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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary


Cases appear under the following practice areas:

    • Bankruptcy (1)

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      e-Journal #: 60603
      Case: In re Matteson
      Court: U.S. Bankruptcy Appellate Panel Sixth Circuit ( Opinion )
      Judges: Preston, Delk, and Opperman
      Issues:

      Chapter 13; “Long-term debts”; 11 USC §§ 1322(b)(5) & 1328(a); FDIC v. Union Entities (In re Be-Mac Transp. Co., Inc.) (8th Cir.); United Student Aid Funds, Inc. v. Espinosa; “Judicial estoppel”; White v. Wyndham Vacation Ownership, Inc.; In re Simmerman (Bankr. SD OH); “Proof of claim”; §§ 501(a) & 506(d); In re Nwonwu (Bankr. ED VA); State Bank of Florence v. Miller (In re Miller) (Unpub. 6th Cir.)

      Summary:

      In this Chapter 13 case, the bankruptcy court properly ruled that defendant-Bank of America’s mortgage loans were “non-dischargeable” but erred by reducing the balance of each loan by the amount that the Bank would have been paid through the plan had it filed proofs of claim for the debts. The bankruptcy plan listed the Bank’s two mortgages as “long-term debts,” for which the Bank did not file proofs of claim. After the bankruptcy court entered an order discharging the debtors and the case was closed, the debtors filed an adversary proceeding against the Bank, seeking to avoid the debts based on the Bank’s failure to file. The court concluded that the bankruptcy court erred by requiring that the Bank’s debt be reduced based on its failure to file proofs of claim. The plan “itself did not specifically impose such a result and treated the debt as long-term debt.” The bankruptcy court also could not rely on “judicial estoppel” to support its decision to reduce the debts because there was no “bad faith” on the part of the Bank. Although “any creditor may file a proof of claim[,] . . . Federal Rule of Bankruptcy Procedure 3002(a) requires only unsecured creditors to file a proof of claim for the claim to be allowed. Secured creditors ‘are not required to file a proof of claim solely to preserve their lien.’” Thus, the failure to file a claim alone is not an indication of bad faith. While the Bank waived its right to payment under the plan by deciding not to participate in the bankruptcy plan, this “did not result in the Bank’s waiver of its right to payment on the debt.” The debtors exited the bankruptcy case in default because they failed to service the debt by making payments outside the plan, and the Bank was free to collect the payment by executing on the collateral under state law. The Bankruptcy Appellate Panel held that “because the Debtors and the Trustee had the power to file a proof of claim on behalf of the Bank, thus allowing the plan to operate as intended, and because the plan itself did not provide any modification of the Bank’s liens or the discharge of the debt, the bankruptcy court erred by reducing the amount of debt owed to the Bank.” Affirmed in part, reversed in part, and remanded for entry of a judgment consistent with the court’s ruling.

    • Constitutional Law (1)

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      This summary also appears under Corrections

      e-Journal #: 60604
      Case: American Civil Liberties Union Fund of MI v. Livingston Cnty.
      Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
      Judges: Moore, Siler, and Stranch
      Issues:

      Prisoner rights; Jail mail policy; Prison Legal News v. Bezotte (Unpub. ED MI); “Legal mail”; Likelihood of success on the merits of the First Amendment claim; Kensu v. Haigh; Wolff v. McDonnell; Jones v. Caruso; Sallier v. Brooks; Muhammad v. Pitcher; Turner v. Safley; Likelihood of success on the merits of the Fourteenth Amendment claim; Martin v. Kelley; Procunier v. Martinez

      Summary:

      [This appeal was from the ED-MI.] Where the defendant-Livingston County’s Jail did not deliver the plaintiff-ACLU’s letters to the inmates, or inform the inmates that the mail was not delivered, the court affirmed the district court’s preliminary injunction ordering the Jail to deliver the letters. The ACLU sent the inmates sealed letters marked “Legal Mail,” containing information regarding the jail’s “postcard policy,” which limited sealed envelopes to “legal mail.” The ACLU argued that the Jail violated the First and Fourteenth Amendment “by failing to deliver the letters and by failing to notify the ACLU or the inmates about the non-delivery.” The Jail argued against the injunction, claiming that “legal mail does not include mail from an attorney if the mail neither contains privileged content nor implicates an attorney-client relationship.” To determine whether the ACLU was likely to succeed on the merits of its First Amendment claim, the court considered, and rejected, the Jail’s argument that the letters did not involve an “ongoing legal matter” because the ACLU did not have an existing attorney-client relationship with any of the inmate addressees and thus, it “was not obligated to treat the letters as ‘legal mail’ under its mail intake policy.” The court noted that it has “consistently held that ‘the opening of “legal mail” should generally be in the inmate’s presence.’” Also, the court “has never suggested that ‘legal mail’ requires an existing attorney-client relationship.” It noted that “both attorneys and inmates have a strong interest in keeping communications relating to the initial investigative stages of a legal matter” (the Jail’s “postcard policy”) confidential. The Jail’s policies did not “bear a rational connection to a legitimate interest” – rather, they were “arbitrary, untenable, and unnecessarily impinge[d] on important First Amendment rights.” Further, because the letters were “legal mail,” the ACLU was “also likely to succeed on its Fourteenth Amendment claim.”

    • Contracts (1)

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      This summary also appears under Debtor/Creditor

      e-Journal #: 60587
      Case: First Nat'l Bank of Omaha v. Nagel
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Markey, Murphy, and Stephens
      Issues:

      Action alleging breach of contract and accounts stated for the past due amount on a credit card; Whether the defendant-personal guarantor’s status as guarantor was properly revoked by a fax from the defendant-debtor to the plaintiff-creditor; Construction of guaranty agreements; Gibbons Ranches, LLC v. Bailey (NE); Daehnke v. Nebraska Dep’t of Soc. Servs. (NE); Kozlik v. Emelco, Inc. (NE); Production Credit Ass’n of Midlands v. Schmer (NE); Federal Deposit Ins. Corp. v. Heyne (NE)

      Summary:

      [Unpublished opinion.] The court held that the trial court did not err by granting summary disposition for the plaintiff-creditor in its action seeking payment from defendant-Nagel as the guarantor of defendant-High Tech’s credit card debt because Nagel failed to establish a genuine issue of material fact as to the validity of the purported revocation of his status as guarantor. Hi-Tech entered into a credit card agreement with plaintiff, and Nagel signed a guaranty agreement on the account. Hi-Tech later faxed plaintiff a letter seeking to remove Nagel as guarantor. Plaintiff responded by sending Hi-Tech a new guaranty contract and asking it to appoint a new guarantor, which it failed to do. When Hi-Tech defaulted on the account, plaintiff sued both Hi-Tech and Nagel for breach of contract and accounts stated for the past due amount of $48,849.28 plus costs, interest, and attorney’s fees. On appeal, the court rejected Nagel’s argument that he established a genuine issue of material fact whether High-Tech’s revocation of his guaranty status was valid. “The parties’ guaranty unambiguously required the revoking guarantor to send a written and signed notice of revocation to plaintiff at a specific address, by certified mail with return receipt request, to the attention of FNCCC Legal. The guaranty also required plaintiff to sign the revocation. It is undisputed that” High-Tech’s CEO, not Nagel, “sent the purported revocation letter.” Moreover, the CEO “faxed the letter, rather than sending it by certified mail to the specified address” with return receipt requested, and “also did not address the letter to the attention of FNCCC Legal.” Finally, Nagel “did not sign the letter,” nor did the CEO “obtain plaintiff’s signature agreeing to the revocation. The purported letter of revocation thus did not meet the guaranty’s unambiguous requirements for a valid revocation.” Thus, “by the plain meaning of the guaranty,” the alleged revocation “did not ‘operate to relieve’” Nagel “of his ‘responsibility for indebtedness,’ and he remained liable for Hi-Tech’s subsequent balances on its credit card account with plaintiff.” Affirmed.

    • Corrections (1)

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      This summary also appears under Constitutional Law

      e-Journal #: 60604
      Case: American Civil Liberties Union Fund of MI v. Livingston Cnty.
      Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
      Judges: Moore, Siler, and Stranch
      Issues:

      Prisoner rights; Jail mail policy; Prison Legal News v. Bezotte (Unpub. ED MI); “Legal mail”; Likelihood of success on the merits of the First Amendment claim; Kensu v. Haigh; Wolff v. McDonnell; Jones v. Caruso; Sallier v. Brooks; Muhammad v. Pitcher; Turner v. Safley; Likelihood of success on the merits of the Fourteenth Amendment claim; Martin v. Kelley; Procunier v. Martinez

      Summary:

      [This appeal was from the ED-MI.] Where the defendant-Livingston County’s Jail did not deliver the plaintiff-ACLU’s letters to the inmates, or inform the inmates that the mail was not delivered, the court affirmed the district court’s preliminary injunction ordering the Jail to deliver the letters. The ACLU sent the inmates sealed letters marked “Legal Mail,” containing information regarding the jail’s “postcard policy,” which limited sealed envelopes to “legal mail.” The ACLU argued that the Jail violated the First and Fourteenth Amendment “by failing to deliver the letters and by failing to notify the ACLU or the inmates about the non-delivery.” The Jail argued against the injunction, claiming that “legal mail does not include mail from an attorney if the mail neither contains privileged content nor implicates an attorney-client relationship.” To determine whether the ACLU was likely to succeed on the merits of its First Amendment claim, the court considered, and rejected, the Jail’s argument that the letters did not involve an “ongoing legal matter” because the ACLU did not have an existing attorney-client relationship with any of the inmate addressees and thus, it “was not obligated to treat the letters as ‘legal mail’ under its mail intake policy.” The court noted that it has “consistently held that ‘the opening of “legal mail” should generally be in the inmate’s presence.’” Also, the court “has never suggested that ‘legal mail’ requires an existing attorney-client relationship.” It noted that “both attorneys and inmates have a strong interest in keeping communications relating to the initial investigative stages of a legal matter” (the Jail’s “postcard policy”) confidential. The Jail’s policies did not “bear a rational connection to a legitimate interest” – rather, they were “arbitrary, untenable, and unnecessarily impinge[d] on important First Amendment rights.” Further, because the letters were “legal mail,” the ACLU was “also likely to succeed on its Fourteenth Amendment claim.”

    • Courts (1)

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      This summary also appears under Criminal Law

      e-Journal #: 60575
      Case: People v. Thomas
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Saad and M.J. Kelly; Concurrence - Shapiro
      Issues: Ineffective assistance of counsel; People v. Gioglio (On Remand); People v. Lockett; People v. Grant; Cullen v. Pinholster; Trial strategy; People v. Payne; People v. Cooper; Court costs; Whether the trial court has the authority to impose court costs; MCL 769.1k; People v. Konopka
      Summary:

      [Unpublished opinion.] The court held that the defendant was not denied the effective assistance of counsel, and the trial court did not err by ordering him to pay $600 in court costs. He was convicted of armed robbery, felon in possession, and felony-firearm. The trial court sentenced him to serve 12 to 30 years in prison for the armed robbery conviction, 1 to 5 years for the felon in possession conviction, and 5 years for the felony-firearm conviction. On appeal, the court rejected his argument that his trial lawyer provided ineffective assistance by failing to present expert testimony as to the fallibility of eyewitness identifications. It noted that “his lawyer might have felt that hiring an expert to lecture the jury on the obvious would have had a negative impact on the jury’s assessment of the evidence or appeared desperate. Given the deficiencies in the witnesses’ testimony,” defense counsel “might reasonably have concluded that the best way to establish reasonable doubt as to the eyewitnesses’ identification would be through cross examination.” Thus, defendant failed to “overcome the strong presumption that his lawyer’s decision fell within the range of reasonable professional conduct.” The court also rejected his argument that because the trial court “lacked statutory authority” to impose court costs against him at the time of his sentencing, his sentence must be vacated to the extent it required him to pay $600 in court costs. It found that although the statute did not authorize the trial court to assess court costs at the time of his sentencing, the Legislature has since amended the statute to retroactively authorize such assessments, and the court in Konopka held that “the amendment must be enforced and does not violate a defendant’s constitutional rights.” Further, unlike the defendant in Konopka, defendant “did not challenge the reasonableness of the court costs or their factual basis.” Thus, he failed to identify any error warranting relief. Affirmed.

    • Criminal Law (5)

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      e-Journal #: 60581
      Case: People v. Hardin
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Markey, Murphy, and Stephens
      Issues:

      Sentencing; Principle that the trial court is required to score the offense of the highest crime class when a defendant has multiple convictions & the sentences are concurrent; People v. Lopez; MCL 777.16m; MCL 469.34(2); MCL 777.22(5); People v. Bemer; A minimum sentence within the appropriate guidelines range; MCL 769.34(10); Claim the trial court sentenced defendant outside an agreed upon range without allowing him an opportunity to withdraw his plea; People v. Nixten; People v. Swirles; Claim that the trial court erred in sua sponte amending the judgment of sentence (JOS); People v. Holder; MCR 6.435; Court rule interpretation; People v. Howell; Use of a dictionary to define “oversight”; People v. Lewis; MCL 769.1h(1); MCL 768.7a; A “clerical error”; People v. Peck; Sentencing Information Report (SIR); Felon in possession (FIP)

      Summary:

      [Unpublished opinion.] The court held that the trial court followed the proper procedures in calculating the defendant’s recommended minimum guidelines range and imposing a minimum sentence within it. Further, the trial court did not agree to sentence him to a specific range and the prosecution did not agree to recommend one. Finally, the trial court did not commit plain error in sua sponte amending the JOS to correct a clerical error. Defendant pleaded guilty in these consolidated cases to resisting arrest causing injury, FIP, and felony-firearm. The court rejected his claim that the trial court disregarded the guidelines. “When a defendant has multiple convictions and the sentences for the convictions are concurrent, the trial court is required to score the offense of the highest crime class.” Resisting arrest causing injury is a class F offense, while FIP is a class E offense. Thus, the inquiry was whether the trial court sentenced him within the recommended minimum range for his FIP conviction. It scored the applicable OVs and PRVs for this conviction. According to the SIR, “defendant had a PRV total of 62 points, and an OV total of 50 points.” Thus, his OV level was V, and his PRV level was E. “The range for such an offender is 19 to 38 months” and his 36-month sentence fell within it. The court next rejected his claim that “the trial court improperly sentenced him outside of an agreed upon range of 10 to 23 months” without giving him an opportunity to withdraw his plea. Finally, he argued that the trial court erred by sua sponte amending the JOS to reflect that his parole sentence was consecutive to the felony-firearm conviction and concurrent to his sentences for resisting arrest causing injury and FIP. A clerical error exists in a JOS “when the intent of the trial court can be determined from the sentencing hearing and the parties are aware of the trial court’s intent.” Both parties at the time of sentencing knew of “defendant’s status as a parolee and the trial court’s intent to impose a consecutive sentence for defendant’s parole.” The failure to address whether his “new sentences were consecutive to or concurrent with his parole sentence was an omission or oversight – something that the trial court ‘left out’ or ‘failed to include’ – in its original” JOS. Affirmed.

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      e-Journal #: 60585
      Case: People v. Holman
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Fort Hood, Saad, and Riordan
      Issues: Claim that the trial court’s limitation on the admission of evidence as to the victim’s prior conviction violated the defendant’s right to due process or MRE 404(b); Right to present a defense; People v. Unger; MRE 609; MRE 404(b)(1); Assault with intent to do great bodily harm less than murder (AWIGBH)
      Summary:

      [Unpublished opinion.] Holding that the trial court did not violate defendant’s right to due process when it prevented defense counsel from questioning the victim about the victim’s prior murder conviction, and that defendant’s appeal was without merit, the court affirmed his conviction of AWIGBH. He claimed that the trial court’s limitation on the admission of evidence about the victim’s prior conviction violated his right to due process or MRE 404(b). However, the trial court properly limited admission of the victim’s criminal history under MRE 609, because “(1) the victim committed the crime in 1992; and (2) he was discharged from parole in 2013.” While defense counsel claimed at trial that “he did not seek to question the victim about the murder conviction for purposes of impeaching the victim, it is obvious from the record and defense counsel’s other statements that counsel sought to do so to: (1) make the victim less trustworthy in the eyes of the jury (in other words, impeach the victim); and (2) establish that the victim had a propensity toward violence.” Neither approach is permitted under MRE 609 or MRE 404(b), which “expressly prohibits the use of ‘other acts’ evidence ‘to prove the character of a person in order to show action in conformity therewith.’” In any event, defendant overlooked the fact that the jury was informed of the prior conviction, because “the trial court ordered the prosecution to stipulate to this fact when defendant took the stand.” In so doing, it permitted him to “explain his state of mind during his brawl with the victim—in other words, present the defense he wanted to present,”—with “reference to the fact that the victim was a convicted murderer.” Further, were the court to find that the trial court abused its discretion in preventing defense counsel from questioning the victim about his prior murder conviction, defendant failed to show that “it is more probable than not” that the victim’s testimony would have convinced the jury that he was not guilty. Even were the court to believe his “version of events—which the jury obviously did not, despite the fact that it knew of the victim’s prior conviction for murder—defendant’s assertion that he acted in self-defense” was not possible as a matter of law.

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      e-Journal #: 60578
      Case: People v. Smith
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Wilder, Shapiro, and Ronayne Krause
      Issues:

      Sentencing; Whether the defendant’s sentence (as a fourth habitual offender) of 9 to 20 years for larceny from the person constituted “cruel or unusual punishment”; People v. Nunez; Presumptions that a within guidelines sentence is proportionate & a proportionate sentence is not cruel or unusual punishment; People v. Bowling; People v. Lee; Effect of a defendant’s age; People v. Lemons; “Plain error” review; People v. Carines; Scoring of OV 13; MCL 777.43(1)(d); Motion to suppress evidence on the basis the arresting officer lacked “probable cause”; People v. Cohen; Claim defendant was denied a fair trial due to judicial bias; People v. Jackson; Admission of a casino surveillance video & a casino machine printout; Whether the video was properly authenticated; MRE 901(a) & (b)(1); The “best evidence rule”; MRE 1002; People v. Alexander; Prosecutorial misconduct; People v. Herndon; Alleged Brady v. Maryland violation; People v. Chenault; Ineffective assistance of counsel; People v. Rodgers; People v. Heft; People v. Solmonson; Factual predicate requirement; People v. Carbin; Standby counsel; People v. Willing; People v. Kevorkian

      Summary: [Unpublished opinion.] Holding that the defendant’s 9 to 20-year sentence as a fourth habitual offender for larceny from the person was not cruel or unusual punishment, and rejecting his numerous claims raised in a Standard 4 brief, the court affirmed his convictions and sentences. He was also convicted of larceny in a building, for which he was sentenced to one to four years. The convictions arose from his theft of a winning slot machine ticket from an elderly victim. Defendant did not dispute that his sentence was within the minimum guidelines range. Rather, he argued that it was disproportionate because his age, 56 years old, and his “poor mental health” constituted “unusual circumstances that render his presumptively proportionate sentence disproportionate.” However, age and mental health “are not factors that amount to unusual circumstances.” The Michigan Supreme Court has “held that a court is not required to consider a defendant’s age in determining whether a sentence is disproportionate.” Further, defendant did not support his argument with any authority indicating “that a court is required to consider mental health factors when determining the proportionality of a sentence.” Thus, he failed to provide unusual circumstances rendering his within guidelines sentence disproportionate. As to his Standard 4 brief arguments, the court held, among other things, that the arresting officer had probable cause to arrest defendant. The facts and circumstances within the officer’s “knowledge, of which he had reasonably trustworthy information from the casino surveillance video, were sufficient to warrant a person of reasonable caution in the belief that a larceny had been committed and that defendant had committed it.” As to the scoring of OV 13, he had a prior larceny from the person conviction in 2011. That conviction, paired with his convictions in this case, showed “a pattern of felonious criminal activity involving a combination of three crimes against a person or property.” Thus, the trial court properly scored OV 13 at 10 points.

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      This summary also appears under Courts

      e-Journal #: 60575
      Case: People v. Thomas
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Saad and M.J. Kelly; Concurrence - Shapiro
      Issues: Ineffective assistance of counsel; People v. Gioglio (On Remand); People v. Lockett; People v. Grant; Cullen v. Pinholster; Trial strategy; People v. Payne; People v. Cooper; Court costs; Whether the trial court has the authority to impose court costs; MCL 769.1k; People v. Konopka
      Summary:

      [Unpublished opinion.] The court held that the defendant was not denied the effective assistance of counsel, and the trial court did not err by ordering him to pay $600 in court costs. He was convicted of armed robbery, felon in possession, and felony-firearm. The trial court sentenced him to serve 12 to 30 years in prison for the armed robbery conviction, 1 to 5 years for the felon in possession conviction, and 5 years for the felony-firearm conviction. On appeal, the court rejected his argument that his trial lawyer provided ineffective assistance by failing to present expert testimony as to the fallibility of eyewitness identifications. It noted that “his lawyer might have felt that hiring an expert to lecture the jury on the obvious would have had a negative impact on the jury’s assessment of the evidence or appeared desperate. Given the deficiencies in the witnesses’ testimony,” defense counsel “might reasonably have concluded that the best way to establish reasonable doubt as to the eyewitnesses’ identification would be through cross examination.” Thus, defendant failed to “overcome the strong presumption that his lawyer’s decision fell within the range of reasonable professional conduct.” The court also rejected his argument that because the trial court “lacked statutory authority” to impose court costs against him at the time of his sentencing, his sentence must be vacated to the extent it required him to pay $600 in court costs. It found that although the statute did not authorize the trial court to assess court costs at the time of his sentencing, the Legislature has since amended the statute to retroactively authorize such assessments, and the court in Konopka held that “the amendment must be enforced and does not violate a defendant’s constitutional rights.” Further, unlike the defendant in Konopka, defendant “did not challenge the reasonableness of the court costs or their factual basis.” Thus, he failed to identify any error warranting relief. Affirmed.

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      e-Journal #: 60584
      Case: People v. Walker
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Hoekstra, Jansen, and Meter
      Issues:

      “Other acts” evidence; MRE 404(b); People v. Dobek; Whether the evidence prejudiced the defendant; People v. Lukity; Juror bias; MCR 2.511(D); Poet v. Traverse City Osteopathic Hosp.; Deference to the trial court’s superior ability to assess from a venireman’s demeanor whether the person would be impartial; People v. Williams

      Summary:

      [Unpublished opinion.] The court held that the other acts evidence admitted by the trial court did not change the outcome of the case, and that the trial court did not abuse its discretion in denying defense counsel’s challenge for cause as to a prospective juror. Defendant was convicted of CSC I, first-degree home invasion, and felonious assault for breaking into a home and sexually assaulting a 14-year-old girl at knifepoint. On appeal, the court rejected his argument that the trial court erred by admitting exhibits constituting “other acts” evidence, including his Internet search history, e-mails, and photos on his phone. It noted that the majority of the exhibits “would have been admissible had the prosecution provided proper notice,” but even though it did not provide such notice, the error was harmless. “The other evidence in favor of conviction in this case was overwhelming. Both the victim and her aunt positively identified defendant as the attacker in court. Four latent fingerprints matching defendant’s were discovered on the window where the attacker likely gained entry. There was no other plausible explanation regarding how the prints got there. Defendant’s backpack contained a knife and a dark hat with holes in it, both of which the victim identified as similar to the ones her attacker used.” His cell phone “contained an image that the victim identified as a photograph of her lying on a bed. The time stamp on the image matches the approximate time that the crime was committed. From the photograph the victim also identified pillows and blankets that were in the room on the night of the attack.” The court also rejected his claim that he should be granted a new trial because the trial court improperly denied defense counsel’s challenge for cause of one of the prospective jurors during voir dire. “[T]he prospective juror at issue told the court that he might have a hard time being objective because his father had been murdered during a home invasion. However, the prospective juror stated that he believed he was an analytical person who would like to think he could put his emotions aside. The prospective juror’s statement did not rise to the level of a ‘particularly biased opinion.’” Affirmed.

    • Debtor/Creditor (1)

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      This summary also appears under Contracts

      e-Journal #: 60587
      Case: First Nat'l Bank of Omaha v. Nagel
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Markey, Murphy, and Stephens
      Issues:

      Action alleging breach of contract and accounts stated for the past due amount on a credit card; Whether the defendant-personal guarantor’s status as guarantor was properly revoked by a fax from the defendant-debtor to the plaintiff-creditor; Construction of guaranty agreements; Gibbons Ranches, LLC v. Bailey (NE); Daehnke v. Nebraska Dep’t of Soc. Servs. (NE); Kozlik v. Emelco, Inc. (NE); Production Credit Ass’n of Midlands v. Schmer (NE); Federal Deposit Ins. Corp. v. Heyne (NE)

      Summary:

      [Unpublished opinion.] The court held that the trial court did not err by granting summary disposition for the plaintiff-creditor in its action seeking payment from defendant-Nagel as the guarantor of defendant-High Tech’s credit card debt because Nagel failed to establish a genuine issue of material fact as to the validity of the purported revocation of his status as guarantor. Hi-Tech entered into a credit card agreement with plaintiff, and Nagel signed a guaranty agreement on the account. Hi-Tech later faxed plaintiff a letter seeking to remove Nagel as guarantor. Plaintiff responded by sending Hi-Tech a new guaranty contract and asking it to appoint a new guarantor, which it failed to do. When Hi-Tech defaulted on the account, plaintiff sued both Hi-Tech and Nagel for breach of contract and accounts stated for the past due amount of $48,849.28 plus costs, interest, and attorney’s fees. On appeal, the court rejected Nagel’s argument that he established a genuine issue of material fact whether High-Tech’s revocation of his guaranty status was valid. “The parties’ guaranty unambiguously required the revoking guarantor to send a written and signed notice of revocation to plaintiff at a specific address, by certified mail with return receipt request, to the attention of FNCCC Legal. The guaranty also required plaintiff to sign the revocation. It is undisputed that” High-Tech’s CEO, not Nagel, “sent the purported revocation letter.” Moreover, the CEO “faxed the letter, rather than sending it by certified mail to the specified address” with return receipt requested, and “also did not address the letter to the attention of FNCCC Legal.” Finally, Nagel “did not sign the letter,” nor did the CEO “obtain plaintiff’s signature agreeing to the revocation. The purported letter of revocation thus did not meet the guaranty’s unambiguous requirements for a valid revocation.” Thus, “by the plain meaning of the guaranty,” the alleged revocation “did not ‘operate to relieve’” Nagel “of his ‘responsibility for indebtedness,’ and he remained liable for Hi-Tech’s subsequent balances on its credit card account with plaintiff.” Affirmed.

    • Family Law (2)

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      e-Journal #: 60590
      Case: Baughman v. Hartman
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Markey, Murphy, and Stephens
      Issues:

      Child custody; Parenting time; Whether there was "proper cause" or a "change of circumstances"; Shade v. Wright; Vodvarka v. Grasmeyer; Whether there was an "established custodial environment"; MCL 722.27(c); Pierron v. Pierron; LaFleche v. Ybarra; The 12 statutory best-interest factors; MCL 722.23; Eldred v. Ziny; Whether there was proper communication and cooperation between the parents; MCL 722.23(j); Consideration of the parties’ finances; Dempsey v. Dempsey; Whether a trial court’s decision as to a best-interest factor is against the great weight of the evidence; MCL 722.28; Presumption that a trial court knows the law; Charles A. Murray Trust v. Futrell; Harmless error; Kubicki v. Sharpe; Kessler v. Kessler; Mootness; B P 7 v. Bureau of State Lottery; Abandoned issue; Houghton v. Keller

      Summary:

      [Unpublished opinion.] The court held that the trial court did not err by granting the defendant-mother’s motion for a modification of parenting time with the parties’ children. The parties had joint legal and physical custody, as well as a parenting time agreement under which the children stayed overnight with the plaintiff-father on Thursday evenings and every other weekend. Two years into the arrangement, defendant filed a motion to modify parenting time, claiming there were issues with the arrangement and overnight parenting time with plaintiff during the school year was not in the children’s best interests. The trial court ordered that, during the school year, plaintiff would have alternating weekends with the children and parenting time on Wednesday nights, and that defendant would generally have the remainder of the time with the children. It also ordered that, during the summers, the parties would each receive an uninterrupted two-week block of time and would otherwise receive alternating weeks with the children. On appeal, the court found that the trial court did not abuse its discretion it weighing the best interest factors. “The trial court found that three factors favored [defendant] and that six factors were equal.” Factor (k) “was not an issue, and the court did not indicate whether factors (i) and (l) favored either party.” Based on its best interest analysis, “the trial court found by clear and convincing evidence that it was in the minor children’s best interests to change their custodial environment. That finding was not ‘so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias’ as required for us to conclude that the trial court’s decision was an abuse of discretion.” The court also found that although “the trial court’s ruling that it would not consider matters at issue before the date of the ‘last effective order’” was erroneous, the error was harmless. Finally, it rejected plaintiff's argument that the trial court was biased against him. Affirmed.

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      e-Journal #: 60601
      Case: Ellis v. Ellis
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Wilder, Shapiro, and Ronayne Krause
      Issues:

      Divorce; Arbitration; Claim that the arbitrator exceeded his authority by imputing income to the defendant-husband; Principle that property acquired by a spouse before the marriage is considered separate property to the extent of whatever equity the spouse held in it up to the time of the marriage; Korth v. Korth; Commingling of assets; Cunningham v. Cunningham; Arbitrator’s failure to record parts of the proceedings; MCL 600.5077(2); MacIntyre v. MacIntyre; Issue raised for the first time on appeal; Polkton Twp. v. Pellegrom; Principle that a party is not entitled to relief for an error to which that party meaningfully contributed; Farm Credit Servs. of MIs Heartland, PCA v. Weldon; Purpose of the recording requirement; Harvey v. Harvey; Propriety of dispensing with issue preservation requirements in this case; Napier v. Jacobs

      Summary:

      [Unpublished opinion.] The court concluded that there was no error on the face of the arbitration award, and that the factual finding the parties essentially commingled their assets was “entirely permitted under the law.” While the arbitrator did not record the proceedings as required by MCL 600.5077(2), the court declined to provide the defendant-husband any relief on this basis where he raised the issue for the first time on appeal. It was “obvious from the face of the arbitration award that there was substantial evidence that defendant had a much higher income” than he reported. His argument was based on “the assumption that the arbitrator was not permitted by law to consider evidence of his income beyond what he reported.” He did not cite, and the court did not find, any law to that effect. “If anything, the arbitrator gave defendant the benefit of the doubt by imputing to him merely the same amount of income as that of plaintiff.” He also asserted that “the arbitrator was legally obligated to provide him with an offset to his child support obligations based on a likely number of overnights the children would spend with him. Even if that was true, the arbitrator did not obviously make any mistake in concluding that no overnights were likely based on the available evidence.” The fact that he was awarded “reasonable parenting time” did not necessarily constitute a finding that he would exercise it. There was apparently no dispute that he “never actually exercised any parenting time with the children, or at least he exercised no overnight parenting time.” Since there was “nothing inherently impermissible about making a factual finding that the parties commingled their separate assets into a single marital estate, which would then be subject to division,” the court could not find a legal error on the face of the award. Finally, it noted that the purpose of the recording requirement “is to enable courts to review matters of child custody and to ensure the rights and interests of the child or children.” It found it dispositive that defendant did not seek review, or express “any concern about, issues of custody, parenting time, or the rights or interests of the children.” It affirmed the divorce judgment.

    • Immigration (2)

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      e-Journal #: 60597
      Case: Velasco-Tijero v. Lynch
      Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
      Judges: Rogers, Guy, and Gibbons
      Issues:

      “Cancellation of removal”; The Anti-Terrorism & Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA); 8 USC §§ 1227(a)(2) & 1229b(b)(1)(C); Whether the bar against criminally convicted undocumented aliens challenging removal was retroactive; § 435(b) of the AEDPA; Fernandez-Vargas v. Gonzalez; Mojica v. Reno (ED NY); Motion to remand; Abu-Khaliel v. Gonzales; Matter of Arai (BIA); Scorteanu v. I.N.S.; Board of Immigration Appeals (BIA)

      Summary:

      The BIA did not err by denying petitioner-Velasco-Tijero’s petition for cancellation of removal where his criminal conviction occurred before the AEDPA and the IIRIRA were enacted. The petitioner argued that “the otherwise applicable AEDPA and IIRIRA amendments do not apply to undocumented aliens who, like petitioner, pled guilty to a predicate offense before 1996, but were ordered removed after 1996.” However, the court held that the petitioner’s argument was “foreclosed by AEDPA § 435(b), which clearly indicates Congress’s intent with respect to the temporal reach of provisions in AEDPA and IIRIRA relating to aliens’ eligibility for cancellation of removal.” The court also found that the BIA “did not abuse its discretion in denying petitioner’s motion to remand so that he could request termination of removal proceedings and apply for adjustment of status.” The BIA “cannot be faulted for failing to discuss . . . considerations when petitioner never mentioned them in his motion.” Further, as the BIA’s order “made clear, it was petitioner’s ‘extensive criminal record and the lack of any evidence of rehabilitation’ that drove” its decision. “Neither of those considerations is rebutted by the evidence petitioner wished to put before the immigration court.” The court denied his petition for review.

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      e-Journal #: 60602
      Case: Yousif v. Lynch
      Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
      Judges: Griffin, Daughtrey, and Gibbons
      Issues:

      Denial of “asylum”; “Frivolous” asylum application; 8 USC § 1158(d)(6); 8 CFR § 1208.20; Alexandrov v. Gonzales; Ceraj v. Mukasey; Matter of Y–L– (BIA); 8 USC § 1252(b)(4)(B); “Refugee”; Kouljinski v. Keisler; § 1101(a)(42)(A); Past persecution; 8 CFR § 1208.13(b); Whether the application was “frivolous”; Effect of an adverse credibility determination; Limbeya v. Holder (8th Cir.); “Materiality” of the false statements; Kungys v. United States; Matter of B–Y– (BIA); Neitzke v. Williams; Ghazali v. Holder; Board of Immigration Appeals (BIA); Immigration judge (IJ)

      Summary:

      The court granted the petitioner-Yousif’s (a Chaldean Christian from Iraq) petition for review of the denial of his asylum claim and remanded the case to the BIA to “reconsider and clarify” its decision that his asylum application was “frivolous.” Yousif had been granted a withholding of removal, but was denied asylum based on misstatements regarding prior persecution in his application. The issue was whether the false statements were “material” to the application “at the time that the application was made[,]” rendering his application “frivolous.” Yousif argued that his misrepresentations were immaterial to his asylum application because, as a Chaldean Christian, he would have been eligible for asylum based on his status alone, “regardless of whether he had been personally persecuted.” The court noted that lying on an asylum application was “not enough to support a frivolousness finding[]”— the misrepresentation must be “material” to the application. The misrepresentation or concealment “is material only if it had the potential to make a difference to the outcome of the asylum application.” If Yousif was eligible for asylum as a Chaldean Christian at the time he filed his application, the court found it “difficult to discern how his plainly meritorious application could be considered ‘frivolous’ under the language of the statute, regardless of how many additional lies it contained.” The IJ should have determined whether, at the time that he made his application, “conditions in Iraq were so dangerous for Chaldean Christians that Yousif would have been eligible for asylum” solely based upon his religion. By not making this determination, the IJ failed to determine whether the “misrepresentations were material to his application when they were made.” The court granted the petition, vacated the BIA’s decision, and remanded for the BIA to provide “a reasoned explanation” for affirming the IJ’s decision.

    • Negligence & Intentional Tort (1)

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      e-Journal #: 60600
      Case: Stokes v. Adam Oil LLC
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Hoekstra, Jansen, and Meter
      Issues:

      “Black ice” slip-and-fall at a gas station; Whether the plaintiff’s complaint sounded in ordinary negligence; Open and obvious doctrine; Buhalis v. Trinity Continuing Care; Adams v. Adams (On Reconsideration); Wheeler v. Central MI Inns, Inc.; Slaughter v. Blarney Castle Oil Co.; Janson v. Sajewski Funeral Home, Inc.

      Summary:

      [Unpublished opinion.] The court held that viewing the evidence in the light most favorable to the nonmoving party, “there was a dispute about whether a reasonable person upon casual inspection, given the surrounding conditions, would have foreseen the possibility that black ice existed and was a threat to” the plaintiff’s safety. He arrived at defendant’s gas station and parked at the same pump where a woman had spilled gas earlier. He testified that “while he was pumping his gas, one of defendant’s employees was throwing water on the gas spill behind” his van. He walked around the front of his van to avoid the employee tossing water in the rear. He slipped and fell while he was talking to a friend nearby. He argued that his complaint sounded in ordinary negligence, thus falling outside the purview of the open and obvious doctrine. The complaint used terminology such as “premises” and alleged that defendant had a duty to maintain the premises to protect invitees from “dangerous conditions.” Also, it contained no separate count labeled “negligence.” The court held that plaintiff’s claim sounded in premises liability. He further contended that the black ice was not open and obvious. The court held that there was a dispute as to whether the black ice was an open and obvious danger. While plaintiff’s friend testified “about an ice storm and misting, no other witness, including plaintiff, could recall these conditions, and an expert witness who analyzed meterological data made no mention of these conditions but instead stated that ‘conditions . . . caused ice to form next to Defendant’s gas pumps in an area where snow melt fell from the above awning onto the pavement . . . the same area where one of Defendant’s employees dumped a bucket of water about thirty minutes earlier.’” Plaintiff’s friend testified that “the ice he alleged was covering the premises was difficult to see.” Also, one of defendant’s employees testified that “there was only a very small patch of ice on the premises, in the area where plaintiff fell. Finally, the parties offered differing interpretations of video evidence, with defendant alleging in its brief that a video showed obvious ice, and with plaintiff’s expert stating that video footage showed no obvious ice.” Reversed and remanded.

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