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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Divorce; Challenge to arbitration award; MCR 3.602; Stipulation to binding arbitration; MCL 600.5071; Judicial review of arbitration awards; MCL 600.5079(1); Washington v Washington; Property division; MCR 3.211(B)(3); MCL 552.19; Invasion of separate property; MCL 552.401; MCL 552.23(1); Equitable distribution of property; Berger v Berger; Protective order; MCR 2.302(C)(8)
The court held that it had no grounds to set aside the arbitrator’s award in the parties’ divorce action. The parties submitted to binding arbitration. Defendant-ex-husband challenged the arbitration award, claiming the arbitrator erred in awarding plaintiff various property and challenging “the ‘piecemeal’ approach employed by the arbitrator.” The trial court found the arbitrator did not commit any errors permitting it “to invade the award, and entered a judgment of divorce consistent with the arbitrator’s orders.” On appeal, the court rejected his arguments that the arbitrator erred by finding a portion of plaintiff’s student loan debt was marital debt, by awarding an apartment in Egypt to plaintiff as her separate property, “and generally dividing the parties’ assets and debts unevenly and inequitably.” It noted that the arbitrator’s findings of facts were immune from review. It further noted that there was “evidence supporting the arbitrator’s decision to treat a portion of [plaintiff’s] student loan debt as marital debt.” As to the apartment, the arbitrator credited the evidence presented by plaintiff over defendant’s “conflicting and confusing accounts.” Aside from plaintiff’s “student loan debt and the Egyptian apartment, the arbitrator essentially divided the marital property on a 50-50 basis.” In addition, “the arbitrator made a factual finding that [defendant] diverted the personal loan proceeds, income tax refunds, and stimulus check and we may not interfere with that finding.” The court also rejected defendant’s claim that plaintiff “violated a protective order entered in the divorce proceedings by using materials provided during discovery regarding the pharmacy businesses to instigate regulatory investigations.” Although he made allegations about the conduct of plaintiff “and her attorney, he presented no evidence that either disclosed confidential information,” and could not show that “the trial court erred by denying his motions to vacate the arbitration awards based on [plaintiff’s] violation of the protective order.” Affirmed.
Whether attorney fees may be awarded in a criminal contempt proceeding for violation of a personal protection order (PPO); MCR 3.206(D)(2)(b); MCR 3.708(G) & (H)(5)(a); MCL 600.2591(23); MCL 600.1715 & 1721; O’Connor v Valcaniant (Unpub); Comparing Eldridge v Eldridge (Unpub); The “American rule”; Haliw v City of Sterling Heights
The court held that the trial court erred by ordering respondent to pay petitioner’s attorney fees after he was found in contempt for violating a PPO. Respondent pled no contest to violating the PPO and was sentenced to 30 days in jail, with 25 days held in abeyance. Petitioner then filed a petition for attorney fees under MCR 3.206(D)(2)(b). Respondent claimed attorney fees were not available in criminal contempt cases. The trial court granted petitioner’s motion, finding it had discretion to award attorney fees in this case. On appeal, the court agreed with respondent that the trial court erred by finding attorney fees may be awarded in a criminal contempt proceeding for violation of a PPO. “MCR 3.206(D)(2)(b) states that a court has discretion to assess attorney fees if the ‘fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply, or engaged in discovery practices in violation of these rules.’ However, this case did not involve divorce, separate maintenance, an affirmation of marriage, annulment, or paternity. Thus, under the plain language of MCR 3.201(A), the rules in Subchapter 3.200 do not apply to this action. The trial court’s reliance on MCR 3.206(D)(2)(b) was therefore erroneous.” In addition, although “the Eldridge panel did not specifically address an award of attorney fees, [it] nonetheless clearly addressed the costs or penalties a trial court may order when a respondent violates a PPO.” The panel ruled that “MCR 3.708(H)(5) explicitly provides different punishments for criminal-contempt cases involving a PPO violation and civil-contempt cases involving a PPO violation, and concluded that only MCR 3.708(H)(5)(b) permitted the award of costs as set forth in MCL 600.1715 and MCL 600.1721 for civil contempt.” The court was “persuaded that the same analysis applies to the question of whether attorney fees may be awarded in cases of criminal contempt. Both statute and court rule provide a specific punishment for a PPO violation that does not include the assessment of attorney fees.” Reversed and remanded.
Shaken baby syndrome (SBS) case; Motion for relief from judgment based on newly-discovered evidence; MCR 6.502(G)(2)(b); Expert testimony; MRE 702; Reliability; Daubert v Merrell Dow Pharm, Inc; Relevance; Biomechanical evidence in SBS cases; State v Nieves (NJ App); Distinguishing General Elec Co v Joiner; Whether defendant established “good cause” & “actual prejudice”; MCR 6.508(D)(3)(a) & (b); People v Cress; Whether the newly-discovered evidence makes a different result probable on retrial; Medical examiner (ME)
The court held that (1) “the trial court abused its discretion by deeming defendant’s proposed expert testimony inadmissible” and (2) she overcame “the procedural threshold of MCR 6.502(G) and established ‘good cause’ and ‘actual prejudice’ as required by MCR 6.508(D)(3) by demonstrating all four factors of Cress[.]” Thus, it reversed and remanded for a new trial. Defendant was convicted of first-degree felony murder after being accused of shaking her baby to death. She later filed a successive motion for relief from judgment, arguing that new evidence undermined the prosecution’s theory that the child’s cause of death was SBS. The trial court found her proposed expert testimony was inadmissible and denied relief. The Court of Appeals ultimately affirmed on the basis that “there was no reasonable probability of a different outcome on retrial even if the improperly excluded evidence was admitted.” The court disagreed, finding the trial court abused its discretion and that, “[i]f this expert testimony were presented at a retrial, . . . a different result would be probable.” First, although it did “not state a bright-line rule permitting biomechanical evidence in all SBS cases, in this case, ‘[a]lthough clearly not universally accepted,’ [the expert’s] ‘opinion is certainly “objective, rational, and based on sound and trustworthy scientific literature.”’” In addition, it “‘fit’ the facts in dispute in this case and would assist the trier of fact in determining whether the prosecution could prove beyond a reasonable doubt that” the child’s cause of death was SBS. Second, “in light of the conclusion that most of defendant’s proffered expert testimony would be admissible and because all evidence that would be presented at a new trial must be considered when deciding whether new evidence would make a different result probable,” defendant satisfied all four prongs of Cress. The former ME who testified at her “trial for the prosecution, testified at the evidentiary hearing that he had changed his mind about” the child’s diagnosis. “[D]efendant has presented enough evidence to demonstrate that a different result on retrial is ‘probable.’ . . . That is, not that the chance of acquittal is a mere possibility, but instead, there is a reasonably probable likelihood that a jury would have a reasonable doubt as to” her guilt. As such, she was “entitled to a new trial.” Dissenting, Justice Zahra, joined by Justice Viviano, found the “trial court’s refusal to vacate defendant’s conviction based on the extraordinarily weak evidence presented below [did] not even approach an abuse of the trial court’s wide discretion.” To the contrary, its “diligence, attention to detail, and thoughtful consideration . . . should be lauded as an exemplary display of how a trial court should function. Given the significant burden placed on defendant to obtain appellate reversal of her convictions, this Court’s decision is no less than a miscarriage of justice.”
Constitutional right of confrontation; A trial witness’s testimony introducing the substance of an out-of-court statement by an unavailable witness; Whether there is a chain of custody exception to the Confrontation Clause; Melendez-Diaz v Massachusetts; Distinguishing People v Chambers; Corpus delicti rule
The court held “that a defendant’s constitutional right of confrontation may be violated when a trial witness’s testimony introduces the substance of an out-of-court, testimonial statement by an unavailable witness.” It concluded that the statement at issue “was admitted in violation of defendant’s right of confrontation. However, because the Court of Appeals erred by applying the corpus delicti rule to [his] statements,” the court remanded to the Court of Appeals “to determine whether the violation of defendant’s right to confrontation was harmless beyond a reasonable doubt when considering [his] own statements.” In this case, he “drove across the border from Michigan into Canada without paying the toll.” A Canadian customs agent, Officer L, “arrested defendant and brought him back to the American side of the bridge.” An American customs agent, Officer S, took custody of defendant and a bulletproof vest. Defendant was charged with being a violent FIP of body armor. Before trial, the Canadian government indicated that Officer L would not be allowed to testify. Defendant filed a motion in limine to exclude evidence of the bulletproof vest. The court found that a violation occurred because Officer S’s testimony clearly implied that Officer L “made a testimonial statement asserting that defendant possessed a bulletproof vest. That testimony, therefore, was erroneously admitted. The corpus delicti rule, however, does not apply to defendant’s admissions that he possessed the bulletproof vest.” Next, the prosecution argued in the alternative that, even though Officer L’s “statement was testimonial, it does not implicate the Confrontation Clause because it was not offered for the truth of the matter asserted, i.e., to prove that defendant actually possessed the bulletproof vest.” Instead, the prosecution argued “that the statement was offered only to establish the chain of custody for the vest.” But the prosecution did “not point to a single case establishing the rule that a statement used to support the chain of custody is an exception to the Confrontation Clause, and we have found none.” The court held that regardless “of whether the statement was offered merely to establish the chain of custody or to establish that defendant possessed the bulletproof vest as an element of the charged offense, the statement would need to be offered for the truth of the matter asserted, i.e., that [he] actually possessed the bulletproof vest.” The prosecution also argued that Officer S’s testimony as to his communications with Officer L “was offered only to explain how defendant and his property came into” Officer S’s custody. The court found that Chambers did not apply. It also held that a clear and logical inference from Officer S’s testimony was that “during their ‘communications,’ Officer [L] made an out-of-court statement regarding his belief that defendant possessed the body armor.” That statement was testimonial. Thus, the court affirmed “the Court of Appeals holding that defendant’s right to confront his accuser,” Officer L, was violated. Justice Welch fully agreed with the Court’s opinion. She wrote separately because she questioned “if, in a case such as this where defendant is charged with a crime that is linked to his status as a felon and defendant stipulated to that status, defendant’s statements should be admissible without the prosecution first offering independent evidence of the corpus delicti.” While she believed “this is an important question, we have not been asked to overrule our precedent.” She thus agreed “that because defendant did not admit in his statements that he was a violent felon, his statements were not a confession. As a result, the corpus delicti did not need to first be established with independent evidence prior to the admission of the statements.”
Constitutional right to a fair trial; Evidentiary errors; Prior consistent statements; Waiver; Ineffective assistance of counsel; Stipulating to the admission of text messages; Hearsay; Matters of trial strategy; Failure to object to improper closing argument; Prejudice; Other acts evidence; MRE 404(b)(1) & (2); Appeals to the jury’s sympathy
Concluding there was “a reasonable probability that, but for the errors by” defendant-Shannon’s trial counsel, the outcome of the trial would have been different, the court reversed his convictions and remanded for a new trial. He was convicted of CSC IV. On appeal, the court found that the prosecution “did not improperly refer to the complainant’s vulnerability in” closing argument. Thus, Shannon’s trial counsel “was not ineffective for failing to object to that line of questioning. However,” Facebook messages between the complainant and her friend that were admitted at trial “were inadmissible hearsay and Shannon’s lawyer provided constitutionally deficient assistance by stipulating to their admission. The prosecution’s argument that the complainant’s testimony was consistent with her disclosure to her mother and to” a Children’s Advocacy Center “investigator was improper because it was based upon facts not admitted into evidence. Compounding this error, the prosecutor improperly bolstered the complainant’s testimony during closing argument by suggesting that she should be believed because her trial testimony was consistent with those disclosures.” The court determined that Shannon’s trial counsel “provided constitutionally deficient assistance by failing to object to the prosecutor’s improper bolstering of the complainant.” His trial counsel also “provided deficient assistance by failing to object to other-acts evidence indicating that Shannon was a drug dealer who had sold heroin to the complainant’s mother, by failing to object to testimony that he had retained a lawyer in relation to another incident, and by failing to object to the prosecutor’s use of” this testimony during closing argument. The court noted the “case was primarily a credibility contest between Shannon and the complainant. But the jury was not given an opportunity to fairly evaluate their credibility because the improper evidence and arguments by the prosecutor made stronger the complainant’s credibility and weakened Shannon’s credibility.”
Speedy trial; Prejudice; Right to a public trial; Whether the courtroom was closed; Ineffective assistance of counsel
Holding that defendant’s rights to a speedy trial, a public trial, and to the effective assistance of counsel were not violated, the court affirmed his first-degree murder, AWIM, FIP, CCW, and felony-firearm convictions. He first argued “that the trial court erred by denying his motion to dismiss for violation of his constitutional right to a speedy trial.” The court concluded that the first 16 months of the delay here were “attributed to the prosecution but with a neutral tint while the remaining” 15-month delay was due to COVID-19 and “attributed to neither party.” Thus, on balance, this factor did not support defendant’s speedy-trial claim. Because he “did not formally assert the right until approximately 27 months after his arrest, this factor” also did not support his speedy-trial claim. Finally, the record did not support his claims that he was prejudiced by the delay. The court noted that “‘anxiety alone cannot establish a speedy-trial violation’” and it determined that he did not show prejudice to the defense. Defendant next argued “that the trial court violated his right to a public trial when it closed the courtroom during closing arguments.” The court disagreed because the record did not support his claim that the courtroom was actually closed. Because there was “no indication that members of the general public were precluded from attending trial, defendant has not shown that his right to a public trial was violated.” In essence, the trial “court simply let people know that closing arguments in a murder case, rather than usual docket activities, were being conducted in the courtroom and that people wanting to check-in with court staff would need to do so elsewhere. This does not rise to the level of a partial closure of the courtroom.” Finally, defendant was not denied the effective assistance of counsel for any of the “myriad of reasons” he alleged.
First-party no-fault dispute; Personal protection insurance (PIP) benefits; Maintaining proper security; MCL 500.3101; Whether plaintiff was an owner or the registrant for purposes of MCL 500.3101(3) & 500.3113(b); Effect of ownership by a limited liability company (LLC); Insurer priority; MCL 500.3114(1)-(3) & (5); Attorney fees; MCL 500.3148(1); Miller v Secura Ins; Penalty interest; MCL 500.3142(2)
The court concluded there was insufficient indicia of plaintiff-Abdulla’s ownership of the tractor-trailer he was driving at the time of the accident to find that he “was either an owner or the registrant of the tractor for purposes of MCL 500.3101(3) and” 500.3113(b). Further, defendant-Auto Club was first in priority under MCL 500.3101(1) and 500.3114(1), and it was responsible for penalty interest under MCL 500.3142(2). But the court found that Abdulla was not entitled to attorney fees because “Auto Club’s denial of benefits was not ‘unreasonable’ under MCL 500.3148(1) and the circumstances” here. The “tractor was registered in Michigan, and titled to” a nonparty LLC (Tornado Trucking) that was solely owned by Abdulla. The trailer was titled to another nonparty. Auto Club unsuccessfully sought summary disposition on the basis Abdulla was barred from collecting PIP “benefits from any of the defendant insurers by operation of MCL 500.3113(b) because” he did not maintain no-fault coverage on the tractor. The court noted that while he was “the sole member of Tornado Trucking,” pursuant to statute, “‘a member has no interest in specific limited liability company property.’” He was simply “an agent of Tornado Trucking.” There was also no evidence he “used the tractor in a propriety or possessory manner. Rather, his use of the tractor was incidental to the business of Tornado Trucking and the long-haul trucking companies” it served. The court found no grounds in the record to pierce the LLC’s corporate veil “and declare Abdulla the owner of the tractor for these statutory purposes.” As to priority, none of the exceptions in MCL 500.3114(2), (3), or (5) applied. Thus, “the general rules apply, and Abdulla must look to the policy of a relative domiciled in the same household” – in this case, the Auto Club policy issued to his father, with whom he was domiciled. As to penalty interest, there was “no genuine issue of material fact regarding whether, under MCL 500.3242(2) that Abdulla’s PIP benefits were overdue[.]” But the court held that the trial court erred in awarding Abdulla attorney fees under MCL 500.3148(1) because Auto Club denied him “payment of benefits on the basis of legitimate questions of statutory construction and application concerning MCL 500.3101(3) and MCL 500.3113(b). A resolution of these questions goes to the heart of whether Abdulla is to receive PIP benefits.” Affirmed in part, reversed in part, and remanded.
Medical malpractice; COVID-19 care; Immunity under MCL 691.1475; “Health care facility,” “hospital,” “health care services,” “in support of,” “this state’s response to the COVID-19 pandemic,” & “response”; Gross negligence; Discovery; Davis v Detroit; Void for vagueness challenge
The court concluded that the “immunity provision in MCL 691.1475 applies to injuries and deaths that arose out of a healthcare facility’s treatment, both regular care and COVID-19 care, in support of the state’s response to the COVID-19 pandemic during the statutorily designated time period,” 3/29/20 until and including 7/14/20. Also, plaintiff “failed to plead facts in support of a gross-negligence theory such that he was not entitled to further discovery.” Finally, MCL 691.1475 is not void for vagueness on the facts presented here. This case involved “a claim of medical malpractice for medical care plaintiff received from defendant’s hospital during the early days of” COVID-19. Plaintiff argued that his negligence claims were not barred by MCL 691.1475. There was “no dispute that the act or omission that is the basis of plaintiff’s medical malpractice action occurred during the statutory time frame.” He contended “that the wound care he received was provided by defendant in the ordinary course of business as a private hospital and not in support of a state vaccine mandate or other state mandate or policy.” The court disagreed with his interpretation of the statutory language. The court understood “the immunity provision in MCL 691.1475 to cover both regular medical care and medical treatment specific to COVID-19.” Its conclusion was supported by the executive orders from which the immunity provision in MCL 691.1475 was conceived (EO 2020-30). The court held that “hospitals providing medical care to those infected with COVID-19 during the statutory period assisted, helped, or promoted the state’s reactions and actions taken as a result of the COVID-19 pandemic. Defendant supported the state’s response by providing care to patients, such as plaintiff, infected with COVID-19.” Plaintiff did “not dispute that he had COVID-19, but contends that the fact that he contracted COVID-19 does not automatically render all subsequent care he received covered by MCL 691.1475. This argument does not comport with the statutory language.” Plaintiff claimed “that he developed multiple pressure ulcers in defendant’s care. Those injuries were a consequence of the care defendant provided in response to COVID-19. Stated otherwise, those injuries were sustained by reason of the healthcare services provided by defendant in support of the state’s response to the COVID-19 pandemic. Plaintiff presented at the hospital with signs of COVID-19, was admitted to the COVID-19 floor for COVID-19 treatment, and allegedly developed pressure ulcers as a result of that care. Such a sequence of events is covered by the plain language of the statute.” The next inquiry was “whether an exception to the statutory immunity applied.” Plaintiff argued “that he alleged gross negligence in his complaint such that the exception for gross negligence in MCL 691.1475 was applicable; however, further discovery was necessary to investigate those allegations.” The court disagreed that he was entitled to additional discovery. Notably, he “did not seek leave to amend his complaint to allege gross negligence in the lower court proceedings.” Likewise, he made no request for remand to amend his complaint. Affirmed.
Reasonable reunification efforts; MCL 712A.19a(9); Americans with Disabilities Act (ADA); Guardianship; Child’s best interests
The court concluded the “DHHS made reasonable efforts toward the goal of reunification and that reasonable accommodations were offered in compliance with” the DHHS’s responsibilities under MCL 712A.19a(2) and the ADA. Also, it held that neither “of the conditions precedent for establishing a guardianship under MCL 712A.19a(9) was met here, and the trial court” properly found that the termination of respondent-grandfather’s parental rights was in DC’s best interests. The grandfather “and his wife, who is now deceased, legally adopted DC after DC’s biological mother’s parental rights were terminated.” The court held that based on the testimony provided at the hearing, it appeared that the “DHHS was aware that grandfather had cognitive issues that caused memory loss. Along with providing a broad range of services to grandfather, [the DHHS] clearly attempted to provide accommodations for his cognitive and memory issues by providing him with telephone reminders, transportation to and from meetings, and printed calendars to help him remember important dates.” The court concluded that the grandfather had “not identified any specific services that would have better served to accommodate his cognitive issues, nor [did] he explain why the services provided were insufficient or inappropriate.” Affirmed.
Termination under § 19b(3)(j); Children’s best interests; In re White
Holding that § (j) warranted termination and that it was in the children’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. The record showed she “struggled with substance abuse throughout much of the proceedings. Respondent was also unable to rectify her lack of suitable housing and employment.” She was removed from multiple homeless shelters during the proceedings “and exhausted the housing resources that DHHS made available to her.” As to employment, she “held multiple jobs throughout the proceedings but failed to maintain them.” In addition, there was evidence that her “parenting skills posed a barrier to reunification. Respondent completed parenting classes and addressed parenting skills during therapy. Yet, the assigned foster care caseworker opined that respondent had not accepted responsibility for allowing her boyfriend to have continued contact with the children despite her knowledge of his sexual abuse.” Lastly, and the court found “most critically, there was evidence that reunification also posed a risk of further emotional harm to the children.” They lived with their maternal aunt throughout the proceedings “as part of a relative foster care placement. The assigned foster care caseworker testified that the children’s maternal aunt provided love, safety, and stability for the children and shared a bond with them. The[y] reported to the assigned foster care caseworker that they did not wish to return to respondent’s care.” The record supported the trial court’s determination “there was a reasonable likelihood that, based on respondent’s conduct or capacity, that the children would be harmed if returned to her care.” As to their best interests, the record showed she “did not share a strong bond with” them while they had a bond with their maternal aunt, who testimony indicated provided them with a stable and safe home environment. “The referee explicitly stated that the children’s relative placement weighed against termination and recognized that” their maternal aunt wished to adopt them “in lieu of a guardianship arrangement.” The court found that the record supported the referee’s findings and conclusions (adopted by the trial court), and those “findings properly accounted for the children’s relative placement and the applicable best-interests factors.”
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); Failure to comply with a case service plan (CSP); In re White; Best interests of the child
Holding that §§ (c)(i), (c)(ii), and (j) were met, and that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis of her substance abuse, mental health challenges, periodic homelessness, and her failure to get the child autism-related services. On appeal, the court rejected her argument that a statutory ground for termination was not met. Although the trial court erred by finding § (g) was met, “this error was harmless because alternate statutory grounds for termination were established under” §§ (c)(i), (c)(ii), and (j). As to § (c)(i), it noted the challenges that plagued respondent “remained unresolved throughout the proceedings and lasted for well over the statutorily prescribed 182 days.” As to § (c)(ii), it found her “lack of transportation and failure to take advantage of resources designed to assist her with transportation issues negatively impacted her ability to care for” the child by ensuring she “regularly attended her daily appointments. [Respondent’s] transportation issues, viewed in a vacuum, may not suffice to support a finding that termination was proper under” § (c)(ii), but the fact they “directly impacted her ability to parent [the child], namely by preventing her from getting [her] to autism-related services in a consistent manner, suggests that statutory grounds” existed under § (c)(ii). As to § (j), the record indicated respondent “failed to successfully complete substance abuse treatment and drug screens, test negative for illicit substances, obtain safe and stable housing, and maintain employment, which were all conditions of her CSP. She has not demonstrated that she can provide safety and stability to [the child] moving forward, nor has she shown that [the child] would not continue to be in danger of abuse or neglect if returned to” her care. As to the child’s best interests, the “evidence supported the trial court’s finding that [the child’s] special needs created a heightened need for stability and permanency to ensure her continued development.” In addition, the record showed respondent “lacked emotional control, lacked the stable housing and employment necessary to provide [the child] with stability, did not understand her role in the neglect and abuse case, and did not fully understand why [the child] was removed from her care.” Further, while it was “true that the trial court acknowledged some progress toward rectifying the barriers to reunification, the evidence demonstrated that the conditions which caused” the child to come within its jurisdiction still existed at the time of the termination hearing. Finally, its finding that the child did not have a significant bond with respondent “was supported by testimony from a foster care caseworker, who observed” her parenting time with the child.