Action for the return of escrow deposits; Real property purchase agreement financing-contingency provision; “Financing approval”; Whether the agreement identified a specific amount that had to be approved for financing; Contract interpretation

The court held that, under the plain meaning of the parties’ real property purchase agreement, defendant-seller should have returned the escrow deposits at issue to plaintiff-would be buyer after they did not close on the sale. Thus, it affirmed summary disposition for plaintiff in this action for return of the escrow deposits. Plaintiff relied “on a financing-contingency provision in the agreement, whereby the purchase was to be canceled and deposits returned if plaintiff did not obtain financing. Defendant counterclaimed, arguing that it could keep the deposits because plaintiff received financing, even though the amount authorized was less than the amount sought.” The court found that the real dispute depended on whether the agreement identified “a specific amount that must be approved for financing. Plaintiff” contended that it did – $2,000,000. Defendant argued that no amount was “identified, and the only specific quantity tied to ‘financing approval’” was the interest rate. The court determined that neither party was correct, but plaintiff was “closer to the mark.” It concluded that while “the actual amount to be financed is not set forth explicitly in” the last sentence of the relevant paragraph, the first and third sentences “explicitly set forth the total amount to be paid by the purchaser, i.e., $2,363,636 + $236,364 = $2,600,000. This is the amount of funds needed to be obtained by plaintiff to complete the transaction—in other words, the amount that one or more entity must agree to provide in satisfaction of the purchase price. Whether plaintiff was planning to self-finance a portion is irrelevant to the plain meaning of this agreement, which is silent as to how the purchase price would be financed with the exception that any interest charged could not exceed 8%.” The court found that defendant’s insistence that “the only quantity tied to the ‘financing approval’” was the interest rate constituted “a myopic reading of the” agreement. Plaintiff presented “evidence that it could not obtain financing sufficient to complete the transaction, and defendant did not rebut this with material evidence of its own.”

Ineffective assistance of counsel; Advice not to testify; Trial strategy; Prejudice

Holding that defense counsel’s advice against defendant testifying was sound trial strategy and did not prejudice defendant, the court rejected his ineffective assistance of counsel claim. He was convicted of meth possession. In light of the record, the court concluded that “defense counsel had a legitimate strategic reason to advise defendant of the risks of testifying. Most critically, defendant would have been subjected to the prosecutor’s cross-examination if he had testified on his own behalf. This cross-examination reasonably could have elicited more prejudicial evidence against” him, such as his past meth use. Given “defense counsel’s other arguments (the discernibility of the residue and defendant’s cooperation with the search indicating a lack of knowledge” about the meth), “defense counsel was able to advance a defense for defendant without his testimony.” Further, as to prejudice, in light of the evidence against him, defendant could not show “a reasonable probability of a better outcome had defense counsel not advised him to refrain from testifying.” The court added that “it was defendant’s decision on whether he testified or not, as shown by the trial court’s extensive conversation with” him about the possibility of doing so.

Ineffective assistance of counsel; Voir dire; Failure to challenge a juror; Alleged law-enforcement bias; Prosecutorial error; Civic-duty argument; Improper opening statement; Harmless error; Jury instructions; Waived claim for failure to give elements in preliminary instructions

The court held that defendant failed to establish ineffective assistance during jury selection, the prosecutor committed nonprejudicial error by using hypothetical automobile accidents in opening statement, and defendant waived his instructional-error claim. He was convicted of operating an uninsured and unregistered vehicle after admitting that he had been driving the truck and that it was uninsured. On appeal, defendant first argued counsel should have challenged Juror 87 after the juror initially suggested police might have greater expertise concerning vehicle matters. The court found that “[t]he record does not support that claim.” After the trial court clarified that the officers were not expert witnesses, the juror stated that he would give their testimony no greater weight and could remain impartial. Thus, “the record does not support that counsel’s failure to challenge Juror Number 87 was objectively unreasonable or that there is a reasonable probability that the outcome would have been different.” Counsel also was not ineffective for declining to individually question the remaining jurors because defendant failed to show further inquiry would have revealed bias, and he did not overcome the presumption that counsel’s voir dire strategy was sound. As to the prosecutor’s opening, however, the court concluded that hypothetical scenarios asking jurors to imagine being injured by uninsured or unregistered drivers “had nothing to do with the facts the evidence would show in this case.” Their effect was “to arouse the jurors’ fears and to enlist their sense of civic duty,” making the argument “a textbook example of prosecutorial error.” But reversal was unwarranted because the jury was repeatedly instructed that counsel’s statements were not evidence and “the evidence of defendant’s guilt was overwhelming and essentially undisputed.” Finally, defense counsel expressly stated she had no objection to the preliminary jury instructions, and “[t]hat affirmative approval of the instructions waived the claim of instructional error.” Affirmed.

Sentencing; Procedural reasonableness; Applicable version of the Guidelines; Waiver; Loss calculation under USSG § 2B1.1; United States v Wala; United States v You; Application Note 3(F)(v); Obstruction-of-justice enhancement (§ 3C1.1); Plea agreement appellate waiver clause; Two-level enhancement under § 2B1.1(b)(16)(A) (underlying offense involved “the conscious or reckless risk of death or serious bodily injury”); State of mind element; Argument for a variance based on immigration status; The district court’s discretion

The court held that defendant-Basalyga waived his argument that the district court should have applied the 2024 Guidelines in making its loss calculation, and it upheld the district court’s loss calculation under § 2B1.1. It also concluded that the obstruction-of-justice enhancement was properly applied, and that he voluntarily waived his right to challenge his forfeiture judgment in his plea agreement. As to defendant-Chirinos de Urena, it upheld her enhancement under § 2B1.1(b)(16)(A), and found no abuse of discretion in the district court’s declining to grant her a variance based on her immigration status. Defendants participated in “a drug operation that sold millions of fake generic Xanax pills on the dark web.” They pled guilty to conspiracy and substantive counterfeiting of drugs. Basalyga was sentenced to 80 months. Chirinos de Urena was sentenced to 45 months. As to Basalyga’s appeal and his loss calculation claim, the court had to first determine the controlling version of the Guidelines. While he now suggested “the district court should have applied the 2024 version,” the court concluded that “by agreeing that the pre-2024 Guidelines governed his sentence and then arguing accordingly, Basalyga waived any argument with respect to the 2024 Guidelines.” As to the loss calculation itself, “You held that because the term ‘loss’ in the pre-2024 Guidelines is ambiguous, we may defer to the Sentencing Commission’s interpretation of ‘loss’ in the Guidelines commentary.” This understanding “continues to control[.]” The court understood “the loss to be the ‘fraud against the buyer,’ as measured by what the buyer actually paid for the pills.” And the district court’s understanding of loss “fell within the ‘wide’ ‘goalposts’ established by the Guidelines’ text.” Next, the court upheld the obstruction enhancement, which was based on text messages “that suggested Basalyga began clearing his electronic devices upon hearing” of Chirinos de Urena’s arrest. As to Chirinos de Urena’s § 2B1.1(b)(16)(A) enhancement, based “on the nature, length, and scope of the scheme, including the ‘inherency of the danger presented,’ the district court sensibly concluded that the risks were known to” her. The circumstantial evidence, including her “conduct, sufficiently satisfied the state of mind element . . . .” Affirmed.

Motion to modify custody; Proper cause or change of circumstances; MCL 722.27; Vodvarka v Grasmeyer; Domestic violence; Medical care & vaccinations; Parenting-time modification; Best-interest factors; MCL 722.23; Shade v Wright

The court held that the trial court did not err in finding plaintiff-father failed to establish proper cause or a change of circumstances warranting modification of custody or in modifying parenting time without making findings on every statutory best-interest factor. The parties shared joint legal and physical custody. Plaintiff sought a custody change based primarily on concerns about defendant-mother’s former boyfriend and a medical appointment at which the child received vaccinations. Both parties also agreed their existing parenting-time schedule was not working, and the trial court changed it to alternating weeks. On appeal, the court first concluded that “plaintiff did not establish proper cause or a change of circumstances to justify a change in custody.” As to the domestic-violence concerns, although “an act of domestic violence may have occurred in the past with defendant’s boyfriend,” plaintiff did not show “that defendant’s associates posed an ongoing concern likely to affect the child,” particularly because the relationship had ended. The medical issue likewise did not justify reopening custody. Defendant followed the child’s medical provider’s recommendations, notified plaintiff of the appointment, and gave him an opportunity to attend. Further, plaintiff “failed to show that there was an agreement between the parties about the vaccines’ timing.” Thus, defendant’s conduct was “at most a minor allegation of contempt, not a sufficient disagreement to warrant revisiting custody and the child’s best interests.” The court also rejected plaintiff’s challenge to the parenting-time modification. It explained that “‘[c]ustody decisions require findings under all of the best interest factors, but parenting time decisions may be made with findings on only the contested issues.’” Because the new schedule “‘did not significantly alter the number of . . . parenting time days,’” it did not constitute a custody change requiring findings on every MCL 722.23 factor. Affirmed.

Child custody; Legal custody; Findings on the statutory best-interest factors (MCL 722.23); Factors (h), (j), & (l)

Concluding that the trial court’s findings on best-interest factors (h), (j), and (l) were not against the great weight of the evidence, the court held that it did not abuse its discretion when awarding sole legal custody to plaintiff-mother. After a prior remand from the court, the parties stipulated that the children had a custodial environment with both of them, and the trial court found that “the best-interest factors were equal except for factors (h), (j), and (l), which favored plaintiff.” On appeal, the court determined that “the trial court properly considered the children’s home records, including their relationships with their parents, in accordance with factor (h). For factor (j), the parties’ ability and willingness to facilitate relationships between the children and parents, the trial court considered the parties’ histories including defendant’s past lack of willingness to facilitate the relationships, as well as [his] more recent unilateral decisions. Finally,” as to other factors under (l), it “reasonably found that the parties were unable to cooperate and agree concerning important decisions on the children’s welfare such that joint legal custody, compared to sole legal custody, was not in the children’s best interests.” The court concluded that, focusing “on the children’s interests, plaintiff appeared to be the best party to serve the role as sole legal custodian given defendant’s previous actions.” The court also found that “the trial court debunked defendant’s main complaint with plaintiff as the sole legal custodian by explaining that he still had access to the children’s school information and thereby could maintain involvement in critical areas of” their lives. Affirmed.

Divorce; Business valuation; Rebuttal evidence; MRE 402 & 403; Harmless error; Expert testimony; MRE 702; Civil contempt; Appellate jurisdiction; MCR 7.202(6); MCR 7.203(A); Attorney fees for noncompliance with a court order; MCR 3.206(D)(2)(b)

The court held that the trial court abused its discretion by excluding plaintiff-ex-wife’s rebuttal evidence concerning the value of the parties’ business, but properly excluded her separate expert valuation testimony. It also held that it lacked jurisdiction over her appeal as of right from the civil-contempt attorney-fee award. The trial court valued the parties’ cleaning business at $512,000 based on defendant-ex-husband’s expert testimony and used that valuation in calculating an equalization payment. Plaintiff sought to present a CPA to rebut that valuation and another CPA to provide her own valuation, but the trial court excluded both. On appeal, the court concluded that excluding the rebuttal evidence was error because although exclusion may be appropriate where evidence is irrelevant or cumulative, “the trial court never determined whether plaintiff’s proposed rebuttal testimony . . . would have been irrelevant or cumulative.” Thus, to “disallow plaintiff’s evidence without proper findings under the rules of evidence was error.” The error was not harmless. While plaintiff cross-examined defendant’s expert and challenged his valuation in closing, “those opportunities do not substitute for plaintiff’s ability to present her own evidence.” By hearing only one side’s valuation evidence, “the trial court essentially made a credibility determination after only hearing one side’s evidence.” But the court upheld exclusion of plaintiff’s separate valuation expert because she relied on unsigned tax returns and plaintiff’s statements rather than a formal valuation, and plaintiff failed to establish that her proposed testimony satisfied MRE 702’s reliability requirements. As to the separate contempt appeal, the court noted that “‘an order finding a party in civil contempt of court is not a final order for purposes of appellate review.’” Because the $25,000 attorney-fee award for violating court orders was compensatory civil contempt, “this Court does not have jurisdiction to review the award as an appeal of right.” The court dismissed the contempt appeal, and as to the divorce judgment, affirmed in part, vacated the business valuation and resulting equalization payment, and remanded.

Divorce; Business valuation; Rebuttal evidence; MRE 402 & 403; Harmless error; Expert testimony; MRE 702; Civil contempt; Appellate jurisdiction; MCR 7.202(6); MCR 7.203(A); Attorney fees for noncompliance with a court order; MCR 3.206(D)(2)(b)

The court held that the trial court abused its discretion by excluding plaintiff-ex-wife’s rebuttal evidence concerning the value of the parties’ business, but properly excluded her separate expert valuation testimony. It also held that it lacked jurisdiction over her appeal as of right from the civil-contempt attorney-fee award. The trial court valued the parties’ cleaning business at $512,000 based on defendant-ex-husband’s expert testimony and used that valuation in calculating an equalization payment. Plaintiff sought to present a CPA to rebut that valuation and another CPA to provide her own valuation, but the trial court excluded both. On appeal, the court concluded that excluding the rebuttal evidence was error because although exclusion may be appropriate where evidence is irrelevant or cumulative, “the trial court never determined whether plaintiff’s proposed rebuttal testimony . . . would have been irrelevant or cumulative.” Thus, to “disallow plaintiff’s evidence without proper findings under the rules of evidence was error.” The error was not harmless. While plaintiff cross-examined defendant’s expert and challenged his valuation in closing, “those opportunities do not substitute for plaintiff’s ability to present her own evidence.” By hearing only one side’s valuation evidence, “the trial court essentially made a credibility determination after only hearing one side’s evidence.” But the court upheld exclusion of plaintiff’s separate valuation expert because she relied on unsigned tax returns and plaintiff’s statements rather than a formal valuation, and plaintiff failed to establish that her proposed testimony satisfied MRE 702’s reliability requirements. As to the separate contempt appeal, the court noted that “‘an order finding a party in civil contempt of court is not a final order for purposes of appellate review.’” Because the $25,000 attorney-fee award for violating court orders was compensatory civil contempt, “this Court does not have jurisdiction to review the award as an appeal of right.” The court dismissed the contempt appeal, and as to the divorce judgment, affirmed in part, vacated the business valuation and resulting equalization payment, and remanded.

Action for the return of escrow deposits; Real property purchase agreement financing-contingency provision; “Financing approval”; Whether the agreement identified a specific amount that had to be approved for financing; Contract interpretation

The court held that, under the plain meaning of the parties’ real property purchase agreement, defendant-seller should have returned the escrow deposits at issue to plaintiff-would be buyer after they did not close on the sale. Thus, it affirmed summary disposition for plaintiff in this action for return of the escrow deposits. Plaintiff relied “on a financing-contingency provision in the agreement, whereby the purchase was to be canceled and deposits returned if plaintiff did not obtain financing. Defendant counterclaimed, arguing that it could keep the deposits because plaintiff received financing, even though the amount authorized was less than the amount sought.” The court found that the real dispute depended on whether the agreement identified “a specific amount that must be approved for financing. Plaintiff” contended that it did – $2,000,000. Defendant argued that no amount was “identified, and the only specific quantity tied to ‘financing approval’” was the interest rate. The court determined that neither party was correct, but plaintiff was “closer to the mark.” It concluded that while “the actual amount to be financed is not set forth explicitly in” the last sentence of the relevant paragraph, the first and third sentences “explicitly set forth the total amount to be paid by the purchaser, i.e., $2,363,636 + $236,364 = $2,600,000. This is the amount of funds needed to be obtained by plaintiff to complete the transaction—in other words, the amount that one or more entity must agree to provide in satisfaction of the purchase price. Whether plaintiff was planning to self-finance a portion is irrelevant to the plain meaning of this agreement, which is silent as to how the purchase price would be financed with the exception that any interest charged could not exceed 8%.” The court found that defendant’s insistence that “the only quantity tied to the ‘financing approval’” was the interest rate constituted “a myopic reading of the” agreement. Plaintiff presented “evidence that it could not obtain financing sufficient to complete the transaction, and defendant did not rebut this with material evidence of its own.”

Child’s best interests; Guardianship as an alternative to termination; In re Lombard; Relative placement; Parent-child bond; Substance abuse; Permanency, stability & finality; Adoption

The court held that the trial court did not err in finding that termination and adoption, rather than a guardianship, were in the child’s best interests. Respondent-mother did not challenge the DHHS’s reunification efforts or the statutory grounds for termination. Her sole appellate argument was that the trial court should have established a guardianship. The case arose after she left the child with a cousin without making arrangements for his care. During the proceedings she continued to struggle with unstable housing and employment, tested positive for amphetamine and meth, was repeatedly incarcerated, and made little progress toward reunification. On appeal, the court emphasized that while guardianship is an available alternative, “‘[a] trial court is not required to establish a guardianship in lieu of termination if it is not in the child’s best interests to do so.’” Reviewing the record, it concluded that “a preponderance of the evidence supported the trial court’s finding that termination of respondent-mother’s parental rights and subsequent adoption, not a guardianship, was in BRS’s best interests.” In particular, she “made little-to-no progress toward reunifying with BRS.” Although she had recently entered residential programming and drug treatment court, “this was a recent development and an aspect of her probation,” and she “had not been enrolled long enough to show benefit.” The child also had “no real bond” with respondent while having a strong bond with his foster parents. The trial court expressly considered guardianship but rejected it “most notably” because of “the child’s need for safety, permanence, and stability.” The court further noted that “[a] guardianship is not necessarily permanent and may not adequately meet a child’s needs for safety, permanence, and stability” where a parent has been unable to provide a safe home. The foster parents were willing to adopt, while the record did not show they would agree to a guardianship. Affirmed.