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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Custody; The Child Custody Act; The statutory best-interest factors (MCL 722.23); Findings on factors (b), (c), (f), (j), & (l); Award of sole legal & physical custody; Bofysil v Bofysil; Child support; Compliance with the Michigan Child Support Formula (MCSF); MCL 552.605(2); Borowsky v Borowsky; Imputing income; Carlson v Carlson; Ghidotti v Barber; Attorney fees; Effect of dismissing an action & filing a new one; Hill v LF Transp, Inc; Necessary findings as to the amount of fees; MCR 2.504(D)
The court held that the trial court did not abuse its discretion in awarding defendant-mother sole legal and physical custody of the parties’ child. But it agreed with plaintiff-father that the trial court did not comply with the MCSF’s requirements in calculating his income for child support purposes. Finally, while the trial court did not abuse its discretion in awarding defendant attorney fees and costs, it failed to make necessary findings as to the amount of fees awarded. The court first rejected plaintiff’s challenges to the trial court’s findings on best-interest factors (b), (c), (f), (j), and (l). After considering the factors, the trial court determined “it was in the child’s best interests to award defendant sole legal and physical custody because the parties were unable to ‘cooperate, communicate, compromise, or co-parent effectively.’” The court held that it “did not abuse its discretion.” As it found, there was “no indication the parties will be able to communicate effectively in the near future or work together for the child’s benefit. At the time of trial, plaintiff wanted to engage in important communications with defendant in writing. [She] did not think this was an effective way to coparent, but [he] refused to engage in in-person discussions. Plaintiff was overtly dismissive of defendant in the presence of the child and he used aggressive tactics to try to get his way. Defendant did not think plaintiff was honest or moral. She testified plaintiff emotionally abused her, threatened her and her family, and harassed her during her pregnancy.” While plaintiff testified “he was willing to coparent with defendant and improve their relationship, the trial court found [his] testimony to be incredible and lacking in sincerity at times. Additionally, plaintiff’s conduct throughout the lengthy trial belied his assertion he was willing, and able, to coparent with defendant.” But as to the issue of child support, the “trial court did not ‘use three years’ information to determine [plaintiff’s] income’” as set forth in 2021 MCSF 2.02(B). Rather, it “simply found [he] earned $80,000 each year working for” a company, even though he only worked there for 16 months in 2022-23. Remand was required “for recalculation of plaintiff’s income consistent with 2021 MCSF 2.02(B).” It also agreed with plaintiff “the trial court improperly imputed income to him.” The trial court failed to “comply with the requirements of 2021 MCSF 2.01(G)(2) and” (G)(3). Affirmed in part, vacated in part, and remanded.
Employee Retirement Income Security Act (ERISA) & common-law breach-of-fiduciary-duty claims; Limitations period; 29 USC § 1113; MCL 600.5805(2); Medicare-Like Rate (MLR); 42 CFR §§ 136.30–136.32; Whether plaintiff had “actual knowledge” within the limitations period that it had not received the MLR; Intel Corp Inv Policy Comm v Sulyma; Wright v Heyne; Michigan Health Care False Claims Act (HCFCA) claim; Whether the MLR regulations apply to third-party administrators (TPAs) rather than just Medicare-accepting hospitals; Motion for leave to amend the complaint a second time; Blue Cross Blue Shield of Michigan (BCBSM)
[This appeal was from the ED-MI.] The court held that because plaintiff-Grand Traverse Band of Ottawa and Chippewa Indians (the Tribe) had “actual knowledge” in 2009 that it was not receiving the MLR to which it was entitled under Medicare regulations, its 2014 ERISA and common-law claims for breach of fiduciary duty were time-barred. The Tribe’s HCFCA claim failed on the merits where the Tribe could not show that the MLR regulations apply to TPAs such as defendant-BCBSM. BCBSM was the administrator of the Tribe’s employee and member healthcare benefits Plan. After a third-party audit, the Tribe claimed that BCBCM “had been overpaying on claims eligible for MLR” and that the discount it was receiving under its claims processing agreement with BCBSM (the FCPA) was “nowhere near the amount that would be payable under the federal regulations.” It argued that this constituted a breach of fiduciary duty. On appeal, the court first affirmed the district court’s dismissal of the ERISA and common-law breach-of-fiduciary-duty claims as time-barred. As to the ERISA claim, the three-year limitations period applied where the Tribe had “actual knowledge” in 2009 “of the relevant facts supporting its ERISA breach-of-fiduciary-duty claim—that is, Blue Cross’s ‘failure to take advantage of MLR discounts available to’ the Tribe.” Thus, it had to bring its claim by 2012, but it did not sue until 2014. As to the state law claim, a three-year limitations period also applied, and accrual was triggered “under Michigan law just as under federal law.” The court rejected the Tribe’s fraudulent-concealment argument, Next, the Tribe argued that the district court misinterpreted its HCFCA claim and that it was not contending that BCBSM submitted claims that were more than the MLR but was instead alleging that it had “misrepresented that its FCPA discount approximated MLR.” But the court agreed with the district court that the Tribe could not change its theory of liability at summary disposition in this manner. Looking at the merits of the claim as pleaded, the court held that the HCFCA claim failed as a matter of law. The central issue was a legal one – whether the MLR regulations apply to TPAs like BCBSM rather than just to hospitals that accept Medicare. “The district court correctly concluded that the plain language of § 136.30 unambiguously limits the regulations’ scope to Medicare-participating hospitals, which are the only entities required to accept MLR as payment for qualifying care.” The court also found that the district court did not err in denying the Tribe leave to amend its complaint a second time. Affirmed.
Jurisdiction; Whether the notice of appeal included additional plaintiffs; FedRAppP 3(c)(1)(A); Prohibition on pro se litigants trying to assert the rights of others; 28 USC § 1654; FedRCivP 17(c); Timeliness of 42 USC § 1983 claims; § 1988(a); Applicability of Rule 15’s relation-back provision; FedRCivP 15(c)(1); Zakora v Chrisman; Municipal liability claim; Monell v Department of Soc Servs
The court held that plaintiffs-Wrights’ § 1983 claims against defendants-police officers were untimely and that the district court also properly dismissed their Monell claims against defendant-Louisville Metro Government. It concluded that it lacked appellate jurisdiction over the claims of their great-nephews because the notice of appeal only designated the Wrights as appellants. The Wrights sued Louisville and the police officers on behalf of themselves and the nephews (who were minors at the time) in state court for violating their constitutional rights by searching their home. Louisville removed the case to the district court and it was dismissed. Proceeding pro se, the Wrights filed an amended complaint naming the previously unnamed police officers. The nephews were also named as plaintiffs. Defendants moved to dismiss the Wrights’ claim but not the nephews’ claim. Yet the district court dismissed both. On appeal, the court first noted that “by the time the district court ruled on the defendants’ motion to dismiss,” the nephews were no longer minors and were representing themselves. Whether they were included in the notice of appeal was “a critical threshold question . . . .” The court held that given “the caption, the body, and the signatures, the notice of appeal designated only” the Wrights as appellants. They were “legally incapable of asserting” their nephews’ rights at the time. The court noted that the nephews could still “move for relief from the district court under Rule 60(b)(1) in light of the district court’s dismissal of their claims even though no motion to dismiss their claims was before it.” Turning to the Wrights’ claims, the court agreed with the district court that the § 1983 claims were untimely where the amended complaint was filed over three years after the incident. The court rejected the Wrights’ argument that it could “relate back” to the initial complaint. It found that they were “wrong about the sorts of mistakes of law that Rule 15 covers. Rule 15’s plain text allows for relation-back when, among other things, one party was mistaken as to the identity of a proper party.” They contended “they were mistaken as to whether they were allowed under pre-Zakora Sixth Circuit precedent to substitute named defendants for ‘unknown’ defendants. That’s a mistake of law with respect to the legal meaning of ‘mistake’ in Rule 15, not a mistake of law as to ‘the legal requirements of [the plaintiffs’] cause of action.’” As to their Monell claims, their “threadbare assertions failed to adequately allege a policy or custom, nor did they connect [their] injuries to such a policy or custom.” The court affirmed the district court’s judgment as to the Wrights’ claims.
Other acts of domestic violence; MCL 768.27b; Probative value; Unfair prejudice; MRE 403; People v Berklund; Right to a fair trial; Reference to “other charges”; Hearsay; Statements made for medical diagnosis & treatment; MRE 803(4); Ineffective assistance of counsel; Jury instructions
The court held that the trial court did not err by admitting defendant’s other acts of domestic violence, by allowing testimony as to his “other charges,” or by instructing the jury, and he was not denied the effective assistance of counsel. He was convicted of assault by strangulation and CSC III for assaulting the victim (a woman he had been dating). On appeal, the court rejected his argument that the trial court erred by admitting prior assaultive acts under MCL 768.27b and in its MRE 403 analysis. “Both victims suffered injuries consistent with their description of the attack by defendant. An analysis of these factors supports the admission of the evidence in accordance with MRE 403, MRE 404(b), and MCL 768.27b.” The court also rejected his claim that he was deprived of his right to a fair trial when an officer testified that he obtained a buccal swab from defendant when he was jailed “on other charges,” contrary to MRE 404(b). “Defendant’s interjection of the circumstances that brought him in for an interview opened the door to full, not selective development, surrounding the issue. And, in exercising the right to self-representation, [he] was not entitled to a successful cross-examination.” Although the officer “may have volunteered the fact that defendant was in the jail ‘on other charges,’ defendant’s persistent questioning on cross-examination not only divulged that other charges were pending but the circumstances of defendant’s arrest that included the addition of a charge of resisting and obstructing.” The court next rejected his contention that the trial court erred by improperly admitting the victim’s hearsay statements to the nurse examiner, who performed sexual assault and strangulation assessments. “Defendant specifically approved of the admission of the reports” when questioning the nurse examiner, “and this waiver of his rights extinguished any error.” Moreover, he could not “claim ineffective assistance of counsel in light of his choice to represent himself and question” her. Finally, the court rejected his contention that the trial court erred in giving the jury instructions, noting he “failed to object to the instructions, and when asked for issues or objections, defense counsel assented to the instructions as read.” Affirmed.
Sentencing; Plea bargain; Proportionality of an upward departure sentence; People v Dixon-Bey; Consideration of the nature of a plea bargain & the charges that were dismissed; People v Coulter (After Remand); Scoring of OV 10; “Predatory conduct”; MCL 777.40(1)(a); Scoring of OV 13 (continuing patterns of criminal behavior); MCL 777.43(1); Mitigating factors; People v Bailey; Presentence investigation report (PSIR)
The court held that the trial court “provided adequate justification to explain why the upward departure was proportionate to the offense and the offender.” Defendant pled no contest to CSC III in exchange for the dismissal of CSC I and II charges that arose out of his repeated sexual abuse of a young victim. The trial court sentenced him to 60 months to 15 years. On appeal, the court rejected his argument that his sentence was disproportionate. “The trial court properly relied on [his] plea agreement and the nature of the charges that were dismissed.” He received “an enormously beneficial plea agreement.” By pleading “no contest to a less severe charge than” CSC I, he “avoided a potential 25-year mandatory minimum sentence and mandatory lifetime electronic monitoring. The sentence imposed was” 1/5 as severe as the mandatory minimum, and 1/2 “of the amount of time that the plea agreement indicated would be the maximum amount of incarceration on the low end of [his] indeterminate sentence range.” Further, applying “the proportionality factor that considers the seriousness of defendant’s offense,” the court found his “pattern of penetrating the victim, a child under the age of 13 at the time of the assaults, when she was asleep established the seriousness of the offense and the gravity of” his behavior. “The record overwhelmingly supports the trial court’s determination to impose the upward departure.” The court also rejected his claim that the trial court erred by basing its decision to depart on his predatory conduct because the guidelines already accounted for it under OV 10. It noted “the ‘predatory conduct’ contemplated by OV 10 was not the predatory conduct the trial court considered in support of its decision to impose an upward departure.” The court next rejected his contention that the trial court erred by basing its decision to depart upward on the amount of times he committed the offense because the guidelines already accounted for the number of offenses committed under OV 13. The “trial court relied on the fact that the guidelines did not account for the number of offenses committed as calculated under the plea agreement.” As to his argument about mitigating factors, the court agreed with the trial court that these factors, “given the seriousness of defendant’s conduct toward the victim, did not outweigh the aggravating factors supporting the minimum sentence” imposed. Finally, the court rejected his claim that the trial court improperly speculated on the effect of his abuse on the victim. The trial court could reasonably infer from the PSIR, “and drawing upon its experience with similar cases, that a victim under 13 years old who was subjected to sexual abuse for several consecutive months . . . would suffer negative emotional or psychological effects.” Affirmed.
Sufficiency of the evidence for an AWIGBH conviction; Self-defense; The Self-Defense Act; MCL 780.972(1)(a); People v Guajardo; People v Leffew
Holding that the prosecution offered “sufficient evidence to rebut defendant’s self-defense claim[,]” the court rejected his argument that there was insufficient evidence to support his AWIGBH conviction. It noted that he did “not challenge the sufficiency of the evidence regarding the assault or his intent to do great bodily harm.” He only contended that the prosecution did not disprove his self-defense theory. He asserted he acted in self-defense because the victim (A) “initially pushed him while the two men were inside” a delivery truck. After calling their employer “to report the assault, defendant testified that [A] used a racial slur against him and ‘kind of’ moved his hand. Surveillance video indicated that defendant struck [A] repeatedly with his cell phone.” In defendant’s bench trial, the “trial court found that even if [A] initially pushed defendant inside the truck, the time period between that assault and defendant’s attack was too attenuated to justify” his actions. The court agreed. In Leffew, the Michigan Supreme Court recently “noted that the factfinder should ‘consider how the excitement of the moment affected the choice [the defendant] made.’” And in Guajardo, the court “likewise noted ‘threats of future harm do not constitute imminent danger for purposes of self-defense.’ Taken together, these cases bely defendant’s argument that he was justified in attacking [A]. Further, any conflicts in evidence must be resolved in the prosecution’s favor.” The court added that, “even if that were not the case, defendant waited several minutes before confronting [A]. By that point, [A] ceased being an imminent threat, and defendant could not have reasonably acted in self-defense by striking him with the cell phone.” Affirmed.
Flight instruction; Mich Crim JI 4.4; Admissibility of evidence of flight to support an inference of consciousness of guilt; People v Goodin; Defective verdict form; Waiver; Ineffective assistance of counsel; Failure to request a voluntary manslaughter jury instruction; “Heat of passion”; People v Yeager; Prejudice; Failure to object to a defective verdict form; Distinguishing People v Wade
The court held that defendant waived any error as to the trial court’s flight instruction or as to a defective jury form because defense counsel affirmatively approved both. It also held that he was not denied the effective assistance of counsel. He was convicted of second-degree murder, AWIGBH, and felony-firearm, arising out of his fatal shooting of the victim at a bar. On appeal, the court rejected his argument that the trial court erred when it instructed the jury on flight from the crime scene consistent with Mich Crim JI 4.4. “The record shows that defense counsel affirmatively approved the jury instructions, including the flight instruction. Therefore, defendant waived any error and he is not entitled to appellate relief.” The court also rejected his claim that his right to a jury trial was violated because of a defective verdict form. “Because defense counsel affirmatively approved the verdict form, the defense waived any error.” Finally, the court rejected his contention that his trial counsel provided him with ineffective assistance by: 1) failing to request a voluntary manslaughter instruction, and 2) failing to object to a defective verdict form. First, “the facts presented at trial did not support a voluntary manslaughter instruction.” There was “no evidence that defendant acted in a heat of passion.” Second, unlike “in Wade, the jury verdict form provided the jury the opportunity to return a not guilty verdict for both the offense charged and the lesser included offense. Therefore, the jury verdict form did not deprive defendant of the right to a jury trial.” And while the form was imperfect, it “‘fairly presented the issues to be tried and sufficiently protected the defendant’s rights.’” As such, “defense counsel’s decision to forego challenging the verdict form was reasonable and defendant has not satisfied his dual burden of establishing that counsel performed deficiently and that he was prejudiced.” Affirmed.
Notice of claim against the state; MCL 600.6431(1); Principle that plaintiffs always must comply with MCL 600.6431(1) to sue the state, regardless of the forum; Christie v Wayne State Univ (overruling Tyrrell v University of MI); Retroactivity of Christie; Flamont v Department of Corrs, Landin v Department of Health & Human Servs, & Hudson v Department of Corrs (Hudson I); Stare decisis; MCR 7.215(C)(2); Obiter dicta; Michigan Department of Corrections (MDOC)
Holding that its decision in Flamont bound the panel in Landin to apply Christie, the special conflict panel affirmed the circuit court’s dismissal of plaintiff’s lawsuit in this case. Plaintiff filed her claim against defendant-MDOC in the circuit court after the court’s decision in Tyrrell and before the Supreme Court’s decision in Christie, and she did not comply with the notice requirement in MCL 600.6431(1). The MDOC sought dismissal on the basis of governmental immunity, and the circuit court, reasoning that Christie applies retroactively, granted the motion and dismissed the case. On appeal, in Hudson I the court acknowledged that, given the procedural posture, it was bound by Landin to reverse the grant of summary disposition and remand for the lawsuit to proceed. However, “because the panel believed that Landin conflicted with Flamont, it ‘call[ed] for the convening of a special panel under MCR 7.215(J)(3) to consider the conflict between Flamont and that of Landin relative to the retroactivity of Christie.’” Noting that its task was “to analyze whether the panel deciding Landin was bound by” Flamont, the special conflict panel concluded that it was. In Flamont, the court “declared that Christie has ‘full retroactive effect.’ The analysis in Landin regarding Christie’s application to post-Tyrrell cases was thorough, detailed, and well thought out; however, it was irreconcilable with Flamont’s holding that Christie is fully retroactive.” The only way “Landin and Flamont could coexist is if the statement in Flamont that Christie is entirely retroactive can be construed as dictum.” It cannot be. In Flamont, the court “was squarely presented with the question of whether Christie’s application was retroactive or prospective.” The court’s “answer that Christie is fully retroactive was directly germane to the question with which it was presented.” As such, although the court “raised important questions in Landin about the equity of enforcing Christie against those whom lost their claims in reliance on Tyrrell, the Landin panel was nevertheless bound by the Flamont panel.”
Surplus proceeds from a tax-foreclosure sale; Rafaeli, LLC v Oakland Cnty; Notice of intent to seek surplus proceeds (Form 5743); MCL 211.78t(2); Constitutional challenges to MCL 211.78t; In re Petition of Muskegon Cnty Treasurer for Foreclosure; Substantive due-process; In re Petition of Barry Cnty Treasurer for Foreclosure; Takings claim; Nelson v City of NY; Knick v Scott Twp, PA; A trial court’s statutory authority under MCL 600.2301 to overlook defects in a notice of intention; Unjust enrichment; Wright v Genesee Cnty
The court held that the trial court did not err by denying respondents’ amended motion to disburse the proceeds that remained from the tax-foreclosure sales of their properties after the satisfaction of their tax delinquencies, interest, penalties, and fees. The trial court found their “challenges to the constitutionality of MCL 211.78t unavailing and their recovery of remaining proceeds barred by their failure to timely submit their notices of intention.” On appeal, the court rejected their constitutional challenges to the statute. It “has held that the statutory scheme stated in MCL 211.78t passes constitutional muster.” As long as the statutory scheme “‘comports with due process—and MCL 211.78t does—whether such a scheme makes sense or not, or whether a “better” scheme could be devised, are policy questions for the Legislature, not legal ones for the Judiciary.’ For the same reason, respondents’ assertion of a substantive due-process violation is also unavailing.” The court noted that respondents acknowledged that it held in Muskegon Treasurer “that the respondents did not have a compensable takings claim because the Legislature provided a statutory pathway for respondents to recover any remaining proceeds, the petitioner followed the statutory scheme, and the respondents failed to take the minimally burdensome step of filing a timely notice of intention. The same holding applies to the facts” here. Also, in “the absence of an infringement on a constitutional guarantee, the reasoning in Nelson remains persuasive.” The defenses “and counterclaims discussed in Nelson provided property owners the opportunity to assert that their properties were worth more than they owed in taxes and fees and the means to recover the surplus. The functional equivalent in our Legislature’s scheme is the proper and timely submission of Form 5743.” Further, nothing “in the Knick holding undermines the relevant holding in Nelson.” And respondents cited “no authority supporting the proposition that a circuit court furthers justice by disregarding the plain, unambiguous requirements of a duly enacted statute that passes constitutional muster.” The court also rejected their unjust enrichment claim. “Petitioner followed the statutory scheme set forth by our Legislature as the exclusive mechanism for the recovery of remaining proceeds. Under this statutory scheme, petitioner lacks the discretion to disburse remaining proceeds to foreclosed property owners who did not comply with the notice requirements of MCL 211.78t(2).” The court found their remaining arguments meritless, noting it was “bound to follow Barry Treasurer and Muskegon Treasurer on” those issues. Affirmed.