Whether an insured’s conduct in lending an off-road vehicle named in his policy to his son was insured as business conduct under the terms of the contract; Intent; Hunt v. Drielick; Contract interpretation; Holland v. Trinity Health Care Corp.

The court held that because the trial court did not err in finding that the defendant-business owner’s act of loaning his off-road vehicle was not “the conduct of a business,” the plaintiff-insurer had no duty to indemnify his estate for any liability. Plaintiff denied coverage for injuries that occurred to the appellant when he was a passenger on a vehicle insured under the owner’s business policy but driven by his son during a recreational event. On appeal, the court noted that “[u]nder the plain terms of the policy,” the owner of the vehicle “was insured ‘only with respect to the conduct of a business of which he was a sole proprietor.’” It then found that “to fall under the policy, [his] decision must have been an action, deed, or act ‘the cause, motive, or reason’ of which was the business of” his company. The court concluded that the trial court did not err by finding that defendant’s decision to allow his son to use the vehicle “was of a ‘singularly personal concern’ and not related to the business.” There was “nothing on the record to support that” he lent the vehicle to his son “for anything other than personal purposes.” His son was not an employee, nor was the vehicle painted with any advertisements. Moreover, there was “nothing on the record to suggest that [he] considered [the business] or any related business interests in deciding to loan the” vehicle. “Instead, the record supports that [his] only purpose was a personal interest in his son’s safety.” Further, while he “was the sole proprietor for his business, this fact does not mean that every decision he made was for the purpose of the business.” Affirmed.

MCR 2.116(C)(8); Maiden v. Rozwood; Radtke v. Everett; Breach of contract; Anticipatory repudiation; Miller-Davis Co. v. Ahrens Constr., Inc.; Stoddard v. Manufacturers Nat’l Bank; Fiduciary duty; Meyer & Anna Prentis Family Found., Inc. v. Barbara Ann Karmanos Cancer Inst.; Claim for an accounting; MCL 450.4503; Second MI Co-op. Hous. Ass’n v. First MI Co-op. Hous. Ass’n; Unjust enrichment; Belle Isle Grill Corp. v. Detroit; Damages premised on a fraudulent conveyance of assets; The Fraudulent Transfer Act; MCL 566.31(d) & (f); MCL 450.4307(1)(a); Foster v. Cone-Blanchard Mach. Co.; Fraud; Michigan v. CVS Caremark

To the extent that the trial court determined that defendants-Chewd, Chewd Holdings, Kumar, Tatum, and Zora were entitled to summary disposition under MCR 2.116(C)(8), it did not err. However, a dismissal under MCR 2.116(C)(8) must be with prejudice, and the trial court granted the motion and dismissed plaintiff-Knoll’s claims without prejudice. Also, it should have given him an opportunity to amend his “pleadings to correct the deficiencies before dismissing” his claims under MCR 2.116(C)(8). Thus, the court vacated the trial court’s order dismissing Knoll’s claims without prejudice and remanded. The court noted that by “failing to allege the existence of a contractual obligation to perform, Knoll failed to plead an essential element of his breach of contract claim.” He also “did not allege that Chewd declared its intent not to perform any act specifically required by the agreement, which is essential to establish a claim of anticipatory repudiation.” He failed to "allege a claim that Chewd took an action that amounted to a breach of any" fiduciary duty. As to his claim for an accounting, he did not “allege that he submitted a written request for this information as required under MCL 450.4503.” He failed to “allege that he properly requested the information or that Chewd otherwise had an obligation to provide its financial information in the absence of such a request. He also failed to state grounds establishing the need for an equitable accounting.” Finally, given that “the compensation was governed by an express agreement, there can be no claim of unjust enrichment.”

Sufficiency of the evidence; Resisting & obstructing a police officer; MCL 750.81d(1); People v. Nichols; Self-defense; People v. Dupree; People v. Fortson; Credibility; People v. Lee; Double jeopardy; People v. McGee; People v. Hall; Ineffective assistance of counsel; Failure to raise a futile objection; People v. Ericksen; Jury instructions; Sentencing; Mootness; BP 7 v. Bureau of State Lottery

The court held that there was sufficient evidence to support the defendant’s conviction of resisting and obstructing a police officer, double jeopardy was not violated, and defense counsel was not ineffective for failing to raise the issue of double jeopardy. He waived the claim that the trial court erred in failing to instruct the jury on excuse or justification. On appeal, the court rejected his argument that there was insufficient evidence to prove that he knew or had reason to know that the three officers, whose instructions he did not follow, were performing their lawful duties. It noted there was “more than sufficient evidence to justify a rational trier of fact to find beyond a reasonable doubt that defendant had reasonable cause to believe that the people he was obstructing were performing their duties as police officers. While defendant testified that he did not see or hear the officers because he was running from who he thought to be the men who previously attacked him, the jury necessarily rejected defendant’s testimony when it convicted him.” The court also held that double jeopardy did not bar him from being charged three separate times for the same offense, noting he was charged with resisting and obstructing three different officers. “Defendant disregarded a different order to stop from each officer.” Further, his “argument that his trial counsel was ineffective for failing to raise this issue of double jeopardy at the trial court is without merit, as counsel is not ineffective for failing to raise a futile objection.” As to his contention that his trial counsel was ineffective for failing to request an instruction on excuse or justification, he provided no authority for “his assertion that a general ‘excuse’ instruction should have been given, or let alone exists,” and the court found no authority in the law for his claim. Finally, the court found his sentencing issues moot. Affirmed.

Whether the trial court properly withdrew the defendant’s plea that was made pursuant to a People v. Killebrew agreement; MCR 6.310(B)(2)(a); Ineffective assistance of counsel; People v. Trakhtenberg; Factual predicate; People v. Carbin; Right to effective assistance during the plea-bargaining process; Lafler v. Cooper; Failure to move to suppress the defendant’s statements to the police on the scene; Miranda v. Arizona; People v. Vaughn; Whether defendant was “in custody”; Yarborough v. Alvarado; Thompson v. Keohane; Failure to make a meritless motion; People v. Riley

Noting that the defendant withdrew his plea before the trial court indicated that it would not abide by the Killebrew agreement, the court held that he did not establish the trial court erred in accepting his request to withdraw his plea. It also rejected his ineffective assistance of counsel claims, finding that he failed to establish the factual predicate for some of them and that defense counsel was not ineffective for failing to make a meritless motion to suppress his police statements. He was convicted of attempted murder and aggravated domestic assault. Before trial, he entered into a Killebrew plea agreement. However, at sentencing, the victim requested that the trial court reject the plea and sentence defendant to prison. Following her comments, “the trial court asked the prosecutor to comment. After the prosecutor spoke and before the trial court indicated that it would not abide by the Killebrew sentence, defense counsel stated, ‘Indeed if your Honor does not follow the Killebrew, my client will seek to have a full trial on this matter.’ Then, defense counsel answered ‘Okay’ in the affirmative when the trial court stated, ‘You’ve indicated he will exercise that right [to withdraw his plea],’ and counsel then immediately began discussing a personal recognizance bond.” Defendant argued on appeal that the trial court erred by failing “to comply with MCR 6.310(B)(2)(a), which requires a court to inform a defendant about the sentence that it intended to impose before a defendant withdraws the plea.” The court noted that he appeared “to argue that the rule requires the court to make a ‘personal inquiry’—as opposed to inquiring of counsel—regarding whether a defendant intends to affirm or withdraw a plea. However, there is nothing in the court rule that precludes counsel from representing defendant’s position” to the trial court and his arguments lacked merit. As to his plea, the court concluded that “because defendant withdrew his plea at the outset, there was no need for the trial court to articulate what sentence it intended to impose because defense counsel had already indicated that defendant would not agree to anything other than a sentence for time served.” Affirmed.

Sufficiency of the evidence; Premeditation & deliberation to support the defendant’s conviction of first-degree premeditated murder; People v. Nowack; People v. Ortiz; People v. Anderson; People v. Unger; People v. Coddington; People v. Kanaan; Great weight of the evidence; People v. Lemmon; Ineffective assistance of counsel; Failure to call a witness; Trial strategy; People v. Rockey; People v. Heft; People v. Payne; Failure to request an instruction on the necessarily included lesser offense of voluntary manslaughter; People v. Sullivan

There was sufficient evidence of premeditation and deliberation to support the defendant’s conviction of first-degree premeditated murder. Also, the jury’s verdict was not against the great weight of the evidence. Further, he was not denied the effective assistance of counsel. There was evidence that defendant brought a loaded firearm to M’s (defendant’s girlfriend) residence after being informed that victim-S had been caught stealing property, and went to the property at M’s behest in order to “do something” about the alleged theft. He said that S was “f**kin’ with [his] woman” as defendant approached S on the porch, and pushed M out of the way before shooting S six times. Considered together and viewed in a light most favorable to the prosecution, this was sufficient evidence that he acted with premeditation and deliberation when he shot S. Although defendant argued that different inferences should be drawn from the evidence, the court “must draw all reasonable inferences and make credibility choices in support of the jury’s verdict, and that deferential standard of review ‘is the same whether the evidence is direct or circumstantial.’” Affirmed.

Jury composition; Alleged violation of Batson v. Kentucky; People v. Bell; People v. Knight; Purkett v. Elem; People v. Eccles; Whether the prosecution’s stated reasons were “pretextual”; Right to an impartial jury; Lockhart v. McCree; Taylor v. Louisiana; Pellegrino v. Ampco Sys. Parking; “Other acts” evidence about another murder; MRE 404(b); People v. Mardlin; People v. Sabin (After Remand); MRE 403; Presumption that the jury followed its instructions; People v. Breidenbach; Effect of the fact a witness received a plea deal; People v. McGhee; Statement against interest made by an “unavailable” witness; MRE 804(b)(3); People v. Taylor; MRE 804(a)(1); People v. Russell; References to a codefendant’s statement; Right of confrontation; Bruton v. United States; People v. Pipes; Richardson v. Marsh; People v. Frazier; Testimony about cell phone locations & towers; MRE 1006; Hofmann v. Auto Club Ins. Ass’n; Distinguishing United States v. Yeley-Davis (10th Cir.) & United States v. Evans (ND IL); Polygraph reference; People v. Nash; People v. Kahley; Ineffective assistance of counsel; Failure to raise a futile objection; People v. Fike; People v. Seals; Cumulative error; People v. Knapp; Sentencing; People v. Lockridge; People v. Stokes

Holding that the defendant failed to establish pretext, the court rejected his claim that the prosecution committed a Batson violation. Evidence of another murder was properly admitted under MRE 404(b), and MRE 804(b)(3) applied to statements he challenged as inadmissible hearsay. The court rejected his challenges to references to a statement made by his codefendant, and his ineffective assistance of counsel claims. There was no error affecting his substantial rights as to the admission of testimony about cell phone locations and towers, and the trial court did not abuse its discretion in denying a mistrial due to one reference to a polygraph exam. However, while affirming all of his convictions, the court remanded for proceedings pursuant to Lockridge in one of these consolidated cases. In his first trial, he was convicted of felon in possession and CCW, but the jury deadlocked on the other charges. He was retried, and the second jury convicted him of first-degree murder, conspiracy to commit murder, witness intimidation, and felony-firearm. On appeal, he argued that his first trial was unfair due to a Batson violation. “During jury selection, the prosecutor used peremptory challenges to strike three potential jurors, all of whom were black.” However, the “prosecutor did not remove all black potential jurors, which weighs against a showing of discrimination.” The explanations for all three jurors were “facially race-neutral: the mother of one juror was friends with defense counsel; and the prosecutor recognized the unusual family names of the other two jurors from frequent interactions between law enforcement and people the prosecutor presumed must be family members that the jurors did not disclose.” The court found “nothing implausible about the prosecutor’s concern” over a “potential juror’s personal relationship, even if somewhat attenuated, with defense counsel.” There was also “nothing improper about a reasonably supported concern that a potential juror is dishonest.” The court agreed that “the other two potential jurors’ names were indeed quite unique,” and did “not find the prosecutor’s exclusion of the other two jurors inadequately supported.”

Motion to set aside a prior custody & parenting time order; The Child Custody Act (CCA) (MCL 722.21 et seq.); Moot issues; Effect of the fact the children turned 18 after the plaintiff filed the appeal; MCL 722.27(1)(c); Porter v. Porter; Claim that the failure to appoint guardians ad litem (GALs) for the children during their in camera interviews violated due process; “Plain error” review; People v. Carines; Review of custody orders; Butler v. Simmons-Butler; MCL 722.28; Statutory best interest factors (MCL 722.23); Factor (i); Bowers v. Bowers; Molloy v. Molloy; Due process concerns raised by in camera interviews; Thompson v. Thompson; Child support; Principle that the parties may stipulate to deviate from the Friend of the Court formula; MCL 552.605(3); Holmes v. Holmes

The court rejected the plaintiff-mother’s claims that the trial court’s failure to appoint GALs for her sons during their in camera interviews violated her and the boys’ due process rights, and that the trial court exceeded the proper scope of the interviews. As to the defendant-father’s child support payments, the trial court did not err in continuing a stipulated order. Plaintiff’s custody concerns were moot. The court noted that the parties had already stipulated to return the boys to plaintiff’s care, and she did not seek a reduction in defendant’s current parenting time. Further, the boys turned 18 after the appeal was filed, and the court’s “jurisdiction over custody and parenting time matters continues only until children turn 18.” The court concluded that the trial court did not plainly err in failing to appoint GALs. “Plaintiff provided no authority supporting her argument that the trial court violated anyone’s due process rights by failing to appoint a GAL, in violation of MCR 7.212(C)(7).” While the CCA gives “the trial court discretion to appoint a GAL,” doing so is not a requirement. Plaintiff also failed to articulate “how the absence of a GAL” in the interviews “affected her due process rights. The due process rights triggering the need for this limited scope belong to the parent—not the child.” Her due process rights were “protected by limiting the scope of the interview, not by appointing a GAL.” The record lacked “evidence of what was included in the interviews.” Thus, the court did “not find that the trial court plainly erred in exceeding the scope of” the interviews. At the time of the appealed order, “a stipulated child support agreement was in effect. The appealed order did not address child support, but stated that ‘all other Orders not inconsistent with this Order shall remain in full force and effect.’ The child support order in effect was a reinstatement of the parties’ stipulated order for defendant to pay $1,000/month in child support,” and, pursuant to MCL 552.605(3), “parties may stipulate to a child support amount.” Affirmed.

Whether an insured’s conduct in lending an off-road vehicle named in his policy to his son was insured as business conduct under the terms of the contract; Intent; Hunt v. Drielick; Contract interpretation; Holland v. Trinity Health Care Corp.

The court held that because the trial court did not err in finding that the defendant-business owner’s act of loaning his off-road vehicle was not “the conduct of a business,” the plaintiff-insurer had no duty to indemnify his estate for any liability. Plaintiff denied coverage for injuries that occurred to the appellant when he was a passenger on a vehicle insured under the owner’s business policy but driven by his son during a recreational event. On appeal, the court noted that “[u]nder the plain terms of the policy,” the owner of the vehicle “was insured ‘only with respect to the conduct of a business of which he was a sole proprietor.’” It then found that “to fall under the policy, [his] decision must have been an action, deed, or act ‘the cause, motive, or reason’ of which was the business of” his company. The court concluded that the trial court did not err by finding that defendant’s decision to allow his son to use the vehicle “was of a ‘singularly personal concern’ and not related to the business.” There was “nothing on the record to support that” he lent the vehicle to his son “for anything other than personal purposes.” His son was not an employee, nor was the vehicle painted with any advertisements. Moreover, there was “nothing on the record to suggest that [he] considered [the business] or any related business interests in deciding to loan the” vehicle. “Instead, the record supports that [his] only purpose was a personal interest in his son’s safety.” Further, while he “was the sole proprietor for his business, this fact does not mean that every decision he made was for the purpose of the business.” Affirmed.

Denial of motion to set aside a default judgment; MCR 2.603(D); Principle that a successor judge is the same trial court & has full authority to enter any order the predecessor judge could have entered; People v. Herbert; Hill v. City of Warren; Principle that the failure to exercise discretion when called on to do so constitutes an abdication & an abuse of discretion; Rieth v. Keeler; Vague or mistaken case evaluation; MCR 2.403(K)(2)

Given that the trial court refused to even consider the defendants’ motion to set aside the default judgment based “on the incorrect belief that it would be impermissible or inappropriate” to do so, the court vacated the trial court’s order denying the motion, and remanded for further proceedings. It also noted that the case evaluation award “failed to comply with the court rule.” The order was “entered by the second judge to preside over this case, who, instead of addressing the substantive merits of defendants’ motion, expressed the opinion that revisiting the predecessor judge’s decision would be inappropriate.” However, “a successor judge is the same trial court, and as a consequence, has the full authority to enter any order that the predecessor judge could have entered.” The court then considered whether “only one outcome would be proper in any event,” and concluded, based on the record, no “particular outcome was mandated.” It found that the “critical problem” was that “the case evaluation award itself is either vague to the point of hopelessness or simply a mistake.” The complaint set forth three counts – for breach of contract on behalf of one plaintiff against defendant-Horizon Unlimited Environmental only, for breach of contract by the other plaintiff also against Horizon only, and for “a violation of ‘Michigan’s securities law’ that apparently was on behalf of all plaintiffs against all defendants.” The case evaluation award clearly violated MCR 2.403(K)(2) because it did “not address the distinct claims made by the distinct plaintiffs. Defendants’ attempted acceptance of a defective award is at least plausible from their perspective, particularly given that” defendant-Center was appearing in propria persona at the time. The court concluded that “all parties were confused by the case evaluation award, and understandably so.” It declined to determine whether defendants presented a sufficient case to warrant setting aside the default judgment, as that decision was within the trial court’s discretion.

Property dispute arising from the use of a waterline that connects defendants’ residence to a crock well; Easement by necessity; Charles A Murray Trust v. Futrell; Schmidt v. Eger; Quasi-easement; Rannels v. Marx; Easement by prescription; Mulcahy v. Verhines; Slatterly v. Madiol

The trial court properly concluded that defendants failed to establish they held an easement by necessity, a quasi-easement, or an easement by prescription. The court affirmed the trial court’s judgment in favor of plaintiff, which enjoined defendants from using the well and waterline at issue, and awarded plaintiff $186.04 in costs. The case involved a property dispute arising from defendants’ use of a waterline that connects their residence to a crock well located on plaintiff’s property. Even if the court assumed, without deciding, that defendants may establish an easement by necessity for the use of water from a well, their claim failed because they did “not make the requisite showing of necessity.” It was their “burden to establish by a preponderance of the evidence that at the time of the severance there were no alternative water sources, such as water obtained by drilling a well on the two acres granted” to them, “and that the necessity continues to exist[.]” Plaintiff was correct that the “stipulated facts, admitted exhibits, and witness testimony at trial included no evidence on the issue of necessity. Rather, defendants focused almost exclusively on” plaintiff’s intent as to the “installation and use of the old and new waterlines. Following the close of proofs, defendants merely asserted in their trial brief, without any evidentiary support, that ‘[t]he area in which the [d]efendants live is void [sic] of a good water supply[,] . . . this crock well is the only water to [their] home,’ and they ‘require the water line easement to have water to their home.’” While the parties’ intent may have been relevant, defendants were still required to establish the element of strict necessity. They also failed to meet the burden of proving the elements of a quasi-easement. They failed to “proffer any evidence on the issue of necessity, whether reasonable or strict.” They did not identify or provide any evidence as to the “effort or expense that would be required for them to obtain a separate water source for their” parcel, and they “provided no evidence in support of their claim that no other source of water was available.”

Termination under §§ 19b(3)(g) & (j); Child’s best interests; In re Moss Minors; In re Olive/Metts Minors; Consideration of a parent’s history; In re Jones; Child Protective Services (CPS)

Holding that the trial court did not clearly err in finding that termination was in the child’s best interests, the court affirmed the trial court’s order terminating the respondent-mother’s parental rights. While she did not challenge the trial court’s conclusion that §§ (g) and (j) were supported by clear and convincing evidence, the court found that both statutory grounds were established. Shortly before the child was removed, “respondent and the child had been living in the garage of a home, kept warm with a space heater, and the home, occupied by several other adults, was littered with drug paraphernalia, with a minimal amount of food present; respondent refused at that point to participate in a drug test.” When a CPS investigator went to the home after respondent was reportedly raped, “he observed blood, glass, and other debris scattered in the home,” and the child “was sitting in a diaper in the middle of the mess. There was testimony that the child displayed a ‘flat affect’ or was emotionless, consistent with children who had experienced trauma, which waned after the child was brought into foster care.” As to the child’s best interests, respondent “failed to successfully participate in any of her services except for her psychological examination.” Her home “at the time of termination was apparently with her grandmother, but she did not stay” with her on a consistent basis. There was no indication where respondent lived while she was not there. Thus, the evidence showed that “respondent had a history of instability and that her instability had not been addressed at the time of termination.” There was testimony that the child “needed stability and consistency” and that his foster home provided him “with the environment that he needed to thrive.” His foster parents planned to adopt him. Respondent’s “history of neglect and instability,” the child’s “need for stability, permanency, and finality, and the advantages of” his foster home in addressing his “needs all weighed in favor of a finding that termination was in the child’s best interests.”

Termination under §§ 19b(3)(c)(i), (g), & (j); In re White; In re Trejo Minors; In re Miller; In re Jacobs; In re Conley; The children’s best interests; In re Moss Minors

The trial court properly terminated the respondent-mother’s parental rights to the children where at least one statutory ground for termination was established by clear and convincing evidence and termination was in their best interests. She pleaded no contest in connection with a supplemental petition whose allegations against her included a history of alcohol abuse, housing instability, and exposure of the children to domestic violence involving the father. Her entire argument as to the trial court’s finding with respect to § (c)(i) consisted of the single sentence: “Respondent mother had benefited from counseling services[,] began taking ADHD medication, found employment, and appropriate housing.” Thus, she invited the court to confirm her assertions that the evidence included some indication she “put forth some efforts to benefit from counseling, treat her ADHD, obtain employment, and obtain suitable housing.” But she otherwise offered no argument to challenge the evidentiary bases for the trial court’s conclusions that she “generally failed to participate in (or benefit from) counseling, that she was homeless when the children were born and lived in approximately nine different places since then and was evicted from several of them, or that respondent failed to participate in (or benefit from) services intended to help her gain control over her substance-abuse problems.” Also, substance abuse, particularly alcoholism, was a major concern from the start, and her cursory argument as to the conditions of the adjudication wholly failed to address the trial court’s conclusion that she failed to gain control over that problem. Affirmed.

Termination under § 19b(3)(b)(ii); Reliance on a parent’s history; In re Archer; Children’s best interests; In re Olive/Metts Minors; In re Jones

Holding that the trial court did not clearly err in finding that § (b)(ii) was established by clear and convincing evidence, or in finding that termination was in the children’s best interests, the court affirmed the trial court’s order terminating the respondent-mother’s parental rights. It was undisputed that both children, “just under three years old at the time, suffered severe sexual abuse at the hands of respondent’s boyfriend.” She argued that there was no evidence of a reasonable likelihood that they “would suffer injury or abuse in the foreseeable future if they were returned to her home.” However, a psychologist “concluded that respondent’s self-preoccupation made her prone to protecting her romantic relationships over her own children and created a lack of empathy toward their needs. The psychologist’s opinion closely aligned with respondent’s actions in this case.” She initially told “investigators that she had no idea how” the children were sexually abused. She claimed that she was the only person around them “and that she had never left them alone with anyone else.” A week later, she gave investigators a timeline “indicating that the sexual abuse occurred while they were in their father’s care, which was untrue. It was later revealed” that she left them alone with her boyfriend. Not only did she “lie to protect her boyfriend, she also asked other people to lie to protect him.” She did not seek medical treatment for the children, and only broke up with her boyfriend after he was charged and sent to jail. The psychologist “concluded that respondent’s prognosis as a parent was poor because her mental health issues were related to her ‘self-protective maneuvers,’ her immaturity, and her instability.” While placement with their father and evidence of their bond with respondent may have weighed against termination, the trial court did not clearly err in finding that the children's best interests “favored termination given respondent’s history of jeopardizing” their safety and wellbeing, along with their need for stability.