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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Legal malpractice; Alleged violation of the “Ku Klux Klan Act”; 42 USC § 1983; Failure to allege defendant acted under color of state law; § 1985(3) (intent to deprive of equal protection or equal privileges & immunities); Griffin v Breckenridge; Conspiracy
The court held that plaintiff failed to plead an actionable claim under § 1985(3), so the trial court properly granted defendant-law firm summary disposition under MCR 2.116(C)(8). Also, it found that “even accepting all of the allegations in plaintiff’s complaint as true, [his] amended complaint failed to state a claim of legal malpractice,” making summary disposition of this claim proper as well. Plaintiff was represented by defendant in a criminal case. He later filed the complaint in this case “in which he alleged that defendant’s conduct while representing [him] violated the ‘Ku Klux Klan Act,’ and that defendant committed legal malpractice.” On appeal, the court first found that based on the claims in his complaint, it was “apparent that plaintiff intended to bring a cause of action not under” § 1983 but under § 1985(3). It concluded that while “the amended complaint mentions race, it merely alleges that defendant,” the prosecutor in the criminal case, and a judge in that case (Judge Giovan) “are white, and plaintiff is black. Nowhere does the amended complaint allege a racial animus behind the alleged conspirators’ actions. Without such allegations, there is no amount of factual development that could justify recovery under” § 1985(3) and thus, the amended complaint failed to state a claim under the statute. In addition, it failed “to sufficiently allege the existence of a conspiracy.” Further, it failed “to allege an overt act in furtherance of the conspiracy, which is required to state a claim under” § 1985(3). The complaint “merely makes conclusory legal assertions, unsupported by allegations of fact, to support his claim that the prosecutor and defendant conspired to deprive [him] of the new trial to which he was entitled.” This was insufficient “‘to state a cause of action.’” As to his legal malpractice claim, the amended complaint did “not allege that defendant agreed with” the relief granted in the criminal case (an evidentiary hearing). Rather, “the complaint alleges that Judge Giovan used (and, in plaintiff’s telling, abused) his discretion when making this ruling.” Further, his amended complaint did not “explain how plaintiff’s being at” a 7/27/22 “hearing, or how defendant not saying what he did at the hearing, would have resulted in Judge Giovan ordering a new trial instead of an evidentiary hearing. Plaintiff does not identify any argument that he or defendant could have made—or any other action either of them could have taken—that would have likely resulted in a different outcome.” He instead alleged, “in conclusory fashion, that if he had been present at the [7/27/22] hearing and defendant had not made the arguments that he did, then plaintiff would have been granted a new trial.” This was again insufficient. Affirmed.
Sentencing; Scoring of OVs 1, 4, & 10; MCL 777.31(d); Use of scalding water; “Weapon”; People v Hutcheson; People v Lange; MCL 777.34(2); People v White; MCL 777.40(1)(b); “Exploit,” “vulnerability,” & “abuse of authority status” (MCL 77.40(3)(b)-(d)); People v Huston; People v Ziegler
Holding that the trial court did not err in scoring 10 points each for OVs 1, 4, and 10, the court affirmed. Defendant pled nolo contendere to second-degree child abuse and was sentenced to 30 to 120 months with 2 days’ credit. She first argued that “water is not a weapon under OV 1 because it does not fall within the plain and ordinary meaning of an ‘instrument’ or ‘device’ used for attack or defense.” While the statute does not define “weapon,” the court concluded in Hutcheson that the term “‘should be defined as an article or instrument used for bodily assault or defense, or any instrument used for attack or defense in a fight or in combat’—with an ‘article’ being ‘a thing or person of a particular and distinctive kind or class,’ and an ‘instrument’ being ‘one used by another as a means or aid.’” Consistent with that broad definition, case law “has placed few categorical limits on what can constitute a ‘weapon’ for purposes of OV 1[.]” In light of the statute’s plain terms and the case law interpreting them, the court held that “defendant’s use of scalding water to harm the victim in this case was sufficient to demonstrate that ‘[t]he victim was touched by any other type of weapon’ for purposes of OV 1.” The water was something she used “‘as a means or aid’ to inflict bodily harm on the victim[.]” As to OV 4, the victim impact statement provided by the victim’s adoptive mother gave “insight into the victim’s psychological injuries[.]” Among other things, she noted that he had “‘been affected mentally and suffers from PTSD. . . . Out in public, people will gasp at the sight of his feet if he takes off his socks.’” She additionally noted that he had “‘several developmental delays due to the trauma that will forever affect his life and his ability to live a normal existence.’” While the statement did “not specify whether the victim engaged in psychological treatment, the statement is evidence that [he] suffered psychological injury that may require such treatment in the future.” Finally, as to OV 10, the court found that the record showed defendant “exploited a vulnerable victim by placing him in a bathtub that was filling with dangerously hot water and that he could not easily climb out of, thereby trapping him in a harmful situation with the goal of ‘accomplishing something selfish or unethical.’”
Motion to dismiss; A trial court’s failure to state its rationale for a decision
Holding that the trial court failed to provide a basis for its decision on the record, the court vacated the order dismissing defendant’s charges with prejudice and remanded. Following a road-rage incident, he was charged with felonious assault, and malicious destruction of property ($200 or more but less than $1,000). “On the morning of trial, the prosecution moved for an adjournment. In response, defendant moved to dismiss the charges, and the trial court granted the motion, dismissing the charges with prejudice. On appeal, the prosecution claimed this was an abuse of discretion.” It contended “the trial court exceeded its authority and abused its discretion by dismissing the charges with prejudice over the prosecutor’s objection.” Here, neither the basis for his “motion nor the trial court’s rationale for granting it is discernible from the record.” It was “clear that the prosecutor sought an adjournment before jury selection began, citing various discovery issues. Although the trial court expressed frustration with that request, it also stated that it was ‘not blaming’ the prosecutor and appeared inclined to grant the adjournment. After the court clerk inquired about scheduling, defense counsel requested a dismissal.” The trial “court then held a brief bench conference and summarily dismissed the case.” The record contained “no articulated rationale for either the motion or the order.” On appeal, defendant offered “several possible explanations for the dismissal.” He suggested “that the trial court dismissed the charges for ‘ridiculousness,’ which he claims ‘can be seen as the trial court upholding [his] Constitutional Right to Substantive Due Process’ because bringing this ‘disjointed, tangled web of a case to bar was an arbitrary use of government power.’” He also asserted “that the dismissal resulted from the prosecutor’s ‘failure to comply with discovery,’ and relie[d] on MCR 2.504 to argue that dismissal with prejudice is an appropriate remedy for a discovery violation.” Defendant’s claims were “not entirely without merit. If, as defendant contends, the prosecution exceeded its authority by filing the charges, the [trial] court was permitted to dismiss the charges over the prosecutor’s objection as an ultra vires act.” The trial “court could also dismiss the charges if prosecutorial misconduct deprived defendant of due process.” Although he “erroneously relies on MCR 2.504 for his discovery violation claim, the applicable rule for discovery violations in criminal proceedings— MCR 6.201(J)—permits a trial court to remedy such violations ‘as it deems just under the circumstances.’ If the trial court dismissed the charges on any of those bases, the court may have acted within its discretion in dismissing the charges over the prosecutor’s objection.” The court held that even “so, the trial court’s rationale for dismissal is not apparent from the record. Without insight into the grounds for the motion or the court’s reasoning, this Court cannot determine whether the trial court’s decision ‘falls outside the range of reasonable and principled outcomes.’”
Prosecutorial error; Prosecutorial rebuttal & burden-shifting; People v Fyda; Curative instructions & no prejudice; People v Mahone; Sentencing; Within-guidelines sentencing & proportionality; People v Posey; Habitual-offender enhancement
The court held that although the prosecutor’s rebuttal improperly suggested defendant should have subpoenaed two witnesses, the error did not warrant relief as it was not outcome determinative. It also held that his within-guidelines sentences were reasonable. He was convicted of AWIM, AWIGBH, felony-firearm, CCW, and resisting arrest after he shot two victims and fled police. The trial court sentenced him as a fourth-offense habitual offender to 30-60 years for AWIM, and to shorter terms for the other convictions. On appeal, the court agreed with defendant that the prosecutor’s “why didn’t they subpoena” remarks were improper burden-shifting because “a prosecutor may not comment on the defendant’s failure to present evidence because it is an attempt to shift the burden of proof.” However, it found the error was not outcome-determinative in light of the evidence (victim identification, proximity and ammunition, flight, and defendant’s statements) and curative instructions reminding jurors that defendant need not prove anything and that arguments are not evidence. As for “the prosecutor’s remarks in rebuttal about defendant’s refusal to give the police a complete statement” those did not improperly shift the burden of proof. Finally, as to sentencing, defendant failed to rebut the presumption of reasonableness under Posey. The court emphasized the gravity of the offenses, his criminal history, and the absence of unusual mitigating circumstances sufficient to overcome proportionality. Affirmed.
Ineffective assistance of counsel; Prior convictions; Trial strategy; People v Parker; Message on the witness’s voicemail; Detective’s statements; Factual predicates
Concluding “that none of defendant’s claims of ineffective assistance [had] merit, either individually or collectively,” the court affirmed. He was convicted of AWIGBH and felony-firearm. He raised a number of ineffective-assistance-of-counsel claims, but did “not allege that he was prejudiced by any one of his trial counsel’s supposed errors—he instead argue[d] that the cumulative effect of all of his trial counsel’s errors prejudiced him.” Defendant contended that questioning his previous convictions “was objectively unreasonable because evidence about defendant’s prior convictions would not have been otherwise admissible.” The court was “inclined to agree with the prosecution that this did not amount to ineffective assistance.” The court’s “conclusion that this line of questioning can constitute legitimate trial strategy is bolstered by our Supreme Court’s opinion in” Parker. There, like in this case, “the defendant’s trial counsel asked the defendant about his past conviction on direct examination, and the defendant testified about his conviction on the stand.” On appeal, he “argued that his trial counsel’s line of questioning amounted to ineffective assistance, but our Supreme Court was not persuaded, saying, ‘While we are not inclined to recommend this strategy on retrial, we are not prepared to hold it amounted to ineffective assistance of counsel.’” The court noted that trial counsel “is given wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases,” and that “a strategy is not unreasonable ‘simply because it did not work[.]’” With these principles in mind, the court reached “the same result as our Supreme Court did in Parker—while we do not recommend defendant’s trial counsel’s strategy, we conclude that it did not amount to ineffective assistance.” Also, defendant contended that his trial counsel’s questioning of witness-D “was objectively unreasonable because it elicited testimony from” D that defendant “was drunk on the night of the shooting and left her a voicemail saying, ‘I think I’m going to jail.’” To the extent D “testified that defendant was drunk on the night of the shooting, that fact was already in evidence.” The court agreed “with the prosecution that there was likely a strategic reason for eliciting testimony that defendant was drunk at the time of the shooting.” It concluded that it was “not objectively unreasonable for defendant’s trial counsel to elicit testimony from [D] that defendant was intoxicated on the night of the shooting.” As for D’s “testimony about the voicemail that defendant left her, that testimony was clearly nonresponsive to the question that defendant’s trial counsel asked.” Further, the court held that neither of Detective M’s “statements that defendant [took] issue with amounted to comments on defendant’s credibility or guilt, and both statements were instead admissible personal perceptions that [M] made during his investigation.” Lastly, he raised a number of other ineffective-assistance claims, but he failed to establish the factual predicates of any of them.
Dispute over land & riparian rights/boundaries; Holton v Ward; Riparian boundary apportionment on an oblong lake; Heeringa v Petroelje; Whether riparian rights existed; Declaratory action; MCR 2.605(A)(1); Lansing Sch Educ Ass’n v Lansing Bd of Educ
The court affirmed a judgment establishing the parties’ land and riparian boundary lines and declaring plaintiffs the exclusive owners of the riparian area adjacent to their lot on Loon Lake. The parties own adjacent lakefront parcels on a curved shoreline. After plaintiffs purchased their property, defendants asserted their riparian rights ran along the curve and into the water in front of plaintiffs’ dock, leading to dueling surveys and a trial. The trial court credited plaintiffs’ experts (CH and TH), found Loon Lake natural, adopted a pie-slice apportionment to the lake’s centerline, and ordered the boundaries recorded. On appeal, the court first rejected defendants’ argument that Loon Lake is man-made and thus conveys no riparian rights. “The parties’ experts agreed that the location of Loon Lake likely was not accurately depicted on [a prior] survey because the surveyors were not instructed to survey the exact locations of lakes. The fact that it is not precisely located on the . . . survey therefore does not establish that the lake was man-made, and defendants did not otherwise establish that it is man-made. Because Michigan law is clear that ‘riparian rights adhere to land that abuts a natural watercourse,’ the trial court did not err by finding that plaintiffs have riparian rights arising from their Loon Lake property.” The court also rejected defendants’ challenge to the boundary apportionment, noting the proper method on an oblong lake is to draw a line “from the point where the property line met the original lakeshore to a median center line of the lake as nearly perpendicular as possible,” and that CH followed Heeringa. The trial court found plaintiffs “demonstrated by a preponderance of evidence the accuracy of the location of the land and riparian boundaries,” and defendants “did not present evidence” that the surveys or calculations were wrong. Finally, the court rejected defendants’ contention that the relief exceeded the pleadings because plaintiffs had not brought a quiet-title claim, explaining that declaratory relief was proper since “determining plaintiffs’ riparian property rights necessitated determining the property boundaries of plaintiffs’ land,” and defendants could not deploy an “appellate parachute” to avoid a declaration they themselves sought in their counterclaim.
Guardianship & conservatorship; The Estates & Protected Individuals Code; MCL 700.5306(1); MCL 700.5401(3); A legally “incapacitated individual”; MCL 700.1105(a); The Department of Health & Human Services (DHHS)
Concluding that “the DHHS did not offer clear and convincing evidence that” the individual in question (GM) was legally incapacitated, the court vacated the orders of guardianship and conservatorship entered by the probate court, and remanded. In this consolidated case, GM, a purported legally incapacitated adult, appealed of right the probate court’s orders granting the petitions of the DHHS for a guardianship and a conservatorship over her. GM asserted that the “DHHS did not establish, by clear and convincing evidence, that GM was an incapacitated person when both psychological evaluations determined GM was of average intelligence.” In sum, the court found “insufficient evidence to establish that GM was an incapacitated individual under MCL 700.1105(a), leaving the first element for a guardianship under MCL 700.5306 unmet. Further, turning to the conservatorship, the DHHS did not offer clear and convincing evidence that GM suffered from ‘mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance,’ to the degree that it affected her financial wellbeing, as mandated by MCL 700.5401. To be sure, GM appears to have had lifelong difficulty properly caring for herself, both physically and financially, and we do not minimize the deplorable conditions that were observed inside GM’s home. But the evidence presented thus far was insufficient to show that GM was so incapable as to warrant either a guardianship or a conservatorship.” The court recognized “that additional evidence presented on remand may support a guardianship and a conservatorship, but the existing record does not support either result.”
Termination without requiring the Department of Health & Human Services (DHHS) to make reasonable reunification efforts; In re Simonetta; Aggravating circumstances exception; Effect of the DHHS’s failure to allege any aggravating circumstances; “Child abuse” (MCL 722.622(g))
The court held that given “the lack of both (1) reasonable reunification efforts towards respondent[-mother] and (2) a judicial determination by clear and convincing evidence supporting an aggravated circumstance, the trial court plainly erred in terminating [her] parental rights at initial disposition.” Thus, it vacated the termination order and remanded for the trial court to either order that the DHHS provide respondent with reasonable services “‘or articulate a factual finding based on clear and convincing evidence that aggravated circumstances exist such that services are not required.’” Because she failed to “preserve a reasonable-reunification-efforts issue for appeal,” the court reviewed the trial court’s judgment for plain error. The “DHHS did not allege any aggravating circumstances that would warrant termination at the initial disposition, let alone cite MCL 712A.19a(2) or MCL 722.638 in its petition; rather, it requested termination under” §§ (b)(ii), (g), and (j). The trial court also did not “make any factual findings regarding aggravated circumstances sufficient to terminate respondent’s parental rights without providing reunification services. Indeed, its order provides the opposite, concluding (erroneously) that ‘Reasonable efforts were made to preserve and unify the family to make it possible for the child(ren) to safely return to the child(ren)’s home. Those efforts were unsuccessful.’” In addition, upon its independent review of the record, the court could not conclude at this point that it supported “the existence of aggravated circumstances sufficient to relieve DHHS’s duty to provide reasonable efforts toward reunification.” Considering the definition of “child abuse” in the Child Abuse and Neglect Protection Act, the court noted that there was “no indication respondent or her boyfriend were abusing the children as the statute defines that term. CDF’s death, while tragic, appears to be accidental, and nothing in the record demonstrates otherwise. Further, there is no evidence supporting other potential aggravating factors, like termination of rights to another child, certain serious convictions, or registering as a sex offender.”