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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Motion to intervene in garnishment proceedings; MCR 3.101(L)(2); Standing; The Michigan Business Corporations Act (MBCA) (MCL 450.1101 et seq.); Effect of a limited liability company’s lack of a certificate of authority; MCL 450.2051(1) & (2); Inapplicability of the MBCA to insurance, surety, savings & loan associations, fraternal benefit societies, & banking corporations; MCL 450.1123(2); Whether a foreign corporation is “transacting business” in Michigan; MCL 450.2012(1); Intervention of right; MCR 2.209(A)(1)-(3); Harmless error
Holding that appellant-lender “established standing, a right to intervene, and that denial of its right to intervene” was not harmless error, the court concluded that the trial court erred in denying its motion to intervene in plaintiff’s garnishment proceeding. After plaintiff obtained an arbitration award in its favor against defendants, the trial court entered a judgment in plaintiff’s favor against them. During the subsequent “garnishment proceeding, appellant filed a motion to intervene, objection to garnishment, and motion for acknowledgment of priority of its interest in defendants’ accounts. Appellant, part of” a bank, contended “that defendants were indebted to it for $7.1 million, and appellant held a first-priority security interest in defendants’ accounts.” It also asserted that it had notified defendants’ debtors to forward any payment owed to them to appellant, as lender. The trial court determined that appellant could not establish standing to intervene because it could not show it was registered in Michigan. On appeal, the court agreed with appellant that “MCL 450.1123(2) would likely preclude the MBCA from applying to appellant” given that it is a subsidiary of a bank and the MBCA does not apply to banking corporations. Further, the court concluded that even “if the MBCA applied, appellant was not required to have a certificate of authority to intervene because it was not ‘transacting business’ in Michigan, under the applicable definitions” – specifically, pursuant to “MCL 450.2012(h), enforcement of a security interest is not a business transaction in Michigan that requires a certificate of authority.” In addition, the court noted that even if such an “action was a business transaction, appellant was permitted to defend its perfected, senior security interest in plaintiff’s garnishment proceeding as an intervenor without a certificate of authority” under MCL 450.2051(2) and MCR 3.101(L)(2). It had a “substantial interest in the litigation[.]” Reversed and remanded.
Sentencing; Scoring of OV 12; MCL 777.42(1)(a); People v. Carter
The court held that there were sufficient grounds for the trial court to determine that defendant committed 3 “or more contemporaneous felonious acts beyond the sentencing offense” to score 25 points for OV 12. He pled guilty to producing child sexually abusive material and CSC II. He was sentenced to 85 to 240 months for the former and 71 to 180 months for the latter. He argued that the trial court erred in scoring OV 12. The court disagreed. In establishing a factual basis for his producing child sexually abusive material conviction, the trial court relied on only one of three videos defendant made on one day. The prosecution also relied on that video to support the CSC II conviction. “Because the trial court relied on only this one video in establishing defendant’s plea, only this one video constituted the underlying basis for the sentencing offenses . . . .” His PSIR reflected that he “produced two additional videos on that same day. These acts, identical in pertinent part to the sentencing offense of producing child sexually abusive material, could have constituted additional felonious acts under the same statute, MCL 750.145c(2). He admitted using his cell phone to record the three videos, which could have constituted additional felonious acts under MCL 752.796 (using a computer to commit a crime). He also possessed 64 files of child pornography on one of his Flickr accounts and 142 additional files of child pornography on another of his Flickr accounts, which could have constituted additional felonious acts under MCL 750.145c(4) (possession of child sexually abusive material).” The court noted that in Carter, the Supreme Court held that while “the defendant fired three gunshots, all three shots were a part of the single sentencing offense because” the prosecution relied on all three to convict. In contrast, here the trial court relied on only “one of the three contemporaneous videos to establish the factual basis for defendant’s plea.” The other two videos defendant made, “the use of a cell phone to commit a crime, and possession of additional child pornography” supported the OV 12 score. Affirmed.
Sufficiency of the evidence for convictions of AWIGBH, carjacking, & third-degree home invasion; People v. Blevins; People v. Barber; MCL 750.84(1)(a) & (b); MCL 750.529a; MCL 750.110a(4)(b); People v. Crews; Ineffective assistance of counsel; People v. Trakhtenberg; A prosecutor’s use of leading questions with a child witness; MRE 611(d)(1); Failure to raise a futile objection; Matters of trial strategy; Failure to conduct an adequate pretrial investigation & to call defendant as a witness; A substantial defense; People v. Russell; Prejudice; Waiver of the right to testify; People v. McDonald; Sentencing; Scoring of OVs 10 & 13; MCL 777.40(1)(c); People v. Cannon; MCL 777.43(1)(c) & (2)(a); People v. Gibbs
Holding that there was sufficient evidence to support defendant’s AWIGBH, carjacking, and third-degree home invasion convictions, and rejecting his ineffective assistance of counsel claims, the court affirmed his convictions. It also affirmed his sentences, upholding the 5-point score for OV 10 and 25-point score for OV 13. He was sentenced as a third-offense habitual offender to 13 to 30 years for carjacking, 6 to 20 years for AWIGBH, and 3 to 10 years for third-degree home invasion. The court concluded that the victim’s testimony was sufficient for the jury to find “that defendant was guilty of AWIGBH with strangulation because she testified that he punched her repeatedly and strangled her. The prosecution also presented photographic evidence of the injuries the victim sustained in the attack. After stealing a purse from his mother, defendant attempted to carjack the victim. The victim’s testimony included that defendant repeatedly bludgeoned her over the head, pushed her out of her car, strangled her, and ultimately succeeded in driving away with the car. By using force and violence in the process of stealing the victim’s vehicle, a jury could” determine that he committed a carjacking. In addition, there was evidence showing that he entered his mother’s home in violation of a PPO that ordered him to stay away from her. Regardless of his claim that he had her permission “to live in the home, he explicitly violated MCL 750.110a(4)(b), and thus committed third-degree home invasion by entering the home in violation of a PPO.” The court also disagreed with his claims that defense counsel was ineffective for failing to (1) object to the prosecution’s leading questions to a child witness; (2) “conduct a thorough pretrial investigation and call defendant as a witness; and” (3) object to the scoring of OVs 10 and 13. As to the OV scoring, with regard to OV 10 the court concluded that he “had greater physical strength than the victim,” which he used to his advantage in committing the carjacking. Further, he “committed a series of crimes against persons within a” 5-year period that justified the 25-point score for OV 13.
Remand for resentencing; Compliance with the remand order; People v. Russell; Principle that a court speaks through its written orders & judgments, not through its oral pronouncements; The law of the case doctrine; People v. Herrera (On Remand)
Concluding that the trial court did resentence defendant on each of his convictions, and that it did not ignore or violate the remand order by again imposing the same sentence for his FIP conviction, the court affirmed his amended judgment of sentence (JOS). On remand for resentencing, he was sentenced as a second-offense habitual offender to concurrent terms of 35 to 60 years for his second-degree murder conviction and 1 to 5 years for his FIP conviction, to be served after his 5-year sentence for his felony-firearm, second offense conviction. He argued that the trial court did not comply with the court’s remand order because it did not specifically address his FIP sentence. However, while “the trial court did not orally mention” his FIP sentence during the resentencing hearing, it issued a written amended JOS that expressly included a 1 to 5-year sentence for his FIP conviction. “Because ‘[a] court speaks through its written orders and judgments, not through its oral pronouncements,’” the amended JOS showed that it did resentence him for each of his convictions. Further, the trial court did not have to specifically address his FIP sentence at the resentencing hearing because his “original sentence for that conviction was not subject to the concerns that” the court expressed when it remanded the case. Unlike his original sentence for the murder conviction, his FIP “sentence was not at the top of his guidelines range for that offense, given his status as a habitual offender. Nor did this Court specify the imposition of a particular sentence on remand. Simply put,” nothing in the remand order required the imposition of a different sentence for his FIP conviction or any statements on the record by the trial court about “that sentence, particularly where neither of the parties elected to speak on the matter.” While defendant also asserted on appeal that the trial court violated the law of the case doctrine, he failed to explain how it did so.
Search & seizure; U.S. Const. amend. IV; Whether clothing evidence seized without a warrant should have been suppressed; United States v. Jacobsen; The “plain view” exception to the warrant requirement; Horton v. California; United States v. Davis (4th Cir.); Sheffield v. United States (DC); State v. Rheaume (VT); Craft v. Commonwealth (VA); State v. Thompson (WI App.); People v. Torres (IL App.); State v. Cromb (OR App.); Dombrovski v. State (AK App.); Buchanan v. State (FL Dist. Ct. App.); Florida v. Jardines; Arizona v. Hicks; United States v. Dillard; Lawful access; Boone v. Spurgess; Collins v. Virginia; Whether patients have “a reasonable expectation of privacy” in hospital rooms; Jones v. State (FL); State v. Morgan (WA); Failure to seize the clothing immediately; People v. Tashbaeva (NY Crim. Ct.); United States v. Neely (5th Cir.); Conviction under 18 USC § 924(c); Whether attempted Hobbs Act robbery is a crime of violence; United States v. Gooch; Hill v. United States (7th Cir.); United States v. St. Hubert (11th Cir.); United States v. Taylor (4th Cir.); Aiding & abetting jury instruction; Rosemond v. United States
The court upheld the district court’s denial of defendant-Clancy’s motion to suppress the clothing evidence found in his hospital room based on the “plain view” doctrine. Clancy and a cohort tried to rob a store, and during an exchange of gunfire, an employee shot Clancy in the arm. Shortly thereafter, two men matching the store employees’ descriptions of the robbers arrived at a hospital. Police later seized Clancy’s bloody clothing from the hospital. He unsuccessfully sought to have the clothing evidence suppressed. A jury convicted him of attempted Hobbs Act robbery and using a firearm related to a crime of violence. He argued on appeal that the warrantless seizure of his clothing violated the Fourth Amendment and that the evidence should have been suppressed. However, the court noted that the police properly responded to a call from the hospital about a gunshot victim. “Waiting for the shooting victim—who may well be a suspect—to leave the hospital runs the risk of losing track of him and, worse, of allowing him to strike again.” The court held that the warrantless seizure of the clothing was supported under the plain view doctrine. The officers saw the bloodied clothing in an area that was not constitutionally protected and no actual “search” was conducted. “Clancy’s clothing was ‘out in the open’ and visible to those passing by his room. That’s where the officer saw his clothes: from ‘the hallway, looking in.’” The clothing matched the radio description of the clothing worn by the store robbers, including a black ski mask. The court did not decide whether, as Clancy argued, a patient has a reasonable expectation of privacy in a hospital room because even if such an expectation was established, the police seized the clothing after he had been airlifted away. The court rejected his claim that the plain view doctrine did not apply because the clothing was not immediately seized upon discovery. In addition, it rejected his claim that attempted Hobbs Act robbery is not a “crime of violence” for purposes of a conviction under § 924(c), finding no clear error. It noted that at least one circuit has found it so, and that a completed Hobbs Act robbery is a crime of violence. It also rejected his challenge to the district court’s aiding and abetting jury instruction. Affirmed.
Assault on federal officers or on those assisting them; 18 USC §§ 111 & 1114; Whether a private contractor is a “person” under the statute; United States v. Bedford; United States v. Scurry (Unpub. 6th Cir.); United States v. Luedtke (8th Cir.); United States v. Ama (10th Cir.); United States v. Jacquez–Beltran (5th Cir.); United States v. Murphy (4th Cir.)
The court affirmed defendant-Grant’s conviction for assaulting a federal officer or those who assist them, where he assaulted a private prison guard under contract with the U.S. Marshal Service who performs the same federal duties a federal employee would otherwise fulfill. Grant argued that § 111 did not apply where the prison guard he assaulted was a private contractor assisting a Deputy U.S. Marshal and not a federal employee. “Section 111 criminalizes assaulting ‘any person designated in section 1114 . . . while engaged in or on account of the performance of official duties.’” In turn, § 1114 “includes ‘any officer or employee of the United States or of any agency in any branch in the United States Government . . . or any person assisting such an officer or employee in the performance of such duties.’” Grant claimed that the victim was not assisting a "specific officer or employee" but instead was hired to assist a federal agency, the U.S. Marshal Service. Thus, he contended that the private contractor was not a “person” under § 111. But the court noted that this argument was foreclosed by Bedford, where it held that a contract mail carrier delivering mail for the USPS was a “person designated” under § 1114. Here, “Grant’s victim was a private prison guard supervising the housing of federal inmates according to a contract with the Marshals Service. If not the victim, a federal employee would have been carrying out those same duties. In that way, the victim was a ‘person assisting an officer or employee [of the United States] in the performance of [official duties],’ making the assault committed upon her a violation of § 111.” The court noted that several other circuits had reached the same conclusion. It acknowledged that cases like Bedford “risk some expansion of federal law to criminalize conduct historically regulated at the state and local level[,]” but left this issue to Congress.
Copyright dispute over the use of software code & technical drawings; The Copyright Act; 17 USC §§ 102(a)-(b); Feist Publ’ns Inc. v. Rural Tel. Serv. Co.; Infringement; Lexmark Int’l, Inc. v. Static Control Components, Inc.; Copyright certificate; § 410(c); Whether defendants’ copying of plaintiffs’ technical drawings to reproduce the control system in them sounded in patent law rather than copyright; Mazer v. Stein; Baker v. Selden; National Med. Care, Inc. v. Espiritu (SD WV); A “useful article”; § 101; Niemi v. American Axle Mfg. & Holding Inc. (ED MI); Gusler v. Fischer (SD NY); Whether defendants’ use of plaintiffs’ software source code constituted prohibited copying; Sega Enters., Ltd. v. Accolade, Inc. (9th Cir.); The doctrines of merger & “scenes a faire”; Murray Hill Publ’ns Inc. v. Twentieth Century Fox Film Corp.
[This appeal was from the ED-MI.] In this copyright dispute over the use of software source code and technical drawings for an industrial control system related to plastic injection molding, the court affirmed summary judgment for defendants on the copyright infringement claim as to the drawings because it sounded in patent law rather than copyright law. But it reversed as to the software code, concluding there were material questions of fact. The parties entered into an oral agreement that plaintiff-Rogers would develop a rotary turntable control system for defendant-Elder and his company, defendant-Multiject. Elder asked Rogers for the design plans (Design 3) and source code, and days after Rogers gave Elder the information Elder informed Rogers that Multiject was going with defendant-RSW. RSW used Rogers’s design when manufacturing the control systems. Two years later, Rogers obtained copyright certificates for the code and the drawings, and two weeks after that, he and his company, plaintiff-RJ Control Consultants, sued for copyright infringement, trademark infringement, and several state law claims. The district court granted defendants summary judgment on both federal claims. It later denied Rogers’s motion for reconsideration, reconsidered its denial, and then again denied the motion. On appeal, the court agreed with the district court that “the use of the Design 3 drawing to manufacture a control system is not an act of copyright infringement.” The drawings themselves were protected by copyright. However, this protection “does not extend to the use of those drawings to create the useful article described in those drawings, as patent law—with its stricter standards requiring novelty—governs such use protection.” But as to the software code, the court concluded that expert testimony was required, noting the technology and “the questions necessary to establish whether that technology is properly protected under the Copyright Act” were complex.
Action for personal injury protection (PIP) benefits; Validity of a trial court order requiring plaintiff to provide discovery within 21 days; Dismissal as a discovery sanction; Traxler v. Ford Motor Co.; MCR 2.313(B)(2)(c); Thorne v. Bell; MCR 2.504(B)(1); Richardson v. Ryder Truck Rental, Inc.; Vicencio v. Ramirez
The court rejected plaintiff’s claim that the trial court’s order requiring her to provide discovery within 21 days was entered in contravention of the court rules, and that it abused its discretion in dismissing her case as a discovery sanction. The trial court had the inherent authority to enforce its scheduling order directives, and it was clear from the record that it considered several relevant factors before deciding to impose the sanction of dismissal. Plaintiff sued for PIP benefits for injuries she suffered in a motor vehicle accident after defendant-insurer refused to pay. As to the trial court’s 3/11/19 order requiring her to provide discovery within 21 days, the court noted that “[d]espite the trial court’s specific order mandating that plaintiff identify all service providers by name, address, and phone number within 28 days of the entry of” the 9/6/18 scheduling order, “plaintiff’s counsel refused to do so.” When defendant noticed depositions of plaintiff and her service providers, “only plaintiff appeared. During her testimony, plaintiff identified by name some of her alleged service providers and apparently, following the deposition, plaintiff’s counsel agreed to provide their contact information. He failed to do so. Because plaintiff failed to abide by the trial court’s Scheduling Order by identifying and providing the contact information for all of plaintiff’s service providers, and then refused to honor his agreement to do so following plaintiff’s deposition, defendant was again forced to seek the trial court’s assistance in obtaining this mandated discovery information.” The court noted that the “trial court, despite its Scheduling Order directive, gave plaintiff another 21 days to provide the contact information for plaintiff’s service providers. Again, plaintiff’s counsel failed to abide by the trial court’s order. And when he finally did provide some contact information, it was inaccurate and incomplete—necessitating yet another motion to be filed by defendant for this basic discovery information that had been” repeatedly ordered by the trial court. Now on appeal plaintiff argued that the trial court did not have the legal authority to enforce its own “Scheduling Order which mandated the disclosure of the contact information for plaintiff’s service providers in this first-party no-fault case, and further, that the trial court did not have the legal authority to grant defendant’s request that plaintiff be compelled to provide that contact information months later.” There was no merit in this argument. Affirmed.
Land contract dispute; Review of a trial court’s factual findings in a bench trial; Chelsea Inv. Group LLC v. Chelsea; Waiver; Varran v. Granneman (On Remand); Failure to raise an issue in the statement of questions presented; River Inv. Group, LLC v. Casab
Finding all of defendant-seller’s arguments unpersuasive, the court affirmed the trial court’s order granting judgment for plaintiff-buyer in this land contract dispute. All of her arguments boiled down to a contention “that the trial court’s factual findings made during the bench trial were in error.” The court noted that the trial court was permitted to consider the pleadings that she filed in the district-court forfeiture action and the assertions she made in those pleadings as to the amount due from plaintiff under the land contract. Further, the trial court was permitted to find that her “calculations of the amount due under the land contract were inconsistent and replete with errors. Giving the trial court’s factual findings the ‘great deference’ they are due, and acknowledging that the trial court was ‘in a better position to examine the facts’” than the court, it could not “say that the trial court’s rulings were clearly erroneous.” The court added that, to the extent defendant’s brief could “be construed as raising an argument that the trial court erred by considering at the bench trial claims not raised in plaintiff’s complaint,” defendant failed to raise the “issue in the statement of questions presented.” Thus, the court deemed it waived. Further, because she failed to brief the issue adequately, she abandoned it on appeal.
Zoning; § 1310 (extensions of nonconforming buildings) of defendant-township’s Zoning Ordinance; Ordinance interpretation; Ballman v. Borges; Sau-Tuk Indus., Inc. v. Allegan Cnty.; “Enlarge” or “alter”; “Setback” requirement; §§ 705.2(A) & 202; Consideration of the “harmony” of the area rather than merely interpreting the ordinance language; § 705.4(A) (requiring site plan review consider existing structures on adjacent properties in order to maintain harmony)
Concluding that the trial court did not err when it held that the ZBA misinterpreted § 1310 of the Zoning Ordinance and reversed the ZBA’s decision, the court affirmed. Defendant-Township argued that the trial court erred when it interpreted the plain language of § 1310 and reversed the ZBA’s denial of appellees’ request for a variance. The nonconformity was the setback requirement. It was “undisputed that the residence is an existing nonconforming building with respect to its setback, being set back only 8.3 feet from the road.” The Township argued that it was the “intent of the drafters of § 1310 to ‘prohibit any expansion or alteration of a nonconforming structure with less than ½ of the required setback distance.’ However, the plain language of the ordinance provides that ‘[n]o conforming building or structure may be enlarged or altered in a way that increases its nonconformity.’” The court noted that when “‘the words used in a statute or an ordinance are clear and unambiguous, they express the intent of the legislative body and must be enforced as written.’” Here, the court held that “the ZBA’s interpretation of § 1310 was contrary to the unambiguous language of § 1310. The proposed improvements to the property would not further decrease the setback, or, in other terms, enlarge or alter the nonconformity of the setback. Moreover, because the Township has elected not to challenge the trial court’s findings concerning the height requirement, there is no basis for concluding that the proposed improvements would result in a vertical nonconformity by exceeding the height requirement of § 705.4.” Thus, the ZBA’s finding were “not supported by competent, material, and substantial evidence because there was no evidence that any nonconformity would be enlarged or altered; in simple terms, the building would be just as nonconforming after the improvements as it was before.”