Legal malpractice; Charles Reinhart Co v Winiemko; Attorney-client relationship; Proximate cause; “Suit within a suit”; Manzo v Petrella; Michigan Rules of Professional Conduct (MRPC); MRPC 1.0(b), 1.7, & 1.10(a); Breach of fiduciary duty; Tortious interference with a business relationship or expectancy; Gravamen of claim; Trowell v Providence Hosp & Med Ctrs, Inc

The court held that plaintiff failed to establish legal malpractice, breach of fiduciary duty, or tortious interference arising from defendants’ alleged conflict of interest and communications with nonparty-PNC’s counsel. Plaintiff sued after defendant-Bayram emailed PNC’s counsel about plaintiff’s brother’s interest in buying PNC’s judgment against plaintiff, claiming the email harmed his ability to settle the judgment. The trial court granted defendants summary disposition. On appeal, the court first held that plaintiff failed to state a malpractice claim against defendant-Fleming because the complaint did not allege “negligence in Fleming’s legal representation of him in the PNC lawsuit.” The court next held that the malpractice claim against Bayram failed because plaintiff did not allege an attorney-client relationship with him, and plaintiff’s MRPC theory did not create a cause of action because the rules “do not . . . give rise to a cause of action.” The court further held that plaintiff failed to show proximate cause. It rejected his suggestion that PNC would have settled for $250,000 but for Bayram’s email, reasoning the claim ignored the years of unpaid debt, litigation, appeal, bankruptcy filings, receivership, fees, interest, and a PNC attorney’s affidavit stating the email “did not affect PNC Bank’s decisions[.]” Finally, the court held that the fiduciary-duty and tortious-interference claims sounded in malpractice because they relied on “the same alleged relationships and the same conduct” alleged in the malpractice claim. Affirmed.

Withdrawal from a condo purchase agreement; MCL 559.184(2); “Purchase agreement” (MCL 559.109(5)); Summary disposition under MCR 2.116(C)(7)

The court held that the trial court could not grant defendant summary disposition under MCR 2.116(C)(7) to enforce a condo purchase agreement’s mediation provision “without first addressing plaintiff’s allegation that the purchase agreement was unenforceable.” Thus, it vacated the trial court’s order and remanded. After plaintiff informed defendant’s agent that she did not wish to go through with the purchase, an attorney for defendant informed her that she would be in default and would owe defendant liquidated damages. Plaintiff sued, seeking a declaratory judgment. The trial court granted defendant summary disposition because plaintiff filed suit without first complying with the agreement’s provision requiring nonbinding mediation. At the hearing on the parties’ summary disposition motions, “the trial court said that ‘even accepting all of the well pled allegations in the complaint as true and construing them in plaintiff’s favor, it is clear at this stage of the case that the agreement is valid and binding.’ But plaintiff’s complaint alleged that she ‘timely withdrew from the agreement as allowed by law,’ relying on MCL 559.184(2).” The court noted that statute, if it applied, provided “a right of withdrawal. The trial court therefore erred—if all of the allegations in plaintiff’s complaint are true, the agreement, including its commitment to mediate before going to court, was not valid and binding.” The court did not express any opinion on whether the statute applied or plaintiff met its requirements. It also vacated the trial court’s other rulings. While the trial court denied plaintiff’s summary disposition motion on the basis “the mediation provision barred the action . . . [it] could not enforce that provision without first addressing [her] challenge to the purchase agreement’s enforceability. And because the award of attorney fees was predicated on defendant’s motion being meritorious, that award likewise cannot stand.”

Child enticement; 18 USC § 2422(b); Relevant conduct; USSG § 1B1.3(a)(1); Cross-reference to sex-abuse guideline; § 2G1.3(c)(3); Aggravated sexual abuse; § 2241(a); Sexual act; § 2246(2)(C); Forced sexual act enhancement; § 2A3.1(b)(1); Double counting; Pattern of activity; § 4B1.5(b)(1); Separate occasions; Wooden v United States; Substantive reasonableness; § 3553(a)

The court held that the district court properly treated defendant-Neal's two sexual assaults as relevant conduct to his child-enticement offense and reasonably imposed a bottom-of-guidelines sentence. Defendant pled guilty to attempting to entice a minor over Facebook Messenger during a nearly two-year period, and he admitted that during that period he twice sexually assaulted the same victim. The district court treated the assaults as relevant conduct, applied the sex-abuse guideline cross-reference and related enhancements, and sentenced him to 292 months. On appeal, the court first held that the assaults “occurred during [Neal’s] commission of” the enticement offense because he admitted to a “continuing” two-year violation, and each assault occurred “at some point in the course of” that effort. It rejected his reliance on cases involving different or later victims because his indictment did not “cabin[]” the offense to a specific day, and the assaults occurred in the charged time frame against the same victim. The court next held that there was no impermissible double counting because the cross-reference and forced-sexual-act enhancement addressed “distinct aspects” of the conduct: “sexual abuse” triggered the cross-reference, while the “aggravated nature” of the abuse triggered the enhancement. It also held that the pattern-of-activity enhancement applied because the two assaults of the same child occurred more than a year apart and in different counties, which “compel[led] the conclusion” they occurred on separate occasions even under Wooden. Finally, the court held that the sentence was substantively reasonable because the district court balanced the seriousness of abuse of “a very young victim” over “a pretty lengthy period of time” against defendant’s limited criminal history and family relationships before selecting the bottom of the range. Affirmed.

Parenting time modification; Whether the modification changed the child’s established custodial environment (ECE); Rains v Rains; “Weekend parent” claim; Distinguishing Powery v Wells & Lieberman v Orr; Child’s best-interests; Factor (j) (MCL 722.23(j)); Parental alienation; Great weight of the evidence; School selection; Pierron v Pierron; Appellate jurisdiction; MCR 7.202(6)(a)(iii); Treating appeal as an application for leave

The court held that the trial court’s parenting time modification did not change the parties’ child’s ECEs, and that neither its finding as to factor (j) nor its finding as to which school the child should attend were against the great weight of the evidence. Thus, the court affirmed the order at issue. As an initial matter, it concluded that plaintiff-mother “did not have an appeal as of right under MCR 7.202(6)(a)(iii)” but it addressed her appeal as if it were an application on which leave was granted. Her “parenting time was reduced by 26 days, which” was insufficient to change the child’s ECEs with the parties. Plaintiff made no effort to distinguish this case from Rains and did not suggest that the change in parenting time will change to whom the child looks for guidance and comfort. Her only argument was that the order relegated “her to a ‘weekend parent,’ but this assertion alone is not enough to show that the parenting-time modification” changed the ECEs and also ignored the circumstances here. This case was “distinguishable from Powery because the change in parenting time is slight, and the trial court made findings” as to the accessibility of the communities where the parties lived “and plaintiff’s ability to maintain an active role in” the child’s life. While she relied on Lieberman, that case also differed from this one. Next, the court rejected her claim that the trial court’s finding that she attempted to alienate the child from defendant-father was against the great weight of the evidence. Finally, as to the school selection, it “was not against the great weight of evidence for the trial court to find that” the school in which defendant wanted to enroll the child had a “lower student to teacher ratio because it was properly supported by the admitted evidence[.]” Further, it did not make its decision solely on this basis. It also “noted the wide range of resources and programs available” there and that defendant’s greater job flexibility made him more able to take and pick up the child from school.

The No-Fault Act; Tort liability; MCL 500.3135(3); Intentional-harm exception; MCL 500.3135(3)(a); Property protection insurance benefits; MCL 500.3121; One-year limitations period; MCL 500.3145(5); Trespass; Three-year limitations period; MCL 600.5805; MCL 600.5827; Summary disposition under MCR 2.116(C)(7) or (8)

The court held that the trial court erred by granting defendant summary disposition because plaintiff’s complaint adequately pled facts bringing his trespass claim within the No-Fault Act’s intentional-harm exception. Plaintiff sued for trespass and negligence after defendant’s repair crew allegedly drove across his property and damaged trees while accessing a transformer on neighboring property. Defendant argued the claims were governed by the No-Fault Act’s one-year limitations period because they arose from the use of a motor vehicle, and the trial court granted summary disposition after finding plaintiff had not shown the crew intended to damage the trees. On appeal, the court held that the dispositive question was whether the intentional-damage exception applied. It reasoned that under MCR 2.116(C)(7) and (8), the trial court had to accept plaintiff’s factual allegations as true unless documentary evidence contradicted them. Plaintiff alleged the crew “intentionally drove their trucks directly over Plaintiff’s trees . . . to create a new access path to the pole,” and defendant offered no contrary documentary evidence. The court concluded the trial court improperly shifted the burden to plaintiff because, at that stage, plaintiff “was not required to prove the allegation[.]” Reversed and remanded.

The No-Fault Act; Tort liability; MCL 500.3135(3); Intentional-harm exception; MCL 500.3135(3)(a); Property protection insurance benefits; MCL 500.3121; One-year limitations period; MCL 500.3145(5); Trespass; Three-year limitations period; MCL 600.5805; MCL 600.5827; Summary disposition under MCR 2.116(C)(7) or (8)

The court held that the trial court erred by granting defendant summary disposition because plaintiff’s complaint adequately pled facts bringing his trespass claim within the No-Fault Act’s intentional-harm exception. Plaintiff sued for trespass and negligence after defendant’s repair crew allegedly drove across his property and damaged trees while accessing a transformer on neighboring property. Defendant argued the claims were governed by the No-Fault Act’s one-year limitations period because they arose from the use of a motor vehicle, and the trial court granted summary disposition after finding plaintiff had not shown the crew intended to damage the trees. On appeal, the court held that the dispositive question was whether the intentional-damage exception applied. It reasoned that under MCR 2.116(C)(7) and (8), the trial court had to accept plaintiff’s factual allegations as true unless documentary evidence contradicted them. Plaintiff alleged the crew “intentionally drove their trucks directly over Plaintiff’s trees . . . to create a new access path to the pole,” and defendant offered no contrary documentary evidence. The court concluded the trial court improperly shifted the burden to plaintiff because, at that stage, plaintiff “was not required to prove the allegation[.]” Reversed and remanded.

Legal malpractice; Charles Reinhart Co v Winiemko; Attorney-client relationship; Proximate cause; “Suit within a suit”; Manzo v Petrella; Michigan Rules of Professional Conduct (MRPC); MRPC 1.0(b), 1.7, & 1.10(a); Breach of fiduciary duty; Tortious interference with a business relationship or expectancy; Gravamen of claim; Trowell v Providence Hosp & Med Ctrs, Inc

The court held that plaintiff failed to establish legal malpractice, breach of fiduciary duty, or tortious interference arising from defendants’ alleged conflict of interest and communications with nonparty-PNC’s counsel. Plaintiff sued after defendant-Bayram emailed PNC’s counsel about plaintiff’s brother’s interest in buying PNC’s judgment against plaintiff, claiming the email harmed his ability to settle the judgment. The trial court granted defendants summary disposition. On appeal, the court first held that plaintiff failed to state a malpractice claim against defendant-Fleming because the complaint did not allege “negligence in Fleming’s legal representation of him in the PNC lawsuit.” The court next held that the malpractice claim against Bayram failed because plaintiff did not allege an attorney-client relationship with him, and plaintiff’s MRPC theory did not create a cause of action because the rules “do not . . . give rise to a cause of action.” The court further held that plaintiff failed to show proximate cause. It rejected his suggestion that PNC would have settled for $250,000 but for Bayram’s email, reasoning the claim ignored the years of unpaid debt, litigation, appeal, bankruptcy filings, receivership, fees, interest, and a PNC attorney’s affidavit stating the email “did not affect PNC Bank’s decisions[.]” Finally, the court held that the fiduciary-duty and tortious-interference claims sounded in malpractice because they relied on “the same alleged relationships and the same conduct” alleged in the malpractice claim. Affirmed.

Pipeline easement; Blanket easement; Restrictive covenant; Existing structure; Future construction; Easement interpretation; Landowner’s right to use & enjoy premises; Harmless error; MCR 2.613(A)

The court held that plaintiff’s garage was not subject to the 2019 restrictive covenant and that defendant’s 1936 pipeline easement did not give it the exclusionary rights it claimed. Plaintiff’s property was subject to a 1936 easement for defendant’s pipeline. After plaintiff rebuilt his home following a fire, the parties disputed whether the house and garage encroached on defendant’s rights. The trial court granted summary disposition to plaintiff. On appeal, the court first held that the trial court erred by finding the pipeline’s location could not be determined because the surveys used ground-penetrating radar and calculated distances from the structures, but the error was harmless because defendant did not connect it to a dispositive ruling. The court next held that the garage was not covered by the 2019 restrictive covenant because the covenant’s language that any part of the house “shall not be constructed within 33 feet of the pipeline” referred to “new, future construction, not existing structures[.]” The garage had existed for decades, survived the fire, and nothing in the agreement required plaintiff to relocate existing structures. The court also held that the 1936 easement was a blanket easement because it did not specify dimensions, but that did not give defendant a right to exclude. The easement gave defendant “the right of ingress and egress” to lay, maintain, and operate the pipeline, while the landowner retained the right “to fully use and enjoy the said premises.” Affirmed.

Withdrawal from a condo purchase agreement; MCL 559.184(2); “Purchase agreement” (MCL 559.109(5)); Summary disposition under MCR 2.116(C)(7)

The court held that the trial court could not grant defendant summary disposition under MCR 2.116(C)(7) to enforce a condo purchase agreement’s mediation provision “without first addressing plaintiff’s allegation that the purchase agreement was unenforceable.” Thus, it vacated the trial court’s order and remanded. After plaintiff informed defendant’s agent that she did not wish to go through with the purchase, an attorney for defendant informed her that she would be in default and would owe defendant liquidated damages. Plaintiff sued, seeking a declaratory judgment. The trial court granted defendant summary disposition because plaintiff filed suit without first complying with the agreement’s provision requiring nonbinding mediation. At the hearing on the parties’ summary disposition motions, “the trial court said that ‘even accepting all of the well pled allegations in the complaint as true and construing them in plaintiff’s favor, it is clear at this stage of the case that the agreement is valid and binding.’ But plaintiff’s complaint alleged that she ‘timely withdrew from the agreement as allowed by law,’ relying on MCL 559.184(2).” The court noted that statute, if it applied, provided “a right of withdrawal. The trial court therefore erred—if all of the allegations in plaintiff’s complaint are true, the agreement, including its commitment to mediate before going to court, was not valid and binding.” The court did not express any opinion on whether the statute applied or plaintiff met its requirements. It also vacated the trial court’s other rulings. While the trial court denied plaintiff’s summary disposition motion on the basis “the mediation provision barred the action . . . [it] could not enforce that provision without first addressing [her] challenge to the purchase agreement’s enforceability. And because the award of attorney fees was predicated on defendant’s motion being meritorious, that award likewise cannot stand.”

Children’s best interests; MCL 712A.19b(5); Best-interest factors; In re MJC; Anticipatory neglect; In re Mota; Risk of harm; Parent-child bond; Criminal history; CSC I conviction under MCL 750.520b(1)(a); CSC II conviction under MCL 750.520c(1)(a)

The court held that the trial court did not err by finding termination of respondent-father’s parental rights was in the children’s best interests despite his strong bond and appropriate visitation. This case returned after a prior remand requiring findings on statutory grounds and, if applicable, best interests. On remand, the trial court terminated his parental rights based on respondent’s prior CSC convictions involving children and the credible allegation that he sexually assaulted the children’s mother’s 16-year-old niece while the children were asleep in the home. On appeal, respondent challenged only the best-interest ruling. The court held that the trial court properly considered respondent’s bond with the children, completion of services, and consistent visits, but also properly weighed his inability to provide basic care while in rehabilitation and later assisted living. It further held that the trial court could consider his criminal history, including CSC convictions involving minors and the more recent assault of the mother’s niece, because under anticipatory neglect, “how a parent treats one child is probative of how that parent may treat other children.” The court rejected respondent’s argument that the niece was not his child or the children’s sibling, reasoning that “‘abuse is abuse,’” and the record showed a pattern of using proximity to young children related to cohabiting domestic partners to sexually abuse them. Affirmed.

Termination at initial disposition; Failure to allege aggravating circumstances; Statutory obligation to make reasonable reunification efforts; MCL 712A.19a(2); In re Smith-Taylor; In re Walters

Holding that the trial court erred in terminating respondent-father’s parental rights at the initial disposition, the court vacated the termination order and remanded. While the DHHS sought termination at the initial disposition, “the petitions did not allege aggravating circumstances, and the trial court did not make the juridical determination or factual findings necessary to excuse” the DHHS from its obligation to make reasonable reunification efforts “under MCL 712A.19a(2). Absent such a finding, DHHS was obligated to make reasonable” reunification efforts, but it failed to do so. On remand, the trial court must “determine whether aggravated circumstances exist that would relieve DHHS of its duty to” make such efforts. “If not, it shall direct DHHS to prepare a case service plan to ensure that reasonable efforts toward reunification are provided.”

Child’s best interests; Relative placement consideration; In re Olive/Metts; In re Atchley; In re Gentry

Concluding that the trial court did not clearly err in finding on remand that termination was in the child’s best interests, the court affirmed the order terminating respondent-father’s parental rights. It previously vacated the trial court’s best-interest ruling because it had failed to acknowledge the child’s relative placement, much less that it weighed against termination. It remanded with the directive to fully address the best-interest factors in making the decision, and retained jurisdiction. “On remand, the trial court specifically acknowledged” the relative placement in making its best-interests decision, and found that, given the time the child “had been with his aunt; the permanence, stability, and finality of that placement; and” the child’s desire to stay there as a permanent home, termination was in his best interests. After reviewing the entire record, the court found no clear error in this decision. The trial court stated: “Even though the child was in a relative placement, that relative placement actually is also serving as the prospective adoptive family.” The court noted that the trial court did not have to “make elaborate factual findings or explain itself at length. Instead, a short and plain explanation that acknowledged the fact of a relative placement and that such placement generally weighed against termination was sufficient. The fact that [it] made this acknowledgement implicitly by way of contradistinction in the same sentence that it recognized explicitly an aspect of that placement that strongly weighed in favor of termination does not somehow undermine its reasoning.” The court concluded that the trial court followed its directive on remand.