.” It determined that “there was good reason why TCY’s request for relief did not come sooner than it did, and injustice would plainly result if, nonetheless, Alcorn were allowed to secure an unlawful and inequitable double recovery of” the $1,574,000 damages award. In Docket No. 362481 the court affirmed in part, reversed in part, and remanded. It affirmed in Docket Nos. 364538 and 366030.
42 USC § 1983 action alleging violation of plaintiff-prisoner’s Fourteenth Amendment due process rights; Requirement that plaintiff participate in a sex-offender program to obtain parole; Bridges v Michigan Parole Bd (Unpub 6th Cir order); Whether plaintiff established a “liberty” interest; Wilkinson v Austin; Sandin v Conner; Whether plaintiff was entitled to a hearing before prison officials could treat him as a sex offender
[This appeal was from the ED-MI.] The court held that plaintiff-prisoner failed to identify a cognizable “liberty ” interest in (1) avoiding the “sex offender” label, (2) “obtaining parole under Michigan’s discretionary system” or (3) avoiding a requirement that he “complete a sex-offender program as a condition of parole.” In 1986, plaintiff pled guilty to several crimes, including CSC III. Due to his later plea to second-degree murder, he remains in prison. He also pled guilty to AWIGBH for assaulting a female corrections officer with whom he claimed to be having a sexual relationship. Testing for his likelihood of committing another sex offense “suggested he posed a moderate to high risk of recidivism.” Thus, a prison official recommended that he complete the sex-offender program. He has twice been kicked out of the program and has since refused to participate. Because he would not participate, he was repeatedly denied parole. He then filed this action under § 1983, alleging defendants-prison officials denied him “due process by failing to give him a hearing before treating him as a sex offender and requiring him to participate in the sex-offender program to obtain parole.” The district court dismissed the complaint. On appeal, the court first considered the liberty interests still available to a prisoner. It noted that to find a liberty interest created by a prison regulation, a court must first consider “the ‘nature’ of the condition of confinement that the regulation addresses.” Significantly, “if the regulation limits an administrator’s ability to impose the type of hardship that generally ‘falls within the expected perimeters’ of prison life, it will not create a liberty interest.” Here, plaintiff was not required to attend the program; his complaint only stated that it was recommended he do so. Without more, he did “not have a liberty interest in avoiding a mere official recommendation[.]” And attending the program qualified “as one of ‘the ordinary incidents of prison life’— not an ‘atypical’ hardship.” Further, it is well established that in Michigan, there is no liberty interest in parole. As for avoiding the sex offender classification, in an unpublished order, the court has held that a state “may require convicted sex offenders to participate in a sex-offender program as a condition of parole without providing any more process.” Finally, the Michigan statutory process giving prisoners a right to a hearing if they object to treatment did not apply to plaintiff’s “recommended sex-offender program.” He was not required to participate and “it applies only to prisoners that staff find mentally ill.” Affirmed.
Sufficiency of the evidence for a operating while intoxicated (OWI) conviction; People v. Hyde; “Operate” or “operating” (MCL 257.35a(a)); People v. Wood; Blood alcohol level (BAL)
Holding that there was sufficient evidence to support defendant’s OWI conviction, the court affirmed. In his “brief on appeal prepared by his original appellate counsel, defendant conceded that he was intoxicated and that the van was on a highway open to the public, but he argued that the prosecution had failed to present sufficient evidence that he had been ‘operating’ the van. At oral argument,” his substitute appellate counsel “argued that a reasonable doubt existed as to whether defendant had become intoxicated after stopping the van.” The court disagreed with both arguments. It noted that a deputy (C) saw “defendant’s van stopped in the right driving lane of a busy road, causing traffic to back up at the light. [C] saw defendant behind the wheel of the van when he was turning his patrol car around to assist defendant. [C] testified that the only place to sit in the vehicle was in the driver’s seat because of the amount of trash throughout the vehicle. [C] observed the keys in the ignition, and the body camera footage showed that the door made a beeping sound when opened, and that the lights were on. [C] testified that there was no one else at the scene and that, although he never directly asked defendant if he was driving, defendant never suggested that anyone else had been driving the van.” The court found that while “there was no direct evidence presented that defendant had driven the van before it stopped in the road, there was significant circumstantial evidence presented to support that inference. . . . It was reasonable for the jury to infer that [he] was operating his vehicle while impaired before the time at which it became inoperable.” The court also found that there was sufficient circumstantial evidence that he “was intoxicated while driving the van before it stopped on the road.” He did not make “any statements indicating that he had stopped the van first and then consumed alcohol[.]” The court noted what while it was “not outside the realm of physical possibility that [he] stopped his vehicle and immediately consumed enough alcohol to raise his” BAL to 0.152, the prosecution “‘is not required to negate every reasonable theory consistent with a defendant’s innocence.”
Postjudgment motion for a new trial or a competency hearing; Distinguishing People v Lucas; Competency to stand trial; MCL 330.2022(1); Evidence of incompetency; People v Blocker; Bona fide doubt; People v Kammeraad; Right to be present; Waiver; Implicit waiver on account of disruptive behavior; Illinois v Allen; Harmless error; People v Buie; Right of confrontation; “Surrogate witness”; Life without the possibility of parole (LWOP)
Finding no errors requiring reversal, the court affirmed defendant’s conviction of first-degree murder and his sentence to LWOP. As an initial matter, it found that even if he had properly presented the issue of the trial court’s denial of his postjudgment motion for a new trial or a competency hearing on appeal, the trial court did not err by denying the motion. The court found this case was distinguishable from Lucas. Turning to the merits, it rejected his argument that the trial court erred when it declined to order a competency evaluation after his trial counsel made two requests during trial. “Because a reasonable judge could have concluded that there was not a bona fide doubt regarding defendant’s competence on the first day of trial, the trial court did not abuse its discretion when it declined to order a competency evaluation that day.” The trial court also “did not abuse its discretion by denying defense counsel’s renewed request for a competency evaluation. Notably, counsel did not divulge the content of his communications with his client, but rather, only disclosed that defendant was talking a lot and providing differing versions of events. Additionally, defendant was able to listen to and cogently answer the court’s questions. From this, it was reasonable for [it] to not have ‘experienced doubt with respect to [defendant’s] competency to stand trial.’” The court also rejected his claim that he was entitled to a new trial because his right to be present was violated when he was temporarily removed from the courtroom for “talking too much” during a witness’s testimony. Although he “was removed from the courtroom without a valid waiver (either an express one or an implicit one as described in Allen)” this error was harmless because his “absence inured to his benefit.” Defense counsel requested his “removal because defendant’s presence made it impossible for counsel to focus on the witness’s testimony and provide effective assistance.” In addition, this was “not a situation where defendant was absent for the entirety of trial or even a large portion of it.” And because “the jury heard why [he] was removed from the courtroom, his assertion” that he was prejudiced because it “was told that he was removed for ‘talking too much’” was meritless. Finally, the court rejected his contention that he was entitled to a new trial because his right to confrontation was violated through the use of a “surrogate witness.” The fact the witness “testified that defendant’s DNA was found on a single cigarette butt inside” a previous victim’s apartment was “merely cumulative to other unchallenged evidence that was admitted at trial.” As such, assuming there was any error as to this “testimony, it [was] evident that it was harmless beyond a reasonable doubt.” Affirmed.
Dispute over alleged online gambling winnings; Whether common-law claims were abrogated by the Lawful Internet Gaming Act (LIGA); Distinguishing abrogation from preemption; Millross v Plum Hollow Golf Club; Whether the LIGA provides the exclusive remedy for all online gambling disputes; “Inconsistency”; MCL 432.304(3); Case law under the Michigan Gaming Control & Revenue Act; Kraft v Detroit Entm’t, LLC; MI Admin Code, R 432.641(7); “May”; The Michigan Gaming Control Board’s (MGCB) authority & powers; MCL 432.309
Clarifying the distinction between abrogation and preemption, the court held that “the Legislature did not intend to abrogate plaintiff’s common-law claims when enacting the LIGA,” and her breach of contract, conversion, and fraud claims were “not inconsistent with the LIGA so as to be prohibited by MCL 432.304(3).” Thus, it reversed the Court of Appeals judgment, which affirmed the trial court’s grant of summary disposition to defendant, and remanded to the trial court. Defendant refused to pay plaintiff her alleged winnings “because the game had allegedly malfunctioned ‘on various plays’ and erroneously credited winnings to her account.” It argued that the LIGA abrogated and ostensibly preempted her common-law claims. As an initial matter, the court clarified “that, contrary to Millross, a state statute does not ‘preempt’ the common law. The correct principle to apply in this context is abrogation.” Thus, the question was “whether the Legislature intended to abrogate the common-law claims at issue here when enacting the LIGA.” The court found the “LIGA clearly abrogates some aspects of the common law” but not all, and there was “no basis to conclude that the Legislature intended to abrogate plaintiff’s common-law claims for fraud, conversion, and breach of contract.” Defendant also argued “there is no common-law right to recover winnings from gambling and that the LIGA did not purport to create any such right.” But the court noted that “by permitting online gambling, the Legislature intended to abrogate any common-law rules premised on the assumption that gambling is unlawful.” Further, defendant’s position presumed “the common law does not change.” This is incorrect. “Because our existing common-law rules may be ‘adapted to current needs in light of changing times and circumstances,’ the common law is particularly well-suited to address ongoing developments arising from the LIGA.” The court also rejected defendant’s claim “that the LIGA provides the exclusive remedy for all online gambling disputes.” It noted that “the LIGA does not provide any remedy or procedure for aggrieved patrons like plaintiff.” As to the question of “inconsistency,” the court concluded her “pursuit of her common-law claims in circuit court is not ‘inconsistent’ with a statutory scheme that confers on the MGCB discretion to take corrective action, particularly when the MGCB has expressly disclaimed any role in resolving the merits of disputes between patrons and gaming providers.”
Trip & fall on a step; Premises liability; Kandil-Elsayed v F& E Oil, Inc; Duty owed to an invitee; Tripp v Baker; Breach; The law of the case doctrine
The court held that the trial court erred by granting defendant summary disposition of plaintiff’s trip and fall claim. Plaintiff sued defendant for injuries she sustained when she tripped and fell on a three-inch step that separated the sidewalk from a red-tiled piazza at the front of defendant’s shop. The trial court granted summary disposition, and the court affirmed in a prior appeal. The Michigan Supreme Court vacated and remanded in light of Kandil-Elsayed. On remand, the court vacated the trial court’s ruling and remanded to that court, which again granted summary disposition for defendant. In the present appeal, the court agreed with plaintiff that the trial court erred because a genuine issue of material fact existed as to whether defendant breached its duty to her. As a preliminary matter, the court noted that the trial court’s statement, on remand, that the court and the Supeme Court did not alter its “earlier ruling on whether the step was open and obvious[,]” did not implicate the law of the case doctrine. Turning to the merits, it noted that “although defendant argues that the step was not a dangerous condition on the land, and therefore no duty was owed, there was no dispute that patrons of defendant’s establishment would encounter the step upon entering and exiting, and that they would have to navigate it by stepping up or down. The step was therefore an obstruction on the ground that could be encountered and tripped over by an invitee.” As such, “defendant owed her a duty to use reasonable care to protect her from an unreasonable risk of harm caused by the step.” And there was a material question of fact whether it breached this duty. “Plaintiff and other witnesses testified that the area with the step was poorly lit at the time plaintiff encountered it.” In addition, “two witnesses testified that although the top of the step was a different color than the surrounding cement, the vertical portion of the step was not, obscuring the change in elevation between the sidewalk and the step.” And one witness “testified that he observed two other persons trip on the step in an approximately 20-minute span shortly after plaintiff fell.” Further, plaintiff “and other witnesses testified that the photographs of the step, taken with a flash, did not accurately represent how they viewed it with the naked eye on the night in question.” Reversed and remanded.
Interpretation of a plat dedication; Whether the dedication’s language was ambiguous; Effect of MCL 560.253; Martin v Beldean; Conveyance of a fee interest in riparian land; 2000 Baum Family Trust v Babel
Holding that the plat dedication language at issue “unambiguously conveyed a fee interest that included riparian or littoral rights to all the property owners identified in the dedication,” the court affirmed summary disposition for plaintiffs. The property in dispute was a private park (O’Connor Park) in a platted subdivision. “Historically, both the platted and unplatted property owners identified in the park’s dedication have enjoyed the use of the park’s littoral or riparian lands.” But early in 2023, “some of the owners of Lots 11 to 19 sent written notice to” plaintiffs, owners of the unplatted property, “asserting that plaintiffs had the right to use the park, but did not have any littoral or riparian rights to” it. The trial court ruled, among other things, “that the plain language of the plat dedication granted an equal fee simple interest in O’Connor Park to the platted and unplatted property owners identified in the dedication.” On appeal, the court concluded “the dedication plainly states that O’Connor Park is dedicated ‘for the private use’ of the owners of the identified platted and unplatted properties.” While defendants asserted the language was ambiguous, “the lack of language defining, clarifying, modifying, or restricting the term ‘private use,’ does not cause the provisions in the dedication to irreconcilably conflict so as to render the dedication ambiguous. . . . Instead, the fact that the language is not so limited means that any and all private uses are permitted, including the use of riparian or littoral rights.” Defendants next argued that even if the language was “unambiguous, MCL 560.253 provides that the dedication to the identified owners is ‘for their use for the purposes therein expressed and no others.’” They cited Martin in support, asserting that under its reasoning, “the owners identified in the dedication may use O’Connor Park only as a park and not for some other purposes. The plat, however, clearly reflects that O’Connor Park is bounded by Lake Charlevoix and is therefore riparian or littoral land. The private dedication conveying a fee interest to the parties identified in the dedication, therefore, conveyed a fee interest in riparian land.” In light of “the broad, unambiguous language dedicating the park for the private use of the parties identified in the dedication,” the court found “that the owners of the identified properties can use O’Connor Park as a park on riparian land, which would include the right to install and maintain a dock or to hoist and dock boats.”
Termination under § 19b(3)(k)(ii); Jurisdiction; MCL 712A.2; Sufficiency of the evidence; In re Miller; In re Sluiter; Anticipatory neglect; In re Mota; Credibility; Children’s best interests; In re Olive/Metts Minors
Holding that the evidence at respondent-father’s adjudication trial was sufficient to sustain the jury verdict at issue, that § (k)(ii) was met, and that termination was in the children’s best interests, the court affirmed termination of his parental rights. His rights were terminated on the basis of his sexual abuse of the children’s half-sibling and his subsequent conviction of CSC III and multiple counts of CSC IV, which resulted in a lengthy sentence. On appeal, the court rejected his argument that there was insufficient evidence at the adjudication trial to sustain the jury verdict. The victim’s “testimony was consistent with her statements made to medical examiners immediately following the incident in which respondent digitally penetrated her. This pattern of sexual abuse within the home environment was ample evidence for a jury to find that [the children] were at a substantial risk of harm to their mental wellbeing, and that their home environment by reason of cruelty, criminality, and depravity was unfit for them to live.” Considering the “evidence of domestic violence perpetrated by respondent against [the children’s] mother while they were present, as well as evidence of direct physical abuse” and the sexual abuse of the victim while the children “were in the home, a reasonable jury could conclude that respondent posed a danger to” them. The court also rejected his claim that a statutory ground was not met, noting the trial court found credible and reliable the victim’s “testimony regarding respondent’s sexual abuse, including digital penetration. It further found that the abuse began as [she] was developing into a young woman and that [his daughter] would be at a similar age at the time of [his] earliest possible release, which put her at a heightened risk of harm. The evidence, including respondent’s criminal convictions and sentences, amply supported those findings.” Thus, the trial court did not err by finding there was a reasonable likelihood that the children would be harmed if returned to his care, meeting the requirements of § (k)(ii). Finally, the court rejected his claim that termination was not in the children’s best interests. The “trial court’s decision was premised on a lack of a bond between respondent and the children; how well the children were doing in mother’s care; the children’s expressions of feeling unsafe around respondent; the need for permanency, stability, and finality; respondent’s sexual abuse of [the victim] and resulting criminal convictions; and [his] controlling nature. The evidence amply supported the trial court’s decision.”