Breach of real-property purchase agreement; Supplemental earnest money; Time of the essence; Alleged oral extension; Written-modification requirement; Tender of payment by third party; Promissory estoppel; Costs & attorney fees; Contractual fee provision; Judicial reassignment request

The court held that defendants were entitled to summary disposition because plaintiff failed to timely tender the required $40,000 supplemental earnest-money payment under the parties’ purchase agreement, and defendants were entitled to their appellate costs and attorney fees under the agreement. Plaintiff agreed to purchase partially developed land for $1.6 million, with the agreement requiring him to tender an additional $40,000 within 24 days. The court concluded that the agreement’s deadlines and defendants’ prompt termination following default supported the finding that time was of the essence. Although the parties disputed whether one defendant orally agreed to a three-day extension, the agreement expressly provided that it “may be modified or amended only by written instrument signed by the parties.” No extension was signed. Further, plaintiff never actually tendered the $40,000 by the deadline. His investor e-mailed a copy of a $40,000 check drawn on the investor’s wife’s trust late that evening, but even timely delivery would not have constituted valid tender because the check was drawn on the account of a stranger to the contract. Plaintiff’s promissory-estoppel argument likewise failed because estoppel could not rest on an alleged oral promise expressly contradicted by the written agreement. Given plaintiff’s failure to comply with the payment requirement, defendants were entitled to summary disposition. The court also concluded that the agreement expressly entitled the prevailing party in litigation, “including appeals of all levels,” to costs and reasonable attorney fees. It therefore remanded for determination and award of defendants’ appellate fees and costs. Finally, it rejected plaintiff’s request for reassignment on remand because adverse rulings alone did not establish bias or prejudice. Affirmed and remanded for the limited purpose of awarding appellate costs and attorney fees.

Diminished capacity; People v Madison

In an order in lieu of granting leave to appeal, the court vacated Part III of the Court of Appeals judgment (see eJournal # 83059 in the 2/10/25 edition), and remanded the case to that court for reconsideration in light of Madison. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining question presented.

Entrapment; People v Jade

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 82586 in the 11/14/24 edition), and the trial court’s order denying defendant’s motion to dismiss on entrapment grounds, and remanded the case to the trial court for reconsideration in light of Jade.

Entrapment; People v Jade

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 83823 in the 6/23/25 edition), and the trial court’s order denying defendant’s motion to dismiss on entrapment grounds, and remanded the case to the trial court for reconsideration in light of Jade.

Due process; Delay in filing charges & between warrant & arraignment; Actual & substantial prejudice; People v Woolfolk; Warrantless entry; Exigent circumstances; Probable cause; People v Cartwright; Search of a bed; Inevitable discovery; People v Hyde; Motion for mistrial; Unresponsive police testimony; Prosecutorial error; Alleged burden shifting

The court held that: 1) defendant’s due-process rights were not violated by the delays in filing charges or arraigning him, 2) the evidence obtained from his apartment was not subject to suppression despite an improper warrantless search of his bed, 3) a police witness’s unresponsive testimony did not require a mistrial, and 4) the prosecution did not improperly shift the burden of proof. He was convicted of second-degree murder, felony-firearm, and evidence tampering after police received 911 calls indicating that he had killed a woman and later found her body in a storage unit. He failed to establish actual and substantial prejudice from the eight-month investigative delay before charges were filed or the later delay before arraignment while he was in federal custody. The record showed investigators continued gathering evidence and attempting to locate witnesses, and an investigative delay undertaken to collect sufficient evidence did not violate due process. As to the apartment search, the corroborating 911 calls supplied probable cause, and information that defendant was seeking help moving the body created an exigency justifying entry. But lifting a blanket from the bed was not justified by exigent circumstances because no specific facts showed evidence on the bed was in imminent danger of destruction. Suppression was nonetheless unwarranted because the blood-stained mattress “would have been inevitably discovered” pursuant to the subsequently obtained search warrant, which was supported by independent information. The trial court also properly denied a mistrial after a police witness briefly suggested defendant was on probation because the isolated remark was immediately stricken and not repeated. Finally, the prosecutor’s statement that defendant never denied using the gun referred to defendant’s admitted text messages, not his failure to testify or present evidence, and therefore did not shift the burden of proof. Affirmed.

Search & seizure; Traffic stop; Articulable & reasonable suspicion; People v Campbell; Warrantless arrest for an offense committed in a peace officer’s presence; MCL 764.15(1)(a); “Search incident to arrest” exception to the warrant requirement; Arizona v Gant; People v Toohey; Double jeopardy; Convictions & sentences for felony-firearm & FIP; People v Thigpen; Proportionality & reasonableness of a within-guidelines sentence; People v Posey

The court held that (1) the initial traffic stop of defendant’s vehicle was a justified, reasonable seizure, (2) he was lawfully arrested, and (3) the search of his person and vehicle were lawful. Further, pursuant to Michigan Supreme Court precedent, his convictions and sentences for FIP and felony-firearm did not violate double jeopardy. Finally, he failed to show any unusual circumstances that would render his presumptively proportionate within-guidelines sentences unreasonable or disproportionate. He was also convicted of CCW and possession of a controlled substance, second or subsequent offense. He was sentenced as a fourth-offense habitual offender. Before the stop was effectuated, a police detective (E) observed multiple statutory violations – there was no insurance on the vehicle, defendant was not wearing a seat belt, a taillight was out, and the window tints appeared to be illegal. And because E “witnessed defendant operating an uninsured vehicle—which constitutes a misdemeanor, under MCL 500.3102(2)—defendant was lawfully arrested.” Further, pursuant to the search incident to arrest exception to the warrant requirement, “his person was lawfully searched upon his arrest. A baggy containing cocaine and” meth was found in his front pocket. E “testified that because illegal drugs were found on defendant, officers proceeded to search the vehicle, where they found a firearm. The vehicle search was lawful because: (1) it was reasonable to believe that evidence relevant to the discovered drugs might be found in the vehicle, and (2) the vehicle was being impounded following defendant’s valid arrest.” As to his sentencing challenge, he offered no “compelling argument to overcome the presumption of proportionality.” His claim that he had almost no criminal record was “undermined by the fact that he had eight prior felony convictions, three prior adult misdemeanors, and two juvenile adjudications.” The court concluded that, in crafting the “sentences, the trial court properly considered defendant’s: (1) extensive criminal history, (2) misrepresentation about his ability to stay crime-free, (3) lack of accountability, and (4) failure to appear for his first and second scheduled sentencing hearings.” Affirmed.

Breach of real-property purchase agreement; Supplemental earnest money; Time of the essence; Alleged oral extension; Written-modification requirement; Tender of payment by third party; Promissory estoppel; Costs & attorney fees; Contractual fee provision; Judicial reassignment request

The court held that defendants were entitled to summary disposition because plaintiff failed to timely tender the required $40,000 supplemental earnest-money payment under the parties’ purchase agreement, and defendants were entitled to their appellate costs and attorney fees under the agreement. Plaintiff agreed to purchase partially developed land for $1.6 million, with the agreement requiring him to tender an additional $40,000 within 24 days. The court concluded that the agreement’s deadlines and defendants’ prompt termination following default supported the finding that time was of the essence. Although the parties disputed whether one defendant orally agreed to a three-day extension, the agreement expressly provided that it “may be modified or amended only by written instrument signed by the parties.” No extension was signed. Further, plaintiff never actually tendered the $40,000 by the deadline. His investor e-mailed a copy of a $40,000 check drawn on the investor’s wife’s trust late that evening, but even timely delivery would not have constituted valid tender because the check was drawn on the account of a stranger to the contract. Plaintiff’s promissory-estoppel argument likewise failed because estoppel could not rest on an alleged oral promise expressly contradicted by the written agreement. Given plaintiff’s failure to comply with the payment requirement, defendants were entitled to summary disposition. The court also concluded that the agreement expressly entitled the prevailing party in litigation, “including appeals of all levels,” to costs and reasonable attorney fees. It therefore remanded for determination and award of defendants’ appellate fees and costs. Finally, it rejected plaintiff’s request for reassignment on remand because adverse rulings alone did not establish bias or prejudice. Affirmed and remanded for the limited purpose of awarding appellate costs and attorney fees.

Commercial property valuation; True cash value (TCV); MCL 211.27(1); Income-capitalization approach; Renovation deduction; New Covert Generating Co, LLC v Covert Twp; “Highest & best use”; Effect of a sale or purchase price; MCL 211.27(6); Tax Tribunal (TT)

Holding that the TT did not err in adopting and applying a renovation deduction proposed by respondent, the court affirmed its opinion and judgment determining the TCV of petitioner’s commercial property for the 2023 tax year was $525,000. The TT determined that the Stabilized TCV was $1,046,250. To account for it being vacant on the valuation date, the TT “applied respondent’s proposed deduction of $525,000, which included renovation costs and loss of rent incurred after the valuation date.” The court held that the TT’s deduction “was supported by substantial evidence.” Respondent’s appraiser (W) and petitioner’s appraiser (C) offered “‘vastly different; deductions to account for the nonstabilized occupancy of the property, including renovations.” W’s proposed deduction “accounted for both the loss of rent and renovation costs between the valuation date and the completion of work on the property.” W concluded that the renovation costs totaled $485,856 over a four-month period in early 2023. The TT found that W’s proposed deduction “was appropriately based on the renovation costs in [petitioner’s] general ledger and calculated using a discounted cash flow analysis that accounted for rent loss, renovation costs, and a discount rate that was supported by market analysis.” The court concluded “‘the dispute was a matter of the weight and credibility of the evidence’” that was for the TT to resolve. The court found that petitioner’s “focus on the actual renovation costs and when they were incurred ignores several factors that contribute to the proper determination of” TCV. The TT correctly assessed the TCV in light of the highest and best use (a commercial repurposed use), not the property’s use as a vacant bowling alley. And its decision to set the TCV “at $525,000 was consistent with the” property’s listed price when petitioner purchased it. The TT was not required to accept the $200,000 sale price as its TCV, particularly where that “price did not comport with the property’s market value.”

Ineffective assistance of appellate counsel; Right to competent counsel; In re Trowbridge; In re Osborne (On Remand, After Remand)

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 86343 in the 8/26/26 edition) and remanded the case to that court for a new appeal. It held that the record showed a respondent’s appellate counsel provided ineffective assistance. It found that counsel was ineffective for “failing to cite to the record to support the claims being asserted, citing incorrect legal standards in support of those claims, failing to analyze claims, and failing to include all claims in the statement of questions presented. A right to counsel necessarily includes the right to competent counsel.” On remand, the Court of Appeals is to remand the case to the trial court and direct the trial “court to appoint counsel to represent respondent in the Court of Appeals.”

Child’s removal; MCR 3.965(C)(2); MCL 712A.13a(9); Preponderance of the evidence standard; Harmless error; Sufficiency of the evidence to exercise jurisdiction; MCL 712A.2(b)(1) & (2)

The court held that the trial court plainly erred in applying the probable cause standard, rather than the preponderance of the evidence standard, in deciding to remove the child (ZH), but that the error was harmless as it was not outcome-determinative. It also held that the trial court applied the proper standard in making its adjudicative decision, and did not clearly err in exercising jurisdiction over ZH under MCL 712A.2(b)(1) and (2). As to the removal order, the court concluded “there was substantial evidence by which the trial court could find by a preponderance of the evidence that” respondent-father’s custody of ZH posed “‘a substantial risk of harm to [ZH’s] life, physical health, or mental well-being,’ MCR 3.965(C)(2)(a), and was contrary to ZH’s welfare, MCR 3.965(C)(2)(c). Respondent was involved in two instances of domestic violence while ZH was present, and alcohol was involved in one of them. Although respondent was not charged for these incidents, their occurrence indicates that the home environment was unstable.” The court noted he “admitted that his substance use impaired his ability to parent.” It determined that the trial court’s finding that “no solution other than removal was reasonably available” was not clearly erroneous, nor was the finding that reasonable efforts were made to prevent or eliminate the need for it. The trial court was also justified in finding that respondent’s stepfather’s (W) home was a suitable placement for ZH without respondent there. As to the adjudication decision, while “ZH received proper custody or guardianship under MCL 712A.2(b)(1) because he was placed with” W in a suitable home, “there was sufficient evidence to determine that ZH was at a substantial risk of harm to his mental well-being” due to respondent’s conduct. Sufficient evidence also supported jurisdiction under MCL 712A.2(b)(2). “The evidence that ZH witnessed violence in the home involving respondent was enough to make the home environment unfit when respondent was there” and such a finding was not precluded by his lack of a criminal conviction. Affirmed.

Termination under § 19b(3)(c)(i); Continued conditions leading to adjudication; Failure to benefit from services; Parenting ability; Children’s best interests; Parent-child bond; Domestic violence; Children’s preferences; Relative placement; Permanency & stability; Parent-agency treatment plan (PATP)

The court held that clear and convincing evidence supported termination of respondent-father’s parental rights under § (c)(i) and that the trial court did not err in finding termination was in the children’s best interests. The conditions leading to adjudication included domestic violence and physical abuse, educational and environmental neglect, substance abuse, criminality, and prior CPS involvement. Although respondent largely complied with his PATP after the trial court initially declined to terminate his rights, the evidence showed that he did not benefit from the services. During parenting time, he failed to appropriately redirect the children, showed favoritism, yelled at them, and did not recognize or address their trauma. He also continued to minimize his role in their removal and denied domestic violence and physical abuse despite his criminal convictions and the children’s accounts. After approximately 22 months, respondent “had not demonstrated an ability to safely parent the children” or taken responsibility for the harm he caused, and there was no reasonable likelihood that the conditions would be rectified within a reasonable time. As to best interests, respondent’s parenting time was often inappropriate and harmful, one child did not want to return to his care, and all three had improved after removal. The trial court properly considered respondent’s extensive domestic-violence history and the children’s need for stability and permanency. Although one child was placed with a relative, the risk of harm outweighed that factor. Further, “any bond was outweighed by the children’s need for safety, permanency, and stability.” Affirmed.

Termination at the initial disposition; MCL 712A.19a(2); Lack of a determination whether aggravated circumstances existed; In re Walters; Jurisdiction; MCL 712A.2(b)(2); Whether the child was “found within the county”; MCR 3.926(A); Distinguishing In re Christie

The court held that the trial court did not err in finding that it had jurisdiction over respondents’ child (RPN), but it did err in “terminating their parental rights at the initial disposition without determining whether aggravated circumstances” existed. The court rejected respondent-father’s claim that the trial court improperly exercised jurisdiction because RPN “was not ‘found within the county’” as required by MCL 712A.2. While he contended this case was analogous to Christie, there were “several notable distinctions[.]” It was undisputed that both respondents resided in Alcona County, intended to return there after RPN’s birth, and they “had been the subjects of prior child protective proceedings commenced” there. Respondent-mother and RPN were temporarily in another county because the mother was unexpectedly admitted to a hospital there. And “the primary concerns underlying the petition were the unclean and unsafe conditions of the residence where respondents lived—namely,” their camper on property in Alcona County. But as to termination, the trial court “failed to make the requisite judicial determination relieving the agency of its obligation to provide reasonable efforts and authorizing termination at the initial disposition.” The court noted that an “aggravated circumstance—i.e., respondents’ prior terminations—existed that justified forgoing reasonable efforts and terminating respondents’ parental rights” here at the initial disposition. However, the trial court did not make any “reference to MCL 712A.19a(2), and the” DHHS also omitted any reference to the statute in its petition. The court noted that “it is the existence of aggravated circumstances and the requisite judicial determination based on those circumstances that may permit the agency to forgo reasonable efforts in an ensuing case—not the fact that reasonable efforts were made in a previous proceeding.” It vacated the termination order and remanded for the trial court to determine whether such circumstances relieved the DHHS of its duty to provide reasonable reunification efforts “under MCL 712A.19a(2). If not, it shall direct DHHS to prepare a case service plan to ensure that reasonable efforts” are made.

Removal of children from parental custody; MCR 3.965(C)(2)(a); Substantial risk of harm; Failure to comply with case service plan; MCL 712A.19b(3)(a); In re Mason; Drug testing; Caseworker cooperation

The court held that the trial court did not err in finding that returning the children to respondent-mother’s custody presented a substantial risk of harm and that their removal was warranted under MCR 3.965(C)(2). The children originally entered care after the younger child tested positive for meth at birth. Respondent subsequently made substantial progress, completing inpatient rehabilitation, obtaining sober housing and employment, and engaging in services. The children were returned to the parents in 7/25 while the trial court retained jurisdiction. In the following months, however, respondent stopped cooperating with the DHHS, missed or refused drug screens, and interfered with home visits. The children’s father tested positive for meth during an October home visit. Respondent was also living in a home owned by a person facing allegations of meth distribution, and needles were found in the yard. She further stated that she had no intention of continuing to work with the DHHS. The court noted that a parent’s failure to substantially comply with a case service plan constitutes evidence that returning the child would pose a substantial risk of harm. Although the 10/15/25 home visit revealed no immediate danger, the evidence showed that respondent’s “participation in the case service plan had effectively ceased in the months preceding the children’s removal from her care.” Her repeated refusal to submit to drug testing, lack of communication, avoidance of monitoring, and increasingly combative conduct supported the trial court’s determination that it could not adequately ensure the children’s safety in the home. Thus, the substantial-risk finding was not clearly erroneous. Affirmed.