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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Action to vacate an arbitration award; Federal Arbitration Act (9 USC § 1 et seq); §§ 10(a)(3) & (4); Whether the district court had subject-matter jurisdiction; Kokkonen v. Guardian Life Ins. Co. of Am.; Diversity jurisdiction; 28 USC § 1332(a); Ford v. Hamilton Inv., Inc.; Horton v. Liberty Mut. Ins. Co.; Theis Research, Inc. v. Brown & Bain (9th Cir.); Mitchell v. Ainbinder (Unpub. 6th Cir.)
The court held that when a petitioner seeks to vacate or reopen an arbitration proceeding, a court must consider the amount of loss alleged in the complaint and not the arbitrator’s award when determining whether § 1332(a)’s jurisdictional amount in controversy requirement is met. Thus, it reversed the district court’s ruling that it lacked subject-matter jurisdiction over an action to vacate a $0 arbitration award. Plaintiff-Hale, an employee of defendant-Morgan Stanley, disputed certain disciplinary actions Morgan Stanley took, and the dispute went to arbitration, resulting in the $0 award for Hale. He sued to vacate the award. The district court did not reach the merits of his claim because it concluded that it lacked subject-matter jurisdiction, and granted Morgan Stanley’s motion to dismiss. Morgan Stanley argued that Hale could not meet the amount in controversy requirement for diversity jurisdiction because the arbitrator awarded him $0 in damages. Hale countered that the amount in controversy was the amount that he requested in his complaint—$14.75 million. The court held in Ford that it is not the amount of the arbitrator’s award that must be considered but instead “the amount alleged to be in controversy in the complaint.” It found that the district court erred in distinguishing “Ford and Mitchell by indicating that the former involved a request to vacate an arbitration award and the latter included a demand to reopen an arbitration[.]” The court concluded that “there is no meaningful difference between the two forms of relief . . . Ford and Mitchell therefore both stand for the same proposition: when a petitioner disputes an issued arbitration award—either through vacation or seeking to reopen arbitration—courts need only to review the relief requested in the complaint to determine the amount in controversy.” The minimum amount requirement was met here. Reversed and remanded.
Sufficiency of the evidence for a first-degree premeditated murder conviction; People v Bennett; People v Clark; MCL 750.316(1)(a); Premeditation; People v Oros; Voluntary manslaughter; People v Mendoza; Ineffective assistance of counsel; People v Rosa; Decision not to call a witness; Constitutional right to testify in one’s own defense; People v Bonilla-Machado; Right to effective assistance in the plea-bargaining process; People v Douglas
Holding that there was sufficient evidence for the trial court in defendant’s bench trial to find beyond a reasonable doubt that he acted with deliberation and premeditation, and rejecting his ineffective assistance of counsel claims, the court affirmed his first-degree murder conviction. The evidence showed that he watched another man (G) attack the victim (B) “and did nothing to stop him. Then, after being in the apartment for about 30 seconds, defendant came back out to the courtyard and repeatedly stomped on [B’s] head.” He then walked to the apartment building entrance, “picked up a shovel, walked back to [B], raised the shovel above his head with both hands, and hit her with it three times. The time before and between the beatings inflicted by defendant was more than enough to constitute premeditation.” The evidence also supported the inference that, after attacking B, defendant and G dropped her “body off near a vacant lot, and then returned to the courtyard and spent about 50 minutes cleaning up the murder scene.” The evidence further supported the inference that, at some point after the attack, “defendant unplugged the surveillance system which controlled the security camera in the courtyard.” Thus, there was sufficient evidence for the trial court to find beyond a reasonable doubt that he “had time to take a ‘second look[.]’” The court also agreed “with the trial court that the evidence did not support voluntary manslaughter as there was no evidence supporting defendant’s argument that” B hit him in the head or that he sustained “a large head injury. The security-camera footage does not depict [B] hitting defendant in the head or defendant suffering a head injury, and” he failed to cite where this occurred in the footage. The trial court found “that premeditation and deliberation were established by the length of time which elapsed between the attack beginning and defendant involving himself, the number of times that defendant hit [B], the means by which” he struck her, and his conduct after the attack. The court held that it did not err in its conclusion. In addition, he was not entitled to a new trial on the basis of ineffective assistance of counsel.
Sua sponte amendment of judgments of sentence (JOS); MCR 6.435; People v Comer; “Omission”; People v Howell; Specifying whether a defendant’s sentence is to run consecutively or concurrently; MCL 769.1h(1); Mandatory consecutive sentencing when a crime is committed while on parole; MCL 768.7a(2); Notice & an opportunity to be heard; MCR 6.429(A); People v Catanzarite; Due process; People v Thomas
While the court concluded that the trial court was correcting a clerical error when it sua sponte amended defendant’s JOS, it held that the trial court plainly erred by failing to give the parties an opportunity to be heard. Because it did not do so, defendant’s substantial rights were affected, making it necessary to vacate the amended JOS and remand for resentencing. He was charged in six cases with breaking and entering with intent to commit a felony or larceny. He was on parole when he committed the crimes. He pled guilty to five counts, with a fourth-offense habitual offender enhancement. He later pled guilty to a separate sixth charge. After he was released from jail, a probation violation warrant was issued when he absconded from probation. He pled guilty to violating the terms of his probation and was sentenced to prison. His original JOS did not indicate whether he “was to serve the sentences consecutive to any parole sentence.” The trial court later sua sponte amended the JOS to reflect that his new sentences were “consecutive to any sentence imposed for a parole violation.” The court found that the circumstances here were similar to those in Howell. As in that case, the trial court here did not indicate that it was obligated to sentence defendant “in accordance with MCL 768.7a.” Also as in Howell, it “did not reconsider or correct any previous action. Nor did the trial court operate ‘under the mistaken belief that [the defendant] was not actually on parole.’” Instead, its failure to address whether he had “to serve his new sentences consecutive to any sentence imposed for a parole violation was an omission or oversight—i.e., something that the trial court left out or failed to include—in the” original JOS. However, it plainly erred when it failed to comply with MCR 6.429(A)’s requirement that it give “the parties an opportunity to be heard[.]” Further, as to defendant’s substantial rights, he “did not receive ‘due consideration’ of the fact that he was required to serve his new sentences consecutively to any sentence imposed for a parole violation under MCL 768.7a(2).” There was no discussion of the effect of his parole status at his sentencing hearing.
Sixth Amendment right to conflict-free counsel; United States v. Hall (6th Cir.); McElrath v Simpson (6th Cir.); Ineffective assistance of counsel; Strickland v Washington; Prosecutorial misconduct; People v Unger; Other acts evidence; MRE 404(b); Statements as to defendant’s admissions; Vouching; Appeals to civic duty, sympathy, & the jurors’ emotions; Cumulative error; People v Dobek; Right to a jury drawn from a fair cross-section of the community; People v Bryant; Request for remand; MCR 7.211(C)(1)(a)
The court held that defendant did not set forth a prima facie case of a conflict of interest on the part of his trial counsel (K) and in the absence of an actual conflict, he was not entitled to appellate relief. While it found that the prosecution made an impermissible civic-duty argument, it concluded “that this brief improper argument” did not entitle him to appellate relief, and it rejected his other prosecutorial misconduct claims. Finally, it determined that he did not set forth a prima facie case of a Sixth Amendment fair cross-section requirement violation, and denied his unsupported request for remand for further factual development. He was convicted of possession with intent to deliver 50 to 449 grams of cocaine, possession with intent to deliver less than 50 grams of heroin, possession with intent to deliver meth, felony-firearm, FIP of a firearm, and FIP of ammunition. He asserted that K had a conflict of interest because she also represented a suspected drug dealer, O. However, the court noted that there was no evidence O “had anything whatsoever to do with the drugs that resulted in the charges against defendant or that [O’s] criminal charges were in any way connected to the drugs in” the apartment or to the men (“Smoke and Big D”) to whom a witness testified the drugs probably belonged. Defendant speculated that O may have supplied the drugs to Smoke and Big D, and that K “could have presented such evidence or cross-examined witnesses about this possibility. But defendant’s theory that [O] supplied the drugs in his apartment to Smoke and Big D” had no basis in the record. Without evidence supporting his claim, “the conflict between his interests and [O’s] is merely hypothetical, and it is not indicative of an actual conflict.” In addition, the unsubstantiated conflict did not show that K “made a choice not to elicit evidence helpful to defendant in order to protect [O];” the court noted that there was no indication such evidence existed. Further, the fact that O’s “seemingly unrelated drug charges were to be tried in separate proceedings strongly supports the conclusion that [K] did not face a conflict of interest from her representation of both clients.” Affirmed.
Sufficiency of the evidence for an armed robbery conviction; MCL 750.529; MCL 750.530; People v Chambers; Assault; People v Nickens; Circumstantial evidence; Prosecutorial error; Denigrating defense counsel; People v McLaughlin; People v Unger; Vouching for a witness; People v Seals
Concluding that the evidence was sufficient to establish that defendant-Word committed the crime of armed robbery against victim-JD and that the prosecutor did not engage in misconduct, the court affirmed. Word argued that there was insufficient evidence that JD, who did not testify, ‘“was put in fear or was assaulted[.]’” The court noted that “Word had a gun in his hand when he approached the victims.” According to victim-KW, “Word placed a clip in the gun and asked how much money the victims had with them. KW testified that he had over $100 on his person and that, after he responded to Word, Word pointed the gun at KW and demanded the money. According to KW, Word was a few feet away from him when this occurred, and JD was in close proximity to KW. KW, who was ‘a little’ afraid, threw the money onto the ground. KW testified that he provided the money to Word despite not wanting to do so. Word then searched KW’s pockets and took his cell phones. According to KW, Word did not ‘go through’ JD’s pockets because JD had emptied the contents of his pockets onto the ground. Based on Word’s instructions, the victims removed their shoes. According to KW, Word then instructed the victims to put their shoes back on and ‘to take off running.’” They complied. “Not long thereafter, KW heard a gunshot and realized that he had been shot.” The court held that a rational trier of fact could find that Word put JD in fear or assaulted him. “JD was in close proximity to KW when Word pointed the gun at KW.” In addition, “JD emptied his pockets and removed his shoes based on Word’s instructions and fled the scene when he was provided with the opportunity to do so.” Word also fired the gun as the victims were running away. “According to KW, he was about 15 feet away from Word when this occurred, and KW agreed that JD was with him when he was shot.” While Word suggested that JD’s failure to testify should negate the armed robbery conviction as to this victim, the court disagreed. Further, it does not second-guess jury determinations as to the weight of the evidence or the witnesses’ credibility. The jury clearly found KW’s testimony credible because it convicted Word of armed robbery as to JD. It did so despite being instructed that it was allowed “to infer that JD’s ‘testimony would have been unfavorable to the prosecution’s case.’”
Divorce; Denial of motion for relief from judgment & of a declaratory judgment; Whether the divorce proceedings took precedence over child protective proceedings in the tribal court; In re AP; Krajewski v Krajewski; One-parent doctrine; In re Sanders
The court held that “the state court presiding over the divorce proceedings properly concluded that it did not have the authority to grant the relief” defendant-mother requested “because custody issues were in the hands of the courts presiding over the child-protective proceedings.” Further, the additional issues she raised or mentioned on appeal either lacked merit or were raised in the wrong case. Resolving this appeal involved determining whether the trial court (referred to as the state court) was correct in determining that “it lacked the authority to grant the various forms of relief” defendant sought. Essentially, she contended that the consent judgment of divorce addressed child custody, and thus, “the state court erred in failing to rule on custody issues and in deferring to the decisions of the tribal court when defendant was not a respondent in that litigation.” But the trial court here was not involved in the decision to transfer the child-protective proceedings to the tribal court and had no authority to vacate that order. Next, her claim that the “one-parent doctrine” as discussed in Sanders entitled her to appellate relief was also unavailing. While she claimed that “she was a non-respondent in the tribal court and that the tribal court’s decisions denying her custody of the children were unconstitutional under [Sanders], it is not apparent that this allegation is true in light of the tribal court’s statement that the children had been ‘adjudicate[ed] . . . deprived as to their Mother.’” However, more importantly, it “was not the state court’s role to determine whether the one-parent doctrine had been improperly applied by the tribal court. The state court was not empowered to correct errors by the tribal court that occurred in the course of the child-protective proceedings once the tribal court acquired jurisdiction over those proceedings.” Defendant’s contention that “the divorce proceedings must take precedence over the proceedings in the tribal court” was not correct. Thus, the court affirmed the order denying her motion for relief from judgment and a declaratory judgment in the divorce proceedings.
Enforcement of a large child support arrearage & defenses to collection efforts made by the FOC; Subject-matter jurisdiction; MCL 600.1021; Collateral attack; In re Application of IN MI Power Co; Misplaced reliance on MCL 440.1308(1) in a case involving a child support obligation
Finding no errors warranting reversal, the court affirmed the trial court’s orders in these consolidated appeals involving enforcement of a large child support arrearage owed by appellant-Spencer, and his defenses to collection efforts made by the FOC. He raised several claims of error as to the trial court’s grant of summary disposition in the second lawsuit. But he “failed to address the actual basis for the trial court’s ruling, i.e., that Spencer’s complaint constituted an improper collateral attack on the trial court’s decision in the divorce case.” It was evident from the nature of his “claims for relief that his purpose in pursuing the second case was to circumvent the decisions reached in the divorce case.” Specifically, he sought to contest the divorce court’s denial of his “jurisdictional challenges, the various support enforcement orders, and the divorce court’s order finding him in contempt for failure to exercise due diligence in paying the accrued child support arrearage. The trial court did not err by granting summary disposition because a party may not use a second proceeding to attack a decision reached in a previous proceeding.” To the extent he claimed that “the FOC and trial court misconstrued the nature of his claim, summary disposition remained appropriate.” He suggested that the FOC and trial court did not appreciate the significance of the FOC’s 2016 letter as to “the impending case closure, which was, in Spencer’s view, an admission by the FOC that Spencer’s support obligation had been released. But the implications of the FOC’s correspondence had no bearing on the trial court’s ruling. The FOC moved for summary disposition under MCR 2.116(C)(7), reasoning that dismissal was required because Spencer’s complaint constituted an improper collateral attack on the support enforcement order entered in the divorce case.” The trial court agreed and thus, granted the FOC summary disposition. It “did not err in this regard. If Spencer was dissatisfied with the trial court’s decisions in the divorce case, his only avenue for relief was through the appellate process in that case.” The court held that because “the trial court’s orders in the divorce case were not void for lack of jurisdiction, they could not be collaterally attacked in a second proceeding.”
Post-judgment motion for the sale of artwork seized to collect on a judgment; Standing to challenge the motion; Lansing Sch Educ Ass’n v Lansing Bd of Educ; Real party in interest; MCR 2.201(B); Determining ownership of the artwork
The court held that defendant-Bohlen had standing to oppose plaintiff-bank’s post-judgment motion for the sale of the artwork at issue, and that the trial court did not clearly err in its factual finding that a non-party (M) owned the artwork when it was donated to a museum. Thus, it affirmed the order denying plaintiff’s motion and vacating the trial court’s earlier seizure order as to the artwork. Bohlen was a personal guarantor on a loan. After a default, he and plaintiff entered into a consent judgment. The artwork was later donated to the museum. The parties disputed whether that was made jointly by Bohlen and his wife, M, or solely by M, a non-party to the consent judgment. Plaintiff alleged that the artwork was Bohlen’s personal property, that he transferred it to the museum without consideration, that the transfer “was a fraudulent conveyance, and that plaintiff was permitted to levy execution against the Artwork to satisfy Bohlen’s debt. The trial court issued an order ‘seizing’ the Artwork, although” it remained held by the museum. Plaintiff later moved for the entry of an order authorizing its sale. After rejecting defendants’ challenge to its jurisdiction over plaintiff’s appeal, the court rejected plaintiff’s contention that “the trial court erroneously applied summary disposition principles to” its motion. It found “no evidence in the record that the trial court was confused about the nature of the motion it was deciding or that it granted judgment in favor of defendants rather than merely denying plaintiff’s motion.” As to plaintiff’s argument that Bohlen lacked standing, it failed to offer “any authority for the proposition that a plaintiff may challenge a defendant’s standing to oppose a particular motion in proceedings against him, or indeed that the standing doctrine applies to defendants in this manner at all[.]” In addition, “plaintiff’s claimed right to seize and sell the Artwork depends on Bohlen having an ownership interest in” it. The court concluded that he “had sufficient interest in the matter, and there was sufficient risk that Bohlen would be detrimentally affected in a manner distinct from the general public by the grant of plaintiff’s motion, to ‘ensure sincere and vigorous advocacy.’”
Security bond requirement & dismissal of the claim for failing to provide one; MCR 2.109(A); In re Surety Bond for Costs; Invasion of privacy based upon the public disclosure of private facts; Doe v Henry Ford Health Sys; Beaumont v Brown; Hearsay; MRE 801(c); Intentional infliction of emotional distress (IIED); Hayley v Allstate Ins Co; Severe emotional distress; Haverbush v Powelson; Bodily harm; Dickerson v Nichols; Civil stalking; MCL 600.2954(1); MCL 750.411h; “Emotional distress”; MCL 750.411h(1)(b); “Significant mental suffering or distress”
The court concluded that the trial court abused its discretion when it ordered plaintiff-Martin to post a security bond of $25,000, and by dismissing his claims after he failed to do so. But it did not err by denying his motion for summary disposition on his invasion of privacy, IIED, and civil stalking claims. The parties were in a previous dating relationship. Martin alleged, among other things, that defendant-Smith sent explicit photos “and/or videos of Martin to Martin’s grandparents, mother, brother, cousin, and friend. However, as argued by Smith, Martin improperly relied on hearsay to support part of this argument.” He averred that his mother and grandparents reported to him that they received photos of him “nude and/or engaged in sexual activity.” He further averred that, in 2019, his grandparents contacted him “via text message to inform [Martin] that they received said content of [Martin].” He attached the alleged text messages from them to his affidavit. He further averred that his cousin, who was now deceased, reported to him that he had received similar photos. But his averments and text message attachments as to his family receiving videos and/or photos “constitute out-of-court statements that are offered to prove the truth of the matter asserted, i.e., that Smith disclosed Martin’s private material to multiple family members.” Martin did not acknowledge this on appeal or offer any authority to support that this evidence was substantively admissible. Thus, Smith’s alleged distribution of private material to these members of Martin’s family could not “be considered when reviewing the trial court’s decision to deny Martin’s motion for summary disposition on his claim of public disclosure of private information.” After reviewing the affidavit of Martin’s friend and that of Martin’s brother, the court held that “a reasonable jury could conclude that Smith’s alleged actions did not constitute an unreasonable and serious interference with Martin’s interest in not having his affairs known to others in a particular public.” There was a genuine issue of material fact as to whether the small group of individuals who received the photos “and/or videos of Martin constituted the public for purposes of invasion of privacy based upon the public disclosure of private material.” However, “there was no substantial reason for the trial court to order Martin to post a security bond.” While there were questions of fact, “there was no good reason to believe that Martin’s allegations were groundless and unwarranted.” Affirmed in part, reversed in part, and remanded.
Subject-matter jurisdiction; The Michigan Credit Union Act (MCL 490.101–.601); The Federal Credit Union Act (FCUA) (12 USC §§ 1751–1795k); Jurisdiction over claims seeking a credit union’s assets or challenging its actions; § 1787(b)(13)(D); Nonjurisdictional claims-processing rules; Fort Bend Cnty. v. Davis; The claims-processing framework for liquidating banks administered by the FDIC; Dernis v. Amos Fin. (Unpub. 6th Cir.); Village of Oakwood v. State Bank & Trust Co.; MTB Enters., Inc. v. ADC Venture 2011-2, LLC (9th Cir.); Miller v. FDIC (7th Cir.); Battista v. FDIC (9th Cir.); The proper judgment; Dismissal of a removed case when the court determines that both it & the state court lack jurisdiction; Estate of W. v. U.S. Dep’t of Veterans Affairs; Seaway Bank & Trust Co. v. J&A Series I, LLC (7th Cir.)
[This appeal was from the ED-MI.] The court held that the district court lacked subject-matter jurisdiction over plaintiff-Perna’s claim to modify an arbitration award by making defendant-National Credit Union Administration Board, the liquidating agent of his former employer (a state-charted, federally insured credit union), liable on it. The FCUA divests all courts of jurisdiction over claims against covered credit unions asserted outside of the Act’s exclusive framework. Perna worked for defendant-Health One, which was taken over by the Board. The Board fired Perna, who sought damages via a suit against a state agency, a claim with the Board, and arbitration. He sought here to have the arbitration award modified to make the Board liable. The district court ruled that it did not have jurisdiction, but granted defendants summary disposition. The court held that the case should have been dismissed for lack of subject-matter jurisdiction. It noted that federal law mandates that “‘no court shall have jurisdiction over’ claims seeking the credit union’s assets or challenging its actions.” The court agreed with the district court’s conclusion that it lacked jurisdiction over Perna’s claim because the FCUA “divests all courts of jurisdiction over claims involving the assets of covered credit unions.” It noted that this framework is comparable to that involving liquidating banks. The court lacked jurisdiction under § 1787(b)(13)(D)(i) where the Board was the “appointed liquidating agent” of Health One; Perna’s suit was an “action for payment” from Health One’s assets; Perna alleged that Health One owed him severance pay and related damages; and he sued defendant-National Credit Union Administration because it took title to the Health One assets that he sought. The court rejected his claim that the framework only applies to “federally chartered credit union, not when it liquidates a federally insured state-chartered credit union like Health One.” It noted that “a state-chartered credit union is not automatically subject to the [FCUA]. But once such a credit union decides to obtain federal insurance (as Health One did), it becomes subject to the federal laws that govern federally insured state credit unions, including § 1787(b).” The court noted that under the FCUA, “‘no court,’ including a state court, has ‘jurisdiction’ over claims subject to its framework.” It modified the district court’s judgment to a dismissal for lack of subject-matter jurisdiction. Affirmed as modified.