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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Attorney fees & costs; Pirgu v. United Servs. Auto Ass’n; Smith v. Khouri; The Federal Odometer Act (49 USC § 32701 et seq.); Nabors v. Auto Sports Unlimited, Inc. (ED MI); The fee-shifting provision; § 32710(b); Spoliation of evidence; Brenner v. Kolk; Sanction of an adverse inference; Damages; Grace v. Grace
Holding that the trial court did not sufficiently adhere to the Smith and Pirgu framework, the court vacated the attorney fee award to plaintiff and remanded for a determination of the appropriate amount of fees in accordance with case law. It further concluded that he was entitled to recover reasonable attorney fees and costs incurred in litigating his fee petition under the Federal Odometer Act. Thus, on remand, “the trial court should include any such reasonable fees and costs” in determining the appropriate award amount. The court found that the trial court’s analysis on the attorney fee issue was cursory. It “stated that an hourly rate of $350 was reasonable but did not explain how it arrived at that figure. The trial court was required to begin its analysis by determining the fee customarily charged in the locality for similar legal services.” The court determined that plaintiff “presented evidence supporting his request for a $400 hourly fee for his principal attorney, . . . including the 2017 economics of law practice survey of the State Bar of Michigan,” his attorney’s affidavit, and a consumer attorney’s testimony. In addition, the trial court had “to multiply the reasonable hourly rate by the reasonable number of hours expended.” Plaintiff’s proffered billing invoices indicated “63.1 hours of billable time were expended; the trial court stated that 40 hours were reasonably expended but failed to explain how it arrived at this figure.” Further, after deciding a baseline figure, it “failed to address most of the other factors that should be considered in determining whether an upward or downward adjustment was appropriate. . . . Other than tersely asserting that the case was not novel and difficult, the trial court did not address the remaining factors.” Further, there was no “indication that the trial court considered the remedial nature of the legislation involved” here. Given its “failure to adhere to the appropriate framework for determining a reasonable attorney fee,” the court vacated the attorney fee award and remanded “to determine the appropriate amount of the attorney fee award in conformity with” the case law discussed in the opinion. It also found that “defendant’s suggestion that alternative grounds existed to affirm the trial court’s attorney fee award” was contrary to the case law. Affirmed in part, reversed in part, and remanded.
The Michigan Business Tax; Taxing the gain on the sale of an out-of-state business that conducted some business activity in Michigan; The proper method for calculating the business tax due under the statutory formula; MCL 208.1201(1); MCL 208.1301(2); Alternative apportionment under MCL 208.1309
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 72583 in the 3/16/20 edition for the published opinion) and remanded the case to that court to address plaintiff’s argument as to the proper method for calculating the business tax due under the statutory formula. The court concluded that this “foundational issue must be addressed before determining that MCL 208.1309 requires application of an alternative method of apportionment.”
Termination of disability benefits under ERISA; The correct legal standard for plaintiff’s contract claim; 29 USC § 1132(a)(1)(B); Effect of the decision being made by a subsidiary; Griffin v. Hartford Life & Accident Ins. Co. (4th Cir.); Zurndorfer v. Unum Life Ins. Co. of Am. (SD NY); Whether the decision was arbitrary & capricious; McClain v. Eaton Corp. Disability Plan; Jackson v. Blue Cross Blue Shield of MI Long Term Disability Program (Unpub. 6th Cir.); Substantial evidence; General Med., P.C. v. Azar; Equitable claims for breach of fiduciary duty & disgorgement; § 1132(a)(3); Rochow v. Life Ins. Co. of N. Am.; CIGNA Corp. v. Amara
The court affirmed the district court’s application of the arbitrary and capricious standard to plaintiff-Davis’s contract claim, holding that defendant-Hartford Life, and not one of its subsidiaries, made the discretionary decision that he was no longer disabled. Further, the termination decision was not arbitrary and capricious. The court also affirmed the grant of Hartford Life’s motion for judgment on the pleadings as to his breach of fiduciary duty and disgorgement claims. Hartford Life provided disability benefits to Davis under an ERISA-regulated plan. After it determined that he was no longer disabled and terminated the benefits, he sued for contract breach, breach of fiduciary duty, and disgorgement. On appeal, Davis first argued that the district court applied the wrong standard of review to his contract claim. The district court applied the arbitrary and capricious standard instead of the de novo standard because if found that Hartford Life exercised its discretionary authority in terminating Davis’s benefits. He argued that a separate subsidiary of Hartford Life actually made the determination and thus, the de novo standard should have been applied. But the court noted that the subsidiary was only involved in the decision for administrative purposes, and that Hartford Life actually exercised the discretion as to benefit termination. It also noted that other courts had “rejected this exact argument with respect to benefits determinations involving Hartford Life” as well as other insurers. Further, the court held that it was “reasonable for Hartford Life to determine that Davis no longer qualified as disabled under the policy[,]” and that “substantial evidence” supported this decision. Lastly, as to his equitable claims for breach of fiduciary duty and disgorgement, the court held that Davis failed to show that they were based on “an injury distinct from his contract claim” or that § 1132(a)(1)(B)’s remedies were inadequate.
Ineffective assistance of counsel; People v. Trakhtenberg; Whether defense counsel’s performance fell below an objective standard of reasonableness; Prejudice; Whether there was a reasonable probability that the outcome would have been different; People v. Armstrong
The court held that trial counsel’s performance in failing to object to testimony by a detective (F) fell below an objective standard of reasonableness, and that the trial court did not err in determining that F’s testimony prejudiced “defendant to the point that there was a reasonable probability that but for counsel's errors, the results of the proceedings would have been different.” Thus, it affirmed the order granting him a new trial. The prosecution argued that trial counsel’s failure to object to F’s testimony was not “ineffective assistance of counsel because not objecting was a matter of trial strategy.” But a review of the record revealed that other than F’s “testimony, the only other evidence supporting defendant’s convictions for possessing less than 25 grams of cocaine was the residue found on a scale in defendant’s shared apartment.” In addition, F’s “testimony bolstered the evidence to support defendant’s possession with the intent to deliver less than 50 grams of heroin conviction. Bearing in mind that ‘[a]n abuse of discretion occurs when a trial court’s decision falls outside the range of reasonable and principled outcomes,’” on this record, the court could not determine the trial court abused its discretion in finding that defense counsel’s failure to object to F’s “testimony fell below an objective standard of reasonableness.” Also, noting that it reviews a trial court’s factual findings for clear error, it concluded that in this case, the trial court properly construed F’s testimony as a “real mess-up.” Additionally, there was no error in the trial court’s finding that F “indicated twice during his testimony that he located 1.8 grams of cocaine powder, even though the lab report didn’t reflect any other substances located in the trunk tested positive for cocaine.” In a case where defendant was charged with cocaine possession, the court concurred “with the trial court that trial counsel’s failure to object to assertions by law enforcement that cocaine was present in a trunk over which defendant had control and had been seen entering earlier in the day, while in possession of a state lab report indicating there was no controlled substance in the trunk, was not a sound trial strategy.”
Lack of a simultaneous translation; People v. Gonzalez-Raymundo; Right to an interpreter; MCL 775.19a; Use of foreign language interpreters; MCR 1.111(B)(1) & (C)(1); Prosecutorial misconduct; General statement that the evidence was uncontroverted even when only defendant could have contradicted it; People v. Fields; Ineffective assistance of counsel; Trial strategy; People v. Matuszak; Failure to make a futile objection
The court held that the trial court did not clearly err in determining that “defendant knowingly and voluntarily waived his right to an interpreter during trial” or abuse its discretion in not appointing an interpreter for the victim. It also rejected his prosecutorial misconduct claim, concluding that the prosecutor did not improperly remark on defendant’s silence in rebuttal closing argument. Finally, it found no merit to his ineffective assistance of counsel claims. Defendant was convicted of CSC III for an incident that occurred when he and the victim were both international students at a Michigan university. Because it found that the trial court did not err as to defendant’s waiver of his right to an interpreter, the court held that there was no due process violation when the trial court allowed him to proceed to trial without simultaneous translation. As to the failure to appoint an interpreter for the victim, while the record indicated that she “had difficulty understanding colloquial English terms, the record did not demonstrate that she was ‘not understandable, comprehensible, or intelligible . . . .’” Rather, the record showed she was “clearly able to talk about the events leading up to the incident. More importantly, she was able to explain how defendant sexually assaulted her.” As to the prosecutorial misconduct claim, while the prosecutor asserted that parts “of the victim’s testimony were ‘uncontroverted,’ the record does not support defendant’s argument that the prosecutor focused the jury’s attention on” the fact he did not testify. Instead, the record showed that the prosecutor focused “on the elements of the crime.” Lastly, the court found that defense counsel’s decisions about interpreters were sound trial strategy under the circumstances and that counsel was not ineffective for failing to make a futile objection to the prosecutor’s rebuttal closing argument. Defendant failed to show that defense “counsel’s performance fell below an objective standard of reasonableness” or prejudice. Affirmed.
Sufficient evidence for a first-degree murder conviction; People v. Bennett; Aiding & abetting; People v. Robinson; Felony murder; People v. Lane; Facts & circumstances giving rise to an inference of malice; People v. Carines; Admission of autopsy photos; Waiver; People v. Buie; Relevance; MRE 401; Unfair prejudice; MRE 403; People v. Mesik (On Reconsideration)
Holding that there was sufficient evidence to support defendant’s first-degree murder conviction on an aiding and abetting theory, and that there was no plain error in the admission of autopsy photos, the court affirmed. He was convicted of first-degree murder supported by the theories of premeditated and felony murder, armed robbery, felony-firearm, and obstruction of justice. The court found that sufficient circumstantial evidence and reasonable inferences existed that he “performed acts to assist in the commission of premeditated murder and intended the commission. Defendant told the vehicle occupants that the victim needed a ride to pick up bail money and promised” the vehicle’s driver (B) gas money if he would “drive him. After the victim got out of the car to collect the money, defendant exchanged whispers with” another vehicle occupant (T). He then stood nearby while the victim obtained the money. As “the victim returned to the vehicle, defendant gave a hand gesture to [B] to drive off to prevent the victim from entering the vehicle.” B drove away and turned a corner. “At that time, defendant reportedly told the victim to ‘gimme’ and that he ‘didn’t want to do it to you bro.’ [T] then shot the victim multiple times. Defendant then instructed [T] to ‘finish’ killing the victim, and [T] again shot the victim multiple times.” Defendant removed the victim’s shoes, “laughed in the vehicle, carried the shoes, and stated that the victim should have sold him the shoes. Although it was unclear whether defendant or [T] took the bail money, the men had the money when they entered the vehicle and split the proceeds, further” indicating his planning of the crime. His instruction for T to finish the killing also showed that he “intended the murder and was not surprised by [T’s] actions. Under the circumstances, there was sufficient evidence to establish that defendant aided and abetted first-degree premeditated murder.” The court further held that there was sufficient evidence to support his conviction on the basis he aided and abetted felony murder, and that unfair prejudice did not substantially outweigh the photos’ probative value.
Resentencing; People v. Lockridge; United States v. Crosby (2d Cir.)
Concluding that the trial court on remand complied with the Crosby procedure set out in Lockridge, and gave an “appropriate explanation” for deciding not to resentence defendant, the court affirmed the order denying him resentencing. He was convicted of AWIM and felony-firearm. The trial court sentenced him to 210 to 500 months for AWIM to be served consecutively to his 2-year sentence for felony-firearm. The court previously affirmed, but the Supreme Court later reversed as to his sentencing and remanded the “case to the trial court for possible resentencing in accordance with the Crosby remand procedure” as provided in Lockridge. Defendant now requested another remand for additional resentencing proceedings, arguing that, pursuant to Lockridge, the trial court did not state an appropriate explanation for its decision. But the court noted that it “afforded defendant the opportunity to avoid resentencing. Instead, defendant wrote a letter to the trial court clerk’s office asking for an update on the Supreme Court’s remand order and the status of his legal representation for resentencing. The trial court then received input from defendant’s counsel in the form of a” memo, and the prosecution’s response. It “noted in its written order that it had reviewed the file, pleadings, and presentence investigation report and would not have imposed a materially different sentence under the Lockridge sentencing procedure. Ultimately, the trial court affirmed defendant’s sentence without a hearing, explaining that ‘it would have imposed the same sentence absent the unconstitutional constraint on its decision[.]’” The court concluded that its reference in its order to reviewing the documents in the trial court record before making its decision “provided the necessary basis for reaffirming defendant’s original sentence.”
Habeas corpus; 28 USC § 2241; Whether aliens in withholding-only proceedings are detained under 8 USC § 1226 or § 1231; 8 CFR § 236.1(d)(1); §§ 241.4 & 241.13(a); § 1229(a)(3); § 1231(a)(5); § 1208.2(c)(2); Whether a reinstated removal order is “administratively final”; Whether the length & indefiniteness of petitioner’s ongoing detention violated his due process rights; Zadvydas v. Davis; Whether aliens detained under § 1231(a) must receive a bond hearing after a specific lapse of time
In an order, the panel denied petitioner-Melara Martinez’s petition for a rehearing en banc, allowing its prior holding (see e-Journal # 73510 in the 7/31/20 edition) to stand—that he was not entitled to a writ of habeas corpus, and that aliens in withholding-only proceedings are not entitled to a bond hearing before an IJ. It also held that because his removal was reasonably foreseeable, his continued detention did not violate due process under Zadvydas. The panel concluded “that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.” Thus, the petition was denied. Judge Gibbons would have granted rehearing for the reasons stated in her dissent in the original opinion.
PIP benefits; The No-Fault Act (MCL 500.3101 et seq.); MCL 500.3114(1); Domicile; Grange Ins. Co. v. Lawrence; Workman v. Detroit Auto. Inter-Ins. Exch.; Dairyland Ins. Co. v. Auto-Owners Ins. Co.
Concluding that there was no genuine issue of material fact that plaintiff was not domiciled with defendant-LM General Insurance’s insured, her stepfather (C), the court affirmed summary disposition for LM on her claim for PIP benefits. The court agreed with the trial court that, even assuming plaintiff stayed with C for two weeks before the accident took place, she clearly “was not ‘domiciled’ in the same household as [C] at the time of her accident.” As to the applicable Dairyland and Workman “factors, (1) plaintiff testified in her deposition that she did not intend to remain at [C’s] home and was only there temporarily until she could get her own place; (2) she had also stayed” for weeks at a friend’s home; (3) her “children did not stay with her at [C’s] home but instead stayed with plaintiff’s aunt; (4) plaintiff did not know the address of [C’s] home and did not change her address to his mailing address; (5)” there was no documentation showing she ever used C’s “address on important documents; and (6) when plaintiff was discharged from the hospital she did not return to [C’s] home. Thus, as the trial court concluded, it was clear from both plaintiff’s deposition testimony as well as her actions that [C’s] home was not plaintiff’s ‘true, fixed, permanent home, and principal establishment, and to which whenever [s]he is absent, [s]he has the intention of returning.’”
Foreclosure; Dispute over surplus proceeds; Summary disposition under MCR 2.116(C)(10); Dextrom v. Wexford Cnty.; Jimkoski v. Shupe; Whether the mortgage was ambiguous as to the interest rate; Norman v. Norman; A mortgagor’s ability to recover surplus proceeds; Kennedy v. Brown
The court held that the trial court plainly erred by deciding that there was no genuine issue of material fact as to the mortgage interest rate. “The parties’ course of conduct, the ledger, the CPA’s affidavit, and the mortgage were insufficient to show that the interest rate was indisputably simple interest.” Thus, it was error to grant appellee-RJMC’s motion for partial summary disposition. Appellant-Dario Mortgages argued that the documentation provided by RJMC with its motion created an issue of material fact even without Dario’s response. The court agreed. In its motion, “RJMC contended that there was a surplus and that it was entitled to this surplus. In support, it submitted the mortgage, the handwritten ledger, and an affidavit from a CPA. The mortgage provided that the interest rate was 12% per year and would be paid based on the promissory note’s terms; however, it did not explicitly identify the interest rate. The promissory note was not provided to the trial court.” At first glance, it appeared that, “without examining the promissory note, the trial court could not be fully informed about the mortgage’s terms or the interest rate.” Dario argued that the mortgage was ambiguous as to “the interest rate and that the trial court, by failing to consider the promissory note, improperly granted RJMC’s motion.” The court determined that the CPA’s affidavit did not assist RJMC in establishing that the interest rate was simple. But it did not agree with Dario that the mortgage was ambiguous. The court concluded that the mortgage language was similar to the language at issue in Norman, and that Norman’s holding and reasoning was analogous to this case. The court noted that “the general rule in Michigan is that simple interest governs in” situations such as this. “However, one of the listed Norman exceptions is the parties’ course of dealing,” and the court believed this exception applied here and created an issue of fact as to the interest rate. From the parties’ course of conduct, “there was an implication of compound versus simple interest.” The court also noted that “the ledger was used as a starting point for RJMC’s and its CPA’s calculations for the surplus.” Thus, it determined that “the $860,473.04 that RJMC and its CPA arrived at was not necessarily accurate.” This was another example of the uncertainty as to “the interest rate and RJMC’s failure to adequately show no genuine issue of fact regarding it.” Reversed and remanded.