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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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The court held that the trial court abused its discretion when it determined that the appellant-GAL was not entitled to payment for his services and that defendant-DHS was not responsible for payment. Appellant was the attorney and GAL for defendant-Hand, a 13-year-old foster child and ward of the state who was sued by the family of a 5-year-old child he molested. He sought compensation for his services, but the trial court denied his claim. On appeal, the court agreed with appellant that he was entitled to compensation for the services he rendered as GAL and that the trial court abused its discretion when it determined that the DHS was not required to pay for his costs and expenses. It noted that he “was not responsible for the costs of the case since MCL 600.2415 and MCR 2.201(E)(1)(c) clarify that a” GAL is not responsible for the costs of the action, and since MCR 2.201(E)(3)(a) indicates that a GAL “will receive an award for his costs and expenses,” which further demonstrates that he “was not responsible for his own costs and expenses.” It also found that appellant was entitled to receive attorney fees as part of the costs and expenses he incurred as GAL. It then held that DHS was responsible for paying appellant’s costs and expenses since Hand was a ward of the state. “[T]he fact that DHS is responsible for payment of [appellant’s] expenses and costs is apparent from the fact that DHS was accountable for” Hand’s care, and the fact that “the state of Michigan, DHS, and DHS of Wexford-Missaukee Counties were dismissed from the case does not negate the fact that Hand was a ward of the state, and DHS remained responsible for Hand’s care.” Further, “[a]lthough [appellant] was appointed in a civil case, rather than in a child-protective or delinquency proceeding, the situation is comparable since Hand was a ward of the state and required a” GAL in order for the case to proceed, and “the fact that the Superintendent was Hand’s guardian does not negate the fact that” appellant acted as GAL. The court next found that the trial court abused its discretion when it reasoned that appellant delayed filing his motion for fees and costs, noting that “the time limit outlined in MCR 2.625(F)” did not bar his request, and there are “no other applicable time limits” on a GAL’s request for attorney fees and costs. Finally, the court found that the trial court abused its discretion when it determined that DHS must receive notice of the appointment of a GAL, noting it failed to cite authority for this proposition. “DHS’s argument that it did not have notice of [appellant’s] appointment" was unpersuasive under the circumstances. Reversed and remanded.
Chapter 7 “administrative expenses,” 11 USC § 503(b); In re Connolly N. Am. (Bankr. ED MI); “Equitable principles” governing the exercise of bankruptcy jurisdiction; Bank of Marin v. England; United States v. Ron Pair Enters., Inc.; Whether § 503(b)(3)(D) was a "per-se bar" to reimbursement under § 503(b); City of White Plains v. A & S Galleria Real Estate, Inc.; In re Al Copeland Enters. (5th Cir.); United States v. Flo-Lizer, Inc.; RadLAX Gateway Hotel, LLC v. Amalgamated Bank; Morales v. Trans World Airlines, Inc.
[This appeal was from the ED-MI.] In this Chapter 7 case, the district court erred in upholding the bankruptcy court’s decision to not allow the plaintiffs-unsecured creditors, who had the previous trustee removed for misfeasance, to claim their litigation costs as “administrative expenses” under § 503(b). Plaintiffs sought to recover $164,336.28 in attorney fees and costs under § 503(b), which allows the bankruptcy courts “the general authority to allow ‘administrative expenses[.]’” The bankruptcy court concluded that “Congress’s failure to extend § 503(b)’s express provision for reimbursement for a creditor that makes ‘a substantial contribution in a case under chapter 9 or 11 [of the Bankruptcy Code],’ § 503(b)(3)(D), to a creditor making such a contribution in a case under Chapter 7 reflected ‘a Congressional intent’ to deny reimbursement in Chapter 7 cases.” The district court agreed with the bankruptcy court. The court reversed, holding that the statutory construction of § 503(b)(3)(D) was not “a per-se bar to reimbursement of the instant administrative expenses under § 503(b) . . . .” Rather, the court held that “§ 503(b) allows for reimbursement in Chapter 7 cases.” The Code “encourages an expansive reading of § 503(b)[,]” and “the categories listed in the statute are not exhaustive.” Congress’s decision to use the term “‘including’ in the opening lines of the subsection,” created a “mechanism” to “reimburse expenses not specifically mentioned in § 503(b)’s subsections.” Moreover, Congress could have explicitly excluded reimbursement in Chapter 7 cases if that was its intention. The court noted that “had the U.S. trustee fulfilled its duty as the ‘bankruptcy watch-dog’ here, there is no question that the estate would have paid the expenses associated with removing the former trustee and prosecuting the malpractice action.” Reversed and remanded.
The court held that the restitution awards could not stand. Because the defendant’s illegal acts involving victim-Austin did not give rise to his convictions, Austin was not entitled to any restitution. Victim-Shane’s restitution award, too, was vacated, “as the evidence provided no reasonable factual basis for substantial components of the total." Also, as to defendant’s claim that “because restitution is a form of punishment, the Sixth Amendment requires that a jury rather than a sentencing court determine the amount owed,” the court held that it was “unaware of any state or federal courts that have adopted defendant’s constitutional argument,” found it unavailing, and declined the “opportunity to break new legal ground.” Thus, the court vacated most of the restitution order and remanded for correction of the order to reflect the amount paid for psychological therapy, $1,785. Should the prosecution elect to present additional testimony, the trial court may conduct a new restitution hearing. Defendant was charged with sexually abusing two young brothers. Both victims are now adults. The trial court referred to them pseudonymously as Shane and Austin. He pleaded guilty to the charged conduct involving Shane. The prosecutor dismissed a single count involving Austin. The trial court sentenced defendant to prison and ordered him to pay $276,800 in restitution to Austin, and $276,985 to Shane for future therapy costs, future medication expenses, future psychiatric services, and “lost wages.” He challenged only the restitution order. He claimed that the restitution amounts allocated for Shane’s future medical and psychological treatment and “lost wages” were not authorized by MCL 780.766. The court discerned “no rational basis for continuing to embrace Heil’s ‘easily ascertained and measured’ formulation, as the Heil court operated in an entirely different (and no longer pertinent) statutory milieu.” Here, it confronted specific statutory language that displaced any need for policy analysis. The trial court properly awarded restitution for the costs of the “actual” professional services rendered to Shane. "While future (not yet incurred) psychological expenses indisputably fall within the ambit of MCL 780.766(4)(a), the prosecution must demonstrate by an evidentiary preponderance that the claimed expenses are ‘reasonably expected to be incurred.’” Here, the court found the requisite proof sorely lacking. It held that the CVRA “permits an award only for losses factually and proximately caused by the defendant’s offense; nothing in the text or structure of the statute suggests otherwise.”
Ineffective assistance of counsel; United States v. Cronic; People v. Pubrat; People v. Solmonson; People v. Heft; People v. Trakhtenberg; Prejudice; People v. Grant; Trial strategy; People v. Rice (On Remand); People v. Horn; People v. Petri; Whether an actual conflict of interest affected counsel’s performance; People v. Smith; People v. Davenport; Presumption of prejudice; MRPC 1.9(b) & 1.10(b); Competency; Presumption that criminal defendants are competent to stand trial; MCL 330.2020(1); People v. Abraham; Challenges to competency; MCL 300.2024; MCR 6.125(B); People v. Blocker; People v. Mette; A trial court’s obligation to sua sponte raise the issue of competency; People v. Kammeraad; People v. Harris; Ineffective assistance of appellate counsel; People v. Uphaus (On Remand); Selection of appellate counsel; MCL 780.712(6); Prosecutorial error; Exculpatory evidence; Brady v. Maryland; People v. Chenault; People v. Miller; Disclosure of evidence by the defense; MCL 767.94a; MCR 6.201; Prosecutorial latitude; People v. Seals; People v. Unger; Principle that a prosecutor may not knowingly use false testimony to obtain a conviction; People v. Aceval; Sufficiency of the evidence; People v. Lundy; Felonious assault; MCL 750.82(1); People v. Chambers; Domestic assault; MCL 750.81(2); “Assault” defined; People v. Cameron; Inciting or procuring perjury in a court proceeding; MCL 750.425; “Perjury” defined; People v. Lively; Witness intimidation; MCL 750.122(3); Judicial bias; People v. Jackson; Presumption of impartiality; People v. Wells; Adjournment; MCR 2.503(C)(2); Right to present a defense; People v. King; People v. Herndon
[Unpublished opinion.] The court held that the defendant was not denied the effective assistance of counsel for failure to raise the issue of his competency because there was nothing on the record to indicate that he was incompetent at the time of trial. He was convicted of assault with a dangerous weapon, domestic violence, inciting or procuring perjury in a court proceeding, and intimidating a witness. He was sentenced as a fourth-offense habitual offender to concurrent prison terms of 4 to 15 years for the assault convictions, 3 years and 9 months to 15 years for the procuring perjury and witness intimidation convictions, and 93 days for the domestic violence conviction. On appeal, the court rejected his argument that his trial counsel was ineffective for failing to investigate and pursue a challenge to his competency. “There is no evidence on the record in this case that defendant was unable to understand the nature and object of the proceedings against him. In fact, the record is replete with examples indicating the opposite.” Further, the record evidence established that he “actively assisted with” his defense, and “there was nothing on the record that would raise a question as to” his competence. The fact that “defendant sustained allegedly serious head trauma when he was a teenager, has limited bearing on whether he was incompetent to stand trial in 2012 when he was in his early 30s” and the fact that he “had numerous convictions after his head injury indicates that he apparently did not have any mental health issues or competency concerns that barred those proceedings.” Moreover, the fact that he “has had multiple trial attorneys representing him does not appear to be the result of incompetence on defendant’s part.” Finally, the court rejected the arguments in his Standard IV brief, finding them meritless. Affirmed.
[Unpublished opinion.] The court concluded that the challenged evidence was admissible under MRE 404(b)(1) for its relevance in negating, through the doctrine of objective improbability, any suggestion that defendant’s sexual activity with the victim (CY) was consensual. It also rejected his argument that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Defendant theorized that CY and the other acts witnesses (DJ and AP) were falsely accusing him of sexual assault because of disagreements over money. On appeal, he argued, among other things, that the trial court abused its discretion in admitting the other acts testimony of DJ and AP pursuant to MRE 404(b)(1). While the trial testimony of DJ and AP “differed in some respects from the proposed testimony summarized in the prosecutor’s pretrial notice, the differences were minor” and did “not establish any significant disparity between the prosecutor’s offer of proof and the testimony presented at trial, or negate the many common features between the uncharged offenses and the charged assault that served as the foundation for the trial court’s decision to admit the evidence under MRE 404(b)(1), for the purpose of showing that defendant’s commission of the charged offense was part of a common plan, scheme, or system in committing sexual assaults against isolated women.” The court rejected defendant’s argument “that the prior incidents involving DJ and AP were not sufficiently similar to the charged offense to be admissible for a non-propensity purpose.” There were sufficient common features between those incidents and the charged offense to infer that they were “manifestations of a common plan, scheme, or system of perpetrating sexual assaults.” All of the incidents involved “defendant selecting a solitary woman on the street, threatening her with a weapon, inducing her to enter his car, and driving to a secluded area. All of the sexual assaults were carried out in defendant’s car, and each incident involved” his use of “a threat of violence with a weapon to force the victim to perform sexual acts.” They all occurred in the same general geographic area. The evidence was relevant to show that he sexually assaulted CY, and to refute his claim that they engaged in consensual sex. Affirmed.
[Unpublished opinion.] The court held that the defendant failed to show that the trial court erred as to its evidentiary rulings during defense counsel’s cross-examination of the witnesses. Thus, he was not denied his right of confrontation or his right to present a defense. Also, the trial court did not err in excluding evidence about criminal activity in the area or a pre-trial letter that defendant’s girlfriend (W) wrote to defense counsel. Further, the court did not abuse its discretion by joining the cases. The prosecutor did not engage in misconduct, and defendant was not denied the effective assistance of counsel. The court also upheld the scoring of 10 points for OV 14 in sentencing defendant. Thus, it affirmed his convictions of delivery of less than 50 grams of a controlled substance and his sentences. However, it remanded for the trial court to articulate a factual basis to support the amount of costs imposed. He was convicted for delivering heroin to a CI who was working with officers from the STING. Defendant argued, among other things, that the trial court improperly limited his cross-examination of Detective L, the CI, W, and Officer K. He asserted that by limiting his ability to cross-examine the witnesses, the trial court denied him his constitutional rights of confrontation and to present a defense. The court held that defense counsel’s cross-examination about the CI’s “ability to respond to questions and to drive while under the influence of heroin was irrelevant under MRE 401 and properly excluded.” L’s testimony as to “whether heroin generally impairs a person’s ability to drive was not relevant in determining whether defendant delivered heroin” to the CI. The trial court’s decision “did not limit defendant’s ability to attack” the CI’s credibility. Evidence was admitted that the CI “was a heroin addict who had heroin in his vehicle during the traffic stop, and defense counsel highlighted testimony from” L and K that the CI stated he “would do whatever he had to do to stay out of trouble.” Thus, counsel was able to argue that the CI was not credible and was biased against defendant. Any evidence as to the CI’s “driving ability was not relevant to the outcome of the case or in determining whether he was a credible witness. Thus, defendant’s right to confrontation and to present a defense were not denied by” the trial court’s exclusion of the evidence.
Sufficient evidence to support the defendant’s conviction of first-degree premeditated murder; Whether the prosecution presented “any evidence of planning, deliberation, premeditation, or a preconceived design by defendant to kill the victim”; People v. Gayheart; Second look; People v. Gonzalez; People v. Saunders; People v. Johnson; People v. Anderson; People v. Water; Voluntariness of defendant’s waiver of his constitutional rights; Whether he knowingly, intelligently, and voluntarily waived his constitutional rights; People v. Tanner; People v. Cipriano; The Cipriano factors; Claim that defendant was deprived of food or sleep; People v. Fike
[Unpublished opinion.] The court held that the evidence submitted at trial would allow a reasonable jury to conclude that the defendant’s shooting of the victim (C) was deliberate and premeditated. Thus, there was sufficient evidence to support his conviction of first-degree premeditated murder. Also, he failed to prove that he did not knowingly, intelligently, and voluntarily waive his constitutional rights, and that his statements to the police were involuntary. Defendant argued that the prosecution did not present “any evidence of planning, deliberation, premeditation, or a preconceived design by defendant to kill the victim.” His sole argument was that the prosecution did not provide any evidence that he had sufficient time to take a second look. More specifically, he argued that “the interval of time between the initial thought of killing the victim and the ultimate action is unknown and so the prosecution failed in its burden of proof.” However, evidence, which included his “oral and written confession, as well as evidence of his actions, would allow a reasonable jury to infer defendant’s premeditation and deliberation.” Defendant admitted that his friend (S) offered him $1,000 in exchange for killing C. This offer stemmed from a dispute that S had with C. Although defendant was not personally involved in the dispute, he had met C in the past, and had contact with him prior to the day of the shooting. Defendant’s actions also demonstrated that killing C was deliberate and premeditated. Evidence showed that (1) defendant text messaged C one day before the shooting indicating that he needed help delivering a package; (2) defendant followed up with C to ask for a ride at nighttime; and (3) he entered C’s vehicle with a loaded gun, concealed in a backpack. Then according to the witness (E), defendant asked C “to pull over in an obscure, secluded location and then shot the victim.” E further testified that “there was no physical or verbal argument prior to the shooting, and that defendant shot the victim in the back of the head at a close range.” Further, defendant then forced E to help him hide C’s body, and completed this task after E had escaped. He also hid the murder weapon in nearby shrubs. Lastly, evidence was presented that defendant took the cell phones of C and E before fleeing the crime scene and changing his clothes. Affirmed.
Dispute over premiums for Michigan Workers’ Disability Compensation Act (WDCA) (MCL 418.1 et seq.) insurance; Test for determining “employee” status; MCL 418.161(1)(n) (amended by 2011 PA 266); Whether the drivers were “employees” or “independent contractors” under Michigan law; Elde v. Castles Bros., Inc.; Auto-Owners Ins. v. All Star Lawn Specialists Plus, Inc.; Hoste v. Shanty Creek Mgmt., Inc.; “Damages-premium calculation”; Smith v. Manausa; Michigan Worker’s Compensation Placement Facility Basic Manual for Worker’s Compensation & Employers’ Liability Insurance (Facility’s Manual); MCL 418.371; Summit Petroleum Corp. of IN v. Ingersoll-Rand Fin. Corp.; Michigan Administrative Hearing System (MAHS)
[This appeal was from the WD-MI.] The district court in this workers’ compensation insurance premium dispute did not err by finding that the drivers operating under the lease-to-buy program were plaintiff-Max Trucking’s “employees” under Michigan’s WDCA three-part test, and by awarding the defendant-insurer damages for unpaid premiums. The district court properly relied upon § 161(1)(n)’s three-part test to determine the drivers’ status and not on the 20-factor IRS test (the Revenue Test) in the amendatory language of § 161(1)(n). “[T]he amendatory language limits use of the Revenue Test to determinations of employment status made in administrative proceedings before” the MAHS, and this case did not come to the court “by way of the MAHS, but rather by way of an insurance premium dispute . . . .” The court concluded that “the Revenue Test did not supplant the three-part test.” Even though “under the amendatory language issuance of a W-2 is prima facie evidence of employee status, issuance of a 1099 is not prima facie evidence of independent contractor status under 161(1)(n).” Under Michigan law, “in order to be deemed an employee under 116(1)(n), a person must show that he or she: (1) does not maintain a separate business; (2) does not hold himself or herself out to render services to the public; and (3) is not an employer subject to the WDCA.” The court noted that the Michigan Supreme Court’s overruling of the special panel in Auto-Owners did not affect the district court’s ruling because the district court found that every criterion of MCL 418.161(1)(n) was met. The court agreed that the drivers in the lease-to-buy program were “‘effectively economically dependent on Max Trucking for their ability to operate as truckers.’” Their “complete dependence indicates that the lease-to-buy drivers cannot be considered to maintain separate businesses.” Reliance on the “economic reality” test was “inappropriate” where “the Michigan Legislature amended the definition of employee in the WDCA by adding the current three-part test to the first sentence of 161(1)(n).” The district court did not err when calculating the damages premium under the Facility’s Manual and awarding defendant $101,592 for unpaid premiums. Affirmed.
Prima facie case of negligence; Case v. Consumers Power Co.; Applicable Federal Mine Safety & Health Administration (MSHA) regulations; 30 CFR §§ 56.14101(a)(1) & (3); §§ 56.14100(b) & (c); Causation; Skinner v. Square D Co.; Craig v. Oakwood Hosp.
Termination under §§ 19b(3)(g), (j), & (l); Child’s best interests; In re Moss Minors; In re Olive/Metts Minors; In re Frey; In re Jones; In re White
[Unpublished opinion.] Concluding that the preponderance of the evidence supported the trial court’s finding that terminating the respondents-parents’ parental rights to the child was in his best interests, the court held that the trial court did not err in terminating their rights. While the proceeding only lasted a few months, respondents had their parental rights to another child terminated in 2014. “Before the earlier termination hearing, respondents received services for more than a year and ‘failed to derive any lasting benefit’ from those services.” The child’s foster care caseworker testified that they “had not made any significant change in their lives since their rights were terminated” to the other child. The evidence also established that they “did not have the emotional stability, housing, or financial ability to care for the child.” Further, he was removed from their care shortly after he was born. “He was approximately two months old at the time of the termination hearing, so neither respondent developed a relationship with him that weighed against termination.” Further, he was “doing well developmentally in foster care, and he was healthy. He was with a family who was willing to adopt,” and there was “no indication that respondents would be able to properly care for him” in the foreseeable future. He “deserved the permanency and stability” offered by the foster home. Affirmed.
Order removing the child from the respondent-father’s custody; The trial court’s exercise of jurisdiction over the child; MCL 712A.2(b)(1); In re BZ; Department of Human Services (DHS); Child Protective Services (CPS)
[Unpublished opinion.] Concluding that there was no clear error in the trial court’s factual findings, the court held that, considered in their totality, the findings provided legally sufficient evidence for the trial court to exercise jurisdiction over the respondent-father’s child pursuant to MCL 712A.2(b)(1). Thus, it affirmed the trial court’s order removing the child from his custody. Respondent first challenged the trial court’s finding that “his alleged lack of cooperation with DHS officials was a valid ground for taking jurisdiction. Failure to cooperate with DHS in general is not directly implicated in the language of MCL 712A.2(b)(1)” and thus, cannot “serve as a basis for exercising jurisdiction.” However, the statute provided the trial court “authority to exercise jurisdiction where a child is ‘subject to a substantial risk of harm to his or her mental well-being.’” The trial court found that “respondent’s violent outburst in front of” the child “and his inability to control himself in front of her caused direct harm” to her mental well-being. He admitted that she was in the home when he punched the wall. CPS worker-P testified that the child saw respondent’s violent outburst after P and another worker removed her from the home. The child “became upset and needed comforting. Respondent testified that he did not allow CPS workers to interview” the child when they appeared at his home, “ostensibly to protect her from emotional trauma of having to discuss the sexual abuse on more than one occasion.” However, the record showed that contrary to his claim that he was protecting her “from emotional trauma, respondent created it.” Thus, the trial court did not clearly err in finding that his “violent outbursts subjected” the child to “a substantial risk of emotional harm.” As to the grounds on which the trial court found that he failed to protect her, given “the totality of the circumstances, and considering that there was no clear answer as to when” her injuries occurred, the court was “not left with a definite and firm conviction” that the trial court erred in finding that he failed to provide proper care “while she was in his exclusive custody.”