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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Defamation case arising from an attorney’s statements to another attorney before a court-ordered mediation; Applicability of the confidentiality rule covering mediation proceedings (MCR 2.412); “Mediation communications” (MCR 2.412(B)(2))
The court held that defendant-attorney’s (Findling) statements to another attorney before meeting with the mediator in a court-ordered mediation were confidential under MCR 2.412(C) because they were “mediation communications.” Thus, it reversed the Court of Appeals’ judgment in part and reinstated two trial court orders. It concluded “that the Court of Appeals erred when it held that a cause of action for defamation existed based on these communications because they were subject to” the confidentiality rule covering mediation proceedings. The case involved attorneys and their communications about cases filed on behalf of a nonparty, S. Findling was appointed to act as the receiver for S’s estate. At the mediator’s office, he was placed in a room with S’s attorney (W) in one of S’s cases. W recorded his conversation with Findling without his permission or knowledge, and later shared it with plaintiff (S’s attorney in another case), leading plaintiff to file this action. Defendants moved to strike W’s affidavit and testimony based on MCR 2.412(C). The trial court agreed and granted that motion as well as defendants’ summary disposition motion. The Court of Appeals vacated the order granting the motion to strike, reversed the order granting summary disposition, and remanded. The court noted that “mediation communications” is expansively defined “to include statements that ‘occur during the mediation process’ as well as statements that ‘are made for purposes of . . . preparing for . . . a mediation.’” The conversation here occurred in “the mediator’s designated ‘plaintiff’s room’ while parties to the mediation were waiting for the mediation session to start and were thus part of the ‘mediation process.’” The court concluded that even if it agreed with the Court of Appeals “as to when the ‘mediation process’ begins,” there was no dispute that Findling’s statements to W “were made while ‘preparing for’ the mediation session and are therefore expressly encompassed within the definition of ‘mediation communications.’” It rejected the Court of Appeals’ reading that the rule requires “a mediator to meet with the parties and attorneys before the definition” of the term and the confidentiality provision attach, and its “conclusion that ‘[t]he expectation of confidentiality belongs to the mediation parties.'”
42 USC § 1983; Deliberate indifference to a pretrial detainee’s serious medical needs; The subjective element; Effect of Kingsley v. Hendrickson; Qualified immunity; Gross negligence claims under Michigan law; Causation; Driving while license suspended (DWLS)
[This appeal was from the WD-MI.] While the court affirmed summary judgment for most of the defendants in this case alleging deliberate indifference to a detainee’s (Phillips) serious medical need, it reversed as to defendant-Kelley, holding that a jury could find that he “possessed a sufficiently culpable state of mind necessary for liability.” Phillips was arrested for DWLS, and was found three hours later, unconscious in his cell. He died from an overdose of various drugs. The district court ruled that there was insufficient evidence that the officers knew he had a serious medical need. But the court noted that he could be seen on a video hunching over, swaying, repeatedly dropping his sandwich, holding his head and his midsection, falling, and lying on the floor in a pool of his own vomit. It declined to consider whether Kingsley, an excessive-force case, negated the subjective component of a Fourteenth Amendment deliberate-indifference claim where the issue was not raised in the district court. It applied the conventional test: “‘To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk.’” Although the record was insufficient to establish deliberate indifference as to most of the officers, it was sufficient for a jury to find that Kelley was “subjectively aware of Phillips’s distress and disregarded the risk of harm to him.” He helped book him and was aware that he took medicine for epilepsy. He admitted that he saw him on the monitors, “sitting hunched on the bench and lying on the floor, but stated that he thought Phillips was sleeping.” He also admitted checking the cell and seeing Phillips lying on the floor, and he saw him still lying there when he later placed another person in the cell. Yet he failed to determine whether he was breathing. The court rejected his argument that lying in a pool of vomit does not equal medical distress, noting that “Phillips vomited while unconscious and remained motionless as the vomit pooled around his head.” It also did not accept his claim that he was unaware that Phillips had ingested drugs where there was evidence he knew of his epilepsy and that he was slated to take another dose of his medication that evening. “Kelley cannot escape a finding of subjective knowledge of risk because he declined to further investigate the cause of Phillips’s distress.” The court held that it was for the jury to decide whether he saw the vomit and whether he truly believed that Phillips was asleep. He could not rely on qualified immunity where it was clearly established that withholding aid from an unconscious detainee lying in vomit was a constitutional violation.
The Wrongful Imprisonment Compensation Act (WICA); Whether the WICA required plaintiff to prove that his convictions were reversed based on new evidence in order to be entitled to compensation; MCL 691.1755(1)(c); “New evidence” (MCL 691.1752(b)); Tomasik v Michigan
Concluding that the Court of Claims’ ruling was consistent with Tomasik, the court affirmed the summary dismissal of plaintiff’s action under the WICA because his “convictions were not reversed based on new evidence.” The court previously reversed his convictions based on a Confrontation Clause violation and evidentiary error. He was acquitted after a retrial. He contended that he was not required “to prove that his convictions were reversed on the basis of new evidence in order to be entitled to compensation under the WICA. The Court of Claims disagreed” with his interpretation. On appeal, he argued that it “was bound by the analysis in Tomasik, that the analysis in Tomasik was flawed, reflecting a misinterpretation of the WICA, and that” the court should overturn Tomasik and remand the case so he can seek compensation. The court declined his “request to ‘overturn’ the” Tomasik decision, noting that it was binding under MCR 7.215(J)(1). Defendant acknowledged that his convictions were reversed based on a Confrontation Clause violation and the court’s determination that handgun evidence was improperly admitted. “Neither basis for reversal constituted ‘new evidence.’” Thus, the court held that he did not “establish, as a matter of law, that he was entitled to compensation under the WICA because he simply could not demonstrate that new evidence resulted in the reversal of his criminal convictions.” The court added that it agreed “with Tomasik’s interpretation of MCL 691.1755(1)(c)—it is consistent with the plain and unambiguous language of the statute.”
Sentencing; Whether the trial court relied on acquitted conduct when it assessed 50 points for OV 11; People v Beck; Retroactivity; Resentencing; Whether the trial court declined to resentence defendant based in part on inaccurate information
The court held that Beck should be applied retroactively and thus, the trial court improperly relied on acquitted conduct when it assessed 50 points for OV 11. Further, resentencing was required because deducting those points altered the guidelines minimum range. Finally, even if the trial court had correctly scored OV 11, defendant was still entitled to resentencing. Thus, the court vacated his sentence and remanded for resentencing. Defendant sought resentencing based on the Michigan Supreme Court’s opinion in Beck, which was decided after he was sentenced. In Beck, “the Michigan Supreme Court held that due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted.” In doing so, it “set forth a new rule of criminal procedure.” Further, the court did not “address defendant’s challenge to OV 11 when it was raised in defendant’s initial appeal. Thus,” it could treat his “challenge to OV 11 as if it is still pending on direct review.” The court concluded that because he was acquitted of each count of CSC I, “due process barred the trial court from finding by a preponderance of the evidence that defendant engaged in criminal sexual penetration with another person for purposes of sentencing.” In addition, it appeared “that the trial court declined to resentence defendant based, in part, on inaccurate information.”
Custody; Established custodial environment (ECE); MCL 722.27(1)(c); Award of joint physical custody; Whether the trial court’s findings on best-interest factors (c), (d), (e), & (j) were contrary to the great weight of the evidence
The court held that the trial court did not err in its determination as to the child’s (CFM) ECE, and that its findings as to factors (c), (d), (e), and (j) were not against the great weight of the evidence. Thus, it did not abuse its discretion by granting the parties joint physical custody. As to factor (c), defendant-mother asserted that no evidence supported the trial court’s conclusion that plaintiff-father “served as the primary financial support for the family, especially considering the support case against plaintiff and plaintiff’s admission that he had child support arrearages. Plaintiff admitted that he had" such arrearages at the time of trial but "also testified that he was able to pay for everything CFM needed, he paid the household bills during the several years that he and defendant lived together with CFM, he gave defendant a substantial amount of money to help her purchase her own vehicles, and he predominantly paid for CFM’s daycare,” including after the parties separated. The testimony also showed that both parties were involved in CFM’s medical care. As to factor (d), defendant relied on her argument that an ECE existed solely with her during the period between 11/30/19 and 2/19/20. But the trial court specifically addressed this period, as well as all other relevant periods in CFM’s life, and held that an ECE existed with both parties. Defendant also claimed it “assumed” CFM lived with both parties as of the time of her birth; however, the trial court “explicitly noted in its factual findings that the parties moved to different areas shortly after CFM’s birth.” As to factor (e), the trial court determined that “both parties had the ‘stable and loving support of their families,’ but noted that plaintiff’s family had been more regularly involved in CFM’s life than defendant’s family as a result of defendant’s family living in Toledo.” It determined that the testimony was persuasive that he offered CFM “more permanence and stability in terms of a family unit and as a proposed custodial home.” As to factor (j), it “noted that plaintiff admitted to being angry with defendant and having difficulty coparenting with her.” It also stated that ‘“defendant’s testimony left it ‘with the definite impression that she was focused on what she wanted and not what was in the minor’s best interest.’ The court noted that plaintiff had to file a motion to regain parenting time with CFM after he ‘voluntarily refrained from exercising parenting time’ as a result of the pandemic.” Affirmed.
Drainage dispute between adjoining landowners; Grant of a motion for reconsideration; MCR 2.119(F)(3); Factors to consider when a party fails to appear for trial; Vicencio v Ramirez; Good cause for setting aside a default; Form of the motion; MCR 1.105; Whether the moving parties should have invoked MCR 2.603(A)(3); MCR 2.603(A)(2); “Palpable error”; The payment of costs as a prerequisite to relief; MCR 2.603(D)(4) & 2.625(D); Equitable remedy after a finding of nuisance; Norton Shores v Carr
The court rejected defendant-Belill’s challenges to both the merits and the procedural form of the trial court’s decision to grant plaintiffs-Taylors’ motion for reconsideration after it initially dismissed their complaint due to their attorney’s failure to appear on the original trial date. It also rejected his assertion that the trial court “retained ‘perpetual jurisdiction’ over” the case when it stated in its order granting plaintiffs equitable relief “that it would revisit the equitable options if compliance was legally impossible[.]” Both sides asserted “that surface water pools on their land and that the opposing party” was responsible. A jury found for plaintiffs and awarded them $1,000. Their attorney had not appeared on the original trial date due to illness, and the trial court had dismissed their complaint and granted Belill a default on his counterclaim. But it reconsidered, reinstated the case, and set aside the default. The court found no merit in Belill’s procedural and substantive challenges to that ruling, or the ordered equitable relief. As to the merits of the decision to grant the motion for reconsideration, the court found that the Vicencio factors strongly supported it. Belill did not assert “that counsel’s failure to appear was a deliberate delaying tactic or part of a history of noncompliance. The trial court admitted that its original understanding of the circumstances had been mistaken, and that there may have been some confusion about whether trial would proceed on the original date. The record reveals communication failures, not deliberate misconduct. The court’s recognition of its own possible role in the miscommunications amply supports its decision to revisit whether counsel’s absence warranted dismissal and a default.” The court found no abuse of discretion in either the substance of the trial court’s ruling or in its “decision to overlook any procedural error.” As to the ordered remedy after the jury returned a verdict for plaintiffs on their nuisance claim, “the trial court crafted a remedy that would abate the nuisance while minimizing Belill’s costs and preserving his garage.” It did not require him to violate “the township’s zoning ordinance, and defense counsel acknowledged that the township would permit Belill to comply with the court’s order.” He did not show any error. Affirmed.
“Aggrieved party” for purposes of appeal; Appearing pro se; Adequate time & opportunity to be heard; Appointment of a receiver; Applicability of MCR 3.105 or MCL 600.2920; Limited liability company (LLC)
The court concluded that only defendant-Cobb could be found to have appeared in this appeal, that he was not an aggrieved party, and that even if he were a proper party to pursue it, his arguments did not support reversal. Thus, it affirmed the order dismissing the case in conjunction with the parties’ settlement agreement. Cobb co-owned defendant-CF Broadcasting, an LLC, with defendant-Fleming. CF purchased a radio station, executing “a promissory note and security agreement pledging the station, its FCC license, and associated tangible and intangible personal property as collateral, and giving plaintiff the right to immediate possession of the collateral or to appoint a receiver if CF Broadcasting defaulted on the note. CF Broadcasting also executed a mortgage on the real property” where the station was located. Plaintiff was the mortgagee. Additionally, Cobb and Fleming executed a personal guaranty. CF Broadcasting later defaulted and filed for bankruptcy. The court noted that while Cobb “purported to file this appeal pro se as the ‘spokesperson’ for all three defendants, he” was not a licensed attorney and could “not appear ‘pro se’ on behalf of the” LLC in legal proceedings. The court further noted that not “only did the trial court’s orders not adversely affect any of Cobb’s property rights because he did not have any interest in the property, the final order in this case arguably benefited Cobb because it provided that plaintiff had agreed to forgo any collection of the unpaid balance of the promissory note that Cobb had personally guaranteed. Because, under the authority of the order, plaintiff now deems the note paid and satisfied, Cobb is no longer potentially personally liable for the $229,000 due.” In addition, there was no merit to his argument as to the time and opportunity to be heard given that the “trial court entered the final order in this case nearly five years after plaintiff filed the complaint.” Finally, as “neither MCR 3.105 nor MCL 600.2920 applied[,]” there was no merit in his assertion that the trial court erred in not following these procedures.