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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Indigent defendant’s request for funding for an expert witness; People v Kennedy; Ake v Oklahoma; Showing needed to receive court-funded expert assistance; False-confession expert testimony; People v Kowalski; Ripeness; Department of Soc Servs v Emmanuel Baptist Preschool
The court held that the trial court misinterpreted Kowalski in denying defendant’s motion to fund an expert witness. “Kowalski did not amount to a categorical ban on all false-confession testimony.” The court also held that to obtain court-funded expert assistance, a defendant must show a reasonable probability that the proposed expert would help the “defense and whether the absence of that expert would result in a fundamentally unfair trial.” It concluded defendant here met his burden. Thus, it reversed the Court of Appeals judgment, which ruled that the trial court did not err in denying defendant’s request for funds for an expert, and remanded to the trial court to determine whether he “was indigent when he filed his motion. If” it finds that he was, “he is entitled to a new trial.” He was convicted of CSC I. He unsuccessfully sought funding for an expert in false confessions. The court found that while “the Court of Appeals correctly rejected the trial court’s interpretation of Kowalski, it erred in its analysis of what a defendant needs to prove to receive court-funded expert assistance.” The court noted that despite “the Court of Appeals’ contention, defendant is not required to show that he is unable to present his defense without expert assistance.” Similar to the defendants in Ake and Kennedy, defendant here “established that the veracity of his confession was a significant factor at trial. Defendant’s motion correctly anticipated that a major part of the prosecution’s case-in-chief would be defendant’s confession and sworn statements to the police. His confessions were the only corroborating evidence of the complainant’s allegations. Thus, a central focus of the defense was to cast doubt on his confessions. Defendant offered an expert in false confessions who could testify about the characteristics associated with false confessions and interviewer bias.” Further, the court noted that “the elements of a false confession are ‘beyond the understanding of the average juror . . . .’” It additionally found that the issue “of whether Kowalski and Kennedy were properly followed” was ripe. The actual issue before it “was whether the trial court abused its discretion when it denied defendant’s motion for expert funds. Thus, this appeal necessarily concerns both whether the trial court interpreted Kowalski correctly and whether the Court of Appeals interpreted Kennedy correctly.” Dissenting in part, Justice Zahra (joined by Justice Viviano) found it was inappropriate for the majority “to decide the legal impact of defendant’s indigency while the existence of any such indigency is uncertain and hypothetical.” He also did not believe defendant sufficiently showed there was “a reasonable probability that an expert would be of assistance to his defense, nor can he show that his trial was fundamentally unfair without a state-funded expert witness.” Thus, he was not entitled to relief even if he was indigent. The dissenting justices would deny leave to appeal.
Sentencing; Upward departure; Particularized reasons for consecutive sentences
The court held that defendant’s sentences must be vacated and remanded for clarification or resentencing. He was convicted of CSC I, CSC II, and contributing to the neglect or delinquency of a minor. He was sentenced above the guidelines, with the sentences for three counts to be served consecutive to the sentences for four other counts. Defendant first argued “that the trial court erred by failing to articulate adequate reasons for its upward-departing sentence.” The court concluded that “it was not unreasonable for the trial court to consider that the impact on the family of defendant’s crimes was significant. The trial court estimated that 100 people were affected by defendant’s actions, including the victims’ mother and other relatives. [OV] 5 considers the psychological injury to a victim’s family member, but points are only assessed for certain homicide-related crimes.” Thus, the trial court could not assess points for OV 5 for his “offenses, despite the effect defendant’s actions had on the victims’ relatives, including their mother.” The court noted that the “trial court also spoke to the psychological impact to the victims when explaining its sentencing decision. The psychological impact on victims, however, is accounted for by OV 4.” Further, it held that “10 points may be assessed for OV 10 when an offender ‘exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status.’” It concluded that these points were assessed to account “for the children’s ages and relationship to defendant.” The court determined that if “there was an impact on these victims for which OV 4 or OV 10 did not adequately account, then the trial court failed to explain and justify why its chosen sentence was more proportionate to defendant and his offenses than a different sentence would have been.” The trial court sentenced him “to a minimum 30 years in prison for Counts I, II, and III, and to life for Count IV. These sentences exceeded the minimum guidelines range, but the trial court failed to provide adequate explanation for the extent of its departure, particularly on the life sentence.” As such, the court remanded to either to resentence him “on Counts I, II, III, and IV, or to articulate why the departure sentences are reasonable and proportionate.” Finally, defendant argued that he was entitled to resentencing as to Count VI. The trial court sentenced him “to a minimum 25 years in prison as to Count VI, however, and MCL 750.520b(2)(b) requires a minimum 25-year sentence for a CSC-I conviction that involves a victim under 13 years old and a defendant 17 years of age or older.” Thus, the court held that the “trial court did not exceed that minimum, and defendant is not entitled to resentencing as to Count VI.”
PIP benefits; In-home health care services; Central Home Health Care Servs, Inc v Progressive MI Ins Co; Medicare; MCL 500.3157(15)(f); Central Health Care Services, Inc. (CHHCS)
In these consolidated appeals, the court concluded that consistent with Central Home Health Care, the trial courts erred, so it reversed and remanded the various judgments against the insurers in all the cases before it. Defendants (collectively the insurers) challenged “various trial courts’ rejection of [their] position that MCL 500.3157(2)(a) governs” plaintiff-CHHCS’s recovery of in-home health care services it provided to the insureds. “In each of the consolidated cases, the services provided by CHHCS to the insurers’ insureds were covered by Medicare’s prospective payment system. All the services at issue were provided between [7/1/021 and 7/2/22], so CHHCS’s reimbursement is restricted to 200% of the amount payable under Medicare pursuant to MCL 500.3157(2)(a).” Thus, the court reversed “every order denying the insurers’ motions for partial summary disposition and” remanded. In doing so, however, the court noted, “as we stated in Central Home Health Care, that the insurers’ entitlement to partial summary disposition is confined to the determination that MCL 500.3157(2)(a) governs all the consolidated cases. To the extent that the insurers ask for judgments or declarations limiting CHHCS’s recovery to a specified amount, the parties presented conflicting evidence about the amounts payable by Medicare with regard to CHHCS’s claims, thereby creating genuine issues of material fact that preclude a dispositive ruling concerning the amounts CHHCS may recover under MCL 500.3157(2)(a).”
Premises liability; Slip & fall on a bathroom floor; Open & obvious danger; Kandil-Elsayed v F & E Oil, Inc, Admissibility of evidence; Hearsay; Admission by a party opponent; MRE 801(d)(2)(A); Business records; MRE 803(6); Intoxication as a bar to recovery; MCL 600.2955a(1); Whether plaintiff was 50% or more at fault for the accident; Whether plaintiff was impaired; Blood alcohol content (BAC)
The court held that defendant was entitled to summary disposition of plaintiff’s premises liability claim because of her voluntary intoxication. Plaintiff sued defendant for injuries she sustained when she fell and hit her head on a bathroom floor in defendant’s casino. The trial court granted summary disposition for defendant, finding the slippery spot on the bathroom floor was an open and obvious hazard, and that plaintiff’s intoxication was an absolute bar to recovery. On appeal, the court agreed with plaintiff that (1) a genuine issue of material fact remained as to whether defendant caused the condition of the wet floor, thereby imputing notice of that condition to defendant, (2) the trial court erred by finding that the lack of any issue of material fact on causation supported the award of summary disposition, and (3) the trial court’s application of the open and obvious doctrine was fully undermined by the Supreme Court’s opinion in Kandil-Elsayed. As such, the award of summary disposition could not stand on any of these bases. However, because the trial court correctly invoked MCL 600.2955a(1) to grant defendant summary disposition, plaintiff could not recover. The court found the trial court did not err by considering a “team member statement” written by defendant’s employee who saw plaintiff fall. The statement was “a trustworthy record and is admissible evidence under the MRE 803(6) business-record exception to the hearsay rule.” The court rejected her claim that her premises liability claim was not barred by the evidence of her alcohol use on the evening of her fall. Plaintiff “did not present sufficient evidence to rebut the presumption of her intoxication on the evening of her fall.” In addition, there was “no question of material fact that, as a result of her intoxication, plaintiff was at least 50% at fault for her fall.” Her BAC “was 0.185, which qualified her as ‘super drunk’ under Michigan law.” She had also “taken painkillers and was wearing high-heeled shoes when she fell.” Affirmed.
Waiver; The “raise or waive” rule of preservation in civil cases
The court did not reach the merits because defendants’ claim on appeal was waived. The case arose from a contract dispute. This was “the sixth appeal arising from this dispute, and the second one dealing specifically with interpleader attorney fees and costs.” The court noted that when “intervening plaintiffs moved for attorney fees and costs, defendants did not have counsel; a month prior, the trial court had granted” a motion to withdraw by then-defense counsel (L). “Importantly, the trial court sought to ensure that defendants continued to receive notice of proceedings in the action, including by mail or overnight courier and e-mail to addresses provided by [L]. Defendants failed to respond to intervening plaintiffs’ motion and did not attend the hearing.” Nothing in the record suggested they “did not receive notice of the motion or related hearing, and” they did not assert lack of notice on appeal. Rather, they acknowledged “the certificate of service filed along with the motion for attorney fees established that intervening plaintiffs had served defendants in compliance with the trial court order.” But they contended defendant-Dr. Sherrod “did not see the motion ‘[d]espite the interpleader plaintiffs’ compliance with the service instructions.’ Defendants do not provide any evidence to support this factual assertion or any explanation for Dr. Sherrod’s purported failure to receive and respond to the motion.” The court noted they “did not move for reconsideration in the trial court or file a reply brief on appeal, nor have they explained why” the court should consider a matter they failed to address in the trial court. Thus, it affirmed the trial court’s award of reasonable attorney fees and costs.
Medical malpractice; Whether a claim sounds in ordinary negligence or medical malpractice; Bryant v Oakpointe Villa Nursing Centre; Trowell v Providence Hosp & Med Ctrs, Inc; Whether the claim involved an action that occurred within the course of a professional relationship; Whether the claim raised questions of medical judgment beyond the realm of common knowledge & experience; Limitations period for medical malpractice actions; MCL 600.5838a(2)
The court held that plaintiff’s claim was barred by the statute of limitations applicable to medical malpractice claims. Plaintiff sued defendant for damages arising from his treatment at defendant’s hospital facility after a serious motorcycle accident. The trial court found that his claim “involved proper precautions, procedures, and medical decisions such that it sounded in medical malpractice and was barred by the statute of limitations.” On appeal, the court rejected plaintiff’s argument that the trial court erred by granting defendant’s motion for summary disposition because his claim sounded in ordinary negligence, not medical malpractice. “The trial court correctly concluded that plaintiff’s claim sounded in medical malpractice rather than ordinary negligence because it pertained to actions that occurred within the course of a professional relationship and presented a question of medical judgment beyond the realm of common knowledge and experience.” Because defendant—a health care facility—rendered “professional health care services to plaintiff—an admitted patient—a professional relationship existed, and plaintiff’s claim related to acts or omissions that occurred within the scope of that relationship.” In addition, plaintiff’s claim “raised a question of medical judgment beyond the realm of common knowledge and experience.” Plaintiff relied “on Bryant and Trowell to support his position, but unlike those cases, his claim does not involve a circumstance in which medical staff failed to take corrective action after identifying a general risk of harm.” Finally, plaintiff “failed to file his complaint within the limitations period applicable to medical malpractice actions.” Affirmed.
Principal residence exemption (PRE); MCL 211.7cc & 211.7dd; Estate of Schubert v Department of Treasury; Arguments based on equitable principles; Michigan Tax Tribunal (MTT)
The court held that competent, material, and substantial evidence supported the MTT’s judgment upholding respondent’s denial of petitioner’s request for a PRE for tax years 2018-21. He contended the MTT erred in “failing to give proper weight to the evidence supporting his PRE claim.” At issue was a property referred to as the Barnes Street property. Petitioner “presented a number of affidavits purporting to show that he owned and occupied the Barnes Street property as his principal residence during tax years 2018 through 2021.” Respondent presented “documentary evidence, including LexisNexis database search results providing that petitioner’s driver’s license, vehicle registration, and voter registration identified” another property (the Columbia Highway property) “as petitioner’s principal residence. Respondent further relied upon” income tax returns from members of petitioner’s extended family (the Ks) “and the results of two additional LexisNexis database searches, each of which listed the Barnes Street property as their home address.” The MTT determined that petitioner did not “meet his burden of establishing entitlement to a PRE because he did not occupy the Barnes Street property during the tax years at issue.” Given that this “finding was supported by competent, material, and substantial documentary evidence” the court concluded it was “conclusive and should not be disturbed.” As a result of that conclusive finding, the MTT did not err in concluding petitioner was not entitled to a PRE. To the extent he suggested reversal was warranted based on “equitable principles, the MTT ‘does not have powers of equity.’” Affirmed.