Ineffective assistance of counsel; Failure to investigate; Failure to call witnesses; Failure to consult an expert; Distinguishing People v Ackley

Rejecting defendant’s claims that his trial counsel was ineffective for failing to investigate, call witnesses, or consult an expert, the court affirmed his CSC I and II convictions. As to the claim for not investigating “the history of sexual abuse accusations made in” the victim’s (D) household, nothing in the record indicated “what new information such an investigation would have found.” Further, no evidence in the record showed “that trial counsel in fact failed to investigate other sexual abuse allegations or whether trial counsel did investigate but found nothing he considered helpful.” The court added that, even assuming such evidence existed, trial counsel could reasonably have thought it would increase sympathy for D “and her siblings or made the jury more likely to believe that sexual abuse was commonplace in the house” and thus, that defendant, D’s stepfather, was guilty. As to the failure to call witnesses to testify about those other allegations, there was “slightly more information in the record about a potential witness” as to an earlier investigation into allegations by D’s half-sisters, “which did not result in criminal charges against defendant. Trial counsel stated on the record that he had police reports showing that the sisters’ allegations were definitely unfounded, and that he was hoping to hear back from a detective who could testify about that investigation. However, trial counsel then said that such a witness might not be necessary if the prosecution would stipulate that defendant was never charged for those allegations. The prosecution agreed to do so.” As to the failure to consult an expert claim, while defendant pointed to Ackley, that case differed “in important ways. First, in Ackley, expert testimony about a victim’s injuries was the gravamen of the prosecution’s case, and would ‘require a response.’” There was no prosecution expert here. Secondly, the defendant in Ackley “developed a record showing both that an expert in the relevant field agreed with the defense theory of the case, and that the defense counsel had failed to follow up when given the name of a specific qualified expert who might be willing to testify.” Defendant here did not provide “any proposed expert testimony,” making the value of any such testimony “at best speculative.”

Inconsistent verdicts; People v McKewen; People v Davis; AWIM; People v Ericksen; Felonious assault; People v Avant

Holding that the trial court in defendant’s bench trial entered inconsistent verdicts of AWIM and felonious assault, the court vacated his felonious assault conviction, but affirmed in all other respects. He was convicted of AWIM, felonious assault, resisting or obstructing a police officer, and domestic violence arising from his stabbing a former girlfriend. On appeal, defendant argued that the trial court erred by entering inconsistent verdicts of AWIM and felonious assault. “Unlike Davis, this case does not involve findings by the jury; this was a bench trial.” As such, the court felt bound by its “reaffirmation in McKewen that, where one verdict involves a specific intent and another involves the absence of that same intent, the ‘two offenses are mutually exclusive from a legislative standpoint,’ and a judge may not enter verdicts inconsistent with that fact.” In addition, it was “not prepared to muddy the waters by parsing out what constitutes multiple assaults in these cases where, both here and in McKewen, the ‘assault’ involved a singular transaction with the victim irrespective of whether it was one stabbing or multiple. Certainly, that the prosecution did not charge defendant for each individual stabbing in this case weighs against their argument on appeal that, perhaps, the trial court felt one stabbing involved an intent not to murder and supported a felonious assault conviction while another stabbing occurring at the same time involved an intent to murder to support AWIM.” In light of this, the court felt “compelled to vacate defendant’s felonious assault conviction because the trial judge should have known that it was inconsistent with his AWIM conviction.” However, it left “all other convictions undisturbed.”

Affidavit of Identity (AOI); MCL 168.558(4); Mootness; In re Indiana MI Power Co; Motion to intervene; MCR 2.209(A)(3); Mandamus; MCL 168.558 & MCL 168.848; Laches; Declaratory judgment; Temporary restraining order (TRO)

The court affirmed the order denying appellant-Davis’s motion to intervene and plaintiff’s emergency motion for a TRO, mandamus relief, and declaratory relief. The case involved events that occurred before the 2020 primary election and concerned the duties owed by defendants-County Clerk and Election Commission (collectively, Wayne County defendants) as to MCL 168.558(4). Intervenor-defendant-Worthy filed an AOI as to her candidacy for the office of Wayne County Prosecutor in the election. “Plaintiff, also a candidate for Wayne County Prosecutor, submitted a letter to Wayne County defendants” to challenge Worthy’s candidacy. The Clerk certified a list of candidates that included Worthy. Plaintiff immediately filed this case to preclude Worthy’s name from appearing on the ballots. Davis (a registered voter) filed an emergency motion to intervene. Although the issues before the court were moot, it held that “they should still be considered because the strict time constraints involved in elections create a reasonable expectation that the issues involved in this appeal could recur yet escape judicial review.” Davis challenged the trial court’s denial of his motion to intervene. The court held that considering “the tight schedule mandated by the issues before” the trial court, its denial of his motion “as untimely was not outside the range of principled outcomes.” He also challenged the trial court’s denial of mandamus. The court determined that under the unambiguous language of the amended MCL 168.558(4), “the Clerk’s duty is clear—if a candidate’s AOI contains a false statement, the Clerk cannot certify that candidate’s name to the Election Commission.” It found that the “trial court’s denial of mandamus on the merits was premature in light of plaintiff’s unresolved declaratory judgment claim.” But it determined that plaintiff’s “delay caused substantial prejudice to Wayne County defendants because it impaired their ability to produce the primary election ballots within the time frame required by statute and exposed them to significant financial waste if reprinting was required.” Thus, the trial court did not err by holding that plaintiff’s action was barred by laches. Lastly, as to the denial of a declaratory judgment, the court held that there was “an actual and present controversy before the court that required judgment to guide the parties’ future conduct and rights with respect to Worthy’s inclusion on the 2020 primary election ballot. Although the court did not address this issue, we can reasonably infer that the trial court’s application of laches extended to plaintiff’s declaratory judgment count.” The trial court did not err by holding that “plaintiff’s delay in challenging Worthy’s AOI precluded her claims. The trial court’s reasoning is even more compelling in the context of a declaratory judgment claim because such a claim would have been ripe for review well before the Clerk certified the candidates for the 2020 primary election and the Election Commission approved ballot printing.” Thus, the trial court did not err by dismissing plaintiff’s action.

Physical custody; Best-interest factors (d), (e), (i), (j), & (l); MCL 722.23; Parenting time; Great weight of the evidence

Holding that because the referee did not err, the trial court did not err by adopting the referee’s findings and recommendation and granting plaintiff-mother primary physical custody of the parties’ children, the court affirmed. Defendant-father argued the referee made a number of factual findings that were against the great weight of the evidence and thus, her ultimate finding that a change of custody was in the children’s best interests was erroneous. As to factor (d), he argued the referee placed too much emphasis on defendant’s girlfriend moving into the home. But the record supported the referee’s finding that plaintiff’s home provided more stability to the children. As to factor (e), the court held that “despite the referee’s improper consideration of defendant’s daycare arrangement, the referee’s finding on this factor was not against the great weight of the evidence.” As to factor (i), the court held that contrary to defendant’s portrayal of the referee’s “statements, the referee seems to have considered the children’s preferences, but determined they were not dispositive to this case in light of her resolution of the other best-interest factors.” As to (j), defendant argued the referee erred in finding that it “did not favor either party because the referee ignored the fact that plaintiff had made numerous motions to change parenting time and custody and filed a complaint with” CPS against him that was unsubstantiated. Giving deference to the trial court’s credibility findings, the court could not say that the referee’s finding was against the great weight of the evidence. As to (l), defendant argued the referee erred by considering the special needs of one of the children (J), “plaintiff’s frequent use of her right of first refusal, and the COVID-19 pandemic to weigh in plaintiff’s favor.” But the finding that “plaintiff was more ‘in tune’ with” J’s needs and primarily addressed all the children’s needs was not against the great weight of the evidence. Further, the finding that she tended “to take the lead by exercising her right of first refusal and generally overseeing the children’s remote learning during COVID-19” was not against the great weight of the evidence. The referee found that it was in the children’s best interests “for plaintiff to have primary physical custody, while defendant would receive slightly less parenting time.” The court held that her finding as to the “children’s best interests was not against the great weight of the evidence, and that her ultimate resolution of the issue of custody and parenting time was not an abuse of discretion.”

Medical malpractice; Whether there was a genuine issue of material fact as to whether a blood transfusion was an objectively reasonable treatment under the circumstances; Braverman v Granger; The doctrine of avoidable consequences; Failure to mitigate damages; Personal representative (PR)

Holding that there was not a genuine issue of material fact as to whether a blood transfusion was an objectively reasonable treatment under the circumstances, and that decedent-Higgs’s violating the doctrine of avoidable consequences barred plaintiff-PR from an award of damages, the court affirmed summary disposition for defendants. Higgs died after declining a blood transfusion on the basis of his religious beliefs. The court found Braverman virtually indistinguishable. Trying to distinguish it, plaintiff argued that, unlike the decedent there, "Higgs had an alternative treatment available to him that could have substituted for a blood transfusion. According to plaintiff, a timely laparotomy could have served as an alternative to a blood transfusion.” Thus, unlike in “Braverman, a blood transfusion was not necessary here, as Higgs had other treatment options.” Plaintiff asserted that this created a question of fact as to whether a blood transfusion was an objectively reasonable treatment in this case. The court was not persuaded. The record showed that “a laparotomy would not have substituted for a blood transfusion.” Here, the doctrine of avoidable consequences “would apply forward from the point at which Higgs’s hemoglobin dropped below 8.4 g/dl. According to plaintiff’s expert witnesses, this was the point just before or after which defendants should have begun treating Higgs lest he lost his chance of surviving. Beyond this point, Higgs was required to accept an objectively reasonable treatment to recover his chance at surviving. A laparotomy was not one of his options.” Even if a laparotomy was an available alternative life-saving treatment, plaintiff assumed “this fact alone would be enough to generate an issue of fact as to whether a blood transfusion was an objectively reasonable treatment.” In making this assumption, plaintiff disregarded that the question was not whether some alternative treatment existed; it was “whether that treatment was a feasible treatment to preserve his life.” In this case, a laparotomy was not a feasible treatment option. It would not replenish his blood loss, and as plaintiff’s expert “testified, once Higgs’s hemoglobin dipped below 8.4 g/dl, Higgs was unlikely to survive a laparotomy. Reasonable minds could not disagree that a blood transfusion was an objectively reasonable treatment under the circumstances.” Thus, by refusing one, he “failed to make a reasonable effort to mitigate his damages. All common law limitations on Higgs’s cause of action apply to plaintiff’s wrongful-death action.”

Due process; Hinky Dinky Supermarket, Inc v Department of Cmty Health; Procedural due process; Notice & an opportunity to be heard; Determining primary liability as to a no-fault claim; MCL 500.3109a; Auto Club Ins Ass’n v Frederick & Herrud, Inc; Substantive due process; AFT MI v Michigan

Holding that intervenor-appellant-insurer’s (Atlantic) due process rights were violated, the court vacated the trial court’s order granting plaintiff’s motion to strike Atlantic’s lien on his settlement proceeds. Plaintiff sued several insurers seeking benefits for injuries he sustained while driving his semitruck in the course of his employment. The trial court found defendant-Great American, with whom plaintiff had a “bobtail” policy, was first in priority. The parties reached a settlement under which Great American agreed to pay the overwhelming majority, and defendant-AIFE, plaintiff’s employer’s fleet insurer, agreed to pay a smaller portion. Plaintiff was enrolled in a group occupational accident insurance policy issued by Atlantic. The trial court, after previously denying Atlantic’s motion to intervene, granted plaintiff’s motion to strike Atlantic’s lien covering $50,000 in medical and wage-loss expenses it had already paid. The order stated that Atlantic was “primary for payment of health and accident benefits.” On appeal, the court agreed with Atlantic that it was deprived of procedural due process because it had no notice that its liability for paying plaintiff’s PIP benefits was at issue and no meaningful opportunity to be heard on this issue. “Atlantic had no reason to believe that the proceeding was actually one to determine whether it was liable to pay any or all of plaintiff’s PIP benefits.” In addition, “neither plaintiff nor the trial court did anything to notify Atlantic of the true nature of the postjudgment proceeding.” Further, without knowing that its liability to pay “benefits was at issue, Atlantic had no meaningful opportunity to contest its liability.” And because it was “denied the opportunity to participate in this case, it missed out on discovery. As a result, Atlantic had no access to the evidence against it—namely the entirety of Great American’s insurance policy.” Finally, even after the trial court declared Atlantic to be the primary insurer, it “still had no meaningful opportunity to be heard.” The court also agreed with Atlantic that the trial court violated its substantive due process rights when it arbitrarily disregarded the terms of its policy. “Without a valid legal basis for disregarding the terms of Atlantic’s insurance policy, the trial court here acted arbitrarily. And considering [it] imposed liability on a nonparty to this litigation, the trial court’s action shocks the conscience.” Vacated.

No-fault action; Mutual rescission of a policy; Tuomista v Moilanen; Young v Rice; Wall v Zynda; Distinguishing Green v Meemic Ins Co (Unpub)

Given that there was no evidence that plaintiff-insured (Smith) “used or ‘cashed’ the money refunded to her,” the court concluded that reasonable minds could differ as to whether she consented to the rescission of her no-fault policy with defendant-Auto Club Group. Thus, the trial court did not err in denying Auto Club’s summary disposition motion. Smith was involved in an auto accident and had a policy with Auto Club at the time. Sometime before this action was filed, Auto Club “discovered what it claimed constituted a discrepancy between addresses listed in Smith’s application for the insurance policy and the address listed as Smith’s on the police report of the accident. Defendant considered this a material misrepresentation or false information and sent Smith a letter of rescission.” In addition, it refunded her premium via “an electronic funds transfer (EFT), which automatically refunded the premium to Smith’s credit card.” Auto Club argued on appeal it was entitled to summary disposition because there was no material question of fact that a “mutual rescission occurred because Smith admitted to receiving the letter of rescission, acknowledged receiving the premium refund, and did not return the refund to defendant. However, defendant’s characterization of the ‘facts’ is not an accurate representation of the testimony. While Smith admitted to receiving the letter of rescission, acknowledged receiving the premium refund, and did not return the refund to defendant, Smith testified that she set the refunded money aside and did not use it.” While Auto Club cited unpublished cases in which mutual rescission was found, in each of them, the insurer “refunded the premium in the form of a check and the insured endorsed and cashed the check.” For example, unlike in Green, Auto Club here “sent the funds back to Smith via an EFT.” In light of Smith’s testimony that she did not use the funds but instead set them aside, her “conduct did not clearly indicate a ‘mutual understanding that the contract [was] abrogated or terminated’ or acquiescence to” Auto Club’s rescission of the policy. Affirmed.

Affidavit of Identity (AOI); MCL 168.558(4); Mootness; In re Indiana MI Power Co; Motion to intervene; MCR 2.209(A)(3); Mandamus; MCL 168.558 & MCL 168.848; Laches; Declaratory judgment; Temporary restraining order (TRO)

The court affirmed the order denying appellant-Davis’s motion to intervene and plaintiff’s emergency motion for a TRO, mandamus relief, and declaratory relief. The case involved events that occurred before the 2020 primary election and concerned the duties owed by defendants-County Clerk and Election Commission (collectively, Wayne County defendants) as to MCL 168.558(4). Intervenor-defendant-Worthy filed an AOI as to her candidacy for the office of Wayne County Prosecutor in the election. “Plaintiff, also a candidate for Wayne County Prosecutor, submitted a letter to Wayne County defendants” to challenge Worthy’s candidacy. The Clerk certified a list of candidates that included Worthy. Plaintiff immediately filed this case to preclude Worthy’s name from appearing on the ballots. Davis (a registered voter) filed an emergency motion to intervene. Although the issues before the court were moot, it held that “they should still be considered because the strict time constraints involved in elections create a reasonable expectation that the issues involved in this appeal could recur yet escape judicial review.” Davis challenged the trial court’s denial of his motion to intervene. The court held that considering “the tight schedule mandated by the issues before” the trial court, its denial of his motion “as untimely was not outside the range of principled outcomes.” He also challenged the trial court’s denial of mandamus. The court determined that under the unambiguous language of the amended MCL 168.558(4), “the Clerk’s duty is clear—if a candidate’s AOI contains a false statement, the Clerk cannot certify that candidate’s name to the Election Commission.” It found that the “trial court’s denial of mandamus on the merits was premature in light of plaintiff’s unresolved declaratory judgment claim.” But it determined that plaintiff’s “delay caused substantial prejudice to Wayne County defendants because it impaired their ability to produce the primary election ballots within the time frame required by statute and exposed them to significant financial waste if reprinting was required.” Thus, the trial court did not err by holding that plaintiff’s action was barred by laches. Lastly, as to the denial of a declaratory judgment, the court held that there was “an actual and present controversy before the court that required judgment to guide the parties’ future conduct and rights with respect to Worthy’s inclusion on the 2020 primary election ballot. Although the court did not address this issue, we can reasonably infer that the trial court’s application of laches extended to plaintiff’s declaratory judgment count.” The trial court did not err by holding that “plaintiff’s delay in challenging Worthy’s AOI precluded her claims. The trial court’s reasoning is even more compelling in the context of a declaratory judgment claim because such a claim would have been ripe for review well before the Clerk certified the candidates for the 2020 primary election and the Election Commission approved ballot printing.” Thus, the trial court did not err by dismissing plaintiff’s action.

Due process; Hinky Dinky Supermarket, Inc v Department of Cmty Health; Procedural due process; Notice & an opportunity to be heard; Determining primary liability as to a no-fault claim; MCL 500.3109a; Auto Club Ins Ass’n v Frederick & Herrud, Inc; Substantive due process; AFT MI v Michigan

Holding that intervenor-appellant-insurer’s (Atlantic) due process rights were violated, the court vacated the trial court’s order granting plaintiff’s motion to strike Atlantic’s lien on his settlement proceeds. Plaintiff sued several insurers seeking benefits for injuries he sustained while driving his semitruck in the course of his employment. The trial court found defendant-Great American, with whom plaintiff had a “bobtail” policy, was first in priority. The parties reached a settlement under which Great American agreed to pay the overwhelming majority, and defendant-AIFE, plaintiff’s employer’s fleet insurer, agreed to pay a smaller portion. Plaintiff was enrolled in a group occupational accident insurance policy issued by Atlantic. The trial court, after previously denying Atlantic’s motion to intervene, granted plaintiff’s motion to strike Atlantic’s lien covering $50,000 in medical and wage-loss expenses it had already paid. The order stated that Atlantic was “primary for payment of health and accident benefits.” On appeal, the court agreed with Atlantic that it was deprived of procedural due process because it had no notice that its liability for paying plaintiff’s PIP benefits was at issue and no meaningful opportunity to be heard on this issue. “Atlantic had no reason to believe that the proceeding was actually one to determine whether it was liable to pay any or all of plaintiff’s PIP benefits.” In addition, “neither plaintiff nor the trial court did anything to notify Atlantic of the true nature of the postjudgment proceeding.” Further, without knowing that its liability to pay “benefits was at issue, Atlantic had no meaningful opportunity to contest its liability.” And because it was “denied the opportunity to participate in this case, it missed out on discovery. As a result, Atlantic had no access to the evidence against it—namely the entirety of Great American’s insurance policy.” Finally, even after the trial court declared Atlantic to be the primary insurer, it “still had no meaningful opportunity to be heard.” The court also agreed with Atlantic that the trial court violated its substantive due process rights when it arbitrarily disregarded the terms of its policy. “Without a valid legal basis for disregarding the terms of Atlantic’s insurance policy, the trial court here acted arbitrarily. And considering [it] imposed liability on a nonparty to this litigation, the trial court’s action shocks the conscience.” Vacated.

Medical malpractice; Whether there was a genuine issue of material fact as to whether a blood transfusion was an objectively reasonable treatment under the circumstances; Braverman v Granger; The doctrine of avoidable consequences; Failure to mitigate damages; Personal representative (PR)

Holding that there was not a genuine issue of material fact as to whether a blood transfusion was an objectively reasonable treatment under the circumstances, and that decedent-Higgs’s violating the doctrine of avoidable consequences barred plaintiff-PR from an award of damages, the court affirmed summary disposition for defendants. Higgs died after declining a blood transfusion on the basis of his religious beliefs. The court found Braverman virtually indistinguishable. Trying to distinguish it, plaintiff argued that, unlike the decedent there, "Higgs had an alternative treatment available to him that could have substituted for a blood transfusion. According to plaintiff, a timely laparotomy could have served as an alternative to a blood transfusion.” Thus, unlike in “Braverman, a blood transfusion was not necessary here, as Higgs had other treatment options.” Plaintiff asserted that this created a question of fact as to whether a blood transfusion was an objectively reasonable treatment in this case. The court was not persuaded. The record showed that “a laparotomy would not have substituted for a blood transfusion.” Here, the doctrine of avoidable consequences “would apply forward from the point at which Higgs’s hemoglobin dropped below 8.4 g/dl. According to plaintiff’s expert witnesses, this was the point just before or after which defendants should have begun treating Higgs lest he lost his chance of surviving. Beyond this point, Higgs was required to accept an objectively reasonable treatment to recover his chance at surviving. A laparotomy was not one of his options.” Even if a laparotomy was an available alternative life-saving treatment, plaintiff assumed “this fact alone would be enough to generate an issue of fact as to whether a blood transfusion was an objectively reasonable treatment.” In making this assumption, plaintiff disregarded that the question was not whether some alternative treatment existed; it was “whether that treatment was a feasible treatment to preserve his life.” In this case, a laparotomy was not a feasible treatment option. It would not replenish his blood loss, and as plaintiff’s expert “testified, once Higgs’s hemoglobin dipped below 8.4 g/dl, Higgs was unlikely to survive a laparotomy. Reasonable minds could not disagree that a blood transfusion was an objectively reasonable treatment under the circumstances.” Thus, by refusing one, he “failed to make a reasonable effort to mitigate his damages. All common law limitations on Higgs’s cause of action apply to plaintiff’s wrongful-death action.”