Attorney contempt; Direct criminal contempt; MCL 600.1701; MCL 600.1711; In re Contempt of Tauber; Contempt sentencing; Different judge; In re Contempt of Scharg; Fifth Amendment privilege; Self-incrimination; In re Baker; Compelled testimony; In re Blakeman

The court held that the probate court did not abuse its discretion by holding appellant-attorney in direct contempt or by later sentencing her, but that it violated her Fifth Amendment rights by compelling testimony about missing trust funds. Appellant was counsel in two trust matters before the same judge and was held in contempt for abruptly leaving a Zoom hearing, failing to transfer Harrison Trust funds, and failing to provide an accounting in the Mausolf matter. The court first held that direct contempt was proper because appellant said, “Do what you need to do” and left the Zoom hearing before the probate court ruled on her adjournment request, which prevented it from resolving pending matters and occurred in “the immediate view and presence” of the court. The court rejected her medical explanation because the probate court observed that she appeared “lucid and competent,” was able to challenge opposing counsel’s timeline, and provided no adequate medical documentation before the hearing. The court also held that sentencing did not have to be assigned to another judge under Scharg because the delay was caused by appellant leaving the Zoom call and filing multiple motions, while the probate court acted “‘out of an abundance of restraint’” and gave her “‘more than ample opportunity’” to address the trust assets. However, the court held that appellant’s Fifth Amendment rights were violated when the probate court threatened direct contempt and imprisonment after she invoked the privilege about where the missing funds had gone. Still, reversal was unwarranted because she had already testified that she lacked the funds, and the later order merely required the accounting the probate court had long been ordering. Affirmed.

Secured transactions; Personal property liens under the mechanics’ lien statute; MCL 570.185; Consideration of an affidavit; Violation of MCR 2.119(C); Discretion to consider untimely documents; Harmless error

The court held that any error in the trial court’s considering an affidavit was harmless, and that the trial court did not err in imposing a statutory lien under MCL 570.185 against proceeds from the sale of the collateral. The case was “a secured-transactions case primarily involving liens and other security interests against boats and boat parts.” Plaintiff contracted with defendant-Aquaform to provide Aquaform financing to manufacture boats for customers. Under the contract, plaintiff had a “‘first priority purchase money security interest’ in those boats and other related personal property.” It later sued Aquaform and sought possession of the collateral. Appellee-Northshore Dock asserted “that under MCL 570.185, it was entitled to retain possession of 19 boats” it worked to assemble and complete for sale. The trial court order at issue on appeal established liens against the collateral, and proceeds from its sale, in Northshore Dock’s favor under the mechanics’ lien statute. Plaintiff first argued the trial court erred in considering an “affidavit and accompanying documents served by Northshore three days before the dispositive motion hearing,” in violation of MCR 2.119(C). But the court noted that plaintiff did not argue or otherwise show “how the outcome of this case might have been different had the affidavit been served in compliance with MCR 2.119(C) or had the trial court otherwise exercised its judicial discretion.” It did not actually dispute the affidavit’s contents or argue “that the trial court’s ultimate ruling would have been different had plaintiff been given a few extra days to review the affidavit.” Plaintiff also asserted that in “imposing a lien against proceeds from the sale(s), the trial court effectively awarded Northshore monetary relief from plaintiff without requiring [it] to commence a separate action.” However, the court noted that “the trial court did not enter judgment against plaintiff on behalf of Northshore. That is, plaintiff is not personally liable to Northshore under the trial court’s order. Rather, the trial court imposed a mechanic’s lien against the collateral and proceeds from the sale(s) of the collateral, such that Northshore may be entitled to some or all of those proceeds in accordance with that lien. Courts have long recognized that a mechanic’s lien may attach to the sale proceeds of collateral that itself is subject to a mechanic’s lien.” Affirmed.

Ineffective assistance of counsel; Failure to object; Prejudice; People v Yeager; Sentencing; Scoring of OV 11; MCL 777.41(1)(c); People v Johnson; Consecutive sentencing; MCL 750.520b(3); People v Bailey

In defendant’s appeal, the court rejected his ineffective assistance of counsel claim. In the prosecution’s appeal, it held that the trial court did not err in scoring 0 points for OV 11 and in imposing concurrent, rather than consecutive, sentences for defendant’s CSC I convictions. Defendant asserted his trial counsel was deficient for not objecting to testimony by the doctor (G) who examined the victim about what the victim said during the exam. The court concluded that “even if counsel performed deficiently, defendant” failed to show there was a reasonable probability that the trial’s outcome would have been different. It noted that “the victim’s testimony about the assaults was corroborated by defendant’s signed confession.” Thus, even if trial counsel had objected to G’s “hearsay testimony and the trial court had refused to admit [it] into evidence, it is unlikely the jury would have reached a different verdict in light of the great weight carried by defendant’s confession to the same allegations to which the victim testified.” The court further noted that “trial counsel repeatedly testified at the Ginther hearing that defendant personally and adamantly insisted that [G’s] report and testimony come into evidence so that trial counsel could cross-examine [G] regarding the victim’s allegations in a manner designed to elicit doubt as to defendant’s guilt. Arguably, if the evidence could have been excluded on hearsay grounds, then trial counsel had an obligation to at least inform and advise defendant of that option. But there is no record evidence that, had trial counsel done so, defendant would have supported an objection to the hearsay testimony rather than continuing to demand that it come into evidence.” As to the prosecution’s appeal, 0 points were properly scored for OV 11 given “the lack of evidence establishing a connective relationship between defendant’s additional criminal sexual penetrations and the sentencing offenses[.]” And there was “no clear error in the trial court’s finding a lack of evidence that the multiple penetrations occurred immediately following one another so as to be part of a continuous time sequence and accordingly the same transaction.” As a result, it correctly concluded that it lacked the authority to impose consecutive sentences. Affirmed.

Right to counsel; Substitute counsel; People v Buie; Self-representation; MCL 763.1; People v Anderson; Venue; MCL 762.3(2); People v White; Unavailable witness; MRE 804; People v Garland; Lay witness opinion testimony; MRE 701; People v Fomby; Ineffective assistance of counsel; Miller v Alabama hearing; Juvenile life without parole (LWOP); MCL 769.25; People v Parks

The court held that defendant was not entitled to relief on his conviction-related claims, but that his sentences had to be vacated because counsel was ineffective at the Miller hearing. He was convicted of felony murder and felony-firearm for a 1983 murder committed when he was 18 years old. The trial court imposed LWOP after a Miller hearing. On appeal, the court first held that the trial court did not abuse its discretion by denying counsel’s motion to withdraw because defendant’s complaints were “primarily of name-calling and generalized attacks,” counsel was prepared for trial, and a defendant may not create a breakdown by refusing to cooperate and then demand new counsel. The court next held that defendant did not unequivocally invoke self-representation because his statements were conditional, ambiguous, or focused on getting “a real lawyer.” The court also upheld venue in Newaygo County because the victim’s body was never found, evidence pointed to both Newaygo and Kent Counties, and there was no “conclusive evidence concerning the location” of the murder. The court further held that the unavailable-witness ruling was proper because the retired detective’s condition prevented him from testifying, and prior testimony satisfied confrontation requirements because counsel had an opportunity to cross-examine him. As to opinion testimony, the detective’s challenged statements explained the investigation and did not directly state that defendant was guilty. But the court held that trial counsel was ineffective at sentencing because the mitigation expert was “plainly unprepared,” offered only “rudimentary facts,” and had not reviewed essential records. Because a proper mitigation presentation could have called into question the trial court’s view that defendant had an idyllic childhood and little mitigation, defendant showed a reasonable probability of a different sentencing outcome. Affirmed in part, vacated in part, and remanded for a new Miller hearing and for resentencing.

“Legitimate purpose” jury instruction in an aggravated stalking case; People v Coones; Sufficiency of the evidence; MCL 750.411i; Threatening or harassing conduct; Ineffective assistance of counsel; Failure to raise a meritless argument; Adequate preparation

The court rejected defendant’s jury instruction and ineffective assistance of counsel claims, and held that there was sufficient evidence to support the aggravated stalking convictions. Defendant (who uses they/them pronouns) was previously married to one of the complainants and they share a child. The communications giving rise to this case were “in contravention of a court order and personal protection orders (PPOs).” Defendant first contended “the trial court erred by omitting a specific instruction regarding communications relating to parental rights as exceptions to harassment and as constituting legitimate purposes.” But the record showed the trial court gave “the standard jury instructions, including all elements of aggravated stalking, and instructed that each element must be proven beyond a reasonable doubt. [It] further instructed on the definition of harassment and the statutory exceptions, including constitutionally protected activity and conduct serving a legitimate purpose.” Thus, the court found “the jury received legally sufficient instructions.” The court rejected defendant’s claim “that their communications served a legitimate purpose—namely, to pursue a relationship with their daughter, demonstrate mental fitness, and address alleged interference with parental rights[,]” concluding that “the conduct at issue was not concerning any of those issues but rather was clearly in violation of a no-contact order and valid PPOs.” It determined this case was analogous to Coones “as defendant’s conduct was likewise clearly illegitimate because it contravened both PPOs issued at the behest of the complainants and the district court’s” no-contact order. It found that the majority of the “communications were wholly unrelated to parental rights,” that none of them “were for purposes of parenting time or related to concerns about” the child, and that the threats did “not constitute constitutionally protected speech, as true threats fall outside the ambit of First Amendment protections.” The court also held that the prosecution presented “ample evidence that a reasonable person would have perceived defendant’s conduct as threatening or harassing.” Affirmed.

No-fault insurance; Rescission; Howard v LM Ins Co; Material misrepresentation; Commercial vehicle use; Sherman v Progressive MI Ins Co; Late affidavit; Prussing v General Motors Corp; Equitable remedy; Balancing the equities

The court held that there was no genuine issue of material fact that plaintiff made a material misrepresentation in his no-fault application, but remand was required because the trial court failed to determine whether rescission was the proper equitable remedy. Plaintiff sought PIP benefits after a motor-vehicle crash, but defendant-CURE voided the policy from inception based on alleged misrepresentations in the application. On appeal, the court held that plaintiff falsely represented that the insured vehicle was not used for commercial purposes. The application denied use for food delivery, while plaintiff admitted at deposition that he had used the vehicle for Grubhub “for a few months” before the accident and before the application. He also did not remember informing CURE. Although plaintiff later claimed he began working for Grubhub sometime after procurement, the court found that assertion unsupported and concluded his deposition testimony was “unrefuted.” The court next held that materiality and reliance were established by the underwriting affidavit, which averred that CURE would not have “issued the specific” policy if plaintiff had disclosed commercial use. The court rejected plaintiff’s challenge to the affidavit as late-filed because the initial motion disclosed the substance of the affidavit, plaintiff had notice, and the trial court had discretion to consider it. However, the court declined to affirm rescission outright because Sherman requires a court sitting in equity to decide whether rescission is the proper remedy after finding a material, relied-upon misrepresentation. Affirmed but remanded for balancing of the equities.

Secured transactions; Personal property liens under the mechanics’ lien statute; MCL 570.185; Consideration of an affidavit; Violation of MCR 2.119(C); Discretion to consider untimely documents; Harmless error

The court held that any error in the trial court’s considering an affidavit was harmless, and that the trial court did not err in imposing a statutory lien under MCL 570.185 against proceeds from the sale of the collateral. The case was “a secured-transactions case primarily involving liens and other security interests against boats and boat parts.” Plaintiff contracted with defendant-Aquaform to provide Aquaform financing to manufacture boats for customers. Under the contract, plaintiff had a “‘first priority purchase money security interest’ in those boats and other related personal property.” It later sued Aquaform and sought possession of the collateral. Appellee-Northshore Dock asserted “that under MCL 570.185, it was entitled to retain possession of 19 boats” it worked to assemble and complete for sale. The trial court order at issue on appeal established liens against the collateral, and proceeds from its sale, in Northshore Dock’s favor under the mechanics’ lien statute. Plaintiff first argued the trial court erred in considering an “affidavit and accompanying documents served by Northshore three days before the dispositive motion hearing,” in violation of MCR 2.119(C). But the court noted that plaintiff did not argue or otherwise show “how the outcome of this case might have been different had the affidavit been served in compliance with MCR 2.119(C) or had the trial court otherwise exercised its judicial discretion.” It did not actually dispute the affidavit’s contents or argue “that the trial court’s ultimate ruling would have been different had plaintiff been given a few extra days to review the affidavit.” Plaintiff also asserted that in “imposing a lien against proceeds from the sale(s), the trial court effectively awarded Northshore monetary relief from plaintiff without requiring [it] to commence a separate action.” However, the court noted that “the trial court did not enter judgment against plaintiff on behalf of Northshore. That is, plaintiff is not personally liable to Northshore under the trial court’s order. Rather, the trial court imposed a mechanic’s lien against the collateral and proceeds from the sale(s) of the collateral, such that Northshore may be entitled to some or all of those proceeds in accordance with that lien. Courts have long recognized that a mechanic’s lien may attach to the sale proceeds of collateral that itself is subject to a mechanic’s lien.” Affirmed.

Attorney contempt; Direct criminal contempt; MCL 600.1701; MCL 600.1711; In re Contempt of Tauber; Contempt sentencing; Different judge; In re Contempt of Scharg; Fifth Amendment privilege; Self-incrimination; In re Baker; Compelled testimony; In re Blakeman

The court held that the probate court did not abuse its discretion by holding appellant-attorney in direct contempt or by later sentencing her, but that it violated her Fifth Amendment rights by compelling testimony about missing trust funds. Appellant was counsel in two trust matters before the same judge and was held in contempt for abruptly leaving a Zoom hearing, failing to transfer Harrison Trust funds, and failing to provide an accounting in the Mausolf matter. The court first held that direct contempt was proper because appellant said, “Do what you need to do” and left the Zoom hearing before the probate court ruled on her adjournment request, which prevented it from resolving pending matters and occurred in “the immediate view and presence” of the court. The court rejected her medical explanation because the probate court observed that she appeared “lucid and competent,” was able to challenge opposing counsel’s timeline, and provided no adequate medical documentation before the hearing. The court also held that sentencing did not have to be assigned to another judge under Scharg because the delay was caused by appellant leaving the Zoom call and filing multiple motions, while the probate court acted “‘out of an abundance of restraint’” and gave her “‘more than ample opportunity’” to address the trust assets. However, the court held that appellant’s Fifth Amendment rights were violated when the probate court threatened direct contempt and imprisonment after she invoked the privilege about where the missing funds had gone. Still, reversal was unwarranted because she had already testified that she lacked the funds, and the later order merely required the accounting the probate court had long been ordering. Affirmed.

Child protective proceedings; Removal order; Mootness; Gleason v Kincaid; Collateral legal consequences; In re Detmer/Beaudry

The court held that respondent’s appeal from the order removing her children from her care and custody was moot. Respondent appealed after the trial court removed her four children from her care following a continued preliminary hearing. While the appeal was pending, three children were returned to respondent’s care, and the remaining child turned 18 after the removal order. On appeal, the court first noted that mootness is “a threshold question” that must be addressed before the merits, and that “[a]n issue is moot when a subsequent event makes it impossible” to grant relief. Relying on Detmer/Beaudry, the court recognized that mootness has exceptions, including when an adverse judgment may have “collateral legal consequences” or when the case presents “an issue of public significance” likely to recur yet evade review. But the court held that no exception applied because the children had either returned home or aged out, leaving the court unable to give respondent the requested remedy. The court also noted that she had been invited to file supplemental briefing on mootness but provided no applicable exception. Dismissed.

Termination under § 19b(3)(c)(i); Due process; In re VanDalen; MCR 3.965(B); Notice; Suspension of visitation; MCR 3.965(C)(7)(a); MCL 712A.13a(13); Expert qualification; MRE 702; Hearsay; Out-of-court statement used to explain its effect on the listener; Reasonable reunification efforts; A respondent’s commensurate responsibility to participate; In re Frey; Dispositional order as to parenting time; MCL 712A.18(1)(p); In re Ott; Child’s best interests; Consideration of relative placement; In re Olive/Metts

In these consolidated appeals, the court held in respondent-mother’s appeal that her due process rights were not violated and that the trial court did not err in finding the DHHS made reasonable reunification efforts. In respondent-father’s appeal it held that the trial court did not clearly err in finding that § (c)(i) existed, that reasonable reunification efforts were made, and that terminating his parental rights was in his child’s (MH) best interests. As to the due process claims, the court first concluded that the trial “court was permitted to conduct the preliminary hearing in [the] mother’s absence under MCR 3.965(B)(1) because it found that notice was given.” She did not establish “that her due-process rights were violated by her absence at the [6/24/24] hearing when the [trial] court conducted the hearing as permitted by MCR 3.965(B)[.]” As to her claims related to the conduct of the adjudication trial, among other things the court held that because a therapist “clearly qualified as an expert under MRE 702,” the mother could not show the trial “court erred in permitting her to testify as such.” As to her reunification efforts argument, the court found that any “delay in the provision of services that resulted from [her] lack of participation does not indicate that DHHS failed in its duty to provide her those services.” Turning to the father’s appeal, it first rejected his challenge to the finding that § (c)(i) warranted termination, concluding the record did not support his assertion that he made ongoing, “meaningful progress on each of the issues identified by DHHS[.]” It held that the trial court did not clearly err in determining that domestic violence and substance abuse continued to be barriers to reunification. The court also found that parenting “time was appropriately suspended because the visits were harmful to MH.” And the trial court “appropriately considered the facts that weighed both for and against termination.” While the parent-child bond weighed against it, many of the other factors, such as the “father’s failure to adhere to and benefit from the case service plan, the advantages of MH’s foster-care placement, and the possibility of adoption, weighed in favor of termination.” Affirmed in both appeals.