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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Excessive force claims under 42 USC § 1983; Graham v Connor; Use of a taser; Cockrell v City of Cincinnati; Eldridge v City of Warren (Unpub 6th Cir); Qualified immunity
The court held that a jury could find that defendant-Jones violated plaintiff-C.S.’s clearly established constitutional rights when he tased him because C.S. “showed no resistance other than a passive failure to respond to an order to show his hands” and his failure to respond could have been attributed to a vehicle collision. C.S. and plaintiff-M.S., both minors, were passengers in a vehicle involved in a high-speed chase with police, including Jones. They were injured when the vehicle collided with another vehicle, and C.S. was tased when he did not respond to police commands. Although most of plaintiffs’ claims were dismissed, the district court denied Jones and defendant-Sheriff Doyle qualified immunity on C.S.’s § 1983 excessive force claim. They argued that it erred in doing so. The court first noted that it lacked jurisdiction to consider any challenges to the district court’s determination as to what could be proved at trial, or to the inferences the district court drew from those facts. The district court rejected Jones’s argument that he tased C.S. because of noncompliance where there was no evidence “of verbal hostility or physical resistance” on the record, and where “C.S. was found slumped over in the backseat” after the collision. The court concluded that based on the record, a jury could find that Jones violated C.S.’s clearly established constitutional rights when he tased him. It additionally found that “the remote risk that C.S. could have been armed does not establish that he posed a reasonable threat of danger.” It affirmed the district court’s denial of qualified immunity on C.S’s excessive force claim.
Dismissal for lack of jurisdiction; Sovereign immunity; Injunctive relief; The Ex parte Young doctrine; Article III standing; Due process claims; “Injury in fact”; Lujan v Defenders of Wildlife; Buchholz v Meyer Njus Tanick, PA; Claim under the Excessive Fines Clause
The court affirmed the district court, holding that it lacked subject-matter jurisdiction over plaintiff-WCI’s motion for an injunction under the Ex parte Young doctrine because WCI could not establish an injury in fact to support Article III standing. Further, its claim for damages was barred by sovereign immunity. WCI was subject to a fine or to have its liquor license revoked after it violated an Ohio administrative regulation, Rule 52, that “prohibits a business with a liquor license from having nude performances on its premises.” After unsuccessfully appealing in state court, WCI sued in federal court, asserting constitutional violations. Many of its claims were previously dismissed, but its due-process and Eighth Amendment claims were remanded. Defendants-Ohio agencies then successfully moved to dismiss for lack of subject-matter jurisdiction. On appeal, the court first held that to the extent WCI sought damages for defendants’ enforcement of Rule 52, those claims were barred by sovereign immunity. It noted that sovereign immunity and Eleventh Amendment immunity are often treated the same, but they “are conceptually distinct.” As there was no diversity, sovereign immunity was at issue, and the court held that it applied where Ohio did not consent to the suit. The court then considered the availability of injunctive relief. WCI pointed to two “sources of injury: the bare threat of potential, future sanctions and the effect of those potential sanctions on its current business. Neither” was sufficient to establish Article III standing. The court also held that WCI lacked standing to bring its claim under the Excessive Fines Clause. As with its due-process claims, WCI did “not purport to seek relief from any past violation of its Eighth Amendment rights. Rather, it argues exclusively for prospective injunctive relief from future excessive fines arising from Rule 52 violations. But because WCI has not alleged in the complaint that any future Eighth Amendment violation is ‘certainly impending,’ it” failed to establish a sufficient injury for Article III standing.
Claim for profits from the sale of real property; The statute of frauds; MCL 566.106; Summary disposition of the entire complaint; MCR 2.116(I)(1); Fraudulent concealment; Slander of title; Whether there was a binding settlement agreement; MCR 2.507(G)
The court held that plaintiff’s claim for profits from the sale of a parcel of real property (the Tuscola property) failed as a matter of law due to the statute of frauds, as did his fraudulent concealment and slander of title claims, and that the trial court did not err in ruling the parties did not reach a binding settlement agreement. Thus, it affirmed summary disposition for defendant. The parties are siblings. Plaintiff contended “he had an oral agreement to retain an interest in the Tuscola property, despite his having signed a purchase agreement and warranty deed both of which explicitly stated that plaintiff was conveying his interest in that property to defendant ‘free and clear of all encumbrances.’” But the court held that his reliance on this “supposed oral agreement to avoid the terms of the written purchase agreement and warranty deed fails. as a matter of law because the statute of frauds conditions the validity of agreements of that sort on being in writing.” Plaintiff next argued the trial court erred in granting summary disposition as to his “entire complaint, when defendant’s motion focused only on one portion of it.” But the court noted that it has, citing MCR 2.116(I)(1), “affirmed a trial court’s sua sponte grant of summary disposition where no party moved for summary disposition.” It concluded here that “plaintiff’s ‘fraudulent concealment’ claim fails as a matter of law because plaintiff did not allege that defendant had concealed plaintiff’s potential cause of action.” In addition, given that the only relevant documentation clearly established he “had no ownership interest in the Tuscola property, his slander claim fails as a matter of law because defendant’s alleged statements to a subsequent purchaser that plaintiff had no interest in the property were, in fact, true.” Finally, his argument the trial court erred in determining there was no binding settlement agreement also failed “as a matter of law because the parties did not state in open court that they had reached such an agreement, and because there was no evidence of such a written agreement, as" MCR 2.507(G) requires.
Sentencing; Scoring of OV 14; MCL 777.44(1)(a) & (2)(a); People v Ackah-Essien; “Lead”; Ineffective assistance of counsel; Failure to raise a futile objection; Acquitted conduct; People v Beck; People v Stokes
Holding that the trial court did not err in scoring 10 points for OV 14, that defense counsel was not ineffective for failing to raise a futile objection to this score, and that the trial court did not violate Beck, the court affirmed defendant's sentences. He was convicted of possession of less than 25 grams of cocaine and maintaining a drug house. The trial court sentenced him as a fourth habitual offender to concurrent terms of 44 to 180 months for each conviction. The court concluded that “it was reasonable for the trial court to infer from the evidence that defendant and” his friend (A) were “selling drugs from her apartment, and that defendant was the primary perpetrator. The evidence suggested, consistent with the jury verdict, that a significant amount of defendant’s crack cocaine was in” A’s bedroom. In addition, A knew “defendant was selling the cocaine that was in her apartment. Further, defendant maintained an exclusive area in the apartment where he stored the drugs, and [A] disavowed knowledge of the specific location of the drugs but knew that they were sold with her apartment as the base of operations. The evidence thus indicated that defendant was the main actor, or the ‘primary causal or coordinating agent,’ in possessing the cocaine with [A] and using her apartment as a drug house, thus supporting the trial court’s determination.” The court also found no merit in his assertion that the trial court utilized an incorrect evidentiary standard. As to his claim that it impermissibly sentenced him based on a belief that he was guilty of narcotics trafficking, the context of the trial court’s reference to trafficking (defendant was acquitted of delivery charges) indicated it “was explaining why it denied defendant’s request for a sentence of probation with drug treatment in lieu of incarceration, rather than explaining the basis for the minimum sentence of 44 months, which was within the guidelines range of 5 to 46 months.” This was not a Beck violation.
Other acts evidence; MCL 768.27a; MRE 403; People v Watkins; Harmless error; People v Lukity; Sentencing; Scoring of OV 11; People v Baskerville; MCL 777.41(2)(b)
Holding that defendant failed to show the challenged other acts “evidence was substantially more prejudicial than probative under MRE 403[,]” the court found that it was properly admitted under MCL 768.27a and affirmed his CSC I convictions. But it vacated his sentences and remanded for resentencing due to an error in scoring OV 11. His convictions arose from “sexual offenses against his underaged sister,” while the other acts evidence involved “his uncharged sexual offenses against another minor female” (A). Applying the Watkins factors, the court found there were sufficient similarities that rendered the other acts “evidence probative to the jury’s determination of the issues before it. Both the charged and prior conduct involved defendant’s sexual assaults of minor females while they were alone with him.” Despite an age difference between A and the victim, both “were legally unable to consent to sexual activity given their ages.” Thus, the evidence that defendant committed a sexual offense against A when she was 15 years old “was probative to his propensity to engage in sexual activity with other underage females, such as the victim at issue in this case. Additionally, each incident involved defendant luring or grooming a minor female with gifts just before a sexual assault. Although there are relevant differences between the charged and prior conduct, such as the relative severity of the assaults, we conclude that these differences did not create a serious concern that the jury would render its verdict on anything but its thoughtful consideration of the relevant evidence.” The court noted that the other acts evidence “was of a lesser statutory degree than the charged conduct.” This made it unlikely the jury “found defendant guilty of comparatively worse conduct on the basis of its reaction to comparatively lesser conduct.” In addition, his assault of A “took place only a few years after [his] last sexual contact with the victim” and while A testified to having memory issues, the reliability of her claim was bolstered by the fact she “reported the alleged assault within a short period of time after it occurred.” But as to sentencing, the court held that OV 11 should have been scored at 0 rather than 50 points because the victim’s testimony did “not support that multiple penetrations occurred during the sentencing offenses,” and this change in scoring altered his guidelines range.
Jury instructions on the elements of CSC IV; MCL 750.520e(1)(a); M Crim JI 20.13; “Sexual contact”; Other acts evidence; Notice; MCL 768.27a(1); People v Gaines; MRE 403; People v Watkins; Sentencing; Use of phone call recordings that were not disclosed to the defense; People v Taylor
The court held that the trial court did not abuse its discretion in instructing the jury on the elements of CSC IV where defendant was charged under MCL 750.520e(1)(a) or in admitting other acts evidence under MCL 768.27a. Further, any error in playing recordings at sentencing of defendant’s jail phone calls was harmless. Thus, the court affirmed his convictions of CSC III and IV, as well as his sentences of 75 months to 15 years for CSC III and 16 months to 2 years for CSC IV. The prosecution successfully requested that the trial court modify the model instruction on CSC IV, M Crim JI 20.13, “to include that defendant ‘allowed’ complainant to touch him because the word ‘made’ in the model instruction misleadingly implied that” the prosecution had to prove defendant used force. Defendant asserted that this instruction made it possible for him to be convicted based on conduct “not prohibited by the statute.” The court disagreed, noting that the statutory definition of sexual contact makes it “clear that a person ‘engages’ in ‘sexual contact’ not only when he or she touches a victim’s intimate parts, but also when the victim touches the actor’s intimate parts.” The provision under which defendant was charged, MCL 750.520e(1)(a), “makes it illegal to engage in sexual contact with a victim ‘at least 13 years of age but less than 16 years of age’ when the actor is more than 5 years older than the victim. In contrast to Subsection (b), whether the actor used force or coercion to accomplish the sexual contact is irrelevant for purposes of Subsection (a). Consent is” also irrelevant given that “‘a victim below the age of consent is conclusively presumed to be legally incapable of giving his or her consent to sexual intercourse.’” The court concluded that the jury “instruction that defendant intentionally ‘allowed’ complainant to touch his genital area for sexual purposes was clearly consistent with MCL 750.520e(1)(a) and MCL 750.520a(q). Further, the inclusion of ‘or allowed’ in the instruction fit the evidence, because defendant said in his interview with the police that complainant had touched him, and complainant testified that defendant took her hand and put it on his penis inside his underwear and moved her hand up and down.”
Sole physical custody; Proper cause; Best-interest factors (c), (d), (e), (h), & (j); Weight given to the evidence; Receiving new evidence at a de novo hearing; MCL 552.507(5)(b); MCR 3.215(F)(2); Claims of judicial bias; Ineffective assistance of counsel
Holding that the trial court did not abuse its discretion in awarding defendant-father sole physical custody of the parties’ three children, the court affirmed. Plaintiff-mother argued that it erred by finding proper cause to consider a change in custody. “Concerns regarding the children’s medical care and the contentious nature of parenting-time exchanges both relate to best-interest factors and so are proper grounds for the court to consider a change in custody.” Further, the trial court’s finding that there were legitimate concerns as to “the children’s medical care and parenting-time exchanges was not against the great weight of the evidence.” The parents’ testimony established that one child (KJ) had contracted a “MRSA” staph infection and “experienced three or four outbreaks within the prior year. Defendant described the outbreaks as ‘really bad,’” and the condition “required repeated medical attention and, in addition, special efforts to prevent outbreaks and the spread of the condition to others.” Also, both parents “testified about a burn requiring medical attention that KJ sustained on her foot when she stepped on a hot curling iron plaintiff had left on the floor. According to defendant, plaintiff did not immediately seek medical attention for the burn despite its serious nature. Defendant further testified that plaintiff did not always address the children’s medical issues appropriately or follow-up regarding" them. Testimony and evidence at the de novo review hearing also established that the other two children “suffered from warts and open wounds. This was sufficient evidence to support the trial court’s finding of proper cause on the basis of medical concerns.” As to the parenting-time exchanges, although both parents “testified that there had not been any recent problems, they both provided testimony about contentious parenting-time exchanges . . . .” “The children are young and witnessing such volatile parenting-time exchanges could have negative impact on their wellbeing.” Thus, the trial court’s determination that “proper cause existed to consider a change in the children’s custodial environment was not against the great weight of the evidence.” Finally, the trial court’s findings as to factors (c), (d), (e), (h), and (j) were also not against the great weight of the evidence. Thus, it followed that its custody decision was not an abuse of discretion.
Modification of parenting time & legal custody; Established custodial environment (ECE); Best-interest factors; MCL 722.23(b), (f), (g), & (j); Denial of request for sole legal custody
The court held that the trial court’s finding of a joint ECE and its findings on the best-interest factors were not contrary to the great weight of the evidence. Further, the trial court did not err by denying plaintiff-father’s request for sole legal custody. He argued that the trial court erred by finding the parties’ child (DW) had an ECE with both parties after defendant-mother’s “behavior and lack of diligence left her unable to exercise meaningful parenting time for over a year.” However, the reduction in defendant’s parenting time was not dispositive of whether DW continued to have an ECE with her. “Rather, the question is always to whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort.” The court determined that the “evidence presented on this point was somewhat limited, but was sufficient to support the trial court’s finding. Defendant described herself as an emotionally nurturing parent and noted that she was better able to set boundaries and discipline for DW after completing” the parenting workshop. She “indicated that DW struggled with their separation, and she regularly comforted him by expressing her love and hope that they would see each other soon.” Despite the physical restrictions on her “parenting time during the COVID-19 pandemic, defendant continued to be verbally affectionate with DW and reinforce her pride in how he was handling the difficult circumstances.” The trial court recognized that the temporary change in parenting time could have altered his ECE, but it did not believe that occurred here. Its “finding was well reasoned, given that the . . . testimony describes the exact type of relationship that is characteristic of an [ECE], as DW apparently continued to rely on defendant for things like guidance, discipline, and comfort.” The court also rejected plaintiff’s challenges to the trial court’s findings on best-interest factors (b), (f), (g), and (j). Affirmed.
PIP benefits; Permission to use the vehicle involved in the accident; Michigan Automobile Insurance Placement Facility (MAIPF)
The court reversed the order granting summary disposition pursuant to MCL 500.3173a(2) and 500.3113(a) to defendant-MAIPF and remanded, concluding that there was a genuine issue of material fact as to permissive use. Plaintiff-Hines was not a named insured and the vehicle she drove belonged to a family friend, nonparty-B, who was also not insured; thus, Hines submitted a claim for benefits with MAIPF. She argued that “genuine issues of material fact existed as to whether she unlawfully took the vehicle, i.e. had permission to use it, and whether she made a material misrepresentation on the application for benefits to MAIPF.” MAIPF argued that she “falsely and knowingly represented that she had permission to use the vehicle involved in the accident in her claim forms and in her deposition testimony.” It asserted that those “misrepresentations were material.” The court agreed with the trial court that only she “testified that she was given express permission to use the vehicle via a phone call on the morning of the accident.” Also, it agreed that “she represented that she was a permissive user in her application for benefits.” Finally, it agreed that, despite her post deposition claim she erred as to “which phone was used to place the call to [B], there is no competent evidence that any phone call originated from Hines’ number to [B’s] on the day of the accident.” But it disagreed with the trial court’s determination that no material question of fact remained as to permissive use. The phone records were “unrebutted as to whether a call originated between the two numbers provided by Hines at her deposition. However, both Hines and [B] testified that a phone conversation occurred that morning, albeit they disagreed as to" its content. She testified that she spoke to B about using “the vehicle on the morning of the incident and that she was given permission to use that vehicle during that call.” B admitted receiving her “call, but denied giving her permission to use the vehicle in the call. Hines’s testimony alone is sufficient to raise a question of fact on the nature of the conversation.” The phone records were “not dispositive of the contents of the call which both parties" admitted occurred. It will be for the fact-finders at trial to resolve conflicting testimony because, as M Civ JI 97.13 “reads, the fact finders ‘are free to believe all, none, or part of any person’s testimony.’”
No-fault action; Rescission of a policy; Balancing the equities; Pioneer State Mut Ins Co v Wright; Unlawful taking; MCL 500.3113(a)
The court vacated the trial court’s orders granting summary disposition for defendants-State Farm and Progressive in this no-fault action and remanded. Plaintiff argued on appeal that “the trial court erred by granting summary disposition of his claim for first-party no-fault benefits (PIP benefits) against Progressive because it applied the wrong version of MCL 500.3113(a) to determine that plaintiff was precluded from recovering benefits.” On cross-appeal, Progressive (the insurer of the real owner of the motorcycle involved in plaintiff’s accident) contended that his “request for relief should be denied because summary disposition was appropriate regardless of which version of the statute is applied.” The court held that “the trial court erred by failing to apply the version of MCL 500.3113(a) in effect at the time of plaintiff’s accident, and that summary disposition should not have been granted in favor of Progressive because a question of fact remained as to whether plaintiff unlawfully took the motorcycle involved in the accident so as to preclude him from no-fault benefits under MCL 500.3113(a), as amended by 1986 PA 93.” Plaintiff and Progressive also challenged the trial court’s order granting summary disposition for defendant-State Farm, plaintiff’s mother’s insurer. Their principal arguments were that the trial court erred by holding that (1) plaintiff’s mother made a material misrepresentation as to “her address when she applied for the subject State Farm policy, and (2) the equities favored allowing State Farm to rescind the policy.” The court declined to address the first issue but agreed that “the trial court abused its discretion in balancing the equities and determining that rescission was appropriate.” It instructed the trial court on remand “to consider the nonexclusive list of factors adopted in Pioneer” to the extent they apply, as well as any other relevant factors.
Auto negligence; Loss of vision as a threshold injury under MCL 500.3135; Causation; Waived issue; MCR 7.212(C)(5); Serious impairment of body function; McCormick v Carrier; Permanent serious “disfigurement”; Distinguishing Fisher v Blankenship
The court held that the trial court erred when it found there was no genuine issue of material fact as to whether plaintiff-Arturo’s “new retinal detachment and blindness was unrelated to the vehicle incident.” However, plaintiff-Valerie’s subjective complaints of pain alone were insufficient to show a serious impairment and the trial court did not err in dismissing her claim she suffered a permanent serious disfigurement due to the loss of a tooth. Plaintiffs alleged that defendant-Trinity’s “cab driver drove negligently through the parking lot and almost hit a pole.” Valerie claimed that “she suffered a cracked tooth and pain in her knees from the incident.” Trinity asserted that both the cracked tooth and any knee injury failed to meet the statutory threshold of injury. As conservator and guardian for Arturo, Valerie also claimed that his injuries caused him to become legally blind. She alleged that Arturo’s blindness and her “painful knees required assistance from others to accomplish the tasks of daily living.” The trial court found, based on the testimony of “Arturo’s ophthalmologist, that it was speculative to relate the deterioration of the eye and new retinal detachment to the vehicle incident.” The court disagreed. It held that upon “consideration of the whole record, and giving the benefit of reasonable doubt to plaintiffs, reasonable minds could differ as to whether the vehicle incident caused or aggravated the progression of Arturo’s eye problems.” As to Valerie’s serious impairment claim, she presented “sworn testimony in support of her claim that she was unable to provide care for her son and that she had difficulty with activities of daily living. Thus, she met the burden of going forward as to her claim that her ability to lead her normal life was affected. There is no contest to the use of one’s knee as an important body function.” But the record lacked “proof of any impairment that was objectively manifested.” Finally, the trial court did not err in dismissing Valerie’s claim that she suffered a permanent serious disfigurement with the loss of a tooth where the failure to produce evidence supporting this claim was fatal. Reversed and remanded.
Whether reasonable reunification efforts were required; MCL 722.638; MCR 3.977(E); In re HRC
Holding that the DHHS was not required to make reasonable reunification efforts under the circumstances, the court affirmed the trial court’s order terminating respondent-father’s parental rights to the child at issue (S). It concluded that because the DHHS requested termination in the amended petition that listed respondent as S’s legal father for the first time, and it was determined at the dispositional hearing that testimony he committed acts included in MCL 722.638(1) was credible, “the DHHS was not required to make reasonable efforts to reunify” respondent and S. In addition, “MCL 722.638(1)(a)(ii) and (2) required that the DHHS seek termination” based on respondent’s alleged sexual abuse of S’s siblings. The court also noted that while it was not required to do so, the DHHS included action steps for respondent in a parent agency treatment plan. It “reported that it sent a letter or had a meeting with father on a monthly basis, but services were limited while he was incarcerated.” The foster-care worker (G) for S and her siblings “testified at the dispositional hearing that there were no services available that could address father’s sexual abuse of the children and allow the children to safely be in his care.” G further testified that she had worked with him since 8/18, “and he was minimally engaged in services before he was incarcerated and failed to benefit from those offered. Thus,” the court was unpersuaded by respondent’s claim “that he would engage in substance abuse counseling when he was released from jail . . . .” Further, while he referred to the pandemic in arguing that the DHHS did not offer services, S was born before its onset. At that point, respondent had already been incarcerated since 5/19, and “had denied sexually abusing any of the children. It is thus unlikely that he would participate in services addressed to rectify such issues.”