Engaging a minor for commercial sexual activity (MCL 750.462e(a)); Sufficiency of the evidence; Sentencing; Proportionality; Imposition of an upward departure sentence without explanation; Waiver of jury instruction claims

While the court held that there was sufficient evidence to support defendant’s engaging a minor for commercial sexual activity conviction, it vacated his sentence because the trial court provided no explanation for its upward departure from the guidelines. Thus, it affirmed his conviction but remanded for resentencing. On appeal, the court first concluded that defendant waived his jury instruction claims when “defense counsel stated that he had ‘[n]o objection’ to” the instructions given. As to his sufficiency claim, the court held that the “evidence was sufficient to establish that defendant ‘recruited, enticed, harbored, transported, provided, or obtained’” the victim (IJ) “‘for commercial sexual activity’ with the intent that she would perform such activity. [His] conduct in repeatedly pressuring the girls to engage in sexual activity for money supports a finding that he recruited or enticed the girls into performing commercial sexual activity. Evidence that he paid for the Uber that transported” them to an address and immediately asked them “to engage in prostitution supports an inference that [he] arranged or paid for IJ’s transportation to the house for that purpose. Further, IJ’s testimony that [a codefendant] paid defendant for her services, and defendant then paid her, supports a finding that defendant provided IJ for commercial sexual activity.” The court noted that a “conviction under MCL 750.462e does not require that the minor be unwilling, and defendant’s statement that IJ ‘could make money,’ coupled with his subsequent payment to her, supports the inference that he induced the transaction and intended that it occur. The jury was entitled to disbelieve [his] testimony that he did not arrange for or profit from any sexual activity at the house.” But the trial court’s failure to justify the upward departure in sentencing him to 6 to 20 years when his guidelines range was 3 to 5 years constituted an abuse of discretion.

Personal jurisdiction; Bindover return; MCR 6.110(G); Ineffective assistance of counsel; Failure to object to administrative communication with jury; People v France; Deadlocked-jury instruction; M Crim JI 3.12; Plea bargaining; Lafler v Cooper; Consecutive sentencing possibility; Motion for new trial; MCR 6.431(B); Request for a hearing under People v Ginther; Disseminating sexually explicit matter to a minor (DSEM)

The court held that the circuit court had personal jurisdiction over defendant, that trial counsel was not ineffective as to the jury communication or the plea process, and that the trial court did not abuse its discretion by denying a new trial or Ginther hearing. Defendant was convicted of CSC I, CSC II, and DSEM involving two minor complainants. He argued that the circuit court lacked jurisdiction because the district court had not filed proper bindover return documents. The trial court rejected that argument and later denied his motion for a new trial. On appeal, the court first held that the record showed defendant was properly bound over and that the required return documents were in the circuit court file, noting that once a preliminary exam is held and a defendant is bound over, “‘the circuit court obtains jurisdiction over the defendant.’” The court next held that counsel was not ineffective for failing to object when the trial court answered a deliberating jury’s question outside counsel’s presence because the communication was “plainly administrative,” included the standard deadlocked-jury instruction, and was not prejudicial. It also held that defendant failed to show plea-stage prejudice because the trial court and prosecution told him on the record that consecutive sentencing could be sought and that sentences could be “stacked,” yet he still rejected the plea offer. Finally, the court held that no new trial or Ginther hearing was required because there were no grounds supporting reversal and no factual development would advance the ineffective-assistance claims. Affirmed.

Sentencing; Procedural reasonableness; Adequate explanation; Whether the district court relied on erroneous facts; Sufficiency of the evidence as to supervised release violations; Substantive reasonableness; Sentencing discretion; Imposition of an upward variance

Holding that defendant-Croom’s 24-month sentence for violating the conditions of his supervised release for a third time was procedurally and substantively reasonable, the court affirmed. After he pled guilty to money laundering and wire fraud conspiracy charges, he was sentenced to 30 months in prison followed by 5 years of supervised release. Due to his drinking and driving history, “the district court forbade him from using or possessing alcohol during his term of supervision.” After his first supervised release violations arising from drunk driving, he was sentenced at the low end of his guidelines range to 8 months. After the second, the district court honored the supervising officer’s request for leniency. About two years later, he admitted to three supervised release violations arising from another incident, including using alcohol. His guideline range was 8 to 14 months. On appeal, the court found as to procedural reasonableness that the district court “adequately explained the sentence it chose.” The district court determined that, based “on Croom’s recalcitrant drinking and driving and the danger his conduct posed to others, . . . a within-guidelines sentence would be ‘insufficient’ to deter similar conduct in the future. This fair-minded explanation sufficed.” He contended that it “improperly treated his revocation proceeding as an opportunity to impose more punishment for his state drunk driving offense.” But the court noted that “a sentencing court does not commit reversible error simply by considering how a federal sentence ‘would interact with its state counterpart.’” The court noted that this “is especially so when the same conduct ‘formed the basis of’ the state offense and the federal supervised release violation.” It also concluded that the district court did not clearly err in finding that a “mother and her two children were injured when Croom struck their car.” As to substantive reasonableness, the court held that the “district court’s firm but reasonable sentence did not exceed its discretion.” In light of the nature and extent of his breach of trust, his upward variance “sentence was not disproportionate, and it did not fail to account for any other relevant factors.”

Divorce judgment; Division of marital estate; Business valuation; Holder’s interest method; Fair market value; Kowalesky v Kowalesky; Olson v Olson; Separate property; Gift; Commingling; MCL 552.401; Reeves v Reeves; Spousal support; MCL 552.23; Berger v Berger; Attorney fees; MCL 552.13; MCR 3.206(D)(2)(a) & (b); Inability to pay; Litigation misconduct; Myland v Myland; Reed v Reed

The court held that the trial court did not err in valuing the marital businesses or treating the $250,000 down payment as defendant-ex-husband’s separate property, and did not abuse its discretion in awarding spousal support or denying additional attorney fees. The parties divorced after more than 30 years of marriage. Both challenged portions of the judgment dividing the marital estate, awarding plaintiff-ex-wife $3,500 in monthly spousal support for 96 months, and denying her request for more attorney fees. On appeal, the court held that the trial court had “great latitude” in valuing the parties’ disputed business interests, properly adopted plaintiff’s expert’s $517,000 valuation of a plastic surgery practice, and permissibly valued a dental practice at $304,634.50 by averaging the experts’ competing figures after finding the practice had “substantial value” and was a “healthy going concern.” The court next held that the $250,000 down payment retained its separate character because it came from defendant’s father, was traceable to that gift, and was not treated by the parties as marital property. It also held that the spousal-support award was fair where the trial court considered the relevant factors, found plaintiff had been “awarded substantial assets or cash that would allow [her] to live comfortably,” and found she was “able to work and provide for” herself. Finally, the court held that additional attorney fees were properly denied because plaintiff did not show she was unable to bear the expense or that defendant’s conduct caused the requested fees. Affirmed.

Case evaluation sanctions; Former MCR 2.403(O); MCR 1.102; Sufficiency of plaintiffs’ motion; Whether the verdict was sufficiently favorable to preclude sanctions; Former MCR 2.403(O)(4)(a) (cases involving multiple parties); Frank v William A Kibbe & Assoc, Inc; Broadway Coney Island, Inc v Commercial Union Ins Cos; Aggregate verdict; Sanctions under MCR 1.109(E) on the basis the motion was not adequately supported by law; Distinguishing Wolfson v Grech (Unpub); Motion for reconsideration; MCR 2.119(F)(3)

The court held that “plaintiffs obtained an aggregate verdict more favorable than the aggregate evaluation” and thus, former MCR 2.403(O)(4)(a) prohibited the imposition of case-evaluation sanctions against them. It affirmed the trial court’s order requiring the return of the case-evaluation sanctions paid to defendants after the first trial. It also affirmed the denial of defendants’ motion for reconsideration and the trial court’s refusal to sanction two of the plaintiffs. The sanctions were awarded during plaintiffs’ prior appeal. “The parties then entered a stipulated order under which plaintiffs paid $48,000, or 110% of the sanctions award, to defendants’ counsel.” After the first appeal, there was a retrial, and a jury awarded plaintiffs $4,344 against defendant-Cosmopolitan Homes and $4,344.05 against defendant-Wicker, for an aggregate verdict of $8,688.05. The case evaluation panel had entered a $6,000 evaluation in their favor against Wicker. In this appeal, the court first rejected defendants’ assertion “that plaintiffs’ motion for return of the $48,000 was fatally deficient[.]” As to the merits, former MCR 2.403(O)(4)(a) applied as multiple parties were involved. The court held in Frank “that an aggregate verdict is ‘more favorable’ for purposes of MCR 2.403(O)(4)(a) only if it exceeds the aggregate evaluation by more than the 10% required by MCR 2.403(O)(3).” Here, the aggregate case evaluation was $6,000 and the aggregate verdict was $8,688.05. “Former MCR 2.403(O)(4)(a) expressly protects a plaintiff who obtains the more favorable aggregate result.” The court also noted that the “parties’ stipulated order provided for reimbursement if [it] reversed and remanded for trial and plaintiffs were thereafter deemed the prevailing parties. Both conditions were satisfied.” Finally, the court rejected defendants’ arguments “that plaintiffs should have been sanctioned under MCR 1.109(E) because their motion for return of the funds was not adequately supported by law” and that the trial court abused its discretion by denying their motion for reconsideration.

Condemnation; Uniform Condemnation Procedures Act (UCPA); Good-faith written offer; MCL 213.55(1); Complaint requirements; MCL 213.55(4); Subject-matter jurisdiction; MCR 2.116(C)(4); Indiana MI Power Co v Community Mills Inc; Public use; Const 1963, art 10, § 2; Eminent domain; MCL 213.23; Public park; MCL 123.61; Necessity; MCL 213.56(2); Fraud, error of law, or abuse of discretion; Wayne Cnty v Hathcock; Subpoenas; Commissioner testimony; Relevance

The court held that plaintiff-county satisfied the UCPA’s jurisdictional requirements, proved a public use and necessity, and showed that the commissioners’ testimony was not relevant to the limited necessity inquiry. The county sought to condemn defendants-property owners’ cottage parcel located within Prairie View County Park after its board passed a resolution stating acquisition was needed to “complete and enhance” the park. The trial court denied defendants’ jurisdictional challenge, quashed subpoenas to individual commissioners, held an evidentiary hearing, and entered judgment for condemnation. On appeal, the court first held that the good-faith offer was not defective because MCL 213.55(1) did not require it to include a plan, and the complaint satisfied MCL 213.55(4) by attaching materials that “show and depict the property to be taken.” The court next held that the county established public use because it offered proof the property would be incorporated into a county park, and “a county park is clearly a public use.” It also held that defendants failed to show fraud, error of law, or abuse of discretion in the county’s necessity determination because the private residence interfered with park management and funding applications, establishing a “present necessity” to acquire the property. Finally, the court held that subpoenas to commissioners were properly quashed because a county board speaks through “official minutes and resolutions,” and individual motives were not probative absent evidence of fraud, error of law, or abuse of discretion. Affirmed.

Subject-matter jurisdiction; MCR 2.116(C)(4); Zoning board of appeals; Michigan Zoning Enabling Act; MCL 125.3605; Timely appeal; MCL 125.3606(3); MCR 7.122(A); Collateral attack; Zelasko v Charter Twp of Bloomfield; Quality Mkt v Detroit Bd of Zoning Appeals; Takings & due process claims; Ripeness; Rule of finality; Cummins v Robinson Twp; Building & soil-erosion permits; Construction Board of Appeals; MCL 125.1514; Motion to compel; MCR 2.116(H)

The court held that the circuit court lacked subject-matter jurisdiction over plaintiffs-property owners’ claims against defendant-village because the complaint was an untimely collateral attack on the zoning board of appeals’ decision, and their claims against defendant-county were not ripe. The Spences obtained permits to build a waterfront home, but after construction stalled, the village determined the zoning permit had expired and the zoning board denied their request for a new permit or variance. The county also told them their building and soil-erosion permits had expired. On appeal, the court held that the claims against the village were barred because MCL 125.3605 provides that a zoning board decision “shall be final,” subject to timely circuit-court appeal, and the complaint’s gravamen was to overturn that decision. It rejected the Spences’ claim that MCR 7.122(A)(2) allowed an unrestricted original action, reasoning that such a reading would nullify the zoning-appeal procedure. As to the county, the court held that the claims were not ripe because the Spences never reapplied for permits or challenged the county’s expiration decision, leaving a “complete failure to challenge any aspect” of that decision. The court also held that the trial court did not abuse its discretion by denying the motion to compel because the Spences did not provide the required MCR 2.116(H) affidavits. Affirmed.

Statutory conversion (MCL 600.2919a); The Garage Keeper’s Lien Act; Joy Oil Co v Fruehauf Trailer Co; Abandoned arguments

Holding that defendant abandoned its challenge to the trial court’s ruling that it violated the Garage Keeper’s Lien Act, the court affirmed the judgment for plaintiff in this conversion case. The case related to a vehicle leased by a nonparty (F) in a lease agreement with plaintiff. F defaulted on his payments and plaintiff sought to repossess the vehicle. F told plaintiff that it was at defendant’s garage. Plaintiff contacted defendant, which eventually advised plaintiff “that it intended to sell the vehicle under the Garage Keeper’s Lien Act to satisfy a $27,384.28 lien against the vehicle.” Plaintiff filed this suit, but the vehicle was eventually sold, and the case was reduced to a conversion action. The trial court later “entered a final judgment trebling plaintiff’s damages under MCL 600.2919a and awarding costs and attorney fees.” On appeal, defendant’s arguments all rested “on the unsupported assertion that it complied with the Garage Keeper’s Lien Act.” The court noted that it offered “no argument whatsoever to rebut the trial court’s reliance on” Joy Oil. In that case, “the garage-keeper performed work on the vehicle but ‘fail[ed] to prove that the repairs were made at the request of or with the consent of’ the owner, meaning it ‘ha[d] not sustained the burden of establishing a statutory garage-keeper’s lien.’” Defendant did not produce any “evidence that plaintiff consented to the work for which it asserted the lien and” failed to even acknowledge Joy Oil in “its brief, let alone distinguish it.”

Condemnation; Uniform Condemnation Procedures Act (UCPA); Good-faith written offer; MCL 213.55(1); Complaint requirements; MCL 213.55(4); Subject-matter jurisdiction; MCR 2.116(C)(4); Indiana MI Power Co v Community Mills Inc; Public use; Const 1963, art 10, § 2; Eminent domain; MCL 213.23; Public park; MCL 123.61; Necessity; MCL 213.56(2); Fraud, error of law, or abuse of discretion; Wayne Cnty v Hathcock; Subpoenas; Commissioner testimony; Relevance

The court held that plaintiff-county satisfied the UCPA’s jurisdictional requirements, proved a public use and necessity, and showed that the commissioners’ testimony was not relevant to the limited necessity inquiry. The county sought to condemn defendants-property owners’ cottage parcel located within Prairie View County Park after its board passed a resolution stating acquisition was needed to “complete and enhance” the park. The trial court denied defendants’ jurisdictional challenge, quashed subpoenas to individual commissioners, held an evidentiary hearing, and entered judgment for condemnation. On appeal, the court first held that the good-faith offer was not defective because MCL 213.55(1) did not require it to include a plan, and the complaint satisfied MCL 213.55(4) by attaching materials that “show and depict the property to be taken.” The court next held that the county established public use because it offered proof the property would be incorporated into a county park, and “a county park is clearly a public use.” It also held that defendants failed to show fraud, error of law, or abuse of discretion in the county’s necessity determination because the private residence interfered with park management and funding applications, establishing a “present necessity” to acquire the property. Finally, the court held that subpoenas to commissioners were properly quashed because a county board speaks through “official minutes and resolutions,” and individual motives were not probative absent evidence of fraud, error of law, or abuse of discretion. Affirmed.

Subject-matter jurisdiction; MCR 2.116(C)(4); Zoning board of appeals; Michigan Zoning Enabling Act; MCL 125.3605; Timely appeal; MCL 125.3606(3); MCR 7.122(A); Collateral attack; Zelasko v Charter Twp of Bloomfield; Quality Mkt v Detroit Bd of Zoning Appeals; Takings & due process claims; Ripeness; Rule of finality; Cummins v Robinson Twp; Building & soil-erosion permits; Construction Board of Appeals; MCL 125.1514; Motion to compel; MCR 2.116(H)

The court held that the circuit court lacked subject-matter jurisdiction over plaintiffs-property owners’ claims against defendant-village because the complaint was an untimely collateral attack on the zoning board of appeals’ decision, and their claims against defendant-county were not ripe. The Spences obtained permits to build a waterfront home, but after construction stalled, the village determined the zoning permit had expired and the zoning board denied their request for a new permit or variance. The county also told them their building and soil-erosion permits had expired. On appeal, the court held that the claims against the village were barred because MCL 125.3605 provides that a zoning board decision “shall be final,” subject to timely circuit-court appeal, and the complaint’s gravamen was to overturn that decision. It rejected the Spences’ claim that MCR 7.122(A)(2) allowed an unrestricted original action, reasoning that such a reading would nullify the zoning-appeal procedure. As to the county, the court held that the claims were not ripe because the Spences never reapplied for permits or challenged the county’s expiration decision, leaving a “complete failure to challenge any aspect” of that decision. The court also held that the trial court did not abuse its discretion by denying the motion to compel because the Spences did not provide the required MCR 2.116(H) affidavits. Affirmed.