Malicious prosecution claim against an attorney & law firms; Friedman v. Dozorc; The defense of privilege; Bedford v. Witte; Lawrence v. Burdi; Withdrawing as counsel; MRPC 1.16(b); MRPC 1.16(b)(6); MRPC 1.16(a)(1); Legal malpractice; Bowden v. Gannaway; Confidential attorney-client communications; Nash v. Grand Haven; Augustine v. Allstate Ins. Co.; Principle that when an attorney represents a corporation, the corporation (not its shareholders) is the client; Alpha Capital Mgmt., Inc. v. Rentenbach; Effect of representation in other matters; Goldberg v. 10034 Huntington Woods Inv., LLC (Unpub.); Effect of an unpublished opinion; Smith Living Trust v. Erickson Ret. Cmtys.; Sanctions; Kitchen v. Kitchen; MCR 2.114(D) & 2.625(A)(2); MCL 600.2591(1); LaRose Mkt., Inc. v. Sylvan Ctr., Inc.; Meisner Law Group, PC v. Weston Downs Condo. Ass’n

The court held that “the content of defendants’ motion to withdraw was protected by the judicial-proceedings privilege and” thus, could not serve as the basis for plaintiff-Kattula’s malicious prosecution claim. Also, because Count III did not allege malpractice in defendants’ representation of Kattula, it failed to state a claim upon which relief could be granted. Finally, the trial court did not clearly err by finding that the claims in Kattula’s second amended complaint were not frivolous and did not warrant an award of sanctions. The case arose from a dispute that occurred between defendant-Hertzberg and Kattula while defendants were representing one of Kattula’s companies—plaintiff-TAJ—in TAJ’s Chapter 11 bankruptcy case. Kattula alleged “that the trial court erred by dismissing his malicious prosecution claim on the basis of the judicial-proceedings privilege because the allegations included in defendants’ motion to withdraw were not relevant to the proceedings and, therefore, not privileged.” Although the court held that summary disposition was inappropriate under MCR 2.116(C)(8), the trial court’s error did not require reversal because summary disposition was warranted under MCR 2.116(C)(10). In support of their summary disposition motion, “defendants produced their motion to withdraw as TAJ’s counsel in the bankruptcy proceeding.” The allegations they “made against Kattula would have fallen squarely within the provisions of MRPC 1.16(b) had Kattula been” their client in the bankruptcy. Relying on this distinction, Kattula argued that the allegations in their “motion were not material, relevant, or pertinent to defendants’ request to withdraw because Kattula had nothing to do with the bankruptcy case.” However, he “acknowledged in his second amended complaint that he ‘acted as the agent for TAJ with regard to Hertzberg’s legal representation of and legal interaction with TAJ[.]’” Thus, in light of his “integral role in defendants’ representation of TAJ, defendants’ allegations satisfy MRPC 1.16(b)(6) . . . even if they do not strictly satisfy subdivisions (1) through (5). Moreover, the suddenly adversarial nature of the relationship between Kattula and Hertzberg amounted to an actual conflict of interest that precluded defendants from continuing to represent Kattula or his entities.” Kattula also argued “that the statements were not privileged because they went beyond the pro forma allegation of a breakdown in the professional relationship that is generally asserted in a motion to withdraw.” But the court held that the “statements clearly concerned the matter before the bankruptcy court because they described the reasons for defendants’ claimed inability to continue representing TAJ.” Affirmed.

Jury instruction on a lesser included offense; People v. Cornell; AWIGBH; People v. Brown; Assault & battery; People v. Starks; Cognate offenses; People v. Hendricks; Hearsay; MRE 801(c); Waiver; People v. Kowalski; Admission of a witness’s prior consistent statement; MRE 801(d)(1)(B); People v. McCray; Excited utterances; MRE 803(2); People v. Smith; People v. McLaughlin; Present sense impression; MRE 803(1); People v. Hendrickson; Admissibility under MCL 768.27c(1); Harmless error; People v. Whittaker; A timely objection; In re Weiss; Whether an officer improperly testified about a witness’s credibility; People v. Dobek; The officer’s testimony about defendant’s veracity; People v. Heft; Lay opinion testimony; People v. Oliver; Curative effect of a jury instruction; People v. Unger; Ineffective assistance of counsel; Failure to raise a meritless objection; People v. Ericksen

Holding that assault and battery is a cognate lesser offense of AWIGBH, not a necessarily included one, the court concluded that the trial court did not err in denying defendant’s request for an assault and battery jury instruction. Further, he was not entitled to relief on the basis of his claims of evidentiary error, and his counsel was not ineffective for failing to raise a meritless objection. Thus, the court affirmed his AWIGBH conviction. It noted that while assault and battery requires an assault and a battery, “AWIGBH does not require a battery; rather it only requires an assault and an intent to do great bodily harm. While many instances of AWIGBH may also include a battery, a battery is not actually an element of AWIGBH. As such, any offense containing a battery, such as assault and battery, is not a necessarily included lesser offense of AWIGBH.” And a trial court does not have to instruct on cognate offenses. As to his evidentiary issues, while victim-L’s statements to her mother were erroneously admitted as prior consistent statements, the error was harmless because they qualified as excited utterances. “Learning that one needs to be airlifted for emergency treatment to avoid dying certainly qualifies as ‘a startling event or condition,’ and a resulting spontaneous statement is thus made ‘while the declarant was under the stress of excitement caused by the event or condition.’” L’s statement to an officer when she was being loaded into a helicopter to go to another hospital that defendant had twice punched her in the ribs also qualified as an excited utterance. But her handwritten statement to police made several days later, after recovering from surgery, did not qualify as an excited utterance or a present sense impression, and was inadmissible under MCL 768.27c(1). However, the court concluded that its admission was harmless in light of the evidence the jury had already received of L’s statements that defendant caused her injuries. Finally, her sister’s challenged testimony was admissible under MRE 803(3) “because it was not offered to prove that defendant was angry when [L] returned home, but” to show L’s fear of him “and her apprehension about returning home late.”

Sufficiency of the evidence; First-degree arson; MCL 750.72; People v. Lindsey; “Malicious”; People v. Harris; “Willful”; People v. Fennell; Consciousness of guilt; People v. Unger

The court held that there was sufficient evidence for a rational juror to find beyond a reasonable doubt that defendant committed first-degree arson. His conviction arose out of a fire he started in an abandoned apartment unit. The trial court sentenced him to 42 months to 20 years. On appeal, the court rejected his argument that the prosecution failed to present sufficient evidence to support the intent element of his conviction, noting the prosecution “did establish the intent element of first-degree arson because sufficient evidence was submitted to show the fire was the result of defendant’s ‘willful’ or ‘malicious’ actions.” And his “rapid exit from the building at the start of the fire, without notifying anyone of the situation, along with his untruthful statements to police, constitute behaviors that permit the imputation of consciousness of guilt.” Further, given his “short interval of time in the unit between entry and the initiation of the fire, a reasonable juror could infer defendant was engaged in setting the fire rather than smoking crack.” In sum, defendant was the only individual present in the unit “when the fire began and the prosecution offered evidence establishing that the fire was intentionally started in three separate locations with the use of an accelerant.” As such, “there was circumstantial evidence for a rational juror to consider establishing that defendant set the fire either willfully or maliciously.” Affirmed.

Ineffective assistance of counsel; People v. Vaughn; Matters of trial strategy; People v. Rockey; Factual predicate; People v. Cooper; Failure to call an expert witness; People v. Payne; People v. Russell; A substantial defense; People v. Putman; Failure to seek the victims’ counseling records; People v. Stanaway; People v. Carrier; MCR 6.201(C); People v. Davis-Christian; Failure to inform the jury defendant was facing a 25-year mandatory minimum sentence; People v. Holliday; Failure to advance a novel legal argument; People v. Reed; Jury instructions; Waiver; People v. Kowalski

The court rejected defendant’s claims that his trial counsel was ineffective for failing to (1) call an expert witness, (2) seek the victims’ counseling records, and (3) inform the jury that he faced a minimum 25-year sentence if convicted. He also waived his jury instruction claim. Thus, it affirmed his CSC I and II convictions. As to his claim trial counsel was ineffective for not consulting with and calling an expert to question the reliability of the victims’ forensic interviews, he failed to show deficient performance. The court concluded that trial “counsel employed an effective trial strategy where he was able to attack the reliability of the Care House interviews, while commensurately precluding the prosecution from calling the Care House interviewer to rebut defense counsel’s argument.” Further, nothing in the record suggested that the decision “to not call an expert witness was not sound trial strategy, or that an expert witness would have been more successful at introducing to the jury questions regarding the reliability of allegations of penetration.” As to the records, defendant did not “identify any specific articulable fact suggesting a good faith belief that the counseling records were necessary to his defense.” He failed to allege what information “in the records would have been helpful to his defense.” The court also noted that one of the victims stated she had not discussed the sexual assault allegations “during therapy because she ‘wasn’t ready.’” As to the failure to inform the jury of the mandatory minimum sentence defendant faced, the court noted that under Holliday, a jury should not ordinarily be told of a defendant’s possible punishment if convicted. Defendant contended “there should be an exception to this general rule because of” the victims’ bias to testify that penetration took place to ensure he “received a higher sentence. However, ‘defense counsel’s performance cannot be deemed deficient for failing to advance a novel legal argument.’” In addition, he did not offer any evidence that the victims were biased or that they knew that penetration allegations could increase his sentence. The court further concluded that none of the alleged errors affected the trial’s outcome.

Ineffective assistance of counsel; Failure to move for the suppression of defendant’s confession; People v. Lane; People v. Shaw; People v. Ginther; Miranda v. Arizona; People v. Walker

Holding that defendant-Wingard was not denied the effective assistance of counsel, the court affirmed the trial court’s order denying his motion for a new trial. He was convicted of second-degree murder. He argued that his trial counsel (K) was ineffective for failing to move to suppress his 2013 confession to Sergeant F. He contended that he “received a promise of no jail time in exchange for the incriminating statements he made to authorities.” He asserted that during the polygraph process, Sergeant G “told him that the police had a lot of evidence against him, and that, if they could come up with a logical explanation for the killing, they could reduce defendant’s chance of being sentenced to life in prison to sentences involving little to no jail time.” But defendant failed to establish that K actually knew about G’s alleged promise of leniency. At the Ginther hearing, K replied no when asked: “And was there anything in your discussions, either in the letters or your physical discussions with the defendant, that would indicate that his statements to the police were involuntary such that they would violate Miranda?” The trial court explicitly found that K’s testimony was credible, and the court could not hold “that this was clearly erroneous, as we must give regard ‘to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.’” Thus, defendant could not prove that K’s “failure to act on the alleged promise constituted ineffective assistance.” Second, he failed to establish that a motion to suppress was likely to succeed. He merely asserted: “Defense counsel’s performance fell below an objective standard of reasonableness because if Mr. Wingard’s claim his confession was only made in exchange for a promise of no jail time, the involuntary nature of this confession would have supported a request to suppress it under Walker.” He did not offer any case law establishing “that a confession made in exchange for a promise of no jail time makes a confession involuntary.” Further, he did not testify that G made a promise of no jail time in exchange for a confession. “Rather, defendant testified that ‘[h]e said if we could come up with a logical explanation of what happened that night, I could reduce my chances of prison, from little or no jail time, as opposed to the rest of my life in prison.’ This was not a promise of no jail time at all in exchange for a confession.” Further, the confession “admitted at trial was made to [F], not [G], although defendant originally indicated that [G] manipulated his eventual confession.” There was no allegation that F made any promise of leniency.

Habeas corpus; 28 USC § 2254; Antiterrorism & Effective Death Penalty Act; Standard of review; Brecht v. Abrahamson; Davis v. Ayala; Chapman v. California; Ruelas v. Wolfenbarger; Hollman v. Sprader (Unpub. 6th Cir.); Reiner v. Woods; Sifuentes v. Brazelton (9th Cir.); Shackling; Deck v. Missouri; Holbrook v. Flynn; Coffin v. United States; Illinois v. Allen; Whether petitioner’s shackling had a substantial & injurious effect or influence on the jury’s verdict; McCarley v. Kelly; O’Neal v. Balcarcel; Robinson v. Gundy (Unpub. 6th Cir.); Lakin v. Stine; Ruimveld v. Birkett; Hammonds v. Commissioner, AL Dep’t of Corr. (11th Cir.); Malone v. Carpenter (10th Cir.); Evidence of guilt; Distinction between first- & second-degree murder under Michigan law; People v. Morrin (MI App.); MI Crim. JI 16.6; People v. Hoffmeister (MI); People v. Plummer (MI App.); People v. Tilley (MI); People v. Johnson (MI); People v. Furman (MI App.); Juror testimony; Rhoden v. Rowland (9th Cir.)

[This appeal was from the WD-MI.] In an order, the court denied rehearing en banc, holding that the issues raised in petitioner-Davenport’s original appeal of the denial of his petition for habeas relief were fully considered (see e-Journal # 73373 in the 7/2/20 edition) and did not require en banc review.

Sentencing; “Serious bodily injury” enhancement; USSG § 2A2.2(b)(3)(B); § 1B1.1; § 2A2.2 cmt. n.1; United States v. Havis; “Or”; Encino Motorcars, LLC v. Navarro; United States v. Clay (Unpub. 6th Cir.); United States v. Corbin (9th Cir.); United States v. Le (5th Cir.)

The court affirmed the district court’s application of a five-level enhancement in sentencing defendant-Flores on his conviction for assault with a dangerous weapon for stabbing of a fellow inmate where there was sufficient evidence that the victim suffered “extreme physical pain” and required “medical intervention.” Applying the § 2A2.2(b)(3)(B) enhancement on the basis the victim sustained “serious bodily injury,” the district court sentenced him to 110 months. The term “serious bodily injury” is defined in § 1B1.1 cmt. n.1 as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation[.]” The court held that the enhancement applies if a victim suffers any one of these ailments. It agreed with the district court that a victim who is “repeatedly stabbed and suffers deep stab wounds would typically experience a large amount of pain.” Further, the victim here was screaming that he was in pain and was given narcotics for pain management. The victim also required medical intervention, including “numerous sutures to close his stab wounds and treat his extensive blood loss[.]” Flores challenged “the district court’s decision to discount the victim’s testimony” in Flores’s favor. The government suggested that the victim feared retaliation. In any event, the court held that “in light of a mountain of contradictory evidence, the district court did not err in giving that testimony little weight, and in ultimately applying the enhancement.”

Child support; Calculating child support under the Michigan Child Support Formula (MCSF); MCL 552.519(3)(a)(vi); Borowsky v. Borowsky; Requirement that the Friend of the Court (FOC) use the MCSF formula when calculating support; Peterson v. Peterson; Determining income; 2017 MCSF 2.01(C)(1) & (G)(1)(b); Imputing income; 2017 MCSF 2.01(G)(1)(a), (G)(2), & (4)(c); Ghidotti v. Barber; Deviation from the formula; MCL 552.605(2); 2017 MCSF 1.04(B)(1)

The court held that the trial court erred by adopting the FOC’s recommendation increasing defendant-father’s child support. Plaintiff-mother moved to modify child support based on a change in the parties’ parenting time schedule. The trial court referred the matter to the FOC, which recommended an increase. The trial court adopted the recommendation. On appeal, the court agreed with defendant that the trial court erred by imputing potential overtime earnings to him. “In adopting the FOC’s calculation based on an annual income that included overtime pay, the trial court imputed potential overtime pay to defendant that he had not earned.” As such, it “committed legal error by misapplying the MCSF: because defendant was undisputedly still working full-time for his employer but had simply chosen to cease working overtime, the trial court was prohibited from imputing potential income to defendant on the basis of overtime that he had voluntarily declined.” Further, even if the trial court’s opinion and order “could be construed as a deviation from the MCSF, as opposed to imputing income,” it still erred because it failed to make all of the necessary findings. Thus, to the extent its “child support determination could be considered a deviation from the MCSF, the trial court erred.” Vacated and remanded.

Writ of mandamus; Barrow v. City of Detroit Election Comm’n; Application to open a medical marijuana caregiver center in a city; A clear legal right; Rental Props. Owners Ass’n of Kent Cnty. v. Kent Cnty. Treasurer; Clear legal duty; Carter v. Ann Arbor City Atty.; Injunctive relief as an equitable remedy rather than an independent cause of action; Terlecki v. Stewart

The court held that plaintiff did not establish entitlement to mandamus relief requiring the municipal defendants to review and grant her application to open a medical marijuana caregiver center (MMCC), and that she also was not entitled to relief in the form of a preliminary injunction. Thus, it affirmed the trial court’s order denying her requests. The court concluded that under the plain language of the relevant ordinances, “the 2018 ordinances superseded those in effect at the time plaintiff made her original application.” Under the terms of § 61-3-354(a), she “had the right to convert her MMCC application into an application to open a” medical marijuana provisioning center facility “if she submitted an amended application within 45 days of the ordinance’s effective date.” Based on the record evidence, the trial court correctly determined that she failed to comply with the ordinance’s terms and to provide a completed application. It also did not err in concluding that, because she did not “submit a complete application under the 2018 ordinances, she did not have a clear legal right to assessment of her application by the review board. Similarly, defendants did not have a clear legal duty to submit plaintiff’s incomplete application to the review board.” Under the ordinance, they were required to dismiss her appeal unless she filed an amended application, and nothing on the record indicated that she did so. Thus, although they “had a clear legal duty, under the facts of this case and the applicable ordinances, the duty was to dismiss plaintiff’s incomplete application.” As a result, the trial court did not abuse its discretion in ruling that she failed to show she was entitled to mandamus relief. As to a preliminary injunction, she had to show “wrongful conduct by defendants that would be remedied by a grant of equitable relief.” But given that her legal claims failed, she had no basis for asserting entitlement to injunctive relief.

Setting aside a jury’s verdict under Fed.R.Civ.P. 50(b); K & T Enters., Inc. v. Zurich Ins. Co.; Whether plaintiff forfeited its right to make a Rule 50(b) motion where it failed to make a Rule 50(a) motion during trial; Kay v. United of Omaha Life Ins. Co. (Unpub. 6th Cir.); Ford v. County of Grand Traverse; American & Foreign Ins. Co. v. Bolt; Kusens v. Pascal Co.; Williams v. Gaye (9th Cir.); Tortu v. Las Vegas Metro. Police Dep’t (9th Cir.); Puga v. RCX Sols., Inc. (5th Cir.); Refusal to allow an exhibit; FRE 611; FRE 1006; FRE 403; Judicial interference; United States v. Hickman; Tattooed Millionaire Entertainment (TME)

In an issue of first impression in this circuit, the court held that plaintiff-Hanover forfeited its ability to “renew” a motion for a directed verdict after trial under Rule 50(b) by not bringing a Rule 50(a) motion at trial. Thus, it reversed the district court and reinstated the jury verdict for defendant-Falls. Defendant-Brown owned an entertainment company (defendant-TME) that purchased a music studio. Falls leased one of the studios in the building. Brown obtained an insurance policy for TME from Hanover. Falls also obtained a policy from Hanover. Defendant-Mott, who leased another studio, did the same. After the building was vandalized, robbed, and set on fire, Hanover suspected Brown had submitted fraudulent papers as to the claim and sought recovery of the funds it had paid, and a declaratory judgment that it did not owe defendants the balance of their claims. At trial, Brown admitted to sending Hanover false receipts, and the jury found him liable. Mott was also found liable. The district court set aside the jury’s verdict for Falls and directed a judgment for Hanover under Rule 50(b). The court noted that “Rule 50 is structured in two parts: (a) provides for the making of a motion for judgment as a matter of law at trial, and (b) provides for ‘Renewing the [50(a)] Motion after Trial.’” Because Hanover never made a motion for a directed verdict under 50(a) as to Falls during trial, the issue was whether the district court could direct a verdict for Hanover under Rule 50(b). The court held that “the wording of Rule 50(b) shows that it is conditional on a Rule 50(a) motion having been made at trial[.]” It rejected Hanover’s claim that the district court understood that all parties agreed to preserve all Rule 50 motions before the case went to the jury. Reviewing the record, it concluded that Hanover made a proper Rule 50(a) motion as to TME “and Brown, but not as to Falls.” It also held that the district judge did not have the power to “allow parties to preserve un-made, non-specific Rule 50(a) motions beyond the jury’s verdict. Therefore, even if that is what the district court intended to do, we hold that it had no power to do so.” The court further found no merit in Hanover’s argument that there should be “an exception for questions of law to Rule 50’s requirement that a Rule 50(a) motion must precede a Rule 50(b) motion.” It denied Hanover’s request to dismiss defendants’ cross-appeals, and affirmed the district court’s judgments as to Brown, TME, and Mott.

Malicious prosecution claim against an attorney & law firms; Friedman v. Dozorc; The defense of privilege; Bedford v. Witte; Lawrence v. Burdi; Withdrawing as counsel; MRPC 1.16(b); MRPC 1.16(b)(6); MRPC 1.16(a)(1); Legal malpractice; Bowden v. Gannaway; Confidential attorney-client communications; Nash v. Grand Haven; Augustine v. Allstate Ins. Co.; Principle that when an attorney represents a corporation, the corporation (not its shareholders) is the client; Alpha Capital Mgmt., Inc. v. Rentenbach; Effect of representation in other matters; Goldberg v. 10034 Huntington Woods Inv., LLC (Unpub.); Effect of an unpublished opinion; Smith Living Trust v. Erickson Ret. Cmtys.; Sanctions; Kitchen v. Kitchen; MCR 2.114(D) & 2.625(A)(2); MCL 600.2591(1); LaRose Mkt., Inc. v. Sylvan Ctr., Inc.; Meisner Law Group, PC v. Weston Downs Condo. Ass’n

The court held that “the content of defendants’ motion to withdraw was protected by the judicial-proceedings privilege and” thus, could not serve as the basis for plaintiff-Kattula’s malicious prosecution claim. Also, because Count III did not allege malpractice in defendants’ representation of Kattula, it failed to state a claim upon which relief could be granted. Finally, the trial court did not clearly err by finding that the claims in Kattula’s second amended complaint were not frivolous and did not warrant an award of sanctions. The case arose from a dispute that occurred between defendant-Hertzberg and Kattula while defendants were representing one of Kattula’s companies—plaintiff-TAJ—in TAJ’s Chapter 11 bankruptcy case. Kattula alleged “that the trial court erred by dismissing his malicious prosecution claim on the basis of the judicial-proceedings privilege because the allegations included in defendants’ motion to withdraw were not relevant to the proceedings and, therefore, not privileged.” Although the court held that summary disposition was inappropriate under MCR 2.116(C)(8), the trial court’s error did not require reversal because summary disposition was warranted under MCR 2.116(C)(10). In support of their summary disposition motion, “defendants produced their motion to withdraw as TAJ’s counsel in the bankruptcy proceeding.” The allegations they “made against Kattula would have fallen squarely within the provisions of MRPC 1.16(b) had Kattula been” their client in the bankruptcy. Relying on this distinction, Kattula argued that the allegations in their “motion were not material, relevant, or pertinent to defendants’ request to withdraw because Kattula had nothing to do with the bankruptcy case.” However, he “acknowledged in his second amended complaint that he ‘acted as the agent for TAJ with regard to Hertzberg’s legal representation of and legal interaction with TAJ[.]’” Thus, in light of his “integral role in defendants’ representation of TAJ, defendants’ allegations satisfy MRPC 1.16(b)(6) . . . even if they do not strictly satisfy subdivisions (1) through (5). Moreover, the suddenly adversarial nature of the relationship between Kattula and Hertzberg amounted to an actual conflict of interest that precluded defendants from continuing to represent Kattula or his entities.” Kattula also argued “that the statements were not privileged because they went beyond the pro forma allegation of a breakdown in the professional relationship that is generally asserted in a motion to withdraw.” But the court held that the “statements clearly concerned the matter before the bankruptcy court because they described the reasons for defendants’ claimed inability to continue representing TAJ.” Affirmed.

Writ of mandamus; Barrow v. City of Detroit Election Comm’n; Application to open a medical marijuana caregiver center in a city; A clear legal right; Rental Props. Owners Ass’n of Kent Cnty. v. Kent Cnty. Treasurer; Clear legal duty; Carter v. Ann Arbor City Atty.; Injunctive relief as an equitable remedy rather than an independent cause of action; Terlecki v. Stewart

The court held that plaintiff did not establish entitlement to mandamus relief requiring the municipal defendants to review and grant her application to open a medical marijuana caregiver center (MMCC), and that she also was not entitled to relief in the form of a preliminary injunction. Thus, it affirmed the trial court’s order denying her requests. The court concluded that under the plain language of the relevant ordinances, “the 2018 ordinances superseded those in effect at the time plaintiff made her original application.” Under the terms of § 61-3-354(a), she “had the right to convert her MMCC application into an application to open a” medical marijuana provisioning center facility “if she submitted an amended application within 45 days of the ordinance’s effective date.” Based on the record evidence, the trial court correctly determined that she failed to comply with the ordinance’s terms and to provide a completed application. It also did not err in concluding that, because she did not “submit a complete application under the 2018 ordinances, she did not have a clear legal right to assessment of her application by the review board. Similarly, defendants did not have a clear legal duty to submit plaintiff’s incomplete application to the review board.” Under the ordinance, they were required to dismiss her appeal unless she filed an amended application, and nothing on the record indicated that she did so. Thus, although they “had a clear legal duty, under the facts of this case and the applicable ordinances, the duty was to dismiss plaintiff’s incomplete application.” As a result, the trial court did not abuse its discretion in ruling that she failed to show she was entitled to mandamus relief. As to a preliminary injunction, she had to show “wrongful conduct by defendants that would be remedied by a grant of equitable relief.” But given that her legal claims failed, she had no basis for asserting entitlement to injunctive relief.

Motorcycle accident claim alleging a road defect; Whether the 60-day notice provision of MCL 224.21(3) or the 120-day notice provision of MCL 691.1404(1) applied; Streng v. Mackinac Cnty. Rd. Comm’r; Brown v. Manistee Cnty. Rd. Comm’n; Rowland v. Washtenaw Cnty. Rd. Comm’n; Stare decisis; 7.215(J)(1); Catalina Mktg. Sales Corp. v. Department of Treasury; Paige v. Sterling Heights; Woodring v. Phoenix Ins. Co.; Associated Builders & Contractors v. Lansing; Call for a conflict panel; MCR 7.215(J)(2); Pearce v. Eaton Cnty. Rd. Comm’n; Brugger v. Midland Cnty. Bd. of Rd. Comm’rs

The court held that the trial court did not err by granting summary disposition of plaintiff’s claim in favor of defendant-county road commission. Plaintiff sued defendant for injuries he sustained when he hit a defect in the roadway and lost control of his motorcycle. The trial court found that plaintiff failed to meet the 60-day notice provision in MCL 224.21(3). On appeal, the court rejected his argument that the 120-day notice provision in MCL 691.1404(1) should apply. He claimed that because Streng wrongly departed from the Supreme Court’s ruling in Brown, the court could not follow Streng and was required to apply Brown. “Here, as recognized by Streng, Rowland overruled Brown, and in doing so, ‘the Rowland Court repudiated the entirety’ of Brown ‘because the analysis [it] employ[s] is deeply flawed.’” Therefore, because Brown was clearly overruled, the court was “not bound to follow it . . . and must instead follow Streng[.]" The court declined plaintiff’s invitation to call for a conflict panel, noting “the issue is already slated to be resolved by” the Supreme Court. Affirmed.

Motorcycle accident claim alleging a road defect; Whether the 60-day notice provision of MCL 224.21(3) or the 120-day notice provision of MCL 691.1404(1) applied; Streng v. Mackinac Cnty. Rd. Comm’r; Brown v. Manistee Cnty. Rd. Comm’n; Rowland v. Washtenaw Cnty. Rd. Comm’n; Stare decisis; 7.215(J)(1); Catalina Mktg. Sales Corp. v. Department of Treasury; Paige v. Sterling Heights; Woodring v. Phoenix Ins. Co.; Associated Builders & Contractors v. Lansing; Call for a conflict panel; MCR 7.215(J)(2); Pearce v. Eaton Cnty. Rd. Comm’n; Brugger v. Midland Cnty. Bd. of Rd. Comm’rs

The court held that the trial court did not err by granting summary disposition of plaintiff’s claim in favor of defendant-county road commission. Plaintiff sued defendant for injuries he sustained when he hit a defect in the roadway and lost control of his motorcycle. The trial court found that plaintiff failed to meet the 60-day notice provision in MCL 224.21(3). On appeal, the court rejected his argument that the 120-day notice provision in MCL 691.1404(1) should apply. He claimed that because Streng wrongly departed from the Supreme Court’s ruling in Brown, the court could not follow Streng and was required to apply Brown. “Here, as recognized by Streng, Rowland overruled Brown, and in doing so, ‘the Rowland Court repudiated the entirety’ of Brown ‘because the analysis [it] employ[s] is deeply flawed.’” Therefore, because Brown was clearly overruled, the court was “not bound to follow it . . . and must instead follow Streng[.]" The court declined plaintiff’s invitation to call for a conflict panel, noting “the issue is already slated to be resolved by” the Supreme Court. Affirmed.

Termination under §§ 19b(3)(b)(i), (b)(ii), (j), & (k)(iii); In re Martin; In re Moss Minors; Children’s best interests; In re Hudson; In re Olive/Metts Minors; In re White

Holding that § (b)(i) existed and that termination of respondent-father’s parental rights was in the children’s (G, R, D, D, and K) best interests, the court affirmed. For a nearly three-year period, he “evaded the attempt by DHHS to investigate the children’s well-being and speak with them. However, an anonymous 911 caller reported that abuse had occurred for over 45 minutes, threats to kill were made, and this conduct was beyond a ‘whipping.’ CPS workers and the police arrived and were able to speak with” G, who requested that the agency not leave the children there. The evidence disclosed that he hit G “for approximately 10 minutes and only stopped because the police arrived, while he beat” R for a longer time. Both G and R “testified that this was not an isolated incident, but rather, respondent had hit [G and D] multiple times with a belt and whip in the past. They showed the bruises on their bodies to the authorities.” G and R also testified that the father “would make them take off their clothes, bend over the bed, put their faces in a pillow, and then he would use a belt to hit them on all areas of their bodies other than their faces.” Dr. T testified that G’s and R’s “physical exams were considered ‘abnormal’ because of multiple bruises on their bodies.” Also, respondent admitted that he hit G and R “with a belt multiple times, and acknowledged hitting [D] with a belt on two occasions. [D] reported that, on one occasion, she was hit for wearing the wrong shoes.” Thus, the evidence indicated that respondent’s acts caused the physical injuries to G, R, and D. Further, the trial court did not err in finding that there was a reasonable likelihood that his “children would suffer from injury or abuse in the foreseeable future if returned to respondent’s care.” Despite his “representation that he would not beat his children in the future, the evidence supports the trial court’s finding that respondent lacked remorse, lacked credibility, and failed to accept responsibility for his actions. Respondent testified that he believed he could use corporal punishment on his children, and he only punished them to the extent necessary to improve their behavior. He expressed this belief despite the fact that he repeatedly told his children not to tell anyone about the abuse, saying ‘what happens in this house stays in this house.’” The evidence indicated that he “failed to acknowledge the severity of the abuse and the affect it had on his children.”

Termination under § 19b(3)(c)(i); Effect of establishing one statutory ground; In re Ellis; Child’s best interests; In re Olive/Metts Minors; In re Moss Minors; In re White

Holding that § (c)(i) was established and that termination was in the child’s (O) best interests, the court affirmed the order terminating respondent-mother’s parental rights. O came under the trial court’s jurisdiction because respondent lacked suitable housing, she had physically neglected O, and O had seen domestic violence incidents involving respondent in the home. O had been out of her care for approximately 18 months at the time of termination, and was thriving in the care of his maternal grandfather and step-grandmother. While respondent “attended counseling and completed some services, she failed to obtain and maintain suitable housing. [She] had moved multiple times and at the time of termination was living with her boyfriend.” Although this was technically an appropriate home, the DHHS could not allow O to live there due to the boyfriend’s history with CPS. Respondent “had earned unsupervised parenting time during the pendency of this case; however, it went back to being supervised after [she] brought several unapproved males to” the visits, including men with “histories of CPS involvement. [She] also missed several parenting time visits in mid-to-late 2019, and did not" try to contact O during that period. Further, she testified that as of the time of termination, she lacked any “income and was having difficulty finding a job as a result of two prior domestic violence convictions.” As to O’s best interests, during his 18 months with his grandfather and step-grandmother, he “had gone from not speaking to verbalizing, responded to his name, had a good relationship with his extended family, and was flourishing in a head start program.” He had his own bedroom, and they were interested in adopting him. He was “entitled to permanency, stability, and finality, which” the court found respondent could not provide.