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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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The Freedom of Information Act (FOIA) (MCL 15.231 et seq.); Whether most of the complaint was rendered moot by defendant’s production of the unredacted materials; City of Jackson v. Thompson-McCully Co., LLC; Herald Co., Inc. v. Ann Arbor Pub. Schs.; Entitlement to fees & costs under MCL 15.240(6); Amberg v. City of Dearborn; Amount of attorney fees awarded; Prins v. Michigan State Police; Determining reasonable attorney fees; Smith v. Khouri; Wood v. Detroit Auto. Inter-Ins. Exch.; MRPC 1.5(a); Appellate fees & costs; Rataj v. Romulus; Fines & damages; MCL 15.240b; Occurrence defined; Defining an undefined statutory term; Brackett v. Focus Hope, Inc.; Rule of statutory construction that statutes providing penalties are noncumulative unless a contrary intent is clearly expressed; Tew v. Hillsdale Tool & Mfg. Co.; Punitive damages; MCL 15.240(7); 2014 PA 563 amendment; MCL 15.235(4); Local Area Watch v. Grand Rapids
The court held that the trial court did not err in finding that plaintiff’s substantive FOIA claims were moot as defendant produced unredacted copies of the documents he requested after he filed his lawsuit, and that he was entitled to reasonable attorney fees, costs, and disbursements under MCL 15.240(6). It rejected his claim that the trial court erred in awarding him a lower amount of attorney fees than requested, and concluded that the trial court did not err in only requiring defendant to pay one statutorily mandated civil fee and no punitive damages. Plaintiff requested documents related to a proposed condo development. “In response, defendant provided thousands of documents containing hundreds of redactions.” It did not “provide a written notice describing the redacted material required by MCL 15.235(5)(c).” After he sued, defendant provided unredacted copies of the documents. The court noted that a “plaintiff’s substantive claim under FOIA is rendered moot by disclosure of the records after” the filing of a trial court action. Thus, the trial court properly ruled “that plaintiff’s substantive claims were moot and that he was entitled to reasonable attorney’s fees, costs, and disbursements under MCL 15.240(6).” The court also held that the amount of attorney fees awarded was reasonable. The trial court “considered the Smith factors, determined a reasonable hourly rate, and multiplied that rate by the number of hours it calculated as reasonable in light of the remedies plaintiff was seeking and the results he obtained.” It did not question whether plaintiff’s counsel worked the claimed hours, but rather, “explained that it was required to factor the labor against the ultimate result obtained.” The court held that the trial court did not abuse its discretion in calculating his attorney fee award. While he appeared to assume he was entitled to the full amount of his requested fees because he prevailed on the first count of his complaint, the trial court was required to award him “reasonable attorney fees” and the court concluded that it did just that. As to the civil fine, the production of the redacted documents without the required “written notice was the result of one event or one occurrence” and thus, defendant was subject to one civil fine under MCL 15.240b. Finally, the court found that “neither prerequisite for an award of punitive damages under MCL 15.240(7) was met” in this case. Affirmed.
Ineffective assistance of counsel; People v. Muhammad; People v. Payne; Sufficiency of the evidence; Second-degree murder; MCL 750.317; People v. Werner; People v. Goecke; Intent; People v. Bosca; Evidence of a decedent’s failure to use a seat belt; People v. Moore; Operating a motor vehicle while intoxicated (OWI) causing death; Driving a motor vehicle without a valid license (DWLS) causing death; Blood alcohol content (BAC); 11-carboxytetrahydrocannabinol (THC)
The court held that defendant was not denied the effective assistance of counsel, that the prosecution presented sufficient evidence of malice for a reasonable jury to convict her of second-degree murder, and that the trial court did not abuse its discretion by granting the prosecution’s pretrial motion in limine to exclude evidence that the victim was not wearing a seat belt. She was convicted of second-degree murder, OWI causing death, DWLS causing death, and reckless driving causing death. The trial court sentenced her to 27 to 50 years for the murder conviction, and 10 to 15 years for each of the other convictions. On appeal, the court rejected her argument that defense counsel performed ineffectively when he failed to call as a witness the passenger of her vehicle, obtain call logs to show that she called 911 while being followed by a U.S. Customs and Border Protection officer who witnessed the accident, produce a certified copy of a U.S. Customs Directive for admission into evidence, and adequately prepare for trial. It found that she “failed to overcome the presumption that defense counsel employed effective strategy by not calling the passenger as a witness,” and failed to show that counsel performed ineffectively by not obtaining her cell phone and 911 call records and by not adequately preparing for trial. It also found that defense counsel was not ineffective for failing to present a certified copy of the Directive, noting that the jury was presented with the same information that would have been obtained from the Directive. She could not show “either that defense counsel’s performance fell below an objective standard of reasonableness or that, but for any error, there is a reasonable probability that the result of her trial would have been different.” The court next held that there was sufficient evidence of malice to support her second-degree murder conviction. “[F]rom the evidence produced at trial that defendant, with a BAC nearly twice the legal limit and THC in her system, caused a minor accident from which she fled before driving almost 70 mph through a residential intersection in the rain, ignoring a stop sign, and hitting [the victim’s] FedEx van, a reasonable jury could infer that she possessed the intent ‘to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.’” Finally, it held that the trial court did not abuse its discretion by granting the prosecution’s pretrial motion in limine to exclude evidence that the victim was not wearing a seat belt at the time of the collision. Affirmed.
Sufficiency of the evidence for an assault with intent to do great bodily harm less than murder (AWIGBH) conviction; People v. Blevins; Intent; People v. Stevens; Self-defense; MCL 780.972; People v. Dupree; Credibility; People v. Mikulen; Ineffective assistance of counsel; People v. Urban; Strickland v. Washington; Matters of trial strategy; People v. Putman; People v. Rockey; People v. Carll; Failure to call a certain witness or present certain evidence; People v. Jackson; Failure to investigate; People v. Caballero; Sentencing; Effect of a within guidelines sentence; People v. Schrauben; Cruel & unusual punishment; Presumptive proportionality of a within guidelines sentence; People v. Powell; People v. Bowling; “Unusual circumstances”; People v. Davis; People v. Piotrowski; People v. Daniel
Holding that there was sufficient evidence to support defendant’s AWIGBH conviction, and rejecting his ineffective assistance of counsel claims and challenges to his sentence, the court affirmed his conviction and sentence. He was sentenced as a fourth habitual offender to 6 to 20 years. The court first noted that the victim’s (S) testimony alone “was sufficient to establish that defendant assaulted her.” She testified that he “punched her in the face and kicked her repeatedly once she fell to the ground.” Her extensive injuries supported a finding that she was assaulted. She also testified “she was afraid that defendant would kill her.” This testimony was sufficient to establish that he threatened her with force. Further, it could be inferred from the extent and nature of her “injuries that defendant intended to do ‘serious injury of an aggravated nature.’” S sustained extensive injuries to “her ribs, vertebrae, right orbital bone, and wrist. As of trial, approximately six months after the assault, many of her injuries had not yet healed, and her wrist was permanently damaged.” Viewing her testimony that defendant’s actions caused her “injuries in the light most favorable to the prosecution, it is clear that there was sufficient evidence to show that defendant intended to do great bodily harm.” The court also determined that her testimony and the 911 recordings were “sufficient to establish beyond a reasonable doubt that defendant did not act in self-defense.” S testified that his attack was unprovoked. She denied trying to hit him with a hammer and testified that he grabbed the hammer instead. Her testimony established that she did not attack him before “his assault, so defendant could not have been attempting to protect himself from any harm. When defendant called 911 to complain that [she] was stealing from him, he did not mention that [she] had attacked him. He also specifically stated that no weapon was present. A recording of the call was played for the jury, and [S] could be heard moaning in the background that she wanted to go home, corroborating” her account of events. This “evidence was sufficient to defeat defendant’s self-defense claim.” That he did not believe her “testimony or provided conflicting testimony is immaterial; the jury” found her more credible, and the court “must not interfere with that determination.”
Ineffective assistance of counsel; People v. Solloway; Failure to request the appointment of an expert witness on eyewitness identification; People v. Blevins; People v. Foster; People v. Putman; Trial strategy; People v. Horn; People v. Jackson (On Reconsideration); People v. Chapo; People v. Ackerman
Holding that trial counsel was not ineffective for failing to request the appointment of an expert witness on eyewitness identification, the court affirmed. He was convicted of assault with intent to murder, intentional discharge of a firearm at a dwelling or an occupied structure causing injury, felon in possession, and felony-firearm. Victim-J and his girlfriend were inside their apartment with their child when defendant knocked on the door. J looked through the peephole and saw someone wearing a hoodie standing to the right of the door. J opened the door and said, “What’s up?” The person opened fire. Evidence was presented that defendant shared no relationship with J, but did have a relationship with the person who lived across the hallway from J’s apartment. “Two days later, defendant was arrested following a traffic stop where police recovered" handguns and ammunition. Defendant claimed that counsel was not ineffective for failing to request the appointment of an expert witness on eyewitness identification. Counsel extensively cross-examined J as to his eyewitness identification of defendant. Counsel elicited testimony that “the peephole [through which [J] saw defendant]” was pretty small. Further, counsel cross-examined J as to the shooter's visibility. During trial, defense counsel challenged the veracity of J’s eyewitness identification of defendant on the night the shooting occurred. Counsel noted that J “indicated the hoodie covered [the shooter’s] forehead,” and counsel asked J “if he remembered testifying at the preliminary examination that the light in the hallway, where the shooter stood, was very dim.” Thus, counsel was prepared to cross-examine J as to his eyewitness identification and made an effort to discredit J’s identification of defendant as the shooter. Further, “[d]efendant offers no proof that an expert witness would have testified favorably if called by the defense.” Thus, he did not establish the factual predicate for his ineffective assistance of counsel claim. Therefore, he did not establish “a reasonable probability that but for counsel’s alleged error the result of the proceedings would have been different.”
False Report/Making Terrorist Threat; MCL 750.543m; Sentencing; Scoring of OV 20; MCL 777.49; “Act of terrorism”; MCL 750.543b(a) & (b); MCL 777.49a(2)(a); People v. Osantowski
Holding that the trial court erred in assessing 50 points for OV 20, the court vacated defendant’s sentence and remanded for resentencing. He was convicted of making a terrorist threat after he threatened to kill employees at a company that declined to hire him. The trial court sentenced him to 5 to 20 years. On appeal, the court agreed with defendant that the trial court erred by assessing him 50 points for OV 20 because his threats were not an act of terrorism. In interpreting MCL 777.49a, the trial court focused solely on the word “threatening” and concluded that defendant’s threats alone constituted an act of terrorism. “The trial court did not analyze defendant’s conduct under MCL 750.543b(a) to determine whether it met the three-prong test required to determine if defendant committed an act of terrorism.” It also “did not determine whether a preponderance of the evidence in the record supported a finding under MCL 750.543b(a) that defendant’s conduct consisted of an act of terrorism.” As explained in Osantowski, “the trial court needed to determine whether a preponderance of the evidence supported a finding that the defendant’s threat also constituted an act of terrorism.” The court concluded that “defendant’s threats themselves d[id] not appear to satisfy all three of the elements of MCL 750.543b(a). A preponderance of the evidence does not support a finding that defendant knew or had reason to know that his action constituted conduct dangerous to human life as defined under subsection (b).” Even if the record could “be understood to support a finding that defendant intended to intimidate a civilian population, MCL 750.543b(a) requires evidence of all three elements to establish the commission of an act of terrorism. The record, viewed in its entirety, does not support a finding that defendant’s conduct constituted an act of terrorism as defined by MCL 750.543b(a).”
Ineffective assistance of counsel; People v. Trakhtenberg; Factual predicate; People v. Hoag; Matters of trial strategy; People v. Unger; People v. Putman; People v. Davis; Decision whether defendant would testify; People v. Boyd; People v. Fields; People v. Tommolino; People v. Bonilla-Machado; Failure to raise a futile objection; People v. Ericksen; Prosecutorial error; People v. Brown; People v. Callon; People v. Cross; Prejudice; People v. Chelmicki; Arguing from the facts a witness should be believed; People v. Seals; People v. Thomas; Sufficiency of the evidence to support a first-degree home invasion conviction; MCL 750.110a(2); Assault defined; People v. Cameron; Witness credibility; People v. Lemmon; People v. Solloway; Request for a jury instruction on third-degree home invasion; People v. Gillis; People v. Armstrong; MCL 750.110a(4); Misdemeanor malicious destruction of property; MCL 750.377a(1); People v. Nelson; Statutory basis for necessarily included lesser offense instructions; MCL 768.32(1); People v. Wilder; Principle that both misdemeanor & felony assaults may properly be charged as crimes underlying first-degree home invasion; People v. Sands
Rejecting defendant’s ineffective assistance of counsel and prosecutorial error claims, holding that there was sufficient evidence to support his first-degree home invasion conviction, and concluding that there was no error in the denial of his request for a third-degree home invasion jury instruction, the court affirmed. As to defense counsel’s failure to call any witnesses, defendant did not present any affidavits from potential witnesses stating what their testimony would have been. He simply stated in his affidavit that an unnamed witness could have testified that the victim (S) “had been assaultive to defendant in the past.” However, this witness did not see the event that gave rise to this case, and S’s “potential character for being aggressive toward defendant was not an issue at trial. Thus,” the court concluded that failing to call this one unnamed witness “did not deprive defendant of a substantial defense.” The record showed that defense counsel made repeated efforts to impeach S and to call into question his credibility. In addition, “in light of facts on the record and defendant’s statements at trial,” he was not denied his right to testify and defense counsel was not ineffective for advising him not to testify. Finally, defense counsel was not ineffective for failing to raise a futile objection to the prosecutor’s proper closing arguments. The court also held that there was sufficient evidence for a rational jury to find defendant guilty beyond a reasonable doubt. S testified that “defendant and his unnamed friend broke through the entry door to his apartment and attempted to kick and punch him.” He was unable to recall if they “actually did hit him because he was using the front door to his apartment as a shield after he fell through his closet door.” Defense counsel impeached his “testimony and cast some doubt on” his story, but S’s “testimony was not seriously impeached or so inherently implausible that it could not be believed by a reasonable juror.” The police officer (D) who responded to S’s 911 call saw that the apartment door “was on the floor and broken off its hinges.” D also saw a second door in S’s apartment that appeared broken. D’s observations supported S’s story. Finally, the court found that a third-degree home invasion instruction was unnecessary as defendant did not contest that S was in his apartment, and S’s presence was the factor that elevated the offense to first-degree home invasion.
Quiet title action following a mortgage foreclosure; Foreclosure by advertisement (MCL 600.3201 et seq.); MCL 600.3204(1)(a) & (d); MCL 600.3204(3); Consideration of the documentary evidence; Motion for summary disposition under MCR 2.116(C)(10); Jimkoski v. Shupe; Summary disposition before any discovery was conducted; Caron v. Cranbrook Educ. Cmty.; Setting aside a mortgage foreclosure due to an irregularity; Sweet Air Inv., Inc. v. Kenney; Mortgage Electronic Registration Systems, Inc. (MERS)
The court held that the trial court erred in granting defendants summary disposition under the circumstances of this quiet title action following a mortgage foreclosure. Plaintiff essentially contended that the foreclosure was void ab initio because defendant-MERS “did not own or have any interest in the indebtedness secured by the second mortgage, and thus, had no such interest to assign to” defendant-SRP 2012-4, the foreclosing entity. She argued that “SRP 2012-4 was not the owner of the indebtedness or of an interest in the indebtedness secured by the second mortgage that MERS originally held and purportedly assigned to it because after she entered into a loan modification agreement” with nonparty-Faslo Solutions, Faslo became the owner of the indebtedness, which was paid off when she modified the first mortgage in 2009. Plaintiff noted that the holder of the first mortgage was nonparty-CIT Bank. She offered a “copy of her credit report showing that her account with Faslo was ‘Paid and Closed’” in 2010. However, for some unknown reason, “the discharge of the second mortgage was apparently not recorded.” She argued that, as part of her bankruptcy case in 2018, “CIT Bank submitted its Proof of Claim as including both the first and the second mortgage,” which was more evidence that the second mortgage was paid off when she modified the first mortgage. She consistently argued that “neither MERS nor SRP 2012-4 were owners of the indebtedness or of an interest in the indebtedness secured by the second mortgage.” Also, she “consistently argued that she entered into a loan modification agreement with [Faslo]—who by its plain terms became her new ‘Lender’ with regard to the second mortgage and, as shown on her credit report which she provided, that account had been ‘Paid and Closed’ years ago.” Thus, she consistently argued “that SRP 2012-4 had no legal right to foreclose” on the basis of “a ‘default’ on the second mortgage.” Defendants also mischaracterized her trial court argument. She argued “that MERS had no interest to assign to SRP 2012-4 because the indebtedness did not exist—it had been paid.” The court concluded that “the trial court failed to take into consideration the documentary evidence” plaintiff submitted. Further, the case was dismissed before any discovery could be conducted on “whether SRP 2012-4 was actually the owner of indebtedness related to” the second mortgage. If she can show that it “did not own an interest in her indebtedness that was secured by the second mortgage because [Faslo] had owned the interest and that debt was paid, a significant irregularity would exist to set aside the foreclosure sale.” Reversed and remanded.
Action arising from a land contract; Res judicata; Adair v. Michigan; Sewell v. Clean Cut Mgmt., Inc.; MCR 2.504(B)(3); Consent judgments as determinations on the merits; Ditmore v. Michalik; Ripeness; Michigan Chiropractic Council v. Commissioner of the Office of Fin. & Ins. Servs.; Privity; Fraud on the court; Principle that parties representing themselves are held to the same standard of presentation as attorneys; Totman v. Royal Oak Sch. Dist.; Whether defendants waived the res judicata defense; MCR 2.111(F)(2)
The court affirmed the grant of summary disposition for defendants in this third lawsuit on the basis of res judicata. Plaintiff signed a land contract with defendant-Thor Real Estate Company that would be treated as a lease if she defaulted. She defaulted and, in an eviction proceeding, entered into a consent judgment as to the dollar amount that remained owing. She then filed two other lawsuits, including this one. Plaintiff argued that res judicata did not bar this action because her “claims were not ripe at the time of the first lawsuit” and because the trial court did not decide the first case on the merits. The court held that the “first lawsuit between the parties, involving the eviction for failure to pay as required by the terms of the land contract, was decided on the merits” given that it was resolved by the entry of a consent judgment. As to the second element, the court held that “plaintiff’s issues in this third lawsuit could have been resolved in the first lawsuit.” Both cases originated from the land contract that she signed with Thor Real Estate. Although the claims in the two cases were distinct, they all arose from the validity of the land contract. In the first lawsuit, when defendant-Home Star “was trying to enforce the provisions of the land contract, it would have been convenient for plaintiff to have argued that the land contract was void for fraud. Plaintiff, however, failed to advance such an argument.” As to the third element, the court held that Thor Real Estate and defendant-Lakes Management “had a substantial identity of interests and a working functional relationship with Home Star, such that all three are privies.” Thor Real Estate executed the land contract with plaintiff that required her “to make monthly payments to Lakes Management. As contemplated by the land contract, Thor Real Estate executed a quitclaim deed for the property to Home Star upon plaintiff’s failure to pay as required.”
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); In re Hudson; In re VanDalen; In re White; Child’s best interests; In re Olive/Metts Minors; In re Payne/Pumphrey/Fortson; In re Frey; Reasonable reunification efforts; In re Williams; In re Hicks; The Americans with Disabilities Act (42 USC § 12101 et seq.); Holmes v. Holmes; In re TK
The court held that the trial court properly terminated respondent-mother’s parental rights to the child where more than one statutory ground was established by clear and convincing evidence and it was in the child’s best interests. Also, the trial court did not err in finding that the DHHS made reasonable reunification efforts, and she did not show any plain error with the adequacy of the services to accommodate her mental health needs. As to § (c)(i), the trial court did not clearly err by finding that her “mental health issues and inability to control her anger were conditions that continued to exist. Similarly, the trial court did not clearly err when it found that a lack of stable housing and employment continued to be barriers to reunification. Respondent had recently become employed, but her history of employment was inconsistent throughout the entirety of the case.” She lived at five different locations while the case was pending and, “according to the caseworker, respondent’s housing was inappropriate for the child because of concerns identified in background checks of others living in her apartment.” The trial court also did not clearly err by finding that there was no reasonable likelihood she would be able to rectify these conditions within a reasonable time considering the child’s age. While she “made substantial progress with her substance abuse issues, she did not make significant progress in addressing all of the other barriers to reunification during the 22 months that the child was removed from her care.” The trial court’s finding focused on the evidence that she maintained a relationship with the father, despite the ongoing domestic violence between them. Respondent disputed this, but evidence was presented that the father’s car was seen at the same motel where respondent was staying, and she remained uncommitted about whether to remain married to him. The court further held that §§ (c)(ii) and (j) were established. As to § (g), respondent correctly noted that the trial court relied on the former version before it was amended. However, because the trial court’s decision was supported by other statutory grounds for termination, and it only was required to find one statutory ground, any error in either relying on or applying § (g) was harmless. Affirmed.
Termination under §§ 19b(3)(a)(ii), (c)(i), & (g); Reasonable reunification efforts; MCL 712A.18f(3)(b) & (c); MCL 712A.19a(2); In re Mason; A respondent’s responsibility to participate in offered services; In re Frey; Alleged denial of a meaningful opportunity to participate in the case; Plain error review; In re Utrera; Requirement that caseworkers make efforts to locate a parent absent from the proceedings; In re Rood; Absent Parent Protocol (APP); Suspension of parenting time; MCL 712A.13a(13); Child’s best interests; MCL 712A.19b(5); In re Moss Minors; In re White; Effect of a relative placement; In re Mason; Claim the trial court failed to state its findings & conclusion as to the child’s best interests on the record; MCR 3.977(I)(1)
The court held that clear and convincing evidence supported termination under §§ (a)(ii), (c)(i), and (g), and that the DHHS made reasonable reunification efforts. It further concluded that any lack of meaningful participation in the case was due to respondent-father’s lack of cooperation. While the trial court plainly erred in suspending his parenting time, he did not show prejudice. Finally, the trial court did not clearly err in finding that termination was in the child’s best interests. Before the initial petition was filed, respondent did not visit the child “regularly and only sporadically provided support. Afterward, respondent was incarcerated for several months.” Upon his release, he started “participating in services and visited the child for about six weeks.” But between 5/4/17 and the termination hearing on 7/30/18, he “did not participate in services or visit the child. He also did not reach out to” her maternal grandmother, with whom she was placed. The workers testified he never asked for updates about her or provided any support. The court was “not left with a definite and firm conviction that the trial court erred by finding that respondent deserted the child for 91 or more days and did not seek custody during that period.” Further, given his “lack of participation and progress, the trial court did not clearly err by finding that” § (c)(i) was also established. For the same reasons, it did not clearly err in finding that § (g) was established. As to his claim that he was denied an opportunity to meaningfully participate, the court concluded that even if the DHHS did not fully comply with the APP, he failed to show prejudice. The record showed “that the caseworkers continuously made efforts to contact” him and on numerous occasions, he did not follow up with them. The trial court plainly erred in suspending his parenting time where it “made no findings of harm, but instead conditioned parenting time on respondent addressing the outstanding warrant and complying with the service plan.” It lacked the authority to suspend parenting time for these purposes. But he “stopped participating in this case and left the state without informing the caseworker” or his attorney, and next appeared before the trial court, by phone, at the termination hearing. There was no indication that he “would have taken a different course of action had his parenting time not been improperly suspended.” Affirmed.