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• Contracts (1)

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  e-Journal #: 83413

  Case: Dillon Energy Servs. Inc. v. New Prods. Corp.

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Hood, Boonstra, and Feeney

  Issues:

  Breach of contract; Pricing; Reasonableness under the Uniform Commercial Code (UCC); Reasonable certainty as to damages

  Summary:

  In this case arising out of a contract to supply natural gas, the court affirmed the trial court’s order awarding damages to plaintiff/counterdefendant-Dillon, a retail natural gas supplier. Defendant/counterplaintiff-New Products, an automotive supplier, argued “that the trial court clearly erred by awarding damages in Dillon’s favor because it failed to prove that New Products agreed to the price charged for natural gas during the timeframe at issue, it failed to prove that the price it charged for natural gas was reasonable under the [UCC], and it failed to prove its alleged damages with reasonable certainty.” The court disagreed in all respects. The parties’ contract “stated that Dillon agreed to sell, and New Products agreed to purchase, volumes of natural gas ‘at prices negotiated.’” Based on Dillon’s president’s “testimony, the trial court did not clearly err when it found that the parties agreed to the price charged for natural gas during the timeframe at issue. The negotiated . . . price for the supply of natural gas in [2/21] was simply the spot-market price, as contemplated by the parties’ agreement.” The court found that even “if the trial court had clearly erred when it found that the parties agreed to the price charged for natural gas during the timeframe at issue, Dillon’s invoice still reflected a reasonable price under Michigan’s [UCC].” Based on the president’s testimony, “the trial court did not clearly err when it found Dillon’s invoice reflected a reasonable price under Michigan’s [UCC]. Although the price of natural gas spiked in [2/21], New Products elected to purchase natural gas on the spot market and therefore assumed the risk of fluctuating prices. Furthermore, the trial court did not clearly err when it found that Dillon proved its alleged damages with reasonable certainty.” The court concluded that to “the extent that New Products challenges the trial court’s finding based on the credibility of Dillon’s president, the trial court found Dillon’s president to be credible, and we defer to ‘the trial court’s superior ability to judge’” the witnesses’ credibility. Thus, it held that “Dillon’s documentary evidence and supporting testimony was sufficient to establish its alleged damages with reasonable certainty.”

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• Criminal Law (4)

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  e-Journal #: 83483

  Case: People v. Taylor

  Court: Michigan Supreme Court ( Opinion )

  Judges: Welch, Bernstein, Cavanagh, Bolden, and Thomas; Concurring in part, Dissenting in part – Bernstein; Dissent – Clement and Zahra

  Issues:

  Sentencing; Mandatory life in prison without the possibility of parole (LWOP) for first-degree murder; MCL 750.316; Extension of People v Parks to defendants who were 19 or 20 when they committed the crime; Michigan’s prohibition against “cruel or unusual punishment” (Const 1963, art 1, § 16); Proportionality; People v Lorentzen; People v Bullock; Retroactivity; People v Poole; The continued viability of People v Hall

  Summary:

  The court extended “Parks to individuals who were 19 or 20 years old at the time of the crime for which they were convicted.” It held that applying a mandatory LWOP sentence under MCL 750.316 to defendants-Czarnecki and Taylor (aged 19 and 20, respectively, at the time of their crimes) constituted “unconstitutionally harsh and disproportionate punishment and thus ‘cruel’ punishment in violation of Const 1963, art 1, § 16.” The court evaluated the proportionality of defendants’ sentences using the factors set forth in Lorentzen and Bullock. It concluded that late “adolescents who are 19 or 20 years old, as a class, share with 18-year-olds the same mitigating characteristics of late-adolescent brain development. The same considerations that were discussed at length in Parks apply equally to this class of late adolescents. Accordingly, as applied to defendants who were 19 or 20 years old at the time of their crime, a mandatory LWOP sentence that does not allow for consideration of the mitigating factors of youth or the potential for rehabilitation is a grossly disproportionate punishment in violation of Const 1963, art 1, § 16.” As a result, both defendants, who were subject to the mandatory sentence of LWOP attached to first-degree murder under MCL 750.316, were “entitled to be resentenced in the manner set forth in MCL 769.25 and” relevant case law. The court noted that in Poole, it “held that Parks applies retroactively to criminal cases on collateral review.” While the cases here were before it “on direct review, the Poole retroactivity analysis applies with equal force to this decision. There is no logical justification for applying Parks retroactively to cases on collateral review and not doing the same for the holding reached in these cases involving 19- and 20-year-olds. Therefore, our decision in these cases applies retroactively to cases on collateral review.” The court also considered the continued viability of its 1976 decision in Hall. While it questioned “how much of Hall’s analysis remains viable given the sea change of federal and state precedent interpreting US Const, Am VIII, and Const 1963, art 1, § 16, since” it was decided, the court concluded that it need not overrule Hall here. Thus, it did “not disturb, at this time, Hall’s holding that Const 1963, art 1, § 16 permits a mandatory punishment of LWOP for defendants convicted of first-degree murder, so long as the defendant was at least 21 years of age at the time of the offense.”

   

  Concurring in part and dissenting in part, Justice Bernstein wrote separately to express his “reasons for disagreeing with a bright-line rule drawn at age 21[.]” First, he cited “the problem of underinclusiveness that is associated with drawing a bright-line rule; and second,” found that if doing so were necessary, he would “draw such a line at age 25.”

   

  Dissenting, Chief Justice Clement (joined by Justice Zahra) found that the majority extended “Parks though the Constitution does not require it.” As she did in Parks, she again disagreed “with the majority’s analysis of the Lorentzen factors and do not believe that the evidence supports the conclusion that mandatory LWOP for 19- and 20-year-olds violates Const 1963, art 1, § 16.”

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  e-Journal #: 83414

  Case: People v. Nix

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam - Yates, Letica, and Hood

  Issues:

  Admission of photographs; Probative value; Relevance; MRE 401; Unfair prejudice; MRE 403; Elements of AWIGBH; People v Stevens; Burden of proof; M Crim JI 17.7; Sentencing; Scoring of OV 3; A life threatening or permanent incapacitating injury; MCL 777.33(1)(c); Ineffective assistance of counsel for failing to object to the scoring of OV 17 (degree of negligence); Intent to do great bodily harm with a motor vehicle; Comparing People v Herron (Unpub); Failure to make a futile objection; Prejudice

  Summary:

  The court held that the trial court did not err by admitting photos of the victim’s injuries or in scoring OV 3, and defendant was not denied the effective assistance of counsel. She was convicted of AWIGBH and felonious assault for driving her car into the victim (her mother’s then-wife). The trial court sentenced her to three years’ probation with a term of six months in jail at the end of the probation that would be waived if she successfully completed probation. The court rejected her argument that the trial court improperly admitted photos of the victim’s injuries because they lacked probative value and were prejudicial. While the photos, “standing alone, do not demonstrate whether the victim sustained her injuries from an intentional assault or an accident . . . defendant ignores that the credibility of all the witnesses was in dispute and that ‘[t]he jury was entitled to view the nature and extent of the injuries for themselves[.]’” Further, if “the jury believed the victim’s and mother’s testimony that defendant intentionally drove into the victim, the injuries she suffered ‘may also be indicative of . . . defendant’s intent[.]’” As a result, the photos “were probative.” They were also not unfairly prejudicial. “‘[I]f photographs are otherwise admissible for a proper purpose, they are not rendered inadmissible merely because they bring vividly to the jurors the details of a gruesome or shocking accident or crime, even if they may tend to arouse the passion or prejudice of the jurors.’” The court also rejected her claim that the trial court erred when it assessed 25 points for OV 3. “The victim said that she was missing bone, muscle, and skin. Eighteen months after the assault, the victim, who had already endured numerous surgeries to address her ankle injury, required additional surgeries. She had metal fixtures in her leg. And, consistent with the medical advice that she had received, she described her ankle injury as ‘a forever injury’ and said that she would ‘never be the same.’ On this record, we cannot conclude that the sentencing court clearly erred in assessing 25 points for OV 3.” Finally, the court rejected her contention that her defense counsel was ineffective for failing to object to the assessment of 10 points for OV 17. And “even assuming that defense counsel performed deficiently by failing to object to” this scoring, defendant could not establish prejudice given that “her sentencing guidelines range would remain the same if” these points were subtracted from her OV score. Affirmed.

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  e-Journal #: 83412

  Case: People v. Phillips

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – M.J. Kelly, Borrello, and Rick

  Issues:

  Motion for a new trial; Failure to disclose a known res gestae witness; MCL 767.40a; Denial of an adjournment to allow further investigation; Sentencing; Upward departure from the guidelines; People v Steanhouse; People v Dixon-Bey; Operating a vehicle while intoxicated (OWI); Blood-alcohol content (BAC)

  Summary:

  The court held that defendant did not show that “the failure to identify and present” a purported res gestae witness (witness-N’s fiancée) affected his trial’s outcome. Thus, he failed to establish “the requisite prejudice for reversal to be warranted based on a violation of MCL 767.40a.” It also rejected his challenge to his departure sentence. He was convicted of two counts of OWI causing death and sentenced as a third-offense habitual offender to concurrent terms of 20 to 30 years. The court noted that “there was extensive evidence presented at trial concerning the events that occurred before the accident. [N] testified as to his observations, including that defendant was traveling at a high rate of speed. The accident reconstructionist testified about the speed and position of each vehicle five seconds before impact. He opined that the Impala had already begun the process of entering the intersection five seconds before the crash, while defendant—who was traveling at 115 miles an hour—would have been 842.9 feet away, a length of just under three football fields. Both [N] and the reconstructionist believed that if defendant was traveling at the speed limit of 55 miles an hour, then the Impala would have cleared the intersection. The accident reconstructionist testified that it would have been difficult for someone in the [decedents’] position to gauge the speed of a vehicle approaching from the distance and direction at which defendant’s vehicle approached the intersection. Moreover, according to MCL 257.649(7), ‘[t]he driver of a vehicle traveling at an unlawful speed forfeits a right of way that the driver might otherwise have under’” the statute. There was also testimony about “the damage to the vehicles and the injuries suffered by” their occupants. Given this evidence, it was “unclear how further testimony about observations of the [decedents’] vehicle driving into the intersection,” the testimony defendant claimed N’s fiancée could have been provided, “would have had any effect on the jury’s verdict.” As to the trial court’s upward departure from the guidelines range of 62 to 171 months, it “referenced the extreme nature of the injuries the decedents suffered at the time of death, the extremely excessive speed at which defendant was driving, [his] extremely high [BAC], and the fact that [he] was on probation for a drunk driving offense at the time . . . .” He did not show the trial court abused its discretion. Affirmed.

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  e-Journal #: 83416

  Case: United States v. Grogan

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Nalbandian, Stranch, and White

  Issues:

  Admission of incriminating statements defendant made at a proffer session; FRE 410; Waiver; Whether defendant offered evidence or arguments “inconsistent” with his proffers; Whether invoking the Fifth Amendment implies the falsity of a prior admission; Whether defendant’s direct testimony that he was not a drug dealer or a felon in possession was inconsistent with his proffer statement that he owned the drugs in a vehicle; United States v Rosemond (2d Cir); Whether the proffers were admissible as res gestae evidence; Whether error was harmless

  Summary:

  In an amended opinion (see eJournal # 83105 in the 2/19/25 edition), the court added a footnote. It again held that the admission of defendant-Grogan’s proffer confessing ownership of drugs was improper and harmful, requiring reversal of his convictions. It again concluded that invoking the Fifth Amendment does not imply a prior admission was false and that “questioning whether the government can prove that” a defendant did something does not amount to a denial that defendant did it. The footnote stated that Grogan did not challenge his conviction under count three of the indictment, FIP, so that conviction was unaffected by the court’s opinion. “But because counts one and three were grouped for guideline calculation purposes,” the court vacated his entire sentence and remanded for proceedings consistent with its opinion.

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• Litigation (1)

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  This summary also appears under Probate

  e-Journal #: 83417

  Case: In re Estate of Gjebic

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Feeney, Swartzle, and Cameron

  Issues:

  Civil or criminal contempt; Criminal sanctions; Fine-imposing authority under MCL 600.1715; Compensatory damages to a party injured by contempt; Birkenshaw v Detroit; Divesting appellant of his interest in the estate; “Interested persons”; MCL 700.1105(c); Indirect contempt; Procedural defects

  Summary:

  The court “held that the trial court’s corrected second contempt order is largely a determination of what the estate was already entitled to under the settlement agreement and a grant of compensatory damages in accordance with that entitlement. But the provisions of the order divesting appellant of his interest in the estate was a punitive sanction that triggered [his] due-process rights. The trial court’s failure to provide [him] with due-process safeguards in this respect was in error.” Thus, the court vacated the portions of the corrected contempt order imposing criminal sanctions “removing appellant as an interested person and precluding him from receiving any further distributions from the estate, but” affirmed in all other respects. As to whether the trial court held appellant in civil or criminal contempt, its “first contempt order was civil in nature. It was attempting to compel appellant to comply with the trial court’s prior orders.” The court found that the “corrected second order of contempt, on the other hand, imposed both civil and criminal contempt sanctions. Most of the provisions in the corrected second contempt order imposed damages for his breach of the settlement agreement by ordering appellant to pay the estate that to which it was entitled under the agreement. But two provisions—those which effectively divested appellant of his interest in the estate—were punitive in nature, and thus constitute criminal contempt.” As to the civil contempt provisions, he argued “that the trial court abused its discretion by imposing monetary sanctions more than $7,500.” This argument mischaracterized the “order as being purely a contempt fine. Subparagraphs A-D of the corrected second contempt order concern money to which the Estate was entitled under the settlement agreement. Similarly, Subparagraph F is not a contempt fine because it concerns the taxable costs this Court awarded the estate in the prior appeal.” The court noted that “the only paragraph imposing a contempt fine is subparagraph E, which awards $7,500. Accordingly, the trial court did not exceed its fine-imposing authority under MCL 600.1715.” Appellant also argued that the “order was ‘clearly punitive and prohibited as a matter of law[,]’ but concedes that a trial court has the authority to order compensatory damages to a party injured by contempt[.]” The court disagreed with his claim “that the trial court’s reference to appellant’s noncompliance with its prior orders indicates that it intended to impose punitive damages. At most, this reference indicates that the trial court’s findings and determination that [he] was in contempt of court. As for the alleged specific reference to [his] prior appeal, appellant contends this ‘obviously raise[s] concerns [that] the trial court held bias against’ him, but we disagree.” However, it concluded that “the trial court’s contempt order effectively divested appellant of his statutorily-defined interest.” It found that he “was entitled to a hearing before the trial court could impose the interest-divesting sanctions.”

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• Probate (1)

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  This summary also appears under Litigation

  e-Journal #: 83417

  Case: In re Estate of Gjebic

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Feeney, Swartzle, and Cameron

  Issues:

  Civil or criminal contempt; Criminal sanctions; Fine-imposing authority under MCL 600.1715; Compensatory damages to a party injured by contempt; Birkenshaw v Detroit; Divesting appellant of his interest in the estate; “Interested persons”; MCL 700.1105(c); Indirect contempt; Procedural defects

  Summary:

  The court “held that the trial court’s corrected second contempt order is largely a determination of what the estate was already entitled to under the settlement agreement and a grant of compensatory damages in accordance with that entitlement. But the provisions of the order divesting appellant of his interest in the estate was a punitive sanction that triggered [his] due-process rights. The trial court’s failure to provide [him] with due-process safeguards in this respect was in error.” Thus, the court vacated the portions of the corrected contempt order imposing criminal sanctions “removing appellant as an interested person and precluding him from receiving any further distributions from the estate, but” affirmed in all other respects. As to whether the trial court held appellant in civil or criminal contempt, its “first contempt order was civil in nature. It was attempting to compel appellant to comply with the trial court’s prior orders.” The court found that the “corrected second order of contempt, on the other hand, imposed both civil and criminal contempt sanctions. Most of the provisions in the corrected second contempt order imposed damages for his breach of the settlement agreement by ordering appellant to pay the estate that to which it was entitled under the agreement. But two provisions—those which effectively divested appellant of his interest in the estate—were punitive in nature, and thus constitute criminal contempt.” As to the civil contempt provisions, he argued “that the trial court abused its discretion by imposing monetary sanctions more than $7,500.” This argument mischaracterized the “order as being purely a contempt fine. Subparagraphs A-D of the corrected second contempt order concern money to which the Estate was entitled under the settlement agreement. Similarly, Subparagraph F is not a contempt fine because it concerns the taxable costs this Court awarded the estate in the prior appeal.” The court noted that “the only paragraph imposing a contempt fine is subparagraph E, which awards $7,500. Accordingly, the trial court did not exceed its fine-imposing authority under MCL 600.1715.” Appellant also argued that the “order was ‘clearly punitive and prohibited as a matter of law[,]’ but concedes that a trial court has the authority to order compensatory damages to a party injured by contempt[.]” The court disagreed with his claim “that the trial court’s reference to appellant’s noncompliance with its prior orders indicates that it intended to impose punitive damages. At most, this reference indicates that the trial court’s findings and determination that [he] was in contempt of court. As for the alleged specific reference to [his] prior appeal, appellant contends this ‘obviously raise[s] concerns [that] the trial court held bias against’ him, but we disagree.” However, it concluded that “the trial court’s contempt order effectively divested appellant of his statutorily-defined interest.” It found that he “was entitled to a hearing before the trial court could impose the interest-divesting sanctions.”

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