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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Treble damages under the Michigan Regulation of Collection Practices Act (MCL 445.257(2)) & Michigan’s conversion statute (MCL 600.2919a(1)); Calculation of a punitive damages award; State Farm Mut Auto Ins v Campbell; Whether the district court should have considered treble damages under the due process standard for statutory damages; Attorney fees; Hensley v Eckerhart; Fox v Vice
[This appeal was from the ED-MI.] The court held that the district court did not abuse its discretion by denying plaintiff-McPherson treble damages for defendant-Suburban Ann Arbor’s violation of the Michigan Regulation of Collection Practices Act and conversion statute, concluding it “acted within its discretion in finding that treble damages were ‘not necessary to achieve a just result.’” McPherson sued Suburban under both Michigan and federal law, claiming that it violated her consumer rights by repossessing her car and taking more than $2,000 in a practice known as “yo-yo financing” or “spot delivery.” A jury found Suburban liable, awarding “McPherson $15,000 in actual damages, $23,000 in damages for the value of the converted property, and $350,000 in punitive damages.” The district court awarded her most of her requested attorney fees, $418,995, as well as $11,212.61 in costs and expenses, and $6,433.65 in prejudgment interest. But it declined to treble her damages under the Michigan statutes. McPherson argued that the district court erred by denying her treble damages and not awarding all her requested attorney fees. Suburban cross-appealed, contending the fee award was excessive. The court noted that while the Michigan “statutes permit trial courts to award treble damages under certain circumstances, neither statute requires it.” Treble damages here “would serve only one role under Michigan law: to ‘punish[]’ Suburban and ‘set[] an example for similar wrongdoers.’” The district court found that her $350,000 punitive damages award “already ‘vindicated’ those interests.” It also determined that the “marginal value of these treble damages . . . did not justify raising any constitutional concerns.” In State Farm, the Supreme Court held that few punitive damages awards that significantly exceed a single-digit ratio between punitive and actual damages will satisfy due process. In this case, the ratio without treble damages was 9.2–to–1; with treble damages it would rise to 11.6–to–1. And the court rejected McPherson’s argument that the district court should have considered treble damages under the “due process standard for statutory damages,” concluding that “the due process standard for punitive damages supplied the proper constitutional yardstick for these treble damages.” It also affirmed the attorney fee award, explaining that the district court was not required to “comb line-by-line” through the “nearly 700-page bill to ‘achieve auditing perfection,’ and we need not ‘micromanage[]’ the district court by demanding it.” Affirmed.
Right to present a complete defense; Jury instructions; Accident instruction; M Crim JI 7.3a; Prosecutorial error; Improper vouching; Closing argument; Ineffective assistance of counsel; Opinion testimony; MRE 701 & 702; Authentication; MRE 901(b); Vocal identification; Sufficiency of the evidence; Felonious assault; People v Nix
Finding no errors requiring reversal, the court affirmed defendant’s convictions. He was convicted of felonious assault and reckless driving arising out of a road rage incident in which he struck the side of the victims’ car with his truck. On appeal, the court first found that, “[i]n light of the record, particularly defendant’s extensive denials of any contact between the vehicles, the trial court did not abuse its discretion by concluding that there was no factual support to warrant the accident instruction.” It next found that the prosecution did not commit error by improperly bolstering a witness’s (M) testimony or by making improper arguments in closing arguments. The prosecution’s question about whether M had any bias or interest in the matter that impacted his credibility “was pertinent when considered in its context, and the prosecution’s question did not improperly bolster” M's credibility and its “characterization of defendant’s gesture was a reasonable inference.” In addition, he was not denied the effective assistance of counsel. The court further found that the trial court did not err by allowing the police chief to testify that defendant was the individual he spoke to on the phone and to the nature of the collision without being qualified as an expert. Because the police chief “reached a reliable conclusion that a layperson could make without specialized knowledge, the trial court did not abuse its discretion by allowing this testimony.” And again, counsel was not ineffective because “[d]eclining to strike jurors who have stated they will remain impartial does not fall below an objective standard of reasonableness.” Finally, the court found there was sufficient evidence to support defendant’s felonious assault convictions as “the jury could reasonably infer [he] intended to either injure the [victims] or cause them to fear an immediate battery.”
Habeas corpus; 28 USC § 2254(d)(1); Whether the admission of information provided by a non-testifying confidential informant (CI) violated the Confrontation Clause; Whether the statements were “testimonial hearsay”; Whether admitting the statements for a non-hearsay purpose “was contrary to or an unreasonable application of clearly established federal law” as determined by the Supreme Court; Antiterrorism & Effective Death Penalty Act (AEDPA) review; Effect of Sixth Circuit precedent; Gover v Perry
The court held that the state trial court’s decision to admit information provided by a non-testifying CI about where petitioner-Reed often hid his drugs did not violate the Confrontation Clause where it was offered to explain the testifying detective’s decision to search his roof and not to prove the truth of the matter asserted. A jury convicted Reed of drug trafficking, drug possession, firearm possession, and evidence tampering. His claim on appeal to the state courts alleged that the trial court violated his rights under the Confrontation Clause where it allowed a detective to testify that they had decided to search the gutters on Reed’s home based on a non-testifying CI’s description of where Reed sometimes stored his drugs. He argued that because he could not cross-examine the CI, his rights had been violated. The Ohio Court of Appeals disagreed, noting that the trial court had instructed the jury to only consider the CI’s information to explain why police checked the roof. The Ohio Supreme Court declined to take up the case. The district court dismissed his habeas petition, certifying the question whether the state trial court properly admitted the detective’s testimony about the CI’s information. The court held that the “statements here were not hearsay.” The matter asserted was “that Reed hid drugs in several places—including in the gutter. But the trial court did not admit the statement for its ‘truth’—that is, [it] did not admit the statement to show that Reed actually hid drugs in those places. Rather, the statement was admitted to explain why the police searched the roof. That’s a valid, non-hearsay purpose. And the trial court instructed the jury to consider the statements only insofar as they might explain the officer’s basis for searching the roof[.]” The court found that the “Supreme Court’s current precedent holds that the Confrontation Clause bars the use of testimonial hearsay. . . . Because the Ohio trial court admitted the [CI’s] statement for a non-hearsay purpose, there’s no Confrontation Clause problem here under that precedent.” The court noted that “Sixth Circuit precedent isn’t enough to surpass AEDPA’s re-litigation bar[,]” and further, in Gover it “denied habeas when a witness’s out-of-court statement was used to show why the police took certain actions” because there was not “a Supreme Court case on point.” Affirmed.
Habeas corpus; 28 USC § 2255; One-year statute of limitations; § 2255(f)(1); Whether the government’s failure to raise the timeliness issue constituted a “forfeiture” or a “waiver”; Wood v Milyard; Standard for evaluating intent; Sua sponte dismissal of petitioner’s § 2255 motion on timeliness grounds
The court held that where the government failed to raise the untimeliness of petitioner-Walker’s habeas petition as a defense in its response, the district court erred by characterizing this as a “forfeiture” when it instead constituted a “waiver” and by sua sponte dismissing the petition as untimely without considering it on the merits. Walker petitioned for habeas relief on his drug conviction based on ineffective assistance of counsel. He argued that a letter he had sent to the district court while the time period was still running should have constituted his petition or at least tolled it. The government opposed the petition but neglected to raise the time-limitation defense in its response. The district court nonetheless dismissed the petition for untimeliness. Walker appealed, and the court remanded for the district court to consider whether the government’s failure to raise the defense resulted in a forfeiture or waiver. The district court ruled that the government had forfeited the defense and again dismissed the petition as time-barred. Walker argued that it should not have considered the timeliness defense where the government waived it. The court explained that it was essential to determine whether there was a forfeiture or a waiver because the district court could consider the timeliness issue sua sponte if there was a forfeiture but could not do so if there was a waiver. It noted that “intent separates forfeiture from waiver.” The court held “the district court erred by requiring explicit relinquishment when it looked for signs of intent.” It considered “the recorded communications with and briefing before the district court” de novo and concluded that the government’s conduct constituted a waiver. It determined the facts showed “that the government understood the timeline for Walker’s motion and knew not only that timeliness was at issue in this case, but specifically that it could make a viable statute of limitations argument. Yet the government chose not to pursue it. This knowledge distinguishes the government’s situation from the commonplace reality that sometimes parties unintentionally forfeit an argument because they do not recognize an issue or discover a plausible argument on point until later in the litigation.” Given that the government waived the defense, it was error for the district court to sua sponte dismiss Walker’s § 2255 motion on timeliness grounds. Reversed and remanded.
Personal protection insurance (PIP) benefits; Coverage dispute; Distinction between “residence” & “domicile”; Grange Ins Co of MI v Lawrence; Tienda v Integon Nat'l Ins Co; Fraud; MCL 500.4503; Standard for showing fraud made in connection with a claim submitted to the Michigan Automobile Insurance Placement Facility (MAIPF); Required showing that false information was submitted
The court held that there was a genuine issue of material fact as to where plaintiff-CD “was residing at the time of the accident and as to whether he had more than once residence at that time.” A genuine issue of material fact also existed as to where he was domiciled. And resolving these fact questions was “necessary in order to determine whether CD was entitled to the claimed PIP benefits under” defendant-Farmers’ policy and whether CD’s guardian and conservator (Harvey), “on behalf of CD, committed fraud in connection with his claims.” Thus, the court affirmed the trial court’s denial of Farmers’ summary disposition motion but reversed its grant of defendant-Nationwide’s (the MAIPF assigned insurer) motion “because the same fact questions foreclose a finding that fraud was committed as a matter of law in connection with the MAIPF application.” Due to his injuries after being struck by a hit-and-run driver, CD was placed under the guardianship of his parents. Harvey is his father. At the time of the accident, his parents had the Farmers policy, which extended PIP “benefits to family members of the insureds who resided in the same household.” Farmers argued that there was “no genuine issue of material fact as to where CD was domiciled at the time of the accident.” Noting the distinction between “residence” and “domicile,” the court found that “CD’s entitlement to benefits under the policy turns on where he was residing at the time of the accident.” The fact that he “may have resided at the Livonia address does not, in itself, mean that he did not also reside at the West Bloomfield address at that same time. Based on the record, there is a genuine issue of material fact as to whether CD resided at the West Bloomfield address, Livonia address, or both.” And it added that, “even if CD’s domicile at the time of the accident were the relevant inquiry in this case, there is a genuine issue of material fact as to where CD was domiciled at that time.” As to Farmers’ fraud argument, the genuine issue of material fact as to “where CD resided and where he was domiciled at the time of the accident” likewise created one as to “whether fraud was committed.” And while the standard for showing fraud “in connection with a claim submitted to the MAIPF differs in some ways from the general standard” for insurance fraud, both standards “require a showing that false information was submitted.” Thus, Nationwide was also not entitled to summary disposition. Affirmed in part, reversed in part, and remanded.
Failure to timely conduct a removal hearing; Inquiry into whether the child or either parent is a member of a Native American tribe; MCR 3.965(B)(2) & (11); MCR 3.967(A); Plain error review; Reasonable reunification efforts; Burden of proof or a standard of proof for determining whether reasonable efforts were made; MCR 3.965(C)(4); MCL 712A.19a(2); The Indian Child Welfare Act (ICWA); Parent agency treatment plan (PATP)
The court held that the trial court did not (1) plainly err in failing to conduct a removal hearing or (2) relieve petitioner-DHHS of its obligation to make reasonable reunification efforts. Further, respondent-mother failed to establish plain error as “to the burden of proof and standard of proof applicable to reasonable efforts.” Thus, the court affirmed the initial order of disposition entered after her child’s (TVM) removal from her care. She did “not challenge the determination that TVM is not an Indian child for purposes of the ICWA.” Rather, she asserted “the referee erred by failing to conduct a removal hearing within 14 days after TVM’s removal from her care as MCR 3.967(A) requires when ‘an Indian child is taken into protective custody.’” The court found that she failed to show plain error. As “the referee determined that TVM is not an Indian child, and the trial court adopted” this determination, she “was not entitled to a removal hearing.” She argued that a timely removal hearing was “required because the court rule does not require that confirmation of tribal affiliation from a tribe is a prerequisite to holding a removal hearing. However, MCL 712B.17 and MCR 3.967(D) require that a qualified expert witness from, or with sufficient knowledge of, the child’s tribe testify at the removal hearing. Without knowledge of the child’s tribal affiliation, the DHHS could not have obtained such an expert. Accordingly, determining TVM’s tribal affiliation was necessary before the referee could have held a removal hearing, and the referee appropriately recognized that good cause existed to adjourn the proceeding.” The court also found the record did not support her “claim that the trial court relieved the DHHS of its duty to make reasonable efforts to reunify respondent and TVM following adjudication.” Among other things, the “trial court’s orders entered before [her] no-contest plea repeatedly stated that reasonable efforts shall be made to reunify the family.” And the referee adjourned the 8/29/24 “hearing so that the DHHS could prepare an updated and accurate” PATP. At the subsequent “hearing, the referee adopted the new PATP as reflected in the order following that hearing. The updated PATP required respondent to, among other requirements, complete a parenting-education course, participate in mental-health services, and learn communication skills to effectively co-parent with TVM’s father.”
Powerline prescriptive easement; Whether a vegetation-management plan exceeded the scope of the alleged easement; Trespass-nuisance; Takings & Fourth Amendment claims; Lansing Board of Water & Light (BWL)
The court held that there was a genuine issue of material fact as to whether defendant-BWL “has a prescriptive easement, whether its vegetation-management plan exceeds the scope of the alleged easement, and whether a trespass-nuisance arose for purposes of abatement relative to the alleged service-drop hazard.” It also held “that plaintiffs stated a valid claim for trespass-nuisance, but only in regard to the claim for equitable relief.” Thus, it found the trial court erred in granting BWL summary disposition on these issues. But it affirmed the dismissal of the Takings and Fourth Amendment claims. The case concerned power lines belonging to BWL “that traverse plaintiffs’ property and BWL’s planned efforts to keep those lines free and clear of tree branches and vegetation.” BWL argued that it was “entitled to a presumption that its prescriptive easement arose by written grant.” The court found that there was “no specific evidence of permission being granted to BWL and, further, there is evidence that the power lines at issue were reconfigured or moved at least one time in the past, which may also bear on the issue whether BWL can establish its claim of a prescriptive easement.” In sum, as to the scope of the easement, the court concluded “that there exists a genuine issue of material fact regarding whether implementing BWL’s particular vegetation-management plan is reasonably necessary for the beneficial use and enjoyment of the assumed prescriptive easement while not materially and unreasonably increasing the burden on the servient estate nor imposing a new or additional burden on the servient estate.” Affirmed in part, reversed in part, and remanded for further proceedings.
Termination under § 19b(3)(i); Separation of adjudicative & dispositional phases; Supplemental petition
The court held that “the trial court did not plainly err in its separation of the adjudicative from the dispositional phases of a termination proceeding.” Also, it “did not plainly err by failing to require a supplemental petition.” Thus, it affirmed the trial court order terminating respondent-mother’s parental rights to the minor child under § (i). She contended “that the trial court procedurally erred by failing to properly separate the adjudicative and dispositional phases of the termination proceeding and by failing to require DHHS to file a supplemental petition when the request for termination did not occur at the initial dispositional hearing.” The court disagreed. It found that the “trial court did not plainly err in the procedure it followed regarding the separation of an adjudicative phase from a dispositional phase of a termination proceeding initiated by a petition. Instead, the trial court advised the parties two times before the start of the adjudication hearing of its intent to decide only the issue of jurisdiction. It further explained its ‘typical’ action in not terminating the parental rights of a parent when the other parent acts as the custodian. And, although [it] may have later stated that the statutory ground for termination raised in the petition was satisfied, it then acknowledged, for the third time, that it was only deciding the issue of jurisdiction at the hearing.” The court noted that “the adjudicative phase ended when the trial court exercised jurisdiction over the child at the bench trial in [4/24], despite the trial court’s determination that a statutory ground for termination existed at the same hearing.” Thus, the “adjudicative phase preceded the dispositional phase.” Also, it found that “the dispositional hearing and the adjudicative trial were not ‘converged such that there [was] no distinction.’” Rather, the court noted that “the trial court made its jurisdiction and termination decisions at separate hearings months apart: at a trial in April and at the best-interest hearing in August, respectively. Moreover, at the dispositional hearing in [5/24], the trial court did not terminate respondent’s rights, but ordered that she comply with a case service plan.” As to the supplemental petition, “DHHS petitioned to terminate respondent’s rights in its initial petition. However, the trial court did not terminate her rights at the initial dispositional hearing, but at the end of a best-interest hearing several months later. [It] did not plainly err by failing to require the filing of a supplemental petition for termination. Under the court rules, DHHS was not required to file [one]. The initial petition included a request for termination and no allegations existed on the record of ‘one or more circumstances new or different from the offense that led the court to take jurisdiction.’” The court also noted, among other things, that “under MCL 712A.19b(4), a trial court ‘may’ order the termination of a parent’s rights at the initial dispositional hearing, but is not required to do so.”