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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Sufficiency of the evidence; People v. Roper; People v. Nowack; People v. Kanaan; CSC IV; MCL 750.520e; “Physically helpless”; MCL 750.520a(m); People v. Unger; Consensual sexual contact; People v. Waltonen
Finding that there was sufficient evidence to allow a jury to find beyond a reasonable doubt the victim was physically helpless at the time of sexual contact, the court affirmed defendant’s CSC IV conviction. Having testified to sexual contact with the victim, his sole element at issue was whether she was physically helpless at the time. Defendant contended that the only evidence supporting such a conclusion “was her testimony that she drank so much that she had no memory of the incident the following day, and that the victim’s next-day memory loss does nothing to provide that she was incapacitated the night before.” However, he erred “by ignoring evidence from which rational triers of fact might conclude beyond a reasonable doubt that the victim was physically helpless at the time of the sexual contact, including evidence of the victim’s inability to act or communicate on the night of the incident and defendant’s statement to” Deputy P that she had passed out drunk. The court held that “a jury could reasonably conclude that the victim was physically helpless when taken to bed, that her condition was not simply the result of falling asleep, that she remained in this state of physical helplessness for the next several hours, and that defendant knew this when he initiated sexual contact. While the victim’s memory loss may not prove that the victim was unconscious, asleep, or physically unable to communicate at the time of sexual contact, a rational jury could have considered the victim’s blackout as further evidence of her degree of inebriation.” In addition, “[a] jury may infer consciousness of guilt from evidence of lying or deception.” She noticed “several bruises and bites on her body after the incident that she did not remember having before the incident and that she reported and showed to the investigating officer. When questioned about this by the investigating officer, defendant mentioned responsibility only for the marks on the victim’s neck.” Although P “acknowledged that the bruising on the victim’s breasts could have resulted from efforts to move her upstairs and put her into her bed, the marks on the victim’s shoulder and thigh went unexplained.” The court believed “it possible that a reasonable jury could have inferred that defendant was being evasive or untruthful when he admitted responsibility for only some of the marks discovered by the victim and that the unexplained bruising resulted from defendant’s manipulation of the victim’s unresponsive body during sexual conduct.”
Custody; Consideration of up-to-date information before ordering a change of the child’s established custodial environment (ECE); Fletcher v. Fletcher; Ireland v. Smith; Jurisdiction; MCR 7.203(A)(1); MCR 7.202(6)(a)(iii); MCR 3.993(A); MCR 7.204(A)(1)(b)
The court held that the trial court erred by failing to consider up-to-date information before ordering the change of the child’s ECE. Thus, it vacated the order granting defendant-father sole legal and physical custody of the child, and remanded. The record reflected that “the trial court made its decision without soliciting up-to-date information from the parties or holding an evidentiary hearing to ascertain whether additional information existed that the trial court should have considered before making its child custody decision.” Pursuant to Fletcher and Ireland, “on remand the trial court should have considered all of the statutory factors and conducted whatever hearings or other proceedings necessary to fully inform itself so that it could make an accurate decision concerning the minor child’s custody arrangement to ensure that its decision served the child’s best interests.” It erred by failing to seek “up-to-date information on remand and considering such information before making its child custody decision. The trial court should not have considered and relied only on the information available to it when it made its original determination.” The record reflected that plaintiff-mother “sought to further inform the trial court of up-to-date information but the trial court declined to consider it and revisit its decision.” She asserted that it “had an obligation to conduct an evidentiary hearing to obtain up-to date information.” The court was not convinced that Fletcher and Ireland dictated “that a trial court must do so. A trial court has discretion to determine how it will inform itself of up-to date information, but it must so inform itself before making a final child custody decision on remand.” The court held that the trial court failed to make a finding as to the existence of a ECE “or the best-interest factors based upon up-to-date information presented to" it, and the record lacked sufficient evidence properly admitted for the court to make its own determination of the issue by de novo review.
Res judicata; Adair v. Michigan; Allen v. McCurry; Pierson Sand & Gravel, Inc. v. Keeler Brass Co.; Dart v. Dart; Requirement that prior action was decided on the merits; Baraga Cnty. v. State Tax Comm’n; Limbach v. Oakland Cnty. Bd. of Cnty. Rd. Comm’rs; Same parties or their privies; Abandoned issue; Cheesman v. Williams; Whether the matter in the second case was, or could have been, resolved in the first; The “transactional” test; Washington v. Sinai Hosp. of Greater Detroit
Holding that the trial court did not err by granting summary disposition to defendants- Kristopher and Natalie Tenharmsel (the Tenharmsels) and Holland on the basis of res judicata, the court affirmed. Plaintiffs-Kings own a group of storage units and this case arose out of an explosion that occurred at one of the units. In an earlier action, nonparty-Fritz filed a complaint against the Kings, Kristopher Tenharmsel, and Holland for injuries he sustained from the explosion (the Fritz case). “The Fritz case eventually resulted in stipulated dismissals with prejudice for all parties; those dismissals form the basis for the” res judicata issue on appeal. As to the first requirement of res judicata, the Kings argued that “there was not an adjudication on the merits in the Fritz case because the trial court did not rule on any motions or make any findings before that case was dismissed.” But Limbach “clearly establishes that a voluntary dismissal with prejudice is an adjudication on the merits for res judicata purposes. Thus, the trial court was not required to rule on any motions or to make any findings, or in fact take any type of action for” res judicata to apply here. “The claims in the Fritz case were voluntarily dismissed with prejudice. As such, and without more, they acted as adjudications on the merits for res judicata purposes.” As to the second requirement, the Kings failed to make any argument as to the party or privity requirement of res judicata, and their overall argument was indecipherable. As such, the issue was abandoned. As to the third requirement, their claims “could have been decided in the Fritz lawsuit, and” thus, were barred by res judicata. The explosion that gave rise to the cause of action in the Fritz case was identical to the one relied on as a basis for this case. The facts that support both claims were “related in time, space, and origin because they are the results of the same occurrence.” Both claims were “rooted in the facts surrounding the refilling of the propane tank, the resulting explosion, and the associated damages.” Thus, the Kings’ claims could have been decided in the Fritz case. All three requirements for res judicata were met and the trial court correctly granted summary disposition to Holland and the Tenharmsels. Finally, the court also noted another facet of the Kings’ argument: that res judicata should not apply because they were not required to file a cross claim in the Fritz case. This argument lacked support. While they contended that “not pursuing the cross claims in the Fritz case promoted efficiency and limited confusion, allowing their separate action to proceed would have the opposite result. By bringing claims that could have been brought as cross claims in the Fritz case as a separate action, the Kings created an unnecessary second case.” Their claims “could, with reasonable diligence, have been brought in the first” case.
Wrongful death action; Governmental immunity under the Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(1); Mack v. City of Detroit; Milot v. Department of Transp.; Maskery v. Board of Regents of Univ. of MI; Fairley v. Department of Corrs.; The proprietary function exception; MCL 691.1413; Coleman v. Kootsillas; Hyde v. University of MI Bd. of Regents; Herman v. City of Detroit; Goodhue v. Department of Transp.; Transou v. City of Pontiac; Ward v. Michigan State Univ. (On Remand); “Or”; Blumenthal v. Berkshire Life Ins. Co.; Heckathorn v. Heckathorn; Michigan Pub. Serv. Co. v. City of Cheboygan; Distinguishing taxes & fees; Dawson v. Secretary of State; City of Dearborn v. Michigan State Tax Comm’n; Bolt v. City of Lansing; Merrelli v. City of St. Clair Shores; Vernor v. Secretary of State; Krohn v. Home-Owners Ins. Co.; Effect of regulation of rates; MCL 460.6a(1); MCL 460.11; Davis v. City of Detroit; Burden of proof; Dextrom v. Wexford Cnty.
Holding that defendant-municipal electric company was entitled to governmental immunity because there was no question of fact that the proprietary function exception to governmental immunity applied, the court affirmed the trial court’s order granting it summary disposition of plaintiffs’ wrongful death claim. Plaintiffs sued defendant for the wrongful death of the decedent, who was electrocuted while trimming a tree. On appeal, the court first found that defendant’s primary purpose is not pecuniary profit. In addition, even if the converse was true, it would “nevertheless find that defendant entitled to governmental immunity because the activity at issue was ‘normally supported by taxes and fees.’” The court rejected plaintiffs’ arguments that “fees” must be compulsory, and its claim that the geographic scope of defendant’s activity is determinative, noting it is not “dispositive for purposes of the proprietary function exception whether a particular governmental entity’s specific activity is actually supported, or even supportable, by taxes or fees.” Finally, the court rejected their contention that defendant was obligated to provide evidence comparing its fees and profitability to those of similar communities, noting that the term “‘governmental function’ is to be broadly construed, and the statutory exceptions are to be narrowly construed. . . . Electrical utility services are commonly understood to be supported by fees, and intensive regulation of those fees by statute and the Michigan Public Service Commission indicate that provision of electrical utility services is not a proprietary activity.”