Confirmation of an arbitration award; MCR 3.602(I); Alleged fraud in procuring the award; MCL 691.1703(1)(a); MCR 3.602(J)(2)(a) & (3); Harmless error

Holding that the trial court properly rejected defendant’s fraud argument, the court agreed with the trial court that plaintiff “was entitled to have his arbitration award against defendant confirmed.” Thus, it affirmed the trial court’s order granting plaintiff summary disposition in this action seeking confirmation of the arbitration award. Defendant asserted that “he should be able to conduct further discovery into whether plaintiff procured the arbitration award through fraud on the basis of communications that a state regulatory body sent to plaintiff at” a certain email address. He contended that these emails suggested “that the arbitration award was procured through fraud because they show that plaintiff used this email address to communicate with the state regulatory agency, yet plaintiff never disclosed this email address to defendant during arbitration.” To support this claim, defendant offered evidence that the regulatory agency associated the “email address with plaintiff, and that [it] had sent emails to plaintiff at this email address. But defendant failed to produce any evidence supporting his assertion that plaintiff failed to disclose this email address to defendant during arbitration. Without” such evidence, defendant did not present “evidence sufficient to establish that ‘further discovery presents a fair likelihood of uncovering factual support for’ defendant’s assertion that plaintiff procured the arbitration award through fraud.”

Antitrust; Claims under §§ 1 & 2 of the Sherman Act; Private right of action; 15 USC § 15(a); “Standing”; “Proximate causation”; Apple Inc v Pepper; Illinois Brick Co v Illinois

On petition for a rehearing en banc, the original panel reviewed the petition and concluded in an order that the issues raised were fully considered in the original submission and decision (see eJournal # 84498 in the 10/21/25 edition). The petition was then circulated to the full court and no judge requested a vote on the suggestion for rehearing en banc. Thus, the petition was denied. The court held in the original decision that plaintiff-United Allergy’s Sherman Act claims against defendants-insurers and an allergy-care medical group were properly dismissed because plaintiff, as an “indirect seller,” was unable to establish proximate cause.

Courtroom closure during voir dire; Right to a public trial; People v Vaughn; “Fairness, integrity, or public reputation of the judicial proceeding”; People v Sherrill; Ineffective assistance of counsel; Failure to object to the decision to exclude spectators during voir dire; Prosecutorial error; Bolstering the credibility of key prosecution witnesses; Lay opinion testimony; MRE 701; Authentication of evidence; Hearsay; MRE 801(d)(2); Life imprisonment without the possibility of parole (LWOP) sentence; People v Taylor

The court affirmed defendant’s first-degree felony murder, armed robbery, and felony-firearm convictions, but vacated his LWOP sentence for his murder conviction and remanded for resentencing under Taylor. Defendant first argued that he was denied his right to a public trial “when the trial court closed the courtroom to spectators during voir dire.” The record showed “that the trial court did not order spectators barred from the courtroom for the entirety of the trial. Rather, [it] stated that the courtroom did not have room for spectators who were not potential jurors during the process of voir dire. In other words, the overriding interest that the trial court noted as the rationale for its determination to close the courtroom during voir dire was that it simply did not have room to include 65 potential jurors as part of the jury venire and to also allow spectators.” The court concluded “that the trial court recognized that the need to limit spectators to ‘make the courtroom a safer environment for the jury and others’ was an overriding public interest that would have been prejudiced if the courtroom had remained open to the public during the voir dire proceedings.” It noted that the “trial court repeatedly made it clear that there was simply insufficient space to accommodate both the jury venire and spectators.” The record also showed that its “closure of the courtroom was not broader than necessary to protect the overriding public interest of maintaining the safety of everyone in the courtroom.” The record did not indicate whether it “considered any other reasonable alternatives. Further, the trial court did not make factual findings on the record to support its decision to close the courtroom. However, similar to the defendant in Sherrill,” defendant in this case did not object to the closure, “which would have given the trial court an opportunity to consider any other reasonable alternatives and make factual findings on the record. Moreover, even though [it] did not make express findings concerning whether it had considered (and presumably rejected) possible alternatives to closing the courtroom, it did state on the record on more than one occasion throughout voir dire that there was not room in the courtroom for much more than the 65 people that were part of the jury venire, counsel, and the [trial] court staff, and that a temporary closure to spectators who were not part of the venire was required.” Defendant did not establish “that these factual statements by the trial court were clearly erroneous.” Thus, the court was satisfied that the trial “court’s reasons for closing the courtroom to spectators were discernible from the record.” Defendant failed to establish “plain error that ‘is readily apparent from the record.’”

Sentencing; Plea agreement under FedRCrimP 11(c)(1)(B); Whether the government breached the agreement; Failure to object to the “reckless endangerment” enhancement; Failure to object to the presentence report’s (PSR) calculation of the offense level; Procedural & substantive reasonableness; 18 USC § 3553(a)

The court held that the government did not breach the parties’ plea agreement by failing to object to the PSR’s recommendation of a reckless endangerment sentencing enhancement or to the PSR’s higher offense level. The agreement “did not obligate the government to object to an enhancement the parties had not taken off the table” and it was not obligated to object to the corrected offense level in the PSR. The court also rejected defendant-Messersmith’s claim that his sentence was procedurally and substantively unreasonable. He pled guilty to FIP. His plea agreement provided for a base level of 20. However, the PSR contained a base offense level of 24 due to a second prior controlled substance felony conviction not contemplated during plea negotiations. The parties also agreed to certain enhancements but not the two-level one for reckless endangerment the PSR added. They acknowledged that the PSR was the accurate measure, and the district court adopted its Guidelines range of 110 to 120 months. It considered the § 3553(a) factors and sentenced him to 110 months. Messersmith argued that the government breached the plea agreement by not objecting to the reckless endangerment enhancement. But the court noted that the agreement “expressly allowed either party to ‘object to or argue in favor of other calculations.’ And where a plea agreement expressly preserves the government’s ability to argue in favor of other calculations, the government does not breach the agreement by exercising that reserved authority—or, in this case, by not objecting when the PSR essentially does the same.” The government also did not breach the agreement by agreeing with the PSR's calculation of the base offense level. It “did not recommend this higher base offense level; instead, it joined Messersmith in urging application of a total offense level of 21.” Even if the agreement had been breached, the “district court was independently obligated to calculate the Guidelines correctly based on the two qualifying felonies identified in” the PSR. Messersmith’s sentence was at the bottom of the Guideline’s range, and he could not establish any violated “reasonable expectation.” As to his reasonableness challenge, there was no procedural error where “the district court listened to Messersmith’s arguments and accounted for his unique history and circumstances when sentencing him.” Further, it “imposed a reasonable, individualized sentence” after considering the § 3553(a) factors. Affirmed.

Prohibiting a party from presenting exhibits & witnesses at an evidentiary hearing; Pretrial scheduling orders; MCR 2.401(B)(2); Reasonable limitations on the presentation of evidence; MRE 611; Pro se litigants

Noting that the trial court never entered a scheduling order, the court concluded that it was not “a reasonable limitation to completely preclude plaintiff from introducing her proffered evidence, especially considering that” she was a pro se litigant. Plaintiff appealed the trial court’s order modifying her custody arrangement with defendant concerning their young child. She contended that it erred in “precluding her from calling her friends and family as witnesses and by not receiving her exhibits into evidence at the evidentiary hearing” on defendant’s motion to modify custody. The court agreed. It concluded that, in “failing to comply with MCR 2.401(B)(2), the trial court never instructed the parties that they were required to exchange witness lists and exhibits before the hearing.” Pursuant to MRE 611, a “trial court ‘must exercise reasonable control over the mode and order of examining witnesses and presenting evidence,’ and can therefore reasonably limit the presentation of evidence.” But the court did not find the limitation here reasonable, noting that “plaintiff was a pro se litigant navigating the trial court procedures without a scheduling order” and that such “litigants are allowed some leniency in pursuing their claims.” Thus, it concluded that the trial court abused its discretion. Vacated and remanded. The court retained jurisdiction.

Surplus tax-foreclosure proceeds; Notice deadline; MCL 211.78t(2); In re Petition of Muskegon Cnty Treasurer for Foreclosure; Takings & due process challenges to MCL 211.78t; Rafaeli, LLC v Oakland Cnty; Proceeds from sale; Demolition guaranty; MCL 211.78m(8); Minimum bid; Post-foreclosure taxes; MCL 211.78m(16)(c)

The court held that: (1) respondent in Docket No. 370480 was not entitled to remaining proceeds because he missed the statutory notice deadline, and (2) the Randall Estate in Docket No. 370482 was not entitled to proceeds attributable to a demolition guaranty but the Mathias Estate was entitled to $239.70 in additional remaining proceeds. In Docket No. 370480, the circuit court denied respondent’s motion because he did not file Form 5743 until 2/22, well after 7/1/21 deadline in MCL 211.78t(2). On appeal, the court rejected attempts to sidestep Muskegon Treasurer, explaining the prior published decision addressed the Takings Clause and due-process notice arguments and remained binding, and it concluded respondent’s theories either were undeveloped or already “considered and rejected.” In Docket No. 370482, the court held that the Randall Estate could not treat an $81,926.63 demolition guaranty as sale proceeds because the money “had nothing to do with the sale price of the property” and was “posted as security and returned” after demolition, so it was not “proceeds from the sale of the property” under MCL 211.78m(8). It also found no error in not allowing testimony where the estate could not identify a material factual dispute. For the Mathias Estate, however, it held that adding $239.70 in post-foreclosure taxes into the minimum bid improperly reduced remaining proceeds, stating “it does make a difference,” and it ordered that amount awarded on remand. Affirmed in Docket No. 370480. Affirmed in part, reversed in part, and remanded in Docket No. 370482.

Surplus tax-foreclosure proceeds; Notice deadline; MCL 211.78t(2); In re Petition of Muskegon Cnty Treasurer for Foreclosure; Takings & due process challenges to MCL 211.78t; Rafaeli, LLC v Oakland Cnty; Proceeds from sale; Demolition guaranty; MCL 211.78m(8); Minimum bid; Post-foreclosure taxes; MCL 211.78m(16)(c)

The court held that: (1) respondent in Docket No. 370480 was not entitled to remaining proceeds because he missed the statutory notice deadline, and (2) the Randall Estate in Docket No. 370482 was not entitled to proceeds attributable to a demolition guaranty but the Mathias Estate was entitled to $239.70 in additional remaining proceeds. In Docket No. 370480, the circuit court denied respondent’s motion because he did not file Form 5743 until 2/22, well after 7/1/21 deadline in MCL 211.78t(2). On appeal, the court rejected attempts to sidestep Muskegon Treasurer, explaining the prior published decision addressed the Takings Clause and due-process notice arguments and remained binding, and it concluded respondent’s theories either were undeveloped or already “considered and rejected.” In Docket No. 370482, the court held that the Randall Estate could not treat an $81,926.63 demolition guaranty as sale proceeds because the money “had nothing to do with the sale price of the property” and was “posted as security and returned” after demolition, so it was not “proceeds from the sale of the property” under MCL 211.78m(8). It also found no error in not allowing testimony where the estate could not identify a material factual dispute. For the Mathias Estate, however, it held that adding $239.70 in post-foreclosure taxes into the minimum bid improperly reduced remaining proceeds, stating “it does make a difference,” and it ordered that amount awarded on remand. Affirmed in Docket No. 370480. Affirmed in part, reversed in part, and remanded in Docket No. 370482.

Reasonable reunification efforts; MCL 722.638(1)(a)(iii); Aggravated circumstances; Termination under §§ 19b(3)(b)(i), (j), (k)(iii), & (k)(iv); Children’s best interests; Bond with the children; Incarceration

The court held that because the trial court found respondent-father subjected the child (CJC) to abuse involving “battering, torture, or other serious physical harm,” it did not err by concluding “reasonable efforts toward reunification were not required.” The court also rejected his claim that the trial court erred in finding “one or more statutory grounds for termination was established.” Finally, it determined the trial court did not when it found that termination was in both children’s best interests. Respondent first argued “that the trial court erred when it terminated his parental rights because [it] did not order that the [DHHS] offer services toward reunification or make findings of aggravated circumstances such that the services were not required to be offered.” He argued “that, while the trial court discussed the seriousness of CJC’s injuries, and respondent’s failure to seek prompt emergency medical care, it never connected those fact to a formal finding of aggravating circumstances.” While respondent was “correct that, on the record, the trial court did not specifically link its findings that respondent had physically abused the child to its decision to not order reasonable efforts toward reunification, respondent does not offer this Court any authority that such a specific statement on the record is required. ‘[W]here a party fails to cite any supporting legal authority for its position, the issue is deemed abandoned.’” The court held that even “if the issue was not abandoned, this Court is not aware of any authority for respondent’s proposition. In the order of disposition, the court stated that it was not ordering the [DHHS] to offer services toward reunification because of respondent’s conviction of third-degree child abuse.” The trial court also made findings that respondent “intentionally caused serious harm to CJC and caused the loss or impairment to one or more of his limbs. There also did not appear to be any confusion among trial counsel” that the DHHS “was not offering services and that the court made findings relative to the injuries suffered by the children.” Next, respondent argued that the trial court “erred because there was not clear and convincing evidence that one or more statutory grounds for termination was established.” The trial court terminated his rights under §§ (b)(i), (j), (k)(iii), and (k)(iv). Respondent accurately noted “that the trial court relied on the testimony of Drs. [B] and [S] when concluding that CJC’s burns were nonaccidental.” Contrary to his “suggestion in his brief on appeal, neither [doctor] equivocated that the large burns on CJC’s legs were the result of an immersion injury that was indicative of a ‘controlled event.’” The court noted that “the trial court disagreed with respondent’s argument that the medical doctors were conflicted in their diagnosis of the source of CJC’s burns.”

Termination under §§ 19b(3)(b)(i) & (b)(ii); In re LaFrance; Children’s best interests; In re Olive/Metts; In re White

The court held that §§ (b)(i) and (b)(ii) were met and termination served the children’s best interests. The children lived with respondent-mother and respondent-father at the paternal grandfather’s home when the father called emergency services after one infant stopped breathing. Hospital evaluations revealed extensive injuries to the twins consistent with nonaccidental trauma, including brain bleeding, rib and arm fractures in various stages of healing, malnutrition, and other serious conditions. The DHHS filed a petition seeking termination, and the children were removed. The twins’ ongoing medical needs required frequent specialist care and intensive therapies, while the children did not sustain further broken bones during nearly two years in foster care. The trial court terminated respondent-father’s parental rights under multiple subsections. On appeal, the court held that statutory grounds were proven because the record “overwhelmingly supports the conclusion” that two children suffered severe, repeated abuse, and the trial court could terminate under § (b)(i) if the father was the abuser or under § (b)(ii) if, as a primary caretaker, he failed to prevent the abuse, especially where respondents lacked any adequate explanation for the injuries and why many went unreported. The court also held that termination served the children’s best interests because the bond with the father was minimal due to incarceration and lack of contact since 12/21,and the children needed stability and permanency. The twins had extraordinary medical needs that the foster placements were meeting after training, and the record supported adoptive prospects, with the court emphasizing termination was “in all likelihood necessary to save their lives.” Affirmed.

Child’s best interests; In re White; Consideration of relative placement; In re Olive/Metts; Parent-child bond

Holding that the trial court did not clearly err in finding that terminating respondent-father’s parental rights was in the child’s (JCS) best interests “due to JCS’s need for safety[,]” the court affirmed the termination order. Respondent asserted that the trial court clearly erred “because it failed to consider JCS’s placement with his mother. However, the trial court did explicitly consider” this placement in making its best-interest determination. It “stated, ‘So I wanted to put that on the record that the Court did consider placement with a relative. But ultimately decides that it’s in the best interest of the child to terminate.’ Thus, the trial court did not clearly err by concluding that, despite JCS’s placement with his mother, termination of respondent’s parental rights was in” JCS’s best interests. As to respondent’s claim about the bond between he and JCS, the trial court acknowledged JCS’s testimony “that he felt better not seeing respondent, he did not want to have contact with respondent, and he was trying to move forward and could do that better if he did not have contact with [him]. The trial court further acknowledged JCS’s testimony that respondent would ‘whoop’ JCS for no reason and” also sexually abused him. “The trial court stated that as a result of this abuse, JCS had seen multiple therapists, was diagnosed with PTSD, and was hospitalized four times. Thus, [it] clearly considered respondent’s relationship with JCS based on JCS’s testimony, which demonstrated that JCS had no interest in maintaining any sort of bond with respondent.”