Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Motion to vacate an arbitration agreement; Attorney-client agency relationship; An attorney’s authority to bind a client to an arbitration agreement; Nelson v Consumers Power Co; MCR 2.507(G); Fraud in the inducement; Samuel D Begola Servs, Inc v Wild Bros; Fraudulent misrepresentation; Bank of Am, NA v Fidelity Nat’l Title Ins Co; Withdrawing a jury trial demand; MCR 2.508(D)(3)
The court held that plaintiff’s attorney (G) had apparent authority to enter into the arbitration agreement with defendant-insurer, and it was enforceable under MCR 2.507(G). Further, she failed to show that defendant fraudulently induced the agreement or her participation in the arbitration, and there was no merit to her claim that she was deprived of her right to a jury trial. Thus, the court affirmed the order denying her motion to vacate the arbitration agreement and granting defendant’s motion to enforce it. She sued defendant for no-fault benefits after she was involved in an auto accident. The arbitration agreement was signed by G “but did not contain a signature line for plaintiff herself and her signature” was not on the document. The parties and their attorneys later “participated in an arbitration hearing. The arbitration ended with a $130,000 award in plaintiff’s favor and the waiver of future medical benefits.” She contended that she never agreed to the arbitration and that G lacked the authority to bind her to the agreement. But the court concluded that, whether or not she agreed to arbitrate, nothing in the record suggested “that defendant would have or should have had known that [G] did not have authority to settle the case on behalf of plaintiff who, as defendant points out, appeared for and participated in the arbitration hearing.” Further, MCR 2.507(G), which provides that an arbitration agreement is enforceable if “subscribed by the party against whom the agreement is offered or by that party’s attorney[,]” confirmed that “an attorney can enter into a binding settlement or arbitration agreement on” a client’s behalf. While plaintiff also asserted that defendant “committed fraud in the inducement by omitting a signature line for her on the” agreement, this did “not constitute a misrepresentation, but even if it did, plaintiff could not have relied on it because she maintains she did not see the agreement until after the award was issued. In fact, plaintiff’s claim that she was fraudulently induced into the arbitration agreement is inconsistent with her argument that she never agreed to arbitrate in the first place.” Finally, while she made a demand for a jury trial, she effectively withdrew it through G when she voluntarily dismissed the case in favor of binding arbitration.
Search & seizure; U.S. Const. amend. IV; Whether the officers had reasonable suspicion to stop defendant’s vehicle; United States v Cortez; The totality of the circumstances; People v Hyde; Subjective intent; Whren v United States
The court held that the trial court did not err by finding that the officers in this case lacked reasonable suspicion to stop defendant’s vehicle and thus, “the seizure and subsequent search of the vehicle contravened the Fourth Amendment, requiring suppression of the evidence and dismissal of the case.” He was charged with CCW after an inventory search of his vehicle revealed a loaded firearm. He challenged the search, contending the police lacked reasonable suspicion to stop him. At the hearing, the officer admitted defendant had not committed any traffic offense and that the sole basis for the stop was that the, according to the LEIN system, the car had no insurance. The trial court disbelieved the officers had run defendant’s license plate number through the system, and found the stop was without reasonable suspicion and thus, pretextual. On appeal, the court found the trial court’s ruling was not improper. In the trial court’s view, “the stop was ‘pretextual’ because ‘it was clearly a stop so that there could be a search of the vehicle.’” The court interpreted the trial court’s remarks as “an expression of disbelief that the officers had run [defendant’s] license plate number through the system, and a conclusion that the officers stopped his car for other reasons—none of which amounted to reasonable suspicion that [he] had committed or was about to commit an offense.” The trial court determined that “the objective facts—the license plate numbers written down at the scene on the report and the ticket—simply did not support that the officers had run [defendant’s] plate number through the system. We have no grounds to question that ruling, especially since only two out of the seven characters of [his] license plate were the same as those recorded by the officers.” Absent evidence that they checked defendant’s license plate number “rather than a ‘random’ one, the prosecution cannot establish that the officers had a reasonable suspicion that” he was driving without insurance. “This was not a typo or a mistake in perception,” the trial court concluded. Rather, the trial court “found that there was no true or accurate factual foundation for the stop. Given the plate numbers recorded in the officers’ records and their marked variance from” defendant’s plate number, that finding was not erroneous. Affirmed.
Whether defendant’s sentence was based on improperly assessed OVs; Scope of proceedings on remand; People v Canter; People v Blue; Scope of an appeal after remand for a limited purpose; People v Kincade (On Remand); People v Jones
Holding that the issues raised by defendant-Davis were “beyond the scope of the remand and may not be considered on appeal,” the court affirmed his judgment of sentence. Defendant argued that his sentence was based on improperly assessed OVs, requiring resentencing, and that his trial counsel provided ineffective assistance by failing to object to the OV assessments. However, in its prior remand, the court “clearly instructed: ‘the trial court shall enter a judgment of sentence reinstating Davis's original sentence.’” Given that the “case was remanded for the limited purpose of reinstating defendant’s original sentence, and the scope of this appeal is limited to the trial court’s decision to reinstate the original sentence,” the court could not consider the issues he now raised.
Whether AWIGBH & felonious assault are mutually exclusive offenses; People v Davis; MCL 750.84; MCL 750.82
Holding that the Supreme Court’s decision in Davis and analysis of the statutes supported a finding that AWIGBH and felonious assault are not mutually exclusive offenses, the court affirmed defendant’s convictions for both crimes. The case arose from a nonfatal stabbing. In Davis, the court considered whether that “defendant’s convictions of AWIGBH and aggravated domestic assault constituted mutually exclusive verdicts.” It determined that they were. But in an order the Supreme Court vacated the court’s decision in part, concluding “that the mutually-exclusive-verdicts principle did not apply.” This order was binding precedent and applied here. “The trial court instructed the jury that it was required to find that defendant acted with the intent to do great bodily harm less than murder in order to find defendant guilty of AWIGBH.” It did not instruct the jury that it had to find that he “acted without the intent to inflict great bodily harm when it made its findings” as to the felonious assault crime. Given that the jury was not instructed to find that he “acted without the intent to inflict great bodily harm” as to the felonious assault crime, it could not “be presumed that the jury made this finding. As the Supreme Court reasoned in Davis,” the jury’s guilty verdict on the felonious assault charge was not mutually exclusive to his “guilty verdict for AWIGBH, notwithstanding that the jury affirmatively found that defendant acted with intent to do great bodily harm in order to find defendant guilty of AWIGBH, because the jury did not find that defendant acted without the intent to inflict great bodily harm” as to the felonious assault crime. Thus, the “guilty verdicts of AWIGBH and felonious assault were not erroneous under the principle of mutually exclusive verdicts.” In addition, the court concluded that “the plain language and elemental analysis of” both statutes supported that “these offenses are not mutually exclusive.”
Sentencing; Proportionality; People v Milbourn; Presumptive proportionality of a within guidelines sentence; People v Armisted; Unusual circumstances; People v Lee; Cruel &/or unusual punishment; People v Bowling
Holding that defendant did not show any unusual circumstances rendering his presumptively proportionate within guidelines sentences disproportionate, the court affirmed his sentences. He was convicted of AWIM, carjacking, felonious assault, intentional discharge of a firearm at a dwelling, and felony-firearm. The court previously affirmed his convictions but remanded for resentencing due to an error in scoring the OVs. The trial court only resentenced him for his carjacking convictions. He appealed a second time, and the court again remanded with instructions to resentence him on his AWIM convictions. He was resentenced to 160 to 400 months for each AWIM count, which he now appealed. His properly calculated guidelines range for AWIM was 135 to 225 months. He argued that his sentences were disproportionate and constituted cruel or unusual punishment. The court disagreed. As to proportionality, he “and his codefendants went on a seemingly random crime spree involving the attempted forceful taking of automobiles and the discharge of multiple firearms endangering the lives of several people. The jury specifically found that defendant acted with the intent to kill two people.” A victim testified that he “began shooting at her car when he was only a few feet away.” Another victim who saw the attempted carjacking “testified that defendant was within 10 feet when he shot at her while she was looking out her window.” The trial court stated at the original sentencing that it was incredible no one was injured. It also considered defendant’s background, noting his “lack of adult criminal history” and young age (20 years old at the time of the crimes). Thus, “the trial court considered the circumstances surrounding the offense and the offender and concluded that the guidelines provided a proportional sentence. Based on the record” here, the court did not see any basis for concluding “that defendant’s within-guidelines sentences violate the principle of proportionality.” For the same reasons it also rejected his claim his cruel and unusual punishment claim.
Hearsay; MRE 801(c); People v Gursky; People v Musser; Exception for a statement involving a sexual act; MRE 803A; Ineffective assistance of counsel; Strickland v Washington; Trial strategy; People v Trakhtenberg; Failure to make a futile objection; People v Thomas; Sufficiency of the evidence; Prosecutorial misconduct for implying in closing argument that the defendant must prove something or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof; People v Fyda
The court held that the trial court did not err by admitting the child-victim’s mother’s (SR) testimony about the child’s statement, and that defense counsel was not ineffective for failing to object. It also held that the prosecution did not commit misconduct. Defendant was convicted of CSC I arising out of a sexual act he committed against the victim, his son, who was five or six years old at the time. The trial court sentenced him as a fourth habitual offender to 300 to 600 months. On appeal, the court rejected his argument that SR’s testimony as to child’s statement: “’Heck, no. Dad made me do that to him once and it’s gross’” was inadmissible hearsay. “[T]he statement was not offered to prove the truthfulness of [the victim’s] statement.” Rather, it was offered to show notice to SR, “and the effect his revelation had on her at that moment.” As described to the prosecution, she was “speechless, screamed, and shortly thereafter called the police. This exchange with the prosecution directly addresses the effect of [the] statement on SR, the listener, rather than to prove its truth that [the victim] performed oral sex on defendant.” In addition, the statement was merely corroborative of the child’s own trial testimony. The court also rejected his claim that trial counsel was ineffective for failing to object to such testimony, noting that because the challenged portion of the testimony was not inadmissible hearsay, defense counsel’s failure to object “was not objectively unreasonable because an objection would have been futile.” Finally, the court rejected his contention that the prosecution committed misconduct by shifting the burden of proof during closing arguments. “The prosecutor merely asked that the jury follow the trial court’s instructions and reach a verdict based on the evidence presented at trial.” Further, it instructed the jury that the prosecution “was required to prove each element of the crime beyond a reasonable doubt, that defendant was not required to prove his innocence or do anything, and that the lawyers’ statements and arguments were not evidence.” Affirmed.
Fraud & conversion action; Res judicata; Adair v State; Principle that a voluntary dismissal with prejudice acts as an adjudication on the merits for res judicata purposes; Limbach v Oakland Cnty Rd Comm’rs; Privity; Duncan v Michigan; Matter of Estate of Koernke; Principle that a personal representative (PR) must act reasonably for the benefit of interested persons including heirs to the estate; MCL 700.3715(1); MCL 700.1105(c)
The court held that the trial court did not err by granting defendant summary disposition of plaintiff-PR’s fraud and conversion action on the basis that it was barred by a prior judgment. In a prior action, plaintiff sued defendant (her sister) for statutory and common law conversion, alleging she impermissibly withdrew funds from a joint savings account she held with their parents. The action was removed to the probate court, which dismissed it without prejudice on the basis that the claims were not properly pleaded. Plaintiff filed a second complaint, which was again removed to the probate court. The parties subsequently reached a global settlement, and plaintiff’s conversion claims were dismissed with prejudice. In a prior, separate appeal, the court reversed the probate court’s decision to not appoint plaintiff as PR on the basis that it was contrary to their mother’s will. Plaintiff then filed this action as PR, alleging statutory and common law conversion on the basis of the withdrawals, and fraud for her alleged actions that removed a block on the account. An amended complaint was filed adding allegations that defendant took a piano from their mother’s home after her death. The trial court found that plaintiff’s claims were barred by res judicata. On appeal, the court rejected plaintiff’s argument that her claims were not barred by res judicata because the estate’s interests were distinct from the parties who entered into the global settlement agreement. “[A]s it pertains to the claims against [defendant], the estate itself has no interest distinct from the combined interests of those who consented to the [global] settlement agreement.” As such, “the estate was adequately represented in the prior action.” The court also rejected her claim that res judicata did not apply because the estate did not exist when the heirs reached their settlement agreement. The estate provided “no legal authority supporting for this position, and, to the contrary, we have held that there was a privity of interest between the decedent’s guardian and [PR] who acquired his interest after the decedent’s death.” Further, under the circumstances here, “the heirs adequately represented the estate’s interests for purposes of res judicata.” Affirmed.
Termination under §§ 19b(3)(b)(ii) & (j); Children’s best interests; MCL 712A.19b(5); In re Gonzalez/Martinez; In re Brown/Kindle/Muhammad Minors; Whether reunification services should have been provided; MCL 722.638(1)(a)(ii); In re HRC
Pursuant to MCL 722.638(1)(a)(ii), the court rejected respondent-mother’s argument that the DHHS should have provided her with reunification services, and held that terminating her parental rights was in her children’s best interests. She conceded the existence of statutory grounds for termination and only challenged the trial court’s best interests determination. The court found that her primary argument, that the DHHS should have provided reunification services, lacked merit. As it noted in HRC, “MCL 722.638(1)(a)(ii) mandates that [DHHS] seek termination of parental rights when the parents are suspected of perpetuating sexual abuse upon the minor children or their siblings and when a parent fails to intervene to eliminate that risk.” Further, when it seeks termination, “the DHHS is not required to provide any reunification services.” The court also noted this argument related more to the issue of statutory grounds than the children’s best interests. It agreed with the trial court “that the children deserved an environment of consistent care and safe parenting, which it appeared that mother was either unable or unwilling to provide. The children were doing well in placement with a relative, a situation that provided necessary stability and permanence. Despite everything, mother remained married to father and living with him in her household.” While she now asserted on appeal that she would have supported removing him from the home for her daughters’ safety, in light of her history of shielding him “and failing to protect her daughters when they needed her most, we find this eleventh-hour promise of change unavailing.” Noting that she was still hesitant to believe her daughters’ allegations, the court agreed with “the trial court that it would not be in the children’s best interests to remain in that environment.” Further, the evidence suggested the children did not wish to live with her. Affirmed.
Termination under §§ 19b(3)(c)(i), (g), (j), & (h); Validity of a plea; In re Pederson Minors; MCR 3.971(D); Prejudice; Best interests of child; In re Moss Minors; In re White; In re Olive/Metts Minors
The court held that the trial court committed plain error by questioning respondent-mother to establish a factual basis for her no-contest plea as to the housing allegation in the petition, but it could not conclude that she was prejudiced. Also, the trial court did not clearly err in determining that termination of her parental rights was in child-L’s best interests. Respondent argued that reversal was warranted because the trial court elicited testimony from her “without informing her that her testimony would convert her no-contest plea to an admission that she had lacked suitable housing since 2017.” The court held that the trial court plainly erred, but noted that it did so because the DHHS “did not have a witness or any documentary evidence at the hearing to establish a factual basis for respondent’s no-contest plea regarding the housing allegation.” While her counsel agreed to this procedure, no authority provides that counsel may waive the right to the establishment of a factual basis for a no-contest plea when “respondent has plainly expressed a wish to plead no contest rather than to admit an allegation.” Having found plain error, the court turned to whether she suffered prejudice due to the error. On this record it could not hold that respondent was prejudiced. After “receiving a full advice of rights under MCR 3.971(B)(3),” respondent admitted grounds existed for the trial court to take jurisdiction over L. She “and her attorney then signed a written plea agreement stating the same. Importantly, the record following adjudication contained undisputed evidence that respondent continually lacked stable or suitable housing.” This fact was magnified by her being imprisoned in another state “before the trial court entered an initial dispositional order. Respondent’s own testimony at the termination hearing revealed that she became homeless in [8/17], and when she was able to find somewhere to live, the conditions were not suitable for” L. The court could not conclude from the record that the trial court’s error affected the outcome of the proceedings. The evidence presented established that she failed to attain suitable housing for her and L. Thus, absent evidence that the trial court’s initial questioning “during her no contest plea ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings’ independent of” her innocence, she was not entitled to relief on this issue. Affirmed.