COA finds supplying materials to a methamphetamine producer is not “using a weapon” under OVs 1 and 2

In People v. Gary, the Court of Appeals determined the trial court improperly scored offense variables (“OVs”) 1 and 2, where the defendant had supplied his co-conspirator with fuel and batteries necessary for producing methamphetamine.  Here, Gary agreed to purchase materials for the production of methamphetamine for Michael Shearer in exchange for some of the methamphetamine.  After Shearer began making the methamphetamine there was an explosion and Shearer was injured.  Gary pled guilty to “operating or maintaining a methamphetamine lab” under MCL 333.7401c(2)(a).  The trial court scored 20 points under OV 1 for “aggravated use of a weapon” when “[t]he victim was subjected to or exposed to a . . . harmful chemical substance . . . or explosive device.”  The court also scored 15 points under OV 2 for the “lethal potential of the weapon possessed or used.”  Because there was no indication that Gary caused the explosion, or intended to cause an explosion, the court determined that OV 1 and 2 did not apply.  Accordingly, the court vacated the defendant’s sentence and remanded the case for resentencing. 
The Court of Appeals, relying on People v Ball, 297 Mich App 121, 122; 823 NW2d 150 (2012) and People v Lutz, __ Mich __; 836 NW2d 680 (2013), found neither offense variable applied.  The court reasoned that Gary did possess “harmful substances” (i.e., lithium batteries and Coleman fuel), and their use in the methamphetamine lab did create an “explosive device.”  However, as in Ball, Gary did not use the batteries or fuel as a weapon.  There was no indication that Gary attacked Shearer or intended to cause an explosion.  That is, “[i]nvolvement in, or exposure to, a methamphetamine lab or its constituent parts, even if an explosion occurs, without more, does not constitute the use of a weapon.”  Moreover, the court reasoned, the facts of the instant case were very similar to Lutz in which the supreme court determined that the trial court should have scored zero points for OV 1 when the defendant’s methamphetamine lab burned his apartment building.  The court then stated that OV 2 similarly did not apply as Gary’s “crime did not involve the use of a weapon.”  Therefore, as Gary did not use the batteries or fuel as weapons the trial court incorrectly scored both OV 1 and 2.
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COA holds that breach-of-trust claims, regardless of how they are styled, are barred by the limitations period applicable to breach-of-trust claims

In Ducharme v Ducharme, the Michigan Court of Appeals held that breach-of-trust claims styled as tort claims are barred by one-year statute of limitations applicable to breach-of-trust claims. Further, a beneficiary’s letter questioning the trustee’s annual report may be a basis for showing the beneficiary had notice of potential claims. Read More

MSC holds that a claim for breach of an indemnity provision of a contract accrues separately from a claim for breach of the underlying contract

In Miller-Davis Co. v. Aherns Construction, Inc., the Michigan Supreme Court found that a general contractor's contractual indemnity claim against a subcontractor was not time barred even though the subcontractor's faulty construction took place more than six years before the contractor filed its suit.  The Court concluded that even though the contractor's claim that the faulty construction itself breached the parties' contract was barred by the applicable six year limitations period, the contractor's claim that subcontractor had breached the indemnity provisions of that contract was an independent claim that accrued separately.  Specifically, the Court held that the indemnity claim necessarily accrued after the subcontractor's breach of performing work to applicable specifications.  Indeed, the Court concluded that there could not have been a claim by the owner against the general contractor that would have triggered the subcontractor's indemnity obligation until the non-conforming work was discovered in February 2003, only about two years before the suit was filed.  Thus, the breach of the indemnity obligation was timely.  Additionally, based upon evidence that the general contractor had agreed with the owner to perform corrective work, the Court concluded that the owner had made a claim against the general contractor which triggered the subcontractor's indemnity obligations under the contract.  Finally, the Court concluded that the general contractor's indemnity claim did not need to establish that the nonconforming work caused the owner's moisture problems.  Instead, the general contractor merely needed to prove that incurred losses because of the subcontractor's failure to indemnify for the corrective work.    Read More

COA finds workers’ compensation hearings must be held in same locality as injury under plain language of statute

In Younkin v. Zimmer, the Court of Appeals upheld the trial court’s writ of mandamus ordering the Michigan Administrative Hearing System and Michigan Department of Licensing and Regulatory Affairs (LARA) to hold workers’ compensation hearings in the locality in which the injury occurred.  The court determined that the plain language of MCL 418.851 limited the geographic area in which the agencies could hold hearings.
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Individual Plaintiff requesting child support did not need to personally attend hearing for entry of a default judgment

In Macomb County v. Anderson, the Court of Appeals held that the mother of a minor child, who was seeking child support for that child, did not need to personally appear at a hearing for the entry of a default judgment for support against the alleged father.  In doing so, the Court of Appeals reversed the trial court's denial of a motion for default judgment and subsequent denial of a motion for reconsideration.  The Court of Appeals determined that there was nothing in the statute that required the custodial parent's presence at such a hearing and that the statute allowed the prosecuting attorney to act the attorney for the petitioner in support actions.   The Court reasoned that requiring the presence of the custodial parent would undermine the ability of the state to represent the public interest and seek support, even where the custodial parent was uncooperative.  Further, because the father had not responded to a verified complaint there were no issues, such as custody, in dispute where the custodial parent's presence would be required to resolve.        Read More
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