Divorce; Attorney fees; Postjudgment parenting-time litigation; MCR 3.206(D); Financial need; Evidentiary hearing; Harmless error; Safdar v Aziz

The court held that the trial court did not abuse its discretion by denying defendant-ex-wife’s request for attorney fees. After the parties’ divorce, plaintiff-ex-husband moved to modify parenting time, defendant repeatedly requested attorney fees, and the trial court denied the fee request after the court peremptorily reversed the parenting-time modification. On appeal, the court found that even if the trial court erred by denying the request without explanation, any error was harmless because defendant did not submit adequate evidence of financial need. The court explained that a party seeking fees under MCR 3.206(D) cannot rely on “unsubstantiated assertions” but must demonstrate an inability to bear the expense with evidence. Defendant provided the 2020 Economics of Law Summary and counsel’s curriculum vitae, but no proof of her own income or plaintiff’s income beyond her own statements. The court also rejected her argument that an evidentiary hearing was required because defendant had access to proof of her own income and failed to provide it. Affirmed.

Effect of a merger clause; UAW-GM Human Resource Ctr v KSL Recreation Corp; Fraud in the inducement to enter a contract; Custom Data Sols, Inc v Preferred Capital, Inc; Whether summary disposition was premature due to incomplete discovery; Attorney fees; Frivolous claim or defense; MCR 1.109(E)(7); MCR 2.625(A)(2); MCL 600.2591; A trial court’s inherent authority to impose sanctions for misconduct; Detroit Public Schools Community District (DPSCD)

In these consolidated appeals, the court held in one appeal that the trial court properly granted defendants summary disposition of plaintiffs’ fraud claims related to a lease. In the other appeal, it held that the trial court abused its discretion in granting plaintiff-church attorney fees. The case arose after defendant-DPSCD leased property formerly used as a school to plaintiffs. On appeal, plaintiffs argued in Docket No. 371359 that the trial court prematurely granted defendants summary disposition of the fraud claims because discovery was incomplete. The court first noted that their “bare assertion” was insufficient to survive summary disposition. They “were required to ‘clearly identify the disputed issue for which [they] assert[ed] discovery must be conducted and support the issue with independent evidence.’” Given that they did not do so, they failed to satisfy “their burden of establishing that the trial court’s grant of summary disposition was premature.” In addition, in the absence of any “evidence of fraudulent inducement, the merger clause in the 2018 lease agreement remained in effect and barred any parol evidence of other alleged fraud.” Thus, further discovery would not have affected the outcome of defendants’ summary disposition motion. In Docket No. 371983, DPSCD appealed the trial court’s award of attorney fees to the church related to its contract breach claim. The court held that the “trial court abused its discretion when it awarded attorney fees on the basis of general equitable principles instead of sanctionable misconduct.” It failed to “identify a violation of any court rule, statute, or order that would constitute the misconduct required to impose a sanction.” The court affirmed in Docket No. 371359 but in Docket No. 371983 it vacated the award of attorney fees and remanded.

Effect of a merger clause; UAW-GM Human Resource Ctr v KSL Recreation Corp; Fraud in the inducement to enter a contract; Custom Data Sols, Inc v Preferred Capital, Inc; Whether summary disposition was premature due to incomplete discovery; Attorney fees; Frivolous claim or defense; MCR 1.109(E)(7); MCR 2.625(A)(2); MCL 600.2591; A trial court’s inherent authority to impose sanctions for misconduct; Detroit Public Schools Community District (DPSCD)

In these consolidated appeals, the court held in one appeal that the trial court properly granted defendants summary disposition of plaintiffs’ fraud claims related to a lease. In the other appeal, it held that the trial court abused its discretion in granting plaintiff-church attorney fees. The case arose after defendant-DPSCD leased property formerly used as a school to plaintiffs. On appeal, plaintiffs argued in Docket No. 371359 that the trial court prematurely granted defendants summary disposition of the fraud claims because discovery was incomplete. The court first noted that their “bare assertion” was insufficient to survive summary disposition. They “were required to ‘clearly identify the disputed issue for which [they] assert[ed] discovery must be conducted and support the issue with independent evidence.’” Given that they did not do so, they failed to satisfy “their burden of establishing that the trial court’s grant of summary disposition was premature.” In addition, in the absence of any “evidence of fraudulent inducement, the merger clause in the 2018 lease agreement remained in effect and barred any parol evidence of other alleged fraud.” Thus, further discovery would not have affected the outcome of defendants’ summary disposition motion. In Docket No. 371983, DPSCD appealed the trial court’s award of attorney fees to the church related to its contract breach claim. The court held that the “trial court abused its discretion when it awarded attorney fees on the basis of general equitable principles instead of sanctionable misconduct.” It failed to “identify a violation of any court rule, statute, or order that would constitute the misconduct required to impose a sanction.” The court affirmed in Docket No. 371359 but in Docket No. 371983 it vacated the award of attorney fees and remanded.

Second-degree murder; Resentencing; Proportionality; Youth as mitigating factor; Term-of-years sentence; Cruel or unusual punishment; Miller v Alabama; People v Boykin; People v Stovall; People v Eads; People v Echols; People v Campbell; People v Snow

The court held that defendant’s 375-month to 100-year sentence for second-degree murder was proportionate and that the trial court adequately considered his youth as mitigating. Defendant was 17 when he and a codefendant shot and killed the victim during an attempted robbery involving a bicycle sale. The case returned to the trial court after an earlier remand for resentencing or further articulation of the departure sentence. On remand, the trial court imposed a within-guidelines sentence. The court first held that the sentence was not cruel or unusual and did not violate proportionality. It reasoned that the minimum sentence was far shorter than sentences found unconstitutional or disproportionate in Stovall, Eads, Echols, and Campbell, and that the “severity of defendant’s sentence correlates to the gravity of his offense” because defendant “shot and killed the victim in an argument about the sale of a bicycle[.]” The court also noted the sentence was below the midpoint of the 25-to-40-year minimum range applicable to many young first-degree-murder offenders under MCL 769.25. The court next found the trial court considered youth as mitigating because it reviewed expert materials on adolescent brain development and prison rehabilitation, stated it was “well aware of the issue with regards to brain development,” and recognized that youth affects the ability “to make intelligent decisions and to appreciate consequences.” Because the trial court also considered defendant’s record, lack of remorse, and the circumstances of the offense, resentencing was not required. Affirmed.

Sufficiency of the evidence; Felony murder; Armed robbery; Conspiracy; Felony-firearm; Identity; Constitutional challenge to a mandatory life in prison without parole (LWOP) sentence for a defendant who was 22 at the time of the crime; People v Aaron; People v Lorentzen; People v Hall; People v Abraham

The court held that there was sufficient evidence to support defendant-Manning’s convictions of felony murder, armed robbery, conspiracy to commit armed robbery, and felony-firearm. It also rejected his cruel or unusual punishment challenge to his mandatory LWOP felony murder sentence. This consolidated appeal involved three cases arising from a crime spree involving defendant and two codefendants (R and H). He was 22 years old at the time of the crimes. He first challenged the sufficiency of the evidence of his identity as a perpetrator. The court found that the trier of fact could infer from the trial evidence that he “was in possession of his phone and, accordingly, at the scene of various crime events, until he left it in the Audi, and that he and his phone were in the same locations as [R] and [R’s] phone before they separated.” Further, surveillance video showed “Manning, identified by his shoes, trying to break into the EZ Mart, and it displayed three people who were in the Equinox just before [H] stole the Audi and when the Audi was in” a parking lot. A jury could reasonably infer from this evidence that he was with R and H “in the Equinox, and later in the Audi, and therefore, that Manning was present and participated in the various” crimes. As to the felony murder conviction, a “reasonable juror could infer that armed persons, approaching an individual they did not know, who was using an ATM, late at night, with a gun pointed at him, did so with the intent of robbing him. The absence of evidence that they took property from [victim-W] is irrelevant because an actual taking is not an element of armed robbery or felony murder predicated on armed robbery.” The lack of a taking was consistent with a witness’s testimony that W went to the ATM to transfer money between accounts, not to withdraw cash. As to the requisite malice, use “of a firearm serves as evidence that the shooters ‘intentionally set in motion a force likely to cause death or great bodily harm.’” As to his sentencing claim, Hall “is binding authority holding that mandatory LWOP for felony murder does not violate Michigan’s constitutional prohibition against cruel or unusual punishment.” And in Abraham the court rejected a facial challenge to the constitutionality of a mandatory LWOP sentence for felony murder where the defendant was 22 years old. Affirmed.

Motion to dismiss the prosecution’s habitual offender enhancement; MCL 769.12; MCL 769.13; MCR 6.112(C); Challenge to a within-guidelines sentence; Reasonableness; Ineffective assistance of counsel; Failure to request a jury instruction on the lesser included offense of assault; Effect of a self-defense strategy; Rational view of the evidence; People v Cornell

The court held that the trial court did not err in denying defendant’s motion to dismiss the prosecution’s habitual offender enhancement, and that his resulting within-guidelines sentence was presumptively proportionate. It also rejected his claim that defense counsel was ineffective for failing to request a lesser included instruction on assault. He was convicted of CSC I, AWIGBH, third offense domestic violence, FIP, and felony-firearm. He was sentenced as a fourth-offense habitual offender. As to his motion to dismiss the habitual offender enhancement, he argued the trial court erred in “failing to consider MCR 6.112(C)’s requirement that the information be filed on or before the date set for arraignment, which” was 2/4/21. But he conflated “his waiver of arraignment with ‘the date set for the arraignment.’ Because defendant waived his arraignment in this case: (1) there was no date set for arraignment, and (2) the prosecutor was required to provide notice of the enhancement ‘within 21 days after the filing of the information charging the underlying offense.’” The prosecution filed the “information and notice of enhancement on the same day; therefore, the notice of enhancement was timely under MCL 769.13(1).” As to his claim he was entitled to resentencing, his only challenge to the proportionality of his sentence was “that if the habitual offender enhancement was removed, then [his] sentence would reflect a departure from the guidelines that the trial court did not sufficiently explain. But” given that there was no error in the denial of his motion to dismiss the habitual offender enhancement, he received a within-guidelines sentence. Finally, as to defense counsel’s failure to request a lesser included offense instruction related to AWIGBH, defendant testified “that he acted in self-defense. Therefore, suggesting to the jury that [he] was guilty of misdemeanor assault would have undermined defendant’s argument that he did nothing wrong when he struck the victim.” Further, the court found it was likely the trial court would have denied a request for such an instruction “for lack of congruity with the record.” Affirmed.

Felony murder; Armed robbery; Aiding & abetting; Newly discovered evidence; MCR 6.431(B); People v Cress; Codefendant statements; People v Terrell; Statement against interest; MRE 804(b)(4); Great weight of the evidence; Malice

The court held that defendant-Rosa was not entitled to a new trial based on his codefendants’ posttrial statements denying his involvement in the ATM robbery and murder, and that the felony-murder verdict was not against the great weight of the evidence. Defendant, his codefendants, and a stolen vehicle were tied to an overnight robbery spree that included the fatal shooting of a victim at an ATM. On appeal, the court first held that Terrell controlled because “a codefendant’s belated exculpatory testimony was not newly discovered evidence,” and defendant knew before trial that his codefendants were charged in the same murder and had relevant information. It also found no conflict panel was warranted because the issue was not outcome determinative and it concluded the majority opinion in Terrell was correctly decided. The court reasoned that the codefendants’ statements were not sworn, one codefendant recanted, the statements appeared “crafted to explain” the cell-phone and gun evidence, and it was “not probable that Rosa absented himself for the single most serious stage of the overnight crime spree.” The statements also lacked trustworthiness for admission as statements against interest. The court next held that the verdict was not against the great weight of the evidence because the jury could infer defendant aided and abetted the robbery and murder by driving a getaway car, waiting to assist, acting as a lookout, or encouraging the others. It further reasoned that defendant “demonstrated malice and a willingness to use deadly force” by firing his gun during an earlier robbery in the same spree. Affirmed.

Expert testimony in a CSC case; MRE 702; People v Muniz; People v Peterson; Daubert v Merrell Dow Pharm, Inc; Ineffective assistance of counsel; Defense theory; Failure to object; Matters of trial strategy; Handling of expert witness issues; Cumulative error; Sufficiency of the evidence for a CSC I conviction; MCL 750.520b(1)(a) & 750.520b(2)(b); Great weight of the evidence; Sentencing; Mandatory lifetime registration under the Sex Offenders Registration Act (SORA); Lifetime electronic monitoring (LEM); Cruel or unusual punishment; Unreasonable search; Child Sexual Abuse Accommodation Syndrome (CSAAS)

The court held that the trial court did not abuse its discretion in denying defendant’s motion to exclude an expert’s (C) testimony, and that he was not entitled to relief based on his ineffective assistance of counsel claims. His cumulative error claim failed because any errors were minimal and nonprejudicial. The court also rejected his sufficiency of the evidence and great weight of the evidence challenges to his CSC I conviction, and his constitutional challenges to LEM and lifetime SORA registration. He was also convicted of CSC II and IV. The court first concluded that C’s “testimony was not based on CSAAS.” Rather, he offered a proper general explanation about “‘the common postincident behavior of’” child sexual abuse victims. He made it clear at the Daubert hearing “that he would not be testifying that any behaviors constitute a syndrome that is probative of whether abuse occurred.” The court held that his “testimony was properly offered to assist the jury by explaining common behaviors of child victims and dispelling common misconceptions of laypeople on that issue. This testimony was helpful in assessing the defense theory that [victim-]JR was lying about the sexual abuse because of the delayed and inconsistent disclosure history.” The court also rejected his reliability challenge. As to his ineffective assistance claims, “defense counsel arguably erred in failing to object with respect to two impeachment issues, but any such errors were not prejudicial.” As to the sufficiency of the evidence, JR testified about a specific incident in which defendant “asked JR to lick the candy off his penis. JR remembered that JR ate some of the candy and that it tasted like blue raspberry. JR testified that defendant habitually used candy or toys to manipulate JR to participate in sexual acts. Considering all this evidence, a reasonable juror could infer that JR tasted the candy when defendant inserted his penis with the candy on it into JR’s mouth.” Further, the prosecution presented circumstantial corroboration about defendant’s abuse. Affirmed.

Divorce; Attorney fees; Postjudgment parenting-time litigation; MCR 3.206(D); Financial need; Evidentiary hearing; Harmless error; Safdar v Aziz

The court held that the trial court did not abuse its discretion by denying defendant-ex-wife’s request for attorney fees. After the parties’ divorce, plaintiff-ex-husband moved to modify parenting time, defendant repeatedly requested attorney fees, and the trial court denied the fee request after the court peremptorily reversed the parenting-time modification. On appeal, the court found that even if the trial court erred by denying the request without explanation, any error was harmless because defendant did not submit adequate evidence of financial need. The court explained that a party seeking fees under MCR 3.206(D) cannot rely on “unsubstantiated assertions” but must demonstrate an inability to bear the expense with evidence. Defendant provided the 2020 Economics of Law Summary and counsel’s curriculum vitae, but no proof of her own income or plaintiff’s income beyond her own statements. The court also rejected her argument that an evidentiary hearing was required because defendant had access to proof of her own income and failed to provide it. Affirmed.

2019 amendments to the No-Fault Act (NFA); Tort action under MCL 500.3135(3)(c); Allowable medical expenses available when the injured party has Medicare coverage; Common-law duty to mitigate damages; Applicability of MCL 500.3157’s limits on medical expenses reimbursement

The court held that in tort actions under MCL 500.3135(3)(c), plaintiffs with Medicare coverage must mitigate their damages by seeking payment from Medicare. It also held that MCL 500.3157’s limits on medical expenses reimbursement do not apply. Plaintiff pursued a tort action against defendant, asserting he was injured in an auto accident. The trial court ruled that he “did not have a common-law duty to mitigate his damages and that the reimbursement limitations set forth in MCL 500.3157 did not apply to plaintiff’s third-party negligence claim.” The Court of Appeals, on interlocutory review, “issued a split, published opinion holding that plaintiff had a duty to mitigate damages and that” MCL 500.3157’s reimbursement limitations did apply. The case required the court to interpret 2019 amendments to the NFA. It first concluded that the NFA “did not abrogate the common-law duty to mitigate damages[.]” It determined that the “without limit” language used in MCL 500.3135(3)(c) “does not broadly eliminate the incorporated references to MCL 500.3107(1)(a), which requires allowable expenses to be reasonable and necessary.” The court agreed with the Court of Appeals that the phrase, “‘read in context, simply means that the recovery of allowable expenses does not solely encompass amounts in excess of the statutory limitations . . . .’” That court correctly ruled “that plaintiff was required to mitigate his damages by making reasonable efforts to minimize his economic harm. Here, such reasonable efforts would involve seeking Medicare coverage for the treatment he received from Medicare-participating providers.” But as to the second issue on appeal, the court held “that a plain-language reading of MCL 500.3135(3)(c) does not contemplate adoption of the reimbursement limitations set forth in MCL 500.3157.” Thus, it affirmed the Court of Appeals’ judgment as to the applicability of the mitigation-of-damages doctrine, reversed as to the applicability of the reimbursement limitations in MCL 500.3157 to a tort claim under MCL 500.3135(3)(c), and remanded the case to the trial court.

Concurring, Justice Welch agreed fully with the majority as to the mitigation of damages issue and also agreed that, “as currently written, MCL 500.3135(3)(c) does not incorporate” MCL 500.3157’s reimbursement limitations. She wrote “separately to highlight for the Legislature a possible inconsistency between this conclusion and the overall purpose and design of the 2019 no-fault reforms.”

Concurring in part and dissenting in part, Justice Zahra also agreed with the majority on the mitigation of damages issue and that MCL 500.3157’s fee schedules do not apply. His disagreement stemmed “from its implied holding that there are no applicable fee schedules for this action.” Rather, he concluded the Medicare fee schedules plainly applied. He would hold that plaintiff was “entitled to reimbursement for ‘allowable expenses’ under” these schedules.

2019 amendments to the No-Fault Act (NFA); Tort action under MCL 500.3135(3)(c); Allowable medical expenses available when the injured party has Medicare coverage; Common-law duty to mitigate damages; Applicability of MCL 500.3157’s limits on medical expenses reimbursement

The court held that in tort actions under MCL 500.3135(3)(c), plaintiffs with Medicare coverage must mitigate their damages by seeking payment from Medicare. It also held that MCL 500.3157’s limits on medical expenses reimbursement do not apply. Plaintiff pursued a tort action against defendant, asserting he was injured in an auto accident. The trial court ruled that he “did not have a common-law duty to mitigate his damages and that the reimbursement limitations set forth in MCL 500.3157 did not apply to plaintiff’s third-party negligence claim.” The Court of Appeals, on interlocutory review, “issued a split, published opinion holding that plaintiff had a duty to mitigate damages and that” MCL 500.3157’s reimbursement limitations did apply. The case required the court to interpret 2019 amendments to the NFA. It first concluded that the NFA “did not abrogate the common-law duty to mitigate damages[.]” It determined that the “without limit” language used in MCL 500.3135(3)(c) “does not broadly eliminate the incorporated references to MCL 500.3107(1)(a), which requires allowable expenses to be reasonable and necessary.” The court agreed with the Court of Appeals that the phrase, “‘read in context, simply means that the recovery of allowable expenses does not solely encompass amounts in excess of the statutory limitations . . . .’” That court correctly ruled “that plaintiff was required to mitigate his damages by making reasonable efforts to minimize his economic harm. Here, such reasonable efforts would involve seeking Medicare coverage for the treatment he received from Medicare-participating providers.” But as to the second issue on appeal, the court held “that a plain-language reading of MCL 500.3135(3)(c) does not contemplate adoption of the reimbursement limitations set forth in MCL 500.3157.” Thus, it affirmed the Court of Appeals’ judgment as to the applicability of the mitigation-of-damages doctrine, reversed as to the applicability of the reimbursement limitations in MCL 500.3157 to a tort claim under MCL 500.3135(3)(c), and remanded the case to the trial court.

Concurring, Justice Welch agreed fully with the majority as to the mitigation of damages issue and also agreed that, “as currently written, MCL 500.3135(3)(c) does not incorporate” MCL 500.3157’s reimbursement limitations. She wrote “separately to highlight for the Legislature a possible inconsistency between this conclusion and the overall purpose and design of the 2019 no-fault reforms.”

Concurring in part and dissenting in part, Justice Zahra also agreed with the majority on the mitigation of damages issue and that MCL 500.3157’s fee schedules do not apply. His disagreement stemmed “from its implied holding that there are no applicable fee schedules for this action.” Rather, he concluded the Medicare fee schedules plainly applied. He would hold that plaintiff was “entitled to reimbursement for ‘allowable expenses’ under” these schedules.

Assumption of temporary jurisdiction; MCL 712A.2(b)(1) & (2); Waiver

Holding that respondent-mother waived her challenges to the trial court’s assumption of temporary jurisdiction over her children when she knowingly and voluntarily consented to it, the court affirmed. At a pretrial hearing, she “agreed to admit to the allegations made in the petition and consent to the trial court’s exercise of temporary jurisdiction over her children.” The DHHS, in exchange, “agreed to file an amended petition incorporating modifications requested by respondent—which it later did. Before accepting respondent’s plea, the trial court advised [her] of her rights, and [she] confirmed that she understood the rights she was waiving.” The trial court assumed jurisdiction over the children under MCL 712A.2(b)(1) and (2). The substance of respondent’s argument on appeal was that the trial court improperly assumed jurisdiction “merely because she was unable to attend the preliminary hearing, the preliminary hearing should have been adjourned to accommodate her absence, and she was not given enough time to remedy the deplorable conditions that led to the children’s removal.” But the court concluded that, given her waiver, it did not have to address her arguments. She did not allege any defects in the plea-taking process.

Termination under §§ 19b(3)(a)(ii), (c)(i), (c)(ii), (g), & (j); Best interests; Guardianship; MCL 712A.19a(9); Relative placement; Less restrictive alternative; In re Lombard

The court held that statutory grounds supported termination of respondent-mother’s parental rights, but the trial court erred by failing to properly consider guardianship with her aunt as an alternative to termination. DHHS petitioned after mother reported that she could no longer care for the children, and the trial court terminated her parental rights under several statutory grounds after she failed to complete or benefit from services. On appeal, the court found the trial court erred as to two statutory grounds for termination (§§ (a)(ii) and (j)) because mother sought DHHS help, participated in proceedings to the best of her ability, and DHHS did not show she “ever harmed” the children or was likely to do so. But the court concluded termination was still supported under §§ (c)(i), (c)(ii), and (g) because she lacked suitable housing after eviction, failed to complete substance-abuse services, missed most parenting times, and did not complete parenting classes or therapy. But the court vacated the best-interests ruling, reasoning that mother’s aunt had consistently expressed willingness to assume guardianship and had cared for the children before the petition, yet DHHS and the trial court focused on the nonrelative foster parents. The court also rejected the trial court’s concern that guardianship would preserve some parental rights, explaining that this is “a feature, not a flaw,” and noted it has “held that disfavoring guardianship for young children as a ‘blanket policy’” is improper. Affirmed as to statutory grounds, vacated as to best interests, and remanded with jurisdiction retained.