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Criminal Law (1) Full Text Opinion e-Journal #: 78343 Case: People v. Hassel Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Shapiro, Gadola, and Yates Issues: Ineffective assistance of counsel; Failure to file a motion to suppress defendant’s police statements; People v Cipriano; Failure to investigate & present evidence to support a battered partner syndrome defense; People v Christel; Self-defense; MCL 780.972(1) Summary: The court held that defendant’s trial counsel was not ineffective for failing to (1) move to suppress her inculpatory police statements or (2) pursue a battered partner syndrome defense. Thus, it affirmed the trial’s court’s denial of her motion for a new trial following a Ginther hearing, and her first-degree premeditated murder and conspiracy to commit first-degree murder convictions. Her convictions arose from her husband’s (Hassel) shooting death. Following the Ginther hearing, the trial court found that a police detective’s (L) “questioning of defendant was neither coercive nor unfairly manipulative, and that defendant’s statements were freely and voluntarily made.” As a result, the trial court determined that a motion “by trial counsel to suppress the statements would have been unsuccessful, and accordingly, trial counsel was not ineffective for failing to file” one. The court concluded the trial court’s “finding that the Cipriano factors do not indicate an involuntary confession” was not clearly erroneous. It also determined that defendant’s “admissions that the plan to kill Hassel began four or more months before he was killed negated any honest and reasonable belief that killing Hassel was necessary to prevent defendant’s imminent death, great bodily harm, or sexual assault.” As a result, the court held that “trial counsel’s rejection of a strategy based on self-defense as a result of battered partner syndrome was not objectively unreasonable.” The court added that, even crediting her Ginther hearing testimony, “it did not support a claim of self-defense based on battered partner syndrome. Such a claim would require evidence that defendant participated in Hassel’s shooting death, but acted in self-defense because of repeated and ongoing abuse. Significantly, however, at the Ginther hearing defendant denied any involvement in” the shooting and denied ever discussing plans to shoot or kill him with her co-conspirator. Full Text Opinion

Healthcare Law (1) Full Text Opinion This summary also appears under Probate e-Journal #: 78371 Case: In re Ogden Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Markey, Sawyer, and Boonstra Issues: Continuing mental health treatment; Whether “personal examination” under MCL 330.1434 requires that the examiner & examinee occupy the same physical space; MCL 330.1434(4); “Person requiring treatment”; MCL 330.1401; MCL 330.1400(g); Ineffective assistance of counsel; Failure to object Summary: [In an order, the court vacated its prior opinion (see e-Journal # 78295 in the 10/26/22 edition). It issued a new opinion, which did not contain a footnote that appeared in the prior opinion.] The court again concluded that “the Legislature did not intend to define ‘personal examination’ to require that the examiner and examinee occupy the same physical space.” Also, respondent’s counsel was not ineffective for failing to object to the doctor’s examination on this ground. Thus, it affirmed the probate court’s order for continuing mental health treatment. Respondent argued that “he was entitled to an in-person, rather than remote, personal examination under MCL 330.1434,” that examination via Telepsych was thus “inadequate, and that he was denied the effective assistance of counsel because counsel failed to object on this ground.” The court held that it was clear “the purpose of the personal examination is to assist the court in determining whether the person who is the object of a petition is a person requiring treatment.” It concluded that “a court’s determination of whether someone is a person requiring treatment requires an assessment of (1) whether that person suffers from a mental illness and (2) the impacts that the mental illness has on the person’s life or behavior. ‘Mental illness’ means a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.’” It also determined that “[m]ental illness by definition manifests through thoughts and mood, so while it is possible that physical proximity might provide the examiner with insight into a person’s thoughts or mood, it is at least equally possible that an examination via a videoconferencing software platform—such as the ‘Telepsych’ platform utilized in this case—would be sufficient to gain such insight. Videoconferencing software permits the examiner to observe the examinee’s appearance, mannerisms and body language, as well as speech.” Full Text Opinion

Insurance (1) Full Text Opinion This summary also appears under Litigation e-Journal #: 78344 Case: Lekli v. Farm Bureau Mut. Ins. Co. of MI Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly, Servitto, and Letica Issues: Action for personal protection insurance (PIP) benefits from the Michigan Automobile Insurance Placement Facility (MAIPF); MCL 500.3172(1); Spectrum Health Hosps v Michigan Assigned Claims Plan; Priority dispute; Whether plaintiff was an “employee” making the insurers of his work truck higher priority insurers than his personal insurers; MCL 500.3114(3); The economic-reality test Summary: On remand from the Supreme Court, the court held that the trial court erred by granting defendant-MAIPF’s motion for summary disposition, and reversed and remanded. Plaintiff was injured in an auto accident while hauling goods from Michigan to Missouri. He applied for PIP benefits to the MAIPF, noting a dispute between defendant-Farm Bureau, which insured his personal vehicles, and defendant-Great American, which insured the work truck he was driving. The MAIPF denied his claim, and plaintiff filed suit. The trial court granted summary disposition for the MAIPF, noting once it was determined that nonparty-Hudson had the highest priority, there was no longer any dispute amongst insurers. The court now agreed with plaintiff that the trial court erred by granting MAIPF’s motion for summary disposition, noting the “MAIPF should not have denied the claim and should have assigned it through the facility, and the trial court erred when it concluded otherwise.” Plaintiff’s claim for PIP benefits “was not ‘obviously ineligible’ because the application clearly stated that the reason for the assignment was that there was a dispute between Great American and Farm Bureau, and plaintiff provided the claim numbers for each of those insurers.” The court disagreed with the MAIPF’s contention that because plaintiff never provided the requested documentation showing the dispute, it could deny the claim. “First, the MAIPF [did] not cite any authority that would allow it to deny a claim on the sole basis that an applicant did not provide ‘proof’ of a dispute.” Second, the MAIPF “had plaintiff’s complaint, as well as the answers from Farm Bureau and Great American denying liability.” As such, at a minimum, “plaintiff’s claim to the MAIPF, which was made on the basis of a dispute between two or more insurers, could not be considered ‘obviously ineligible. . . .’” Thus, the MAIPF “was obligated to assign the claim.” Full Text Opinion

Litigation (1) Full Text Opinion This summary also appears under Insurance e-Journal #: 78344 Case: Lekli v. Farm Bureau Mut. Ins. Co. of MI Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly, Servitto, and Letica Issues: Action for personal protection insurance (PIP) benefits from the Michigan Automobile Insurance Placement Facility (MAIPF); MCL 500.3172(1); Spectrum Health Hosps v Michigan Assigned Claims Plan; Priority dispute; Whether plaintiff was an “employee” making the insurers of his work truck higher priority insurers than his personal insurers; MCL 500.3114(3); The economic-reality test Summary: On remand from the Supreme Court, the court held that the trial court erred by granting defendant-MAIPF’s motion for summary disposition, and reversed and remanded. Plaintiff was injured in an auto accident while hauling goods from Michigan to Missouri. He applied for PIP benefits to the MAIPF, noting a dispute between defendant-Farm Bureau, which insured his personal vehicles, and defendant-Great American, which insured the work truck he was driving. The MAIPF denied his claim, and plaintiff filed suit. The trial court granted summary disposition for the MAIPF, noting once it was determined that nonparty-Hudson had the highest priority, there was no longer any dispute amongst insurers. The court now agreed with plaintiff that the trial court erred by granting MAIPF’s motion for summary disposition, noting the “MAIPF should not have denied the claim and should have assigned it through the facility, and the trial court erred when it concluded otherwise.” Plaintiff’s claim for PIP benefits “was not ‘obviously ineligible’ because the application clearly stated that the reason for the assignment was that there was a dispute between Great American and Farm Bureau, and plaintiff provided the claim numbers for each of those insurers.” The court disagreed with the MAIPF’s contention that because plaintiff never provided the requested documentation showing the dispute, it could deny the claim. “First, the MAIPF [did] not cite any authority that would allow it to deny a claim on the sole basis that an applicant did not provide ‘proof’ of a dispute.” Second, the MAIPF “had plaintiff’s complaint, as well as the answers from Farm Bureau and Great American denying liability.” As such, at a minimum, “plaintiff’s claim to the MAIPF, which was made on the basis of a dispute between two or more insurers, could not be considered ‘obviously ineligible. . . .’” Thus, the MAIPF “was obligated to assign the claim.” Full Text Opinion

Negligence & Intentional Tort (1) Full Text Opinion e-Journal #: 78358 Case: Baskin v. Namer Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Letica, Servitto, and Hood Issues: Auto negligence; Serious impairment of an important bodily function; MCL 500.3135(1) & (5); McCormick v Carrier; Causation; Comparative fault; MCL 500.3135(2)(b); Presumption of negligence; MCL 257.402(a); The sudden emergency doctrine; White v Taylor Distrib Co, Inc; Independent medical exam (IME) Summary: The court held that the trial court erred by granting defendant summary disposition on the basis plaintiff failed to establish a threshold injury, but did not err by denying his motion for summary disposition as to whether plaintiff was more than 50% negligent. Plaintiff sued for injuries he sustained in an auto accident. The trial court found plaintiff failed to show he suffered an objectively manifested impairment, and granted defendant summary disposition on that ground. However, because it found a genuine issue of material fact existed as to whether plaintiff was more than 50% negligent (because there was a dispute as to where defendant’s vehicle was stopped), it denied defendant’s motion on the basis of comparative fault. On appeal, the court agreed with plaintiff as to the trial court’s ruling on the threshold injury issue, noting that “while there may be an issue of fact whether the accident exacerbated plaintiff’s back problems, there is no genuine issue of material fact, considering the record as it stood when the trial court granted summary disposition to defendant, the accident caused plaintiff’s objectively manifested postconcussive syndrome and traumatic brain injury.” In addition, the trial court’s determination plaintiff “failed to establish an objectively manifested impairment seemed to rest entirely on its determination plaintiff failed to establish a causal link between the accident and his injuries. Causation is an issue distinct from the threshold injury analysis, and it appears the trial court conflated the two requirements when making its decision. However, it is worth considering the issue of causation, because, if the trial court was correct that plaintiff failed to establish causation,” granting defendant summary disposition would be harmless error. The court concluded the second IME “unequivocally stated plaintiff’s injuries were either caused by, or exacerbated by, the accident. While the first IME disagrees, this disagreement creates a genuine issue of material fact regarding causation that is reserved for the jury. The trial court impermissibly weighed the evidence by failing to consider the second IME to the same extent as the first IME.” Finally, the court rejected defendant’s argument that the trial court erred by denying his motion for summary disposition as to whether plaintiff was more than 50% negligent. Whether “defendant was lawfully standing on the freeway is, as is the case of whether plaintiff’s negligence contributed to the accident, and by what percentage, a disputed genuine issue of material fact.” Reversed and remanded. Full Text Opinion

Probate (1) Full Text Opinion This summary also appears under Healthcare Law e-Journal #: 78371 Case: In re Ogden Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Markey, Sawyer, and Boonstra Issues: Continuing mental health treatment; Whether “personal examination” under MCL 330.1434 requires that the examiner & examinee occupy the same physical space; MCL 330.1434(4); “Person requiring treatment”; MCL 330.1401; MCL 330.1400(g); Ineffective assistance of counsel; Failure to object Summary: [In an order, the court vacated its prior opinion (see e-Journal # 78295 in the 10/26/22 edition). It issued a new opinion, which did not contain a footnote that appeared in the prior opinion.] The court again concluded that “the Legislature did not intend to define ‘personal examination’ to require that the examiner and examinee occupy the same physical space.” Also, respondent’s counsel was not ineffective for failing to object to the doctor’s examination on this ground. Thus, it affirmed the probate court’s order for continuing mental health treatment. Respondent argued that “he was entitled to an in-person, rather than remote, personal examination under MCL 330.1434,” that examination via Telepsych was thus “inadequate, and that he was denied the effective assistance of counsel because counsel failed to object on this ground.” The court held that it was clear “the purpose of the personal examination is to assist the court in determining whether the person who is the object of a petition is a person requiring treatment.” It concluded that “a court’s determination of whether someone is a person requiring treatment requires an assessment of (1) whether that person suffers from a mental illness and (2) the impacts that the mental illness has on the person’s life or behavior. ‘Mental illness’ means a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.’” It also determined that “[m]ental illness by definition manifests through thoughts and mood, so while it is possible that physical proximity might provide the examiner with insight into a person’s thoughts or mood, it is at least equally possible that an examination via a videoconferencing software platform—such as the ‘Telepsych’ platform utilized in this case—would be sufficient to gain such insight. Videoconferencing software permits the examiner to observe the examinee’s appearance, mannerisms and body language, as well as speech.” Full Text Opinion

Termination of Parental Rights (2) Full Text Opinion e-Journal #: 78375 Case: In re Hernandez Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Shapiro, Gadola, and Yates Issues: No contest plea; MCR 3.971(D)(2); Assumption of jurisdiction under MCL 712A.2(b)(2); Failure to advise respondent-father of his appellate rights under MCR 3.971(B)(6); Plain error review; Outcome-determinative prejudice; Distinguishing In re Ferranti; In re Pederson Summary: Holding that respondent-father failed to show outcome-determinative prejudice, the court rejected his claim that his no contest plea should be vacated due to the trial court’s failure to advise him of his appellate rights under MCR 3.971(B)(6). The court first found that this case was not like “Ferranti, where the trial court completely failed to comply with MCR 3.971.” It was more similar to “Pederson where the trial court complied with MCR 3.971(B)(3), but not with a different subsection of MCR 3.971(B).” Thus, the court concluded that, as in Pederson, respondent had to show “outcome-determinative prejudice from the trial court’s error.” He did not challenge the existence of clear and convincing evidence to support terminating his parental rights or argue he would not have pled “no contest had he been informed of his right to appeal the adjudication following the order of disposition.” Rather, he suggested he might “have exercised that right had he been so informed because there was an inadequate factual basis for his plea.” The court disagreed with his assertion “there was not an adequate factual basis for his plea because there was no evidence that he used drugs in the children’s presence, or that they were otherwise aware of his drug use.” Contrary to his contention only two exhibits (positive drug tests) were admitted, there was a third exhibit – “the ‘social work contacts,’ establishing that respondent had the children in his care when the positive drug tests occurred. And the consumption of cocaine and methamphetamine at a time when the five children were placed in respondent’s home is enough to substantiate the allegations that his drug use placed” them at risk of harm, whether or not they were physically present when he “was under the influence. Further, the evidence supported the trial court’s assumption of jurisdiction on the basis” of an unfit home environment under MCL 712A.2(b)(2). The court concluded that because there was a proper factual basis for his plea, he could not “show that an appeal on that basis following the adjudication would have been successful and so cannot establish outcome-determinative prejudice. Nor does he explain how the trial court’s failure to advise him of his appellate rights renders his plea involuntarily or unknowingly made.” Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 78376 Case: In re Stanke/Fortson Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Shapiro, Gadola, and Yates Issues: Reasonable reunification efforts; MCL 712A.18f(3)(b) & (c); In re Hicks; A parent’s duty to participate in & benefit from the offered services; In re Atchley Summary: The court held that the trial court did not err by finding the DHHS made reasonable efforts to reunify respondent-father with his children, and thus, did not err by terminating his parental rights. His rights were terminated based on substance abuse, lack of parenting skills, lack of emotional stability, and incarceration. On appeal, the court rejected his argument that the DHHS failed to make reasonable reunification efforts. It noted that although the DHHS offered him “numerous services, at the time of termination he had made no progress toward eliminating the barriers to reunification and had created a new barrier by becoming incarcerated as a result of possession of meth[].” It also rejected his claim that the DHHS did not advise him of the option of participating in Family Drug Treatment Court. He failed to “explain whether he qualified for that program or whether the services offered would have differed from those offered by” the DHHS. As to his contention that his caseworkers changed frequently during the time the children were in care, the court noted there was no indication in the record “that the frequent changes prevented” the DHHS from providing services to him or prevented him from participating in the services. In sum, respondent raised “no valid challenge to the reasonableness of the efforts of the agency.” The DHHS offered him “numerous services aimed at removing the barriers to his reunification with his children, but [he] declined to participate in the offered services.” Affirmed. Full Text Opinion