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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Fourth Amendment excessive force claim under 42 USC § 1983; Qualified immunity; Graham v Connor; Whether defendants' actions were “objectively reasonable”; Whether the defendant who fired the last shots was entitled to qualified immunity; Delay in ruling on the qualified-immunity defense until after discovery; Sterling Hotels, LLC v McKay
The court held that eight of the defendants-police officers involved in plaintiff’s decedent’s (Mr. Eastep) shooting death were entitled to qualified immunity where the complaint did not plausibly allege that the force they used was “objectively unreasonable.” But defendant-Murphy was not entitled to qualified immunity where the complaint alleged that he “did not begin shooting until after Mr. Eastep was incapacitated.” Plaintiff-Mrs. Eastep sued defendant-City of Nashville and several police officers claiming that her husband’s Fourth Amendment rights were violated where he was shot and killed during a standoff on the side of a highway. The officers moved to dismiss based on qualified immunity, but the district court denied their motions. They first argued on appeal that the district court erred by not ruling on the qualified-immunity defense until after discovery. However, after reviewing the record, the court concluded that the district court did not decline to make a ruling. Instead, it decided that the video footage did not “blatantly contradict” the allegations in the complaint— that the officers opened fire when Mr. Eastep posed no real threat—and concluded that defendants had violated his clearly established constitutional rights. The court noted that a district court’s denial of qualified immunity at the pleadings stage “is only ‘provisional’” because it would be considering the issue again at the summary judgment stage. Thus, it found no reason to vacate on this basis. Defendants next argued that their use of deadly force was justified by Mr. Eastep’s actions leading up to the shooting. The court noted that the crime at issue was not severe (he was walking on the shoulder of an interstate highway) and would not reasonably justify the use of deadly force. But as to the first eight officers, this was “the only factor that does not lean in favor of the officers’ use of deadly force.” Thus, it held that their actions were “objectively reasonable.” However, this was not the case with Officer Murphy, “whose initial shots came after Mr. Eastep was incapacitated and every other officer had stopped shooting.” The court concluded that, given this added circumstance, Mrs. Eastep “alleged facts sufficient to support a plausible claim that Murphy’s use of deadly force was objectively unreasonable.” Thus, it affirmed as to Murphy but reversed as to the other eight officers.
Double jeopardy; Issue-preclusion component of double jeopardy barring retrial after acquittal; Yeager v United States; Elements of felony murder; Malice; People v Carines; People v Goecke; First-degree home invasion; MCL 750.110a(2); People v Wilder; Sufficiency of the evidence for lying to a peace officer; MCL 750.479c; People v Klages; People v Lundy; PSIR accuracy; People v Knepper; Acquitted conduct; People v Beck
In consolidated appeals by the prosecution and defendant, the court held that double jeopardy precluded retrial on felony murder and first-degree home invasion and that the lying-to-a-peace-officer conviction stood. Thus, it affirmed and remanded only to clarify the PSIR. Defendant was convicted of lying to a peace officer and the jury hung on felony murder and first-degree home invasion after acquitting him of premeditated first-degree and of second-degree murder. On appeal, the court agreed with the trial court that retrial on felony murder was barred because the second-degree acquittal “necessarily decided” the absence of malice, an essential element of felony murder. The court also held that retrial on first-degree home invasion was barred where the prosecution’s sole theory presented to the jury was entry without permission coupled with an assault that was the same act as the homicide. Given that theory and the acquittal, “a rational jury could not have grounded its verdict” on a finding other than that he was not the assailant. The court likewise rejected the prosecution’s effort to relitigate by altering theories post-trial, emphasizing that Yeager’s issue-preclusion analysis turns on the issues necessarily decided by the acquittal as tried. Turning to the remaining conviction, the court upheld the sufficiency of the evidence for MCL 750.479c. The video showed the detective informed defendant he was being questioned about a series of vehicle break-ins and he admitted at trial he lied about entering cars. Viewed in the light most favorable to the prosecution, a rational juror could find each element beyond a reasonable doubt. Finally, the court remanded for the limited purpose of amending the PSIR to reflect the acquittals so the report is accurate for correctional use, explaining that the “description of the offense seems to suggest that he was convicted for lying about the murder of which he was acquitted.”
Batson challenge & a trial court’s duty to conduct the three-step inquiry; Batson v Kentucky; People v Knight; Relevance of medical testimony; MRE 401; People v Peterson; Unfair prejudice; MRE 403; Prosecutorial misconduct for vouching; People v Dobek; People v Bennett; Interpreter hearsay & the language-conduit doctrine; People v Jackson; MCL 775.19a; Brady v Maryland; Loss of evidence; Arizona v Youngblood; Sexual assault nurse examiner (SANE)
Holding that the trial court prematurely ended a Batson inquiry and must hold an evidentiary hearing, the court remanded. It rejected defendant’s remaining claims. The court agreed that defense counsel’s “potential Batson issue” was sufficient to trigger the trial court’s duty to apply Batson’s three steps, and that it erred by ruling that Batson did not apply because the juror in question was only the “first” minority juror the prosecution struck. Batson is not discretionary and the trial court “must meticulously follow” its framework and make findings. Because “the trial court substantially failed to apply the Batson framework,” the court remanded “for an evidentiary hearing so the trial court can make the required factual findings” as to defendant’s “preserved claim and determine whether relief is warranted.” But the court rejected his evidentiary challenges, explaining that expert testimony from the child-abuse pediatrician and SANE was admissible to explain the child’s behavior in declining a physical exam, which might otherwise appear inconsistent with abuse. As Peterson permits, “‘the prosecution may present evidence, if relevant and helpful, to generally explain the common post-incident behavior of children who are victims of sexual abuse.’” The court further found no prosecutorial misconduct where the prosecutor did not vouch for credibility and argued reasonable inferences from the evidence. And defense counsel was not ineffective for failing to raise futile objections to the alleged misconduct. It rejected the Brady claim regarding deletion of the first interview video because there was no showing the recording was exculpatory and Youngblood requires bad faith for a due-process violation from failure to preserve “potentially useful” evidence. Finally, the court upheld admission of defendant’s statements through the interviewing officers. The language-conduit rule did not apply because the alleged interpreters, the officers, testified and the statements were admissible as a party’s own statements. The prosecution showed that they “were familiar with, and competent in, [defendant’s] primary language under MRE 602.” The court retained jurisdiction.
Sentencing; Procedural reasonableness; Enhancement under USSG § 2D1.1(b)(13) (defendant “knowingly misrepresented or knowingly marketed” fentanyl as another substance); United States v Wiley (8th Cir); Ineffective assistance of counsel; Whether the existing record was adequate to properly assess the merits of the claim; Motion for a downward departure under § 5K2.13 (significantly reduced mental capacity); Substantive reasonableness; Special condition of supervised release subjecting a defendant’s electronic devices to a random search
The court held that defendants’ sentences were procedurally reasonable, upholding the enhancement under § 2D1.1(b)(13) on the basis they “‘knowingly misrepresented or knowingly marketed’ fentanyl as another substance.” Defendants-Matthews and Livingston pled guilty in cases arising from their participation in a meth and fentanyl-trafficking enterprise. They argued their sentences were procedurally unreasonable because the district court erred in applying the § 2D1.1(b)(13) four-level enhancement. The court held that a “person ‘knowingly misrepresents’ fentanyl as another substance when he, being aware that the substance he distributes contains fentanyl, asserts or communicates to the person to whom he distributes that it does not.” And an individual “‘knowingly markets’ fentanyl as another substance when he sells or advertises it as something else despite his awareness that [it] contains fentanyl.” It concluded that Matthews “knowingly misrepresented the contents of the pills he distributed” where he knew they were fentanyl and the government offered a cooperating witness’s statement that Matthews always represented the pills he was selling as Percocet. He did not object to the witness’s statement in the district court, and the district court did not plainly err in relying on it. As for Livingston, he admitted through his counsel “that he knew the pills he sold contained fentanyl and that [they] looked identical to oxycodone pills.” The Eighth Circuit held in Wiley that “a defendant ‘knowingly marketed’ fentanyl as another substance when he advertised pills as Percocet pills despite knowing they contained fentanyl.” The court rejected Livingston’s assertions that he did not know the pills were fentanyl and only his attorney made the concession at sentencing. His presentence report indicated “he knew the substantial quantities of pills he sold contained fentanyl,” he did not object to that part of the “report, and the district court adopted the report as part of its factual findings. So even without his attorney’s concession at sentencing, the district court had a basis for its conclusion about Livingston’s knowledge of the pills’ contents.” As to his ineffective assistance claim, the court found that the narrow exception to the general rule against defendants raising such claims for the first time on direct appeal did not apply. And his argument that he was entitled to a downward departure based on his mental-capacity and mental-health challenges was not reviewable where the district court acknowledged them and understood “it could impose a sentence below the advisory Guidelines range—it simply chose not to do so.” Finally, the district court did not plainly err in imposing a special condition of supervised release allowing a “random search of his electronic devices.” Affirmed.
The No-Fault Act; The one-year-back rule in MCL 500.3145; Whether the amended statute should be retroactively applied; Spine Specialists of MI, PC v MemberSelect Ins Co; The raise-or-waive rule; Explanations of Review (EORs)
On remand from the Supreme Court, the court held that plaintiff-Encompass Healthcare could not “prevail under the raise-or-waive rule as a vehicle for side-stepping” the Supreme Court’s decision “in Spine Specialists that the amended version of MCL 500.3145” does not apply retroactively “to medical treatment that accrued before” 6/11/19. Thus, the one-year-back rule applied here. In 2019, the Legislature amended the statute “to add a tolling provision for accrued claims for medical treatment that had not been formally denied by an insurer.” The court, the trial court, and the parties had “proceeded, implicitly or explicitly, with the understanding that the amended version of MCL 500.3145 applied retroactively to this case, so the outcome turned on whether” the EORs defendant-Citizens “provided to Encompass and the insured constituted a formal denial under MCL 500.3145(3).” But the Supreme Court ruled in Spine Specialists that the amended statute should not be applied retroactively. It later vacated the court’s “opinion in this case and remanded the matter for reconsideration in light of its holding in Spine Specialists.” On remand, Encompass asserted that the “Supreme Court did not decide whether Citizens waived its challenge to retroactive application of MCL 500.3145(3) by neither presenting the issue to the trial court nor initially raising the issue in this Court. Thus, Encompass” urged the court “to rule that the issue is waived.” The court rejected this argument. “Encompass’s claim based on medical treatment accrued when that treatment was provided between [6/18] and [10/18]. The amended version of MCL 500.3145 went into effect in [6/19], and Encompass filed its complaint against Citizens on [11/4/19]. Pursuant to Spine Specialists, the pre-amendment version of MCL 500.3145 and its strict one-year-back rule bars Encompass’s recovery for medical treatment, which accrued before [11/4/18]. Because the pre-amendment version of MCL 500.3145 applies in this matter, it is immaterial whether the EORs constituted formal denials because the amended version of MCL 500.3145(3) with its added tolling provision” did not apply. Thus, “the trial court’s reliance on the amended MCL 500.3145(3) must be characterized as erroneous, so Citizens must be awarded summary disposition of all claims based upon medical treatment that accrued before” 11/4/18.
The court’s jurisdiction in contempt proceedings; In re Moroun; Civil vs criminal contempt; Compensatory sanctions under MCL 600.1721; Appealability of contempt orders; Final order under MCR 7.202(6); Application for leave to appeal under MCL 600.308(2)(c)
The court held that an order imposing compensatory civil contempt sanctions is not a final order appealable of right under MCR 7.202(6) and dismissed the appeal for lack of jurisdiction. Defendant had repeatedly encroached on a public right-of-way after a prior judgment prohibited such conduct. The trial court found defendant in contempt and imposed compensatory sanctions under MCL 600.1721, assessing “$6,992 in attorney fees and $629.84 in expenses plaintiff incurred to remove defendant’s encroaching obstructions.” On appeal, the court addressed “unresolved questions” about its jurisdiction in contempt proceedings. Quoting Moroun, it explained that “an order finding a party in civil contempt of court is not a final order for purposes of appellate review.” The court emphasized that civil contempt may be “coercive” or “compensatory,” and here it found that the sanctions were compensatory because the trial court ordered defendant “to pay plaintiff ‘a sufficient sum to indemnify [it]’ for an ‘actual loss,’ consistent with MCL 600.1721[.]” The court rejected the argument that such an order was appealable as a postjudgment award of attorney fees and costs, reasoning that “a compensatory contempt award is itself a form of damages—measured in part by plaintiff’s attorney fees—not an award of attorney fees as such.” It also noted that “the expenses plaintiff incurred to remove defendant’s debris from the right-of-way are not taxable costs under” the statutory cost provisions. Because “MCR 7.202(6)(a)(iv) does not confer appellate jurisdiction in this circumstance,” the court held that the order was reviewable only by application for leave to appeal under MCL 600.308(2)(c).
Preservation & waiver of appellate issues; Walters v Nadell; Abandonment for inadequate briefing; Requirement to support claims with authority; Tyra v Organ Procurement Agency of MI; Appellate sanctions procedure; MCR 7.211(C)(8)
Holding that appellant-former personal representative waived and abandoned her challenges by failing to appear and by inadequately briefing her claims, the court affirmed the probate court’s damages and disgorgement order. The heirs objected to appellant’s accounting and the probate court set an evidentiary hearing to address damages and fees. She asked to appear by Zoom, was told in-person was necessary for credibility assessments, and chose not to attend. On appeal, the court rejected her attempt to attack the evidentiary rulings and the damages calculation, explaining that “‘a party may not remain silent in the trial court, only to prevail on an issue that was not called to the trial court’s attention[,]’” and that her decision not to appear “constituted a waiver of her right to appeal” the probate court’s findings. The court also deemed multiple arguments abandoned because they lacked developed analysis and supporting authority, noting that “it is not within the purview of this Court to elucidate or refine the foundations of her claims[.]” As to the disgorgement of attorney and fiduciary fees and treble damages on a post-death check, the court emphasized that she bore the burden to prove entitlement to fees and “cannot now claim that the probate court erred” when she refused to participate at the hearing. Finally, the court denied the estate’s request for appellate sanctions without prejudice, reminding that sanctions must be sought by motion under MCR 7.211(C)(8) “within 21 days of the opinion that disposes of the matter.”
Wrongful death; Whether a claim sounded in premises liability or ordinary negligence; Kandil-Elsayed v F & E Oil, Inc; Failure to allege a party possessed & controlled the premises; Bowman v Walker; Detroit Airlines North Terminal Consortium, Inc. (DANTeC); AvAirPros Services, Inc. (APS)
Holding that plaintiff-estate’s claims against defendants sounded in premises liability rather than ordinary negligence, the court concluded two of them were entitled to summary disposition because plaintiff failed to allege that they possessed and controlled the premises in question. But it concluded plaintiff did state a premises liability claim against the other defendant. Plaintiff brought this wrongful death action against defendants-DANTeC, APS, and Schindler Elevator Corporation after the decedent (Quigley) fell while boarding an escalator at the airport and suffered a broken neck. In these consolidated appeals, defendants challenged the trial court’s orders denying their summary disposition motions. As to APS, as plaintiff alleged “Quigley’s injuries and death resulted from his encounter with a dangerous condition in the North Terminal, that is, the escalator,” the claim was one for premises liability. Recovery may only be had under this theory if “the defendant had legal possession and control of the premises. . . . In other words, if a claim sounds in premises liability, a defendant that is not an owner, possessor, or occupier of the premises cannot be held liable on that theory and is entitled to summary disposition.” Plaintiff actually “asserted in the trial court and on appeal that APS did not possess or control the premises.” Thus, APS was entitled to summary disposition. Plaintiff’s claim against Schindler was also “one of premises liability because the claim alleges that Quigley’s injury arose from a dangerous condition on the land.” And the complaint did “not allege that Schindler possessed or controlled the premises where the dangerous condition is alleged to have existed.” Thus, Schindler was likewise entitled to summary disposition. The court next held that DANTeC was entitled to summary disposition of the ordinary negligence claim because plaintiff’s claim sounded exclusively in premises liability. But it concluded plaintiff pled “the requisite allegations to support a premises liability claim, namely, that DANTeC owed Quigley a duty, that [it] breached that duty by failing to maintain the premises in a reasonably safe condition and failing to warn the decedent of the dangers, and that the breach caused Quigley’s death and plaintiff’s damages.” Affirmed in part, vacated in part, and remanded for entry of an order granting defendants summary disposition of the ordinary negligence claims and for further proceedings.
Adverse possession; Houston v Mint Group, LLC; Beach v Township of Lima; Res judicata; Peterson Novelties, Inc v City of Berkley; Effect of a prior action involving claims of defamation & intentional infliction of emotional distress (IIED)
The court held that the trial court did not err in ruling that plaintiff had obtained title to a strip of real property between the parties’ respective properties (the Disputed Property) via adverse possession. And it rejected defendants’ claim that res judicata based on a prior case involving defamation and IIED claims barred this action. The court was “asked to resolve the purely legal question whether the undisputed facts that plaintiff mowed the grass, cleared weeds, and performed minimal tree maintenance on the Disputed Property, while other people never attempted to use [it] for any purpose, are insufficient as a matter of law to constitute[] the exclusive and hostile use necessary to obtain title by adverse possession.” It concluded that, considering “the character of these two lots before defendants purchased their property,” the undisputed facts showed “that plaintiff used the Disputed Property in a manner consistent with making it appear to be part of his own yard while the neighboring property was left in a contrasting state of neglect.” Based on the record, the court held that his “use of the Disputed Property constituted an exercise of dominion over [it], and the fact that nobody else attempted to compete with” him for its use did not establish that he occupied it “in common with others. . . . Instead, the undisputed record evidence supports plaintiff’s claim that the actual owners of the Disputed Property slept on their rights such that title could vest in” him. In addition, his use of it “as part of his own parcel was inconsistent with the right of the true owner, and defendants do not claim that plaintiff sought or obtained permission from any prior owner to use” it. As a result, “the element of ‘hostile’ use was also satisfied.” Given that defendants did not challenge his “evidence that he used the Disputed Property as he claimed since at least 2000, the statutory period had expired and title to” it vested in him “by 2015, well before defendants purchased their property.” As to their res judicata argument, the “allegedly defamatory social media posts” that gave rise to the prior case “were not relevant to the necessary adverse possession showing. Because the present action and the 2022 action could not have been sustained by ‘the same facts or evidence,’” they were not the same for res judicata purposes and thus, the present action was not barred by the 2022 one. The court affirmed the judgment for plaintiff as to title to the Disputed Property.
Ineffective assistance of counsel in child protective proceedings; In re Lovitt; Failure to retain an expert; In re Casto; Request for remand for a Ginther hearing; People v Chapo
Concluding that respondent-father did not “establish the factual predicate of his ineffective-assistance-of-counsel claim” or show the need for a Ginther hearing on remand, the court affirmed the order terminating his parental rights. His rights were terminated under §§ (a)(ii), (b)(i), (k)(i), and (k)(ix). He argued on appeal that his trial counsel provided ineffective assistance due to the failure “to retain an expert to assess the reliability and trustworthiness of” respondent’s child’s statements. The court noted that he did not present any “evidence to establish either prong of ineffective assistance—deficient performance or prejudice. Instead, he makes the mere assertion in his brief on appeal that the facts of the case ‘should have prompted effective counsel to secure a[n] expert.’ But without evidence, there is no way of knowing to what extent counsel investigated the law and the facts of the case, whether counsel failed to consider consulting or retaining an expert, whether counsel instead made efforts to do so, and what the results of those efforts, if any, were.” He also failed to present evidence to show “how counsel’s alleged deficient performance prejudiced him, for example by demonstrating that an expert would likely have testified that [the child’s] statements were unreliable.” As a result, he did not “establish the factual predicate of his claim.” As to his requested alternative relief of remand for a Ginther hearing, “mere assertions in a motion or brief are insufficient; a respondent’s request for a remand to develop the factual record ‘must be supported by affidavit or offer of proof regarding the facts to be established at a hearing.’” He failed to provide any “evidence, by way of ‘affidavit or offer of proof,’ . . . that counsel failed to explore consulting an expert, that expert testimony could have been procured, or that such testimony could have influenced the outcome of the proceedings.” Thus, he was not entitled to relief.