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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Action seeking payment for legal services; “Account stated” or “open account”; Leonard Refineries, Inc. v. Gregory; Proofs; MCL 600.2145; Echelon Homes, LLC v. Carter Lumber Co.; Request for admissions; MCR 2.312; Medbury v. Walsh; Proof of service; MCR 2.107(A) & (D); MCR 1.109(D)(3)
The court held that the trial court properly granted summary disposition for plaintiff-law firm in its action seeking payment from defendant-former client for services rendered. Plaintiff sued defendant for account stated, open account, breach of contract, and unjust enrichment after defendant failed to pay his legal fees. On appeal, the court rejected defendant’s argument that MCL 600.2145 was inapplicable, concluding “plaintiff established its claim for an open account or account stated. Plaintiff attached to its complaint an invoice detailing money owed and services rendered,” as well as “a more detailed invoice to its motion for summary disposition establishing the services rendered, the rate and time at which those services were performed, and the amount charged to defendant’s account.” And even though plaintiff’s affidavit could not “be considered prima facie evidence of indebtedness” under MCL 600.2145, it could “still serve as evidence on which to grant summary disposition[.]” Moreover, defendant admitted he retained legal services through plaintiff and incurred charges; he simply disputed the amount owed. However, he did not provide “any evidence to contradict plaintiff’s evidence.” The court also rejected defendant’s claim that plaintiff allegedly admitted the amount it requested was incorrect, based on the fact plaintiff did not respond to his request for admissions. “Plaintiff cannot be deemed to have admitted to the statements contained in the request for admissions because it was never served with such statements.” Affirmed.
Actions in state & federal court asserting claims under the Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.) & Title VII of the Civil Rights Act; Res judicata; 28 USC § 1738; Abbott v. Michigan; Adair v. State (MI); Effect of accepting a case evaluation under MCR 2.403; Garrett v. Washington (MI App.); Effect of the presence of additional parties’ U.S. ex rel. Sheldon v. Kettering Health Network; Recusal; § 455(a) & (b)(1); Liteky v. United States; Whether “taxed expenses” were allowable under § 1920
[This appeal was from the ED-MI.] The court affirmed summary judgment for defendant-General Motors (GM) on plaintiff-Alemarah’s Title VII claim based on res judicata arising from a state court case. Alemarah sued GM and her former supervisor in Michigan state court for employment discrimination under the ELCRA. She then filed this suit in federal court. The state case went to case evaluation, she and GM accepted the award, and that case was dismissed with prejudice. GM then moved for summary judgment in this case based on res judicata. “Alemarah moved (frivolously) to strike GM’s motion and to sanction GM for filing it. She also filed a motion to recuse the district judge,” who denied her motions, granted GM summary judgment, and taxed costs against her. On appeal, the court first held that the state court’s dismissal after she accepted the case evaluation award was a “judgment on the merits,” that the parties involved in both cases were “the same parties,” even though there was an additional party in the state action, and that the matters involved in the federal case could have been resolved in the state case. As to her motion for recusal, she argued that the judge was biased against her attorney, treating counsel with “hostility” and in a “retaliatory” manner. When Alemarah’s attorney objected to having the summary judgment motion hearing at a law school, the district court sent counsel a letter stating some of the attorney’s comments were offensive and indicating he would ask to have the attorney placed on a list of those participating in the district court’s pro bono program. The judge then cancelled the motion hearing and granted GM summary judgment. The record also contained some comments about Alemarah. The court disagreed that the comments were “merely ‘ordinary admonishments,’” but determined that the comments in the letter “were not ‘so extreme as to display clear inability to render fair judgment.’” While it found that the statement that the judge would seek to have counsel placed on the pro bono list could be seen as “punitive,” the court concluded that, “[v]iewed in the context of the frivolousness of several of Alemarah’s motions,” the district court’s “comments were the sort of ‘expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.’” Thus, the court held that the district court did not abuse its discretion by denying the motion to recuse. It also upheld the district court’s ruling taxing costs.
Sufficiency of the evidence; AWIM; Intent; People v. Jackson; Aiding & abetting; People v. Robinson; Ineffective assistance of counsel for failure to pursue a forensic exam, an insanity defense, & a witness interview; People v. Pickens; Trial strategy; People v. Toma; Prejudice; Insanity defense; MCL 768.21a(1) & (2)
The court held that there was sufficient evidence to show defendant assaulted the victim with the intent to murder him, or assisted a codefendant in doing so, and that he was not denied the effective assistance of counsel. He was convicted of AWIM, felony-firearm, and third-degree fleeing and eluding. The trial court sentenced him to 19 years to 25 years for AWIM, 2 years for felony-firearm, and 403 days in jail, with credit for time served, for fleeing and eluding. On appeal, the court rejected his argument that there was no evidence he knew or had reason to know his codefendant would shoot the victim. Defendant had attempted to shoot the victim first, but the gun misfired. “Although the gun misfired, the trial court could reasonably conclude that defendant’s act of pulling the trigger while pointing the gun at the victim’s head established [his] intent to assault the victim with the intent to murder him as the principal.” In addition, the evidence supported the trial court’s finding that he “had the requisite intent to commit AWIM under a theory of aiding and abetting, and in fact did so aid and abet.” The court also rejected his claim that trial counsel was ineffective for failure to pursue a forensic examination regarding defendant’s criminal responsibility and competency to stand trial, failure to pursue an insanity defense, and failure to interview defendant’s cousin. “Because trial counsel was not required to advocate a meritless defense and defendant has failed to establish that a successful insanity defense could have been pursued, defendant was not denied the effective assistance of counsel.” Moreover, he was not prejudiced. Affirmed.
Ineffective assistance of counsel; People v. Lopez; People v. Horn; People v. Spaulding; Prejudice; People v. Anderson; Matters of trial strategy; People v. Heft; People v. Odom; Failure to retain expert witnesses; People v. Payne; Duty to make a reasonable investigation; People v. McGhee; Factual predicate; People v. Muhammad
Holding that defendant failed to show defense counsel performed deficiently, let alone establish prejudice, the court rejected his ineffective assistance of counsel claims and affirmed his convictions. He was convicted of armed robbery, CCW, FIP, and felony-firearm. He argued that defense counsel was ineffective for failing to retain DNA and fingerprint experts and for failing to investigate. He was “correct that the prosecution’s case was dependent in a large part on fingerprint and DNA evidence,” given that the victim (B) could not specifically identify the perpetrator. “Without defendant’s fingerprint and DNA, the only evidence linking” him to B’s robbery was the fact his vehicle matched B’s description and that he “was driving in the same direction the assailant was likely driving.” But defendant did not offer any “explanation as to what weaknesses in the prosecution’s case could have been exposed had his counsel consulted with fingerprint and DNA experts. Nor is there anything ‘apparent on the record’ that makes counsel’s alleged decision not to consult experts unreasonable; in fact, defense counsel seemed well-versed in evidentiary procedures and DNA evidence.” The court concluded that he failed to show that defense counsel’s conduct was unreasonable. He also did not make any specific argument as to prejudice. His other ineffective assistance claims (that defense “counsel should have investigated and presented defendant’s claim that he was ‘carhopping’ earlier that night with” another man (J), and that J was the one who committed the armed robbery) were likewise unpersuasive. He did not indicate what more “information further investigation would have uncovered beyond what he allegedly told his counsel directly.” To the extent his argument was really about defense counsel’s failure to call him and his then-girlfriend to testify, the court found that “defense counsel could have reasonably concluded that the risks of having [them] testify outweighed the benefits.” Doing so would have required relying “on the jury believing defendant, who would have admitted to committing criminal acts in that parking lot that same night, and a biased witness, his then-girlfriend, in the face of DNA evidence and absolutely no other evidence of” J’s presence.
Sufficiency of the evidence for a conviction of conspiring to provide material support to a foreign terrorist organization (ISIS); 18 USC § 2339B(a)(1); Holder v. Humanitarian Law Project; Sixth Circuit Pattern Jury Instruction 3.01A; United States v. Rogers; Proof of a conspiracy; United States v. Harrison (Unpub. 6th Cir.); United States v. Lang (Unpub. 6th Cir.); United States v. Ellzey; Sufficiency of the evidence for a conviction of attempting to provide material support & resources to a foreign terrorist organization; A “substantial step”; United States v. Wesley; United States v. Bailey; United States v. Price; United States v. Shelton; Distinguishing United States v. Farhane (2d Cir.) & United States v. Pugh (2d Cir.); Direction & control; § 2339B(h)
The court affirmed defendant-Alebbini’s convictions for attempting and conspiring to provide material support and resources to ISIS. It held that there was sufficient evidence of a conspiracy, and that he had taken a “substantial step” toward completing the crime when he left the ticket area and moved on to the security and boarding area of the airport to board a flight for the Middle East. He argued that there was insufficient evidence to support his convictions because there was insufficient evidence that he entered into any kind of agreement with his alleged co-conspirator, his cousin, R. The court noted that the existence of a “formal agreement” was not necessary, and that a conspiracy could be established by circumstantial evidence of a “tacit understanding” of a common plan. The evidence against him could be gathered into three groups: “(1) recorded conversations between Alebbini and the Government’s informant, (2) recorded conversations between Alebbini and his friends and family, and (3) Alebbini’s post-arrest interview.” In all three instances, he acknowledged his allegiance to ISIS, admitted he intended to join the organization with R, and referred to a “plan” he had with R. He argued that a conspiracy could not be shown because there was no evidence to support R’s agreement to participate in the plan. But the government also cited R’s travel to the Middle East, his inquiries about ISIS locations, and his arrest and imprisonment by the Jordanian counterterrorism authorities. Further, no authority supported Alebinni’s contention that “a defendant charged with conspiracy cannot be the exclusive source of evidence showing his co-conspirator’s agreement.” The court held that the district court was entitled to infer from the evidence that Alebinni and R had agreed to provide material support to ISIS. Alebinni also argued that there was insufficient evidence to support his attempt conviction because at the time of his arrest, he had not taken a substantial step toward committing the crime. But the court agreed with the district court that he had taken a substantial step when he left the ticket area and headed to the boarding gate for a flight to Turkey. It held that this “conduct sufficiently corroborate[d] his subjective intent to attempt to provide material support to ISIS." Finally, it concluded that “a rational trier of fact could find that Alebbini intended to provide himself to work under the direction and control of ISIS.”
Motion to suppress evidence; “Probable cause” for a search warrant; Illinois v. Gates; Motion to sever the trials; Fed.R.Crim.P. 8(b) & 14(a); Zafiro v. United States; United States v. Dimora; Motion for a mistrial; Routine security measures; United States v. Moreno; Prejudice; United States v. Tasis; Jury instructions on self-defense & brandishing; Taylor v. Withrow; MCL 780.972(1); Sufficiency of the evidence for a conviction of committing a violent crime in aid of racketeering; 18 USC § 1959(a); United States v. Ledbetter; Motion for acquittal on a racketeering charge; § 1962(d); Salinas v. United States; Sentencing; Drug quantity; United States v. Walton; United States v. McReynolds; Ineffective assistance of counsel; United States v. Quinlan
[This appeal was from the ED-MI.] The court affirmed the three defendants-gang members’ (Tisdale, Davis, and Hill) convictions and sentences for racketeering conspiracy. They were members of a Detroit gang, the Playboy Gangster Crips, and were indicted, along with 11 other gang members, for racketeering conspiracy. Tisdale was also convicted of assault with a dangerous weapon in aid of racketeering and of using a firearm during a crime of violence. He argued that the affidavit that supported the search warrant for his home lacked probable cause. But the court concluded that the affidavit “was just fine.” An informant’s information, along with averments from two agents who saw drug activity at the house a few weeks before the affidavit, connected the address to ongoing criminal activity. Tisdale’s claim that the affidavit did not tell “how” the house was used for criminal activity was unsuccessful because there was still “the ‘fair probability’ that officers would find drugs at a house where they observed activity consistent with drug dealing.” It also rejected his assertion that the affidavit was “stale” where the officers submitted it two and a half weeks after the activity was observed. The court also held that there was sufficient evidence that he committed a violent crime in aid of racketeering where he fired a shot into an occupied home to maintain his status as the gang’s “shooter.” Davis argued that the district court erred by denying his motion to sever the trials. But the court held that a joint trial was called for where the three defendants were members of the same gang, charged for the same conspiracy, and most of the evidence applied to each of them. It further found that Davis was not prejudiced by the joint trial. The court also upheld the denial of his motion for acquittal on the racketeering conspiracy charge, finding that “[t]he jury had plenty of reasons to find that he advanced the gang’s interests.” It also affirmed the denial of Hill’s motion for a mistrial because the jurors saw him handcuffed, concluding he could not establish prejudice. In addition. the court found no error in the jury instructions, and held that the district court did not err when estimating the amount of drugs involved in the conspiracy in sentencing Tisdale and Davis.
Medical malpractice; Notice of intent; MCL 600.2912b(1); Access to relevant medical records; MCL 600.2912b(5); Affidavit of merit (AOM); MCL 600.2912d(1) & (3); Limitations period; Scarsella v. Pollak; Failure to address the trial court’s actual reason for a ruling; Seifeddine v. Jaber; Principle that a default may be imposed against a defendant in a medical malpractice case if the defendant does not file an affidavit of meritorious defense; MCL 600.2912b(7); Wilhelm v. Mustafa; Kowalski v. Fiutowski; Frankenmuth Mut. Ins. Co. v. ACO, Inc.; “Authorized representative“ (MCL 333.26263(a)) & “medical record” (MCL 333.26263(i)) as used in the Medical Records Act (MCL 333.26261 et seq.); Answers to interrogatories; MCR 2.309(B)(4); MCR 2.310(C)(2)
The court held that the trial court did not err by granting defendants-doctor and medical facility summary disposition of plaintiff’s medical malpractice claim, or by denying as moot her motion for a partial default judgment. Plaintiff sued defendants alleging medical malpractice arising out of her knee replacement. The trial court found in favor of defendants on the basis that she failed to file an AOM. On appeal, the court held that because plaintiff failed to file her AOM, “she never properly commenced her medical malpractice complaint and the statute of limitations was not tolled by the filing of her complaint.” It rejected her argument that the trial court abused its discretion by denying her motion for partial default judgment because defendants “‘purposely’ violated a number of statutes and court rules in a deliberate ‘effort to impede’ her ability to prosecute her medical malpractice claim.” By failing to “address the trial court’s actual rationale for denying her motion,” she failed to establish entitlement to relief. In addition, “the so-called violation of MCL 333.26263 is not grounds for imposing the drastic sanction of a default judgment on defendants.” Further, because the statute “provides adequate remedies, a default judgment is not warranted for the failure to comply with MCL 600.2912b(5)” and (7). Finally, “[i]n the absence of evidence of purposeful wrongdoing, and given that no request to compel discovery was actually made, the drastic sanction of a default judgment was not warranted based upon the failure to timely respond to the discovery requests.” Affirmed.
Waiver of participation in the best-interest hearing; Applicability of In re Ferranti & MCR 3.971; Court rule interpretation; Henry v. Dow Chem. Co.; Due process; In re Contempt of Henry; The trial court’s findings as to the children’s best interests; In re Moss Minors; Waiver of an issue on appeal; People v. Head
Concluding that neither Ferranti nor MCR 3.971 applied, and that respondent-father waived the right to challenge the trial court’s determination of the children’s best interests when he validly waived participation in the best-interest hearing, the court affirmed the order terminating his parental rights. He argued that the trial court did not “specifically state that his plea waiver would result in the permanent loss of his legal rights to his children and that he would have no right to make decisions about” them or to see them. He also claimed that the trial court failed to advise him of his rights under MCR 3.971(B)(3) and (4), and asserted that this required the court to find, as the “Supreme Court did in Ferranti, that his due process rights were violated and that his waiver was invalid.” The court disagreed, concluding that MCR 3.971, by its plain language, “refers to pleas of admission or no contest to allegations in original or amended petitions. The waiver form signed by respondent at the best-interest hearing contains no such pleas;” he had previously entered pleas to the petition’s allegations and did “not challenge those pleas on appeal.” The court saw nothing in the court rule’s language indicating that MCR 3.971(B)’s requirements “were intended to apply to a waiver of participation in a best-interest hearing.” In addition, it concluded that it was “not required by general due process principles to apply the rules governing pleas, or the rationale of Ferranti, to a waiver of this type.” The concerns underlying the decision in Ferranti were “not present here, and a trial court need not treat a waiver of participation in a best-interest hearing as analogous to a plea of admission. Rather, a trial court (or reviewing court) should simply determine whether the waiver was ‘an intentional relinquishment or abandonment of a known right’ considering the due process interests involved, as it would for any other waiver.” The court held that, in light of “the nature of the proceeding, the various competing rights involved, and the steps taken by the trial court to ensure that respondent was intentionally relinquishing a known right,” it adequately protected his due process rights, and did not err in failing to apply MCR 3.971’s prerequisites to his waiver.
Termination under § 19b(3)(c)(i); Reasonable reunification efforts; In re Hicks/Brown; Best interests of the children; In re Olive/Metts Minors; In re Moss Minors; In re White; In re Schadler; Relative placement; In re Mason
Holding that the DHHS made reasonable reunification efforts, that § (c)(i) was met, and that termination was in the children’s best interests, the court affirmed termination of respondents-parents’ parental rights. Their parental rights were terminated based on respondent-mother’s physical abuse of the children, and respondent-father’s unemployment, lack of stable housing, and criminal history. On appeal, the court found that, as to the mother, the DHHS made reasonable reunification efforts and that statutory grounds for termination existed. Given that the services provided “were, in fact, tailored to [her] intellectual disability, there [was] no merit to [her] argument . . . that the services provided failed to reasonably accommodate her disability.” In addition, “more than 182 days elapsed between the issuance of the initial dispositional order” and the termination hearing, and the “conditions leading to the adjudication were [her] parenting skills and substance abuse.” She was not credible, continued to drink, and “her sobriety while incarcerated was not proof that she would remain sober upon release.” The court also found that, as to both parents, termination was in the children’s best interests. “The children’s placement with their paternal grandmother weighed against termination.” But the father could not provide them “with the permanency, stability, and finality that they needed.”