Whether the breach of fiduciary duty claim was subsumed in the legal malpractice claim; Aldred v O’Hara-Bruce; Prentis Family Found v Barbara Ann Karmanos Cancer Inst; Duty to self-report; Reliance on the Michigan Rules of Professional Conduct (MRPC) 1.4 & 1.7; Statute of repose; MCL 600.5838b

Holding that plaintiffs’ breach of fiduciary duty claim was subsumed by their legal-malpractice claim, the court found that “the trial court properly granted defendants summary disposition of this count under MCR 2.116(C)(7) as it was time-barred by the statute of repose.” The legal malpractice claim was likewise barred by the statute of repose. The complaint included repeated allegations between Counts I (professional negligence/legal malpractice) and III (breach of fiduciary duty) against defendant-Lites, “or very similar allegations slightly reworded. For example, plaintiffs alleged legal malpractice based on the ‘[f]ailure to properly advise and correctly inform Plaintiffs’ regarding the assignment and failure to record the assignment, and the failure to take legal action against” a bank. They “similarly alleged breach of fiduciary duty based on Lites’s failure to disclose the lack of recording ‘and related false explanations in his effort to avoid full disclosure to his clients,’ withholding potential conflict of interest information, and not taking legal action against” the bank. While “one set of facts may give rise to more than one cause of action,” the court found that plaintiffs “failed to plead the distinguishing factor between a claim for legal malpractice and a claim for breach of fiduciary duty—'a more culpable state of mind than the negligence required for malpractice[.]’” They did not “plead anything more than inadequate representation, and relied on the same conduct by Lites that gave rise to the legal-malpractice claim.” While Count III “specifically took issue with Lites’ ongoing communications regarding the failure to disclose and its effect on plaintiffs, [they] did not allege that Lites breached any duty arising outside the attorney-client relationship. Rather, without the attorney-client relationship, Lites would have no duty to disclose the failure to record the assignment, which is the underlying issue of both counts.” The court added that their reliance on the MRPCs further enforced the conclusion that their “fiduciary-duty claim is subsumed by their claim of legal malpractice, and they failed to establish a breach of a separate and distinct legal duty. Moreover, neither” MRPC 1.4 nor 1.7 “stands for the proposition plaintiffs say it does, i.e., that an attorney has a duty to self-report malpractice.” Affirmed.

LLC membership admission; MCL 450.4501; Patel v FisherBroyles, LLP; Agency authority; Meretta v Peach; Declaratory relief standing; MCR 2.605; League of Women Voters of MI v Secretary of State; Requests for admission; Res judicata; MCR 2.116(C)(7); Adair v Michigan

The court held that the circuit court correctly resolved three consolidated LLC disputes by enforcing the operating agreements as written and applying preclusion principles to bar relitigation. In Docket No. 366285, the court agreed that Sattam (a defendant in one of the cases and a plaintiff in the other two) was a transferee, not an admitted member of plaintiff-Value Save Property, LLC (VSP), because the VSP operating agreement required majority-member consent to admit a substitute member, including that “Members holding a majority of the outstanding Shares in the Company consent to the Qualified Transferee’s admission as a Member.” Consent could not be obtained through only one 50% owner’s signature. And whether a defendant in the other two cases (Yousef) had authority to independently bind plaintiff-Barash Yousef Holdings, LLC (BYH) depended on the language of BYH’s operating agreement. Because Yousef and plaintiff-Barash “were equal members of BYH at the time that Sattam purchased the shares of the remaining members, neither held a majority interest in BYH. Therefore, § 6.2 of BYH’s operating agreement required both members to approve Sattam’s admission as a member in VSP.” The court rejected Sattam’s theories of implied or apparent authority because the record contained “no evidence that Yousef was Barash’s agent, that Barash took any actions to manifest that Yousef could act on his behalf, or that there was any act that would lead a third party to reasonably believe that Yousef was acting as Barash’s agent.” The court also upheld Barash, BYH, and VSP’s declaratory standing because an “actual controversy” existed to guide future conduct where the parties disputed who could manage VSP and make tenant and property decisions. In Docket No. 369975, the court held that Sattam lacked standing to sue defendant-BYH II because he failed to establish admission as a member under the operating agreement, and tax forms “were not proof of membership in a” LLC. In Docket No. 370472, the court held that Sattam and VSP’s later claims were barred by res judicata because the membership-status judgment was decided first and “‘a judgment pending on appeal is deemed res judicata,’” and the later case arose from the same transaction. Affirmed.

42 USC § 1983 action alleging an excessive force claim under the Fourth Amendment; “Unintended-target” shooting; Whether plaintiff was “seized” when defendant-police officer shot her while shooting at a suspect; Torres v Madrid; “Objective intent”; Qualified immunity; Whether defendant’s conduct violated a “clearly established” constitutional right

The court held that “when an officer intentionally shoots their firearm in circumstances that objectively manifest an intent to restrain, any individual struck by the bullet is” seized, even if he or she was not the “specific intended target.” But because “this law was not clearly established at the time of” plaintiff-Kilnapp’s shooting, defendant-officer (Gannon) was entitled to qualified immunity on her Fourth Amendment claim. Gannon and Kilnapp were both officers and were partners. Gannon shot Kilnapp when firing his weapon in the direction of a suspect. Kilnapp sued him, alleging excessive force in violation of her Fourth Amendment rights. The district court denied Gannon’s motion for summary judgment based on qualified immunity. On appeal, the court first addressed whether it was bound by the “law of the case” doctrine where a prior panel had upheld the district court’s earlier denial of Gannon’s motion to dismiss. Because determining whether the doctrine was appropriate here required “an examination of the merits, we forgo the former and proceed to the latter.” The court explained that the overriding issue here was “whether Kilnapp was seized within the meaning of the Fourth Amendment when she was struck by the bullet Gannon fired.” In Torres, the Supreme Court held that when “an officer intentionally shoots their firearm in circumstances that objectively manifest an intent to restrain, any individual struck by the bullet is thereby seized, regardless of whether that individual was the officer’s specific intended target.” Under the “objective intent standard,” the court concluded that “because Gannon intentionally (not accidentally) fired his weapon in circumstances that objectively manifested an intent to restrain, Kilnapp was seized when that bullet struck her.” However, because Torres was decided in 2021 and Kilnapp was shot in 2020, she could not “prevail on the clearly established law prong of qualified immunity.” Vacated and remanded “with instructions to grant Gannon’s summary-judgment motion as to the Fourth Amendment claim” and to address Kilnapp’s Fourteenth Amendment claim.

42 USC § 1983 action alleging an excessive force claim under the Fourth Amendment; “Unintended-target” shooting; Whether plaintiff was “seized” when defendant-police officer shot her while shooting at a suspect; Torres v Madrid; “Objective intent”; Qualified immunity; Whether defendant’s conduct violated a “clearly established” constitutional right

The court held that “when an officer intentionally shoots their firearm in circumstances that objectively manifest an intent to restrain, any individual struck by the bullet is” seized, even if he or she was not the “specific intended target.” But because “this law was not clearly established at the time of” plaintiff-Kilnapp’s shooting, defendant-officer (Gannon) was entitled to qualified immunity on her Fourth Amendment claim. Gannon and Kilnapp were both officers and were partners. Gannon shot Kilnapp when firing his weapon in the direction of a suspect. Kilnapp sued him, alleging excessive force in violation of her Fourth Amendment rights. The district court denied Gannon’s motion for summary judgment based on qualified immunity. On appeal, the court first addressed whether it was bound by the “law of the case” doctrine where a prior panel had upheld the district court’s earlier denial of Gannon’s motion to dismiss. Because determining whether the doctrine was appropriate here required “an examination of the merits, we forgo the former and proceed to the latter.” The court explained that the overriding issue here was “whether Kilnapp was seized within the meaning of the Fourth Amendment when she was struck by the bullet Gannon fired.” In Torres, the Supreme Court held that when “an officer intentionally shoots their firearm in circumstances that objectively manifest an intent to restrain, any individual struck by the bullet is thereby seized, regardless of whether that individual was the officer’s specific intended target.” Under the “objective intent standard,” the court concluded that “because Gannon intentionally (not accidentally) fired his weapon in circumstances that objectively manifested an intent to restrain, Kilnapp was seized when that bullet struck her.” However, because Torres was decided in 2021 and Kilnapp was shot in 2020, she could not “prevail on the clearly established law prong of qualified immunity.” Vacated and remanded “with instructions to grant Gannon’s summary-judgment motion as to the Fourth Amendment claim” and to address Kilnapp’s Fourteenth Amendment claim.

Juvenile waiver factors; MCL 712A.4(4); People v Russo; Court rule vs statute; MCR 3.950; Stenzel v Best Buy Co, Inc; Waiver decision standard; People v Cheeks; Victim definition; MCL 780.752; People v Laidler

The court held that the family court acted within its discretion when it waived juvenile jurisdiction and transferred the case to the criminal division for prosecution as an adult. Respondent, age 16, faced charges arising from an alleged intoxicated crash that killed a passenger. The family court granted the prosecutor’s motion after weighing the statutory waiver criteria. On appeal, respondent argued the family court used the wrong, post-amendment waiver factors because the statute and court rule were amended after the crash. The court concluded the waiver factors were “primarily substantive” policy choices, so the statute controlled, and the pre-amendment version of MCL 712A.4(4) applied prospectively because it was silent on retroactivity. The court then held the family court’s findings under the pre-amendment factors supported waiver, giving “greater weight to the seriousness of the alleged offense and the juvenile’s prior record of delinquency,” and it permissibly relied on the seriousness and culpability evidence, including testimony about respondent’s post-accident conduct and efforts to shift blame. The court also upheld the family court’s conclusion that juvenile-system punishment and programming were inadequate because jurisdiction would likely last only about a year given respondent’s age. Addressing the “impact on any victim” component, the court held the family court properly treated the deceased passenger and the decedent’s relatives as victims under the Crime Victim’s Rights Act definition of victim as an individual suffering “direct or threatened physical, financial, or emotional harm,” including certain family members when the victim is deceased. It further held the family court could consider responding officers as victims where testimony supported emotional impact, but it erred by treating “the community” and “society as a whole” as victims because none of the cited definitions extends that far. The error was harmless because the remaining victim-impact evidence still supported weighing the seriousness factor in favor of waiver, and the overall waiver decision did not turn on the overbroad “society” finding. Affirmed.

Ineffective assistance of counsel; Failure to review all the documentary evidence & adequately impeach the victim with that evidence

The court agreed “that defense counsel’s failure to review all the documentary evidence, and adequately impeach [victim-K] with that evidence, constituted ineffective assistance of counsel.” Thus, it vacated defendant’s AWIGBH and felonious assault convictions and sentences, reversed the trial court’s denial of his motion for a new trial, and remanded. The court concluded “that although defense counsel pursued a sound trial strategy of self defense, the choices that defense counsel made when executing that strategy were not reasonable, insofar as he appears to have failed to reasonably investigate the available documentary evidence, thereby overlooking strong evidence that should have been used to impeach” K. Defense counsel’s “failure to adequately review [K’s] medical records—and discover the plethora of inconsistencies therein—constituted a ‘less than complete investigation’ that was not supported by reasonable professional judgments.” The court held that “not only did defense counsel fail to adequately impeach [K] with the documentary evidence, but defense counsel also told the jury that it only needed to look at three of the medical-document pages, effectively instructing the jury to also overlook any of the contradictory evidence.” Thus, it concluded “that defense counsel’s performance fell outside the wide range of professionally competent assistance.” Moreover, it found that “considering that: (1) this case came down to a credibility contest between defendant and [K], and (2) the overlooked medical-record evidence supported defendant’s version of events and undermined [K’s] credibility,” defendant was “prejudiced by defense counsel’s errors.” In other words, the court held that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Motion to receive 120 days’ jail credit; Waived issue; MCR 7.12(B)(1)(a)

The court concluded that because “defendant failed to provide the Court with the transcript needed to determine the parties’ intent at the time of entering the plea agreement, the” key issue was waived. He argued “on appeal that the trial court erred by denying his motion to receive 120 days’ jail credit.” There was “no dispute that defendant voluntarily entered into a plea agreement and understandingly waived 120 days’ credit for time served in exchange for a reduced sentence.” He argued that he was “entitled to an extra 120 days’ credit pursuant to MCL 769.11b regardless of his plea agreement. At first glance, the fact that [he] violated his probation does not affect the waiver of credit for time served; defendant bargained away the credit in exchange for probation.” His brief on appeal was “not a model of clarity, and, unfortunately, the prosecutor chose not to file a brief.” Defendant did “not appear to argue that he did not waive the credit, and he has not cited any support to suggest that he could not waive time credit under MCL 769.11b.” Rather, the issue that appeared to be before the court was “whether the parties intended for waiver of credit provided by MCL 769.11b to remain a condition in the event defendant violated his probation.” The court noted that the “plea agreement was not provided to this Court as part of the lower record. Despite the Court’s two requests that defense counsel provide a transcript of the pretrial conference detailing the terms of his plea agreement, counsel declined to provide it. In fact, counsel acknowledged that any issues requiring the pretrial conference transcript would be waived. ‘Failure to provide this Court with [a] relevant transcript, as required by MCR 7.12(B)(1)(a), constitutes a waiver of the issue.’” Affirmed.

Waiver of counsel; Whether defendant’s waiver of counsel was “knowing”; Whether the Sixth Amendment applies to revocations of supervised release; Morrissey v Brewer; United States v Kirby; Adequacy of the district court’s colloquy; Sentencing; Procedural reasonableness; 18 USC § 3583(e); § 3553(a)(2)(A); Esteras v United States

The court affirmed the district court’s ruling permitting defendant-Spence to represent himself at his supervised release revocation hearing, concluding the district court’s thorough colloquy and repeated assurances precluded finding an abuse of discretion. It also rejected his procedural reasonableness challenge to his sentence on revocation. This appeal concerned his third revocation of supervised release, which arose after he was arrested on state FIP and drug charges. He chose to represent himself at his revocation hearing. Before granting his motion, the district court conducted a waiver-of-counsel hearing where it determined that Spence’s request was “knowing and voluntary” after informing him of his rights and the possible penalties. At the revocation hearing, his supervised release was revoked, and he was sentenced to 24 months. He first argued on appeal that the district court erred by allowing him to represent himself. The court first considered “the nature of the right being waived, which” informed its standard of review. It noted that “Morrissey held that the Sixth Amendment does not apply to parole revocation in a state system, a holding” the court extended in Kirby “to the revocation of federal supervised release.” Joining other circuits, the court held that an abuse of discretion standard applies to “review of a district court’s acceptance of a waiver of counsel as part of a revocation proceeding.” It found that “the district court did not abuse its discretion in concluding that Spence’s waiver was knowing. Start with the colloquy between the district court and Spence. The thoroughness of [its] inquiry was highly probative of the validity of” Spence’s waiver. It “well exceeded the requirements of due process . . . .” His procedural reasonableness sentencing challenge also failed. “The district court’s use of the word ‘penalty’ was not a retributive invocation of § 3553(a)(2)(A)’s ‘just punishment’ concept.” Nothing suggested that it “was appealing to the seriousness of the underlying crime of conviction, the concern at issue in Esteras.” The same was true as to its “reference to ‘the nature of the offense.’” Read in context, it “was describing the supervised release violations before it—explicitly identifying them as ‘Grade A violations,’ the most serious offense category. Under Esteras, the seriousness and nature of the supervised release conduct remains a permissible consideration; only the seriousness of the underlying federal offense is off limits.”

Juvenile waiver factors; MCL 712A.4(4); People v Russo; Court rule vs statute; MCR 3.950; Stenzel v Best Buy Co, Inc; Waiver decision standard; People v Cheeks; Victim definition; MCL 780.752; People v Laidler

The court held that the family court acted within its discretion when it waived juvenile jurisdiction and transferred the case to the criminal division for prosecution as an adult. Respondent, age 16, faced charges arising from an alleged intoxicated crash that killed a passenger. The family court granted the prosecutor’s motion after weighing the statutory waiver criteria. On appeal, respondent argued the family court used the wrong, post-amendment waiver factors because the statute and court rule were amended after the crash. The court concluded the waiver factors were “primarily substantive” policy choices, so the statute controlled, and the pre-amendment version of MCL 712A.4(4) applied prospectively because it was silent on retroactivity. The court then held the family court’s findings under the pre-amendment factors supported waiver, giving “greater weight to the seriousness of the alleged offense and the juvenile’s prior record of delinquency,” and it permissibly relied on the seriousness and culpability evidence, including testimony about respondent’s post-accident conduct and efforts to shift blame. The court also upheld the family court’s conclusion that juvenile-system punishment and programming were inadequate because jurisdiction would likely last only about a year given respondent’s age. Addressing the “impact on any victim” component, the court held the family court properly treated the deceased passenger and the decedent’s relatives as victims under the Crime Victim’s Rights Act definition of victim as an individual suffering “direct or threatened physical, financial, or emotional harm,” including certain family members when the victim is deceased. It further held the family court could consider responding officers as victims where testimony supported emotional impact, but it erred by treating “the community” and “society as a whole” as victims because none of the cited definitions extends that far. The error was harmless because the remaining victim-impact evidence still supported weighing the seriousness factor in favor of waiver, and the overall waiver decision did not turn on the overbroad “society” finding. Affirmed.

LLC membership admission; MCL 450.4501; Patel v FisherBroyles, LLP; Agency authority; Meretta v Peach; Declaratory relief standing; MCR 2.605; League of Women Voters of MI v Secretary of State; Requests for admission; Res judicata; MCR 2.116(C)(7); Adair v Michigan

The court held that the circuit court correctly resolved three consolidated LLC disputes by enforcing the operating agreements as written and applying preclusion principles to bar relitigation. In Docket No. 366285, the court agreed that Sattam (a defendant in one of the cases and a plaintiff in the other two) was a transferee, not an admitted member of plaintiff-Value Save Property, LLC (VSP), because the VSP operating agreement required majority-member consent to admit a substitute member, including that “Members holding a majority of the outstanding Shares in the Company consent to the Qualified Transferee’s admission as a Member.” Consent could not be obtained through only one 50% owner’s signature. And whether a defendant in the other two cases (Yousef) had authority to independently bind plaintiff-Barash Yousef Holdings, LLC (BYH) depended on the language of BYH’s operating agreement. Because Yousef and plaintiff-Barash “were equal members of BYH at the time that Sattam purchased the shares of the remaining members, neither held a majority interest in BYH. Therefore, § 6.2 of BYH’s operating agreement required both members to approve Sattam’s admission as a member in VSP.” The court rejected Sattam’s theories of implied or apparent authority because the record contained “no evidence that Yousef was Barash’s agent, that Barash took any actions to manifest that Yousef could act on his behalf, or that there was any act that would lead a third party to reasonably believe that Yousef was acting as Barash’s agent.” The court also upheld Barash, BYH, and VSP’s declaratory standing because an “actual controversy” existed to guide future conduct where the parties disputed who could manage VSP and make tenant and property decisions. In Docket No. 369975, the court held that Sattam lacked standing to sue defendant-BYH II because he failed to establish admission as a member under the operating agreement, and tax forms “were not proof of membership in a” LLC. In Docket No. 370472, the court held that Sattam and VSP’s later claims were barred by res judicata because the membership-status judgment was decided first and “‘a judgment pending on appeal is deemed res judicata,’” and the later case arose from the same transaction. Affirmed.

Whether the breach of fiduciary duty claim was subsumed in the legal malpractice claim; Aldred v O’Hara-Bruce; Prentis Family Found v Barbara Ann Karmanos Cancer Inst; Duty to self-report; Reliance on the Michigan Rules of Professional Conduct (MRPC) 1.4 & 1.7; Statute of repose; MCL 600.5838b

Holding that plaintiffs’ breach of fiduciary duty claim was subsumed by their legal-malpractice claim, the court found that “the trial court properly granted defendants summary disposition of this count under MCR 2.116(C)(7) as it was time-barred by the statute of repose.” The legal malpractice claim was likewise barred by the statute of repose. The complaint included repeated allegations between Counts I (professional negligence/legal malpractice) and III (breach of fiduciary duty) against defendant-Lites, “or very similar allegations slightly reworded. For example, plaintiffs alleged legal malpractice based on the ‘[f]ailure to properly advise and correctly inform Plaintiffs’ regarding the assignment and failure to record the assignment, and the failure to take legal action against” a bank. They “similarly alleged breach of fiduciary duty based on Lites’s failure to disclose the lack of recording ‘and related false explanations in his effort to avoid full disclosure to his clients,’ withholding potential conflict of interest information, and not taking legal action against” the bank. While “one set of facts may give rise to more than one cause of action,” the court found that plaintiffs “failed to plead the distinguishing factor between a claim for legal malpractice and a claim for breach of fiduciary duty—'a more culpable state of mind than the negligence required for malpractice[.]’” They did not “plead anything more than inadequate representation, and relied on the same conduct by Lites that gave rise to the legal-malpractice claim.” While Count III “specifically took issue with Lites’ ongoing communications regarding the failure to disclose and its effect on plaintiffs, [they] did not allege that Lites breached any duty arising outside the attorney-client relationship. Rather, without the attorney-client relationship, Lites would have no duty to disclose the failure to record the assignment, which is the underlying issue of both counts.” The court added that their reliance on the MRPCs further enforced the conclusion that their “fiduciary-duty claim is subsumed by their claim of legal malpractice, and they failed to establish a breach of a separate and distinct legal duty. Moreover, neither” MRPC 1.4 nor 1.7 “stands for the proposition plaintiffs say it does, i.e., that an attorney has a duty to self-report malpractice.” Affirmed.