One Court of Justice

On April 29, 2011, the Michigan Supreme Court published its opinion in People v Breidenbach, No. 140153.  The Court held that separate trials to determine whether a defendant is guilty of sexual delinquency as well as an underlying sexual offense that gave rise to the sexual delinquency charge are discretionary, not mandatory.  The Court’s holding partially overturned People v Helzer, 404 Mich 410; 273 NW2d 44 (1978), which held that when a defendant is charged with both sexual delinquency and an underlying offense, the two charges require evaluations by separate juries.  Justice Young wrote the opinion, in which Justices Markman, Kelley and Zahra joined.  Justice Cavanagh concurred in result only, and Justices Kelly and Hathaway each filed an opinion concurring in part and dissenting in part. Read more »

On Thursday, April 28, 2011, the Michigan Supreme Court denied four applications for leave to appeal and denied one motion for reconsideration.  The Court ordered that People v. Pittao, Case No. 142052 and People v. Long, Case No. 141946, will be held in abeyance pending the Court’s decision in People v. Watkins, Case No. 142031 and People v. Pullen, Case No. 142751.  In People v. Freeze, Case No. 142177, the Court directed the Berrien County Prosecuting Attorney to respond to the defendant’s application for leave to appeal and to address whether the Court of Appeals correctly decided People v. Fonville.

The Court also remanded People v. Laidlaw, Case No. 139751 and People v. Gagnier, Case No. 139735 to the trial court.  The applications for leave to appeal in these two cases had been held in abeyance pending a decision in People v. Smith which was decided this past December.  In light of the Court’s ruling in Smith, the Court concluded that while the trial courts had articulated substantial and compelling reasons for departuring from the sentencing guidelines, neither court had articulated any rational to justify the extent of the departure in those cases.  Accordingly, both matters were remanded to the trial court.  On remand, the trial court was ordered to articulate rationale to justify the extent of the departure from the sentencing guidelines.  Alternatively, the trial court may choose to resentence the defendant.

Finally, the Court remanded the case of People v. Simpson, Case Nos. 142036, 142089 & 142099, to the Court of Appeals for consideration as on leave granted.  Specifically, the Court of Appeals was directed to consider whether the trial court erred in requiring Simpson to register as a sex offender.  The Court also noted that it remanded a similar case, People v. Gentile, Case No. 295570, to the Court of Appeals on November 24, 2010.  The Supreme Court suggested that the Gentile decision may be instructive in deciding Simpson’s case.

The Court denied leave in 131 cases, directed the prosecution to answer 1 application for leave to appeal, and denied reconsideration in 7 cases.  The Court took substantive action in 2 cases.

In People v Hill, the Court affirmed in part and reversed in part the Court of Appeals judgment.  The Court affirmed the Court of Appeals conclusion that Trooper Escott was not required to be qualified pursuant to MRE 702 because he was not testifying as an expert witness as he did not interpret or extrapolate about the facts and personal observations he testified to.  The Court reversed Court of Appeals with regard to the admission of an out-of-court statement about the defendant’s coat, concluding that the admission was harmless error because each victim provided testimony identifying the coat.  Justice Kelly dissented stating that circumstances of the identifications diminished the certainty of the victims, statements.

The Court also granted rehearing in Anglers of the AuSable, Inc. v. Dep’t of Environmental Quality and vacated its December 29, 2010 Opinion and dismissed it on grounds of mootness.  A detailed summary of the order can be found here.

The Court granted a motion for immediate consideration in Vandussen v Court of Appeals and remanded the case to the Court of Appeals requesting that it “articulate the reason why ‘the fair administration of justice’ warrants the denial of the plaintiff’s request to film oral argument on May 10, 2011.”

On Tuesday, April 26, 2011, the Court of Appeals published its opinion in People v. Jamison, Case No. 297154.  In Jamison, the court concluded that the defendant had been improperly scored 10 points under Offense Variable (“OV”) where she only shared a former dating relationship with the victim.  In doing so, the court declined to extend the unpublished opinion of People v. Davis, Case. No. 280547, which held that a defendant was properly score 10 points under OV 10 if the victim and defendant were ever involved in a dating relationship, were residents of the same household, or had a child in common. The Jamison court concluded that this broad definition only applied where the defendant’s underlying conviction was for domestic assault.  In other cases, OV 10 would only be scored where the victim and defendant shared a familial relationship or were cohabitating at the time of the offense.  Because Jamison was sentenced to a term of imprisonment higher than her proper guideline range, the court reversed and remanded the matter for resentencing. Read more »

On April 26, 2011, the Court of Appeals published Judge Donofrio’s opinion for a unanimous panel in Augustine v. Allstate Insurance Company, No. 296646.  In this case, the Court of Appeals vacated the trial court’s award of $250,000 in attorney fees and remanded the case for rehearing and redetermination in accordance with its opinion. It directed the trial court determine “the fee customarily charged in the locality for similar legal services” and to make specific findings regarding each attorney whose fees plaintiffs sought to recover. It warned that a conclusory statement that “the trial court has considered the factors and holds as follows. . .” without clearly setting forth a substantive analysis of the factors on the record is insufficient.

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In May v. Auto Club Insurance Assocation, No. 292649, the Michigan Court of Appeals reversed the probate court’s order that apportioned only $99.00 of a conservator’s fee of $6,816.70 to an insurance provider.  The Court held that under the MCL 500.3107(1)(a) of the No-Fault Act, the insurance provider was obligated to pay the entire fee for the conservator’s services as a reasonably necessary expense for the injured person’s care, because a conservator would not have been needed but for the injuries sustained in the automobile accident. Read more »

In The Huntington National Bank v Ristich, the Court of Appeals held “a defendant desiring to invoke the privilege against self-incrimination at the pleading stage of a civil action is not excused from filing a timely answer to the complaint, unless otherwise provided by law.” The Court affirmed that trial court’s denial of defendant’s motion to set aside default and grant of default judgment for plaintiff, because defendant failed to establish good cause and a meritorious defense.

Plaintiff Huntington National Bank and Defendant Ristich executed two loan agreements, one for $55,000 for a 2008 BMW and one for a personal line of credit for $25,000. According to plaintiff, defendant did not grant it a security interest in the BMW pursuant to the loan agreement and misrepresented his yearly income on his applications. Plaintiff filed the instant action alleging two counts of breach of contract and one count of fraud. Defendant, in pro per, failed to file an answer and instead moved for an evidentiary hearing and stay of proceedings. Defendant stated that he believed that the federal government was investigating him for “the same allegations” and that he was trying to protect his constitutional right to be free from self-incrimination by moving for the evidentiary hearing and to stay the proceedings. The trial court denied defendant’s motion and directed defendant to answer the complaint. The court instructed defendant to  answer  each  allegation specifically,  and  to  raise  the  privilege  against  self-incrimination  in  response  to  each  paragraph that he believed he could not answer.  Finally, the court instructed defendant to move the court in writing if he wished to set aside the default.

After entry of default, plaintiff moved for default judgment and an evidentiary hearing on damages. Defendant moved to set aside default arguing that letting the default judgment stand would result in a manifest injustice. He submitted an affidavit of meritorious defense which simply stated “I have a meritorious defense to Plaintiff’s complaint in that I dispute the amount of the debt owed.” The trial court denied defendant’s motion to set aside and entered default judgment, resulting in this appeal. Read more »

On April 26, 2011, the Court of Appeals decided Licavoli v Licavoli, No 295901.  There, the Court of Appeals held that a trial judge enforcing a divorce judgment may not attach property owned by jointly by the ex-husband and his new wife, but it may, in appropriate circumstances, place an income-withholding order on half of his salary. Read more »

Plaintiff had been unemployed for awhile and owed large amounts of child support. Plaintiff’s home in Flint, which was in foreclosure, was insured under a homeowner’s/fire insurance policy.  After a fire occurred in plaintiff’s home, the insurance company denied the claim because it suspected that plaintiff had a “guilty connection” to the fire.  The jury agreed, and returned a verdict of no cause of action on plaintiff’s suit for the insurance proceeds.  In Barr v Farm Bureau General Ins Co, No 293737, a per curiam opinion approved for publication after release, the Court of Appeals affirmed the trial court’s ruling to admit at trial the expert testimony of Lewis Draper, who the insurance company offered as an expert in the cause and origin of fires.  The Court of Appeals determined that the trial court had properly applied the standards of reliability for expert testimony under MRE 702, MCL 600.2955, and Daubert.  Draper’s methodology allegedly deviated from a guideline known as NFPA (National Fire Protection Association) 921, but the guide itself states that deviations are not necessarily wrong if they are justified.  Draper did not rely solely on visual interpretation, but instead used a scientific method to examine the structure and to identify the fire’s origin, and also eliminated other causes of the fire.