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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Breach of contract claims by one attorney against another related to alleged client referrals; Michigan Rules of Professional Conduct (MRPC) 1.5(e); Sherbow, PC v Fieger & Fieger, PC (Sherbow I & II); Principle that contracts that violate the MRPC are against public policy & are unenforceable
Holding that the trial court correctly ruled that plaintiff-attorney’s alleged agreement with defendant-law firm to be paid for assisting defendant in securing certain clients was unenforceable under the MRPC, the court affirmed summary disposition for defendant. “Plaintiff testified that he was generally paid one third of the attorney fees earned by defendant for cases in which plaintiff referred the client or otherwise assisted in retaining the client.” He sued for breach of contract after defendant did not pay him for his involvement in two cases – the Shoemaker case and the LaMay case. He asserted he was owed a fee of between 20-30% (up to 1/3) of the attorney fees defendant received in the “cases—a clear division of fees.” But he did not assert, and the record did “not support an inference, that his alleged agency relationship with defendant caused him to be ‘in the same firm’ for the purposes of MRPC 1.5(e),” and he failed to provide “any other reason why MRPC 1.5(e) should not apply” here. Rather, he asserted the trial court erred in determining that this “rule required an attorney-client relationship between plaintiff and the Shoemaker and LaMay clients, and that there can be no violation of MRPC 1.5(e) when defendant never informed the clients of the agreement.” The court disagreed. Sherbow II held that “MRPC 1.5(e) requires the attorney to participate as an attorney, which in turn requires him or her to establish a professional relationship with the client, which can be accomplished by a direct or indirect (i.e., through the client’s agent) consultation.” There was no record evidence permitting “a reasonable fact-finder to conclude that plaintiff established an attorney-client relationship with either the Shoemaker or LaMay clients.” The parties’ alleged contract was unenforceable because “dividing fees when the referring attorney has no attorney-client relationship with the client violates MRPC 1.5(e)[.]” In addition, there was no record evidence “that the clients in either case were informed of any fee-splitting agreement. Consequently, regardless of the existence of an attorney-client relationship, a division of fees in these cases would independently violate MRPC 1.5(e)(1), which states that ‘[a] division of a fee between lawyers who are not in the same firm may be made only if . . . the client is advised of and does not object to the participation of all the lawyers involved . . . .’”
Ineffective assistance of counsel; Failure to object to the prosecution’s closing argument; Failure to request M Crim JI 7.25; Remand for an evidentiary hearing; People v Ginther
In an order in lieu of granting leave to appeal, the court vacated the part of the Court of Appeals’ judgment (see e-Journal # 75282 in the 4/29/21 edition) regarding defendant’s claim that his trial counsel was ineffective for failing to object to the prosecution’s closing argument. The court remanded the case to the trial court for an evidentiary hearing pursuant to Ginther “to determine whether: (1) trial defense counsel was ineffective for failing to object to the prosecutor’s closing argument that the defendant could not use self-defense because he was committing the crime of felon in possession of a firearm at the time he shot the victim, . . . and (2) trial counsel was ineffective for failing to ask the trial court to instruct the jury in accordance with M Crim JI 7.25.” It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining question presented.
Voluntariness of a confession; Evidentiary hearing pursuant to People v Walker (On Rehearing); Ineffective assistance of counsel for failing to move to suppress defendant’s police statements; People v Ginther
In an order in lieu of granting leave to appeal, the court vacated Part II of the Court of Appeals’ judgment (see e-Journal # 74526 in the 1/12/21 edition) and remanded the case to the trial court for an evidentiary hearing to determine: (1) whether defendant’s police statements were involuntary and (2) whether her trial counsel was ineffective for failing to move to suppress them.
MCL 333.7403(3)(a); “Incapacitated”
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals’ judgment (see e-Journal # 75396 in the 5/10/21 edition) and remanded the case to the Court of Appeals for reconsideration. Finding that the Court of Appeals opinion failed to address the arguments the prosecution raised on appeal, the court directed the Court of Appeals on remand to “address and resolve, in addition to any other issues necessary to the resolution of this case: (1) whether the trial court improperly applied a good faith standard when determining that the defendant was entitled to immunity under MCL 333.7403(3)(a); and (2) if so, whether a remand to the trial court is necessary to apply the correct standard and to determine whether the defendant was ‘incapacitated’ under MCL 333.7403(3)(a) in the first instance.”
Expert testimony; MRE 702; People v Peterson; People v Thorpe; Hearsay; The tender-years exception (MRE 803A); Other acts evidence; MCL 768.27a(1); People v Watkins; Ineffective assistance of counsel; Failure to object to expert testimony; Failure to call an eyewitness; Factual predicate; Failure to seek expert assistance
The court held that the challenged expert testimony was proper and that some alleged hearsay testimony was not hearsay while other testimony was admissible under MRE 803A. It also upheld the admission of other acts evidence under MCL 768.27a(1) and rejected defendant’s ineffective assistance of counsel claims. Thus, it affirmed his CSC I and II convictions. The court concluded that expert witness-C “did not testify that sexual abuse occurred, did not vouch for” the credibility of the victims (IJ and GL) and an other acts witness (SB) “or otherwise indicate that they were being truthful, did not opine that defendant was guilty, and did not testify with respect to a rate or percentage that children lie when alleging sexual abuse.” It found nothing improper in the prosecution asking C “about disclosures of touching made by eight-year-old children and in [C’s] answering that it is common for children around that age to vaguely refer to touching when first speaking to a parent about sexual abuse and then to subsequently elaborate regarding the abuse. The testimony was elicited because IJ’s initial disclosure could have been construed by the jury as being inconsistent with that of an actual victim of sexual abuse.” The court held that C’s “testimony did not entail impermissible bolstering” and thus, there was no plain error in its admission. Further, as it was proper, defense counsel was not ineffective for failing to object. The court also held that expert-W, a therapist, “did not vouch for IJ’s credibility or otherwise testify or opine that IJ was telling the truth. [W] simply indicated that IJ was more comfortable speaking about the alleged sexual abuse during the therapy session” because IJ’s father’s girlfriend (TP) was present and provided emotional support. Defense “counsel argued that IJ’s more detailed disclosure at that counseling session was attributable to the fact that she was influenced by TP’s own disclosure to IJ about TP’s abuse. Further, although [W] testified that she assumed that what IJ had told her about the abuse was true, she testified that it was not her job to verify the truth of what IJ was saying.” As to the other acts evidence, despite how many years ago it occurred, “the details of SB’s alleged assault were strikingly similar to the allegations by IJ and GL.”
Sufficiency of the evidence; AWIM; Intent; Self-defense; Jury instructions on AWIGBH & self-defense as to felony-firearm charges; Ineffective assistance of counsel; Declining to request additional jury instructions
The court held that the testimony was sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that defendant intended to kill victims-H and B (his former wife and her boyfriend) to support his AWIM convictions. Also, the evidence did not plausibly suggest that he “had any lesser intent than murder, and an AWIGBH instruction would not have made sense in light of his theory of the case that he was the victim and had acted in self-defense.” Finally, he was not denied the effective assistance of counsel. He was also convicted of first-degree home invasion and felony-firearm. According to the testimony, he “entered the home uninvited in the early hours of the day while everyone was asleep, despite not being on speaking terms with [H], and apparently to the great distress of [witness-KE] despite defendant’s claim that he was there to pick her up. An altercation ensued, during which defendant pinned [H and B] down onto the couch.” At some point, H’s “gun was retrieved from where it was stored near the couch. [B] initially had control of the gun but dropped it, and defendant took control of it, then took hold of [B] and shot him twice in the head and once in the chest.” Defendant then followed H “into the kitchen, where she was later found with a gunshot wound to her head.” Also, witness-KH was “found to have been shot in the entryway to the kitchen. The fact that defendant affirmatively chased after [H] and shot her in the head, rather than fleeing after he shot [B], more than amply shows both an intent to kill [H] and a total absence of any plausible self-defense” as to H. The fact that he shot B “three times, including twice in the head at close range, strongly supports an intent to kill. Defendant was the initial aggressor by breaking into the home at a time everyone would be expected to be asleep, seemingly armed with both a facsimile firearm and the element of surprise, and he was able to pin down both” B and H. As such, he was not entitled “to self-defense, even if the victims produced a real gun first, unless there was no reasonable way for him to escape.” It was clear he “had the upper hand in the fight, and once he gained control of the gun, he could have thrown it across the room instead of using it. Even if it was somehow strictly necessary to fire the gun, shooting [B] three times shows excessive force. The fact that he then chased and shot [H] shows that he was not at all fearful, and fleeing was not his intent until after satisfying a desire to kill those” in the home. Affirmed.
Sentencing; Sex Offenders Registration Act (SORA); Whether the mandatory lifetime sex offender registration requirement constitutes cruel or unusual punishment under the Michigan Constitution; Distinguishing People v Dipiazza; Abandoned facial challenge; Whether the mandatory lifetime electronic monitoring constitutes cruel & unusual punishment under the U.S. Constitution; People v Hallak
The court held that requiring defendant to register as a sex offender and to submit to electronic monitoring for the rest of his life and was not cruel or unusual punishment under the Michigan Constitution or cruel and unusual punishment under the U.S. Constitution. He was convicted of CSC II and accosting a child for an immoral purpose. He was sentenced to 48 to 180 months for each CSC II conviction and 24 to 48 months for accosting a child for an immoral purpose, all to be served concurrently, and ordered to submit to lifetime electronic monitoring. Defendant argued that “SORA’s mandatory lifetime sex offender registration requirement constitutes cruel or unusual punishment facially and as applied to him under” the Michigan Constitution and the U.S. Constitution. While he relied on Dipiazza, the facts of his case were very distinguishable. His “conduct was much more severe than the defendant’s in Dipiazza. First, and perhaps most importantly, defendant and his victim were not in a consensual relationship—defendant was the victim’s stepfather and she did not consent to any of the reported incidents. This created a power imbalance that was lacking in Dipiazza. Further, there was a significant age difference between defendant, who was a grown man in his thirties, and his victim, who was under the age of 13 at the time of each incident.” Thus, he was “not eligible for adjudication under HYTA or other similar diversion programs that avoid criminal convictions.” Considering the gravity of his offense, the court did “not think mandatory lifetime registration is a disproportionately harsh punishment in defendant’s case.” It concluded that “SORA’s unique lifetime registration requirement is not without justification.” Also, it determined that “SORA’s registration requirement is not materially different from sex offender registries in other states.” Additionally, the court found that “SORA’s lifetime registration requirement is not unjustifiably disproportionate as applied to the grave facts of” his offense. It further held that “SORA’s lifetime registration requirement is not invalid facially or as applied under the Michigan Constitution. Because the requirement is not cruel or unusual punishment under the Michigan Constitution’s broader protection, it also is not cruel and unusual punishment under the U.S. Constitution’s narrower protection.” Affirmed.
Divorce; Motion to modify parenting time; Vodvarka v Grasmeyer; Shade v Wright; Whether any error as to the applicable standard warranted relief; Child support; Retroactive modification; MCL 552.603(2); MCL 552.603b; Motion for attorney fees under MCR 3.206(D); Loutts v Loutts; Reed v Reed; Motion for sanctions under MCR 1.109(E); Whether a claim was “frivolous”
The court held that plaintiff-mother’s motion to modify parenting time was properly denied, but that there was no basis for retroactive modification of child support under MCL 552.603b. Rather, under MCL 552.603(2), the modification should be effective as of the date she received notice of defendant-father’s petition to modify support. The trial court did not abuse its discretion in denying her motions for attorney fees under MCR 3.206(D) and for sanctions under MCR 1.109(E), but did err in sanctioning her and awarding defendant attorney fees under MCR 3.206(D). As to parenting time, the court found it did not have to decide if the trial court correctly ruled that Vodvarka applied because, “regardless of whether the trial court should have applied Shade” here instead, the error would not warrant appellate relief. It held that the facts found by the trial court revealed “an ongoing pattern by plaintiff, before and after the entry of the divorce judgment, of manipulative and alienating behavior that was designed to harm defendant and his relationship with the children. Regardless of plaintiff’s assertions about her diagnosis, this pattern has not changed, and the trial court’s conclusion that plaintiff’s conduct had ‘worsened’ since entry of the divorce judgment was not against the great weight of the evidence.” But the trial court’s findings as to child support modification did not support a retroactive modification. Its determination “that plaintiff’s conduct did not rise to the level of ‘fraud’ would seem to encompass the conclusion that plaintiff did not knowingly and intentionally fail to report income, refuse to report income, or knowingly misrepresent her income.” Thus, given its factual findings, MCL 552.603b did not apply. The court found that plaintiff fell “far short of showing facts sufficient to justify an award of attorney fees under MCR 3.206(D),” and as to her motion for sanctions, nothing in the record indicated “defendant filed documents not well-founded in facts or law or that he filed any documents for an improper purpose.” But as to his award of attorney fees, “the trial court clearly erred by concluding that plaintiff’s position was devoid of merit as to warrant sanctions.” Further, he did not show—and the trial court’s findings did not support—that he “incurred the attorney fees in question as a result of plaintiff’s violation of an order.” Affirmed in part and vacated in part.
Whether improved mental health & the child’s poor academic performance created changes in circumstances warranting a change in custody & parenting time
Because it was “not left with a definite and firm conviction that the trial court made a mistake in denying” plaintiff-mother’s motion for a change in custody and parenting time, the court affirmed. She argued that “her improved mental health and the child’s poor academic performance” created changes in circumstance that warranted a change in custody and parenting time. At the time of her motion for change of custody, she “submitted a letter from her therapist stating that she ‘continued to work on addressing healthy communication skills, parenting skills, and assertiveness,’ and that the treating therapist was ‘pleased with [plaintiff’s] efforts and progress in these areas.’” Although the FOC report mentioned that “plaintiff’s actions may stem from unresolved mental health issues, the FOC report did not base its conclusions on plaintiff’s mental health alone. Instead, the report based its conclusions on plaintiff’s unfounded complaints against defendant, including his ability to properly care for the children, which have occurred throughout the course of the proceedings. Those unfounded complaints continued in her motion to change in custody to the trial court when she stated that the child was malnourished, wore the same clothes every day, and was unwashed.” Further, to the extent the FOC report relied on her “mental health to establish custody, the letter that plaintiff provided did not contain any clinical conclusions regarding plaintiff’s mental health, or what has or has not improved.” Thus, the trial court did not err in holding that she “failed to show by a preponderance of evidence that there was a change in circumstance sufficient to warrant a re-analysis of the custodial arrangement.” The court also rejected her “argument that an evidentiary hearing was required, as even though improved mental health may be a factor in deciding whether custody should be modified, the grounds presented here were not legally sufficient to warrant an evidentiary hearing.”
Action for PIP benefits for services rendered by medical providers; Effect of an assignment; Real party in interest; Party substitution; MCR 2.202(B); MCL 500.3112; Public policy
Holding that the trial court erred in denying defendants-insurers’ “motion for partial summary disposition of plaintiff’s action for recovery of PIP benefits for services rendered by medical providers to whom plaintiff had granted assignments because she was no longer the real party in interest[,]” the court reversed and remanded. The case arose out of a motor vehicle accident during which plaintiff and her minor children were injured. The court concluded that after she executed assignments to various medical providers of her right to PIP benefits from defendants, “the medical providers became the real parties in interest, and only the medical providers had the ability to enforce the acquired rights.” However, she “may still pursue her claim against defendants for services rendered by” one provider because she assigned “this provider her right to collect PIP benefits from defendants after she filed” this action. She filed the complaint on 11/18/19, and assigned to that provider her right to collect PIP benefits from defendants almost a month later. No “motions for substitution or joinder were made, and the trial court did not direct plaintiff to be made a party in another capacity.” Thus, under the plain language of MCR 2.202(B), she may still pursue her claim against defendants for services rendered by that provider. The court rejected plaintiff’s claim that “application of MCL 500.3112 effectively precludes summary disposition.” Although she correctly noted that “a health care provider may assert a direct cause of action against an insurer, and MCL 500.3112 insulates insurers from the threat of double payment for services rendered, MCL 500.3112 does not address the legal effect of an assignment on an insured’s ability to collect benefits that were the subject of an assignment.” Lastly, the court rejected her public policy argument.
Governmental immunity for a government employee; MCL 691.1407(2); “Gross negligence”; MCL 691.1407(8)(a); Effect of the lack of discovery
Holding that the trial court erred in denying defendant-police officer’s motion for summary disposition because he was entitled to governmental immunity as a matter of law, the court reversed and remanded for entry of an order granting his motion. The case arose “out of a car accident in which defendant rear-ended plaintiff’s vehicle” while defendant was on duty. He contended that plaintiff could not “support the claim that his conduct rose to the level of gross negligence for an accident that occurred at a slow rate of speed when he briefly looked down from the roadway to reach for his radio microphone.” In response, plaintiff asserted that discovery was necessary. There was nothing in the documentation submitted by defendant to support plaintiff’s claim that the facts were “suspicious and unusual.” Accepting plaintiff’s claims “as true and considering the evidence in the light most favorable to plaintiff, defendant’s conduct, at most, constituted ordinary negligence.” The principal theme of plaintiff’s brief on appeal was that summary disposition was inappropriate because discovery had not begun. But he only offered “speculation that discovery will yield evidence supporting that defendant was grossly negligent. Again, plaintiff submitted that the circumstances of defendant driving an unmarked police vehicle with another officer and third person were suspicious, and therefore, defendant may not have been acting within the scope of his employment such that governmental immunity would not apply.” However, there was nothing in the accident report to support this speculative theory. Plaintiff also contended that discovery was “necessary to determine what exactly was occurring in defendant’s vehicle in the moments leading up to the collision.” But plaintiff offered “no theory of what evidence discovery would uncover that would support defendant committed gross negligence as opposed to ordinary negligence. Defendant admitted that he looked down, leading to the collision. The police investigation concluded that the cause of the collision was defendant’s inability to stop in an assured, clear distance.” The court held that because “plaintiff failed to allege facts sufficient to show that defendant was grossly negligent, the trial court erred when it denied his motion for summary disposition.”
Claim preclusion; Colorado River Water Conservation Dist v United States; The “same transaction or occurrence”; The equitable exception in Restatement (Second) of Judgments § 26(1)(f); Whether the McCarran-Ferguson Act reverse preempts the federal diversity jurisdiction statute (28 USC § 1332) or precluded the court’s appellate jurisdiction under § 1292(b); Abstention under Burford v Sun Oil Co; The Rules Decision Act; 28 USC § 1652; Erie RR Co v Tompkins
In this interlocutory appeal, the court held that claim preclusion barred this lawsuit where there was a state-court final judgment as to the same issues. It also held for the first time that the McCarran-Ferguson Act does not reverse preempt the federal diversity jurisdiction statute or preclude the court’s appellate jurisdiction under § 1292(b). Plaintiff-insured (William Powell Company (WPC)) sued defendant-OneBeacon in both state and federal court over excess insurance policies and the duty to defend and indemnify. OneBeacon moved to have the federal action dismissed, arguing claim preclusion based on a final judgment in state court. The district court ruled that claim preclusion probably applied, but it declined to dismiss the case because the cases had progressed in tandem for years, and the court thought it would be unjust to bar WPC’s claim. On appeal, the court first held that the McCarran-Ferguson Act (which provides that federal law cannot impair state laws regulating insurance) does not reverse-preempt § 1332, and that it had jurisdiction to hear the appeal, concluding among other things that jurisdiction would not interfere with OneBeacon’s liquidation process in Pennsylvania. It also declined to exercise Burford abstention, and held that the Rules Decision Act and the Erie doctrine did not compel it to adhere to the Pennsylvania stay. It then moved to the merits and held that under Ohio law, the state-court judgment satisfied the elements of claim preclusion. Further, it found that none of the exceptions in § 26 of the Restatement, including the one cited by the district court, § 26(1)(f), applied. Reversed and remanded.
Termination under §§ 19b(3)(b)(i), (b)(ii), (b)(iii), (g), (j), & (k)(iii); Reasonable reunification efforts; MCL 712A.19a(2); In re Rippy; Exception for aggravated circumstances; MCL 722.638(1) & (2); Termination at the initial dispositional hearing; MCR 3.977(E); Best interests of the children; In re White
Holding that reasonable reunification efforts were not required, that statutory grounds for termination were met, and that termination was in the children’s best interests, the court affirmed termination of respondents-parents’ parental rights. Their rights were terminated based on medical neglect, physical neglect, improper supervision, and abuse. On appeal, the court rejected respondent-mother’s argument that the DHHS was required to make reasonable reunification efforts before seeking termination, noting the children “were subjected to aggravated circumstances.” It also rejected her claim that the DHHS failed to prove a statutory ground for termination. Given respondent-father’s abuse of one of the children, and history of abuse of another child, her “continued denial of that abuse, and [her] refusal to seek medical treatment after” one child’s (H) injury, the trial court did not err by finding a reasonable likelihood that the children “would suffer injury or abuse in the foreseeable future if placed with” her. The court further rejected her contention that termination was not in the children’s best interests. It noted that her failure to seek proper medical attention for H, and her desire to protect the father from abuse allegations, “outweighed any bond.” It also noted her history of failing to seek proper medical treatment for H and her refusal to accept responsibility or express remorse for the abuse, as well as the fact that she did not have housing, reliable transportation, or employment, and could not provide them with the permanency and stability they needed. Finally, the court rejected the father’s arguments as to statutory grounds and best interests. It found there was clear and convincing evidence that he severely abused H and another child and failed to benefit from prior services. In addition, any bond did not outweigh the evidence of abuse, he failed to accept responsibility or express remorse, he “had a history of domestic violence, had no suitable housing, had transportation issues, and was not employed.”