Award of attorney fees & costs as civil contempt sanctions; Taylor v. Currie; A trial court’s inherent authority to enforce its orders; In re Moroun; MCL 600.611; MCL 600.1711; MCL 600.1715; The civil contempt proceeding process; In re Contempt of Auto Club Ins. Ass’n; Principle that a court may issue an order to pay compensation for actual loss or injury caused by a contemnor’s misconduct; In re Contempt of United Stationers Supply Co.; MCL 600.1721; Robin Woods, Inc. v. Woods (3d Cir.); Electrical Workers Pension Trust Fund of Local Union #58, IBEW v. Gary’s Elec. Serv. Co. (6th Cir.); Trial courts’ inherent authority to sanction litigants & their counsel; Maldonado v. Ford Motor Co.; “In connection with”; United States v. Loney (3d Cir.); Inapplicability of the law of the case doctrine; Ashker v. Ford Motor Co.; Prentis Family Found., Inc. v. Barbara Ann Karmanos Cancer Inst.; KBD & Assoc., Inc. v. Great Lakes Foam Techs., Inc.; Kasben v. Hoffman; Webb v. Smith; Construing stipulated orders under the rules of contract interpretation; Phillips v. Jordan; Woodington v. Shokoohi; Availability of contract defenses; Limbach v. Oakland Cnty. Bd. of Cnty. Rd. Comm’rs; Whether applying the stipulated hourly fee rates would generate a windfall & result in overcompensation; Smith v. Khouri

The court held that the appellants-attorney and law firm’s (collectively Charron) argument that the award of attorney fees and costs as civil contempt sanctions had to be limited to the contempt trial lacked merit, and that its statements in a prior appeal did not create the law of the case because they addressed a separate argument. Thus, it affirmed the trial court’s order granting the plaintiffs (collectively Morris) $349,416 in attorney fees and $14,090.77 in costs from Charron. The court noted that the trial court indicated “it would hold Charron accountable for the fees and costs Morris incurred as a result of the contempt hearing, but it did not limit remuneration to simply those incurred from the actual trial.” On two occasions in its opinion and order, it “stated that Charron would be responsible for fees and costs Morris ‘incurred in pursuing civil contempt’ and ‘in connection with this contempt proceeding.’” The phrase “in connection with” is expansive. The trial court “expressed the intent to compensate Morris ‘in a manner that reflects economic reality,’ suggesting the recognition that the costs ‘incurred in pursuing civil contempt’ sanctions would exceed those associated solely with the formal trial.” Its statements were “consistent with the understanding that civil contempt sanctions comprise ‘a compensatory remedy’ intended to ‘compensate the complainant.’” The court also rejected the claim that its prior ruling on appeal supported Charron’s position and constituted the law of the case. In the prior appeal, Charron argued that the time delay between the issuance of the show cause order for contempt and the actual transfer of the assets (the basis for the contempt) had served to enhance or increase the underlying damages. This was a separate and distinct issue from “the determination and calculation of the contempt sanction.” The court noted that the trial court was authorized by case law and statute to award Morris attorney fees and costs incurred related to “Charron’s civil contempt[,]” and that in challenging some of the approved billings, Charron did “not specifically identify each billing or time entry alleged to be erroneously included by the trial court in its computation.”

Spousal support; Whether the spousal support award was for the benefit of a third party; Loutts v. Loutts; MCL 552.23(1); Myland v. Myland; Olson v. Olson; Whether the plaintiff-ex-wife demonstrated that she could meet her expenses; Request to secure the support award with life insurance; Misplaced reliance on MCL 552.27; Plaintiff’s attorney fees; Richards v. Richards; MCL 552.13(1); MCR 3.206(C); MCR 3.206(C)(2)(a) & (b)

Finding no errors warranting reversal, the court affirmed the trial court’s order requiring the defendant-ex-husband to pay spousal support and denying the plaintiff-ex-wife’s request for attorney fees. Defendant argued that the trial court’s spousal support award was for the benefit of a third party (C, plaintiff’s father, who secured a loan for the parties’ restaurant) and was thus, inappropriate. He further argued that plaintiff failed to show that she was entitled to spousal support where she could cover her monthly expenses. Plaintiff argued that while the spousal support award was appropriate, the trial court erred in denying her request to secure the support award with life insurance. The court disagreed with each of the arguments. Contrary to defendant’s assertions, the spousal support award was not aimed at benefiting C. The trial court specifically concluded that it considered C’s involvement largely irrelevant. The parties took out the $300,000 loan in order to purchase the restaurant, knowing and expecting that they alone were responsible for the debt. The restaurant was a marital asset and the debts that went into acquiring that asset were jointly held by both parties. Thus, the trial court’s findings in this regard were not clearly erroneous. Nor did it err when it stated that, as a result of defendant’s bankruptcy, plaintiff was now “solely” responsible for the debts. That defendant hoped to discharge his debts in bankruptcy did not change the fact that the restaurant and its debts were marital property. Additionally, plaintiff did not testify that she could meet her monthly obligations. She testified that she could afford her monthly expenses with the exception of paying the loan amounts. At the time of trial, C was making the full payment on the loan. Defendant’s claim that the trial court erred in including those amounts in determining plaintiff’s monthly expenses was specious, especially now that plaintiff was solely responsible for the debts. Defendant seemed to think that C would simply forgive his daughter of these debts, but there was no evidence in the record to support such a contention. C, plaintiff, and defendant agreed that C was entitled to repayment. It was obvious that the trial court attempted to balance the incomes and needs of the parties and its ultimate award was just and reasonable under the circumstances. It also did not abuse its discretion when it declined plaintiff’s request to secure the support award with life insurance.

Admission of the prosecution witness’s preliminary exam testimony; Unavailability of a witness; MRE 804(a)(1) & (b)(1); People v. Meredith; Principle that the admission of former testimony tested by cross-examination generally comports with the requirements of the Confrontation Clause; People v. Garland; MRE 804(a); Prosecutorial intimidation of witnesses; People v. Pena; People v. McIntosh; Webb v. Texas; State v. Feaster (NJ); MRE 804(a)(5); Waknin v. Chamberlain; Paris Meadows, LLC v. City of Kentwood; “Unavailability” defined; Whether the prosecutor “procured” the witness’s unavailability by virtue of the threats; “Procurement” defined

The court held that because the prosecution’s threat procured its witness-H’s unavailability, the trial court erred by admitting his recorded testimony. Thus, it vacated defendant-Lopez’s convictions of first-degree premediated murder, conspiracy, and several weapons-related charges and sentences, and remanded for a new trial at the prosecution’s discretion. Minutes after H agreed to testify at Lopez’s trial, the prosecutor threatened him that deviation from his preliminary exam testimony would result in prosecution for perjury and life imprisonment on conviction. He invoked his Fifth Amendment privilege, and his preliminary exam testimony was presented to the jury. Lopez contended that H could not be deemed unavailable because the prosecutor procured his absence by threatening him. He presented two closely interrelated arguments: that the prosecutor behaved wrongly in “threatening” H with a perjury prosecution, and that the prosecutor “procured” H’s unavailability by virtue of the threats. Lopez contended that as a result, the prosecutor was precluded from relying on MRE 804(1) to support the introduction of H’s former testimony. The Supreme Court has forcefully condemned prosecutorial intimidation of witnesses (Pena) and so has the court (McIntosh). “No principled basis exists for distinguishing between the intimidation of defense witnesses and the silencing of prosecution witnesses.” The prosecutor lacked any reasonable basis to suspect that H would lie on the witness stand. The prosecutor himself did not hear H say, “I’ve got you covered, bro;” rather the prosecutor quoted some unknown person who allegedly heard the statement. This hearsay did not provide a sufficient basis for suspecting that perjury was in the offing, or for issuing a perjury warning. The definition of “unavailability” in MRE 804(5) precludes a court from finding a witness unavailable if the witness’s absence is “due to” either “the procurement” or the “wrongdoing” of the proponent of the testimony. The court’s decision rested on the trial court’s finding that the perjury warning issued by the prosecutor procured H’s unavailability. The trial court recognized that H refused to testify due to the prosecutor’s threat, but failed to connect its finding with the rule’s command that “procurement” of a witness’s absence nullifies the witness’s unavailability. Because the prosecutor improperly silenced H, the trial court was required to exclude H’s preliminary exam testimony in the first instance, or to strike it from the record thereafter. The trial court “violated Lopez’s fundamental right to a fair trial, abusing its evidentiary discretion. This error was far from harmless.” Aside from H’s testimony, the evidence against Lopez was thin at best.

Sufficiency of the evidence to support convictions of assault with intent to murder (AWIM), assault with intent to do great bodily harm (AWIGBH), felon in possession (FIP), & felony-firearm; People v. Hoffman; People v. Terry; People v. Parcha; Intent; People v. Cochran; People v. Jackson; People v. Mitchell; People v. Lugo; People v. Harrington; Identity; People v. Yost; People v. Garcia; Other acts evidence; MRE 404(b); People v. Knox; Relevance; People v. Bergman; MRE 403; Unfair prejudice; People v. Goree; People v. Crawford; People v. Meadows; People v. Blackston; False statement allowing an inference of consciousness of guilt; People v. Wolford; Prosecutorial error; Asking a witness to comment on another witness’s credibility; People v. Buckey; People v. Musser; Unresponsive answers; People v. Jackson (On Reconsideration); People v. Barker; Availability of a curative instruction; People v. Ackerman; Introducing evidence expressly permitted by the trial court; People v. Curry; Witness intimidation; People v. Clark; People v. Canter; People v. Crabtree; People v. Stacy; Photographic evidence; Motion to suppress evidence obtained after police used a cell phone’s tracking application; United States v. Jones; Kyllo v. United States; People v. Kazmierczak; Reasonable expectation of privacy; People v. Smith; People v. Taylor; Ineffective assistance of counsel; People v. Frazier; People v. Pratt; Bill of particulars; MCR 6.110(A) & 112(E); People v. McBride

The court held that evidence the defendants intentionally shot at the victim (B) within range and without excuse, justification, or mitigating circumstances was sufficient to prove AWIM and AWIGBH. There was also sufficient evidence that they possessed firearms. The trial court did not abuse its discretion in admitting the challenged other acts evidence or photographic evidence, and the court rejected their prosecutorial error claims. Defendant-Ray-El’s motion to suppress was properly denied because he did not identify a constitutionally protected area into which police intruded without a warrant. The court also rejected his ineffective assistance of counsel and cumulative error claims. Defendant-Smith was convicted of AWIGBH, FIP, and felony-firearm. Ray-El was convicted of AWIM and felony-firearm. Smith challenged the sufficiency of the evidence, and Ray-El raised a similar claim that the trial court erred in denying his motion for a directed verdict on the AWIM charge. A surveillance video showed a man witness-R identified as Ray-El approaching the driver’s side of B’s car. B said that he drove off after a man fired a gun at him. “The video showed the man identified as Ray-El firing a shot, falling, getting up, and then firing several more shots at” B’s car as it drove away. B testified “that he could hear a different gun firing at him as he drove away.” The surveillance video showed him driving away to the left and “gunshots could be heard after Ray-El lowered his arm and turned away from the vehicle, which indicated that a second gunman was present.” Evidence showed that B’s car was hit at least three times and B sustained a gunshot wound to the leg. “The surveillance video showed the visible gunman—identified as Ray-El—and the two boys all running off to the right. Moments later, a fourth person,” whom R identified as Smith, “entered camera range from the left and ran after the other three.” R testified that moments after “the gunshots, Smith, Ray-El, and the two boys ran into her home and Ray-El had a gun in his hand. This evidence, if believed, supported an inference that Smith was present and that he was the second shooter.” Affirmed.

Spousal support; Whether the spousal support award was for the benefit of a third party; Loutts v. Loutts; MCL 552.23(1); Myland v. Myland; Olson v. Olson; Whether the plaintiff-ex-wife demonstrated that she could meet her expenses; Request to secure the support award with life insurance; Misplaced reliance on MCL 552.27; Plaintiff’s attorney fees; Richards v. Richards; MCL 552.13(1); MCR 3.206(C); MCR 3.206(C)(2)(a) & (b)

Finding no errors warranting reversal, the court affirmed the trial court’s order requiring the defendant-ex-husband to pay spousal support and denying the plaintiff-ex-wife’s request for attorney fees. Defendant argued that the trial court’s spousal support award was for the benefit of a third party (C, plaintiff’s father, who secured a loan for the parties’ restaurant) and was thus, inappropriate. He further argued that plaintiff failed to show that she was entitled to spousal support where she could cover her monthly expenses. Plaintiff argued that while the spousal support award was appropriate, the trial court erred in denying her request to secure the support award with life insurance. The court disagreed with each of the arguments. Contrary to defendant’s assertions, the spousal support award was not aimed at benefiting C. The trial court specifically concluded that it considered C’s involvement largely irrelevant. The parties took out the $300,000 loan in order to purchase the restaurant, knowing and expecting that they alone were responsible for the debt. The restaurant was a marital asset and the debts that went into acquiring that asset were jointly held by both parties. Thus, the trial court’s findings in this regard were not clearly erroneous. Nor did it err when it stated that, as a result of defendant’s bankruptcy, plaintiff was now “solely” responsible for the debts. That defendant hoped to discharge his debts in bankruptcy did not change the fact that the restaurant and its debts were marital property. Additionally, plaintiff did not testify that she could meet her monthly obligations. She testified that she could afford her monthly expenses with the exception of paying the loan amounts. At the time of trial, C was making the full payment on the loan. Defendant’s claim that the trial court erred in including those amounts in determining plaintiff’s monthly expenses was specious, especially now that plaintiff was solely responsible for the debts. Defendant seemed to think that C would simply forgive his daughter of these debts, but there was no evidence in the record to support such a contention. C, plaintiff, and defendant agreed that C was entitled to repayment. It was obvious that the trial court attempted to balance the incomes and needs of the parties and its ultimate award was just and reasonable under the circumstances. It also did not abuse its discretion when it declined plaintiff’s request to secure the support award with life insurance.

Divorce; Custody; Child’s reasonable preference; MCL 722.23(i); Dailey v. Kloenhamer; Kubicki v. Sharpe; Sinicropi v. Mazurek; Alleged error as to the trial court’s consideration of additional text messages submitted by the defendant-father in response to the plaintiff-mother’s motion for relief from judgment; Yee v. Shiawassee Cnty. Bd. of Comm’rs; Parenting time; MCL 722.27a; MCL 722.27a(1) & (3); Fletcher v. Fletcher; MCR 2.613(A); Factual findings; McNamara v. Horner; MCR 2.612(C)(1)(c); MCR 2.612(C)(1)(a); Mikedis v. Perfection Heat Treating Co.; Lark v. Detroit Edison Co.; Whether an act of neglect is excusable; Muntean v. City of Detroit; Credibility assessments; Rigoni v. Michigan Power Co.; Spousal support; Richards v. Richards; Olson v. Olson; Moore v. Moore; Contributing to error; Munson Med. Ctr. v. Auto Club Ins. Ass’n; Farm Credit Servs. of MI Heartland, PCA v. Weldon; The ripeness doctrine; Mudel v. Great Atl. & Pac. Tea Co.; Whether defendant made misrepresentations to the trial court as to plaintiff’s ability to work & potential wage earning capacity; MCR 2.612(C)(1)(f); King v. McPherson Hosp.; Child support; Stallworth v. Stallworth; Failure to provide supporting authority; Peterson Novelties, Inc. v. City of Berkley; Property division; Gates v. Gates; Child Protective Services (CPS)

The court held, among other things, that while the trial court should have interviewed the child as to best interest factor § (i), the omission was inconsequential because it clearly would not have reached a different conclusion had it done so. Also, given the overwhelming amount of evidence presented by the defendant-father and the plaintiff-mother’s lack of evidence to the contrary, the trial court did not abuse its discretion by denying plaintiff’s request for relief from judgment based on fraudulent misrepresentations to the trial court. Thus, the court affirmed the trial court’s order denying her request for specific parenting time and for relief from the default judgment of divorce. Plaintiff contended the trial court erred in failing to make a specific finding on factor § (i) as to the child’s reasonable preference. The trial court determined that a review of the best interest factors overwhelmingly favored the defendant for an award of custody. It did not interview the child to establish her preference, but indicated, “even if the minor child expressed a preference to reside with her mother, it wouldn’t be enough to persuade this court not to grant him sole legal and physical custody.” It elicited testimony from defendant, but also based its decision on a review of the pleadings in the case, its observation of the parties over an extended time period, as well as documentary evidence submitted by defendant. Specifically, it was in possession of a letter authored by the child’s therapist confirming the level of defendant’s support and participation in the child’s therapy, the “recurrent conflicts” between plaintiff and the child, “and the child’s stated preference to the therapist to reside with defendant.” It had “access to various documents submitted for trial verifying plaintiff’s prior suicide attempt, a multitude of police reports,” and a CPS investigation report about an incident of domestic violence involving plaintiff and the child. While speculative, it was “important to note that the trial court appeared to have a substantive and justifiable reason for not interviewing” the child.

Gross negligence; Whether the waiver of subrogation clause barred a gross negligence claim; Lamp v. Reynolds; Shelby Mut. Ins. Co. v. City of Grand Rapids; Failure to state a claim of gross negligence; Xu v. Gay; Tarlea v. Crabtree; Affidavit of plaintiff’s expert's opinion that defendants acted with a “substantial lack of concern”; Mack v. Detroit (On Remand); Johnson v. White; Rebuttable presumption of negligence; Klinke v. Mitsubishi Motors Corp.

The court reversed the trial court’s holding that the plaintiff’s claim for gross negligence was barred by the waiver of subrogation clause. However, it affirmed the trial court’s holding that plaintiff failed to state a claim in gross negligence against defendants. It further held, as the trial court did, that the amendment of plaintiff’s complaint would be futile. Plaintiff issued a property insurance policy to the owner and manager of an apartment building (Midtown property), UrbCamCom/WSU 1, LLC (UCC), and Campus Advantage, Inc., respectively (the insureds), providing insurance for loss or damage to the building. UCC retained defendant-The Alan Group as a general contractor to work on the Midtown property, which was to include the installation of a sprinkler system. The Alan Group retained defendant-Condor Piping, Inc. as a subcontractor to install the sprinkler system. The contract between UCC and The Alan Group contained a waiver of subrogation. A dry-fire suppression line for the installed dry-pipe sprinkler system ruptured in two separate locations, flooding the Midtown property. Plaintiff reimbursed the insureds for their losses under its insurance policy. It then brought the subrogation action against defendants, alleging claims of negligence, gross negligence, breach of implied/express warranty, and breach of implied/express contract. Plaintiff argued that the trial court erred by determining that the waiver of subrogation clause barred a gross negligence claim and thus, by holding on reconsideration that summary disposition was proper for that reason under MCR 2.116(C)(10). The court agreed. Plaintiff conceded that the waiver of subrogation clause barred its claims apart from its claim for gross negligence. Plaintiff also argued that the trial court erred by holding that it failed to state a claim of gross negligence. The court held that nothing in plaintiff’s factual allegations showed or implied that defendants acted with willful or reckless disregard for what damage could be caused if they failed to attend properly to the draining of the sprinkler system. Rather, the totality of the factual allegations asserted in essence simply that they acted with carelessness in failing to drain the dry-pipe sprinkler system and in failing to provide proper instruction on how to do so. Thus, at best, plaintiff’s allegations only supported a claim for ordinary negligence.

Award of attorney fees & costs as civil contempt sanctions; Taylor v. Currie; A trial court’s inherent authority to enforce its orders; In re Moroun; MCL 600.611; MCL 600.1711; MCL 600.1715; The civil contempt proceeding process; In re Contempt of Auto Club Ins. Ass’n; Principle that a court may issue an order to pay compensation for actual loss or injury caused by a contemnor’s misconduct; In re Contempt of United Stationers Supply Co.; MCL 600.1721; Robin Woods, Inc. v. Woods (3d Cir.); Electrical Workers Pension Trust Fund of Local Union #58, IBEW v. Gary’s Elec. Serv. Co. (6th Cir.); Trial courts’ inherent authority to sanction litigants & their counsel; Maldonado v. Ford Motor Co.; “In connection with”; United States v. Loney (3d Cir.); Inapplicability of the law of the case doctrine; Ashker v. Ford Motor Co.; Prentis Family Found., Inc. v. Barbara Ann Karmanos Cancer Inst.; KBD & Assoc., Inc. v. Great Lakes Foam Techs., Inc.; Kasben v. Hoffman; Webb v. Smith; Construing stipulated orders under the rules of contract interpretation; Phillips v. Jordan; Woodington v. Shokoohi; Availability of contract defenses; Limbach v. Oakland Cnty. Bd. of Cnty. Rd. Comm’rs; Whether applying the stipulated hourly fee rates would generate a windfall & result in overcompensation; Smith v. Khouri

The court held that the appellants-attorney and law firm’s (collectively Charron) argument that the award of attorney fees and costs as civil contempt sanctions had to be limited to the contempt trial lacked merit, and that its statements in a prior appeal did not create the law of the case because they addressed a separate argument. Thus, it affirmed the trial court’s order granting the plaintiffs (collectively Morris) $349,416 in attorney fees and $14,090.77 in costs from Charron. The court noted that the trial court indicated “it would hold Charron accountable for the fees and costs Morris incurred as a result of the contempt hearing, but it did not limit remuneration to simply those incurred from the actual trial.” On two occasions in its opinion and order, it “stated that Charron would be responsible for fees and costs Morris ‘incurred in pursuing civil contempt’ and ‘in connection with this contempt proceeding.’” The phrase “in connection with” is expansive. The trial court “expressed the intent to compensate Morris ‘in a manner that reflects economic reality,’ suggesting the recognition that the costs ‘incurred in pursuing civil contempt’ sanctions would exceed those associated solely with the formal trial.” Its statements were “consistent with the understanding that civil contempt sanctions comprise ‘a compensatory remedy’ intended to ‘compensate the complainant.’” The court also rejected the claim that its prior ruling on appeal supported Charron’s position and constituted the law of the case. In the prior appeal, Charron argued that the time delay between the issuance of the show cause order for contempt and the actual transfer of the assets (the basis for the contempt) had served to enhance or increase the underlying damages. This was a separate and distinct issue from “the determination and calculation of the contempt sanction.” The court noted that the trial court was authorized by case law and statute to award Morris attorney fees and costs incurred related to “Charron’s civil contempt[,]” and that in challenging some of the approved billings, Charron did “not specifically identify each billing or time entry alleged to be erroneously included by the trial court in its computation.”

Governmental immunity; Markillie v. Board of Cnty. Rd. Comm’rs of Cnty. of Livingston; Governmental agency defined; MCL 691.1401(a); Political subdivision defined; MCL 691.1401(e); Jurisdiction over county roads in the context of the highway exception; MCL 224.19; MCL 224.21; Kuhn v. Associated Truck Lines, Inc.; Streng v. Board of Mackinac Cnty. Rd. Comm’rs; MCL 224.21(2) & (3); City of S. Haven v. Van Buren Cnty. Bd. of Comm’rs; The highway exception to governmental immunity; Thurman v. City of Pontiac; Statutory notice requirements; Atkins v. Suburban Mobility Auth. for Reg’l Transp.; Misplaced reliance on MCR 2.105(G)(8)

The court affirmed the trial court’s order granting summary disposition under MCR 2.116(C)(7) based on governmental immunity to defendants-Calhoun County Road Department and Calhoun County Board of Commissioners. The parties had no material disagreement as to whether defendants are all governmental agencies. Their disagreement was over whether the Department or the Commissioners had jurisdiction over county road R Drive South. They agreed that R Drive South is a county road. They also agreed that Calhoun County was the entity with jurisdiction over county roads, including R Drive South. The trial court record showed that plaintiff did not serve “notice in writing upon the clerk and upon the chairperson of the board of county road commissioners.” He notified P, the managing director of the Department, by letter dated 7/23/14, of his notice of claim and intent to file suit. He served the managing director of the Department by certified mail with his complaint on 11/25/14. He served the Commissioners with his First Amended Complaint on 2/18/15. The Commissioners, by resolution, assumed the powers, duties and functions of the Road Commission. The 10/12 resolution was authorized under 2012 PA 14 and 2012 PA 15, which both provided that “the powers, duties, and functions that are otherwise provided by law for an appointed board of county road commissioners may be transferred to the county board of commissioners by a resolution” before 1/15. Thus, serving the Commissioners statutorily sufficed as serving the Road Commission. “However, the timing of the notice was not statutorily compliant. In accordance with MCL 224.21(3), plaintiff was required to serve his notice of claim ‘within 60 days after the occurrence of the injury.’” The deadline to serve the Commissioners was thus, 7/22/14. He did not serve the Commissioners until 271 days after the occurrence of the injury and at that time, it was service of Plaintiff’s First Amended Complaint. The service of notice on P, even if the notice was somehow forwarded to Calhoun County, was not service on the Commissioners, as required.

Gross negligence; Whether the waiver of subrogation clause barred a gross negligence claim; Lamp v. Reynolds; Shelby Mut. Ins. Co. v. City of Grand Rapids; Failure to state a claim of gross negligence; Xu v. Gay; Tarlea v. Crabtree; Affidavit of plaintiff’s expert's opinion that defendants acted with a “substantial lack of concern”; Mack v. Detroit (On Remand); Johnson v. White; Rebuttable presumption of negligence; Klinke v. Mitsubishi Motors Corp.

The court reversed the trial court’s holding that the plaintiff’s claim for gross negligence was barred by the waiver of subrogation clause. However, it affirmed the trial court’s holding that plaintiff failed to state a claim in gross negligence against defendants. It further held, as the trial court did, that the amendment of plaintiff’s complaint would be futile. Plaintiff issued a property insurance policy to the owner and manager of an apartment building (Midtown property), UrbCamCom/WSU 1, LLC (UCC), and Campus Advantage, Inc., respectively (the insureds), providing insurance for loss or damage to the building. UCC retained defendant-The Alan Group as a general contractor to work on the Midtown property, which was to include the installation of a sprinkler system. The Alan Group retained defendant-Condor Piping, Inc. as a subcontractor to install the sprinkler system. The contract between UCC and The Alan Group contained a waiver of subrogation. A dry-fire suppression line for the installed dry-pipe sprinkler system ruptured in two separate locations, flooding the Midtown property. Plaintiff reimbursed the insureds for their losses under its insurance policy. It then brought the subrogation action against defendants, alleging claims of negligence, gross negligence, breach of implied/express warranty, and breach of implied/express contract. Plaintiff argued that the trial court erred by determining that the waiver of subrogation clause barred a gross negligence claim and thus, by holding on reconsideration that summary disposition was proper for that reason under MCR 2.116(C)(10). The court agreed. Plaintiff conceded that the waiver of subrogation clause barred its claims apart from its claim for gross negligence. Plaintiff also argued that the trial court erred by holding that it failed to state a claim of gross negligence. The court held that nothing in plaintiff’s factual allegations showed or implied that defendants acted with willful or reckless disregard for what damage could be caused if they failed to attend properly to the draining of the sprinkler system. Rather, the totality of the factual allegations asserted in essence simply that they acted with carelessness in failing to drain the dry-pipe sprinkler system and in failing to provide proper instruction on how to do so. Thus, at best, plaintiff’s allegations only supported a claim for ordinary negligence.

Auto negligence; Elements of a negligence claim; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Causation; Lockridge v. Oakwood Hosp.; Skinner v. Square D Co.; Craig v. Oakwood Hosp.; Distinguishing Wilkinson v. Lee

Concluding that Wilkinson was distinguishable, and holding that the plaintiff failed to present sufficient evidence that the defendant’s actions were a cause in fact of her injuries, the court affirmed the trial court’s order granting defendant summary disposition in this auto negligence case. This case arose from an accident in 2013. Plaintiff was injured in another accident in 2003. Reviewing her medical history before and after the 2013 accident, it appeared that she “suffered from the same symptoms as she did before the accident.” She suffered from disc changes in her cervical and lumbar spine before the 2013 accident, “and the severity of plaintiff’s pain symptoms changed visit to visit.” There was no evidence that the pain she experienced after the 2013 accident was actually caused by defendant’s actions, and no evidence that any of her treating doctors concluded that her problems were caused by the 2013 accident. She “failed to introduce any affidavits from her treating physicians that stated that, in their professional opinion, the accident exacerbated or aggravated her existing symptoms.” Dr. L, an independent medical examiner, concluded that any treatment she received “above and beyond a soft tissue strain could not be related to or caused by” defendant’s actions. Importantly, plaintiff did not present any evidence indicating that her treating physicians disagreed with L. The court found her reliance on Wilkinson misplaced, noting that unlike the plaintiff there, plaintiff here “was never diagnosed with a new injury, and plaintiff never presented any medical evidence establishing that her physicians opined” that the 2013 accident “caused or aggravated her preexisting injuries.” Because she did not establish a genuine issue of material fact as to whether defendant’s actions caused her injuries, the trial court properly granted defendant summary disposition.

Auto negligence; Whether the plaintiff could establish a genuine issue of material fact as to whether defendant-Jacisin’s conduct was a proximate cause of plaintiff’s accident & injury; Loweke v. Ann Arbor Ceiling & Partition Co.; Lockridge v. Oakwood Hosp.; Craig v. Oakwood Hosp.; Skinner v. Square D Co.; Babula v. Robertson; Helmus v. Michigan Dep’t of Transp.; Nichols v. Dobler; O’Neal v. St. John Hosp.; Poe v. Detroit; Hastings Mut. Ins. Co. v. State Farm Ins. Co.

The court affirmed the trial court’s grant of summary disposition for the defendants and holding that the plaintiff failed to establish a question of fact whether their alleged negligence was a proximate cause of his injury. The case arose out of a motor vehicle accident. Defendant-Jacisin struck the rear of an SUV. After the collision, Jacisin’s vehicle came to a stop in the center lane of the highway, and the SUV overturned and landed in the center lane just east of Jacisin’s vehicle. “Upon approaching the accident, plaintiff attempted to maneuver around the wreckage, and then back into traffic; his vehicle ultimately collided with the overturned SUV.” He argued the trial court erred when it found that no reasonable jury could find that his accident was part of an uninterrupted chain of events that began with the first accident. Essentially, he maintained that a reasonable jury could find that Jacisin should reasonably have foreseen that he “would weave his way around and between her vehicle and another vehicle disabled by a collision, attempt to merge back into traffic, and clip the second, overturned vehicle with his own as he did so.” Based on the court’s review of the record, including plaintiff’s own testimony, it disagreed. Based on the evidence presented, it held that the trial court was correct. No reasonable factual dispute existed as to “whether Jacisin’s conduct produced plaintiff’s injury as part of continuous sequence that was unbroken by an intervening cause.” The court concluded, as a matter of law, that “plaintiff’s conduct in attempting to maneuver through and around the wreckage, and back into traffic, could not reasonably have been anticipated or foreseen. Regardless of any negligence on Jacisin’s part with regard to the initial accident, plaintiff’s conduct caused an entirely separate and distinct accident, breaking the chain of causation.” The court found that this “was not a ‘chain reaction’ or ‘domino’-type accident, in which the second accident arises naturally out of the first, such that they are properly considered as one accident.” Although the “occurrence of the first accident (and any negligence giving rise to it) was certainly a ‘but for’ cause of the second accident, no reasonable jury could find that it was a ‘proximate’ cause of plaintiff’s injury.”

Governmental immunity; Markillie v. Board of Cnty. Rd. Comm’rs of Cnty. of Livingston; Governmental agency defined; MCL 691.1401(a); Political subdivision defined; MCL 691.1401(e); Jurisdiction over county roads in the context of the highway exception; MCL 224.19; MCL 224.21; Kuhn v. Associated Truck Lines, Inc.; Streng v. Board of Mackinac Cnty. Rd. Comm’rs; MCL 224.21(2) & (3); City of S. Haven v. Van Buren Cnty. Bd. of Comm’rs; The highway exception to governmental immunity; Thurman v. City of Pontiac; Statutory notice requirements; Atkins v. Suburban Mobility Auth. for Reg’l Transp.; Misplaced reliance on MCR 2.105(G)(8)

The court affirmed the trial court’s order granting summary disposition under MCR 2.116(C)(7) based on governmental immunity to defendants-Calhoun County Road Department and Calhoun County Board of Commissioners. The parties had no material disagreement as to whether defendants are all governmental agencies. Their disagreement was over whether the Department or the Commissioners had jurisdiction over county road R Drive South. They agreed that R Drive South is a county road. They also agreed that Calhoun County was the entity with jurisdiction over county roads, including R Drive South. The trial court record showed that plaintiff did not serve “notice in writing upon the clerk and upon the chairperson of the board of county road commissioners.” He notified P, the managing director of the Department, by letter dated 7/23/14, of his notice of claim and intent to file suit. He served the managing director of the Department by certified mail with his complaint on 11/25/14. He served the Commissioners with his First Amended Complaint on 2/18/15. The Commissioners, by resolution, assumed the powers, duties and functions of the Road Commission. The 10/12 resolution was authorized under 2012 PA 14 and 2012 PA 15, which both provided that “the powers, duties, and functions that are otherwise provided by law for an appointed board of county road commissioners may be transferred to the county board of commissioners by a resolution” before 1/15. Thus, serving the Commissioners statutorily sufficed as serving the Road Commission. “However, the timing of the notice was not statutorily compliant. In accordance with MCL 224.21(3), plaintiff was required to serve his notice of claim ‘within 60 days after the occurrence of the injury.’” The deadline to serve the Commissioners was thus, 7/22/14. He did not serve the Commissioners until 271 days after the occurrence of the injury and at that time, it was service of Plaintiff’s First Amended Complaint. The service of notice on P, even if the notice was somehow forwarded to Calhoun County, was not service on the Commissioners, as required.

Whether the defendant-Detroit Medical Center (a nonprofit entity) is not a “corporation” under the Tax Code & entitled to a higher interest rate on its tax refund under 26 USC § 6621(a)(1); Trustees of Dartmouth Coll. v. Woodward; The Tax Code’s definition of a corporation; §§ 7701(a)(3) & (c); Morissette v. United States; Oxford English Dictionary (2d ed.); O’Neil v. United States; Russello v. United States; Maimonides Med. Ctr. v. United States (2d Cir.)

[This appeal was from the ED-MI.] The court affirmed the district court’s ruling that the defendant-Detroit Medical Center, a nonprofit entity incorporated under state law, was a “corporation,” and not entitled to the higher rate of interest on the refund of its tax overpayment. The Center was a corporation as defined in the Tax Code. Historically, “courts have permitted charitable organizations to be treated as corporations. . . . Because the common law understanding of ‘corporation’ has consistently included nonprofit corporations like Detroit Medical Center, it is fair to infer that the Internal Revenue Code uses the term in that same sense in § 6621.” The court reviewed several sections of the Code and concluded that “[t]he word ‘corporation,’ . . . often covers nonprofits.” The court rejected the Center’s arguments that the lower interest rate on an overpayment “applies to the refund only if the entity is a C corporation—a type of for-profit corporation[,]” and that “the default meaning of ‘corporation' is C corporation throughout the Internal Revenue Code.” It looked to a Second Circuit case (Maimonides) that considered “this same issue and reached the same conclusion”— “The word ‘corporation’ ‘ordinarily refers to both for-profit and  nonprofit entities,’ . . .; the key feature of the background definition is not whether the entity is a for-profit operation but whether state law has conferred corporate status on the entity, . . .; other uses of ‘corporation’ throughout the Code include incorporated nonprofit organizations, . . . ; and ‘corporation’ does not mean ‘C corporation’ in § 6621(a)(1) because the cross-reference in that section defines ‘taxable period, not ‘corporation[.]’”

Termination under §§ 19b(3)(b)(i), (c)(i), (c)(ii), (g), & (j); Due process; The trial court’s decision to allow an attorney who represented the child’s mother in a criminal case to represent the respondent-father at a child protective proceeding hearing; Conflict of interest claim; In re Osborne (On Remand, After Remand); Plain error review; In re Utrera; Denial of the opportunity to have the child returned to respondent’s sole care & custody; Santosky v. Kramer; In re Sanders; Stanley v. Illinois

The court concluded that there was no basis in the record for finding that the alleged conflict of interest prejudiced the respondent-father, and that it was not plain error for the trial court to order that the child could not be returned to his care. Thus, it rejected his due process claims and affirmed the trial court’s order terminating his parental rights. He argued that the trial court violated his due process rights by allowing an attorney who represented the child’s mother in a criminal case to represent him at a child protective proceeding hearing. Reviewing the issue for plain error, the court noted that the attorney argued for reunification to remain the permanency goal, requested couples counseling for the parents, “and asked for respondent’s parenting time to be increased or moved to unsupervised visits. The outcome of the hearing did not negatively impact respondent, as the trial court maintained the goal of reunification and allowed the agency to have discretion in giving respondent unsupervised parenting time.” Thus, he failed to show actual prejudice. He also contended that the trial court violated his due process rights because he was denied the opportunity to have the child returned to him. However, the court noted that he never rectified the barriers to reunification so that the child could be safely returned. While there were periods when the DHHS did not have concerns about his employment, housing, or parenting skills, the primary concerns about domestic violence and his relationship with the mother continued to exist. “They lived together for much of the proceeding, and multiple domestic violence incidents were reported. Even when they were not in a relationship, there remained a concern that they were still interacting with one another.” He never showed that he could stay away from the mother and keep the child safe. Further, issues with his “emotional stability and substance abuse surfaced in the latter part of the proceeding.” The state had a legitimate interest in protecting the child.