Dispute over church governance; Freedom of religion; Lemon v Kurtzman; The ecclesiastical abstention doctrine; Winkler by Winkler v Marist Fathers of Detroit, Inc; Whether the trial court was required to abstain from adjudicating plaintiffs’ claim; Borgman v Bultema; Whether MCL 450.181 & MCL 450.185 exempt ecclesiastical corporations from compliance with the Michigan Nonprofit Corporation Act (MNCA)

The court held that the trial court did not err by resolving whether the parties’ Church was organized on a membership or directorship basis because this question did not require it to “entangle itself in any ecclesiastical or religious matter.” And the trial court’s orders did not interfere with defendants’ (pastor and Church) free exercise of religion. Plaintiffs-Church members sought a declaratory judgment that, under the MCNA, the Church was organized on a membership basis rather than a directorship basis and that recent amendments to its constitution and bylaws were invalid. They also moved the trial court to enter an order directing the Church to adopt a new set of bylaws. In addition, they alleged the pastor had breached his fiduciary duties of loyalty and care, and engaged in illegal, fraudulent, or oppressive conduct. The court rejected defendants’ argument that, under the ecclesiastical abstention doctrine, the trial court was required to abstain from adjudicating plaintiffs’ claim. “Whether the Church was organized on a membership basis or a directorship basis was not an ecclesiastical question—it was a corporate law question. To answer this question, the trial court needed to look no further than the Church’s Articles of Association and the MNCA. Resolving the parties’ dispute did not require the trial court to interpret any of the Church’s religious doctrine or to pass judgment on what it believed to be the form of corporate governance most in line with the Church’s discipline or values. It simply required the trial court to apply Michigan statutory law against the language of the Articles of Association.” The court also rejected defendants’ arguments concerning MCL 450.181 and 450.185. It noted the latter does not apply to the Church. As to the former, the trial court’s ruling “rested on its interpretation of the Church’s Articles of Association—not on whether the Church had the ability to amend its bylaws. The trial court never suggested that an ecclesiastical corporation could not adopt bylaws or prescribe how those bylaws may be amended. The trial court concluded only that, under the MNCA, an ecclesiastical corporation could not adopt bylaws inconsistent with the ecclesiastical corporation’s articles of incorporation. Defendants do not challenge that conclusion, and they do not otherwise explain how MCL 450.181 undermines it.” Affirmed.

Whether adopted siblings who do not share a common ancestor are related “by blood” for purposes of CSC III under MCL 750.520d(1)(d); People v Zajaczkowski; MCL 710.60; Statutory interpretation; A “constructive crime”; People v Olson; Motion to withdraw a no contest plea; Factual basis requirement for a plea; MCR 6.302(D)

Holding that individuals who are related by adoption but do not otherwise “share an ancestor in common are not related ‘by blood’ for purposes of” CSC III under MCL 750.520d(1)(d), the court concluded “there was not an adequate factual basis for defendant’s” no contest plea to that charge. Thus, it reversed in part the Court of Appeals judgment that affirmed the trial court’s denial of his motion to withdraw his plea, and remanded to the trial court. The complainant was defendant’s adopted sister. In determining that they were related by blood, the Court of Appeals relied on MCL 710.60, part of the Adoption Code. The court noted that MCL 750.520d(1)(d) “does not define the word ‘blood’ or the phrase ‘related to the actor by blood.’” However, the court interpreted those terms for purposes of the CSC I statute in Zajaczkowski, where it noted, “A relationship by ‘blood’ is defined as ‘a relationship between persons arising by descent from a common ancestor’ or a relationship ‘by birth rather than by marriage.’” It concluded those definitions were applicable here. “A relationship formed by adoption does not arise by descent from a common ancestor or by birth. Therefore, under the ordinary meaning of the statutory language, individuals related by adoption are not related by blood.” The court found the Court of Appeals’ analysis “flawed in a number of respects. First, numerous sections in the Adoption Code distinguished and continue to distinguish between relationships by blood and relationships by adoption. The Legislature has also continued this distinction in defining ‘related’ and ‘relative’ since MCL 710.60 was enacted.” In addition, the court noted that “the Adoption Code can only change the law, not the genetic makeup of an adopted child or his adoptive parents.” The focus of MCL 710.60 is “on the rights and duties and not the biological makeup. An adoptee has the same rights and duties as the natural progeny of the adoptive parents. But nothing in MCL 710.60 states that an adopted individual will be subject to criminal prosecutions as if the individual were a blood relative of the individual’s adoptive parents.” The court determined that Zajaczkowski’s analysis confirmed this point. Further, the court found that the Court of Appeals’ interpretation of MCL 750.520d(1)(d) “would create an impermissible constructive crime.” The court left the Court of Appeals’ determination “that defendant and the complainant are not related by affinity” undisturbed.

Concurring in part and dissenting in part, Justice Welch agreed “that adoptive siblings are not related ‘by blood’ for purposes of MCL 750.520d(1)(d).” She wrote separately because she concluded “that the Legislature considered adoptive siblings to be related by ‘affinity.’” She found that in the context of a criminal statute prohibiting “sexual conduct between family members, the term ‘affinity’ bears the meaning of familial relationships created by adoption just as easily as it bears the meaning of familial relationships created by marriage.”

Criminal contempt related to a divorce case; MCR 3.606(A); People v MacLean; A trial court’s inherent & statutory authority to enforce its orders; In re Moroun; Corporate intent; Green v Ziegelman; Principle a corporation is considered to have acquired the collective knowledge of its employees; Upjohn Co v New Hampshire Ins Co; Supporting affidavit requirements in criminal contempt cases; MCR 2.119(B)(1); Challenge to a subpoena; MCR 2.506(H); Witness fees; MCR 2.506(G)(1); Chase v Kalamazoo Circuit Judge; In re Petition of Labor Mediation Bd; Distinguishing Castillon v Roy; Punishment for criminal contempt; MCL 600.1715(1); Due process; Ripeness

Holding that the trial court erred by finding defendant-ex-husband’s (David) brother’s (defendant-Howard) company, defendant-Fraser Equities (Fraser), was in contempt, but did not err by finding Howard and his company defendant-Alliance Equities (Alliance) were in contempt, the court affirmed in part and reversed in part. Plaintiff-ex-wife (Lynn) sought to recover funds David transferred to Howard and Howard’s companies in contemplation of Lynn and David’s divorce. The trial court ruled in Lynn’s favor. On appeal, the court agreed with Fraser that the trial court erred by holding it in criminal contempt. It noted that, given the trial court expressly found that Fraser’s sole agent, Howard, did not possess the intent to violate an injunction, the trial court erred by finding Fraser willfully violated the injunction. “It is not rational to impute a different intent to Fraser in light of the [trial] court’s finding that Howard, Fraser’s sole agent, lacked criminal intent.” However, the court rejected Howard’s and Alliance’s argument that they were not in contempt. First, it rejected their argument that the trial court erred by proceeding with a show-cause hearing because Lynn’s motion to show cause was defective due to the accompanying affidavit. “[B]ecause Lynn’s lawyer affidavit establishes that he had personal knowledge regarding how he obtained the business record and had personal knowledge about the contents of the business record, the affidavit” was not defective. Next, it rejected their claim that the trial court erred by quashing their subpoena to have Lynn’s lawyer testify at the show-cause hearing. “Lynn’s lawyer’s limited knowledge would have been of no assistance in resolving any pertinent factual disputes.” In addition, Howard and Alliance “failed to show how, if they were precluded from presenting a defense, the error was outcome-determinative.” The court further rejected Howard’s contention the trial court’s finding that he was the person who withdrew funds on behalf of Alliance was not supported by the admissible evidence. “[W]ith Howard being Alliance’s sole member and manager, and there being no evidence of anyone else acting on behalf of Alliance, the trial court” did not err by finding he was the person who initiated and effectuated the withdrawal. Finally, the court held that the trial court did not err in its other factual findings, that Howard and Alliance abandoned any challenge to the imposition of restitution, and that their argument as to punishment for criminal contempt was not ripe for review.

Motion for resentencing based on the trial court’s consideration of inaccurate information; People v Miles; Principle that when calculating the sentencing guidelines, a trial court may consider the contents of a PSIR; People v McChester; Accuracy of the PSIR; People v Waclawski; Effect of mental health issues in sentencing; People v Bennett; Right of allocution; People v Bailey; Reasonableness & proportionality; People v Steanhouse; Consideration of a lack of remorse; People v Walker

The court held that the trial court did not abuse its discretion by denying defendant’s motion for resentencing insofar as it was based on her having later been diagnosed with bipolar disorder. It also held that her sentences were not unreasonable. She pled guilty to embezzlement over $100,000, using a computer to commit a crime, uttering and publishing, and forgery for using her position as a bookkeeper to embezzle funds from the company. The trial court sentenced her concurrent terms of 7 to 20 years each for the embezzlement and use-of-a-computer convictions, and 3 to 14 years each for the uttering-and-publishing and forgery convictions. The court rejected her argument that the trial court erred by denying her motion for resentencing because it did not consider her mental illness while determining her sentences, and because her seven-year minimum sentences, which departed slightly from the recommended range under the guidelines, were not reasonable. “Defendant’s PSIR stated that she ‘claims to be in good mental and physical health,’ and later stated that ‘defendant denies any mental health concerns or diagnosis.’” Because she did not assert that she was “inaccurately quoted, and there was no other information before the court regarding her mental health” at the time of sentencing, “the information available to the court at the time relevant, which consisted entirely of reports of what defendant herself had to say about her mental health, cannot not be considered inaccurate.” In addition, the court reasoned that her “criminal conduct did not consist of impulsive acts, but rather was characterized by planning many years of transactions in order to illegally acquire a large amount of money while evading detection.” Further, the trial court properly accepted her “challenge to the PSIR, corrected the PSIR, and indicated that it did not consider whether defendant had bipolar disorder in fashioning its sentence.” Moreover, the trial court did not deprive her “of the opportunity to provide mitigating information to the court about her mental status during the commission of her crimes, including any information that would be considered a symptom of a mental illness by a person knowledgeable in that area.” And the trial court “indicated that its commentary, while perhaps unnecessary, was not a part of its reasoning at sentencing, or when denying defendant’s motion for resentencing.” Finally, the trial court “well established on the record that its minimal departure was ‘proportionate to the seriousness of the circumstances surrounding the offense and the offender.’” It did not indicate that defendant’s sentence was based on whether she had a psychological explanation for her crime, and the record supported the conclusion that greed was the major motivation. Affirmed.

Motion to quash; Suppression of physical evidence obtained during a traffic stop; Whether reasonable suspicion justified extending the stop; People v Kavanaugh; People v Coscarelli; A pat-down search for weapons; The “inevitable discovery” exception to the exclusionary rule; People v Mahdi; The automobile exception to the search warrant requirement; Suppression of defendant’s statements; Whether she was “in custody” for purposes of Miranda v Arizona; People v Barritt; Waiver

The court held that while the state trooper (S) who stopped defendant’s vehicle was justified in making the stop, he did not have reasonable suspicion justifying extending it. He also was not justified in conducting a pat-down search of her person for weapons. Further, “the discovery of the contraband in defendant’s vehicle was not truly inevitable” and thus, the trial court erred in denying her motion to quash. The court rejected the prosecution’s argument that the trial court erred in suppressing defendant’s statements made in the patrol vehicle, finding that she was subject to a custodial interrogation, and she did not waive her right against self-incrimination. Thus, any evidence resulting from the unconstitutional prolonged stop was inadmissible as substantive evidence, as were defendant’s unwarned statements. Because the only evidence supporting the charges against her was obtained after the unconstitutional prolonged stop, the court reversed the trial court’s order denying her motion to quash the bindover and remanded for entry of an order granting her motion. In considering the extension of the stop, the court found the facts here were analogous to Coscarelli. Similar to that case, “defendant’s mere presence at a location where drug activity was suspected ‘provides no particular basis for suspicion concerning [her] participation in criminal activity.’” Thus, this did not provide a basis for S to “have possessed a reasonable suspicion that defendant was engaged in criminal activity . . . .” In addition, the “evasive behavior” he identified—that she “was eating and drinking during the stop, evading questions, and changing conversation topics—also did not provide a basis for reasonable suspicion.” The court noted that the prosecution did not offer any case law “to support that eating and drinking are evasive or ‘strange’ behaviors, and [S] did not explain how or why, based on his experience or knowledge, eating and drinking in a vehicle during a traffic stop provided grounds to suspect defendant of criminal activity.” Further, and importantly, he failed to “articulate what specific questions defendant evaded, the answers that defendant provided, or why the exchange indicated any likelihood of criminal activity.” There also was no basis for the pat-down search where S did not have “reasonable suspicion that defendant was armed and posed a danger to him or to others.”

A “surviving spouse’s” rights under the Estates & Protected Individuals Code to receive a share of the estate upon the death of his or her spouse; MCL 700.2202(1) & (2); Principle that a spouse can lose these rights if he or she is “willfully absent from the decedent spouse” for more than a year before that spouse’s death; MCL 700.2801(2)(e)(i); In re Erwin; Whether a spouse who has filed for divorce but is not yet divorced when his or her spouse dies is “willfully absent” & ineligible for benefits as a “surviving spouse”; Effect of MCL 700.2801(3)(b); The expressio unius est exclusio alterius canon of statutory interpretation; Bronner v Detroit

The court held that petitioner (decedent-Hermann’s daughter) failed to rebut the presumption that respondent (Hermann’s purported surviving spouse) was not willfully absent for purposes of inheritance, given respondent promptly filed for divorce and pursued the entry of a divorce judgment via communications with the decedent through her attorney. Respondent filed for divorce from Hermann. Hermann died before the divorce was finalized. Petitioner sought a declaration that respondent was willfully absent for more than a year before Hermann’s death and thus, was not his surviving spouse for purposes of inheritance. The probate court agreed. The Court of Appeals reversed, finding that “any period of time consumed by a divorce proceeding did not constitute ‘willful absence’ that would disinherit an otherwise qualified surviving spouse.” The court concluded that “there is no statutory basis for a categorical rule that filing for divorce precludes a finding of willful absence.” But it held that “the filing of a divorce action creates a presumption that the spouse was not willfully absent.” A challenging party can rebut this presumption “by showing that, under the totality of the circumstances, the surviving spouse’s communications, or lack thereof, were inconsistent with a recognition of the continued existence of the legal marriage.” The court found that petitioner did not sustain “her burden to show that [respondent] was willfully absent notwithstanding her communications with Hermann through their attorneys while attempting to secure an attorney-negotiated judgment of divorce. There is no evidence that [respondent] failed to participate with Hermann to expeditiously resolve the divorce action. To the contrary, [she] filed for divorce less than two weeks after their last direct contact and the judgment of divorce was close to being entered when Hermann died scarcely a year after filing.” Further, during the divorce proceedings they “stipulated through their attorneys to the occupancy of the marital home and the appropriate use of marital funds, and they worked out a settlement of everything but spousal support before Hermann’s death, which implies frequent and detailed communications between the spouses through their attorneys.” Under the circumstances, respondent “was not willfully absent from Hermann for more than a year before his death.” Affirmed.

Dissenting, Justice Zahra, joined by Justice Viviano, asserted that “[n]ot only is the majority opinion’s new test inconsistent with a fair and reasonable reading of the holding and logic of Erwin, but it also generates a per se rule that is unsupported either by the text of MCL 700.2801(2)(e)(i) or by Erwin.”

Dissenting separately, Justice Viviano noted that he joined Justice Zahra’s dissent in full, but wrote to “make a few additional observations.” He concluded with his belief that “it would be far better for the law to retain a flawed interpretation than to tack another new, even more flawed interpretation onto it.”

Criminal contempt related to a divorce case; MCR 3.606(A); People v MacLean; A trial court’s inherent & statutory authority to enforce its orders; In re Moroun; Corporate intent; Green v Ziegelman; Principle a corporation is considered to have acquired the collective knowledge of its employees; Upjohn Co v New Hampshire Ins Co; Supporting affidavit requirements in criminal contempt cases; MCR 2.119(B)(1); Challenge to a subpoena; MCR 2.506(H); Witness fees; MCR 2.506(G)(1); Chase v Kalamazoo Circuit Judge; In re Petition of Labor Mediation Bd; Distinguishing Castillon v Roy; Punishment for criminal contempt; MCL 600.1715(1); Due process; Ripeness

Holding that the trial court erred by finding defendant-ex-husband’s (David) brother’s (defendant-Howard) company, defendant-Fraser Equities (Fraser), was in contempt, but did not err by finding Howard and his company defendant-Alliance Equities (Alliance) were in contempt, the court affirmed in part and reversed in part. Plaintiff-ex-wife (Lynn) sought to recover funds David transferred to Howard and Howard’s companies in contemplation of Lynn and David’s divorce. The trial court ruled in Lynn’s favor. On appeal, the court agreed with Fraser that the trial court erred by holding it in criminal contempt. It noted that, given the trial court expressly found that Fraser’s sole agent, Howard, did not possess the intent to violate an injunction, the trial court erred by finding Fraser willfully violated the injunction. “It is not rational to impute a different intent to Fraser in light of the [trial] court’s finding that Howard, Fraser’s sole agent, lacked criminal intent.” However, the court rejected Howard’s and Alliance’s argument that they were not in contempt. First, it rejected their argument that the trial court erred by proceeding with a show-cause hearing because Lynn’s motion to show cause was defective due to the accompanying affidavit. “[B]ecause Lynn’s lawyer affidavit establishes that he had personal knowledge regarding how he obtained the business record and had personal knowledge about the contents of the business record, the affidavit” was not defective. Next, it rejected their claim that the trial court erred by quashing their subpoena to have Lynn’s lawyer testify at the show-cause hearing. “Lynn’s lawyer’s limited knowledge would have been of no assistance in resolving any pertinent factual disputes.” In addition, Howard and Alliance “failed to show how, if they were precluded from presenting a defense, the error was outcome-determinative.” The court further rejected Howard’s contention the trial court’s finding that he was the person who withdrew funds on behalf of Alliance was not supported by the admissible evidence. “[W]ith Howard being Alliance’s sole member and manager, and there being no evidence of anyone else acting on behalf of Alliance, the trial court” did not err by finding he was the person who initiated and effectuated the withdrawal. Finally, the court held that the trial court did not err in its other factual findings, that Howard and Alliance abandoned any challenge to the imposition of restitution, and that their argument as to punishment for criminal contempt was not ripe for review.

Coordination of coverage; MCL 500.3109a; Farm Bureau Gen Ins Co v Blue Cross Blue Shield of MI; Effect of the Health Care Sharing Ministries Freedom to Share Act; MCL 550.1867(b), (c), & (g); Whether coordination of coverage under MCL 500.3109a & health care sharing on a voluntary basis under MCL 550.1867 can coexist; “Other health & accident coverage”; Jarrad v Integon Nat’l Ins Co; No-Fault Act (NFA)

The court held that the trial court did not err by granting defendant, a voluntary health care sharing ministry, summary disposition of plaintiff-insurer’s claim seeking to deem defendant responsible for plaintiff’s insured’s (non-party Vanderlinden) medical expenses under a coordination-of-coverage provision in his auto policy. Plaintiff paid PIP benefits to Vanderlinden after he was injured in an auto accident. It then filed this action contending defendant was obligated by MCL 500.3109a and plaintiff’s coordination-of-coverage policy language to bear the primary responsibility for Vanderlinden’s medical expenses. The trial court granted summary disposition for defendant, finding defendant’s health care sharing program, Medi-Share, qualifies as a health care sharing ministry and, thus, “is neither an insurer nor subject to the insurance laws of the State of Michigan, including coordination of coverage under MCL 500.3109a.” On appeal, the court concluded that “allowing coordination of coverage with what a health care sharing ministry provides is a bridge too far.” It found no basis “to characterize what a health care sharing ministry provides to its participants as ‘other health and accident coverage’ for purposes of coordination of coverage under the” NFA. “Our Legislature placed its imprimatur upon health care sharing ministries operating entirely outside the insurance system and providing assistance to the participants on a purely voluntary basis.” As such, “it should come as no surprise that health care sharing ministries do not furnish ‘other health and accident coverage’ within the contemplation of the” NFA for purposes of coordination of coverage under MCL 500.3019a. Affirmed.

Whether assignees were in privity with the assignor-injured person as to the judgment rendered against him after he assigned his PIP claim to plaintiffs; Aultman, Miller & Co v Sloan; Howell v Vito’s Trucking & Excavating Co; Doctrines of res judicata & collateral estoppel

The court concluded that plaintiffs-assignees were not in privity with Myers (the assignor) as to the judgment rendered against him after he assigned his PIP claim to plaintiffs. Thus, they could not be bound by that judgment under the doctrines of res judicata or collateral estoppel. Therefore, the court affirmed the judgment of the Court of Appeals and remanded to the trial court. Myers was injured in a car crash and received medical treatment from plaintiffs-Mecosta County Medical Center and Mary Free Bed Rehabilitation Hospital. Myers assigned them his right to seek PIP benefits from the insurer responsible for making those payments. After the assignment, Myers sought PIP benefits for separate services he received after the crash. In that lawsuit, where “plaintiffs here were not party, the trial court held that Myers had not properly insured the vehicle and was therefore not entitled to any benefits.” The issue on appeal was whether that holding applied “to plaintiffs and precludes them, under the doctrines of res judicata or collateral estoppel, from succeeding on the present assigned claim against the defendant insurers.” Because they were not parties to the earlier suit, the court held that “they are bound by the judgment only if they were in privity with Myers when the earlier judgment against him was entered.” The Court of Appeals properly concluded that “plaintiffs were not bound by the earlier judgment because it was entered after they were assigned the claim.” Thus, because they “were neither parties to the earlier suit nor privies with respect to the subsequently entered judgment, the doctrines of res judicata and collateral estoppel” were inapplicable in this case.

Coordination of coverage; MCL 500.3109a; Farm Bureau Gen Ins Co v Blue Cross Blue Shield of MI; Effect of the Health Care Sharing Ministries Freedom to Share Act; MCL 550.1867(b), (c), & (g); Whether coordination of coverage under MCL 500.3109a & health care sharing on a voluntary basis under MCL 550.1867 can coexist; “Other health & accident coverage”; Jarrad v Integon Nat’l Ins Co; No-Fault Act (NFA)

The court held that the trial court did not err by granting defendant, a voluntary health care sharing ministry, summary disposition of plaintiff-insurer’s claim seeking to deem defendant responsible for plaintiff’s insured’s (non-party Vanderlinden) medical expenses under a coordination-of-coverage provision in his auto policy. Plaintiff paid PIP benefits to Vanderlinden after he was injured in an auto accident. It then filed this action contending defendant was obligated by MCL 500.3109a and plaintiff’s coordination-of-coverage policy language to bear the primary responsibility for Vanderlinden’s medical expenses. The trial court granted summary disposition for defendant, finding defendant’s health care sharing program, Medi-Share, qualifies as a health care sharing ministry and, thus, “is neither an insurer nor subject to the insurance laws of the State of Michigan, including coordination of coverage under MCL 500.3109a.” On appeal, the court concluded that “allowing coordination of coverage with what a health care sharing ministry provides is a bridge too far.” It found no basis “to characterize what a health care sharing ministry provides to its participants as ‘other health and accident coverage’ for purposes of coordination of coverage under the” NFA. “Our Legislature placed its imprimatur upon health care sharing ministries operating entirely outside the insurance system and providing assistance to the participants on a purely voluntary basis.” As such, “it should come as no surprise that health care sharing ministries do not furnish ‘other health and accident coverage’ within the contemplation of the” NFA for purposes of coordination of coverage under MCL 500.3019a. Affirmed.

Declaratory judgment action by an insurer; Stay of proceedings pending the outcome of a related case

Concluding that the trial court did not abuse its discretion by granting a stay of proceedings pending the outcome of collateral federal tort litigation, the court affirmed. Defendants-the Fays were seriously injured due to carbon monoxide poisoning while staying at a hotel owned and operated by defendant-Warren Hospitality Suites. They sued Warren Hospitality in the federal tort litigation. Plaintiff-Atain Insurance Company “insures Warren Hospitality and is providing a defense in the tort suit under a reservation of rights. Atain filed this declaratory action seeking an adjudication that it does not have a duty to defend or indemnify in the federal action due to an exclusion in the policy” that excludes coverage for damages or injuries caused by “pollutants.” The Fays’ tort complaint alleged that the “carbon monoxide was caused by ‘an uncontrollable fire’ in the hotel’s HVAC system.” Atain maintained that “carbon monoxide is a ‘pollutant’ and coverage” was excluded under the policy. The court noted that two “trial courts have independently determined that the tort action and the declaratory action have common issues of fact as to the cause of the alleged carbon monoxide discharge. The trial court properly exercised its discretion by staying the proceedings in the declaratory action ‘[t]o prevent any inequity in this matter and in the interest of judicial economy[.]’ Because of the overlap of the factual issues, the outcome of the tort action could impact the declaratory action. For example, if Warren Hospitality prevails in the tort action, then the declaratory action would become moot.” Thus, it was “within the range of principled outcomes for the trial court to wait for the cause of the carbon monoxide poisoning to be litigated in the underlying tort action. This approach clearly serves judicial economy.” Likewise, the trial court “did not abuse its discretion because Atain would not suffer any prejudice by the stay. Atain’s legal interests remain intact and, if not rendered moot by the litigation of the factual issues, can be litigated in full later.”

Coverage for business lost as a result of COVID-19 or Executive Order 2020- 9; Business income coverage; “Direct physical loss of or damage to”; Whether “loss of business income [was] sustained . . . by the perils insured against damaging or destroying . . . building(s) . . . .”; “Damage”, “injury”, & “destroy”; Civil authority coverage; Reliance on Southlanes Bowl, Inc v Lumbermen’s Mut Ins Co, Sloan v Phoenix of Hartford Ins Co, & Allen Park Theatre Co, Inc v Michigan Millers Mut Ins Co

The court held that the trial court did not err in concluding plaintiff-Gourmet Deli was “not entitled to business income or civil authority coverage under its insurance policy from the business it lost as a result of COVID-19, or the Governor’s executive orders regarding COVID-19.” Thus, it affirmed the trial court’s grant of summary disposition to defendant-Farm Bureau. The case arose from Gourmet’s closure in 3/20. As to business income coverage, “Gourmet failed to submit evidence that: (a) a physical or structural change is not required under the policy, (b) COVID-19 causes property damage from its impact on humans, or (c) COVID-19 was ever present in Gourmet’s space.” Thus, Gourmet could not claim business income coverage. Also, as to civil authority coverage, because “there was no physical loss or damage to the areas surrounding Gourmet’s space from COVID-19, nor was Gourmet prohibited from accessing its space by Executive Order 2020- 9 and subsequent orders, it is not entitled to civil authority coverage.”

Whether assignees were in privity with the assignor-injured person as to the judgment rendered against him after he assigned his PIP claim to plaintiffs; Aultman, Miller & Co v Sloan; Howell v Vito’s Trucking & Excavating Co; Doctrines of res judicata & collateral estoppel

The court concluded that plaintiffs-assignees were not in privity with Myers (the assignor) as to the judgment rendered against him after he assigned his PIP claim to plaintiffs. Thus, they could not be bound by that judgment under the doctrines of res judicata or collateral estoppel. Therefore, the court affirmed the judgment of the Court of Appeals and remanded to the trial court. Myers was injured in a car crash and received medical treatment from plaintiffs-Mecosta County Medical Center and Mary Free Bed Rehabilitation Hospital. Myers assigned them his right to seek PIP benefits from the insurer responsible for making those payments. After the assignment, Myers sought PIP benefits for separate services he received after the crash. In that lawsuit, where “plaintiffs here were not party, the trial court held that Myers had not properly insured the vehicle and was therefore not entitled to any benefits.” The issue on appeal was whether that holding applied “to plaintiffs and precludes them, under the doctrines of res judicata or collateral estoppel, from succeeding on the present assigned claim against the defendant insurers.” Because they were not parties to the earlier suit, the court held that “they are bound by the judgment only if they were in privity with Myers when the earlier judgment against him was entered.” The Court of Appeals properly concluded that “plaintiffs were not bound by the earlier judgment because it was entered after they were assigned the claim.” Thus, because they “were neither parties to the earlier suit nor privies with respect to the subsequently entered judgment, the doctrines of res judicata and collateral estoppel” were inapplicable in this case.

Declaratory judgment action by an insurer; Stay of proceedings pending the outcome of a related case

Concluding that the trial court did not abuse its discretion by granting a stay of proceedings pending the outcome of collateral federal tort litigation, the court affirmed. Defendants-the Fays were seriously injured due to carbon monoxide poisoning while staying at a hotel owned and operated by defendant-Warren Hospitality Suites. They sued Warren Hospitality in the federal tort litigation. Plaintiff-Atain Insurance Company “insures Warren Hospitality and is providing a defense in the tort suit under a reservation of rights. Atain filed this declaratory action seeking an adjudication that it does not have a duty to defend or indemnify in the federal action due to an exclusion in the policy” that excludes coverage for damages or injuries caused by “pollutants.” The Fays’ tort complaint alleged that the “carbon monoxide was caused by ‘an uncontrollable fire’ in the hotel’s HVAC system.” Atain maintained that “carbon monoxide is a ‘pollutant’ and coverage” was excluded under the policy. The court noted that two “trial courts have independently determined that the tort action and the declaratory action have common issues of fact as to the cause of the alleged carbon monoxide discharge. The trial court properly exercised its discretion by staying the proceedings in the declaratory action ‘[t]o prevent any inequity in this matter and in the interest of judicial economy[.]’ Because of the overlap of the factual issues, the outcome of the tort action could impact the declaratory action. For example, if Warren Hospitality prevails in the tort action, then the declaratory action would become moot.” Thus, it was “within the range of principled outcomes for the trial court to wait for the cause of the carbon monoxide poisoning to be litigated in the underlying tort action. This approach clearly serves judicial economy.” Likewise, the trial court “did not abuse its discretion because Atain would not suffer any prejudice by the stay. Atain’s legal interests remain intact and, if not rendered moot by the litigation of the factual issues, can be litigated in full later.”

Auto negligence; “Serious impairment of body function”; MCL 500.3135(5); McCormick v Carrier; Effect of conflicting evidence; Patrick v Turkelson; Motion for summary disposition under MCR 2.116(C)(10); MCR 2.116(G)(4) & (5); Barnard Mfg Co, Inc v Gates Performance Eng’g, Inc; Causation

The court held that there was evidence allowing a reasonable trier of fact to find “that plaintiff suffered an objectively manifested impairment that was observable or perceivable by someone other than plaintiff in the cervical and thoracic spine MRIs.” Further, there were questions of fact as to causation, and evidence creating a genuine issue of material fact whether her “general ability to lead her normal life was affected.” Thus, the court vacated the order granting defendant-Pawlitz summary disposition and remanded. It concluded that the trial court’s decision “was based on its own findings of fact after it improperly weighed the conflicting evidence.” The court noted evidence was presented “that certain medical treatment providers found plaintiff to have bulging, herniated, and protruding discs in her neck and upper back (where she reported pain) after the accident. There was also evidence that plaintiff showed signs of degenerative conditions in her cervical spine and that she had been treated for lower back pain in 2013 and neck stiffness in 2016. A subsequent medical record from 2016 when plaintiff was treated for a headache indicates that she was negative for back and neck pain at that time.” But the trial court elected to disregard this and instead only credit evidence that she “had degenerative conditions. There was conflicting evidence about the nature of plaintiff’s neck and upper back impairments, which is clearly a material fact in this case. . . . By resolving this material factual dispute on summary disposition through resort to weighing the evidence and making findings of fact, the trial court erred.” The court further found that while “the trial court was likely stymied in its review of the evidence by plaintiff’s failure to make her evidence in support of her position easier to locate[,]” she nonetheless specifically referred to the evidence of a “cervical spine MRI report finding a bulged disc and a herniated disc” and submitted it into the record. Although the trial court was not obligated “to scour the record for evidence to support plaintiff’s position about which [it] was unaware and that might show a question of fact, . . . the trial court could not willfully ignore such evidence having been made aware it[.]” As to causation, a trier of fact could reasonably infer from plaintiff’s evidence that she “suffered either new back and neck impairments or an aggravation of preexisting conditions” due to the accident.

A “surviving spouse’s” rights under the Estates & Protected Individuals Code to receive a share of the estate upon the death of his or her spouse; MCL 700.2202(1) & (2); Principle that a spouse can lose these rights if he or she is “willfully absent from the decedent spouse” for more than a year before that spouse’s death; MCL 700.2801(2)(e)(i); In re Erwin; Whether a spouse who has filed for divorce but is not yet divorced when his or her spouse dies is “willfully absent” & ineligible for benefits as a “surviving spouse”; Effect of MCL 700.2801(3)(b); The expressio unius est exclusio alterius canon of statutory interpretation; Bronner v Detroit

The court held that petitioner (decedent-Hermann’s daughter) failed to rebut the presumption that respondent (Hermann’s purported surviving spouse) was not willfully absent for purposes of inheritance, given respondent promptly filed for divorce and pursued the entry of a divorce judgment via communications with the decedent through her attorney. Respondent filed for divorce from Hermann. Hermann died before the divorce was finalized. Petitioner sought a declaration that respondent was willfully absent for more than a year before Hermann’s death and thus, was not his surviving spouse for purposes of inheritance. The probate court agreed. The Court of Appeals reversed, finding that “any period of time consumed by a divorce proceeding did not constitute ‘willful absence’ that would disinherit an otherwise qualified surviving spouse.” The court concluded that “there is no statutory basis for a categorical rule that filing for divorce precludes a finding of willful absence.” But it held that “the filing of a divorce action creates a presumption that the spouse was not willfully absent.” A challenging party can rebut this presumption “by showing that, under the totality of the circumstances, the surviving spouse’s communications, or lack thereof, were inconsistent with a recognition of the continued existence of the legal marriage.” The court found that petitioner did not sustain “her burden to show that [respondent] was willfully absent notwithstanding her communications with Hermann through their attorneys while attempting to secure an attorney-negotiated judgment of divorce. There is no evidence that [respondent] failed to participate with Hermann to expeditiously resolve the divorce action. To the contrary, [she] filed for divorce less than two weeks after their last direct contact and the judgment of divorce was close to being entered when Hermann died scarcely a year after filing.” Further, during the divorce proceedings they “stipulated through their attorneys to the occupancy of the marital home and the appropriate use of marital funds, and they worked out a settlement of everything but spousal support before Hermann’s death, which implies frequent and detailed communications between the spouses through their attorneys.” Under the circumstances, respondent “was not willfully absent from Hermann for more than a year before his death.” Affirmed.

Dissenting, Justice Zahra, joined by Justice Viviano, asserted that “[n]ot only is the majority opinion’s new test inconsistent with a fair and reasonable reading of the holding and logic of Erwin, but it also generates a per se rule that is unsupported either by the text of MCL 700.2801(2)(e)(i) or by Erwin.”

Dissenting separately, Justice Viviano noted that he joined Justice Zahra’s dissent in full, but wrote to “make a few additional observations.” He concluded with his belief that “it would be far better for the law to retain a flawed interpretation than to tack another new, even more flawed interpretation onto it.”

Protective order; MCL 700.5401(3); In re Estate of Schroeder; MCL 700.5401(3)(a) & (b); In re Estate of Vansach; Transferred property; MCL 700.5408; Department of Health & Human Services (DHHS); Guardian ad litem (GAL)

The court held that petitioner-wife adequately established the requirements under MCL 700.5401(3)(a) to transfer nearly all of her husband’s (Sizick) assets and income for petitioner’s support. But the court vacated the trial court’s finding as to MCL 700.5401(3)(b). It also remanded as to the identification, value, and ownership of the transferred property. The court affirmed the order as to the finding under MCL 700.5401(3)(a), vacated as to MCL 700.5401(3)(b), and remanded for further findings under (b) and to identify the property being transferred under MCL 700.5408. Respondent-DHHS appealed the protective order entered by the trial court, which granted a transfer of Sizick’s “assets and income, an expansion of the power of attorney to implement the order, and equitable relief in favor of” petitioner. The court found it was “clear from the record that Sizick suffers from multiple health conditions that require continuous nursing care, making it unlikely that he will ever return to independent living. In light of the fact that witness testimony and the GAL’s report were unchallenged regarding Sizick’s health issues, the trial court did not err in determining Sizick was unable to manage his property or business affairs because of mental deficiency and physical illness under MCL 700.5401(3)(a).” As to MCL 700.5401(3)(b), the DHHS’s principal argument was that “under Schroeder the trial court erred in making the need determination in the absence of a final Medicaid determination.” The court reluctantly agreed. Based on Schroeder, which is binding, it reversed “the probate court’s ruling on the basis of need, and remand for a redetermination.” In addition, it was “unclear what assets or property are included in trial court’s ‘countable assets’ calculation, whose ownership interest is included in” the calculation or petition, and whether the “order transferred property independently owned by petitioner. Therefore, to the extent the trial court on remand grants a new protective order, evidence should be presented regarding the ownership interest and value of the assets being transferred.”

Reformation of a deed based on mutual mistake; Johnson Family Ltd P’ship v White Pine Wireless, LLC; Clear & convincing evidence; Mutual mistake of law; Schmalzriedt v Titsworth; A deed failing to express the parties’ intent; Scott v Grow; Presumption that a grant or devise of real property made to two or more people is a tenancy in common; MCL 554.44

The court held that appellee (RoseMary) showed by clear and convincing evidence that she and the decedent (Frederick, the parties’ father) “were mutually mistaken about the legal effect of their deed, or wrote the deed in” a form that failed to provide for a joint tenancy with full rights of survivorship by accident. Thus, it affirmed the probate court’s order reforming the deed to terminate the real property interest that passed to Frederick’s estate and allowing RoseMary to transfer this interest to herself. The relevant facts were undisputed. “RoseMary purchased the property from Frederick and his wife years prior to the 2009 deed, and the only reason offered as a basis for placing Frederick on the deed in 2009 was to alleviate a duplicative cost that Frederick could not afford. There was also no dispute between the parties that this was the reason for the 2009 deed, and it was not to transfer a common interest in the land with Frederick that would be passed onto his estate upon death. The undisputed facts also permitted the inference that the siblings” (apart from appellant) consented to revising “the deed because they believed that RoseMary and Frederick mistakenly created a tenancy in common. RoseMary presented clear and convincing evidence of a mutual mistake of law, one in which the omission of survivorship language gave the deed ‘a legal effect not intended by the parties,’ . . . and met her burden to establish that the mistake was ‘shared by and common to’ Frederick.” The court found that Scott supported its conclusion. The Michigan Supreme Court held there that where “a written instrument fails to express the intention of the parties because of a mutual mistake as to the interpretation or legal effect of the words of the writing, though there is no misapprehension as to what words have been used, reformation is allowed.” As in that case, it was undisputed here “that the 2009 deed failed to express” RoseMary and Frederick’s intent due to “a mutual mistake or accident as to the legal effect of the words used in the deed, and the deed as drafted was insufficient to effectuate their intention and objective.”

Reformation of a deed based on mutual mistake; Johnson Family Ltd P’ship v White Pine Wireless, LLC; Clear & convincing evidence; Mutual mistake of law; Schmalzriedt v Titsworth; A deed failing to express the parties’ intent; Scott v Grow; Presumption that a grant or devise of real property made to two or more people is a tenancy in common; MCL 554.44

The court held that appellee (RoseMary) showed by clear and convincing evidence that she and the decedent (Frederick, the parties’ father) “were mutually mistaken about the legal effect of their deed, or wrote the deed in” a form that failed to provide for a joint tenancy with full rights of survivorship by accident. Thus, it affirmed the probate court’s order reforming the deed to terminate the real property interest that passed to Frederick’s estate and allowing RoseMary to transfer this interest to herself. The relevant facts were undisputed. “RoseMary purchased the property from Frederick and his wife years prior to the 2009 deed, and the only reason offered as a basis for placing Frederick on the deed in 2009 was to alleviate a duplicative cost that Frederick could not afford. There was also no dispute between the parties that this was the reason for the 2009 deed, and it was not to transfer a common interest in the land with Frederick that would be passed onto his estate upon death. The undisputed facts also permitted the inference that the siblings” (apart from appellant) consented to revising “the deed because they believed that RoseMary and Frederick mistakenly created a tenancy in common. RoseMary presented clear and convincing evidence of a mutual mistake of law, one in which the omission of survivorship language gave the deed ‘a legal effect not intended by the parties,’ . . . and met her burden to establish that the mistake was ‘shared by and common to’ Frederick.” The court found that Scott supported its conclusion. The Michigan Supreme Court held there that where “a written instrument fails to express the intention of the parties because of a mutual mistake as to the interpretation or legal effect of the words of the writing, though there is no misapprehension as to what words have been used, reformation is allowed.” As in that case, it was undisputed here “that the 2009 deed failed to express” RoseMary and Frederick’s intent due to “a mutual mistake or accident as to the legal effect of the words used in the deed, and the deed as drafted was insufficient to effectuate their intention and objective.”

Order that the child continue to be placed with his legal father & the protective proceeding continue; Jurisdiction of an appeal of right; MCR 7.203(A)(2); MCR 3.993(A)(1); “Removing”

The court dismissed for lack of jurisdiction the trial court’s 8/20/21 ruling, which ordered that the child continue to be placed with his legal father in Texas and the child protective proceeding continue. A “child is removed from a parent’s care and custody when he or she is taken from that parent’s residence and placed in a different residence.” The trial court’s 8/20/21 ruling did not order that the “child be placed in a different residence.” The initial order of removal was entered on 12/19/19, and the 8/20/21 order continued the child in the care of his legal father. Further, the 8/20/21 order did “not qualify as a final order because it did not dismiss the petition with respect to [respondent-mother], and the trial court did not terminate its jurisdiction. Rather, the order provided for continuance of the matter as to respondent. As such, the order did not dispose ‘of all the claims and adjudicate the rights and liabilities of all the parties. . . .’” Thus, respondent was not entitled to appeal the 8/20/21 order as of right. Given the facts here, the court declined to treat respondent’s “claim of appeal as an application for leave and determine the merits of the issue on appeal.”