Sentencing; Scoring of OV 14; MCL 777.44(1)(a) & (2)(a); To “lead”; People v Dickinson; Resentencing; People v Francisco

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see eJournal # 85999 in the 7/7/26 edition), vacated defendant’s sentences, and remanded the case to the trial court for resentencing. It held that the trial court erred in scoring OV 14 and that defendant was entitled to resentencing because correcting the score changed the applicable guidelines range. The court agreed with Judge Bazzi’s dissent that, “considering the entire criminal transaction pursuant to MCL 777.44(2)(a), there” was insufficient record evidence “to support the trial court’s determination that defendant was ‘a leader in a multiple-offender situation’ for purposes of” OV 14 pursuant to “MCL 777.44(1)(a) under either of the trial court’s alternate rationales for assigning points. For purposes of scoring OV 14, the Court of Appeals” held in Dickinson that “to ‘lead’ is defined in relevant part as, in general, guiding, preceding, showing the way, directing, or conducting.” In addition, it has “directed trial courts to ‘consider whether the defendant acted first or gave directions or was otherwise a primary causal or coordinating agent’ for purposes of analyzing OV 14.” Assuming without deciding that this case involved a multiple offender situation, there was “insufficient evidence that defendant directed, coordinated, or guided any other offender in the criminal transactions that occurred.” Thus, the trial court clearly erred in finding “by a preponderance of the evidence that [he] was a leader in a multiple offender situation.” Given that he has an early release date in November, the court directed “the trial court to expedite proceedings on remand.”

Mistrial; Prosecutorial error; Other-acts evidence; MRE 404(b); Distinguishing People v Ullah; Curative instruction; Consent instruction; Right to present a defense; M Crim JI 20.27; CSC III under MCL 750.520d(1)(b); CSC IV under MCL 750.520e(1)(b); Force or coercion; Right to testify; Waiver; People v Bonilla-Machado; Ineffective assistance of counsel; Strickland v Washington; Scoring of OV 8; MCL 777.38(1)(a); Asportation or captivity; People v Barrera; Resentencing; People v Francisco

The court held that defendant-Hniker was not entitled to a mistrial, consent instruction, or new trial based on right-to-testify or ineffective-assistance claims, but was entitled to resentencing because OV 8 was improperly scored. Hniker was convicted of CSC III and CSC IV after the victim testified she awoke on his couch to nonconsensual sexual contact. The trial court denied his mistrial motion after the victim made an unsolicited other-acts comment, refused a consent instruction, declined to reopen proofs after he had waived his right to testify, and scored 15 points for OV 8. On appeal, the court held a mistrial was not warranted because the challenged testimony was in answer to a “single, open-ended” proper question, was immediately stricken, and was not intentionally elicited by the prosecutor. The court next held that the consent instruction was unsupported because there was “nothing to suggest” the victim was awake and consenting when the sexual contact began, and the force-or-coercion instructions sufficiently protected Hniker’s rights. It also rejected his right-to-testify and ineffective-assistance claims because he knowingly waived testimony and failed to show prejudice. But the court held that OV 8 was improperly scored because the victim voluntarily went to the apartment, there was no evidence she was moved to greater danger, and “[n]o asportation occurred.” Affirmed, but remanded for resentencing.

Motion to quash; Resisting-or-obstructing a police officer; MCL 750.81d(1); Reasonable suspicion for a brief stop; People v Prude; Approaching a person in a public place & attempting to ask questions; People v Williams; Consideration of defendant’s flight under the totality of the circumstances; Distinguishing United States v Jeter (6th Cir); Admission of alleged hearsay; Statement offered to explain why a police officer acted as the officer did; People v Chambers

The court held that defendant’s motion to quash a resisting or obstructing charge was properly denied because under the totality of the circumstances, the officers had reasonable suspicion when they ordered him to stop. It also rejected his hearsay claim because the statement in question was offered to show why an officer (V) located and approached him, not to show that a bulge actually existed in defendant’s pocket. Defendant argued that the charge should have been quashed because the officers did not have “reasonable suspicion when they ordered him to stop.” The court disagreed. Before V issued the command, he “knew that defendant was walking at 11:15 p.m. in an area associated with violent crime. [V] personally observed defendant wearing dark clothing and a ski mask and walking across an open field. He had also received” an FBI agent’s (G) “firsthand report that defendant kept his hands in the front pocket of his hoodie and appeared to have a bulge in that area. Defendant then fled as [V] opened the door of a marked patrol vehicle, before [V] could utter a word. [V] also had encountered several other individuals there who wore ski masks and dark clothing while unlawfully carrying firearms.” While being present “in a high-crime area does not, by itself, establish reasonable suspicion[,]” and wearing a ski mask in December is not inherently suspicious, “facts that are insufficient separately may establish reasonable suspicion” when considered collectively. And G’s report “contributed to the officers’ suspicion.” The court further found that defendant’s “immediate flight provided the final and most significant circumstance.” In contrast to the defendant in Prude, he “fled before any command or detention.” Because the “officers had reasonable suspicion when they ordered defendant to stop[,]” the command was lawful. He kept “running after the emergency lights and siren were activated, and he later acknowledged that he then knew the police were pursuing him.” Thus, the preliminary exam evidence “supported a reasonable belief that [he] knowingly failed to comply with a lawful police command.”

Motion for new trial; Warrantless search; Legitimate expectation of privacy; Erroneously admitted firearm; Harmless constitutional error; Comparative analysis; People v Soriano; Identification evidence; Accomplice instruction; M Crim JI 5.5 & 5.6; Waiver; Ineffective assistance of counsel; Whether the evidence supported instructions; Instructions inconsistent with the defense theory

The court held that the erroneous admission of a handgun recovered in a warrantless search was harmless beyond a reasonable doubt, and that defendant-Ross waived his accomplice-instruction claim and failed to establish ineffective assistance. On remand from an earlier appeal, the trial court found Ross had a legitimate expectation of privacy in the searched residence and that the handgun was erroneously admitted, but denied a new trial on harmless-error grounds. On appeal, the court held that the prosecution satisfied the harmless constitutional error standard because the remaining evidence identifying Ross as the shooter was substantial. Applying Soriano, the court asked whether the average jury would have found the prosecution’s case “significantly less persuasive” without the handgun and ballistics evidence. It concluded it would not because that evidence “did not supply the critical link identifying defendant as the shooter.” Instead, the identification came from the victim, who knew Ross and selected him from an array, and from a witness’s testimony and cell-phone evidence connecting Ross to the planned transaction. The court also held that Ross waived his accomplice-instruction claim by approving the jury instructions, and counsel was not ineffective for failing to request the instructions because the evidence did not support that the witness knowingly assisted in the offenses and they would have been inconsistent with the defense theory. Affirmed.

No-fault benefits; Insurer priority; MCL 500.3114(1) & (2); “Motor vehicle operated in the business of transporting passengers”; Farmers Ins Exch v AAA of MI; Smith v Farm Bureau Mut Ins Co of MI; “Primary purpose/incidental nature test”; Michigan Assigned Claims Plan (MACP)

The court held that plaintiff-Figueroa’s vehicle was a “motor vehicle operated in the business of transporting passengers.” Thus, under MCL 500.3114(2), the vehicle’s insurer was responsible for paying her no-fault benefits. As a result, the court affirmed summary disposition for defendant-Farmers Insurance Exchange, which was assigned her claim for benefits through the MACP. Figueroa rented the vehicle involved in the accident giving rise to the case in order to use it to drive for a rideshare company that had an agreement with the car rental company “to provide vehicles for rideshare drivers. The rental agreement included insurance coverage.” But after the accident, she applied for benefits through the MACP. Farmers refused to pay her claim. On appeal, the court concluded that because “Figueroa was an operator of her vehicle, her claim must be analyzed under the first sentence of MCL 500.3114(2), not the second.” Applying the primary purpose/incidental nature test set forth in Farmers Ins Exch and recently discussed in Smith, the court concluded that, “even viewed in the light most favorable to Figueroa, her vehicle was primarily used to transport passengers. First,” while she could drive it “for personal reasons, she testified at her deposition that she rented the vehicle from Hertz as part of its relationship with Uber and that ‘the vast majority of the time and miles’ in the car was used to transport passengers for Uber. She further explained that she drove for Uber around five hours per weekday and that she did not use the vehicle extensively for personal use. Second, [she] testified that the only ‘job and income [she] had at the time of the’” accident was from driving for Uber. Thus, even viewed in the light most favorable to her, “transporting Uber passengers was the primary purpose of Figueroa’s business and was not merely incidental.”

Class action; Alleged violations of the Occupational Code & the Regulation of Collection Practices Act (RCPA); Statutes allowing recovery of actual damages or a minimum amount of recovery regardless of actual damages incurred; Rodriguez v Hirshberg Acceptance Corp (Rodriguez I); MCR 3.501(A)(5); Individual claims

The court held that the trial court properly dismissed plaintiffs’ putative class action based on MCR 3.501(A)(5) to the extent that they sought damages for violations of the Occupational Code and the RCPA. But as the court rule did not preclude their individual claims, it erred in dismissing those claims. Plaintiffs’ claims related to the business model in the collection industry that includes the use of forwarders or forwarding companies operating “as intermediaries between creditors and local collection agents.” Plaintiffs alleged “that this business model negatively affects licensed local collection agents.” They sought damages from defendants in part for alleged violations of the Occupational Code and the RCPA, which “provide for recovery of actual damages or a minimum amount of recovery regardless of actual damages incurred.” In Rodriguez I, the court held that MCR 3.501(A) barred class actions based “on statutes that provide for minimum amounts of recovery regardless of actual damages unless the statutes expressly permit recovery through class actions. Because neither the Occupational Code nor the RCPA expressly permit recovery through class action, the trial court reasoned that it was required to dismiss plaintiffs’ claims” based on Rodriguez I. Plaintiffs correctly noted that Rodriguez I was no longer binding as it was vacated. But this did not mean that it was wrongly decided; it only meant that the court was not bound by its reading of MCR 3.501(A)(5). It had to decide for itself whether the court rule barred class actions like the one here. It agreed with Rodriguez I and held “that MCR 3.501(A)(5) precludes class actions seeking to recover damages under statutes that mandate a minimum amount of recovery regardless of actual damages incurred and do not expressly permit recovery through class actions, like the Occupational Code and the RCPA.” But the court concluded that the court rule could not “be plausibly interpreted as preventing a plaintiff from bringing individual claims under statutes that authorize minimum amounts of recovery without regard to actual damages that are not recoverable through a class action.” Affirmed in part, vacated in part, reversed in part, and remanded.

Mortgage foreclosure; Res judicata; Collateral estoppel; Prior judgment; Summary disposition under MCR 2.116(C)(7); Interlocutory order; MCR 2.604(A); Pending action; MCR 2.116(C)(6); Alternative grounds for affirmance; Frivolous action; MCL 600.2591

The court held that summary disposition was proper because another pending action involved the same parties and claims, but the trial court erred by relying on res judicata and by finding the action frivolous based on a nonfinal order. Plaintiff-mortgagor Turner filed a second action against defendant-mortgage servicer seeking to undo a foreclosure after the trial court had granted defendant summary disposition in his first action, although claims against another party remained unresolved there. The trial court dismissed the second action on res judicata and collateral-estoppel grounds and found it frivolous. On appeal, the court held that the 2/24 order in the first action had no preclusive effect because, under MCR 2.604(A), an order resolving fewer than all claims or parties “does not terminate the action” and remains subject to revision before final judgment. But the court affirmed on alternative grounds under MCR 2.116(C)(6) because “[a]nother action has been initiated between the same parties involving the same claim,” meaning Turner had to pursue the claims in the still-pending 2023 case. Because the frivolous-action ruling rested on the mistaken premise that the prior order was final and with prejudice, the court vacated that finding. Affirmed in part, vacated in part, and remanded.

Ordinary negligence; Bowerman v Red Oak Mgmt Co, Inc

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 84552 in the 10/30/25 edition) to the extent “it vacated the trial court’s denial of summary disposition of plaintiff’s ordinary negligence claims and remanded for entry of an order granting defendants summary disposition of those claims.” The court remanded the case to the Court of Appeals for reconsideration in light of its recent decision in Bowerman. It denied appellant’s application for leave to appeal as a cross-appellant because it was not persuaded that it should review the question presented.

Mortgage foreclosure; Res judicata; Collateral estoppel; Prior judgment; Summary disposition under MCR 2.116(C)(7); Interlocutory order; MCR 2.604(A); Pending action; MCR 2.116(C)(6); Alternative grounds for affirmance; Frivolous action; MCL 600.2591

The court held that summary disposition was proper because another pending action involved the same parties and claims, but the trial court erred by relying on res judicata and by finding the action frivolous based on a nonfinal order. Plaintiff-mortgagor Turner filed a second action against defendant-mortgage servicer seeking to undo a foreclosure after the trial court had granted defendant summary disposition in his first action, although claims against another party remained unresolved there. The trial court dismissed the second action on res judicata and collateral-estoppel grounds and found it frivolous. On appeal, the court held that the 2/24 order in the first action had no preclusive effect because, under MCR 2.604(A), an order resolving fewer than all claims or parties “does not terminate the action” and remains subject to revision before final judgment. But the court affirmed on alternative grounds under MCR 2.116(C)(6) because “[a]nother action has been initiated between the same parties involving the same claim,” meaning Turner had to pursue the claims in the still-pending 2023 case. Because the frivolous-action ruling rested on the mistaken premise that the prior order was final and with prejudice, the court vacated that finding. Affirmed in part, vacated in part, and remanded.

Motion for disbursement of the remaining proceeds after a real property tax-foreclosure sale; Constitutionally adequate notice; In re Petition of Kent Cnty Treasurer for Foreclosure

In an order in lieu of granting leave to appeal, the court remanded the case (see eJournal # 84109 in the 8/14/25 edition for the Court of Appeals opinion) to the Court of Appeals for reconsideration in light of the court’s recent decision in Kent Cnty Treasurer. It directed the Court of Appeals “to address an issue that it did not address” in its initial review of the case as to “whether petitioner failed to provide claimant with constitutionally adequate notice of its right to claim surplus proceeds.” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Motion for disbursement of the remaining proceeds after a real property tax-foreclosure sale; Constitutionally adequate notice; In re Petition of Kent Cnty Treasurer for Foreclosure

In an order in lieu of granting leave to appeal, the court remanded the case (see eJournal # 84028 in the 7/30/25 edition for the Court of Appeals opinion) to the Court of Appeals for reconsideration in light of the court’s recent decision in Kent Cnty Treasurer. It directed the Court of Appeals “to address an issue that it did not address” in its initial review of the case as to “whether petitioner failed to provide respondents with constitutionally adequate notice of their right to claim surplus proceeds.” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.