Motion for case evaluation sanctions; MCR 2.403(O); MCR 2.403(O)(6)(b); The 28-day limitation period for filing a motion for case evaluation sanctions; MCR 2.403(O)(8); “Must”; Braun v York Props, Inc; A trial court’s essential authority to control the proceedings; Maldonado v Ford Motor Co; Reasonableness of fees; MRPC 1.5(a)(1); Smith v Khouri

Holding that the absence of evidence of an allocation of time spent by the parties’ attorneys litigating their case evaluations was fatal to their motions for case evaluation sanctions, the court affirmed the trial court’s denial of both parties’ motions. After two rejected case evaluations—one arising from a complaint and the other from a counterclaim, the parties stipulated that to calculate sanctions, the hours spent by their attorneys would be allocated between litigating the complaint and litigating the counterclaim. But the parties then claimed that this was an impossible task and presented no evidence of the allocation. On appeal, the court rejected defendant-doctor’s argument that the trial court should not have considered plaintiff’s (defendant’s former employer) motion for case evaluation sanctions as it was filed beyond the 28-day limitation period, noting he “had adequate notice that the court intended to consider [plaintiff’s] motion despite that it was filed a few days late." It next found that the trial court correctly determined that both parties were entitled to case evaluation sanctions under the court rule, and did not abuse its discretion by denying their motions for case evaluation sanctions in the absence of any evidence supporting their suggested allocations. Plaintiff “provided no evidence whatsoever with its motion for case evaluation sanctions or thereafter in the trial court. [Defendant] presented significant evidence about the reasonableness of the fee charged by his attorney, but only a single page detailing the hours spent on particular tasks. That document provided no insight into the topics labored over during those hours.” As such, there was no way to determine that 20% of his “attorney’s hours were dedicated to litigating the indemnification issue, let alone to allocate any time to either the complaint or counterclaim on” the clawback issue in this case.

Waiver of jury instruction claim; Sufficiency of the evidence for FIP, felony-firearm, & CCW; Possession; Ineffective assistance of counsel

The court held that defendant waived his jury instruction error claim, that there was sufficient evidence of possession to support his FIP, felony-firearm, and CCW convictions, and that he failed to establish his ineffective assistance of counsel claim. While he asserted on appeal that the trial court erred in its jury instructions, “defense counsel repeatedly stated that he had no objection to the jury instructions and that he approved of the instructions. By repeatedly and explicitly approving of the jury instructions, defendant waived the right to contest” them. As to the sufficiency of the evidence, the officer (O) who pursued him the morning of his arrest “testified that while he was chasing defendant, he saw defendant throw a gun over a backyard fence. Another officer testified that he found a gun in a backyard near the location where he was told defendant had thrown a gun.” The court concluded that this evidence would allow a rational trier of fact to find “beyond a reasonable doubt that defendant actually possessed the firearm that was recovered by police.” While he contended that O’s testimony was not corroborated by the footage from his “body camera, and that the prosecution did not present any fingerprint or DNA evidence connecting defendant to the gun[,]” the court noted that it was for the jury to determine the credibility of O’s testimony and the weight to give the trial evidence. Finally, as to his claim that defense counsel was ineffective for not objecting to the jury instruction on the elements of FIP and felony-firearm, he “failed to rebut the strong presumption that defense counsel’s performance was reasonable. The jury instruction at issue was taken verbatim from” M Crim JI 11.34 and the trial court was required to give this instruction “because it was applicable, it accurately stated the law, and a party requested that the instruction be read.” An objection by defense counsel would have been meritless. Affirmed.

Mandamus; Rental Props Owners Ass’n of Kent Cnty v Kent Cnty Treasurer; Petition under the Michigan Regulation & Taxation of Marihuana Act (MRTMA) for an ordinance as to marijuana establishments; MCL 333.27956(1); Requirements for a petition; MCL 168.482; MCL 168.544c(1); MCL 168.488; Strict compliance; A “clear legal right” or duty; Political subdivision ballot questions; MCL 168.646a(2); A “ministerial act”; Hillsdale Cnty Sr Servs v Hillsdale Cnty; Remedy for a party seeking to compel action by election officials

Holding that the petition submitted by nonparty-Safer Mt Pleasant did not “strictly comply with the applicable statutory requirements[,]” the court concluded that defendant-city clerk had a duty to reject it, and that plaintiff was entitled to mandamus relief. Thus, it reversed the order denying plaintiff’s request for a mandamus writ, and directed defendant “to immediately rescind her certification of the ballot language to the” county clerk. Plaintiff was a ballot question committee formed to oppose Safer Mt Pleasant’s “proposed initiative to increase the number of marijuana establishments in” the city. The court first concluded that the “petition did not strictly comply with MCL 168.482(4). In the petition, the statement below the petition heading provided: ‘We, the undersigned qualified and registered electors, residents in the City of Mount Pleasant, in the County of Isabella, in the State of Michigan, respectively petition . . . .’ This statement did not indicate from which congressional district the registered electors were from.” In addition, the petition failed to “strictly comply with MCL 168.482(6) and MCL 168.544c(1) because it did not include in the ‘Certificate of Circulator’ the line ‘Circulator—Do not sign or date certificate until after circulating petition.’ Third, the petition did not strictly comply with MCL 168.482(6) and MCL 168.544c(1) because it included an affidavit and notary block that are not included in the petition form in MCL 168.544c(1).” While defendant asserted that she only had a duty to reject the petition if it lacked the required number of signatures, the court found that, pursuant to the last sentence of MCL 333.27956(1), a petition must be rejected if it either “does not comply with MCL 168.488 or . . . is not signed by the requisite number of qualified electors.” Given that the “MRTMA does not indicate who is to examine a petition to make sure that it complies with MCL 168.488 and is signed by the” required number of qualified electors, the court looked to MCL 168.646a(2), and held that “defendant was the person who had to determine whether the petition complied with MCL 168.488 and was signed by the requisite number of qualified electors.” Further, in determining whether it “complied with the statutory provisions made applicable through MCL 168.488, there was no discretion to be exercised by defendant. Strict compliance with those provisions was required.”

Whether a subcontractor owed a duty of care to plaintiff; People v Babcock; W W White Co v LeClaire; Reliance on the Occupational Code; MCL 339.601(3); Claire-Ann Co v Christenson & Christenson, Inc; Common-law duty; Whether plaintiff’s claims were arbitrable; Subject-matter jurisdiction; MCL 600.605; Michigan Uniform Arbitration Act (MUAA); MCL 691.1684; Whether the alternative dispute resolution provision in the general contract was incorporated into the subcontract; Madison Dist Pub Sch v Myers; “Contract documents”; Motion to compel arbitration & dismiss

The court held that plaintiff-county road commission “failed to show the existence of a duty owed to it” by defendant-subcontractor under the Occupational Code or common law. Thus, the trial court erred in denying dismissal of its negligence claim.Also, the MUAA did not deprive the trial court of subject matter jurisdiction and permit “delegation of the determination of jurisdiction to the arbitrator.” Finally, the trial court erred in ruling that “the alternative dispute resolution provision in the general contract was incorporated into the subcontract,” but did not err in denying defendant’s motion to compel and dismiss plaintiff’s breach of contract claims. Thus, in Docket No. 347439, the court reversed the trial court’s orders related to plaintiff’s negligence claim denying defendant’s motion for summary disposition, and defendant’s motion for reconsideration. It remanded for entry of an order granting summary disposition to defendant on this claim. In Docket No. 347712, it affirmed the denial of defendant’s motions to compel arbitration and to dismiss of plaintiff’s breach of contract claims. Plaintiff’s first amended complaint claimed that “as an engineer, mechanical contractor, and/or design professional, defendant ‘had a preexisting, separate, and distinct (from any contractual obligations) duty to perform the Mechanical Work in a manner that protected the safety, health, and welfare of the public, including [plaintiff].’” Plaintiff asserted this duty arose from the Occupational Code, “under which the defendant, as a mechanical contractor, was required to be licensed.” Plaintiff analogized its case to Babcock and W W White Co. However, the court concluded that, under the holding in Claire-Ann Co, plaintiff “is owed no duty under the licensing requirements of the Code, which did not create a duty owed to private parties, like plaintiff.” Its common law duty claim also lacked legal support. Plaintiff argued that “defendant had a common law duty to ‘protect[] the safety, health, and welfare of the public,’ however, the contract itself articulates the duty owed by the defendant to both” the general contractor and plaintiff as the owner. “The subcontract also provided that defendant would perform its work ‘in a prudent and safe manner; maintain a safe and secure workplace; insure the safety of all persons and property of yourself and others; comply with all safety requirements of the Owner.’” Plaintiff failed to “otherwise plead facts to support a duty of care for mechanical contractors to act so as to protect the safety, health, and welfare of the public.”

Motion for case evaluation sanctions; MCR 2.403(O); MCR 2.403(O)(6)(b); The 28-day limitation period for filing a motion for case evaluation sanctions; MCR 2.403(O)(8); “Must”; Braun v York Props, Inc; A trial court’s essential authority to control the proceedings; Maldonado v Ford Motor Co; Reasonableness of fees; MRPC 1.5(a)(1); Smith v Khouri

Holding that the absence of evidence of an allocation of time spent by the parties’ attorneys litigating their case evaluations was fatal to their motions for case evaluation sanctions, the court affirmed the trial court’s denial of both parties’ motions. After two rejected case evaluations—one arising from a complaint and the other from a counterclaim, the parties stipulated that to calculate sanctions, the hours spent by their attorneys would be allocated between litigating the complaint and litigating the counterclaim. But the parties then claimed that this was an impossible task and presented no evidence of the allocation. On appeal, the court rejected defendant-doctor’s argument that the trial court should not have considered plaintiff’s (defendant’s former employer) motion for case evaluation sanctions as it was filed beyond the 28-day limitation period, noting he “had adequate notice that the court intended to consider [plaintiff’s] motion despite that it was filed a few days late." It next found that the trial court correctly determined that both parties were entitled to case evaluation sanctions under the court rule, and did not abuse its discretion by denying their motions for case evaluation sanctions in the absence of any evidence supporting their suggested allocations. Plaintiff “provided no evidence whatsoever with its motion for case evaluation sanctions or thereafter in the trial court. [Defendant] presented significant evidence about the reasonableness of the fee charged by his attorney, but only a single page detailing the hours spent on particular tasks. That document provided no insight into the topics labored over during those hours.” As such, there was no way to determine that 20% of his “attorney’s hours were dedicated to litigating the indemnification issue, let alone to allocate any time to either the complaint or counterclaim on” the clawback issue in this case.

Mandamus; Rental Props Owners Ass’n of Kent Cnty v Kent Cnty Treasurer; Petition under the Michigan Regulation & Taxation of Marihuana Act (MRTMA) for an ordinance as to marijuana establishments; MCL 333.27956(1); Requirements for a petition; MCL 168.482; MCL 168.544c(1); MCL 168.488; Strict compliance; A “clear legal right” or duty; Political subdivision ballot questions; MCL 168.646a(2); A “ministerial act”; Hillsdale Cnty Sr Servs v Hillsdale Cnty; Remedy for a party seeking to compel action by election officials

Holding that the petition submitted by nonparty-Safer Mt Pleasant did not “strictly comply with the applicable statutory requirements[,]” the court concluded that defendant-city clerk had a duty to reject it, and that plaintiff was entitled to mandamus relief. Thus, it reversed the order denying plaintiff’s request for a mandamus writ, and directed defendant “to immediately rescind her certification of the ballot language to the” county clerk. Plaintiff was a ballot question committee formed to oppose Safer Mt Pleasant’s “proposed initiative to increase the number of marijuana establishments in” the city. The court first concluded that the “petition did not strictly comply with MCL 168.482(4). In the petition, the statement below the petition heading provided: ‘We, the undersigned qualified and registered electors, residents in the City of Mount Pleasant, in the County of Isabella, in the State of Michigan, respectively petition . . . .’ This statement did not indicate from which congressional district the registered electors were from.” In addition, the petition failed to “strictly comply with MCL 168.482(6) and MCL 168.544c(1) because it did not include in the ‘Certificate of Circulator’ the line ‘Circulator—Do not sign or date certificate until after circulating petition.’ Third, the petition did not strictly comply with MCL 168.482(6) and MCL 168.544c(1) because it included an affidavit and notary block that are not included in the petition form in MCL 168.544c(1).” While defendant asserted that she only had a duty to reject the petition if it lacked the required number of signatures, the court found that, pursuant to the last sentence of MCL 333.27956(1), a petition must be rejected if it either “does not comply with MCL 168.488 or . . . is not signed by the requisite number of qualified electors.” Given that the “MRTMA does not indicate who is to examine a petition to make sure that it complies with MCL 168.488 and is signed by the” required number of qualified electors, the court looked to MCL 168.646a(2), and held that “defendant was the person who had to determine whether the petition complied with MCL 168.488 and was signed by the requisite number of qualified electors.” Further, in determining whether it “complied with the statutory provisions made applicable through MCL 168.488, there was no discretion to be exercised by defendant. Strict compliance with those provisions was required.”

Whether a subcontractor owed a duty of care to plaintiff; People v Babcock; W W White Co v LeClaire; Reliance on the Occupational Code; MCL 339.601(3); Claire-Ann Co v Christenson & Christenson, Inc; Common-law duty; Whether plaintiff’s claims were arbitrable; Subject-matter jurisdiction; MCL 600.605; Michigan Uniform Arbitration Act (MUAA); MCL 691.1684; Whether the alternative dispute resolution provision in the general contract was incorporated into the subcontract; Madison Dist Pub Sch v Myers; “Contract documents”; Motion to compel arbitration & dismiss

The court held that plaintiff-county road commission “failed to show the existence of a duty owed to it” by defendant-subcontractor under the Occupational Code or common law. Thus, the trial court erred in denying dismissal of its negligence claim.Also, the MUAA did not deprive the trial court of subject matter jurisdiction and permit “delegation of the determination of jurisdiction to the arbitrator.” Finally, the trial court erred in ruling that “the alternative dispute resolution provision in the general contract was incorporated into the subcontract,” but did not err in denying defendant’s motion to compel and dismiss plaintiff’s breach of contract claims. Thus, in Docket No. 347439, the court reversed the trial court’s orders related to plaintiff’s negligence claim denying defendant’s motion for summary disposition, and defendant’s motion for reconsideration. It remanded for entry of an order granting summary disposition to defendant on this claim. In Docket No. 347712, it affirmed the denial of defendant’s motions to compel arbitration and to dismiss of plaintiff’s breach of contract claims. Plaintiff’s first amended complaint claimed that “as an engineer, mechanical contractor, and/or design professional, defendant ‘had a preexisting, separate, and distinct (from any contractual obligations) duty to perform the Mechanical Work in a manner that protected the safety, health, and welfare of the public, including [plaintiff].’” Plaintiff asserted this duty arose from the Occupational Code, “under which the defendant, as a mechanical contractor, was required to be licensed.” Plaintiff analogized its case to Babcock and W W White Co. However, the court concluded that, under the holding in Claire-Ann Co, plaintiff “is owed no duty under the licensing requirements of the Code, which did not create a duty owed to private parties, like plaintiff.” Its common law duty claim also lacked legal support. Plaintiff argued that “defendant had a common law duty to ‘protect[] the safety, health, and welfare of the public,’ however, the contract itself articulates the duty owed by the defendant to both” the general contractor and plaintiff as the owner. “The subcontract also provided that defendant would perform its work ‘in a prudent and safe manner; maintain a safe and secure workplace; insure the safety of all persons and property of yourself and others; comply with all safety requirements of the Owner.’” Plaintiff failed to “otherwise plead facts to support a duty of care for mechanical contractors to act so as to protect the safety, health, and welfare of the public.”

Auto negligence; Summary disposition before the completion of discovery; Ordinary care in operating a motor vehicle; Jenkins v Bentley; Personal representative (PR)

The court held that nothing suggested that further discovery would stand a fair chance of uncovering factual support for plaintiff-PR’s position, and her claim that discovery was premature was meritless. Also, there was no question of material fact that defendant-Salvaggio was not negligent in his operation of the motor vehicle, and the trial court properly granted summary disposition to defendants. Plaintiff argued that the trial court erred by granting defendants’ summary disposition motion before the close of discovery. The parties did not dispute that all the fact witnesses “had been deposed and that the video-recording of the accident fully depicted what happened.” But plaintiff contended that “summary disposition was premature because she had yet to obtain ‘expert analysis of what Salvaggio could see, whether [decedent-B’s] body was visible, and other key facts in the negligence analysis.’” However, plaintiff offered “no independent evidence to suggest that these were disputed material issues.” Rather, she relied “on mere assertions that these issues were in dispute, and bases that assertion on apparent speculation that unspecified experts would testify to that.” Further, the court held that defendants “presented sufficient evidence to establish that Salvaggio exercised ordinary and reasonable care and caution in his operation of the truck. The video shows that, while [B] was sleeping underneath the back-passenger tires of the truck, Salvaggio came out to the truck and got in the driver’s side. Salvaggio averred that he checked the mirrors and the traffic on the nearby street behind him, but did not see [B] at any time. Salvaggio then put the truck into reverse, and the video shows the truck reversing, seemingly running over [B] who was asleep under the back-passenger tires, then pulling forward. [B’s] body becomes visible in the video as the truck moves forward into the parking lot.” The video then showed “the truck stop, and Salvaggio gets out and goes to [B]. After a brief moment, Salvaggio runs into the store, and 911 received a call from Salvaggio shortly thereafter. This evidence clearly established that Salvaggio was not negligent in his operation of the truck. In response, plaintiff did not produce any evidence tending to suggest that Salvaggio failed to exercise ordinary and reasonable care and caution in his operation of the truck.” Affirmed.

Termination under §§ 19b(3)(c)(i), (g), & (j); A parent’s failure to comply with the parent-agency agreement as evidence of failure to provide proper care & custody for the child; In re JK; Best interests of the children; MCL 712A.19b(5); In re Olive/Metts Minors

Holding that multiple statutory grounds were met, and that termination was in the children’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated “based on her continued substance abuse and lack of sufficient progress in various services to address other areas of concern.” On appeal, the court rejected her argument that the DHHS failed to prove a statutory ground for termination. As to § (c)(i), “[g]iven the slow progress respondent made through services, it was unlikely that” she could rectify the conditions leading to adjudication within a reasonable time. In addition, as to § (g), “[g]iven respondent’s continuing struggle with substance abuse, fluctuating emotional stability, and inability to understand the children’s needs, there is no likelihood that respondent would be able to provide proper care and custody within a reasonable time.” Further, as to § (j), there was a high probability that the children “would again be placed in danger of physical and emotional harm if returned to respondent’s care.” The court also rejected her claim that termination was not in the children’s best interests. They “grew up in a home full of domestic violence and drug use. This left them emotionally scarred and traumatized.” Upon their removal, they “exhibited concerning behaviors and indications of trauma.” However, respondent “never truly acknowledged her role in harming her children and never gained a full understanding of their needs. She continued to feed into their fears of their father and caused them anxiety.” Moreover, she “remained unable to provide permanence for her children in a safe and stable household. [She] herself remained emotionally unstable after 17 months of treatment and had yet to achieve sobriety. She had difficulty maintaining employment and had not secured housing.”