One Court of Justice

In Michigan v. Meeks, No. 297030, the Michigan Court of Appeals affirmed the defendant’s sentence of one-and-a-half times the maximum statutory amount, holding that the trial court was correct in classifying a prior Indiana conviction, which was similar to a misdemeanor violation, as a felony due to a corresponding Michigan felony statute. Read more »

On June 17, 2011, the Michigan Supreme Court denied applications for leave to appeal in three cases.  The Court also granted oral argument on whether to grant the application or take other action in a case involving several issues under MCL 500.3106 of the insurance code related to the circumstances under which the insurance code applies to a parked vehicle.  The Court further granted oral argument on whether to grant the application or take other action in a medical-malpractice case and the question of whether MCL 600.2301 applies to cases initiated before the amendment of MCL 600.5856 in 2004.  The Court additionally considered an application for leave to appeal a sentence and, rather than grant leave to appeal, vacated the sentence and remanded for resentencing.

In Michigan AFSCME Council 25 and Local 3552 v. Woodhaven-Brownstone School District, No. 299945 (approved for publication on June 16, 2011), the Michigan Court of Appeals vacated the lower court’s decision enjoining the Woodhaven-Brownstone School District from subcontracting its custodial, facility maintenance, and transportation work while the union’s unfair labor practice charge was pending before the Michigan Employment Relations Commission (MERC).

Michigan AFSCME Council 25 and its affiliate, Local 3552, a labor union representing non-instructional employees of Woodhaven-Brownstone School District, filed an unfair labor practices charge with MERC.  While the charge in front of MERC was pending, the union filed an action to enjoin the school district from subcontracting the work of the union’s members.  The trial court granted the preliminary injunction.  The school district filed an application for leave to appeal to the Court of Appeals, which peremptorily reversed the trial court’s order.  The Michigan Supreme Court then vacated the Court of Appeals’ decision and remanded the case to the Court of Appeals for reconsideration.  On reconsideration, the Court of Appeals again reversed the trial court’s decision.

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In In re Vandalen, Nos. 301126, 301126,  the Michigan Court of Appeals affirmed an order terminating respondents’ parental rights to two minor children.  The Court rejected a challenge to the sufficiency of the evidence, and two due process challenges.  The children were diagnosed with multiple serious injuries, including brain damage and bone fractures, which were consistent with physical abuse and neglect.  Respondents claimed to have no knowledge of how the injuries were sustained. Read more »

On June 15, 2011, the Michigan Supreme Court granted the Governor’s request for an advisory opinion regarding the constitutionality of the reduction or elimination of tax exemption for pension incomes in 2011 PA 38.  In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, No. 143157.  Oral argument will be heard on Wednesday, September 7, 2011, at 9:30 a.m.  The questions submitted involve whether certain provisions of MCL 206.30, as amended, violate various constitutional provisions including Const 1963, art 9, §§ 7, 24; art 1, § 10; US Const, art I, § 10(1); or the Fourteenth Amendment of the United States Constitution.  The Court respectfully requested that the Attorney General submit separate briefs within 56 days of the date of the Order.  Persons or groups interested may move the Court for permission to file briefs amicus curiae on either or both sides of the submitted questions.

The Michigan Supreme Court granted the application for leave to appeal in McCue v O-N Minerals (Michigan) Co, No. 142287.  The parties are ordered to brief whether the Court of Appeals erred when it reversed the grant of summary disposition to the defendant by concluding: (1) that a reasonable trier of fact could find that the defendant owed a duty to the plaintiff because it had used the State highway in a way that either caused the defect at issue or increased the hazard of the defect; and (2) that the plaintiff stated a claim for public nuisance.

The Michigan Supreme Court considered the application for leave to appeal in Cedroni Associates, Inc v Tomblinson, Harburn Associates Architects & Planners, Inc, No. 142339, and directed the Clerk to schedule oral argument on whether to grant the application or take other action.  At oral argument, the parties are to address whether the Court of Appeals erred when it determined that there are genuine issues of material fact as to: (1) whether the plaintiff had a valid business expectancy, and (2) whether the defendant’s communications amounted to intentional and improper conduct sufficient to sustain a claim of tortious interference with a business expectancy.  The parties may file supplemental briefs within 42 days of the date of the Order.  The motion for leave to file brief amicus curiae was granted, and other persons or groups may move the Court for permission to file briefs amicus curiae.

The Michigan Supreme Court ordered that the application for leave to appeal in People v Yeakey, No. 142658, be held in abeyance pending the Michigan Supreme Court’s decisions in People v Pullen (No. 142751) and People v Watkins (No. 142031), which may resolve an issue raised in the application.

The Michigan Supreme Court denied four applications for leave to appeal, including in People v Jefferson, No. 141968, where the prosecuting attorney had previously been directed to answer the application.

On June 14, 2011, the Michigan Supreme Court decided People v Peltola, No. 140524.  In Peltola, the Court limited its prior ruling in People v Lowe, 484 Mich 718; 773 NW2d 1 (2009) and held that when calculating an offender’s minimum and maximum sentence range under the sentencing guidelines, the trial court should score the offender’s prior record variables (PRVs) when the sentence may be enhanced pursuant to MCL 333.7413(2).  Read more »

In People v Orlewicz, No. 285672, the Court of Appeals reversed the trial court’s order granting a new trial and affirmed the defendant’s convictions and sentences in charges arising from a murder.  The lower court had granted a new trial on the basis that the exclusion of psychiatric testimony pertaining to the defendant’s reasonable fear of imminent bodily harm denied the defendant effective assistance of counsel.  On appeal, the defendant argued that for various reasons he was deprived of his right to present a case and was denied effective assistance of counsel.

The Court of Appeals was “puzzled” by the trial court’s reliance on ineffective assistance of counsel when it granted a new trial, and found the exclusion of the psychiatrist’s testimony did not deny the defendant his right to present a defense.  In this case, the evidence was not relevant because it “cast no light whatsoever” on which version of events leading up to the murder were more likely.

The Court of Appeals also considered whether it was an error for the trial court to exclude evidence of the victim’s My Space page.  The court found that the My Space page should have been admitted because social networking websites are general reputation evidence rather than specific instances of conduct.  The court reasoned that social networking websites “must be deemed a gestalt and not simply a conglomerate of parts.”  However, the error in this case was harmless because the defendant was able to sufficiently testify about the contents of the page.  Read more »

In People v Johnson, No. 295664, the Court of Appeals affirmed Johnson’s conviction and sentence on charges of possession with intent to deliver marijuana and possession of a firearm during the commission of a felony.  First, the court found there was sufficient evidence to support constructive possession of the firearms when they were found in the corner of the front room of the house and Johnson admitted he had been selling drugs out of the house.  Second, the court did not find error in the trial court’s scoring of five points on the prior record variable of the sentencing guidelines.  The prior record variable measures the offender’s relationship with the criminal justice system.  Under the sentencing guidelines, five points may be scored on this variable if the offender was “on bond” at the time of the sentencing offense.  In this case, Johnson was charged with a misdemeanor and granted bond, but the bond was subsequently revoked when he failed to appear in court.  The charge was still pending when Johnson committed the sentencing offense.  The court concluded that because Johnson could not be classified as having “no relationship” with the criminal justice system, the trial court did not commit an error by scoring the prior record variable at five points.  Finally, the court held that Johnson’s counsel’s failure to object to the scoring of the pretrial variable did not amount to ineffective assistance of counsel.  There is a strong presumption that defense counsel’s actions were part of a sound trial strategy.  Johnson did not overcome this presumption because there was a basis for counsel’s not objecting to the score.

Judge Wilder concurred, and disagreed with the majority’s conclusion that Johnson was not “on bond” at the time of the sentencing offense.  Judge Wilder reasoned that a “bond” is the obligation or contract between the defendant and the court, and although Johnson forfeited the monetary portion of the bond, the underlying obligation to appear in court remained.

In Fifth Third Bank v. Canvasser, the Court of Appeals affirmed summary disposition in favor of the bank against a guarantor even though the bank did not foreclose on the underlying collateral before suing the guarantor.  Defendant Mark Canvasser guaranteed a several commercial loans for his real-estate development company.  The company defaulted.  Fifth Third sued Canvasser on his guaranties without first foreclosing on the underlying properties.  On appeal, Canvasser argued that by electing to pursue him under the guarantees without first foreclosing, Fifth Third failed to mitigate its damages.  The Court of Appeals rejected this argument, reasoning that “an absolute guaranty of payment does not require the creditor to exhaust its remedies against the borrower, including foreclosure on its collateral, before suing any guarantors.”  Moreover, the court concluded that electing one remedy as opposed to others is not a per se failure to mitigate.

Disclaimer:  Warner Norcross & Judd LLP represented the successful appellee, Fifth Third Bank, in this case.

In Woods v. JLG Industries, Inc., the Court of Appeals unanimously affirmed a $1.3 million jury verdict.  JLG raised numerous issues on appeal, including that the trial court should have granted rescission to JLG based on the jury’s verdict on its fraud counterclaim.  The Court of Appeals reasoned that rescission will only be granted if “the party requesting it is blameless.”  Here, JLG was seeking rescission to avoid the consequences of its own breach of contract.  Accordingly, the Court concluded JLG was not blameless and the trial court did not abuse its discretion.

Disclaimer:  Warner Norcross & Judd LLP represented the successful Appellee, Thomas Woods, in this case.