42 USC § 1983 action alleging Fourth Amendment claims for malicious prosecution & unlawful arrest; Michigan state-law claims; Judicial immunity; Plausible allegations that defendant-judge was engaged in nonjudicial acts; Brookings v Clunk; Rockett ex rel KR v Eighmy (8th Cir); Distinguishing Orta v Repp (Unpub 6th Cir); Claim that the judge’s actions were performed in the “complete absence of all jurisdiction”

[This appeal was from the ED-MI.] The court held that plaintiff-Till plausibly alleged that defendant-Judge King “was engaged in nonjudicial acts when dealing with” Till’s daughter (ELG) while she was in his courtroom during a vocational program for teenagers. Thus, it affirmed the district court’s ruling that Judge King was “not entitled to judicial immunity at the motion-to-dismiss stage of” the case. Plaintiff asserted malicious prosecution and unlawful arrest Fourth Amendment claims under § 1983 as well as state-law claims against Judge King, a Michigan district court judge. In this interlocutory appeal concerning Judge King’s argument that he was entitled to judicial immunity, the court addressed the two factors considered in determining “whether a particular act is ‘judicial’ or ‘non-judicial[.]’” The first factor is whether the act reflects a “function normally performed by a judge.” The court concluded the district court correctly found that Till “plausibly alleged that Judge King’s actions did not constitute” such a function. “To qualify as a judicial act, a judge’s actions must ‘further[] [an] official act or sanction.’” Till alleged “that Judge King had ELG locked in a ‘holding cell’ and conducted a ‘phony mock trial’ only because [he] was offended by ELG nodding off while he was lecturing about his career as a lawyer. And Judge King is alleged to have ‘admitted to the press’ that he was simply intending to ‘scare’ ELG because she had ‘disrespect[ed]’ him.” Till also alleged that there was “no case number, order, or any other court record associated with the events that transpired. This matters because the existence of a court record or order indicates that a judge’s actions constituted judicial acts.” As to the second factor, the court concluded the district court correctly determined that Till “plausibly alleged that Judge King was not acting in his judicial capacity when dealing with ELG.” Specifically, she “plausibly alleged that ELG encountered Judge King in his ‘private, non-judicial life’ as a lecturer or teacher.” And Till’s argument was “supported by the fact that, at the time of ELG’s ‘mock trial,’ court was no longer in session.” As to Till’s cross-appeal, the court held that the district court did not err in ruling that her alternate theory to overcome judicial immunity had no merit.

Eligibility requirements for district court judges; MCL 168.467; “Qualified elector” (MCL 168.10(1)); 30-day local residency requirement; 1963 Const, art 2, § 4(1); Mandamus; Declaratory judgment; Complaint amendment; Undue delay & prejudice to defendants; Secretary of State (SOS); Affidavit of identity (AOI)

The court held that 1963 Const, art 2, § 4(1) has not superseded and rendered void the 30-day local residency requirement to be a “qualified elector.” And because plaintiff failed to meet that “requirement and was not a ‘qualified elector,’ he had no clear legal right to have his candidacy” for district court judge certified by defendant-SOS “and the SOS had no clear legal duty to certify his candidacy.” Thus, the court affirmed summary disposition for defendants. Plaintiff sought to be a judicial candidate for the 31st District Court, which covers the city of Hamtramck. His complaint asked for, among other things, a writ of mandamus compelling “the SOS to accept his AOI and recognize that he was a ‘duly qualified elector’ of Hamtramck on” the filing deadline date. He also sought a declaratory judgment. The court held that under MCL 168.467, MCL 168.10(1), and Const 1963, art 2, § 1, he was “not eligible for the office of judge in the 31st District Court. The ‘filing deadline’ was” 4/21/26, the day that he “filed his nominating petitions and AOI, and on that date, plaintiff had not lived in Hamtramck for 30 days.” According to one of his petitions, just one day earlier, he “lived in Warren. Because plaintiff had not resided in Hamtramck for 30 days before the filing deadline, he was not a ‘qualified elector of the judicial district and election division in which election is sought by the filing deadline.’” And the court rejected his challenge to MCL 168.10(1)’s 30-day local residency requirement based on 1963 Const, art 2, § 4(1). While that provision “gives persons the ‘right to register to vote’ through the day of the election, the right is only granted to ‘elector[s] qualified to vote,’ and to be qualified to vote, an elector must have lived in the township or city for not less than 30 days before the election. The Court of Claims properly concluded that the 30-day local residency requirement does not conflict with 1963 Const, art 2, § 4(1)(f).” As to the opportunity to amend his complaint, among other things the court found that “particularized reasons—undue delay and prejudice to defendants—existed to deny” such a request.

Promissory estoppel; Zaremba Equip, Inc v Harco Nat’l Ins Co; Denial of request to amend the complaint; Failure to submit a proposed amended complaint; Futility

Holding that plaintiff failed to provide sufficient evidence that he was promised an ownership interest in defendant-Bluestone, the court affirmed summary disposition for defendants on his promissory estoppel claims. It also found that the trial court did not err in denying his request to amend the complaint because amendment would not have been justified. Plaintiff asserted that he had a right to a 25% interest in Bluestone. But the court found that the “testimony unequivocally established that” defendant-Roth, Bluestone’s director and sole officer, “never made a promise to plaintiff, let alone a clear and definite one.” Plaintiff conceded this, but contended that any representation made by defendant-Vickery bound “Roth because they were partners under the Uniform Partnership Act.” However, even assuming that they “were partners, Vickery did not make plaintiff any clear and definite promise of ownership involving Bluestone.” The court concluded that plaintiff’s affidavits “described invitations to join a new enterprise, not definite or clear manifestations, intentions, or promises to make plaintiff a part owner of the already-existing Bluestone. Promissory estoppel applies only when the pertinent facts and the wrong to be prevented are not in doubt.” The court determined that there was no question here “that Vickery’s discussions with plaintiff did not include any promises to transfer an ownership interest of Bluestone on which plaintiff could have reasonably relied.” Affirmed.

Alleged Brady v Maryland violation; People v Chenault; Adequate investigation; Distinction between failing to disclose evidence & failing to develop it; People v Anstey; Prosecutorial misconduct; People v Dobek; Lay witness opinion testimony; MRE 701

Holding that defendant failed to show a Brady violation and that the prosecutor did not elicit inadmissible legal conclusions from a police witness, the court affirmed defendant’s convictions. He was convicted of first-degree home invasion, AWIGBH, and felonious assault. He first argued that the prosecution violated Brady because law enforcement failed to conduct an adequate investigation, which might have turned up exonerating evidence. The court noted that he simply speculated, without record support, that certain investigative steps “could have produced exculpatory evidence. He” did not show “that certain evidence actually existed,” or explain how it “could have affected the outcome of his trial or sentencing. Furthermore, Brady only addresses the suppression of evidence that is already in the government’s control.” As the Michigan Supreme Court stated in Anstey, for “due process purposes, there is a crucial distinction between failing to disclose evidence that has been developed and failing to develop evidence in the first instance.” In the absence of “any proof that the government actually possessed material exculpatory or impeaching evidence that the prosecution failed to disclose,” the Brady claim failed. The court also concluded that “the prosecutor did not elicit inadmissible legal conclusions from” a deputy (E). Pursuant to “MRE 701, [E’s] testimony that he did not have the information required to obtain a search warrant was rationally based on his experience in law enforcement and the results of his investigation. [It] was also helpful [to] the determination of a fact at issue: the adequacy of the investigation.” A codefendant’s attorney had elicited testimony that E “never obtained any search warrants in this case, which might imply poor investigative work and the possibility that the police overlooked important evidence. The prosecutor’s questioning elicited testimony that tended to dispel that theory.” Further, the fact that E’s “testimony included some incidental statements about his understanding of the law did not render [it] inadmissible.”

Sentencing; Enhancement for recklessly creating a substantial risk of “serious bodily injury” (USSG § 3C1.2); Vulnerable body area; Enhancement for possessing a firearm in connection with another felony (§ 2K2.1(b)(6)(B)); Possessing cocaine with intent to distribute; Preponderance of the evidence; Comparing United States v Falls (Unpub 6th Cir); Stolen firearm enhancement (§ 2K2.1(b)(4)(A)); Reliance on police reports; Comparing United States v Black (Unpub 6th Cir); Consecutive sentences; Plain error review

[This appeal was from the WD-MI.] The court affirmed the district court’s application of enhancements for (1) recklessly creating a substantial risk of serious bodily injury, (2) possessing a firearm in connection with another felony, and (3) a stolen gun in sentencing defendant-Clay. And it found that he failed to show plain error in the district court’s decision to impose his sentence consecutive to any potential state incarceration arising from parole revocation. He pled guilty to FIP after he “caused a late-night disturbance with a firearm at a convenience store. When officers arrived and” tried to handcuff him, he resisted and bit one of them in the groin. Officers found cash and cocaine in his pockets. Rejecting his objections to the Probation Office’s recommended enhancements, the district court sentenced Clay to 151 months, to run consecutive to any prison term arising from revocation of his paroled state sentences. On appeal, the court first held that the record supported application of the reckless endangerment enhancement. It focused on three key facts: “(1) Clay bit the officer’s penis; (2) with enough force to cause an injury requiring medical treatment; and (3) the officer had blood on his groin. Taken together, these facts show that Clay’s biting easily could have caused extreme physical pain, protracted impairment of penile function, or an injury requiring significant medical intervention.” While the record was not sufficient “to conclude that the biting actually caused a serious bodily injury, it is enough to conclude that there was a substantial risk of such injury.” As to application of § 2K2.1(b)(6)(B)’s four-point enhancement, the court held that the district court did not clearly err in determining “that a preponderance of the evidence proved Clay had the requisite intent to distribute” the cocaine in his pocket. It “adopted the presentence report’s finding, based on a field test, that Clay had approximately 16 grams” and the court used that figure. This amount was “significantly more than an average cocaine user would carry” and was packaged “into 11 small baggies within” a larger bag. The court also found that the district court did not clearly err in relying on “police reports to conclude that Clay possessed a stolen firearm.”

Eligibility requirements for district court judges; MCL 168.467; “Qualified elector” (MCL 168.10(1)); 30-day local residency requirement; 1963 Const, art 2, § 4(1); Mandamus; Declaratory judgment; Complaint amendment; Undue delay & prejudice to defendants; Secretary of State (SOS); Affidavit of identity (AOI)

The court held that 1963 Const, art 2, § 4(1) has not superseded and rendered void the 30-day local residency requirement to be a “qualified elector.” And because plaintiff failed to meet that “requirement and was not a ‘qualified elector,’ he had no clear legal right to have his candidacy” for district court judge certified by defendant-SOS “and the SOS had no clear legal duty to certify his candidacy.” Thus, the court affirmed summary disposition for defendants. Plaintiff sought to be a judicial candidate for the 31st District Court, which covers the city of Hamtramck. His complaint asked for, among other things, a writ of mandamus compelling “the SOS to accept his AOI and recognize that he was a ‘duly qualified elector’ of Hamtramck on” the filing deadline date. He also sought a declaratory judgment. The court held that under MCL 168.467, MCL 168.10(1), and Const 1963, art 2, § 1, he was “not eligible for the office of judge in the 31st District Court. The ‘filing deadline’ was” 4/21/26, the day that he “filed his nominating petitions and AOI, and on that date, plaintiff had not lived in Hamtramck for 30 days.” According to one of his petitions, just one day earlier, he “lived in Warren. Because plaintiff had not resided in Hamtramck for 30 days before the filing deadline, he was not a ‘qualified elector of the judicial district and election division in which election is sought by the filing deadline.’” And the court rejected his challenge to MCL 168.10(1)’s 30-day local residency requirement based on 1963 Const, art 2, § 4(1). While that provision “gives persons the ‘right to register to vote’ through the day of the election, the right is only granted to ‘elector[s] qualified to vote,’ and to be qualified to vote, an elector must have lived in the township or city for not less than 30 days before the election. The Court of Claims properly concluded that the 30-day local residency requirement does not conflict with 1963 Const, art 2, § 4(1)(f).” As to the opportunity to amend his complaint, among other things the court found that “particularized reasons—undue delay and prejudice to defendants—existed to deny” such a request.

Motion to set aside an order; MCR 2.612(C)(1)(f); Heugel v Heugel; “Extraordinary circumstances”; Rose v Rose

Holding that the trial court abused its discretion in granting plaintiff’s motion to set aside a stipulated order under MCR 2.612(C)(1)(f), the court vacated the order granting that motion and remanded. This was a postjudgment divorce case. The 10/3/22 “stipulated order incorporated the parties’ agreement to share the cost of healthcare expenses for their adult children.” The court concluded that “the trial court did not identify any improper conduct by” defendant-ex-husband by which he obtained entry of that order. His “alleged ‘spurious accounting’ and delay in filing a motion to show cause did not constitute extraordinary circumstances because MCR 2.612(C)(1)(f) is typically reserved for scenarios in which ‘the judgment was obtained by the improper conduct of the party in whose favor it was rendered.’ The alleged ‘spurious accounting’ and delay in enforcement occurred after the judgment was entered. A party’s alleged misconduct when enforcing a judgment may justify a motion for sanctions, but not relief from the judgment.” As a result, the court was unable to find that there were extraordinary circumstances mandating “setting aside the order in order to achieve justice. On the current record, this appears simply to be a situation in which recurring late fees accrued over a long period of time because of payments that were allegedly never made, which is a potential scenario that the parties should have been aware of at the time that they agreed to the late-fee provision.” It found that the circumstances here appeared “even less extraordinary than in Rose.” It concluded that the “difference between the unpaid reimbursement and the total late fees may have shocked the trial court, and it may or may not be justifiable for other reasons, but it was not an unexpected or unusual circumstance that would mandate setting aside the order.” Further, it determined that the “decision to set aside the order detrimentally affected defendant’s substantial rights to the late fees, including any late fees that the parties had already paid.”

Medical provider claims against an employee health benefit plan; Employee Retirement Income Security Act (ERISA) preemption; State-law claims that “relate to” an ERISA plan; 29 USC § 1144(a); Cromwell v Equicor-Equitable HCA Corp; Negligent misrepresentation & promissory estoppel claims; A plan administrator’s misstatements about a plan’s coverage or reimbursement terms; The operative complaint; Denial of leave to file a second amended complaint; FedRCivP 15(a); Lack of a motion

[This appeal was from the ED-MI.] The court held that plaintiffs-medical providers’ state-law negligent misrepresentation and promissory estoppel claims based on defendant-plan administrator’s (Blue Cross) misstatements about the plan’s reimbursement terms were preempted by ERISA. Thus, it affirmed the district court’s dismissal of the case. Defendant-La-Z-Boy sponsors the employee health benefit plan at issue. Before providing a covered person treatment, plaintiffs contacted Blue Cross about the reimbursement terms under the plan. Relying on oral representations by Blue Cross employees, plaintiffs provided treatment. But when they sought reimbursement, “Blue Cross paid an amount far below the promised rate.” On appeal, the court first declined plaintiffs’ request to “apply ERISA to the new allegations and claims contained in their proposed second amended complaint, rather than limit [its] review to the operative first amended complaint.” The latter was the only one before the district court when it dismissed their claims. As to the merits, the court agreed with the district court that Cromwell dictated dismissal of plaintiffs’ claims. “Under Cromwell, ERISA preempts negligent-misrepresentation and promissory-estoppel claims that depend upon a plan administrator’s misstatements about the coverage or reimbursement terms of an employer’s ERISA plan.” While plaintiffs asserted their “claims neither make ‘reference to’ nor have a ‘connection with’ La-Z-Boy’s ERISA-governed plan[,]” the court found that Cromwell “considered materially identical state-law claims[.]” It held there “that ERISA expressly preempted the providers’ state-law claims because they ‘relate[d] to’ an ERISA-governed plan. The same conclusion follows here.” The court noted that it did “not determine whether ERISA expressly preempts other state-law claims brought by third-party healthcare providers against plan administrators in different factual scenarios.” Finally, it held that the district court did not abuse its discretion in implicitly rejecting plaintiffs’ request for leave to file a second amended complaint if their existing claims were preempted. That request, “in a single sentence at the” end of their brief opposing the motion to dismiss, did not constitute a motion for Rule 15(a) purposes.

Insurer priority for payment of personal protection insurance (PIP) benefits; MCL 500.3114(1) & (4); Equitable estoppel; Applicability of Rorick v State Mut Rodded Fire Ins Co of MI; Appellate jurisdiction; “Final orders”; MCR 7.202(6)(a)(i); Failure to rule on a motion for reconsideration; Harmless error; Michigan Assigned Claims Plan (MACP)

Holding that there was no merit in defendant-Citizens Insurance Company of the Midwest’s equitable estoppel argument, the court affirmed the trial court’s ruling that Citizens had priority to pay plaintiff-Melton’s claim. It also concluded that while the trial court abused its discretion by refusing to rule on Citizens’ motion for reconsideration, the error was harmless. Citizens and third-party defendant-Progressive disputed which insurer had priority to pay Melton’s PIP benefits claim. Progressive issued a policy to her live-in partner (B) before the auto accident. After it denied her claim, Melton filed a claim through the MACP, which assigned it to Citizens. As an initial matter, the court concluded that Citizens’ appeal from two final orders gave it jurisdiction over the earlier grant of summary disposition to Progressive. As to the merits, it held that the trial court did not err in “granting Progressive summary disposition because Melton was neither statutorily nor contractually eligible for PIP benefits.” The policy declarations page listed her “as an additional driver, not a named insured, so she was not a person named in the policy. Further, Melton was not [B’s] spouse or relative.” There was no dispute that they were not married. B’s “policy did not apply to Melton under any of the categories in MCL 500.3114(1), and Progressive was not responsible for her claim under that statute.” Further, she was “not eligible for PIP benefits under the” policy language. Because it “did not apply to Melton and no other insurance policy applied, she was required to claim PIP benefits through the MACP under MCL 500.3114(4). The trial court properly ruled that Citizens, as the MACP’s assigned insurer, had priority to pay Melton’s claim.” The court also rejected Citizens’ argument “that Progressive should be estopped from denying PIP benefits because [it] listed Melton as eligible for PIP benefits and charged a premium for providing” her with coverage. Equitable estoppel did not apply because its representations as to coverage were not made to Melton. There was also no evidence that she “saw the declarations page or any part of” B’s policy. Further, B paid the premium, “and Melton never communicated with Progressive about the policy.”

Medical provider claims against an employee health benefit plan; Employee Retirement Income Security Act (ERISA) preemption; State-law claims that “relate to” an ERISA plan; 29 USC § 1144(a); Cromwell v Equicor-Equitable HCA Corp; Negligent misrepresentation & promissory estoppel claims; A plan administrator’s misstatements about a plan’s coverage or reimbursement terms; The operative complaint; Denial of leave to file a second amended complaint; FedRCivP 15(a); Lack of a motion

[This appeal was from the ED-MI.] The court held that plaintiffs-medical providers’ state-law negligent misrepresentation and promissory estoppel claims based on defendant-plan administrator’s (Blue Cross) misstatements about the plan’s reimbursement terms were preempted by ERISA. Thus, it affirmed the district court’s dismissal of the case. Defendant-La-Z-Boy sponsors the employee health benefit plan at issue. Before providing a covered person treatment, plaintiffs contacted Blue Cross about the reimbursement terms under the plan. Relying on oral representations by Blue Cross employees, plaintiffs provided treatment. But when they sought reimbursement, “Blue Cross paid an amount far below the promised rate.” On appeal, the court first declined plaintiffs’ request to “apply ERISA to the new allegations and claims contained in their proposed second amended complaint, rather than limit [its] review to the operative first amended complaint.” The latter was the only one before the district court when it dismissed their claims. As to the merits, the court agreed with the district court that Cromwell dictated dismissal of plaintiffs’ claims. “Under Cromwell, ERISA preempts negligent-misrepresentation and promissory-estoppel claims that depend upon a plan administrator’s misstatements about the coverage or reimbursement terms of an employer’s ERISA plan.” While plaintiffs asserted their “claims neither make ‘reference to’ nor have a ‘connection with’ La-Z-Boy’s ERISA-governed plan[,]” the court found that Cromwell “considered materially identical state-law claims[.]” It held there “that ERISA expressly preempted the providers’ state-law claims because they ‘relate[d] to’ an ERISA-governed plan. The same conclusion follows here.” The court noted that it did “not determine whether ERISA expressly preempts other state-law claims brought by third-party healthcare providers against plan administrators in different factual scenarios.” Finally, it held that the district court did not abuse its discretion in implicitly rejecting plaintiffs’ request for leave to file a second amended complaint if their existing claims were preempted. That request, “in a single sentence at the” end of their brief opposing the motion to dismiss, did not constitute a motion for Rule 15(a) purposes.

42 USC § 1983 action alleging Fourth Amendment claims for malicious prosecution & unlawful arrest; Michigan state-law claims; Judicial immunity; Plausible allegations that defendant-judge was engaged in nonjudicial acts; Brookings v Clunk; Rockett ex rel KR v Eighmy (8th Cir); Distinguishing Orta v Repp (Unpub 6th Cir); Claim that the judge’s actions were performed in the “complete absence of all jurisdiction”

[This appeal was from the ED-MI.] The court held that plaintiff-Till plausibly alleged that defendant-Judge King “was engaged in nonjudicial acts when dealing with” Till’s daughter (ELG) while she was in his courtroom during a vocational program for teenagers. Thus, it affirmed the district court’s ruling that Judge King was “not entitled to judicial immunity at the motion-to-dismiss stage of” the case. Plaintiff asserted malicious prosecution and unlawful arrest Fourth Amendment claims under § 1983 as well as state-law claims against Judge King, a Michigan district court judge. In this interlocutory appeal concerning Judge King’s argument that he was entitled to judicial immunity, the court addressed the two factors considered in determining “whether a particular act is ‘judicial’ or ‘non-judicial[.]’” The first factor is whether the act reflects a “function normally performed by a judge.” The court concluded the district court correctly found that Till “plausibly alleged that Judge King’s actions did not constitute” such a function. “To qualify as a judicial act, a judge’s actions must ‘further[] [an] official act or sanction.’” Till alleged “that Judge King had ELG locked in a ‘holding cell’ and conducted a ‘phony mock trial’ only because [he] was offended by ELG nodding off while he was lecturing about his career as a lawyer. And Judge King is alleged to have ‘admitted to the press’ that he was simply intending to ‘scare’ ELG because she had ‘disrespect[ed]’ him.” Till also alleged that there was “no case number, order, or any other court record associated with the events that transpired. This matters because the existence of a court record or order indicates that a judge’s actions constituted judicial acts.” As to the second factor, the court concluded the district court correctly determined that Till “plausibly alleged that Judge King was not acting in his judicial capacity when dealing with ELG.” Specifically, she “plausibly alleged that ELG encountered Judge King in his ‘private, non-judicial life’ as a lecturer or teacher.” And Till’s argument was “supported by the fact that, at the time of ELG’s ‘mock trial,’ court was no longer in session.” As to Till’s cross-appeal, the court held that the district court did not err in ruling that her alternate theory to overcome judicial immunity had no merit.

Promissory estoppel; Zaremba Equip, Inc v Harco Nat’l Ins Co; Denial of request to amend the complaint; Failure to submit a proposed amended complaint; Futility

Holding that plaintiff failed to provide sufficient evidence that he was promised an ownership interest in defendant-Bluestone, the court affirmed summary disposition for defendants on his promissory estoppel claims. It also found that the trial court did not err in denying his request to amend the complaint because amendment would not have been justified. Plaintiff asserted that he had a right to a 25% interest in Bluestone. But the court found that the “testimony unequivocally established that” defendant-Roth, Bluestone’s director and sole officer, “never made a promise to plaintiff, let alone a clear and definite one.” Plaintiff conceded this, but contended that any representation made by defendant-Vickery bound “Roth because they were partners under the Uniform Partnership Act.” However, even assuming that they “were partners, Vickery did not make plaintiff any clear and definite promise of ownership involving Bluestone.” The court concluded that plaintiff’s affidavits “described invitations to join a new enterprise, not definite or clear manifestations, intentions, or promises to make plaintiff a part owner of the already-existing Bluestone. Promissory estoppel applies only when the pertinent facts and the wrong to be prevented are not in doubt.” The court determined that there was no question here “that Vickery’s discussions with plaintiff did not include any promises to transfer an ownership interest of Bluestone on which plaintiff could have reasonably relied.” Affirmed.

Insurer priority for payment of personal protection insurance (PIP) benefits; MCL 500.3114(1) & (4); Equitable estoppel; Applicability of Rorick v State Mut Rodded Fire Ins Co of MI; Appellate jurisdiction; “Final orders”; MCR 7.202(6)(a)(i); Failure to rule on a motion for reconsideration; Harmless error; Michigan Assigned Claims Plan (MACP)

Holding that there was no merit in defendant-Citizens Insurance Company of the Midwest’s equitable estoppel argument, the court affirmed the trial court’s ruling that Citizens had priority to pay plaintiff-Melton’s claim. It also concluded that while the trial court abused its discretion by refusing to rule on Citizens’ motion for reconsideration, the error was harmless. Citizens and third-party defendant-Progressive disputed which insurer had priority to pay Melton’s PIP benefits claim. Progressive issued a policy to her live-in partner (B) before the auto accident. After it denied her claim, Melton filed a claim through the MACP, which assigned it to Citizens. As an initial matter, the court concluded that Citizens’ appeal from two final orders gave it jurisdiction over the earlier grant of summary disposition to Progressive. As to the merits, it held that the trial court did not err in “granting Progressive summary disposition because Melton was neither statutorily nor contractually eligible for PIP benefits.” The policy declarations page listed her “as an additional driver, not a named insured, so she was not a person named in the policy. Further, Melton was not [B’s] spouse or relative.” There was no dispute that they were not married. B’s “policy did not apply to Melton under any of the categories in MCL 500.3114(1), and Progressive was not responsible for her claim under that statute.” Further, she was “not eligible for PIP benefits under the” policy language. Because it “did not apply to Melton and no other insurance policy applied, she was required to claim PIP benefits through the MACP under MCL 500.3114(4). The trial court properly ruled that Citizens, as the MACP’s assigned insurer, had priority to pay Melton’s claim.” The court also rejected Citizens’ argument “that Progressive should be estopped from denying PIP benefits because [it] listed Melton as eligible for PIP benefits and charged a premium for providing” her with coverage. Equitable estoppel did not apply because its representations as to coverage were not made to Melton. There was also no evidence that she “saw the declarations page or any part of” B’s policy. Further, B paid the premium, “and Melton never communicated with Progressive about the policy.”

Motion to set aside an order; MCR 2.612(C)(1)(f); Heugel v Heugel; “Extraordinary circumstances”; Rose v Rose

Holding that the trial court abused its discretion in granting plaintiff’s motion to set aside a stipulated order under MCR 2.612(C)(1)(f), the court vacated the order granting that motion and remanded. This was a postjudgment divorce case. The 10/3/22 “stipulated order incorporated the parties’ agreement to share the cost of healthcare expenses for their adult children.” The court concluded that “the trial court did not identify any improper conduct by” defendant-ex-husband by which he obtained entry of that order. His “alleged ‘spurious accounting’ and delay in filing a motion to show cause did not constitute extraordinary circumstances because MCR 2.612(C)(1)(f) is typically reserved for scenarios in which ‘the judgment was obtained by the improper conduct of the party in whose favor it was rendered.’ The alleged ‘spurious accounting’ and delay in enforcement occurred after the judgment was entered. A party’s alleged misconduct when enforcing a judgment may justify a motion for sanctions, but not relief from the judgment.” As a result, the court was unable to find that there were extraordinary circumstances mandating “setting aside the order in order to achieve justice. On the current record, this appears simply to be a situation in which recurring late fees accrued over a long period of time because of payments that were allegedly never made, which is a potential scenario that the parties should have been aware of at the time that they agreed to the late-fee provision.” It found that the circumstances here appeared “even less extraordinary than in Rose.” It concluded that the “difference between the unpaid reimbursement and the total late fees may have shocked the trial court, and it may or may not be justifiable for other reasons, but it was not an unexpected or unusual circumstance that would mandate setting aside the order.” Further, it determined that the “decision to set aside the order detrimentally affected defendant’s substantial rights to the late fees, including any late fees that the parties had already paid.”

Bicyclist injuries sustained on a sidewalk after contacting defendant’s fence; Premises liability claim against the owner of adjacent property; Duty element; Berman v LaRose; Whether defendant created a new hazard

The court held that defendant-adjacent property owner “did not owe plaintiff a duty to warn or protect her against the hazardous conditions on the public sidewalk and” that the signage it placed on its fence did not cause her injuries. Thus, defendant was properly granted summary judgment. Plaintiff was riding her bicycle on the sidewalk when the “handlebars clipped the fence at the corner of defendant’s lot. This caused her to lose control of the bicycle” and fall. The court concluded that the premises-liability theory of negligence did not apply because “defendant did not own or possess the public sidewalk adjoining its property[.]” In the absence of a statute, an abutting owner ordinarily has no duty “‘as to the condition of the sidewalk or public way, unless the landowner has physically intruded upon the area in some manner or has done some act which either increased the existent hazard or created a new hazard.’” In this case, there was “no dispute that the fence did not physically intrude upon the sidewalk.” And plaintiff did not challenge defendant’s claim that it did not modify the fence. According to plaintiff’s own consultant, it was governmental entities “that created the alleged hazard by improperly replacing the sidewalks and curb cuts in 2020.” Rather, plaintiff contended “that defendant created a new hazard by covering the fence with large political signs, which created a ‘blind corner’ that prevented” her from seeing potential hazards. But the court noted that her testimony showed “she was still able to see and appreciate” the hazards of two vehicles around the corner that were stopped at the intersection. Even assuming “that defendant breached a duty by covering the fence with large signs in violation of a local ordinance, there was no genuine issue of material fact that the obstructed view did not cause plaintiff’s injuries.” Affirmed.

Conservatorship; Estates & Protected Individuals Code (EPIC); Petition for reimbursement; Loan or gift; Ward’s legal capacity; Attorney fees; Motion for reconsideration; Remand for unresolved fact issue; In re Duke Estate

The court held that the probate court improperly denied reimbursement based on decedent-Mannausa’s capacity to retain counsel and the reasonableness of counsel’s fees, rather than whether appellant’s payment was a loan or gift and whether Mannausa could legally agree to a loan. Nonparty-Fiduciary Services was appointed conservator over Mannausa’s estate while she was a legally incapacitated individual under EPIC. Before its official involvement began, appellant wrote Mannausa’s attorney a $15,000 check marked “For Nancy Mannausa,” and Fiduciary Services later petitioned for approval to reimburse appellant. The probate court denied the petition, focusing on Mannausa’s capacity to retain the attorney and its view that the attorney had “gouged” her with “excessive” fees. On appeal, the court held that this was the wrong focus because the request was not from the attorney for fees, but from appellant for an “allegedly agreed-upon loan.” The court reasoned that “the appropriate inquiry did not concern [the attorney’s] relationship with Mannausa” but instead “concerned appellant’s relationship with Mannausa.” Because the record contained no evidence of an agreement and the probate court did not decide whether the payment was “a valid, agreed upon loan,” the court remanded for it to decide whether the check was a loan or a gift and, if a loan, whether Mannausa was legally capable of agreeing to it. Reversed and remanded.

Child protective proceedings; Jurisdiction; In re Brock; MCL 712A.2(b)(1); Aggravated circumstances; Reasonable efforts toward reunification; MCL 712A.19a(2)(a); MCL 722.638(1)(a)(iii); Serious physical harm; MCL 722.622(ee); MCL 750.136b(1)(f); In re Barber/Espinoza; Termination of parental rights; §§ 19b(3)(b)(i) & (j); Child’s best interests; MCL 712A.19b(5); In re White; Relative placement; In re Olive/Metts

The court held that the trial court properly: 1) exercised jurisdiction, 2) found aggravated circumstances excusing reunification efforts, 3) found statutory grounds for termination under §§ (b)(i) and (j), and 4) determined that termination was in the child’s (VAT) best interests. Respondent-father’s rights were terminated after VAT testified that he sexually and physically abused her when she was a child, including touching her, punching her, cutting her, and burning her. The trial court exercised jurisdiction, found aggravated circumstances, and concluded termination was in VAT’s best interests. On appeal, the court first held that jurisdiction was supported under MCL 712A.2(b)(1) because VAT’s testimony showed she was subject to “a substantial risk of harm to . . . her mental well-being.” It next held that aggravated circumstances existed under MCL 722.638(1)(a)(iii) because VAT’s credible testimony that respondent punched, cut, and burned her showed abuse that included “serious physical harm.” The court rejected respondent’s statutory-grounds challenge because VAT’s testimony about inappropriate touching and physical abuse, her visible mark and scars, and the detective’s follow-up investigation supported § (b)(i), while the psychologist’s testimony that reunification would have a “detrimental impact” on VAT’s mental health supported § (j). Finally, the court held that termination was in VAT’s best interests because the trial court credited testimony that respondent did not prioritize VAT’s needs, found “no bond” between them, and considered her placement with her mother before concluding continued parental rights would place VAT at significant risk. Affirmed.