Sentence guidelines and statutorily enhanced sentences.

In People v Peltola, __ Mich __ (#140524, 6/14/2011) the Michigan Supreme Court held the scoring of the prior record variables (PRVs), when calculating a defendant’s recommended minimum sentence range under the statutory sentencing guidelines, remains proper when a defendant’s minimum and maximum sentences may be enhanced pursuant to MCL 333.7413(2).

In Peltola, supra the jury convicted defendant of delivery of less than 50 grams of heroin1 and conspiracy to deliver less than 50 grams of heroin. The trial court scored the PRVs and the relevant offense variables (OVs), calculating defendant’s minimum sentence range at 5 to 23 months in prison with a statutory maximum of 20 years. Because defendant had a prior conviction for a controlled substance offense, the trial court applied the sentence enhancement in MCL 333.7413(2) and doubled both the minimum and maximum sentences for each conviction.  Defendant was sentenced within the enhanced guidelines range to concurrent terms of 46 months to 40 years’ imprisonment.  On appeal the Supreme Court rejected defendant’s argument that PRVs should not be scored when calculating the minimum sentence range for an offender whose sentence may be enhanced under MCL 333.7413(2), notwithstanding language to the contrary in People v Lowe, 484 Mich 718 (2009).

Assumption of contractual obligations does not limit existing common-law or statutory tort duties.

In Loweke v Ann Arbor Ceiling & Partition Co, LLC, __ Mich __ (#141168, 6/6/2011) the Michigan Supreme Court held that a contracting party’s assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract.

In Loweke plaintiff, an employee of an electrical subcontractor, was injured at a construction site when several cement boards fell on him. The boards had been leaned against a wall by employees of defendant, a carpentry and drywall subcontractor, which, like plaintiff’s employer, had been hired by a general contractor to work on the construction project.

As this Court has historically recognized, a separate and distinct duty to support a cause of action in tort can arise by statute, Clark v Dalman, 379 Mich 251 (1967), or by a number of preexisting tort principles, including duties imposed because of a special relationship between the parties, see, e.g., Williams v Cunningham Drug Stores, Inc, 429 Mich 495 (1988), and Fultz v Union-Commerce Assoc, 470 Mich 460 (2004),, and the generally recognized common-law duty to use due care in undertakings, see, e.g., Clark, supra; Hart, 347 Mich at 564.  In summary, “[w]hether a particular defendant owes any duty at all to a particular plaintiff [in tort],” Fultz, 470 Mich at 467 (emphasis added), is generally determined without regard to the obligations contained within the contract, Davis, 568 F3d at 577.  See, also, Churchill v Howe, 186 Mich 107, 114; 152 NW 989 (1915) (explaining that although a tort can grow out of a contract, in general, a tort is a “wrong independent of a contract”). Accordingly, with the aforementioned principles in mind, we clarify that when engaging in the “separate and distinct mode of analysis” in Fultz’s analytical framework, see 470 Mich at 469-470, courts should not permit the contents of the contract to obscure the threshold question of whether any independent legal duty to the non contracting third party exists, the breach of which could result in tort liability. Instead, in determining whether the action arises in tort, and thus whether a separate and distinct duty independent of the contract exists, the operative question under Fultz is whether the defendant owed the plaintiff any legal duty that would support a cause of action in tort, including those duties that are imposed by law.  Under Fultz, a contracting party’s assumption of contractual obligations does not extinguish or limit separate, preexisting common-law or statutory tort duties owed to noncontracting third parties in the performance of a contract. Accordingly, we clarify that when engaging in Fultz’s “separate and distinct mode of analysis,” courts should not permit the contents of the contract to obscure the proper initial inquiry: whether, aside from the contract, the defendant owed any independent legal duty to the plaintiff. In this case, defendant—by performing an act under the contract—was not relieved of its preexisting common-law duty to use ordinary care in order to avoid physical harm to foreseeable persons and property in the execution of its undertakings. That duty, which is imposed by law, is separate and distinct from defendant’s contractual obligations with the general contractor.

Applying contract law to a property settlement agreement.

In Smith v Smith, __ Mich App __ (#295243, 5/26/2011) the Court of Appeals applied contract law to a property settlement agreement dividing IRAs thereby holding the parties to the written language in the agreement, notwithstanding any subsequent possible unfairness.   

When a court interprets a contract, the entire contract must be read together and construed as a whole. Duval v Aetna Casualty & Surety Co, 304 Mich 397, 401 (1943). All the parts must be harmonized as much as possible, and each word of the contract must be given effect, if possible. Id. Also, courts may not change or rewrite plain and unambiguous language in a contract under the guise of interpretation because “the parties must live by the words of their agreement.” Harbor Park Market, Inc v Gronda, 277 Mich App 126 (2007).  Property-settlement agreements, as a general rule, are final and cannot be modified. Zeer v Zeer, 179 Mich App 622, 624 (1989). It is well settled that property settlement agreements are enforceable and that a court is bound by the terms of the agreement in the absence of fraud, duress, mutual mistake, or severe stress. Keyser v Keyser, 182 Mich App 268, 269-270 (1990). Parol evidence is generally not admissible to vary or contradict the terms of a clear and unambiguous contract. Hamade v Sunoco, Inc, 271 Mich App 145, 166-167 (2006).

The terms in the retirement-accounts section of the PSA are clear. The parties used fixed values for all the retirement accounts. Defendant was to retain his IRA, and plaintiff was to retain all other retirement accounts. To equalize the value each was receiving, defendant was required to transfer approximately $1.4 million to plaintiff. Because the terms were unambiguous, the trial court was bound by them, Keyser, 182 Mich App at 269-270, and the parties were required to live up to the terms of their agreement, Harbor Park Market, Inc, 277 Mich App at 130-131.  Also, when looking at the PSA as a whole, there is no indication that the parties intended to take into account market fluctuations in dividing the retirement accounts. In the investment property section, the PSA indicates that the investment accounts would be “divided evenly in kind,” which arguably takes into account market fluctuations. There is no such language in the retirement-accounts section.

The unimaginable loss of a mother and child; killed in a motor vehicle accident.

A mother and grandmother speaks at sentencing following the tragic loss of a child and grandson.  No alcohol, no drugs, no reckless driving, no intent to hurt anyone; but two lives are forever lost because the driver of the other vehicle didn’t stop at the stop sign.

              I am Sara’s mother and Aiden’s grandmother.  We appreciate the chance to make a statement.  Max and I, and Adam and Laura, and Brandon and Harmony, now all face a life without Sara’s smile and the sound of her voice.  She was the creative one in our very straight line thinking family.  She gave our whole lives color.  We will never hear Aiden’s laughter again or hear him sing a song.  Aiden will forever be stuck in our minds as a three year old.  He was Peter Pan to Harmony’s Tinker Bell.  If he had lived to Halloween of this year, he would have been the frog to Harmony’s princess; a costume that Sara designed for her. 

     One night recently, I looked through pictures on the computer; Harmony came to stand beside me.  We looked at pictures of her and Aiden, and suddenly a picture of Sara came up.  Harmony touched the screen and said, “Mommy, mommy I miss you so much.  Would you please come back”?  There is no comfort for a five year old girl who just wants to feel her mother’s hug.  It is inevitable that her memories of Sara and Aiden will fade.  And this is very sad because Sara was a wonderful mother, and Aiden was a bright shining boy who loved his sister. 

     I tell you these things not to get sympathy, but so that you and everyone here knows that they were not faceless.  Should I have to put my grief on parade for you to know that--and everyone else to know that I am sad, it should be enough for me to say that our lives have changed forever.  Life without Sara and Aiden is our new reality.  Not one that we like, but we will live it because we have no other choice. 

     None of us can judge Mr. Troxell.  If you have ever driven while on the phone, or texting, or changing a CD, or eating French fries, or talking to your children in the back seat, or if you’ve been driving while you were tired, you were driving while you were distracted and your fate could be the same as Mr. Troxell’s.  Just as our lives changed forever on October 19^th, so did his.  While I know that accidents happen, and I believe that that’s what this was, I do not want to hear excuses, not from Mr. Troxell, and not from people who feel the need to defend him.  When you make a mistake, take responsibility for it.

     If roles had been reversed here today and Sara were alive and receiving probation, I would tell her this, “You are being given a second chance to do whatever you want with your life.  Use that second chance well”.  I forgive you, because Sara would want me to and because hating you, or not forgiving you, cost me more than it does you.

     Sara and I used to talk on the phone all the time, and I can’t tell you what I would give to see her name come up on my called ID, or to hear her voice just one more time.  I read this line in a book recently, which describes our house now, “The silence here is very loud”.

The rules regarding piercing the corporate veil.

In Florence Cement Co v Vettriano, __ Mich App __ (#295090, 5/3/2011) the Court of Appeals held that defendants used their corporation as a mere instrumentality for themselves as individuals, and did not treat the corporation as an entity separate from themselves.  Such a failure is a hallmark of a claim for piercing the corporate veil. Essentially, where members do not treat an artificial entity as separate from themselves, neither will the Court.

The rules regarding piercing the corporate veil are applicable in determining whether to pierce the corporate veil of a limited liability company Lakeview Commons Limited Partnership v Empower Yourself, LLC, ___ Mich App ___ (2010).  While “there is no single rule delineating when a corporate entity may be disregarded, the entire spectrum of relevant facts form the background for such an inquiry, and the facts are to be assessed in light of the corporation’s economic justification to determine if the corporate form has been abused.”  In order for a court to order a corporate veil to be pierced, the corporate entity (1) must be a mere instrumentality of another individual or entity, (2) must have been used to commit a wrong or fraud, and (3) there must have been an unjust injury or loss to the plaintiff Rymal v Baergen, 262 Mich App 274, 293-294 (2004) (internal citations omitted); see also RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678 (2008).

Separate Juries for Sexual delinquency cases not necessarily required

In People v Breidenbach, __ Mich __ (#140153, 4/28/2011) the Supreme Court held that the sexual delinquency statute, MCL 767.61a, neither explicitly nor implicitly requires that a separate jury determine the issue of sexual delinquency apart from the primary offense.  Separate jury trials under MCL 767.61a are discretionary, not mandatory. Should a trial court, in its discretion, determine that bifurcation is necessary in order to protect a defendant’s rights or ensure a fair determination of guilt or innocence, it may empanel separate juries.

The Michigan court rules contemplate that decisions regarding joint or severed trials for related charges lie firmly within the discretion of trial courts.  MCR 6.120(B) provides:  On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in [MCR 6.120(C)], the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant’s guilt or innocence of each offense.

(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on a) the same conduct or transaction, or b) a series of connected acts, or c) a series of acts constituting parts of a single scheme or plan.

(2) Other relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial.

This rule provides the proper framework for courts to analyze whether separate juries are required when sexual delinquency is charged in addition to a primary sexual offense. If “a fair determination of defendant’s guilt or innocence of each offense” would require separate juries, trial courts may order separate juries either sua sponte or on the motion of one of the parties.

The CSC requirement of Lifetime monitoring as it relates to a knowing, intelligent and understanding plea

In People v Cole, __ Mich App __ (Unpub, #298893, 3/15/2011) defendant plead no contest two counts of second-degree criminal sexual conduct (CSC 2^nd) under MCL 750.520c(1)(a) (child under 13 years of age) pursuant to a sentence agreement of a “five year cap on the minimum as to all charges” and concurrent sentences. Defendant was sentenced accordingly. 

However, MCL 750.520n required also that defendant, as a person convicted under section 520b or 520c for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age, be sentenced to lifetime electronic monitoring.

On appeal the Court of Appeals remanded the case to the trial court and ordered that defendant be afforded an opportunity to withdraw his plea of no contest to the two charges of CSC II because he was not advised of the lifetime electronic monitoring aspect of his sentence and thereby he cannot be held to have entered a knowing, intelligent, and understanding plea.  (The sentence to lifetime electronic monitoring was not included in the announced sentence agreement and thereby exceeded the Cobbs agreement.)

The key seems to be the statutory language referring to the electronic monitoring requirement as being part of the sentence.  MCL 750.520n characterizes lifetime electronic monitoring as a sentence. The electronic monitoring was thereby not a collateral consequence of the plea or sentence, but part of the sentence.

The Court of Appeals further stated “Moreover, being on a tether or subject to a comparable device is generally regarded as an alternative to jail or prison.” leaving for another day what effect the imposition of tether, SCRAM or electronic monitoring at the time of sentencing may have on sentence agreements.