The trial court’s authority to hear actions involving issues subject to arbitration; MCR 3.602; The trial court’s authority to determine whether a dispute is subject to arbitration; MCL 691.1686; MCR 3.602(A); Lichon v Morse; Motion to stay arbitration or for another order; MCR 3.602(B)(1); Arbitrability; Registered Nurses v Hurley Med Ctr; Effect of an assignment of rights; Cannon Twp v Rockford Pub Sch; Uniform Arbitration Act (UAA)

The court held that the trial court correctly ruled that the claims in dispute in this case were not subject to the parties’ arbitration agreement. Plaintiff sought PIP benefits for the treatment of injuries she sustained in a motor vehicle accident while boarding a bus operated by defendant. During the trial court proceedings, it was discovered she had assigned her rights to receive the benefits to various healthcare providers. The parties entered into an arbitration agreement, and the trial court dismissed the case but retained limited jurisdiction as to the arbitration. At the arbitration hearing, plaintiff attempted to assert claims for the PIP benefits she assigned to the healthcare providers. The trial court granted defendant’s motion to exclude those claims from arbitration. The parties then attended another arbitration hearing, and the trial court confirmed the resulting arbitration award. On appeal, the court rejected plaintiff’s argument that the trial court lacked jurisdiction to decide whether some of the PIP claims should be excluded from arbitration. “[D]efendant challenged whether some of plaintiff’s claims were subject to the arbitration agreement by bringing a motion to strike in the trial court under MCR 3.602(B)(1). Under that court rule, a party may bring a motion to stay arbitration ‘or for another order under this rule.’” Moreover, MCR 3.602(A) “specifically states the trial court has the powers enumerated in the [UAA], one of which permits the trial court to decide the issue of whether a controversy is subject to an arbitration agreement.” The court also rejected her contention that the trial court erred by finding the disputed claims were not subject to the arbitration agreement. First, “it is undisputed that the parties executed an arbitration agreement . . . related specifically to the claims underlying this case.” Second, because the arbitration agreement “governs only those claims that plaintiff herself may maintain for PIP benefits, and because the claims in dispute are no longer maintained by plaintiff herself but instead by the medical providers, the claims are not governed by the arbitration agreement.” Affirmed.

Claim under the dog-bite statute; MCL 287.351(1); Absolute liability; Hill v Sacka

The court held that the trial court erred by denying defendant-Ascension’s motion for summary disposition under MCR 2.116(C)(8) because plaintiff failed to state a claim on which relief could be granted. Thus, it reversed and remanded for entry of an order granting summary disposition for Ascension. Plaintiff was bitten by a dog while visiting the decedent on Ascension’s property. "The decedent’s son had brought the decedent’s dog, Brady, to the hospital with Ascension’s consent. Plaintiff testified that as he bent down or squatted to kiss the decedent goodbye, Brady bit him on his face, causing injury to his nose." Ascension claimed that "the trial court erred by partially denying its motion for summary disposition under MCR 2.116(C)(8) because the dog-bite statute imposes absolute liability on Brady’s owner." The court held that because, "absent provocation, Brady’s owner was liable for any and all of plaintiff’s damages, Ascension as a third party could not be liable for any of those damages. Hill’s observation that the fault or negligence of a third party is not relevant clearly applies to plaintiff’s claims in this case."

Ineffective assistance of counsel; Advice as to a plea offer; Failure to request the addict-informer instruction (M Crim JI 5.7); Prosecutorial misconduct; Alleged Brady violation; Failure to correct allegedly false testimony; Ineffective assistance of appellate counsel

Holding on remand that there were no errors requiring reversal, the court again affirmed defendant’s convictions in their entirety. He was convicted of CSC I, CSC II, kidnapping, FIP, and felony-firearm for the kidnapping and sexual assault of the victim. In a prior appeal, the court “considered the sole issue raised by defendant’s appellate counsel and concluded that the evidence was sufficient to prove one particular count of” CSC I beyond a reasonable doubt. The Supreme Court remanded for consideration of defendant’s supplemental brief, which was presented to the court through a motion for reconsideration and was therefore not timely filed. After reviewing the issues presented, the court again affirmed his convictions in their entirety, rejecting his argument that his trial counsel and original appellate counsel were ineffective, and that the prosecution withheld exculpatory evidence and knowingly failed to correct false testimony. It found that his “self-serving affidavit indicating that he would have accepted the plea offer if trial counsel had better informed him about his chances of prevailing at trial and his likely sentence if found guilty by the jury is both logically inconsistent and is not supported by the record.” In addition, the addict-informer jury instruction he asserted his trial counsel was ineffective for failing to request did not apply. Further, he “failed to prove the first two elements of his Brady claim[.]”

Change of domicile; Factors (a) & (b) of MCL 722.31(4); Judicial bias; Change of custody; The statutory best-interest factors; Judicial notice; MRE 201(c); Waiver of a hearsay issue; Modification of parenting time; MCL 722.27a(7)

The court held that the trial court did not abuse its discretion in denying plaintiff-mother’s motion for a change of domicile, and the record did not show judicial bias. Further, none of the trial court’s findings on the best-interest factors as to defendant-father’s motion to change custody were against the great weight of the evidence, and it did not err when it took judicial notice. Finally, the trial court’s findings as to factors (e) and (i) related to parenting time were not against the great weight of the evidence. Thus, its denial of her motion for a change of domicile and grant of defendant’s motion for a change of custody was affirmed. Plaintiff argued that the trial court erred in denying her motion to change domicile because its findings as to factors (a) and (b) under MCL 722.31(4) were unsupported. The court concluded that the trial court did not improperly hold that the proposed move to Houghton Lake would not improve the quality of life for plaintiff and the child (KSJ). She "conceded that she had difficulty retaining a permanent residence and had moved approximately 11 or 12 times. Testimony also showed that plaintiff’s employment situation, which would have a dramatic effect on her ability to maintain the Houghton Lake apartment, was unstable." As of the evidentiary hearing, she "already had two jobs since she moved to Houghton Lake." And as the trial court recognized, her "new job that she started after the evidentiary hearing led to new hours that frustrated the parenting-time schedule." Additionally, she presented no evidence of how the move would improve KSJ’s education, or explain how the “distance from defendant, which required several hours of driving one direction, would improve KSJ’s quality of life. To the contrary, the long distance would require KSJ to spend a good portion of her time driving back and forth between her parents’ homes, a concern shared by the trial court . . . .” The trial court’s findings as to factor (b) were also supported by a preponderance of the evidence. The evidence showed that "plaintiff unilaterally withheld parenting time from defendant." He testified that she “[c]onstantly” withheld his parenting time, and stated that he absolutely thought that her move to Houghton Lake “created a 'transportation barrier[.]’” The court noted that she did not “explain why there were no other suitable areas closer to defendant’s residence that would not completely frustrate the parenting-time schedule." Further, there was evidence “that, throughout this case, plaintiff took steps to prevent defendant from exercising his parenting time."

The trial court’s authority to hear actions involving issues subject to arbitration; MCR 3.602; The trial court’s authority to determine whether a dispute is subject to arbitration; MCL 691.1686; MCR 3.602(A); Lichon v Morse; Motion to stay arbitration or for another order; MCR 3.602(B)(1); Arbitrability; Registered Nurses v Hurley Med Ctr; Effect of an assignment of rights; Cannon Twp v Rockford Pub Sch; Uniform Arbitration Act (UAA)

The court held that the trial court correctly ruled that the claims in dispute in this case were not subject to the parties’ arbitration agreement. Plaintiff sought PIP benefits for the treatment of injuries she sustained in a motor vehicle accident while boarding a bus operated by defendant. During the trial court proceedings, it was discovered she had assigned her rights to receive the benefits to various healthcare providers. The parties entered into an arbitration agreement, and the trial court dismissed the case but retained limited jurisdiction as to the arbitration. At the arbitration hearing, plaintiff attempted to assert claims for the PIP benefits she assigned to the healthcare providers. The trial court granted defendant’s motion to exclude those claims from arbitration. The parties then attended another arbitration hearing, and the trial court confirmed the resulting arbitration award. On appeal, the court rejected plaintiff’s argument that the trial court lacked jurisdiction to decide whether some of the PIP claims should be excluded from arbitration. “[D]efendant challenged whether some of plaintiff’s claims were subject to the arbitration agreement by bringing a motion to strike in the trial court under MCR 3.602(B)(1). Under that court rule, a party may bring a motion to stay arbitration ‘or for another order under this rule.’” Moreover, MCR 3.602(A) “specifically states the trial court has the powers enumerated in the [UAA], one of which permits the trial court to decide the issue of whether a controversy is subject to an arbitration agreement.” The court also rejected her contention that the trial court erred by finding the disputed claims were not subject to the arbitration agreement. First, “it is undisputed that the parties executed an arbitration agreement . . . related specifically to the claims underlying this case.” Second, because the arbitration agreement “governs only those claims that plaintiff herself may maintain for PIP benefits, and because the claims in dispute are no longer maintained by plaintiff herself but instead by the medical providers, the claims are not governed by the arbitration agreement.” Affirmed.

Trip & fall; Whether a negligence claim sounded in premises liability or ordinary negligence; Finazzo v Fire Equip Co; Compau v Pioneer Res Co, LLC; Whether a construction barricade was an open & obvious danger; Nuisance claim; Fuga v Comerica Bank–Detroit; Private nuisance; Adkins v Thomas Solvent Co; Public nuisance; Cloverleaf Car Co v Phillips Petroleum Co

Concluding that plaintiff’s negligence claim sounded in premises liability rather than ordinary negligence, the court held that the danger posed by defendant-Consumers Energy’s construction barricade on a sidewalk was open and obvious. Further, her nuisance claim was a restatement of her premises liability claim, and even if it was not, she did not establish a question of fact as to either a private or a public nuisance. Thus, the court reversed the trial court’s denial of summary disposition of both claims and remanded for entry of an order granting Consumers summary disposition. While plaintiff labeled her first claim against Consumers as an ordinary negligence claim, she “asserted that she ‘tripped on the obscured barricade support and fell, suffering injury.’ Thus, much like the claims set forth in Finazzo and Compau, plaintiff’s injury arose from an allegedly dangerous condition on the land.” The dispositive issue as to the premises liability claim was whether the hazard was open and obvious. The court found no genuine issue of material fact that it was. “Plaintiff testified that she tripped on the leg of the barricade shortly before 12:30 p.m. on a clear day. The barricade consisted of three horizontal slats fastened to two vertical metal rods. The vertical metal rods were fastened to metal legs that ran perpendicular to the horizontal slats and prevented the barricade from falling over. Plaintiff acknowledged that the legs of the barricade were not concealed, and she did not recall seeing any shadows that obscured” them before she tripped and fell. Photos showed “a typical construction barricade situated on a narrow portion of the sidewalk where the concrete had been removed and replaced with gravel. The barricade sat parallel to a building that ran along the edge of the sidewalk. Given these conditions, an average person of ordinary intelligence would have known that the typical barricade rested on perpendicular legs protruding from its base. Thus, an average person of ordinary intelligence would have foreseen the danger posed by” the legs. She did not argue special aspects made the barricade unreasonably dangerous, and the barricade leg “was not effectively unavoidable and . . . did not present an unreasonable risk of severe harm.”

Claim under the dog-bite statute; MCL 287.351(1); Absolute liability; Hill v Sacka

The court held that the trial court erred by denying defendant-Ascension’s motion for summary disposition under MCR 2.116(C)(8) because plaintiff failed to state a claim on which relief could be granted. Thus, it reversed and remanded for entry of an order granting summary disposition for Ascension. Plaintiff was bitten by a dog while visiting the decedent on Ascension’s property. "The decedent’s son had brought the decedent’s dog, Brady, to the hospital with Ascension’s consent. Plaintiff testified that as he bent down or squatted to kiss the decedent goodbye, Brady bit him on his face, causing injury to his nose." Ascension claimed that "the trial court erred by partially denying its motion for summary disposition under MCR 2.116(C)(8) because the dog-bite statute imposes absolute liability on Brady’s owner." The court held that because, "absent provocation, Brady’s owner was liable for any and all of plaintiff’s damages, Ascension as a third party could not be liable for any of those damages. Hill’s observation that the fault or negligence of a third party is not relevant clearly applies to plaintiff’s claims in this case."

Appeal from an order exercising jurisdiction under MCL 712A.2(b)(2); Effect of the trial court’s dismissal of the case; Mootness; Potential registration on the Michigan Electronic Central Registry as a collateral legal consequence; In re Smith

The court concluded that respondents-parents’ appeal of the trial court’s order exercising jurisdiction over their children was moot as the trial court had dismissed the case. While they contended that potential registration on the Michigan Electronic Central Registry was “a collateral legal consequence” that made the case not moot, they did not show they were listed on the registry. Thus, the court dismissed their appeal as moot. It noted that even if it determined the trial court erred in exercising jurisdiction over their children, it could not “issue a judgment that would have any practical legal effect on an existing controversy, because the trial court no longer has jurisdiction over the children.” They asserted that their appeal was not moot because the trial court’s order exercising jurisdiction had “the collateral legal consequence of respondents’ placement on the central registry.” However, they simply stated in their appellate brief “that they are ‘presumably’ on the central registry” – they failed to make any offer of proof that they are in fact listed. Additionally, they did not suggest in their appellate brief that they sought to confirm with the DHHS whether they were on the registry. This “process may be done by filing a Central Registry Clearance Request as permitted under MCL 722.627(2)(f) and MCL 722.627j and described on the DHHS website. Without proof that” they were listed on the registry, they asked the court “to address ‘abstract questions of law which do not rest upon existing facts or rights.’”