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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
View Text Opinion Full PDF Opinion
Carrying a pistol in a vehicle without a concealed pistol license (CPL); MCL 750.227(2); As-applied Second Amendment challenge; Whether Michigan’s statutory scheme for issuing CPLs is constitutionally permissible; People v Langston
Holding that “applying MCL 750.227(2) to defendant under the facts of this case passes constitutional muster[,]” the court affirmed his conviction of carrying a pistol in a vehicle without a CPL. Defendant contended that Langston did not resolve his appeal because he was not bringing a facial challenge to the statute. He argued “that, as applied to him, MCL 750.227(2) unconstitutionally burdens his Second Amendment rights because he attempted to transport his firearm safely, and there is no evidence that defendant was dangerous.” But the court concluded that his “argument misunderstands the burden that MCL 750.227(2) placed on [his] Second Amendment rights. MCL 750.227(2) is not an outright ban on transporting pistols in vehicles—instead, as applied to defendant, the statute merely required him to obtain a valid CPL before doing so.” Thus, it followed that the burden the statute placed on his “Second Amendment rights was requiring him to obtain a valid CPL. That this is the burden that MCL 750.227 places on individuals’ Second Amendment rights is supported by Langston, where this Court held that MCL 750.227 is facially constitutional because ‘Michigan’s statutory scheme for issuing concealed pistol licenses’ is constitutionally permissible.” The court noted that he did “not contend that he faced any obstacle—constitutionally relevant or otherwise—to renewing his CPL. Indeed, he all but admits that his CPL would have been renewed had he simply requested it.”
Enforcement of a settlement agreement purportedly resolving a dispute for unpaid services; MCR 2.507(G); Acceptance & meeting of the minds; Dabish v Gayar; Contract modification by mutual consent; Kloian v Domino’s Pizza LLC
The court held the parties’ settlement agreement was unenforceable because plaintiff unilaterally broadened a non-disparagement clause and defendant never accepted the modification in open court or by a signed writing. Plaintiff claimed defendant owed more than $300,000 for landscaping services and the reconstruction of a driveway. The parties reached a settlement under which defendant would pay specified sums. Plaintiff’s counsel circulated drafts of a written settlement agreement containing a sweeping non-disparagement provision, which defendant never signed, instead returning a version that narrowed this clause. The trial court enforced plaintiff’s draft and ordered defendant to sign it. On appeal, the court first rejected plaintiff’s waiver argument, concluding defendant preserved her objection by telling the judge at the hearing that plaintiff’s draft contained “more … than that’s on the record” and that the proposed non-disparagement clause was “very broad,” which was sufficient to raise the issue. The court also rejected enforcement on the merits, explaining that under MCR 2.507(G) a settlement is binding only if “made in open court” or evidenced by a writing “subscribed” by the party or her attorney, and “defendant did not sign either of the drafts in the record containing the non-disparagement clause,” so “the trial court erred in ordering defendant to sign the settlement agreement.” Finally, the court rejected plaintiff’s claim that defense counsel approved the clause, noting the record showed only comments that it was “super broad” and that revisions were “subject to client approval,” and emphasizing that “a court cannot force settlements upon parties or enter an order … which deviates in any material respect from the agreement of the parties.” Reversed and remanded.
Judicial interference; People v Stevens; People v Swilley; In re Harbin (Unpub); Plain error review; People v Davis; Other acts evidence; Distinguishing People v Bates & People v Figgures; MRE 403; Whether an error was outcome determinative; Ineffective assistance of counsel; Confidential informant (CI)
Applying the Stevens factors, the court held that a “judge can pierce the veil of impartiality outside the presence of the jury, and did so here, but” reversal was unwarranted where “the plain error did not affect the fairness, integrity, or public reputation of the trial.” It also found that other acts evidence was erroneously admitted but was not outcome determinative, and it rejected defendant-Plomb’s ineffective assistance of counsel claim. Thus, the court affirmed his conviction and sentence, which arose from his sale of meth to a CI. Addressing his judicial interference claim, it first noted “the factual uniqueness of” this case, given that the relevant case law has concerned instances where a “judge’s bad conduct occurred in front of the jury at a jury trial.” The court applied “the multi-factor inquiry on judicial impropriety to behavior that occurred outside the presence of the jury at a jury trial” and did so without utilizing “a presumption in favor of the trial court being unbiased as neither Stevens nor Swilley did so.” Considering the Stevens factors, the court concluded “the totality of the circumstances favor a finding that the judge here pierced the veil of judicial impartiality. And logically, that makes sense when we reflect back on the errors in Stevens and Swilley. It is difficult to distinguish the impact on a trial where a judge directly questions one party’s witness versus where a judge directs strategy for one of the parties in a way that results in the questioning of a key witness.” The trial court, outside the jury’s presence, “unnecessarily intervened in a manner that then clearly changed the prosecution’s strategy.” However, the error was unpreserved. Applying Davis, the court found that “the error was plain and obvious. The third prong—that the plain error affected substantial rights—is also met as this error is a structural one.” But as to the fourth prong, it concluded the prosecution overcame “the presumption that this error affected the fairness, integrity, or public reputation of judicial proceedings because it occurred outside the presence of the jury, involved substantively admissible evidence, and did not implicate the integrity of Plomb’s convictions.” The court noted that the evidence “was likely admissible” had the necessary steps been taken and a full analysis under MRE 403/404 been done. And the case “was simple: a single offense with overwhelming and nearly uncontroverted evidence of Plomb’s guilt.”
The Clean Slate Law; Automatic set-aside eligibility & exclusions; MCL 780.621g(2), (5)-(7), & (10); Principle that conviction reinstatement requires lack of good-faith effort to pay restitution; MCL 780.621h(3); MCR 6.451; Statutory interpretation; People v Gardner; Principle that a restitution obligation survives set-aside & is enforceable civilly; MCL 780.622(7); MCL 780.766(13)
The court held that MCL 780.621h(3) permits reinstating a conviction set aside under the Clean Slate Law only if the trial court determines the defendant has not made a good-faith effort to pay restitution. In this case, defendant pled guilty to two counts of fraudulent use of contract funds, received probation and jail time, and, per a stipulation, owed $472,435.99 in restitution to be converted to a civil judgment after probation. In 7/23 his convictions were automatically set aside under MCL 780.621g. The trial court later held a hearing and found defendant was making regular, substantial payments on the civil judgments. But after the prosecutor argued that any unpaid restitution required reinstatement until fully satisfied, the trial court reinstated the convictions. On appeal, the court rejected that reading, emphasizing that “[u]nder the plain language of Subsection (3), a trial court is authorized to reinstate the conviction only if the trial court makes a factual determination that the defendant failed to make a good-faith effort to pay.” It noted that set-aside does not erase restitution obligations, which continue to be enforceable in the same manner as civil judgments. Because the trial court had expressly found good-faith payment efforts and the prosecution offered no contrary evidence, reinstatement was improper. Vacated and remanded to reinstate the set-aside order.
Sentencing; Reasonableness; Revocation of youthful trainee under the Holmes Youthful Trainee Act (HYTA); MCL 762.12; Probation violation sentencing; MCR 6.445(G); MCL 771.4(5); Proportionality; Michigan Department of Corrections’ (MDOC) sentence recommendation
The court concluded that defendant did “not overcome the presumption that her within-guidelines sentence is proportionate and therefore reasonable.” It noted that the trial court revoked the order of HYTA probation and sentenced her for counts of unarmed robbery to which she had pled guilty, to concurrent terms of 5 to 15 years. She argued it “abused its discretion in considering the sentencing guidelines for armed robbery because that charge was dismissed as part of defendant’s plea agreement.” She also asserted “that the trial court should have taken the [MDOC] sentence recommendation into account.” These arguments lacked merit. As to reasonableness, it was “clear that the trial court did not abuse its discretion in stating the minimum sentencing guidelines range for armed robbery when sentencing defendant.” The court found that it was “an overstatement to say that the trial court based its sentencing decision on the sentencing guidelines for the dismissed charge of armed robbery. [It] merely stated that the MDOC recommendation of no jail time was a substantial deviation from the sentencing guidelines range for unarmed robbery, especially considering defendant was originally charged with armed robbery, which carried an even higher sentencing range.” Further, the record clearly showed “that the trial court considered the recommendation, but ultimately rejected it.” She also argued “that her sentence at the high end of the minimum sentencing guidelines was disproportionate because the trial court did not tailor the sentence to [her] and the circumstances of the case.” She contended it “did not consider the fact that it was her co-defendant who possessed the knife.” These arguments were also without merit. The court held that the record showed her “sentence was reasonably tailored to the seriousness of the circumstances surrounding defendant and the crime.” It concluded that the “trial court did not abuse its discretion in sentencing defendant within the minimum sentencing guidelines for the charges to which she pleaded guilty.” Affirmed.
Sufficiency of the evidence to show self-defense; MCL 780.972(1); People v Ogilvie; AWIM & felony-firearm; Coerced jury verdict claim; People v Vettese; Ineffective assistance of counsel for failure to object
The court held that the evidence permitted the jury to reject self-defense, that the readback/adjournment instruction was not coercive, and that counsel was not ineffective. Defendant shot the victim (T) six times outside his home after a late-night confrontation involving his estranged wife and girlfriend. T arrived armed but said she moved her gun into a fanny pack for security. She and the wife began to leave when defendant fired. He was convicted of AWIGBH and felony-firearm. On appeal, the court first rejected his argument that the prosecution failed to disprove self-defense, finding that T and the wife testified T never pointed a gun at him and that wound locations (under her left arm and in her back) matched her account. “Viewing this evidence in the light most favorable to the jury verdict, there is sufficient evidence to disprove self-defense.” The court also rejected his claim that the trial judge coerced a verdict by telling jurors it could only play back two witnesses’ testimony the next day and that deliberations would adjourn at 12:30 p.m. The instruction mirrored Vettese because “the court did not deny [defendant] a fair trial because it did not require that the jury had to reach a verdict by 12:30 p.m.” Finally, the court rejected his contention that counsel was ineffective for not objecting to that statement since any objection would have been futile. Affirmed.
The No-Fault Act (NFA); PIP benefits; Limitations related to the rates in Medicare’s no-fault fee schedule; MCL 500.3157; Central Home Health Care Servs, Inc v Progressive MI Ins Co; “Medicare”; MCL 500.3157(15)(f); Multiple-procedure payment reduction rule (MPPR)
The court concluded “that the trial court erred by denying defendant’s [insurer] motion for partial summary disposition under MCR 2.116(C)(10), because no genuine issue of material fact existed concerning whether defendant could apply limitations related to the rates in the fee schedule.” But it held that “because application of the related limitations and reductions affect[ed] the amount payable by Medicare, and, as a result, what defendant must pay, factual questions still” remained. As such, “summary disposition under MCR 2.116(C)(7) was not appropriate, and the trial court did not err by denying defendant’s motion for partial summary disposition on those grounds.” Plaintiff was injured in a motor vehicle accident. Defendant claimed “there was no genuine issue of material fact that MCL 500.3157 authorized it to apply limitations related to the rates in Medicare’s no-fault fee schedule when determining the amount payable.” It also argued “that it properly paid plaintiff’s claims.” The court agreed, in part. The parties disagreed “about whether MCL 500.3157(15)(f) allows defendant to apply certain limitations, reductions, and adjustments when determining the amount payable to plaintiff’s medical providers. The specific interpretation at issue here involves whether defendant may apply the packaged-service rule, the MPPR, or billing modifiers, that Medicare utilizes when determining the amount payable to providers.” Defendant contended “that these limitations may be applied because they are related to the rates in the Medicare fee schedule.” Plaintiff construed “MCL 500.3157(15)(f) differently.” He contended “that these particular limitations are unrelated to, and, therefore, cannot be used to reduce the amount owed to plaintiff’s medical providers.” The court concluded that under “Central Home, the amount payable by insurers are not determined by the rates in the fee schedule alone, but also by applying limitations related to the rates in the fee schedule.” The question before the court was “whether the limitations defendant seeks to apply are ‘of the same kind, class, character, or nature’ as the unrelated limitations listed in MCL 500.3157(15)(f).” The court found that “the limitations defendant applied here are related to the fee schedule. Defendant used the rates in the fee schedule to determine an initial payment amount, then adjusted the rates in the fee schedules to determine the amount payable by Medicare under MCL 500.3157(2) and (7) by applying the MPPR, packaged-service rule, and geographical billing modifier. Because these limitations and reductions are related to the fee schedule, they are not of the same kind, class, character, or nature as those prohibited by MCL 500.3157(15)(f).” Thus, the court found that “under the plain language of MCL 500.3157(2)(a), limitations such as the MPPR, the packaged-service rule, and the geographic billing modifier affect the amount Medicare would pay for the particular service, meaning they may be considered for purposes of the” NFA. Affirmed in part, reversed in part, and remanded.
Insurance policy rescission; Material misrepresentations in the policy application; Titan Ins Co v Hyten; Rescission as to a third party not involved in the fraudulent procurement of the policy; Bazzi v Sentinel Ins Co; Balancing the equities; Pioneer State Mut Ins Co v Wright; Michigan Assigned Claims Plan (MACP)
The court held that the trial court erred in denying defendant-USA Underwriters’ (USAU) motion for summary disposition as to plaintiff, individually “because there was no genuine issue of material fact that [she] fraudulently obtained” the policy by making material misrepresentations in her insurance application. It was “an open question whether [USAU] should be permitted to rescind the policy it issued to plaintiff as to” her child, TB, given that the trial court did not balance the equities between TB and the insurer. Thus, it reversed the trial court’s orders denying USAU’s motion for summary disposition as to plaintiff, individually, and granting defendant-Farmers’ countermotion for summary disposition. It also vacated the trial court’s order granting Farmers’ summary disposition motion as to TB, and remanded. USAU refused to pay no-fault benefits to plaintiff and TB. Farmers was assigned to plaintiff and TB’s claims by the MACP. On appeal, the court noted the elements a “party moving to rescind a contract on the basis of the nonmoving party’s fraud in obtaining the contract must establish” and concluded as to plaintiff, individually, there was “no question of material fact that all of these elements are satisfied.” The evidence showed “that, regardless of whether [her] license was suspended when she applied for insurance, her license was not valid, contrary to the information she conveyed in her application. [She] admitted at her deposition that she knew that her license was not valid when she applied for insurance, insisting that she told the agent assisting her with the application that she only had ‘a State ID.’ But the record evidence demonstrates that, despite this,” her application listed “the status of her license as valid, and plaintiff initialed this portion of her application without making any alterations or correcting the misrepresentation. There can also be no serious dispute that [she] made the misrepresentation in her application . . . intending for [USAU] to rely on it—the reason that [she] filled out her application was so that an insurer like” USAU would issue her a policy. And it relied on her misrepresentation by issuing the policy. The trial court erroneously “did not balance the equities between TB and [USAU] because it concluded that plaintiff did not procure” the policy through fraud. The court remanded for the trial court to balance the equities between TB and USAU.
Auto negligence; Burden of proof once a defendant moves for summary disposition under MCR 2.116(C)(10); McMaster v DTE Energy Co; Whether summary disposition was premature; Doe v General Motors, LLC
In light of the Michigan State Police’s report and plaintiff’s expert’s affidavit, the court concluded plaintiff had a potentially viable theory of liability in this auto negligence case. Because no discovery had occurred, it could not conclude on the record presented that discovery did “not stand a fair chance of uncovering factual support for plaintiff’s position.” Thus, it vacated the trial court’s order granting defendant summary disposition under MCR 2.116(C)(10) and remanded. Plaintiff’s decedent, “Sadek, was killed when the car he was driving collided with a semi-truck allegedly driven by” defendant-Harvey on behalf of the other defendant. Plaintiff argued on appeal that summary disposition was premature “because discovery had not yet commenced.” The court agreed. It noted that the trial court was correct “that to avoid summary disposition in this case, plaintiff was obligated to assert facts establishing the elements of her claim, not merely theories. However, in general, a party should be permitted the opportunity to complete discovery before facing dismissal under MCR 2.116(C)(10).” The court determined that, as “set forth in the Michigan State Police’s report and in the affidavit of plaintiff’s expert, plaintiff has a potentially viable theory of liability based on the facts or assertions that defendant was talking on his cell phone at the time of the accident, defendant did not see plaintiff’s vehicle approaching from behind (which could call into question whether defendant was appropriately checking his side mirrors), and that defendant did not brake before the impact with plaintiff’s vehicle.”
Auto negligence; Serious impairment of an important body function; MCL 500.3135(5); Plaintiff’s ability to lead his normal life
In this case arising out of a motor-vehicle collision, the court reversed the trial court’s order dismissing plaintiff’s claim against defendant-City of Detroit (the City), and remanded. He argued that questions of fact existed “as to whether he suffered a serious impairment of an important body function as a result of the” 8/3/21 collision. The City’s “primary argument in the trial court was that plaintiff failed to make a prima-facie showing as to the second element—that he suffered an objectively manifested impairment of an important body function. This is so, according to the City, because plaintiff did not present any objective evidence of an impairment; rather, he simply chooses not to do certain things because they are now painful.” The court found that this argument failed “to consider all of the evidence in the record, and when that evidence is viewed in the light most favorable to [him], there is a question of fact whether plaintiff suffered an objectively manifested impairment.” The court held that contrary to the City’s arguments, the evidence he presented “goes beyond demonstrating a mere injury or subjective complaints of pain; the evidence shows that [his] injuries limited his ability to move his neck, right shoulder, and back, and prevented him from doing certain activities.” While he “complained about the pain in his back, neck, and right shoulder, there was a physical basis for plaintiff’s subjective complaints of pain (the tear in his shoulder and the herniated discs in his back), and those injuries affected [his] ability to move his back, neck, and shoulder.” The court concluded that viewing the “evidence in the light most favorable to plaintiff, a reasonable juror could find that plaintiff presented evidence of an objectively manifested impairment to his back, neck, and shoulder.” Turning to the City’s claim that he “failed to establish that his impairment affected his ability to lead his normal life,” the court found that, accepting the “evidence as true for purposes of resolving the City’s motion, it establishes that plaintiff’s ability to lead his normal life was affected by his impairment.” Finally, the City argued “that the trial court was correct when it concluded that there was no evidence that plaintiff’s injuries (which led to his impairment) were caused by the” 8/3/21 accident. The court held that viewing the “documents in the light most favorable to [him], they tend to establish that the injuries to plaintiff’s back and shoulder were caused by” that accident.