Sentencing; Scoring of 10 points for OVs 17 (degree of negligence exhibited) & 19 (interference with the administration of justice)

The court held that the trial court did not err by scoring 10 points each for OVs 17 and 19. Defendant pled no contest to AWIGBH and was sentenced as a second-habitual offender to 6 to 15 years. First, the court found “the trial court did not assess 10 points for OV 17 on the basis that defendant showed a wanton or reckless disregard for the life or property of defendant’s wife or the victim’s wife.” Instead, it ruled that 10 points could be assessed for his conduct directed at the victim, and the court concluded his “act of running into the victim with a motor vehicle constituted evidence demonstrating a wanton or reckless disregard for the victim’s life.” But the critical question was “whether a defendant who is convicted of AWIGBH, which does not contain a negligence element, can ever be assessed 10 points under OV 17” for conduct that established AWIGBH. The court found “nothing in the plain language of MCL 777.47(1)(a) that prohibits a court from assessing 10 points for OV 17 based on facts that served to support a conviction for a specific intent offense such as AWIGBH. Evidence that supports a determination that a defendant acted with the intent to do great bodily harm to a person can equally support a finding that the defendant acted with a wanton or reckless disregard for the person’s life. The two conclusions are not mutually exclusive.” Defendant’s conduct here “constituted evidence demonstrating a wanton or reckless disregard for the victim’s life. We do not believe it inconsistent to find that defendant intended to do great bodily harm to the victim by running into him with the car and to also conclude that defendant acted with a wanton or reckless disregard for the victim’s life by driving into him.” Thus, the trial court properly scored 10 points for OV 17. As to OV 19, there was evidence he “left the scene of the accident after learning that the police were called and that the police later found him in the woods. [His] conduct reflected an attempt to avoid being caught and held accountable for the sentencing offense.” Further, when he “banged his head against the partition in the police cruiser so hard that it necessitated hospitalization instead of an immediate trip to jail, he was effectively hampering or hindering the investigatory process and delaying accountability. Finally, defendant left Michigan and traveled to Florida, staying there for several months despite knowing that an arrest warrant was going to be issued.” This evidence could reasonably be construed as showing “an attempt to avoid being held accountable and to interfere with the administration of justice[.]” Affirmed.

Duty to provide a defense under homeowners insurance policies; “Occurrence”; “Intentional act” & “sexual molestation” exclusions; Greenman v Michigan Mut Ins Co; Vicarious liability; The Fair Housing Act (FHA)

Holding that plaintiff-insurer (Farm Bureau) had no duty to provide defendants-insureds (Darrell and Fatima Jones) a defense in a federal action as a matter of law, the court affirmed summary disposition for Farm Bureau. At issue were homeowners policies that included personal liability coverage for several rental properties (some of which were titled in the name of defendant-Jones Investing, LLC). The “policies do not provide coverage or a duty to provide a defense when the insured is sued for causing ‘bodily injury’ through acts of ‘sexual molestation’ or for causing ‘bodily injury’ or ‘property damage’ through intentional acts where the injury was a natural result.” The court found the allegations in the federal complaint did “not even arguably allege a covered ‘occurrence.’” The complaint alleged Darrell violated the FHA “by subjecting ‘multiple female tenants’ to discrimination on the basis of sex by ‘[m]aking unwelcome sexual comments . . . [and] unwelcome sexual advances,’ asking for nude photographs, and ‘[t]ouching female tenants on their buttocks, breasts, and other parts of their bodies without their consent,’ as well as offering reduced rent and repair services for sex acts, ‘[t]aking adverse housing actions, such as eviction or refusing to make repairs . . . against female tenants who objected to and/or refused sexual advances,’ and exhibiting a preference for renting to single females.” He also allegedly entered female tenants’ homes “without consent. These allegations clearly indicate that any physical injury the victims may have suffered arose out of Darrell’s sexual molestation” and thus, did not constitute bodily injury required for an occurrence. Further, even if the allegations arguably raised a property damage claim, they “could not create even an arguable claim that an ‘occurrence’ existed. The policies define an ‘occurrence’ as” an accident. The court has ruled “that there was no covered ‘accident’ in a case with nearly identical facts” – Greenman. It added that “coverage and the duty defend were” also eliminated here by the policies’ intentional conduct exclusion. Fatima’s coverage for vicarious liability “was limited to any liability coverage available to Darrell.” Thus, she also was “not entitled to a defense at Farm Bureau’s expense[.]” Finally, as they did not identify Jones Investing as a named insured on any of the policies, it was not entitled to a defense.

Res judicata; Privity; Adair v Michigan; Real party in interest; MCR 2.201(B); In re Beatrice Rottenberg Living Trust; Whether claims could have been brought in a prior lawsuit; Plaza Inv Co v Abel; Accrual; Limited liability company (LLC); Corr Commercial Real Estate (CCRE)

The court held that privity existed for res judicata purposes, and that plaintiff’s real party in interest argument about a 2016 lawsuit was an impermissible collateral attack. But it found that some of plaintiff’s claims had not yet accrued when the 2016 suit was filed. Thus, while it affirmed summary disposition for defendants based on res judicata as to claims for alleged wrongful conduct occurring before the 2016 suit was resolved, it reversed as to the claims “based on alleged wrongful conduct that occurred after” that suit was resolved. Plaintiff was “the court-appointed special fiduciary of the Thomas P. Corr Revocable Trust Agreement (the Trust).” The Trust’s grantor was one of four brothers who were formerly members of defendant-Frandorson Properties Limited Partnership. The Trust was one of Frandorson’s limited partners. Defendant-CCRE was the general partner. A member of one of Frandorson’s other limited partners, Timothy Corr, filed the 2016 suit. The court noted that as “a limited partner of Frandorson and a shareholder of CCRE, the Trust’s interests were necessarily implicated in the 2016 litigation. But the Trust also was itself a participant in the settlement that resolved” the 2016 suit. It did not matter for purposes of the privity analysis “whether Timothy properly labeled or litigated” the claims in the 2016 suit as direct or derivative – it only mattered “whether he was representing ‘the same legal right that [the Trust] is trying to assert’ in” this case. As to plaintiff’s assertion that “Timothy was not a real party in interest in 2016 and, accordingly, could not adequately represent the Trust’s interests[,]” the court found this argument misplaced. It noted MCL 449.2001 and “449.2002 explicitly allow for a limited partner to bring derivative claims on behalf of the limited partnership. The real-party-in-interest rule has an exception for ‘a person authorized by statute,’” and these were such statutes. But to the extent “plaintiff’s claims are based on alleged wrongful conduct occurring in 2017 and 2018, they stand on their own and are not barred by res judicata. Although the 2016 complaint included allegations of improper self-dealing and salaries, phantom income, inadequate distributions, and improper tax handling, the 2016 litigation could not have specifically addressed allegations of misconduct that had not yet occurred. Plaintiff’s claims based on alleged 2017 and 2018 misconduct had not” accrued when the 2016 suit was filed and settled. Remanded.

Loss of a decedent’s body at a city-owned cemetery; Governmental immunity; The proprietary function exception; MCL 691.1413; Leave to amend the complaint; Undue delay; Futility; Weymers v Khera

Concluding that defendant-City was entitled to summary disposition based on governmental immunity, the court reversed. The case arose from the apparent loss of the body of plaintiff’s deceased husband at a cemetery owned by the City. It argued that plaintiff had not pled in avoidance of governmental immunity, and the City was not liable for the negligence of other defendants (its independent contractors). “Plaintiff conceded to the City’s point that the cemetery had been operated at a loss for the past five years, but argued, without introducing any evidence, that because the presence or lack of a profit is not dispositive in determining whether an activity is a proprietary function,” there was a genuine issue of material fact “as to whether the activity was pecuniary.” The court noted that the trial court was obligated to consider the entire record, “including ‘any affidavits, depositions, admissions, or other documentary evidence . . . to determine whether there is a genuine issue of material fact[.]’” Except for the City’s claim that “the cemetery was operating at a loss, plaintiff provided no evidence, nor did she make any allegations in her complaint, in support of her argument that the City’s operation of the cemetery constituted a proprietary function. Plaintiff did not introduce evidence of where the cemetery’s income was deposited or how it was used, meaning, while not dispositive generally, the only evidence the trial court had at its disposal concerning this issue was the cemetery’s monetary losses, which support the City’s contention that the cemetery’s operation was not a proprietary function.” The court also concluded that while the general delay of allowing her to amend the complaint did not constitute undue delay under Weymers, she was not entitled to do so “because any amendment would be futile in the context of governmental immunity.”

Loss of a decedent’s body at a city-owned cemetery; Governmental immunity; The proprietary function exception; MCL 691.1413; Leave to amend the complaint; Undue delay; Futility; Weymers v Khera

Concluding that defendant-City was entitled to summary disposition based on governmental immunity, the court reversed. The case arose from the apparent loss of the body of plaintiff’s deceased husband at a cemetery owned by the City. It argued that plaintiff had not pled in avoidance of governmental immunity, and the City was not liable for the negligence of other defendants (its independent contractors). “Plaintiff conceded to the City’s point that the cemetery had been operated at a loss for the past five years, but argued, without introducing any evidence, that because the presence or lack of a profit is not dispositive in determining whether an activity is a proprietary function,” there was a genuine issue of material fact “as to whether the activity was pecuniary.” The court noted that the trial court was obligated to consider the entire record, “including ‘any affidavits, depositions, admissions, or other documentary evidence . . . to determine whether there is a genuine issue of material fact[.]’” Except for the City’s claim that “the cemetery was operating at a loss, plaintiff provided no evidence, nor did she make any allegations in her complaint, in support of her argument that the City’s operation of the cemetery constituted a proprietary function. Plaintiff did not introduce evidence of where the cemetery’s income was deposited or how it was used, meaning, while not dispositive generally, the only evidence the trial court had at its disposal concerning this issue was the cemetery’s monetary losses, which support the City’s contention that the cemetery’s operation was not a proprietary function.” The court also concluded that while the general delay of allowing her to amend the complaint did not constitute undue delay under Weymers, she was not entitled to do so “because any amendment would be futile in the context of governmental immunity.”

Alleged breach of fiduciary duties to a trust; Duties owed by a trustee to the beneficiaries of a trust; MCL 700.7801; MCL 700.7802(1); MCL 700.7803; MCL 700.7814(1); Obligation to seek the highest price obtainable for real property; In re Green Charitable Trust; Fraudulent & innocent misrepresentation; Novak v Nationwide Mut Ins Co; Failure to provide updates about the sale

The court held that the trial court did not err by granting appellees summary disposition of appellants’ breach of fiduciary duty and misrepresentation claims regarding the sale of a vacant lot owned by the trust. Appellees petitioned the probate court to enforce the parties’ settlement agreement, arguing that appellants had tried “to renegotiate or undermine several of” its provisions. They claimed they were prevented from receiving assets assigned to them under the agreement and that appellee-successor trustee (Waalkes) was unable to finalize the administration of the trust. Appellants filed a counterpetition, contending the sale of the lot was improperly conducted and should be set aside. The “probate court ruled in relevant part that the sale of the lot was valid and dismissed the claims raised in the counterpetition.” On appeal, the court rejected appellants’ argument that appellee-prior trustee-Fath breached her fiduciary duties to the trust because, after declining to sell the lot to them for $450,000, she later purchased it for herself at a lower price. “The lot was listed for sale as required by the settlement agreement, all beneficiaries were invited to make offers, and the ultimate sale was for a price that was more than the realtor had opined the lot was worth.” The court also rejected their claim that Fath engaged in misrepresentation as to their interest in purchasing the lake lot in her report to Waalkes. Appellants “had the opportunity to submit an offer for the lot; they simply declined to do so, even after at least one of them was informed that the trust was willing to sell for $325,000. [They] did not suffer injury as the result of any inaccuracies in the report, because they were invited to act but failed to do so.” As to the claim that Waalkes breached his fiduciary duty as successor trustee by failing to keep them informed about the sale, “Waalkes followed the direction of the settlement agreement with regard to the sale of the lot.” It provided that the beneficiaries “would defer to the direction of the listing agent.” Waalkes informed them that the lot “had been publicly listed and for what price, and he invited offers. He also provided updates with regard to the sale when asked. [Appellants] declined to present an offer at any time.” Finally, as to their argument there was a factual dispute as to whether Waalkes was asked to provide updates about the sale of the lot, and whether he failed to do so, there was “no evidence that appellants were not kept informed of developments involving the sale of the lot or that any lack of information was the cause of their failure to submit an offer.” Affirmed.

Termination under §§ 19(b)(3)(c)(i), (g), & (j); A parent’s failure to participate in & benefit from a service plan as evidence he or she will not be able to provide a child proper care & custody; In re White; Best interests of the child; In re Olive/Metts Minors

Holding that statutory grounds were met, and that termination was in the child's best interests, the court affirmed termination of respondent-father’s parental rights. The adjudication was based on his “assaultive behavior, which posed a risk to the child.” On appeal, the court rejected his argument that statutory grounds for termination were not met. As to § (c)(i), it found that given his “failure to address his propensity for domestic violence or assaultive behavior,” the trial court did not err by finding “the conditions that led to the adjudication continued to exist and would not be rectified within a reasonable period of time considering the child’s age.” As to § (g), it noted the evidence showed he “did not participate in and benefit from the service plan.” And as to § (j), it found respondent’s “failure to comply with the service plan . . . supported the trial court’s decision to terminate on this ground.” The court also rejected his claim that termination was not in the child’s best interests, noting the trial court properly “focused on the lack of a bond between respondent and the child, and the child’s need for permanency, stability, and finality.” Moreover, there was evidence the child “was thriving in the foster home and the foster parents were willing to adopt. There was nothing to suggest that respondent could provide a similar thriving environment for the child and the prospect of adoption would provide the permanency and stability that the child needs.”

Alleged breach of fiduciary duties to a trust; Duties owed by a trustee to the beneficiaries of a trust; MCL 700.7801; MCL 700.7802(1); MCL 700.7803; MCL 700.7814(1); Obligation to seek the highest price obtainable for real property; In re Green Charitable Trust; Fraudulent & innocent misrepresentation; Novak v Nationwide Mut Ins Co; Failure to provide updates about the sale

The court held that the trial court did not err by granting appellees summary disposition of appellants’ breach of fiduciary duty and misrepresentation claims regarding the sale of a vacant lot owned by the trust. Appellees petitioned the probate court to enforce the parties’ settlement agreement, arguing that appellants had tried “to renegotiate or undermine several of” its provisions. They claimed they were prevented from receiving assets assigned to them under the agreement and that appellee-successor trustee (Waalkes) was unable to finalize the administration of the trust. Appellants filed a counterpetition, contending the sale of the lot was improperly conducted and should be set aside. The “probate court ruled in relevant part that the sale of the lot was valid and dismissed the claims raised in the counterpetition.” On appeal, the court rejected appellants’ argument that appellee-prior trustee-Fath breached her fiduciary duties to the trust because, after declining to sell the lot to them for $450,000, she later purchased it for herself at a lower price. “The lot was listed for sale as required by the settlement agreement, all beneficiaries were invited to make offers, and the ultimate sale was for a price that was more than the realtor had opined the lot was worth.” The court also rejected their claim that Fath engaged in misrepresentation as to their interest in purchasing the lake lot in her report to Waalkes. Appellants “had the opportunity to submit an offer for the lot; they simply declined to do so, even after at least one of them was informed that the trust was willing to sell for $325,000. [They] did not suffer injury as the result of any inaccuracies in the report, because they were invited to act but failed to do so.” As to the claim that Waalkes breached his fiduciary duty as successor trustee by failing to keep them informed about the sale, “Waalkes followed the direction of the settlement agreement with regard to the sale of the lot.” It provided that the beneficiaries “would defer to the direction of the listing agent.” Waalkes informed them that the lot “had been publicly listed and for what price, and he invited offers. He also provided updates with regard to the sale when asked. [Appellants] declined to present an offer at any time.” Finally, as to their argument there was a factual dispute as to whether Waalkes was asked to provide updates about the sale of the lot, and whether he failed to do so, there was “no evidence that appellants were not kept informed of developments involving the sale of the lot or that any lack of information was the cause of their failure to submit an offer.” Affirmed.