Sufficiency of the evidence; Second-degree murder elements; People v Gafken; Self-defense burden shifting; People v Dupree; MCL 780.972(1)(a); Malice; People v Dykhouse; Voluntary manslaughter; People v Mendoza; Sentence proportionality; People v Posey; Within-guidelines presumption; People v Burkett; Juvenile record consideration; MCL 777.50(1); People v Smith

The court held that 1) sufficient evidence supported second-degree murder because the prosecution disproved self-defense and proved malice, and 2) the within-guidelines 20-year minimum sentence was proportionate, including the trial court’s consideration of defendant’s juvenile history. Defendant shot the victim multiple times after an early-morning street argument, fled, and later told his sister’s boyfriend (P) that he shot and killed “somebody” because the person “disrespected” him and that he threw the gun into the Detroit River. At trial, defendant claimed self-defense, testifying the victim choked him and triggered an asthma attack, but the court held a rational jury could reject that claim because P did not see injuries, defendant did not mention choking when he confessed, defendant fled and disposed of the gun, and he later told P he would “kill” him after P cooperated with police. The court concluded this evidence supported a finding defendant did not “honestly and reasonably” believe deadly force was necessary under MCL 780.972(1)(a). The court also held malice was proven because defendant fired about six shots, including evidence of a delay between the last two shots, and P’s testimony supported an intent to kill or cause great bodily harm. It rejected voluntary manslaughter because defendant’s theory depended on accepting his testimony, which the jury did not. As to sentencing, the court held the 20-year minimum for second-degree murder, at the top of the 12-to-20-year guidelines range, was presumed proportionate and defendant showed no “unusual circumstances” to rebut that presumption. It also held the trial court did not violate the 10-year gap rule because the guidelines were not scored using stale juvenile adjudications, and the court could still consider juvenile history as a factor “not accounted for by the sentencing guidelines.” Affirmed.

lneffective assistance of counsel; Failure to move to suppress a witness’s first-time-in-court identification; People v Posey; Failure to present expert testimony about identification reliability; Prejudice; The trial court’s failure to orally instruct the jury; Defense counsel’s failure to request the trial court do so; Sentencing; Scoring of OVs 6 & 17; MCL 777.36(1)(a); MCL 777.47(1)(a) & (2); Presentence investigation report (PSIR)

Concluding that defendant was not entitled to reversal based on his ineffective assistance of counsel claims and the trial court’s failure to orally instruct the jury because he failed to show prejudice, the court affirmed his convictions. As to his sentencing, it upheld his 50-point score for OV 6 and while 0 points rather than 10 should have been scored for OV 17, this did not alter his guidelines range. Thus, it affirmed his AWIM, FIP, and felony-firearm convictions and his sentences of 25 to 80 years for AWIM and FIP plus 2 year for felony-firearm. It remanded for correction of his PSIR to reflect 0 points for OV 17. The court concluded that the victim’s (D) first-time-in-court identification was tainted by a police detective’s (J) “telling him that the shooter had been caught on video and arrested.” In addition, there were factors suggesting that D’s identification was unreliable, including that he lost his glasses during the incident. An expert (Dr. S) testified at the Ginther hearing “that traumatic or stressful situations lessen the accuracy of an eyewitness. [D] also did not know defendant,” and S testified “it is more difficult for people to accurately identify people unknown to them[.]” The issues of weapons-focus and cross-racial identification may also have impacted D’s “ability to accurately identify the shooter. Considering the combination of [J’s] statements to [D] with the suggestiveness of [D] seeing defendant for the first time at trial, it fell below an objective standard of reasonableness for defense counsel not to object to the identification[.]” The court also found it arguably fell below an objective standard of reasonableness to not at least consult an expert witness about eyewitness identification. But defendant could not show a “reasonable probability that a different outcome would have occurred even if [D’s] identification had been suppressed or defendant presented” such expert testimony. It noted that he “conceded at trial that he was the person shown in” a witness’s (B) recording. B “immediately and confidently identified defendant in a photo lineup the same day as the shooting.” She specifically testified about seeing him shooting the gun. Also, the jury heard a defense witness’s testimony that contradicted other witness accounts, “and determined that defendant was the shooter.”

Health insurance coverage under a plan governed by the Employee Retirement Income Security Act (ERISA); Whether defendant’s denial of coverage was “arbitrary & capricious”; Whether defendant considered “all relevant evidence” when denying coverage; Claim for violation of the Mental Health Parity & Addiction Equity Act (Parity Act)

The court vacated summary judgment for defendant-Anthem Blue Cross and Blue Shield on plaintiff-T.E.’s ERISA claim for health insurance coverage denial, holding that Anthem’s decision to deny coverage was “arbitrary and capricious.” But it affirmed as to T.E.’s Parity Act claim. T.E.’s son, C.E., had mental health issues and T.E. placed him in a long-term, residential-treatment center. Anthem paid for the first 21 days, but then denied continued coverage, contending that the “treatment was no longer medically necessary.” T.E. sued alleging that Anthem’s decision was arbitrary and capricious under ERISA and violated the Parity Act. The district court granted Anthem summary judgment on both claims. On appeal, the parties agreed that the ERISA claim analysis turned on the MCG Guideline for Residential Behavioral Health Level of Care, Child or Adolescent. The court held that Anthem’s denial “was procedurally arbitrary and capricious” where Anthem failed to consider “‘all relevant evidence’” by ignoring “the opinions of C.E.’s treating clinicians.” In addition, it “selectively reviewed the remainder of the medical-record evidence.” The court found it “cherry-pick[ed] portions of C.E.’s medical records that supported its decision while ignoring adverse evidence in those same records.” Further, it “did not ‘adequately explain[]’ its coverage decision nor its ‘change from an earlier benefits ruling.’” The court found that the “scant explanation Anthem did offer disregards the MCG Guideline, the medical evidence, and its prior assessment of C.E.’s need for treatment at” the treatment center. As a result, the court held that the district court erred in granting Anthem summary judgment on the ERISA claim. It remanded “to the district court with instructions to remand to Anthem for further assessment of T.E.’s coverage request.” The court upheld summary judgment for Anthem on T.E.’s Parity Act claim, concluding T.E. failed “to identify record evidence supporting essential elements of that claim.”

Health insurance coverage under a plan governed by the Employee Retirement Income Security Act (ERISA); Whether defendant’s denial of coverage was “arbitrary & capricious”; Whether defendant considered “all relevant evidence” when denying coverage; Claim for violation of the Mental Health Parity & Addiction Equity Act (Parity Act)

The court vacated summary judgment for defendant-Anthem Blue Cross and Blue Shield on plaintiff-T.E.’s ERISA claim for health insurance coverage denial, holding that Anthem’s decision to deny coverage was “arbitrary and capricious.” But it affirmed as to T.E.’s Parity Act claim. T.E.’s son, C.E., had mental health issues and T.E. placed him in a long-term, residential-treatment center. Anthem paid for the first 21 days, but then denied continued coverage, contending that the “treatment was no longer medically necessary.” T.E. sued alleging that Anthem’s decision was arbitrary and capricious under ERISA and violated the Parity Act. The district court granted Anthem summary judgment on both claims. On appeal, the parties agreed that the ERISA claim analysis turned on the MCG Guideline for Residential Behavioral Health Level of Care, Child or Adolescent. The court held that Anthem’s denial “was procedurally arbitrary and capricious” where Anthem failed to consider “‘all relevant evidence’” by ignoring “the opinions of C.E.’s treating clinicians.” In addition, it “selectively reviewed the remainder of the medical-record evidence.” The court found it “cherry-pick[ed] portions of C.E.’s medical records that supported its decision while ignoring adverse evidence in those same records.” Further, it “did not ‘adequately explain[]’ its coverage decision nor its ‘change from an earlier benefits ruling.’” The court found that the “scant explanation Anthem did offer disregards the MCG Guideline, the medical evidence, and its prior assessment of C.E.’s need for treatment at” the treatment center. As a result, the court held that the district court erred in granting Anthem summary judgment on the ERISA claim. It remanded “to the district court with instructions to remand to Anthem for further assessment of T.E.’s coverage request.” The court upheld summary judgment for Anthem on T.E.’s Parity Act claim, concluding T.E. failed “to identify record evidence supporting essential elements of that claim.”

Class certification timing; MCR 3.501(B); Sewage disposal system event exception; MCL 691.1417(3); Causation; MCL 691.1417(3)(e); Inverse condemnation; Employee immunity; MCL 691.1407(2); Great Lakes Water Authority (GLWA); Detroit Water & Sewerage Department (DWSD)

[In an order, the court vacated its prior opinion in this case (see eJournal # 84477 in the 10/16/25 edition). It issued an amended opinion with the order.] The court largely reversed the dismissal of claims arising from sewer backups, holding that key summary-disposition rulings were premature and that certain pleading errors required correction on remand. But it affirmed dismissal of inverse-condemnation claims and some municipal liability claims as pleaded. The consolidated cases stemmed from a rain event in which “untreated wastewater” entered plaintiffs’ properties. The court addressed (1) the Dubin plaintiffs’ proposed class action under the sewage-disposal system event statute and (2) the Johnson plaintiffs’ individual cases asserting statutory, inverse-condemnation, and employee-liability theories. As to the Dubin plaintiffs, the court held the trial court erred in concluding they waived their right to seek class certification. Although MCR 3.501 generally requires a certification motion within 91 days, the parties entered a stipulated order adjourning class-certification deadlines, no defendant filed the notice that would make class allegations “deemed stricken,” and plaintiffs’ reliance on the stipulated order was at least “excusable neglect.” The court also held there is “no court rule” barring “motions by concurrence” where the concurrence is clear enough to put plaintiffs on notice and provides a fair opportunity to respond. On the merits under MCL 691.1417(3), the court held dismissal on causation was premature. Defendants relied heavily on rainfall/capacity evidence and sought to treat flooding as “inevitable,” but discovery had not meaningfully proceeded because defendants resisted it pending immunity motions. The court concluded further discovery “might reveal the extent to which particular defects may have contributed,” including whether “but for” specific defects one or more properties would not have backed up. It also held the trial court improperly disposed of defect issues not actually raised by defendant-GLWA’s motion. As to defendant-Detroit, the court affirmed dismissal to the extent claims were premised on defects in the leased-to-GLWA regional system because Detroit lacked “legal authority” at the time of the event to “repair, correct, or remedy” defects there. But it reversed dismissal as to alleged defects in Detroit’s local sewer system, where record evidence suggested potential design/maintenance shortcomings and further discovery was warranted. As to the Johnson plaintiffs, the court affirmed dismissal of inverse condemnation claims because allegations sounded in “inaction and omissions,” not “affirmative actions directly aimed” at plaintiffs’ properties. It reversed dismissal of claims against defendants-John Does 1–10 because the statutory exclusivity language applies to governmental agencies, and discovery on causation and “gross negligence” was not reasonably available before dismissal. Affirmed in part, reversed in part, and remanded.

Class certification timing; MCR 3.501(B); Sewage disposal system event exception; MCL 691.1417(3); Causation; MCL 691.1417(3)(e); Inverse condemnation; Employee immunity; MCL 691.1407(2); Great Lakes Water Authority (GLWA); Detroit Water & Sewerage Department (DWSD)

[In an order, the court vacated its prior opinion in this case (see eJournal # 84477 in the 10/16/25 edition). It issued an amended opinion with the order.] The court largely reversed the dismissal of claims arising from sewer backups, holding that key summary-disposition rulings were premature and that certain pleading errors required correction on remand. But it affirmed dismissal of inverse-condemnation claims and some municipal liability claims as pleaded. The consolidated cases stemmed from a rain event in which “untreated wastewater” entered plaintiffs’ properties. The court addressed (1) the Dubin plaintiffs’ proposed class action under the sewage-disposal system event statute and (2) the Johnson plaintiffs’ individual cases asserting statutory, inverse-condemnation, and employee-liability theories. As to the Dubin plaintiffs, the court held the trial court erred in concluding they waived their right to seek class certification. Although MCR 3.501 generally requires a certification motion within 91 days, the parties entered a stipulated order adjourning class-certification deadlines, no defendant filed the notice that would make class allegations “deemed stricken,” and plaintiffs’ reliance on the stipulated order was at least “excusable neglect.” The court also held there is “no court rule” barring “motions by concurrence” where the concurrence is clear enough to put plaintiffs on notice and provides a fair opportunity to respond. On the merits under MCL 691.1417(3), the court held dismissal on causation was premature. Defendants relied heavily on rainfall/capacity evidence and sought to treat flooding as “inevitable,” but discovery had not meaningfully proceeded because defendants resisted it pending immunity motions. The court concluded further discovery “might reveal the extent to which particular defects may have contributed,” including whether “but for” specific defects one or more properties would not have backed up. It also held the trial court improperly disposed of defect issues not actually raised by defendant-GLWA’s motion. As to defendant-Detroit, the court affirmed dismissal to the extent claims were premised on defects in the leased-to-GLWA regional system because Detroit lacked “legal authority” at the time of the event to “repair, correct, or remedy” defects there. But it reversed dismissal as to alleged defects in Detroit’s local sewer system, where record evidence suggested potential design/maintenance shortcomings and further discovery was warranted. As to the Johnson plaintiffs, the court affirmed dismissal of inverse condemnation claims because allegations sounded in “inaction and omissions,” not “affirmative actions directly aimed” at plaintiffs’ properties. It reversed dismissal of claims against defendants-John Does 1–10 because the statutory exclusivity language applies to governmental agencies, and discovery on causation and “gross negligence” was not reasonably available before dismissal. Affirmed in part, reversed in part, and remanded.

The General Property Tax Act; Qualified Agricultural Exemption (QAE); MCL 211.7ee; Whether the Tax Tribunal (TT) had subject-matter jurisdiction; Sixarp, LLC v Byron Twp; MCL 205.735a(5); Board of Review (BOR) authority to determine a claim of exemption; MCL 11.7ee(6); MCL 211.53b; MCL 205.762a; Notice; Procedural due process requirements; Distinguishing Geldhof Enters Inc v Department of Treasury (Unpub), Winkler v Markey Twp (Unpub), & Kemennu v Department of Treasury (Unpub)

Holding that the TT lacked jurisdiction to hear petitioners’ (collectively, LivWell) claim and that respondent-City’s notice did not violate due process guarantees, the court vacated the TT’s decision ruling that LivWell was entitled to a QAE under MCL 211.7ee. It found the TT correctly interpreted the relevant statutes, which are not “ambiguous. The [TT] correctly interpreted the plain language of MCL 205.735a(5) to give effect to the Legislature’s clear intent to divest the [TT] of jurisdiction when the proper [BOR] does not first hear the claim.” In addition, it “correctly interpreted the plain language of MCL 211.7ee(6) to give effect to the Legislature’s clear intent to require a taxpayer to appeal its denial of a QAE to the July [BOR] when the City assessed a summer tax levy.” But the TT went on to find that it “retained jurisdiction because the notice of appeal that the City sent to the taxpayer was ‘ineffective and misleading’ when it stated that the taxpayer could appeal ‘to either the July or December’” BOR. The court noted the TT “‘does not have jurisdiction over constitutional questions’ and lacks the authority to consider whether” a city and its BOR’s procedures “satisfy a taxpayer’s constitutional right to procedural due process.” The court held that the TT “lacked jurisdiction under MCL 205.735a(5) to hear a claim of appeal regarding the denial of a QAE request under MCL 211.7ee and erred by asserting jurisdiction instead of entering a dismissal.” The court also concluded that the City’s “notice satisfied procedural due process requirements.” The three unpublished opinions the TT relied on were distinguishable. The notice here “clearly notified LivWell of its right to appeal, as well as the timeframe for doing so. [It] informed LivWell that it could appeal its denial of the QAE ‘for the 2023 assessment year to the July or December [BOR] under MCL 211.7ee [sic].’ This language directs the reader to review MCL 211.7ee to determine whether appeal to the” 7/23 or 12/23 BOR was appropriate. And “MCL 211.7ee(6) clearly explains that a petitioner must appeal its denial of a QAE to the July [BOR] when the City assessed a summer tax levy.” The court also found persuasive the City’s argument “that it would be nearly impossible to tailor all notices to all tax petitioners. Form notices are far more efficient, provided that” they comport with due process. The court found that the one here did so.

Child’s best interests; Bond with the child

Concluding that the trial court did not clearly err by holding that termination of respondent-mother’s parental rights was in child-BMO’s best interests, the court affirmed. She argued that “she demonstrated parenting ability and had a strong bond with BMO.” The record belied “the notion that respondent and BMO consistently had a strong and loving bond that would weigh against termination.” The DHHS substantiated allegations that she “physically abused BMO in 2022 by punching her twice, causing bruises on her head and body. After these incidents, BMO did not feel safe with respondent. BMO refused many parenting times in 2023 and ended others early. At the time of the ultimate termination hearing, BMO loved respondent, but wanted termination because she was ‘ready to be out of foster care and to move on with her life.’” Respondent further argued “that termination would break BMO’s bond with her sisters.” The older sister “wanted to adopt BMO and already cared for her siblings. Indeed, according to the record currently available to us, the most recent report from Oakland Family Services, dated January 7, 2025, indicates that adoption preparations for BMO were ongoing, and ‘[i]t is the goal of the agency to file the adoption petition by March 2025.’ In addition to the lack of a consistent bond, respondent’s inconsistent parenting time history also weighed in favor of termination of her parental rights.” Finally, the court found that “the trial court properly relied on BMO’s need for permanency and stability after her long foster-care placement exceeding seven years.” It concluded that given “BMO’s extended foster-care placement and respondent’s lack of compliance, the trial court did not err by failing to allow respondent additional time to comply before terminating her parental rights.”

Termination under § 19b(3)(c)(i); Reasonable reunification efforts; Modifications for respondent’s disabilities; Child’s best interests

Concluding that (1) § (c)(i) existed, (2) reasonable efforts were made to reunify respondent-father with child-MST, and (3) termination of his parental rights was in MST’s best interests, the court affirmed. As to § (c)(i), it found that “the conditions leading to the trial court taking jurisdiction had not meaningfully changed.” The court noted that a lack “of regular contact was one of the reasons the trial court assumed jurisdiction over MST, and respondent did not make a meaningful change in the frequency with which he saw MST.” It acknowledged that he “had resolved the situation of his unsuitable housing.” However, it noted that “the home still was unfit for MST because respondent had not demonstrated that he would be able to care for MST. He was not aware of her special needs and actively denied that MST had any mental health issues. Respondent worked full-time and did not have a plan in place for caring for MST if she was returned to his care. He did not benefit from his service plan, which required, in part, parenting time and parenting classes.” Also, he “did not consistently attend his parenting times.” The court held that there “was no evidence that respondent would begin seeing MST more frequently or be more equipped to parent her in a reasonable amount of time, especially given the minimal progress he had made in approximately 19 months.” Also, reasonable “efforts were made to reunify respondent with MST.” He minimally “complied with his service plan and did not benefit.” Respondent argued “that reasonable efforts were not made to reunify him with MST because his service plan was not modified for his disabilities.” The court noted that the “foster-care worker acknowledged early in this case that respondent likely had cognitive impairments, memory issues, and other mental health problems. However, she also stated that to provide specialized services, such as parenting classes aimed at people with developmental disabilities, respondent needed a formal diagnosis.” He was “referred six times for a psychological evaluation that could provide a diagnosis. He did not complete the evaluation until after statutory grounds were found to terminate his parental rights. Respondent also denied having any disabilities or special needs.” He did not claim “that there were available programs that did not require a formal diagnosis. Although the foster care worker could not refer [him] to more specialized services, she modified standard procedures to communicate with [him] about his service plan via phone call, text message, and letters.” The court concluded that because “modifications were made to better communicate with respondent, he largely refused to obtain a formal diagnosis, and he did not identify any services that would have led to a better outcome, the trial court did not clearly err in finding that reasonable efforts were made to reunify respondent with MST.”