Medicaid; Divestment penalty on medical benefits; Whether the personal-care & homecare contract requirements in Bridges Eligibility Manual 405 (BEM 405) are inconsistent with federal law; 42 USC §§ 1396a & 1396p; MCL 400.6; § 1396p(c)(2)(C)(ii); “Shall not”; Irrebuttable presumption; Administrative law judge (ALJ)

The court affirmed “the circuit court’s conclusion that the personal-care and homecare contract requirements in [respondent-]DHHS’s BEM 405 are inconsistent with federal law[.]” It also concluded “that BEM 405 must be applied in a manner that does not create an irrebuttable presumption resulting in a divestment penalty.” But it vacated “the circuit court’s reversal of the ALJ’s decision to uphold the imposition of a divestment penalty,” and remanded “for the ALJ to reevaluate divestment under the proper legal framework.” The case arose from payments made by plaintiff’s decedent (Brown) and her husband for care provided at home by family members and a friend. DHHS appealed the circuit court’s order reversing the ALJ’s decision “to uphold the DHHS’s imposition of a divestment penalty on medical benefits of” Brown. Although the DHHS attempted to frame the “issue as one of construction regarding BEM 405’s personal-care contract policy, whether the applicable federal and state statutes authorized the DHHS to institute such a policy at all was the basis of the circuit court’s decision.” Thus, the court found that the issue called for analysis of those statutes – §§ 1396a, 1396p, and MCL 400.6. It held “that because federal Medicaid law requires the DHHS to consider evidence of a transfer made for a purpose other than qualification for Medicaid when assessing a divestment penalty, the application of BEM 405’s personal-care contract policy is not authorized by federal law, and the circuit court properly reversed” respondent’s determination. The court concluded that § 1396p(c)(2)(C)(ii) “prohibits state Medicaid programs from imposing a divestment penalty without considering the claimant’s evidence that ‘the assets were transferred exclusively for a purpose other than to qualify for medical assistance . . . .”’ The court found as “written, BEM 405’s personal-care contract policy does precisely what [§] 1396p(c)(2)(C)(ii) prohibits: instituting an irrebuttable presumption of divestment in the absence of a policy-compliant written and notarized contract. BEM 405’s personal-care and homecare contract requirements are therefore inconsistent with federal law.”

Attorney fees; Breach of contract; Miller-Davis Co v Ahrens Constr, Inc; Account stated; Dunn v Bennett; Summary disposition under MCR 2.116(C)(10); Effect of the opposing party failing to respond; Cleveland v Hath

The court held that the trial court properly granted summary disposition to plaintiff-law firm on its breach-of-contract and account-stated claims because defendants failed to timely respond and the record independently established liability as a matter of law. Plaintiff represented defendants in an initial zoning matter under a written 2018 retainer agreement. After that matter concluded, defendants continued to send the firm additional legal matters, received detailed monthly invoices, and made more than $100,000 in partial payments without objection before ultimately refusing to pay the remaining $140,725.45. The trial court granted summary disposition after defendants missed the response deadline in the scheduling order and later tried to file their response one day late. On appeal, the court held that the trial court was permitted to decide the motion without considering an untimely response because MCR 2.116(G)(4) allows judgment when the nonmoving party fails to set forth specific facts showing a genuine issue for trial. Further, Cleveland confirmed that enforcing a scheduling order in that manner is proper. The court also held that the firm proved breach of contract because the parties’ course of performance showed that the 2018 retainer terms extended to the later matters, as defendants kept requesting services, received itemized invoices at the agreed rates, and paid numerous invoices without complaint. The court also held that the firm established an account stated because defendants’ partial payments and failure to object within a reasonable time permitted assent to the balances due to be inferred. Affirmed.

Self-representation; Waiver of the right to counsel; People v Anderson; MCR 6.0005(D) & (E); People v Blunt; The trial court’s conduct of voir dire; Cross-examination limits; MRE 611(a); Preventing defendant from personally cross-examining the victim; People v Daniels; Sufficiency of the evidence for an AWIM conviction; Intent

The court held that “the trial court did not deprive defendant of his constitutionally guaranteed right to counsel” in granting his motion to represent himself, and did not plainly err in its conduct of voir dire. Further, his Sixth Amendment rights to self-representation and to confrontation were not violated by the ruling preventing him from personally cross-examining the victim (S). Finally, there was sufficient evidence on the intent element to support his AWIM conviction. The case arose from his setting S, his ex-girlfriend, on fire. The court first concluded “that the trial court, at the very least, substantially complied with the requirements set forth in Anderson and MCR 6.005(D).” As to the Anderson factors, there was no dispute he “unequivocally made a self-representation request (Anderson factor one) and that the trial court determined his self-representation would not disrupt, unduly inconvenience or burden the court (Anderson factor three).” As to factor two, the court saw “no clear error in the trial court’s determination that he” knowingly, intelligently and voluntarily waived his right to counsel. The colloquy made it clear that he “was educated; had successfully represented himself before; and knew (a) it was ‘unwise’ (‘like a surgeon performing surgery on himself’), (b) trial required special skills to adequately preserve issues for appeal, (c) the prosecutor was an experienced trial attorney, and (d) neither the [trial] court nor its staff would help him. The trial court’s colloquy more than adequately demonstrates substantial compliance with the Anderson factors. So too for those set forth in MCR 6.005(D)—the trial court initially advised [him] of his charges, the maximum sentence, and the risks associated with self-representation and made sure that [he] understood he could consult with a retained or appointed attorney.” No Michigan case law required it to conduct “a word-for-word incantation of a California Court of Appeals decision that” the court block quoted in Blunt. And nothing in the record established “the trial court’s subsequent proceedings ran afoul of MCR 6.005(E).” As to standby counsel questioning S using defendant’s written questions, the court found that disallowing “defendant to personally question [S] after what he admittedly did to her in the name of ‘street justice’ is exactly the type of protection for witnesses contemplated by MRE 611(a).” Affirmed.

Jury trial; Voir dire time limit; MCR 6.412(C)(1); People v Washington; Assault; AWIGBH sufficiency; MCL 750.84; People v Brown; Intent element; Self-defense; MCL 780.972(2); People v Dupree; New trial; Great weight of the evidence; People v Lacalamita

The court held that the trial court did not err by limiting voir dire to 15 minutes per side, that sufficient evidence supported defendant’s AWIGBH conviction, and that the verdict was not against the great weight of the evidence. Defendant was convicted after a fight at his aunt’s house. His cousin M testified that defendant punched and kicked him, smashed his head against a table, and struck him with household objects, while defendant claimed that M hit him first and that he only punched him twice in response. M was taken to the hospital, received stitches for facial cuts, and testified that he continued to suffer psychological effects two years later. On appeal, the court held that the voir dire claim was unpreserved because defendant did not exhaust his peremptory challenges. Further, he failed to show error because the trial court’s 15-minute limit imposed no subject-matter restriction and still allowed counsel to question jurors about violence, credibility, self-defense, family disputes, and whether defendant had to testify. The court next held that sufficient evidence supported the intent element of AWIGBH because the jury could infer from the severity of M’s injuries, the blood at the scene, defendant’s statement that he had “knocked out” M and hit him “a couple times,” and the family feud that he intended to inflict serious injury of an aggravated nature. The court also held that the prosecution disproved self-defense because the jury was entitled to credit M and his family members, who testified that defendant was the aggressor. Affirmed.

Sufficiency of the evidence; CSC I under MCL 750.520b(2)(b); CSC II under MCL 750.520c(1)(a); Disseminating sexually explicit matter to a minor; Accosting a child for an immoral purpose; Effect of complainant’s testimony; Claim the prosecution’s failure to investigate denied defendant a fair trial; Alleged Brady v Maryland violation

Holding that there was sufficient evidence to support defendant-Redd’s convictions, and finding no merit in his claim that the prosecution’s failure to investigate denied him a fair trial, the court affirmed. He was convicted of CSC I, CSC II, disseminating sexually explicit matter to a minor, and accosting a child for an immoral purpose. He contended that the complainant’s (AP) testimony was too vague to support his convictions. The trial court in his bench trial found “AP’s testimony alleging several variations of sexual penetration—finger to genital opening, penis to mouth, mouth to genital opening—credible.” The testimony addressed each CSC I element for multiple counts of CSC I, and the court does not interfere with the fact-finder’s credibility assessments. As to CSC II, the alleged sexual contact was “the intentional touching of AP’s breasts.” The trial court found credible AP’s testimony that “Redd touched her breasts with his hands and mouth, often while other sexual interactions occurred.” The court noted that the trial court “was permitted to make reasonable inferences about the purpose of the sexual contact.” The trial court also “relied on AP’s testimony that Redd showed her pornography in finding Redd guilty of violating MCL 722.675 by knowingly presenting a harmful sexually explicit performance to AP when she was a minor.” The court noted that “AP testified Redd would try to make her watch explicit videos of people engaging in sexual acts on his phone. He did this ‘multiple’ times but not every time he forced her to perform sexual acts with him.” In addition, the trial court found that “Redd violated MCL 750.145a by telling AP she had to perform sexual acts if she wanted to go to her cousin’s house.” Evidence was presented that he “would enter AP’s room and ask AP if she wanted to go see her cousins, ‘or somethin’ like that.’ If she said yes, [he] would tell her: ‘you gotta do somethin’ first,’ indicating Redd solicited AP with the specific intent to induce or force AP to ‘do somethin’ in exchange for some benefit, like going to see her cousins. AP’s testimony makes clear that ‘somethin’ referred to” sexual acts.

Medicaid; Divestment penalty on medical benefits; Whether the personal-care & homecare contract requirements in Bridges Eligibility Manual 405 (BEM 405) are inconsistent with federal law; 42 USC §§ 1396a & 1396p; MCL 400.6; § 1396p(c)(2)(C)(ii); “Shall not”; Irrebuttable presumption; Administrative law judge (ALJ)

The court affirmed “the circuit court’s conclusion that the personal-care and homecare contract requirements in [respondent-]DHHS’s BEM 405 are inconsistent with federal law[.]” It also concluded “that BEM 405 must be applied in a manner that does not create an irrebuttable presumption resulting in a divestment penalty.” But it vacated “the circuit court’s reversal of the ALJ’s decision to uphold the imposition of a divestment penalty,” and remanded “for the ALJ to reevaluate divestment under the proper legal framework.” The case arose from payments made by plaintiff’s decedent (Brown) and her husband for care provided at home by family members and a friend. DHHS appealed the circuit court’s order reversing the ALJ’s decision “to uphold the DHHS’s imposition of a divestment penalty on medical benefits of” Brown. Although the DHHS attempted to frame the “issue as one of construction regarding BEM 405’s personal-care contract policy, whether the applicable federal and state statutes authorized the DHHS to institute such a policy at all was the basis of the circuit court’s decision.” Thus, the court found that the issue called for analysis of those statutes – §§ 1396a, 1396p, and MCL 400.6. It held “that because federal Medicaid law requires the DHHS to consider evidence of a transfer made for a purpose other than qualification for Medicaid when assessing a divestment penalty, the application of BEM 405’s personal-care contract policy is not authorized by federal law, and the circuit court properly reversed” respondent’s determination. The court concluded that § 1396p(c)(2)(C)(ii) “prohibits state Medicaid programs from imposing a divestment penalty without considering the claimant’s evidence that ‘the assets were transferred exclusively for a purpose other than to qualify for medical assistance . . . .”’ The court found as “written, BEM 405’s personal-care contract policy does precisely what [§] 1396p(c)(2)(C)(ii) prohibits: instituting an irrebuttable presumption of divestment in the absence of a policy-compliant written and notarized contract. BEM 405’s personal-care and homecare contract requirements are therefore inconsistent with federal law.”

Custody; The Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA); “Home state” jurisdiction; MCL 722.1201 (§ 201); MCL 722.1102(g); Temporary emergency jurisdiction; MCL 722.1204(1) (§ 204); Declining jurisdiction under MCL 722.1207 (§ 207) (inconvenient forum); Cheesman v Williams; Declining jurisdiction under MCL 722.1208(1) (§ 208) (unjustifiable conduct)

The court concluded that “only Michigan could have exercised exclusive, continuing jurisdiction at the time of the proceedings leading to this appeal[,]” and that the factual record was insufficient for §§ 207 or 208 to serve as a basis for the trial court to decline jurisdiction. Thus, it held that the trial court committed legal error in declining jurisdiction and dismissing plaintiff-mother’s case seeking sole legal and physical custody of the parties’ child (GRR). On 6/23/25, defendant-father filed a complaint in Louisiana, seeking “emergency ex parte relief in the form of sole legal and physical custody of GRR.” His request was granted the same day, and a hearing scheduled for 7/28/25. At an emergency child protective hearing held in Otsego County on 7/3/25, he was granted custody. Before that date, “GRR had only ever resided in Michigan. She has resided in Louisiana since early [7/25].” Plaintiff argued “that a child’s initial custody determination must take place in the child’s home state unless the home state declines to exercise home-state jurisdiction because another state would be a more appropriate forum. However, the trial court made no such findings.” Thus, she asked the court to “reverse and remand for proper determinations of jurisdiction and related issues pursuant to the” UCCJEA. It agreed. “Because no child-custody proceedings concerning GRR were commenced after her arrival in Louisiana, Michigan is considered GRR’s home state under the UCCJEA.” Turning to § 204, the court found that the Louisiana court’s initial 6/23/25 order “was not a valid exercise of temporary emergency jurisdiction under MCL 722.1204(1) because GRR was not present in” Louisiana at the time. But by the time the Louisiana court held its hearing on 7/28/25, GRR was living there with him. While the Louisiana court’s 7/30/25 order effectively provided “that it will become a final child-custody determination, exclusive, continuing jurisdiction pursuant to § 204 can only be exercised when ‘a child-custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 201 to 203.’” As of 7/28/25, “child-custody proceedings had already been commenced in Michigan, which had home-state jurisdiction under § 201. Therefore, § 204 could not serve as a basis for Louisiana to exercise exclusive, continuing jurisdiction.” Reversed and remanded.

Attorney fees; Breach of contract; Miller-Davis Co v Ahrens Constr, Inc; Account stated; Dunn v Bennett; Summary disposition under MCR 2.116(C)(10); Effect of the opposing party failing to respond; Cleveland v Hath

The court held that the trial court properly granted summary disposition to plaintiff-law firm on its breach-of-contract and account-stated claims because defendants failed to timely respond and the record independently established liability as a matter of law. Plaintiff represented defendants in an initial zoning matter under a written 2018 retainer agreement. After that matter concluded, defendants continued to send the firm additional legal matters, received detailed monthly invoices, and made more than $100,000 in partial payments without objection before ultimately refusing to pay the remaining $140,725.45. The trial court granted summary disposition after defendants missed the response deadline in the scheduling order and later tried to file their response one day late. On appeal, the court held that the trial court was permitted to decide the motion without considering an untimely response because MCR 2.116(G)(4) allows judgment when the nonmoving party fails to set forth specific facts showing a genuine issue for trial. Further, Cleveland confirmed that enforcing a scheduling order in that manner is proper. The court also held that the firm proved breach of contract because the parties’ course of performance showed that the 2018 retainer terms extended to the later matters, as defendants kept requesting services, received itemized invoices at the agreed rates, and paid numerous invoices without complaint. The court also held that the firm established an account stated because defendants’ partial payments and failure to object within a reasonable time permitted assent to the balances due to be inferred. Affirmed.

Whether a new roof for petitioner’s commercial building was “new construction” & thus an “addition” for purposes of increasing the taxable value; MCL 211.34d(1)(b)(iii); Const 1963, art 9, § 3; MCL 211.27a(2)(a); Tax Tribunal (TT) jurisdiction as to a constitutional question; MCL 205.731; MCL600.605; Whether petitioner had to raise the argument in a circuit court action; WPW Acquisition Co v City of Troy

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 82074 in the 8/9/24 edition for the published opinion) and remanded the case to that court for further consideration. In the TT, petitioner argued that its “newly installed roof was not an ‘addition[]’ as the term is used in Const 1963, art 9, § 3 or MCL 211.27a(2)(a).” The TT determined “that the roof replacement was ‘new construction’ as defined by MCL 211.34d(1)(b)(iii) because the newly installed roof was property not in existence on the immediately preceding tax day. The [TT] did not address the constitutional argument. On appeal in the Court of Appeals, petitioner again argued that the roof replacement was not an ‘addition[]’ within the meaning of” the constitutional provision, and asserted “that the statutory definition of ‘additions’ impermissibly conflicted with Const 1963, art 9, § 3. Despite respondent’s assertion to the contrary, the Court of Appeals concluded that the [TT] had jurisdiction to consider this constitutional argument, but that” it lacked merit. The court directed the Court of Appeals on remand to reconsider whether the TT “possessed jurisdiction to decide the constitutional question and determine the impact, if any, the resolution of that issue has on Part III(B) of” the Court of Appeals judgment (concerning “additions” under MCL 211.34d(1)(b)). “To resolve this issue, the Court of Appeals must determine whether petitioner” had to raise that argument in a circuit court action.

“Stalking”; MCL 600.2950a(1); MCL 750.411h, i, & s; Law Enforcement Information Network

While the court found that “petitioner provided ample evidence for one of the two unconsented contacts required for the issuance of a PPO for stalking, he failed to provide sufficient evidence of a second.” Thus, it reversed the trial court, vacated the PPO, and remanded “with instructions that the PPO should be updated in LEIN as rescinded.” Respondent argued, “inter alia, that the trial court abused its discretion by granting the PPO because the conduct or speech at issue in this matter did not constitute stalking or harassment under the pertinent statutes.” The court held “that petitioner did not present evidence of stalking as required by MCL 600.2950a(1) and as defined by MCL 750.411h or MCL 750.411i, or conduct that is prohibited under MCL 750.411s.” It found that petitioner “failed to introduce evidence of a willful course of conduct in this matter, i.e., ‘two or more acts of unconsented contact that caused the victim to suffer emotional distress and that would cause a reasonable person to suffer emotional distress.’” The court noted that the “trial court found that: (1) respondent accused petitioner’s dog of biting her son’s leg while they were walking in the neighborhood, (2) animal control subsequently determined that the dog did not bite respondent’s child, and (3) petitioner felt threatened by respondent as a result of this incident.” The court found that while “the first two of these findings are supported by the record, a review of the hearing transcript reveals that petitioner never testified that he felt threatened by the incident,” nor did he “allege in his petition that he felt threatened on that occasion.” Also, while there was “no dispute that petitioner’s dog did not puncture the skin of respondent’s son, there is likewise no dispute that the dog jumped on respondent’s son.”

Riparian easement to access a dock; Ownership; Theis v Howland; Breach of contract claim based on a bylaws breach; Ottawa Shores Homeowners Association (OSHA)

The court held that defendant-OSHA owned “the waterbed adjacent to Outlot D on which the dock” at issue was built, that plaintiffs did not have a riparian easement over Outlot D, and that the trial court did not prematurely dismiss their claim for breach of OSHA’s bylaws. The subject of the appeal was “a dock for mooring boats located in the waterbed adjacent to ‘Outlot D,’ a riparian lot located in the Ottawa Shores Subdivision[.]” Plaintiffs owned two lots in the Subdivision and used Outlot D. They claimed they possessed a riparian easement within the Subdivision and owned the dock. The court concluded that under Theis, “and by virtue of its ownership of Outlot D, OSHA owns the waterbed adjacent to Outlot D on which the dock was built to the middle of the Ottawa River.” It also held that because the pleadings established “OSHA owned Outlot D, the adjacent waterbed, and the dock in question, and that plaintiffs did not have a riparian easement to use Outlot D, plaintiffs complaint failed to state a claim upon which relief could be granted.” Finally, the court found that “without citing to specific bylaws that have been breached, and without alleging specific facts about how OSHA was being mismanaged or improperly run, or any further details about its most recent Board elections, plaintiffs” did not plead how the “bylaws were breached with sufficient specificity to survive summary disposition under MCR 2.116(C)(8).” Thus, these “claims were properly dismissed.”

Whether a new roof for petitioner’s commercial building was “new construction” & thus an “addition” for purposes of increasing the taxable value; MCL 211.34d(1)(b)(iii); Const 1963, art 9, § 3; MCL 211.27a(2)(a); Tax Tribunal (TT) jurisdiction as to a constitutional question; MCL 205.731; MCL600.605; Whether petitioner had to raise the argument in a circuit court action; WPW Acquisition Co v City of Troy

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 82074 in the 8/9/24 edition for the published opinion) and remanded the case to that court for further consideration. In the TT, petitioner argued that its “newly installed roof was not an ‘addition[]’ as the term is used in Const 1963, art 9, § 3 or MCL 211.27a(2)(a).” The TT determined “that the roof replacement was ‘new construction’ as defined by MCL 211.34d(1)(b)(iii) because the newly installed roof was property not in existence on the immediately preceding tax day. The [TT] did not address the constitutional argument. On appeal in the Court of Appeals, petitioner again argued that the roof replacement was not an ‘addition[]’ within the meaning of” the constitutional provision, and asserted “that the statutory definition of ‘additions’ impermissibly conflicted with Const 1963, art 9, § 3. Despite respondent’s assertion to the contrary, the Court of Appeals concluded that the [TT] had jurisdiction to consider this constitutional argument, but that” it lacked merit. The court directed the Court of Appeals on remand to reconsider whether the TT “possessed jurisdiction to decide the constitutional question and determine the impact, if any, the resolution of that issue has on Part III(B) of” the Court of Appeals judgment (concerning “additions” under MCL 211.34d(1)(b)). “To resolve this issue, the Court of Appeals must determine whether petitioner” had to raise that argument in a circuit court action.

Child protective proceeding; Jurisdiction under MCL 712A.2(b)(1) & (b)(2); In re BZ; In re AH; No-contest plea; MCR 3.971; In re Ferranti; Anticipatory neglect

The court held that the trial court properly assumed temporary jurisdiction over all six children and that respondent-mother’s no-contest plea was knowingly, understandingly, and voluntarily made. Respondent previously lost custody of three children in 2015 because of unsafe housing and abuse concerns, later regained custody, and then became the subject of a new 2023 petition alleging improper supervision, filthy conditions, inconsistent feeding, untreated mental-health needs for TH, and repeated refusals to allow CPS into the home. During the adjudication trial, evidence showed that TH and TLJ were unsupervised, poorly cared for, and living in a home where beds, food, and basic care were inconsistent, after which mother entered a no-contest plea and agreed that the existing trial record could support jurisdiction. On appeal, the court held that the factual record supported jurisdiction under MCL 712A.2(b)(1) and (2). It explained that even though the strongest evidence of neglect concerned TH and TLJ, the doctrine of anticipatory neglect allowed the trial court to infer from the mother’s treatment of one child how she treated the others. The court next held that she failed to show any error in the plea process because the record showed she was advised of the rights she was waiving, confirmed that she had consulted counsel, and expressly agreed to use the trial record as the factual basis for the plea. The court also held that she failed to show prejudice because she never established that she would have rejected the plea absent the claimed confusion. Affirmed.

“Aggravated circumstances”; Zoom appearance; Mathews v Eldridge; Statutory grounds; In re LaFrance; Doctrine of anticipatory neglect; Children’s best interests

The court held that, as to aggravated circumstances, “the trial court did not terminate respondents-parents’ parental rights at the initial disposition without first determining that at least one enumerated exception under MCL 712A.19a(2) was present.” Thus, there was no reversible error. Respondents relied on MCR 3.965(C)(4). Their argument conflated “the statutory requirements for findings regarding reasonable efforts to prevent removal with those relating to reasonable efforts toward reunification—distinct determinations that occur at separate procedural junctures.” As to the Zoom claim, a review of the record led the court “to conclude that the trial court did not deprive respondents of a fundamentally fair process or a meaningful opportunity to be heard by permitting their participation through contemporary videoconferencing technology.” Also, respondents had “wholly failed to engage with the Mathews factors in their appellate briefing and have not demonstrated any deprivation of due process in this case, leading us to conclude that respondents are not entitled to relief on this issue.” Solely for the sake of this argument, respondents conceded that the statutory grounds for termination were satisfied as to MK and TK but that the trial court erred as to OK and KK. The court held that under the “facts, respondents have failed to establish that the trial court’s findings regarding the statutory grounds for termination were clearly erroneous.” Finally, the court held that “all relevant circumstances, specifically the egregious treatment inflicted upon the children by their parents, the trial court did not commit clear error in determining that termination of the respondents’ parental rights with respect to OK and KK served the best interests of the children.” Affirmed.