Divorce; The Domestic Relations Arbitration Act (DRAA); Motion to vacate the arbitration award; MCL 600.5081(2); Krist v Krist; Evident partiality by the arbitrator; Whether the arbitrator exceeded his powers; Washington v Washington; Refusal to hear material evidence; Arbitrator’s failure to hold a hearing after issuing the opinion; Due process & entry of the divorce judgment; The court’s jurisdiction; “Final order”; Treating an appeal as application for leave to appeal

The court found no basis to overturn the arbitration award under MCL 600.5081(2)(b)-(d), and no merit to plaintiff-ex-wife’s due process claim related to entry of the divorce judgment. Thus, it affirmed the trial court’s denial of her motion to vacate the arbitration award and its entry of the divorce judgment. Plaintiff argued that the trial court erred in denying her motion to vacate the arbitration award. She first contended “there was evident partiality by the arbitrator.” The court disagreed, rejecting her claim “that the arbitrator refused to address her issues; rather, the record reflects that the arbitrator considered her arguments and did not find them worthy of credence.” The record showed “the arbitrator repeatedly addressed and provided reasons grounded in fact for its rejection of plaintiff’s arguments.” Among other things, the court found no “evident bias from the arbitrator’s handling of plaintiff’s requests for an accounting.” And belying her assertion that none “was ever provided, the arbitrator acknowledged that an accounting regarding the [5/22] term sheet, as ordered by the trial court, had been provided.” The court also held that the arbitrator did not exceed his powers. Related to disposition of assets and liabilities associated with the parties’ business interests, by writing in support of her brother’s “offer, plaintiff accepted competitive bidding as a method for valuing and dividing these business assets. [She] may not now complain about the valuation method.” As to her claim that the arbitrator refused to hear evidence, the court rejected her argument to the extent she asserted she was entitled to a formal hearing. As to her contention “that she was entitled to a hearing, even if informal, after the arbitrator’s” 6/29/22 opinion, the court observed that she “received multiple hearings in this case. The arbitrator held over a dozen hearings and conferences. The arbitrator also issued multiple rulings addressing plaintiff’s motions, even if a hearing was not held. Declining to hold additional hearings does not equate with a refusal to hear evidence material to the controversy.” Finally, as to the entry of the judgment, plaintiff “agreed to binding arbitration of all issues in the divorce and that a judgment of divorce comporting with the arbitrator’s decisions would enter—which is what occurred. Accordingly, [her] consent was unnecessary and no due process violation occurred.”

Legal malpractice; Attorney-client relationship; Patel v FisherBroyles, LLP; Retainer agreement scope; Contract interpretation; Wasenko v Auto Club Group; Case-within-a-case; Ground penetrating radar (GPR)

The court held that defendants were entitled to summary disposition because their retainer agreement limited the scope of their representation to a legal-malpractice claim against prior counsel, and plaintiff also failed to show that he had a viable underlying claim against a nonparty (PM). Plaintiff first hired other counsel to sue the sellers of a scrapyard for failing to disclose buried toxic drums, then hired defendants to sue that prior law firm for malpractice after PM’s later digging found no barrels, and finally sued defendants for not suing PM before the limitations period expired. On appeal, the court held that the retainer agreement “clearly limits defendants’ scope of representation to claims ‘arising out of an incident, accident, or event of legal malpractice’ in the first case.” It rejected plaintiff’s claim that defendants expanded that scope merely by discussing whether PM might also be liable. The court next held that this case required plaintiff to prove a “case-within-a-case” because he alleged that defendants allowed the statute of limitations to run on a potential claim against PM. The court also held that plaintiff failed to show he would have succeeded against PM because there was no record support for the theory that PM lied or colluded with prior counsel, PM merely reported anomalies “consistent with potential drums,” and the evidence showed that the first survey was limited by vehicles, debris, and vegetation on the property. The court further noted that PM performed the work it was retained to do, that plaintiff had been warned about the limits of a GPR survey, and that plaintiff offered no evidence that any limited findings were PM’s fault. Affirmed.

Ineffective assistance of counsel; Jury instructions; Defense of property; People v Shaffran; Citizen’s arrest; MCL 764.16; People v Hampton; Lesser included offense of brandishing a firearm in public; MCL 750.234e

The court held that defense counsel was not ineffective for failing to request jury instructions on defense of property, citizen’s arrest, or brandishing a firearm in public because none of those instructions was legally warranted on the facts presented. Defendant chased three teenage girls walking on a public road near his father’s property, got out of a vehicle with a handgun equipped with a flashlight, fired into the air, ordered them to “get on the ground,” and threatened to shoot anyone else who might be present. A jury convicted him of felonious assault, reckless use of a firearm, unlawful imprisonment, and felony-firearm. He argued on appeal that counsel should have sought additional jury instructions. The court noted that counsel is not ineffective for failing to request an instruction the trial court could not properly give. It first held that a defense-of-property instruction was unsupported because, although a person “may use such force as is necessary for the protection of his property,” that rule does not permit the use of deadly force or conduct endangering human life, and defendant’s decision to restrain the girls and fire a gun “falls well short of the limited right to use force in defense of property.” The court next held that a citizen’s-arrest instruction had no basis because MCL 764.16 authorizes a private arrest only in specified felony circumstances, while the suspected conduct here was, at most, trespass, and there was not “a shred of evidence” the girls committed a felony. The court also held that brandishing in public is not a necessarily included lesser offense of felonious assault because brandishing contains a public-place element that felonious assault does not, making it a cognate offense only. Affirmed.

Right to a speedy trial; People v Williams; Barker v Wingo; Jail credit; MCL 769.11b; People v Allen; People v Idziak

Holding that defendant’s right to a speedy trial was not violated and that he was not entitled to jail credit for the time that he was in jail awaiting sentencing, the court affirmed his convictions and sentences. He was convicted of second-degree home invasion, false report of a felony, and malicious destruction of a building. He was sentenced as a fourth-offense habitual offender to 8 to 40 years for the home invasion conviction, 3 to 15 years for the false report conviction, and 3 to 40 years for the malicious destruction conviction. He argued the prosecution violated his constitutional right to a speedy trial “by dismissing and refiling the charges against him shortly before the original trial date.” Applying the Barker factors, the court noted that as to the first, length of the delay, he had to prove that he was prejudiced by the delay since it was less than 18 months. As to the reason for the delay, “given that the prosecutor’s delay in dismissing and refiling the charges ‘should be weighted heavily against the government,’” this factor weighed heavily in his favor. The third factor also weighed in his favor as the prosecution conceded that he asserted his right. Turning to the fourth factor, prejudice, the court held that, similar to Williams, this factor weighed “against defendant because he failed to identify any way that the delay prejudiced his defense. In fact, [he] appears to concede that his defense was not prejudiced by arguing that the laboratory report was not necessary to the prosecution’s case because the prosecution already had ‘significant evidence’ to convict” him. Thus, because he did not “establish that the 14-and-a-half-month delay prejudiced his defense, the prosecution did not violate defendant’s” right to a speedy trial. The court next held that he was not entitled to any jail credit. MCL 769.11b did “not apply in this case. Defendant remained in jail because of the parole detainer, not ‘because [he was] denied or unable to furnish bond for the offense of which he [was] convicted . . . .’”

Ineffective assistance of counsel; Failure to challenge a juror’s empanelment; People v Unger; Admission of other acts evidence under MCL 768.27b; Separation of powers; People v Mack

The court rejected defendant’s claim that defense counsel was ineffective for failing to challenge a juror’s empanelment, and found that his MCL 768.27b argument failed under the Michigan Supreme Court’s decision in Mack. Thus, it affirmed his convictions of third-degree child abuse, fourth-degree child abuse, and domestic violence, second offense. He argued that defense counsel was ineffective for not challenging the empanelment of a juror (Juror 12) who had experienced child abuse 53 years earlier. Before “Juror 12 was voir dired, defense counsel exercised all five of his peremptory challenges and successfully moved for two jurors to be excused for cause on the basis that they were biased in favor of the prosecution.” Juror 12 informed the trial court that he was a child abuse victim. While he “stated that his past experience with child abuse could possibly affect his ability to impartially hear the children’s testimonies in this case, he clearly indicated that: (1) he could ‘pretty well judge with common sense,’ and (2) his past experiences would not make him more likely to find defendant guilty if he was ‘in the middle of the road . . . .’” When defense counsel was asked if he “had any challenges for cause, he stated, ‘I think the juror actually gave the standard every juror would do.’” The court concluded he “thoroughly analyzed and voir dired each juror that was empaneled in this case, as evidenced by his use of all five peremptory challenges as well as two successful motions to excuse jurors for cause. Defense counsel was clearly aware of how to excuse a juror for cause, yet he chose not to do so in this instance.” The court noted that it will not substitute its “‘judgment for that of defendant’s counsel, nor will we use the benefit of hindsight to assess counsel’s performance.’” Defendant also argued the admission of other acts evidence from his ex-wife “about an incident of domestic violence that occurred between them in 2018” violated the separation of powers and made his trial unfair. The Supreme Court decided the same issue in Mack, permitting evidence of a “defendant’s commission of other domestic violence acts where, as here, defendant is accused of an offense involving domestic violence.”

Sufficient evidence to support a CSC I conviction under MCL 750.520b(2)(b); “Sexual penetration” (MCL 750.520a(r)); Prosecutorial error; Questioning of an expert witness; MRE 702; People v Thorpe; Ineffective assistance of counsel; Failure to make a meritless objection; Sexual Assault Nurse Examiner (SANE)

The court held that there was sufficient evidence of penetration to support defendant’s CSC I conviction. Further, defendant’s claim of prosecutorial error in soliciting an expert witness’s opinion was “unsupported by the record and contrary to Thorpe and MRE 702.” And defense counsel was not ineffective for failing to object to the prosecutor’s questioning of the expert. Defendant asserted that the prosecution did not “present physical or medical evidence to establish” the penetration element of the offense. The complainant stated that “defendant ‘touched [her] private spot’ with his hand. She specifically described contact with the external genitalia at the site of urination and clarified that [his] hand was inside her underwear, resulting in physical discomfort. [She] promptly disclosed this conduct to her mother, reporting that defendant had touched her ‘privates.’” In addition, a “subsequent forensic medical examination conducted by” witness-V (a family nurse practitioner and SANE) “revealed two distinct lacerations adjacent to the vaginal introitus. [V] opined that the injuries could not have resulted absent an object or body part passing through the labial folds[.]” The court concluded that “this testimonial and physical evidence provided an evidentiary basis from which a rational trier of fact could conclude that the element of penetration was proven beyond a reasonable doubt.” Defendant’s prosecutorial error claim related to the questioning of V. But the court found that “the prosecutor did not pose a direct question soliciting [V’s] opinion on the ultimate legal issue of whether complainant was sexually assaulted.” Further, the transcript did “not support any inference that the prosecutor elicited, or that [V] provided, an expert opinion on the occurrence of a sexual assault.” Finally, V’s “conclusions were firmly rooted in objective forensic evidence, specifically, the documented lacerations observed during the SANE examination—as well as in complainant’s medical and psychosocial history, which she obtained prior to the physical evaluation. These factors satisfy the criteria for admissible expert opinion under both Thorpe and MRE 702.” Affirmed.

Sentencing; Due process; People v Francisco; Victim-impact statements; MCR 6.425(D)(1)(c)(iv); People v Maben; Sentencing departure; Proportionality; People v Smith; Ineffective assistance of counsel; People v Fyda

The court held that remand was required because the trial court failed to explain whether and how inaccurate or unsupported oral victim-impact statements influenced defendant’s resentencing. It also held that counsel was ineffective for failing to object to the substantial upward-departure sentence on the FIP conviction. Defendant was resentenced after federal habeas proceedings and a Crosby/Howard remand, and the parties stipulated that the minimum guidelines were 171 to 570 months for AWIM and 12 to 48 months for FIP. At resentencing, family members described the victim’s devastating condition, but also made unsupported claims that defendant shot the victim while he was on the ground, shot him eight times, and had “four young ladies prostituting for him.” The trial court then stated, “initially, I thought I had an idea of what I was going to do . . . but after hearing from [the victim’s] mother and stepfather,” it imposed 35 to 70 years for both convictions. On appeal, the court held that a defendant has a due-process right to be sentenced on accurate information and that a sentence imposed on inaccurate information is “per se invalid.” The court concluded that the record did not support the claims that defendant shot the victim while he was on the ground, that the victim was shot eight times, or that defendant was involved in prostitution, yet the trial court failed to identify what portions of the family’s statements it relied on. The court also held that remand was necessary because the sentencing court did not explain whether those statements were the basis for placing the AWIM sentence at the top of the guidelines and gave no departure rationale at all for the FIP sentence. Finally, the court held that counsel performed deficiently by not objecting to the 35-year minimum sentence on the FIP count, which far exceeded the 12-to-48-month guidelines range. Remanded for further proceedings and resentencing.

Bindover; Motion to quash; Felony murder; MCL 750.316(1)(b); People v Carines; Felony-firearm; MCL 750.227b(1); People v Bass; Motion to suppress; Miranda waiver; Reinitiation after counsel request; People v Kowalski; Sufficiency of the evidence; People v Kenny

The court held that the district court properly bound defendant over on the felony murder and felony-firearm charges, that the trial court properly denied suppression of defendant’s postarrest statements, and that sufficient evidence supported the felony murder and felony-firearm convictions. Defendant, L, and E broke into the victim’s house. Defendant forced open the front door and entered first, the victim yelled for them to “get out,” and during defendant’s struggle with the victim, the victim was fatally shot. The trial court denied his motion to quash and his motion to suppress. A jury convicted him of felony murder, first-degree home invasion, and felony-firearm. On appeal, the court held that the bindover on felony murder was proper because there was evidence he was “the first to enter,” that he advanced toward the victim after being told to leave, that he was “the only person to tussle and engage with the victim,” and that after the shot he said, “I hit him.” This evidence was enough to support a reasonable belief that he “intentionally set in motion a force likely to cause death or great bodily harm.” The court next held that the bindover on felony-firearm was proper because L testified that he never fired his gun, E had no gun, and defendant was the only person engaging with the victim when the shot was fired. The court also held that suppression was unwarranted because, after defendant invoked counsel, the detectives did not interrogate him, they merely clarified that they could not continue unless he reinitiated contact. Defendant did so by knocking on the interview-room door and later knowingly and voluntarily waiving his rights again. The court finally held that the trial evidence, including testimony that defendant had a gun handle visible in his sweatshirt and that neither L’s gun nor the victim’s shotgun fired the fatal bullet, was sufficient to sustain the convictions. Affirmed.

Divorce; The Domestic Relations Arbitration Act (DRAA); Motion to vacate the arbitration award; MCL 600.5081(2); Krist v Krist; Evident partiality by the arbitrator; Whether the arbitrator exceeded his powers; Washington v Washington; Refusal to hear material evidence; Arbitrator’s failure to hold a hearing after issuing the opinion; Due process & entry of the divorce judgment; The court’s jurisdiction; “Final order”; Treating an appeal as application for leave to appeal

The court found no basis to overturn the arbitration award under MCL 600.5081(2)(b)-(d), and no merit to plaintiff-ex-wife’s due process claim related to entry of the divorce judgment. Thus, it affirmed the trial court’s denial of her motion to vacate the arbitration award and its entry of the divorce judgment. Plaintiff argued that the trial court erred in denying her motion to vacate the arbitration award. She first contended “there was evident partiality by the arbitrator.” The court disagreed, rejecting her claim “that the arbitrator refused to address her issues; rather, the record reflects that the arbitrator considered her arguments and did not find them worthy of credence.” The record showed “the arbitrator repeatedly addressed and provided reasons grounded in fact for its rejection of plaintiff’s arguments.” Among other things, the court found no “evident bias from the arbitrator’s handling of plaintiff’s requests for an accounting.” And belying her assertion that none “was ever provided, the arbitrator acknowledged that an accounting regarding the [5/22] term sheet, as ordered by the trial court, had been provided.” The court also held that the arbitrator did not exceed his powers. Related to disposition of assets and liabilities associated with the parties’ business interests, by writing in support of her brother’s “offer, plaintiff accepted competitive bidding as a method for valuing and dividing these business assets. [She] may not now complain about the valuation method.” As to her claim that the arbitrator refused to hear evidence, the court rejected her argument to the extent she asserted she was entitled to a formal hearing. As to her contention “that she was entitled to a hearing, even if informal, after the arbitrator’s” 6/29/22 opinion, the court observed that she “received multiple hearings in this case. The arbitrator held over a dozen hearings and conferences. The arbitrator also issued multiple rulings addressing plaintiff’s motions, even if a hearing was not held. Declining to hold additional hearings does not equate with a refusal to hear evidence material to the controversy.” Finally, as to the entry of the judgment, plaintiff “agreed to binding arbitration of all issues in the divorce and that a judgment of divorce comporting with the arbitrator’s decisions would enter—which is what occurred. Accordingly, [her] consent was unnecessary and no due process violation occurred.”

Security for costs; MCR 2.109(A) & MCR 2.109(B)(1); Hall v Harmony Hills Rec, Inc; Indigency exception; Gaffier v St Johns Hosp; Appellate remand compliance; Law of the case

The court held that the trial court again erred by requiring plaintiff to post a $5,000 security bond and dismissing her PIP action when it failed to make the specific findings and balancing analysis required under MCR 2.109 and the court’s prior remand instructions. Plaintiff sought PIP benefits after a motor-vehicle accident, and this was the second appeal involving dismissal of her case for failure to post a $5,000 bond. In the first appeal, the court reversed because the trial court imposed a bond “without making the factual findings required to support the imposition of such bond.” On remand, the trial court again ordered plaintiff to post the same $5,000 bond, plaintiff did not do so because of insufficient financial resources, and the trial court again dismissed the case with prejudice. In this appeal, the court held that MCR 2.109 requires that, when indigence is raised, the trial court must expressly consider whether the party “is financially unable to furnish a security bond.” The court next held that the trial court was required to apply the balancing framework adopted from Hall and Gaffier, under which there is “a strong preference for waiver of the bond where the indigent plaintiff’s pleadings show a ‘meritorious claim’” and only “‘few cases’” in which a financially unable plaintiff asserting a valid theory should be required to post security. The court held that the trial court’s statement that “logic and reason and fairness dictate” a $5,000 bond was inadequate because the lack of “specific findings or analysis precludes this Court from conducting a meaningful appellate review.” Reversed and remanded.

Security for costs; MCR 2.109(A) & MCR 2.109(B)(1); Hall v Harmony Hills Rec, Inc; Indigency exception; Gaffier v St Johns Hosp; Appellate remand compliance; Law of the case

The court held that the trial court again erred by requiring plaintiff to post a $5,000 security bond and dismissing her PIP action when it failed to make the specific findings and balancing analysis required under MCR 2.109 and the court’s prior remand instructions. Plaintiff sought PIP benefits after a motor-vehicle accident, and this was the second appeal involving dismissal of her case for failure to post a $5,000 bond. In the first appeal, the court reversed because the trial court imposed a bond “without making the factual findings required to support the imposition of such bond.” On remand, the trial court again ordered plaintiff to post the same $5,000 bond, plaintiff did not do so because of insufficient financial resources, and the trial court again dismissed the case with prejudice. In this appeal, the court held that MCR 2.109 requires that, when indigence is raised, the trial court must expressly consider whether the party “is financially unable to furnish a security bond.” The court next held that the trial court was required to apply the balancing framework adopted from Hall and Gaffier, under which there is “a strong preference for waiver of the bond where the indigent plaintiff’s pleadings show a ‘meritorious claim’” and only “‘few cases’” in which a financially unable plaintiff asserting a valid theory should be required to post security. The court held that the trial court’s statement that “logic and reason and fairness dictate” a $5,000 bond was inadequate because the lack of “specific findings or analysis precludes this Court from conducting a meaningful appellate review.” Reversed and remanded.

Legal malpractice; Attorney-client relationship; Patel v FisherBroyles, LLP; Retainer agreement scope; Contract interpretation; Wasenko v Auto Club Group; Case-within-a-case; Ground penetrating radar (GPR)

The court held that defendants were entitled to summary disposition because their retainer agreement limited the scope of their representation to a legal-malpractice claim against prior counsel, and plaintiff also failed to show that he had a viable underlying claim against a nonparty (PM). Plaintiff first hired other counsel to sue the sellers of a scrapyard for failing to disclose buried toxic drums, then hired defendants to sue that prior law firm for malpractice after PM’s later digging found no barrels, and finally sued defendants for not suing PM before the limitations period expired. On appeal, the court held that the retainer agreement “clearly limits defendants’ scope of representation to claims ‘arising out of an incident, accident, or event of legal malpractice’ in the first case.” It rejected plaintiff’s claim that defendants expanded that scope merely by discussing whether PM might also be liable. The court next held that this case required plaintiff to prove a “case-within-a-case” because he alleged that defendants allowed the statute of limitations to run on a potential claim against PM. The court also held that plaintiff failed to show he would have succeeded against PM because there was no record support for the theory that PM lied or colluded with prior counsel, PM merely reported anomalies “consistent with potential drums,” and the evidence showed that the first survey was limited by vehicles, debris, and vegetation on the property. The court further noted that PM performed the work it was retained to do, that plaintiff had been warned about the limits of a GPR survey, and that plaintiff offered no evidence that any limited findings were PM’s fault. Affirmed.

Adjudication; Ruling prohibiting the forensic interviewer’s testimony at trial about the children’s statements during the interviews; Admissibility of hearsay statements by a child related to child abuse; MCR 3.972(C)(2); In re Archer; Untimely jury trial request; Judicial bias; Presumption of judicial impartiality; Decision not to exercise jurisdiction over the children; MCL 712A.2(b)(1) & (2); Credibility assessments; Child Advocacy Center (CAC)

The court held that the trial court did not abuse its discretion when, after a tender-years hearing, it prohibited the forensic interviewer from testifying at trial about statements the children made in the interviews. Concluding that the DHHS did not rebut the presumption of judicial impartiality, the court also held that the trial court did not err in denying its untimely motion for a jury trial. Finally, the DHHS did not show that the trial court’s decision not to exercise jurisdiction over the children was clearly erroneous. As to the children’s statements, the trial court determined that they “lacked sufficient indicia of trustworthiness when evaluated under the totality of the circumstances standard. [Its] findings were grounded in a detailed assessment of the mother’s influence on the children’s narratives.” The trial court noted the “interview transcripts suggested the children had participated in multiple interview sessions at the CAC, and that their initial disclosures were made to their mother rather than to neutral third parties. Critically, the record was devoid of evidence elucidating the spontaneity or contextual circumstances surrounding these initial disclosures to the mother.” In addition, the trial court “noted a conspicuous lack of consistent repetition or corroborative detail across the children’s accounts during the” interviews. The DHHS did “not substantively challenge the trial court’s factual determinations” as to the content of the interviews. It instead argued “the mere fact that these statements were elicited during forensic interviews conducted in accordance with established protocols suffices to establish their reliability. This position, however, is inconsistent with prevailing jurisprudence, which holds that the reliability of statements obtained through forensic interviews is not presumed but must instead be established through a holistic assessment of the totality of the circumstances.” The court found that the trial court rigorously applied “this standard, taking into account relevant factors articulated in” Archer. It saw no basis for concluding “the trial court abused its discretion in determining that the requisite indicia of reliability were lacking under the totality of the circumstances.” Affirmed.

Removal; Preliminary placement under MCL 712A.13a(9) & MCR 3.965(C)(2); In re Benavides; Adjudication; Jurisdiction under MCL 712A.2(b)(2); In re Sanders; Hearsay & opposing-party statements under MRE 801(c), 801(d)(2)(A), & 803(4); People v LaLone

The court held that the trial court properly exercised jurisdiction over the child (MT) with respect to respondent-father, but it also held that removal from the father’s care had to be reversed because the trial court failed to make the statutorily required findings on each factor governing preliminary removal. The petition’s allegations as to the father concerned domestic violence. The trial court both authorized the petition and removed MT from the father’s care. On appeal, the court first held that the removal order could not stand because, although the trial court addressed some of the statutory factors, it “does not appear to have considered any alternatives short of removal” under MCL 712A.13a(9)(b), and the record on subsection (e) was too ambiguous to permit “meaningful appellate review.” The court stressed that “the trial court is required to make specific factual findings for each of the factors listed under MCL 712A.13a(9) before removing a child from custody,” making the failure to address subsection (b) “dispositive.” The court next held that jurisdiction was nonetheless proper under MCL 712A.2(b)(2) because, even excluding hearsay statements attributed to respondent-mother, her live testimony established that the father had been abusing her “on a regular basis for the last two years,” and that on one occasion MT “was an incidental victim of the physical violence” when struck by a bottle thrown by the father. Giving deference to the trial court’s credibility findings, the court concluded that it did not clearly err in finding jurisdiction by a preponderance of the evidence. Affirmed in part, reversed in part, and remanded.