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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Whether the parties’ dispute was subject to arbitration; MCL 691.1687(2); Fromm v Meemic Ins Co; Interpretation of contracts under the Uniform Commercial Code; MCL 440.2206(1); Effect of the addition of terms to a contract; MCL 440.2207; Leave to amend; Futility; Weymers v Khera; Intervention; MCR 2.209(A) & (B)
The court held that the trial court did not err by finding it was the proper body to determine whether a dispute was subject to arbitration, or by finding the parties did not agree to arbitrate. But it found the trial court abused its discretion by denying defendant’s motion for leave to amend and a motion to intervene by one of defendant’s affiliates. Thus, it affirmed in part, reversed in part, and remanded for the trial court to re-evaluate the requests for leave to amend and intervention, and “provide explanations sufficient to facilitate any further appellate review.” After defendant’s affiliate filed an arbitration demand, plaintiff filed suit seeking a declaration from the trial court on the issue of whether an agreement to arbitrate existed between the parties. The trial court found it was the proper body to make this determination and later granted plaintiff’s motion for entry of judgment and final order of dismissal. On appeal, the court rejected defendant’s argument that the trial court erred by finding it was for the trial court, not an arbitrator, to decide whether an enforceable arbitration agreement existed between the parties. “Under state and federal law, the threshold question of whether there exists an arbitration agreement between parties is for a court to decide.” In this case, “the parties dispute whether there is an agreement to arbitrate, and in such a case, courts should avoid ordering arbitration.” The court also rejected defendant’s claim that even if the trial court correctly determined it was the proper body to address the issue, it prematurely entered judgment for plaintiff because there were genuine issues of material fact as to the existence of such an agreement. “Although the parties dispute which terms and documents control, there is no genuine factual dispute about whether the parties agreed to arbitrate. They did not.” It noted that neither the parties’ 2017 purchase order, nor their 2020 purchase order, created an agreement to arbitrate. Finally, the court agreed with defendant that the trial court abused its discretion by denying its motion for leave to amend its answer to add counterclaims, noting it “provided no explanation for its denial of the motion, other than stating there was a ‘lack of merit [i]n the grounds presented.’ This was insufficient.” It also agreed with defendant that the trial court abused its discretion by denying the affiliate’s motion to intervene without a hearing and by explaining only that it lacked merit.
Divorce; Motion for postjudgment attorney fees; MCR 3.206(D)(2)(a)
The court affirmed the trial court’s order denying plaintiff-ex-wife’s motion for postjudgment attorney fees in this divorce case. The court was “unable to conclude that the trial court abused its discretion by finding that plaintiff failed to establish facts sufficient to demonstrate that she was unable to bear the expense of the action.” The trial court observed it was previously “determined that plaintiff had the capacity to earn an income and that there was evidence that she was employed and earning approximately $52,000 annually.” To the extent she asserted “health issues prevented her from continuing to work and earn an income, that allegation was not supported by any factual or documentary evidence, but only by counsel’s unsupported allegation at the motion hearing.” The court held that while “the parties did not dispute that defendant had the financial ability to pay for plaintiff’s postjudgment attorney fees, that alone was not sufficient to entitle plaintiff to attorney fees under MCR 3.206(D)(2)(a).” She also had to show “she was unable to bear the expense of the action. The trial court did not err by finding that” she failed to do so. Although she correctly observed that “[w]ith respect to a party’s ability to prosecute or defend a divorce action, a party ‘may not be required to invade her assets to satisfy attorney fees when she is relying on the same assets for her support,’” the record did not support her claim “that the trial court violated this principle. At the motion hearing, [it] focused on [her] ability to earn an income and found that she was earning an hourly wage of $25 and received $1,000 weekly before taxes ‘in addition to the spousal support that she’s paid.’” The court found that in denying her “motion, rather than considering plaintiff’s spousal support and requiring her to invade that support, the trial court instead focused on [her] earning capacity and ability to earn an income. There was no suggestion by the [trial] court that it expected plaintiff to invade her spousal support to pay her attorney fees or that spousal support was a factor in” its decision to deny her motion. The record also did not support her “claim that the trial court denied her motion for postjudgment attorney fees by relying in part on a provision in the parties’ divorce judgment that required her to pay defendant’s attorney fees related to the sale of” a home in Colorado. The issue of whether she “should be required to pay defendant’s attorney fees associated with plaintiff’s pending motion to modify the listing price for the Colorado home was also before the [trial] court at the hearing on plaintiff’s motion for attorney fees.” Contrary to her argument, there was “no indication in the record that the trial court relied on the attorney-fee provision relative to the Colorado home as a basis for denying” her motion.
Denial of a motion for a bindover & dismissal of a possession of cocaine charge; Sufficiency of the evidence; Possession of 50 or more, but less than 450, grams of cocaine; Probable cause
Holding that “the district court abused its discretion when it denied the prosecution’s motion for a bindover and dismissed the possession of cocaine charge against defendant,” the court reversed “the circuit court’s affirmance order and the district court’s dismissal order and” remanded to the district court. The court held that the “totality of the circumstantial evidence presented at the preliminary examination established defendant’s knowledge of the cocaine as well as a legally sufficient connection between defendant, the vehicle, and the cocaine therein.” Stated otherwise, the evidence was “‘sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief’ that defendant constructively possessed the cocaine because he was the person who had secreted it.” The court concluded that because “the prosecution presented sufficient evidence to establish probable cause to believe that defendant had knowledge of and constructive possession over the cocaine in the vehicle, the district court abused its discretion when it denied the prosecution’s motion for bindover and dismissed the possession of cocaine charge.”
Due process; Testimony from the victim that she believed defendant was guilty; Questions from the jury; MCR 2.513(I); People v Lowrey; Plain error review; Whether the error was outcome-determinative
The court held that while the trial court committed plain error in allowing the victim to testify, in response to a jury question, that she believed defendant was guilty, defendant failed to show the error was outcome-determinative. Thus, the court affirmed his unlawful imprisonment, assault by strangulation, and domestic violence, second offense convictions. It concluded that by permitting “the jury to ask an obviously inappropriate question, . . . and allowing it to be answered, the trial court abused its discretion. By confirming that she believed defendant was guilty, the complainant’s testimony did not merely imply that he was guilty; it directly stated her belief that defendant was guilty. The question and the response were in direct violation of the well-established rule that a witness may not offer an opinion of the defendant’s guilt.” But it concluded defendant did not meet his burden to show that the error affected his substantial rights so as to warrant reversal. The “question, which explicitly asked whether the complainant ‘today’ believed that defendant was guilty, indicated that the jury was asking about” her conflicting preliminary exam testimony, “during which she attested that she did not believe [he] intended to hurt her. In other words, the jury was presumably not inquiring as to the victim’s subjective opinion about [his] guilt, and was instead asking whether she had changed her mind about [his] intentions toward her. Further, defendant testified after the victim, giving the jury the opportunity to hear [his] version of events and assess his credibility, which blunted any prejudicial effect of the victim’s opinion on [his] guilt. After” his testimony, the jury asked him if “he ‘dragged [the victim] and pulled her hair,’ ‘choked her,’ ‘used her as a mop for the pee and dog poop,’ or ‘tried to make her eat poop.’ These questions suggest that the jury was not prepared to accept the victim’s testimony at face value. And” the court noted that it is the jury’s role, not the court’s, to assess the weight of the evidence or the witnesses’ credibility.
Polygraph testimony; People v Nash; Ineffective assistance of counsel; Failure to object; Other acts evidence under MCL 768.27a(1); Due process; People v Muniz; MRE 403; People v Watkins; DNA evidence; People v Coy (Coy I & II); MRE 702
The court held that defendant-Jackson did not show “a plain, outcome-determinative error” as to his claim a witness was allowed to testify about a polygraph, and failed to establish that defense counsel was ineffective for not objecting. It further concluded the trial court did not err when it failed to exclude other acts testimony under MRE 403, and the court rejected his due process challenge to MCL 768.27a(1). It also held that the trial court did not plainly err in failing to exclude DNA “testimony under MRE 702, the decisions in Coy I and Coy II, or under MRE 403.” And defense counsel was not ineffective for failing to make a futile objection to this testimony. Thus, the court affirmed defendant’s CSC I and II convictions. It first determined that while a witness “improperly referred to a lie detector test, her reference does not automatically warrant a new trial.” It appeared her remark was inadvertent and it was arguably unresponsive. She tried “to explain that she reported the past misconduct—not Jackson—and she blurted out that ‘she called the lie detector test’ as part of that effort.” But the reference was “enigmatic. It was not clear whether she was saying that she called for one to be administered or was calling the persons responsible for administering one. In any event, the context did not allow an inference that anyone actually took a polygraph test. The statement did not implicate any particular person or any particular result, and it did not bolster or undermine any witness’s testimony. Accordingly, any prejudice occasioned by the remark was de minimis and could readily have been cured with an instruction.” Defense counsel did not object “presumably because there was no need given that the trial court itself immediately intervened.” Further, under the “circumstances, a reasonable defense lawyer might choose to let the matter pass without further comment.” As to the other acts testimony, the court found that the factors identified in Watkins all weighed in favor of admitting witness-JB’s testimony. In addition, the “trial court had no obligation to provide an analysis on matters beyond that which defense counsel contested.” The court concluded the trial court did not err in ruling “that the evidence tending to show that Jackson also abused JB was admissible under MCL 768.27a and” in refusing to exclude it under MRE 403.
Termination under §§ 19b(3)(c)(i), (g), & (j); Reasonable reunification efforts; In re Rippy; Suspension of parenting time; MCL 712A.19b(4); In re Ott; The 70-day rule; MCL 712A.19b(1); The 28-day rule; MCR 3.977(I)(1); In re TC; Best interests of the children
The court held that the trial court did not err by suspending respondents-parents’ parenting time and then terminating their parental rights. Their rights were terminated based primarily on neglect. The trial court found they had not sufficiently benefited from services and that termination was in the children’s best interests. On appeal, the court rejected respondent-father’s argument that the trial court should not have terminated his parental rights because the suspension of his parenting time was based on the testimony of a social worker who had been the subject of disciplinary proceedings by the Disciplinary Subcommittee of the Board of Social Work. It noted the “limited” nature of the social worker’s “licensure was not particularly pivotal.” In addition, his “assessments and testimony were not the only pieces of evidence on which the trial court relied in suspending parenting time.” The court also rejected respondent-mother’s claim that the trial court should not have suspended parenting time and should not have found statutory grounds for termination. It noted the trial court’s “suspension of parenting time was amply supported by the evidence.” Further, while it was true that the mother “rectified some of the issues leading to adjudication,” there was also “evidence that she continued to be ineffective at proper supervision and she posed a risk to the children’s mental well-being. We do not have a firm and definite conviction that the trial court made a mistake in finding that the statutory grounds for termination had been established.” Finally, although the referee “could have been timelier in issuing her recommended order,” it was not “inconsistent with substantial justice to let the final order stand despite the violation of the 28-day rule, given the children’s extreme need for permanence.” It was also “not inconsistent with substantial justice to let the final order stand despite the violation of the 70-day rule, given that courtroom time needed to be found to allow the testimony of many witnesses and the extenuating circumstances of COVID-19 delays.” Affirmed.