Attorney fees; 42 USC § 1988(b); Reasonable fee; Lodestar; Hensley v Eckerhart; Categorical exclusions; Binta B ex rel SA v Gordon; Class-certification hours; Tarrify Props, LLC v Cuyahoga Cnty; Fees for claims against other defendants; Unfiled motion to reopen; Appellate hours; Hubbell v FedEx SmartPost, Inc; Attorney billing records; Vague & excessive entries; Fox v Vice; Hourly rates; Blended hourly rate; Companion case; Taylor v County of Oakland (Unpub ED MI); Abuse of discretion; Garner v Cuyahoga Cnty Juvenile Court

[This appeal was from the ED-MI.] The court held that the district court abused its discretion by awarding more than $1.36 million in attorney fees and that the award had to be sharply reduced. Plaintiffs brought two Takings Clause suits after defendant-Oakland County foreclosed on their homes, and eventually obtained a global $500,000 settlement after prevailing on appeal. They then sought more than $4.2 million in fees based on more than 4,800 claimed hours. The district court reduced the claimed hours by 40%, applied a 1.1 multiplier, and awarded $1,361,476.51. On appeal, the court first held that plaintiffs’ counsel failed to satisfy Hensley’s billing-judgment requirement, noting there was “not a trace of any good-faith effort” to exclude excessive or unnecessary hours. It held that all 573 class-certification hours should be excluded because the individual plaintiffs were counsel’s only clients, the motions would not benefit them, and certification was “nearly certain” to fail after Tarrify required individualized valuation of each property. The court next held that 189 hours spent pursuing claims against defendants other than the County had to be excluded under Binta B, and 32.5 hours for an unfiled motion to reopen also were noncompensable. The court then held that of 1,643 hours billed during the appeals, no more than 75 were reasonable because the Pacific Legal Foundation (not involved in this appeal) handled the successful appeal in one of these cases pro bono, the later appeal in the other largely copied that briefing, and counsel’s claimed appellate fees “almost shock[ed] the conscience.” It also found that no more than 10 of one attorney’s 999 hours were properly billed because his entries lacked “concrete work.” The court left intact the district court’s 40% reduction for remaining vague or excessive entries and its 1.1 multiplier, but held that the district court abused its discretion by not addressing the County’s argument for a blended hourly rate based on Taylor. It set a reasonable blended rate of $325 and remanded with calculation instructions. Vacated and remanded.

Other acts evidence; MRE 404(b); People v VanderVliet; People v Denson; MRE 401 & 402; MRE 403; Expert testimony from a pathologist; MRE 702; Ineffective assistance of counsel; Failure to file a discovery demand; Failure to request M Crim JI 7.2 (accident); People v Hawthorne; Motion to suppress defendant’s police statements; “Custody”; People v Barritt

The court held that the trial court did not abuse its discretion in admitting other acts evidence or in admitting a pathologist’s expert testimony. It also rejected defendant’s claims that his trial counsel was ineffective for failing to file a discovery demand as to the pathologist and for failing to request M Crim JI 7.2. Finally, it held that the trial court properly denied his motion to suppress certain statements he made to the police as they were made voluntarily and without prompting. Further, any error would have been harmless beyond a reasonable doubt given the other evidence. He was convicted of first-degree premeditated murder, failure to stop at the scene of an accident causing death, and concealing the death of an individual. The other acts evidence related to his internet search history. Applying the VanderVliet test, the court noted the “prosecution cited motive, opportunity, intent, preparation, scheme, plan, absence of mistake, and lack of accident as proper noncharacter purposes for admission of the evidence. This recitation” satisfied the first prong. As to the second prong, the trial court did not abuse its discretion in “ruling that the evidence was both material and probative under MRE 401 and” 402 as “to the evidence preceding his encounter with the victim. The prosecution” contended that evidence “defendant accessed pornographic material preceding his encounter with the victim was relevant to establish motive.” In light of “the charges against defendant, his accessing pornographic material related to necrophilia and sex acts with incapacitated women was relevant to establishing that [he] struck the victim with his vehicle with the intent to kill her and motive to fulfill his fantasy. In short, the evidence preceding his encounter with the victim was logically relevant for a proper purpose under MRE 404(b).” The court also found that evidence he purportedly watched “pornography after striking the victim with his truck, including paid online live cameras with naked women, was logically relevant to showing absence of mistake and lack of accident[.]” As to the third VanderVliet prong, “the probative value of the evidence both before and after striking the victim with his truck was not substantially outweighed by the danger of unfair prejudice for” MRE 403 purposes. Affirmed.

Order continuing involuntary mental health treatment; Effect of a hearing finding that respondent was still a person requiring treatment; MCL 330.1485a; Due-process rights; Creation of a mental health service plan; MCL 330.1712(1); Plain error review

The court held that a clinical psychologist’s (Dr. B) testimony supported the probate court’s findings that respondent was still a person requiring treatment, and it did not err in ordering that respondent remain hospitalized. Thus, the court affirmed the order that continued his involuntary mental health treatment order and his continued hospitalization. On appeal, he contended that the probate court abused its discretion in ruling that he should remain hospitalized. The court noted that he “effectively conceded on appeal that he was still a person requiring treatment, . . . and that he only objected to his continued hospitalization. Because the probate court found at the hearing that respondent was still a person requiring treatment, it was required” pursuant to MCL 330.1485a “to either continue [his] treatment order or issue a new continuing treatment order.” It elected to continue the treatment order, meaning “that respondent remained hospitalized. This decision was not an abuse of discretion. [B] testified that respondent had a history of nonparticipation with his previous court-ordered outpatient treatment and elopement from adult foster care facilities. He further testified that respondent showed improvement in the structured environment of the psychiatric hospital, but that he was not ready to be discharged, as evidenced by [his] multiple instances of threatening and assaultive behavior in the months before the hearing.” Respondent also asserted “that his due-process rights were violated because there was no evidence that petitioner created a mental health service plan or discussed it with” him. But he could not show “that petitioner should have known that respondent would raise the service plan issues for the first time at the hearing, and that it should have brought a witness to the hearing to testify about that issue as a result.” The court could not find that he met his burden of establishing that plain error occurred.

No-fault insurance; PIP benefits; Allowable expenses; Policy rescission; Innocent third parties; Bazzi v Sentinel Ins Co; Pioneer State Mut Ins Co v Wright; Coverage limits; Declaratory judgment; Preservation; Raise-or-waive rule; Consolidated cases

The court held that plaintiff-Progressive could not obtain appellate relief in this case by challenging an order entered in a separate action with which this case was not consolidated. Progressive filed this declaratory action after an accident involving its insured’s vehicle and a three-wheeled motorcycle insured by defendant-Esurance, seeking rescission based on alleged misrepresentations by its insured. The trial court granted Esurance summary disposition, ruling Progressive was first in priority for PIP benefits. Progressive appealed, arguing the trial court erred by treating allowable-expense coverage as unlimited. On appeal, the court first held that the coverage-limit issue was not preserved in this action because Progressive’s complaint sought rescission and no coverage, but contained “no allegations that PIP coverage is limited to $250,000” and no request for a declaration imposing that cap. Thus, the issue was “never before the lower court in the declaratory action.” The court next held that, even if preserved, Progressive still was not entitled to relief because the trial court never entered an order in this case holding allowable-expense coverage was unlimited. The court reasoned that “‘a court speaks through its written orders and judgments,’” and the unlimited-coverage order was entered only in the separate case. Because the court could not find error in the present case “on the basis of an order that was entered in a separate matter that was not consolidated with this case,” Progressive’s appeal failed. Affirmed.

Amended complaints; Amendment as a matter of course; MCR 2.118(A)(1); Badeen v PAR, Inc; Motion to strike; MCR 2.115(B); Service of process; MCR 2.105; Summons; MCR 2.102(E)(1); Dismissal for failure to comply with court rules; MCR 2.504(B)(1); Improper service; MCR 2.105(K)(3); Hill v Frawley; Complete failure of service; Holliday v Townley

The court held that plaintiffs properly amended their complaints as a matter of right and that service of the amended complaints with the original summonses did not warrant dismissal. In four sewage-flooding actions, plaintiffs filed original complaints in four trial courts, and summonses were issued. Before serving defendants or allowing the summonses to expire, plaintiffs filed amended complaints without leave of court or defendants’ consent and then served the amended complaints with the original summonses. The Southfield trial court struck the amended complaint and dismissed that case, the Beverly Hills trial court struck the amended complaint but did not dismiss, and the Royal Oak and Birmingham trial courts declined to strike or dismiss. On appeal, the court first held that MCR 2.118(A)(1) permitted plaintiffs to amend before defendants served responsive pleadings. Relying on Badeen, it reasoned the rule sets “an outer boundary” on when amendment by right may occur but “does not require the filing of a responsive pleading by an adverse party before that right is triggered.” The court rejected defendants’ argument based on prior court-rule language because nothing showed the Supreme Court intended to make the right to amend “contingent on the opposing party.” The court next held that service was proper because the amended complaints superseded the originals, and there was “no basis to conclude” the court rules prohibit service of a properly amended complaint with the original summons during the summons’s life. It further held that even if service was technically improper, MCR 2.105(K)(3) barred dismissal because defendants received notice of the actions and the circumstances did not amount to “a complete failure of service.” Affirmed in part, reversed in part, and remanded.

Entry of a default; MCR 2.603(A)(1); Failure to appear at trial; Motion to set aside a default judgment; MCR 2.612(C)(1); Shawl v Spence Bros, Inc; Waived issue as to a hearing on damages

Holding that the trial court did not abuse its discretion in entering a default against defendants after they failed to appear for trial, or in denying their motion to set aside the default judgment, the court affirmed. Defendants asserted that the default was improperly entered “because they did not fail to appear for trial or otherwise fail to defend this matter on the basis that a corporate representative for” defendant-Jenkins Construction appeared “at trial ready to testify about documentary evidence that defendants argue would have defeated plaintiff’s claim. But” this argument was directly contradicted by longstanding Michigan case “law, which does not allow a corporation to appear in court without counsel, but does permit an individual to appear in propria persona.” Given that no “attorney appeared at trial for Jenkins Construction,” Jenkins Construction “failed to appear at trial.” The same was true as to defendant-Jenkins, who “did not appear in propria persona,” or via an attorney. As to defendants’ motion to set aside the default judgment, the record showed they “were aware that their former counsel had been suspended long before the date of the trial and that they nonetheless failed to retain new counsel.” The court also found that the Shawl factors did not favor them. “Defendants completely failed to appear at trial, as the trial court noted. The motion to set aside the default judgment was timely, but” they failed to “indicate why they waited 20 days to file it. Defendants note that the default judgment was served on their former counsel, not on them, but they fail to argue that they did not receive timely notice of the judgment nor do they even indicate that they provided the [trial] court with contact information after their attorney was suspended. The trial court thoroughly reviewed the circumstances behind defendants’ failure to appear and found that their neglect was not excusable.” The court also noted that “the size of the judgment was actually less than the sum certain pleaded in plaintiff’s complaint, and it was the precise amount that had been held to be in controversy in the” pretrial order.

Attorney fees; 42 USC § 1988(b); Reasonable fee; Lodestar; Hensley v Eckerhart; Categorical exclusions; Binta B ex rel SA v Gordon; Class-certification hours; Tarrify Props, LLC v Cuyahoga Cnty; Fees for claims against other defendants; Unfiled motion to reopen; Appellate hours; Hubbell v FedEx SmartPost, Inc; Attorney billing records; Vague & excessive entries; Fox v Vice; Hourly rates; Blended hourly rate; Companion case; Taylor v County of Oakland (Unpub ED MI); Abuse of discretion; Garner v Cuyahoga Cnty Juvenile Court

[This appeal was from the ED-MI.] The court held that the district court abused its discretion by awarding more than $1.36 million in attorney fees and that the award had to be sharply reduced. Plaintiffs brought two Takings Clause suits after defendant-Oakland County foreclosed on their homes, and eventually obtained a global $500,000 settlement after prevailing on appeal. They then sought more than $4.2 million in fees based on more than 4,800 claimed hours. The district court reduced the claimed hours by 40%, applied a 1.1 multiplier, and awarded $1,361,476.51. On appeal, the court first held that plaintiffs’ counsel failed to satisfy Hensley’s billing-judgment requirement, noting there was “not a trace of any good-faith effort” to exclude excessive or unnecessary hours. It held that all 573 class-certification hours should be excluded because the individual plaintiffs were counsel’s only clients, the motions would not benefit them, and certification was “nearly certain” to fail after Tarrify required individualized valuation of each property. The court next held that 189 hours spent pursuing claims against defendants other than the County had to be excluded under Binta B, and 32.5 hours for an unfiled motion to reopen also were noncompensable. The court then held that of 1,643 hours billed during the appeals, no more than 75 were reasonable because the Pacific Legal Foundation (not involved in this appeal) handled the successful appeal in one of these cases pro bono, the later appeal in the other largely copied that briefing, and counsel’s claimed appellate fees “almost shock[ed] the conscience.” It also found that no more than 10 of one attorney’s 999 hours were properly billed because his entries lacked “concrete work.” The court left intact the district court’s 40% reduction for remaining vague or excessive entries and its 1.1 multiplier, but held that the district court abused its discretion by not addressing the County’s argument for a blended hourly rate based on Taylor. It set a reasonable blended rate of $325 and remanded with calculation instructions. Vacated and remanded.

Governmental immunity; Governmental Tort Liability Act (GTLA); Motor vehicle exception; MCL 691.1405; Negligent operation; City bus; Common carrier; Normal incidents of travel; Seldon v Suburban Mobility Auth for Reg’l Transp; Getz v Detroit; Bolton v City of Detroit; Serious impairment; MCL 500.3135; Detroit Department of Transportation (DDOT)

The court held that defendants were entitled to governmental immunity on plaintiff’s third-party automobile negligence claim because she failed to show a fact question as to negligent operation of the city bus. Plaintiff was injured when she fell from her seat after boarding a DDOT bus and the driver braked twice to avoid a car that cut in front of him. The trial court denied defendants’ motion for partial summary disposition on the MCL 691.1405 claim. On appeal, the court first held that plaintiff adequately pleaded in avoidance of governmental immunity because the complaint alleged the driver “violated Michigan law and was negligent . . . in the operation of” the bus and that this caused serious impairments. But the court next held that plaintiff failed to produce evidence showing negligent operation. It reasoned that under Seldon, “absent evidence of other negligence pertaining to the operation of a bus,” a passenger generally may not recover for injuries from a sudden stop because such stops are “normal incidents of travel.” The court also noted that a passenger who has boarded a bus “must anticipate that [it] may start before he is seated,” absent a special reason requiring the driver to wait. Plaintiff testified the braking happened about three minutes after she boarded, when her cart was situated and her “buttocks [were] on the bench,” and she offered no evidence supporting allegations that the driver was inattentive or driving too fast. Because she failed to show her claim fell within the motor-vehicle exception, the court reversed and remanded for entry of partial summary disposition for defendants on the third-party negligence claim.

Governmental immunity; Governmental Tort Liability Act (GTLA); Motor vehicle exception; MCL 691.1405; Negligent operation; City bus; Common carrier; Normal incidents of travel; Seldon v Suburban Mobility Auth for Reg’l Transp; Getz v Detroit; Bolton v City of Detroit; Serious impairment; MCL 500.3135; Detroit Department of Transportation (DDOT)

The court held that defendants were entitled to governmental immunity on plaintiff’s third-party automobile negligence claim because she failed to show a fact question as to negligent operation of the city bus. Plaintiff was injured when she fell from her seat after boarding a DDOT bus and the driver braked twice to avoid a car that cut in front of him. The trial court denied defendants’ motion for partial summary disposition on the MCL 691.1405 claim. On appeal, the court first held that plaintiff adequately pleaded in avoidance of governmental immunity because the complaint alleged the driver “violated Michigan law and was negligent . . . in the operation of” the bus and that this caused serious impairments. But the court next held that plaintiff failed to produce evidence showing negligent operation. It reasoned that under Seldon, “absent evidence of other negligence pertaining to the operation of a bus,” a passenger generally may not recover for injuries from a sudden stop because such stops are “normal incidents of travel.” The court also noted that a passenger who has boarded a bus “must anticipate that [it] may start before he is seated,” absent a special reason requiring the driver to wait. Plaintiff testified the braking happened about three minutes after she boarded, when her cart was situated and her “buttocks [were] on the bench,” and she offered no evidence supporting allegations that the driver was inattentive or driving too fast. Because she failed to show her claim fell within the motor-vehicle exception, the court reversed and remanded for entry of partial summary disposition for defendants on the third-party negligence claim.

Order continuing involuntary mental health treatment; Effect of a hearing finding that respondent was still a person requiring treatment; MCL 330.1485a; Due-process rights; Creation of a mental health service plan; MCL 330.1712(1); Plain error review

The court held that a clinical psychologist’s (Dr. B) testimony supported the probate court’s findings that respondent was still a person requiring treatment, and it did not err in ordering that respondent remain hospitalized. Thus, the court affirmed the order that continued his involuntary mental health treatment order and his continued hospitalization. On appeal, he contended that the probate court abused its discretion in ruling that he should remain hospitalized. The court noted that he “effectively conceded on appeal that he was still a person requiring treatment, . . . and that he only objected to his continued hospitalization. Because the probate court found at the hearing that respondent was still a person requiring treatment, it was required” pursuant to MCL 330.1485a “to either continue [his] treatment order or issue a new continuing treatment order.” It elected to continue the treatment order, meaning “that respondent remained hospitalized. This decision was not an abuse of discretion. [B] testified that respondent had a history of nonparticipation with his previous court-ordered outpatient treatment and elopement from adult foster care facilities. He further testified that respondent showed improvement in the structured environment of the psychiatric hospital, but that he was not ready to be discharged, as evidenced by [his] multiple instances of threatening and assaultive behavior in the months before the hearing.” Respondent also asserted “that his due-process rights were violated because there was no evidence that petitioner created a mental health service plan or discussed it with” him. But he could not show “that petitioner should have known that respondent would raise the service plan issues for the first time at the hearing, and that it should have brought a witness to the hearing to testify about that issue as a result.” The court could not find that he met his burden of establishing that plain error occurred.

Termination under § (c)(i); Whether abuse allegations constituted new or different grounds for termination; MCR 3.977(F)(1)(b); Hearsay; Domestic violence; Physical neglect; Housing; Employment; Parenting ability; Children’s best interests; Relative placement; Trauma-based bond

The court held that any evidentiary error related to new allegations was harmless, that § (c)(i) supported termination of respondent-mother’s parental rights, and that termination was in the children’s best interests. The trial court took jurisdiction after the children were found living in a tent without adequate clothing in 38-degree weather, and it later terminated the mother’s parental rights. On appeal, the court first rejected her claim that hearsay evidence about alleged pinching was inadmissible because it was related to the original grounds, including domestic violence and her ability to safely parent, so “legally admissible evidence regarding those grounds had already been introduced at adjudication.” Although sexual-abuse allegations presented a closer question, any error was harmless because the trial court did not rely on them for § (c)(i). The court next held that § (c)(i) was established because the mother failed to rectify domestic violence, physical neglect, housing, employment, and parenting barriers. It reasoned that she “failed to consistently participate in recommended services or show meaningful progress,” never progressed beyond supervised parenting time, lacked long-term housing, was unemployed, and minimized domestic violence. The court also found no reasonable likelihood of rectification within a reasonable time because she had not “accomplished meaningful change in the conditions that led to adjudication.” Finally, the court held that termination was in the children’s best interests because the mother’s parenting time produced safety concerns and negative behaviors, the bond appeared “trauma-based,” the children were strongly bonded to their relative placement, and that placement was meeting their extensive needs and was willing to adopt. Affirmed.