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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Prosecutorial error; Questioning defendant about pre-arrest silence; Miranda v Arizona; People v Cetlinski
The court held that the prosecutor’s impeachment questions concerned defendant’s pre-arraignment, pre-Miranda silence and therefore did not violate the Fifth Amendment. At trial for assault by strangulation and domestic violence, defendant testified he acted in self-defense. On cross-examination, the prosecutor asked why he had not told police his version beforehand. Defense counsel objected. On appeal, the court noted that while post-Miranda silence cannot be used to impeach, pre-arrest silence may be used. “A defendant’s silence after being informed of his Miranda rights cannot be used to impeach, but the use of prearrest silence to impeach does not violate the Fifth Amendment, nor the Michigan Constitution.” The transcript showed the prosecutor clarified he was asking about events before the arraignment at which Miranda warnings were given. The questions focused on why defendant never shared his account prior to arrest and arraignment. Because the line of questioning addressed pre-Miranda silence, it fell within Cetlinski’s rule permitting impeachment with pre-arrest silence. “Simply put, defendant’s argument is misplaced because the prosecutor did not question [him] about his post-Miranda silence and, therefore, there was no error because a defendant may be impeached by his prearrest silence. Because the prosecutor did not question defendant about his post-Miranda silence, there was no error, harmless or otherwise.” Affirmed.
Handling of jury questions; Waiver; People v Kowalski; Abandoned ineffective assistance of counsel claim
Holding that defendant’s claim related to the handling of jury questions was waived and that he abandoned his ineffective assistance of counsel claim, the court affirmed his CCW convictions. He argued on appeal “that the trial court erred in refusing to answer questions that were asked by the jury and such error interfered with the jury’s power to nullify. In the alternative,” he asserted he was denied “the effective assistance of his standby counsel who did not object to the claimed error.” As to his first argument, the trial court instructed “the jury that it ‘received all of the instructions and law in this case. That’s all we have. I don’t have any additional legal instructions for you.’ The trial court then asked defendant if he was ‘satisfied with [the court’s] instructions to the jury,’ and defendant replied, ‘Yeah.’” As a result, he admitted “that ‘[t]his issue was certainly not preserved and in fact the defendant voiced approval of the response crafted by the judge . . . .’” Given that he “expressly approved of the trial court’s response to the jury’s questions, defendant has waived any argument that the instructions were erroneous.” As to his second argument, “by not including his claim of ineffective assistance of standby counsel in his statement of the questions presented,” he abandoned that claim.
Whether driving without a license bars PIP benefits under the “taken unlawfully” provision; MCL 500.3113(a); Monaco v Home-Owners Ins Co; Bradley v Westfield Ins Co; Whether use without an owner’s permission is an unlawful taking barring PIP benefits; Ahmed v Tokio Marine Am Ins Co; Michigan Assigned Claims Plan (MACP)
The court held that plaintiff’s operation of a friend’s vehicle on the accident date was an unlawful taking for purposes of MCL 500.3113(a). Plaintiff, unlicensed, drove a longtime friend’s car to work and crashed. She later sought PIP benefits through the MACP. The trial court granted the assigned insurer’s motion for summary disposition, finding an unlawful taking. On appeal, the court first clarified, consistent with Monaco and Bradley, that unlawful operation (e.g., lack of license) does not by itself equal “taken unlawfully” under § 3113(a). The record, however, showed a lack of permission on the accident date. The owner testified plaintiff had always asked before but did not ask that day, and plaintiff admitted she “just went on and took it.” Her contrary statements were either inconsistent or, at most, assumptions insufficient under Ahmed, which requires actual authority from the owner rather than a mere belief of entitlement. Because no evidence showed express permission that day, and implied-consent theories no longer apply under amended §3113(a), no genuine factual dispute existed. Plaintiff was disqualified from PIP benefits. Affirmed.
Personal injury protection (PIP) benefits; Opt out; MCL 500.3107d(1); Uninsured & underinsured motorist coverage (UM/UIM) benefits; Rescission based on a misrepresentation; Howard v LM Gen Ins Co
Holding that “there was no PIP medical coverage under the policy,” and that the trial court did not err in ruling that defendant-USAU was not responsible for paying UM/UIM medical benefits, the court affirmed summary disposition for USAU. Plaintiff’s husband (K) applied for a USAU auto policy. Plaintiff was later “involved in a hit and run accident” and a claim for benefits was made. USAU rescinded the policy on the ground that, during “its investigation, it was discovered that the policy-application contained material misrepresentations.” Plaintiff then filed this action seeking payment of benefits. As to the claim for PIP benefits, under “MCL 500.3107d(1), drivers may opt out of PIP medical coverage if they have ‘qualified health coverage.’ In this case, [K] chose to do just that by explicitly opting out of PIP medical benefits on the policy application. Accordingly, there was no PIP medical coverage under the policy, and the trial court did not err by determining that USAU was not responsible for” paying these benefits. As to the claim for UM/UIM benefits, there was “no dispute that in the policy-application, [K] represented that in the past three years, neither he nor any of his rated household members had their driver’s licenses suspended or revoked. There is also no dispute that USAU later learned that both plaintiff’s and [K’s] drivers’ licenses were suspended within 3 years before the application date.” While plaintiff asserted that K “did not knowingly or intentionally make a misrepresentation” the court noted the contract’s plain terms “do not state that the misrepresentation must be intentional in order for the policy to be voided—it merely states that ‘any material misrepresentation will void coverage,’ and ‘[n]o coverage is provided and the policy shall be null and void from inception . . . [i]f any information in this application is false or misleading.’” And an affidavit from USAU’s underwriting representative stated that had K “answered the question in the affirmative, ‘the policy would not have been issued.’ Because USAU relied on the misrepresentation when determining eligibility for coverage, the misrepresentation was material.”
Action to quiet title; Failure to allege fraud & related deficiencies in the foreclosure process & sale; Standing; Expiration of the statutory six-month redemption period; Bryan v JPMorgan Chase Bank
The court held that the trial court did not err in dismissing plaintiffs’ claims in this quiet title action because they did not allege fraud and related deficiencies in the foreclosure process and sale with sufficient particularity. Further, as a result of that failure, they did not have standing to challenge the mortgage foreclosure after the expiration of the redemption period. Thus, it affirmed summary disposition for defendant. The case arose from the foreclosure of the mortgage on plaintiffs’ home. The trial court determined that their first amended complaint (the FAC) failed to describe their allegations of fraud as to “the execution of the loan modification documents with sufficient particularity.” It also concluded that the FAC “did not specifically address the allegations of deficiencies in the foreclosure process and sale.” On appeal, reviewing the FAC “and accepting all factual allegations as true,” the court found that “the nature of plaintiffs’ claims are not entirely clear and are difficult to discern. For example, aside from numerous general allegations fraught with conjecture and speculation, [they] were unable to state with clarity how the loan modification procedure was procured by fraud or deception. Plaintiffs also accused defendant of engaging in fraudulent transactions and unsavory business tactics.” The court agreed with the trial court that the FAC “did not contain the requisite level of detail to support their allegations of fraudulent behavior on the part of defendant both during the loan modification process and during the 2019 foreclosure by advertisement. While acknowledging that plaintiffs were representing themselves in the trial court and were not attorneys, the record reflects that the [trial] court gave [them] the opportunity to amend their complaint in order to more definitively state their allegations against defendant. [They] were provided ample time and opportunity to clarify the nature of their allegations of fraud, as well as their claims that the 2019 foreclosure process was legally deficient, but plaintiffs did not take advantage of the opportunity to amend their initial complaint to articulate their allegations more precisely.”
Reasonable efforts to reunify; MCL 712A.18f; MCL 712A.19a; In re Hicks/Brown; Suspension of parenting time for harm risk; MCL 712A.13a(13); MCL 712A.18(1)(p); Conditions for parenting time; In re Ott; Traumatic brain injury (TBI)
The court held that the DHHS made reasonable reunification efforts and that the trial court did not abuse its discretion by suspending parenting time where contact risked harm to the child’s mental well-being. The case arose after respondent-mother, who has a history of TBI and significant mental health concerns, experienced a crisis that led to removal when CPS found her apartment in disarray with a white powder throughout, minimal food, and both respondent and the child with red irritated hands. Following services and later hospitalization with a very high blood alcohol level, parenting time was suspended due to the child’s severe dysregulation tied to visits and respondent’s instability. The trial court ultimately terminated under §§ (c)(i) and (j). On appeal, the court held that the DHHS satisfied its duty because it “must create a service plan outlining the steps that both it and the parent will take to rectify the issues that led to court involvement and to achieve reunification,” and the record showed respondent received extensive services and actively participated. The court also found that suspension of parenting time was proper because if the trial “court determines that parenting time, even if supervised, may be harmful to the juvenile’s life, physical health, or mental well-being, the court may suspend parenting time until the risk of harm no longer exists,” and the child consistently dysregulated around visits while respondent relapsed on alcohol. The court further approved conditioning parenting time on therapist approval and a therapeutic setting, noting the statute permits relying on a child’s counselor to determine “the appropriateness and the conditions of parenting time.” Affirmed.