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• Criminal Law (2)

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  This summary also appears under Judges

  e-Journal #: 81943

  Case: People v. Loew

  Court: Michigan Supreme Court ( Opinion )

  Judges: Clement, Zahra, and Viviano; Concurring in part, Dissenting in part – Welch and Cavanagh; Concurring in part, Dissenting in part – Bolden; Dissent - Bernstein

  Issues:

  Judicial misconduct; Whether ex parte communications warranted granting defendant a new trial under MCR 6.431(B); Whether the trial judge should have recused herself under MCR 2.003(C)(1)(b)(ii); Liljeberg v Health Servs Acquisition Corp; United States v Gagnon; Whether the trial judge’s failure to recuse herself resulted in a miscarriage of justice; Motion for a new trial; The appearance of impropriety standard in Canon 2 of the Michigan Code of Judicial Conduct; Prohibition against ex parte communications under Canon 3(A)(4); Principle that a defendant must do more than show a violation of the Michigan Code of Judicial Conduct; Harmless error; People v Lukity; Right to a fair trial; Judicial bias; Distinguishing United States v Barnwell (6th Cir); Right to be present; Right to counsel

  Summary:

  The lead opinion held that although the trial judge should have recused herself under MCR 2.003(C)(1)(b)(ii), her failure to do so did not result in a miscarriage of justice, and defendant was not deprived of any constitutional rights. He was convicted of CSC I, II, and III. While his appeal was pending, he and his attorney learned that, during his trial, the trial judge exchanged several e-mails with the county prosecutor (who was not the prosecutor on the case at trial) about testimony of a state trooper and a detective. In the e-mails, she “expressed concern about mistakes law enforcement had made in the investigation and asked questions related to why” they occurred. She “never notified defendant or defense counsel of these e-mails or their contents.” He moved for a new trial. The trial court (after a new judge was assigned) granted the motion. The Court of Appeals reversed in a split decision, finding the trial court abused its discretion in doing so. The dissent would have applied the standard articulated in Liljeberg to find the trial court did not abuse its discretion. On appeal, the lead opinion first concluded that because “the trial judge’s ex parte communications with [the county prosecutor] were not made for the purpose of managing or executing a pending or impending proceeding, they violated Canon 3(A)(4)(a).” In addition, she “should have known that grounds for her disqualification might have existed under MCR 2.003(C)(1)(b)(ii). Under Canon 3(C), she should have raised the issue of her disqualification sua sponte, and she should have recused herself.” However, her failure to do so “did not result in a miscarriage of justice” because it had no effect on the fact-finder. The lead opinion rejected defendant’s claim that the trial judge’s ex parte communications with the prosecutor violated his right to due process, his right to be present, and his right to counsel. “Altogether, the trial judge’s ex parte communications here were not of such a character, substance, or extent as to suggest that the trial judge was actually biased or that the probability she was actually biased was too high to be constitutionally tolerable.” And there was “nothing to suggest that the trial prosecutor altered her strategy in response to the trial judge’s ex parte communications the” county prosecutor. The court affirmed the Court of Appeals.

   

  Concurring in part and dissenting in part, Justice Welch, joined by Justice Cavanagh, opined that the court was “not precluded from holding that a miscarriage of justice occurred for purposes of MCL 769.26 and MCR 6.431(B).” She would “not apply traditional harmless error review under these circumstances and would instead augment the harmless error analysis by adopting the test articulated in” Liljeberg and would remand “to examine the harmless error standard through” that framework.

   

  Also concurring in part and dissenting in part, Justice Bolden found that whether the trial judge violated the judicial canons was unnecessary for the court “to address while determining whether there was either a constitutional violation or a miscarriage of justice. Although defendant seeks to adopt Liljeberg as the framework for resolving these issues,” she agreed “with the lead opinion that Liljeberg does not provide the proper approach for criminal trials.” She joined the lead opinion in affirming.

   

  Dissenting, Justice Bernstein indicated he would adopt the Barnwell test to address issues posed by ex parte communications between a judge and a prosecutor. However, because “the parties have not had an opportunity to fully brief an argument under this test,” he would “adopt the Barnwell test and remand,” permitting the parties an opportunity to fully brief this issue.

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  e-Journal #: 81880

  Case: People v. Spivey

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Markey, Swartzle, and Mariani

  Issues:

  Right to a speedy trial; People v Smith; Prejudice; Amendment of the information; People v Carlton; MCR 6.112(H); Ineffective assistance of counsel; Postconviction motion for a Ginther hearing; Sufficiency of the evidence for AWIM & felony-firearm convictions

  Summary:

  The court held that defendant’s right to a speedy trial was not violated and that there was sufficient evidence to support his challenged AWIM and felony-firearm convictions. Further, the trial court did not err in allowing amendment of the information or in denying his Ginther hearing request. He was charged with AWIM and felony-firearm related to two victims, RH and JJ. As to his speedy trial claim, defendant relied “solely on the delay caused by the pandemic,” which the court noted “was considerably shorter than that in Smith. The delay was not attributable to the prosecution as held in Smith. Moreover, although prejudice was presumed, the prosecution met its burden of showing that no injury occurred, and defendant has not identified any relevant basis to conclude that his ability to defend against the charges was prejudiced.” He asserted prejudice based on witness-NH’s “testimony that due to heavy marijuana use, she lacked memory of overhearing defendant effectively inculpate himself when asked by another individual why he shot” RH. However, the court failed “to see the logic in” his argument, finding that, if anything, NH’s fading memory was “beneficial to defendant and a detriment to the prosecution, as she was plainly backtracking from her statement to the police at the time of the shooting that was damaging to defendant.” As to the admission of her police statement, “the substance of the event covered by the statement, i.e., defendant’s inculpatory response to a question, was going to be heard by the jury one way or the other, either through [NH’s] own testimony or the admission of the statement if disavowed. The 21-month delay between arrest and trial did not degrade the defense.” Balancing the four relevant factors, the court held “that defendant’s right to a speedy trial was not denied.” He also challenged the trial court’s grant of “the prosecution’s motion to amend the information by dropping the child-abuse charge and adding the AWIM charge” as to JJ on the brink of trial. But the court held “that the trial court did not abuse its discretion or otherwise err by granting the motion to amend.” The defense theory was that “he did not shoot anyone because he was not at the scene. He essentially presented an alibi defense. That defense would necessarily extend to the new charge that was addressing the very same set of factual circumstances.” Affirmed.

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• Insurance (1)

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  This summary also appears under Litigation

  e-Journal #: 81869

  Case: Pro-Line Physical Therapy v. MEEMIC Ins. Co.

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Markey, Swartzle, and Mariani

  Issues:

  Subject-matter jurisdiction; Failure to exhaust administrative remedies; PIP benefits; No-Fault Act (NFA); Interplay between & construction of MCL 500.3112 & MCL 500.3157; “Utilization review”; MCL 500.3157a(5); True Care Physical Therapy, PLLC v Auto Club Group Ins Co; Department of Insurance & Financial Services (DIFS)

  Summary:

  The court held that “MCL 500.3157a(5) does not deprive a circuit court of jurisdiction to entertain a healthcare provider’s action for the recovery of PIP benefits under MCL 500.3112 if the provider did not pursue an administrative appeal of an adverse utilization-review decision.” It noted that defendant-insurer (Meemic) did “not otherwise make any arguments supporting summary disposition under MCR 2.116(C)(8) or (10).” Thus, the court concluded the trial court had “subject-matter jurisdiction and did not err by denying Meemic’s motion for summary disposition.” Plaintiff-healthcare provider sought PIP benefits from Meemic for services rendered to Meemic’s insured after he was in an auto accident. The dispute on appeal regarded “the interplay between and construction of MCL 500.3112 and MCL 500.3157a, as amended by the sweeping changes to the” NFA. The issue was “whether a healthcare provider is required to administratively appeal an adverse utilization-review decision to the DIFS under MCL 500.3157a(5) before bringing an action in circuit court for the recovery of PIP benefits under MCL 500.3112.” The court noted it has “issued binding precedent answering the question in favor of” plaintiff (True Care), and that the “Supreme Court subsequently and recently denied leave after first entertaining oral argument on an application for leave in the case.” This case was not materially distinguishable from True Care. The court’s “analysis and holding in True Care are equally applicable to the case at bar and compel us to conclude that the appeal procedure in MCL 500.3157a(5) is voluntary and not mandatory. None of Meemic’s statutory arguments to the contrary overcome the ruling in True Care, which is binding precedent.” Further, while the “Supreme Court granted and heard oral argument on the application for leave filed in True Care, . . . it ultimately decided to deny leave.”

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• Judges (1)

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  This summary also appears under Criminal Law

  e-Journal #: 81943

  Case: People v. Loew

  Court: Michigan Supreme Court ( Opinion )

  Judges: Clement, Zahra, and Viviano; Concurring in part, Dissenting in part – Welch and Cavanagh; Concurring in part, Dissenting in part – Bolden; Dissent - Bernstein

  Issues:

  Judicial misconduct; Whether ex parte communications warranted granting defendant a new trial under MCR 6.431(B); Whether the trial judge should have recused herself under MCR 2.003(C)(1)(b)(ii); Liljeberg v Health Servs Acquisition Corp; United States v Gagnon; Whether the trial judge’s failure to recuse herself resulted in a miscarriage of justice; Motion for a new trial; The appearance of impropriety standard in Canon 2 of the Michigan Code of Judicial Conduct; Prohibition against ex parte communications under Canon 3(A)(4); Principle that a defendant must do more than show a violation of the Michigan Code of Judicial Conduct; Harmless error; People v Lukity; Right to a fair trial; Judicial bias; Distinguishing United States v Barnwell (6th Cir); Right to be present; Right to counsel

  Summary:

  The lead opinion held that although the trial judge should have recused herself under MCR 2.003(C)(1)(b)(ii), her failure to do so did not result in a miscarriage of justice, and defendant was not deprived of any constitutional rights. He was convicted of CSC I, II, and III. While his appeal was pending, he and his attorney learned that, during his trial, the trial judge exchanged several e-mails with the county prosecutor (who was not the prosecutor on the case at trial) about testimony of a state trooper and a detective. In the e-mails, she “expressed concern about mistakes law enforcement had made in the investigation and asked questions related to why” they occurred. She “never notified defendant or defense counsel of these e-mails or their contents.” He moved for a new trial. The trial court (after a new judge was assigned) granted the motion. The Court of Appeals reversed in a split decision, finding the trial court abused its discretion in doing so. The dissent would have applied the standard articulated in Liljeberg to find the trial court did not abuse its discretion. On appeal, the lead opinion first concluded that because “the trial judge’s ex parte communications with [the county prosecutor] were not made for the purpose of managing or executing a pending or impending proceeding, they violated Canon 3(A)(4)(a).” In addition, she “should have known that grounds for her disqualification might have existed under MCR 2.003(C)(1)(b)(ii). Under Canon 3(C), she should have raised the issue of her disqualification sua sponte, and she should have recused herself.” However, her failure to do so “did not result in a miscarriage of justice” because it had no effect on the fact-finder. The lead opinion rejected defendant’s claim that the trial judge’s ex parte communications with the prosecutor violated his right to due process, his right to be present, and his right to counsel. “Altogether, the trial judge’s ex parte communications here were not of such a character, substance, or extent as to suggest that the trial judge was actually biased or that the probability she was actually biased was too high to be constitutionally tolerable.” And there was “nothing to suggest that the trial prosecutor altered her strategy in response to the trial judge’s ex parte communications the” county prosecutor. The court affirmed the Court of Appeals.

   

  Concurring in part and dissenting in part, Justice Welch, joined by Justice Cavanagh, opined that the court was “not precluded from holding that a miscarriage of justice occurred for purposes of MCL 769.26 and MCR 6.431(B).” She would “not apply traditional harmless error review under these circumstances and would instead augment the harmless error analysis by adopting the test articulated in” Liljeberg and would remand “to examine the harmless error standard through” that framework.

   

  Also concurring in part and dissenting in part, Justice Bolden found that whether the trial judge violated the judicial canons was unnecessary for the court “to address while determining whether there was either a constitutional violation or a miscarriage of justice. Although defendant seeks to adopt Liljeberg as the framework for resolving these issues,” she agreed “with the lead opinion that Liljeberg does not provide the proper approach for criminal trials.” She joined the lead opinion in affirming.

   

  Dissenting, Justice Bernstein indicated he would adopt the Barnwell test to address issues posed by ex parte communications between a judge and a prosecutor. However, because “the parties have not had an opportunity to fully brief an argument under this test,” he would “adopt the Barnwell test and remand,” permitting the parties an opportunity to fully brief this issue.

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• Litigation (2)

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  This summary also appears under Insurance

  e-Journal #: 81869

  Case: Pro-Line Physical Therapy v. MEEMIC Ins. Co.

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Markey, Swartzle, and Mariani

  Issues:

  Subject-matter jurisdiction; Failure to exhaust administrative remedies; PIP benefits; No-Fault Act (NFA); Interplay between & construction of MCL 500.3112 & MCL 500.3157; “Utilization review”; MCL 500.3157a(5); True Care Physical Therapy, PLLC v Auto Club Group Ins Co; Department of Insurance & Financial Services (DIFS)

  Summary:

  The court held that “MCL 500.3157a(5) does not deprive a circuit court of jurisdiction to entertain a healthcare provider’s action for the recovery of PIP benefits under MCL 500.3112 if the provider did not pursue an administrative appeal of an adverse utilization-review decision.” It noted that defendant-insurer (Meemic) did “not otherwise make any arguments supporting summary disposition under MCR 2.116(C)(8) or (10).” Thus, the court concluded the trial court had “subject-matter jurisdiction and did not err by denying Meemic’s motion for summary disposition.” Plaintiff-healthcare provider sought PIP benefits from Meemic for services rendered to Meemic’s insured after he was in an auto accident. The dispute on appeal regarded “the interplay between and construction of MCL 500.3112 and MCL 500.3157a, as amended by the sweeping changes to the” NFA. The issue was “whether a healthcare provider is required to administratively appeal an adverse utilization-review decision to the DIFS under MCL 500.3157a(5) before bringing an action in circuit court for the recovery of PIP benefits under MCL 500.3112.” The court noted it has “issued binding precedent answering the question in favor of” plaintiff (True Care), and that the “Supreme Court subsequently and recently denied leave after first entertaining oral argument on an application for leave in the case.” This case was not materially distinguishable from True Care. The court’s “analysis and holding in True Care are equally applicable to the case at bar and compel us to conclude that the appeal procedure in MCL 500.3157a(5) is voluntary and not mandatory. None of Meemic’s statutory arguments to the contrary overcome the ruling in True Care, which is binding precedent.” Further, while the “Supreme Court granted and heard oral argument on the application for leave filed in True Care, . . . it ultimately decided to deny leave.”

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  This summary also appears under Real Property

  e-Journal #: 81892

  Case: Silver Valley Dev. v. Estate of Shaver

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Cameron, Hood, and Young

  Issues:

  Quiet title; Res judicata; Whether a consent judgment granted a party a redemption right

  Summary:

  The court held that (1) the circuit court did not err in declining to apply res judicata based on related district court proceedings and (2) the district court consent judgment of possession did not grant plaintiff-Silver Valley a redemption right. Thus, it concluded the circuit court did not err in granting defendants summary disposition, denying it to Silver Valley, and quieting title to the property at issue in favor of defendants-Borowiczes. In 2014, defendant-Estate entered into a land contract with Silver Valley, agreeing to sell it 17 acres of land (the Property). “Silver Valley failed to remain current on its payments under the land contract” and a novation agreement was entered into in 2018 by the Estate, Silver Valley, and a trust (referred to as the Trust) pursuant to which “the Trust replaced Silver Valley as the land contract vendee.” After the Trust did not make payments, the Estate in 2021 initiated the district court proceedings seeking possession of the Property. The district court entered the consent judgment as “to Silver Valley, only. The judgment provided that the Estate had the right to possess the Property, and an order of eviction could be issued relative to Silver Valley if, after 90 days, it failed to pay the total amount due[.]” The Estate and the Trust later “executed a written agreement terminating the land contract.” The Estate eventually sold the Property to the Borowiczes. Silver Valley subsequently “informed the Estate that it wished to pay the total amount due under the land contract and close on the Property.” Silver Valley filed this action after the Estate rejected its proposal. It argued on appeal that “under the doctrine of res judicata, the district court consent judgment should have precluded the circuit court from determining the parties’ rights on the basis of the novation agreement.” But the court noted that “res judicata only applies to bar claims that were actually litigated in summary proceedings,” and thus, Silver Valley had to “establish that the operation of the novation agreement was actually litigated in the district court proceedings. It was not.” As to its redemption right argument, “the consent judgment did not establish Silver Valley’s right to redemption. At the time of its entry, Silver Valley had already given up its redemption right, along with its other property rights, pursuant to the novation agreement.” Affirmed.

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• Negligence & Intentional Tort (1)

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  e-Journal #: 81902

  Case: Djonovic v. Utica Van Dyke Serv. LLC

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Markey, Swartzle, and Mariani

  Issues:

  Governmental immunity as a purported agent of a township; The Governmental Tort Liability Act (GTLA); McLean v City of Dearborn

  Summary:

  The court held that defendant (which provides vehicle towing and removal services) was not entitled to governmental immunity from plaintiff’s claims that it “was negligent or grossly negligent in removing” vehicles from his property pursuant to a court order related to a township ordinance violation. Plaintiff pled “responsible to an ordinance violation relating to the improper storage of unregistered and inoperable vehicles on his property, and the trial court entered an order authorizing the Township to enter plaintiff’s property and remove the vehicles.” Defendant removed the vehicles under a police officer’s supervision. “Plaintiff and several other police officers and township representatives were also present during the removal.” Defendant asserted it was entitled to governmental immunity as to plaintiff’s claims “because it was acting as the Township’s agent when the alleged torts occurred.” The trial court granted its summary disposition motion. On appeal, the court agreed with plaintiff that “defendant was not entitled to governmental immunity.” Defendant asserted, based on language in McLean, “that ‘Michigan law is clear that the protections of governmental immunity extend not only to government officers and employees, but also to a government’s agents.’ McLean, however, did not hold this, or involve a private entity attempting to claim immunity under the GTLA on the basis of its status as an ‘agent’ of a governmental entity. Nor, for that matter, did McLean in any way suggest that the GTLA’s grant of immunity should be read to extend beyond its stated scope. And while the term ‘agent’ appears elsewhere in the GTLA, . . . the Legislature chose not to include it in the grants of immunity” in MCL 691.1407(1) and (2). Further, there was “no relevant authority showing that immunity from tort liability under these” GTLA provisions extend “to private corporate entities conducting business with a governmental agency, such as defendant in this case. To the contrary, Michigan courts have repeatedly concluded otherwise.” Thus, the court reversed the trial court’s order granting defendant summary disposition under MCR 2.116(C)(7) and remanded.

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• Real Property (1)

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  This summary also appears under Litigation

  e-Journal #: 81892

  Case: Silver Valley Dev. v. Estate of Shaver

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Cameron, Hood, and Young

  Issues:

  Quiet title; Res judicata; Whether a consent judgment granted a party a redemption right

  Summary:

  The court held that (1) the circuit court did not err in declining to apply res judicata based on related district court proceedings and (2) the district court consent judgment of possession did not grant plaintiff-Silver Valley a redemption right. Thus, it concluded the circuit court did not err in granting defendants summary disposition, denying it to Silver Valley, and quieting title to the property at issue in favor of defendants-Borowiczes. In 2014, defendant-Estate entered into a land contract with Silver Valley, agreeing to sell it 17 acres of land (the Property). “Silver Valley failed to remain current on its payments under the land contract” and a novation agreement was entered into in 2018 by the Estate, Silver Valley, and a trust (referred to as the Trust) pursuant to which “the Trust replaced Silver Valley as the land contract vendee.” After the Trust did not make payments, the Estate in 2021 initiated the district court proceedings seeking possession of the Property. The district court entered the consent judgment as “to Silver Valley, only. The judgment provided that the Estate had the right to possess the Property, and an order of eviction could be issued relative to Silver Valley if, after 90 days, it failed to pay the total amount due[.]” The Estate and the Trust later “executed a written agreement terminating the land contract.” The Estate eventually sold the Property to the Borowiczes. Silver Valley subsequently “informed the Estate that it wished to pay the total amount due under the land contract and close on the Property.” Silver Valley filed this action after the Estate rejected its proposal. It argued on appeal that “under the doctrine of res judicata, the district court consent judgment should have precluded the circuit court from determining the parties’ rights on the basis of the novation agreement.” But the court noted that “res judicata only applies to bar claims that were actually litigated in summary proceedings,” and thus, Silver Valley had to “establish that the operation of the novation agreement was actually litigated in the district court proceedings. It was not.” As to its redemption right argument, “the consent judgment did not establish Silver Valley’s right to redemption. At the time of its entry, Silver Valley had already given up its redemption right, along with its other property rights, pursuant to the novation agreement.” Affirmed.

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