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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Legal malpractice; Bowden v. Gannaway; Standard of care for an attorney; Coleman v. Gurwin; Eggleston v. Boardman; Whether the notice of intent was sufficient; MCL 600.6431; McCahan v. Brennan (McCahan I & II); Signature requirement; MCL 600.6431(1); Substantial compliance; Fairley v. Department of Corrs.; Timeliness; MCL 600.6431(3)
The court held that plaintiffs’ notice in the underlying case, as filed, did not comply with the statutory requirements of MCL 600.6431(1) and that the trial court erred by finding that, at the time their attorney filed it, the law only required substantial compliance with that provision. Plaintiffs sued defendant-law firm for legal malpractice after a prior panel of the court found that their notice of intent to file their claim against the state was deficient because they themselves were required to sign pursuant to MCL 600.6431(1). In this appeal, the court agreed with plaintiffs that defendant “should have been aware of the relevant law regarding full or strict compliance with the statute at the time notice was filed in the underlying case.” It also noted that, contrary to the trial court’s assertion, “Fairley did not change the law regarding compliance with MCL 600.6431(1).” The signature requirement “is no different than the timeliness provision; all parts of the statute must be complied with in order for notice to be effective.” The court concluded that “‘an attorney of ordinary learning, judgment or skill’ would have fully complied with the statutory notice requirements in MCL 600.6431(1).” As such, defendant “breached the applicable standard of care by failing to comply” with the statute, and the trial court “properly denied defendant’s summary disposition motion, but erred in denying plaintiffs’ motion for partial summary disposition.” As the first two elements of a legal malpractice claim were "established (attorney-client relationship, negligence),” the only remaining issues to be resolved "in the trial court are whether defendant’s negligence was a proximate cause of an injury and the fact and extent of the injury alleged.” Affirmed in part, reversed in part, and remanded.
Qualified immunity; Harlow v. Fitzgerald; Pearson v. Callahan; District of Columbia v. Wesby; Phillips v. Roane Cnty.; Retaliatory arrest claim; Reichle v. Howards; Lozman v. City of Riviera Beach; Sandul v. Larion; Paige v. Coyner; Nieves v. Bartlett; Prior-restraint claim; Alexander v. United States; Southeast Promotions, Ltd. v. Conrad; Edmonson v. Leesville Concrete Co.; Bantam Books, Inc. v. Sullivan; Whether defendants-officers violated the First Amendment by deleting comments from the Facebook page; Packingham v. North Carolina; Morgan v. Bevin (ED KY); Davison v. Randall (4th Cir.); Right to speak anonymously; McIntyre v. Ohio Elections Comm’n; Talley v. California; Craig v. Harney; Nebraska Press Ass’n v. Stuart; Search & seizure & malicious prosecution claims; Newman v. Township of Hamburg; Johnson v. Moseley; Sykes v. Anderson; Knott v. Sullivan; Vakilian v. Shaw; Violation of the Privacy Protection Act (42 USC § 2000aa(a)); S.H.A.R.K. v. Metro Parks Serving Summit Cnty.; § 1983 claim for supervisory liability; Ashcroft v. Iqbal; McQueen v. Beecher Cmty. Sch.; Shehee v. Luttrell; Conspiracy; Hooks v. Hooks; Bell Atl. Corp. v. Twombly; Jackson v. City of Cleveland; Municipal liability; Courtright v. City of Battle Creek
The court remanded plaintiff-Novak’s First Amendment retaliatory arrest claim to the district court to determine whether defendants-officers had probable cause to arrest him under a state statute covering police disruptions, which would entitle them to qualified immunity. It also held that they were entitled to qualified immunity on some of his other claims, but not on others. Novak created a Facebook page that satirized the defendant-City of Parma’s Police Department. The Department obtained a search warrant for Facebook and learned his identity. It then searched his apartment and arrested him under a state statute for interfering with police functions. After he was acquitted, he filed this action. The district court dismissed some of his claims. The court first considered whether the officers who ran the investigation and obtained the search warrants, Riley and Connor, were entitled to qualified immunity. As to the retaliatory arrest claim, “[t]he Supreme Court held recently in Nieves that to bring a First Amendment retaliatory arrest claim, a plaintiff must generally show that there was no probable cause for the arrest.” Questions remained whether the officers had probable cause to arrest Novak under the Ohio statute. Whether the Facebook page was a protected parody was also a fact question. The court also remanded Novak’s prior restraint claim, finding that he plausibly alleged that “the officers’ created a prior restraint with a press release threatening” legal action and that “the letter and email to Facebook could be administrative orders that constituted a prior restraint.” But his claim that they violated the First Amendment by deleting comments from the Facebook page did not survive because there did not seem to be a consensus among courts as to how First Amendment protections apply to comments on social-media sites. Thus, the court held that they were entitled to qualified immunity on this issue. The lack of “clearly established law” also entitled them to qualified immunity on Novak’s claim that they violated his “right to speak anonymously” when they revealed his identity in the criminal investigation. His search-and-seizure and malicious-prosecution claims survived, as did his claim under the Privacy Protection Act. The liability claim against Riley as Connor’s supervisor also survived, as did his claim of conspiracy to shut down his Facebook page. The court held that it lacked jurisdiction over the municipal liability claims. Affirmed in part, reversed in part, and remanded.
Sentencing; Scoring of OV 4; MCL 777.34; Whether the victims suffered serious psychological injury requiring professional treatment; People v. White; People v. Wellman; People v. McChester; Scoring of OV 5; MCL 777.35; Whether the victims’ family members suffered serious psychological injury requiring professional treatment; Scoring of OV 17; MCL 777.47; Effect of the involvement of a vehicle; MCL 777.22(1) & (2); People v. McGraw; Resentencing; People v. Francisco; People v. Sours; People v. Carpenter; PRV Level C; MCL 777.62
The court held that because defendant’s sentence was within the recommended minimum sentencing guidelines range, he was not entitled to resentencing. He was convicted of three counts of assault with intent to murder for hitting three victims with his truck and then failing to stop. The jury found him guilty but mentally ill on all three counts. The trial court sentenced him to concurrent terms of 12 to 30 years for each conviction. On appeal, the court found that although the trial court erred in scoring OVs 4 and 5, “[b]ecause defendant’s actions displayed a concurrent negligence apart from his sentencing convictions,” it did not err in assessing five points under OV 17. Thus, it concluded that although “OV 4 and OV 5 were improperly scored, the proper scoring of OV 17 leaves defendant’s modified OV score at 101 points. This continues to place him at OV Level VI and the applicable sentencing guidelines range" was still the original 135 to 225 months. Affirmed.
Search & seizure; People v. Jones; Motion to suppress evidence; People v. Eaton; Validity of a traffic stop; People v. Williams; Automobile exception to the warrant requirement; People v. Kazmierczak; Probable cause; People v. Carter; The Michigan Medical Marihuana Act (MMMA) (MCL 333.26421 et seq.); Whether the odor of marijuana alone justifies the warrantless search of an auto; People v. Zaid (Unpub.); People v. Anthony; Effect of defendant’s statements to the police before the search
Holding that probable cause existed, the court reversed the order granting defendant’s motion to suppress evidence and dismiss the charges against him, including possession of less than 25 grams of hydrocodone and possession of marijuana, and remanded. The trial court ruled that Trooper R “did not have probable cause to search defendant’s vehicle after she smelled marijuana, holding that the odor of marijuana was not indicative of criminal activity because the” MMMA made possession of marijuana legal for a segment of the population. The prosecution argued “that the odor of marijuana alone justifies the warrantless search of an automobile and that, even if odor alone were insufficient, defendant’s statements to the police” before the search established probable cause. The court held that his “statements and conduct combined with the odor” provided probable cause. The trial court based its decision on the fact that the MMMA was enacted after Kazmierczak and “because the MMMA made possession of marijuana lawful for a certain segment of the population, the rule stemming from Kazmierczak that the odor of marijuana establishes probable cause” no longer applied. The trial court relied on an unpublished opinion, Zaid. The logic of a later published case, Anthony, “suggests that the enactment of the MMMA did, in fact, affect the reach and scope of” Kazmierczak. Unlike in Anthony, the prosecution here “did not allege that defendant smoked or otherwise used marijuana while in a public place,” or that he “operated his vehicle while under the influence of marijuana. [R] testified only that she smelled a ‘slight odor’ of marijuana. [R] did not indicate that the marijuana smelled burned, and in fact, specifically indicated that she did not believe” he was intoxicated. As he produced a medical marijuana provider card, the court was “not convinced under these circumstances that the ‘slight odor’ of marijuana would have been sufficient to establish probable cause because, essentially, it would appear under the facts that defendant lawfully possessed the marijuana.” It believed this distinction between this case and Anthony was notable. But it held that R had probable cause for the search. “Defendant gave significant indications the he understood his own behavior to be unlawful.” The court found that his “evolving answers to [R’s] questions created a reasonable suspicion” he unlawfully possessed controlled substances, justifying continued questioning and establishing probable cause.
Sentencing; Armed Career Criminal Act (ACCA); Career criminal enhancement under 18 USC § 924(e)(1); Establishing whether previous felonies occurred on “different occasions” for purposes of the enhancement by considering “non-elemental facts” contained in Shepard documents; Shepard v. United States; United States v. Taylor; United States v. King; United States v. Bordeaux (2d Cir.); United States v. Dantzler (2d Cir.); United States v. Span (4th Cir); Kirkland v. United States (7th Cir.); United States v. Boykin (4th Cir.); United States v. Sneed (11th Cir.); United States v. Thomas (DC Cir.); United States v. Fuller (5th Cir.); Descamps v. United States; Mathis v. United States; Whether defendant’s two prior convictions were committed on different occasions; United States v. Paige; United States v. Pham; United States v. Southers; United States v. Jones; United States v. Hill; United States v. Banner (Unpub. 6th Cir.)
The court clarified its position and held that “a sentencing court may consider non-elemental facts such as times, locations, and victims in Shepard documents when conducting the different-occasions analysis” to apply the ACCA’s career criminal sentencing enhancement. Defendant-Hennessee pled guilty to felon in possession of a firearm. The government sought a sentencing enhancement under § 924(e)(1) based on his three prior convictions for violent felonies. He argued that the enhancement was improper because the government failed to show that two of his convictions occurred on different occasions. The district court agreed, ruling that when conducting the different-occasions analysis, it was precluded from reviewing non-elemental facts in Shepard documents. Shepard documents include “charging document, written plea agreement, transcript of plea colloquy, jury instructions, judgment of conviction, or other record of comparable findings of fact adopted by the defendant upon entering a guilty plea . . . .” When making its ruling, the district court noted the confusion surrounding the Taylor-Shepard evidentiary-source restriction for the different-occasions analysis. The court clarified that King “created no limitation on a sentencing court’s consideration of non-elemental facts contained within Shepard documents.” It concluded that the district court erred by “confining itself to only elemental facts within Shepard-approved documents . . . .” It held that “a district court may consider both elemental and non-elemental facts contained in Shepard-approved documents to determine whether prior felonies were committed on occasions different from one another for purposes of the ACCA.” The court also determined that Hennessee’s plea colloquy transcript satisfied “all three prongs of the Paige test . . . .” Thus, the court held that he committed the offenses “on ‘occasions different from one another,’” and he was subject to the ACCA sentencing enhancement. Remanded for resentencing.
Action to quiet title & for trespass, nuisance, & slander of title; Collateral estoppel; Ditmore v. Michalik; Estes v. Titus; Mutuality of estoppel; Monat v. State Farm Ins. Co.; Detroit v. Qualls; Board of Cnty. Rd. Comm’rs v. Schultz; Privity; Phinisee v. Rogers; Plain error review; Demski v. Petlick; Whether an inconsistent ruling existed in another case; Town Ctr. Flats, LLC v. Shelby Twp. (Unpub.)
The court held that the trial court properly ruled that the issue whether plaintiff-TCD acquired title to the property via a quitclaim deed “had been actually litigated and conclusively decided by a final judgment in the previous bankruptcy proceeding in which TCD was represented by counsel and had an opportunity to fully participate.” Thus, TCD was barred by collateral estoppel from relitigating the issue of ownership of the property. The court affirmed summary disposition in favor of all defendants. TCD sued for trespass, nuisance, slander of title, and to quiet title, basing its ownership claim on the 2009 quitclaim deed from a nonparty. It did “not dispute that the ownership issue was fully litigated and decided by the bankruptcy court,” but rather argued “that the trial court should not have given the bankruptcy court’s decision collateral estoppel effect because” an inconsistent ruling in another case existed. The court found no merit to this argument. TCD relied on Town Center Flats, “in which TCD’s affiliate, TCF, filed an action for injunctive relief and damages against Shelby Township because the township refused to enforce a deed restriction.” The trial court dismissed that action, holding that the “township was not a proper party to the action. TCF appealed that decision but” the court had affirmed. While “the township disputed whether TCF actually owned the subject property, the issue of ownership was not litigated or finally decided by the circuit court in that case. Nor did this Court render any opinion in that regard. The circuit court dismissed that action because the township lacked legal authority to enforce a deed restriction, and this Court affirmed that decision on that limited basis. The question of the property’s ownership was not essential to the judgment that was actually litigated in that matter.” TCD acknowledged “that neither the circuit court nor this Court actually addressed or decided the ownership of” the property in that case. TCD did not establish “that any decision inconsistent with the bankruptcy court’s decision” existed. Thus, it could not establish plain error that affected its substantial rights. Further, it was “not entitled to amend its complaint to assert this theory of relief because such amendment would be futile.”
Termination under §§ 19b(3)(c)(i), (g), & (j); In re Moss Minors; In re LaFrance Minors; In re Miller; In re Ellis; Children’s best interests; In re Medina; In re White; Whether the trial court created a barrier to respondent-mother’s regaining custody of her children & violated MCL 712A.18(1)(n); In re Utrera; Court-ordered drug testing; Due process; Local Emergency Fin. Assistance Loan Bd. v. Blackwell
Holding that § (c)(i) supported termination and that it was in the children’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. The trial court held “that clear and convincing evidence had been presented that more than 182 days had elapsed since the trial court’s initial dispositional order, and that the conditions that led to the adjudication continued to exist and would likely continue to exist.” The record supported this finding. “More than a year and a half elapsed after the initial dispositional order before respondent’s parental rights were terminated.” The trial court assumed jurisdiction over the children because of her substance abuse and the consequent criminality. At the time of the termination hearing, she continued to use opioids and to violate probation. Although she “regained custody of the children temporarily by complying with her service plan for 13 months, shortly after the children were returned to her care, respondent threatened suicide and, upon admission to a psychiatric hospital, tested positive for opioids. Several months later, she again tested positive for opioids at a hospital following an alleged suicide attempt, and again when she reported for incarceration related to a probation violation. Respondent’s failure to resolve her drug use, mental health issues, and criminal behavior leading to incarceration in the lengthy period of time the children were in care support the trial court’s conclusion that she would not be able to parent” them in a reasonable time. Thus, the trial court did not clearly err in finding that termination was warranted under § (c)(i). “Because establishing one statutory ground by clear and convincing evidence is sufficient to terminate a parent’s parental rights,” the court declined to address the other grounds for termination.