Entry of a pocket judgment; Credibility assessments; First breach of a settlement agreement; Modification by conduct; Motion for relief from judgment; MCR 2.612(C)(1)(f); Heugel v Heugel; Whether the liquidated damages in the pocket judgment constituted an illegal penalty; MCR 2.612(C)(1)(e); Unconscionability; Clark v DaimlerChrysler Corp

Concluding that even if plaintiff breached the settlement agreement (SA), it was not substantial as defendant received the benefits of the SA, the court rejected her argument that the trial court erred in entering the pocket judgment because plaintiff was the first to breach. It further held that the SA, including the pocket judgment, did not satisfy the unconscionability test. Plaintiff was married to defendant’s ex-husband (nonparty G). The SA settled a prior case in which plaintiff asserted “civil stalking and intentional infliction of emotional distress claims against defendant.” On appeal, defendant first contended that “she sent plaintiff’s counsel a $3,000 check” that might have gotten “lost in the mail, and that plaintiff should bear the risk of mail being lost because plaintiff failed to establish the agreed account for electronic payments.” But the trial court determined that she in fact “did not mail or otherwise tender payments on a timely basis for several months.” The court concluded that its finding was not clearly erroneous. As to her assertion that she was entitled under the SA to “notice that she was in default before the seven-day grace period began to run[,]” the court noted that, having “made timely payments for 22 months, defendant was on notice that she did not make the payments for May, June, or July 2020.” Thus, even if she “had to know she was in default before the grace period began to run, the grace period ran long before plaintiff moved for entry of the pocket judgment.” She further argued that plaintiff committed the first substantial breach “by failing to set up an account into which defendant could make electronic payments.” However, the court found that even if this was a breach, it was not substantial. “The main benefits defendant expected to receive under the [SA] were dismissal of plaintiff’s case against her and [G’s] promise to waive certain fees and not oppose cancelation of sanctions against defendant in a separate case.” Even in the absence of the electronic option, she could “make her payments by check to avoid default while still not contacting plaintiff.” The court also held that the trial court did not err in denying her motion for relief from judgment under MCR 2.612(C)(1)(f). Affirmed.

Other acts evidence; MCL 768.27a; MRE 404(b); MRE 403; People v Watkins; Qualifying a witness as an expert; MRE 702; Whether the expert vouched for the victim’s credibility; People v Thorpe; Sentencing; Cruel or unusual punishment; Mandatory minimum sentence under MCL 750.520b(2)(b); People v Benton

The court held that while the trial court abused its discretion in admitting witness-ED’s testimony under MCL 768.27a, it was properly admitted under MRE 404(b), and witness-CL’s testimony was properly admitted under the statute. The court rejected defendant’s claims that the trial court erred in qualifying witness-C as an expert in child memory and that C vouched for the victim’s credibility. Further, the prosecution’s closing arguments did not cross the line set by Thorpe. Finally, Benton precluded his claim that MCL 750.520b(2)(b)’s mandatory 25-year minimum sentence is cruel and/or unusual punishment. He was convicted of CSC I, CSC II, assault with intent to commit CSC II, and accosting a minor for immoral purposes, and sentenced as a third-offense habitual offender. As to the other acts evidence, the offer of proof did not show that ED “was under 16 years old when defendant engaged in misconduct with her. And because MCL 750.145a requires the victim to be under 16 years old, defendant’s misconduct in this regard could not have been the predicate ‘listed offense’ under MCL 768.27a(2)(a).” But the trial court also ruled her testimony admissible under MRE 404(b), and the court agreed. “ED’s testimony helped establish that defendant had a common plan, scheme, or design of isolating his family-member victims on motorcycle rides to rural areas and making inappropriate sexual advances. The distinctive shared characteristics of the charged and uncharged acts rise to the level of ‘striking similarity.’” Further, her testimony was relevant as “it elevated the victim’s credibility and made the victim’s testimony more probable by corroborating multiple details.” It also was not unduly prejudicial under MRE 403 as it “did not describe any particularly aggressive actions by defendant, and he” failed to identify any other prejudicial aspects of it. The admission of CL’s testimony was proper under MCL 768.27a given that “she was 12 years old at the time of the incident, and he acted inappropriately by kissing her on the lips, grabbing her, and touching her legs, conduct that would surely be considered ‘immoral actions’ under MCL 750.145a. And accosting a minor for immoral purposes is undisputedly a ‘listed offense’ under MCL 768.27a(2)(a).” CL’s testimony was also relevant and not unduly prejudicial under MRE 403. Affirmed.

Brady violation claim; People v Chenault; Admission of defendant’s statement to medical personnel; MRE 803(4); Waiver of claim as to a deadlocked jury; People v Kowalski; Prosecutorial misconduct; Whether rebuttal arguments shifted the burden of proof; Sentencing; Upward departure from the mandatory minimum; Proportionality & reasonableness

The court concluded that defendant failed to show a plain error affecting his substantial rights as to his Brady claim, and that the trial court did not err in excluding defendant’s statement to dental personnel because MRE 803(4) did not apply. He waived his claim as to a deadlocked jury by expressly agreeing to the trial court’s handling of the matter, and the court rejected his assertion that the prosecution shifted the burden of proof in its rebuttal arguments. Finally, it upheld the trial court’s upward departure from the 25-year mandatory minimum in sentencing him to 40 to 70 years for his CSC I conviction. He was also convicted of CSC II. The victim was the daughter (EP) of defendant’s former live-in girlfriend, DR. As to his Brady claim, the court noted that he could not complain that the evidence in question “was suppressed because he had actual knowledge of” it at trial. To the extent he complained of a delayed disclosure rather than a total deprivation of the evidence, he did not show it “was favorable or material. DR’s testimony that she saw defendant in her daughters’ bedroom, supposedly looking for something, and that” one of her other daughters (ZS) “woke up crying and complaining that defendant had touched her, was not favorable.” While he emphasized that DR denied in police statements that she saw “any sexual abuse, her challenged trial testimony is wholly consistent with her statements that she did not actually witness any sexual abuse. Defendant’s claim that these belatedly revealed incidents could have somehow been used to support a defense theory that ZS was merely dreaming that defendant had touched her, and could have undermined the credibility of EP’s allegations,” was at best speculative, particularly given that each of the girls “testified about their own interactions with” him. The court agreed with the trial court that defendant’s statement made during a dental appointment “was not reasonably necessary for diagnosis or treatment of defendant’s dental issue, and thus not subject to” MRE 803(4). As to the prosecution’s rebuttal arguments, the court found that the prosecutor simply responded “in the same manner—using defense counsel’s terminology—to support her responsive argument that defendant could have presented his own medical records as exculpatory evidence.” Affirmed.

Sentencing; Accuracy of the PSIR; Scoring of OV 19

The court held that because defendant did not meet his burden to establish that his PSIR was inaccurate, he failed to effectively challenge the information in his PSIR. Also, the trial court properly assessed 10 points for OV 19. He pled guilty to possession of meth. He was sentenced to 3 to 10 years. Defendant argued that his PSIR contained inaccurate information because he “did not provide a false version of events and did not misrepresent the source of” the meth to police or lie about which drugs he used. He asserted that “he was confused when he spoke to the police because they woke him up in the middle of a sleep terror, and that he never provided a false version of events.” However, he did not provide “any evidence that he suffers from sleep terrors or was confused when he spoke to the police officers,” and thus he could not “establish that the PSIR inaccurately stated that he provided a false version of events on that basis.” Further, he conceded “in his appellate brief that it was not clear whether he had experienced a sleep terror, and he further indicates that his state of lucidity when he spoke to the police was unknown.” Defendant also challenged “statements in his PSIR indicating that he lied to the police regarding which drugs he used and that he misrepresented the source of the” meth. Because there was contrary information in the PSIR, based upon police reports, the court could not find error. The police report indicated that he told the officers he did not know where the bag of meth “came from and that he thought someone was in his room because things were out of place.” Additionally, he testified at his plea hearing that he was given the bag of meth, “took it to his room, and placed it in the drawer, supporting a conclusion that he indeed lied to the police officers.” The 10-point score for OV 19 was proper because the “trial court had a basis for its finding that defendant interfered with the administration of justice” by interfering with the police investigation by giving false information about his drug use and the source of the meth. Affirmed.

Ineffective assistance of counsel; Failure to lay the proper foundation for impeachment with a prior inconsistent statement; Extrinsic evidence; MRE 613(b); Review limited to mistakes apparent from the record; Exclusion of impeachment evidence; Impeachment with a prior misdemeanor conviction; MRE 609(a) & (c); A simple larceny conviction; People v Parcha; Reputation for untruthfulness; MRE 404(a)(4); MRE 608(a); Harmless error; Cumulative error

The court concluded that defendant did not provide the factual basis for his claim that defense counsel performed deficiently as to proposed impeachment evidence, and that while the trial court erred in excluding certain testimony, the error was harmless. Further, the trial court did not err in excluding the victim’s misdemeanor larceny conviction, and defendant’s cumulative error claim failed as there was only one, harmless error. He was convicted of assaulting his former stepdaughter by strangulation. He asserted that defense counsel called the victim’s sister (CA, who was also defendant’s daughter), to elicit testimony about a statement the victim made “‘that directly contradicted [the victim’s] testimony that [defendant] was the person who strangled her.’ If” his assertion about the substance of the testimony was “true and trial counsel was responsible for his failure to elicit the testimony from CA, trial counsel performed deficiently.” However, the court noted that the record did not support his assertion on appeal. The latter part of defense “counsel’s offer of proof—that CA’s description of the victim’s demonstration would ‘put the lie’ to the victim’s testimony that defendant strangled her—” supported defendant’s claim. But defense “counsel’s earlier explanation—that CA would testify about the victim’s demonstration and that she ‘at some point’ learned someone else” strangled the victim—was insufficiently detailed. The offer of proof was unclear “whether CA learned who strangled the victim from the victim or from some other source, and defendant” did not clarify this on appeal. This fact was crucial to his argument “because if CA did not learn this information from the victim, CA was not providing extrinsic evidence of a prior inconsistent statement of the victim,” his basis for admitting the evidence. Absent this information, there was “no way to know what type of evidence CA would have provided, or even if it would have been admissible.” While the trial court erred in excluding CA’s testimony as to “the victim’s character for untruthfulness” under MRE 608(a), it was not outcome determinative. Defendant “partially corroborated the victim’s testimony” and her multiple injuries, including some “consistent with strangulation, were well documented by” photos and testimony by examining nurses and a responding officer. Affirmed.

Specific performance of a plea agreement; Whether the plea agreement required defendant to complete drug treatment court & probation

The court held that the trial court’s determination that “defendant’s plea agreement required her to complete drug treatment court and probation” was not supported by the record, and specific performance of her plea agreement was the appropriate remedy. She was “entitled to withdraw her plea, and the prosecution must uphold its end of the bargain and” dismiss the case. Thus, it vacated her sentences, and remanded the case to allow her to withdraw her pleas. If she chooses to withdraw her pleas, the prosecution was “ordered to abide by the terms of the plea agreement placed on the record.” The record only supported that “defendant and the prosecution agreed—and the trial court accepted—that defendant would plead guilty to the three charges and enter drug treatment court, and if she successfully completed drug treatment court, she would be allowed to withdraw her plea and the prosecution would dismiss the charges.” After she upheld her end of the “agreement by pleading guilty and successfully completing drug treatment court, she was not allowed to withdraw her pleas and the prosecution did not ‘dismiss her case,’ as it agreed it would.” The court concluded that because “the prosecution did not uphold its end of the plea agreement, defendant was entitled to a remedy—either withdrawal of her plea or specific performance of the plea agreement.” Giving weight to her “preference for specific performance of the plea agreement—and particularly in light of the unique circumstances of this case—” the court found that specific performance of the agreement was appropriate. At “the point that the prosecution refused to uphold the plea agreement, defendant had done more than simply plead guilty—she had also successfully completed drug treatment court.” Thus, this was not a case where she could “take back the consideration” she had furnished. Further, to now say that she was “only entitled to withdraw her plea as a remedy for the prosecution’s refusal to abide by the plea agreement when the prosecution already agreed to give defendant this concession (and more) in exchange for defendant’s plea and her completion of drug treatment court runs counter to principles of fundamental fairness.” In effect, she “would have fully upheld her end of the agreed-upon bargain, but would only receive part of what she was promised.”

Divorce; Custody; Change of circumstances (COC); Established custodial environment (ECE)

Holding that the trial court failed to make necessary findings before resolving defendant-father’s (Howard) change-of-custody motion, the court vacated the trial court’s order and remanded. Howard agreed that plaintiff-mother (Christine) would have full custody of their daughter, F, while he pursued mental health treatment. “Christine denied Howard court-ordered supervised parenting time and subsequently disappeared with the child. Howard filed a motion to change custody, to compel Christine to return” F to Michigan, and to issue a bench warrant for her arrest. “Michigan law presumes that having a relationship with both parents is in a child’s best interests,” and she prevented F from having any relationship with Howard. The record supported that Christine had “engaged in parental kidnapping.” This was a COC, but the trial court did not consider this possibility. This was error. When the movant establishes a COC, the trial court “is required to take the next step: to determine whether the movant’s requested change of custody would alter the child’s” ECE. Clearly, F had an ECE with Christine alone. She had sole physical custody of F and F had not even seen Howard since 2/19. Any alternate arrangement would amount to a change in F’s ECE. “This means that Howard will be required to prove by clear and convincing evidence that any change in custody would be in [F’s] best interests. A prompt hearing on the question of best interests is essential.” The trial court skipped resolving whether a COC occurred and whether Howard’s suggested change in custody would alter F’s ECE, “jumping right to expressing that it could not determine whether a” custody change would be in F’s best interests absent Christine and the child. It “must start over and resolve all necessary disputes before rendering its judgment.” The court directed the trial court on remand “to consider that Christine’s flight with the child likely disrupted [F’s] living and educational environments and hindered her ability to establish a meaningful parent-child relationship with her father, leading to instability in her life that could negatively affect her well-being.” And Christine’s absence from the proceedings precluded her from introducing any evidence as to F’s best interests.

Motion to change legal custody; Decision not to conduct an evidentiary hearing; Proper-cause finding; Motion for make-up parenting time

The court held that the evidence did not clearly preponderate against the trial court’s determination that a proper cause did not warrant changing the child’s legal custody. Also, the trial court did not err by failing to award plaintiff-mother her requested make-up parenting time. She argued that “the trial court’s proper-cause finding was against the great weight of the evidence because the parties could not communicate about major decisions affecting the child.” But the record did not support her argument that defendant-father failed to communicate with her about the child’s school. “The documentary evidence established that the parties had a long and involved discussion about the child’s school.” Plaintiff asserted that the father failed to respond about registering the child for school, but the record reflected that he “actively engaged in conversation about which school was appropriate and whether the school had after-school care available. That plaintiff refused to accept his concerns as legitimate” did not mean that he failed to communicate. Further, it was clear that she shared “some responsibility for the parties’ antagonistic communications, resulting in those communications proving more drawn-out than necessary. Regardless, defendant ultimately did not object to the child’s school and stated during the proceedings that he believed the school was ‘a great fit’ for the child.” There was no record evidence that their “communication issues about the school—attributable to both parties—affected the child’s well-being.” Similarly, there was no evidence that their “communication difficulties about the child’s extracurricular activities, which occurred before the trial court registered the parties’ custody agreement, affected the child’s well-being.” The record indicated that they had “not agreed about whether the child should have therapy.” But again, there was “no evidence that their disagreement harmed the child’s well-being. Plaintiff wanted to take the child to a therapist, but defendant opined that the child was healthy and asked plaintiff why she wanted to take him to a therapist.” There was no evidence as to “whether this dispute affected the child’s well-being, and, again, plaintiff’s own refusal to discuss the matter in detail with defendant shows that any communications breakdown was not solely defendant’s fault.” Affirmed.

Entry of a pocket judgment; Credibility assessments; First breach of a settlement agreement; Modification by conduct; Motion for relief from judgment; MCR 2.612(C)(1)(f); Heugel v Heugel; Whether the liquidated damages in the pocket judgment constituted an illegal penalty; MCR 2.612(C)(1)(e); Unconscionability; Clark v DaimlerChrysler Corp

Concluding that even if plaintiff breached the settlement agreement (SA), it was not substantial as defendant received the benefits of the SA, the court rejected her argument that the trial court erred in entering the pocket judgment because plaintiff was the first to breach. It further held that the SA, including the pocket judgment, did not satisfy the unconscionability test. Plaintiff was married to defendant’s ex-husband (nonparty G). The SA settled a prior case in which plaintiff asserted “civil stalking and intentional infliction of emotional distress claims against defendant.” On appeal, defendant first contended that “she sent plaintiff’s counsel a $3,000 check” that might have gotten “lost in the mail, and that plaintiff should bear the risk of mail being lost because plaintiff failed to establish the agreed account for electronic payments.” But the trial court determined that she in fact “did not mail or otherwise tender payments on a timely basis for several months.” The court concluded that its finding was not clearly erroneous. As to her assertion that she was entitled under the SA to “notice that she was in default before the seven-day grace period began to run[,]” the court noted that, having “made timely payments for 22 months, defendant was on notice that she did not make the payments for May, June, or July 2020.” Thus, even if she “had to know she was in default before the grace period began to run, the grace period ran long before plaintiff moved for entry of the pocket judgment.” She further argued that plaintiff committed the first substantial breach “by failing to set up an account into which defendant could make electronic payments.” However, the court found that even if this was a breach, it was not substantial. “The main benefits defendant expected to receive under the [SA] were dismissal of plaintiff’s case against her and [G’s] promise to waive certain fees and not oppose cancelation of sanctions against defendant in a separate case.” Even in the absence of the electronic option, she could “make her payments by check to avoid default while still not contacting plaintiff.” The court also held that the trial court did not err in denying her motion for relief from judgment under MCR 2.612(C)(1)(f). Affirmed.

Subject-matter jurisdiction; Failure to properly file a personal injury action under the Federal Tort Claims Act (FTCA) (28 USC §§ 2671–80); The “sum certain” requirement; § 2675(b); Jurisdiction over FTCA claims; § 1346(b)(1) ; Whether a requirement is jurisdictional or a “claim-processing rule”; United States Postal Service (USPS)

The court held that although plaintiffs failed to comply with the mandatory requirement to list a sum certain on a form for personal-injury damages under the FTCA, their case should not have been dismissed for lack of jurisdiction where the sum certain requirement is a claims-processing rule and not jurisdictional. Plaintiffs-Paul Copen and his daughter Kelly were injured when their vehicle was struck by a USPS driver. The issue was whether they properly presented their damages claim to the USPS under the FTCA. While Kelly had filed a Standard Form 95 with the USPS stating they were both injured, plaintiffs never specified a dollar amount for personal injury damages. The district court ruled that it lacked subject-matter jurisdiction where Kelly did not list a sum certain and Paul did not file his own form. The court first discussed the distinction between claims-processing and jurisdictional rules, and noted that the Sixth Circuit “has long referred to” the FTCA’s § 2675 “procedures as jurisdictional prerequisites to filing suit.” However, noting the Supreme Court’s comments on “drive-by jurisdictional rulings,” the court considered whether Congress “clearly showed its intention to designate § 2675 a jurisdictional rule[,]” and concluded that it has not. The court noted that “the damages amount need not be provided on the initial claim if it is furnished to the agency within the limitations period[,]” but the record did not show that plaintiffs ever provided information from which a dollar figure could be determined. As to Paul, the court concluded that filing a claim on a specific form is not necessary. The form filed by Kelly contained “exactly the same information” for Paul and Kelly. They were “both listed as being involved in the accident and Paul” was listed as the driver. It indicated “both were injured in the accident, and that Paul was taken to the hospital. Given that the animating principle of the administrative claim procedures is to ensure the agency has adequate notice of the claim, Paul’s presence on the form and status as a party whose injury and treatment was reported to the Government” met the notice requirement. But neither plaintiff complied with § 2675’s mandatory requirements due to the absence of a sum certain for personal injury damages. The court remanded the case. “Because the district court has jurisdiction, on remand it should consider any arguments the parties may have under” Rule 12(b)(6) rather than 12(b)(1).