Whether the parties reached an enforceable settlement agreement; Meeting of the minds

The court held that because “the parties did not reach a meeting of minds over the settlement’s essential terms, there was no enforceable settlement agreement.” Plaintiff contracted with defendant to list and sell real estate owned by defendant. “Defendant terminated the exclusive listing agreement before the expiration date and subsequently entered into an agreement to sell the land to a third-party buyer.” After the sale, plaintiff sued for breach of contract to collect the commission. “The parties discussed settlement during the litigation.” Plaintiff argued that they reached an enforceable settlement agreement. The first e-mail, sent by defense counsel on 9/20/19, “stated the unknown settlement amount plus the terms that each party would pay for their own attorneys’ fees and that the entire case would be dismissed with prejudice.” Plaintiff’s counsel’s 9/24/19 “e-mail accepted those terms, but asked for a written settlement agreement and mutual releases, additional terms which effectively created a counteroffer.” According to plaintiff, counsel for both of parties then engaged in a “conference call in which they confirmed the parties had reached a settlement, and that defense counsel would notify the trial court. Defense counsel sent an e-mail to plaintiff’s counsel the next day that he had contacted the circuit court to let the court know that the matter was settled and the parties should have the action finalized in the next week or so.” The 9/25/19 e-mail stated that “defense counsel was waiting for approval of his draft settlement agreement and would send it to plaintiff’s counsel as soon as he has it. The parties were then unable to agree on the language of the release clause.” Contrary to plaintiff’s argument, the 9/25/19 “e-mail from defense counsel does not constitute an unambiguous acceptance of plaintiff’s counteroffer requesting a mutual release of all claims. That e-mail did not contain a summary of the parties’ agreement, nor did it refer to plaintiff’s previous e-mail containing the counteroffer or make any mention of a mutual release. Indeed, it was apparently not even part of the same e-mail chain containing the counteroffer.” Thus, the 9/25/19 e-mail did “not show clear acceptance of plaintiff’s counteroffer of a mutual release. While the parties apparently agreed to some terms of the settlement agreement, they could not reach an agreement on the scope of the release clause, i.e., an essential term.” Affirmed.

Breach of contract; Statute of limitations; Application of the ability-to-pay analysis in Dewey v Tabor; Accrual; MCL 600.5827

Concluding that the trial court erred in applying Dewey’s ability-to-pay analysis, the court reversed the order granting defendant-McCabe summary disposition on plaintiff-Prentice’s breach of contract, account stated, and unjust enrichment claims on the ground that they were time-barred, and remanded. Prentice was formerly McCabe’s father-in-law. When McCabe was still married to Prentice’s daughter, “Prentice gave the couple $135,000 to purchase a home” and in 11/03 McCabe sent him a letter “acknowledging the $135,000 payment and promising to repay ‘every dollar.’” The court noted that the letter did not contain any language “indicating that repayment would be made when he had the ability to repay.” In granting McCabe summary disposition, the trial court determined “as a matter of law that the applicable six-year limitations period had expired before” Prentice filed suit. It found that undisputed bank "statements from 2006 and 2007 conclusively established that McCabe had an ability at that time to repay the alleged debt.” It failed to address Prentice’s contention that McCabe waived a statute of limitations defense “due to inadequate pleading.” The court noted that while “the Dewey panel referred to ‘loans or transactions among friends and relatives[,]’” this did not mean “that every loan between friends and relatives is governed by an ability-to-pay accrual date—the language of the agreement must ultimately control. McCabe’s letter expressed that the balance would be paid to Prentice when the” house was refinanced. While the home was refinanced in 2/04, “the balance was not forwarded to Prentice. The failure to repay the balance at that time necessarily constituted the alleged breach of contract and, generally speaking, a claim against McCabe would have accrued at that point.” Although the court noted that it would appear Prentice’s action was time-barred, it determined the proper approach was “to remand the case for consideration anew of the ‘statute of limitations’ issue in the correct framework, thereby allowing Prentice the opportunity to develop any arguments against summary dismissal based on the statute of limitations, including fraudulent concealment.” Remand was also necessary because “the trial court erred by failing to address Prentice’s argument that McCabe waived the affirmative defense of the statute of limitations.”

Identification evidence; Suggestiveness; Necessity of the procedure used; People v Sammons; Reliability; Neil v Biggers factors; In-court identifications; People v Kachar; Prosecutorial misconduct; Inconsistent witness testimony; Mischaracterizing statements during jail calls & testimony as to guilty pleas to prior crimes; Ineffective assistance; Failure to support a motion to suppress the identifications with evidence; Failure to impeach the victims; Failure to present expert testimony; Failure to object to the jury instructions; Cumulative error

The court held that while the identification procedure was unnecessarily suggestive, “the witnesses’ identifications were reliable such that the identification evidence was admissible.” Thus, the trial court did not err in declining to exclude the evidence. Further, the in-court identifications of defendant were permissible. Also, a new trial was not warranted based on prosecutorial misconduct or ineffective assistance of counsel. He was convicted of armed robbery. Defendant contended, among other things, that the trial court erred when it denied his motion to suppress the victims’ identifications of him. The parties did not dispute that the identification procedure the police used here was suggestive, and the court also concluded that it was not necessary for the police to use the suggestive identification procedure. Given the known facts, the police had good reason to believe that defendant and S “were involved in the robbery such that it was unlikely that there were other armed individuals at large nearby.” Unlike the example provided in Sammons, there was no indication the victims “were unable or unwilling to identify the individuals involved in the robbery at a later time.” However, the court held that in light of the Biggers factors, “the prosecution met its burden of establishing that the reliability of the identifications outweighed the suggestive nature of the identification procedure.” Thus, the trial court did not err when it denied defendant’s motion to exclude the identification evidence. The court further noted that, even assuming “the pretrial identification lacked reliability, the in-court identifications of defendant were permissible.” It found that while “several factors either weighed against admissibility or were neutral, the first, second, and seventh factors set forth in Kachar each weighed strongly in favor of admissibility. Thus, even assuming that the pretrial identifications were obtained through unnecessarily suggestive procedures and lacked reliability, the trial court did not err when it declined to suppress the in-court identifications of defendant.” Affirmed.

Prosecutorial error; Appeals to juror sympathy; Questioning during voir dire; Eliciting testimony from the victim’s mother; References to the “victim”; Cumulative error claim; Ineffective assistance of counsel; Sufficiency of the evidence for a second-degree murder conviction; People v Werner; Self-defense; MCL 780.972(1) & 780.974; People v Guajardo

Rejecting defendant’s prosecutorial error and ineffective assistance of counsel claims, and holding that the evidence was sufficient to support his second-degree murder conviction, the court affirmed. He was also convicted of felony-firearm and FIP. He alleged several claims of prosecutorial misconduct, which he asserted “served the purpose of garnering the jury’s sympathy for” the victim (M) and deprived him of a fair trial. Reviewing his claims for plain error, the court first found no merit in his argument as to the prosecution’s voir dire questioning of a prospective juror who indicated she knew M. “Analysis of the questions posed by the prosecution does not reveal an attempt to garner sympathy for” M, but that they instead “exposed bias by sufficiently probing the background to achieve” the constitutional purpose of voir dire. The prosecution requested, and defense counsel concurred in, the exclusion of this prospective juror for cause. As to the prosecution’s references to M as “the victim,” the court noted that this “term necessarily does not connote or imply that a crime was committed” and concluded that the trial court’s jury instructions were sufficient “to dispel any prejudice.” His arguments as to the testimony elicited from M’s mother by the prosecution also failed. Further, he did not show that defense counsel provided him ineffective assistance. As to the sufficiency of the evidence and his self-defense claim, the court determined that a reasonable jury could infer malice from the evidence presented and find that defendant shot M without justification. Further, “the video evidence and prosecution witnesses’ testimonies starkly contrasted with defendant’s rendition of the facts. No witness saw [M] with a gun and the police investigating the shooting found no gun or weapon on [M’s] person or in” his vehicle. The trial evidence also allowed the jury to “find beyond a reasonable doubt that the prosecution proved that defendant did not act in self-defense.”

Sufficiency of the evidence for a first-degree premeditated murder conviction; Premeditation & deliberation; People v Oros; People v Plummer; Other acts evidence; MCL 768.27b(1); MRE 403

Holding that the evidence of premeditation and deliberation was sufficient to support defendant’s first-degree premeditated murder conviction, and that the trial court did not err in admitting other acts evidence, the court affirmed defendant’s conviction. The victim was his wife, B. The court concluded that in light of “the multiple knife wounds, their nature and location, and the span of time necessary to inflict all of [B’s] injuries (time for a second look), along with the evidence that defendant and the bedroom were covered in blood splatter, one could reasonably infer that defendant, while perhaps only within a brief moment of thought and matter of seconds, came to the decision to kill [B] with the knife and then followed through on that decision.” The court also noted that his “own testimony was not helpful to his cause,” and that there were inconsistencies between his “trial testimony about the immediate events that led up to the killing and” his mother’s (K) testimony about his statements “when he phoned her and explained the precipitous events. There was also defendant’s failure to inform the police with respect to significant aspects of his story that he recounted for the jury[.]” As to the other acts evidence, the court concluded that puncturing K’s “airbed mattress with a knife qualified as an act of domestic violence, regardless of whether she directly observed the act or discovered it almost immediately upon exiting the closet; she was in the room.” Applying MRE 403, the court found that the other “incidents were not particularly prejudicial to defendant such that the jury would have weighed the evidence substantially out of proportion to the damaging effect of the evidence because the probative value and the prejudicial impact of the evidence were both marginal.” What was damaging was the “testimony and evidence showing inconsistencies in the accounts given by defendant and” K about what actually happened in those incidents. “The inconsistencies and changes in their stories and the accompanying collusion by phone likely lowered their credibility in the eyes of the jurors, not only as to the circumstances surrounding the other acts but also with respect to the events on the day of the murder. This form of prejudice was not relevant to the analysis under MRE 403[.]” The court added that any error was harmless.

Custody; MCL 722.23; Whether the trial court’s findings on best-interest factors (c), (d), (h), (j), & (l) were contrary to the great weight of the evidence

The court held that the trial court’s findings as to best-interest factors (c), (d), (h), (j), and (l) were supported by the great weight of the evidence. Thus, it did not abuse its discretion when it granted defendant-father’s motion to change custody, change the parenting time schedule, and modify child support. As to factor (c), the court held that although the evidence indicated that plaintiff-mother had the capacity to provide food and clothing for the child, J, the great weight of the evidence supported the trial court’s “finding that defendant had a greater capacity to do so given the disparity in the parties’ income.” Further, it supported the finding that he had a greater capacity to provide for J as to her medical care. Based upon the record evidence, the trial court found that (c) weighed in his favor. “The evidence did not clearly preponderate in the opposite direction.” As to (d), the record indicated that J “took care of getting up and ready for school and either her grandmother or plaintiff took her to school,” but it lacked clarity as to who provided J her meals. “Plaintiff also revealed that she had plans to move in the near future to a different home but provided the court no details” on when or where, or “how the move might impact [J’s] schooling, extracurricular activities, therapy, and parenting time with defendant.” Further, defendant “owned and lived with his girlfriend in a three-bedroom house where” J had her own room. He had no plans to move. As to (h), although plaintiff testified that she took J “to tutoring, plaintiff acknowledged that she did not have proof that she had done so. Defendant testified that he took [J] to every tutoring session that occurred during his limited parenting time.” The record also reflected that plaintiff took J out of school for medical appointments and kept her “out of school for the entire day.” As to (j), the trial court had “again ordered plaintiff to stop interfering with defendant’s parenting time. The record indicates that defendant never prevented plaintiff from exercising her parenting time with [J]. Defendant, however, refused to participate in coparenting counseling.” Finally, the record reflected that as to (l), the trial court considered J’s current therapist’s testimony as to J’s “struggle with depression and low self-esteem and the significant impact that the parties’ contentious relationship had on” J. The trial court found that both parties desired J’s “improvement but plaintiff disparaged defendant and discussed adult issues and court proceedings with [J] and continued to seek ways to deprive or interfere with defendant’s parenting time.” Affirmed.

First-party no-fault action for PIP benefits; Pursuing a claim against the Michigan Automobile Insurance Placement Facility (MAIPF); Michigan Head & Spine Inst, PC v Michigan Assigned Claims Plan; Effect of MAIPF assigning the claim to a servicing insurer; Motion to amend the complaint to add the servicing insurer as a party; Time limit for filing suit against a servicing insurer; MCL 500.3174; Privity; Whether the servicing insurer should have been substituted in place of MAIPF; MCR 2.202(B); Michigan Assigned Claims Plan (MACP)

Holding that plaintiff could not maintain her action for PIP benefits against MAIPF after it assigned a servicing insurer (nonparty-Farmers Insurance Exchange) to her claim, and that her motion to add Farmers as a party was properly denied as futile, the court affirmed summary disposition for MAIPF and the denial of her motion to amend. Plaintiff was an injured passenger in an auto accident. After litigation involving a potentially liable insurer, she amended her complaint to add MACP and MAIPF as parties. She later filed an application for benefits to MAIPF, which assigned her claim to Farmers and then sought summary disposition. Plaintiff unsuccessfully moved to substitute Farmers for MAIPF in the case. The court rejected her argument that the trial court erred in granting MAIPF summary disposition and dismissing her PIP benefits claim against it. While she relied on Michigan Head & Spine, nothing about that case suggested “that a plaintiff may maintain a lawsuit against MAIPF after MAIPF has assigned the claim to a servicing insurer.” Once MAIPF assigned her claim to Farmers, “plaintiff could no longer maintain a claim for PIP benefits against MAIPF.” As to her motion to amend to add Farmers as a party, she contended that she complied with MCL 500.3174’s time requirements by filing her “action against MAIPF via her amended complaint” because Farmers and MAIPF could be treated as the same party on the basis they were in privity. The court disagreed, concluding that they were not the same party and were not privies. It noted that the privity concept “arises in the context of claim preclusion and collateral estoppel—neither of which are at issue here.” Thus, whether the two entities “could be considered privies is beside the point. For even if they were, it would not lead to the conclusion plaintiff asks this Court to draw: that MAIPF and Farmers are literally the same party.” As to her contention the trial court should have substituted Farmers for MAIPF under MCR 2.202(B), while “MAIPF designated Farmers as the servicing insurer for plaintiff’s claim, in doing so MAIPF did not actually transfer anything to Farmers; MAIPF simply directed plaintiff who to sue for PIP benefits.” Because she did not begin “an action against Farmers within 30 days of receiving notice of assignment any action against Farmers would have been time barred.”

First-party no-fault action; Whether plaintiff sued the wrong entity; Separate corporate entities; The business records hearsay exception; MRE 803(6); Request to amend the complaint to substitute one entity for another; Futility; The one-year-back rule; MCL 500.3145(2); The relation-back doctrine; MCR 2.118(D); Addition of new parties; Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co; Applicability of the misnomer doctrine; Miller v Chapman Contracting; Distinguishing Matti Awdish, Inc v Williams; Request for remand; MCR 7.211(C)(1)(a)

Concluding that the record evidence showed plaintiff was insured by nonparty-Home-Owners rather than by defendant-Auto-Owners, the court held that she failed to show a genuine issue of material fact as to whether she was insured by Auto-Owners. Further, amending her complaint to add Home-Owners as a defendant would be futile because the amendment would not relate back and her claim would “be eviscerated by the one-year-back rule[.]” Thus, the court affirmed summary disposition for Auto-Owners and the denial of her motion to amend her complaint. It also denied her request to remand the case. At the time of her accident, she “was the named insured on a no-fault policy issued by Home-Owners, not by defendant. This is demonstrated by the Home-Owners policy declarations page appended to defendant’s motion for summary disposition.” While she noted that defendant did not produce the full policy, the declarations page itself showed that Home-Owners was her no-fault insurer. She countered that she may “have purchased two no-fault policies, one each from Home-Owners and defendant, but there” was no evidence of this and no explanation why she would do so. In addition, defendant asserted “that it and Home-Owners are legally distinct entities” and attached a document to its summary disposition motion showing they “have different registration numbers from the National Association of Insurance Commissioners (NAIC).” She challenged that document’s admissibility for the first time on appeal, arguing that it constituted “hearsay and was not properly authenticated as a business record.” But her challenge focused “on form rather than substance” and she failed to establish that the content of the document was inadmissible. She did not identify any “basis to doubt that a proper foundation could be laid for admission, as a record of regularly conducted activity, MRE 803(6), of a document showing that defendant and Home-Owners have separate NAIC registration numbers.” As to her motion to amend, the court noted that this case did not fall under the misnomer doctrine given that she “sued the wrong insurer and is now seeking to add a wholly new and different party.” Further, defendant notified her of the error at the start of the case, but she did not act to amend the complaint for nearly a year, waiting until it moved for summary disposition to do so.

Slip on ice in an employer’s parking lot while going in to begin a shift; Open & obvious doctrine; Exceptions; Lugo v Ameritech Corp, Inc; 2 Restatement Torts, 2d, § 343A, cmt f; “Special aspect”; When is a hazard effectively unavoidable; Hoffner v Lanctoe

The court held that “an open and obvious hazard can be considered effectively unavoidable when a plaintiff must confront it to enter his or her place of employment for work purposes.” But, in analyzing the issue, it was relevant whether a reasonable individual in plaintiff-Livings’s circumstances would have used any alternatives to avoid confronting the hazard. Thus, a genuine issue of material fact existed in this case as to whether the hazard she confronted was effectively unavoidable. As a result, the court affirmed the judgment of the Court of Appeals, which upheld the trial court’s denial of defendant’s summary disposition motion, and remanded to the trial court. Livings “slipped on ice in her employer’s parking lot as she headed in to begin her shift. Generally, when an injury occurs because of an open and obvious condition, landowners in Michigan are not liable because they have no duty to protect against those hazards.” But an exception exists “when the hazard is effectively unavoidable.” The issue here was “whether a hazard one must confront to enter his or her place of employment should be considered effectively unavoidable.” The court held that “an open and obvious condition can be deemed effectively unavoidable when a plaintiff must confront it to enter his or her place of employment for work purposes.” In these circumstances, the court held it “is possible for a defendant to foresee that the employee will confront the hazard. The bare fact that the employee could have failed to report to work as required by his or her employer is not a reasonable alternative. Instead, courts addressing this issue should consider whether a reasonable person in the plaintiff’s circumstances would have used any available alternatives to avoid the hazard.” Here, Livings’s fall on the ice and snow occurred as she tried “to enter her workplace. She has raised an issue of material fact as to whether the conditions of the parking lot were effectively unavoidable.”

Concurring, Chief Justice McCormack, joined by Justices Bernstein and Cavanagh, expressed the hope the court “will one day consider the legacy of Lugo and the special aspects doctrine. For now,” they concluded that the majority correctly determined that “an open and obvious condition can be considered effectively unavoidable when an employee must confront it to go to work.” Thus, they concurred in full with the majority opinion.

Dissenting, Justice Zahra disagreed with the majority’s endorsement of Restatement § 343, comment f, Illustration 5. He would apply the court’s “well established open and obvious danger caselaw to conclude that a person’s employment is not a relevant consideration in determining whether a condition was itself ‘effectively unavoidable.’” He would reverse the Court of Appeals’ judgment and remand to the trial court for entry of summary disposition for defendant.

Separately dissenting, Justice Clement agreed with Justice Zahra that the majority deviated from Hoffner and related caselaw. While she was “open to considering different approaches[,]” she did “not believe the Second Restatement offers any improvement on our law, and” thus she would apply Hoffner here and reverse the Court of Appeals.

False Claims Act (FCA); 31 USC § 3729(a); Claim that defendant-pharmacy overcharged the government for generic prescriptions; 42 CFR § 447.512(b)(2); The “public-disclosure bar” (§ 3730(e)(4)(A)); Whether the relator may pursue his claim as an “original source” (§ 3730(e)(4)(B)); Rockwell Int’l Corp. v. United States; McKenzie v. BellSouth Telecomm; U.S. Department of Health & Human Services (DHHS)

[This appeal was from the ED-MI.] Holding for the first time that when applying the “original-source exception” to the FCA’s “public-disclosure bar,” the Supreme Court’s rationale in Rockwell applies, and not the prior Sixth Circuit rationale in McKenzie, the court affirmed the dismissal of relator-Rahimi’s FCA claim. He alleged that defendant-Rite Aid defrauded the government by not offering government program beneficiaries an equivalent-or-better prescription discount on generic drugs where it was required to charge them “at their ‘usual and customary charge to the general public’—which is often referred to as the ‘U&C’ rate.” The district court dismissed his claim under the FCA’s public-disclosure bar. The court noted the Inspector General of the DHHS, national and local media, and other sources disclosed the overcharging practice before Rahimi presented his case to the government. Further, a qui tam action was unsealed in California, alleging similar practices by another major provider. When applying the public-disclosure framework, information that was disclosed to the public “can be considered together for determining whether there was a public disclosure of the essential elements of a fraud[.]” The court held that Rahimi's claim alleged fraud that was “sufficiently close to transactions already in the public domain,” and a relator cannot avoid the bar by adding “‘some new details to describe essentially the same scheme by the same corporate actor’ as the publicly disclosed fraud.” The court also concluded that he could not pursue his claim as an original source. It held that the Sixth Circuit’s interpretation of the 1986 version of the original-source exception was incompatible with the Supreme Court’s interpretation in Rockwell, which held that “a relator may make the same allegations as disclosed in a prior public disclosure and still qualify for original source status, so long as the relator had direct and independent knowledge of the information underlying his allegations.” Thus, in applying the 1986 version of the FCA, the court “will no longer require that a relator provide information to the government prior to any public disclosure to qualify as an original source.” Although the district court relied on McKenzie, the court “affirm[ed] on alternative grounds that Rahimi did not have direct knowledge of the information on which his allegations were based.” It found that the original source of most of his information was not Rahimi but a Rite Aid pharmacist and his cousin.

Jurisdiction; Whether the trial court violated respondent-mother’s right to due process by accepting her no-contest plea without ensuring that it was knowingly, understandingly, & voluntarily made; MCR 3.971(C)(1); Guardian ad litem (GAL)

The court held that the trial court violated MCR 3.971(C)(1) by failing to satisfy itself that the respondent-mother’s plea as to two of the children (A and J) was “knowingly, understandingly, and voluntarily made.” Further, it did not properly assume jurisdiction over another child, S. Thus, the manner in which it exercised jurisdiction violated respondent’s due process rights. The court vacated the trial court’s orders of adjudication—and its subsequent orders of termination—and remanded. It noted that the only questions the trial court posed to her “were if she could hear over the speaker phone, if anyone had forced her to enter her no-contest plea, and if anyone had promised her anything in exchange for the plea.” At no point did it ask her “if she understood the nature of the proceedings, the rights that had been read to her, or even the consequences of her no-contest plea. Further, the trial court’s limited consultation with respondent’s representatives was wholly inadequate.” From the initiation of the proceedings, it was aware that she “suffered from paranoid schizophrenia and this condition necessitated the appointment of her mother as her legal guardian.” To add an additional layer of protection, the trial court at an earlier hearing appointed a GAL to ensure her “welfare during the proceedings. At no time during the plea process, however, did the court make any inquiries into whether” her attorney, guardian, or GAL “had discussed with respondent her rights, the nature of the proceedings, or the consequences of a no-contest plea.” There was no indication that she was assisted by any of them. The trial court simply asked if they “were ‘comfortable’ with respondent entering a no-contest plea. On such a sparse record,” the court found that there was “simply no basis on which the trial court could have reasonably concluded that respondent understood her plea.” Thus, it plainly erred as it clearly failed to “comply with the mandates of MCR 3.971(C)(1).” This plain error affected her substantial rights. “Because (1) the plea proceedings did not comport with due process and the court rule and (2) no trial was held, respondent’s defective plea permitted the state, without due process, to interfere with her fundamental right to parent her children.” Although her defective plea did not apply to S, the trial court also failed to properly exercise jurisdiction over S, who was the subject of a separate petition. The trial court never ruled on jurisdiction as to S. Because it “never properly assumed jurisdiction over” S, all subsequent orders related to S were void.