Vacation & modification of arbitration awards; MCL 600.5081; MCR 3.602(K)(2); Whether an arbitrator exceeded his authority when interpreting a lease agreement; Mistake of law; Washington v Washington; Request for attorney fees under the lease & MCL 691.1705; “Prevailing party”; Ronnisch Constr Group, Inc v Lofts on the Nine, LLC; Pontiac Country Club v Waterford Twp; Common area maintenance (CAM) fees; CAM, insurance, & taxes (CIT)

Concluding that the arbitrator did not make a mistake of law in interpreting the parties’ lease agreement, the court rejected plaintiff’s argument that the arbitrator exceeded his authority. On defendant’s cross-appeal, it held that the trial court did not err in denying defendant’s request for attorney fees under the lease and MCL 691.1705. Thus, it affirmed the trial court’s denial of plaintiff’s motion to vacate an arbitration award and grant of defendant’s competing motion to confirm the award, and its denial of defendant’s request for attorney fees. Plaintiff contended “the arbitrator erroneously read language into the contract allowing defendant to combine its CIT costs.” Plaintiff specifically asserted “that the arbitrator misinterpreted the word ‘cumulative’ and should have given the word its technical definition in the field of real estate taxation.” Plaintiff argued that had the arbitrator done so, “defendant would have been prevented from combining its CIT costs over multiple lease years.” The court noted that a “facial review of the lease agreement and award” provided it “no indication of how the arbitrator defined ‘cumulative,’ or what definition he used in his interpretation. Our facial review of the agreement does not consider the arbitrator’s mental indicia.” It further noted that because “the arbitrator did not provide his reasoning,” it could not “infer what that reasoning would have been. Even if that were not the case, plaintiff provides no evidence demonstrating that the arbitrator was required to utilize a technical definition of the word ‘cumulative.’ Rather, plaintiff merely presumes that the arbitrator erred in his interpretation because the technical definition of” the word supported its interpretation of the lease. “But the lease agreement itself does not contain a provision mandating technical definitions for its words.” As to defendant’s cross-appeal, plain language in the lease established “that the prevailing party is entitled to the reimbursement of attorney fees.” But the lease did not define the term. And case precedent (Ronnisch and Pontiac Country Club) requires “some change in the parties’ positions after the litigation” for there to be a prevailing party. “Here, there was no change in the parties’ positions.” And under MCL 691.1705(3)’s plain language, “only a prevailing party can request attorney fees and costs.”

Dispute over condo bylaws; Standing; The Condominium Act; MCL 559.207; MCL 559.215; Alleged violations of bylaws recorded as part of the Master Deed under MCL 559.153; “Co-owner”; MCL 559.106(1); Breach of contract; In re Raymond T Conley Trust; Whether condo bylaws are an enforceable contract; Allied Supermarkets, Inc v Grocer’s Dairy Co; Conlin v Upton; Selective enforcement of condo bylaws; “Breed discrimination”; Alleged violation of the Nonprofit Corporation Act; MCL 450.2489(1)

The court held that the trial court erred by finding plaintiffs-condo and dog owners lacked standing and by dismissing their breach of contract claim against defendant-condo association, but did not err by dismissing their selective enforcement of Bylaws claim. Plaintiffs sued defendant for breach of contract and selective enforcement of its Bylaws after they sold their condo and moved when defendant demanded they either rehome or euthanize their two Rottweilers following an incident with a neighbor. The trial court granted summary disposition for defendant. On appeal, the court agreed with plaintiffs that the trial court erred by finding they did not have standing to bring an action for breach of contract and selective enforcement against defendant. It noted they “sought damages for defendant’s alleged violations of the Bylaws, which are required to be recorded as part of the Master Deed in accordance with MCL 559.153 of the Condominium Act. Plaintiffs are therefore persons who have alleged that they were adversely affected by a violation of, or a failure to comply with, the Master Deed. Under MCL 559.215, they had standing to bring an action for relief.” The court also agreed with plaintiffs that the trial court erred by finding the Bylaws were not an enforceable contract. The “Bylaws at issue in this case constitute a binding contract, and the trial court erred by holding otherwise.” The court also agreed, in part, with plaintiffs that the trial court erred by granting summary disposition for defendant and dismissing their claims. As to their breach of contract claim, when “viewed in a light most favorable to plaintiffs, the allegations in their complaint adequately state a claim for breach of said contract. The trial court erred by ruling in defendant’s favor on this claim.” However, as to their selective enforcement claim, they “cited no caselaw or statute prohibiting ‘breed discrimination’ by a homeowners’ association or otherwise prohibiting selective enforcement of condominium bylaws. To the extent that plaintiffs simply claim ‘selective enforcement,’ we deem this issue abandoned.” Plaintiffs also did not adequately state “a statutory claim of shareholder oppression.” Finally, while the trial court erred by finding defendant took no enforcement action against plaintiffs, because they “failed to plead any viable legal basis for their selective-enforcement claim, [it] reached the right result, albeit for the wrong reason.” Affirmed in part, reversed in part, and remanded.

Other acts evidence; MRE 404(b); People v Denson; Notice; People v Felton; Good-character jury instruction; Harmless error; Ineffective assistance of counsel as to a plea offer; People v Douglas; Sentencing; Consecutive sentences for possession-with-intent-to-deliver convictions; MCL 333.7401(3); People v Norfleet; Upward departure from the guidelines; Articulation of an adequate justification; Imposition of prison time for some convictions instead of an intermediate sanction; MCL 769.34(4)(a); Judgment of sentence (JOS)

The court held that the trial court did not abuse its discretion in admitting other acts evidence and that any error in declining to give a good-character jury instruction was harmless. It also rejected defendant’s claim that defense counsel was ineffective as to a plea offer. Further, the trial court did not err in “imposing consecutive sentences for his two possession-with-intent-to-deliver convictions.” But it did err in “imposing an upward-departure sentence without articulating adequate justification” and violated MCL 769.34(4)(a) in “imposing prison time for three of his convictions instead of an intermediate sanction without articulating reasonable grounds.” Thus, the court affirmed defendant’s convictions of possession with intent to deliver cocaine (less than 50 grams), possession with intent to deliver fentanyl (less than 50 grams), bringing contraband into a correctional facility, possessing Suboxone, maintaining a drug house, and felony-firearm, but remanded as to his sentencing. He argued “the prosecution provided improper notice” of Facebook evidence and that this “evidence was not relevant and unfairly prejudicial.” The court disagreed, concluding the “Facebook evidence supported the elements of possession and intent” as to his possession with intent to deliver and felony-firearm charges. “Messages exchanged between defendant and several others, especially a potential purchaser on the day defendant was arrested, suggested that [he] possessed and intended to deliver illegal substances. Further, the videos supported [he] possessed large quantities of cash and a firearm. Officers testified that large amounts of currency were common among drug dealers. The prosecution articulated a proper noncharacter purpose for admission of” this evidence. The court further found that it was “material to the charges” and probative because it made “it more probable than not that defendant possessed narcotics and a firearm and intended to deliver the narcotics.” The court also concluded the “trial court gave ample reasons for its decision to impose consecutive sentences” and that the record supported its reasoning. But as to his fentanyl, contraband into jail, and Suboxone convictions, it remanded “for the trial court to either impose an intermediate sanction, or articulate on the record reasonable grounds for the prison sentence.” It also remanded for resentencing or articulation of the reasons for departure as to his maintaining a drug house conviction.

Sentencing; Calculation of jail credit; MCL 769.11b; Comparing People v Givans; Presentence investigation report (PSIR)

Holding that there was an error in the calculation of defendant’s jail credit, the court vacated and remanded for correction of his sentencing credit, and also directed the trial court to amend his PSIR to correct his sentencing date. He pled guilty to possession with intent to deliver meth and possession with intent to deliver less than 50 grams of cocaine. The trial court sentenced him to 8 to 20 years and 1 to 20 years, respectively, with 4 days’ jail credit. On appeal, defendant challenged the amount of jail credit he received. The court agreed with the prosecution that he was entitled to 185 days’ jail credit and rejected his claim that he was entitled to 502 days. He was entitled to credit for time served from 12/13/21 to 12/15/21 and 5/23/22 to 5/27/22. Police arrested him on 12/13/21, and he was sentenced to a 365-day jail term in a different case on 12/15/21. After completing that jail term on 5/23/22 “he was held in jail for the instant case until he furnished bond on” 5/27/22. “Because defendant was held in jail on the instant charges, i.e., the offenses of which he was convicted, during the eight days from” 12/13/21 to 12/15/21 and from 12/23/22 to 12/27/22, he “was entitled to sentence credit for those eight days in accordance with MCL 769.11b. However, [he] was not entitled to credit for the time served from” 12/15/21 to 5/23/22. In this “case, as in Givans, [defendant] was not entitled to sentence credit for his time served from” 12/15/21 to 5/23/22 “because he began serving his 365-day jail sentence in a different case on” 12/15/21. “Under the same reasoning, [defendant] was entitled to 177 days’ credit for the time he spent in jail from [3/28/23], when he was arrested in this case and other cases, to [9/20/23] when he was sentenced in” three other matters. “The trial court determined [he] was not entitled to sentence credit for that time period because he had already received a 177-day credit against his sentences imposed on” 9/20/23. He claimed in this case, “and the prosecution agree[d], that the sentence credit” he accrued from 3/28/23 to 9/20/23, “should also apply to this case.” While he was arrested on 3/28/23, “for offenses in multiple cases, one of those cases was the instant case pursuant to the bench warrant.” As such, he “was serving presentence jail time for all the offenses and” his accrued jail credit from 3/28/23 to 9/20/23 “should have been applied to his sentence in this case as it was applied to his sentences in the three other cases.”

Habeas corpus; Whether the state trial court’s rulings prevented petitioner from establishing a complete defense; Washington v Texas; Chambers v Mississippi; Ungar v Sarafite; Ferensic v Birkett; Whether the state court unreasonably applied “clearly established” law; Application of the Antiterrorism & Effective Death Penalty Act standard; Whether the errors were “prejudicial”; Brecht v Abrahamson

[This appeal was from the WD-MI.] In an order, the court denied a petition for rehearing en banc. After a majority of judges previously voted for rehearing en banc, the court vacated its original opinion in this case and later issued the amended opinion at issue here (see eJournal # 83651 in the 5/13/25 edition). The amended opinion again held that the Michigan trial court deprived petitioner-Chandler of his right to present a complete defense and that the Michigan Court of Appeals unreasonably applied Supreme Court law. Thus, it again reversed the district court’s denial of habeas relief and granted Chandler a conditional writ of habeas corpus.

Civil trust action; The law-of-the-case doctrine; Grievance Adm’r v Lopatin; Due process; Al-Maliki v LaGrant; Attorney fees; MCL 700.7904(2); Reasonableness; MCL 700.7207

The court held that the probate court did not violate the law-of-the-case doctrine, or abuse its discretion by declining to consider the reasonableness of the original trustee’s (Morehouse) proposed attorney fees, and appellant was not denied due process. The probate court entered an order modifying a preliminary injunction that had previously frozen all assets of the trust at issue in this case. It modified the preliminary injunction to allow use of trust assets to pay attorney fees. On appeal, the court rejected appellant’s argument that the trial court’s order violated the law-of-the-case doctrine, based on a previous holding from the court related to this matter. In that decision, the court “merely held that [the grantor-]Ruth had not properly invoked her right under ¶ 3.3(e) of” her husband’s (John) trust. “We did not decide the effect of that failure considering the other provisions of the trust; as we noted, ¶ 3.3(e) simply provided that the failure ‘to file the writing shall constitute an irrevocable disclaimer of any rights under this paragraph.’ We did not decide that the failure to invoke the rights under ¶ 3.3.(e) constituted a disclaimer of all rights under John’s trust.” In addition, it “expressly left open the possibility of litigating defenses to appellant’s claims that included laches and the statute of limitations. We also did not hold that trust assets could not be used to pay attorney fees and administrative costs incurred by the trustee of Ruth’s trust in defending against appellant’s claims.” The court also rejected appellant’s claim that her due-process rights were violated. “[T]he issue of modifying the preliminary injunction to allow Morehouse to pay attorney fees was plainly in her motion, giving appellant notice and the opportunity to address the request in her response in writing and at the hearing on the motion. Therefore, appellant had notice and the probate court did not decide the issue sua sponte.” Finally, the court rejected appellant’s contention that the probate court abused its discretion because it did not consider the reasonableness of the claimed attorney fees. It noted she “did not make a timely request under MCL 700.7207 to review of the reasonableness of the attorney fees incurred by Morehouse as the trustee of Ruth’s trust.” Further, appellant did “not cite any authority for the proposition that the probate court was required to raise this issue sua sponte,” and thus she abandoned the issue. Affirmed.

Dispute over condo bylaws; Standing; The Condominium Act; MCL 559.207; MCL 559.215; Alleged violations of bylaws recorded as part of the Master Deed under MCL 559.153; “Co-owner”; MCL 559.106(1); Breach of contract; In re Raymond T Conley Trust; Whether condo bylaws are an enforceable contract; Allied Supermarkets, Inc v Grocer’s Dairy Co; Conlin v Upton; Selective enforcement of condo bylaws; “Breed discrimination”; Alleged violation of the Nonprofit Corporation Act; MCL 450.2489(1)

The court held that the trial court erred by finding plaintiffs-condo and dog owners lacked standing and by dismissing their breach of contract claim against defendant-condo association, but did not err by dismissing their selective enforcement of Bylaws claim. Plaintiffs sued defendant for breach of contract and selective enforcement of its Bylaws after they sold their condo and moved when defendant demanded they either rehome or euthanize their two Rottweilers following an incident with a neighbor. The trial court granted summary disposition for defendant. On appeal, the court agreed with plaintiffs that the trial court erred by finding they did not have standing to bring an action for breach of contract and selective enforcement against defendant. It noted they “sought damages for defendant’s alleged violations of the Bylaws, which are required to be recorded as part of the Master Deed in accordance with MCL 559.153 of the Condominium Act. Plaintiffs are therefore persons who have alleged that they were adversely affected by a violation of, or a failure to comply with, the Master Deed. Under MCL 559.215, they had standing to bring an action for relief.” The court also agreed with plaintiffs that the trial court erred by finding the Bylaws were not an enforceable contract. The “Bylaws at issue in this case constitute a binding contract, and the trial court erred by holding otherwise.” The court also agreed, in part, with plaintiffs that the trial court erred by granting summary disposition for defendant and dismissing their claims. As to their breach of contract claim, when “viewed in a light most favorable to plaintiffs, the allegations in their complaint adequately state a claim for breach of said contract. The trial court erred by ruling in defendant’s favor on this claim.” However, as to their selective enforcement claim, they “cited no caselaw or statute prohibiting ‘breed discrimination’ by a homeowners’ association or otherwise prohibiting selective enforcement of condominium bylaws. To the extent that plaintiffs simply claim ‘selective enforcement,’ we deem this issue abandoned.” Plaintiffs also did not adequately state “a statutory claim of shareholder oppression.” Finally, while the trial court erred by finding defendant took no enforcement action against plaintiffs, because they “failed to plead any viable legal basis for their selective-enforcement claim, [it] reached the right result, albeit for the wrong reason.” Affirmed in part, reversed in part, and remanded.

Termination of parental rights; Reasonable reunification efforts; Exception; MCL 712A.19a(2)(a); Aggravated circumstances; MCL 722.638(1) & (2); In re Simonetta; Whether a parent has subjected their child to aggravated circumstances under MCL 722.638(1)(a)(ii) when the parent facilitates criminal sexual conduct involving penetration of the child but he or she does not commit the alleged act; “Child abuse,” “sexual exploitation,” & “prostitution”; A parent’s failure to take reasonable steps to intervene to eliminate the risk to the child; Advice of rights; MCR 3.965(B)(15); Prejudice

The court held that a parent who facilitates criminal sexual conduct involving penetration of a child but does not personally commit the act has subjected the child to aggravated circumstances alleviating the DHHS from making reunification efforts before termination. Thus, it reversed the judgment of the Court of Appeals and reinstated the trial court’s order terminating respondent-mother’s parental rights. The DHHS filed a permanent custody petition alleging it was contrary to the children’s welfare to remain with respondent because of improper supervision, sexual abuse, sex trafficking, threatened harm, and drug abuse. The trial court terminated her parental rights. The Court of Appeals reversed, finding the trial court erred when it held that aggravating circumstances existed and that the DHHS did not need to offer reunification services to the mother. The court disagreed with the Court of Appeals’ statutory interpretation. “MCL 722.638(1)(a)(ii) is satisfied when a parent or other listed individual is the perpetrator of abuse, and the abuse ‘included’ criminal sexual conduct involving penetration; however, that does not mean that the parent must have committed the act of criminal sexual conduct involving penetration.” The child’s testimony confirmed the “abuse included criminal sexual conduct involving penetration.” In this case, “both MCL 722.638(1)(a)(ii) and MCL 722.638(2) were satisfied.” As such, “MCL 712A.19a(2)(a) applies, and reasonable efforts to reunify the children and family were not required.” The trial court “was permitted to terminate respondent’s parental rights at the initial dispositional” hearing, and the “Court of Appeals erred by holding otherwise.” Finally, although the trial court plainly erred “by failing to advise respondent of her right to appeal the removal decision, the error was not prejudicial.” She could not “show that, had she been advised of her appellate rights after the preliminary hearing, the outcome of these proceedings would have been different.”

Concurring, Justice Bolden agreed “fully with the majority’s recitation of facts and determination that in this set of circumstances—where a trial court has found there was clear and convincing evidence that respondent sexually abused her child” by exploiting the child “through prostitution to obtain drugs—aggravated circumstances were present.” But she wrote “separately to clarify that aggravated circumstances are found only in rare situations and must be considered on a case-by-case basis.”

Child’s best interests; Consideration of a child’s placement with “fictive kin”; MCL 712A.13a(1)(j)(ii); Distinguishing In re CJM

Concluding that the child’s foster father was not a relative under § 13a(1)(j), the court held that the “trial court was not required to explicitly consider [the child’s] placement with him before finding that” terminating respondent-mother’s parental rights was in the child’s best interests. Respondent argued “the trial court failed to recognize that” the child’s placement with fictive kin weighed against terminating her rights. She contended that reversal was necessary because it did not explicitly consider the relative placement. The court began with “the threshold question whether [the child’s] foster father satisfies the statutory definition of ‘relative’” in MCL 712A.13a(1)(j), as amended in 2022. Considering the statutory criteria, it determined that he was not the child’s “relative under § (1)(j)(i) because he is not related to her by blood, he and respondent were never married, and he does not share custody of any of” the child’s half-siblings with respondent. As to § (1)(j)(ii), in contrast to the situation in CJM, the record here showed that the child “was placed with her foster father shortly after birth and that respondent’s parental rights were terminated when [the child] was still an infant, just over three months old. Unlike the years of care and bonding between the child and the woman in” CJM, in this case “there was simply no time for [the] foster father to develop a ‘strong positive emotional tie or role in the child’s life’ that would make him her relative under § (1)(j)(ii). Apparently recognizing this lack of time in cases involving infants, our Legislature added the following phrase to § (1)(j)(ii): ‘or the child’s parent’s life if the child is an infant.’” The court found that the record here lacked “evidence of any relationship, let alone a strong positive relationship, between the foster father and respondent.” The court affirmed the termination order.

Civil trust action; The law-of-the-case doctrine; Grievance Adm’r v Lopatin; Due process; Al-Maliki v LaGrant; Attorney fees; MCL 700.7904(2); Reasonableness; MCL 700.7207

The court held that the probate court did not violate the law-of-the-case doctrine, or abuse its discretion by declining to consider the reasonableness of the original trustee’s (Morehouse) proposed attorney fees, and appellant was not denied due process. The probate court entered an order modifying a preliminary injunction that had previously frozen all assets of the trust at issue in this case. It modified the preliminary injunction to allow use of trust assets to pay attorney fees. On appeal, the court rejected appellant’s argument that the trial court’s order violated the law-of-the-case doctrine, based on a previous holding from the court related to this matter. In that decision, the court “merely held that [the grantor-]Ruth had not properly invoked her right under ¶ 3.3(e) of” her husband’s (John) trust. “We did not decide the effect of that failure considering the other provisions of the trust; as we noted, ¶ 3.3(e) simply provided that the failure ‘to file the writing shall constitute an irrevocable disclaimer of any rights under this paragraph.’ We did not decide that the failure to invoke the rights under ¶ 3.3.(e) constituted a disclaimer of all rights under John’s trust.” In addition, it “expressly left open the possibility of litigating defenses to appellant’s claims that included laches and the statute of limitations. We also did not hold that trust assets could not be used to pay attorney fees and administrative costs incurred by the trustee of Ruth’s trust in defending against appellant’s claims.” The court also rejected appellant’s claim that her due-process rights were violated. “[T]he issue of modifying the preliminary injunction to allow Morehouse to pay attorney fees was plainly in her motion, giving appellant notice and the opportunity to address the request in her response in writing and at the hearing on the motion. Therefore, appellant had notice and the probate court did not decide the issue sua sponte.” Finally, the court rejected appellant’s contention that the probate court abused its discretion because it did not consider the reasonableness of the claimed attorney fees. It noted she “did not make a timely request under MCL 700.7207 to review of the reasonableness of the attorney fees incurred by Morehouse as the trustee of Ruth’s trust.” Further, appellant did “not cite any authority for the proposition that the probate court was required to raise this issue sua sponte,” and thus she abandoned the issue. Affirmed.