Tax foreclosure; Notice; Due process; Sidun v Wayne Cnty Treasurer; The General Property Tax Act (GPTA); MCL 211.78i(1)-(6); Motion for relief from judgment; Jurisdiction to modify a judgment of foreclosure; MCL 211.78k

The court held that plaintiff-Treasurer’s notice attempts satisfied due process, that MCL 211.78k’s plain language controlled, and that the trial court properly found that it did not have jurisdiction to modify or vacate the foreclosure judgment. Thus, the court affirmed summary disposition for plaintiff. Defendant-property owner (Cook) contended that “the Treasurer’s efforts to notify her of the tax foreclosure proceedings were insufficient to satisfy due process.” But the court concluded that, in addition to satisfying the GPTA’s notice provisions, the Treasurer’s notice attempts “were reasonably calculated to apprise Cook of the action and provide her with a chance to present any objections.” The record showed that the Treasurer mailed her “notice of the pending foreclosure proceedings by certified mail and first-class mail to the postal addresses shown on” a 2020 quitclaim deed, including her home address. The certified mail notice was sent on 12/4/23, and the first-class mail notice was sent a month later. Further, notice was “‘placed in a conspicuous manner on the’” property after a personal visit, and twice published in the Detroit Legal News. While Cook asserted that the certified mail did not reach her home, there was no evidence suggesting it “was returned as unclaimed to the Treasurer, so the Treasurer was not required to make additional reasonable steps to provide notice.” The court added that, even if it “were to assume the mailed notice was not delivered for some unexplained reason, due process did not require that Cook receive actual notice. Regardless, the notice was also sent by first-class mail, and there is a presumption that a document that is properly addressed and placed in the mail will reach its destination.” As to her claim that the personal visit notice was insufficient, the affidavit of the person who made the “visit indicated that the property was occupied and Cook averred in her own affidavit that it was occupied by her ‘family member.’ Under these circumstances, notice posted conspicuously on an occupied property appears reasonably calculated to provide notice to the owner.” While Cook asserted “the trial court treated statutory compliance as dispositive, the record” showed that she “was provided with notice that was reasonably calculated to inform her of the foreclosure proceedings.”

Municipal stormwater charges; Headlee Amendment, Const 1963, art 9, § 31; User fee or tax; Bolt v Lansing; Regulatory purpose; Proportionality; Voluntariness; Presumptions of constitutionality & reasonableness; Comprehensive rate study; Dry weather inflow & infiltration (DWII); Readiness-to-serve charge; Industrial waste control charge; Summary disposition; Motion to strike experts; Discovery sanctions; Dean v Tucker; Great Lakes Water Authority (GLWA)

The court held that plaintiffs failed to create a fact question as to whether defendant-city’s stormwater charge was an unconstitutional tax or unreasonable utility fee, and failed to rebut the presumption of reasonableness governing the readiness-to-serve and industrial waste control charges, but that the trial court did not abuse its discretion by refusing to strike plaintiffs’ experts. Plaintiffs-commercial property owners challenged the city’s stormwater charges under the Headlee Amendment and other theories. On appeal, the court first concluded that whether the stormwater charge constituted a tax or user fee was a question of law, not one for the jury. Applying Bolt, it determined that plaintiffs failed to overcome the presumptions of constitutionality and reasonableness. As to regulatory purpose, their expert analysis did not constitute “‘a comprehensive rate study—or some similar evidence demonstrating that the disputed rates excessively compensated the [city] for the related utility services’” and instead depended on assumptions and extrapolation. Their challenge to inclusion of DWII costs failed for the same reason because they produced no study establishing the city’s actual direct and indirect costs. As to proportionality, without a comprehensive rate study, plaintiffs’ claims concerning GLWA charges and DWII costs were “speculative and cannot defeat the presumption of reasonableness.” The city’s failure to charge itself for its own roads also did not overcome the presumption, and plaintiffs received a particularized benefit because properties with greater impervious acreage “burden the system more and receive a greater benefit from the removal of more stormwater runoff.” Although the charge was effectively involuntary, “‘the lack of volition does not render a charge a tax’” where the other Bolt factors strongly indicate a fee. Plaintiffs’ experts likewise failed to overcome the general presumption that the stormwater rates were reasonable because their analysis “cannot substitute for a comprehensive rate study that takes into account the city’s actual direct and indirect costs.” The same evidentiary deficiency applied to the readiness-to-serve and industrial waste control charges. But the trial court permissibly declined to strike plaintiffs’ experts because their late disclosures were justified by the city’s own delayed production of methodology documents. Affirmed in part, reversed in part, and remanded.

Real estate purchase agreement; Breach of contract; Settlement negotiations; MRE 408; “Undue delay” exception; Outcome-determinative evidentiary error; Anticipatory repudiation; Van Buren Charter Twp v Visteon Corp; Jury instructions; M Civ JI 140.15; Substantial prejudice

The court held that the trial court reversibly erred by admitting evidence of the parties’ post-suit settlement negotiations under MRE 408 and by refusing to instruct the jury on anticipatory repudiation. Plaintiffs agreed to purchase defendant’s home for $1.275 million with closing scheduled for 1/21. The sale did not close, plaintiffs sued for breach and specific performance, and the parties later engaged in unsuccessful settlement negotiations that contemplated a possible 3/21 closing. At trial, defendant relied on those negotiations to support his counterclaim that plaintiffs breached by refusing to close in March, and the jury found defendant did not breach but plaintiffs did. On appeal, the court held that MRE 408’s “undue delay” exception did not permit the settlement evidence. Plaintiffs’ theory “was simply that defendant had disavowed the contract and refused to perform,” not that he had unduly delayed performance. Defendant instead used the negotiations to establish plaintiffs’ liability, which was “precisely the use of settlement negotiations that MRE 408(a) prohibits: to ‘prove or disprove the liability for . . . a disputed claim.’” The error was outcome determinative because defendant’s counterclaim theory depended on the settlement evidence, the evidence featured prominently at trial, and the jury specifically asked about later “addendums affecting the closing date.” The court also concluded plaintiffs were entitled to an anticipatory-repudiation instruction. They presented evidence that before the contractual closing date defendant repeatedly represented that the agreement was unenforceable, that he could not convey clear title, and that he would proceed only under different terms and timing. That evidence “reflected affirmative, unequivocal representations to plaintiffs that defendant would not perform his obligations,” potentially excusing plaintiffs from further performance. Because jury instructions “‘should not omit material issues, defenses, or theories if the evidence supports them,’” refusing the instruction was error. The omission was prejudicial because anticipatory repudiation provided plaintiffs “both a sword” on their breach claim “and a shield” against defendant’s counterclaim. The court vacated the liability and damages judgments and remanded.

Sentencing; Scoring of OVs 3 & 17; MCL 777.33(1)(c); People v Houston; MCL 777.47(1)(a) & (b); “Wanton or reckless disregard”; People v Fredell

Holding that the trial court did not err in scoring 25 points for OV 3 and 10 points for OV 17, the court affirmed. Defendant was convicted of involuntary manslaughter, first-degree fleeing and eluding a police officer resulting in death of another individual, and reckless driving causing death. He was sentenced as a fourth-offense habitual offender to 13 to 30 years for involuntary manslaughter and for reckless driving, and 17 to 30 years for fleeing and eluding, all to be served concurrently. The appellate brief filed by his counsel challenged the scoring of OVs 3, 5, 12, and 17. Only the challenge to the 10-point score for OV 17 was preserved. He contended that it should have instead been scored at 5 points, arguing that “because he was acquitted of second-degree murder and convicted of involuntary manslaughter, the trial court impermissibly ‘label[ed his] conduct as wanton and willful’ and” impermissibly relied on acquitted conduct. But in scoring OV 17, the trial court never found his “conduct to be ‘willful’ or purported to label it as such. Rather, the trial court scored OV 17 based on the jury’s determination that defendant was grossly negligent—a necessary element of [his] involuntary-manslaughter conviction given the prosecution’s theory of the case. The trial court’s finding in this regard was fully consistent with the ‘wanton or reckless disregard’ standard of conduct required for a 10-point score under OV 17.” Defendant did not offer any “authority to suggest otherwise.” As to his unpreserved challenge to the 25-point score for OV 3, he argued that Houston was wrongly decided. But that decision, which he acknowledged foreclosed his claim, is binding Michigan Supreme Court precedent that the court must follow. The court did not have to reach the merits of his challenges to OVs 5 and 12 “because removal of the 20 points assessed for” them from his “total OV score would not alter his sentencing guidelines range and thus would not entitle him to resentencing.”

Medical malpractice; Administrative negligence; Wrongful Death Act (WDA); MCL 600.2922(6); Lost earning capacity; Loss of financial support; Daher v Prime Healthcare Servs-Garden City, LLC; Jury instructions; M Civ JI 12.01; Public Health Code (PHC); MCL 333.20201(1)(e); MCL 333.21513(a); Statutory violation as inference of negligence; Klanseck v Anderson Sales & Serv, Inc; Corporate-designee discovery; MCR 2.306(B)(3); Discovery sanctions; MCR 2.313(B)(2); Substitution of corporate designee

The court held that the challenged wrongful-death damages were recoverable as loss of financial support, the jury was properly instructed that violations of applicable PHC provisions could support an inference of negligence, and the trial court did not abuse its discretion in its discovery rulings or sanctions against defendant-hospital. Plaintiff’s decedent died after developing septic shock following abdominal surgery. The jury found both the surgeon and hospital negligent, with the hospital’s liability based on direct administrative negligence for failing to implement and enforce its chain-of-command policies. On appeal, the hospital first argued under Daher that the $4.3 million award labeled lost earning capacity was unavailable under the WDA. The court agreed that “lost-earning-capacity damages that are not for financial support are impermissible post-Daher,” but emphasized that “damages for loss of financial support remain recoverable.” The record showed plaintiff repeatedly sought compensation for the financial support the decedent would have provided her children. Thus, “there is . . . no basis upon which to vacate the damages award, which is supported by the record and not prohibited . . . as a matter of law.” The court next upheld M Civ JI 12.01. MCL 333.21513 and MCL 333.20201(1)(e) were intended to protect patients such as the decedent, she fell within the protected class, and expert testimony supported proximate causation. Thus, “all three requirements stated in Klanseck are applicable,” and instructing that statutory violations could permit an inference of negligence was proper. As to discovery, plaintiff’s notice seeking information about timely, safe patient care and supervision was sufficiently particular because the complaint specifically identified the hospital’s alleged failure to implement and enforce chain-of-command policies. The document request “clearly encompassed the chain-of-command policies” and the trial court properly sanctioned the hospital after more than a year of noncompliance, while rejecting the harsher sanction of default. Finally, it did not abuse its discretion by refusing to substitute a new corporate designee after the original designee professed ignorance of any chain-of-command policies. A corporate designee’s testimony represents the corporation’s knowledge, and allowing a new designee to provide new answers could permit impermissible “‘sandbagging.’” Affirmed.

Uninsured motorist (UM) benefits; Policy interpretation; Comparing Duato v Mellon; “Available for regular use”

The court held that plaintiff-insured (Bellestri) was not entitled to UM benefits under his personal vehicle policy with defendant-insurer (Memberselect) for an accident that occurred while he was driving his work vehicle (a Tahoe) because it was “furnished or available for [his] regular use,” and thus, it was not covered under the policy. As a result, the court reversed the trial court’s order denying Memberselect summary disposition and remanded for entry of summary disposition in its favor. The court found that the policy language here was similar to that it interpreted in Duato. Neither policy defined “the phrase ‘available for regular use.’ But, relying on the dictionary definition of the phrase” set forth in Duato, the court found it was “clear that the Tahoe was available to Bellestri for regular use. The Tahoe was ‘present or ready for immediate use, accessible, and obtainable,’ to Bellestri because he kept the keys and stored the vehicle in his home garage.” He used it “because he was in the practice of working from the Tahoe for every shift.” His job duties required its use, and his use of it “was regular because it was orderly, methodical, and recurred at normal intervals when he used it to drive to and from every work shift, in addition to working from the Tahoe for the duration of his daily shifts.” The court agreed “that the Tahoe was not available to Bellestri for personal or unfettered use. He was only permitted to use [it] for work purposes. Yet, that fact is not relevant because the policy excluded use of vehicles ‘available for regular use,’ not vehicles for which Bellestri had unlimited or unfettered use. The policy contemplated an exclusion for vehicles ‘owned by or furnished or available for regular use . . . .’”

Statutory & common-law conversion; Necessary joinder; MCR 2.205(A); Preservation; Raise-or-waive rule; Great weight of the evidence; Jury verdict form; Waiver; U.S. Small Business Administration (SBA)

The court held that defendant was not entitled to relief on his claim that the SBA was a necessary party or on his challenges to the jury’s conversion verdict. Defendant and plaintiff-Kattan were former business partners in plaintiff-A1 Signs. After defendant divested his interest in the company, his name remained on its bank account. He later withdrew funds from the account, which contained federal loan proceeds, and plaintiffs sued. The jury found for A1 Signs on statutory and common-law conversion and awarded damages. On appeal, defendant argued that the SBA was a necessary party under MCR 2.205(A) because it held a security interest in proceeds recovered from commercial tort claims. The court declined to consider the argument because he raised that specific joinder theory for the first time on appeal. It emphasized that “a party ‘may not remain silent in the trial court and then hope to obtain appellate relief on an issue that [he or she] did not call to the trial court’s attention.’” Although defendant had previously asserted that the SBA possessed a security interest and asked the trial court to notify it of the litigation, he did not argue necessary joinder. An objection on one ground “‘is insufficient to preserve appellate attack on different grounds,’” and no exceptional circumstances warranted review. The court similarly declined to review defendant’s argument that his status as a joint account holder defeated the conversion claims because he did not preserve a great-weight challenge by moving for a new trial. Finally, to the extent he challenged an award of conversion damages to Kattan individually, defendant expressly agreed to the verdict form and therefore waived the claim. In any event, “the jury found that Kattan did not sustain damages as a result of defendant’s conversion of the funds” and awarded the conversion damages only to A1 Signs. Affirmed.

Medical malpractice; Administrative negligence; Wrongful Death Act (WDA); MCL 600.2922(6); Lost earning capacity; Loss of financial support; Daher v Prime Healthcare Servs-Garden City, LLC; Jury instructions; M Civ JI 12.01; Public Health Code (PHC); MCL 333.20201(1)(e); MCL 333.21513(a); Statutory violation as inference of negligence; Klanseck v Anderson Sales & Serv, Inc; Corporate-designee discovery; MCR 2.306(B)(3); Discovery sanctions; MCR 2.313(B)(2); Substitution of corporate designee

The court held that the challenged wrongful-death damages were recoverable as loss of financial support, the jury was properly instructed that violations of applicable PHC provisions could support an inference of negligence, and the trial court did not abuse its discretion in its discovery rulings or sanctions against defendant-hospital. Plaintiff’s decedent died after developing septic shock following abdominal surgery. The jury found both the surgeon and hospital negligent, with the hospital’s liability based on direct administrative negligence for failing to implement and enforce its chain-of-command policies. On appeal, the hospital first argued under Daher that the $4.3 million award labeled lost earning capacity was unavailable under the WDA. The court agreed that “lost-earning-capacity damages that are not for financial support are impermissible post-Daher,” but emphasized that “damages for loss of financial support remain recoverable.” The record showed plaintiff repeatedly sought compensation for the financial support the decedent would have provided her children. Thus, “there is . . . no basis upon which to vacate the damages award, which is supported by the record and not prohibited . . . as a matter of law.” The court next upheld M Civ JI 12.01. MCL 333.21513 and MCL 333.20201(1)(e) were intended to protect patients such as the decedent, she fell within the protected class, and expert testimony supported proximate causation. Thus, “all three requirements stated in Klanseck are applicable,” and instructing that statutory violations could permit an inference of negligence was proper. As to discovery, plaintiff’s notice seeking information about timely, safe patient care and supervision was sufficiently particular because the complaint specifically identified the hospital’s alleged failure to implement and enforce chain-of-command policies. The document request “clearly encompassed the chain-of-command policies” and the trial court properly sanctioned the hospital after more than a year of noncompliance, while rejecting the harsher sanction of default. Finally, it did not abuse its discretion by refusing to substitute a new corporate designee after the original designee professed ignorance of any chain-of-command policies. A corporate designee’s testimony represents the corporation’s knowledge, and allowing a new designee to provide new answers could permit impermissible “‘sandbagging.’” Affirmed.

Municipal stormwater charges; Headlee Amendment, Const 1963, art 9, § 31; User fee or tax; Bolt v Lansing; Regulatory purpose; Proportionality; Voluntariness; Presumptions of constitutionality & reasonableness; Comprehensive rate study; Dry weather inflow & infiltration (DWII); Readiness-to-serve charge; Industrial waste control charge; Summary disposition; Motion to strike experts; Discovery sanctions; Dean v Tucker; Great Lakes Water Authority (GLWA)

The court held that plaintiffs failed to create a fact question as to whether defendant-city’s stormwater charge was an unconstitutional tax or unreasonable utility fee, and failed to rebut the presumption of reasonableness governing the readiness-to-serve and industrial waste control charges, but that the trial court did not abuse its discretion by refusing to strike plaintiffs’ experts. Plaintiffs-commercial property owners challenged the city’s stormwater charges under the Headlee Amendment and other theories. On appeal, the court first concluded that whether the stormwater charge constituted a tax or user fee was a question of law, not one for the jury. Applying Bolt, it determined that plaintiffs failed to overcome the presumptions of constitutionality and reasonableness. As to regulatory purpose, their expert analysis did not constitute “‘a comprehensive rate study—or some similar evidence demonstrating that the disputed rates excessively compensated the [city] for the related utility services’” and instead depended on assumptions and extrapolation. Their challenge to inclusion of DWII costs failed for the same reason because they produced no study establishing the city’s actual direct and indirect costs. As to proportionality, without a comprehensive rate study, plaintiffs’ claims concerning GLWA charges and DWII costs were “speculative and cannot defeat the presumption of reasonableness.” The city’s failure to charge itself for its own roads also did not overcome the presumption, and plaintiffs received a particularized benefit because properties with greater impervious acreage “burden the system more and receive a greater benefit from the removal of more stormwater runoff.” Although the charge was effectively involuntary, “‘the lack of volition does not render a charge a tax’” where the other Bolt factors strongly indicate a fee. Plaintiffs’ experts likewise failed to overcome the general presumption that the stormwater rates were reasonable because their analysis “cannot substitute for a comprehensive rate study that takes into account the city’s actual direct and indirect costs.” The same evidentiary deficiency applied to the readiness-to-serve and industrial waste control charges. But the trial court permissibly declined to strike plaintiffs’ experts because their late disclosures were justified by the city’s own delayed production of methodology documents. Affirmed in part, reversed in part, and remanded.

Statutory & common-law conversion; Necessary joinder; MCR 2.205(A); Preservation; Raise-or-waive rule; Great weight of the evidence; Jury verdict form; Waiver; U.S. Small Business Administration (SBA)

The court held that defendant was not entitled to relief on his claim that the SBA was a necessary party or on his challenges to the jury’s conversion verdict. Defendant and plaintiff-Kattan were former business partners in plaintiff-A1 Signs. After defendant divested his interest in the company, his name remained on its bank account. He later withdrew funds from the account, which contained federal loan proceeds, and plaintiffs sued. The jury found for A1 Signs on statutory and common-law conversion and awarded damages. On appeal, defendant argued that the SBA was a necessary party under MCR 2.205(A) because it held a security interest in proceeds recovered from commercial tort claims. The court declined to consider the argument because he raised that specific joinder theory for the first time on appeal. It emphasized that “a party ‘may not remain silent in the trial court and then hope to obtain appellate relief on an issue that [he or she] did not call to the trial court’s attention.’” Although defendant had previously asserted that the SBA possessed a security interest and asked the trial court to notify it of the litigation, he did not argue necessary joinder. An objection on one ground “‘is insufficient to preserve appellate attack on different grounds,’” and no exceptional circumstances warranted review. The court similarly declined to review defendant’s argument that his status as a joint account holder defeated the conversion claims because he did not preserve a great-weight challenge by moving for a new trial. Finally, to the extent he challenged an award of conversion damages to Kattan individually, defendant expressly agreed to the verdict form and therefore waived the claim. In any event, “the jury found that Kattan did not sustain damages as a result of defendant’s conversion of the funds” and awarded the conversion damages only to A1 Signs. Affirmed.

School bus-student accident; Governmental immunity; Employee immunity; Gross negligence exception (MCL 691.1407(2)(c)); Beals v Michigan; M Civ JI 10.07 (Conduct Required for Safety of Child); Proximate cause; Ray v Swager; Motor vehicle exception (MCL 691.1405); MCL 257.648(1) (duty to ensure that a turn can be executed safely before turning); Percentage of fault; MCL 500.3135(2)(b); MCL 600.2959; Lower standard of care for minors; Significance of the student being 7 years old

The court held that factual disputes existed as to whether the gross negligence and motor vehicle exceptions to governmental immunity applied, and that the trial court erred in concluding as a matter of law that defendant-school bus driver (McPharlin) was not the proximate cause of a student’s (ABC) injuries. Thus, it reversed summary disposition for McPharlin and defendant-school district, and remanded. Plaintiffs, ABC’s parents, filed this action after he was struck by McPharlin’s bus while riding his bicycle alongside it after he got off the bus. As to governmental immunity for McPharlin, the court reviewed MCL 691.1407(2)(c) and concluded that the record showed a factual dispute as to whether she “acted with gross negligence.” Based on her statements at the accident scene, she “observed ABC on his bike at some point as she continued on her route after dropping him off. She also remarked that he must have thought she was going to continue driving straight on Harding Avenue, as she normally did, instead of turning left on Schippell Street. She testified that she checked her mirrors before she turned and did not see ABC on his bike, but plaintiffs submitted an affidavit from their traffic crash reconstruction expert . . . stating that McPharlin would have been able to see ABC in the roadway if she had used her mirrors.” Citing M Civ JI 10.07, the court noted that because she “was aware that ABC was riding his bicycle in the area, and was following the bus, she was required to be vigilant about him.” It further determined that “a reasonable jury could conclude that McPharlin’s conduct was the proximate cause of ABC’s injuries.” As to the school district and the MCL 691.1405 exception, “under MCL 257.648(1), McPharlin had a duty to ensure that she could execute her turn safely before she turned the bus.” And a reasonable fact-finder could find that she “breached her duty to determine whether she could safely turn the bus.” Finally, the court held that “the trial court erred by determining that a reasonable jury could not conclude that McPharlin was more at fault than ABC in causing his injuries.” It noted that because “ABC was seven years old when the accident occurred, he was on the ‘dividing line’ in Michigan regarding his possible negligence.”

Ex parte PPO; MCL 600.2950(12); Immediate & irreparable injury; MCR 3.704(G); Motion to terminate PPO; Procedural due process; MCR 3.703(D); Existing custody & parenting-time orders; Stalking; Legitimate purpose

The court held that the circuit court abused its discretion by issuing the ex parte PPO because petitioner failed to establish the immediate and irreparable harm required for ex parte relief, and that respondent was denied procedural due process at the hearing on his motion to terminate the PPO. The parties share a child and had been involved in contentious custody proceedings in Michigan and Arizona. An Arizona court entered an enforceable custody and parenting-time order directing respondent, who lived in Arizona, to retrieve the child from petitioner in Michigan. Petitioner later obtained the Michigan ex parte PPO based largely on allegations of stalking and harassment arising from respondent’s efforts to exercise parenting time. On appeal, the court agreed that the petition’s allegations, viewed alone, established reasonable cause to believe respondent might commit an act prohibited by MCL 600.2950(1). But they did not satisfy the additional requirements for ex parte relief because “most of the allegations were too stale to support a finding of immediate harm.” Respondent lived in Arizona, most unwanted contacts occurred by e-mail, and petitioner did not allege recent physical harm or direct contact. Thus, petitioner failed to show that “‘danger [was] imminent and that [a] delay to notify the respondent [would be] intolerable or in itself dangerous.’” The court further concluded that the circuit court denied respondent due process at the termination hearing by refusing to consider the existing custody orders. It stressed that “a court issuing a PPO cannot simply disregard an existing custody or parenting time order.” The excluded evidence was central to respondent’s contention that his communications and appearances at petitioner’s residence served the legitimate purpose of enforcing parenting time, and it also bore directly on petitioner’s credibility. As a result, “respondent was effectively unable to be heard in a meaningful manner because the circuit court refused to consider pivotal evidence.” The court declined to address his unpreserved res judicata argument. Reversed and remanded for entry of an order terminating the PPO.

Real estate purchase agreement; Breach of contract; Settlement negotiations; MRE 408; “Undue delay” exception; Outcome-determinative evidentiary error; Anticipatory repudiation; Van Buren Charter Twp v Visteon Corp; Jury instructions; M Civ JI 140.15; Substantial prejudice

The court held that the trial court reversibly erred by admitting evidence of the parties’ post-suit settlement negotiations under MRE 408 and by refusing to instruct the jury on anticipatory repudiation. Plaintiffs agreed to purchase defendant’s home for $1.275 million with closing scheduled for 1/21. The sale did not close, plaintiffs sued for breach and specific performance, and the parties later engaged in unsuccessful settlement negotiations that contemplated a possible 3/21 closing. At trial, defendant relied on those negotiations to support his counterclaim that plaintiffs breached by refusing to close in March, and the jury found defendant did not breach but plaintiffs did. On appeal, the court held that MRE 408’s “undue delay” exception did not permit the settlement evidence. Plaintiffs’ theory “was simply that defendant had disavowed the contract and refused to perform,” not that he had unduly delayed performance. Defendant instead used the negotiations to establish plaintiffs’ liability, which was “precisely the use of settlement negotiations that MRE 408(a) prohibits: to ‘prove or disprove the liability for . . . a disputed claim.’” The error was outcome determinative because defendant’s counterclaim theory depended on the settlement evidence, the evidence featured prominently at trial, and the jury specifically asked about later “addendums affecting the closing date.” The court also concluded plaintiffs were entitled to an anticipatory-repudiation instruction. They presented evidence that before the contractual closing date defendant repeatedly represented that the agreement was unenforceable, that he could not convey clear title, and that he would proceed only under different terms and timing. That evidence “reflected affirmative, unequivocal representations to plaintiffs that defendant would not perform his obligations,” potentially excusing plaintiffs from further performance. Because jury instructions “‘should not omit material issues, defenses, or theories if the evidence supports them,’” refusing the instruction was error. The omission was prejudicial because anticipatory repudiation provided plaintiffs “both a sword” on their breach claim “and a shield” against defendant’s counterclaim. The court vacated the liability and damages judgments and remanded.

School bus-student accident; Governmental immunity; Employee immunity; Gross negligence exception (MCL 691.1407(2)(c)); Beals v Michigan; M Civ JI 10.07 (Conduct Required for Safety of Child); Proximate cause; Ray v Swager; Motor vehicle exception (MCL 691.1405); MCL 257.648(1) (duty to ensure that a turn can be executed safely before turning); Percentage of fault; MCL 500.3135(2)(b); MCL 600.2959; Lower standard of care for minors; Significance of the student being 7 years old

The court held that factual disputes existed as to whether the gross negligence and motor vehicle exceptions to governmental immunity applied, and that the trial court erred in concluding as a matter of law that defendant-school bus driver (McPharlin) was not the proximate cause of a student’s (ABC) injuries. Thus, it reversed summary disposition for McPharlin and defendant-school district, and remanded. Plaintiffs, ABC’s parents, filed this action after he was struck by McPharlin’s bus while riding his bicycle alongside it after he got off the bus. As to governmental immunity for McPharlin, the court reviewed MCL 691.1407(2)(c) and concluded that the record showed a factual dispute as to whether she “acted with gross negligence.” Based on her statements at the accident scene, she “observed ABC on his bike at some point as she continued on her route after dropping him off. She also remarked that he must have thought she was going to continue driving straight on Harding Avenue, as she normally did, instead of turning left on Schippell Street. She testified that she checked her mirrors before she turned and did not see ABC on his bike, but plaintiffs submitted an affidavit from their traffic crash reconstruction expert . . . stating that McPharlin would have been able to see ABC in the roadway if she had used her mirrors.” Citing M Civ JI 10.07, the court noted that because she “was aware that ABC was riding his bicycle in the area, and was following the bus, she was required to be vigilant about him.” It further determined that “a reasonable jury could conclude that McPharlin’s conduct was the proximate cause of ABC’s injuries.” As to the school district and the MCL 691.1405 exception, “under MCL 257.648(1), McPharlin had a duty to ensure that she could execute her turn safely before she turned the bus.” And a reasonable fact-finder could find that she “breached her duty to determine whether she could safely turn the bus.” Finally, the court held that “the trial court erred by determining that a reasonable jury could not conclude that McPharlin was more at fault than ABC in causing his injuries.” It noted that because “ABC was seven years old when the accident occurred, he was on the ‘dividing line’ in Michigan regarding his possible negligence.”

Tax foreclosure; Notice; Due process; Sidun v Wayne Cnty Treasurer; The General Property Tax Act (GPTA); MCL 211.78i(1)-(6); Motion for relief from judgment; Jurisdiction to modify a judgment of foreclosure; MCL 211.78k

The court held that plaintiff-Treasurer’s notice attempts satisfied due process, that MCL 211.78k’s plain language controlled, and that the trial court properly found that it did not have jurisdiction to modify or vacate the foreclosure judgment. Thus, the court affirmed summary disposition for plaintiff. Defendant-property owner (Cook) contended that “the Treasurer’s efforts to notify her of the tax foreclosure proceedings were insufficient to satisfy due process.” But the court concluded that, in addition to satisfying the GPTA’s notice provisions, the Treasurer’s notice attempts “were reasonably calculated to apprise Cook of the action and provide her with a chance to present any objections.” The record showed that the Treasurer mailed her “notice of the pending foreclosure proceedings by certified mail and first-class mail to the postal addresses shown on” a 2020 quitclaim deed, including her home address. The certified mail notice was sent on 12/4/23, and the first-class mail notice was sent a month later. Further, notice was “‘placed in a conspicuous manner on the’” property after a personal visit, and twice published in the Detroit Legal News. While Cook asserted that the certified mail did not reach her home, there was no evidence suggesting it “was returned as unclaimed to the Treasurer, so the Treasurer was not required to make additional reasonable steps to provide notice.” The court added that, even if it “were to assume the mailed notice was not delivered for some unexplained reason, due process did not require that Cook receive actual notice. Regardless, the notice was also sent by first-class mail, and there is a presumption that a document that is properly addressed and placed in the mail will reach its destination.” As to her claim that the personal visit notice was insufficient, the affidavit of the person who made the “visit indicated that the property was occupied and Cook averred in her own affidavit that it was occupied by her ‘family member.’ Under these circumstances, notice posted conspicuously on an occupied property appears reasonably calculated to provide notice to the owner.” While Cook asserted “the trial court treated statutory compliance as dispositive, the record” showed that she “was provided with notice that was reasonably calculated to inform her of the foreclosure proceedings.”

Child’s best interests; In re Atchley

Holding that the trial court did not clearly err in finding that terminating respondents-parents’ parental rights to the child (LC) was in his best interests, the court affirmed the termination order. While they highlighted “testimony suggesting that they had a strong bond, there was also evidence that they were inattentive during parenting times and that the bond between LC and respondents was more like the bond between a babysitter and a child rather than a parent and a child. Thus, the trial court did not clearly err by finding that the bond . . . was limited. Likewise, because there was evidence that LC was thriving in his foster placement and was strongly bonded to his foster family, the [trial] court’s finding that there was a significant bond between LC and his foster parents was not clearly erroneous.” As to their parenting ability, although the trial court did not make any express findings on the matter, the record reflected “that there were ongoing issues related to their parenting ability. Respondents did not complete parenting classes, psychological evaluations, sign releases for their medications, or attend LC’s medical appointments.” In addition, they “frequently arrived late to parenting-time visits and there were indications that they were abusing substances prior to the visits. Given this record, respondents[’] parenting ability did not weigh against a finding that” terminating their rights was in LC’s best interests. The court next concluded that the trial court’s findings that “LC needed stability, permanence, and finality[,]” and that his foster family could provide stability and permanence, were supported by the termination hearing testimony. The foster parents were willing to adopt him, and he was placed with his biological siblings. The court also held that, considering the whole record, the trial court did not clearly err in “finding that the foster placement was more advantageous” than respondents’ home. The trial court concluded “there was a reasonable likelihood that LC would be physically abused or neglected if returned to” their care.