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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Breach of fiduciary duty claim against corporate counsel; Kern v Kern-Koskela; Whether it was reasonable for plaintiff to place trust or confidence in defendants; Prentis Family Found v Barbara Ann Karmanos Cancer Inst; Distinguishing Fassihi v Sommers, Schwartz, Silver, Schwartz & Tyler, PC
The court determined that the trial court did not err when it granted summary disposition in defendants-attorneys and law firm’s favor because “plaintiff, by his actions, could not establish a fiduciary relationship between defendants and plaintiff because any placement of trust in defendants by plaintiff was unreasonable in this matter.” He was a “former physician and shareholder of a corporation represented by defendants[.]” He filed this suit after they conducted a review of his “procedure and practice in the administration of sedatives.” Plaintiff argued they breached their fiduciary duty to him “as a result of their investigation into his practice.” Plaintiff contended that “the parties’ interests were not adverse because all parties wanted a fair and complete investigation.” Thus, he asserted he was entitled to place trust and confidence in defendants. But plaintiff’s “relationship with defendants potentially was adverse from the moment he learned of the investigation. Upon hearing the rumors that he was being investigated by defendants, plaintiff researched the laws he believed were relevant to his practice in an effort to refute defendants’ assertion that the way sedatives were administered to his patients was illegal.” He recorded a “meeting to memorialize the discussion between the parties during the meeting. At that meeting, plaintiff openly stated his displeasure for defendants’ work and attempted to terminate them as” the practice’s corporate counsel. While he “stated he believed that defendants would change their position after the meeting, defendants did not. Instead, they issued a compliance report recommending immediate cessation of allowing unlicensed professionals to administer sedatives intravenously.” In addition, he stated “he felt undermined by defendants, who left him out of communications regarding the investigation with the other shareholders.” These facts, uncontradicted by him, showed that he “had a ‘potentially adverse relationship with corporate counsel.’” Affirmed.
A parolee defendant’s entitlement to jail credit; MCL 769.11b; Effect of the Michigan Department of Corrections (MDOC) not having yet filed a parole detainer against defendant; MCL 791.239; People v Idziak; Plain error; Prejudice; Glover v United States
Holding that a parolee defendant is entitled to jail credit under MCL 769.11b when the MDOC has not yet filed a parole detainer against him or her, the court concluded that defendant showed plain error affecting his substantial rights because the trial court did not grant him the credit to which he was entitled. Thus, it reversed the Court of Appeals’ judgment and remanded to the trial court for resentencing. The issue was whether an arrestee is entitled to credit under MCL 769.11b “when he or she had been on parole at the time of the arrest but the parole officials have not yet sought to detain on the basis that the new arrest constituted a parole violation, i.e., they have not yet issued a warrant, arrested, or sought to detain the parolee due to the possible parole violation. Here, defendant spent 17 days in jail before the MDOC filed a parole detainer against him.” He argued that he was entitled to credit for these 17 days, while the prosecution argued that, under Idziak, he was not. The court concluded that because the 17-day portion of the time he spent in jail before the detainer was issued “resulted solely from his inability to furnish bond, all the requirements of” MCL 769.11b were met and thus, he was entitled to credit for those 17 days. Once the MDOC issued the detainer, the jail “was authorized under MCL 791.239 to detain defendant on different grounds altogether. At that point, defendant was held in jail not because of any bond determination on the new criminal charges but because MDOC officials ordered him to be held on the basis of the suspected parole violation . . . .” From that point, the requirements of MCL 769.11b were not met and he was entitled to no further credit. Nothing in Idziak precluded “this straightforward application of the statutes” and in fact, that case supported the ruling here. The court held that “parolees who are not arrested or detained under MCL 791.238 or arrested under MCL 791.239 who spend time in jail because of the denial of or inability to furnish bond are entitled to jail credit until the MDOC files a parole detainer under MCL 791.239.” Further, defendant established plain error. The legal error here was apparent on the record and satisfied “the first two prongs of the plain-error analysis.” The court also found that the fact “he was deprived of his liberty for an extra 17 days” was sufficient to show prejudice.
Whether Michigan’s Sex Offenders Registration Act (SORA) as amended by 2011 PA 17 & 18 (the 2011 SORA) violates the Ex Post Facto Clauses of the state & federal constitutions; Kennedy v Mendoza-Martinez; Smith v Doe; Whether the retroactive application of the 2011 SORA unconstitutionally increases the punishment; The Mendoza-Martinez factors; Legislative intent; Punitive effect; Remedy; Whether the statute is severable; MCL 8.5
The court held that “the 2011 SORA, when applied to registrants whose criminal acts predated the enactment of the 2011 SORA amendments, violates the constitutional prohibition on ex post facto laws.” As applied to defendant-Betts, because the crime subjecting him to registration occurred in 1993, the court ordered that his conviction of failure to register as a sex offender be vacated. The court was asked to determine whether the retroactive application of the 2011 SORA violates federal and state constitutional ex post facto protections. At issue was the third type of ex post facto law, “namely, whether the retroactive application of the 2011 SORA unconstitutionally increases the punishment for” defendant’s CSC II conviction. The court found that “the Legislature likely intended SORA as a civil regulation rather than a criminal punishment.” It further determined that considering the Mendoza-Martinez factors “cumulatively, the 2011 SORA’s aggregate punitive effects negate the state’s intention to deem it a civil regulation.” Thus, it held that “the retroactive imposition of the 2011 SORA increases registrants’ punishment for their committed offenses in violation of federal and state constitutional prohibitions on ex post facto laws.” As to remedy, the court concluded that severability and revival were inappropriate tools to remedy the constitutional violation here, and thus it was constrained to hold that “the 2011 SORA may not be retroactively applied to registrants whose criminal acts subjecting them to registration occurred before the enactment of the 2011 SORA amendments.” Concurring in part and dissenting in part, Justice Zahra joined Parts I and II of Justice Viviano’s opinion concurring in part and dissenting in part. He agreed with his application of the court’s severability precedents to Michigan’s SORA. But he declined “to join Part III because it is unnecessary to the resolution of this case.” Justice Viviano generally agreed with the majority’s holding that Michigan’s SORA violates the Ex Post Facto Clauses of the state and federal constitutions. But applying the plain language of MCL 8.5 in light of current precedent, he would determine that “the unconstitutional portions of SORA are severable and that defendant’s conviction must be upheld.”
Sufficiency of the evidence; Felony-firearm; Possessing a firearm while also possessing the drugs that supported the drug convictions; Prosecutorial misconduct; Eliciting other acts evidence without giving the notice required by MRE 404(b)(2); Ineffective assistance of counsel; Opening the door to this testimony; Sentencing; Scoring of 5 points for OV 2
The court held that there was sufficient evidence defendant possessed a firearm during the commission of the four drug offenses to support his felony-firearm convictions. Also, any prosecutorial error did not affect his substantial rights, “and any ineffective assistance did not result in a reasonable probability that the outcome of trial would have been different but for the ineffective assistance.” Finally, the trial court properly assigned 5 points to OV 2. He was convicted of possession with intent to deliver heroin, possession of cocaine, possession of oxycodone, possession of alprazolam, and felony-firearm. Defendant argued “the prosecution introduced insufficient evidence he possessed a firearm while also possessing the drugs that supported his drug convictions. The firearms were within a few feet of defendant, and they were visible from outside the closet. Moreover, mail with defendant’s name and address was found throughout the bedroom, including in the closet, indicating that it was defendant’s bedroom.” From this evidence, a rational trier of fact could find he “constructively possessed the firearms as the police entered and searched his home because he was in close proximity to them, they were reasonably accessible to him, and he presumably knew they were there.” Because the evidence supported a finding that he “constructively possessed the four drugs and the firearms at the same time, the prosecution introduced sufficient evidence to support defendant’s convictions for four counts of felony-firearm.” Affirmed.
Prosecutorial misconduct; Vouching for the complainant; People v Stanaway; Ineffective assistance of counsel; Failure to object to the alleged prosecutorial misconduct; Cumulative effect of repeated misconduct
The court held that defendant was not denied a fair trial when the prosecution allegedly vouched for the complainant, RL, during voir dire and when it referred to RL as “the victim” during the course of the trial. Also, he was not denied the effective assistance of counsel. Finally, the cumulative effect of alleged repeated misconduct on the part of the prosecution did not deny him due process and a fair trial. He was convicted of assault with the intent to commit sexual penetration and CSC IV. Defendant argued that an exchange between the prosecution and a potential juror during voir dire was improper, because it vouched for RL’s upcoming testimony. “The prosecution did not imply that it had some special knowledge that RL was going to testify truthfully.” Rather, in context, the “remarks were aimed at discovering how potential jurors might consider the facts of the case, and the evidence that was going to be admitted at trial, when evaluating RL’s credibility. At most, the prosecution suggested the possible inference that the circumstances surrounding the assault may have potentially affected RL’s memory of minor details.” The statements did not improperly vouch for RL’s credibility. Also, “the trial court instructed the jury pool during voir dire that the purpose of voir dire was to obtain information about the jurors in order to choose an impartial jury, and instructed the jury prior to its deliberation that the statements of attorneys were not evidence.” Defendant did not show "that the prosecution’s statements were impermissible or that, even if they were, any prejudicial effect was not cured by the trial court’s instruction.” Next, defendant argued that the prosecution committed “misconduct when it referred to RL as ‘the victim’ 71 times during its opening statement and its closing and rebuttal arguments, because the term implied that defendant was guilty. It is true that the prosecution referred to RL as ‘the victim’ multiple times; however, the reference was appropriate and accurate.” RL claimed that she was subjected to CSC. Thus, the prosecution properly referred to her as a “victim.” Further, “even if the prosecution’s statements had amounted to misconduct, defendant has not shown that it was outcome determinative.” Affirmed.
Healthcare providers’ claims for PIP benefits; Jury instruction on causation; MCL 500.3105(1); Thornton v Allstate Ins Co; Ruling barring questioning the insured about alleged instances of fraud; Proof of bias; Credibility; MRE 608(b); Motion for a mistrial; 30-day “legislative grace period” for a no-fault insurer to investigate a claim; MCL 500.3142; Presenting a proof of claim for benefits during trial; McMillan v ACIA; Case evaluation sanctions; MCR 2.403(M)(1) & (O); Motion for a new trial; MCR 2.611; Closing argument comments; Absence of the ability to make an oral argument on the motion; Motion for remittitur
The court concluded that the trial court’s jury instruction on causation was consistent with case precedent, and while it erred in refusing to permit defendant-insurer to question the insured (nonparty-J) about alleged instances of fraud, reversal was unwarranted. Further, it did not err in denying defendant’s motion for a mistrial after an outburst by J on the witness stand, or by permitting plaintiff-Synergy to introduce evidence of a surgery and seek damages for it even though defendant only learned of the claim right before or during trial. The court also upheld the award of case evaluation sanctions to Synergy and the intervening plaintiff, and the denial of defendant’s motions for a new trial or remittitur. Thus, it affirmed the judgment for Synergy and the intervening plaintiff, both healthcare providers, in the amount of $299,282.70. Defendant contended that the trial court erred in instructing the jury that defendant may be liable for PIP benefits if J’s 3/17 auto accident was “one of the causes” of her injuries, without also stating that they had to be more than “incidental, fortuitous, or ‘but for.’” The court disagreed, noting that this “test applies when a person suffers injuries that are not clearly caused by the use of a motor vehicle as a motor vehicle.” There was no dispute that J’s accident involved “a straightforward motor-vehicle accident. The only question at trial was whether her injuries and corresponding medical treatment arose out of, i.e., was caused by, the [3/17] accident or another accident. In such a case, the trial court properly instructed the jury that ‘the law in Michigan provides that a sufficient causal connection exists if the motor vehicle accident is one of the causes for her need for services, even though there may be other independent causes.’” The court agreed with defendant that it should have been allowed to question J about the fact that her PIP claim against it arising from a “2015 accident was dismissed by another court on the basis of fraud. This was relevant to show her possible animus, bias against, or dislike of defendant[.]” Additionally, it should have been permitted to question her “about the fact that she failed to disclose, in a deposition, that she also had been involved in an accident about three weeks after the accident at issue.” But the error was harmless as the case “was almost entirely a medical dispute” and hinged on the experts’ credibility, not J’s credibility.
Quiet title; Adverse possession; Whether land was “wild land”; Types of uses sufficient to constitute adverse possession of residential property; Notice; Hostility; Continuous possession; Public policy argument; Codification of adverse possession; MCL 600.5801
Concluding that the land at issue (Lot 227) was residential in nature, the court held that plaintiff’s uses of it while maintaining it by mowing the grass were sufficient to show actual possession and that she had assumed control. She also met the other elements of adverse possession. The court rejected defendants’ public policy challenge, noting it was “not at liberty to overrule the longstanding common-law doctrine[,]” which was been codified in statute since 1846, and saw no basis to do so. They relied on case precedent as to wild lands, but it was clear that “Lot 227, by itself, is not wild land.” The photos admitted at trial showed it was “a grass yard in a residential area. There are no trees on the lot, and it is not contiguous to any wooded lot. At the time of trial, the grass had not been cut recently because of temporary flooding, but the inability to cut wet grass does not render the lot wild” given that the photos showed the grass was “well maintained when plaintiff is able to do so. Defendants’ real argument” was that Lot 227 “should be considered part of the lots they own in the northern part of the subdivision, which indisputably are undeveloped wild parcels. The trial court correctly rejected this” contention. Lot 227 is situated “in the southern half of the subdivision between plaintiff’s home and a road in a developed area of the subdivision.” It is also taxed as an individual parcel. Since it was residential in nature, its use by plaintiff and her family “for ice hockey during the winter and then for various activities during warmer months such as sports, gardening and parking, all while maintaining” it by cutting the grass, were consistent with its character. For 15 years, she had treated the lot “as part of her home’s yard.” As to notice, the fact defendants did not actually see her use the lot was not dispositive. Her “open use of Lot 227 for various activities was sufficient to put” them on notice she had assumed possession. Further, her use was hostile given that she did not have their permission, and her use showed “an intent to claim the lot as her own to the exclusion of” others. The testimony also indicated that she and her family used the lot “nearly year-round for annual, seasonal recreational activities[,]” and defendants’ “efforts toward future development did not interrupt plaintiff’s possession of Lot 227.” The court affirmed the quiet title ruling in her favor.
Claim that the child’s lawyer guardian ad litem (LGAL) provided ineffective assistance of counsel; MCL 712A.17c(7); Standing; In re EP
Holding that respondent-father lacked standing to assert on appeal that the child’s LGAL provided ineffective assistance of counsel, the court affirmed the order terminating respondent’s parental rights. He did not challenge the trial court’s determination that statutory grounds existed for termination or its finding that doing so was in the child’s best interests. The court noted that it specifically held in EP “that the right to the effective assistance of a LGAL ‘is personal to the child and respondent may not assert it on behalf of the child.’” Respondent acknowledged that, under existing case law, he lacked standing to assert an ineffective assistance claim on his child’s behalf, but asked the court to disregard its prior opinions. It declined to do so, noting that its published opinions have precedential effect under stare decisis, and in addition to binding lower courts and tribunals, those published opinions issued after 11/1/90 “bind the subsequent panels of this Court.” Given his lack of standing, it did not address the merits of his claim.