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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Sufficiency of the evidence for a CSC I conviction under MCL 750.520b(1)(a) (victim under 13); Jury instructions as to a dismissed count & the penetration element of CSC I; Ineffective assistance of counsel; Failure to raise a futile objection; Right to a speedy trial; The Barker v Wingo factors
The court concluded that sufficient evidence supported defendant’s CSC I conviction, and he was not entitled to a new trial based on erroneous jury instructions. Also, defense counsel was not ineffective for failing to raise a futile objection to the instructions. Finally, the trial court did not abuse its discretion by denying his motion to dismiss based on a speedy-trial violation. Defendant argued there “was no credible evidence at trial that [his] tongue was touching [the complainant’s] vagina.” She testified that he ‘“wiggled my butt’ with his tongue while she was on the couch.” Her father testified she “had told him that defendant had licked her ‘butt’ while babysitting her, and that, when he asked her to show him where defendant licked, she pointed to her vagina and said that her pants were down at the time. Later that day, the complainant reported to a sexual assault nurse examiner that she was at the emergency room ‘because he licked my butt.’” During therapy after the incident, she “told her therapist that she did not want to go to the babysitter’s home any longer because defendant licked her with her pants down more than once while she was there, and she pointed to her vaginal area. A forensic scientist reported that DNA testing strongly indicated that defendant’s DNA was present in saliva found in the panel of the complainant’s underwear, and on a vulvar swab taken of the complainant’s anatomy during an” exam. Even though she “was five years old at trial and did not use the proper technical nomenclature for her anatomy, when viewed in a light most favorable to the prosecution, reasonable jurors could conclude beyond a reasonable doubt that the evidence established that defendant licked the complainant’s vagina.” He contended that “he explained the presence of his DNA on the complainant’s vagina during his statement to the police, and in his testimony that he had used his saliva to moisten bathroom tissue. The jury, however, had the duty and the best ability to determine” his credibility. He alternatively argued that assuming “the evidence established that he licked the complainant’s vagina, there was no evidence that his tongue actually went beyond mere contact to actual penetration.” But she described him “performing cunnilingus on her genitalia. DNA evidence obtained from a vulvar swab also established that defendant had done so. Such evidence supported the jury’s determination that” he committed CSC I.
Rescission of an auto insurance policy; Pioneer State Mut Ins Co v Wright; Making credibility determinations in deciding a summary disposition motion under MCR 2.116(C)(10); Claim for third-party no-fault benefits; Uninsured driver; MCL 500.3135(2)(c); The security required by MCL 500.3101(1)
The court held that the trial court erred in granting defendant-Progressive summary disposition under MCR 2.116(C)(10), ruling it was entitled to rescission of plaintiff-Nelson’s auto insurance policy, based on a credibility determination. It also held that the trial court erred in granting defendants-Owusu and Hizmo Trucking summary disposition of plaintiff’s claims against them for third-party no-fault benefits on the basis she was an uninsured driver. Thus, it reversed both rulings and remanded. Plaintiff insured her vehicle by adding it and her name to her former boyfriend’s (J) policy, even though they did not live together. She was involved in an accident with a truck driven by Owusu and owned by Hizmo. After initially paying plaintiff first-party no-fault benefits, Progressive rescinded the “policy based on fraud in the procurement . . . .” The trial court determined she “was not ‘innocent’ and the balancing of the equities favored” Progressive, entitling it to rescind its policy and deny coverage. It stated “rescission is ‘an equitable matter,’ so ‘a court may make findings of fact, which are reviewed for clear error.’ The trial court proceeded to ‘find[ ] that Plaintiff’s position of innocent ignorance of the requirements for being added to [J’s] no-fault insurance policy is not believable,’” distinguishing this case from Pioneer State. The “fundamental flaw in this approach . . . is that trial courts are prohibited from making any credibility determinations on summary disposition review under” (C)(10). It noted that “the trial court had reasons to be suspicious of plaintiff’s credibility” and the court may “have accepted those reasons if the trial court had conducted an evidentiary hearing and then concluded that plaintiff’s position of innocent ignorance of those requirements ‘is not believable.’” But it did not conduct any hearing before reaching this conclusion. As to plaintiff’s third-party claim, she “procured no-fault insurance from Progressive before” the accident, so she “actually ‘had in effect for’ her Kia Forte ‘the security required’ by MCL 500.3101(1)” when she was injured. Further, as the trial court erred in granting Progressive summary disposition “on the propriety of rescission, plaintiff has not yet been stripped of the insurance coverage from Progressive, so she manifestly cannot yet be viewed as an uninsured driver subject to” MCL 500.3135(2)(c).
Modification of a consent judgment; Andrusz v Andrusz; Effect of the lack of a party’s consent; Scope of the trial court’s authority to enforce the existing consent judgment; MCL 600.611; Whether the consent judgment authorized the modification order; Whether the intervenors were required to file complaints to participate in the case; MCR 2.209(C); Distinguishing an intervenor’s role as a party to the action from that of amicus curiae
The court held that the trial court erred in modifying the parties’ existing consent judgment without defendant-Gelman Sciences’ consent, and that the intervenors could not continue in the case without filing complaints. Thus, it vacated the trial court’s 6/1/21 order modifying the prior consent judgment, reinstated that judgment, and remanded. It directed the trial court on remand to require intervening plaintiffs to either “file complaints or be dismissed from the case.” This litigation arose from 1,4-dioxane (dioxane) contamination. The state and Gelman reached a settlement agreement “and in 1992 the trial court entered the parties’ proposed consent judgment as an order of the court.” The parties have amended it three times by agreement. Negotiations for another amendment went on for four years. Ultimately, the trial court “proposed to resolve the matter by entering the fourth amended consent judgment” subject to its ongoing review, and despite Gelman’s objection, it later “entered an ‘order to conduct response activities to implement and comply with revised clean up criteria.’” The court noted that the 1992 “judgment, as subsequently amended, was final and binding, and in the absence of fraud, mistake, illegality, or unconscionability, [it] could not be modified or set aside without the parties’ consent.” The 6/1/21 order was entered without their “consent and over Gelman’s repeated objections, substantially modifying the parties’ prior agreement and imposing new obligations upon Gelman. By modifying the consent judgment and forcing new terms on the parties without their consent, the trial court erred as a matter of law.” The court concluded the trial court did not have “authority to unilaterally modify the consent judgment when (1) Gelman and the state did not consent to modification of their consent judgment, (2) neither Gelman nor the state sought the trial court’s intervention under the dispute resolution procedures to resolve a pending dispute arising under the consent judgment, and (3) the state did not file any new claims and Gelman was not afforded an opportunity to defend against any new claims.” As to the intervenors, pursuant to MCR 2.209(C), “a pleading is a requirement of intervention.” The court held that, having intervened as plaintiffs, they “must file their complaints and thereby subject themselves to the incidents of litigation, or face dismissal.”
Workplace injury; Whether the injury fell under the intentional-tort exception of the Worker’s Disability Compensation Act (WDCA); MCL 418.131(1); Johnson v Detroit Edison Co; Admission of allegations by failing to deny them; MCR 2.108(A)(5); MCR 2.110(B)(5); McCracken v Detroit
The court held that the trial court did not err by granting defendant-employer summary disposition of plaintiff-employee’s action because she could not establish that defendant committed an intentional tort. Plaintiff sued defendant under the WDCA after one of her fingers was partially amputated while operating a machine at work. The trial court granted summary disposition for defendant on the basis that plaintiff could not establish an intentional tort. On appeal, the court rejected plaintiff’s argument that her injury fell under the intentional-tort exception where defendant “willfully disregarded the danger posed by the machine and knew an operator could be injured just like” she was. “To establish an intentional tort, an employee must show that the injury was caused by the employer’s ‘deliberate act’ and that the employer ‘had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.’” Plaintiff could not meet that standard here because she admitted the allegations in defendant’s “amended answer by failing to respond within 21 days. Those admissions establish [she] had been trained in how to operate the machine safely, she had safely operated it for more than a month before her injury, nobody had been injured by the machine as it was configured when” she was injured, defendant could not have known she would disregard its safety procedures, and she did not follow the safety procedures when she was injured. “These admissions are fatal to [her] claim. By admitting [defendant] could not have known [she] would disregard its safety procedures,” she admitted it “could not have known that the circumstances leading to her injury would have occurred. Without that knowledge, [defendant] cannot have committed an intentional tort under MCL 418.131(1).” In addition, “the lack of similar injuries shows that it is far from certain that” plaintiff’s injury would occur. Affirmed.
Riparian rights; Riparian land; Thies v Howland; Riparian owner; Little v Kin; Meander line; Port Sheldon Beach Ass’n v Department of Envtl Quality; Principle that a grant of land bounded by a water course generally conveys riparian rights; Grand Rapids Ice & Coal Co v South Grand Rapids Ice & Coal Co; Water’s edge as a border; Railroad Co v Schurmeir; Water rights under the Marketable Record Title Act (MRTA); MCL 565.101 & 106; Whether federal law preempts the MRTA; Packer v Bird
The court held that because land bounded by a natural watercourse is riparian, the trial court did not err by finding plaintiffs-adjacent owners had riparian rights. Plaintiffs filed a nuisance complaint against defendant, alleging its use of an island in the pond adjacent to their properties for short-term rental activity violated the local township zoning ordinance. Defendant denied their claims and asserted that because their properties did not border the pond they did not have rights to the water. Defendant also counterclaimed, requesting a decree as to water rights, enjoining plaintiffs from entering its property, and requiring them to remove their personal property from defendant’s property. The trial court denied plaintiffs’ motion for summary disposition and dismissed their nuisance complaint. In a prior appeal, the court reversed, finding defendant was violating the zoning ordinance by operating a tourist home, and that plaintiffs were entitled to summary disposition on the basis of their nuisance per se claim. Meanwhile, the trial court found plaintiffs had riparian rights to the use and enjoyment of the waters and entered summary disposition in their favor. In the present appeal, the court rejected defendant’s argument that the trial court erred by finding that plaintiffs established that their properties ran to the water’s edge of the pond. “[P]laintiffs provided evidence regarding the ownership of their property that defendant has not rebutted. Although defendant now argues that the boundary was fixed at the date of the conveyance from the federal government, defendant argued in the lower court that the boundaries between plaintiffs’ and defendant’s parcels were determined by a 1966 court order that regulated the water elevation of” the pond. Plaintiffs, on the other hand, “have consistently established that for a period beyond 40 years, the legal descriptions of their properties extended to the water’s edge.” As such, the trial court did not err by finding that their properties “ran at least to the water’s edge, and that they consequently have riparian rights.” Affirmed.
Termination under §§ 19b(3)(c)(i) & (c)(ii); Child’s best interests
Concluding that the trial court did not clearly err by finding grounds to terminate respondents-parents’ parental rights under §§ (c)(i) and (c)(ii), and that termination was in the child’s (GW) best interests, the court affirmed. “Respondent-mother is the biological mother of GW, and respondent-father is GW’s legal father.” The conditions that led to removal and adjudication were primarily their substance abuse issues. “GW had been born with addictions to several drugs, and each respondent had drug issues, past and pending legal issues involving drug possession, and outstanding arrest warrants. Respondents were required to participate in and show benefit from substance abuse treatment and were required to submit to random drug screens.” But at the termination hearing “approximately 20 months after GW was removed, the evidence showed that substance abuse was still a pervasive issue.” The mother was terminated from drug court, and the “father failed to enter drug court despite the opportunity to do so. Both respondents failed to complete any random drug tests, which were supposed to occur approximately once per week. Their missed tests were considered positive tests. When respondents did submit to drug tests, they tested positive for the same drugs that were identified as a problem at the initial adjudication.” GW’s paternal aunt testified that, during visitations, respondents had often come to her house “drunk or high.” Further, while the mother completed a residential treatment program in 9/20, “she immediately relapsed. Similarly, although at the time of the termination hearing both respondents were attending BioMed, they had continued to test positive for drugs, and the foster care worker had been unable to obtain documentation from Bio-Med despite sending numerous requests.” Finally, the father failed to appear for the termination hearing, and the “mother testified that, if she were tested on that day, she was unsure if she would test positive for drugs because she had used drugs approximately one week prior. Therefore, despite numerous hearings and an ample opportunity to do so, respondents failed to address and rectify their substance abuse issues. These issues remained throughout the case proceedings, and, for the services that were completed, respondents showed no benefit.” The court held that the “trial court did not improperly focus on past conduct, as respondents contend; it carefully evaluated the entire record and evidence produced at the hearing.” Affirmed.