Claim for posteviction damages; Breach of contract; Jacobs v. Detroit Auto. Inter-Ins. Exch.; Causation; Miller-Davis Co. v. Ahrens Constr., Inc.; Damages; Allison v. AEW Capital Mgmt., LLP; Central Trust Co. v. Wolf; Effect of the lease not having an acceleration clause; Sparta State Bank v. Covell; Benefit of the bargain; Ferguson v. Pioneer State Mut. Ins. Co.; Duty to mitigate; Goodwin, Inc. v. Coe; Late fees; Parmet Homes, Inc. v. Republic Ins. Co.; Attorney fees & expenses; Effect of successful summary eviction proceedings; MCL 600.5750; 1300 LaFayette E. Coop., Inc. v. Savoy

The court held that the trial court misapplied the law when it decided the damages to be awarded. Thus, it reversed the trial court’s default judgment to the extent that it ruled that plaintiffs were not entitled to posteviction damages, and remanded. The case arose out of defendants’ commercial lease of plaintiffs’ property. Plaintiffs argued the trial court erred by holding they were not entitled to posteviction damages because the lease did not contain an acceleration clause. The court agreed. It held that “while the trial court was correct that, in the absence of an acceleration clause, plaintiffs were not entitled to yet undetermined and unknowable future damages to the lease’s end date, it erred in failing to address whether plaintiffs were entitled to posteviction damages under the terms of the lease to the extent that such damages had accrued.” Resolving the issue of whether they were entitled to posteviction damages under ¶¶ 27 and 49 required review of the lease’s plain language. The unambiguous language of ¶ 27 dictated that they were entitled to ‘“all other damages by law’ in the event of a tenant’s default.” While damages are “generally precluded after the eviction period,” the plain language of ¶ 27 indicated plaintiffs were “entitled to repossess the premises while preserving the landlords’ right to damages.” This paragraph comported with case law “because ‘parties may contract that the provision of the lease for damages upon termination of the lease because of default of the lessee shall survive the restitution of the premises.’” Thus, plaintiffs were entitled to damages under ¶ 27, with or without terminating the lease. Paragraph 49 further buttressed their claim that they “were entitled to legally pursue posteviction damages because it provides for cumulative rights and remedies[.]” They did not waive “their right to pursue a civil action based on the breach of contract against defendants,” or their remedies after they successfully obtained an eviction order against defendants. As to plaintiffs’ duty to mitigate damages, the plain language of ¶ 27 showed that they were “entitled to all expenses incurred in their efforts to re-lease the premises.” They were also “entitled to receive any difference between the monthly amount of rent defendants owed under the lease, less the actual amount of rent plaintiffs received from their new tenant(s) after re-leasing the premises.” The record showed that they “made efforts to mitigate their damages,” but the trial court determined that it did not need to address the mitigation issue “because, absent an acceleration clause in the lease, plaintiffs were not entitled to posteviction rent damages.” This was a legal error.

Sufficiency of the evidence; People v. Harverson; People v. Reese; People v. Carll; Assault with intent to do great bodily harm less than murder (AWIGBH); MCL 750.84; People v. Brown; People v. Stevens; People v. Nowack; Unarmed robbery; MCL 750.530; People v. Smith-Anthony; Force defined; People v. Passage; Voluntary waiver of Miranda rights; Miranda v. Arizona; People v. Gipson; People v. Morrison; Ineffective assistance of counsel; People v. Vaughn; People v. Matuszak; People v. Trakhtenberg; People v. Rockey; Missouri v. Frye; People v. Corteway; People v. Williams; People v. Carbin; Failure to communicate a plea offer to defendant; Failure to file a motion to suppress defendant’s statements to the police contained in the video of his interrogation; People v. Knapp

Holding that there was sufficient evidence to support defendant’s AWIGBH and unarmed robbery convictions, that he voluntarily, knowingly, and intelligently waived his Miranda rights, and that he was not denied the effective assistance of counsel, the court affirmed. Defendant argued that the prosecution failed to produce sufficient evidence of his intent to do great bodily harm. He asserted that the assault lasted a short duration, and no one present at the scene, including victim-J himself, believed that J needed medical attention. Further, he relied on Dr. B’s opinion testimony that J’s medical records were inconsistent with witness-S’s and witness-N’s accounts of the assault, and that J’s brain injury could have been caused by a slip and fall. He contended that neurosurgeon-Dr. V’s testimony to the contrary was based on observations made when J’s condition had worsened because of his own failure to seek treatment. Defendant essentially argued “that the prosecution failed to invalidate his theory that he accidentally ‘fell on top’ of [J] in the course of an insignificant scuffle.” The possibility that J’s “delay in seeking treatment might have exacerbated his symptoms does not undermine the evidence that established that he sustained severe injuries when defendant assaulted him.” Based on S’s, N’s, and V’s “testimonies, the jury could reasonably find beyond a reasonable doubt that defendant assaulted [J] with the intent to do him great bodily harm less than murder.”

Sentencing; Scoring of OVs; 20 points for OV 1 (aggravated use of a weapon); MCL 777.31(1)(b) & (f); Whether gasoline was a “weapon”; MCL 777.31(3)(b); People v. Gary; People v. Hutcheson; People v. Ball; 15 points for OV 2 (lethal potential of weapon possessed or used); MCL 777.32(1); People v. Jarvi; 25 points for OV 3 (physical injury to a victim); MCL 777.33(1)(c) & (2)(a); People v. Houston; 25 points for OV 6 (intent to kill or injure); MCL 777.36(1)(b); 10 points for OV 19 (interference with the administration of justice); People v. Hershey; People v. Sours; Abandoned issue; McRoberts v. Ferguson; Upward sentencing departure; Reasonableness; People v. Lockridge; Proportionality; People v. Walden; People v. Milbourn; People v. Steanhouse; People v. Dixon-Bey; People v. Steanhouse (On Remand); Resentencing before a different judge; People v. Hill

Although the court affirmed the trial court’s scoring of the guidelines, it again vacated defendant’s sentences and remanded “for resentencing or for the trial court to issue an order clearly articulating its reasons for the departure and its extent.” The case arose from an incident where defendant paid his employee, D, “to set fire to a house owned by defendant’s then-girlfriend, apparently to avoid loss of the home to foreclosure. The house was empty when the fire was set. Firefighters arrived, entered the home and one of them, [W], was killed when a ceiling collapsed onto him.” Defendant was convicted of second-degree murder and arson of a dwelling-house, and acquitted of first-degree felony murder. The guidelines as initially scored recommended a minimum sentence between 180 and 300 months. He was “originally sentenced to 500 to 750 months for the second-degree murder conviction and 10 to 20 years for the arson of a dwelling-house conviction.” He appealed and the court “vacated his sentences and remanded for resentencing on the grounds that the trial court erred in failing to justify the extent of its departure from the sentencing guidelines range. He was resentenced by the same judge, and the sentences remained unchanged. He again appealed, and the court vacated his sentences and remanded for resentencing before a different judge.” However, the Supreme Court vacated that judgment and remanded to the court in light of Lockridge. “Defendant was resentenced, for the second time, to 450 to 700 months for second-degree murder and 10 to 20 years for arson of a dwelling-house.” Defendant argued, among other things, that the trial court erred in assessing 20 points for OV 1. He claimed “that the victim must have been ‘subjected or exposed’ to the incendiary device, i.e., gasoline.” Whether the gasoline was a weapon turned “on whether defendant used it offensively or defensively against another person.” The evidence showed that he asked D “to intentionally start the fire using gasoline. Thus, the gasoline was clearly used as an instrumentality, and the court was ‘aware of no reason why OV 1 should mandate that defendant wielded it personally.’” Unlike the drug-related situations in Gary and Ball, defendant in this case “unambiguously intended to use the gasoline for the purpose of causing harm.” Further, W “was neither unluckily in the wrong place at the wrong time, nor was he a voluntary participant in the arson.” Thus, the trial court erred in holding “that the gasoline was a ‘weapon’ just because it was intentionally used to cause some kind of harm and a person died as a result.” Under the circumstances, the court found “harmless the trial court’s failure to make an express factual finding as to defendant’s intent in using the gasoline.” It retained jurisdiction.

Divorce; Agreement that defendant-ex-husband would pay plaintiff-ex-wife 50% of his military retirement benefits; Combat-Related Special Compensation (CRSC) (a form of military disability benefits); 10 USC § 1413a; “Disposable retired pay” under the Uniformed Services Former Spouses’ Protection Act; § 1408(a)(4)(A); McCarty v. McCarty; Preemption; Howell v. Howell; Mansell v. Mansell; Merrill v. Merrill (AZ); In re Marriage of Cassinelli (CA App.); Effect of the parties’ consenting to plaintiff’s continued receipt of funds equal to those she would have received had defendant not elected to receive CRSC; An impermissible assignment; 38 USC § 5301(a)(1) & (a)(3)(A); A consent judgment as a contract; Laffin v. Laffin; Consideration; McInerney v. Detroit Trust Co.; Whether a veteran is obligated to compensate a former spouse in an amount equal to the share of retirement pay the spouse would have received pursuant to the divorce judgment had the veteran not elected to waive military retirement pay in favor of CRSC; Megee v. Carmine

The court held that federal law preempted state law so as to render the parties’ consent judgment (CJ) of divorce unenforceable to the extent it required defendant-ex-husband to reimburse plaintiff-ex-wife for the reduction in the amount she was due because of his election to receive CRSC. It also overruled the Court of Appeals’ opinion in Megee, which held that a veteran spouse “is obligated to compensate a former spouse in an amount equal to the share of retirement pay” the former spouse would have received under a divorce judgment but for the veteran’s election “to waive military retirement pay in favor of CRSC.” The court vacated the portion of the Court of Appeals opinion and judgment that found “defendant’s contentions amounted to an improper collateral attack on” the CJ, reversed the balance of that opinion, and remanded the case to the Court of Appeals. The CJ provided that “defendant would pay plaintiff 50% of his military retirement benefits.” It also provided that if he “waived a portion of his military retirement benefits in order to receive military disability benefits, he would continue to pay plaintiff an amount equal to what she would have received” if he had not elected to receive those disability benefits. He began “receiving CRSC shortly after the divorce. As a result,” his retirement benefits decreased, and this decreased the share of those benefits payable to plaintiff. He did not reimburse her for the reduced payment, and she asked the trial court to enforce the CJ. “The trial court and the Court of Appeals enforced” the CJ’s plain terms, requiring defendant to reimburse her. The court concluded that federal law preempted the trial court from including in the CJ “the offset provision on which plaintiff relies. The broad language of Howell precludes a provision requiring that plaintiff receive reimbursement or indemnification payments to compensate for reductions in defendant’s military retirement pay resulting from his election to receive any disability benefits, including CRSC as provided for under Title 10.” While plaintiff insisted that Howell was distinguishable because the parties here “consented to plaintiff’s continued receipt of funds equal to those she would have received had defendant not elected to receive CRSC[,]” their CJ effectively amounted to an impermissible assignment under federal statute. The court expressed no opinion on the effect its holdings had on defendant’s ability to challenge the CJ on collateral review.

Concurring fully in the majority’s reasoning and holding, Justice Viviano wrote “separately to more fully address questions that will arise on remand” that the parties had not adequately developed in their briefs. He concluded that, contrary to “defendant’s sweeping assertion, it is clear that not all federal preemption deprives state courts of subject-matter jurisdiction. On remand, the Court of Appeals will have an opportunity to address whether the particular type of preemption at issue in this case is jurisdictional.” The concurrence served to properly frame that inquiry, to clarify the court’s case law, and “to point to some of the pertinent authorities that may aid the Court of Appeals in resolving this complex and jurisprudentially significant issue.”

Custody; Eldred v. Ziny; The statutory best interest factors; MCL 722.23; Rivette v. Rose-Molina; Sinicropi v. Mazurek; Supervised parenting time; Contempt; MCL 600.6076; Due process; Elba Twp. v. Gratiot Cnty. Drain Comm’r; Reed v. Reed; York v. Civil Serv. Comm’n; Whether the failure to retain counsel required an adjournment; Wykoff v. Winisky; Principle the a party in a child custody dispute does not have a due process right to appointed counsel; Haller v. Haller; Alleged judicial bias; Meagher v. Wayne State Univ.; In re Contempt of Henry; Raise or waive rule; Walters v. Nadell; Plain error review; Demski v. Petlick; Kern v. Blethen-Coluni; Prejudice; Duray Dev., LLC v. Perrin

Rejecting defendant-mother’s due process claims related to being found in contempt, and holding that the trial court did not err in giving plaintiff-father sole physical custody of the parties’ child or in ordering supervised parenting time, the court affirmed. She did not “return the child after a parenting time visit. The trial court ordered [her] to show good cause why she had failed to comply with its prior orders.” When she did not appear for the show cause hearing, a bench warrant was issued. She was also arrested for parental kidnapping, “and arraigned in the district court. The trial court held a contempt hearing and found that defendant’s violations of the court’s orders were willful, and sentenced” her to 30 days in jail for civil contempt. She argued on appeal that she was denied her right to due process “when she was arraigned in district court before a different judge, who did not know anything about the case.” She further contended that the trial court “violated her due-process rights when it did not allow her to speak with her attorney and when [its] bailiff intimidated” her and her attorney. The court disagreed. First, the record showed that she was “not improperly arraigned for the contempt proceedings by the district court; instead, she was properly arraigned on her separate criminal matter.” To the extent she challenged “her contempt charge and the trial court’s order finding her in contempt,” the court concluded that the trial court’s order was authorized because the record showed “that defendant willfully failed to appear for three court hearings regarding this ongoing custody dispute.” As to her assertion that “she was denied due process when the trial court prevented her from speaking with an attorney[,]” she did not provide any record citation supporting this, and the record showed she “did not retain an attorney at any point during this child-custody proceeding.” She also failed to provide any record citation for where the alleged intimidation by the bailiff occurred. As to the child’s custody, the “trial court explicitly addressed each of the best interest factors during the custody hearing” and the court found no clear error in its weighing of them. As to the supervised parenting time order, “there was significant evidence that defendant violated the trial court’s orders multiple times when she failed to return the child to plaintiff after her scheduled parenting time. This alone justified the” order.

Child support; The Support & Parenting Time Enforcement Act (MCL 552.601 et seq.); Retroactive modification; MCL 552.603(2); Waple v. Waple; Malone v. Malone; Principle that a support obligation generally cannot be retroactively modified; Fisher v. Fisher; Retroactive modification of temporary orders; MCL 552.603(3); Proudfit v. O’Neal; MCR 3.207(C)(4); Riemer v. Johnson; Effect of the absence of a specific request for modification of a support order; Whether there was an agreement to retroactively modify the support order; MCL 552.603(5); Support order defined; MCL 552.602(jj); Principle that a court speaks through its orders; Luscombe v. Shedd’s Food Prods. Corp.

The court rejected defendant-father’s contention that a “petition for modification” under MCL 552.603(2) can include petitions that do not contain a specific request for modification, and his claim that MCR 3.207 applied. It also found that nothing in the record showed that plaintiff-mother agreed to retroactive modification of child support. However, as of 1/24/18, when according to the register of actions she received notice of the proposed order he filed, she was indisputably on notice that he was seeking modification. Thus, “the requirements of MCL 552.603(2) were fulfilled, and retroactive modification to the date plaintiff received notice of the proposed order . . . , according to the register of actions, would have been proper.” The court agreed in part with plaintiff that the trial court erred in retroactively modifying the child support order, vacated the order denying her objections to the recommended support order, and remanded. It was undisputed that defendant did not ask the trial court to modify child support in his 1/12/17 “motion to modify custody and parenting time, nor did he at any time thereafter file a petition or make a request for the modification of support. Without such petition and notice of the petition to the opposing party, MCL 552.603(2) precludes retroactive modification.” The court determined that a “petition (or motion) that does not expressly request a modification of support arguably cannot give the opposing party notice that modification of support is pending or establish the date before which support cannot be modified.” As to his claim that the trial court’s 2/9/17 order was a temporary support order and thus, subject to retroactive modification, the order stated that his child support obligation would be held in abeyance effective 1/23/17, but did not indicate whether his “child support obligation would be retroactively modified.” As to the applicability of MCL 552.603(5), he did not point to any place in the record showing that plaintiff expressly agreed to retroactive modification. However, the register of actions showed that on 1/24/18, defendant filed a proposed order with the child support provision instructing the FOC “referee to ‘calculate child support for the time period that it was held in “abeyance” along with a child support calculation under’” the new parenting time schedule. Proof “of service was entered in the register of actions on the same date” and plaintiff filed a brief in opposition.

Frivolous action sanctions; Whether the trial court was authorized to award sanctions on its own initiative; MCR 1.109(E)(6); Whether the claims were frivolous; MCL 600.2591(3)(a); Robert A Hansen Family Trust v. FGH Indus., LLC; Principle that a claim is not frivolous simply because it was unsuccessful; Adamo Demolition Co. v. Department of Treasury; Evaluating the claim at the time the suit was filed; In re Attorney Fees & Costs; Meisner Law Group PC v. Weston Downs Condo Ass’n; Mental capacity to execute a trust; Undue influence; Fraud as to trust documents

While the court held that the trial court was authorized to impose sanctions on its own initiative under MCR 1.109(E)(6), it concluded that petitioner’s claims that her father (Edwin) lacked the mental capacity to execute a trust, that he was unduly influenced, and that there was fraud as to the trust documents were not frivolous under MCL 600.2591(3)(a). Thus, it affirmed the judgment for respondents but vacated the award of sanctions. Petitioner first argued that the trial court erred in awarding respondents sanctions given that they did not file a motion requesting them. The court disagreed. It was apparent that the trial court determined the petition asserted frivolous claims, and thus, was “signed in violation of MCR 1.109(E)(5), as argued by respondents in their trial briefs.” It concluded in its opinion and order that petitioner “failed to present any material facts to support her claims.” In other words, it appeared to have found that her “claims of forgery, lack of mental capacity, fraud, and undue influence were not ‘well grounded in fact.’ MCR 1.109(E)(5). The trial court may, on its own initiative, impose sanctions for the violation, including frivolous-action sanctions as set forth in MCR 2.625(A)(2), and as provided by MCL 600.2591.” But the court agreed with petitioner that the trial court erred in concluding that her claims were frivolous. First, although her claim “that Edwin lacked the requisite mental capacity to sign the documents was ultimately unsuccessful, facts existed to support” this claim. Petitioner “testified that when she saw Edwin the day after he allegedly signed the documents, his eyes were glazed over, he did not know who she was although they had a close relationship for forty years, he did not know her son Tony, and she was told that Edwin was on thirty or forty medications.” She also presented the testimony of Eloise, Edwin’s sister (who was present when he allegedly signed the documents), that she believed “Edwin did not know what was going on and had no idea what he was signing at the time.” Likewise, while her claims of undue influence and fraud were ultimately unsuccessful, facts existed to support them. The trial court “did not apply the proper legal analysis by evaluating whether petitioner’s petition was based on an objectively reasonable inquiry into the factual and legal viability of her claims at the time the petition was filed.”

Divorce; Agreement that defendant-ex-husband would pay plaintiff-ex-wife 50% of his military retirement benefits; Combat-Related Special Compensation (CRSC) (a form of military disability benefits); 10 USC § 1413a; “Disposable retired pay” under the Uniformed Services Former Spouses’ Protection Act; § 1408(a)(4)(A); McCarty v. McCarty; Preemption; Howell v. Howell; Mansell v. Mansell; Merrill v. Merrill (AZ); In re Marriage of Cassinelli (CA App.); Effect of the parties’ consenting to plaintiff’s continued receipt of funds equal to those she would have received had defendant not elected to receive CRSC; An impermissible assignment; 38 USC § 5301(a)(1) & (a)(3)(A); A consent judgment as a contract; Laffin v. Laffin; Consideration; McInerney v. Detroit Trust Co.; Whether a veteran is obligated to compensate a former spouse in an amount equal to the share of retirement pay the spouse would have received pursuant to the divorce judgment had the veteran not elected to waive military retirement pay in favor of CRSC; Megee v. Carmine

The court held that federal law preempted state law so as to render the parties’ consent judgment (CJ) of divorce unenforceable to the extent it required defendant-ex-husband to reimburse plaintiff-ex-wife for the reduction in the amount she was due because of his election to receive CRSC. It also overruled the Court of Appeals’ opinion in Megee, which held that a veteran spouse “is obligated to compensate a former spouse in an amount equal to the share of retirement pay” the former spouse would have received under a divorce judgment but for the veteran’s election “to waive military retirement pay in favor of CRSC.” The court vacated the portion of the Court of Appeals opinion and judgment that found “defendant’s contentions amounted to an improper collateral attack on” the CJ, reversed the balance of that opinion, and remanded the case to the Court of Appeals. The CJ provided that “defendant would pay plaintiff 50% of his military retirement benefits.” It also provided that if he “waived a portion of his military retirement benefits in order to receive military disability benefits, he would continue to pay plaintiff an amount equal to what she would have received” if he had not elected to receive those disability benefits. He began “receiving CRSC shortly after the divorce. As a result,” his retirement benefits decreased, and this decreased the share of those benefits payable to plaintiff. He did not reimburse her for the reduced payment, and she asked the trial court to enforce the CJ. “The trial court and the Court of Appeals enforced” the CJ’s plain terms, requiring defendant to reimburse her. The court concluded that federal law preempted the trial court from including in the CJ “the offset provision on which plaintiff relies. The broad language of Howell precludes a provision requiring that plaintiff receive reimbursement or indemnification payments to compensate for reductions in defendant’s military retirement pay resulting from his election to receive any disability benefits, including CRSC as provided for under Title 10.” While plaintiff insisted that Howell was distinguishable because the parties here “consented to plaintiff’s continued receipt of funds equal to those she would have received had defendant not elected to receive CRSC[,]” their CJ effectively amounted to an impermissible assignment under federal statute. The court expressed no opinion on the effect its holdings had on defendant’s ability to challenge the CJ on collateral review.

Concurring fully in the majority’s reasoning and holding, Justice Viviano wrote “separately to more fully address questions that will arise on remand” that the parties had not adequately developed in their briefs. He concluded that, contrary to “defendant’s sweeping assertion, it is clear that not all federal preemption deprives state courts of subject-matter jurisdiction. On remand, the Court of Appeals will have an opportunity to address whether the particular type of preemption at issue in this case is jurisdictional.” The concurrence served to properly frame that inquiry, to clarify the court’s case law, and “to point to some of the pertinent authorities that may aid the Court of Appeals in resolving this complex and jurisprudentially significant issue.”

Governmental immunity under the Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(1); The highway exception; MCL 691.1402(1); Nawrocki v. Macomb Cnty. Rd. Comm’n; Notice; MCL 691.1404(1) & (2); Plunkett v. Department of Transp.; Burise v. Pontiac; Goodhue v. Department of Transp.; Rowland v. Washtenaw Cnty. Rd. Comm’n; Reed v. Michigan; Fields v. Suburban Mobility Auth. for Reg'l Transp.

Holding that the Court of Claims did not err by granting summary disposition for defendant-MDOT because plaintiff’s notice to sue for a highway defect was inadequate under MCL 691.1404, the court affirmed. Plaintiff sued defendant for injuries he sustained when a piece of concrete became dislodged from the road and smashed through his windshield. On appeal, the court rejected plaintiff’s argument that the Court of Claims erred by granting summary disposition for defendant because his complaint, “which he filed in the Court of Claims within the 120-day statutory notice period,” constituted adequate notice. It noted that the Court of Claims “properly construed the procedural requirements of the notice provision by determining that a complaint cannot satisfy the statutory notice requirements.” Allowing a plaintiff “to serve the notice on the state through filing it with the Clerk of the Court of Claims indicates that the statute contemplates that the filing of notice is a separate event from the filing of the complaint.” Namely, serving the notice through the Court of Claims “is intended to ensure delivery to the proper recipient.” In contrast, “a complaint filed in the Court of Claims must be served on the defendant independently from filing the complaint. These different procedures demonstrate that the Legislature intended for the filing of the notice and the filing of the complaint to be separate events.” The court also rejected plaintiff’s claim that it was bound to follow Goodhue, finding it irrelevant to the issue at hand. Finally, it rejected plaintiff’s contention that the purpose of the notice provision was fulfilled when defendant became aware of the state of the road as a result of the police investigation and the police contact with an MDOT employee immediately after the accident. “The notice provision requires strict compliance and a showing of prejudice is not required.” Thus, plaintiff’s argument about "defendant’s immediate knowledge of the condition of the road is meritless.”

Governmental immunity under the Governmental Tort Liability Act (MCL 691.1401 et seq.); Hannay v. Department of Transp.; The highway exception; MCL 691.1404(1); Notice; Rowland v. Washtenaw Cnty. Rd. Comm’n; Notice exception where the injured person is physically or mentally incapable of giving notice; MCL 691.1404(3); Statutory interpretation; Madugula v. Taub; McCahan v. Brennan; Davis v. Michigan Dep’t of Treasury; South Dearborn Envtl. Improvement Ass’n, Inc. v. Department of Envtl. Quality; Arrowhead Dev. Co. v. Livingston Cnty. Rd. Comm’n; GC Timmis & Co. v. Guardian Alarm Co.; Michigan Department of Transportation (MDOT)

Holding that plaintiff was not entitled to the notice exception under MCL 691.1404(3) because he was physically and mentally capable of giving notice well within the 120-day period, the court reversed the decision of the Court of Claims and remanded for entry of summary disposition for defendant-MDOT. Plaintiff sued defendant for injuries he sustained when he hit a pothole and was thrown from his bicycle. Although he filed his notice 151 days after his accident, the Court of Claims found he presented sufficient facts to place his capacity to provide notice in dispute and denied summary disposition for defendant. On appeal, the court rejected plaintiff’s argument that the plain language of MCL 691.1404(3) entitled him to the benefit of the 180-day notice period. “Given that the highway exception’s first subsection establishes a 120-day notice period,” the court found it “incomprehensible that the Legislature intended that every period of mental or physical disability, however short, would necessarily trigger the application of the extended notice timeframe.” Construing the extended notice provision in the manner proposed by plaintiff “would effectively eliminate the 120-day notice period in a large number of cases. Rather, the Legislature recognized that some disabled plaintiffs might be unable to understand that they have a claim, or to contact a lawyer, within the 120-day period. For those plaintiffs, the Legislature extended the notice period to 180 days. Because fact questions may arise regarding whether a disability lasted long enough or was serious enough to render a person incapable of providing notice, the Legislature assigned to the trier of fact the task of making a decision as to which notice provision applies.” But no such factual question existed here. By his own admission, plaintiff “was disabled for three of the 120 days in the default notice period. [He] does not deny that he signed the notice within the 120 days, as did his attorney. These facts eliminate his eligibility to claim the longer notice period, as [he] was unquestionably capable of providing notice within 120 days.”

Governmental immunity under the Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(1); The highway exception; MCL 691.1402(1); Nawrocki v. Macomb Cnty. Rd. Comm’n; Notice; MCL 691.1404(1) & (2); Plunkett v. Department of Transp.; Burise v. Pontiac; Goodhue v. Department of Transp.; Rowland v. Washtenaw Cnty. Rd. Comm’n; Reed v. Michigan; Fields v. Suburban Mobility Auth. for Reg'l Transp.

Holding that the Court of Claims did not err by granting summary disposition for defendant-MDOT because plaintiff’s notice to sue for a highway defect was inadequate under MCL 691.1404, the court affirmed. Plaintiff sued defendant for injuries he sustained when a piece of concrete became dislodged from the road and smashed through his windshield. On appeal, the court rejected plaintiff’s argument that the Court of Claims erred by granting summary disposition for defendant because his complaint, “which he filed in the Court of Claims within the 120-day statutory notice period,” constituted adequate notice. It noted that the Court of Claims “properly construed the procedural requirements of the notice provision by determining that a complaint cannot satisfy the statutory notice requirements.” Allowing a plaintiff “to serve the notice on the state through filing it with the Clerk of the Court of Claims indicates that the statute contemplates that the filing of notice is a separate event from the filing of the complaint.” Namely, serving the notice through the Court of Claims “is intended to ensure delivery to the proper recipient.” In contrast, “a complaint filed in the Court of Claims must be served on the defendant independently from filing the complaint. These different procedures demonstrate that the Legislature intended for the filing of the notice and the filing of the complaint to be separate events.” The court also rejected plaintiff’s claim that it was bound to follow Goodhue, finding it irrelevant to the issue at hand. Finally, it rejected plaintiff’s contention that the purpose of the notice provision was fulfilled when defendant became aware of the state of the road as a result of the police investigation and the police contact with an MDOT employee immediately after the accident. “The notice provision requires strict compliance and a showing of prejudice is not required.” Thus, plaintiff’s argument about "defendant’s immediate knowledge of the condition of the road is meritless.”

Governmental immunity under the Governmental Tort Liability Act (MCL 691.1401 et seq.); Hannay v. Department of Transp.; The highway exception; MCL 691.1404(1); Notice; Rowland v. Washtenaw Cnty. Rd. Comm’n; Notice exception where the injured person is physically or mentally incapable of giving notice; MCL 691.1404(3); Statutory interpretation; Madugula v. Taub; McCahan v. Brennan; Davis v. Michigan Dep’t of Treasury; South Dearborn Envtl. Improvement Ass’n, Inc. v. Department of Envtl. Quality; Arrowhead Dev. Co. v. Livingston Cnty. Rd. Comm’n; GC Timmis & Co. v. Guardian Alarm Co.; Michigan Department of Transportation (MDOT)

Holding that plaintiff was not entitled to the notice exception under MCL 691.1404(3) because he was physically and mentally capable of giving notice well within the 120-day period, the court reversed the decision of the Court of Claims and remanded for entry of summary disposition for defendant-MDOT. Plaintiff sued defendant for injuries he sustained when he hit a pothole and was thrown from his bicycle. Although he filed his notice 151 days after his accident, the Court of Claims found he presented sufficient facts to place his capacity to provide notice in dispute and denied summary disposition for defendant. On appeal, the court rejected plaintiff’s argument that the plain language of MCL 691.1404(3) entitled him to the benefit of the 180-day notice period. “Given that the highway exception’s first subsection establishes a 120-day notice period,” the court found it “incomprehensible that the Legislature intended that every period of mental or physical disability, however short, would necessarily trigger the application of the extended notice timeframe.” Construing the extended notice provision in the manner proposed by plaintiff “would effectively eliminate the 120-day notice period in a large number of cases. Rather, the Legislature recognized that some disabled plaintiffs might be unable to understand that they have a claim, or to contact a lawyer, within the 120-day period. For those plaintiffs, the Legislature extended the notice period to 180 days. Because fact questions may arise regarding whether a disability lasted long enough or was serious enough to render a person incapable of providing notice, the Legislature assigned to the trier of fact the task of making a decision as to which notice provision applies.” But no such factual question existed here. By his own admission, plaintiff “was disabled for three of the 120 days in the default notice period. [He] does not deny that he signed the notice within the 120 days, as did his attorney. These facts eliminate his eligibility to claim the longer notice period, as [he] was unquestionably capable of providing notice within 120 days.”

Claim for posteviction damages; Breach of contract; Jacobs v. Detroit Auto. Inter-Ins. Exch.; Causation; Miller-Davis Co. v. Ahrens Constr., Inc.; Damages; Allison v. AEW Capital Mgmt., LLP; Central Trust Co. v. Wolf; Effect of the lease not having an acceleration clause; Sparta State Bank v. Covell; Benefit of the bargain; Ferguson v. Pioneer State Mut. Ins. Co.; Duty to mitigate; Goodwin, Inc. v. Coe; Late fees; Parmet Homes, Inc. v. Republic Ins. Co.; Attorney fees & expenses; Effect of successful summary eviction proceedings; MCL 600.5750; 1300 LaFayette E. Coop., Inc. v. Savoy

The court held that the trial court misapplied the law when it decided the damages to be awarded. Thus, it reversed the trial court’s default judgment to the extent that it ruled that plaintiffs were not entitled to posteviction damages, and remanded. The case arose out of defendants’ commercial lease of plaintiffs’ property. Plaintiffs argued the trial court erred by holding they were not entitled to posteviction damages because the lease did not contain an acceleration clause. The court agreed. It held that “while the trial court was correct that, in the absence of an acceleration clause, plaintiffs were not entitled to yet undetermined and unknowable future damages to the lease’s end date, it erred in failing to address whether plaintiffs were entitled to posteviction damages under the terms of the lease to the extent that such damages had accrued.” Resolving the issue of whether they were entitled to posteviction damages under ¶¶ 27 and 49 required review of the lease’s plain language. The unambiguous language of ¶ 27 dictated that they were entitled to ‘“all other damages by law’ in the event of a tenant’s default.” While damages are “generally precluded after the eviction period,” the plain language of ¶ 27 indicated plaintiffs were “entitled to repossess the premises while preserving the landlords’ right to damages.” This paragraph comported with case law “because ‘parties may contract that the provision of the lease for damages upon termination of the lease because of default of the lessee shall survive the restitution of the premises.’” Thus, plaintiffs were entitled to damages under ¶ 27, with or without terminating the lease. Paragraph 49 further buttressed their claim that they “were entitled to legally pursue posteviction damages because it provides for cumulative rights and remedies[.]” They did not waive “their right to pursue a civil action based on the breach of contract against defendants,” or their remedies after they successfully obtained an eviction order against defendants. As to plaintiffs’ duty to mitigate damages, the plain language of ¶ 27 showed that they were “entitled to all expenses incurred in their efforts to re-lease the premises.” They were also “entitled to receive any difference between the monthly amount of rent defendants owed under the lease, less the actual amount of rent plaintiffs received from their new tenant(s) after re-leasing the premises.” The record showed that they “made efforts to mitigate their damages,” but the trial court determined that it did not need to address the mitigation issue “because, absent an acceleration clause in the lease, plaintiffs were not entitled to posteviction rent damages.” This was a legal error.

Frivolous action sanctions; Whether the trial court was authorized to award sanctions on its own initiative; MCR 1.109(E)(6); Whether the claims were frivolous; MCL 600.2591(3)(a); Robert A Hansen Family Trust v. FGH Indus., LLC; Principle that a claim is not frivolous simply because it was unsuccessful; Adamo Demolition Co. v. Department of Treasury; Evaluating the claim at the time the suit was filed; In re Attorney Fees & Costs; Meisner Law Group PC v. Weston Downs Condo Ass’n; Mental capacity to execute a trust; Undue influence; Fraud as to trust documents

While the court held that the trial court was authorized to impose sanctions on its own initiative under MCR 1.109(E)(6), it concluded that petitioner’s claims that her father (Edwin) lacked the mental capacity to execute a trust, that he was unduly influenced, and that there was fraud as to the trust documents were not frivolous under MCL 600.2591(3)(a). Thus, it affirmed the judgment for respondents but vacated the award of sanctions. Petitioner first argued that the trial court erred in awarding respondents sanctions given that they did not file a motion requesting them. The court disagreed. It was apparent that the trial court determined the petition asserted frivolous claims, and thus, was “signed in violation of MCR 1.109(E)(5), as argued by respondents in their trial briefs.” It concluded in its opinion and order that petitioner “failed to present any material facts to support her claims.” In other words, it appeared to have found that her “claims of forgery, lack of mental capacity, fraud, and undue influence were not ‘well grounded in fact.’ MCR 1.109(E)(5). The trial court may, on its own initiative, impose sanctions for the violation, including frivolous-action sanctions as set forth in MCR 2.625(A)(2), and as provided by MCL 600.2591.” But the court agreed with petitioner that the trial court erred in concluding that her claims were frivolous. First, although her claim “that Edwin lacked the requisite mental capacity to sign the documents was ultimately unsuccessful, facts existed to support” this claim. Petitioner “testified that when she saw Edwin the day after he allegedly signed the documents, his eyes were glazed over, he did not know who she was although they had a close relationship for forty years, he did not know her son Tony, and she was told that Edwin was on thirty or forty medications.” She also presented the testimony of Eloise, Edwin’s sister (who was present when he allegedly signed the documents), that she believed “Edwin did not know what was going on and had no idea what he was signing at the time.” Likewise, while her claims of undue influence and fraud were ultimately unsuccessful, facts existed to support them. The trial court “did not apply the proper legal analysis by evaluating whether petitioner’s petition was based on an objectively reasonable inquiry into the factual and legal viability of her claims at the time the petition was filed.”