Release; “Releasors”; Principle that the roles of independent contractor & agent are not mutually exclusive; Scope of a release; Binding effect on a nonsignatory; AFSCME Council 25 v Wayne Cnty; Disregarding a corporate entity; Glenn v TPI Petroleum, Inc; Applicability of a “carveout” in the release

Holding that plaintiffs’ claims were barred by a Settlement Agreement and Release (SAR), the court reversed the trial court’s denial of defendants’ summary disposition motions. Plaintiffs asserted tort claims stemming “from defendants’ handling of a water-loss insurance claim at a building owned by” a nonparty (Village Plaza). Plaintiff-Cambridge, an LLC, is a holding company whose sole member is plaintiff-Michael. A year before this action was filed, “Michael, acting on behalf of Village Plaza, negotiated” the SAR with defendant-Cincinnati Insurance. The court held that the “plain language of the release shows that Village Plaza intended plaintiffs and their claims against defendants to be within its scope. The release was not limited to claims Village Plaza may have against Cincinnati, but claims ‘releasors’ may have against Cincinnati and the other listed ‘releasees.’ In relevant part, ‘releasors’ was defined to include Village Plaza’s ‘agents.’” As the release did not define “agent,” the court considered dictionary definitions. It determined that plaintiffs “were Village Plaza’s agents and, therefore, fell under the definition of ‘releasors.’ The agent and principal relationship between plaintiffs and Village Plaza is made abundantly clear by the record.” While plaintiffs asserted they were “independent contractors” rather than Village Plaza’s agents, the court noted these roles are not mutually exclusive. “Plaintiffs’ management contract obligated Cambridge to render its services to Village Plaza faithfully and diligently and provided Cambridge with the authority to enter contracts on Village Plaza’s behalf. The management contract also supports that plaintiffs are Village Plaza’s agent.” Next, the court concluded that their claims fell within the scope of the release, which broadly applied “to any and all claims, known or unknown; past, present, or future; that a releasor may have directly or indirectly related to the insurance claim. This includes claims of bad faith or unfair practices and claims in contract, tort or otherwise.” As to the fact that plaintiffs were nonsignatories of the SAR, the court found there was “a closeness in proximity between Village Plaza and Cambridge that necessitates the imposition of a veil-piercing/alter ego theory.” Remanded for dismissal of plaintiffs’ claims with prejudice.

Ineffective assistance of counsel; Failure to request a referral to the forensic center for competency & criminal responsibility; Failure to object to a police officer identifying defendant as the person in a video; MRE 701; Failure to request a jury instruction on third-degree arson as a lesser included offense of second-degree arson; “Dwelling” (MCL 750.71(d)); Sentencing; Right to allocute

Holding that defendant-Braun’s trial counsel did not provide ineffective assistance and that Braun was not denied her right to allocute at sentencing, the court affirmed her second-degree arson conviction and sentence. She was sentenced as a fourth-offense habitual offender to 20 to 40 years. The case arose from setting fire to a house. She argued that her trial counsel (L) was ineffective for failing to (1) “request a referral to the forensic center for competency and criminal responsibility, (2)” object to a police officer (C) identifying her as the person in a video, and (3) “request a jury instruction on third-degree arson as a lesser included offense of second-degree arson.” The court found that the record of the pretrial proceedings did not “indicate that Braun suffered from a mental infirmity.” While she was at times argumentative “and waffled regarding whether she wanted to accept the plea offer, her statements were coherent and indicated she understood what was happening and was able to logically assess her choice. The record of the trial proceedings similarly failed to suggest any mental infirmity. Braun testified at trial and was able to answer questions appropriately and coherently. Her answers indicated her awareness of what was occurring and her logical thought process. The record” did not show an inability to assist in her defense or a lack of understanding of the proceedings. Thus, the court held that L’s “representation did not fall below an objective standard of reasonableness. Similarly, the trial court did not err by failing to refer Braun for a competency examination on its own accord.” Further, L’s failure to request a criminal responsibility evaluation “did not fall below an objective standard of reasonableness considering that the result of the evaluation could not have been used to establish Braun’s diminished capacity to commit the charged offenses.” The court noted that Braun did “not contend that she was legally insane when the offenses occurred[.]” And because C’s “testimony was admissible under MRE 701,” L was not ineffective for failing to object. Her claim as to the jury instructions also failed given that “a rational view of the evidence did not support” a third-degree arson instruction “because the garage was part of the dwelling[.]”

Due process; Motion for a new trial based on failure to correct testimony; Brady v Maryland violations; Ineffective assistance of counsel; Failure to consult with defendant during jury selection; Failure to challenge certain jurors for bias; Failure to impeach witnesses; Failure to have defendant’s mother testify

The court held that the trial court erred in denying the motion for a new trial based on its conclusion that witness-L’s testimony was not substantially false. It also agreed with defendant that “the prosecution suppressed the benefit [L] received in exchange for testifying, and also suppressed [L’s] prior conviction for a crime of dishonesty, in violation of Brady.” But it found that defendant was not denied the effective assistance of counsel. Thus, the court vacated his convictions (which included one for first-degree home invasion) and remanded for a new trial. L “testified that he pleaded guilty to a misdemeanor and implied that he had already served a six-month jail sentence as a result of that conviction. This was false because [L] had not pleaded guilty to any crime. Instead, all of his charges stemming from the home invasion were completely dismissed, albeit without prejudice. The prosecutor knew this testimony was false because she filed the motion to dismiss [L’s] case, which was granted nine months before defendant’s trial.” Thus, defendant met his burden to prove L’s “testimony was false, the prosecutor knew the testimony was false, and the trial court clearly erred in finding otherwise.” Any ambiguity regarding whether L “had actually pleaded guilty was clarified, albeit untruthfully, on cross-examination.” The court noted that the prosecutor “had four opportunities to correct the false testimony that [L] had pleaded guilty[.]” Because the false testimony related to his “agreement to testify, the prosecutor had an affirmative duty to specifically correct his testimony regarding that agreement.” The court found that regardless “of the prosecutor’s intent to refile the charges against [L], at the time of trial, it was incorrect to state that he had already pleaded guilty.” Further, there was “a reasonable likelihood the prosecution’s failure to correct the false testimony affected the judgment of the jury, and therefore violated defendant’s right to due process.” The court also found that his “right to due process was violated by the prosecution’s suppression of . . . evidence under Brady. The trial court abused its discretion in denying defendant’s motion for a new trial based on the Brady violations.”

Search-warrant probable cause & nexus; MCL 780.651; People v Franklin; Staleness of firearm information in warrant; MCL 780.653; People v Brown; No-knock warrant & knock-and-announce exception; MCL 780.656; People v Vasquez; Expert meth-distribution opinion & drug-profile evidence; MCL 333.7401; People v Murray; Sufficiency of evidence & great-weight challenge; MCL 333.7214; People v Harris; Speedy-trial; Barker factors; MCL 768.1; People v Williams; Plea/sentence agreement violation & remedy; MCL 769.12; Santobello v New York; Within-guidelines sentence proportionality; MCL 769.34; People v Steanhouse

The court held that defendant’s convictions and within-guidelines sentences for meth and firearm offenses were properly affirmed because the search warrant, trial rulings, and sentencing decisions complied with constitutional and statutory requirements. Officers executed a no-knock warrant at defendant’s residence and associated vehicles, finding more than 10 grams of meth, a scale with residue, small baggies, and multiple loaded firearms and ammunition in a backpack containing defendant’s identification. A jury convicted him of possession of meth with intent to deliver, multiple FIP counts, FIP of ammunition, and felony-firearm, and the trial court sentenced him as a fourth-offense habitual offender to concurrent prison terms with additional consecutive felony-firearm terms. On appeal, the court held that the affidavit provided a “substantial basis” for probable cause, tying drug trafficking and firearm use to defendant, his SUV, and the address at issue, and that the nine-day-old firearm information was “not stale” given the nature of guns. It rejected challenges to the search of another vehicle on the property for lack of standing and because it was a vehicle “associated to or on the property.” The court also upheld limits on cross-examination, admitted the narcotics expert’s opinion that the meth was “for sales and distribution,” found the evidence sufficient and not against the great weight, found no speedy-trial violation or additional remedy beyond plea withdrawal for a breached sentence agreement, and concluded the within-guidelines sentence was proportionate in light of defendant’s record and risk to the community. Affirmed.

Discovery violation; MCR 6.201(B) & (J); Sufficiency of the evidence for an AWIGBH conviction; Intent; People v Blevins; Doctrine of transferred intent; Self-defense; MCL 780.972(1)(a); Prosecutorial error; Ineffective assistance of counsel; Futile objection

The court held that the trial court did not err or abuse its discretion in declining to prohibit the prosecution from presenting recordings of two phone calls by defendant from jail based on a discovery violation. It also held that (1) there was sufficient evidence to support his AWIGBH conviction, (2) the prosecution offered sufficient evidence to disprove his self-defense claim, and (3) the prosecutor’s challenged closing argument statements were not improper. Thus, the court affirmed defendant’s convictions of second-degree murder, discharge of a firearm from a vehicle causing death, AWIGBH, and felony-firearm. It concluded that, even assuming “the prosecution did not actually submit the telephone calls at issue in the ‘evidence.com download link,’ the trial court had the authority under MCR 6.201(J) to rule ‘as it deems just under the circumstances.’ Ruling that the telephone calls were barred from evidence would essentially reward defendant for the inadvertent error by the prosecution and defense counsel’s failure to bring the matter to the prosecution’s attention before trial.” The court also noted that defense counsel was able to review the “calls before the prosecution introduced them, and defendant” failed to explain “on appeal how his defense would have been different if the calls had been given to him before trial.” As to the sufficiency of the evidence to support his AWIGBH conviction, “a reasonable jury could infer that defendant was close enough to the GMC SUV to be able to view both of the” victims (the A brothers) inside. Further, it was “undisputed that defendant fired six or seven rounds at the GMC SUV, one of which fatally struck the driver, [A II], through the left rear window of the GMC SUV. A reasonable jury also could infer that because defendant fired numerous rounds at the GMC SUV, he attempted and intended to fatally harm not only the driver of that vehicle, but the passenger as well. In other words, while defendant himself testified that he" did not see A III in the vehicle, “there was sufficient evidence from which a jury could find that” he was aware that A III was in it, “and that he attempted and intended to fatally harm” A III as well as A II. “This was sufficient to satisfy both elements of AWIGBH.”

References to “murder weapon”; Ineffective assistance of counsel; Failure to request a mistrial; Failure to request a curative instruction; Failure to fully investigate; Distinguishing People v Jordan; Sentencing; Scoring of OVs 3 & 9

The court concluded that defendant had failed to show that he was “entitled to a new trial on the basis of the stricken testimony referring to a ‘murder weapon.’” Also, he was not denied the effective assistance of counsel for failure to request a mistrial where any such request would have been futile. Finally, the trial court did not err by scoring OV 3 at 25 points and OV 9 at 10 points. He was sentenced as a second-offense habitual offender to 25 to 50 years for the murder conviction and two years for the felony-firearm conviction. Defendant argued “that testimony from two police witnesses referring to a weapon found in the trunk of the vehicle defendant was driving as the ‘murder weapon’ denied him a fair trial.” Although he framed “his issue as one of prosecutorial misconduct, his trial counsel successfully objected to the testimony, resulting in the trial court striking the inappropriate references to the ‘murder weapon’ by the police witnesses.” Defendant’s actual argument appeared “to be that the trial court should have granted a mistrial because of the prejudicial nature of the comments.” To the extent he asserted that he was “entitled to a new trial on the basis of prosecutorial misconduct, it is important to recognize that he never identifies any conduct on behalf of the prosecutor that his claim is based on.” Instead, he relied “solely on the characterizations of the two police witnesses.” The court found that defendant did “not identify what the prosecutor did that forms the basis of his claim of prosecutorial misconduct, and we can find none.” However, it concluded that the gravamen of defendant’s argument was “that the prejudice introduced by the police officers’ testimony referring to the firearm they found as the ‘murder weapon’ was so severe that the trial court should have granted a mistrial.” It found that he “failed to show how his right to a fair trial was violated.” Defendant argued “that his right to due process was violated through the police’s failure to fully investigate the nine-millimeter casing that was found in the southern part of the parking lot.” The court concluded that he had “identified no evidence that the prosecution possessed that it failed to disclose.” Instead, he argued “that the police should have more fully investigated the nine-millimeter casing. But due process does not require the police to seek and find exculpatory evidence.” Moreover, it found that “assuming that there was such a duty to further investigate the nine-millimeter casing, defendant has failed to show how the outcome of the trial would have been different.” As a result, his argument was without merit. Affirmed.

Res judicata elements; Adair v Michigan; Privity analysis; Distinguishing Wildfong v Fireman’s Fund Ins Co

The court held that res judicata did not bar plaintiff’s premises-liability and negligence claims against defendants-property owner (Alten) and contractors because neither was in privity with the sole defendant in an earlier action (nonparty-S), and therefore summary disposition was improper. Plaintiff rented a home and claimed he was injured when a railing failed. He first sued S (Alten’s sole shareholder) individually, and that case was dismissed because S was not the landlord. While that suit was pending, plaintiff filed the present case against Alten as property owner and against contractors who allegedly performed negligent repairs. The trial court initially denied Alten’s res judicata motion but then granted reconsideration and dismissed the claims against Alten and later dismissed the claims against the contractors on the same theory. On appeal, the court found that the proper standard of review was de novo because the ruling under reconsideration produced a summary-disposition decision, and noted that res judicata requires the same parties or their privies. The court held that S and Alten did not share a “substantial identity of interests” because they were “not in common potential liability.” It observed that “defendants acknowledge” as much. The court found that Wildfong did not establish a bright-line rule equating shareholders and closely-held corporations and that the interests at issue in that case involved plaintiffs, not defendants. Turning to the contractors, the court held that they likewise shared no identity of interests with S and found their privity argument “totally meritless.” The court further noted that the trial court’s concerns about plaintiff’s procedural missteps were irrelevant because res judicata “leaves no room” for such considerations. Reversed and remanded.

Slander of title statute of limitations; MCL 600.5801; Adams v Adams; Slander of title malice; MCL 600.2907a; Wells Fargo Bank v Country Place Condo Ass’n; Attorney fees & costs; Reasonableness; MCL 565.108; Smith v Khouri

The court held that the statute of limitations for a quiet title action had expired long before defendant recorded a claim of interest against plaintiff’s property and that defendant’s conduct supported slander of title liability, while only those attorney fees and costs arising from the recording itself were recoverable. Plaintiff, the limited partnership that had held record title and collected rents for over twenty years, sued defendant for slander of title after he recorded a claim of interest in 2017. The trial court granted partial summary disposition, later finding malice and awarding nearly three hundred thousand dollars in fees and costs. On appeal, the court held that any action to challenge the 2002 deed from the trust accrued when the trust was “disseised” upon recording and that recording gave defendant constructive notice, so by 2017 “the statute of limitations had expired as to any action” he might have brought. The court also found malice where defendant, who had long challenged his share of family wealth, chose to cloud title rather than file a quiet title action and his conduct “can only be interpreted as an attempt to put pressure” on plaintiff and a family trustee. Finally, the court concluded that the trial court effectively applied the required fee factors and that most fees and costs were proper under MCL 565.108, but it erred by including pre-11/1/17 work and a $102 Delaware filing. Affirmed in part, vacated in part, and remanded for recalculation of damages. The court retained jurisdiciton.

Slander of title statute of limitations; MCL 600.5801; Adams v Adams; Slander of title malice; MCL 600.2907a; Wells Fargo Bank v Country Place Condo Ass’n; Attorney fees & costs; Reasonableness; MCL 565.108; Smith v Khouri

The court held that the statute of limitations for a quiet title action had expired long before defendant recorded a claim of interest against plaintiff’s property and that defendant’s conduct supported slander of title liability, while only those attorney fees and costs arising from the recording itself were recoverable. Plaintiff, the limited partnership that had held record title and collected rents for over twenty years, sued defendant for slander of title after he recorded a claim of interest in 2017. The trial court granted partial summary disposition, later finding malice and awarding nearly three hundred thousand dollars in fees and costs. On appeal, the court held that any action to challenge the 2002 deed from the trust accrued when the trust was “disseised” upon recording and that recording gave defendant constructive notice, so by 2017 “the statute of limitations had expired as to any action” he might have brought. The court also found malice where defendant, who had long challenged his share of family wealth, chose to cloud title rather than file a quiet title action and his conduct “can only be interpreted as an attempt to put pressure” on plaintiff and a family trustee. Finally, the court concluded that the trial court effectively applied the required fee factors and that most fees and costs were proper under MCL 565.108, but it erred by including pre-11/1/17 work and a $102 Delaware filing. Affirmed in part, vacated in part, and remanded for recalculation of damages. The court retained jurisdiciton.