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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Coverage dispute regarding personal protection insurance (PIP) benefits; Exclusion of nonresidents who don’t own a vehicle that was registered & insured in Michigan at the time of the accident; MCL 500.3113(c); Whether an individual is covered under an insurance policy; MCL 500.3114(1); Andary v USAA Cas Ins Co; Intended beneficiary; MCL 600.1405; Schmalfeldt v North Pointe Ins Co; Notice to named insureds; Casey v Auto Owners Ins Co; Filing of policy forms with the Department of Insurance & Financial Services (DIFS) before altering PIP benefits; MCL 500.2106(2); MCL 500.2108(6) & (7)
The court held that the trial court did not err by granting summary disposition for defendant-insurer and dismissing plaintiff’s complaint in this coverage dispute over PIP benefits. SDW, a Florida resident, was deemed a protected person after suffering serious injuries in a car accident in Michigan. Plaintiff, as guardian, sued defendant when it stopped paying SDW’s PIP benefits. The trial court agreed with defendant that plaintiff did not have a valid claim for PIP benefits under the No-Fault Act (NFA) or the insurance policy at issue. On appeal, the court rejected plaintiff’s argument that the trial court erred by dismissing the complaint because defendant and the named insureds agreed to an auto insurance policy that provided broader PIP benefit coverage than required by statute, and SDW was an insured under the policy. “SDW was not a family member of the named insureds because, although she was related to them by blood, she was not a member of their household. And, although SDW was occupying a covered vehicle, she was not ‘entitled under the Code to recover’ PIP benefits as a nonresident under the amended version of MCL 500.3113(c).” Further, under MCL 500.3114(1), she “was not (1) named in the policy, (2) a spouse, nor (3) a ‘relative of either domiciled in the same household[.]’” The court also rejected plaintiff’s claim that the trial court erred by dismissing the complaint because SDW was a third-party beneficiary under the policy, which was issued before the NFA was amended. “Contrary to plaintiff’s argument, SDW did not have preexisting contractual or statutory rights to receive unlimited PIP benefits under the” policy. And even “assuming the class of individuals under the insurance policy was not too broad, it did not recognize SDW as an intended third-party beneficiary of PIP benefits.” The court further rejected plaintiff’s contention that the trial court erred by dismissing the complaint because PIP benefit coverage could not be reduced unless defendant notified the named insureds of the change. “Plaintiff broadly contends that defendant violated the insurance policy by not notifying the named insureds of a reduction in coverage, but has not identified which section of the policy mandated this requirement.” Finally, the court rejected plaintiff’s argument that the trial court erred because defendant was required to file policy forms with the DIFS for approval before altering the available PIP benefits. It noted the Legislature amended the NFA “and those amendments were automatically incorporated into the insurance policy, as asserted by the parties.” Affirmed.
Other acts evidence; MRE 404(b)(1); Outcome-determinative error; Jury view; Structural error; Neder v United States; Shackles in courtroom; Ineffective assistance of counsel for failure to call experts on narcotics & motorcycle gangs; Trial strategy; Failure to make a futile objection; Sufficiency of the evidence; First-degree murder; Premeditation & deliberation; Second-degree murder; Malice jury instruction; People v Goecke; Distinguishing Mullaney v Wilbur
Finding no errors requiring reversal, the court affirmed defendant’s convictions. He was convicted of first-degree murder, second-degree murder, felony-firearm, and stealing a financial transaction device, arising out of his shooting and killing of the three victims. On appeal, the court first found he was not entitled to appellate relief as to his argument that the trial court erred by admitting evidence of two domestic incidents involving his wife. There was “no suggestion that evidence of defendant’s prior conduct toward his wife had any bearing on the verdict, let alone that it was outcome-determinative.” The court next found the trial court did not violate his right to participate in his trial by not allowing him to attend the jury view of the house where the shootings occurred as “caselaw does not support the conclusion that a defendant’s failure to appear for a jury view amounts to a structural error requiring reversal.” In addition, defense “counsel testified that he preferred that defendant not attend the jury view rather than allowing the jury to see defendant in prison garb or shackles, and defendant agreed.” The court also found he was not entitled to a new trial because the trial court placed him in a leg iron clipped to a floor toggle after four days of trial. It determined that he failed to show how he was prejudiced. Moreover, defendant was not denied the effective assistance of counsel based on defense counsel’s decision not to call a narcotics or motorcycle gang expert because: (1) “it was a reasonable strategic decision by defense counsel to highlight the effect that the drugs may have had on the victims through [a detective’s] testimony, while preventing additional testimony about the effect that meth[] may have had on defendant’s conduct,” and (2) the decision not to call a motorcycle gang expert “did not fall below an objective standard of reasonableness under prevailing professional norms, and it did not prejudice defendant’s trial.” The court also found that there was sufficient evidence to support the jury’s verdict that defendant committed the first-degree murder of one of the victims as “the evidence was sufficient for the jury to decide that it fairly supported an inference of premeditation and deliberation.” Finally, because “the trial court instructed the jury on all elements of the crimes and did not impermissibly shift the burden of proof to defendant, no instructional error occurred.”
Sufficiency of the evidence for a gambling activities conviction under MCL 432.218(2)(f); Altering the result of a blackjack game; To cheat defined (MCL 432.202(k))
The court held that there was “sufficient evidence defendant altered the result of a blackjack game for a rational jury to find him guilty of illegal gambling activities” under MCL 432.218(2)(f). MCL 432.202(k) defines to cheat as meaning “‘to alter the selection of criteria that determine the result of a gambling game or the amount or frequency of payment in a gambling game . . . .’” The court concluded the “evidence showed, at minimum, that defendant altered the results of the game by keeping a double-down wager, which he should have lost (and did, in fact, lose).” The surveillance video showed him “making a ‘double-down’ wager, meaning [he] could only receive one card and could not rescind his wager. Defendant took back his chips after he received a card, which would have lost him the hand.” The court found that, viewing the evidence in the light most favorable to the prosecution, this act established that he “cheated under the statutory definition. Contrary to the blackjack rules in effect, defendant ‘alter[ed] the selection of criteria that determine the result of a gambling game’ by taking back his double-down bet. . . . Specifically, [he] engaged in an affirmative act, which violated the criteria to determine the result of the hand. Defendant acted by taking back his wager, violating the rules of blackjack, which did not allow him to ‘push’ a losing hand, i.e., the rules did not allow him to keep his money when he lost the hand. This evidence was sufficient for a rational jury to find [he] cheated at the casino game and sustain his conviction.” Affirmed.
Successive motion for relief from judgment; People v Cress test; Expert report; Freedom of Information Act (FOIA); Michigan State Police (MSP)
The court held that “the trial court did not abuse its discretion by dismissing defendant’s successive motion for lack of newly discovered evidence.” Also, although it erred by declining to review the report submitted by his firearms expert, the court found the error was harmless. He pled no contest to second-degree murder and felony-firearm. Defendant argued “that the trial court abused its discretion by denying his motion for relief from judgment under MCR 6.502(G)(2) because newly discovered, exculpatory evidence entitled him to relief.” He also argued that the prosecutor violated Brady by failing to turn over the photographs of the bullet that killed the victim. He alleged “that he only became aware of the photographs after hiring a private investigator, who then made a FOIA request.” He did “not contest awareness of the autopsy report; therefore, defendant was aware that photographs existed of the bullet, such that they cannot be considered newly discovered evidence.” This fact also addressed “the third prong of the Cress test, because defendant could have used reasonable diligence to discover and produce the photographs mentioned in the autopsy report.” And as the trial court noted, he “also could have used reasonable diligence to solicit his ballistics expert to examine the bullet itself before he decided to take a plea deal. Accordingly, the evidence was neither newly discovered nor incapable of being discovered and produced through reasonable diligence.” Further, defendant “failed to satisfy the second prong of the Cress test by showing that the evidence was not cumulative.” The court found “photographs of the bullet offered no new, additional, or different information from what the bullet itself and the MSP forensics reports offered. Likewise, defendant’s ballistics expert did not report findings about the nature of the bullet that differed from the MSP forensics reports, which were made available to defendant before he pleaded no contest. Thus, the photographs would merely have been cumulative of other evidence in the record.” Finally, the court held that “the evidence would not have made a different result probable on retrial.” Defendant likewise could not “show that the prosecutor violated Brady by failing to turn over the photographs.” Thus, no Brady violation occurred in this matter. Affirmed.
Sentencing; The trial court’s reasoning for imposing an upward departure sentence; People v Wilcox; Reasonableness & proportionality; People v Dixon-Bey; Scoring of OV 10 (exploitation of a vulnerable victim); MCL 777.40(1); Scoring of OV 8 (asportation); MCL 777.38(1); People v Barrera
The court found that the trial court did not properly articulate why an upward departure sentence was warranted, and remanded. Defendant was convicted of CSC I and sentenced to concurrent terms of 40 to 60 years for each conviction, an upward departure. On appeal, the court agreed with defendant that the trial court erred by failing to justify the departure sentence. It found that beyond “noting that the guidelines did not account for the ‘egregiousness’ of defendant’s actions . . . the trial court did not explain why or justify the extent of the departure.” The trial court “significantly departed from the sentencing guidelines, and the mandatory minimum, and, although a trial court need not use any specific language to justify a departure, it did not adequately articulate its reasoning here for defendant’s sentence. A significant departure sentence may well be warranted in this case, but the trial court must articulate why a particular sentence, including the extent of any departure, is proportionate to this offense and offender. The trial court did not err in scoring OV 8, however, as there was “sufficient evidence from which [it] could find that defendant repeatedly transported the victim from her mother’s house to other locations, where he sexually assaulted her.” The court retained jurisdiction.
Custody; Sufficiency of the findings; MCL 722.28; Burden of proof; Child’s best interests; Errors involving evidence; Unpreserved errors; Expansion of the record
The court held that defendant-mother had not established that the trial court “made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” Thus, it affirmed the trial court’s order after remand, granting joint physical custody, awarding plaintiff-father sole legal custody of child, WQ, and changing the parties’ parenting time. Defendant first asserted “that the trial court erred by changing legal custody without sufficient findings under MCL 722.23.” The court found that “review of the trial court’s opinion and order shows that the trial court made ‘brief, definite, and pertinent findings’ about the contested factors, MCR 2.517(A)(2), and that the court’s findings were stated in enough detail for this Court to determine whether the evidence clearly preponderated against the trial court’s findings[.]” Although the trial court did not repeat its findings from the 9/6/23 evidentiary hearing, it “stated multiple times that it was incorporating those findings into its new best-interest analysis. In addition, the trial court expressly addressed updated information provided by the parties, at length. Under each of the best-interest factors that the [trial] court found to favor plaintiff, the trial court specified the updated facts that supported its conclusion.” Defendant’s argument focused “less on whether the trial court’s findings were sufficient than on whether the trial court properly weighed the evidence.” In particular, defendant contended “that the trial court failed to adequately assess MCL 722.23(h) and MCL 722.23(j).” From the court’s review of the record, it concluded “that the trial court’s determination that MCL 722.23(h) favored both parents was not against the great weight of the evidence. The parents’ testimonies established that they were involved in the child’s schooling, followed his progress, kept up with his school events, and attended parent-teacher conferences and other such meetings. Regarding MCL 722.23(j), this Court held in its previous decision that the trial court’s conclusion that this factor favored plaintiff was not against the great weight of the evidence. The evidence on remand showed that defendant video recorded parenting exchanges, reported plaintiff to CPS twice after the trial court’s [9/23] custody order, took issue with practically every decision that plaintiff made about WQ’s healthcare and hygiene, and generally demonstrated antagonistic behavior towards plaintiff. The trial court believed that defendant’s actions evinced a distrust of plaintiff and suggested that she may despise him and his decisions pertaining to the minor.” On this record, she had “not shown that the trial court’s conclusion with respect to MCL 722.23(j) was against the great weight of the evidence.” Also, the court held that the “evidence before the trial court was clear and convincing that the change in parenting time was in the child’s best interests.”
The No-Fault Act (NFA); Healthcare provider action for personal protection insurance (PIP) benefits; Directed verdict; Applicability of the relation-back doctrine; MCR 2.118(D); Miller v Chapman Contracting; The one-year-back rule (MCL 500.3145)
[In an order, the court granted a motion for reconsideration and vacated its 2/11/25 opinion in this case. A new opinion was attached to the order.] On reconsideration, the court held that defendant-insurer (Home-Owners) was entitled to a directed verdict in this action by plaintiff-healthcare provider (AdvisaCare) to recover PIP benefits. Home-Owners argued that the trial court erred in “denying its motion for a directed verdict because the relation-back doctrine did not apply to” its substitution for defendant-Auto-Owners on 5/3/19 and thus, AdvisaCare “could not recover PIP benefits for attendant care services rendered to” its insureds (C and S) before 5/3/18. Given that “AdvisaCare’s last services were rendered before” that date, Home-Owners contended “that AdvisaCare’s entire recovery was barred by the one-year-back rule.” The court concluded that Home-Owners was “correct that its substitution for Auto-Owners did not relate back to [5/11/18], the date that AdvisaCare filed its complaint against Auto-Owners.” Under Miller, “an amendment that adds a new party does not relate back to the original pleading.” And while “Home-Owners and Auto-Owners have the same parent company, are in the same general business, and share the same resident agent, licensing address, and attorney, they are different corporate entities. Absent an abuse of corporate form, and AdvisaCare has alleged none, the separate corporate identities must be respected.” As a result, “the substitution of Home-Owners added a ‘wholly new and different party’ to the case, and the relation-back doctrine did not apply.” In addition, under “MCL 500.3145(2), a claimant for PIP benefits ‘may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.’ Because Home-Owners’ substitution on [5/3/19], did not relate back to when AdvisaCare commenced the action, and was well over a year after [it] last rendered attendant care services to” C or S in 10/17, “the one-year-back rule barred [its] recovery.” The court reversed the trial court’s denial of Home-Owners’ motion for a directed verdict and remanded for entry of an order granting the motion.
Fiduciary accountings; MCL 700.5501(3)(c) & (f); Expenses listed in second amended first & second accountings; “Good faith”; Decision making as an attorney-in-fact; Attorney fees; Home sale proceeds
The court held that the “probate court did not abuse its discretion by partially denying the expenses listed in [petitioner-Mifsud’s] second amended first and second accountings.” Also, it found that “the probate court’s denial of attorney fees was not outside the range of reasonable and principled outcomes.” Finally, its “finding that Mifsud incorrectly accounted for the sale proceeds in her second amended accountings was not clearly erroneous, and its order requiring that the full amount of the” proceeds be returned to her mother, BJH, “was not outside the range of reasonable and principled outcomes.” Mifsud appealed the probate court’s 6/1/23 order granting in part and denying in part her “fiduciary accountings of her disputed actions as attorney-in-fact for her mother, BJH; denying Mifsud’s request that attorney fees she incurred in connection with the accountings be paid from BJH’s estate; and ordering [her] to return to BJH proceeds from the sale of BJH’s home.” She argued “that the probate court abused its discretion by partially denying expenses in her second amended first and second accountings because she provided evidence substantiating all of the expenses during the specified time frames and because she acted in good faith as BJH’s attorney-in-fact when she made the expenses.” The court noted that the “power of attorney does not expressly define the term ‘good faith,’ but Black’s Law Dictionary (12th ed.) defines it, in part, as ‘[a] state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation.’” The court found that the record evidence supported “the conclusion that Mifsud did not meet this standard in her conduct and decision making as BJH’s attorney-in-fact.” It also revealed “no clear error in the probate court’s findings regarding the amounts of the expenses in [her] accountings that should be denied.” The court was “not definitely and firmly convinced that the probate court made a mistake in its findings.” Thus, it held that the probate court did not abuse its discretion. Affirmed.
Guardianship; Petition to terminate a limited guardianship under MCL 700.5208(1)(a); Compliance with a limited guardianship placement plan under MCL 700.5209(1); “Substantial compliance”; Best interests determination under MCL 700.5209(2); Powers & duties of a lawyer-guardian ad litem (GAL) under MCL 700.5213(6) & MCL 712A.17d(1)
The court held that the probate court did not err by finding appellee substantially complied with the limited guardianship placement plan under MCL 700.5209(1). The probate court terminated appellant’s limited guardianship of JO, a minor. On appeal, the court rejected her argument that the probate court abused its discretion because appellee (JO’s mother) failed to substantially comply with the limited guardianship placement plan, and terminating the limited guardianship was contrary to JO’s best interests. First, appellee’s failure to comply with the weekly visitation requirement was due in large part to the distance between her home and appellant’s, and despite this she consistently visited JO throughout the limited guardianship. She also maintained stable, income-based housing, car insurance, and Medicaid benefits for herself and her children, and although she “lost her job shortly before the hearing regarding her termination petition, she maintained stable employment throughout much of the limited guardianship.” Second, the probate court was not required to determine whether terminating the limited guardianship would serve JO’s best interests. And third, the GAL fulfilled his obligation under MCL 700.5213(6) by: (1) preparing and filing a written report based on his correspondence with the parties, (2) obtaining proof of appellee’s income, housing, and car insurance, (3) evaluating JO’s needs based on his age and stage of development, and (4) recommending “that the probate court terminate the limited guardianship in light of his investigation.” Affirmed.
Claim for excess tax-foreclosure proceeds; The General Property Tax Act; MCL 211.78t; In re Petition of Muskegon Treasurer for Foreclosure; Compliance with the notice requirement in MCL 211.78t(2)
The court held that claimants seeking to recover excess tax-foreclosure sale proceeds must comply with MCL 211.78t(2)’s notice requirement “by filing Department of Treasury Form 5743 by the specified deadline, and circuit courts are without authority to waive or alter this statutory requirement on the basis of considerations of fairness or equity.” Respondent failed to provide petitioner-county treasurer “with the sworn written notice required by MCL 211.78t(2). Instead, acting in propria persona, [she] filed two motions for relief from the judgment of foreclosure on [6/13/23], one for each parcel” at issue. The circuit court denied her motions to reverse the foreclosure but ordered “petitioner to consider respondent as having provided the notice required by MCL 211.78t(2). [It] found that respondent had manifestly expressed a desire to receive the excess proceeds ‘given the fact that she has tried to fight the foreclosure itself.’” On appeal, the court agreed with petitioner that the circuit “court erred by issuing an order that is contrary to the plain, unambiguous language of MCL 211.78t(2), which requires claimants of excess tax-foreclosure proceeds to initiate the process of recovery by submitting Department of Treasury Form 5743.” It found that despite the statute’s “plain unambiguous language, the circuit court construed the statute as not requiring petitioner to submit a signed and sworn Form 5743 in this matter, effectively rewriting § 78t(2). Such a holding defied established principles of statutory construction.” Thus, the court affirmed in part, vacated the part of “the circuit court’s order directing petitioner to consider respondent as having given effective notice of her intention to recover excess foreclosure proceeds from the” properties, and remanded.