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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
View Text Opinion Full PDF Opinion
Attorney fees incurred after entry of arbitrators’ remedial order; MCL 691.1705; Distinguishing De Simone v Barberio (Unpub); Proving the reasonableness of the fees sought
The court disagreed with plaintiff-Gruber’s claim that he was contractually entitled to additional attorney fees and held that the trial court did not abuse its discretion in denying his motion for fees under MCL 691.1705. He sued defendants for wrongful termination. The matter went to arbitration. The arbitration panel ruled for “Gruber, leaving its determination of an appropriate remedy for a later date.” Proceedings in the trial court and the court followed. The court affirmed the trial court’s ruling upholding the arbitration award. The trial court remanded the case to the arbitration panel, which issued a remedial order and a memorandum. After further proceedings in the trial court and the court, Gruber unsuccessfully sought attorney fees incurred after the remedial order was issued. He contended that “he asserted his statutory and contractual rights to attorney fees, and the trial court should have followed the reasoning in De Simone[.]” He also argued that it “should have exercised its discretion under MCL 691.1705 to grant his requested attorney fees, especially because” the court had upheld the remedial order. The court noted that, unlike “De Simone, this case was not litigated by the courts because it was fully adjudicated before the arbitration panel.” Given that the cases were not similar, it was not persuaded that De Simone’s reasoning applied here. “Further, in this case, because the arbitration panel did follow §§ 9 and 10(G) of the parties’ employment contract, and recognized that Gruber was mainly, but not entirely, successful in the proceedings,” the court rejected his claim he was contractually entitled to the fees. As to his motion pursuant to MCL 691.1705, under the statute’s plain language, “it was within the trial court’s discretion to grant or deny Gruber attorney fees and costs that he incurred in moving to confirm the arbitration award, as well as any fees incurred in proceedings occurring after confirmation of the award.” To the extent he sought “fees that he incurred before raising his confirmation motion before the trial court, he was not entitled to those fees under the plain language of MCL 691.1705. To the extent Gruber sought attorney fees for bringing his motion for confirmation before the trial court and for subsequent proceedings, those fees were permitted under MCL 691.1705, but only at the trial court’s discretion, and the trial court found that [his] motion was cursory and unpersuasive. [It] did not clearly err in making this finding[.]” Affirmed.
Sufficiency of the evidence for an AWIGBH conviction; Identification testimony; People v Davis
Holding that the evidence of defendant’s identification as the shooter was sufficient to support his AWIGBH conviction, the court affirmed. He only challenged “the sufficiency of the evidence to support his identity as the shooter.” The victim (R) “unequivocally identified defendant as an occupant of the car from where the multiple gunshots fired upon him originated. In defendant’s written statement, which [he] essentially ignores in his analysis, he admitted that that he fired a rifle at [R]. In particular, defendant claimed that [R] was following him, ‘so [he] open fire. With a AK.’” The court concluded this “evidence, if believed, was sufficient to establish defendant’s identity as the shooter beyond a reasonable doubt.” The prosecution additionally “presented evidence that shell casings at the scene where [R] was shot matched a firearm found at a house connected to defendant. Also, there was evidence that, soon after the shooting, defendant, who was the sole occupant of the suspect vehicle, attempted to evade capture by leading the police on an eight-minute high-speed chase before bolting from the car and fleeing on foot. This evidence further enhanced [his] identity as the shooter.” The court noted he essentially asserted that the evidence was insufficient “because there was no direct evidence that he was the shooter, and he emphasize[d] the implausibility of his being able to both drive a car and shoot out of the window.” But his challenges went “to the weight and credibility of the evidence, which were issues for the jury to resolve. . . . The jury heard from witnesses and evaluated defendant’s written statement. The jury was free to accept or reject the theory of either party in light of the evidence presented at trial, and” the court would not interfere with its “role of determining issues of weight and credibility.”
Other acts evidence; MRE 404(b)(1); Relevance; MRE 402; Unfair prejudice; MRE 403; The “180-day rule”; MCL 780.131(1); People v Witkoski; Speedy trial; The Barker test; Barker v Wingo; Speedy trial; Principle that pandemic-related delays should not be held against the prosecutor in evaluating speedy-trial claims; People v Smith; Jail credit; MCL 769.11b; Ineffective assistance of counsel; Failure to advance a meritless argument or raise a futile objection
The court held that: (1) defendant’s parole officer’s testimony was not unfairly prejudicial, (2) he was denied not denied his right to a speedy trial, and (3) he was not denied the effective assistance of counsel. He was convicted of felonious assault, larceny in a building, and domestic violence for assaulting the victim, his then-girlfriend, and then taking some of her belongings when he moved out. On appeal, the court rejected his argument that his parole officer’s testimony about her investigation into the victim’s allegations was improper other acts evidence. There was “no evidence in the record showing the testimony about defendant’s parole status was unfairly prejudicial.” The testimony “focused on the victim’s report and” the subsequent investigation. There “was no testimony about defendant’s prior convictions or the reason for his parole.” In addition, “defendant was acquitted of aggravated domestic violence,” which further lessened the likelihood he was prejudiced by the testimony. The court also rejected his claim that the trial court violated the 180-day rule, noting that because there was no evidence as to when the MDOC notified the prosecutor of defendant’s incarceration, and defendant presented none on appeal, it was “impossible to determine whether a violation of the 180-day rule actually occurred.” In addition, his “trial was not delayed because of the prosecutor’s unpreparedness; it was delayed by pandemic-related illness.” Further, he was not “entitled to jail credit because he was held on a parole detainer through the entirety of his pretrial detention.” Finally, the court rejected his contention that defense counsel was ineffective for failure to object to his parole officer’s testimony and for unfairly delaying trial. First, the trial court did not err in admitting this evidence and failing to “‘advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.’” Second, defense counsel stated she would not agree to the parole officer’s remote testimony, and “there were obvious strategic reasons for this demand.” Affirmed.
Motion to use preliminary exam testimony; Discovery before the preliminary exam; Unavailable witness; Confrontation Clause & cross-examination; People v Farquharson
Finding that the trial court abused its discretion in withholding the testimony, the court reversed the order denying the prosecution’s motion to use preliminary exam testimony at trial, and remanded. Defendant was charged with solicitation of murder. It was alleged that while incarcerated with two other inmates (W and P) he solicited them to murder the complainant in his pending CSC case. At issue was whether the cross-examination of W by defense counsel at the preliminary exam “was sufficient for the purposes of the Confrontation Clause.” The court held that unquestionably, “defense counsel was not able to cross examine [W] on all matters without complete discovery.” The court found that instead, at issue was whether defendant-Shendaj “had a similar motive and opportunity to develop the testimony of [W] at the preliminary examination as he would have at trial.” At oral argument before the court “the prosecutor acknowledged that there may be a situation where the post examination discovery materials would so meaningfully alter the cross-examination that it cannot be said the motive of the examination remains the same.” But from the record here, the court could not “conclude that this is that case. Though the Farquharson factors are not exhaustive, they demonstrate that Shendaj had a similar motive and opportunity to develop [W’s] testimony at the preliminary” exam. Thus, W’s prior testimony fell “within a hearsay exception and is admissible.”
Sentencing: Procedural reasonableness; Enhancement using the second-degree murder cross-reference under USSG § 2K2.1(c); “Malice aforethought”; Whether the government proved by a preponderance of the evidence that the defendant “acted at least recklessly” when he shot & killed the victim; Whether the district court properly considered the deterrence sentencing factor & defendant’s mitigation argument
[This appeal was from the ED-MI.] The court held that defendant-Mills’s sentence for FIP of ammunition was properly enhanced under USSG § 2K2.1(c) and thus, rejected his challenge to the procedural reasonableness of his sentence. The court previously vacated his sentence, concluding that when applying the enhancement, the district court “made insufficient factual findings on causation, Mills’s justification defense, and Mills’s mental state . . . .” The district court then addressed all three factors at resentencing and imposed the same sentence—the statutory maximum penalty of 120 months. It ruled that Mills had caused the victim’s (M) death, and that he had the mens rea necessary to support the second-degree murder cross-reference. It rejected his “justification defense,” finding insufficient evidence to support it. Mills argued that the sentence imposed at resentencing was not procedurally reasonable. The court explained that “for the cross-reference to apply, the government had to prove by a preponderance of the evidence that Mills acted at least recklessly when he shot and killed” M. It upheld the district court’s conclusion that Mills had committed second-degree murder when he went to the house “‘locked and loaded[,]’” and he “‘willfully and wantonly and callously’ fired his shotgun at the car, ‘not once, but twice,’ and demonstrated a ‘man-endangering state of mind.’” Moreover, his social-media messages also displayed a “murderous mental state . . . .” It rejected his claim that the district court erred by considering the deterrence factor to be significant, concluding it “did not abuse its discretion by factoring in general deterrence of gang violence when it imposed Mills’s sentence.” The court further found that the “preparation for a confrontation weighed against any mitigation.” Affirmed.
Coverage under a no-fault insurance policy; Priority under MCL 500.3114; “Relative”; Effect of a spouse’s death on affinal bonds; Shippee v Shippee’s Estate; In re Grablick Trust; Patmon v Nationwide Mut Fire Ins Co (Unpub)
The court held that the trial court erred in denying defendant-insurer summary disposition because it improperly determined that the injured individual (nonparty-Morgan) “was entitled to coverage under defendant’s no-fault insurance policy and that defendant was first in priority under MCL 500.3114.” Thus, it reversed and remanded to the trial “court for entry of an order granting defendant’s motion for summary disposition.” Because Morgan’s car was uninsured, he “sought payment of no-fault benefits under an insurance policy held between defendant and a person named” Willis, who was married to Regina, Morgan’s sister, “until her death in 2020, resulting in an affinal relationship between Morgan and Willis. Morgan also resided with Willis for approximately 35 years, including the time after Regina’s death and the date of the accident. After Regina died, Willis maintained the insurance on Regina’s car” through defendant. The issue was “whether Morgan maintained his affinal relationship with Willis at the time of the motor vehicle collision or whether the brother-in-law affiliation ended when Regina died under the language of the insurance policy, MCL 500.3114(1), and” Michigan case law. The court held that because “Shippee recognizes that affinal relationships terminate upon the death of spouse unless there are living issue, and because there was no indication Morgan and Regina had surviving issue, Morgan and Willis ceased to be related by marriage when Regina died. Accordingly, Morgan was ineligible for PIP benefits under defendant’s insurance policy and MCL 500.3114.”
Challenge to special assessments for lake-level maintenance; Kadzban v City of Grandville; Validity of a special assessment; Michigan’s Adventure, Inc v Dalton Twp; Due process; Dixon Rd Group v City of Novi; In re Forfeiture of 2000 GMC Denali & Contents
The court held that the trial court did not err by denying plaintiffs’ (association and members) appeal seeking relief from the special assessments on their real property. Plaintiffs challenged the levying and distribution of the special assessments, arguing that defendants’ (counties) decisions were not authorized by law and were not supported by competent, material, and substantial evidence overall. The trial court found the special assessments were legally authorized. On appeal, the court rejected plaintiffs’ argument that the special assessments were “per se invalid because the methodology used to determine the improvements did not consider the public benefits of the improvements or ensure that the required proportionality was achieved.” They failed “to cite any evidence from the record that compares the market value of the assessed properties before and after the improvements.” The trial court also correctly held that plaintiffs “failed to demonstrate an unreasonable disproportionality between the amounts of their assessments in comparison to the benefits derived to overcome the rebuttable presumption in favor of validity . . . .” Finally, as to due process, plaintiffs “were not entitled to a process that closely resembles a judicial trial or a comprehensive evidentiary hearing.” Affirmed.