Breach of an insurance contract; Policy interpretation; “Vacant”; “Tenant” or “owner or general lessee”; Doctrine of noscitur a sociis; Conducting “customary operations”; Relevance of the public health response to COVID-19

The court held that plaintiff was a “general lessee” under the parties’ commercial property insurance policy, and no reasonable juror could find that the building in question “had not been vacant for 60 days prior to the burst pipe.” Thus, it affirmed summary disposition for defendant-insurer. The building sustained water damage caused by the building’s fire-suppression sprinkler bursting after freezing. The policy stated that “coverage would not be provided for certain losses plaintiff suffered if the building was ‘vacant for more than 60 consecutive days’ before the loss or damage occurred. One such loss was for ‘[s]prinkler leakage, unless you have protected the system against freezing[.]’” Plaintiff conceded that it did not do so. But the policy defined “vacant” in two ways, one in respect to a tenant and the other in respect to the owner or general lessee. The parties disputed how to construe the policy “language and which definition of ‘vacant’ applies.” The court found that the “central inquiry is the nature of plaintiff’s possessory interest in the building. If [it] had an interest in a ‘unit or suite rented or leased to’ it, then it is a ‘tenant.’ If it had a possessory interest in ‘the entire building,’ then it is an ‘owner or general lessee.’ Here, plaintiff’s possessory interest was in the entire building, not merely a ‘unit or suite.’” Although it was “undisputed that plaintiff did not own the building, the policy’s inclusion of ‘general lessee’ appears designed precisely for situations like this: where a party technically does not own the building but exercises owner-like control over the entire premises under the terms of its lease.” In addition, “the building was vacant unless plaintiff—the general lessee—was using it to ‘conduct customary operations.’” While plaintiff was preparing to reopen its bowling center, “being prepared to open, even with the intention to do so later that month, is not the same as actually being open.” The customary operations of a bowling alley involve “members of the public paying for access to its space and specialized equipment to enjoy the sport of bowling.” Plaintiff did “not dispute that bowling had not yet resumed.” Finally, the court found that the timing of the public health response to COVID-19 was not relevant. Defendant “did not assume the risk of insuring a vacant building—regardless of why it was vacant.”

Juvenile lifer; Term-of-years resentencing; First-degree murder; MCL 750.316; MCL 769.25a(4)(c); Youth as mitigating factor; People v Boykin; People v Snow; People v Copeland; Miller v Alabama; Proportionality

The court held that the trial court did not abuse its discretion by resentencing defendant to 39 to 60 years for first-degree murder committed when he was 16 years old. Defendant was originally sentenced to life without parole, later resentenced to a term of years, and then resentenced again after remand for compliance with Boykin. On appeal, the court rejected defendant’s argument that the trial court failed to properly assess youth as a mitigating factor. The court reasoned that the record showed the trial court “painstakingly addressed each of the Miller factors,” even though there are “no magic words or phrases” required to show adequate consideration of youth. The trial court expressly recognized that defendant was “very young” and that being 16 had “a huge impact on decision-making.” It also considered his family environment, noting this was “not a case where he is living out on the streets” and that his parents “were trying their best to put him on the right path.” As to the offense, the trial court found the circumstances “egregious,” including that a three-year-old was struck in the head with a gun, and stated there were “absolutely no words for that.” The court also noted that the trial court considered rehabilitation, finding defendant “has the ability to rehabilitate.” The sentence was within the statutory range and the record showed youth was treated as mitigating. Affirmed.

Sentencing guidelines; PRV 1; PRV 2; MCL 777.51; MCL 777.52; Federal counterfeiting conviction; 18 USC § 471; MCL 750.251; Corresponding offense; People v Crews; Waiver; People v Hershey; Cobbs agreement; People v Smith

The court held that defendant’s sentence had to be vacated because his federal counterfeiting conviction was improperly scored as a high-severity felony under PRV 1. Defendant pled no contest to unarmed robbery and related offenses under a Cobbs agreement for a minimum sentence within the lower third of the guidelines range. The trial court scored PRV 1 at 25 points based on his federal conviction under 18 USC § 471. The court held that this was error because the federal offense corresponded to MCL 750.251, a Class E felony. Comparing the statutes, the court reasoned that both “seek to prevent and punish essentially the same conduct and harm” involving counterfeit money or obligations, making the federal conviction a “low-severity felony, not a high-severity felony.” It also held defendant did not waive the issue even though counsel conceded below that 25 points were proper because, under Hershey, advocating a contradictory scoring position at sentencing “does not constitute a waiver” in this context. Finally, the court held that resentencing was required despite defendant’s 45-month minimum still falling within the corrected range because the sentence exceeded the lower-third Cobbs agreement when measured against the properly scored range. Relying on Smith, it reasoned that the plea agreement implicitly required sentencing under “an accurate guidelines range,” and the scoring error affected the fairness of the proceedings. Vacated and remanded for resentencing, with plea withdrawal available if the trial court cannot follow the Cobbs agreement.

Motion for relief from judgment; MCR 6.508(D); Good cause & actual prejudice; Alleged Brady v Maryland violation; People v Christian; Newly discovered evidence; People v Cress; Information obtained under the Freedom of Information Act (FOIA)

The court held that defendant’s FOIA evidence did “not qualify as newly discovered evidence under MCR 6.508(D) or Cress,” and he was unable to establish that it constituted a Brady violation. Thus, it concluded that the trial court erred in granting his motion for relief from judgment under MCR 6.508(D). He was convicted of first-degree murder in 2015. His motion rested “on two related, but separate, grounds for relief: that the prosecutor failed to disclose exculpatory evidence in violation of Brady, and that defendant discovered new material evidence as established in Cress[.]” But the court noted that while he “consistently maintained that the information he obtained through the FOIA request regarding the police’s knowledge of alternative suspects qualified as newly discovered evidence sufficient to avoid the restrictions against bringing a motion for relief from judgment under MCR 6.508(D)[,]” there was ample evidence in the record suggesting that he “knew about the alternative suspects before he received the FOIA evidence. For instance, in” a prior appeal, he raised ineffective assistance of counsel claims “related to trial counsel’s failure to present evidence about the same alternative suspects at issue here. He did not, at that point, claim that the prosecution had withheld information about [them] or that he had not discovered them until after trial had concluded.” He also asserted that a police officer’s (E) “affidavit proved that he lied about the reasons for not testing” a glove found in the victim’s (K) vehicle for DNA until 2011. But the court noted that his prior ineffective assistance claims again belied “his current argument that the evidence was newly discovered. On direct appeal, defendant argued that trial counsel ‘was ineffective for failing to cross-examine witnesses regarding irregularities in the documentation for the Kevlar glove obtained from [K’s] vehicle.” The court found that E’s affidavit did “not establish any doubts or inaccuracies that were undetectable at the time of trial; indeed, defendant appears to have been aware of them all. The trial court thus erred in finding that defendant discovered new evidence that he could not have discovered at the time of trial.” It additionally erred in finding that he “established actual prejudice under MCR 6.508(D)(3). The record” did not support his assertion “that the alternative suspects were strong suspects.” Reversed.

Sufficiency of the evidence; CSC I conviction under MCL 750.520b(1)(c); “Force or coercion”; Unlawful imprisonment (MCL 750.349b); Ineffective assistance of counsel; Failure to object to the scoring of OV 11; Waiver; Proportionality; Presumption that a within-guidelines sentence is proportionate; Unusual circumstances

The court held that there was sufficient evidence to support defendant’s CSC I and unlawful imprisonment convictions. It also rejected his sentencing challenges, concluding that he abandoned or waived his ineffective assistance of counsel claims and that he failed to rebut the presumption that his within-guidelines sentence was proportionate. He was convicted of CSC I under MCL 750.520b(1)(c). He contended “that the victim’s testimony was insufficient evidence of ‘force or coercion’ to support” that conviction, and also insufficient to establish that he unlawfully restrained her movement for purposes of the unlawful imprisonment conviction. But the court held that her “testimony provided sufficient evidence to establish that he used force to accomplish sexual penetration. The victim testified that defendant pinned her to the bed and forced his penis into her mouth. [He] also physically assaulted her causing various injuries, including bruising.” It further held “that there was sufficient evidence of forcible restraint to support defendant’s unlawful imprisonment conviction.” The victim’s testimony was sufficient to establish that he “knowingly restrained her and that this restraint facilitated” the CSC I. Specifically, she testified that he “prevented her from leaving his side throughout the two-day ordeal and that defendant threatened her if she tried to run away.” This testimony provided the jury with sufficient evidence to conclude that he “forcibly confined her in the house under threat and actual use of force . . . .” He claimed that his sentences were “disproportionate because his criminal history did not justify” them and, in light of his age, they constituted cruel and unusual punishment. But he failed “to explain how his three prior felony convictions—which arose from his criminal sexual conduct with a minor—and his three misdemeanor convictions constitute unusual circumstances that render his sentence disproportionate.” Likewise, he failed “to explain how his age constitutes an unusual circumstance, and” the court noted that it “has already rejected the argument that a defendant’s age is sufficient to overcome the presumptive proportionality of” a within-guidelines sentence. Affirmed.

Custody; Whether testimony was inadmissible hearsay; MRE 801(c); Harmless error; Established custodial environment (ECE); MCL 722.27(1)(c); Applicable evidentiary standard; Kuebler v Kuebler; Findings on the statutory best-interest factors (MCL 722.23); Factors (b), (c), (d), (e), (f), (h), (j), & (k)

The court held that while the trial court erred in admitting certain testimony, the error was harmless, and that it correctly applied the clear-and-convincing evidence standard in this custody dispute. Further, the trial court’s findings on the challenged statutory best-interest factors were not against the great weight of the evidence. Thus, the court affirmed the trial court’s order affirming the referee’s recommendations to grant plaintiff-mother primary physical custody and both parties joint legal custody of their child, and establishing a parenting-time schedule. As to the hearsay issue, defendant-father “first introduced the idea of plaintiff’s belief that [the child] suffered from autism. Certainly, plaintiff’s subsequent testimony in response as to her state of mind and personal knowledge on the issue of her son’s potential medical diagnoses is relevant to the best interest factors in this case, specifically MCL 722.23(c), because it pertained to [her] capacity and disposition to provide the child with medical care and other needs. Her testimony in that regard was not hearsay under MRE 801(c) because it was admitted for a proper nonhearsay purpose: [she] made the statement while testifying at the hearing, i.e., she testified why she believed [the child] had autism and how that impacted her parenting.” As this testimony “was both relevant and not hearsay,” it was admissible. “Defendant also first introduced evidence of whether [the child] had been diagnosed with autism when he examined his first witness” on that issue. A documented autism diagnosis “would be relevant to this child custody matter” but the assertion that he “was, in fact, diagnosed by a qualified medical professional with autism was hearsay to the extent it was offered to prove that fact.” The court found that the “trial court erred, in part, by overruling defendant’s objection to plaintiff’s statement that [the child] was diagnosed by a psychiatrist with autism without additional evidence” and it erred in finding that the child was diagnosed with autism. But the court held that the error was harmless. The trial court only made “one finding of fact against defendant” as to the autism diagnosis, related to factor (c), and that factor “favored plaintiff even without the autism diagnosis finding.” The court also found that the determinations on all the challenged factors ((b), (c), (d), (e), (f), (h), (j), and (k)) were not against the great weight of the evidence.

Breach of an insurance contract; Policy interpretation; “Vacant”; “Tenant” or “owner or general lessee”; Doctrine of noscitur a sociis; Conducting “customary operations”; Relevance of the public health response to COVID-19

The court held that plaintiff was a “general lessee” under the parties’ commercial property insurance policy, and no reasonable juror could find that the building in question “had not been vacant for 60 days prior to the burst pipe.” Thus, it affirmed summary disposition for defendant-insurer. The building sustained water damage caused by the building’s fire-suppression sprinkler bursting after freezing. The policy stated that “coverage would not be provided for certain losses plaintiff suffered if the building was ‘vacant for more than 60 consecutive days’ before the loss or damage occurred. One such loss was for ‘[s]prinkler leakage, unless you have protected the system against freezing[.]’” Plaintiff conceded that it did not do so. But the policy defined “vacant” in two ways, one in respect to a tenant and the other in respect to the owner or general lessee. The parties disputed how to construe the policy “language and which definition of ‘vacant’ applies.” The court found that the “central inquiry is the nature of plaintiff’s possessory interest in the building. If [it] had an interest in a ‘unit or suite rented or leased to’ it, then it is a ‘tenant.’ If it had a possessory interest in ‘the entire building,’ then it is an ‘owner or general lessee.’ Here, plaintiff’s possessory interest was in the entire building, not merely a ‘unit or suite.’” Although it was “undisputed that plaintiff did not own the building, the policy’s inclusion of ‘general lessee’ appears designed precisely for situations like this: where a party technically does not own the building but exercises owner-like control over the entire premises under the terms of its lease.” In addition, “the building was vacant unless plaintiff—the general lessee—was using it to ‘conduct customary operations.’” While plaintiff was preparing to reopen its bowling center, “being prepared to open, even with the intention to do so later that month, is not the same as actually being open.” The customary operations of a bowling alley involve “members of the public paying for access to its space and specialized equipment to enjoy the sport of bowling.” Plaintiff did “not dispute that bowling had not yet resumed.” Finally, the court found that the timing of the public health response to COVID-19 was not relevant. Defendant “did not assume the risk of insuring a vacant building—regardless of why it was vacant.”

Trademark infringement under the Lanham Act; 15 USC §§ 1114(1)(a) & 1125(a)(1)(A); Whether the “authorization” of an unregistered trademark defeats an infringement claim; State-law infringement & tort claims (fraud, conspiracy to commit fraud, & unjust enrichment); “Ratification” by accepting royalties; United States Patent & Trademark Office (USPTO)

[This appeal was from the WD-MI.] The court affirmed summary judgment for defendant-MillerKnoll (referred to as HMI) on plaintiffs’ federal and state trademark infringement and state-law tort claims. It held that plaintiffs failed to offer evidence of fraud on which the USPTO relied in issuing and maintaining trademarks for an item referred to as the “Bubble Lamp.” In an issue it had not previously directly addressed, it also held that authorization to use an unregistered trademark defeats an infringement claim under § 1125(a). While working for Herman Miller (now HMI), plaintiff-estate’s decedent (Nelson) designed the Bubble Lamp, a famous piece. Nelson relied on an oral agreement that HMI would pay him royalties on his designs. He later entered into a written agreement, and one of his heirs entered into an addendum. Nelson never registered any trademarks relating to the Bubble Lamps with the USPTO, but others did after his death, and they were acquired by HMI. This action concerned HMI’s use and ownership of trademarks collectively referred to the Bubble Lamp IP. The district court granted defendants summary judgment on all counts, ruling that there was no indication HMI committed “fraud in procuring the Bubble Lamp IP[.]” The court agreed. It noted plaintiffs did “not argue that either the 2006 Royalty Agreement or the 2015 Addendum is invalid, and under the terms of those Agreements, HMI is authorized to use and own the Bubble Lamp IP.” Further, one of the plaintiffs “ratified HMI’s use and ownership of the IP by accepting royalty payments from HMI under the terms of the Agreements, including after he learned that HMI was asserting ownership of the Bubble Lamp IP. Plaintiffs may not sustain infringement or tort claims based on conduct that they authorized and ratified.” The court declined to cancel HMI’s trademark registrations for the Bubble Lamp IP because plaintiffs “presented no evidence actually supporting their cancellation claims.” In addressing the authorization issue, it noted that in the context of registered trademark infringement claims under § 1114(1), it had recognized the Lanham Act prohibits the use of a trademark without the registrant’s consent. It held here that while § 1125(a), which creates a Lanham Act cause of action for infringement of unregistered trademarks, does not contain the “without consent” language, authorization to use a mark likewise “defeats an infringement claim under § 1125(a).” This authorization also defeated plaintiffs’ Michigan common law infringement claims, and their state tort claims. The court added that the district court correctly concluded ratification provided an alternative basis for summary judgment.

Medical malpractice; Expert testimony; MRE 702; MCL 600.2955; MCL 600.2169; Danhoff v Fahim; Standard of care; Knee replacement; Popliteal artery injury; “Whittling technique”; “Plunging technique”; Summary disposition

The court held that the trial court erred by excluding plaintiff’s standard-of-care expert and granting defendants summary disposition in this medical-malpractice action. Plaintiff alleged defendant-doctor damaged her popliteal artery during knee replacement surgery. The trial court excluded her expert, Dr. W, as unreliable. The court first held that the expert’s testimony was admissible under MRE 702. Although Dr. W did not rely on medical literature, the court noted under Danhoff that a lack of supporting literature is “important but not dispositive.” The court reasoned that his opinion was based on more than injury alone, including the severity of the injury, the absence of evidence that the artery itself had abnormal anatomy, and his testimony that the standard of care required use of a whittling technique rather than a plunging technique. The court also emphasized that defendants’ expert agreed that a plunging technique would breach the standard of care, while defendant testified that his saw technique was “a little bit of both.” Thus, Dr. W’s opinion on the plunging technique was “relevant and reliable.” The court further held that summary disposition was improper because, with the expert testimony admissible, plaintiff had evidence supporting a prima facie malpractice claim and there was “a genuine issue of material fact” as to what technique defendant used and whether abnormal anatomy affected the surgery. Reversed and remanded.

Quiet title; Trespass; Judicial disqualification; MCR 2.003(C)(1); Security for costs; MCR 2.109; Summary disposition; MCR 2.116(C)(8); Motion to amend; MCR 2.118(A)(4); Default judgment; Attorney fees; Frivolous filings; MCL 600.2591; MCR 1.109(E)(7)

The court held that defendants-appellants were not entitled to relief from the trial court’s rulings in this neighbor-property dispute over raised garden boxes. Plaintiffs sued for quiet title and trespass after appellants allegedly maintained garden boxes on plaintiffs’ property, and the litigation generated voluminous filings and sanctions. The court first rejected appellants’ judicial-disqualification arguments because the record showed any representation of the judge by cross-defendant-Drain Commissioner’s law firm had ceased, and defendants offered “no evidence” of an ongoing relationship. The court also held that granting a security bond was not extortion because it was “not a malicious threat to injure another person,” and an erroneous ruling is not grounds for disqualification. The court next upheld denial of defendants’ summary-disposition motion. A (C)(8) motion tests plaintiffs’ complaint, and the complaint was legally sufficient where it alleged defendants maintained planter boxes on plaintiffs’ property, satisfying a claim for trespass (“an unauthorized invasion on the private property of another.”) The court also held the trial court did not abuse its discretion by denying leave to amend because defendants “failed to file a proposed amended complaint.” Finally, the court upheld the $2,800 attorney-fee award because defendants’ lengthy filings showed claims and arguments that were “vexatious, frivolous, and objectively incapable of comprehension in most instances.” Affirmed.

Medical malpractice; Expert testimony; MRE 702; MCL 600.2955; MCL 600.2169; Danhoff v Fahim; Standard of care; Knee replacement; Popliteal artery injury; “Whittling technique”; “Plunging technique”; Summary disposition

The court held that the trial court erred by excluding plaintiff’s standard-of-care expert and granting defendants summary disposition in this medical-malpractice action. Plaintiff alleged defendant-doctor damaged her popliteal artery during knee replacement surgery. The trial court excluded her expert, Dr. W, as unreliable. The court first held that the expert’s testimony was admissible under MRE 702. Although Dr. W did not rely on medical literature, the court noted under Danhoff that a lack of supporting literature is “important but not dispositive.” The court reasoned that his opinion was based on more than injury alone, including the severity of the injury, the absence of evidence that the artery itself had abnormal anatomy, and his testimony that the standard of care required use of a whittling technique rather than a plunging technique. The court also emphasized that defendants’ expert agreed that a plunging technique would breach the standard of care, while defendant testified that his saw technique was “a little bit of both.” Thus, Dr. W’s opinion on the plunging technique was “relevant and reliable.” The court further held that summary disposition was improper because, with the expert testimony admissible, plaintiff had evidence supporting a prima facie malpractice claim and there was “a genuine issue of material fact” as to what technique defendant used and whether abnormal anatomy affected the surgery. Reversed and remanded.

Quiet title; Trespass; Judicial disqualification; MCR 2.003(C)(1); Security for costs; MCR 2.109; Summary disposition; MCR 2.116(C)(8); Motion to amend; MCR 2.118(A)(4); Default judgment; Attorney fees; Frivolous filings; MCL 600.2591; MCR 1.109(E)(7)

The court held that defendants-appellants were not entitled to relief from the trial court’s rulings in this neighbor-property dispute over raised garden boxes. Plaintiffs sued for quiet title and trespass after appellants allegedly maintained garden boxes on plaintiffs’ property, and the litigation generated voluminous filings and sanctions. The court first rejected appellants’ judicial-disqualification arguments because the record showed any representation of the judge by cross-defendant-Drain Commissioner’s law firm had ceased, and defendants offered “no evidence” of an ongoing relationship. The court also held that granting a security bond was not extortion because it was “not a malicious threat to injure another person,” and an erroneous ruling is not grounds for disqualification. The court next upheld denial of defendants’ summary-disposition motion. A (C)(8) motion tests plaintiffs’ complaint, and the complaint was legally sufficient where it alleged defendants maintained planter boxes on plaintiffs’ property, satisfying a claim for trespass (“an unauthorized invasion on the private property of another.”) The court also held the trial court did not abuse its discretion by denying leave to amend because defendants “failed to file a proposed amended complaint.” Finally, the court upheld the $2,800 attorney-fee award because defendants’ lengthy filings showed claims and arguments that were “vexatious, frivolous, and objectively incapable of comprehension in most instances.” Affirmed.