Sentencing; Fourth-offense habitual offender; MCL 769.12; Upward departure; Reasonableness & proportionality; Criminal history & misconduct while incarcerated; Rehabilitation & deterrence; People v Sherrill; Extent of departure; People v Dixon-Bey

The court held that defendant’s 90-to-240-month sentence for CCW, which represented a 14-month upward departure from the top of his advisory minimum guidelines range, was reasonable and proportionate. He was sentenced as a fourth-offense habitual offender. His guidelines range was 24 to 76 months, but the trial court imposed a 90-month minimum based on his escalating criminal history, repeated weapons-related offenses, failure to respond to prior probation, jail, prison, and parole sanctions, and a new assault charge incurred while he was in custody. On appeal, the court rejected his argument that the departure improperly double-counted his criminal history because the trial court “did not merely rely on the fact that defendant had a criminal history or was a fourth-habitual offender,” but instead relied on the “escalation in defendant’s criminal behavior to more violent offenses, particularly ones involving weapons,” as well as his new violent charge while in custody. The court concluded that “the trial court based its departure sentence on considerations it found to be unaccounted for or inadequately accounted for by the guidelines, and we see no error in it doing so.” The court also held that the trial court adequately justified the extent of the departure because it explained why 90 months, rather than a guidelines sentence, was necessary for rehabilitation, punishment, deterrence, and public safety. It therefore “adequately explained ‘why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been.’” Affirmed.

Motion for sole legal custody; Proper cause or change of circumstances; Vodvarka v Grasmeyer; The trial court’s consideration of letters; Due process; Effect of a stipulated arbitration award; Hearsay; Distinguishing In re Conservatorship of GT; Decision not to conduct an evidentiary hearing; Corporan v Henton; Motion to suspend parenting time; Shade v Wright

The court held as to plaintiff-mother’s motion for sole legal custody that she did not make a threshold showing of proper cause or a change of circumstances (COC) to modify custody, and the trial court did not err in dismissing the motion without an evidentiary hearing. As to her motion to suspend defendant-father’s parenting time, an indefinite suspension amounted to a substantial modification, and she failed to make the threshold showing. Thus, the court affirmed the order denying the motions. She contended that the status of defendant’s mental health was a COC warranting a legal custody change. The trial court noted “it had long been aware of defendant’s mental-health issues, which” were addressed in the divorce judgment. His 2025 treatment “was consistent with the treatment contemplated by the judgment” and showed that he was complying with its requirements “by seeking treatment as needed.” While plaintiff asserted a police report supported that he used laughing gas recreationally “and that his mental-health status was unstable[,]” nothing in the report “verified the truth of those allegations.” She also argued that the trial court's “consideration of letters documenting defendant’s mental-health treatment status violated her due-process rights.” They were quarterly provided by defendant’s mental-health treatment providers to an arbitrator pursuant to the terms of the stipulated custody and parenting time order and the divorce judgment. After the arbitrator withdrew from the case, defendant provided them “to the trial court. In light of plaintiff’s implicit agreement with the stipulated arbitration award and custody order, which permitted and required the letters to be sent to the arbitrator,” she failed to show the trial court plainly erred in considering them after the arbitrator’s withdrawal. Further, even if they were hearsay, she did not show that it was not permitted to consider hearsay statements in considering the threshold question of proper cause or a COC. As to parenting time, the trial court found “that the police contacts and defendant’s six-week treatment were not a” COC. As plaintiff identified no evidence showing that his “mental-health status had declined or that he was unable to parent the children, she failed to establish that [its] decision was against the great weight of evidence.”

No-fault benefits; MCL 500.3113(a); “Taken unlawfully”; Swoope v Citizens Ins Co of the Midwest (Swoope I & II); Spectrum Health Hosps v Farm Bureau Mut Ins Co of MI; Rambin v Allstate Ins Co; Monaco v Home-Owners Ins Co; Ahmed v Tokio Marine Am Ins Co; Bradley v Westfield Ins Co; VHS of MI, Inc v State Farm Mut Auto Ins Co; Cases where the vehicle owner neither permitted nor forbade the driver from taking it; “Without authority”; Implied permission; Effect of the owner’s silence

On remand from the Supreme Court, the court held that in cases where the vehicle owner neither permitted nor forbade the driver from taking it, trial “courts must determine whether the driver took the vehicle with the owner’s implied permission.” Because the trial court here did not conduct that analysis for the facts presented, the court vacated its decision denying defendant-State Farm’s summary disposition motion and remanded for the trial court to analyze the facts of the case using the test set forth by the court. State Farm argued that MCL 500.3113(a) disqualified plaintiff-Tiburcio Pena-Cruz from receiving no-fault benefits because the owner (his wife, nonparty-M) of the F-150 truck he was driving at the time of the accident never gave him permission to drive it and he had no reason to believe that she would allow him to take it given that he “did not have a driver’s license and had never used the F-150 before.” The court noted that cases addressing the “taken unlawfully” phrase in MCL 500.3113(a) have generally fallen “into two categories: those in which an owner explicitly gave the driver permission to take the owner’s vehicle and those in which the owner explicitly forbade the driver from” doing so. This case presented a third situation, which no binding case law has addressed – M “neither gave Tiburcio permission to take her vehicle nor forbade” him from taking it. The court held “that, in these circumstances, the relevant inquiry is whether the driver took the vehicle with the owner’s implied permission. This determination will depend on all the facts and circumstances surrounding the driver’s taking of the vehicle, as well as the driver’s previous use of” it. The court noted that while “the legality of the taking must be viewed from the driver’s perspective, the determinative question is whether the owner impliedly permitted or authorized the driver’s taking of the owner’s vehicle.”

Premises liability; Ordinary negligence; Invitee; Dangerous condition; Duty; Hammack v Lutheran Soc Servs; Breach; Expert reports; MRE 401; MRE 402; MRE 702; MCL 600.2955; MCR 2.116(G)(6); Substantively admissible evidence; Swimming pond; Warning signs; Lifeguards

The court held that plaintiff’s expert reports could be considered at summary disposition, that the action sounded in premises liability rather than ordinary negligence, and that fact questions existed as to whether the campground’s swimming pond presented an unreasonable risk of harm and whether defendant-campground breached its duty of reasonable care. The decedent, 15-year-old Jaylen, drowned in defendant’s man-made swimming pond. The deepest portion of the marked swimming area reached approximately 11 feet, visibility was zero at six feet, and the pond had an approximately eight-inch layer of soft muck on the bottom. Although signs warned that there was no lifeguard and that patrons swam at their own risk, plaintiff argued the warnings did not adequately convey the pond’s hazards. The trial court granted defendant summary disposition. On appeal, the court first rejected defendant’s challenge to plaintiff’s expert reports, holding that they “meet the requirements of MRE 702, are reliable under MCL 600.2955, and the analysis within the reports is relevant to the issues here.” It further held that their unsworn form did not prevent consideration at summary disposition because “‘although the evidence must be substantively admissible, it does not have to be in admissible form.’” The court next held that because Jaylen’s injuries arose from the allegedly dangerous condition of the pond, “plaintiff’s claim is one of premises liability rather than ordinary negligence.” As to the condition itself, the evidence of the pond’s depth, murky bottom, and lack of visibility permitted “reasonable persons [to] conclude that the swimming pond constituted a dangerous condition posing an unreasonable risk of harm to invitees.” Finally, conflicting expert evidence concerning the adequacy of the warnings, absence of lifeguards, use of lifejackets, and foreseeability of adolescents entering the deep-water area created a breach question. The court held that “reasonable persons could disagree” about Jaylen’s awareness of the danger, whether defendant should have anticipated that he would not discover the hazard, and whether defendant “failed to take adequate precautions to protect swimmers.” Thus, breach presented “a question of fact for the jury to decide.” Reversed and remanded.

Mortgage foreclosure; Foreclosure by advertisement; Bank of Am, NA v First Am Title Ins Co; Effect of a mortgage holder’s full credit bid to purchase the property at auction; Mortgagor’s claim for the amount paid in excess of the amount owed for the mortgage; MCL 600.3252; Conversion; Whether the sheriff’s deed should be set aside; Diem v Sallie Mae Home Loans, Inc; Prejudice; Wayne County Sheriff (WCS)

The court held that no surplus was owed to plaintiff-mortgagor after defendant-Toorak (assignee of the mortgagee’s interest) made a full credit bid to purchase the property at a public auction. And as no surplus funds existed, defendants were not liable for conversion. Further, the trial court did not err in declining to set aside the sheriff’s deed due to the mistaken bid amount, given that plaintiff failed to present any evidence of actual prejudice. Thus, the court affirmed the denial of plaintiff’s summary disposition motion and grant of summary disposition to Toorak and defendant-2020-1 Realty. Defendant-WCS conducted the auction. Toorak purchased the property using a credit bid of $234,600 “to satisfy plaintiff’s debt. No money was tendered to the WCS.” After receiving a sheriff’s deed, Toorak conveyed the property to 2020-1 Realty for $1. Plaintiff asserted “that Toorak breached the mortgage and promissory note by not paying the bid amount to the WCS or refunding plaintiff the amount paid in excess of the amount owed for the mortgage” (the surplus funds). It also contended “that Toorak and 2020-1 Realty unlawfully converted the surplus funds.” It alternatively argued “there was no consideration for the foreclosure sale and it must be set aside because Toorak did not pay the full bid amount.” Interpreting the statute governing the distribution of surplus funds after a mortgage foreclosure by advertisement, MCL 600.3252, the court noted that it did not define the term surplus. But it “provides that a mortgagor is entitled to be paid, on demand, any money remaining ‘in the hands of the officer or other person making the sale’ after the outstanding debt and the costs and expenses of the foreclosure are satisfied. The plain meaning of the phrase ‘in the hands of’ is in the possession of. Toorak’s credit bid was the only bid on the property[,]” which it was undisputed “satisfied the outstanding debt and the costs and expenses of the foreclosure and no money changed hands. Under these facts and circumstances, ‘actual payment to the sheriff would be an idle gesture.’” And after the debt was satisfied, the WCS did not hold any surplus funds.