Agreement containing a payback provision for water benefit fees; A consent judgment as a contract; The last-antecedent rule; Substitution of parties; MCR 2.202(B); Attorney fees under a consent judgment; Reasonableness; Pirgu v United Servs Auto Ass’n; Necessity of an evidentiary hearing

The court concluded that the trial court did not err when it ordered defendants (collectively the Township) to enter into a cost-sharing agreement with plaintiff-Seven Lakes Partnership (Seven Lakes) containing a payback agreement. Also, the trial court properly added Seven Lakes as a party, and it did not err in awarding attorney fees to Seven Lakes. The case arose out of a consent judgment between plaintiff-Seven Lakes Development and the Township concerning approximately 459 acres of undeveloped land owned by Seven Lakes Development. The court held that Seven Lakes was “entitled to a payback provision for reimbursement using water benefit fees ‘for improvements which connect to the Improvement[,]’ i.e., Segment 2, from ‘[t]he area and properties benefitted by the Water Improvements[.]’ The Township’s ordinance requiring Seven Lakes to extend the water line across its property, and the Township’s insistence Segment 2 be constructed in its entirety, provided Seven Lakes with no option other than to build Segment 2 to bring water to its property.” Given the parties’ intent and the “circumstances, the trial court did not err when it determined Seven Lakes was entitled to a payback provision for water benefit fees paid by properties in the water benefit district of Segment 2.” The Township also alleged the “trial court erred by permitting Seven Lakes to substitute itself as a party-plaintiff in this case in contravention of MCR 2.202(B).” But Seven Lakes, as the successor in interest of the “acres it purchased from Seven Lakes Development, LLC, was not required to move to permit its substitution under MCR 2.202(B). Furthermore, MCR 2.202(D) allowed for substitution even after entry of judgment.” In addition, the evidence showed “the trial court, in awarding attorney fees to Seven Lakes, was aware of its discretionary authority” to do so under the consent judgment. Finally, there was no indication it “abused its discretion in reasoning the hours billed by Seven Lakes’s counsels were higher than might normally be expected for a case like this, because of the fast-paced nature of the case, which was required by the consent judgment.” It also did not abuse its discretion in rendering the award without conducting an evidentiary hearing. Affirmed.

Agreement containing a payback provision for water benefit fees; A consent judgment as a contract; The last-antecedent rule; Substitution of parties; MCR 2.202(B); Attorney fees under a consent judgment; Reasonableness; Pirgu v United Servs Auto Ass’n; Necessity of an evidentiary hearing

The court concluded that the trial court did not err when it ordered defendants (collectively the Township) to enter into a cost-sharing agreement with plaintiff-Seven Lakes Partnership (Seven Lakes) containing a payback agreement. Also, the trial court properly added Seven Lakes as a party, and it did not err in awarding attorney fees to Seven Lakes. The case arose out of a consent judgment between plaintiff-Seven Lakes Development and the Township concerning approximately 459 acres of undeveloped land owned by Seven Lakes Development. The court held that Seven Lakes was “entitled to a payback provision for reimbursement using water benefit fees ‘for improvements which connect to the Improvement[,]’ i.e., Segment 2, from ‘[t]he area and properties benefitted by the Water Improvements[.]’ The Township’s ordinance requiring Seven Lakes to extend the water line across its property, and the Township’s insistence Segment 2 be constructed in its entirety, provided Seven Lakes with no option other than to build Segment 2 to bring water to its property.” Given the parties’ intent and the “circumstances, the trial court did not err when it determined Seven Lakes was entitled to a payback provision for water benefit fees paid by properties in the water benefit district of Segment 2.” The Township also alleged the “trial court erred by permitting Seven Lakes to substitute itself as a party-plaintiff in this case in contravention of MCR 2.202(B).” But Seven Lakes, as the successor in interest of the “acres it purchased from Seven Lakes Development, LLC, was not required to move to permit its substitution under MCR 2.202(B). Furthermore, MCR 2.202(D) allowed for substitution even after entry of judgment.” In addition, the evidence showed “the trial court, in awarding attorney fees to Seven Lakes, was aware of its discretionary authority” to do so under the consent judgment. Finally, there was no indication it “abused its discretion in reasoning the hours billed by Seven Lakes’s counsels were higher than might normally be expected for a case like this, because of the fast-paced nature of the case, which was required by the consent judgment.” It also did not abuse its discretion in rendering the award without conducting an evidentiary hearing. Affirmed.

Breach of contract; A “bona fide offer” & manifestation of an intent to sell the property under the provisions of a Limited Partnership Agreement (LPA); Whether the conditions precedent to the “right of first refusal” (ROFR) were met; Breach of fiduciary duty; Low-Income Housing Tax Credit (LIHTC) program

[This appeal was from the ED-MI.] The court concluded that there were genuine issues of material fact as to the meaning of “bona fide offer” as used in the LPA in question and “whether the General Partners had the requisite intent to trigger the ROFR” in the LPA. Thus, it reversed summary judgment for plaintiff-SunAmerica on its breach of contract claim and remanded. Because the breach of fiduciary duty claim was intertwined with the breach of contract claim, the court also reversed and remanded as to that claim. The case arose from a dispute among partners of a limited partnership formed to operate a low-income housing complex pursuant to the LIHTC program. The ROFR provision granted defendant-Presbyterian “the ROFR to purchase the property at a below-market rate following the conclusion of the LIHTC program’s compliance period.” At issue was whether the conditions precedent to trigger the ROFR were met. The main issues were whether the district court correctly granted summary judgment to SunAmerica when it held that: (1) a third-party’s proposal “did not constitute a bona fide offer” and (2) defendants-General Partners “did not manifest an intent to sell the Property.” The parties disagreed over how these two “conditions should be interpreted under the provisions of the LPA and thus whether they triggered the ROFR.” The court could not “impress the general common law meaning of ‘bona fide offer’ on an ROFR and LPA that expressly incorporated the LIHTC program and thus was created to accord with the LIHTC program.” The undisputed facts in the record did “not clearly resolve the meaning of the term—'bona fide offer’—as it is to be construed under the LIHTC.” Thus, it found that the term as it was used in the LPA was ambiguous. There were disputed issues of material fact concerning “how the term ‘bona fide offer’ in the LPA is to be formulated to accord with the Congressional expressions of intent in the LIHTC-promulgated ROFR—and whether that condition has been satisfied. These are matters that are better developed at trial and decided by a jury.” Further, the district court erred in holding that the “evidence ‘overwhelming[ly]’ showed that the General Partners did not intend to sell. The district court relied on e-mails indicating the General Partners ‘intend[ed] to proceed in accordance with Article 17,’ but pointed to no evidence showing that the General Partners never had an intent to sell or entertain third-party offers.” The two offers they received (and the fact they solicited at least one of them) seemed to suggest the opposite. Summary judgment was not appropriate.

Plea agreements; Motion to withdraw a guilty plea based on ineffective assistance of counsel; United States v. Goddard

The court affirmed the district court’s denial of defendant-Carson’s motion to withdraw his guilty plea, rejecting his ineffective assistance of counsel claims based on his alleged misunderstanding about his plea. He pled guilty to engaging in a racketeering conspiracy. After he received a “Notice of Intent to Not Seek the Death Penalty” (the Notice) he twice spoke to his attorney about it. At his change of plea hearing, he confirmed he understood the plea and its consequences. The district court accepted his plea. Carson filed a pro se motion to withdraw his plea, arguing he entered it “‘before [he] fully understood what [he] was actually saying [he] was guilty of,’ and that he entered the plea because he thought he would otherwise receive the death penalty.” His counsel also moved to withdraw the plea. The district court denied both requests. Days before sentencing, Carson sent a letter to the district court again trying to withdraw his plea and raising the issue of ineffective assistance of counsel for the first time. The district court eventually relieved his attorney, appointed new counsel, held an evidentiary hearing, and found that Carson “was not ‘operating under a misunderstanding’” as to his possible sentence when he entered into his plea. He was sentenced to 360 months. He argued his motion to withdraw his plea should have been granted because his attorney told him that the 30-year sentence would actually only result in a 17-year sentence, and also originally told him he could face the death penalty. Because the record was sufficiently developed, the court considered the merits of his ineffective assistance claims. It rejected his length-of-incarceration argument where he failed to show “deficient performance or prejudice.” It was not clear to the district court what his attorney told him about the sentence length. The attorney testified that no promise was made as to the length of incarceration, or about good-time credits. The court concluded that Carson did not show deficient performance, and that even if he had, he could not establish prejudice because he was adequately advised during the magistrate judge’s plea colloquy. The court also rejected his claim that he pled guilty based on fear of the death penalty where he received the Notice several weeks before pleading guilty and spoke to his counsel twice during that time. Thus, he again could not show deficient performance. The court also held that the district court did not err by denying his second motion to withdraw his plea where “the seven Goddard factors weigh[ed] against withdrawal.”

Petition for a recount; MCL 168.862; Duty to investigate; MCL 168.869 & 168.870; Mootness; Barrow v Detroit Election Comm’n; Public significance of issues arising from the interpretation & application of Michigan’s election laws; Gleason v Kincaid; Mandamus; Rental Props Owners Ass’n of Kent Cnty v Kent Cnty Treasurer; Ministerial act; Citizens Protecting MI’s Constitution v Secretary of State

The court held that the trial court did not err by denying plaintiff-mayoral candidate’s emergency motions for mandamus, declaratory judgment, and to show cause. After losing the primary election, plaintiff moved the trial court to declare that defendant-board of canvassers had a duty to investigate his claims of fraud and to enter an order compelling it to fulfill this duty. On appeal, he argued that the trial court abused its discretion in denying his motions because MCL 168.869 places a clear legal duty on defendant to investigate his claims of fraud. Plaintiff conceded the issue was moot, but because it “is likely that candidates in future primaries will petition for recounts, and it is likely that those candidates could be dissatisfied with the adequacy of a board of county canvassers’ investigations” into his or her claims, the court agreed to consider the substantive merits of plaintiff’s argument. But it concluded that while defendant had a clear legal duty to investigate, the trial court “correctly found that mandamus was inappropriate here. This is because, in the context of MCL 168.869, the act of investigating is an act that is discretionary in nature—not ministerial.” In addition, none of MCL 168.869’s “neighboring statutes prescribe or support a particular manner of investigation either.” In short, defendant had no duty to investigate “in a particular manner. The manner in which to conduct the investigation was left to defendant’s discretion.” As such, the act plaintiff sought “to compel is not ministerial, and it would be inappropriate to compel defendant to investigate any further or in any particular manner. Had defendant wholly declined to investigate whatsoever (as plaintiff suggests), mandamus may have been appropriate. But defendant did not decline to investigate: it conducted a recount.” Thus, the trial court correctly determined “mandamus was inappropriate here. At the same time, because plaintiff’s clear legal rights were satisfied by defendant’s recount and plaintiff was entitled to nothing further, the trial court correctly denied plaintiff’s request for declaratory judgment.” Affirmed.

The No-Fault Act (the Act); PIP benefits; Whether injuries arose out of the “maintenance” of the vehicle or a fall; MCL 500.3105(1); Distinguishing Woodring v Phoenix Ins Co & McMullen v Motors Ins Corp; Parked-vehicle exclusion, MCL 500.3106(1); “Parked”

Holding that plaintiff was not entitled to PIP benefits for injuries sustained from a fall into an oil change station service pit, the court reversed the trial court’s order granting her motion for partial summary disposition and remanded for entry of an order granting defendant-insurer summary disposition. The court concluded that plaintiff’s vehicle was simply “incidental to the circumstances.” The cause of her injuries was her fall into the service pit. And her fall “was not in any way a direct result of the maintenance being performed on her vehicle. In other words, the performance of maintenance on plaintiff’s vehicle did not directly cause plaintiff to fall into the service pit and sustain injuries.” Unlike in the cases of Woodring and McMullen, which the trial court relied on, “in this case no condition created by the maintenance being performed caused plaintiff’s injuries. The filter that plaintiff was being asked to look at did not cause plaintiff to fall into the service pit. And the fact that plaintiff was asked to look at the filter by the service technician did not cause plaintiff to fall into the service pit. Rather, it was plaintiff’s lack of attention to where she was walking that caused her to fall into the service pit and sustain injuries. Even if plaintiff did slip on something before falling as she claimed in her deposition, there was no evidence that the slippery substance came from the filter or” her vehicle. In short, her “claimed injuries did not arise out of the maintenance of her vehicle because the connection between plaintiff’s claimed injuries and the maintenance of her motor vehicle was no more than ‘but for,’ incidental, or fortuitous.” She alternatively claimed that MCL 500.3106(1)(a) applied. The court first addressed whether her “vehicle was ‘parked’ within the contemplation of this exception to the parked vehicle exclusion of” the Act. It noted that her vehicle was inside the service facility “for the purpose of getting the oil and filter changed, i.e., maintenance.” Plaintiff claimed that if it “had completely covered the service pit, she would not have fallen into the” pit. The court determined she was essentially “claiming that the manner in which her vehicle was positioned over the service pit—with a gap large enough for a person to fall through and into the pit—posed an unreasonable risk of injury.” Under these circumstances the court held that her “vehicle was not ‘parked’ for purposes of” the Act and thus, her “injuries did not arise out of the use of a parked vehicle as a motor vehicle under MCL 500.3106(1).”

Petition to initiate child protective proceedings; MCR 3.961(A); “Petition”; MCR 3.903(A)(20); “Petitioner”; MCR 3.903(A)(22); Requirements for a petition; MCR 3.961(B)(1)-(6); Jurisdiction; MCL 712A.2(b)(1) & (2); Whether the interests of the public or the juvenile require that further action be taken; MCL 712A.11(1); Preliminary inquiry; MCR 3.962(A) & (B)(1)-(3); MCR 3.903(A)(23); Standing; In re Jagers

The court held that the trial court erred by denying petitioner’s petition to initiate child protective proceedings against respondents-parents as to their care of his minor sister, FN. Petitioner, respondents’ adult child and FN’s sibling, alleged in his petition that respondents were unfit to raise FN without state supervision. He claimed his upbringing was mentally abusive and dysfunctional, and court intervention was necessary to save FN from the same. He requested the trial court order supervision of FN’s psychological development and unspecified “treatment” for respondents. On appeal, the court found the trial court “erroneously dismissed the petition for lack of standing, and this amounted to error requiring reversal.” If the Legislature “wanted to restrict who may initiate child protective proceedings, it would have done so statutorily—as it did with termination-of-parental-rights proceedings.” However, by allowing any “person” to initiate child protective proceedings, it “expressly provided anyone who has knowledge of potential child abuse or neglect with standing to request court action to protect the child. To read the law regarding initiation of child protective proceedings any more restrictively would ignore both the plain language and expansive purpose of the Juvenile Code.” It noted the “adult sibling of a minor assuredly qualifies as a person and may initiate proceedings to protect the minor.” As such, given the “plain meaning of MCL 712A.11(1), petitioner had standing to file the petition to initiate child protective proceedings against his parents regarding their care of FN.” In addition to having standing, “petitioner’s petition contained the necessary components . . . .” Because petitioner did not request “any form of placement for FN or termination of respondents’ parental rights, the trial court had discretion to dismiss the petition after a preliminary inquiry.” Because petitioner filed a valid petition to initiate child protective proceedings, the trial court “was obliged to consider the merits of the petition and make a discretionary ruling regarding how to proceed. In failing to do so, the trial court’s erroneous dismissal of the petition for lack of standing directly impacted the outcome of the case by eliminating the possibility of further child protective proceedings.” Thus, reversal was warranted for the trial court “to consider the petition’s merits and to make a discretionary decision about how to proceed with the petition under MCR 3.962(B).” Reversed and remanded.

Petition to initiate child protective proceedings; MCR 3.961(A); “Petition”; MCR 3.903(A)(20); “Petitioner”; MCR 3.903(A)(22); Requirements for a petition; MCR 3.961(B)(1)-(6); Jurisdiction; MCL 712A.2(b)(1) & (2); Whether the interests of the public or the juvenile require that further action be taken; MCL 712A.11(1); Preliminary inquiry; MCR 3.962(A) & (B)(1)-(3); MCR 3.903(A)(23); Standing; In re Jagers

The court held that the trial court erred by denying petitioner’s petition to initiate child protective proceedings against respondents-parents as to their care of his minor sister, FN. Petitioner, respondents’ adult child and FN’s sibling, alleged in his petition that respondents were unfit to raise FN without state supervision. He claimed his upbringing was mentally abusive and dysfunctional, and court intervention was necessary to save FN from the same. He requested the trial court order supervision of FN’s psychological development and unspecified “treatment” for respondents. On appeal, the court found the trial court “erroneously dismissed the petition for lack of standing, and this amounted to error requiring reversal.” If the Legislature “wanted to restrict who may initiate child protective proceedings, it would have done so statutorily—as it did with termination-of-parental-rights proceedings.” However, by allowing any “person” to initiate child protective proceedings, it “expressly provided anyone who has knowledge of potential child abuse or neglect with standing to request court action to protect the child. To read the law regarding initiation of child protective proceedings any more restrictively would ignore both the plain language and expansive purpose of the Juvenile Code.” It noted the “adult sibling of a minor assuredly qualifies as a person and may initiate proceedings to protect the minor.” As such, given the “plain meaning of MCL 712A.11(1), petitioner had standing to file the petition to initiate child protective proceedings against his parents regarding their care of FN.” In addition to having standing, “petitioner’s petition contained the necessary components . . . .” Because petitioner did not request “any form of placement for FN or termination of respondents’ parental rights, the trial court had discretion to dismiss the petition after a preliminary inquiry.” Because petitioner filed a valid petition to initiate child protective proceedings, the trial court “was obliged to consider the merits of the petition and make a discretionary ruling regarding how to proceed. In failing to do so, the trial court’s erroneous dismissal of the petition for lack of standing directly impacted the outcome of the case by eliminating the possibility of further child protective proceedings.” Thus, reversal was warranted for the trial court “to consider the petition’s merits and to make a discretionary decision about how to proceed with the petition under MCR 3.962(B).” Reversed and remanded.

Termination under § 19b(3)(j); In re Gonzalez/Martinez; Likelihood of harm; In re Pops; Notice under the Indian Children Welfare Act (ICWA) (25 USC § 1291(a)) & Michigan law (MCL 712B.9(1)); Whether the trial court was required to view video recordings of the children’s interviews; MCL 712A.17b(5); Reasonable reunification efforts; MCL 712A.18f(3)(b)-(d); MCL 712A.19a(2); In re Hicks; Best interests of the children

The court held that the trial court did not fail to comply with the ICWA’s notice provision and was not required to view video recordings of the children’s forensic interviews. It also held that the DHHS did not fail to make reasonable reunification efforts, § (j) was met, and termination was in the children’s best interests. It rejected respondent-mother’s argument that the DHHS and the trial court failed to comply with the ICWA. “[A]n initial discussion occurred at the preliminary hearing highlighting that the children may be Native American. However, at that same hearing, the prosecutor represented that, in a previous case involving the children, the proper paperwork was sent to the Cherokee Nation, the tribe that father identified, and it replied that the children were not members.” At a later review hearing, both parents “reported that the children were not Native American.” As such, the trial court “did not have reason to know that the children were Native American, and” the mother was not entitled to relief on this issue. As to her claim that the trial court erred when it did not view video recordings of the children’s forensic interviews, “the children had not been accused of any wrongdoing.” In other words, the statute she asserted “the trial court violated does not apply in this case by its express terms.” The court also rejected her contention the DHHS did not make reasonable efforts to reunify the family in light of her difficulties with some learning tasks. As she acknowledged, the referee “was the most concerned with [her] reluctance to accept or unwillingness to believe the children and recognize the children’s complex traumas. Without this acceptance, the referee believed that there were no efforts the DHHS could make, in a reasonable time given the children’s ages, that would rectify the barriers to reunification.” In addition, § (j) was met as “the record supported the trial court’s finding that returning to mother’s care presented a risk of emotional harm to the children.” Finally, termination was in their best interests. The record showed that they all, “except one who was removed a few days after his birth and was still an infant, exhibited hypersexual behaviors associated with sexual abuse. Witnesses testified that the children needed permanency, stability, and support in overcoming their traumas. The children were receiving these things in their foster homes. But, as the referee was centrally concerned about, mother had not” shown she was willing to believe them. Affirmed.

Sufficiency of evidence as to whether defendants breached their duty of care owed; Failure to wait to insert a ticket & find a seat before moving the streetcar forward; Special & apparent reason; Ottinger v Detroit United Ry; Getz v Detroit; Acceleration of the streetcar in a particularly violent & sudden manner; Distinguishing Adelsperger v Detroit

The court concluded that the trial court did not err by holding that plaintiff failed to submit evidence of a special reason why the streetcar driver should have delayed moving forward. Also, it did not err by holding that “plaintiff failed to establish as a matter of law that the acceleration of the streetcar was unnecessarily violent or sudden.” Thus, the court affirmed summary disposition for defendants. The case arose when plaintiff was injured while riding the streetcar. Plaintiff argued that she submitted evidence sufficient to create a genuine issue of material fact as to whether defendants breached their duty of care owed to her. She contended that the “driver breached the duty of care by (1) failing to wait for her to insert her ticket and find a seat before moving the streetcar forward and/or (2) accelerating the streetcar in a particularly violent and sudden manner.” Under Getz and Ottinger, the question here was “whether there was some special and apparent reason why we should not apply the general rule that streetcar drivers are not required to wait until all passengers are seated before operating the streetcar in a forward motion.” Plaintiff argued that “because passengers are required to place their tickets in a receptacle before finding a seat, the law should recognize an obligation or duty by the driver to wait to move forward until a passenger goes through the process of submitting his or her ticket and finds a seat.” The court held that her “argument does not constitute a ‘special’ reason for not applying the general rule. Although Getz did not place any focus on the fact that the plaintiff was waiting for a transfer ticket when she fell, ticket-related transactions on boarding a bus or streetcar are certainly commonplace and recognizing an exception to the general rule as proffered by plaintiff would swallow up the rule.” To the extent she contended that “the driver should have waited because it was an unusually busy day, the Supreme Court’s ruling in Ottinger reflects the reasoning that overcrowded streetcars is one of the primary reasons that the general rule of nonliability exists.” Also, the only evidence “in support of the acceleration being unnecessarily violent or sudden was plaintiff’s testimony that her friend also fell.” Plaintiff relied on “the statement in Ottinger that no one else had fallen during the sudden stop.” But as the trial court recognized, “this fact was mentioned only briefly in Ottinger, while the Court mostly focused on the plaintiff’s fall being a product of natural and expected forces.” The court could “not conclude that evidence that two people fell when the streetcar pulled forward created a genuine issue of material fact regarding whether the streetcar’s acceleration was unnecessarily violent or sudden.”

Defamation; The First Amendment; New York Times v Sullivan; Gertz v Robert Welch, Inc; Defamation by implication; Capable of defamatory meaning; Falsity; “Actual malice”; Ireland v Edwards; False light invasion of privacy; Central Michigan University (CMU)

The court held that the trial court erred in granting defendants-ESPN and its reporter (Murphy) summary disposition of one of plaintiff-Reighard’s defamation by implication claims and the related false light invasion of privacy claim. Plaintiff was the long-time CMU head women’s gymnastics coach. The case arose from two tweets Murphy posted. The court concluded, “particularly in light of the manner in which the statements contained within the tweets were juxtaposed with one another, that the implications complained of are capable of defamatory meaning. . . . The implication that Reighard’s placement on leave was related to allegations that” the head coach of the 2012 U.S. women’s gymnastics Olympic team (nonparty-G) “had physically and mentally harmed gymnasts tended to harm Reighard’s reputation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him. That assessment is even more true with respect to the second alleged implication, i.e., that Reighard’s placement on leave was related to Nassar or sexual abuse allegations.” The court found that this was “not so strained a reading of the tweets as to make summary disposition appropriate” and that a reasonable jury should assess them. As to falsity, it concluded there “was no record evidence refuting the alleged implication that CMU placed Reighard on leave for reasons related to the investigation of [G] (for allegedly physically and mentally harming gymnasts). Consequently, the implication was not, as a matter of law, materially false, and summary disposition on this claim” was proper. But the court found the same could not be said about “the second implication, i.e., that there was a connection between Reighard being placed on administrative leave and Nassar or sexual-abuse allegations. Indeed, the falsity of that implication is uncontested. Moreover, the evidence reflects that CMU confirmed on [2/20/21]—as reported by multiple news outlets at that time—that its investigation into Reighard was not connected to Nassar or allegations of sexual abuse. Moreover, when Murphy contacted CMU after being asked to retract his tweets, he was provided with the same information. Reighard has therefore satisfied the ‘falsity’ element” as to this claim. The court further found there was “adequate circumstantial evidence” for the issue of actual malice to be decided by a fact-finder. Affirmed in part, reversed in part, and remanded.

Motion to terminate an ex parte PPO; Domestic-relationship PPOs; MCL 600.2950; Reasonable cause

While the trial court did not apply the wrong legal standard in ruling on respondent’s motion to terminate the ex parte PPO, the court held that it abused its discretion in denying his motion. The evidence petitioner presented “was insufficient for the trial court to find there was reasonable cause to believe that respondent might commit a prohibited act under” MCL 600.2950(1). The parties filed for divorce shortly after these PPO proceedings began. The trial court’s ruling “appeared to exclusively rely on” testimony by petitioner that respondent’s statements about an altercation, given at a hearing in the divorce case, made her fearful. The trial court was in the best position to assess her credibility, and the court did “not doubt the genuine nature of petitioner’s fear. However, the trial court’s credibility determination did not justify its ultimate conclusion that” she satisfied her burden of showing “reasonable cause to believe that respondent ‘may commit’ an act prohibited under MCL 600.2950(1).” The statutory language “in MCL 600.2950(4) is forward-looking, indicating that the trial court must find reasonable cause to believe that respondent may commit a prohibited act in the future. Petitioner’s evidence established that respondent had previously caused her a reasonable apprehension of violence but did not demonstrate the possibility—beyond speculation—to believe” he may do so again. The court noted it was proper to consider his “testimony at the divorce hearing and whether that may have caused petitioner a reasonable apprehension of violence.” But in light of her admission she punched him “in the face and that the responding police officer sought charges against petitioner for domestic assault,” the court found that the trial court abused its discretion in denying respondent’s motion on the basis of his “testimony about this incident. The trial court gave no consideration to the police officer’s findings and how those findings may have contextualized respondent’s statement.” It also failed to adequately explain how evidence of his testimony met petitioner’s burden. Its “reasoning was particularly insufficient because respondent’s testimony was the only piece of specific evidence” it cited to support its decision. There was also no evidence “that respondent had violated the trial court’s orders in the 10-month period between the” initial PPO’s issuance and the motion hearing.

Defamation; The First Amendment; New York Times v Sullivan; Gertz v Robert Welch, Inc; Defamation by implication; Capable of defamatory meaning; Falsity; “Actual malice”; Ireland v Edwards; False light invasion of privacy; Central Michigan University (CMU)

The court held that the trial court erred in granting defendants-ESPN and its reporter (Murphy) summary disposition of one of plaintiff-Reighard’s defamation by implication claims and the related false light invasion of privacy claim. Plaintiff was the long-time CMU head women’s gymnastics coach. The case arose from two tweets Murphy posted. The court concluded, “particularly in light of the manner in which the statements contained within the tweets were juxtaposed with one another, that the implications complained of are capable of defamatory meaning. . . . The implication that Reighard’s placement on leave was related to allegations that” the head coach of the 2012 U.S. women’s gymnastics Olympic team (nonparty-G) “had physically and mentally harmed gymnasts tended to harm Reighard’s reputation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him. That assessment is even more true with respect to the second alleged implication, i.e., that Reighard’s placement on leave was related to Nassar or sexual abuse allegations.” The court found that this was “not so strained a reading of the tweets as to make summary disposition appropriate” and that a reasonable jury should assess them. As to falsity, it concluded there “was no record evidence refuting the alleged implication that CMU placed Reighard on leave for reasons related to the investigation of [G] (for allegedly physically and mentally harming gymnasts). Consequently, the implication was not, as a matter of law, materially false, and summary disposition on this claim” was proper. But the court found the same could not be said about “the second implication, i.e., that there was a connection between Reighard being placed on administrative leave and Nassar or sexual-abuse allegations. Indeed, the falsity of that implication is uncontested. Moreover, the evidence reflects that CMU confirmed on [2/20/21]—as reported by multiple news outlets at that time—that its investigation into Reighard was not connected to Nassar or allegations of sexual abuse. Moreover, when Murphy contacted CMU after being asked to retract his tweets, he was provided with the same information. Reighard has therefore satisfied the ‘falsity’ element” as to this claim. The court further found there was “adequate circumstantial evidence” for the issue of actual malice to be decided by a fact-finder. Affirmed in part, reversed in part, and remanded.

Termination under § 19b(3)(j); In re Gonzalez/Martinez; Likelihood of harm; In re Pops; Notice under the Indian Children Welfare Act (ICWA) (25 USC § 1291(a)) & Michigan law (MCL 712B.9(1)); Whether the trial court was required to view video recordings of the children’s interviews; MCL 712A.17b(5); Reasonable reunification efforts; MCL 712A.18f(3)(b)-(d); MCL 712A.19a(2); In re Hicks; Best interests of the children

The court held that the trial court did not fail to comply with the ICWA’s notice provision and was not required to view video recordings of the children’s forensic interviews. It also held that the DHHS did not fail to make reasonable reunification efforts, § (j) was met, and termination was in the children’s best interests. It rejected respondent-mother’s argument that the DHHS and the trial court failed to comply with the ICWA. “[A]n initial discussion occurred at the preliminary hearing highlighting that the children may be Native American. However, at that same hearing, the prosecutor represented that, in a previous case involving the children, the proper paperwork was sent to the Cherokee Nation, the tribe that father identified, and it replied that the children were not members.” At a later review hearing, both parents “reported that the children were not Native American.” As such, the trial court “did not have reason to know that the children were Native American, and” the mother was not entitled to relief on this issue. As to her claim that the trial court erred when it did not view video recordings of the children’s forensic interviews, “the children had not been accused of any wrongdoing.” In other words, the statute she asserted “the trial court violated does not apply in this case by its express terms.” The court also rejected her contention the DHHS did not make reasonable efforts to reunify the family in light of her difficulties with some learning tasks. As she acknowledged, the referee “was the most concerned with [her] reluctance to accept or unwillingness to believe the children and recognize the children’s complex traumas. Without this acceptance, the referee believed that there were no efforts the DHHS could make, in a reasonable time given the children’s ages, that would rectify the barriers to reunification.” In addition, § (j) was met as “the record supported the trial court’s finding that returning to mother’s care presented a risk of emotional harm to the children.” Finally, termination was in their best interests. The record showed that they all, “except one who was removed a few days after his birth and was still an infant, exhibited hypersexual behaviors associated with sexual abuse. Witnesses testified that the children needed permanency, stability, and support in overcoming their traumas. The children were receiving these things in their foster homes. But, as the referee was centrally concerned about, mother had not” shown she was willing to believe them. Affirmed.