Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Legal malpractice; Manzo v. Petrella; Phillips v. Mazda Motor Mfg. (USA) Corp.; Whether expert testimony was necessary; Dean v. Tucker; Law Offices of Lawrence J. Stockler, PC v. Rose; Using defendant to provide the necessary expert testimony on the standard of care (SOC); Rice v. Jaskolski; Principle that a plaintiff cannot avoid the requirements of a malpractice action by couching the claim in terms of ordinary negligence; Dorris v. Detroit Osteopathic Hosp. Corp.; Attempt to create a genuine issue of material fact by submitting a party’s own affidavit containing generic & conclusory allegations; SSC Assoc. Ltd. P’ship v. General Ret. Sys. of Detroit; United States Patent & Trademark Office (USPTO)
Holding that plaintiff needed to have an expert to establish breach of the SOC and causation, the court concluded that there was no genuine issue of material fact and the trial court properly granted defendants-Musial and his law firm summary disposition in this legal malpractice case. The court found that his “allegations raised issues not within an ordinary layperson’s knowledge; they were matters of patent law. The question of whether Musial provided value in his services would require a determination into what is the value that an ordinary patent law attorney typically provides to his client.” While plaintiff was correct that he could use Musial, a patent attorney, and Musial’s expert to establish the SOC, this did not address his “need for expert testimony to show both breach and causation.” He could not rely on Musial or his expert for this “because their positions were diametrically opposed to his own.” They both stated in “affidavits that Musial’s actions were not negligent and did not cause abandonment.” They also both stated “that plaintiff’s conduct required Musial to withdraw from representation and prohibited him from taking any further action regarding the application.” In addition, they stated that “plaintiff’s failure as the inventor and applicant to respond to” a letter from the USPTO was the sole cause of abandonment of the patent application. They further stated that plaintiff had several remedies available, “including seeking a deadline extension and a petition to revive the application after abandonment.” Plaintiff needed his own expert, yet he never produced one. The court also concluded that defendants were entitled to judgment as a matter of law. Musial’s expert stated that “Musial’s actions were proper and within the [SOC] for patent law attorneys, that Musial had provided excellent value for the fees he charged, that plaintiff’s actions discharged Musial and prohibited continued representation, and that abandonment rested solely on plaintiff’s failure to respond to the USPTO letter. Plaintiff provided no expert testimony in rebuttal. Musial’s expert addressed each of plaintiff’s examples of supposed negligence.” In addition, the documentary evidence supported defendants’ position. The court affirmed and remanded for the trial court to address their remaining counterclaim.
Attorney fees in a divorce action; Former MCR 3.206(C)(1) & (2)(b); MCR 3.206(D) & (D)(2)(b); Skaates v. Kayser; Reed v. Reed; Smith v. Khouri; Pirgu v. United Servs. Auto. Ass’n; Baxter v. Geurink; Milligan v. Milligan; Butler v. Simmons-Butler; Determination & division of newly vested stock; Scope of a remand order; K & K Constr., Inc. v. Department of Envtl. Quality; The law of the case doctrine; New Props., Inc. v. George D. Newpower, Jr., Inc.; Grievance Adm’r v. Lopatin; Ashker v. Ford Motor Co.; Equitable distribution of marital assets in a divorce proceeding; Seifeddine v. Jaber; Spousal support; MCL 552.231(1); Loutts v. Loutts; Modification of spousal support; MCL 552.28; Laffin v. Laffin; Ackerman v. Ackerman
The court held that the trial court did not abuse its discretion by awarding defendant-ex-wife attorney fees, by including newly-vested stock in the total vested stock to be divided between the parties, or by modifying the award of spousal support and judgment of divorce to order plaintiff-ex-husband to obtain a life insurance policy naming her as the beneficiary to secure the spousal support award. Thus, the court affirmed, but remanded as to defendant’s argument that she was entitled to additional attorney fees. On the previous remand, the trial court awarded her half of the value of the stock as well as spousal support and attorney fees, but denied her motion for reconsideration on the issue of additional attorney fees. On appeal, the court rejected plaintiff’s argument that the trial court erred by awarding defendant attorney fees, but agreed with defendant that it should have awarded her additional attorney fees. “Because defendant provided information of the hourly rate, number of hours worked, and the purpose of the fees expended, defendant submitted sufficient relevant documentation to support her” attorney fee request. In addition, “[a]lthough plaintiff’s counsel stated during the evidentiary hearing that he was not stipulating to the reasonableness of the fees, plaintiff did not actually challenge the reasonableness of the fees sought.” Further, the trial court “did not explain on the record the reason for denying the additional attorney fees sought by defendant.” The court also rejected plaintiff’s claim that the trial court erred by redetermining the amount of stock to be divided, noting it did not exceed the scope of the remand order “when it redetermined the distribution of the vested stock, including in the total vested stock the previously unvested shares that vested upon” his resignation from his employment. But it noted that the trial court “was not required to penalize plaintiff by reducing his property share,” and it could not “be said that a 50/50 split of the newly-vested stock, with credit to plaintiff for taxes paid, is so inequitable as to be an abuse of” discretion. It further found that the trial court “acted within its authority, and within the scope of remand, in modifying the spousal support award, and that the record” supported its findings and spousal support determination. As to defendant’s “challenge to plaintiff being credited $80,000 for spousal support paid, this decision also was a proper exercise of the trial court’s discretion.” Finally, the court found that requiring plaintiff to provide a life insurance policy naming defendant as beneficiary “was a proper exercise of its discretion in light of plaintiff’s fraud, and [he] has not demonstrated that the result of the modification is inequitable.”
Expert testimony about “abusive head trauma”; People v. McFarlane
In an order in lieu of granting leave to appeal, the court vacated in part the Court of Appeals judgment (see e-Journal # 68466 in the 8/17/18 edition) and remanded the case to that court for reconsideration of its analysis of the expert testimony at trial in light of McFarlane. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining question presented.
Dissenting, Justice Markman stated that he would deny leave to appeal for the reason given in his concurring statement in McFarlane.
Eligibility for appointment of appellate counsel; People v. Haywood; An indigent defendant’s right to the assistance of counsel in defending against a preconviction appeal by the prosecution; People v. Murphy; MCR 6.005(H)(3); Time for filing an appellee’s brief; MCR 7.212(A)(2)(a)(ii)
In an order, in accordance with the Supreme Court’s order in this case (see e-Journal # 73110 in the 5/26/20 edition), and after consideration of the court’s order in Haywood (see e-Journal # 73957 in the 10/9/20 edition), the court vacated its 11/21/19 opinion (see e-Journal # 71778 in the 12/6/19 edition) and reinstated the prosecution’s appeal. It held that proceeding with this appeal without a proper resolution of its 7/10/18 order remanding the “case to the trial court for a determination of defendant’s eligibility for appointed counsel was contrary to the right of an indigent defendant to the assistance of counsel in defending against a preconviction appeal by the prosecution.” The court noted that, contrary to the indication in defendant’s motion, this was “actually a second-tier appeal from a circuit court order entered on appeal from a district court. But we see no relevant distinction in that regard as to defendant’s entitlement, if indigent, to the assistance of appointed counsel in defending against this preconviction appeal by the prosecution.” The court remanded the case to the trial court to determine “defendant’s eligibility for appointment of appellate counsel and for appointment of such counsel if he is indigent.” It directed the trial court to make this determination within 14 days after the date of the court’s order, and “send a copy of the order deciding this issue and naming appointed counsel, if any, to the Clerk of this Court within” 7 days after its decision. “If counsel is appointed, counsel shall file an appellee’s brief on behalf of defendant in this appeal. The time for filing appellee’s brief shall run under MCR 7.212(A)(2)(a)(ii) from entry of the order appointing counsel.” The court retained jurisdiction.
Sufficiency of the evidence; AWIGBH & felonious assault; Self-defense; People v. Dupree; People v. Guajardo; People v. Stevens; Intent; People v. Avant; People v. Russell; Whether AWIGBH & felonious assault for a single act resulted in inconsistent verdicts; People v. Ellis; People v. McKewen; Distinguishing People v. Doss; Sentencing; Scoring 25 points for OV 3; MCL 777.33 (physical injury to victims); People v. Fawaz; People v. Chaney
The court determined that the prosecution presented sufficient evidence to rebut the evidence that defendant acted in defense of himself and his wife, O. However, it agreed with his argument that his convictions for both AWIGBH and felonious assault for a single act resulted in inconsistent verdicts. Finally, the trial court did not err in assessing 25 points for OV 3. Thus, the court affirmed his conviction and sentence for AWIGBH, and vacated his conviction and sentence for felonious assault. The case arose out of an altercation that culminated in defendant hitting the victim, C, with his vehicle. He first argued that the prosecution presented insufficient evidence to rebut the evidence that he acted in defense of himself and O. The prosecution presented sufficient evidence that C “did not have a gun, never threatened defendant or [O], and did not point a gun at defendant making it necessary for defendant to hit [C] in order to prevent death or bodily harm to himself or” O. Thus, the prosecution established, “beyond a reasonable doubt, that defendant did not act in defense of himself or” O. By claiming “the affirmative defense of self-defense or defense of another, defendant admitted to the elements of the crimes but claimed to have acted in a justifiable manner.” Thus, his argument that the prosecution failed to prove the requisite intent elements of the crimes was without merit. Defendant next raised the unpreserved argument that his convictions for both AWIGBH and felonious assault for a single act resulted in inconsistent verdicts. The court agreed, holding that this case was analogous to McKewen, and under McKewen, it must vacate defendant’s conviction and sentence for felonious assault.
Truancy; MCL 712A.2(a)(4); MCR 3.943(E)(1); Placement of a juvenile on out-of-home probation in a nonsecure residential facility after a violation of in-home probation; MCL 712A.18(1)(a)-(d) & (i)-(j); Imposition of increasingly severe sanctions; MCR 3.943(E)(2)
Holding that the trial court did not abuse its discretion in placing respondent-juvenile, who had pled to truancy, on out-of-home probation in a nonsecure residential facility after a violation of in-home probation, the court affirmed the order of disposition. It noted that the trial court only took this action “after her school attendance and performance remained poor during seven months of in-home probation. Throughout that period, respondent’s mother offered several explanations for respondent’s continuing violations of in-home probation.” These included “bullying, illness, the incarceration of respondent’s father, and the school’s failure to put an” individualized education plan in place for respondent. In addition, she and respondent “contested the accuracy of the school’s record keeping.” However, the mother “admitted that there was no valid excuse for at least seven of respondent’s absences” in the previous month. Respondent told the trial court that she “didn’t miss that many days.” In imposing out-of-home probation, the trial court reasoned that “despite having adequate time to take remedial action, the efforts respondent and her mother made were plainly inadequate because respondent’s attendance was not improving.” The court concluded that even if the proffered “explanations for the continuing violations of in-home probation were truthful, and even assuming that respondent’s mother diligently pursued the remedial measures she discussed with the court, respondent’s school attendance and performance had not improved after seven months. The trial court was required by MCR 3.943(E)(2) to ‘consider imposing increasingly severe sanctions’ in its second order of disposition in this case. After twice postponing disposition on the supplemental violation of probation petition, and seeing no improvement in respondent’s school attendance or academic performance, the trial court reasonably concluded that there was no reasonable expectation” her attendance would improve if she stayed at home.
Medical & nursing malpractice; Cox ex rel Cox v. Flint Bd. of Hosp. Managers; Proving causation; MCL 600.2912a(2); Lockridge v. Oakwood Hosp.; Weymers v. Khera; Badalamenti v. William Beaumont Hosp.-Troy; Craig ex rel Craig v. Oakwood Hosp.; Ray v. Swager; Dykes v. William Beaumont Hosp.; Expert testimony; MRE 702; MCL 600.2955; MCL 600.2169; Kalaj v. Khan; Elher v. Misra; Tobin v. Providence Hosp.; Edry v. Adelman; Decker v. Rochowiak; Discovery; Augustine v. Allstate Ins. Co.; Principle that a hospital’s internal rules, regulations, & policies may not be used to establish the applicable standard of care or breach of that standard; Zdrojewski v. Murphy; Gallagher v. Detroit-Macomb Hosp. Ass’n
The court held that the trial court did not err by granting defendants-doctor’s, nurses’, and medical facilities’ summary disposition of plaintiffs’ medical malpractice and other claims. Plaintiffs sued defendants alleging medical malpractice, nursing malpractice, vicarious and direct liability, and loss of consortium. They also claimed various statutory provisions were unconstitutional. The trial court granted summary disposition for defendants and dismissed the case. On appeal, the court first rejected plaintiffs’ argument that the trial court erred by granting summary disposition for defendants on the medical and nursing malpractice claims. Plaintiffs “failed to provide admissible expert testimony on factual causation as required to support their medical and nursing malpractice claims.” As such, the trial court properly granted summary disposition to defendants. “Given that plaintiffs failed to demonstrate a genuine issue of material fact regarding factual causation, it is unnecessary to consider legal causation.” The court also rejected plaintiffs’ claim that the trial court erred by denying their motion to compel discovery, noting they failed to show “the information and documents requested [were] relevant to any element of their claims in this case.” Thus, they also “failed to establish entitlement to ask defendant-nurses about these matters at deposition.” Overall, they did not establish "that the denial of their motion to compel discovery fell outside the range of reasonable and principled outcomes.” Affirmed.
Termination under § 19b(3)(c)(i); In re Gonzales/Martinez; In re VanDalen; In re HRC; In re Williams; In re Dahms; Principle that only one statutory ground for termination need be established; Reasonable reunification efforts; In re Hicks; In re Utrera; In re Frey; In re Terry; In re BZ
Holding that the trial court did not err in finding the DHHS did make reasonable efforts at reunification and that § (c)(i) existed, the court affirmed the trial court’s orders terminating respondent-mother’s parental rights to her children. Respondent argued that “DHHS did not arrange for her to undergo a trauma assessment so that services could be tailored to her particular needs.” She contended that the “DHHS did not make reasonable efforts at reunification because it did not provide her with a trauma assessment to determine how best to overcome her alleged resistance to counseling.” The record showed that the services the “DHHS provided comported with the psychologist’s recommendations and was responsive to respondent’s expressed worries.” Foster care specialist-D testified that the “DHHS provided, and respondent participated in, individual counseling services, parenting classes, and Infant Mental Health classes. In addition, mindful of respondent’s comments about becoming overwhelmed and stressed at having to juggle responsibilities, [D] testified that she adopted a staggered approach to providing services after the second removal.” Given the record before the trial court, and affording “due regard to the trial court’s special opportunity to observe the witnesses,” the court held that the “DHHS did not fail to make reasonable efforts at reunification simply because it did not provide respondent with an assessment that no one recommended or requested.” Thus, it detected no error in the trial court’s finding that the “DHHS made reasonable efforts to reunify respondent with the children.”