Ineffective assistance of counsel; Failure to call an expert witness; Trial strategy; Good cause for relief under MCR 6.508(D)(2) & (3)(a)

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 75653 in the 6/24/21 edition) and remanded the case to the Court of Appeals for reconsideration. It directed the Court of Appeals to “specifically address whether or how the procedural bars of MCR 6.508(D)(2) and (3)(a) affect the outcome of this case.”

Mootness; Effect of defendant’s deportation & apparent disinterest in pursuing the appeal

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 75680 in the 6/30/21 edition) and remanded the case to the Court of Appeals for plenary consideration of defendant’s appeal.

Dispute over the probate court’s appointment of a successor guardian & conservator; Appointment of a guardian; MCL 700.5306(1); Priority for the appointment of a guardian; MCL 700.5313; In re Gerstler; Appointment of a conservator; MCL 700.5401(3). Priority for the appointment of a conservator; MCL 700.5409; Appoint of a professional guardian or conservator; MCL 700.5106(1); Dissolution of a guardianship & conservatorship; Effect of incapacitation; MCL 700.5306(1); MCL 700.5401(3); Sanctions for the filing of a frivolous motion; Guardian ad litem (GAL); The Estates & Protected Individuals Code (EPIC)

The court held that the probate court did not abuse its discretion by appointing a successor conservator (appellee-Childers) instead of appellant and her brother (Wyatt) to manage their father’s (David) finances on the basis they were not suitable, but did abuse its discretion by declining to appoint her and/or Wyatt as David’s guardians or co-guardians without making findings, supported by the record, that they were unsuitable for that role. It also held that the probate court did not err by denying the family’s petition to dissolve the guardianship and conservatorship, and it declined to consider her challenges to the imposition of sanctions for filing frivolous motions. The probate court initially appointed a public administrator (nonparty-B) as David’s guardian and conservator. David’s family later moved for an order of restitution to be imposed against B, asserting he caused David’s investment accounts to lose significant value. The probate court denied the motion and granted B’s request for sanctions on the basis that the motion was frivolous. It later denied another motion by the family and again granted B’s request for sanctions on the basis it was frivolous. It eventually appointed Childers as successor guardian and conservator. On appeal, the court first determined that the probate court did not err by finding appellant and Wyatt lacked sufficient sophistication to manage David’s finances. It “duly considered” their priority for appointment as conservators, and did not err by finding they were not suitable. As such, it “did not abuse its discretion by appointing Childers as David’s successor conservator.” However, the probate court “failed to support its finding that appellant and Wyatt are unsuitable to serve as David’s guardians.” David’s GAL and Childers “both stated that they had no objection to appellant’s or Wyatt’s appointment as David’s guardian or co-guardians. They agreed that David received good care in the family home, and there is no evidence on the record that David has been neglected or harmed in the family’s care.” The court next found that appellant’s challenges to the imposition of sanctions for “frivolous” motions were not properly before it. Finally, it rejected her contention that the probate court erred by denying the family’s petition to dissolve the guardianship and conservatorship, noting the probate court “was bound by the statutory provisions of the EPIC when determining David’s need for a guardian and a conservator, and could not simply leave his care to his family without complying with the statutory framework.” Affirmed in part, vacated in part, and remanded.

Governmental immunity; The motor vehicle exception; The law of the case doctrine; Rott v Rott

In an order in lieu of granting leave to appeal, the court vacated Part III of the Court of Appeals judgment (see e-Journal # 76017 in the 8/25/21 edition), and remanded the case to the Court of Appeals for reconsideration in light of Rott. The court denied plaintiff leave to appeal as cross-appellant in one of these consolidated cases because it was not persuaded that it should review the issue presented.

Governmental immunity; The motor vehicle exception; The law of the case doctrine; Rott v Rott

In an order in lieu of granting leave to appeal, the court vacated Part III of the Court of Appeals judgment (see e-Journal # 76017 in the 8/25/21 edition), and remanded the case to the Court of Appeals for reconsideration in light of Rott. The court denied plaintiff leave to appeal as cross-appellant in one of these consolidated cases because it was not persuaded that it should review the issue presented.

Premises liability; Fall through the upper floor of a mezzanine structure; Possession & control over the structure; Nuisance in fact

The court held that defendant-WOKO could not be directly liable to plaintiff for his injuries, and that the trial court properly dismissed his claims of premises liability as to WOKO and defendant-Tommy’s. His nuisance in fact claims also failed. Plaintiff was injured “when he fell through the upper floor of a mezzanine structure that had been constructed by” his employer, nonparty-Skiers Pier. It “occurred on the last day of Skiers Pier’s operation, and contemporaneously with a sale of Skiers Pier’s assets to Tommy’s. The building itself was owned by WOKO.” The mezzanine structure was constructed “more than a decade before WOKO and Skiers Pier entered into the lease agreement.” The evidence established that it “was constructed at the behest of, paid for by, and entirely used by, Skiers Pier.” The court noted that “WOKO owned the showroom building. However, the terms of the lease and the course of conduct by the parties clearly shows that only Skiers Pier, not WOKO, was in actual possession and control of the mezzanine structure[.]” Plaintiff argued that, “as landlord, WOKO was nevertheless legally liable, either because a latent defect existed in the mezzanine structure when the lease was entered into in 2013, or because lessors are generally liable to employees of tenants for defects in the premises.” But he misread the applicable case law. He was correct that “landlords are obligated to warn their tenants of latent defects in the premises that exist at the time a lease is executed.” However, that rule did not apply here, because he was not WOKO’s tenant. Further, there was “no evidence that the mezzanine structure had a design defect from the outset, there is no evidence the mezzanine structure had any flaws or deterioration in 2013, and, in any event, the mezzanine structure was constructed by Skiers Pier rather than WOKO.” Plaintiff was also correct that “landlords may have duties to their tenants’ employees or invitees under certain circumstances. However, those circumstances all involve the landlord retaining or exercising actual possession and control over the particular premises at issue.” The court held that “WOKO was not in actual possession and control over the mezzanine structure at the time plaintiff was injured, there is no evidence that [it] was defective in 2013 when WOKO formally leased the premises to Skiers Pier, and because [it] was constructed by Skiers Pier, WOKO may never have had possession and control over” it. Affirmed.

Dispute over the probate court’s appointment of a successor guardian & conservator; Appointment of a guardian; MCL 700.5306(1); Priority for the appointment of a guardian; MCL 700.5313; In re Gerstler; Appointment of a conservator; MCL 700.5401(3). Priority for the appointment of a conservator; MCL 700.5409; Appoint of a professional guardian or conservator; MCL 700.5106(1); Dissolution of a guardianship & conservatorship; Effect of incapacitation; MCL 700.5306(1); MCL 700.5401(3); Sanctions for the filing of a frivolous motion; Guardian ad litem (GAL); The Estates & Protected Individuals Code (EPIC)

The court held that the probate court did not abuse its discretion by appointing a successor conservator (appellee-Childers) instead of appellant and her brother (Wyatt) to manage their father’s (David) finances on the basis they were not suitable, but did abuse its discretion by declining to appoint her and/or Wyatt as David’s guardians or co-guardians without making findings, supported by the record, that they were unsuitable for that role. It also held that the probate court did not err by denying the family’s petition to dissolve the guardianship and conservatorship, and it declined to consider her challenges to the imposition of sanctions for filing frivolous motions. The probate court initially appointed a public administrator (nonparty-B) as David’s guardian and conservator. David’s family later moved for an order of restitution to be imposed against B, asserting he caused David’s investment accounts to lose significant value. The probate court denied the motion and granted B’s request for sanctions on the basis that the motion was frivolous. It later denied another motion by the family and again granted B’s request for sanctions on the basis it was frivolous. It eventually appointed Childers as successor guardian and conservator. On appeal, the court first determined that the probate court did not err by finding appellant and Wyatt lacked sufficient sophistication to manage David’s finances. It “duly considered” their priority for appointment as conservators, and did not err by finding they were not suitable. As such, it “did not abuse its discretion by appointing Childers as David’s successor conservator.” However, the probate court “failed to support its finding that appellant and Wyatt are unsuitable to serve as David’s guardians.” David’s GAL and Childers “both stated that they had no objection to appellant’s or Wyatt’s appointment as David’s guardian or co-guardians. They agreed that David received good care in the family home, and there is no evidence on the record that David has been neglected or harmed in the family’s care.” The court next found that appellant’s challenges to the imposition of sanctions for “frivolous” motions were not properly before it. Finally, it rejected her contention that the probate court erred by denying the family’s petition to dissolve the guardianship and conservatorship, noting the probate court “was bound by the statutory provisions of the EPIC when determining David’s need for a guardian and a conservator, and could not simply leave his care to his family without complying with the statutory framework.” Affirmed in part, vacated in part, and remanded.

Termination under §§ 19b(3)(c)(i) & (j); Reasonable reunification efforts; Children’s best interests; Domestic violence (DV)

Holding that §§ (c)(i) and (j) existed, the DHHS made reasonable reunification efforts, and termination of respondent-mother’s parental rights was in the children’s (KV and RW) best interests, the court affirmed. She correctly argued that the trial court erroneously relied on § (c)(ii) in its findings. However, it specifically referred to the language of § (c)(i), and made findings consistent with that ground. This error did “not alone warrant reversal, particularly when the DHHS requested termination on the correct basis and the trial court made the appropriate findings.” Crucially, the trial court did not clearly err by holding that “182 days had passed since the initial dispositional order, that conditions that led to the adjudication continued to exist, and that there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering the” children’s ages. The mother’s initial dispositional order for KV was entered “approximately 39 months before the termination hearing began . . . .” It entered her initial dispositional order for RW “approximately 19 months before the termination hearing began . . . .” The conditions that led to the adjudication primarily involved DV, and the mother continued to be involved in it. Specifically, she had a black eye in 2/20, as a result of respondent-GW (RW’s father) headbutting her, and she engaged in DV in 8/19 by attempting to cut a caseworker’s clothing. KV entered care as a result of respondent-EV (KV’s father) shooting at her car, and her car was involved in a shooting in 10/20. Additionally, she “engaged in threatening behavior toward RW’s placement on the first day of the termination hearing. Finally, there was no reasonable likelihood that mother could rectify the conditions in a reasonable time considering the children’s ages.” Despite over three years of services, she “continued to engage in aggressive behaviors, including threatening RW’s placement, and she had been incarcerated for the third time during the case as recently” as 1/21 through 3/21. She “stopped engaging in most services in fall 2020, well before the termination hearing began,” making it unlikely that she would benefit from services. “KV had already been in care for nearly two years by the time RW was removed from mother for continuing issues of [DV], and both children had been in care for most of their lives by the time of the termination hearing.” Thus, the trial court did not err by holding that evidence supported termination under § (c)(i).