COA: trial court may only consider conduct occurring at the time of the criminal offense to score OV 7

In People v. Thompson, No. 318128, the Michigan Court of Appeals found that the trial court may only consider conduct occurring during the sentencing offense for purposes of scoring OV 7. Defendant Jackie Lamont Thompson pled no contest to one count of first-degree criminal sexual conduct (CSC 1), MCL 750.520b(1)(b)(ii) and was sentenced to a prison term of 15-40 years. Defendant challenges the scoring of offense variable (OV) 7 pursuant to MCL 777.37, claiming that the trial court improperly considered conduct outside of the sentencing offense in its 50-point assessment under OV 7. 
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COA: Under MCL 600.2912d(2), plaintiffs may file AOM within 28 days of medical malpractice complaint where delay is due to defendants’ assurances

In Castro v. Goulet, No. 316639, the Court of Appeals concluded that MCL 600.2912d(2) tolls the two-year statute of limitations for medical malpractice cases for plaintiffs to file the required affidavit of merit (“AOM”) within 28 days of the complaint, irrespective of when the underlying motion is granted.  In addition, the court concluded that plaintiffs demonstrated good cause where they delayed filing an action based on defendants’ assurances that plaintiff’s condition was temporary and would improve.  Judge Wilder dissented. Read More

COA re-affirms presumption that municipal utility rates are reasonable

The Michigan Court of Appeals in Trahey v. City of Inkster, Nos. 320161; 324564 held that (1) there is a presumption that rate increases to utility services by municipalities are reasonable, and (2) an increase in a utility bill after a change in a utility meter is acceptable so long as the municipality can provide evidence that the utilities charged were actually used by the consumer. Read More

COA concludes that exemplary damages are not available in suits for libel unless claimant seeks a retraction

In a case centered upon claims of defamation, the Court of Appeals has held that exemplary damages may not be recovered unless the claimant specifically requested a retraction of the alleged libelous remark, in conformance with MCL § 600.2911(2)(b).  In Hope-Jackson v. Washington, No. 319810, the Court of Appeals affirmed the decision of the trial court tolling the statute of limitations under MCL § 600.5855 and awarding $360,000 in damages under a theory of defamation per se but vacated the trial court’s award of $140,000 in exemplary damages as a finding of fact had been made that the claimant never sought a retraction of the defamatory remarks. Read More

COA holds there is no right to a limited medical license for individuals denied access to postgraduate residency program

Does an individual who has completed medical school in a foreign country and who has been denied entrance into a domestic residency program have the right to a limited license to practice medicine?  This is the issue the Court of Appeals considered in Murphy-Dubay v. Department of Licensing & Regulatory Affairs, Nos. 321380, 321749.  The Court held that under Michigan’s Public Health Code, MCL § 333.16182, there is no right to a limited license.  The Court further held that the limited license sought by plaintiff did not exist and that therefore he could not be said to have been “denied” a license and was not entitled to a hearing. Read More

COA: Jury must determine sentence for juvenile homicide offenders facing the possibility of life without parole

In People v. Skinner, No. 317892, the Michigan Court of Appeals held that where juvenile homicide offenders face the possible sentence of life in prison without the possibility of parole, the Sixth Amendment requires that their sentence must be determined by a jury. In doing so, the court held that MCL 769.25 violated the Sixth Amendment because it authorizes a judge to sentence a juvenile offender to life in prison without parole based on judicially-found facts. 
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COA finds that ESPN is entitled to names of MSU student-athletes named as suspects in University police incident reports

In ESPN, Inc. v. Michigan State University, No 326773, the Court of Appeals concluded that the privacy exemption of Michigan’s Freedom of Information Act (“FOIA”) was not applicable to the redacted names of Michigan State University (“MSU”) student-athletes listed as suspects in the incident reports that ESPN had requested.  As such, MSU must reveal the names of the student-athlete suspects. Read More

COA affirms custody, child support, and attorney fee decisions in custody battle

In Reimer v. Johnson, No. 321057, the parties, who had never been married, had a four-year-old child. The parties’ relationship began to deteriorate after their child was born, and the father filed a custody suit.  After a 19 day trial, the court awarded shared physical custody, joint legal custody, ordered the father to pay child support to the mother, and ordered the father to pay both his attorney fees and a portion of the mother’s.
 
On appeal, the Michigan Court of Appeals held that the trial court properly weighed the best interest factors contained in MCL 722.23, and properly found that both parents could care for the child and provide the child with love and affection. The court also held that the trial court did not err in providing for parenting time with the father to gradually increase over time. Since gradual changes are contemplated in the original order, the gradual changes do not constitute a modification or amendment that would require a change in circumstances. The Court of Appeals held that child support was properly calculated and the trial court did not err in excluding depreciation taken by the father’s LLCs, nor by declining to deviate downward from the guidelines. The court also affirmed the award of attorney’s fees, approving of the trial court’s method of creating a “war chest” of a total amount of attorney’s fees and dividing them between each party in proportion to their income. Read More

COA: Defendant is entitled to withdraw plea if court did not comply with MCR 6.610(E)(4)

In People v. Al-Shara, No. 320209, the Michigan Court of Appeals held that where a district court failed to comply with MCR 6.610(E)(4), by failing to confirm that the defendant understood the written waiver of rights executed pursuant to a nolo contender plea, the defendant was automatically entitled to withdraw his plea. 
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MSC Justice Mary Beth Kelly is stepping down

As reported by numerous media outlets, Michigan Supreme Court Justice Mary Beth Kelly is stepping down from her seat effective October 1, 2015, to return to private practice.  Governor Snyder will select her replacement, who must then run in the 2016 general election to retain the seat, and again in 2018 for a full, eight-year term. Read More
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