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Attorneys (1) Full Text Opinion This summary also appears under Courts e-Journal #: 73977 Case: In re Contempt of Somberg Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Ronayne Krause, and O’Brien Issues: Contempt for violating Michigan Supreme Court Administrative Order No. 1989-1 by recording a court proceeding without the judge’s permission; A court’s power to hold a party in contempt; Const. 1963, art. 6, § 1; MCL 600.1701 et seq.; In re Contempt of Auto Club Ins. Ass’n; In re Contempt of United Stationers Supply Co.; Principle that courts have the power to hold an attorney in contempt for a willful violation of a lawful court order; MCL 600.1701(c); Principle that the contempt must be willful; People v. Matish; Whether the contempt “altered the status quo so that it cannot be restored or the relief intended has become impossible”; In re Contempt of Rapanos; Harvey v. Lewis; People v. MacLean; City of Pontiac v. Grimaldi; In re Contempt of Dorsey; Credibility; In re Contempt of Henry Summary: The court held that appellant-attorney was properly held in contempt of court for filming a court proceeding without the judge’s permission. A district judge held him in contempt for recording a court proceeding without permission. A hearing was held before the chief district judge, who found appellant in contempt and fined him $100. The circuit court affirmed. On appeal, the court rejected appellant’s argument that the district judge abused his discretion by holding him in contempt. “There is no dispute that an associate of appellant, at appellant’s direction, filmed the proceedings . . . without first obtaining” the judge’s permission. As such, he violated AO 1989-1, and could be held in contempt. In so finding, the court rejected appellant’s claim that he could not be held in contempt because his violation was not willful. “In light of (1) the fact that appellant is an attorney and as such is generally familiar with the rules governing the courts and (2) [the chief district judge’s] determination that respondent was not credible when he said that he did not knowingly violate AO 1989-1,” the chief judge did not err by “finding beyond a reasonable doubt that appellant willfully violated AO 1989-1 . . . .” It also rejected his contention that he could not be held in contempt because his conduct did not alter the status quo of the court room. “[A]ssuming that altering the status quo so that it cannot be restored is an ‘element’ of criminal contempt that must be proven to hold an individual in contempt, there was competent evidence to support a finding of this element beyond a reasonable doubt.” Because appellant “had already filmed the proceedings without permission, there was no way to restore the status quo. That is, appellant’s conduct altered the status quo so that it could not be restored. Thus, criminal contempt was appropriate . . . .” Finally, the court rejected his argument that the circuit court erred in “dismissing his appeal as untimely. The circuit court never stated that it was dismissing appellant’s appeal for being untimely, so appellant’s argument appears factually incorrect.” In addition, any error it made in dismissing his appeal was harmless in light of the conclusion that the judge did not abuse his discretion by holding him in contempt. Affirmed. Full Text Opinion

Contracts (1) Full Text Opinion This summary also appears under Family Law e-Journal #: 73987 Case: Elam v. Elam Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Murray, Cavanagh, and Cameron Issues: Post-divorce proceeding; Dispute over the calculation of interest on a settlement agreement; Norman v. Norman; Laches; Attorney Gen. v. PowerPick Club; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Laffin v. Laffin; Universal Underwriters Ins. Co. v. Kneeland; Brucker v. McKinlay Transp., Inc. Summary: Holding that the trial court erred by denying plaintiff-ex-wife’s requested calculation of interest payments, the court vacated the ruling and remanded. The parties’ judgment of divorce contained a property settlement agreement, under which defendant-ex-husband was to pay plaintiff a certain sum of money over 12 years. After the final payment came due, she argued that he owed over $50,000 in accrued amortized interest. Defendant countered that a simple interest rate should apply and that he only owed $6,562.50 in interest. After an evidentiary hearing, the trial court applied defendant’s calculation of interest. On appeal, the court agreed with plaintiff that the trial court erred by sua sponte applying the defense of laches. “[B]ecause defendant never argued before the trial court that laches applied, [he] never established that he was prejudiced by plaintiff’s failure to ensure that [he] signed a mortgage note.” Rather, he “essentially argued that plaintiff’s calculation of interest was not consistent with the plain language of the agreement and that the trial court should therefore rely on defendant’s interest calculation.” It also agreed with plaintiff that the trial court erred by holding that it was required to apply defendant’s formula for calculating simple interest. “[C]ontrary to the trial court’s finding, both experts did not testify that it was ‘impossible’ to calculate the interest owed by defendant because a mortgage note was not executed.” Rather, plaintiff’s expert testified to the contrary. “Although the trial court as the finder of fact was permitted to conclude that [this] testimony was not credible or that it was proper to afford more weight to [defendant’s expert’s] testimony, there is no indication that” it did so. Rather, in its written opinion, it “found ‘both witnesses [to be] generally credible and unbiased.’” As such, the trial court “erred by finding that both experts concluded that it was ‘impossible’ to calculate interest without a mortgage note.” Finally, the court agreed with plaintiff that, even if a simple interest rate applied, the trial court erred by finding that she was only entitled to $6,562.50 in interest. “Because the record establishe[d] that the manner in which defendant calculated simple interest is not the proper way to calculate simple interest,” the trial court erred. Full Text Opinion

Courts (1) Full Text Opinion This summary also appears under Attorneys e-Journal #: 73977 Case: In re Contempt of Somberg Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Ronayne Krause, and O’Brien Issues: Contempt for violating Michigan Supreme Court Administrative Order No. 1989-1 by recording a court proceeding without the judge’s permission; A court’s power to hold a party in contempt; Const. 1963, art. 6, § 1; MCL 600.1701 et seq.; In re Contempt of Auto Club Ins. Ass’n; In re Contempt of United Stationers Supply Co.; Principle that courts have the power to hold an attorney in contempt for a willful violation of a lawful court order; MCL 600.1701(c); Principle that the contempt must be willful; People v. Matish; Whether the contempt “altered the status quo so that it cannot be restored or the relief intended has become impossible”; In re Contempt of Rapanos; Harvey v. Lewis; People v. MacLean; City of Pontiac v. Grimaldi; In re Contempt of Dorsey; Credibility; In re Contempt of Henry Summary: The court held that appellant-attorney was properly held in contempt of court for filming a court proceeding without the judge’s permission. A district judge held him in contempt for recording a court proceeding without permission. A hearing was held before the chief district judge, who found appellant in contempt and fined him $100. The circuit court affirmed. On appeal, the court rejected appellant’s argument that the district judge abused his discretion by holding him in contempt. “There is no dispute that an associate of appellant, at appellant’s direction, filmed the proceedings . . . without first obtaining” the judge’s permission. As such, he violated AO 1989-1, and could be held in contempt. In so finding, the court rejected appellant’s claim that he could not be held in contempt because his violation was not willful. “In light of (1) the fact that appellant is an attorney and as such is generally familiar with the rules governing the courts and (2) [the chief district judge’s] determination that respondent was not credible when he said that he did not knowingly violate AO 1989-1,” the chief judge did not err by “finding beyond a reasonable doubt that appellant willfully violated AO 1989-1 . . . .” It also rejected his contention that he could not be held in contempt because his conduct did not alter the status quo of the court room. “[A]ssuming that altering the status quo so that it cannot be restored is an ‘element’ of criminal contempt that must be proven to hold an individual in contempt, there was competent evidence to support a finding of this element beyond a reasonable doubt.” Because appellant “had already filmed the proceedings without permission, there was no way to restore the status quo. That is, appellant’s conduct altered the status quo so that it could not be restored. Thus, criminal contempt was appropriate . . . .” Finally, the court rejected his argument that the circuit court erred in “dismissing his appeal as untimely. The circuit court never stated that it was dismissing appellant’s appeal for being untimely, so appellant’s argument appears factually incorrect.” In addition, any error it made in dismissing his appeal was harmless in light of the conclusion that the judge did not abuse his discretion by holding him in contempt. Affirmed. Full Text Opinion

Criminal Law (4) Full Text Opinion e-Journal #: 74032 Case: People v. Davis Court: Michigan Supreme Court ( Order ) Judges: McCormack, Viviano, Markman, Zahra, Bernstein, Clement, and Cavanagh Issues: Motion for pretrial release; MCL 765.5; MCR 6.106(B)(1) & (H)(1); Whether a statute prevails over a conflicting court rule; People v. Watkins; McDougall v. Schanz Summary: In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals order (which had vacated the trial court’s order granting defendant bond), and remanded to the Court of Appeals for consideration as on reconsideration granted. The court held that the “Court of Appeals erred in its analysis of the trial court’s order . . . .” The court noted that the “trial court acknowledged MCL 765.5, which provides that ‘[n]o person charged with treason or murder shall be admitted to bail if the proof of his guilt is evident or the presumption great.’” However, it declined to apply the statute based on its determination “that MCR 6.106(B)(1)(a) gave it the discretion to grant bond regardless of the strength of the prosecution’s case. Consequently, it did not determine whether ‘the proof of his guilt is evident or the presumption great.’ In the trial court’s view, the statute conflicted with the court rule, and the court rule prevailed. This was the pivotal issue on appeal, but the Court of Appeals failed to address it. Instead, the Court of Appeals usurped the trial court’s role and made its own determination that ‘the proof of his guilt is evident or the presumption great.’” The court directed the Court of Appeals to address whether the statute conflicts with the court rule, and if so, whether it prevails over the court rule. It also directed the Court of Appeals to expedite its decision in this case. If it finds that MCL 765.5 prevails, “it shall remand the case to the trial court to assess whether ‘the proof of [the defendant’s] guilt is evident or the presumption great’ for purposes of” the statute. If it find that MCR 6.106(B)(1) prevails, “it shall address whether the trial court abused its discretion by granting the defendant’s request for pretrial release.” Full Text Opinion Full Text Opinion e-Journal #: 73982 Case: People v. Simmons Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Murray, Cavanagh, and Cameron Issues: Sentencing; Amendment of the judgment of sentence (JOS); Principle that a sentence may be considered invalid if the trial court imposed it under a misconception of law; People v. Whalen; People v. Comer; Principle that a court speaks through its written orders & judgments, not through its oral pronouncements; Tomasik v. State; Clerical correction versus a substantive amendment; MCR 6.435(A) & (B); Judicial assignment; MCR 8.111(B) & (C); Schell v. Baker Furniture Co. Summary: While the court concluded that the chief judge’s clarifying amendment was a clerical correction and not a substantive amendment, it vacated the amended JOS because he “did not properly reassign the case to himself” and provide defendant with notice. Defendant pled guilty to CSC III and was sentenced to 5 to 15 years. The chief judge sua sponte entered the amended JOS several years later, after the presiding judge retired. Defendant’s motion to vacate the amended JOS was denied, and the court previously denied his application for appeal, but the Supreme Court remanded for consideration as on leave granted. He first argued that the sentence imposed in the original JOS was invalid and thus, the chief judge’s “amendment impermissibly modified an invalid sentence without complying with the requirements of MCR 6.435(B).” The court disagreed, concluding that any erroneous statements by the presiding judge did “not render the sentence invalid because unlike in Comer, the [JOS] correctly states that defendant was sentenced to serve an indeterminate term of 5 to 15 years’ imprisonment. It is well established that ‘a court speaks through its written orders and judgments, not through its oral pronouncements.’” The presiding judge “had no authority to order that defendant be discharged from prison after his minimum sentence was served—although he could make such a recommendation as he did under” ¶ 12 of the JOS—because his maximum sentence fell within the parole board’s jurisdiction. As the original sentence was valid, the amended JOS amending ¶ 12 “was a clerical correction, rather than a substantive amendment.” But the court vacated the amended JOS because it agreed with defendant that the chief judge “deprived him of due process by presiding over defendant’s case because he did not properly reassign” it to himself and failed to give him notice. The presiding judge’s retirement was good cause that he could not undertake the case, but “until it was reassigned by a written order, it remained assigned to” him, and in general, “only a judge assigned to a case in accordance with the court rules can enter dispositive orders” in it. Thus, the chief judge should not have entered the amended JOS. Remanded “for a proper judicial assignment for the purpose of correcting the” JOS. Full Text Opinion Full Text Opinion e-Journal #: 73983 Case: People v. Wheeler Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Murray, Cavanagh, and Cameron Issues: Other acts evidence; MRE 404(b)(1); People v. Crawford; People v. VanderVliet; Huddleston v. United States; People v. Mardlin; Relevance; MRE 401; People v. Sabin (After Remand); Unfair prejudice; MRE 403; People v. Bass; People v. Jackson; Whether defendant had a common scheme, plan, or system; People v. Hine; Harmless error; People v. Lukity; Joinder; MCR 6.120(B)(1) & (2); People v. Williams; Sentencing; Scoring of PRV 5; MCL 777.55; Whether resentencing was required; People v. Francisco; Remand for the ministerial task of correcting sentencing documentation; People v. Harmon; Ineffective assistance of counsel; People v. Nix; Failure to raise a futile objection; People v. Ericksen Summary: Holding that the trial court did not err by admitting other acts evidence or by joining three cases, and that defendant was not denied the effective assistance of counsel, the court affirmed his convictions and sentences, but remanded for the ministerial task of correcting his sentencing documentation. He was convicted of three counts of breaking and entering with intent to commit larceny. The trial court sentenced him as a fourth-offense habitual offender to 6 to 30 years for each conviction. On appeal, the court rejected his argument that the trial court denied him his right to a fair trial by admitting other acts evidence. It found that “the prior incidents were sufficiently similar to support an inference that [he] had a common scheme, plan, or system when he committed the crimes in this case.” In addition, the evidence was not unfairly prejudicial, and any error was harmless. The court also rejected his claim that the trial court denied him his right to due process by joining three cases for a single trial. It noted that “there was little risk of confusion because the three charges, despite their similarities, were presented distinctly and the facts regarding the three incidents were not complex.” In addition, “the trial court’s instructions addressed any prejudice that joinder may have caused,” joinder did not infringe on his right to a fair trial, and any error was harmless. The court further rejected his contention that he was denied the effective assistance of counsel. Finally, it found that although the trial court erred in scoring PRV 5, the error did not require resentencing. Full Text Opinion Full Text Opinion e-Journal #: 73986 Case: People v. Williams Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Swartzle, Jansen, and Borrello Issues: Sufficiency of the evidence for second-degree murder & armed robbery convictions; MCL 750.317; People v. Smith; Aiding & abetting; People v. Robinson; MCL 767.39; People v. Bulls; People v. Lawton; People v. Carines; MCL 750.529; People v. Chambers; “Attempt”; People v. Williams Summary: Holding that there was sufficient evidence to support defendant’s second-degree murder and armed robbery convictions under an aiding and abetting theory, the court affirmed. He argued “he did not perform acts or give encouragement that assisted” the gunman (N) committing the armed robbery. But the court found that the record showed otherwise. When defendant received a text message about picking up his sister at a home, N indicated his intent to harm the homeowner (D). He asked defendant if D “had any money, and defendant responded in the affirmative. With a gun in hand, [N] told defendant that he planned to rob [D]. Knowing of [N’s] plan and the fact that he was armed with a gun, defendant” allowed N to ride with him in his girlfriend’s vehicle, and he stood next to N while he rang D’s doorbell. When N shot defendant’s uncle (Y), “defendant yelled, ‘No, that’s my uncle!’ From this utterance, the jury could have concluded that defendant knew that a person other than [Y] was the intended target of the robbery and that the wrong person had been shot. ‘Aiding and abetting describes all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the commission of a crime.’” In addition, a person’s death is “the natural and probable consequence of committing an armed robbery with a loaded gun.” As to the armed robbery conviction, defendant contended that there was no armed robbery “because no one was robbed and nothing was taken. Contrary to defendant’s argument, a completed larceny is not required to support a conviction of armed robbery. ‘[W]hen an intended robber is in possession of, appears to be in possession of, or represents that he is in possession of a dangerous weapon as stated in MCL 750.529, that person may be guilty of armed robbery even if the larcenous taking is not completed.’” Full Text Opinion

Family Law (1) Full Text Opinion This summary also appears under Contracts e-Journal #: 73987 Case: Elam v. Elam Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Murray, Cavanagh, and Cameron Issues: Post-divorce proceeding; Dispute over the calculation of interest on a settlement agreement; Norman v. Norman; Laches; Attorney Gen. v. PowerPick Club; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Laffin v. Laffin; Universal Underwriters Ins. Co. v. Kneeland; Brucker v. McKinlay Transp., Inc. Summary: Holding that the trial court erred by denying plaintiff-ex-wife’s requested calculation of interest payments, the court vacated the ruling and remanded. The parties’ judgment of divorce contained a property settlement agreement, under which defendant-ex-husband was to pay plaintiff a certain sum of money over 12 years. After the final payment came due, she argued that he owed over $50,000 in accrued amortized interest. Defendant countered that a simple interest rate should apply and that he only owed $6,562.50 in interest. After an evidentiary hearing, the trial court applied defendant’s calculation of interest. On appeal, the court agreed with plaintiff that the trial court erred by sua sponte applying the defense of laches. “[B]ecause defendant never argued before the trial court that laches applied, [he] never established that he was prejudiced by plaintiff’s failure to ensure that [he] signed a mortgage note.” Rather, he “essentially argued that plaintiff’s calculation of interest was not consistent with the plain language of the agreement and that the trial court should therefore rely on defendant’s interest calculation.” It also agreed with plaintiff that the trial court erred by holding that it was required to apply defendant’s formula for calculating simple interest. “[C]ontrary to the trial court’s finding, both experts did not testify that it was ‘impossible’ to calculate the interest owed by defendant because a mortgage note was not executed.” Rather, plaintiff’s expert testified to the contrary. “Although the trial court as the finder of fact was permitted to conclude that [this] testimony was not credible or that it was proper to afford more weight to [defendant’s expert’s] testimony, there is no indication that” it did so. Rather, in its written opinion, it “found ‘both witnesses [to be] generally credible and unbiased.’” As such, the trial court “erred by finding that both experts concluded that it was ‘impossible’ to calculate interest without a mortgage note.” Finally, the court agreed with plaintiff that, even if a simple interest rate applied, the trial court erred by finding that she was only entitled to $6,562.50 in interest. “Because the record establishe[d] that the manner in which defendant calculated simple interest is not the proper way to calculate simple interest,” the trial court erred. Full Text Opinion

Insurance (1) Full Text Opinion e-Journal #: 73980 Case: Bahnam v. Farm Bureau Gen. Ins. Co. of MI Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Swartzle, Jansen, and Borrello Issues: Action for personal injury protection (PIP) benefits; Reliance on a policy exclusionary clause as an affirmative defense; Shelton v. Auto-Owners Ins. Co.; Voiding a policy based on fraud; Bahri v. IDS Prop. Cas. Ins. Co.; Effect of false statements an insured makes during first-party litigation; Haydaw v. Farm Bureau Ins. Co.; Fashho v. Liberty Mut. Ins. Co.; Meemic v. Fortson Summary: In light of Haydaw and Meemic, the court held that the trial court erred in granting defendant-insurer (Farm Bureau) summary disposition under the policy’s fraud exclusion based on plaintiff-insured’s deposition testimony that was inconsistent with video of his post-accident activities. Thus, it vacated the trial court’s order and remanded. The trial court relied entirely on plaintiff’s testimony, which it “found to be false because the testimony contradicted the contents of surveillance videos showing plaintiff’s post-accident conduct. The facts of this case fit squarely within Haydaw[.]” In an issue on which the trial court did not rule, Farm Bureau also relied on the monthly statements plaintiff submitted “for household services as grounds for invoking the fraud provision in its contract.” It asserted that he claimed he was entitled to reimbursement for such services, even though the surveillance video showed him “performing those types of services for himself.” The court noted that each of those “videos was taken after plaintiff filed the complaint in this case. Thus,” the first-breach rule was implicated. If Farm Bureau’s initial denial of PIP benefits “was unjustified, it constituted a substantial breach that relieved plaintiff of his contractual duties under the no-fault policy.” In addition, the court found that Meemic had bearing here, as this case also involved “‘a contractual fraud defense to a claim for coverage mandated by’” the No-Fault Act. Three medical providers intervened here as plaintiffs and sought payment for “services rendered to plaintiff for injuries he sustained in the accident.” Similar to the situation in Meemic, Farm Bureau did “not assert a statutory defense to the payment of PIP benefits to the” medical providers, but asserted a contractual defense based on the language of the policy it sold to plaintiff. “And, as in Meemic, ‘the fraudulent activity at issue here did not relate to the inception of the contract’ of insurance, and Farm Bureau ‘could not possibly have relied on’ any of the fraudulent representations made by plaintiff in 2018 when it agreed to insure plaintiff ‘because, at the time, [he] had not yet made any of the alleged misrepresentations.’” Thus, under Meemic, Farm Bureau’s attempt to void its insurance with him based on its anti-fraud provision failed. Full Text Opinion

Real Property (1) Full Text Opinion e-Journal #: 73985 Case: McLaurin v. Miles Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Ronayne Krause, and O’Brien Issues: Landlord-tenant dispute alleging a violation of the anti-lockout statute; MCL 600.2918(2) & (3); Good-faith exception; MCL 600.2918(3)(c); Due process; Cunningham v. Wayne Cnty. Summary: The court held that the circuit court did not err by dismissing plaintiff-tenant’s case because defendant-landlord had a good-faith belief that plaintiff had moved out when he changed the locks. It also held that her due process rights were not violated. Defendant sought to evict plaintiff from her rental home. The district court entered an order permitting defendant to apply for an order of eviction to evict plaintiff if she had not moved out by a certain date. Plaintiff moved her belongings out and defendant had the locks changed. Plaintiff then sued defendant under the anti-lockout statute. The circuit court concluded that defendant did not violate the anti-lockout statute because plaintiff had already moved out when he changed the locks. On appeal, the court rejected plaintiff’s argument that the circuit court erred when it dismissed her case because defendant was required to obtain an order of eviction before changing the locks. It noted that the trial court’s determinations that defendant “believed in good faith that plaintiff had abandoned the premises, and after diligent inquiry had reason to believe that plaintiff did not intend to return, and current rent had not been paid . . . ,” were supported by ample evidence. The court also rejected her claim that her due-process rights were violated when the circuit court dismissed her case. “That plaintiff had an attorney in the circuit court, had notice of the evidentiary hearing, and attended the hearing at which she testified, all establish that she had notice of the nature of the proceedings and an opportunity to hear and respond to the evidence in the case at a hearing in front of an impartial decision-maker.” Affirmed. Full Text Opinion