Judicial estoppel; Paschke v Retool Indus; A bankruptcy debtor’s duty to disclose all of his or her assets; Spohn v Van Dyke Pub Sch; Application of judicial estoppel in bankruptcy proceedings

Holding that the trial court did not err in finding the elements of judicial estoppel were met, or in its application of the doctrine, the court affirmed its grant of summary disposition for defendants-driver and employer. Plaintiff sued defendants for injuries she suffered when the driver rear-ended her. However, she failed to notify the court in her separate bankruptcy case of her potential claim. The trial court granted summary disposition for defendants on the basis of judicial estoppel. On appeal, the court agreed with the trial court. First, when she filed suit against defendants “she ‘assumed a position that was contrary to the one that she asserted under oath at the bankruptcy proceedings.’” And the fact that her answer “on the bankruptcy questionnaire, at the time of filing, was truthful does not mean that her failure to disclose the potential negligence claim once the accident occurred was excusable or excepts her from the application of judicial estoppel.” Second, the bankruptcy court, “relying on plaintiff’s representations in her bankruptcy filing, adopted the contrary position—that there were no other potential claims—when it adopted plaintiff’s bankruptcy petition and plan.” Lacking all of the relevant information, it “was unable to make a proper determination of how to proceed and the creditors received nothing and were given no additional options, and were further precluded from pursuing their interests since plaintiff’s bankruptcy filing imposed an automatic stay preventing the creditors from enforcing their rights against plaintiff.” Third, the trial court did not err by finding plaintiff “had knowledge of the factual basis of the undisclosed claim, and under her continuing duty to disclose, should have amended her bankruptcy filing to reflect that knowledge.” In addition, the evidence suggested she had a motive for concealment, and did not support a finding of an absence of bad faith. Finally, the court noted that “defendants’ lack of involvement in the bankruptcy proceedings” and plaintiff’s “familiarity with the legal field” were irrelevant, and that “plaintiff’s creditors may still pursue payment from plaintiff, regardless of the dismissal of the civil litigation in favor of defendants, without the restrictions imposed by the Chapter 13 bankruptcy plan limiting payment or a stay of proceedings.”

Sufficiency of the evidence; Using a computer to commit a crime; MCL 752.796(1) & (3); Effect of the jury acquitting defendant of child sexually abusive activity; Inconsistent verdicts; Accosting a minor for immoral purposes; MCL 750.145a; “Or”; People v Kowalski; Disseminating sexually explicit matter to a minor; MCL 722.675; Ineffective assistance of counsel; Failure to investigate or adequately prepare; Matters of trial strategy; Sentencing; Presumptive proportionality of a within guidelines sentence; Motion to remand for further factual development of the record; MCR 7.211(C)(1)(a)(ii)

Holding that there was sufficient evidence to support defendant’s convictions of using a computer to commit a crime, accosting a minor for immoral purposes, and disseminating sexually explicit matter to a minor, and rejecting his ineffective assistance of counsel claims, the court affirmed. It noted that MCL 752.796(1) “imposes criminal liability for not only committing, but also attempting to commit, conspiring to commit, or soliciting another person to commit the underlying offense.” The complainant here “testified that defendant described his sexual dreams involving her and her mother during a video chat. He also mentioned that he had engaged in a ‘mother/daughter thing’ before, which [she] understood to mean that defendant ‘had sexual intercourse with’ the ‘mother and daughter of someone else.’” In addition, she testified that around the time he “told her about his dreams, her mother said that ‘she lost her virginity to a[n] older man.’” The complainant testified about actions by her mother as the video chat with defendant continued, and that her mother took her the next day to meet him “at a bus stop. The three proceeded to the motel, where defendant . . . offered the complainant marijuana, displayed pornography, and engaged in other behavior.” The court held that “a rational trier of fact could have found that defendant attempted, conspired, or solicited the complainant’s mother to commit the underlying offense of child sexually abusive activity.” That the jury acquitted him of that underlying “charge did not disturb its ability to find defendant guilty of using a computer for that purpose.” As to the accosting a minor for an immoral purpose conviction, although there was no evidence he “intended to force the complainant to engage in a proscribed sexual act, there was sufficient evidence for a rational trier of fact to conclude that defendant accosted, enticed, or encouraged her with the intent to induce her to engage in such an act.” As to disseminating sexually explicit matter to a minor, the court found that the evidence he “persisted in displaying pornography” allowed the jury to infer that he “intended to exhibit or present a performance of pornography to the complainant.”

Search & seizure; Motion to suppress evidence; Whether defendant was seized for Fourth Amendment purposes when a deputy parked his patrol car 10 feet away from defendant’s car at a 45-degree angle; United States v Carr (6th Cir)

The court held that the arresting deputy (P) “did not seize defendant for Fourth Amendment purposes when he parked his patrol vehicle behind defendant’s vehicle, 10 feet away and at a 45-degree angle.” Thus, it reversed the grant of defendant’s motions to suppress evidence and to dismiss the charges against him, and remanded. The trial court’s findings as to how P parked his patrol vehicle and “that, if defendant had reversed his vehicle straight back, he would have hit” P’s patrol vehicle were supported by P’s testimony and the patrol vehicle’s video of the stop. The trial court further found that “defendant’s only means to exit [was] driving over the grass in front of him.” This finding appeared to be “based on defense counsel’s argument at the hearing in which he asserted that defendant could only exit the parking lot by driving over the grass in front of him. This assertion was unsupported by any evidence, however. In fact, the” record evidence only supported a contrary conclusion. P testified, “If [defendant] would have turned his wheel as he was backing out, he would have cleared my vehicle.” In addition, as the only vehicles in the parking lot were P’s patrol vehicle and defendant’s vehicle, and based on the trial court’s finding that P “parked behind defendant’s vehicle, 10 feet away and at a 45-degree angle, it seems common sense that defendant would have been able to have clear the deputy’s vehicle if defendant ‘turned his wheel as he was backing out.’” Thus, the court was “left with a definite and firm conviction that the trial court made a mistake when it found that ‘defendant’s only means to exit [was] driving over the grass in front of him.’” The question then became whether P’s “conduct of partially obstructing defendant’s ability to move his vehicle” constituted a seizure. Finding Carr instructive, the court determined that because defendant could exit his parking space, with some maneuvering, the patrol vehicle’s position “alone did not turn this encounter into a seizure.” The court then considered “whether there was ‘other coercive behavior’ by [P] that turned the encounter into a seizure for Fourth Amendment purposes” and it found on the record before it that there was not.

Sufficiency of the evidence; Kidnapping; MCL 750.349(1)(c); People v Anderson; Child sexually abusive activity; MCL 750.349(1)(f); “Restrain”; MCL 750.349(2); Other acts evidence; MRE 404(b); MCL 768.27a; People v Jackson; Relevance; MRE 401; People v Zitka; Unfair prejudice; MRE 403; People v Watkins; Amendment of the information; MCR 6.112(H); Unfair surprise; People v Goecke; Joinder; MCR 6.120(B)

The court held that the evidence was sufficient to convict defendant of kidnapping, and the trial court did not abuse its discretion by allowing the prosecution to admit other acts evidence, by granting its motion to amend the information, or by joining the cases. Defendant was convicted in these consolidated appeals of indecent exposure by a sexually delinquent person and kidnapping arising out of his behavior involving two young victims, A and F. On appeal, the court rejected his argument that there was insufficient evidence to convict him of kidnapping because he did not restrain A for a sufficient period of time, and that the prosecution failed to prove intent because he claimed his restraint of A was not related or incidental to his indecent exposure incident also involving A. “Because a period of restraint ‘does not have to exist for any particular length of time,’ there is no merit to defendant’s argument that the supposedly ‘brief’ duration of his restraint of [A] ‘was insufficient to support a conviction involving this serious charge.’” And the prosecution is not required to prove “the restraint was ‘related or incidental’ to a criminal act.” As to the admission of other acts evidence, the court found that MDOC reports about his behavior toward female staff were substantially similar to the victims’ trial testimonies, that his 1979 conviction on a similar charge comprised a similar scheme, plan, or system, and that the trial court did not err by admitting evidence of his prior CSC II convictions. The court next rejected his contention that the trial court abused its discretion by allowing the prosecution to amend the information to change the date of the offense, noting he “was not surprised or unfairly prejudiced by the amendment . . . because there was never any substantive confusion about when the indecent exposure involving A[] was alleged to have occurred, time is not of the essence to a charge of indecent exposure, [he] actually cross-examined A[] thoroughly regarding the incident of indecent exposure, and nothing about the date discrepancy calls the plausibility of the charge into doubt.” Finally, the court held that “the trial court did not abuse its discretion in joining the cases because evidence of [his] conduct was admissible evidence in the respective cases, and the bench trial reduce[d] the likelihood that the trier of fact would have misused the evidence.” Affirmed.

Ineffective assistance of counsel; Failure to move to suppress the evidence of the handgun seized because it was the fruit of an illegal search; Searches & seizures; Legality of the inventory search; Right to privacy in a backpack located in the car of another; Distinguishing People v Mead

The court affirmed “because the evidence was discovered during an inventory search that was consistent with the police department’s standard policy and there was no evidence that other options provided by the policy were practically available. Further, there was no evidence that the search was actually an attempt to obtain evidence of criminal activity rather than a standard inventory search.” Thus, defendant's claim of ineffective assistance of counsel failed. He was convicted of CCW, FIP, and felony-firearm, second offense. He claimed that counsel was “ineffective for failing to move to suppress the evidence of the handgun seized because it was the fruit of an illegal search.” The court determined that the “officers’ decision to impound the vehicle was made in accordance with the department’s policy and their decision not to leave the vehicle on the side of Ford Road or suggest to the driver that he contact someone to pick up the vehicle did not render the subsequent inventory search unconstitutional.” Defendant also argued that the inventory search was pretext for a criminal investigation. However, the record did “not support a conclusion that the officers intended to use the inventory search as cover for an illegal search. The encounter started as an investigation of the vehicle’s driver for suspected OWI. The driver was confirmed to be operating while intoxicated and arrested.” The court held that “consistent with the department’s policy, the constitutionality of which is not challenged, the police had authority at that point to impound the vehicle and conduct an inventory search. There is no suggestion in the record of any ulterior motive for the search.” Defendant also argued that he had a right to privacy in his backpack located in the car of another under Mead. However, his reliance on Mead was misplaced because it did not pertain to the substantive question of whether the police conducted a proper inventory search. Defendant failed “to establish that his trial counsel’s performance fell below objective standards of reasonableness by failing to move to exclude the handgun found in” his backpack.

Insurer priority dispute; Role of the Michigan Property & Casualty Guaranty Association (MPCGA); MCL 500.7911; Young v Shull; Auto Club Ins Ass’n v Meridian Mut Ins Co; “Covered claim”; MCL 500.7925(1); MCL 500.7931(3); Purpose of the Guaranty Act; Yetzke v Fausak; Coordination of benefits under the Worker’s Disability Compensation Act; MCL 418.354; Smitter v Thornapple Twp; Motion for administrative stay under MCL 418.841(1); Westchester Fire Ins Co v Safeco Ins Co

[This opinion was previously released as an unpublished opinion on 11/9/21.] The court held that the trial court properly ruled that appellant-Home-Owners was the first-priority insurer in this matter and that appellee-MPCGA was the insurer of last resort. It also held that the trial court did not err by denying Home-Owners’ motion to stay. The insured was injured while getting out of a semitruck during his employment. He was receiving workers’ compensation benefits when his employer’s workers’ compensation carrier became insolvent. The MPCGA assumed responsibility for his claim and refused to pay him benefits under the worker’s compensation policy, instead finding that Home-Owners, as the no-fault insurer of the semitruck, had priority. The trial court granted summary disposition for the MPCGA, agreeing that Home-Owners had priority, and that its motion to stay the case was moot. On appeal, the court found Home-Owners was first in priority, noting that when the workers’ compensation carrier became insolvent and the insured could no longer collect benefits under that policy, he “could turn to Home-Owners’ no-fault insurance policy for benefits. In other words, the MPCGA was entitled to a ‘credit,’ i.e., a reduction in its obligation, to the extent Home-Owners was available to pay” the insured benefits. “Simply put, the MPCGA can only be an insurer of last resort and, therefore, cannot be the first-priority insurer ahead of” Home-Owners. In addition, this decision precluded double recovery by the insured. The court also rejected Home-Owners’ argument that the trial court erred by denying its motion for an administrative stay, finding the issue was “not within the exclusive jurisdiction of the Board of Magistrates.” Affirmed.

Third-party claim for no-fault benefits; Motion for reconsideration; MCR 2.119(F)(3); Laches; Williamstown Twp v Sandalwood Ranch, LLC; Whether services were lawfully rendered; MCL 500.3157; Cherry v State Farm Mut Auto Ins Co; “Person”; MCL 500.3157(15)(h); Licensing under MCL 333.17748(1); “Manufacturer”; MCL 333.17706(1); “Wholesale distributor”; MCL 333.17709(7); Allowable expenses; MCL 500.3107(1)(a); Whether an allowable expense is compensable; Nasser v Auto Club Ins Ass’n; Whether an expense is “reasonably necessary”; ZCD Transp, Inc v State Farm Mut Auto Ins Co

The court held that the trial court did not err by concluding that intervening plaintiff-service provider (EQMD) did not provide a compensable no-fault benefit, that it correctly granted defendant-insurer (State Farm) summary disposition, and that it did not abuse its discretion by denying EQMD’s motion for reconsideration. EQMD intervened in the underlying no-fault case seeking payment for services provided to plaintiffs during their treatment for injuries sustained in a motor-vehicle accident. The trial court concluded that EQMD did not provide a compensable no-fault benefit and dismissed its claims against State Farm. It also granted State Farm summary disposition of EQMD’s claims based upon the doctrine of laches. On appeal, the court rejected EQMD’s argument that the trial court abused its discretion by denying reconsideration of its decision to grant summary disposition based on laches. The trial court “repeatedly told EQMD’s attorney he had two weeks to file EQMD’s intervening complaint. EQMD failed to do so.” In addition, EQMD “controlled the late entry of the order granting intervention.” Further, State Farm “sufficiently demonstrated prejudice from EQMD’s late filing of its intervening complaint.” The court also rejected EQMD’s claim that the trial court improperly granted summary disposition when it found EQMD provided unlicensed services under the Public Health Code, which were rendered unlawfully and, thus, noncompensable under the No-Fault Act. “EQMD failed to establish that it did not serve as a manufacturer or wholesale distributor requiring licensure in Michigan, and summary disposition would have been proper on this ground.” Given EQMD’s “admissions, and the testimony of its president, EQMD failed to carry its burden of proving the reasonable necessity of its service or that it provided such for an injured person’s care, recovery, or rehabilitation.” Affirmed.

The Michigan Regulation & Taxation of Marihuana Act (MRTMA); Summary disposition for lack of subject-matter jurisdiction; Whether defendant-Village’s licensing decision was a quasi-judicial act; Natural Res Def Council v Department of Envtl Quality; Circuit courts’ original jurisdiction; MCL 600.605; Facial & as-applied challenges to an ordinance; Analogy to zoning matters

Concluding that defendant-Village’s marijuana business licensing decision was not quasi-judicial and that it was not analogous to zoning decisions, the court held that the circuit court erred in dismissing plaintiff’s facial and as-applied challenges to the applicable ordinance for lack of subject-matter jurisdiction. Thus, it reversed the order granting defendants summary disposition under MCR 2.116(C)(4) and remanded for the adjudication of plaintiff’s claims. After the MRTMA was enacted, the Village adopted an ordinance that “authorized two state-licensed marijuana businesses in the Village, and set forth the application requirements. A three-person ad hoc committee” was designated to consider the applications and recommend applicants for approval by the Village Council to receive a license. Plaintiff and the defendants-businesses applied for one or both of the licenses. The ad hoc committee recommended the licenses go to defendants-businesses. Plaintiff filed this suit, raising facial and as-applied challenges to the ordinance in Count I of its complaint. In concluding that the circuit court erred in determining “the Village’s licensing decision was a quasi-judicial act[,]” the court noted that the Village’s procedure for making “its licensing decision did not require or employ any of the hallmarks of the court procedures identified in” Natural Res Def Council. It further noted that “there are no constitutional or statutory provisions denying circuit courts’ jurisdiction over the class of cases that challenges the validity of a local ordinance, and circuit courts have frequently adjudicated cases involving facial challenges and as-applied challenges to local ordinances.” Thus, it concluded that the circuit court here “had original, subject-matter jurisdiction over plaintiff’s complaint.” In addition, its analysis that the “case was analogous to a zoning case and that it should be viewed through the lens of the procedures established to deal with zoning matters was flawed.” Rather, this case involved “a municipality exercising statutorily granted authority to draft, adopt, and enforce ordinances in compliance with the MRTMA. It was erroneous for the circuit court to apply zoning case procedures to its analysis” here.

Third-party claim for no-fault benefits; Motion for reconsideration; MCR 2.119(F)(3); Laches; Williamstown Twp v Sandalwood Ranch, LLC; Whether services were lawfully rendered; MCL 500.3157; Cherry v State Farm Mut Auto Ins Co; “Person”; MCL 500.3157(15)(h); Licensing under MCL 333.17748(1); “Manufacturer”; MCL 333.17706(1); “Wholesale distributor”; MCL 333.17709(7); Allowable expenses; MCL 500.3107(1)(a); Whether an allowable expense is compensable; Nasser v Auto Club Ins Ass’n; Whether an expense is “reasonably necessary”; ZCD Transp, Inc v State Farm Mut Auto Ins Co

The court held that the trial court did not err by concluding that intervening plaintiff-service provider (EQMD) did not provide a compensable no-fault benefit, that it correctly granted defendant-insurer (State Farm) summary disposition, and that it did not abuse its discretion by denying EQMD’s motion for reconsideration. EQMD intervened in the underlying no-fault case seeking payment for services provided to plaintiffs during their treatment for injuries sustained in a motor-vehicle accident. The trial court concluded that EQMD did not provide a compensable no-fault benefit and dismissed its claims against State Farm. It also granted State Farm summary disposition of EQMD’s claims based upon the doctrine of laches. On appeal, the court rejected EQMD’s argument that the trial court abused its discretion by denying reconsideration of its decision to grant summary disposition based on laches. The trial court “repeatedly told EQMD’s attorney he had two weeks to file EQMD’s intervening complaint. EQMD failed to do so.” In addition, EQMD “controlled the late entry of the order granting intervention.” Further, State Farm “sufficiently demonstrated prejudice from EQMD’s late filing of its intervening complaint.” The court also rejected EQMD’s claim that the trial court improperly granted summary disposition when it found EQMD provided unlicensed services under the Public Health Code, which were rendered unlawfully and, thus, noncompensable under the No-Fault Act. “EQMD failed to establish that it did not serve as a manufacturer or wholesale distributor requiring licensure in Michigan, and summary disposition would have been proper on this ground.” Given EQMD’s “admissions, and the testimony of its president, EQMD failed to carry its burden of proving the reasonable necessity of its service or that it provided such for an injured person’s care, recovery, or rehabilitation.” Affirmed.

Judicial estoppel; Paschke v Retool Indus; A bankruptcy debtor’s duty to disclose all of his or her assets; Spohn v Van Dyke Pub Sch; Application of judicial estoppel in bankruptcy proceedings

Holding that the trial court did not err in finding the elements of judicial estoppel were met, or in its application of the doctrine, the court affirmed its grant of summary disposition for defendants-driver and employer. Plaintiff sued defendants for injuries she suffered when the driver rear-ended her. However, she failed to notify the court in her separate bankruptcy case of her potential claim. The trial court granted summary disposition for defendants on the basis of judicial estoppel. On appeal, the court agreed with the trial court. First, when she filed suit against defendants “she ‘assumed a position that was contrary to the one that she asserted under oath at the bankruptcy proceedings.’” And the fact that her answer “on the bankruptcy questionnaire, at the time of filing, was truthful does not mean that her failure to disclose the potential negligence claim once the accident occurred was excusable or excepts her from the application of judicial estoppel.” Second, the bankruptcy court, “relying on plaintiff’s representations in her bankruptcy filing, adopted the contrary position—that there were no other potential claims—when it adopted plaintiff’s bankruptcy petition and plan.” Lacking all of the relevant information, it “was unable to make a proper determination of how to proceed and the creditors received nothing and were given no additional options, and were further precluded from pursuing their interests since plaintiff’s bankruptcy filing imposed an automatic stay preventing the creditors from enforcing their rights against plaintiff.” Third, the trial court did not err by finding plaintiff “had knowledge of the factual basis of the undisclosed claim, and under her continuing duty to disclose, should have amended her bankruptcy filing to reflect that knowledge.” In addition, the evidence suggested she had a motive for concealment, and did not support a finding of an absence of bad faith. Finally, the court noted that “defendants’ lack of involvement in the bankruptcy proceedings” and plaintiff’s “familiarity with the legal field” were irrelevant, and that “plaintiff’s creditors may still pursue payment from plaintiff, regardless of the dismissal of the civil litigation in favor of defendants, without the restrictions imposed by the Chapter 13 bankruptcy plan limiting payment or a stay of proceedings.”

The Michigan Regulation & Taxation of Marihuana Act (MRTMA); Summary disposition for lack of subject-matter jurisdiction; Whether defendant-Village’s licensing decision was a quasi-judicial act; Natural Res Def Council v Department of Envtl Quality; Circuit courts’ original jurisdiction; MCL 600.605; Facial & as-applied challenges to an ordinance; Analogy to zoning matters

Concluding that defendant-Village’s marijuana business licensing decision was not quasi-judicial and that it was not analogous to zoning decisions, the court held that the circuit court erred in dismissing plaintiff’s facial and as-applied challenges to the applicable ordinance for lack of subject-matter jurisdiction. Thus, it reversed the order granting defendants summary disposition under MCR 2.116(C)(4) and remanded for the adjudication of plaintiff’s claims. After the MRTMA was enacted, the Village adopted an ordinance that “authorized two state-licensed marijuana businesses in the Village, and set forth the application requirements. A three-person ad hoc committee” was designated to consider the applications and recommend applicants for approval by the Village Council to receive a license. Plaintiff and the defendants-businesses applied for one or both of the licenses. The ad hoc committee recommended the licenses go to defendants-businesses. Plaintiff filed this suit, raising facial and as-applied challenges to the ordinance in Count I of its complaint. In concluding that the circuit court erred in determining “the Village’s licensing decision was a quasi-judicial act[,]” the court noted that the Village’s procedure for making “its licensing decision did not require or employ any of the hallmarks of the court procedures identified in” Natural Res Def Council. It further noted that “there are no constitutional or statutory provisions denying circuit courts’ jurisdiction over the class of cases that challenges the validity of a local ordinance, and circuit courts have frequently adjudicated cases involving facial challenges and as-applied challenges to local ordinances.” Thus, it concluded that the circuit court here “had original, subject-matter jurisdiction over plaintiff’s complaint.” In addition, its analysis that the “case was analogous to a zoning case and that it should be viewed through the lens of the procedures established to deal with zoning matters was flawed.” Rather, this case involved “a municipality exercising statutorily granted authority to draft, adopt, and enforce ordinances in compliance with the MRTMA. It was erroneous for the circuit court to apply zoning case procedures to its analysis” here.

Premises liability; Slip & fall; Whether the snow-covered ice was effectively avoidable; Ordinary negligence

The court held that the trial court erred by concluding there was no genuine issue of material fact as to whether the snow-covered ice upon which plaintiff slipped was effectively avoidable. Thus, the order granting summary disposition to defendant-Hannawa was reversed. Also, as it found that plaintiff’s ordinary negligence claim ultimately failed, it affirmed the orders granting summary disposition to defendants-Allenwest and DPM. Allenwest was the owner of a strip mall. Hannawa owned a building that was adjacent to the strip mall. Allenwest contracted with DPM to provide snow-removal services for its property and Hannawa’s property, for which it later billed Hannawa. In 2019, Hannawa’s building was occupied by a nonparty-tenant. Plaintiff was an employee of the tenant. On a January morning, plaintiff slipped on a patch of ice covered with snow and fell on the sidewalk a few feet from the employee entrance. As a result, she fractured her lower left leg, requiring surgery and time off work. The court held that viewing “the evidence in the light most favorable to the plaintiff, reasonable minds could disagree as to whether plaintiff could have avoided the danger of ice and snow at the employee entrance by choosing to use the patient entrances instead.” Further, a reasonable jury could infer that no “alternatives were available that a reasonable individual in the plaintiff’s circumstances would have used to avoid the condition.” Remanded.

Nondomestic ex parte personal protection order (PPO); MCR subchapter 3.700; MCR 3.705 & 3.707; Whether the family court referee had authority to hear a motion to terminate the PPO; MCR 3.215(E); Judicial findings requirement; MCL 600.2950a; MCR 3.705(A)(2); Procedural due process; Bonner v Brighton

Holding that the trial court’s process did not comply with the procedure for nondomestic PPO proceedings required under MCR subchapter 3.700 and that the procedural error violated respondent’s due process rights, the court vacated the orders granting an ex parte PPO and denying his motion to terminate the PPO. It instructed the trial court to amend its nondomestic PPO procedures “consistent with MCR 3.700 and other governing rules consistent with” the court’s opinion. The order granting petitioner’s request for an ex parte PPO “did not include specific findings or reasoning as to why” the trial court issued it, although “judicial findings are statutorily required pursuant to MCL 600.2950a, as well as mandated by” MCR 3.705(A)(2). Given that the case arose from “a nondomestic dispute between neighbors” and there was no domestic relations matter involved, “the trial court plainly erred by allowing the referee to initially hear the PPO proceedings, including respondent’s motion to terminate the PPO, under MCR 3.215. The trial court also erred by denying respondent’s request for a hearing. There is no provision in the court rules or statute that permitted this outcome. There was no basis of authority for the referee to review or provide recommendations on respondent’s motion to terminate the PPO.” Under MCR 3.707(A)(2), the trial court was required to hold a hearing on the motion to terminate the PPO. It denied respondent’s request for one. While it later conducted a “de novo hearing” during a PPO violation hearing, the notice he was given about “the hearing was in relation to the show cause violation hearing, not for a reexamination of the PPO.” Thus, he did not receive “proper notice about the ‘de novo hearing’ on his motion to terminate.” The court found that he “established plain error affecting his substantial rights because the error affected the outcome of the proceedings.” Remanded.

Whether removal of the children from respondent’s care & custody was proper under MCL 712A.13a(9); Factors (a)-(d)

The court affirmed the trial court’s order of removal as to respondent-mother’s two children. They were removed from her custody due primarily to her drug use. She argued the trial court clearly erred by finding that removal was proper under MCL 712A.13a(9). As to factor (a), the trial court’s order referenced her positive drug test for meth “and amphetamine, her unstable home environment, the positive meth[] tests in North Dakota relative to the children that led to child protective proceedings in that state, incidents of domestic violence between respondent and her father, respondent’s minimal participation or refusal to participate in offered services, and her” behavior during a positive drug test. The court held that the trial court did not clearly err “by finding that these grounds established that respondent presented a substantial risk of harm to the children’s lives, physical health, and mental well-being.” As to factor (b), she argued that placing them “with her mother was a suitable alternative to removal. Respondent’s mother, who had resided in North Dakota but was currently staying in Michigan, testified that the children spent approximately half of the time with her and that she was willing to remain in Michigan as long as needed to ensure” they were safe. But there was no testimony as to “whether she was willing to care for” them full-time and she was the subject of a prior “child protective proceeding involving the use of marijuana, and she still occasionally used” it. The record did not support a determination that placing the children with her would be a suitable alternative. As to factor (c), the trial court found that continuing their “residence in respondent’s home was contrary to” their welfare. While she argued that “she complied with services in North Dakota, respondent’s caseworker testified to the contrary. Regardless, to the extent that respondent completed services in North Dakota to address her drug use, she did not benefit from” them as she tested positive for meth and amphetamine here. Further, the caseworker testified that before the positive drug screen, respondent was yelling at one of the children “and was ‘very scattered,’ i.e., she was ‘not making sense talking’ and was ‘just not able to pay attention.’” Thus, there was evidence “she was under the influence of drugs in the presence of one of her children. For these reasons, the trial court did not clearly err by finding that factor (c) was satisfied.” Finally, as to factor (d), it “did not clearly err by finding that consistent with the circumstances, reasonable efforts had been made to prevent or eliminate the need for" the children's removal.