Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Legal malpractice; Collateral estoppel; People v. Trakhtenberg; Principle that the legal standards for ineffective assistance of counsel in criminal proceedings & for legal malpractice in civil proceedings are equivalent for purposes of collateral estoppel; Barrow v. Pritchard; Knoblauch v. Kenyon; Schlumm v. Terrence J O’Hagen, PC; Full & fair opportunity to litigate ineffective assistance of counsel claims; Whether a People v. Ginther hearing in the underlying criminal case was necessary; People v. Chapo
Concluding that plaintiff had a full and fair opportunity in his underlying criminal case to litigate his claims that defendants-attorneys provided ineffective assistance of counsel, the court held that collateral estoppel barred his legal malpractice claims in this case. Thus, it affirmed summary disposition for defendants. After he was convicted, he moved for a Ginther hearing, but the trial court denied his motion. The court affirmed that decision, holding that the record failed to support that counsel performed ineffectively, and the Supreme Court denied him leave to appeal. The trial court in this case then granted defendants summary disposition based on collateral estoppel. Under Barrow, the “legal standards for ineffective assistance of counsel in criminal proceedings and for legal malpractice in civil proceedings are equivalent for purposes of application of” collateral estoppel. The court noted that it “has repeatedly held that ‘where a full and fair determination has been made in a previous criminal action that the client received the effective assistance of counsel, the defendant-attorney in a subsequent civil malpractice action brought by the same client may defensively assert collateral estoppel as a bar.’” While plaintiff asserted he was “deprived of a ‘full and fair opportunity to litigate’ his” claims that defendants provided ineffective assistance, the court disagreed. Noting that the record on appeal in some cases is sufficient to evaluate effectiveness, it concluded that “a Ginther hearing is not required to fully and fairly adjudicate all” claims of ineffective assistance of counsel. A majority of the court in his criminal case determined “that a remand for further factual development was unnecessary because facts within the record established that counsel had not performed ineffectively.” Thus, plaintiff had “a full and fair opportunity to litigate whether he was entitled to a Ginther hearing—precisely the same issue that he” pressed here. Despite a dissent that found such a hearing was essential in the case, the Supreme Court did not disturb the majority’s ruling. The court concluded that its holdings in his criminal case that he “was not entitled to an evidentiary hearing and that his counsel did not perform ineffectively preclude relitigation of the same claims in this legal malpractice action.”
Expert testimony; People v. Matuszak; MRE 702; People v. Kowalski; People v. Peterson; Behavior of sexual offenders; A stipulation as a waiver; People v. Eisen; Behavior of sexual abuse victims; People v. Musser; Forensic interview protocols; Whether expert testimony is necessary; People v. Ackerman; The Michigan Child Protection Law (MCL 722.621 et seq.); MCL 722.628(4) & (6); People v. Trakhtenberg; Harmless error; MCL 769.26; People v. Lukity; Right to present a complete defense; Crane v. Kentucky; People v. Yost; People v. King
The court held that the trial court did not abuse its discretion when it excluded a defense expert’s (R) proposed testimony as to the typical behavior of sexual abuse victims. While the trial court abused its discretion when it excluded R’s proposed testimony as to a detective’s compliance with forensic interview protocols, the plain error did not affect defendant-Hemwall’s substantial rights because it did not affect the trial’s outcome. He was convicted of CSC I and II. The case arose out of allegations that Hemwall sexually abused his twin half-sisters when they were between the ages of four and six years old. He argued that the trial court abused its discretion when it granted the prosecutor’s motion in limine “and that he was denied the opportunity to present a complete defense as a result of the trial court precluding [R] from testifying at trial.” Hemwall asserted that the trial court abused its discretion when it excluded R’s “proposed testimony that it is uncommon for sexual abuse victims to delay in reporting abuse because the testimony would have assisted the trier of fact in understanding a fact in issue.” He acknowledged “on appeal that he offered the proposed evidence in order to establish that ‘delayed reporting is not common’ and that the victims’ failure to report the abuse until 2017 was therefore not consistent with the behavior of sexually abused children. Thus, Hemwall admittedly sought to admit [R’s] testimony in order to challenge the veracity of the victims’ allegations. Because it is the role of the jury—not expert witnesses—to determine whether a victim’s allegations are credible, the trial court did not abuse its discretion by precluding such testimony.” Although the court determined that R’s testimony about the proper forensic interview protocols was relevant and could have undermined the detective’s testimony about the victims’ reported sexual abuse, it found that “the outcome of trial would not have been different.” Affirmed.
Sentencing for delivery of 3,4-Methylenedioxy Methamphetamine (MDMA or ecstasy); Scoring of OV 14; MCL 777.44(1)(a); “Multiple offender situation”; People v. Dickinson; People v. Jones; “Leader”; People v. Rhodes (On Remand); Entitlement to resentencing; People v. Francisco
Holding that the trial court erred in scoring 10 points for OV 14 in sentencing defendant on his MDMA delivery conviction, the court vacated his sentence and remanded for resentencing. The trial court imposed a 6 to 20-year sentence on this conviction. He argued there was no record evidence he and another man (J) “were working together to coordinate the delivery of MDMA to the confidential informant” (CI). In short, although he acknowledged that there were multiple offenders, he asserted there was no evidence he and J “were ‘violating the law while part of a group.’” The court agreed. The trial court determined that they were both “involved in selling MDMA to the CI, and characterized [J] as a ‘conduit’ in the transaction. This characterization implies that defendant and [J] were consciously working together as ‘source’ and distributor, respectively.” But nothing in his PSIR, plea hearing, sentencing hearing, or the hearing on his “motion for resentencing fleshes out defendant’s relationship with [J] or even indicates that there was any relationship beyond that of individual MDMA seller and individual MDMA buyer.” Nothing in the record allowed the court to find that J’s “status as a ‘conduit’ was anything more than a function of how the bust was set up and the fact that [J] knew he could obtain MDMA from defendant. Defendant’s admission to selling MDMA to other people at the house party that night, and the CI’s account of returning later to the house party and buying MDMA directly from defendant and his acknowledgment to an officer that he had previously purchased controlled substances from defendant ‘too many times to count’ depicts defendant as an individual seller open to doing business with all comers.” A conclusion that he was coordinating with J to distribute his product “would be mere speculation” in light of the record. He was entitled to resentencing because subtracting 10 points changed “his minimum guidelines range from 72 to 120 months to 57 to 95 months.”
Admission of evidence; Harmless error; People v. Lukity; People v. Feezel; People v. Krueger; Ineffective assistance of counsel; People v. Sabin (On Second Remand); People v. Seals; Ineffective assistance of counsel during the plea bargaining process; Lafler v. Cooper; Habitual offender enhancement notice; MCL 769.13; People v. Morales; People v. Head; Court costs; 769.1k(1)(b)(iii); People v. Cameron
The court held that the trial court did not err by admitting an officer’s (M) testimony about defendant’s cell phone records or by imposing court costs, and that he was not denied the effective assistance of counsel or entitled to resentencing. He was convicted of AWIM, armed robbery, CCW, carrying a weapon with unlawful intent, FIP, and four counts of felony-firearm, second offense. The trial court sentenced him as a third-offense habitual offender to 35 to 60 years each for AWIM and armed robbery, 1 to 5 each for CCW, carrying a weapon with unlawful intent, and FIP, and 5 years for each of the felony-firearm convictions. On appeal, the court rejected his argument that the trial court erred by allowing M to testify about defendant’s cellular call records. Although M “had already provided testimony that the radio frequencies emitted by cell phones could travel outside of the sectors shown by the . . . map, the trial court invited defense counsel to resolve the issue by engaging in cross-examination.” And defense counsel was able to “elicit testimony that the data did not establish the exact location of the cell phone associated with [defendant] or who was operating the cell phone.” Moreover, any error was harmless. The court also rejected his claim that he received ineffective assistance of counsel during the plea bargaining process. “The trial court found defense counsel’s testimony to be credible, finding that defense counsel did not advise [defendant] to reject the plea offer on the ground that the prosecutor would make a better offer on the day of trial.” In addition, he was not prejudiced by any potential error. The court further rejected his contention that he was entitled to resentencing because the prosecution failed to comply with the requirements of the habitual-offender statute. Defendant “received actual notice of the prosecution’s intent to seek an enhanced sentence and that he had the opportunity to respond to the habitual-offender enhancement.” Finally, it rejected his argument that the trial court imposed an unconstitutional tax when it assessed $1,300 in court costs, noting because it is bound by Cameron, he could not show that the trial court erred. Affirmed.
Sentencing; Substantive reasonableness of defendant’s sentence for possession of child pornography; United States v. Robinson; United States v. Demma; United States v. Bistline; United States v. Camiscione; United States v. Tagg; United States v. Goldberg (7th Cir.); Reassignment; La Buy v. Howes Leather Co.
For the second time, the court vacated defendant-Schrank’s noncustodial sentence for possessing child pornography as substantively unreasonable, and remanded for resentencing, this time before a different judge. Schrank confessed and pled guilty to possession of child pornography. Although the Guidelines called for 97 to 120 months in prison, the district court imposed a noncustodial sentence of 12 months’ home confinement. The government appealed the sentence, and the court previously vacated it as substantively unreasonable where Schrank “downloaded ‘nearly 1,000 images of babies and toddlers being forcibly, violently, and sadistically penetrated.’” The court had held that the sentence “both ‘ignored or minimized the severity of the offense’ and ‘failed to account for general deterrence.’” But on remand, the district court imposed the same sentence, criticizing the Sixth Circuit for “second guessing” her and suggesting that it might reverse her again. The court did so. It again noted that Schrank’s actions involved some level of computer proficiency, including the downloading of special software to access information on the “dark web,” and held that the “ultimate sentence must reflect the severity of his depraved criminal conduct.” Further, under Sixth Circuit precedent, “a noncustodial sentence in a child pornography case will almost always be insufficient to account for general deterrence.” In deciding to reassign the case, the court noted that despite its “binding holding” that the sentence was substantively unreasonable, “the district judge refused to follow the law and impose an appropriate sentence.” In prior cases the Sixth Circuit has ordered reassignment where “the record showed that the ‘original judge would reasonably be expected . . . to have substantial difficulty in putting out of [her] mind previously-expressed views or findings.’” It found that this rationale applied here.
Personal protection insurance benefits; MCL 500.3114(1); Domicile; Grange Ins. Co. of MI v. Lawrence; Workman v. Detroit Auto. Inter-Ins. Exch.; Dairyland Ins. Co. v. Auto-Owners Ins. Co.; Party admissions; MCR 2.312(A); Employers Mut. Cas. Co. v. Petroleum Equip., Inc.; MCR 2.312(B)(1); “Off-road vehicle” (ORV) under the No-Fault Act (the Act); MCL 500.3101(3)(k); Nelson v. Transamerica Ins. Servs.; MCL 500.3114(5)(a); “Motorcycle”; MCL 500.3101(3)(g); Home-Owners Insurance Company (HOI); University of Michigan Regents (UMR); Auto Club Insurance Association (ACIA)
Holding that the trial court did not err by determining that the Honda bike defendant-Palka was operating was an ORV and did not fall within the definition of a motorcycle under the Act, or by finding that he was domiciled in Michigan at the time of the accident, the court affirmed summary disposition for plaintiffs. Palka collided with an auto owned and operated by a nonparty whose no-fault insurer was defendant-ACIA. “Palka, at the time of the accident, had no vehicle insurance and was living with his mother, Alice” in Michigan. Her no-fault insurer was defendant-HOI. Palka sustained serious injuries and was treated at facilities operated by plaintiff-UMR, which sought reimbursement for medical expenses. One issue on appeal was whether Palka was “domiciled” with Alice at the time of the accident. HOI argued that his domicile was California. But at the time of the accident, it was “undisputed that Palka was living with Alice and had been for months: Palka paid rent, had a room in the home, and was receiving mail there. Both Palka and Alice agreed that he would be staying at her home at least until the end of the lease.” Although he “had intended to move to California to be with his wife before the accident, he admitted that he had set no specific date for the move, and actually needed to get his finances together before moving. He said that his plan was to move to California ‘eventually.’ Further, Palka admitted that although he was ‘going to move to California,’ he had not actually been a resident of California and had never lived with his wife. He did not have a California driver’s license, and had not purchased any tickets to travel to California as of the date of the accident. Palka stated that between the marriage and the accident, he had gone to California approximately three times, for short trips of a week or so.” Thus, the trial court did not err by finding that he was domiciled in Michigan at the time of the accident. The other issue on appeal was whether he was driving an ORV or a motorcycle at the time of the accident. Similar to Nelson, the vehicle “here was not designed for public-highway use, but rather off-road use: unlike a motorcycle, this vehicle did not have necessary safety features such as headlights or turn signals.” Further, the evidence showed it “was ‘capable of cross-country travel without benefit of road or trail[.]’”
Action by an inmate arising out of a dog attack at a county animal shelter; Governmental immunity; MCL 691.1407(1); Odom v. Wayne Cnty.; Snead v. John Carlo, Inc.; Exceptions; Nawrocki v. Macomb Cnty. Rd. Comm’n; The public-building exception; MCL 691.1406; Renny v. Department of Transp.; Pike v. Northern MI Univ.; Civil rights claim under 42 USC § 1983; Morden v. Grand Traverse Cnty.; York v. Detroit; Municipal liability under § 1983; Matthews v. Jones (6th Cir.); Johnson v. Vanderkooi; Monell v. Department of Soc. Servs. of the City of NY; State-created danger doctrine; DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.; Mays v. Snyder; Cartwright v. Marine City (6th Cir.); Cruel & unusual punishment; U.S. Const. amend. VIII; Johnson v. Wayne Cnty.; People v. Bowling; Rhodes v. Chapman; Ivey v. Wilson (6th Cir.); Leave to amend; MCR 2.118; MCR 2.116(I)(5); Ormsby v. Capital Welding, Inc.; Liability under the dog-bite statute; MCL 287.351(1); Kelsey v. Lint; Immunity under MCL 691.1407(2); Love v. Detroit; Tate v. City of Grand Rapids; “Gross negligence”; MCL 691.1407(8)(a); Chelsea Inv. Group, LLC v. Chelsea; Qualified immunity; Holeton v. City of Livonia; Pearson v. Callahan; Solomon v. Auburn Hills Police Dep’t (6th Cir.); Jane Doe v. Jackson Local Sch. Dist. Bd. of Educ. (6th Cir.); Mingus v. Butler (6th Cir.)
The court held that the trial court did not err by granting defendants-county animal shelter, sheriff’s office, and others summary disposition of plaintiff-inmate’s action arising out of a dog attack at the shelter where he was performing volunteer work duty. Plaintiff was injured when he and another inmate were attacked by a dog at the shelter as they were cleaning dog kennels. On appeal, the court rejected plaintiff’s argument that the trial court prematurely granted summary disposition before he had the opportunity to conduct discovery. He argued that he required “discovery to obtain relevant information under defendant’s control, but he failed to submit an affidavit regarding the nature of this information . . . .” It also rejected his claim that the trial court erred by dismissing his claim under the public-building exception to governmental immunity, noting MCL 691.1406 required him to notify defendants within 120 days of his injury. “He failed to do so.” Instead, he “filed his complaint more than 11 months after his injury, well beyond the statutory 120-day period.” The court next rejected his contention that the trial court erred by dismissing his claim for his procedural mistake of naming the wrong defendants instead of allowing him to amend his complaint to name the county as a defendant and plead a claim premised on a state-created danger. The trial court properly granted summary disposition for the shelter and the sheriff’s office “not only because they were the wrong defendants, but also because plaintiff’s complaint failed to plead a valid § 1983 claim even if he had named the correct entity.” And his proposed amendment would have been futile. It further found that the trial court properly dismissed plaintiff’s dog-bite claims against the individual defendants for failure to plead or show that their conduct could be considered grossly negligent, and that the individual defendants were entitled to qualified immunity. Finally, the court noted there is “no statutory exception to governmental immunity pertaining to dangerous animals in the possession of a governmental agency.” Affirmed.
Governmental immunity under the Governmental Tort Liability Act (MCL 691.1401 et seq.); The automobile exception; MCL 691.1405; Negligence; Hill v. Sears, Roebuck & Co.; Proximate cause; Ray v. Swager; Cause in fact; Patrick v. Turkelson; Skinner v. Square D Co.; Requirement that motorists maintain an assured, clear distance ahead; MCL 257.627(1); The sudden emergency doctrine; White v. Taylor Distrib. Co.; Distinguishing Parkman v. Enterprise Leasing Co. of Detroit LLC (Unpub.)
The court held that the trial court did not err by denying defendant-city summary disposition of plaintiff’s auto negligence claim. Plaintiff was involved in a car accident and got out of her car to discuss the accident with the other driver. As she stood there, her car was struck by a bus, causing the car to strike her. She sued the city and defendant-bus driver for the resulting injuries. The trial court granted the driver summary disposition on her gross negligence claim, but denied the city’s motion for summary disposition of plaintiff’s negligence claim. On appeal, the court rejected its argument that it was entitled to summary disposition, noting that “because of the different opinions of the witnesses,” the officer’s conclusion that the bus driver “was negligent by driving while fatigued,” the bus driver’s “no contest plea to the ticket, and the lack of an ability to recreate the weather, lighting, and vehicle placement that evening, the trial court did not err in denying summary disposition of the claim premised on the automobile exception to governmental immunity.” The court also rejected the city’s claim that negligent operation of a motor vehicle could not be established because the bus driver was faced with a sudden emergency, noting he indicated he may have been fatigued, pled no contest to the ticket, and acknowledged that visibility conditions were poor, yet he “did not lower his speed despite this acknowledgment.” As such, a jury issue existed as to the application of the doctrine. It further rejected the city’s contention that it was entitled to summary disposition pursuant to Parkman, finding the case distinguishable. Finally, the court rejected the city’s argument that plaintiff’s gross negligence claim must be dismissed because there is “no exception to a city for governmental immunity claims arising out of the gross negligence of its employees.” Given that the city “did not challenge the pleading of the complaint in the trial court and it is apparent that the trial court dismissed the claim of gross negligence pertaining to” the bus driver, any concern it “had about the allegations that remain should be raised in the trial court, not on appeal for the first time.” Affirmed.
Adjudication; In re Sanders; In re Ferranti; Exercise of jurisdiction under MCL 712A.2(b)(1) & (2); In re Long; In re Baham; Principle that only one ground is required for jurisdiction; In re SLH
While it concluded that the trial court erred as to MCL 712A.2(b)(2), the court affirmed the order of adjudication because it properly exercised jurisdiction under MCL 712A.2(b)(1). Respondent-father only challenged the exercise of jurisdiction under (b)(2), where the focus is on the child’s home or environment when the petition is filed, “not the home or environment in which the respondent lives.” The child (K) was not living with him at the time the petition was filed. However, in making its findings on (b)(2), the trial court only considered “respondent’s living arrangements, i.e. his home and environment; it failed to consider” K’s home and environment when the petition was filed. Thus, it erred “because it did not consider the proper home and environment for” K. But the court noted that a trial court only has to find “one statutory ground for jurisdiction.” Respondent did not address (b)(1) in his appellate brief. Nonetheless, the court considered whether the trial court also erred in determining that it had jurisdiction under this section, and held that it did not err. Given that K was removed from respondent’s care by court order before the petition was filed, whether she “was receiving appropriate care in her placement at the time the petition was filed had no effect on whether respondent provided her with proper care and custody.” The court concluded that the record showed he “‘refuse[d] to provide proper or necessary support’ to” K. Although he was offered two hours of parenting time once a week, of the eight visits that he “was offered between November and December 2019, respondent cancelled three and was approximately an hour late for another. When” he did visit, he often “played music and had limited physical interaction with” her. He admitted he was unemployed, and while he contended that he had independent housing when the DHHS filed the petition, the trial evidence suggested otherwise. Thus, when the petition was filed, he had missed almost half his visits with K; was unemployed; “and his claim that he had housing was not verified by any evidence or witnesses.”