CSC and the requirement of a relationship by blood (birth).

In People v Zajaczkowski, __ Mich __ (#143736, 12/19/2012) the Michigan Supreme Court held that a defendant cannot be convicted of CSC 1^st under MCL 750.520b(1)(b)(ii) if the defendant is not related to the victim by blood.  Under MCL 750.520b(1)(b)(ii) the prosecution is required to prove: (1) sexual penetration, (2) a victim who is at least 13 years old but less than 16 years old, and (3) a relationship by blood or affinity to the fourth degree between the victim and the defendant.

A relationship by “blood” is defined as “a relationship between persons arising by descent from a common ancestor” or a relationship “by birth rather than by marriage.” In that regards the civil presumption of legitimacy in domestic related matters cannot be substituted for a blood relationship in order to fulfill this element of the crime charged.

The Court acknowledged the concerns by the prosecution that this interpretation will result in unintended consequences regarding adopted children because if the blood relationship element can only be established through a biological relationship, then a sexual penetration committed by a member of an adoptive family against an adopted minor child may not be punishable under MCL 750.520b(1)(b)(ii). However, such policy concerns are best left to the Legislature to address. It is this Court’s duty to enforce the clear statutory language that the Legislature has chosen.

Sentences for contempt of court are not necessarily consecutive.

In People v Veilleux, __ Mich __ (#145142, 12/18/2012) the Michigan Supreme Court reversed the judgment of the Court of Appeals and ordered the trial court to strike the provisions of the Judgment of sentence that made the sentences for contempt consecutive to each other and consecutive to defendant’s sentence for the underlying felony.

“A consecutive sentence may be imposed only if specifically authorized by statute.” People v Lee, 233 Mich App 403, 405 (1999). Contrary to the lower courts’ holdings, MCL 768.7a(1) does not specifically authorize the consecutive sentences imposed here. MCL 768.7a(1) only applies to “[a] person who is incarcerated in a penal or reformatory institution in this state, or who escapes from such an institution.” When defendant committed the contempts of court at issue here, he was not at the time incarcerated in a penal or reformatory institution and he was not an escapee.

Court ordered funds for a DNA expert witness.

In People v Webb, ___ Mich ___ (#145969, 12/12/2012) the Michigan Supreme Court held that the trial court’s failure to appoint a DNA expert witness deprived the defendant of an opportunity to present a defense to the charged crimes. On remand, the trial court shall provide funds sufficient to permit the defendant to obtain independent DNA testing. Testing shall proceed forthwith, and the results shall be provided to both parties as soon as reasonably possible. Within 56 days of receiving the test results, the defendant may seek further relief, if appropriate, in the trial court.

Failure to timely file a Response to a Motion for summary disposition.

In Citibank, NA v Renner, Unpub Opinion, Per Curiam (#308841, 11/27/2012) the Court of Appeals affirmed the trial court’s Order of dismissal, in part, because of plaintiff’s failure to timely file a brief in opposition to defendants’ Motion for summary disposition.

In Citibank plaintiff filed a complaint against defendants to enforce a promissory note. Defendants moved for summary disposition under MCR 2.116(C)(5), (C)(8), and (C)(10), on the basis that plaintiff did not have standing because it was not a party in interest. The trial court scheduled oral arguments for the motion for December 22, 2011. Two days before the motion hearing, the trial court had not received plaintiff’s response. (Plaintiff maintains it mailed the response on December 16, 2011, and attached to it was paperwork showing plaintiff purchased defendants’ mortgage and note and, therefore, had standing to bring suit.) On December 22, 2011, the trial court granted defendants’ motion for summary disposition and cancelled oral arguments on the motion. Plaintiff then filed a motion for reconsideration, asking the trial court to consider the documents showing plaintiff, in fact, had standing to bring suit. The trial court denied plaintiff’s motion.

A trial court should grant a summary disposition motion under MCR 2.116(C)(10) when there is no genuine question of material fact and the movant is entitled to a judgment as a matter of law. MCR 2.116(C)(10). “Once the moving party has supported its position by documentary evidence, the burden shifts to the opposing party to set forth specific facts showing that a genuine issue of material fact exists. If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, summary disposition may properly be granted.” Abbott v John E Green Co, 233 Mich App 194, 197-198 (1998).

The Michigan Court Rules require a party to file its response to a motion for summary disposition at least seven days before the hearing on the motion. MCR 2.116(G)(1)(a)(ii). A document is not considered filed until it is delivered to the clerk of the court or to the judge. MCR 2.107(G); Biafore v Baker, 119 Mich App 667, 669 (1982). The trial court is not required to consider a response that was not timely filed. EDI Holdings, LLC v Lear Corp, 469 Mich 1021 (2004). Here, plaintiff plainly did not comply with the rule requiring responses be filed at least seven days before the hearing. The trial court, therefore, acted within its discretion in refusing to consider plaintiff’s untimely response. EDI Holdings, LLC, 469 Mich at 1021. Because plaintiff did not respond to the motion, it did not raise any genuine issue of material fact. MCR 2.116(G)(4) specifically requires a nonmovant to support its position with documentary evidence instead of resting on the allegations and denials in its pleadings. Therefore, defendants were entitled to judgment as a matter of law, and summary disposition was proper because defendants’ undisputed documentary evidence established that plaintiff did not have the right to enforce the note. MCL 440.3301.

Plaintiff argues, however, that the trial court erred in dispensing with oral arguments, and that it could have presented its case at argument instead of filing a brief. A trial court has the discretion to dispense with oral arguments on a motion. MCR 2.119(E)(3). A trial court does not abuse that discretion when it dispenses with oral arguments, even if one party fails to respond to a motion, if it is fairly apprised of the issues that need to be decided. Fisher, 269 Mich App at 252. Here, the trial court was apprised of all the issues because “[w]ithout [plaintiff’s] argument, [defendants’] position required no further elaboration.” Id.  

Plaintiff argues that the trial court erred in dispensing with oral arguments because, per MCR 2.119(E)(4), a party can file a response or appear at the motion hearing, and therefore, plaintiff did not have to file a response and could have appeared at oral arguments instead. “[I]t is a settled rule of statutory construction that where a statute contains a specific statutory provision and a related, but more general, provision, the specific one controls.” In re Haley, 476 Mich 80, 198 (2006). [“[T]he rules governing the interpretation of statutes apply with equal force to the interpretation of court rules.” Colista v Thomas, 241 Mich App 529, 535 (2000).] Even if MCR 2.119(E)(4) could be read to support plaintiff’s contention that it could forgo filing a response and instead only appear at oral arguments, MCR 2.116(G)(4) specifically requires a party to oppose a (C)(10) motion with affidavits or other documentary evidence, and that rule controls.

Plaintiff argues that the trial court erred in denying its motion for reconsideration. To warrant reconsideration, a moving party “must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.” MCR 2.119(F)(3). Here, plaintiff has failed to demonstrate any error made by the trial court. It simply wishes the trial court to reconsider its decision to not consider plaintiff’s untimely brief. Therefore, the trial court did not err in denying plaintiff’s motion for reconsideration.

Update on Oral Argument in U.S. Airways, Inc. v. McCutchen, Guest blog by Emily Hootkins (Hoort)

December 10, 2012 | Posted by Emily Catherine Hootkins |

On November 27, 2012, the Supreme Court heard oral argument in US Airways, Inc. v. McCutchen. The question presented before the Supreme Court was “whether. . . Section 502(a)(3) of the Employee Retirement Income Security Act (ERISA) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.” Despite the specificity of this question, the topics considered during oral argument were far-reaching and suggest that the Supreme Court’s eventual opinion may also stray from answering the narrow question presented.

Appearing on behalf of Petitioner US Airways, Inc., in its capacity as fiduciary and plan administrator of the US Airways, Inc. Employee Benefits Plan, was Neal Kumar Katyal. Mr. Katyal argued that “because the plan’s claim here is one for an equitable lien by agreement . . . equitable defenses . . . offer no help to Respondents.” (Official Transcript – Subject to Final Review (“Transcript) at 4:16-19.) Justice Sotomayor quickly jumped in with the first question, asking “if you go to equity, why aren’t you bound by equity?,” to which Mr. Katyal responded “the rules in equity say that it is the agreement that controls . . . when we’re talking about an equitable lien by agreement.” (Transcript at 4:20-12 and 6:5-8.)

Shortly after Mr. Katyal’s overview of Petitioner’s position, argument was diverted into a discussion of the adequacy of the plan’s reimbursement language. Apparently, during lower court proceedings, the parties cited to and relied upon the Summary Plan Description, rather than the plan itself. Justices Ginsburg, Kennedy and Sotomayor pressed Mr. Katyal to identify controlling plan language. Mr. Katyal responded that Plaintiffs had waived any argument regarding the sufficiency of the plan language, and had even conceded in their brief that the plan language was clear. Justice Scalia supported attempts to gloss over this side argument, asking “I didn’t think we took this case to review the plan. . . . had that point been raised, we would not have taken the case.” (Transcript at 10:10-16.) However, the other Justices attention to this issue raises a real possibility that the Court will revisit its discussion in CIGNA v. Amara regarding the supremacy of plan language in comparison to language in a summary plan description. Of particular interest would be a confirmation for the benefits community that language in a summary plan description can rightfully be given controlling weight if (as in this case) there is no conflicting plan language.

Assistant to the Solicitor General Joseph Palmore argued on behalf of the United States, as amicus curiae. In supporting its position that the common fund doctrine should be considered, Mr. Palmore argued that “a plan can’t add to or subtract from the powers of the court in equity under Section 502(a)(3).” (Transcript at 30:1-3.) He further advocated the position of the United States “strikes the right balance and in particular it avoids the negative recovery scenario that is a particularly harsh result of Petitioner’s position.” (Transcript at 33:2-4.) Chief Justice Roberts pointedly criticized Mr. Palmore for disingenuity in the amicus brief describing the Secretary of Labor’s change from its prior position as based on “further reflection.” (Transcript at 31:20.) Chief Justice Roberts admonished, “It wasn’t further reflection. We have a new secretary now, under a new administration, right?” (Transcript at 31:21-23.)

Arguing on behalf of McCutchen/Respondents was Matthew W.H. Wessler. Mr. Wessler advocated, “in our view, when an insurer sought to enforce through an equitable lien by agreement a claim or a lien on a fund, it must agree to take that relief subject to the way equity would have treated the claim.” (Transcript at 46:1-5.) Thus, Mr. Wessler argued that the plan’s reimbursement should be limited by the common fund doctrine, which would reduce the plan’s claim on the fund by the lien for attorney’s fees expended in securing the fund. Some of the Justices pushed back on this idea, with Justice Ginsburg asking “[w]hy is the plan unjustly enriched by receiving exactly what the plan entitles it to receive?” and Justice Breyer asking “it’s just your lawyer who’s going to come at the end of the queue, okay? What’s – why is that unfair? (Transcript at 40:20-21 and 42:25-43:1-2.)

In sum, oral argument shed some light on the Supreme Court’s current thoughts on McCutchen, while leaving much answered. The ERISA community will now have to sit back and wait to see whether the Supreme Court will resolve the question of whether “equitable defenses” can trump express plan language to limit a plan’s recovery under § 502(a)(3). It will also be interesting to see whether the Court’s eventual opinion revisits a discussion of Amara and the supremacy of plan language.

To see the transcript from the oral argument, click here.

Sanctions for signature by an attorney who is not an attorney of record.

In Thorne v Thorne, Unpub Per Curiam Opinion (#308382, 11/15/2012) the Court of Appeals affirmed the trial court’s order awarding attorney fees to the plaintiff as a sanction for a non attorney of record signing a subpoena for the defendant's attorney of record without including language ‘for’ or ‘with permission’ in violation of MCR 2.114.

MCR 2.114 requires that every document of a party represented by an attorney shall be signed by at least one attorney of record. A party who is not represented by an attorney must sign the document.  If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees. The court may not assess punitive damages.  In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2). The court may not assess punitive damages.

Under the circumstances of this case, the Court of Appeals could not say that the trial court clearly erred when it found that the one attorney’s act of signing her own name and not indicating that her signature was made “for” or “with permission of” the attorney of record was more than a mere clerical error. “Clerical error” can be defined as, “An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.”  In that MCR 2.114, by its plain language requires the pleading to be signed by the attorney of record, an act of certifying the document by an attorney who was not an attorney of record is not a clerical error because the non attorney of record clearly did not inadvertently or mistakenly sign the subpoena.

MCR 2.116(3)(a) provides that a pleading, appearance, motion, or other paper filed by a law firm on behalf of a client is deemed the appearance of the individual attorney first filing a paper in the action.  Subsection (b) provides that the appearance of an attorney is deemed to be the appearance of every member of the law firm.  Any attorney in the firm may be required by the court to conduct a court ordered conference or trial.

Destruction of evidence (Spoliation) allowing for an inference/presumption

In Doko v Jablonowski & AAA of Michigan, Unpub Per Curiam Opinion, (#306082, 11/15/2012) the Court of Appeals held that the trial court did not err by failing to conclude that AAA intentionally renewed an insurance policy with knowledge of the policy holder’s death. However, AAA should have preserved any files related to the 2003-2004 policy, rather than allow them to be purged from its computers after six years. AAA’s own record retention policy allowed for a “litigation hold” to be placed on information when it was informed of pending litigation. The underwriting files, if any, should not have been purged.

MCR 2.313(B) permits a trial court to impose sanctions for failure to comply with a discovery order. The court rule is inapplicable “in the absence of a discovery order.” Brenner v Kolk, 226 Mich App 149, 159 (1997). Nonetheless, “[a] trial court has the authority, derived from its inherent powers, to sanction a party for failing to preserve evidence that it knows or should know is relevant before litigation is commenced.” Bloemendaal v Town & Country Sports Ctr, Inc, 255 Mich App 207, 211; 659 NW2d 684 (2002), citing MASB-SEG Property/Casualty Pool, Inc, 231 Mich App at 400.

Spoliation can occur in the absence of a discovery order. Brenner, 226 Mich App at 160. Spoliation of evidence occurs when a party either deliberately or accidentally destroys or loses crucial evidence, or when a party fails to preserve such evidence when it is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action. Id. The litigant is under such a duty “[e]ven when an action has not been commenced and there is only a potential for litigation[.]” Id. at 162.

An appropriate consequence for a party’s failure to preserve evidence may be “an instruction to the jury that it may draw an inference adverse to the culpable party from the absence of the evidence.” Brenner, 226 Mich App at 161. There is, however, a procedural and substantive difference between the drawing of an inference and a presumption in favor of the aggrieved party.

The presumption that unproduced evidence would have been adverse can be applied only “where there is evidence of intentional fraudulent conduct and intentional destruction of evidence.” Lagalo v Allied Corp, 233 Mich App 514, 520 (1999). An adverse presumption, if unrebutted, requires the fact finder to “conclude that the unproduced evidence would have been adverse.” Id. at 521. An adverse inference, by contrast, merely permits the fact finder to conclude that the unproduced evidence would have been adverse, the fact-finder is still “free to decide for itself.” Id. at 521.