Divorce; Calculating child support under the Michigan Child Support Formula (MCSF); MCL 552.605(2); Borowsky v. Borowsky; MCSF 2.02(B); Imputation of income; Spousal support; Loutts v. Loutts; Spousal-support factors; Korth v. Korth; Attorney fees; MCR 3.206(D)(2)(a) & (b); Reed v. Reed

The court held that the trial court did not err by using the parties’ 2018 incomes when calculating child and spousal support. However, it erred by awarding plaintiff-ex-wife attorney fees. In the parties’ judgment of divorce, the trial court relied on their 2018 incomes to calculate child and spousal support instead of their projected 2019 incomes. It also awarded plaintiff $3,000 in attorney fees. On appeal, the court rejected defendant-ex-husband’s argument that it was unfair to use the 2018 incomes as he “had changed positions at work and was no longer required to work overtime,” while plaintiff had switched from part time to fulltime work in 4/18 in addition to often working overtime. He did not provide any authority suggesting that a trial court has to “calculate the current year’s income using paystubs to determine a projected income.” It also rejected his claim that by using his 2018 income the trial court effectively imputed income to him, finding what the trial court did was not “inconsistent with the MCSF and did not constitute the imputation of income to defendant.” It further rejected his contention that the spousal-support factors weighed against an award of spousal support and that the trial court failed to address the majority of the factors, holding that “correcting a disparity in income between the parties is a proper consideration when awarding spousal support, and the award of spousal support was just and reasonable considering the circumstances of the case.” However, the court agreed with defendant that the trial court improperly awarded plaintiff attorney fees because she failed to show she was unable to bear the expense of the litigation or that he was able to afford the fees. “The trial court indicated it was awarding attorney fees due to the disparity in income between the parties,” which, alone, does not justify such an award. “Under the court rule, there must be a specific finding that plaintiff is ‘unable to bear the expense’ of litigating the divorce action to warrant an award,” as well as “a finding that defendant ‘is able to pay’ the fees.” The trial court failed to make the requisite findings. Affirmed.

Age discrimination action under the Elliott-Larsen Civil Rights Act (MCL 37.2101 et seq.); MCL 37.2202(1)(a); Hazle v. Ford Motor Co.; Attorney fees; MCL 37.2802; Meyer v. City of Ctr. Line

Holding that defendant-employer was entitled to summary disposition of plaintiff-employee’s age discrimination claim, the court reversed the trial court’s denial of the motion, remanded, and vacated the award of attorney fees for plaintiff. Plaintiff sued defendant alleging age and race discrimination when it hired a younger white male for an open position instead of promoting her to the position. The trial court denied defendant’s motion for summary disposition on the basis that plaintiff established a genuine issue of material fact as to “whether defendant’s proffered reasons were merely a pretext for unlawful discrimination.” The jury then found defendant had committed age discrimination and the trial court ordered defendant to pay plaintiff’s attorney fees. On appeal, the court agreed with defendant that the trial court erred by denying it summary disposition. It noted that the trial court erred by relying “on a single piece of evidence in denying defendant’s motion for summary disposition—a notation by [one of the interviewers] on her interview scoring sheet about [the successful candidate] ‘being young.’” Contrary to the trial court’s conclusion, “the notation did not provide any evidence of ‘defendant’s preference for a younger applicant.’” It found this case “directly analogous” to Hazle and held that the trial court should have granted defendant’s motion for summary disposition on the age discrimination claim. Further, although plaintiff “produced additional evidence at trial that defendant may have violated its own policies by failing to favor an internal candidate for the” position, the court was “charged with viewing only the evidence presented to the trial court at the time it decided defendant’s motion for summary disposition.” Finally, the court agreed with defendant that the award of attorney fees must also be vacated. “Because the trial court should have granted defendant’s motion for summary disposition, plaintiff was not a prevailing party in this case.”

Damages calculation; Alan Custom Homes, Inc. v. Krol; Triple E Produce Corp. v. Mastronardi Produce, Ltd.

Finding no clear error in the trial court’s damages calculation in this breach of contract case, the court affirmed. The parties purchased a house when they were engaged. It was divided into two apartments, and they moved into one of them while renting the other to tenants. When their relationship ended, defendant (who was the only one listed on the mortgage) asked plaintiff to leave. Defendant continued to live in the house, and act as landlord to the tenants. She later sold the property for an approximately $27,000 profit, and “returned $4,000 to plaintiff for his contribution to the home’s down payment.” He filed suit, asserting breach of contract, promissory estoppel, unjust enrichment, and quantum meruit. While the trial court determined that he did not have an ownership interest in the house, it “concluded that the parties had entered into a joint business venture concerning the rental property.” Thus, it believed that he was entitled to an accounting. Eventually, after finding that neither party’s “calculation constituted the actual damages sustained by plaintiff, but that the amounts in dispute did not justify employing an accountant to determine the precise amount” owed, it analyzed the income and expenses in the documents they provided and awarded plaintiff $8,500, including a $500 sanction for defendant missing a required settlement conference. On appeal, she argued that it erred in calculating damages, asserting that “the rental property produced a small surplus of $1,736.91 and defendant already repaid plaintiff $4,000.” But the court concluded that while the trial court did not detail how it reached the $8,000 figure, it appeared to arrive at the “award by relying on the parties’ testimony about certain expenses and using the expense figures provided by plaintiff and the method of calculation advocated by plaintiff. The resulting $8,000 was within the range of the evidence presented, and defendant” did not expressly challenge the award of $500 as a sanction.

Amended judgment of sentence resentencing defendant to lifetime electronic monitoring; People v. Comer; MCR 6.435 & 6.429(A); Whether the former or the amended version of MCR 6.429(A) applied; Ineffective assistance of counsel during plea negotiations; People v. Douglas; Motion to withdraw a plea; People v. Seadorf; MCR 6.302(A), (B)(1), (C)(1), & (D)(1)

Agreeing with defendant that the trial court erred when it sua sponte resentenced him to lifetime electronic monitoring (LEM), the court vacated his amended judgment of sentence (JOS) and remanded for reinstatement of his original JOS. But it rejected his claim that defense counsel was ineffective during plea negotiations, and held that the trial court did not abuse its discretion in denying his motion to withdraw his plea. He pled no contest to two counts of CSC II under MCL 750.520c(1)(a) and (2)(b). He did “not dispute that his convictions would ordinarily be subject to” LEM, or that the failure to order it “rendered his sentences invalid.” But the trial court at his original sentencing did not sentence him to LEM and the original JOS was silent on the matter. After the Department of Corrections notified the trial court of the omission and the trial court ordered the parties to brief the issue, it sua sponte entered an amended JOS ordering LEM. While the parties disputed whether the former version of MCR 6.429(A), in effect at his original sentencing, or the amended version, in effect at the time of resentencing, should apply, the prosecution failed to address the part of the rule requiring “the trial court to correct an invalid sentence within six months of entry of the original sentence.” Even under the amended version of the rule, it lacked authority to sua sponte amend the invalid sentence because over six months had passed since the original JOS was entered. However, the trial court did not clearly err when it found that defendant received effective assistance of counsel, and the court held that, based on defendant’s testimony, it also did not abuse its discretion in ruling that his “plea was made voluntarily and knowingly.” The prosecution clearly placed on the record that he was accepting a plea of two counts of CSC II, as a fourth-offense habitual offender, with minimum sentences of 15 years in exchange for the dismissal of five CSC I counts. The trial “court acknowledged that there was a plea agreement on the record as stated by the prosecutor, asked defendant whether he understood the terms of the plea agreement, and defendant responded ‘yes.’” It also asked him if he understood that his plea carried a maximum of life imprisonment, and he stated he understood. Thus, the court affirmed his convictions.

Ineffective assistance of counsel; People v. Trakhtenberg; People v. Anderson; Failure to inquire into what sentence the prosecution would recommend if defendant accepted the plea agreement offered; People v. Douglas; Lafler v. Cooper; Missouri v. Frye; Prejudice; Griffin v. United States (6th Cir.); People v. Swirles; Other acts evidence; MRE 404(b)(1); People v. Jackson; Relevance; MRE 401; People v. Sabin (After Remand); People v. McGhee; Materiality; People v. Savage; Evidence of flight; People v. Coleman; People v. Unger; Unfair prejudice; MRE 403; People v. Crawford; People v. Vasher; Notice; MRE 404(b)(2); Admission of photos; People v. Mills; People v. Fisher

The court held that defendant was not denied the effective assistance of counsel, and that the prosecution’s failure to notify him that it would elicit testimony about his flight from the deputies was harmless error. Further, admitting the challenged photos was within the range of reasonable and principled outcomes and thus, the trial court’s evidentiary ruling was not an abuse of discretion. Defendant agreed on the record that his attorney relayed the plea "offer to him, and that he had discussed it with his attorney, but he said that he wanted to proceed to trial.” On appeal, he contended “that he asked his trial counsel what the prosecution’s sentencing recommendation was going to be, and she responded that she did not know.” He asserted that “it was deficient performance for trial counsel not to have made some inquiry of the prosecution as to what recommendations they were considering.” Assuming for the sake of argument that “trial counsel did not inquire into the prosecution’s anticipated sentencing recommendation, defendant has cited no authority supporting his assertion that failure to do so constitutes deficient performance at the plea-bargaining stage.” The record showed that “counsel accurately relayed the prosecution’s favorable plea-agreement offer to defendant.” And there was no record evidence, nor did he “assert, that counsel gave him legally flawed advice that caused him to reject the plea-agreement.” The court noted that there “may be a case where trial counsel’s failure to inquire into the prosecution’s anticipated sentencing recommendation could constitute deficient performance, but this does not strike us as that case. Further, even if we assumed for the sake of argument that trial counsel’s failure to ask about the prosecution’s sentencing recommendation constituted deficient performance,” he failed to show prejudice. The court noted that this case was distinguishable from Griffin. Affirmed.

Age discrimination action under the Elliott-Larsen Civil Rights Act (MCL 37.2101 et seq.); MCL 37.2202(1)(a); Hazle v. Ford Motor Co.; Attorney fees; MCL 37.2802; Meyer v. City of Ctr. Line

Holding that defendant-employer was entitled to summary disposition of plaintiff-employee’s age discrimination claim, the court reversed the trial court’s denial of the motion, remanded, and vacated the award of attorney fees for plaintiff. Plaintiff sued defendant alleging age and race discrimination when it hired a younger white male for an open position instead of promoting her to the position. The trial court denied defendant’s motion for summary disposition on the basis that plaintiff established a genuine issue of material fact as to “whether defendant’s proffered reasons were merely a pretext for unlawful discrimination.” The jury then found defendant had committed age discrimination and the trial court ordered defendant to pay plaintiff’s attorney fees. On appeal, the court agreed with defendant that the trial court erred by denying it summary disposition. It noted that the trial court erred by relying “on a single piece of evidence in denying defendant’s motion for summary disposition—a notation by [one of the interviewers] on her interview scoring sheet about [the successful candidate] ‘being young.’” Contrary to the trial court’s conclusion, “the notation did not provide any evidence of ‘defendant’s preference for a younger applicant.’” It found this case “directly analogous” to Hazle and held that the trial court should have granted defendant’s motion for summary disposition on the age discrimination claim. Further, although plaintiff “produced additional evidence at trial that defendant may have violated its own policies by failing to favor an internal candidate for the” position, the court was “charged with viewing only the evidence presented to the trial court at the time it decided defendant’s motion for summary disposition.” Finally, the court agreed with defendant that the award of attorney fees must also be vacated. “Because the trial court should have granted defendant’s motion for summary disposition, plaintiff was not a prevailing party in this case.”

Motion to restore the case & set a scheduling order; One-year limitations period for such a motion; MCR 2.612; Exception for correction of clerical mistakes; MCR 2.612(C)(1); Dismissal for lack of progress; MCR 2.502(A)(1); Reinstatement for good cause; MCR 2.502(C); The gravamen of an action; Lieberman v. Orr; Scheduling conference; MCR 2.401(A); Laches; Williamstown Twp. v. Sandalwood Ranch, LLC; Home-Owners Ins. Co. v. Perkins

Holding that the trial court erred by denying plaintiff-former employee’s motion to restore his case and set a scheduling order, the court reversed and remanded. Plaintiff sued defendant-former employer alleging several claims arising from the termination of his employment. Defendant removed the case to federal court, which later found removal was unwarranted and remanded the case back to the state court. Somehow the remand order was never filed with the state court. More than three years later, plaintiff filed a motion to restore the case and set a scheduling order. The trial court denied the motion finding that plaintiff failed to present good cause for reinstating the matter and that his action was barred by laches. On appeal, the court rejected plaintiff’s argument that the trial court erred by relying on MCR 2.612 to deny his motion, noting the trial court “expressly agreed with plaintiff’s assertion that MCR 2.612 was inapplicable . . . and restated that it had not relied on” it when denying his motion. However, it found the trial court erred by denying his motion on the basis that he did not show good cause, finding that although he “labeled his motion as one to restore the case and set a scheduling order, the trial court’s jurisdiction was restored by the actions of the federal court and its Clerk.” Finally, the court agreed with plaintiff that the trial court erred by finding that restoring the case would be inequitable under the doctrine of laches. Given that the “statute of limitations had not expired on all of plaintiff’s claims and that plaintiff could continue to pursue at least one of [his] claims against defendant, we cannot comprehend how defendant was prejudiced by plaintiff’s delay.” Moreover, defendant “candidly recognized that it retained any liabilities during the sale process, presumably including this lawsuit.”

Divorce; Calculating child support under the Michigan Child Support Formula (MCSF); MCL 552.605(2); Borowsky v. Borowsky; MCSF 2.02(B); Imputation of income; Spousal support; Loutts v. Loutts; Spousal-support factors; Korth v. Korth; Attorney fees; MCR 3.206(D)(2)(a) & (b); Reed v. Reed

The court held that the trial court did not err by using the parties’ 2018 incomes when calculating child and spousal support. However, it erred by awarding plaintiff-ex-wife attorney fees. In the parties’ judgment of divorce, the trial court relied on their 2018 incomes to calculate child and spousal support instead of their projected 2019 incomes. It also awarded plaintiff $3,000 in attorney fees. On appeal, the court rejected defendant-ex-husband’s argument that it was unfair to use the 2018 incomes as he “had changed positions at work and was no longer required to work overtime,” while plaintiff had switched from part time to fulltime work in 4/18 in addition to often working overtime. He did not provide any authority suggesting that a trial court has to “calculate the current year’s income using paystubs to determine a projected income.” It also rejected his claim that by using his 2018 income the trial court effectively imputed income to him, finding what the trial court did was not “inconsistent with the MCSF and did not constitute the imputation of income to defendant.” It further rejected his contention that the spousal-support factors weighed against an award of spousal support and that the trial court failed to address the majority of the factors, holding that “correcting a disparity in income between the parties is a proper consideration when awarding spousal support, and the award of spousal support was just and reasonable considering the circumstances of the case.” However, the court agreed with defendant that the trial court improperly awarded plaintiff attorney fees because she failed to show she was unable to bear the expense of the litigation or that he was able to afford the fees. “The trial court indicated it was awarding attorney fees due to the disparity in income between the parties,” which, alone, does not justify such an award. “Under the court rule, there must be a specific finding that plaintiff is ‘unable to bear the expense’ of litigating the divorce action to warrant an award,” as well as “a finding that defendant ‘is able to pay’ the fees.” The trial court failed to make the requisite findings. Affirmed.

Petition for involuntary mental health treatment; MCL 330.1452(1)(a); Report required under MCL 330.1453a; Adequacy of the report; Failure to provide alternatives to hospitalization; The Mental Health Code (MCL 330.1001 et seq.) requirement that a hospitalized person be informed of certain rights; MCL 330.1448(1) & 330.1453(2); Right to an independent clinical evaluation; Finding that respondent was a person requiring treatment as defined by MCL 330.1401(1)(b) & (c); “Mental illness”; MCL 330.1400(g); Effect of a finding a person requires treatment; MCL 330.1472a(1)

The court concluded that the probate court did not commit plain error by failing to properly consider hospitalization alternatives, and that respondent was informed of his right to an independent clinical evaluation. It also held that the record supported the probate court’s ruling that clear and convincing evidence showed he was a person requiring treatment, “and that hospitalization was the only adequate treatment available under the circumstances.” Thus, it affirmed the order granting the petition for “involuntary mental health treatment and ordering respondent to undergo mental health treatment for up to 180 days, with up to 60 days of hospitalization.” He argued that the report ordered by the probate court before making its dispositional ruling was “inadequate because it did not provide any alternatives to hospitalization.” He asserted that the fact entries as to hospitalization alternatives and residential accommodation availability were left blank constituted a failure to provide that information “rather than as an indication that there were no alternatives to hospitalization” in light of his condition. The court disagreed, noting that the form instructed the person filling it out “to give the name of the ‘agency, program, etc.’ that could provide alternative services, ‘if practical.’” It seemed likely that leaving these “entries blank indicated that respondent’s manic behavior, his grandiose and paranoid notions, his reported failure to understand his condition, and his refusal to take medication made alternatives to hospitalization impractical at the time.” Further, clear and convincing evidence showed he was a person requiring treatment under MCL 330.1401(1)(b) and (c). Evidence revealed that he “was getting less than two hours of sleep a night, that his appetite was poor, and that based on his extraordinary behavior he had been put on leave from work.” He also did not show clear error in the probate court’s findings that he did not understand his need for treatment, and that he showed “an unwillingness to voluntarily participate in treatment that was necessary to prevent deterioration of his condition[.]” The record also supported that he posed “a substantial risk of significant harm to himself.”

Liability of a no-fault insurer assigned to provide personal protection insurance (PIP) benefits for medical expenses otherwise payable by the assigned insured’s health insurance policy; MCL 500.3172(2); Distinguishing Spencer v. Citizens Ins. Co.; Whether the statute creates a coordination scheme; George v. Allstate Ins. Co.; Whether federal law preempted the statute; Distinguishing Bats v. Titan Ins. Co.; U.S. Department of Veterans Affairs (VA)

Concluding that Spencer was distinguishable, and that Batts did not support intervening plaintiff-pharmacy’s (ZMC) argument, the court held that defendant-assigned no-fault insurer (Farmers) was not liable for plaintiff-assigned insured’s (Oliver) prescription medications, which were covered by a Blue Cross health insurance policy. Thus, it reversed summary disposition for ZMC and remanded for entry of summary disposition for Farmers. Under MCL 500.3172(2), “PIP benefits payable through the assigned claims plan ‘shall be reduced to the extent that benefits covering the same loss are available from other sources.’” The court unequivocally held in George that this is a coordination statute and thus, “an insurer providing benefits under the assigned-claims plan is generally entitled to a setoff for any other benefits covering the same loss that are received by or on behalf of the injured party. The only statutory exception” is benefits under Medicare or Medicaid. ZMC relied on Spencer, but that case involved a dispute as to which of two no-fault insurers was higher in “priority for payment of the plaintiff’s PIP benefits. In that context, the assigned insurer must pay the PIP benefits and seek reimbursement from the higher priority no-fault insurer.” This case concerned “how an assigned insurer must proceed when it discovers that benefits covering the same loss are available from another benefit source other than a higher priority no-fault insurer.” The other benefits source here was a healthcare insurer, not a no-fault insurer. Thus, Spencer did not control. As to Batts, plaintiff there “was entitled to seek medical services from the VA, and federal law regarding the VA preempted this state’s no-fault statutes,” thus the court held that the no-fault insurer had to pay plaintiff’s claim. But this case did “not involve a veteran who received healthcare services through the VA. Therefore, the conflict-preemption analysis applied” there did not apply here. The court concluded that the trial court erred in finding that “Batts required Farmers to pay ZMC’s invoice and” then seek reimbursement from Blue Cross. “Unlike the VA, Blue Cross does constitute a ‘benefit source’ available to Oliver under MCL 500.3172(2), which results in the reduction of benefits payable from Farmers to Oliver and his assignees.”

Action seeking PIP benefits under the No-Fault Act; Insurer priority; MCL 500.3114; The one-year back rule; MCL 500.3145(1); Joseph v. Auto Club Ins. Ass’n; Identifying the highest-priority insurer; MCL 500.3114(5); Borgess Med. Ctr. v. Resto; Frierson v. West Am. Ins. Co.; Principle that the appellate court will not reverse where the trial court reached the right result for the wrong reason; Lane v. KinderCare Learning Ctrs., Inc.; Obtaining PIP benefits through the Michigan Assigned Claims Plan (MACP); MCL 500.3172(3); Spectrum Health Hosp. v. Michigan Assigned Claims Plan; Sanctions under MCR 1.109(E)(5)-(7)

The court held that the trial court did not err by dismissing plaintiff’s no-fault action against defendants-insurer (Trumbull) and MACP. Plaintiff was injured when he tried to avoid a merging truck and crashed his motorcycle. After unsuccessfully attempting to determine the truck driver’s insurer, he notified Trumbull (the insurer of his motor vehicles), which refused to pay PIP benefits. It also failed to determine the truck driver’s insurer, and closed its investigation. Plaintiff then sued defendants seeking PIP benefits from Trumbull and asking MACP to assign his claim to an insurer. Trumbull eventually determined the truck driver’s insurer (non-party-Harleysville) and identified it as the highest priority insurer. On appeal, the court rejected plaintiff’s argument that the trial court’s ruling that Harleysville was identifiable as the highest-priority insurer had he acted with reasonable diligence, and thus that his claim against Trumbull must be dismissed, was erroneous. “[D]ue to the simple fact that Harleysville was identifiable, the general rule does not apply and plaintiff cannot collect PIP benefits from Trumbull, because Harleysville was a higher-priority insurer.” Thus, although the trial court “erred to the extent it considered whether Harleysville could have been identified with ‘reasonable diligence,’ [it] still reached the right result for the wrong reason.” The court also rejected plaintiff’s claim that because this case involved a priority dispute between two insurers the MACP should have assigned an insurer to pay his PIP benefits. “[A]ny disagreement between Harleysville and Trumbull is purely academic and theoretical, as no claim ever was made against Harleysville. Harleysville has not actually disagreed, and given its status as a non-party, could not disagree, with Trumbull’s argument in this case that Harleysville is the highest-priority insurer and that it should provide PIP benefits to plaintiff. Accordingly, because there is not an actual dispute between two or more insurers, applying MCL 500.3172(3)’s clear and unambiguous language as written . . . subsection (3) simply does not apply to the facts and circumstances of this case.” Finally, the court rejected plaintiff’s contention that the trial court should have sanctioned Trumbull for failing to affirmatively disclose its failure to locate the truck driver, noting Trumbull did not mislead the trial court and its “failed efforts to contact the truck driver were irrelevant.” Affirmed.

Liability of a no-fault insurer assigned to provide personal protection insurance (PIP) benefits for medical expenses otherwise payable by the assigned insured’s health insurance policy; MCL 500.3172(2); Distinguishing Spencer v. Citizens Ins. Co.; Whether the statute creates a coordination scheme; George v. Allstate Ins. Co.; Whether federal law preempted the statute; Distinguishing Bats v. Titan Ins. Co.; U.S. Department of Veterans Affairs (VA)

Concluding that Spencer was distinguishable, and that Batts did not support intervening plaintiff-pharmacy’s (ZMC) argument, the court held that defendant-assigned no-fault insurer (Farmers) was not liable for plaintiff-assigned insured’s (Oliver) prescription medications, which were covered by a Blue Cross health insurance policy. Thus, it reversed summary disposition for ZMC and remanded for entry of summary disposition for Farmers. Under MCL 500.3172(2), “PIP benefits payable through the assigned claims plan ‘shall be reduced to the extent that benefits covering the same loss are available from other sources.’” The court unequivocally held in George that this is a coordination statute and thus, “an insurer providing benefits under the assigned-claims plan is generally entitled to a setoff for any other benefits covering the same loss that are received by or on behalf of the injured party. The only statutory exception” is benefits under Medicare or Medicaid. ZMC relied on Spencer, but that case involved a dispute as to which of two no-fault insurers was higher in “priority for payment of the plaintiff’s PIP benefits. In that context, the assigned insurer must pay the PIP benefits and seek reimbursement from the higher priority no-fault insurer.” This case concerned “how an assigned insurer must proceed when it discovers that benefits covering the same loss are available from another benefit source other than a higher priority no-fault insurer.” The other benefits source here was a healthcare insurer, not a no-fault insurer. Thus, Spencer did not control. As to Batts, plaintiff there “was entitled to seek medical services from the VA, and federal law regarding the VA preempted this state’s no-fault statutes,” thus the court held that the no-fault insurer had to pay plaintiff’s claim. But this case did “not involve a veteran who received healthcare services through the VA. Therefore, the conflict-preemption analysis applied” there did not apply here. The court concluded that the trial court erred in finding that “Batts required Farmers to pay ZMC’s invoice and” then seek reimbursement from Blue Cross. “Unlike the VA, Blue Cross does constitute a ‘benefit source’ available to Oliver under MCL 500.3172(2), which results in the reduction of benefits payable from Farmers to Oliver and his assignees.”

Motion to restore the case & set a scheduling order; One-year limitations period for such a motion; MCR 2.612; Exception for correction of clerical mistakes; MCR 2.612(C)(1); Dismissal for lack of progress; MCR 2.502(A)(1); Reinstatement for good cause; MCR 2.502(C); The gravamen of an action; Lieberman v. Orr; Scheduling conference; MCR 2.401(A); Laches; Williamstown Twp. v. Sandalwood Ranch, LLC; Home-Owners Ins. Co. v. Perkins

Holding that the trial court erred by denying plaintiff-former employee’s motion to restore his case and set a scheduling order, the court reversed and remanded. Plaintiff sued defendant-former employer alleging several claims arising from the termination of his employment. Defendant removed the case to federal court, which later found removal was unwarranted and remanded the case back to the state court. Somehow the remand order was never filed with the state court. More than three years later, plaintiff filed a motion to restore the case and set a scheduling order. The trial court denied the motion finding that plaintiff failed to present good cause for reinstating the matter and that his action was barred by laches. On appeal, the court rejected plaintiff’s argument that the trial court erred by relying on MCR 2.612 to deny his motion, noting the trial court “expressly agreed with plaintiff’s assertion that MCR 2.612 was inapplicable . . . and restated that it had not relied on” it when denying his motion. However, it found the trial court erred by denying his motion on the basis that he did not show good cause, finding that although he “labeled his motion as one to restore the case and set a scheduling order, the trial court’s jurisdiction was restored by the actions of the federal court and its Clerk.” Finally, the court agreed with plaintiff that the trial court erred by finding that restoring the case would be inequitable under the doctrine of laches. Given that the “statute of limitations had not expired on all of plaintiff’s claims and that plaintiff could continue to pursue at least one of [his] claims against defendant, we cannot comprehend how defendant was prejudiced by plaintiff’s delay.” Moreover, defendant “candidly recognized that it retained any liabilities during the sale process, presumably including this lawsuit.”

Auto negligence; Noneconomic damages under the No-Fault Act (MCL 500.3101 et seq.); Serious impairment of body function; MCL 500.3135(1); MCL 500.3135(2)(a)(i) & (ii); McCormick v. Carrier; “Objectively manifested”; Principle that the aggravation or triggering of a preexisting condition can constitute a compensable injury; Fisher v. Blankenship; Proximate causation; Patrick v. Turkelson

The court held that the trial court did not err by granting defendant summary disposition of plaintiff’s auto negligence claim. Plaintiff sued defendant seeking nonecomonic damages arising out of an auto accident. The trial court granted summary disposition for defendant finding plaintiff failed to demonstrate an objectively manifested impairment from the collision (his third auto accident overall) because he did not proffer any objective testing that rebutted defendant’s assertion that his injuries were sustained in his other collisions, and no objective evidence was presented that suggested any preexisting conditions were aggravated by his collision with defendant. On appeal, the court rejected plaintiff’s argument that defendant was not entitled to summary disposition, noting “there was no material factual dispute concerning the nature and extent of plaintiff’s injuries and the trial court properly concluded that the matter was a question of law.” It also rejected his claim that he demonstrated an injury sufficient to satisfy the tort liability threshold for a serious impairment of body function, finding his “testimony failed to ‘introduce evidence establishing that there is a physical basis for [his] subjective complaints of pain and suffering,’ caused by the third collision.” Further, the records failed “to ‘establish[] a logical sequence of cause and effect,’ particularly when the exact injuries highlighted by plaintiff—cervicalgia, lumbago, muscles spasms, tenderness, pain, and limited range of motion in his neck, back, and knee—were documented in medical records in the months preceding the third collision.” Finally, “[i]n light of the delay between the third collision and the diagnosis, as well as plaintiff’s history of nerve pain and back injuries following the first and second collisions, no reasonable juror could conclude that plaintiff established a sequence of cause and effect showing that the radiculopathy was the result of the third collision.” Affirmed.

Petition for involuntary mental health treatment; MCL 330.1452(1)(a); Report required under MCL 330.1453a; Adequacy of the report; Failure to provide alternatives to hospitalization; The Mental Health Code (MCL 330.1001 et seq.) requirement that a hospitalized person be informed of certain rights; MCL 330.1448(1) & 330.1453(2); Right to an independent clinical evaluation; Finding that respondent was a person requiring treatment as defined by MCL 330.1401(1)(b) & (c); “Mental illness”; MCL 330.1400(g); Effect of a finding a person requires treatment; MCL 330.1472a(1)

The court concluded that the probate court did not commit plain error by failing to properly consider hospitalization alternatives, and that respondent was informed of his right to an independent clinical evaluation. It also held that the record supported the probate court’s ruling that clear and convincing evidence showed he was a person requiring treatment, “and that hospitalization was the only adequate treatment available under the circumstances.” Thus, it affirmed the order granting the petition for “involuntary mental health treatment and ordering respondent to undergo mental health treatment for up to 180 days, with up to 60 days of hospitalization.” He argued that the report ordered by the probate court before making its dispositional ruling was “inadequate because it did not provide any alternatives to hospitalization.” He asserted that the fact entries as to hospitalization alternatives and residential accommodation availability were left blank constituted a failure to provide that information “rather than as an indication that there were no alternatives to hospitalization” in light of his condition. The court disagreed, noting that the form instructed the person filling it out “to give the name of the ‘agency, program, etc.’ that could provide alternative services, ‘if practical.’” It seemed likely that leaving these “entries blank indicated that respondent’s manic behavior, his grandiose and paranoid notions, his reported failure to understand his condition, and his refusal to take medication made alternatives to hospitalization impractical at the time.” Further, clear and convincing evidence showed he was a person requiring treatment under MCL 330.1401(1)(b) and (c). Evidence revealed that he “was getting less than two hours of sleep a night, that his appetite was poor, and that based on his extraordinary behavior he had been put on leave from work.” He also did not show clear error in the probate court’s findings that he did not understand his need for treatment, and that he showed “an unwillingness to voluntarily participate in treatment that was necessary to prevent deterioration of his condition[.]” The record also supported that he posed “a substantial risk of significant harm to himself.”

True cash value (TCV) of industrial personal property; MCL 211.27(1); Exclusion of “turbine” personal property from exemptions; MCL 211.903(3)(b); MCL 380.1211(1) & (10)(e)(ii); The Tax Tribunal’s (TT) jurisdiction; MCL 205.731; Whether filing a properly completed statement of assessable property is always a prerequisite to invoking the TT’s jurisdiction; MCL 205.735a(4)(b); “May”; Walters v. Nadell; “Party in interest”; MCL 205.735a(6); Spartan Stores, Inc. v. Grand Rapids; Review of the TT’s findings & value determinations; The substantial evidence test; Black v. Department of Soc. Servs.; Deduction of the costs associated with construction of a new switchyard from the base cost estimate for a new plant; Reduction for intangibles; Meadowlanes Ltd. Dividend Hous. Ass’n v. Holland; Deduction for working capital; Estimate for the cost to finance a new construction project; Plant efficiency & fuel costs; Relevance of evidence; Jones & Laughlin Steel Corp. v. Warren; Including an amount attributable to the owner’s profit in the cost of a new plant; Meijer, Inc. v. Midland; Metuchen I, LLC v. Borough of Metuchen (NJ Tax Ct.); Treatment of expenses associated with constructing a switchyard; Sanctions; MCL 205.732(c); Rule 792.10215; MCR 2.114(D) (now (E)); LaRose Mkt., Inc. v. Sylvan Ctr., Inc.; Meisner Law Group, PC v. Weston Downs Condo Ass’n; Adamo Demolition Co. v. Department of Treasury; Appellate jurisdiction; MCR 7.203(A)(1) & (2); MCL 205.753(2); MCR 7.202(6)(a)(i)

In this dispute over assessments on a power plant’s industrial personal property (IPP), the court held that the TT did not commit an error of law in determining that it had jurisdiction or that petitioner-New Covert Generating (NCG) was a party in interest. Further, it did not err in giving “turbine” its ordinary meaning in construing the statutes excluding turbine personal property from the exemptions otherwise applicable to IPP. The court rejected the parties’ challenges to the TT’s findings and value determinations, and held that it did not err in concluding that the filing of certain motions by respondent-township and intervening respondent-county merited sanctions. Thus, it affirmed in both respondents’ appeal and NCG’s cross-appeal the TT’s opinion and judgment setting the TCV of the IPP at issue for 2016, and its order imposing sanctions for filing frivolous motions. The court first held that the TT did not err in determining that NCG met MCL 205.735a(4)(b)’s requirements. Thus, the TT “had the authority to consider the appeal.” Next, as it was undisputed that NCG “was the actual owner of the real and personal property that had been assessed[,]” the court found that it was clearly “a party in interest under both the original understanding of that phrase and the broadened construction of that phrase given by the Spartan Stores Court.” In construing the undefined term “turbine,” the TT properly “looked to a dictionary for evidence of the common usage for the” word. In addition, it did not commit an error of law in interpreting the relevant “statutes to apply to a machine or engine rotated by fluid that was powered by—in relevant part—gas or steam and with a primary purpose of generating electricity. As such it did not commit an error of law when it concluded that the term did not apply to ancillary equipment necessary to enable the turbine to generate electricity.” It also did not err in deductions for construction of a new switchyard, intangibles, or working capital, or in accepting NCG’s expert’s estimate of the cost to finance new construction and the heat rate for a new plant. The court rejected NCG’s claim that the TT “erred by including in the cost of a new plant an amount attributable to the owner’s profit” or in how it treated certain expenses. Finally, once the TT “found that counsel filed the motions for an improper purpose, it had to impose an appropriate sanction, even if the motion was otherwise well grounded in fact and law.”

Termination under § 19b(3)(c)(i); In re White; In re Ellis; Claim that the court should assume respondent’s appeal of criminal convictions will be successful; Abandoned issue; Cheesman v. Williams; People v. Elston; Reasonable reunification efforts; In re Frey; In re Hicks/Brown; In re Smith; In re VanDalen; In re Utrera; In re HRC; Referral for a psychological examination or counseling; Parenting time; In re Laster; Children’s best interests; In re Olive/Metts Minors; In re Moss Minors; In re Schadler; In re LE; In re Fried

Holding that § (c)(i) existed, reasonable reunification efforts were made, and termination of respondent-father’s parental rights was in the children’s best interests, the court affirmed. The statutory ground of subsection § (c)(i) was met “when the conditions that brought the children into foster care continue to exist despite time to make changes and the opportunity to take advantage of a variety of services.” The trial court terminated his parental rights to the children more than 182 days after its initial dispositional order in this case. He “admitted that because of the prison sentence, he did not have the current ability to care for his children.” The primary conditions leading to adjudication—his “incarceration and corresponding inability to care for his children—continued to exist at the time of termination, and the temporal period listed in MCL 712A.19b(3) had passed.” Another condition leading to adjudication was his issue with alcohol. It “was because of drunk driving that he had been incarcerated in the first place. Respondent violated his probation for the driving offense by again drinking alcohol, and his attendance at Alcoholics Anonymous meetings was sporadic at best. This condition was not adequately rectified by the time of termination and, given respondent’s history regarding alcohol, there was no reasonable likelihood that it would be rectified within a reasonable time considering” his children’s ages.

Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); In re Moss Minors; In re Ellis; In re White; In re LaFrance; Whether the trial court identified the statutory grounds under which it terminated respondent-mother’s parental rights; Children’s best interests; In re Olive/Metts Minors; Reasonable reunification efforts; In re Frey; In re Utrera; In re Fried; In re Mason

The court held that as to respondent-father, §§ (c)(i), (c)(ii), (g), and (j) were established. Also, the claim that the trial court failed to identify the statutory grounds under which it terminated respondent-mother’s parental rights was without merit. Further, termination of both respondents’ parental rights was in the children’s best interests. Finally, reasonable reunification efforts were made as to the mother. As to § (c)(i), the condition that led to the adjudication as to the father was his lack of suitable housing. Specifically, he was homeless at the time his children were taken into custody in 1/18. Although he had a home at the time of the statutory-grounds hearing in 7/19, the home was deemed unsuitable for his children. “Thus, the condition that led to the adjudication—a lack of suitable housing— remained after 182 or more days had elapsed since issuance of the initial dispositional order.” Given that he “had more than 18 months after the children were taken into custody to obtain suitable housing, it was reasonable to find that this condition would not be rectified within a reasonable time given the young ages of” his children. As to § (c)(ii), the trial court found that the other condition was the father’s domestic violence. It found that he “was given a reasonable amount of time to rectify this condition, yet failed to address it and there was no reasonable likelihood that he would rectify his domestic violence issues within a reasonable time considering” his children’s ages. It did not clearly err. He repeatedly denied ever committing any acts of domestic violence against the mother, but the trial court found him not credible. His “denials were belied by the record, which included evidence of his conviction of domestic violence, where he pleaded guilty to having committed domestic violence—second offense.” His denials were “evidence that he has not rectified his issues with domestic violence and that there was no reasonable likelihood that the issues would be rectified within a reasonable time considering the young ages of” his children. Although he “was provided with therapy to help address his domestic violence, he did not fully participate in or benefit from those services.” The evidence that he failed to participate in and benefit from the provided services further supported the existence of §§ (g) and (j). Affirmed.

Termination under § 19b(3)(c)(i); Child’s best interests; In re Moss Minors; In re Hudson; In re Olive/Metts Minors; In re White

Holding that § (c)(i) was established, and that termination of respondent-father’s parental rights was in the child’s (T) best interests, the court affirmed. It noted that “182 or more days” had “elapsed since the issuance of an initial disposition order.” Turning to whether the trial court properly found that he failed to rectify the conditions that led to adjudication, the court held that based on the “evidence, the trial court did not clearly err when it found by clear and convincing evidence that respondent failed to rectify his housing issues that led to adjudication because respondent failed to obtain independent housing that permitted him to adequately care for” T. Respondent testified “that he was living in a two-bedroom home with his cousin and that he would share a room with” T. However, a foster care worker (K) “testified that she did not believe respondent lived there because when she went to evaluate the home, respondent’s possessions were not at the home, he did not have a bed, and respondent told [K] that he was sleeping on the couch.” The day before the termination trial, K “went to assess the home again, but respondent was not at the home even though he knew when [K] was to arrive. Respondent’s cousin did not answer the door for [K]. [K] further testified that respondent was not paying rent, and she was concerned that his cousin could tell him to leave the home and take” T with him. In addition to lack of housing, the trial court found that respondent also failed to provide proof of legal income. K “testified that respondent provided fraudulent proof of income on several occasions.” Also, K “testified that she saw a Facebook posting where respondent was seeking out someone to make check stubs for him. Respondent testified that he recently began a job that would allow him to provide financial support for [T], but he did not provide” K with proof. Finally, the trial court found that proper supervision of T remained an issue for respondent. K explained that respondent permitted T’s “mother to have contact with [T] on multiple occasions although her parental rights were terminated.” Further, when he was granted overnight visitation with T, social media showed T “not being properly supervised by respondent during gambling parties. In addition, in the month prior to trial, respondent missed several visits with” T.