Challenge to the constitutionality of 2012 PA 396, an amendment to the Downtown Development Authority Act (DDAA) (MCL 125.1651 et seq.); Requirement that the appropriation of public funds for local or private purposes be approved by 2/3 of both houses of the Legislature; Const. 1963, art. 4, § 30; The notice & verification requirements; MCL 600.6431; Fairley v. Department of Corrs.; Court of Claims jurisdiction; MCL 600.6419(1)(a); Extension to suits against state officers where the officer was acting in an official capacity when committing the acts complained of; Carlton v. Department of Corrs.; Principle that the Legislature may impose reasonable procedural requirements (such as a limitations period) on a plaintiff’s available remedies even when those remedies pertain to alleged constitutional violations; MCL 600.6431(1); Rusha v. Department of Corrs.; McCahan v. Brennan; Claim accrual; MCL 600.5827

The court held that the trial court properly granted summary disposition for defendant-Governor Rick Snyder in the plaintiff-citizen’s action alleging that an amendment to the DDAA was unconstitutional. Plaintiff claimed the amendment, which allowed for the authorization and funding of the Detroit Events Center, a development project that includes the new Detroit Red Wings hockey arena, failed to pass with the constitutionally mandated 2/3 vote of the House and was thus, null and void. The trial court granted summary disposition for defendant, finding that because plaintiff failed to comply with the notice filing requirements, MCL 600.6431 precluded him from maintaining his action. On appeal, the court concluded that “the alleged wrong occurred—and plaintiff’s claim accrued—on” the date defendant signed the amendment and it became effective - 12/19/12. However, plaintiff “did not file a claim until” 5/26/15, “more than two years later.” Further, his “complaint was not verified.” Thus, “plaintiff’s claim against defendant is barred because he did not comply with the requirements of” MCL 600.6431. Affirmed.

Dispute arising from a construction project; Professional negligence; Duty; Fultz v. Union-Commerce Assoc.; Loweke v. Ann Arbor Ceiling & Partition Co.; Whether the plaintiff alleged breach of a duty separate & distinct from defendant-Neyer, Tiseo & Hindo Ltd.’s (NTH) contractual obligations; Rinaldo’s Constr. Corp. v. Michigan Bell Tel. Co.; Negligent misrepresentation; Roberts v. Safell; Restatement Torts, 2d, § 552(2)(a); Law Offices of Lawrence J Stockler, PC v. Rose; Proximate cause; Helmus v. Department of Transp.; Effect of an exculpatory clause; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Detroit Pub. Schs. v. Conn; Defamation; Smith v. Anonymous Joint Enter.; Privilege; Prysak v. RL Polk Co.; Waiver; National Waterworks, Inc. v. International Fid. & Sur., Ltd.; Tortious interference with a contract; Lawsuit Fin., LLC v. Curry; Corporate agents; Reed v. Michigan Metro. Girl Scout Council; Damages; Lost profits; Interpretation of a “differing site conditions” clause; Contractual limitation on “claims”; Collateral estoppel; Monat v. State Farm Ins. Co.; Effect of an arbitration award; Porter v. Royal Oak; Ditmore v. Michalik; Differences between contract & tort damages; Gorman v. American Honda Motor Co., Inc.; Kewin v. Massachusetts Mut. Life Ins. Co.; Whether plaintiff had standing to recover on behalf of another corporate entity; Real party in interest; Michigan Nat’l Bank v. Mudgett; Respecting separate corporate entities; Seasword v. Hilti, Inc.; Distinguishing Mars, Inc. v. Coin Acceptors, Inc. (Fed. Cir.); Applicability of the “common control” doctrine; Brown v. Astro Holdings, Inc. (ED PA)

The court held that the plaintiff’s professional negligence claim failed because it did not allege a breach of any recognized duty separate and distinct from defendant-NTH’s contractual obligations. However, the negligent misrepresentation claim could proceed, as could the tortious interference with a contract claim. The court remanded for the trial court to consider whether an exculpatory clause barred the defamation claim. It agreed with NTH that the trial court erred in interpreting a “differing site conditions” clause, but found that a limitation on claims paragraph did not apply. It also rejected the argument that plaintiff was collaterally estopped from seeking lost profits by an arbitration award, but held that it could not seek to recover another corporation's lost profits. Thus, the court affirmed in part, reversed in part, and remanded for further proceedings. The dispute arose from a sewer rehabilitation project. As to the professional negligence claim, the court concluded that each of the duties alleged by plaintiff were obligations that NTH agreed to perform in a contract. While NTH had a duty to “use due care in undertakings” in performing these obligations, “the common-law duty to use due care in undertakings is a duty to avoid physical harm to people or property; it is not a duty to avoid economic losses to another,” the only type of harm plaintiff alleged. However, “a business does owe a duty of care to those who justifiably rely on the information supplied by that business. Under Restatement Torts, 2d, § 552(2)(a), this duty extends to ‘the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it[.]’” Count IV of the complaint asserted that plaintiff was part of a group (bidders) who the drainage district “knew would rely on the plans drafted by NTH, that these plans were materially incorrect due to NTH’s negligence, and that as a result of [plaintiff’s] reliance on the plans, it suffered pecuniary loss.” Thus, Count IV set forth a claim for negligent misrepresentation, which was not precluded by Fultz and Loweke.

Divorce; Child support; Whether parties may waive the trial court’s discretion under MCL 552.23(1) & MCL 552.401 through an antenuptial agreement & if so, whether the parties validly waived these provisions; Statutory interpretation; Speicher v. Columbia Twp. Bd. of Trs.; Fairley v. Department of Corrs.; Whether an antenuptial agreement as to attorney fees or spousal support is one “relating to” property; Loutts v. Loutts; Kasper v. Metropolitan Life Ins. Co.; MCL 552.12; Haack v. Burmeister; Mitchell v. Mitchell; Bloomfield Estates Improvement Ass’n, Inc. v. City of Birmingham; Maids Int’l, Inc. v. Saunders, Inc.; Staple v. Staple; Omne Fin., Inc. v. Shacks, Inc.; Varran v. Granneman; Woodman ex rel Woodman v. Kera LLC; Allard v. Allard (Allard I & II); The Michigan Child Support Formula (MCSF)

On remand from the Supreme Court, the court held that the parties could not, and did not, waive the trial court’s equitable discretion under MCL 552.23(1) and MCL 552.401. By holding otherwise, the trial court erred, but it was unclear from the record what impact—if any—such error had on the trial court’s ultimate rulings as to property division, spousal support, and child support. Thus, it vacated the trial court’s pertinent orders (along with the relevant portion of the parties’ divorce judgment) and remanded for further proceedings consistent with (1) the opinion, (2) the affirmed portions of Allard I, and (3) the Supreme Court’s decision in Allard II. It did not retain jurisdiction. The parties signed an antenuptial agreement two days before their wedding in 1993. This case primarily dealt with the validity and enforcement of that antenuptial agreement. The court held that under the “plain language of MCL 557.28, an antenuptial agreement regarding attorney fees or spousal support is one ‘relating to’ property.” It also held that based on MCL 552.12, MCL 552.23(1), and MCL 552.401, “it is evident that our Legislature has endeavored to codify the axiom that, in divorce actions, ‘a division of property must be equitable . . . in [] light of the particular facts.’” Further, it held that “the parties to a divorce cannot, through antenuptial agreement, compel a court of equity to order a property settlement that is inequitable.” Although they have “a fundamental right to contract as they see fit, they have no right to do so in direct contravention of this state’s laws and public policy.” They “cannot, by mutual agreement, strip a circuit court of its authority under MCL 552.23(1) to order relief that the court, in its sound discretion, deems necessary to adequately support and maintain the parties’ minor children.” In this case, the trial court deviated from the MCSF, finding that it was in the best interests of the children to award defendant an extra $1,000 per month in base child support. But it did so only after holding that “the parties’ antenuptial agreement precluded it from invading plaintiff’s separate assets under MCL 552.23(1) and MCL 552.401.” Thus, contrary to the plain language of MCL 552.23(1), it appeared that “the trial court was under the erroneous impression that it lacked authority to award defendant spousal support (along with any portion of plaintiff’s real or personal property) if doing so was necessary to ensure the suitable support and maintenance of the children.” It was unclear whether it would have ruled differently but for such error.

Petition for a restricted driver’s license after an arrest for operating a vehicle while intoxicated (OWI) with a high blood-alcohol content (BAC); MCL 257.625(1)(c); Suspension of a respondent’s driver’s license based on the refusal to submit to a chemical test; MCL 257.625d; MCL 257.625f(7)(a); Modification of suspension; MCL 257.323; Secretary of State (SOS); Mootness; B P 7 v. Bureau of State Lottery

Holding that the petitioner’s appeal was moot, the court affirmed the trial court’s order denying his petition for a restricted driver’s license. He was arrested for OWI with a high BAC, but refused to submit to a chemical test. As a result, the respondent-SOS suspended his driver’s license for one year. He then sought modification of his suspension by petitioning the trial court for an order granting a restricted license. The trial court denied the petition, finding it did not have the jurisdiction to grant him a restricted license because he was also subject to the suspension for his conviction of OWI with a high BAC. It also noted that, even if it had jurisdiction, he had failed to establish sufficient hardship. By the time he appealed, his suspension period has expired. Thus, the court found his appeal was moot as there was no relief that could be provided, and because he did not argue that this was an issue of public significance that would compel the court to decide it nonetheless.

Sufficiency of the evidence; Whether both defendants acted with the felonious intent necessary to sustain the robbery & carjacking convictions; People v. Kanaan; Larceny; People v. Lee; People v. Harverson; People v. Davenport; People v. Jones; People v. Hawkins; Ineffective assistance of counsel; Failure to call witnesses or present cell phone text messages to corroborate defendant-Bassett’s claim that the victim willingly loaned him his car; People v. Lane; Trial strategy; People v. Dunigan; People v. Trakhtenberg; In re Ayres; People v. McFadden; Detroit Leasing Co. v. Detroit; People v. Seals; People v. Powell; People v. Carbin; Impeachment claim

The court held that the record included sufficient circumstantial evidence to prove beyond a reasonable doubt that both defendants (Bassett and Barrett) acted with the requisite intent at the time they took the car to sustain their carjacking convictions and Barrett’s armed robbery conviction. Also, they were not denied the effective assistance of counsel. Both defendants were convicted of carjacking. Barrett was also convicted of armed robbery and felony-firearm. The evidence, viewed in a light most favorable to the prosecution, showed that Barrett, aided and abetted by Bassett, took victim-C’s car at gunpoint when he refused to give them a ride to the store. Most significantly, their acts of taking the car after threatening C at gunpoint, and grabbing the keys out of the ignition before C ran from the scene, supported a finding of an intent to act inconsistently with C’s right to possess the property and an intent to retain the “property without the purpose to return it within a reasonable time.” Likewise, the evidence supported the trial court’s finding that they “may not have intended to keep the car permanently, but they did intend to keep it for an indefinite period of time, i.e., as long as they needed it.” Although it was unclear how long they kept the car, C’s and Bassett’s testimony “both indicated that defendants abandoned it only because they found out that the vehicle had been reported stolen, and the car was not recovered until four days after it was taken.” Also, C’s phone was in the car when defendants drove away, and they retained the phone for a short period of time before giving it to a third person, who ultimately returned it to C. Neither defendant returned the phone to C, and there was no evidence that one or both of them gave the phone to the third person specifically intending that the third person would return it to C. Also, there was no factual basis for concluding that counsel was ineffective for failing to call witnesses or present evidence of text messages. Finally, given counsel’s impeachment of C through other means, the fact that he did not use the report to impeach every inconsistent statement made by C at trial did not render defense counsel ineffective. Affirmed as to both defendants.

Other acts evidence admitted under MCL 768.27a; People v. Watkins; People v. Solloway; Relevance; MRE 401; People v. Mann; People v. Masroor; People v. Miller; MRE 403 balancing test; People v. Uribe; People v. Vasher; People v. Mills; Jury instruction on how to consider the evidence; People v. Pesquera; M Crim JI 20.28a; Presumption jurors follow their instructions; People v. Graves

Holding that MCL 768.27a applied and that the testimony at issue was not substantially more prejudicial than probative, the court rejected the defendant’s claim that the trial court abused its discretion in allowing the testimony, and affirmed his CSC convictions. The victim and the other acts witness were both his nieces. The statute applied given that he was charged with CSC I and II against a minor, and that the other acts evidence concerned acts that constituted, at least, CSC II against the witness when she was a minor. The prosecution offered the evidence as relevant to whether he “committed the offenses against the victim, the victim’s truthfulness, defendant’s intent, and to rebut any claim of accident or mistake.” The victim’s credibility “was the primary issue in the case. Due to the time lag between when” the CSC occurred and when it was reported, the prosecution “was unable to offer any physical evidence at trial.” The victim testified that no one witnessed the assaults. The other niece’s “testimony of defendant’s prior, similar acts committed against her in the same house when she was roughly the same age as the victim” was “highly relevant” to the victim’s credibility. Her testimony was not marginally probative – it was “relevant to a variety of matters at issue, including defendant’s intent, his propensity to commit [CSC] against minor relatives, his opportunity to commit the crimes, his modus operandi, and his use of a common scheme, plan or system of committing” CSC. Further, the Watkins factors permitted the admission of this evidence. While there was “a ‘temporal divide’ between defendant’s acts against the niece and the victim,” where they were 5 to 10 years apart, given the similarity of the acts, this by itself did not preclude admission of the evidence. The court noted that the passage of time could “be viewed as simply a function of when victims of a similar age were accessible.” While the charged crimes could be proven on the basis of only the victim’s testimony, given that defendant made her credibility the focus of his defense, other acts testimony from another victim was “properly admitted to corroborate the victim’s testimony.”

Petition for a restricted driver’s license after an arrest for operating a vehicle while intoxicated (OWI) with a high blood-alcohol content (BAC); MCL 257.625(1)(c); Suspension of a respondent’s driver’s license based on the refusal to submit to a chemical test; MCL 257.625d; MCL 257.625f(7)(a); Modification of suspension; MCL 257.323; Secretary of State (SOS); Mootness; B P 7 v. Bureau of State Lottery

Holding that the petitioner’s appeal was moot, the court affirmed the trial court’s order denying his petition for a restricted driver’s license. He was arrested for OWI with a high BAC, but refused to submit to a chemical test. As a result, the respondent-SOS suspended his driver’s license for one year. He then sought modification of his suspension by petitioning the trial court for an order granting a restricted license. The trial court denied the petition, finding it did not have the jurisdiction to grant him a restricted license because he was also subject to the suspension for his conviction of OWI with a high BAC. It also noted that, even if it had jurisdiction, he had failed to establish sufficient hardship. By the time he appealed, his suspension period has expired. Thus, the court found his appeal was moot as there was no relief that could be provided, and because he did not argue that this was an issue of public significance that would compel the court to decide it nonetheless.

Divorce; Child support; Whether parties may waive the trial court’s discretion under MCL 552.23(1) & MCL 552.401 through an antenuptial agreement & if so, whether the parties validly waived these provisions; Statutory interpretation; Speicher v. Columbia Twp. Bd. of Trs.; Fairley v. Department of Corrs.; Whether an antenuptial agreement as to attorney fees or spousal support is one “relating to” property; Loutts v. Loutts; Kasper v. Metropolitan Life Ins. Co.; MCL 552.12; Haack v. Burmeister; Mitchell v. Mitchell; Bloomfield Estates Improvement Ass’n, Inc. v. City of Birmingham; Maids Int’l, Inc. v. Saunders, Inc.; Staple v. Staple; Omne Fin., Inc. v. Shacks, Inc.; Varran v. Granneman; Woodman ex rel Woodman v. Kera LLC; Allard v. Allard (Allard I & II); The Michigan Child Support Formula (MCSF)

On remand from the Supreme Court, the court held that the parties could not, and did not, waive the trial court’s equitable discretion under MCL 552.23(1) and MCL 552.401. By holding otherwise, the trial court erred, but it was unclear from the record what impact—if any—such error had on the trial court’s ultimate rulings as to property division, spousal support, and child support. Thus, it vacated the trial court’s pertinent orders (along with the relevant portion of the parties’ divorce judgment) and remanded for further proceedings consistent with (1) the opinion, (2) the affirmed portions of Allard I, and (3) the Supreme Court’s decision in Allard II. It did not retain jurisdiction. The parties signed an antenuptial agreement two days before their wedding in 1993. This case primarily dealt with the validity and enforcement of that antenuptial agreement. The court held that under the “plain language of MCL 557.28, an antenuptial agreement regarding attorney fees or spousal support is one ‘relating to’ property.” It also held that based on MCL 552.12, MCL 552.23(1), and MCL 552.401, “it is evident that our Legislature has endeavored to codify the axiom that, in divorce actions, ‘a division of property must be equitable . . . in [] light of the particular facts.’” Further, it held that “the parties to a divorce cannot, through antenuptial agreement, compel a court of equity to order a property settlement that is inequitable.” Although they have “a fundamental right to contract as they see fit, they have no right to do so in direct contravention of this state’s laws and public policy.” They “cannot, by mutual agreement, strip a circuit court of its authority under MCL 552.23(1) to order relief that the court, in its sound discretion, deems necessary to adequately support and maintain the parties’ minor children.” In this case, the trial court deviated from the MCSF, finding that it was in the best interests of the children to award defendant an extra $1,000 per month in base child support. But it did so only after holding that “the parties’ antenuptial agreement precluded it from invading plaintiff’s separate assets under MCL 552.23(1) and MCL 552.401.” Thus, contrary to the plain language of MCL 552.23(1), it appeared that “the trial court was under the erroneous impression that it lacked authority to award defendant spousal support (along with any portion of plaintiff’s real or personal property) if doing so was necessary to ensure the suitable support and maintenance of the children.” It was unclear whether it would have ruled differently but for such error.

Uninsured motorist claim arising from a motorcycle accident that occurred after taking evasive action to avoid hitting an unidentified vehicle; “Uninsured automobile” defined; Said v. Auto Club Ass’n; Auto Club Ins. Ass’n v. Methner; Wills v. State Farm Ins. Co.; Hill v. Citizens Ins. Co. of Am.; Whether the court should adopt Ohio’s “corroborative evidence test”; Bobovnik v. Metropolitan Prop. & Gas Ins. Co. (OH App.); Girgis v. State Farm Mut. Auto Ins. Co. (OH); Michigan’s “physical contact” requirement; Berry v. State Farm Mut. Auto Ins. Co.; The rule of stare decisis; Griswold Props, LLC v. Lexington Ins. Co.; Whether public policy considerations should compel the court to abandon the “physical contact” requirement in cases where fraud does not exist; Terrien v. Zwit

Applying the longstanding rule in Michigan, the court held that the plaintiffs were not entitled to uninsured motorist benefits because plaintiff-Arthur Lang conceded that “there was no physical contact, direct or indirect, between his motorcycle and the unknown motorist." Also, it rejected the claim that it should adopt Ohio’s “corroborative evidence test,” noting that Michigan policy favors the enforcement of otherwise valid contractual agreements. Thus, it affirmed the trial court’s order granting defendant’s motion for summary disposition and dismissing plaintiffs’ claims. Lang was injured in a motorcycle accident after taking evasive action to avoid hitting an unidentified vehicle. Plaintiffs argued that the court should abandon the physical contact requirement because Lang did not engage in fraud. In Methner, the court “addressed an insurance policy requirement of physical contact to recover uninsured benefits and held that ‘[t]he physical contact provision is designed to reduce the possibility of fraud. The purpose of the language is to prevent phantom vehicle claims—the possibility that a motorist who negligently lost control of his own vehicle would recover by alleging that an unknown vehicle caused him to lose control.’” However, the court has “rejected the argument that in the absence of fraud there is no need to enforce the provision.” Plaintiffs also argued that the court “should adopt Ohio’s ‘corroborative evidence test,’ which allows for claims in cases where there is independent-third party testimony that the negligence of an unidentified vehicle was the proximate cause of the accident.” Their argument ignored the fact that the policy here was a product of the parties’ agreement. The policy “unambiguously stated that there must be ‘actual physical contact’ between the unknown vehicle and ‘the injured person or the automobile the injured person is occupying.’” The court was “not empowered to dispense with the contractually agreed upon physical contact requirement and to instead adopt for the parties Ohio’s ‘corroborative evidence’ test.”

Coverage under a boat owners’ policy; Insurance policy contract interpretation; Titan Ins. Co. v. Hyten; Davis v. LaFontaine Motors, Inc.; Klapp v. United Ins. Group Agency, Inc.; Hunt v. Drielick; Use of a dictionary to define undefined contractual terms; Auto Owners Ins. Co. v. Seils; Whether the boat or trailer was being transported at the time of the accident; “Transporting” defined

Rejecting defendant-Fremont’s claim that its boat owners’ policy did not provide coverage because the boat or trailer was being transported at the time of the accident, the court affirmed the trial court’s ruling that the policy provided coverage. Plaintiff-James Overbeek hired defendant-Matson to be his fishing guide on a river. Overbeek was seriously injured during a boat launch accident. Fremont insured Matson at the time of the accident. Endorsement BO-22 of the policy “excluded coverage for ‘property damage or bodily injury resulting from transporting the insured boat(s) or trailer(s) on land[.]’” The policy did not define “transporting,” so the court consulted a dictionary to define it. “The verb ‘transport’ is commonly defined as ‘to carry, move, or convey from one place to another.’” The court noted the verb is “transitive, meaning that it requires a subject and a direct object—in this instance, someone must have been transporting the boat or trailer from one place or the other. Additionally, because ‘transporting’ is a present participle form of the verb, it requires an ongoing action.” No one was moving the boat or trailer here – they “began sliding down the ramp as a result of a failure to properly secure the truck. Additionally, neither the boat nor the trailer were in the process of being transported because they were not being moved from one place to another. Transportation is an activity with a beginning and an end, with the action of ‘transporting’ taking place while the object is in motion. When the boat and trailer arrived at the boat launch, transportation ceased.” They had “arrived at the intended destination.” Thus, the trial court properly ruled that “the policy did not exclude coverage under the circumstances because Overbeek’s injury did not result from transporting the boat or trailer.”

Injuries sustained when a motorcycle struck tire debris; Personal protection insurance (PIP); Michigan’s No-Fault Act (the Act) (MCL 500.3101 et seq.); Whether the injuries arose out of the ownership, operation, maintenance, or use of a motor vehicle; Kyocera Corp. v. Hemlock Semiconductor, LLC; Detroit Med. Ctr. v. Progressive MI Ins. Co.; MCL 500.3105(1); Greater Flint HMO v. Allstate Ins. Co.; Principle that under the Act, a motorcycle does not constitute a “motor vehicle”; MCL 500.3101(2)(e); Causation; MCL 500.3105; Claim that the trial court erred by assuming the tire debris was not related to a motor vehicle; Ricciuti v. Detroit Auto Inter-Ins. Exch.

The court held that the trial court properly granted the defendant’s motion for summary disposition as to the plaintiff’s PIP benefits claim “because the allegations in his complaint did not establish the requisite causal connection between plaintiff’s accident and a motor vehicle.” The accident did not sufficiently involve a motor vehicle to support a PIP claim. Plaintiff claimed the injuries he sustained when his motorcycle struck tire debris arose out of the ownership, operation, maintenance, or use of a motor vehicle. Even when construed in the light most favorable to him, his complaint failed to state a PIP claim for which relief can be granted. He contended that the trial court erred by assuming the tire debris was not related to a motor vehicle, but his claim failed even if the court assumed the debris came from a motor vehicle. “At most, an unknown motor vehicle passively contributed to plaintiff’s accident by depositing the debris in the road.” Thus, the “injuries were only tangentially related to a motor vehicle, as there is no indication that a motor vehicle engaged in any activity that played a causal role in the accident.” Likewise, as the court previously concluded in Ricciuti, “an accident that results from debris that was deposited by an unknown motor vehicle at some point prior to the incident is merely ‘incidentally or fortuitously related to the ownership, use, or maintenance of a motor vehicle.’” Affirmed.

Action seeking personal protection insurance (PIP) benefits for injuries sustained in an accident involving a “mud bog”; MCL 500.3105(1); Whether a mud bog is a “motor vehicle” under the No-Fault Act (the Act) (MCL 500.3101 et seq.); Whether a vehicle is a “motor vehicle” or an “off road vehicle” (ORV); MCL 500.3101(2)(h) & (j); Apperson v. Citizens Mut. Ins. Co.; Gividen v. Bristol W. Ins. Co.; Michigan Assigned Claims Plan (MACP)

Holding that a “mud bog” did not constitute a motor vehicle and thus, that the plaintiff was not entitled to PIP benefits for the injuries he sustained when he was hit by the vehicle, the court reversed the trial court’s denial of summary disposition for defendant and remanded for entry of summary disposition in its favor. Plaintiff sought PIP benefits for his injuries. The trial court denied the defendant-MACP’s motion for summary disposition. On appeal, the court noted that the mud bog was never operated on a public highway, and was not designed for operation on a public highway. “The modifications made to the vehicle in this case were as extensive as the changes made to the vehicles in Apperson and Gividen.” As a result, it “lacked basic safety features and . . . the changes made to the vehicle rendered it dangerous, if not impossible, to drive on a roadway.” Thus, the mud bog “was modified to such a degree that it was no longer designed for operation on a public highway.” Instead, “the modifications made to the vehicle rendered it an” ORV. “[T]he mud bog was a motor-driven recreation vehicle designed for off-road use in a mud pit. [It] was also capable of cross-country travel over natural terrain. Further, [it] lacked registration for use upon a public highway and lacked no-fault insurance.” As such, “the mud bog fell within the definition of an [ORV] and was excluded from the definition of a motor vehicle.”

Property dispute between family members; Abandoned issues; Prince v. MacDonald; Challenges to the representation provided by an attorney at trial; People v. Trakhtenberg; Bowden v Gannaway; Whether the plaintiff’s side of the case was heard; Whether plaintiff “can change his mind” about the sale of the home; Mitcham v. Detroit; Movie Mania Metro, Inc. v. GZ DVD’s Inc.; Voluntary dismissal of the claim as to the sale of the property; MCR 2.504(A)(2); African Methodist Episcopal Church v. Shoulders; MCR 2.504(A)(2)(b); Thomas v. Michigan Employment Sec. Comm’n

Holding that plaintiff-Bruce Clark failed to demonstrate that he was entitled to relief, the court affirmed the trial court’s judgment of no cause of action in favor of defendant-Darlene Clark in this property dispute between family members. Plaintiff, defendant, and C Clark were siblings. In 2010, their mother died, and they inherited a house from her as tenants in common. Defendant and C, who lived in the house, later refused to give plaintiff a key and would not allow him to access the home. This led to multiple confrontations. Plaintiff filed this action, alleging that defendant had interfered with his possession of the real property, and that she “had converted or destroyed personal property belonging to him. He requested, inter alia, that the trial court divide or sell the property given the parties’ inability to reside together, that the trial court enjoin defendant from precluding plaintiff from entering the residence, and that the trial court order defendant to pay damages reimbursing him for property damage and storage costs.” At trial, they agreed to dismiss his claim as to the division or sale of the home. Thus, the only remaining issue was whether he was entitled to damages for his lost personal property and storage costs. As an initial matter, the court held that all of his claims on appeal were abandoned because he failed to cite any legal authority in support of his claims of error. Even so, it reviewed his claims and concluded that he failed to establish any error warranting relief. He challenged the representation provided by his attorney at trial. To the extent he tried to assert ineffective assistance of counsel, the court noted that this was a civil case, not a criminal case. To the extent that he otherwise challenged his attorney’s representation and appeared to suggest that his attorney had a conflict of interest, “the proper avenue for challenging an attorney’s representation is through a legal malpractice suit in the trial court.” The appeal, which arose “from a case involving real property and personal property issues, not a legal malpractice claim—is not the proper avenue for challenging counsel’s representation during the lower court proceedings.”

Challenge to the constitutionality of 2012 PA 396, an amendment to the Downtown Development Authority Act (DDAA) (MCL 125.1651 et seq.); Requirement that the appropriation of public funds for local or private purposes be approved by 2/3 of both houses of the Legislature; Const. 1963, art. 4, § 30; The notice & verification requirements; MCL 600.6431; Fairley v. Department of Corrs.; Court of Claims jurisdiction; MCL 600.6419(1)(a); Extension to suits against state officers where the officer was acting in an official capacity when committing the acts complained of; Carlton v. Department of Corrs.; Principle that the Legislature may impose reasonable procedural requirements (such as a limitations period) on a plaintiff’s available remedies even when those remedies pertain to alleged constitutional violations; MCL 600.6431(1); Rusha v. Department of Corrs.; McCahan v. Brennan; Claim accrual; MCL 600.5827

The court held that the trial court properly granted summary disposition for defendant-Governor Rick Snyder in the plaintiff-citizen’s action alleging that an amendment to the DDAA was unconstitutional. Plaintiff claimed the amendment, which allowed for the authorization and funding of the Detroit Events Center, a development project that includes the new Detroit Red Wings hockey arena, failed to pass with the constitutionally mandated 2/3 vote of the House and was thus, null and void. The trial court granted summary disposition for defendant, finding that because plaintiff failed to comply with the notice filing requirements, MCL 600.6431 precluded him from maintaining his action. On appeal, the court concluded that “the alleged wrong occurred—and plaintiff’s claim accrued—on” the date defendant signed the amendment and it became effective - 12/19/12. However, plaintiff “did not file a claim until” 5/26/15, “more than two years later.” Further, his “complaint was not verified.” Thus, “plaintiff’s claim against defendant is barred because he did not comply with the requirements of” MCL 600.6431. Affirmed.

Premises liability; Trip & fall as a result of an eight-inch drop off between rooms; Whether the danger was open & obvious; Bertrand v. Alan Ford, Inc.; Grandberry-Lovette v. Garascia; Novotney v. Burger King Corp.; Whether defendants owed plaintiff a duty to warn; Stitt v. Holland Abundant Life Fellowship; Perkoviq v. Delcor Homes-Lake Shore Pointe, Ltd.; Comparative negligence; Lamp v. Reynolds

The court held that the trial court erred in granting summary disposition for the defendants-homeowners in the plaintiff-guest’s premises liability action. Plaintiff sued defendants for injuries she sustained when she tripped and fell on an eight-inch drop off leading from defendants’ hallway to their mud room. On appeal, the court agreed with plaintiff that the danger from the drop off arose because she did not discover the condition or realize its danger. “The testimony and photographs clearly demonstrate a question of fact of whether an average user acting under the conditions existing when plaintiff approached the mud room would have been able to discover the drop off upon casual inspection.” It distinguished this case from Novotney, where the plaintiff “did not assert that the handicap ramp could not be seen by” an average person, but, rather, “alleged only that she didn’t notice it even though it was daytime.” Here, “plaintiff asserts that given the absence of lighting, the drop off could not be seen by an average person and presents evidence through the testimony of third parties and photographs to support that assertion.” The court rejected defendants’ argument that “the drop off or height differential was open and obvious because plaintiff could have turned on a light switch that was located at the entry to the mud room that would have illuminated the mud room.” However, “this is not a duty question but is instead a question of comparative negligence.” It found defendants’ argument “is not merely a statement that plaintiff should have looked where she was going but is a statement that she should have altered the premises’ condition by turning on the lights.” Because “the determination of whether defendants’ owed plaintiff a duty to warn of the drop off will depend on how the conflicting testimony regarding whether the drop off was open and obvious is resolved, the conflicting testimony must be submitted to the jury, and the trial court’s grant of summary disposition to defendant was erroneous.” Reversed and remanded.

Child injured from stepping in hot coals buried on the beach; The Recreational Land Use Act (RUA) (MCL 324.73301); Neal v. Wilkes; The doctrine of ejusdem generis; Whether swimming is a type of activity that falls within the ambit of the RUA such that the child’s play on the beach should also fall within the RUA; Distinguishing Anderson v. Brown Bros., Inc.; MCR 7.215(J)(1); Whether there was evidence to support negligence; Stitt v. Holland Abundant Life Fellowship

The court held that the child (B) “was not engaged in an activity enumerated in the RUA when she was playing in the sand at the beach nor was she engaged in an ‘other outdoor recreational use’ when she was injured.” Thus, the RUA did not apply and the trial court erred in dismissing plaintiff’s negligence claim on that basis and in holding that the plaintiff (B’s mother and next friend) was required to prove gross negligence or willful and wanton misconduct. Applying “the doctrine of ejusdem generis indicates that child’s play on the beach is not an activity that is ‘of the same kind, class, character, or nature’ as ‘fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, [or] snowmobiling.’” While age is not a consideration for purposes of the RUA, B’s age shed “light on the nature of the activity she was engaged in—namely, child’s play on the beach.” This is “dissimilar to the enumerated activities” in the RUA, which “are of a higher intensity that involve inherent risks that are not inherent in child’s play on the beach.” Fishing, hunting, and trapping “involve higher intensity activity and inherent risks that are not inherent in making sand castles and digging in the sand on the beach. The potential for injury” is much greater than in “the passive activity of building sandcastles on the beach. Similarly, camping, hiking, sightseeing, motorcycling and snowmobiling involve higher-intensity outdoor recreation activities that are not of the same kind, class or character as child’s play on the beach.” Thus, B was not engaged in an “other outdoor recreational use” for purposes of the RUA and the RUA did not govern here. The defendant-Inn’s argument that swimming is a type of activity that falls within the ambit of the RUA, such that B’s activities should also fall within the RUA, was not persuasive. Anderson, on which it relied, was not binding precedent and was dissimilar to this case. “In Anderson, the injured boy was swimming and diving at a gravel-pit lake when he was injured.” B was not diving or swimming “when she stepped in hot coals buried on the beach.” B was “engaged in a more docile activity—playing in the sand on the beach.” This activity is significantly different than swimming and diving, which involve a “significantly higher inherent risk of injury and drowning; these activities require a level of know-how and skills and pose a greater risk of harm than simply playing on a beach. Thus, while swimming and diving may be ‘natural extensions’ of the specifically enumerated activities in the RUA, child’s play on the beach” was not. Reversed and remanded.

Dispute arising from a construction project; Professional negligence; Duty; Fultz v. Union-Commerce Assoc.; Loweke v. Ann Arbor Ceiling & Partition Co.; Whether the plaintiff alleged breach of a duty separate & distinct from defendant-Neyer, Tiseo & Hindo Ltd.’s (NTH) contractual obligations; Rinaldo’s Constr. Corp. v. Michigan Bell Tel. Co.; Negligent misrepresentation; Roberts v. Safell; Restatement Torts, 2d, § 552(2)(a); Law Offices of Lawrence J Stockler, PC v. Rose; Proximate cause; Helmus v. Department of Transp.; Effect of an exculpatory clause; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Detroit Pub. Schs. v. Conn; Defamation; Smith v. Anonymous Joint Enter.; Privilege; Prysak v. RL Polk Co.; Waiver; National Waterworks, Inc. v. International Fid. & Sur., Ltd.; Tortious interference with a contract; Lawsuit Fin., LLC v. Curry; Corporate agents; Reed v. Michigan Metro. Girl Scout Council; Damages; Lost profits; Interpretation of a “differing site conditions” clause; Contractual limitation on “claims”; Collateral estoppel; Monat v. State Farm Ins. Co.; Effect of an arbitration award; Porter v. Royal Oak; Ditmore v. Michalik; Differences between contract & tort damages; Gorman v. American Honda Motor Co., Inc.; Kewin v. Massachusetts Mut. Life Ins. Co.; Whether plaintiff had standing to recover on behalf of another corporate entity; Real party in interest; Michigan Nat’l Bank v. Mudgett; Respecting separate corporate entities; Seasword v. Hilti, Inc.; Distinguishing Mars, Inc. v. Coin Acceptors, Inc. (Fed. Cir.); Applicability of the “common control” doctrine; Brown v. Astro Holdings, Inc. (ED PA)

The court held that the plaintiff’s professional negligence claim failed because it did not allege a breach of any recognized duty separate and distinct from defendant-NTH’s contractual obligations. However, the negligent misrepresentation claim could proceed, as could the tortious interference with a contract claim. The court remanded for the trial court to consider whether an exculpatory clause barred the defamation claim. It agreed with NTH that the trial court erred in interpreting a “differing site conditions” clause, but found that a limitation on claims paragraph did not apply. It also rejected the argument that plaintiff was collaterally estopped from seeking lost profits by an arbitration award, but held that it could not seek to recover another corporation's lost profits. Thus, the court affirmed in part, reversed in part, and remanded for further proceedings. The dispute arose from a sewer rehabilitation project. As to the professional negligence claim, the court concluded that each of the duties alleged by plaintiff were obligations that NTH agreed to perform in a contract. While NTH had a duty to “use due care in undertakings” in performing these obligations, “the common-law duty to use due care in undertakings is a duty to avoid physical harm to people or property; it is not a duty to avoid economic losses to another,” the only type of harm plaintiff alleged. However, “a business does owe a duty of care to those who justifiably rely on the information supplied by that business. Under Restatement Torts, 2d, § 552(2)(a), this duty extends to ‘the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it[.]’” Count IV of the complaint asserted that plaintiff was part of a group (bidders) who the drainage district “knew would rely on the plans drafted by NTH, that these plans were materially incorrect due to NTH’s negligence, and that as a result of [plaintiff’s] reliance on the plans, it suffered pecuniary loss.” Thus, Count IV set forth a claim for negligent misrepresentation, which was not precluded by Fultz and Loweke.

Pleading a fraudulent claim under the False Claims Act; 31 USC § 3729; The Anti-Kickback Statute (42 USC § 1320a-7b(b)); Public disclosure bar to a qui tam action; U.S. ex rel. Poteet v. Medtronic, Inc.; U.S. ex rel. Advocates for Basic Legal Equal., Inc. v. U.S. Bank, N.A.; Whether the relator’s claims were “pleaded with particularity” under Fed.R.Civ.P. 9(b); U.S. ex rel. Bledsoe v. Community Health Sys., Inc.; Whether the requirement that a plaintiff identify at least one false claim with particularity may be “relaxed” in some circumstances; Chesbrough v. VPA, P.C.; U.S. ex rel. Prather v. Brookdale Sr. Living Cmtys., Inc.; U.S. ex rel. Marlar v. BWXT Y-12, LLC; Whether there were Health Insurance Portability & Accountability Act (HIPPA) concerns

The court affirmed the district court’s ruling that relator-Hirt failed to state his whistleblower claims under the False Claims Act where he did not plead his claims with “sufficient particularity,” as required by Rule 9(b). Hirt filed this qui tam action claiming that defendant-Walgreen violated the Anti-Kickback Statute and then submitted the associated prescription-drug claims to Medicare and Medicaid. Hirt’s complaint did “not identify a single false claim.” He described “unlawful distribution of gift cards in general but not the submission of any claims obtained with those gift cards.” He did not identify names, dates, or whether Walgreen ever submitted any prescription reimbursement claims. The court discussed Chesbrough and Prather, where it relied on an unpublished Eleventh Circuit case that used the word “relax” when discussing the requirement that a plaintiff identify at least one false claim with particularity. The court made it clear that it had no “authority to ‘relax’ the pleading standard established by” Rule 9(b). “Hirt failed to provide the factual predicates necessary to convince [the court] that ‘actual false claims’ ‘in all likelihood exist.’” His general allegations that Walgreen “offered gift cards and some Medicare and Medicaid recipients accepted them do not meet the particularity requirement.” Moreover, HIPPA would not have been implicated by stating particularized claims where “Hirt could have used customer initials, dates, or other non-identifying descriptions.”

Property dispute between family members; Abandoned issues; Prince v. MacDonald; Challenges to the representation provided by an attorney at trial; People v. Trakhtenberg; Bowden v Gannaway; Whether the plaintiff’s side of the case was heard; Whether plaintiff “can change his mind” about the sale of the home; Mitcham v. Detroit; Movie Mania Metro, Inc. v. GZ DVD’s Inc.; Voluntary dismissal of the claim as to the sale of the property; MCR 2.504(A)(2); African Methodist Episcopal Church v. Shoulders; MCR 2.504(A)(2)(b); Thomas v. Michigan Employment Sec. Comm’n

Holding that plaintiff-Bruce Clark failed to demonstrate that he was entitled to relief, the court affirmed the trial court’s judgment of no cause of action in favor of defendant-Darlene Clark in this property dispute between family members. Plaintiff, defendant, and C Clark were siblings. In 2010, their mother died, and they inherited a house from her as tenants in common. Defendant and C, who lived in the house, later refused to give plaintiff a key and would not allow him to access the home. This led to multiple confrontations. Plaintiff filed this action, alleging that defendant had interfered with his possession of the real property, and that she “had converted or destroyed personal property belonging to him. He requested, inter alia, that the trial court divide or sell the property given the parties’ inability to reside together, that the trial court enjoin defendant from precluding plaintiff from entering the residence, and that the trial court order defendant to pay damages reimbursing him for property damage and storage costs.” At trial, they agreed to dismiss his claim as to the division or sale of the home. Thus, the only remaining issue was whether he was entitled to damages for his lost personal property and storage costs. As an initial matter, the court held that all of his claims on appeal were abandoned because he failed to cite any legal authority in support of his claims of error. Even so, it reviewed his claims and concluded that he failed to establish any error warranting relief. He challenged the representation provided by his attorney at trial. To the extent he tried to assert ineffective assistance of counsel, the court noted that this was a civil case, not a criminal case. To the extent that he otherwise challenged his attorney’s representation and appeared to suggest that his attorney had a conflict of interest, “the proper avenue for challenging an attorney’s representation is through a legal malpractice suit in the trial court.” The appeal, which arose “from a case involving real property and personal property issues, not a legal malpractice claim—is not the proper avenue for challenging counsel’s representation during the lower court proceedings.”

Action to reform a mortgage & to foreclose on the reformed mortgage; Reforming an instrument that does not reflect the parties’ true intent; Johnson Family Ltd. P’ship v. White Pine Wireless, LLC; Olsen v. Porter; Mutual mistake of fact; Goldman v. Century Ins. Co.; Etherington v. Bailiff; Casey v. Auto-Owners Ins. Co.; Clear & convincing evidence burden of proof; E R Brenner Co. v. Brooker Eng’g Co.; In re Martin

Holding that the documentary evidence provided clear and convincing evidence that both the defendant and the mortgagee intended to encumber the whole parcel of real property that defendant owned at the address in question, the court concluded that the trial court properly granted the plaintiff summary disposition and ordered reformation of the mortgage. Before he obtained the loan that was secured by the mortgage, defendant had conveyed the vacant portion of the property to a third party, but when the sale failed, the vacant portion was conveyed back via a quit claim deed, the legal description of which “only encompassed the lots of the property that were vacant.” When he refinanced his interest in the property, the mortgage indicated that it encumbered “property with the common address of 126 Virginia Court, but it only listed the legal description covering the vacant lots, not the entire parcel.” Defendant defaulted, and plaintiff sued to reform the mortgage and to foreclose. He argued that plaintiff did not present clear and convincing evidence that he and the mortgagee “intended the mortgage to encumber the entire parcel of property.” The court disagreed, noting that the appraisal “specifically considered the house and garage” and that, “in considering comparable properties in order to fully appraise defendant’s property, the appraiser only noted other properties that had houses” (not vacant lots). Further, defendant “signed several documents that indicated his intent to live on the mortgaged property and occupy the house as his primary residence.” The “most telling document” indicated that he “had been sworn and he understood that was signing the document under the threat of federal perjury charges. With that understanding, [he] expressly agreed that he would be using the mortgaged property as his ‘home.’” In signing documents that repeatedly confirmed “that he would be living in the ‘home’ on” the mortgaged property, he “revealed his intent to encumber the entire property” as there was no dispute that he “was aware that the residential structure was not on the vacant lots.” Further, the vacant lots did not have a separate address and property taxes were assessed on the full, six-lot parcel as a whole. Affirmed.