Sentencing; Scoring of OV 1; MCL 777.31(1)(c); People v Brown; Consideration of acquitted conduct; People v Beck; Proportionality of a within-guidelines sentence; Consideration of defendant’s youth; People v Eads; Unusual circumstance to overcome the presumption of proportionality; People v Piotrowski; Consecutive sentencing

Finding no factual basis for the trial court’s scoring of 15 points for OV 1 on remand, the court again vacated defendant’s sentences for first-degree home invasion and conspiracy to commit it and again remanded for resentencing. But it concluded he did “not overcome the presumption that his within-guidelines sentence” for his armed robbery conviction was proportionate. Thus, it affirmed his 180 to 300-month armed robbery sentence. This appeal followed a second remand for resentencing. Defendant was acquitted of other offenses, and in prior appeals the court “vacated both the original sentence and the sentence imposed after the first remand because the trial court impermissibly considered acquitted conduct.” In this appeal, it concluded the trial court’s findings in scoring OV 1 fell short of its prior “directive to identify whether a specific fact or circumstance was relevant to both the acquitted and convicted charges such that the fact or circumstance could properly support points for OV 1. Although the [trial] court acknowledged that it could not rely on [victim-Albert’s] death under Beck and appeared to apply Brown in concluding that ‘the overlap and the relevant conduct’ supported an assessment of 15 points, it failed to articulate what specific overlapping conduct justified that assessment.” Given the court’s prior “holding that ‘defendant simply cannot be held criminally responsible for [Albert’s] death in any way, including at sentencing,’ . . . and the [trial] court’s own finding that no record evidence established that defendant possessed a weapon,” the court could not “discern the factual basis for the 15-point score.” But as to his armed robbery sentence, defendant did not identify any “unusual circumstances rebutting the proportionality presumption.” The court noted that his “lack of criminal history was accounted for in the scoring of the” PRVs. He did not assert “the trial court considered acquitted conduct” in scoring the guidelines for this conviction, or “explain how his acquittals render his within-guidelines sentence disproportionate.” He was 17 at the time of the crimes, and he contended his sentence was “disproportionate because the trial court failed to consider his youth and its attendant circumstances as mitigating factors at sentencing.” But the court held in Piotrowski that the defendant’s age (17 at the time of the crime) did not constitute “an unusual circumstance sufficient to overcome the presumption of proportionality.”

Right to counsel claim waived by express consent; People v Carter; Ineffective assistance of counsel; Abandonment for lack of development; People v Henry

Holding that defendant expressly waived any right-to-counsel objection and abandoned his ineffective-assistance claim, the court affirmed his conviction. He was convicted of malicious destruction of property ($1,000 to $20,000) after scratching a vehicle in a grocery store parking lot. On appeal, the court rejected his argument that he was denied his right to counsel when an associate from appointed counsel’s firm represented him at trial because before jury selection, he agreed on the record to proceed with the associate and signed an order substituting him. “Waiver is ‘the intentional relinquishment or abandonment of a known right[,]’” and having expressly consented, he could not “‘harbor error at trial and then use that error as an appellate parachute.’” The court also rejected his ineffective-assistance claim because he supplied no developed argument or authority, and an “‘appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims[.]’”

Search & seizure; Motion to suppress; Whether the warrant affidavit offered “probable cause” to search defendant’s house; Whether defendant was a “known drug dealer”; Whether there was a “sufficient nexus” between the criminal activity alleged & the house searched; Claim the affidavit was “missing facts”

The court held that the warrant to search defendant-Long’s house was supported by probable cause, noting it has “repeatedly reaffirmed” that a drug transaction outside of a house where one participant walks back into the house satisfies probable cause and justifies a search of the house. Thus, it affirmed the district court’s denial of Long’s motion to suppress. He was observed selling drugs, including a controlled buy. The transactions occurred at two different houses, one of which was his home. A magistrate issued the search warrant at issue for Long’s home. The search revealed evidence of drug trafficking. After he unsuccessfully moved to suppress the results of the search, illegal drugs and firearms, he pled guilty to four federal charges. On appeal, the court held that the district court’s denial of the motion to suppress was consistent with both its “known drug dealer” case precedent and case precedent “about drug transactions right outside a suspect’s home.” It explained that a nexus is established in known drug dealer cases where the address is the suspect’s home and “the suspect is engaging in continual and ongoing drug trafficking operations.” Here, Long had given the address of the house to the parole authority as his home. Also, the affidavit established that his “drug trafficking was ongoing, continuous, and even tied to his home.” The court held that under the “totality of the circumstances, the affidavit established that Long was a known drug dealer engaged in ongoing trafficking operations who lived at the home to be searched, a location where, experience and common sense teaches, evidence was likely to be found. That is quintessential probable cause.” It rejected his argument that he was not a known drug dealer because when the investigation started, law enforcement did not know who he was, noting it has “never held that a drug dealer must be known before an investigation begins.” As to his argument about facts missing from the affidavit, the court reviews affidavits based on what they contain, “not what they lack.” It noted that “while the missing facts Long highlights might, if present, bolster our decision, their absence does not undercut it.”

Child custody; Joint legal custody; Kuebler v Kuebler; Findings on the statutory best-interest factors (MCL 722.23); Factors (b), (c), (h), (j), (k), & (l)

Holding that the trial court did not err in awarding the parties joint legal custody and that its findings on the best-interest factors were not against the great weight of the evidence, the court affirmed. It previously remanded the case “for a determination of proper cause or change in circumstances and a renewed analysis of the best-interest factors in MCL 722.23.” On remand, after an evidentiary hearing “the trial court awarded plaintiff-father and defendant-mother joint legal and physical custody and equal parenting time.” The mother appealed. The court noted that “a 2019 consent order awarded the parties joint legal custody.” Asserting the trial court erred in declining to modify this arrangement, the mother cited “the parties’ consensus that they could not effectively coparent.” The court disagreed. While the record showed “animosity and poor communication, personal discord is not alone a barrier to joint legal custody.” The court noted there was “no evidence of disputes over school enrollment, medical treatment, dietary requirements, or religious upbringing. And the sole legal-custody dispute—the therapist selection—was successfully resolved with court involvement.” Thus, the record did not support her “contention that the parties cannot coparent. Rather, it shows that, despite their hostility, they generally managed to cooperate on important issues affecting the children’s welfare.” She also challenged the trial court’s findings on best-interest factors (b), (c), (h), (j), (k), and (l). The court concluded that the findings on (b) and (c) were supported by both parties’ testimony. The record also supported the trial court’s finding that (h) favored them equally. And the court likewise determined that its findings on (j), (k), and (l) were not against the great weight of the evidence. The “trial court did not penalize mother for taking reasonable actions taken to protect the children from domestic violence by father. Rather, it found her actions unreasonable because there was no evidence that father abused the children.”

Removal; Motion to reopen removal proceedings to seek relief allowing petitioner to voluntarily depart; 8 USC § 1229c(b)(1); Requirements; § 1229c(b)(1)(A)-(D); The court’s jurisdiction to review denial of a request for voluntary departure; §§ 1229c(f) & 1252(a)(2)(B)(i); Motions to reopen; § 1229a(c)(7)(A)

The court denied petitioner-Pastor-Hernandez’s petition for review where he failed to include any factual details to support his conclusory statement that he was in the process of seeking a new passport, thus failing to establish a prima facie case for voluntary departure. He was ordered removed from the United States, but he moved to reopen proceedings so that he could leave voluntarily. This would require that he show that was able to travel to Guatemala (the “means to depart” requirement in § 1229c(b)(1)). This in turn would require him to have a Guatemalan passport, which he did not possess. He argued that he was in the process of obtaining one but did not offer any evidence to support that claim. As a result, the Board of Immigration Appeals denied his motion to reopen. The court noted that his petition to review required it “to describe the interaction between two immigration provisions: the provision governing voluntary departure and the provision governing motions to reopen.” Under the voluntary departure provision, the court cannot review “any factual findings underlying the denial or any discretionary decision that an immigrant did not warrant this relief.” But the court held that “Pastor-Hernandez’s challenge to the denial of his motion to reopen does not raise the type of question that we would lack jurisdiction to consider. For example, [he] does not challenge the Board’s factual finding that he did not have a valid Guatemalan passport when he filed his motion.” In addition, the “Board did not deny his request for voluntary departure as a discretionary matter.” Rather, he raised “a ‘question[] of law’ about the Board’s ruling.” He contended it “committed a purely legal error because it required him to conclusively prove (not merely create a prima facie case) that he could meet this means-to-depart element at the motion-to-reopen stage.” The court rejected this characterization of the Board’s findings where it specifically stated that he had to “establish only ‘prima facie eligibility for the relief sought’ at this stage.” The court also found that the Board’s resolution did not reveal any mistake of law where Pastor-Hernandez’s “failure to submit basic ‘evidence’ in support of his claim ‘raised questions about whether’ he could ultimately meet the requirements for voluntary departure.” Thus, the Board “did not commit a legal error by finding he did not establish a prima facie case even assuming Pastor-Hernandez’s view that he could rely on future facts.”

Medical malpractice damages limitation; MCL 600.1482; “Phantom damages”; Greer v Advantage Health; Remittitur standards; MCR 2.611; Palenkas v Beaumont Hosp

The court held that MCL 600.1482(1)(a) operates at the post-verdict stage to limit recovery for past medical expenses to “actual damages for medical care,” but affirmed the judgment because the jury’s award was supported by the record and remittitur was properly denied. The decedent died following a tracheostomy accident during dialysis at defendant-hospital. The jury found defendants negligent and awarded $1,218,118.63 in economic damages, allocating 65% fault to defendants and 35% to the decedent. Relying on MCL 600.1482, defendants argued the verdict impermissibly included “phantom damages,” amounts billed but not paid. The trial court entered judgment for $962,624.72 as proposed by plaintiff and denied defendants’ motion for remittitur. On appeal, the court analyzed the 2016 amendment codified at MCL 600.1482, enacted to close what was described as a “loophole that permits a plaintiff to recover for medical expenses never owed or paid.” The court explained that although subsection (1)(b) bars admission of such evidence, subsection (1)(a) separately applies at the post-verdict stage to ensure recoverable damages do not exceed actual payments or liabilities. The court reconciled MCL 600.1482 with MCL 600.6306a, holding that “the sound interpretation of the statutory scheme is to recognize MCL 600.1482(1)(a) as applicable at the post-verdict stage.” It rejected defendants’ contention that the verdict represented only unpaid medical bills, observing that they had drafted the verdict form and that “‘any attempt to parse the jury verdict . . . would be pure speculation[.]’” A letter showing $1.4 million in billings and $188,734 in “conditional payments” constituted evidence of “any remaining dollar amount that the plaintiff is liable to pay for the medical care.” Because defendants presented no proof negating liability for those amounts, “the trial court was tasked with determining whether the evidence substantiated plaintiff’s claim of incurred damages” and found sufficient support. The court concluded that the award “fell reasonably within the range corroborated by the evidence” and was not excessive, emphasizing that “the power of remittitur should be exercised with restraint.”

Unclean-hands bar to rescission; Equities balancing; Attempted amendment; Standing under the Uniform Voidable Transactions Act (UVTA); Futility of amendment; MCR 2.118(A)(4)

Holding that plaintiff’s equitable rescission claim was barred by unclean hands and that his proposed UVTA amendment was futile, the court affirmed summary disposition for defendants. Plaintiff deeded two houses to defendants (his step-children) in 2018; he later sued to rescind, alleging he transferred them to “‘avoid disclosure to a potential creditor.’” The trial court granted defendants judgment under MCR 2.116(I)(2) and denied plaintiff’s motion to amend. On appeal, the court agreed with the trial court that equity would not aid a party who admits he acted to “conceal and protect [his] assets from potential creditors[,]” noting courts “‘do not lend [their] aid … to assist law violators.’” It also held the amendment was futile: the UVTA provides relief only “as to a creditor,” and plaintiff was not a creditor. He also failed to attach a written proposed pleading as required by MCR 2.118(A)(4).

Appellate jurisdiction & service of claim of appeal; MCR 7.204(B)(1) & (F)(2); Michigan Employment Sec Comm’n v Wayne State Univ; Res judicata; Adair v State; Prior dismissal “without prejudice” & effect under MCR 2.504(B)(3); Washington v Sinai Hosp of Greater Detroit

Holding that res judicata did not bar this third premises-liability action because the prior dismissal was expressly “without prejudice,” the court vacated summary disposition for defendant and remanded for further proceedings. Plaintiff-estate alleged the victim slipped on feces in a shared hospital bathroom while an inpatient. After a first suit was dismissed without prejudice for lack of service and a second suit was dismissed without prejudice when the trial court characterized the claims as medical malpractice, plaintiff filed this premises-liability complaint, which the trial court dismissed based on res judicata. On appeal, the court first rejected defendant’s jurisdictional argument that service of the claim of appeal was untimely. The court explained that timely filing under MCR 7.204(B)(1) is jurisdictional but the service requirement in MCR 7.204(F)(2) is not. Under earlier authority “the service requirement was non-jurisdictional[,]” so the court retained jurisdiction to decide the appeal. Turning to res judicata, the court held the first element was not met because the second case’s dismissal order expressly stated “without prejudice.” Under MCR 2.504(B)(3) and Washington, in “‘the absence of any language in an order of dismissal limiting the scope of the merits decided, the court rule plainly provides that the order operates as an adjudication of the entire merits of a plaintiff’s claim,’” but inclusion of “without prejudice” specifies otherwise. As such, the earlier dismissal “did not constitute an adjudication ‘on the merits,’” and could not bar this suit under Adair. Finally, because the trial court ruled solely based on res judicata, the court declined to affirm on alternative grounds not addressed below and remanded so the trial court can consider any remaining defenses, noting it is “more appropriate for the trial court to address additional arguments in the first instance on remand when the trial court committed error based on a misapplication of law.”

Medical malpractice damages limitation; MCL 600.1482; “Phantom damages”; Greer v Advantage Health; Remittitur standards; MCR 2.611; Palenkas v Beaumont Hosp

The court held that MCL 600.1482(1)(a) operates at the post-verdict stage to limit recovery for past medical expenses to “actual damages for medical care,” but affirmed the judgment because the jury’s award was supported by the record and remittitur was properly denied. The decedent died following a tracheostomy accident during dialysis at defendant-hospital. The jury found defendants negligent and awarded $1,218,118.63 in economic damages, allocating 65% fault to defendants and 35% to the decedent. Relying on MCL 600.1482, defendants argued the verdict impermissibly included “phantom damages,” amounts billed but not paid. The trial court entered judgment for $962,624.72 as proposed by plaintiff and denied defendants’ motion for remittitur. On appeal, the court analyzed the 2016 amendment codified at MCL 600.1482, enacted to close what was described as a “loophole that permits a plaintiff to recover for medical expenses never owed or paid.” The court explained that although subsection (1)(b) bars admission of such evidence, subsection (1)(a) separately applies at the post-verdict stage to ensure recoverable damages do not exceed actual payments or liabilities. The court reconciled MCL 600.1482 with MCL 600.6306a, holding that “the sound interpretation of the statutory scheme is to recognize MCL 600.1482(1)(a) as applicable at the post-verdict stage.” It rejected defendants’ contention that the verdict represented only unpaid medical bills, observing that they had drafted the verdict form and that “‘any attempt to parse the jury verdict . . . would be pure speculation[.]’” A letter showing $1.4 million in billings and $188,734 in “conditional payments” constituted evidence of “any remaining dollar amount that the plaintiff is liable to pay for the medical care.” Because defendants presented no proof negating liability for those amounts, “the trial court was tasked with determining whether the evidence substantiated plaintiff’s claim of incurred damages” and found sufficient support. The court concluded that the award “fell reasonably within the range corroborated by the evidence” and was not excessive, emphasizing that “the power of remittitur should be exercised with restraint.”

Auto negligence; Duty breach; Causation; Rowland v City of Detroit; Right-of-way & duty to yield; MCL 257.652; Churukian v La Gest; Statutory-violation theory (negligence per se); Proximate cause; Reckless driving; MCL 257.626; Randall v Michigan High Sch Athletic Ass’n

Holding that plaintiff failed to create a genuine issue of material fact on breach or causation where defendant-Pilaczynski had the right-of-way and the driver of the van in which plaintiff was a passenger admittedly ran the stop sign, the court affirmed summary disposition for Pilaczynski. The crash occurred at 4:15 am when the van’s driver (defendant-Hilden) drove through a stop sign and was struck by Pilaczynski, who was traveling with the right-of-way. Police recorded Hilden’s admissions that he was “intentionally running stop signs” and “turning off his headlights” at the intersections, and vehicle data showed Pilaczynski was not speeding. On appeal, the court rejected plaintiff’s argument that a jury question existed, explaining that a movant may prevail by showing the nonmovant’s proof is insufficient on an essential element, and “‘[t]he mere fact of an accident is not, in and of itself, proof of actionable negligence.’” The court also rejected plaintiff’s theory that Pilaczynski’s violation of his Kentucky graduated-permit restrictions or MCL 257.626 (reckless driving) established negligence per se. Even if a statutory violation could create a presumption, “‘a violation of a statute does not establish negligence as a matter of law unless the violation is shown to be a proximate cause of the accident,’” and plaintiff offered no causal link. Her reliance on purported disputes about whether Hilden’s headlights were on or whether he was speeding was immaterial because Pilaczynski “had the right-of-way” and “Hilden faced a stop sign,” so no duty to yield arose. Finally, an affidavit recounting Pilaczynski’s post-accident apology did not create a triable issue given the undisputed record showing attentiveness and right-of-way on his part and the stop-sign violation by Hilden.