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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Sentencing; Proportionality; People v Posey
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal #78825 in the 2/1/23 edition), the court vacated the judgment of the Court of Appeals to the extent that it was inconsistent with its decision in Posey, and remanded for reconsideration in light of Posey. In all other respects, leave was denied because the court was “not persuaded that the remaining question presented should be reviewed by this Court.”
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 77632 in the 6/29/22 edition) to the extent it was inconsistent with the court’s decision in Posey. It remanded the case to the Court of Appeals for reconsideration in light of Posey. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
Sentencing; Proportionality & reasonableness; People v Posey
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 79718 in the 7/11/23 edition) to the extent it was inconsistent with the court’s decision in Posey. It remanded the case to the Court of Appeals for reconsideration in light of Posey. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining question presented.
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal #76884 in the 2/9/22 edition), the court vacated the judgment of the Court of Appeals to the extent that it was inconsistent with its decision in Posey, and remanded for reconsideration in light of Posey. In all other respects, leave was denied because the court was “not persuaded that the remaining question presented should be reviewed by this Court.”
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 78732 in the 1/19/23 edition) to the extent it was inconsistent with the court’s decision in Posey. It remanded the case to the Court of Appeals for reconsideration in light of Posey. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
Sentencing; People v Posey
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 76929 in the 2/17/22 edition) to the extent it is inconsistent with its decision in Posey, and remanded for reconsideration in light of Posey. It denied leave to appeal in all other respects because it was not persuaded that the remaining questions presented should be reviewed.
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 78266 in the 10/24/22 edition) to the extent it is inconsistent with its decision in Posey, and remanded for reconsideration in light of Posey. It denied leave to appeal in all other respects because it was not persuaded that the remaining questions presented should be reviewed.
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal #77835 in the 8/4/22 edition), the court vacated the judgment of the Court of Appeals to the extent that it was inconsistent with its decision in Posey, and remanded for reconsideration in light of Posey. In all other respects, leave was denied because the court was “not persuaded that the remaining question presented should be reviewed by this Court.”
Sentencing; Reasonableness review of a within-guidelines sentence; MCL 769.34(10); People v Steanhouse; Proportionality; People v Milbourn; Principle that the guidelines are advisory; People v Lockridge; Effect of a lowered guidelines range on resentencing; People v Johnson
Holding on remand that “defendant’s sentences were reasonable because they were ‘proportionate to the seriousness of the circumstances surrounding the offense[s] and the offender[,]’” the court again affirmed. He was convicted of multiple crimes, including two counts of AWIM. The trial court sentenced him as a third-offense habitual offender to concurrent terms of 22 to 40 years for the AWIM convictions. In a prior appeal, the court affirmed his convictions and sentences. The Supreme Court affirmed in part, vacated in part, reversed in part, and remanded for a reasonableness review of the within-guidelines AWIM sentences. On remand, the court again found the sentences were reasonable. “Defendant committed the crimes after he had been released from prison and while he was on parole for, in part, an earlier unrelated AWIM conviction. Thus, after previously assaulting a person with an actual intent to kill, which, had he been successful, would have made the killing murder, [he] again acted with an intent to kill, directing his conduct at the two victims in this case.” His actions also “set off a gunfight in a public space outside a supermarket.” The court noted he was fortunate he was not “serving a life sentence for first-degree murder. We find that the 22-year concurrent minimum sentences for the AWIM convictions serve to (1) protect society from a patently dangerous individual, (2) appropriately discipline defendant for his egregious conduct, and (3) deter others from engaging in similar criminal behavior.” Further, contrary to his argument, the trial court did consider his “rehabilitative potential, astutely concluding that while defendant may have made some attitudinal improvements during his previous prison stint, ‘it doesn’t change the fact that these offenses were committed while he was on parole after having previously served time for a similar offense[.]’” The court also rejected his claim that “the 22-year minimum sentences were inherently unreasonable because the trial court did not deviate from those sentences after the guidelines range had been lowered by the court.” The trial court found this “minimum sentence, which fell within the lower half of the guidelines range, was reasonable regardless of the change in the guidelines range. This reasonable and principled determination did not constitute an abuse of discretion.” The court noted that given the “nature of the offenses and [his] criminal history, a minimum sentence toward the top end of the guidelines range would not have offended the rule of proportionality. [He] fails to articulate an argument that overcomes the presumption that the sentences were proportional.”
Medical malpractice; Ostensible agency relationship; Grewe v Mt Clemens Gen Hosp; Expert witness; MCL 600.2169(1)(b)(i); “Specialist”; Certified Emergency Medicine Specialists (CEMS)
The court held that (1) “the trial court wrongly determined plaintiff failed to show the existence of an ostensible agency relationship” and (2) that his proposed expert witness (a nurse practitioner specializing in wound care) “was not disqualified under MCL 600.2169(1)(b)(i).” Thus, the court reversed summary disposition for defendants and remanded. Plaintiff alleged that defendant-Koster (a nurse practitioner and independent contractor employed by defendant-CEMS) failed to appropriately treat his injury. He further claimed that CEMS and defendant-Metropolitan Health (Metro Health) were vicariously liable. Plaintiff argued the trial court erred when it granted Metro Health “summary disposition because there was a factual question whether an ostensible agency relationship existed between Koster and Metro Health.” The court concluded that summary “disposition was inappropriate because plaintiff’s evidence demonstrated his reasonable belief that Koster was a Metro Health employee, and Metro Health failed to present evidence showing it dispelled this belief.” The court also noted that the “trial court granted summary disposition to the CEMS defendants because plaintiff’s proposed expert specialized in wound care and not general-practice medicine. But . . . the specialist requirement of MCL 600.2169(1)(b)(i) does not apply to nurse practitioners. Thus, to be qualified as a nurse practitioner expert witness under MCL 600.2169(1)(b)(i), the plaintiff need only show that the proposed witness engaged in ‘[t]he active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed.’” In this case, “both Koster and the proposed expert were nurse practitioners engaged in the active clinical practice of nursing. Consequently, the trial court erred when it concluded the proposed expert was not qualified under MCL 600.2169(1)(b)(i).”
Dismissal for failure to post a security bond as ordered by the trial court under MCR 2.109(A); Wells v Fruehauf Corp; In re Surety Bond; First-party claim for personal injury protection (PIP) benefits under the No-Fault Act (NFA); Third-party claim under the NFA for noneconomic damages
The court held that the trial court did not abuse its discretion in ordering plaintiff to post a $25,000 security bond under MCR 2.109(A), and properly dismissed the case when he failed to do so. In light of “the evidence submitted by the parties, there was good reason to believe that plaintiff would be unable to establish entitlement to recovery of either first-party PIP benefits or noneconomic damages on his third-party claim because his purported injuries and credibility were seriously questionable and causation was doubtful.” While he asserted “claims under recognizable legal theories of liability, i.e., no-fault claims arising from the accident,” the trial court did not clearly err in finding them “tenuous , , , ,” The record evidence showed that he “was involved in a low-impact incident with a fire truck that resulted merely in scuff marks and paint transfers which does not tend to give rise to any bodily injuries, let alone bodily injuries of a serious nature as required to assert first- and third-party no-fault claims.” The court noted that a “no-fault insurer is only liable to pay PIP benefits to the extent that the claimed benefits are causally connected to an accidental bodily injury arising out of an automobile accident. And noneconomic damages are only permitted if that bodily injury is serious in nature.” Plaintiff did not offer “evidence tending to establish his right to recovery under either theory of liability. As the trial court noted, plaintiff’s vehicle sustained almost no damage.” His airbag did not deploy. He “denied injury at the scene and did not seek any medical attention for over a month. Plaintiff’s fantastical deposition testimony aside, there is no evidence that the fire truck was on top of [his] small passenger vehicle so that it pinned him inside the vehicle, causing him to sustain the type of serious injuries that he asserted—over a month later—occurred to him.” The court also found that his “affidavit in support of his claim of indigency was insufficient to permit the trial court to make reasoned findings about his financial inability to pay the requested security bond. [His] affidavit provided conclusory statements attesting to his purported unemployment and inability to pay the bond, but failed to recite any financial information such as his assets, income, expenses, financial statements, and the like.” Thus, the court held that he failed to meet his burden to show “he could not afford the bond.” Affirmed.
Injuries while riding on a city bus; Governmental immunity; MCL 691.1407(1); Bernardoni v City of Saginaw; The motor-vehicle exception; MCL 691.1405; A driver’s duty; City of Kalamazoo v Priest; Principle that evidence of violation of a penal statute creates a rebuttable presumption of negligence; Klanseck v Anderson Sales & Serv, Inc; Failure to maintain an “assured clear distance”; MCL 257.627(1); Winslow v. Veterans of Foreign Wars Nat’l Home; Proximate cause; MCL 691.1407(2)(c)
Holding that there were genuine issues of material fact whether defendant-bus driver negligently operated defendant-city’s bus, and whether the driver’s negligent operation of the bus was a proximate cause of plaintiffs’ injuries, the court affirmed the trial court’s denial of the city’s motion for summary disposition. Plaintiffs sued defendants for injuries they sustained when the bus on which they were riding was involved in a collision with another vehicle that subsequently fled the scene. The trial court denied the city’s motion for summary disposition, finding “[r]easonable minds could differ as to whether the bus driver was negligent such that the accident could have been avoided if she was driving the speed limit. So the exception to governmental immunity applies there.” On appeal, the court rejected defendant’s argument that it was entitled to governmental immunity and the motor-vehicle exception was inapplicable. The driver’s “admission to violating the basic speed laws establishes a prima facie case from which a jury may infer that she acted negligently.” In addition, she “admitted that she took no evasive action to attempt to avoid the collision” and “conceded that the accident occurred during rush hour, on a busy route, and that she did not keep a safe distance between the bus and the SUV in front of the bus.” Viewing the evidence “in the light most favorable to plaintiffs, we conclude that there are material questions of fact whether [the driver] negligently operated the city’s bus.” The driver also admitted she “was driving at least 5 miles per hour over the posted speed limit, she took no evasive action to attempt to avoid the collision, and she did not maintain an assured, clear distance ahead while driving during rush hour on a busy route. The collision that resulted is the kind of injury that such actions produce.” As such, there were “genuine issues of fact regarding whether [the driver’s] conduct was a proximate cause of the accident.”
Trip in a pothole in an unlit parking lot; Premises liability; Kandil-Elsayed v F & E Oil, Inc; Pinsky v Kroger Co of MI
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal #77269 in the 4/25/22 edition), the court vacated the judgment of the Court of Appeals and remanded for reconsideration in light of the court’s decision in Kandil-Elsayed and Pinsky.
Premises liability; Open & obvious danger; Duty; Kandil-Elsayed v F & E Oil, Inc; Pinsky v Kroger Co of MI
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal #78731 in the 1/20/23 edition) to the extent it is inconsistent with the decisions in Kandil-Elsayed and Pinsky, and remanded for reconsideration in light of Kandil-Elsayed and Pinsky. It denied leave to appeal in all other respects because it was not persuaded that the remaining questions presented should be reviewed.
Premises liability; Slip & fall on hair clippings; The open & obvious doctrine; Kandil-Elsayed v F & E Oil, Inc; Pinsky v Kroger Co of MI
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 77127 in the 3/25/22 edition) to the extent that it was inconsistent with the court’s decision in Kandil-Elsayed and Pinsky. The court remanded the case to the Court of Appeals for reconsideration in light of Kandil-Elsayed and Pinsky. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 77594 in the 6/22/22 edition) and remanded for reconsideration in light of the decisions in Kandil-Elsayed and Pinsky.