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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Intentional infliction of emotional distress (IIED) regarding a burial; Wrongful interference with the right of burial; Breach of contract; Damages; Admissibility of extrinsic evidence
The court found that the trial court properly dismissed plaintiffs’ IIED and wrongful interference with the right of burial claims. The trial court erred when it ruled that plaintiff-Key could not recover emotional distress damages for her breach-of-contract claim, and by holding that a dispute of material fact existed as to whether there was a contract breach, but it correctly dismissed this claim given the contract language. Thus, the court affirmed the “dismissal of Key’s breach of contract claim, albeit on different grounds than those given by the trial court.” Key’s son, Desmond, was murdered and she contracted with defendants for the burial. She was late for the “burial and arrived after the sole family member present had told defendants they could begin to bury Desmond. Key and Desmond’s siblings sued defendants, alleging” claims due to the premature burial. Plaintiffs argued that the trial court erred by dismissing their claim of IIED “because defendants’ alleged act of burying Desmond before any mourners arrived constituted reckless disregard for the interests of” his family. But it was “undisputed that a family member was at the burial service from the beginning. Moreover, while plaintiffs alleged that defendants buried Desmond before other mourners arrived, they did not allege that defendants otherwise failed to bury Desmond with the dignity and respect that should be afforded to the deceased.” The court concluded “that the alleged conduct, even when viewed in a light most favorable to plaintiffs, is not sufficiently extreme and outrageous to sustain an” IIED claim. As to plaintiffs’ wrongful interference with the right of burial claim, they had to show that defendants withheld the body. The court first noted that they “did not allege in their amended complaint that defendants withheld Desmond’s body from plaintiffs. Indeed, there was no evidence that defendants did so. Under the burial contract’s terms, Key authorized defendants to inter” the body on a specific date. There was no disagreement that Desmond was buried on that day. Thus, defendants did not “withhold” the body within the usual meaning of the word. Finally, the court held “that defendants buried Desmond within a reasonable time and did not breach the burial contract.” Affirmed.
Sentencing; Consideration of “acquitted conduct”; People v. Beck
The court held that under Beck, defendant could not be held criminally responsible for victim-J’s death in any way, including at sentencing. The line to be drawn was where J “brandished his weapon. All of the relevant facts and circumstances leading up to that point can be considered by the trial court when sentencing defendant” on his FIP conviction. Defendant’s conduct after that point and J’s resulting death fell “under Beck’s concept of ‘acquitted conduct’ and are off limits for purposes of sentencing.” Thus, the court vacated his FIP sentence and remanded for resentencing. It took “no position on whether the facts and circumstances of” the offender and the offense warranted a departure from the advisory guidelines. It did not vacate his felony-firearm sentence because the trial court properly sentenced him to 60 months as required by statute. Defendant was acquitted of second-degree murder and voluntary manslaughter based on a self-defense theory. The trial court imposed the mandatory minimum of five years on the felony-firearm conviction (second offense), and, on the FIP conviction, it departed upward from the guidelines range and sentenced him to 84 to 240 months. The issue was under Beck, “what factual circumstances involving the shooting could the trial court consider, if any, when sentencing defendant” for FIP. The court noted that had the prosecution decided not to retry him on the murder charge, his “sentence might well have survived appeal. The circumstances surrounding the shooting would not have been shielded under Beck, and, given this, the trial court could have taken into account the undisputed observation that the decedent would still have been alive had defendant not violated the law and taken a firearm to the scene, especially knowing the substantial risk of serious violence.” However, because he was “charged with and acquitted on a self-defense theory, the shooting and resulting death fell under Beck’s conception of ‘acquitted conduct’ and, therefore, should have been off-limits at sentencing.”
Self-defense instruction; Waived issue
Holding that defendant waived any claim of error as to the trial court’s refusal to give a self-defense instruction in relation to his FIP and CCW charges, the court affirmed. He was convicted of several weapons possession charges stemming from a shooting and from his possession of a weapon at the time of his arrest. The trial court instructed the jury that it could acquit him of several assault charges if it determined that he acted in self-defense. The jury accepted that invitation and acquitted him of all assault and felony-firearm charges arising from the events. Defendant challenged the trial court’s limitation of the self-defense instruction to his assault charges. The court held that it may not consider the merits of his challenge, however, as he waived any claim of error “when his counsel expressly stated that she agreed with the court’s ruling.”
Waiver of the right to counsel; Procedures at a probation revocation hearing; MCR 6.445; Due process; Sentencing; People v Steanhouse
Concluding that there was no violation of MCR 6.445 or due process, the court affirmed the denial of defendant’s motion to withdraw her guilty plea to a probation violation on the ground that she did not make a knowing and intelligent waiver of her right to counsel. As to her claim the trial court erred in not departing downward from the guidelines, it in fact did so, and there was no showing that the sentence it imposed constituted an abuse of discretion. She was sentenced as a fourth-offense habitual offender to concurrent terms of 76 months to 30 years for meth possession with intent to deliver; 19 months to 30 years for meth possession; 24 months to 30 years for marijuana possession with intent to deliver and for delivery of a controlled substance; and 59 days for possession of a controlled substance and for subsequent-offense possession of marijuana. She asserted that her waiver of counsel at the probation revocation hearing was not knowing and intelligent because “the trial court failed to specifically advise her that she was entitled to a court-appointed attorney before she entered a guilty plea to the probation violation.” The court noted that at the plea hearing, “the trial court meticulously walked through the maximum penalties of the most serious charges and the punitive implications for defendant if she were found guilty. [It] stated that [she] had the right to an attorney and to a probation violation hearing, before asking [her] if she wished to proceed without an attorney. Defendant stated plainly that she understood the consequences and did not wish to be represented by counsel.” The court noted that the record indicated she “had an extensive criminal history and a history of pleading guilty.” In light of her history, it was “logical to conclude that she understood the ‘right to be represented by an attorney’ as encompassing the right to be represented by an attorney appointed by the court ‘at public expense.’” The court noted that shortly after she pled guilty, she successfully “requested, by name, the same attorney who had represented her during her previous drug-offense proceedings[.]” Given that this attorney was court-appointed, there was no doubt that she “was aware that the right to an attorney encompassed a right to an attorney at public expense. Nor is there any doubt that the trial court understood that she was aware of her rights in this regard.”
Probation violation; Whether defendant was entitled to resentencing; Failure to consider information in the probation-violation presentence investigation report; Requirements of MCR 6.445(G) & 6.425(E); Reasonableness of a departure sentence; People v Steanhouse (Steanhouse II); Adequacy of the explanation
While the court affirmed the trial court’s ruling that defendant violated his probation, it vacated his departure sentence and remanded for resentencing, noting that if the trial court again imposes a departure sentence, it must explain its reasons for doing so in greater detail. He was convicted of attempted AWIGBH against his ex-wife. The prosecution presented evidence that clearly showed he tried to contact her through her divorce attorney (O), which violated his probation terms. While he contended “he believed he was acting in propria persona” when he did so, he testified O “told him during this conversation that he needed to find a different attorney. Thus, there is evidence that defendant knew or should have known that his attorney had not formally withdrawn as counsel” at the time. Even if he did not, O told him “that he could not send messages to his ex-wife through her.” The court deferred to the trial court’s assessment of the witnesses’ credibility. It further noted his contention that O “strategically waited to notify probation of defendant’s conduct to benefit defendant’s ex-wife in the divorce proceedings has no effect on whether” he violated the terms of his probation. As to sentencing, the record showed the trial court considered the information in the probation-violation report and thus, defendant was “not entitled to resentencing on the basis that the trial court failed to consider that information.” The trial court gave three reasons for departing from the guidelines range of zero to nine months in jail and imposing a sentence of three to five years in prison. First, that “defendant ‘systematically tr[ied] to destroy’ his ex-wife because she did not want to stay married to him. This statement was not supported by facts in the record before” the court, although “it might have been drawn from the divorce proceedings . . . .” Second, the trial court doubted that probation was adequate to protect her “and opined that prison was necessary to” do so. Third, the trial court found “that defendant lied at the hearing when he said that his efforts in the divorce proceedings were about his children and not money.” This was also apparently drawn from information outside the record here and instead from the divorce proceedings. While these factors might justify a departure sentence, quadrupling the recommended guidelines sentence “requires a more extensive explanation than the trial court gave here.”
Conspiracy to damage a protected computer; 18 USC §§ 1030(a)(5)(A) & (c)(4)(B); Aggravated identity theft (§ 1028A); Sentencing; USSG § 2B1.1(b)(1)(J) (enhancement for causing losses of more than $3.5 million but less than $9.5 million); § 2B1.1(b)(4) (being in the business of receiving & selling stolen property); § 3B1.1(a) (leadership-role enhancement); § 2B1.1(b)(11)(B)(i) (“trafficking” unauthorized access devices); Whether § 2B1.1(b)(11)(B)(i)’s two-level enhancement can apply to a defendant convicted of aggravated identity theft; Four-level enhancement under § 2B1.1(b)(19)(A)(ii) for being convicted of an offense under § 1030(a)(5)(A)
In an amended opinion (see e-Journal # 76294 in the 10/20/21 edition for the original opinion), the court again joined other circuits and held that application of the two-level sentencing enhancement under § 2B1.1(b)(4) is limited to defendants who sold goods that others had stolen, as opposed to those who sold goods they had stolen. It also held that § 2B1.1(b)(11)(B)(i)’s two-level enhancement for trafficking an unauthorized access device can apply to a defendant convicted of aggravated identity theft. In section III.D of the amended opinion, it rejected defendant-Miclaus’s argument “that even if the stolen-credit-card sales fall under the trafficking enhancement,” it still did not apply to him. The court determined that while he may not have sold the stolen credit cards himself, “his role in collecting the proceeds shows he played a part in the trafficking scheme.” As to his point about the scope of the group’s (referred to as Bayrob) criminal activity, trial testimony showed at least five members of the group, “including Miclaus, helped traffic the stolen credit cards on” a website on the dark web, AlphaBay. The court considered “the number of credit card sales, the number of Bayrob members directly involved, and the two years of sales on AlphaBay together. In light of this evidence, Miclaus cannot plausibly claim the stolen credit card sales fell outside the scope of Bayrob’s jointly undertaken criminal activity.” The district court did not err in applying the trafficking enhancement to him.
No-fault benefits; Payment for chiropractic services; MCL 500.3107b(b); Measel v Auto Club Group Ins Co; Whether an MRI was outside the scope of chiropractic practice as of 1/1/09; The practice of chiropractic as defined under MCL 333.16401; Whether the MRI was unlawful; Hofmann v Auto Club Ins Ass’n; Michigan Head & Spine Institute, PC (MHSI)
The court held that the trial court erred in ruling the MRI performed by intervening plaintiff-MHSI pursuant to a referral by a chiropractor was unlawful and in reading MCL 333.16401(b) to limit a chiropractor’s use of imaging technology to x-rays. Thus, it reversed summary disposition for defendant-no-fault insurer and remanded. The trial court found that the MRI of plaintiff-insured’s lumbar spine was outside the scope of chiropractic practice as of 1/1/09 and unlawful. The court held that it “erred as a matter of law by concluding that the MRI in this case was unlawful because even if the trial court had correctly determined that the MRI was not within the practice of chiropractic as of [1/1/09], as that term was defined by MCL 333.16401," this did not necessarily make the MRI unlawful. Thus, it erred in its summary disposition ruling. But it could have granted summary disposition based on MCL 500.3107b(b) given its determination that the MRI was not within the practice of chiropractic as of 1/1/09. The court considered the “statutory definition of ‘practice of chiropractic’” and whether it permits the use of an MRI. It determined that because the MRI here “was limited to a portion of the spine, its use was not outside the scope of chiropractic diagnostic authority” and the trial court erred in finding otherwise. Further, it was clear that, when used to analyze the spine, an MRI fell within the scope of chiropractic practice as it was defined on 1/1/09. The trial court concluded that “MRIs were not permissible analytical instruments because the statute mentioned x-rays expressly without also mentioning MRIs even though the Legislature could have included” a reference to MRIs. However, the court found there was “nothing in the statute prohibiting the use of an MRI or indicating that an x-ray is the only permissible form of imaging technology; the Legislature’s decision not to expressly refer to MRIs in the statute when an MRI is clearly within the term ‘analytical instrument’ is irrelevant.” The plain language of MCL 333.16401(1)(b)(iii) “indicates that x-ray machines and analytical instruments may be used. Because an MRI satisfies the definition of ‘analytical instrument[],’ its appropriate use is within the practice of chiropractic as of [1/1/09]. The trial court erred by failing to apply the unambiguous statutory language as written.”
Petition for mental health treatment; Applicability of MCL 330.1435(4); MCL 330.1434
In this case involving a petition for mental health treatment, the court held that MCL 330.1435(4) did not apply and that the probate court properly followed MCL 330.1434. Thus, it affirmed the order for respondent to be hospitalized for up to 60 days. He argued that the probate court erred by not complying with MCL 330.1435(4), which he contended “requires that an individual subject to a petition receive two examinations because it states ‘after each examination.’” However, the court concluded that this provision only applies in cases where “less than two clinical certificates are filed with the petition.” The probate court must order additional exams in such cases. But the petition here “was accompanied by two clinical certificates—each prepared by a psychiatrist—'after personal examination of the individual,’ within 72 hours before the filing of the petition” in accordance with MCL 330.1434(3) and (4). The court noted that this statute does not contain any language requiring multiple exams, or any language “indicating that it was the Legislature’s intent to impose such a requirement.” Thus, respondent did not show any error, let alone plain error.
Petition for discharge from continuing mental health treatment; Ineffective assistance of counsel; Failure to request appointment of an expert witness; Due process; In re KB; People v Kennedy
Holding that respondent-appellant failed to establish any error, the court affirmed the trial court’s order denying his petition for discharge from continuing mental health treatment. There was “nothing in the record suggesting that counsel’s decision not to seek appointment of an expert was not a reasonable strategic choice.” Respondent conceded that “a court-appointed expert might have agreed with petitioner’s expert witness, so counsel could have reasonably decided that seeking appointment of an expert was not worth the risk.” Respondent also argued that “his due-process rights were violated because the trial court, by failing to appoint an expert witness to testify on respondent’s behalf, denied him a fair hearing.” He cited no authority that supported his position that a “[r]espondent in a petition concerning the Continuing Order for Mental Health Treatment has an absolute right to have their own expert upon the [r]espondent raising the issue of proper medical care.” Regardless, even assuming that he had “a due-process right to a court-appointed expert to the same extent as a criminal defendant,” he was still not entitled to relief. He did not establish “a ‘reasonable probability’ that an appointed expert would be favorable to his defense.” Rather, he only made a “bare assertion” to this effect, which the Michigan Supreme Court explained in Kennedy “is insufficient to establish a constitutional entitlement to an appointed expert.” Thus, the court held that the trial court did not plainly err by failing to appoint an expert on his behalf.
No-fault insurance; Coordination of benefits; MCL 500.3109a; Farm Bureau Gen Ins v Blue Cross Blue of MI; Tousignant v Allstate Ins Co; Personal representative (PR)
Concluding that the trial court erred in determining that Tousignant did not apply and in denying defendant-State Farm’s summary disposition motion, the court reversed and remanded for entry of summary disposition for State Farm in this dispute over no-fault benefits. Plaintiff-estate’s decedent, Reid, “paid a discounted premium for her State Farm no-fault policy because she coordinated the policy with her health insurance.” She received medical services from intervening plaintiffs-Columbia Clinic and Capital Health Care, PC after a motor vehicle accident. “Neither provider accepted her Blue Care Network (BCN) plan and they sought recovery from State Farm. State Farm denied coverage, but” the trial court ordered it to pay. After MCL 500.3109a was enacted, there was a dispute “whether a no-fault insurer would be liable for healthcare services an injured party received that were not covered by his or her health insurance policy.” The Michigan Supreme Court concluded in Tousignant that where a “no-fault insured’s employer chooses to provide health insurance, or the no-fault insured chooses to obtain health insurance, from an HMO, and the no-fault insured chooses to coordinate no-fault and health coverages, the no-fault insured has, in effect, thereby agreed to relinquish choice of physician and facility.” The court found that this was precisely what happened here. It was undisputed that Capital and Columbia were not BCN participating providers, and neither Reid nor her PR ever asserted that the services received from them “were ‘Emergency health services’ or that BCN ‘arranged or approved’ of services through these out-of-network providers” as required for coverage under the BCN certificate of coverage. As to the other Tousignant exception, as in that case, neither Reid nor the PR “ever ‘contended that necessary medical care was unavailable or of inadequate quality at [BCN] facilities.’” Thus, under Tousignant, “State Farm was not required to pick up the slack and pay the Columbia and Capital bills.” The trial court should have granted it summary disposition of their claims.
Claims for exemplary & punitive damages for termination of workers’ compensation benefits; Res judicata; Statute of limitations; Intentional infliction of emotional distress (IIED); Worker’s Compensation Board of Magistrates (WCBM)
The court held that the trial court did not err in dismissing plaintiff’s claim for exemplary and punitive damages for defendant’s termination of worker’s compensation benefits to an injured employee (Marusza). Also, it concluded that plaintiff’s IIED claims were barred by res judicata, partially barred by the statutes of limitations, and, even to the extent they were not barred, plaintiff failed to establish the IIED claims. Plaintiff (Marusza’s guardian) argued that the trial court erred in dismissing her claims for exemplary and punitive damages after defendant breached its contractual and statutory duty by refusing to pay Marusza worker’s compensation benefits. The WCBM’s order indicated she “received a favorable ruling for payment of worker’s compensation benefits and medical expenses.” The parties disagreed “as to whether defendant’s termination of benefits was a violation of the WCBM’s order and entitlement to exemplary and punitive damages. While the award of worker’s compensation benefits was a fixed amount of $592.88, a fixed amount of compensation for reasonable and necessary medical expenses was not established. As a result, the trial court only has authority to enter a judgment from the WCBM’s order for worker’s compensation benefits.” To the extent plaintiff sought “to enforce the order for medical expenses, such authority is vested exclusively with the WCBM.” In addition, there was “no entitlement to exemplary or punitive damages for defendant’s post-WCBM order termination of benefits under the worker’s compensation insurance policy.” The court concluded that because that policy called for the payment of money on the occurrence of a specific event, it was “not a personal contract but a commercial contract for which damages for emotional or mental distress are not recoverable.” Thus, plaintiff’s remedy for the alleged bad faith refusal to pay benefits was “limited to recovery of actual attorney fees.” Plaintiff contended that “defendant’s tortious conduct, causing Marusza severe emotional distress, existed independent of the breach, allowing exemplary and punitive damages.” However, the record indicated plaintiff’s IIED claims related “solely to defendant’s alleged failure to pay worker’s compensation benefits in accordance with the” policy. Thus, even assuming the complaint would otherwise establish an IIED claim existed, it did not state a claim upon which relief can be granted. Affirmed.
Circuit court’s lack of jurisdiction to hear an untimely appeal from a Zoning Board of Appeals (ZBA); Quality Mkt v Detroit Bd of Zoning Appeals; MCL 125.3606(3)(b)
Holding that “a circuit court lacks jurisdiction to hear an untimely appeal from a ZBA,” the court affirmed the circuit court’s dismissal order. It was undisputed that plaintiff missed the filing deadline. Regardless of the reason behind his untimely filing, the circuit court lacked jurisdiction to address the merits of his appeal. Thus, the court held that the circuit court did not err by dismissing his appeal. In light of this conclusion, the court did not address plaintiff’s remaining arguments on appeal.
Quiet title action; Subject-matter jurisdiction to amend a judgment of foreclosure; Fee simple title; Setting aside a foreclosure; In re Petition of Wayne Cnty Treasurer for Foreclosure; Right-of-way easement; MCL 211.78k(5)(e); Rights indicated in a plat; Minerva Partners, Ltd v First Passage, LLC; Abandonment; Gardens of Rest v Upper MI Power & Light Co; Meyer v Meldrum; Equitable remedy of requiring defendants’ improvements removed
The court held that the trial court properly vested fee simple title in the property at issue (the Paige Street property) in defendants-Garys, but that it erred in determining there was still a right-of-way easement for plaintiffs and that its remedy of requiring the removal of the Garys’ improvements was error. Thus, it affirmed the ruling that the Garys own fee simple title to the Paige Street property but reversed the ruling “that plaintiffs enjoy any easement rights over” it. The Garys bought the property from the county after a judgment of foreclosure was entered. The court rejected their assertion that the trial court did not have “subject-matter jurisdiction to amend the judgment of foreclosure.” Despite the language of MCL 211.78k(5)(e), “circuit courts have subject-matter jurisdiction to determine whether notice was constitutionally adequate.” In addition, plaintiffs raised “equitable claims and sought equitable relief. It is well-settled that a circuit court has general equity jurisdiction.” But the court also rejected plaintiffs’ argument that the trial court erred in ruling the Garys were the fee title holders of the Paige Street property because “the foreclosure process was flawed” and should have been set aside with the result that defendant-county treasurer would not have had valid title to convey to the Garys. While equity allows a foreclosure to be set aside, the circumstances did “not warrant such an extraordinary remedy.” Even if the court accepted “the proposition that taxing Paige Street, in whole or in halves, was improper, there is no indication that the treasurer was aware of any such mistake. Likewise, there is no indication that the then-owners of Lots 19 and 20 believed such taxation to be impermissible and declined to avail themselves of the opportunities to challenge the foreclosure on that basis.” In regard to the easement issue, the court noted that as to “platted streets, the instructive cases are Meyer and Gardens of Rest, which, when read together, instruct that nonuse is . . . sufficient to abandon such a street without any manifested intent by other lot owners, so long as the nonuse is so thorough that the street becomes essentially unusable for travel.” The facts showed that when plaintiffs bought “their properties, the use of Paige Street as a street had already been abandoned through nonuser combined with a total failure of the use for which the property had been dedicated, and” they continued this.