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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Sentencing; Scoring of OV 7; MCL 777.37(1)(a); Conduct “‘similarly egregious’ to ‘sadism, torture, [or] excessive brutality’”; People v Lydic; People v Rodriguez; People v Alexander; “Excessive brutality”; People v Glenn
On remand from the Supreme Court, the court again held that the trial court did not clearly err in scoring 50 points for OV 7 “because defendant’s conduct was similarly egregious to excessive brutality and was designed to substantially increase the victim’s fear and anxiety.” He was convicted of CSC I and sentenced to 11 to 25 years. The court noted that in its prior opinion it explained “that the record supported the [trial] court’s finding that ‘defendant engaged in conduct that was designed to substantially increase the victim’s fear and anxiety by engaging in conduct beyond what was necessary to commit’” the crime. But it had failed to “explicitly state whether [his] conduct was similarly egregious to sadism, torture, or excessive brutality. As directed by” the Supreme Court, it now addressed this question. It reviewed “three cases addressing the appropriateness of” scoring 50 points for OV 7 – Lydic, Rodriguez, and Alexander. It noted that “defendant used force to penetrate the victim’s vagina with his penis despite her kicking and saying ‘no.’ She was 5 feet 3 inches tall and [he] was bigger, heavier, and stronger than she, so she was unable to get up off the futon in the garage.” She explained at sentencing “that she would ‘never be able to erase the feeling of having my head shoved into a pillow while being raped’ or the ‘sound of me screaming and yelling and begging for him to stop.’” The court found that, viewing the entire record as a whole, it was “apparent that defendant’s actions amounted to something akin to savagery and cruelty beyond the ‘usual’ brutality of the offense because, even though he had already pinned down the victim, he shoved her head into a pillow while she was screaming and crying, told her to shut up, and caused bruising and tears to her vagina. And a reasonable inference from the facts is that [his] predation was designed to substantially increase” her fear and anxiety. Affirmed.
Other acts evidence; MCL 768.27b; Relevance; People v Watkins; Propensity; People v Hoskins; MRE 403 balancing test
The court held that the trial court: (1) “properly considered the probative value of [witness-WS’s] testimony against the danger it would cause unfair prejudice,” (2) “did not abuse its discretion by holding that WS’s testimony was admissible under MRE 403,” and (3) any error was harmless. Defendant-Hendges was convicted of CSC I and II involving victim-AC when she was 12. The “prosecution sought to admit evidence of [his] sexual assault of WS, an individual who was 19 . . . at the time and unrelated to AC.” Hendges argued that it erroneously admitted statutory other acts evidence (another sexual assault) without properly conducting the MRE 403 balancing test. “The prosecutor argued that WS’s testimony showed that Hendges engaged in a pattern of like behavior. While propensity evidence is typically inadmissible, WS’s testimony was about another sexual assault, and Hendges was accused of” CSC I and II in this case. The court acknowledged “that the trial court did not explicitly state its reasoning related to its weighing of each of the Watkins factors. But we have previously held that the trial court is not necessarily required to discuss the Watkins factors on the record.” It nonetheless concluded “that the trial court reached the correct result. The trial court cited MRE 403 and described the balancing test. It then decided that the prejudicial impact of WS’s testimony did not outweigh the testimony’s probative value.” Hendges argued that it “erred by not stating its analysis on the record.” However, he failed “to cite any law in support of his argument that the trial court must state its analysis on the record and fail[ed] to explain why our holding in Hoskins does not apply.” In addition, any error was harmless. Hendges argued “that the trial court should have excluded WS’s testimony under MRE 403 because it unfairly prejudiced him.” The court disagreed. “Overall, the other acts and current charges are similar, and this weighs in favor of admitting WS’s testimony.” Also, the court held that “the events occurred approximately eight years apart, so they are not presumptively barred under the 10-year limitation contained in MCL 768.27b(4).” On balance, it found that “the temporal proximity factor weighs in favor of admitting WS’s testimony.” The court concluded that considering “the frequency of the other act, WS alleged that Hendges assaulted her once. The lack of frequency of the other act supports the exclusion of WS’s testimony.” It held that there “were also no intervening acts that would support the exclusion or inclusion of WS’s testimony.” As to “the reliability of the evidence, Hendges admitted the incident with WS had occurred. Admittedly, he claimed he did not know she was intoxicated. But he pleaded to one count of attempted gross indecency based on WS’s complaint. His testimony and conviction support the reliability of the evidence and the admission of WS’s testimony.” The court concluded that “the Watkins factors support the admission of WS’s testimony because its probative value was not outweighed by the danger of unfair prejudice.” Affirmed.
Motion for relief from judgment; MCR 6.502; Successive motion for relief from judgment based on a retroactive change in law; MCR 6.502(G)(2)(a); People v Comer; People v Nunez; Good cause & actual prejudice; MCR 6.508(D)(3); Modification of a judgment of sentence (JOS); MCR 6.429; MCR 6.435; Correction of a clerical error; MCR 6.435(A); Life without the possibility of parole (LWOP)
The court held that the trial court did not err by denying defendant’s motion for relief from judgment. In 1978, he was convicted of first-degree murder and felony-firearm for his role in the armed robbery of an elderly couple that resulted in the death of one of the victims. The trial court sentenced him to LWOP for the former and two years for the latter. It entered an amended JOS in 2017 and again in 2018. It then denied defendant’s motion for relief from the second amended JOS. On appeal, the court rejected his argument that the trial court abused its discretion by denying his motion as the entry of that JOS violated MCR 6.429(A) and his right to be heard. He “argued in this case that the trial court’s second amended [JOS]—which purportedly corrected an invalid sentence set forth in the first amended [JOS]—was improperly entered and he was entitled relief. But, as the trial court noted, in this case—unlike in the Comer case—the predecessor trial court did not actually make a mistake in sentencing defendant that it corrected by entering the first amended judgment; rather, [it] merely was attempting to correct what it believed—wrongly—was a clerical error on the face of the original order of conviction and sentence that had been entered almost 40 years before. When that error was discovered, a second amended” JOS was entered. MCR 6.435(A) permitted it to amend the JOS to correct this clerical error. The trial court denied his motion on this basis, and it did not abuse its discretion in doing so. The court noted that the trial court did not err by finding that defendant was convicted of first-degree murder and that the original order of conviction and sentence was valid as these findings had ample support in the record. And “as the trial court noted, the amendment itself was a clerical error.” Further, the “predecessor trial court was permitted to correct the clerical mistakes when they were identified and without providing notice to defendant,” meaning his “argument that the entry of the second amended [JOS] violated MCR 6.429(A) and MCR 6.435” was meritless. “It follows, then, that the trial court did not abuse its discretion when it denied defendant’s motion for relief from judgment.” Although there were “irregularities in this case, particularly the erroneous entry of a first amended [JOS], defendant did not carry his burden of establishing that he was entitled to the relief requested.” Affirmed.
The Fair Labor Standards Act (the Act or the FLSA); Whether plaintiff was a “salaried” worker under the Act; Effect of Gentry v Hamilton-Ryker IT Sols, LLC (5th Cir); “Offensive issue preclusion”; Parklane Hosiery Co v Shore; Whether plaintiff was entitled to overtime under the Act; 29 USC § 213(a)(1); 29 CFR § 541.200; The “salary-basis test” (§ 541.602); Helix Energy Sols Group v Hewitt
The court held that defendant-employer (Hamilton-Ryker IT Solutions) was improperly granted summary judgment on plaintiff-employee’s (Pickens) claim for overtime pay under the FLSA where under the “salary-basis test,” Pickens was actually an “hourly” and not a “salaried” worker. Pickens is a pipe inspector. Hamilton-Ryker, an employment agency, assigned him to a natural-gas export terminal in Texas. It paid him a “guaranteed weekly salary” of $800, based on $100 an hour daily wage. If Pickens worked more than eight hours in any given week, it paid him an additional $100 per hour. His average earnings were $5,200 per week, with an average annual salary of $270,400. He was not paid overtime because Hamilton-Ryker classified him as a salaried worker exempt from the Act. Pickens sued, arguing that he was a non-exempt hourly worker, and other employees joined “the lawsuit, filed as a ‘collective action’ under the Act.” The district court granted Hamilton-Ryker summary judgment, finding Pickens was a salaried worker. On appeal, the court first addressed his argument that a Fifth Circuit case, Gentry, already decided that Hamilton-Ryker had to pay overtime to workers under the same circumstances. The court held that “offensive issue preclusion” was unavailable here where Pickens could have joined that suit but instead “chose to carve out his claims and pursue separate litigation.” Turning to the merits, the court applied the salary-basis test and held that “[t]o be paid on a weekly basis, . . . an employee must be paid for a regular week’s worth of work. . . . [T]he week must serve as the fundamental unit around which the payment is structured.” It determined that “a salary that does not compensate an employee for his ‘regular work’ is not a salary.” In this case, Pickens was not paid a salary but was “guaranteed payment for a single day’s work. . . . [T]he rate Pickens received compensated him for either an hour’s work or eight hours’ work.” He was not paid “a ‘full salary for any week in which’ he ‘perform[ed] any work,’” and instead was paid “‘with[] regard to the number of . . . hours worked . . . .’” As a result, his “supposed ‘salary’ of $800—for one day’s work—simply did not count as a salary under” § 602(a)(1). Reversed and remanded.
The No-Fault Act; The one-year-back rule; Tolling; Spine Specialists of MI, PC v MemberSelect Ins Co
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 78465 in the 11/21/22 edition for the published opinion) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decision in Spine Specialists
Medical malpractice; Kalaj v Khan; Proximate cause; Taylor v Kent Radiology; Expert testimony; MCL 600.2955; MRE 702; “Differential diagnosis”
The court held that the trial court did not err by granting summary disposition for defendants-doctor and medical practice because plaintiff failed to show that defendant-Dr. Burgess caused his injuries. Plaintiff sued defendants claiming Burgess committed medical malpractice when he failed to order an abdominal x-ray in time to avoid further complications. The trial court granted summary disposition for defendants. On appeal, the court found that plaintiff failed to show proximate cause, noting he “failed to provide adequate expert testimony to establish that the alleged failure of” Burgess to investigate him further was the cause in fact of his eventual harm. “Plaintiff’s complaint listed various alleged breaches by” Dr. Burgess of the standard of care. These allegations all essentially contended that he “should have known to investigate further and order an abdominal x-ray on the basis of” the 12/22/18 “chest x-ray and failed to ‘[p]roperly and timely diagnose bowel intussusception on 12/22/18 or 12/23/19[.]’” While plaintiff argued “the trial court conflated a decision on whether an intussusception existed with one on when it existed, this argument is a distinction without a difference. Plaintiff’s claim relie[d] on a finding that the intussusception existed on” 12/22/18, or 12/23/18, because Dr. Burgess “cannot have been negligent for failing to identify and treat a condition that did not yet exist.” Plaintiff was “obligated to present sufficient evidence to support the claim that the intussusception existed on” 12/22/18. One of his expert’s “opinion that an intussusception may have been one option among a ‘list of possible conditions’ [was] insufficient to create a genuine issue of fact as to whether the condition did, in fact, exist on the date plaintiff” claimed. More important, this expert “acknowledged she was not aware of ‘any generally accepted methodology that pediatricians can use to take a case of intussusception at the time of diagnosis and reliably pinpoint when the intussusception began[.]’” Because plaintiff’s “experts failed to provide any scientifically-based evidence supporting their conclusions that” plaintiff had an intussusception on 12/22/18, “plaintiff failed to establish a genuine issue of material fact that” Dr. Burgess’s conduct was the proximate cause of plaintiff’s injuries, and the trial court properly dismissed his case. Affirmed.
Excise taxes on newly manufactured tractors; 26 USC §§ 4051(a)(1) & 4052(a)(1); Whether plaintiff’s tractors (which incorporated old engines & transmissions from salvage yards) were exempt under § 4052(f)(1); Whether plaintiff could establish that “each refurbished tractor, when new, incurred the excise tax under § 4051”; §§ 4221(a)(2) & (4); In CenTra, Inc v United States
The court reversed the jury verdict for plaintiff-Fitzgerald Truck Parts, holding that it failed to establish that it was entitled to invoke the “safe harbor” exemption from paying excise tax on its tractors where it did not “show that each refurbished tractor, when new, incurred the excise tax under § 4051.” Fitzgerald puts old engines and transmissions obtained from salvage yards into new tractors and sells them. The sale of a newly manufactured tractor triggers a 12% excise tax. Fitzgerald claimed it was exempt from the tax based on the use of salvaged parts under § 4051(f)(1), which creates a “safe harbor” for tractors with used parts that qualify. But the government disagreed, assessing $268 million in unpaid excise taxes, penalties, and interest. Fitzgerald sued, and the jury returned a verdict for Fitzgerald. The court agreed “with Fitzgerald that § 4052(f)(1) poses a bright-line, 75% test without any further qualitative inquiry, meaning its vehicles constructed with used engines and transmissions could qualify for the safe harbor.” However, it found “that § 4052(f)(2) forecloses this exemption for tractors that never triggered the excise tax when they were new. And so far, Fitzgerald has not met its burden of proving that this latter provision does not apply to its tractors.” The court noted that there was evidence to suggest that at least some of the “vehicles were first sold in tax-exempt transactions, . . . with the original purchasers being either entities abroad or state or local governments.” Remanded.