One Court of Justice

In Johnson v. Kwalski, the trial court abused its discretion by improperly excluding evidence that may have affected a witness’s credibility.  The case involved a medical malpractice claim based on the theory that a doctor left a patient, who later died, unattended and in serious condition while the doctor was called away to a new emergency.  At trial and in his deposition, another doctor claimed that, contrary to the plaintiff’s claim, the patient was in stable condition when the first doctor was called away, and she was not left unattended because he was at her bedside when her condition deteriorated.  In an attempt to impeach this testimony, the plaintiff’s counsel sought to admit the second doctor’s prior affidavit and correspondence between plaintiff’s counsel and the doctor’s insurance agent, both of which suggested that the second doctor was not with the patient when her condition deteriorated.  The trial court allowed plaintiff’s counsel to read the second doctor’s affidavit, but it did not allow counsel to admit the affidavit into evidence, nor did it allow counsel to discuss or admit into evidence the correspondence with the insurance agent.  The Court of Appeals held that the affidavit and correspondence were sufficient evidence for a jury to conclude that the second doctor’s testimony was inconsistent, which would have affected its determination of the second doctor’s credibility.  The Court went on to state that “so long as some rational jury could resolve the issue in favor of admissibility, the judge must let the jury weigh the disputed facts.”  Accordingly, the Court of Appeals reversed the trial court’s opinion and remanded for further proceedings.

The Michigan Supreme Court denied one prisoner’s motion to waive fees.

In Krueger v. Department of Treasury, the Michigan Court of Appeals considered the statute of limitations for filing an amended state tax return.  Two Michigan Taxpayers had filed federal refund claims in response to a ruling from the Supreme Court concerning changes to S corporation taxation.  Less than two years after the IRS approved the federal adjustments, the taxpayers filed amended state returns.  The Department of Treasury alleged that the statute of limitations had passed on the taxpayers’ state claims, reasoning that the four-year limitation period is not suspended for federal claims and that taxpayers must file state returns within 120 days of being granted a federal refund.  The Court of Appeals held that the Department of Treasury improperly interpreted MCL 205.27a, which should be correctly read as suspending the four-year limitation period pending a final determination of tax liability on federal claims and for an additional year thereafter.  Additionally, the Department of Treasury argued that another statute, MCL 206.325, requires the loss of the right to file a claim if the amended return is not filed within 120 days, regardless of the four-year limitation period.  However, the Court said that this interpretation was irreconcilable with MCL 205.27a and instead held that the statute should be viewed as a “mere filing requirement” and not as a separate statute of limitations.  Accordingly, the Court held that although the taxpayers could face penalties for failing to file their amended returns within 120 days, they could not have their claims barred outright because the claims were filed within the statute of limitations. 

In State v. Sanders, the defendant appealed the imposition of $1,000 in court costs, claiming that the trial court abused its discretion in imposing the cost because the court had shown no factual basis for the amount of the costs. The Michigan Court of Appeals disagreed with the defendant and held that a trial court can impose reasonable costs without needing to show the exact amount of the costs incurred in a particular case. The Court reasoned that costs do not need to be particularized under the statute since the Legislature takes a flat fee approach to costs and did not require a precise determination of costs under the statute.

In Buhalis v. Trinity Continuing Care Services, the plaintiff slipped and fell on ice after parking her bike on the defendant’s outdoor patio, which was not shoveled. Adjacent to the patio was a walkway that was clear of snow and ice and lead to the main entrance of the nursing home. The Court held that a premise possessor does not have the duty to warn an invitee, such as the plaintiff, if the danger is known to the invitee or so obvious it would be reasonable for the invitee to discover it. The Court then determined that the plaintiff should have been aware that there would be ice because she knew that it had rained and snowed the previous night and she had extensive knowledge of Michigan winters having lived through eighty-five of them. Additionally, the Court found that there was no question as to whether the defendant had taken reasonable care because the defendant had removed the snow on the main walkway and on all sidewalks around the building, the only reason the plaintiff encountered slippery conditions was because she chose to park her bike on the seasonal patio. Accordingly, the Court held that where “a premise possessor provides a clear means of ingress and egress and the invitee strays off the normal pathway onto an area that is obviously not reserved for that purpose, the landowner has not breached a duty of ‘reasonable care.”

Judge Kelley authored a dissent, and would hold that there was a genuine issue of fact with respect to whether the plaintiff was invited onto the patio, and whether the ice was open and obvious.

In People v. Cole, Case No. 143046, a unanimous Supreme Court held that mandatory lifetime electronic monitoring for defendants convicted of criminal sexual conduct in the first or second degree is a part of the defendant’s sentence and thus a direct consequence of his or her plea.  Accordingly, due process and MCR 6.302 require that the defendant be informed of this lifetime electronic monitoring when he or she enters a guilty or no contest plea.  The Court declined to decide whether a trial court must include mandatory lifetime electronic monitoring in the sentence evaluation under People v. Cobbs.  Because the trial court failed to warn Mr. Cole at his plea hearing that he would be subject to mandatory lifetime electronic monitoring following his term of imprisonment, the judgment of the Court of Appeals was affirmed and Mr. Cole’s case was remanded to the trial court to allow the defendant the opportunity to withdraw his plea. Read more »

On Friday, May 25, 2012 the Michigan Supreme Court dismissed one case on stipulation of the parties, denied one motion for bypass, and denied two applications for leave to appeal.  The Court also remanded People v. Cortez, Case No. 144302, to the Court of Appeals after vacating the portion of the lower court’s opinion which held that defendant’s Fifth Amendment rights were not violated when police questioned him without providing Miranda warnings.  The Court remanded the matter to the Court of Appeals for reconsideration of this issue in light of the United States Supreme Court’s recent holding in Howe v. Fields, __ U.S. __; 132 S.Ct. 1181 (2012).

Finally, the Court vacated its October 26, 2011 order which had granted application for leave to appeal in In re Mortimore Estate, Case No. 143307. After reviewing the briefing and hearing oral argument from the parties, the Court determined that the questions presented no longer needed to be reviewed.  Mortimore concerns the burden of proof needed to rebut a presumption of undue influence in a will contest proceeding.  The Court of Appeals opinion concluded that the proponent of the will bears the burden of overcoming the presumption of undue influence.  Justice Young, joined by Justices Markman and Mary Beth Kelly, dissented from this May 25, 2012 order.  In the dissent, Justice Young notes that he would have granted the application for leave to appeal and vacated the Court of Appeals opinion clarifying that the burden of proof in an undue influence should rest with the contestant of the will.  Justice Young also wrote that the proponent of the will should only need to introduce “substantial evidence” sufficient to create a question of fact concerning undue influence.  The trier of fact would then consider all of the evidence, and all reasonable inferences flowing from that evidence, to determine if undue influence occurred.

 In People v Buie, the Michigan Supreme Court held that expert testimony by two-way video did not violate the defendant’s right of confrontation because the defendant’s counsel waived that right.  In so holding, the Court emphasized that failure to object on record is equivalent of waiver and counsel’s decision to waive is presumed to be a reasonable trial strategy. Read more »

In People v. Comella, the defendant was convicted of first-degree felony murder, which is defined in MCL 750.316(1)(b) as “[m]urder committed in the perpetration of . . . vulnerable adult abuse in the first and second degree . . . .” (emphasis added).  The defendant was convicted of felony murder with second-degree vulnerable adult abuse as the underlying felony.  The defendant urged the Michigan Court of Appeals to apply a literal reading of the statute, which would have required prosecutors to prove both first-degree and second-degree vulnerable adult abuse.  The court noted that the inaccurate use of “and” and “or” have “infected” statutes.  The court determined that a literal reading would render the statute dubious, because proof of both crimes through the same act would be paradoxical.  First-degree vulnerable adult abuse requires the intent to cause serious harm, whereas second-degree vulnerable adult abuse only requires recklessness, which means being “utterly unconcerned about consequences.”  The court concluded that a “defendant cannot be utterly unconcerned about whether or not his attack will result in serious harm while at the same time intending to cause serious harm.”

In People v Kloosterman, the Court of Appeals considered whether a man who made fraudulent returns at Home Depot and sold the goods on Craigslist was guilty of conducting a criminal enterprise (racketeering) under a Michigan statute.  The statute forbids a person who is “employed by or associated with” a criminal enterprise from participating in the criminal enterprise “through a pattern of racketeering activity.”  The Court of Appeals held that the defendant was not guilty under the statute because the plain language of the statute requires a criminal enterprise that is separate and distinct from the defendant.  The Court of Appeals reasoned that to be “employed by or associated with” a criminal enterprise requires at least two separate and distinct entities.  In this case, the prosecution failed to prove that the defendant was employed by or associated with any separate or distinct entity.  Accordingly, his conviction under the statute was reversed.