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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Tax-foreclosure sale; MCL 211.78m(1); Jackson v Southfield Neighborhood Revitalization Initiative; Yono v County of Ingham
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 79311 in the 4/27/23 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decisions in Jackson and Yono.
Michigan Vehicle Code protection from odometer-related deception; MCL 257.233a; Auto mileage disclosures; “With intent to defraud”; Titan Ins Co v Hyten; Treble recovery; “Actual damages”; Return of the purchase price after rescission as restitution; Alken-Ziegler, Inc v Hague; Incidental expenses; Laubengayer v Rohde; Attorney fees; Pirgu v United Servs Auto Ass’n
The court held that plaintiff was properly granted summary disposition on her claim that defendant-auto dealer violated MCL 257.233a(1) and (3). Further, “the trial court did not clearly err in finding that defendant acted with intent to defraud under MCL 257.233a(15).” The court also concluded that restitution of the $13,000 purchase price as part of rescission did not constitute “damages” subject to trebling under the statute, but incidental expenses incurred in connection with the transaction were. Finally, it found that the trial court did not “conduct a proper Pirgu analysis in awarding” plaintiff’s attorney fees. As a result, it affirmed the trial court’s ruling trebling “incidental damages and its refusal to treble the purchase price” but vacated the attorney fee portion of the judgment and remanded. Defendant argued on appeal that it complied with MCL 257.233a(1)’s disclosure requirements, and it denied “acting ‘with intent to defraud’ under MCL 257.233a(15).” As to the former, the court noted that under “MCL 257.233a(1) and (3), the required disclosures must be made in a written statement and presented to the transferee; oral disclosures are insufficient.” It further determined that even if a factual dispute existed over whether plaintiff’s father acted as her “agent, the written disclosures presented to him fall short of what MCL 257.233a requires. There is no evidence that he received a certificate of title disclosing the mileage discrepancy, and the other documents—the ‘Odometer Disclosure Statement’ and the ‘Application for Title and Registration Statement of Vehicle Sale’—likewise fail to satisfy the statute.” As to the intent issue, defendant offered “little to contest the trial court’s finding” and the court concluded the trial court did not clearly err. Both parties challenged the monetary award. The court found that “the $13,000 refund is not repayment for a loss but a form of restitution,” and because this “is not a form of damages, the trial court did not err in declining to treble that aspect of the recovery.” However, as to plaintiff’s additional expenses ($3,489.80), it held that “compensatory payments made alongside an order of restitution are ‘incidental damages’ and therefore subject to trebling under MCL 257.233a(15).” Finally, it found that the trial court reduced plaintiff’s “requested fees without adequate explanation[.]”
Breach of contract; Scope of services under a request for proposals (RFP); Contract interpretation; Contract modification; Promissory estoppel; Bodnar v St John Providence, Inc; Reasonable reliance; Unjust enrichment; Belle Isle Grill Corp v City of Detroit; Mediation clause
The court affirmed summary disposition for defendant-school district because the COVID-19 cleaning requirements at issue fell within the agreement’s scope, any supposed assurance of extra pay was not reasonably relied upon, and unjust enrichment was unavailable in light of the express contract. Plaintiff-cleaning contractor entered a fixed-fee custodial and maintenance agreement that incorporated the district’s RFP and a nonexclusive list of services, required plaintiff to provide all services necessary to meet the district’s regular needs, allowed the district to further describe or reasonably modify services, and contained an integration clause. During COVID-19, defendant asked for daily disinfection, fogging between student rotations, and related protocols. Plaintiff sought additional compensation based on emails and an alleged statement that it would be “taken care of.” The trial court granted defendant summary disposition of the breach of contract, promissory estoppel, and unjust enrichment claims. On appeal, the court rejected plaintiff’s argument that the COVID-19 tasks were outside the contract and that the parties modified their agreement to require extra payment. “[T]he COVID-19 services defendant requested unambiguously fell within the scope of the regular cleaning services as further described, or reasonably modified, by defendant, consistent with the terms of the Agreement. It necessarily follows that . . . there was no genuine issue of material fact that plaintiff was contractually obligated to provide the described COVID-19 cleaning services as part of defendant’s regular needs, and therefore that defendant did not breach the Agreement by refusing to provide additional compensation for those services.” The court next rejected plaintiff’s promissory-estoppel theory based on an alleged assurance by the superintendent. “Because a reasonable person would not expect compensation on the basis of a promise from one lacking the authority to provide it, there was no question of fact on the issue of whether plaintiff reasonably relied on the promise alleged to have been made by defendant.” The court also rejected plaintiff’s unjust-enrichment claim, finding the trial court “did not err by concluding that an express contract existed regarding the provision of COVID-19 services, such that an implied contract covering the same subject matter would not be proper.” Finally, the court rejected plaintiff’s argument that defendant breached the contract because it did not participate in mediation in good faith and thus should have been precluded from seeking summary disposition. “[E]ven if plaintiff had explained why it believed that defendant failed to mediate this dispute in good faith, despite the fact that defendant attended two mediations, its claim would be unsupported by the contractual language.”
Ineffective assistance of counsel; Trial counsel’s performance; People v Trakhtenberg; Reasonable probability of a different outcome; People v Hoag; Michigan Department of Corrections (MDOC)
Concluding that defendant was not denied the effective assistance of counsel, the court affirmed. He was convicted of CSC I. The victim was a six-year-old child. Defendant argued “that trial counsel provided ineffective assistance because he failed to fully investigate [his] paralysis, failed to use [his] lack of sensation below the nipple line to impeach the victim’s testimony, and failed to argue that he had no motive to carry out the assault.” The court held that trial “counsel’s decision not to cross examine the victim about the issue of biting, due to the risks . . ., was certainly reasonable. But, under these facts, where trial counsel knew that defendant was a paraplegic, we question whether he exercised reasonable professional judgment when deciding to forego investigation into defendant’s medical records doctors.” But the court did not need to “determine that issue because we find that there is no reasonable probability that the outcome would have been different but for trial counsel’s allegedly deficient performance.” Defendant’s ineffective assistance of counsel argument was “premised upon his assertion that he had no sensation below the nipple line, meaning that he could not have felt the sensation of being bitten anywhere below the waist, and likewise would not have been motivated to sexually assault anyone because he had no sensation in his genitals.” However, his claim was “directly contradicted by his own medical records from MDOC, which were admitted as evidence during the Ginther hearing in this case, and which indicate that he did, in fact, have sensation below the nipple line from 2012, until as recently as [4/22], i.e., more than three years after his [2/19] jury trial.” In sum, defendant could not show that there was “a reasonable probability that a different outcome would have occurred at trial, had his counsel made the argument about his having no feeling below the nipple line, because the 2012-2013 medical record evidence presented to the jury would have been replete with statements made by defendant rebutting his argument. Had the trial court granted [his] motion for new trial, the prosecution would have been able to present even more evidence rebutting defendant’s argument, including the statement he made to MDOC medical staff in 2022, when he said his swollen knee ‘really hurts,’ and when he reported his pain as being an eight on a scale of 10.” Thus, he failed to meet his burden under Hoag and Trakhtenberg, because he did not show “that, but for trial counsel’s allegedly deficient performance, a different result would have been reasonably probable.” As a result, the court could not “conclude that the trial court erred when it denied his motion for new trial.”
Sentencing; Scoring of OV 19; Interference with the administration of justice; MCL 777.49(c); People v Deweerd; Ineffective assistance of counsel for failing to object to the scoring of OV 19
The court held that OV 19 was properly scored at 10 points because defendant’s conduct went beyond a mere denial and amounted to interference with the administration of justice under Deweerd. As such, his ineffective assistance claim based on counsel’s failure to object to the scoring of OV 19 failed. He was convicted of second-degree murder and felony-firearm after telling a detective there had been a scuffle in the house and someone was shot, then fleeing the scene with the gun. The trial court sentenced him as a fourth-offense habitual offender to 50 to 90 years for the former and a consecutive 2-year term for the latter. In a prior appeal, the court affirmed the trial court’s scoring of OV 19 at 10 points, but the Supreme Court remanded for reconsideration in light of Deweerd. On remand, the court found that Deweerd did not bar scoring OV 19 at 10 points, finding he “did not merely maintain his innocence or refuse to confess, but he deliberately gave the detective misinformation that ‘divert[ed] suspicion onto others and away from him,’ . . . ‘actively redirect[ed] the investigation,’ and ‘attempt[ed] to or successfully prevent[ed] law enforcement from being able to arrest [him].’” In addition, he “fled the scene with the murder weapon, which ‘conceal[ed] evidence from law enforcement.’” The court also rejected his claim that counsel was ineffective for not objecting to OV 19’s scoring, noting that “[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.” Affirmed.
Sentencing; Proportionality; People v Posey; People v Steanhouse
The court held that because “defendant’s sentence fell within the recommended guidelines and the presumption of proportionality was not overcome, the trial court did not abuse its discretion.” He was convicted of CSC III and sentenced to 5 to 15 years. He argued that his minimum sentence, at the top of the guidelines, was “disproportionate to both the offense and the offender.” The court noted that “the trial court imposed a sentence within the recommended guidelines, and the record reflects [it] considered defendant’s nine prior misdemeanor convictions, the emotional impact on the victim, and the need to protect society. Given these considerations, the sentence was not disproportionate to the offense and did not constitute an abuse of discretion.” Defendant argued that it “abused its discretion by imposing a sentence at the top of the recommended guidelines range without adequately considering mitigating factors. While defendant cites Posey, and acknowledges that a within-guidelines sentence is presumed proportionate, he does not persuasively rebut that presumption.” He emphasized “that he had no prior felony convictions and no history of sexual assaults.” He further asserted “that the trial court failed to properly weigh his personal circumstances and the broader purposes of criminal punishment, such as rehabilitation, deterrence, reformation, protection of society, and punishment.” But the record reflected “that each of these mitigating factors was included in the Presentence Investigation Report, which the trial court reviewed prior to sentencing. The trial court acknowledged the PSIR and the party’s arguments on the record, indicating that it considered the relevant mitigating factors before selecting a sentence within the guidelines. Thus, defendant failed to meet his burden of showing that the sentence was disproportionate under the specific circumstances. Under Steanhouse, a sentence must be reasonable and proportionate to both the offense and the offender. The trial court imposed a sentence that was within the guidelines and provided a clear, individualized rationale for doing so. Its emphasis on defendant’s repeated criminal behavior, lack of remorse, and the emotional harm suffered by the victim reflects appropriate sentencing considerations. [Its] comment that defendant ‘needed to be taken off the street’ was grounded in legitimate public safety concerns and supported by the record, and was not indicative of personal bias or vindictiveness.” Affirmed.
Motion for an evidentiary hearing to correct alleged errors in the transcripts; Waived ineffective assistance of counsel issue; Alleged transcript errors; Motion for disqualification; Appellate counsel request
The court held that the “trial court did not err by declining to rule on” defendant’s motion for an evidentiary hearing to correct alleged errors in the transcripts as the motion was not properly before it. Also, he did not make “a colorable claim that errors in the transcripts adversely affected his rights.” Finally, it found that under “any scenario, defendant’s motion to disqualify the trial judge” was untimely, and the trial court correctly denied it on that basis. He was convicted of possession of meth, second or subsequent offense. Defendant contended, among other things, “that the trial court erred by failing to grant his motion for an evidentiary hearing to correct alleged errors in the transcripts.” The court noted that the “trial court did not rule on defendant’s motion to correct the record, and the circuit court clerk returned defendant’s pleadings as improperly filed, because defendant had retained counsel at the time, and MCR 1.109(E)(2) provides that ‘[e]very document of a party represented by an attorney shall be signed by at least one attorney of record.’” He failed to show “any error in the clerk’s determination that his motion should have been returned without filing. In addition to the requirement of MCR 1.109(E)(2), caselaw makes clear that ‘a defendant has a constitutional entitlement to represent himself or to be represented by counsel—but not both.’” The court noted that no “right to ‘hybrid’ representation exists, . . . and ‘the right of self-representation and the right to counsel are mutually exclusive[.]’” It further noted that his attorney, L, continued to represent him “through sentencing, and defendant was not permitted to simultaneously act as his own counsel by filing and arguing his own motions during [L’s] representation.” As to the alleged transcript errors, the court held that his allegation was unsupported and that he could not “show that the failure to raise the issue deprived him of any postconviction rights.” Affirmed.
Divorce; Laffin v Laffin; Spousal support termination on retirement under a consent judgment; Burkhardt v Baile
The court held that plaintiff-ex-husband did not “retire” under the consent judgment until he formally elected retirement with his employer, so his spousal-support obligation continued. The parties divorced in 2007 by consent judgment requiring $1,000/month in spousal support until certain events, including plaintiff’s retirement. In 2020, he stopped working due to medical disability and went on no-work medical leave, but did not submit retirement paperwork until 3/24. The trial court enforced the support provision and ordered $38,000 in arrears. On appeal, the court rejected plaintiff’s argument that ceasing work on medical leave meant he was retired within the judgment’s meaning. “Reading both the alimony and pension/QDRO clauses together, the parties’ intent when entering into the contract was clear: In order for plaintiff to have retired for purposes of the consent judgment, he had to formally elect to retire from” his job. The court further explained that “‘retirement’ under the agreement was not tied to plaintiff’s subjective belief as to his employment status, but rather to the completion of specific steps taken with plaintiff’s current employer.” It emphasized courts “must enforce the agreement according to its plain and unambiguous language as written, and may not rewrite the agreement under the guise of interpretation.” Affirmed.
No-Fault Act PIP benefits; Sale or assignment of right to recover payment to a third party; Revocation of assignments of rights to the medical providers; One-year-back rule; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; Wallace v Suburban Mobility Auth for Reg’l Transp
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 81388 in the 4/16/24 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decisions in C-Spine Orthopedics and Wallace.
Action by a healthcare provider to collect no-fault benefits; Real party in interest; MCR 2.201(B); Standing; Effect of the provider’s assigning its rights to the relevant accounts receivable & later obtaining counterassignments returning those rights; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; Wallace v Suburban Mobility Auth for Reg’l Transp
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 80067 in the 9/1/23 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decisions in C-Spine Orthopedics and Wallace.
Healthcare provider’s claims under the No-Fault Act; MCL 500.3112; The real-party-in-interest rule; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; Wallace v Suburban Mobility Auth for Reg’l Transp
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 81154 in the 3/11/24 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decisions in C-Spine Orthopedics and Wallace.
The No-Fault Act (NFA); Healthcare provider’s claims for personal protection insurance (PIP) benefits; Appellate jurisdiction; Timeliness of a claim of appeal; Direct cause of action under MCL 500.3112; Centria Home Rehab, LLC v Allstate Ins Co (Centria I & II); Admission of exhibits; Hearsay; MRE 803(4) exception; Alleged violation of MRE 408 & 409; Introduction of the partial payments or payments of PIP benefits; Chouman v Home Owners Ins Co; Motion for attorney fees under MCL 500.3148(1); Beach v State Farm Mut Auto Ins Co
In these consolidated appeals, the court held in defendant-insurer’s appeal that plaintiff-home healthcare provider had standing to seek to recover unpaid charges from defendant “in a direct cause of action under the version of MCL 500.3112 in effect following the 2019” NFA amendments. It also rejected defendant’s argument that the trial court erred in admitting several of plaintiff’s exhibits. Finally, in plaintiff’s appeal, the court held that the trial court did not err “in denying its request for attorney fees under MCL 500.3148(1).” Plaintiff provided attendant care and nursing services to defendant’s insured (L) after a car crash. As an initial matter, the court found no merit in defendant’s jurisdictional challenge based on the timeliness of plaintiff’s claim of appeal. As to defendant’s argument “that plaintiff did not have standing to pursue a direct cause of action against” it to recover unpaid charges, under Centria I, the Michigan Supreme Court specifically rejected this “argument shortly after briefing completed in this case. In lieu of granting appeal, [it] reversed Centria I and held that ‘[t]he 2019 amendment to MCL 500.3112 applied “to products, services, or accommodations provided after the effective date of this amendatory act.”’” Turning to defendant’s evidentiary challenges, citing Chouman, it claimed that MRE 408 and “409 prohibited the introduction of the partial payments or payments of PIP benefits.” But the court determined that “Chouman does not stand as authority for the blanket inadmissibility of partial PIP benefit payments.” In addition, the court noted that the “evidence of defendant’s partial payments was introduced to show only that defendant had not made full payment, rather than to establish liability.” It also raised a hearsay challenge to an RN’s note documenting a doctor’s verbal order as to L’s treatment. But the court concluded the trial court’s finding that the RN’s “note was admitted into evidence to establish the physician-authority for her actions found support in the record, and the [trial] court did not err in concluding that the record did not amount to inadmissible hearsay.” As to plaintiff’s appeal, the court found that “the trial court did not commit reversible error in determining that defendant rebutted the presumption that its decision to decline to pay the full charged amount for nursing and attendant care services was unreasonable.” Affirmed in all respects.
Action for first-party no-fault personal insurance protection (PIP) benefits; Real party in interest; Assignments of the right to pursue PIP benefits; Whether revoking the assignments allowed plaintiff to maintain a PIP claim she filed pre-revocation; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; Wallace v Suburban Mobility Auth for Reg’l Transp
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 79272 in the 4/18/23 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decisions in C-Spine Orthopedics and Wallace.