Interpretation of a lease & personal guaranties; Whether summary disposition was premature; Counterclaim seeking a declaratory judgment; Waiver; Third-party complaint against a judge; Absolute judicial immunity; Serven v Health Quest Chiropractic, Inc; A chief judge’s authority & responsibility for directing, supervising, & administering the court’s business; MCR 8.110-8.112; The law of the case doctrine; Subject-matter jurisdiction; Authorization for probate judges to assist other courts & perform specific assignments; MCL 600.826(1); MCR 8.103; Disqualification of a judge; MCR 2.003; Sanctions for filing a frivolous motion; MCR 2.114; Downtown Development Authority (DDA)

Concluding that the lease at issue and defendants-Bridgewater and Gwendolyn Williams’s personal guaranties were unambiguous, the court held that they were liable for breach of the guaranties for not paying gross rent due and owing by defendant-Lotus. Partial summary disposition was not premature, and their counterclaim against plaintiffs-DDA and the City for declaratory judgment “lacked factual and legal support, and failed as a matter of law.” As to their third-party complaint against the chief Wayne Circuit judge, he had absolute judicial immunity. The court also upheld the denial of motions to disqualify him as well as the probate court judge assigned to review the denial of that motion. Finally, it upheld the imposition of sanctions for a frivolous motion. Under its lease with the DDA, Lotus had no right “to withhold any payment of the base rent or additional rent for any reason. No provision of the Lease permitted Lotus to pay base rent or additional rent into any escrow account. The Lease also unambiguously required Lotus to pay the base rent and additional rent without any right to setoffs, deductions, or recoupment. Lotus remained obligated to make its monthly payments of the base rent and additional rent regardless of any disputes or questions it had regarding the amount or the underlying costs the DDA incurred which served as the bases for the additional rent charges.” Likewise, under the terms of their respective guaranties, Bridgewater and Gwendolyn accepted the lease terms “and absolutely and unconditionally guaranteed payment of all base rent and additional rent owed by Lotus. They also specifically agreed that they would have no right to setoffs, deductions, deferments, or abatements of any kind. The record” did not indicate any amendment to the terms of the personal guaranties. Thus, pursuant to the lease and the personal guaranties, they “were contractually bound to pay all of the base rent and additional rent owed by Lotus with no right to any setoffs. The terms of the Lease to which they assented coupled with the terms of their personal guaranties required Gwendolyn and Bridgewater to pay the unpaid gross rent with no right to any setoffs or adjustments even if they disputed the amount or claimed the DDA breached the Lease.” Affirmed.

Sufficiency of the evidence; First-degree home invasion; Permission to enter; Consciousness of guilt

The court held that there was sufficient evidence defendant was guilty of first-degree home invasion where he lacked permission to enter his ex-girlfriend, C.C.’s, home. Also, the trial court properly admitted the consciousness of guilt evidence. He was convicted of first-degree home invasion and unlawful imprisonment. He claimed that C.C. “lacked credibility as a witness on the home-invasion charge after repeatedly downplaying her relationship with defendant in interviews with the police and giving contradictory testimony on whether she gave defendant a key to her home.” The court noted that “C.C. testified multiple times that defendant did not have permission to enter her home on” 11/29/17. This was sufficient to prove the first element of first-degree home invasion where he “did not otherwise have a legal right to enter her home without her permission. Even if C.C. had given defendant a key months earlier, there is no evidence that he had implicit or explicit permission to use it on [11/29/17], after C.C. broke up with him a couple of weeks earlier.” To the contrary, the text messages she sent to him “insinuating that she had previously given him a key showed that she wanted her key back, as they said, ‘I want my key’ and ‘Bring me my key.’” Thus, the mere fact that he “may have had a key on the day in question does not show that he had permission to enter her home on” 11/29/17. His claim challenging the veracity of her “testimony that he lacked permission to enter the home goes to the credibility of the witness and the weight of the evidence. The determination of witness credibility is the function of the jury and not of this Court.” Questioning C.C.’s credibility did not establish a basis for reversal. Affirmed.

Habeas corpus; Self-representation; Faretta v California; Explicit & unequivocal demand; Timeliness of a request; The state supreme court’s conclusion that the request was a delay tactic; Whether petitioner abandoned any intent to represent himself; Reliance on McKaskle v Wiggins

In an order, the court denied a rehearing en banc, allowing the prior decision and judgment (see e-Journal # 75672 in the 6/28/21 edition) to stand. The court there reversed the district court’s denial of petitioner-Cassano’s habeas petition, conditionally granting his petition unless Ohio retried him within six months. It held that he had properly invoked his constitutional right to self-representatton, and that his rights under Faretta were violated. Here, the original panel reviewed the petition for rehearing and concluded “that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.” Thus, the petition was denied.

Sentencing; Reduction for offenses involving “a single instance evidencing little or no deliberation”; USSG § 2A6.1(b)(6); “Relevant conduct”; § 1B1.3; FRE 404(b)(2)

[This appeal was from the WD-MI.] The court held that the district court did not err by considering defendant-Osborn’s past threats against government officials when refusing to apply a four-level sentence reduction for offenses involving a single instance evidencing little or no deliberation. Osborn is an Army veteran who suffers from PTSD. He left a threating voicemail for a member of Congress. He pled guilty to threatening to assault the congressman. The district court declined to apply the four-level sentence reduction after concluding that because Osborn had previously threatened other officials, the offense involved did not meet the criteria of “a single instance evidencing little or no deliberation” under § 2A6.1(b)(6). Osborn argued that the district court erred by considering his past conduct in denying the reduction. The court noted that the prior threats against two other members of Congress were not “relevant conduct.” Thus, the district court "could not have altered Osborn’s offense level because of these prior threats.” However, it did not apply a two-level enhancement on the basis “‘the offense involved more than two threats’ under § 2A6.1(b)(2)(A).” Rather, it made a factual finding that Osborn’s threat against the congressman in this case showed “more than ‘little or no deliberation.’” The court held that “[m]aking factual determinations is a well-entrenched responsibility of the district court. Even within the constraints of trial, the district court can consider prior acts when they may be probative of motive or intent.” The court also rejected Osborn’s argument that the district court clearly erred in its factual finding that his conduct evidenced “more than ‘little or no deliberation,’” where the record indicated “Osborn was aware that he had a pattern of calling government officials about differences in policy views and threatening them.” Affirmed.

Interpretation of a lease & personal guaranties; Whether summary disposition was premature; Counterclaim seeking a declaratory judgment; Waiver; Third-party complaint against a judge; Absolute judicial immunity; Serven v Health Quest Chiropractic, Inc; A chief judge’s authority & responsibility for directing, supervising, & administering the court’s business; MCR 8.110-8.112; The law of the case doctrine; Subject-matter jurisdiction; Authorization for probate judges to assist other courts & perform specific assignments; MCL 600.826(1); MCR 8.103; Disqualification of a judge; MCR 2.003; Sanctions for filing a frivolous motion; MCR 2.114; Downtown Development Authority (DDA)

Concluding that the lease at issue and defendants-Bridgewater and Gwendolyn Williams’s personal guaranties were unambiguous, the court held that they were liable for breach of the guaranties for not paying gross rent due and owing by defendant-Lotus. Partial summary disposition was not premature, and their counterclaim against plaintiffs-DDA and the City for declaratory judgment “lacked factual and legal support, and failed as a matter of law.” As to their third-party complaint against the chief Wayne Circuit judge, he had absolute judicial immunity. The court also upheld the denial of motions to disqualify him as well as the probate court judge assigned to review the denial of that motion. Finally, it upheld the imposition of sanctions for a frivolous motion. Under its lease with the DDA, Lotus had no right “to withhold any payment of the base rent or additional rent for any reason. No provision of the Lease permitted Lotus to pay base rent or additional rent into any escrow account. The Lease also unambiguously required Lotus to pay the base rent and additional rent without any right to setoffs, deductions, or recoupment. Lotus remained obligated to make its monthly payments of the base rent and additional rent regardless of any disputes or questions it had regarding the amount or the underlying costs the DDA incurred which served as the bases for the additional rent charges.” Likewise, under the terms of their respective guaranties, Bridgewater and Gwendolyn accepted the lease terms “and absolutely and unconditionally guaranteed payment of all base rent and additional rent owed by Lotus. They also specifically agreed that they would have no right to setoffs, deductions, deferments, or abatements of any kind. The record” did not indicate any amendment to the terms of the personal guaranties. Thus, pursuant to the lease and the personal guaranties, they “were contractually bound to pay all of the base rent and additional rent owed by Lotus with no right to any setoffs. The terms of the Lease to which they assented coupled with the terms of their personal guaranties required Gwendolyn and Bridgewater to pay the unpaid gross rent with no right to any setoffs or adjustments even if they disputed the amount or claimed the DDA breached the Lease.” Affirmed.

Subject-matter jurisdiction; “Associational standing”; Hunt v Washington State Apple Adver Comm’n; Applicability of Bell Atl Corp v Twombly’s “plausibility” test; Third-party standing; Craig v Boren; Mootness

[This appeal was from the WD-MI.] The court affirmed the district court’s dismissal for lack of standing where plaintiff (an association of physicians) failed to plausibly plead that any of its members had been injured by defendant-FDA’s actions. Although the FDA had not approved hydroxychloroquine to treat COVID-19, it made it available from the government's strategic national stockpile under certain circumstances (the Authorization). Plaintiff believed that the Authorization was not broad enough and that it should be made available for prophylaxis and early treatment. It alleged violations of the First and Fifth Amendments and of the Administrative Procedures Act. It claimed that it had associational standing on behalf of its members where they could not prescribe hydroxychloroquine for COVID-19 patients due to the restrictions. Also, it invoked third-party standing, alleging that its members’ COVID-19 patients could not obtain the drug for treatment. As an initial matter, the court declined to declare the case moot even though the FDA has rescinded the Authorization after finding that “additional data suggested that hydroxychloroquine was ineffective at treating COVID-19.” The court then discussed separation-of-powers concerns and case-and-controversy requirements, and noted that having a “‘disagreement’ with the FDA is not an injury, no matter how ‘sharp and acrimonious’ it may be.” It concluded that it had to apply the associational standing test in Hunt, which requires that an organization’s members must “otherwise have standing to sue in their own right.” It must do more than allege a possible injury—“[t]he organization must instead identify a member who has suffered (or is about to suffer) a concrete and particularized injury from the defendant’s conduct[,]” and that the relief requested will redress the injury. Extending Twombly’s plausibility test to the standing issue, the court held that plaintiff failed to plead either a direct or indirect harm to its members. It further concluded that plaintiff “cannot rely on third-party standing in this case because it has forfeited any argument that it has suffered its own Article III injury[,]" and that its “complaint failed to allege that any of its physician members had Article III standing. Without their own injuries, these members likewise could not rely on third-party standing to invoke the rights of their patients.”

Personal injury; Standard of care (SOC); Distinguishing Jenkins v Bentley; McCullough v Ward Trucking Co; Vanden Berg v Grand Rapids Gravel Co; Hopkins v Lake; Discovery; Personal representative (PR)

The court affirmed the trial court’s order granting defendant summary disposition in this personal injury case, and found that it was not premature. The case arose from plaintiff-PR’s claim for damages allegedly sustained when plaintiff’s decedent, Oscar Ousley, was struck by a tow truck owned by defendant and operated by one of its employees. Plaintiff presented no evidence of negligence. The only witness with any direct knowledge of the facts was M, “who testified that he checked the area where he was driving and saw no one, and he continually checked his mirrors to make sure he did not hit anyone as he was backing up the tow truck.” That Ousley was struck by the truck was not enough, in and of itself, to refute M’s testimony—it would be consistent with M’s “testimony that he did not know where Ousley came from and might have approached the tow truck in” M’s blind spot. Plaintiff’s expert, S, did not provide sufficient evidence to raise a material question of fact about whether M breached the SOC. The court also noted that S was not offered as a SOC “expert for tow truck drivers or other commercial drivers, he did not purport to know or otherwise opine on the applicable standard of care, and he admitted that he had no personal knowledge of the key facts and that most of his opinions were based on his assumptions about what had occurred.” Defendant correctly asserted that Jenkins, the authority upon which plaintiff relied, was distinguishable from this case. Similarly, in McCullough, “the record included evidence that the defendant driver failed to use his rearview mirrors before the accident at issue; here, the only evidence presented on that subject was that [M] did make continual use of his mirrors.” Vanden Berg was another case where, unlike in this case, “a defendant truck driver injured a plaintiff after failing to take any steps to determine whether he had a clear path before he began driving.” And Hopkins “held that the defendant had, and breached, a heightened duty to be cautious because of the presence of a young child, whom he struck with his truck. Neither Ousley nor his son was a child,” and thus Hopkins had no application here.

The plea-taking process; MCR 3.971(B) & (D)(1); Reasonable accommodations under the American with Disabilities Act (ADA) in court proceedings; Due process; Mathews v Eldridge; Reasonable accommodations in services; In re Hicks/Brown Minors; In re Sanborn; Finding that a respondent failed to benefit from services; Reasonableness of services during the COVID-19 pandemic; Children’s best interests; In re White; Guardian ad litem (GAL)

The court found no error in the plea-taking process as to respondent-mother, and noted that the ADA did not require accommodations for her during the trial court proceedings. It also found no plain error as to her due process claim, determining that she failed to show how the absence of a GAL prejudiced her or how appointing her one could have changed the outcome. Further, the DHHS made significant accommodations for her intellectual disability in services. As to respondent-father, the trial court did not clearly err in finding that he failed to benefit from services, and he was not denied due process because “of the temporary suspension of in-person services at the” start of the COVID-19 pandemic. Finally, the court held that terminating his parental rights was in the children’s best interests. It first concluded that the trial court did not plainly err in failing to sua sponte utilize additional procedural safeguards to ensure the mother’s “plea was knowing, understanding, and voluntary in light of her cognitive impairment.” The court noted that the trial court “altered its normal plea-taking process by taking a short recess before taking [her] plea and allowed [her] counsel, instead of counsel for the DHHS, to question [her] to establish the factual basis for the plea after [she] apparently became emotionally distraught before offering her testimony.” Thus, the record showed that it “took extra steps to ensure [her] plea was knowing, understanding, and voluntary. While the trial court failed to sua sponte take the extra precautions” she now asked for, the court held that “it did not plainly err by doing so.” As to accommodations for her in services, she did not show how those the DHHS made were not reasonably sufficient, or “identify how the services could or should have been better tailored in light of her intellectual disability.” She also did not establish “she would have fared better if other services had been offered.” As to the father, he failed to show that the DHHS did not provide him with adequate services, and the trial court did not clearly err in finding that it was in the children’s best interests to terminate his parental rights. Thus, the court affirmed the orders terminating both respondents’ parental rights.