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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Damages for vexatious proceedings; Reasonable attorney fees; Smith v Khouri; Kidder v Pobursky-Kidder
The court concluded the trial court abused its discretion in the manner in which it determined the amount of damages (including reasonable attorney fees) to award defendant-TriFound Holdings for vexatious proceedings. Thus, it vacated these damages and remanded for further proceedings. The court previously affirmed summary disposition for TriFound, granted its motion “for damages, including reasonable attorney fees, for vexatious proceedings[,]” and remanded to the trial court for a determination of the damages. The trial court awarded defendant $26,127, two-thirds of its requested fees. The court noted “the trial court did not articulate any findings on the fees customarily charged or the reasonable number of hours expected in such a case.” It found that the “trial court’s failure to analyze the reasonableness of the rates on the record has hindered appellate review of its decision. The trial court noted in its order that it had reviewed the documents defendant provided, but [it] did not explicitly, in its order or during the hearing, explain why it found the rates or hours to be reasonable. Nor did [it] explicitly address any of the other factors it should have considered when determining the award of attorney fees.” In addition, while it “adjusted the award from the amount that defendant requested by two-thirds,” the court’s order remanding “for a determination of actual damages did not hold that only two-thirds of the issues were vexatious.”
42 USC § 1983 action to recover for property damage; Whether the damages plaintiffs’ home received when police executed a search warrant entitled them to damages for a “taking” under the Fifth Amendment; “Police power” exception to the Takings Clause; What counts as a “taking”; Common law tort privileges to access private property; Restatement (Second) of Torts §§ 204-206; The search-&-arrest privilege; Cedar Point Nursery v Hassid
In this case seeking compensation for damages the police caused during the execution of a search warrant, the court declined to apply a categorical “police powers” exception to the Takings Clause. But it held that the officers’ actions in executing a search warrant and arresting plaintiffs-Slaybaughs’ son fell under the search-and-arrest privilege. The police caused severe damage to plaintiffs’ home when executing a search warrant and arresting their son (C) for murder. They claimed their home sustained over $70,000 in damages, and that their insurance denied coverage because “because it was ‘caused by a civil authority.’” They alleged that the actions of the police constituted a “taking” under the Fifth Amendment. The district court granted defendants’ motion to dismiss for failure to state a claim. It held that plaintiffs’ “claim was barred under a categorical rule that, when the government acts pursuant to its ‘police powers,’ its actions are always exempt from the Fifth Amendment’s just compensation requirement.” It cited decisions from other circuits in support. On appeal, the court declined to apply the categorical “police powers” exception adopted by the district court. First, it was “questionable whether such an approach comports with the text and history of the Takings Clause or with precedent interpreting it.” In addition, “a categorical exception would run afoul of Supreme Court precedent recognizing that the government’s exercise of its police powers can, in some circumstances, amount to a taking.” But the court concluded plaintiffs failed to state a claim because the complaint showed “that the officers’ actions while arresting [C] were privileged, so police did not infringe on the Slaybaughs’ legally cognizable property interests.” The court noted that under “modern tort law, the authority to arrest ‘carries with it the privilege to enter land in the possession of another for the purpose of making such an arrest, if the person sought to be arrested is on the land or if the actor reasonably believes him to be there.’” The court concluded that “under the search-and-arrest privilege, law enforcement may forcibly enter a home to arrest someone, so long as (1) the arrest is lawful and (2) the use of force in carrying out the arrest is reasonable.” And it held that the privilege applied here. Because plaintiffs failed “to plead facts suggesting that the search of their house was unlawful, they do not come close to establishing that police exceeded the scope of the search-and-arrest privilege. And because police acted within that privilege when they damaged the house, the Slaybaughs are not entitled to compensation for that damage under the Fifth Amendment.” Affirmed.
Ineffective assistance of counsel; People v Ginther; Failure to request a jury instruction for the lesser included offense of voluntary manslaughter; People v Yeager
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 81100 in the 3/15/24 edition) and remanded to the trial court for an evidentiary hearing and ruling as to whether defendant was denied the effective assistance of counsel. It noted that it was not intimating any “opinion as to whether there was ineffective assistance.” It concluded “the Court of Appeals should not have decided that issue without a Ginther hearing having been held. Proceedings on remand are limited to whether trial counsel provided the defendant with ineffective assistance by failing to request a voluntary manslaughter instruction.”
Sufficiency of the evidence to support an involuntary manslaughter conviction; People v Tims; Causation; People v Crumbley; “Gross negligence”; People v Head; Wantonness; Right to a public trial; People v Vaughn; Courtroom closure; MCR 8.116(D); Effect of COVID-19; AO 2020-6; 3d Circuit AO 2021-15; Whether the courtroom was fully or partially closed; Mistrial; People v Alter; Ineffective assistance of counsel; Trial strategy; Sentencing; Reasonableness & proportionality; Acquitted conduct; Medical examiner (ME)
Finding no errors requiring reversal, the court affirmed defendant-Sherrill’s convictions and sentences. The victim, H, was shot in the back of the neck during an altercation as she was driving. Defendant claimed he was trying to take the gun away from her but she killed herself. He was convicted of involuntary manslaughter, CCW, and felony-firearm. The trial court sentenced him to 2 years for felony-firearm, 10 to 15 for manslaughter, and 3 to 5 for CCW. On appeal, the court rejected his argument that there was insufficient evidence to find that his actions were the proximate cause of H’s death. Given the ME’s “testimony and the location of the physical evidence, the jury could have reasonably inferred that Sherrill, who was sitting in the backseat, shot [H] in the back of her neck, and that his actions were both the factual and proximate cause of her death.” The court also rejected his claim that there was insufficient evidence of gross negligence, noting “the evidence supported the jury finding that [he] handled the loaded firearm with wanton disregard for the consequences of the results and with reckless disregard for the safety of the other occupants of the vehicle.” As to his contention he was denied his right to a public trial because the courtroom was closed to spectators during his trial, the trial court “relied on 3d Circuit AO 2021-15 as the justification for closing the courtroom. In light of the carefully implemented procedures adopted to gradually reopen the courthouse to full capacity, Sherrill has not shown that the temporary limit on in-person spectators amounted to plain error affecting his substantial rights.” The court further held that the trial court did not abuse its discretion when it denied his motion for a mistrial. Given that the evidence in question (a photo of H’s body) “was generally duplicative of other evidence and the [trial] court instructed the jury to disregard” it and that it “mistakenly appeared on the screen, it was not an abuse of the trial court’s discretion to deny the motion for a mistrial.” As to his claim that his lawyer provided ineffective assistance by not objecting to statements made by the officers when interrogating him, he failed to “overcome the strong presumption that his lawyer’s performance ‘was born from sound trial strategy.’” Finally, it rejected his contention that his involuntary manslaughter sentence was not reasonable, noting the trial court “did not consider acquitted conduct when” it exceeded the guidelines, and its “reasons for departure” justified the departure and its extent. Affirmed.
Sufficiency of the evidence; Second-degree murder; Malice; People v Goecke; Tampering with evidence; Jury instructions; Accident instruction; Other acts evidence; MRE 404(b)(1); Relevance; MRE 401 & 402; Expert testimony; MRE 702; Sentencing; Scoring of PRV 7
The court held that there was sufficient evidence to support defendant’s second-degree murder and tampering with evidence convictions, and that the trial court did not err in admitting evidence or instructing the jury. He was also convicted of OWI causing death. His convictions arose out of a fatal vehicle collision. The trial court sentenced him to 25 to 35 years for second-degree murder, 10 to 15 for OWI causing death, and 7 to 10 for tampering with evidence. On appeal, the court rejected his argument that there was insufficient evidence of malice to support the second-degree murder conviction. It concluded “a rational trier of fact could have found [he] ‘intentionally set in motion a force likely to cause death or great bodily harm,’ when he inhaled Surf Onn and proceeded to drive erratically while intoxicated.” In addition, because the evidence showed he decided to drive while intoxicated, the trial court did not err by denying his request to instruct the jury regarding accident. The court also rejected his claim that there was insufficient evidence to support the tampering with evidence conviction, noting “a rational trier of fact could have found that [he] knew that these items could establish that he was driving while intoxicated and that he threw them out of the passenger compartment of his vehicle to conceal them from discovery by the first responders.” The court further rejected his contention that the trial court erred by allowing the prosecution to admit other acts evidence and allowing an expert witness to testify outside of his training and experience. “The probative value of defendant’s prior purchases of Surf Onn, along with the trial court’s limiting instruction, ‘did not stir the jurors to such passion . . . as to [be swept] beyond rational consideration of [the defendant’s] guilt or innocence of the crime on trial.’” As such, it “did not abuse its discretion by allowing the admission of testimony and evidence about defendant’s prior purchases of the inhalant.” Moreover, the expert’s “testimony was very narrow, limited to the general effects of a central nervous system stimulant. [And] defense counsel’s cross-examination elicited [the expert’s] admission that he did not know the effects of the cocaine on defendant or knowledge of the effect of the amount of cocaine for which defendant tested positive.” Finally, given its determination that there was sufficient evidence to support his evidence tampering conviction, it found meritless his argument that the trial court erred by assessing 20 points for PRV 7. Affirmed.
Whether counts of an indictment were “duplicitous”; United States v Campbell; Expert testimony; FRE 704(b); Jury instructions; Kendel v Local 17-A United Food & Commercial Workers (Unpub 6th Cir); Sentencing; Procedural reasonableness; Intended-loss calculation; United States v You; Substantive reasonableness; Disparity
In an amended opinion (see eJournal # 82073 in the 8/20/2024 edition for the original opinion), the court again rejected defendant-Xu’s arguments that counts of the indictment in this espionage and trade secrets case should have been dismissed as “duplicitous.” It again found that the indictment counts at issue each alleged “a single conspiracy based on an overarching agreement between Xu and his co-conspirators.” It also again rejected his challenges to the admission of expert testimony and to his sentence. Xu, a Chinese citizen and member of China’s Ministry of State Security, was convicted of conspiracy to commit economic espionage and conspiracy to steal trade secrets from aviation companies. He was also convicted of attempted economic espionage by theft or fraud and attempted theft of technology. He was sentenced to a combined 240 months. The only change in the court’s amended opinion was in its discussion of his procedural reasonableness challenge to his sentence. Xu contended “that by relying on Application Note 3(A) under” Guidelines § 2B1.1, “which includes ‘intended loss’ in the definition of ‘determination of loss,’ the district court erred in applying a 22-level increase to his base offense level that resulted in a” 210 to 262-month Guidelines range. He acknowledged in his reply brief that the court’s “published holding in You—which was issued after Xu filed his opening appellate brief—forecloses this argument” and the court agreed. In You, it “held that the ‘character and context’ of the Commission’s reading entitled it to deference.” While Xu argued that case was wrongly decided, “given You’s binding effect—and Xu’s acknowledgment in” this regard—the court did not reach the merits. It again affirmed.
Action alleging breach of warranty, negligence, & gross negligence arising from an alleged defect in a vehicle; Limitations period; Accrual; MCL 600.5827; Insanity tolling; MCL 600.5851(2); Lemmerman v Frank; Leave to amend; MCR 2.118; Prejudice; Futility; Breach of warranty; Discovery rule accrual; MCL 600.5833; Comparing Southgate Cmty Sch Dist v West Side Constr Co; Distinguishing Bowman v St Johns Hosp & Med Ctr; “Product liability action”; MCL 600.2945(h); Fraudulent concealment tolling; MCL 600.5855; Tice Estate v Tice
The court held that the trial court erred by finding plaintiff did not qualify as insane for tolling purposes. But it did not err by finding that her breach of warranty claim was not subject to the discovery rule, or that she did not plead allegations sufficient to sustain her argument for tolling based on fraudulent concealment. She sued defendant for breach of warranty, negligence, and gross negligence arising from an alleged defect in her vehicle. The trial court granted summary disposition for defendant. On appeal, the court agreed with plaintiff that there remained a question of fact as to whether the statute of limitations was tolled because of her insanity, which made the grant of summary disposition to defendant, and the denial of her associated request for leave to amend, improper. The evidence showed she “had no ability to focus on anything but her husband’s care and was no longer able to manage her life independently around the time of her injury.” The additional circumstances in her life created a question of fact as to insanity tolling. As a result, the trial court abused its discretion in denying her motion for leave to amend. “Nothing in the record show[ed] that [her] request, which did not occur on the eve of trial and sought amendments related only to the insanity-tolling issue already raised in responding to” defendant’s motion for summary disposition, would be prejudicial. And because she established a question of fact as to insanity tolling, her proposed amendment was not futile. But the court rejected plaintiff’s contention that her breach of warranty claim was subject to a discovery rule of accrual and was timely filed. “[W]hether a discovery rule applies to the claim because it is a breach of warranty claim, or the default accrual ‘at the time the wrong upon which the claim is based was done’ rule applies, all of” her claims accrued at the time of the accident. The court also rejected her argument that defendant’s fraudulent concealment of her claim tolled the statute of limitations. Plaintiff, “who had a firm conviction she placed her vehicle in park, was compelled to infer that a defect in the vehicle caused the accident, and so was effectively aware of a possible cause of action immediately after the accident. Because [defendant] could not conceal what [she] was immediately aware of, there cannot be fraudulent concealment that tolled the statute of limitations under MCL 600.5855.” Reversed in part and remanded.
Entry of an ex parte PPO; MCL 600.2950(1)(b), (g), & (l); Motion to terminate; Procedural due process; The “opportunity to be heard”; Peterson v Peterson (Unpub)
While the court concluded the trial court did not abuse its discretion in issuing the ex parte PPO in question, it held that respondent’s procedural due process rights were violated by a “one-sided hearing” on his motion to terminate the PPO. Thus, it reversed the order denying his motion and remanded for a new hearing. The parties were married. After moving out of the marital home and filing for divorce, petitioner obtained the PPO. Respondent first argued on appeal that the trial court erred in issuing the PPO. The court noted MCL 600.2950 governs the issuance of a PPO in the context of a domestic relationship. “Impermissible acts listed in MCL 600.2950(1) include ‘molesting’ the petitioner” (MCL 600.2950(1)(b)), “‘interfering with petitioner at petitioner’s place of employment . . . or engaging in conduct that impairs petitioner’s employment’” (MCL 600.2950(1)(g)), “and engaging in ‘[a]ny other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence’” (MCL 600.2950(1)(l). The court found that the petition for an ex parte PPO contained “allegations that could satisfy all three categories of impermissible acts.” As to respondent’s due process argument, the court considered “the meaning of ‘the opportunity to be heard’ in the context of motions to terminate ex parte PPOs that actually involve hearings.” After reviewing an unpublished case, Peterson, the court held that “due process necessarily mandates an opportunity for the respondent to present evidence at a hearing to terminate a PPO. In this case, the trial court devoted a portion of a 70-minute hearing to respondent’s motion to terminate the PPO, but [it] allowed only petitioner to present evidence in the form of testimony from herself and two of her relatives. After [she] finished testifying, the trial court heard arguments from [her] counsel and denied respondent’s motion to terminate the PPO based on the materials attached to the ex parte petition and the testimony of petitioner’s witnesses. When respondent’s attorney asked the trial court ‘when will we be allowed to present witnesses?’ the trial court simply stated that ‘you made a motion and I’m denying it.’ That one-sided process contravened respondent’s constitutional right to procedural due process.”
Termination at an initial disposition; MCL 712A.19b(4); MCR 3.977(E); Reasonable reunification efforts; Aggravated circumstances; MCL 712A.19a(2)(c); Termination under §§ 19b(3)(b)(i) & (j); Child’s best interests; Effect of relative placement; Termination alternatives
The court held that (1) “the trial court appropriately found that reasonable” reunification efforts were not required here pursuant to MCL 712A.19a(2)(c); (2) §§ (b)(i) and (j) were established; and (3) terminating respondent-mother’s parental rights was in the child’s (L) best interests. It determined that “the trial court made clear and detailed findings supporting termination at initial disposition and that additional reasonable efforts were not required pursuant to MCL 712A.19a(2)(c)[.]” Given those findings, it “was not required to make a finding of aggravated circumstances pursuant to MCL 712A.19a(2)(a).” As to statutory grounds for termination, the evidence indicated respondent’s parental rights to L’s “sibling were terminated in 2013 as a result of physical abuse, substance abuse, and failure to complete court-ordered services to rectify the issues.” Evidence also showed that she “failed to rectify her substance abuse at the time of the initial dispositional hearing, and substance abuse was an ongoing and unrectified issue throughout her previous termination case. The trial court” concluded the evidence supported termination under § (j) because respondent’s “continued substance abuse, unemployment, and unstable housing created a reasonable likelihood that” L would be harmed if returned to her care. As to L’s best interests, it “explicitly found that there was a very weak bond between” L and respondent because L did not engage with her “during parenting time, did not ask or talk about [her] after [she] stopped attending parenting times, and no longer ‘had a reaction to not seeing her mother.’ Regardless, the trial court should consider a wide variety of factors and weigh all of the available evidence.” This included that respondent “had battled substance abuse for over a decade, continued to abuse substances despite attending a multitude of rehabilitation programs and being provided with services by DHHS, and did not have stable housing or employment.” The trial court also explicitly considered L’s relative placement. Given respondent’s “substance abuse issues and the prior termination of her” rights to L’s “sibling for the same issues, [L’s] young age and need for permanency and stability, the fact that [L] was thriving in her relative foster placement, and” her placement’s preference for adoption, there was no clear error in the trial court’s finding that termination was in L’s best interests. Affirmed.