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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 under the Americans with Disabilities Act (the ADA); 42 USC § 12205; The Civil Rights Attorney’s Fees Award Act; § 1988(b); Calculating the award
[This appeal was from the ED-MI.] The court affirmed the district court’s ruling awarding less than the requested amount of plaintiff-Betancourt’s attorney’s fees and costs under the ADA. Betancourt, who is disabled, sued defendant-Indian Hills Plaza under the ADA and state law, alleging that certain features made it difficult for him to access defendant’s shopping plaza. Defendant eventually remediated the violations. The district court awarded Betancourt $10,000 in attorney fees and $2,000 in costs. He originally requested $46,282.50 in attorney’s fees, and $20,320 in costs. The district court disagreed with his calculations, lowering the attorney’s hourly rate from the requested $425 to $150, and reducing the number of hours worked for “excessive billing.” It further lowered the fees “based on various deficiencies in the actions by Betancourt’s counsel during the litigation.” As to costs, it ruled that the requested amount was “unreasonable.” It deemed counsel’s travel costs avoidable and found that counsel’s expert generated “‘unnecessary and duplicative’ fees[.]” The ADA provides that “a district court, ‘in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee, including litigation expenses, and costs.’” The burden falls on the requesting party to establish what is “reasonable.” The district court “calculated the lodestar amount, first by determining the appropriate rate, then by assessing the number of hours ‘reasonably expended.’” The court found no abuse of discretion in the district court’s award. While Betancourt contended any excess fees were due to defendant’s litigation tactics, the “district court did not see things that way. According to the district court, Betancourt’s premature fee motions, not Indian Hills’ opposition to those motions, caused the exorbitant fees. We have no reason to dispute that factual finding.” As to the hourly rate, the district court was not “required to pick a rate based on the type of case.” The court also did “not see an abuse of discretion in the district court’s belief that Betancourt’s rash filings should not be included in the ultimate fee calculations.” The court agreed with Betancourt the district court erred in stating that defendant “hired an expert from Michigan when, in reality, the expert was from Minnesota. Where in the Midwest the defense expert calls home, however, does not change the fact that Betancourt hired an expert from roughly 1,500 miles away, which the district court viewed as leading to inflated costs.”
Other acts evidence; MCL 768.27b (offenses against a minor); People v Cameron; Unfair prejudice; MRE 403; Principle that a “temporal divide” between the prior act and the charged offense by itself does not preclude the evidence’s admission; People v Solloway; Limiting instruction; People v Mardlin; Prosecutorial misconduct; People v Cooper; Improper vouching; Ineffective assistance of counsel; Failure to make a futile objection
The court held that the trial court did not abuse its discretion by admitting evidence of defendant’s previous convictions. Further, it found that the prosecutor did not improperly vouch for the victim’s credibility and trial counsel was not ineffective for failing to object. He was convicted of CSC IV. As to his challenge to the admission of evidence of his previous convictions, the court noted that they “involved predatory conduct toward a female who defendant believed was 15 years old. In this case, during an interview with a Michigan State Police detective, defendant told the detective that the victim, although an adult, had ‘a 15-year-old cognition,’ and ‘that it more than likely dropped below that when she had been drinking.’ He met the victim at the Special Olympics. The similarity between the previous convictions and the charged sexual assault weighs in favor of admissibility.” In addition, when “considering the similarity between the previous convictions and the sexual assault in the present case, the two-year temporal divide between the assaults does not weigh in favor of exclusion.” Further, the trial court “mitigated any prejudice toward defendant when it instructed the jury to not consider the evidence of [his] previous convictions unless ‘you find that the Defendant actually committed such act’ and to ‘not convict the Defendant here solely because you think he is guilty of bad conduct.’” The court also rejected his claim that the prosecutor deprived him of a fair trial by vouching for the credibility of the victim and her friend and by suggesting he is a liar during closing argument. “The prosecutor did not reference any individualized knowledge that she had about the victim or the victim’s friend; rather, she connected her statements back to the evidence presented during trial.” The prosecutor “mentioned that the victim’s friend did not know defendant, and . . . noted that the victim and the victim’s friend had nothing to gain by telling the jury what happened.” In addition, the prosecutor “outlined the discrepancies in defendant’s testimony and noted that defendant minimized his involvement with the victim.” Finally, the prosecutor “noted that the victim’s sexual assault nurse examination revealed the presence of male DNA in the places where defendant said that he kissed the victim.” The prosecutor’s statements “fell within her great latitude to argue her theory of the case.” Moreover, trial counsel’s “failure to object to the prosecutor’s statements did not amount to ineffective assistance of counsel, because objecting to the statements would have been futile.” Affirmed.
Hearsay exception; MRE 804(b)(2) (dying declaration); Whether the victim was in extremis & believed that his death was impending
The court affirmed the trial court’s ruling the statements at issue were inadmissible under MRE 804(b)(2). The issue was whether the trial court correctly suppressed purported dying declarations made by victim-W that identified defendants-Lowe and Smith as responsible for the shooting that led to W’s death. The court held that given the conflicting evidence, “it was not outside the range of reasonable and principled outcomes for the trial court to conclude that the surrounding circumstances, in totality, did not clearly establish that [W] was in extremis and believed that his death was impending at the time of his various statements.” The record revealed a lack of any sense of urgency on W’s part to disclose the identity of his assailants. The court found it significant that W “made his first clear indication of concern for his possible death at least one day after his final identifying statement, and only after an unsuccessful attempt to remove him from the ventilator.”
Sufficiency of the evidence for CSC IV convictions under MCL 750.520e(1)(a) & (1)(b); Coercion; People v Premo; References to a witness as a “victim” during trial; Vouching; People v Douglas; People v Bahoda; Due process right to a fair trial; Plain error review; Ineffective assistance of counsel for failing to object; Allowing a victim to hold a stuffed animal while testifying; MCL 600.2163a(4); People v Johnson; Distinguishing People v Shorter; Prosecutorial misconduct; People v Dobek; People v Caddell; References to defendant as a pedophile
The court held that there was sufficient evidence to support defendant-Parsons’s CSC IV convictions, and that the trial court did not plainly err in allowing a police witness and the prosecutor to refer to a witness (M) as a victim. The trial court also did not plainly err in permitting M to hold a stuffed animal while testifying. While the court found the prosecutor erred by calling Parsons a pedophile, it concluded the error did not deny him a fair trial. Thus, his due process and ineffective assistance of counsel claims failed. He was convicted under MCL 750.520e(1)(a) and (1)(b) for sexually assaulting M, a friend of his daughter. The court held that, “viewing all of the evidence in a light most favorable to the prosecution, the jury could have reasonably concluded beyond a reasonable doubt that Parsons accomplished sexual contact with [M] through coercion, and that [he] made sexual contact with [M’s] intimate parts when she was from 13 to 15 years old.” She testified that he “touched her breasts and genital area four or more times. Text messages exchanged between” them in 2018 supported that he “had a sexual interest in [M], and it was undisputed that [M] spent a considerable amount of time at Parsons’s home. Between the content of the text messages and the locations of the touchings of [M], substantial evidence supported that Parsons intentionally touched [M’s] ‘intimate parts’ for a ‘sexual purpose’ or in a ‘sexual manner.’” While the sufficiency of the evidence as to his MCL 750.520e(1)(b) conviction presented “a somewhat more difficult question[,]” the court held that the evidence was sufficient “for rational jurors to reasonably conclude that [he] used coercion to accomplish sexual contact with [M]—specifically, that [he] used [M’s] unfortunate home situation, youth, naivety, self-esteem issues, and trust in him to induce her to submit to the sexual contact.” As to her holding a stuffed animal while testifying, the court found Parsons failed to show that this “was inherently prejudicial,” and thus, he had to establish actual prejudice, which he could not do. The jury acquitted him of six counts of CSC III and instead convicted him of three lesser counts of CSC IV. Given this, “the jury likely did not find [M’s] testimony wholly credible. It is a stretch to conclude that the jurors unfairly evaluated the evidence based solely on the presence of the stuffed animal.” Affirmed.
Evidence: Relevance of a police officer’s testimony about his training & experience; FRE 401; Whether the testimony was more prejudicial that probative; FRE 403; Sufficiency of the evidence for an attempted witness tampering conviction; United States v Fortner; Whether defendant took a “substantial step” toward witness tampering; United States v Alebbini
[This appeal was from the ED-MI.] The court held that defendant-Wilder’s jailhouse phone calls seeking to have others bribed into claiming his gun was theirs constituted a “substantial step” in committing the crime of witness tampering. While running from the police, Wilder dropped his gun, retrieved it, and ran into a house. The residents consented to a search, where his weapon (which was identified as the one he dropped on the ground while running from police) was found. While in jail, he called someone (A) and asked her to offer the the home’s occupants money to say the gun was theirs. A jury convicted Wilder of FIP and attempted witness tampering. He unsuccessfully moved for a judgment of acquittal on the witness tampering charges. Wilder argued the district court erred by admitting trial testimony about the arresting officer’s (W) training and experience in identifying firearms, which he claimed was irrelevant. The court disagreed, concluding the testimony helped the jury determine the reliability of W’s identification of the gun. The court also rejected Wilder’s argument that the testimony was more prejudicial than probative. After commenting on the district court’s discretion in conducting the Rule 403 balancing test, the court noted that Wilder had not raised this issue in the lower court. Reviewing the issue for plain error, the court held that W’s testimony as to the prevalence of firearms in Flint was not prejudicial where it was given to illustrate his familiarity with guns. Wilder also argued that there was insufficient evidence to convict him of attempted witness tampering. The government had to prove that he intended to commit witness tampering, and that he also “took a ‘substantial step’ toward” doing so. Wilder argued his actions did not constitute a substantial step. But noting that “words alone” can constitute a substantial step, the court held that he took one (multiple ones in fact) “when he coordinated with and instructed” A. He instructed her to go to the house where the gun was found, to bring money, and to bribe the occupants. Wilder maintained that A’s statements constituted hearsay, but the court held that they were admissible to give context to Wilder’s statements. And his statements to A were not “‘mere abstract talk’” where he gave her specific instructions. “There was nothing abstract about these discussions.” Affirmed.
Child custody; Joint custody; MCL 722.26a(1); Great weight of the evidence; Brown v Brown; Best interests of the child; Willingness & ability of each parent to facilitate & encourage a close & continuing parent-child relationship between the child & the other parent or the child & the parents; MCL 722.23(j); Parenting time; Mental & physical health of the parties; MCL 722.23(g); Whether parenting time would endanger the child’s physical, mental, or emotional health; MCL 722.27a(3); Failure to enumerate specific terms for parenting time despite the parties’ request; MCL 722.27a(8)
The court held that the trial court did not err by granting defendant-mother sole legal custody of the parties’ child, or in its findings as to the best-interest factors. However, it found the trial court failed to order parenting time in specific terms. The trial court granted defendant sole legal custody and primary physical custody of the parties’ child. On appeal, the court rejected plaintiff’s argument that the trial court erred by awarding defendant sole legal custody of the child because it failed to adequately consider the alternative of joint legal custody. Plaintiff claimed “the trial court’s comment at the outset of the bench trial that his request for 50-50 unsupervised parenting time constituted an ‘unrealistic expectation’ demonstrated the” trial court’s animosity towards him. “However, it appears the [trial] court was simply stating that it seemed impractical to order joint physical custody of [the child] given that he was less than one year old at the time of the trial.” The court also rejected his claim that the trial court’s finding that factor (j) favored both parties equally went against the great weight of the evidence. “There is no indication either party was unwilling to foster a relationship between the other parent and” the child. As such, the trial court “appropriately concluded MCL 722.23(j) favored the parties equally.” Ultimately, it did not err “in its determination that defendant’s sole legal custody of [the child] was in the child’s best interests, and [its] findings on MCL 722.23(j) were not against the great weight of the evidence.” The court also rejected plaintiff’s claim that the trial court erred by awarding sole physical custody of the child to defendant and giving him limited, supervised parenting time. “While plaintiff actively participated in psychiatric care and individual counselling . . . his previous outbursts were clearly of concern to the trial court, particularly when compared to defendant, who solely suffered from ‘mild depression.’” As such, the trial court’s finding “that MCL 722.23(g) favored defendant was not against the great weight of the evidence.” But because MCL 722.27a(8) mandates the trial court to order parenting time in “specific terms” if a party requests it, the trial court erred “on a major issue by awarding plaintiff parenting time in ambiguous terms.” Affirmed in part, reversed in part, and remanded.
First-party action under the No-Fault Act; Rescission of an insurance policy contract based on fraud in the procurement; Titan Ins Co v Hyten; Bazzi v Sentinel Ins Co; Oade v Jackson Nat’l Life Ins Co of MI; Reimbursement of the PIP benefits paid to plaintiff; Whether there was “unnecessary delay” on defendant-insurer’s part; Award of attorney fees & costs; MCL 500.3148(2)
The court held that the trial court properly rescinded the insurance policy contract for fraud in the procurement based on plaintiff-insured’s explicit denial that “he used his vehicle to carry passengers for a fee.” In light of the rescission, it was appropriate to grant defendant-insurer summary disposition of plaintiff’s claims, without regard to whether he “was driving for Uber at the time of the accident.” The court also held that reimbursement of the PIP benefits paid to him “was an appropriate remedy following rescission.” Finally, given that “the claim was fraudulent and defendant was the prevailing party,” it was properly awarded attorney fees and costs. Plaintiff unequivocally stated in his insurance application that “he was not using his vehicle to carry persons for a fee. This statement was not made by representations provided in bulk by defendant for plaintiff’s signature, but rather as a negative answer to one of 15 binary questions in the five-page application[.]” The court noted only the first element of common-law fraud, materiality, was disputed here. A litigation representative for defendant “stated in an affidavit that the ‘specific purpose’ of the application question was to allow defendant ‘to determine insurance eligibility… so that it can fully assess risk.’ She also stated, ‘Had [plaintiff] informed [defendant] in his Application that he was using his [vehicle] to carry persons for a fee . . . , [defendant] would have refused [his] request for insurance coverage because it creates a significantly higher risk to [it] as an insurer.’” While plaintiff characterized that “testimony as self-serving, he provides no evidence to refute it, only speculation on the interaction between the application question and the policy coverage exclusion.” The court concluded that because “defendant successfully established fraud in the procurement, and requested rescission, . . . [it] was ‘entitled to rescind the policy and declare it void ab initio[.]’” As to the reimbursement of PIP benefits paid, a review of the “time line discredits plaintiff’s contention defendant waited ‘years’ to seek rescission, and does not show ‘unnecessary delay’ on defendant’s part.” Lastly, the court held that the trial court properly awarded it attorney fees under MCL 500.3148(2). “Defendant was forced to defend against a claim pursued under a policy that was procured by fraud. Therefore, the award is within the range of reasonable and principled outcomes and was not an abuse of discretion.” Affirmed.
Boundary dispute; Motion to disqualify a judge; Waiver for failure to submit an affidavit along with the motion to disqualify; Davis v Chatman; Adverse possession & acquiescence; Failure to state the basis for a claim; Yee v Shiawassee Cnty Bd of Comm’rs
The court held that the trial court did not err by not recusing itself, and its judgment in this boundary dispute case was not contrary to the facts and the law. Plaintiffs sued defendants, their next-door neighbors, alleging encroachment and infliction of emotional distress in connection with defendant-Lisa’s “erection of a wooden fence over plaintiffs’ property, and her allegedly threatening, coercive, and harassing behavior related to the parties’ disputed property line.” Defendants counterclaimed, claiming adverse possession and acquiescence. Plaintiffs sought disqualification of the trial judge, but their motion was denied. The trial court ruled in favor of defendants on the basis of acquiescence and entered a verdict of no cause of action on plaintiffs’ claims. On appeal, the court rejected plaintiffs’ argument that the trial court erred by denying their motion for disqualification. “It is undisputed plaintiffs failed to submit an affidavit along with their motion for disqualification. The failure to submit an affidavit constitutes a waiver of the issue.” And plaintiffs’ arguments on appeal failed to explain why this issue should not be waived. Thus, it was waived and the court declined to consider it. The court also rejected their claim that the trial court erred in resolving the parties’ property dispute. “Plaintiffs’ arguments on appeal conflate the requirements of acquiescence and adverse possession and they offer no substantive analysis explaining why the trial court erred in awarding title under a theory of acquiescence.” The court declined to consider their “argument given plaintiffs’ failure to explain their opposition to the trial court’s ruling.” Affirmed.
Premises liability; Slip & fall on the contents of a spilled item while grocery shopping; Constructive notice; Duty of care; Distinguishing Ritter v Meijer, Inc & Clark v Kmart Corp
Because plaintiff-Easton failed to establish “the spill existed for a sufficient length of time such that any [defendant-Meijer] employee should have known about it,” the court affirmed the trial court's dismissal of Easton's premises liability claim. Easton argued “that she presented sufficient evidence to create a genuine issue of material fact on the issue of Meijer’s constructive notice.” The court concluded that her “claim of constructive notice rests on legally irrelevant facts and speculation.” Easton also analogized her case to Ritter and Clark. However, neither “Ritter nor Clark are so factually similar to this case as to compel reversal. Assuming Ritter retains some precedential value, there was no evidence in this case that peaches had been stepped on or that any other customer had encountered the hazard before Easton’s fall. And unlike in Clark, Easton presented no evidence supporting a reasonable inference as to when the hazardous condition arose. Our Supreme Court in Clark expressly distinguished the facts of that case from others that lacked ‘evidence about when the dangerous condition arose.’” The court held that this “case falls in the latter category—a jury could only speculate when the spill from the peach cup occurred. Because Easton failed to present sufficient evidence to create a jury submissible question on constructive notice, the trial court did not err by granting Meijer’s motion for summary disposition.”
Reasonable reunification efforts; Reasonable accommodations to a disabled parent; In re Hicks/Brown; The Americans with Disabilities Act; Child’s best interests; In re White; Relative placement; In re Olive/Metts Minors; Guardianship alternative; MCL 712A.19a(9); In re Rippy; Tetrahydrocannabinol (THC)
The court concluded respondent-father failed to show the DHHS did not accommodate his dyslexia, and that the DHHS made reasonable reunification efforts. It also held that the trial court did not clearly err in determining that terminating his parental rights was in his child’s best interests. Thus, it affirmed the termination order. The father did not inform the DHHS or the trial court “he has dyslexia or indicate that his dyslexia required accommodations” until his psychological evaluation in 9/22, which was filed with the trial court three months later. The court noted he could have indicated he had this condition “over the two years in which he participated in this case, but chose not to do so. Regardless,” the court found that the record showed the DHHS provided him “with reasonable accommodations for his learning disorder once it became aware of his condition. The psychological evaluation indicated that as soon as [he] reported that he was dyslexic, the psychologist administered all of the psychological tests verbally so that father could complete them. At the termination hearing, a caseworker testified that she was eventually made aware of father’s dyslexia, so she ensured that information regarding services was provided to him both in writing and verbally. [She] further testified that she verbally spoke to [him] about all of the offered services and verbally reviewed the case service plan with him at least once per month.” In addition, the record was “replete with evidence that DHHS provided [him] a multitude of services to address his primary barriers to reunification, including substance abuse and mental health. Despite several referrals to substance abuse services, [he] refused to participate in them. [He] did not complete most of his mandatory drug screens for the first three reporting periods, and” those he completed were positive for amphetamines, meth, THC, “or a combination of the three.” In addition, he “admitted he did not participate in any of the recommended mental health services throughout the case and still was not participating in any substance abuse treatment or mental health counseling at the time of the termination hearing.” As to the child’s best interests, the court found no error in the trial court’s finding given the “father’s issues with substance abuse and mental health, and [the child’s] young age and need for permanency and stability[.]”
Evidentiary support for the removal order; Sufficiency of the trial court’s factual findings; In re Ferranti; Distinguishing In re Williams; Hearsay; MCL 712A.13a(9) & MCR 3.965(C)(2); Child Protective Services (CPS)
Concluding that the DHHS presented sufficient evidence to warrant the children’s removal and that the trial court made the requisite findings justifying its decision, the court affirmed the trial court’s order after a preliminary hearing authorizing the DHHS’s termination petition and removing respondent-father’s children from his care. He contended the DHHS “failed to establish by a preponderance of the evidence, and the trial court failed to sufficiently articulate on the record, that (1) the children were at a substantial risk of harm, (2) the children’s immediate removal was necessary to protect their health and safety, and (3) the custody conditions away from respondent were adequate to safeguard the children’s health and welfare.” The court concluded that following Ferranti “and the underlying court rule governing preliminary hearings in child protective proceedings, the trial court did not err by applying the probable cause standard at the preliminary hearing here.” Next, to the extent respondent faulted “the trial court for relying on inadmissible hearsay testimony from” S, a CPS investigator, his argument was unavailing. Respondent’s claim that S “did not have personal knowledge of the events at issue,” was unpersuasive. “The trial court made sufficient findings on the record to satisfy its obligations under MCL 712A.13a(9) and MCR 3.965(C)(2).” The court held that the “trial court made specific factual findings on the record and recommended the children be removed from respondent.” It concluded that while “the trial court did not provide any particular reasoning to justify these findings, it still made explicit findings on each factor (a) through (e) as required under MCL 712A.13a(9) and MCR 3.965(C)(2) sufficient for this Court to conduct a meaningful review on appeal.” Lastly, the trial court’s findings as to “factors (a), (b), and (e) were all adequately supported by the record.” Respondent also argued that S “was unprepared and had limited knowledge of the allegations in the petition.” Nothing in the record left the court “with a definite and firm conviction that a mistake was made, especially since [S] provided details regarding the underlying [the DHHS] and law enforcement investigations concerning [one child's half-sibling’s] sexual abuse allegations. Respondent has failed to establish any error during the removal proceedings warranting reversal.”