COA: Although not a “child”, a fetus is a “victim” for purposes of scoring OV 9 under Michigan Sentencing Guidelines

A court may count a fetus as a “victim” when scoring offense variable 9 (“OV 9”) of the Michigan Sentencing Guidelines, which accounts for the number of victims placed in danger of physical injury or death.  In People v. Ambrose, No. 327877, the Court of Appeals held that OV 9 allows a trial court to count as a “victim” “one that is acted on” by a defendant’s criminal conduct. Accordingly, a fetus may be counted as a “victim” for offense scoring purposes.  The court was careful to distinguish its decision from People v. Jones, which held that a fetus is not a “child” for purposes of the first-degree child abuse statute.  In this case, unlike in Jones, the court was not required to declare that a fetus is a “person” under the law.
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Good fences may make for good neighbors, but only if they aren’t built on the neighbor’s property, says COA

In the contentious easement dispute of Morse v. Colitti, No. 328212, the Court of Appeals reminds trial courts to keep in mind who owns the fee.  When Richard Morse complained that the Colittis had overburdened a lake access easement with a fence on his side of the easement, a dock on the lakeshore, and other structures, the trial court agreed that the dock must go, but left the fence in place only because it was “probably beneficial for the parties to keep that fence up.”  That may be so, said the Court of Appeals, but Mr. Morse owns the fee to the center of the walk, and the Colittis erected the fence on his side.  The court reversed for a determination of which portions of the fence violated that fee interest and whether the other structures overburdened the easement.  It also resurrected Mr. Morse's trespass and nuisance claims, clarifying that injunctive relief for trespass is not subject to a 3-year statute of limitation but remains viable for 15 years after the trespass occurs. Read More

COA: Dismissal of lawsuit for PIP benefits because of discovery violations bars related claims for insurance benefits brought by service providers

In Kevin Dawoud v State Farm Mutual Automobile Insurance Co, Nos. 327915 and 327927, the Court of Appeals affirmed the trial court's order granting summary disposition in favor of defendant, State Farm, and dismissed the consolidated appeal by Grace Transportation Inc. and Utica Physical Therapy (“the service providers”), on the grounds that their derivative claims were barred as a result of the fact that the injured insured's claim against State Farm had been dismissed because of the insured's discovery violations. Read More

COA: Bring more than $40 for a hearing on an abandoned vehicle

In a decision involving whether fees associated with towing and storage of an abandoned vehicle must be paid in addition to a $40 bond in order to obtain an abandoned vehicle hearing, the Court of Appeals relied on Legislative intent.  In Noll v Ritzer, No 328131, the Court of Appeals held the amendment of the statutory language by 2008 PA 539 indicated “the Legislature’s intent requiring the posting of a bond plus accrued towing and storage fees must accompany a request for a hearing under MCL 257.252a, unless the fees have already been paid (or bond posted).” Read More

COA holds that mere enforcement delay does not create a vested right to use property in violation of zoning regulations

Even after acquiescing to the unlawful commercial uses in a residential zone for several decades, the township can still shut down the business  for violating the zoning ordinance, according to the Court of Appeals decision in Charter Township of Lyon v. Petty and Charter Township of Lyon v. Hoskins, Case Nos. 327685 and 327686. Read More

COA holds that neither a party to litigation nor its representative is eligible to receive expert witness fee

An employee-owner of a party to litigation is not entitled to an expert witness fee when he is deposed by the opposing party, said the Michigan Court of Appeals in Spine Specialists of Michigan, P.C. v. State Farm Mutual Automobile Insurance Company, No. 327997. While a party (or employee of a party) with specialized knowledge may offer an expert opinion, Michigan’s court rules do not contemplate payment to a party offering an opinion on its own behalf. Read More

Making up for Lost Time: Lost Vacation Time is Lost Income under the Crime Victim’s Rights Act

Defendants must pay their victims for lost accumulated sick, personal, and vacation time, the Michigan Court of Appeals recently held. In People v. Turn, No. 327910, the court interpreted Michigan law to provide victims with restitution after taking off time from work to recover from injuries.
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Police Beware: Consent to search dwelling for illegal drugs is not consent to seize defendant's cell phone, wallet, and keys

In People v. Mahdi, No. 327767, the Court of Appeals held that the consent to search an apartment for the limited purpose of uncovering illegal drugs does not constitute consent to seize any item. Therefore, the seizure of defendant’s cell phone, wallet, and keys pursuant to the consent exception violated his Fourth Amendment protection against unreasonable searches and seizures. Accordingly, evidence regarding the items seized in violation of the Fourth Amendment should have been excluded at trial and defendant was entitled to a new trial. 
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MSC grants MOAA on whether the Public Service Commission has authority to enforce a settlement agreement

The Michigan Supreme Court has granted mini-oral argument on the question of whether the Michigan Public Service Commission’s (“MPSC”) authority is limited to what the Legislature dictates such that the MPSC exceeded its statutory authority under MCL 460.1089(6) in approving a settlement agreement reached with the Upper Peninsula Power Company.   Read More

COA: Parole Board retains discretion where Governor commutes sentence to permit parole but fails to explicitly grant parole

If the Governor wishes to commute a prison sentence and order release or immediate parole, the Governor must explicitly express such instruction in the commutation. In Makowski v. Governor, No. 327396, the Court of Appeals held that absent express instruction in the Governor’s commutation that grants parole or release, discretion regarding parole decisions remains with the parole board.  Consequently, although plaintiff’s commutation made him eligible for parole, it did not mandate parole. 
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