Excessive force Fourth Amendment violation claim under 42 USC § 1983; Qualified immunity; Whether defendants' use of force violated a “clearly established right”

[This appeal was from the WD-MI.] The court held that defendants-police officers were entitled to qualified immunity because plaintiff-Dannah failed to show they violated a clearly established right. The police stopped a vehicle for a traffic infraction and requested that Dannah (the passenger) and his girlfriend (the driver) exit the vehicle. As an officer tried to complete a pat down, “Dannah twisted away and started to run.” He was tackled and handcuffed. He sued under § 1983 alleging that the police search and seizure, and the use of “excessive force,” violated the Fourth Amendment. The district court denied the officers qualified immunity on the excessive-force claim. On appeal, the court held that there was no “clearly established right that prevented the officers from using force to rein in Dannah’s ‘volitional and conscious defiance’ during the frisk.” He had been noncompliant “from the start. When the officers pulled Dannah aside to conduct a frisk, he ‘kept placing his hands down by his waistband’ even after repeated commands to place his hands on his head.” A physical struggle then occurred when he broke away from an officer “and tried to run away. Dannah’s active, physical resistance and potential threat ‘permit[ted] increasing exercises of force . . . to subdue [him].’ Officers hit and grabbed him only while ‘attempt[ing] to restrain’ him as he flailed and kept his hands out of reach.” The court noted once he “was handcuffed and no longer a threat, the physical force ended.” It concluded that no case law clearly established “that this amount of force entered the forbidden territory of excessiveness, much less in an ‘obvious’ way.” It found that the “punches and yanking in this instance present no greater physical imposition than a typical tasing, which we have permitted in similar circumstances. Given an unalleviated concern about a weapon and given Dannah’s continued physical resistance, the officers’ choice to apply physical force until they could handcuff [him] did not cross any clearly established lines.” The fact that they did not uncover drugs or a weapon did not support his proposed inference “that they never should have frisked him in the first instance.” What mattered was “whether a reasonable officer in this situation would have had a legitimate reason to conduct this frisk and to take the subsequent actions these officers did to protect their safety.” Reversed.

Excessive force Fourth Amendment violation claim under 42 USC § 1983; Qualified immunity; Whether defendants' use of force violated a “clearly established right”

[This appeal was from the WD-MI.] The court held that defendants-police officers were entitled to qualified immunity because plaintiff-Dannah failed to show they violated a clearly established right. The police stopped a vehicle for a traffic infraction and requested that Dannah (the passenger) and his girlfriend (the driver) exit the vehicle. As an officer tried to complete a pat down, “Dannah twisted away and started to run.” He was tackled and handcuffed. He sued under § 1983 alleging that the police search and seizure, and the use of “excessive force,” violated the Fourth Amendment. The district court denied the officers qualified immunity on the excessive-force claim. On appeal, the court held that there was no “clearly established right that prevented the officers from using force to rein in Dannah’s ‘volitional and conscious defiance’ during the frisk.” He had been noncompliant “from the start. When the officers pulled Dannah aside to conduct a frisk, he ‘kept placing his hands down by his waistband’ even after repeated commands to place his hands on his head.” A physical struggle then occurred when he broke away from an officer “and tried to run away. Dannah’s active, physical resistance and potential threat ‘permit[ted] increasing exercises of force . . . to subdue [him].’ Officers hit and grabbed him only while ‘attempt[ing] to restrain’ him as he flailed and kept his hands out of reach.” The court noted once he “was handcuffed and no longer a threat, the physical force ended.” It concluded that no case law clearly established “that this amount of force entered the forbidden territory of excessiveness, much less in an ‘obvious’ way.” It found that the “punches and yanking in this instance present no greater physical imposition than a typical tasing, which we have permitted in similar circumstances. Given an unalleviated concern about a weapon and given Dannah’s continued physical resistance, the officers’ choice to apply physical force until they could handcuff [him] did not cross any clearly established lines.” The fact that they did not uncover drugs or a weapon did not support his proposed inference “that they never should have frisked him in the first instance.” What mattered was “whether a reasonable officer in this situation would have had a legitimate reason to conduct this frisk and to take the subsequent actions these officers did to protect their safety.” Reversed.

Settlement agreement; Enforcement; MCR 2.507(G); Dabish v Gayar; Change of heart; Vittiglio v Vittiglio; Mootness; Garrett v Washington; Aggrieved party; 1373 Moulin, LLC v Wolf

The court held that the trial court did not abuse its discretion by enforcing plaintiff-Jones’s settlement agreement with defendants because the material terms were placed on the record in open court and the agreement was binding under MCR 2.507(G). Jones was a top-floor cooperative resident who, along with the other plaintiffs, withheld monthly carrying charges after water leaks damaged their units. The parties later reached a settlement involving dismissal of circuit and district court cases, renovation payments, sale coordination, waiver of past-due carrying charges, and cooperative-board approval. On appeal, the court first held that the settlement was enforceable because, at the settlement hearing, the trial court “reviewed each material provision of the parties’ agreement in open court,” asked Jones whether he agreed to each provision, and he “affirmed his agreement.” Although defendants later tried to add dismissal of his separate civil-rights case as a condition, they ultimately removed that term, and the only stated contingency, board approval, was satisfied. The court rejected his argument that he could withdraw his consent because the agreement was “a binding settlement, not an offer that Jones could withdraw.” It reasoned that “‘settlement agreements should not normally be set aside,’” and under Vittiglio, “[a] change of heart” is not enough to disavow an otherwise valid settlement. The court also held that Jones’s remaining claims were moot because the settlement resolved the controversy, and any unresolved sanction-related issues were waived because he failed to raise them below. Affirmed.

Motion to suppress evidence; People v Stricklin; Validity of consent to a chemical test; Effect of an officer’s misstatements of law about the right to refuse; MCL 257.625a(6)(b); Operating a vehicle while intoxicated (OWI); Preliminary breath test (PBT)

In this interlocutory appeal, the court held that the trial court did not err in denying defendant’s motion to suppress the chemical test evidence based on invalid consent. She was charged with OWI, third offense. She contended that her consent to the “test was not valid because it was coerced by the trooper’s misstatements of law regarding her right to refuse.” The court disagreed. She was “correct that the trooper mistakenly told her that refusing to take the PBT would result in an additional charge.” But the appeal only concerned “her consent to the chemical test, not the PBT, and the trooper correctly explained [her] rights regarding the chemical test by reading verbatim from MCL 257.625a(6)(b). [He] did briefly conflate the PBT and chemical test standards before the blood draw, but this mistake occurred after he correctly explained the law three times. More importantly, the trial court determined that this mistake occurred after defendant had already consented to the test and that she did not revoke that consent.” While she asserted that she “agreed to the test ‘under duress’ because she felt as though she did not have a choice,” the court noted that it stated in Stricklin “that ‘[h]aving to make a choice between two undesirable options does not render defendant’s express consent to the blood draw coerced and involuntary.’” It found here that the “trooper’s body-camera footage clearly showed that defendant consented to the chemical test after [he] explained her right to refuse three times.” Affirmed.

Postconviction motions; Relief from judgment; MCR 6.508(D)(1); Pending appeal; MCR 7.208(A); Abandoned motion for new trial claim; People v Payne; Sentencing credit; MCL 769.11b; People v Seiders; Unrelated out-of-state sentence; People v Adkins; Mandatory felony-firearm sentence; MCL 750.227b(1); Consecutive sentence rule; People v Givans

The court held that the trial court properly denied defendant’s postconviction motions and did not err by refusing to credit his Michigan felony-firearm sentence with time served in Tennessee on unrelated offenses. Defendant was convicted in 2007 of possession of less than 25 grams of a controlled substance and felony-firearm. He absconded before sentencing, was later incarcerated in Tennessee from 2014 to 2022, and was not arrested again in Michigan until late 2023. On appeal, the court first held that the trial court could not grant defendant relief from judgment because his direct appeal was already pending, and MCR 6.508(D)(1) bars relief where the conviction and sentence are still “subject to challenge on appeal.” The court also noted that defendant had acknowledged the procedural error below and therefore could not take a contrary position on appeal. As to the motion for new trial, the court deemed the argument abandoned because defendant “merely states that the motion was improperly denied” without discussing the motion, the order, or relevant authority. The court next held that he was not entitled to credit for his Tennessee incarceration because MCL 769.11b applies only when a defendant served time in jail before sentencing because he was “denied or unable to furnish bond” for the offense of conviction, and it did “not entitle defendant to additional credit” for time served on separate, unrelated offenses. The court also rejected defendant’s discretionary-credit argument because felony-firearm carries a mandatory two-year sentence, leaving the trial court without authority to reduce it. Affirmed.

Sentencing; Scoring of OVs 4 & 14; MCL 777.34(1)(a); MCL 777.44(1)(a); Whether the trial court exercised its own judgment in resentencing defendant; Presentence investigation report (PSIR)

While the court concluded the trial court’s error in scoring OV 4 did not affect defendant’s guidelines range, it vacated his sentence and remanded “for a second resentencing because the trial court failed to exercise its own discretion when it resentenced” him. He was convicted of torture, unarmed robbery, unlawful imprisonment, AWIGBH, felonious assault, and assault and battery. The court previously affirmed his convictions but remanded for resentencing because mistakes in his PSIR resulted in sentencing errors. On remand, a different judge resentenced him as a fourth-offense habitual offender to concurrent terms of 50 to 75 years for the torture conviction, 15 to 30 years each for unarmed robbery and unlawful imprisonment, 25 to 37 years for AWIGBH, 5 to 15 years for felonious assault, and 93 days in jail for assault and battery. In this appeal, he challenged the scoring of OVs 4 and 14 at 10 points each. The parties agreed that the trial court erred as to OV 4. Its factual finding as to OV 4 was “not supported by a preponderance of the evidence. OV 4 should have been scored at 0 points based on a lack of evidence of a serious psychological injury[.]” But as to OV 14, the court held that the “trial court did not clearly err when it found that defendant played a leadership role in the offenses.” Defendant also asserted the trial court did not exercise its own judgment in resentencing him, and the court found that the record confirmed this. In “responding to several of defendant’s arguments, including the erroneously scored OV 4, the trial court stated that it was respecting the previous judge’s decisions on the issues without referring to any evidence, analyses, or consideration of the arguments.” This included when it “rendered the new sentence for the torture conviction[.]” The court held that by “simply deferring in large part to the prior judge’s sentencing decisions, the trial court did not exercise its own discretion, nor did [it] provide sufficient explanation for” the court’s review on appeal. The court noted that on remand, the prosecution “is free to argue for the same or similar sentences” and that it offered no opinion on their appropriateness.

Prisoner in possession of weapon; MCL 800.283(4); Ineffective assistance of counsel; People v Carbin; Failure to investigate; Amended information; MCR 6.112(H); Constructive possession; People v Anderson; Speedy trial; People v Rivera; Sentencing; Proportionality; People v Posey

The court held that defendant was not denied the effective assistance of counsel and that his within-guidelines sentence for prisoner in possession of a weapon was proportionate. Defendant, who was incarcerated, was charged after officers found one sharpened piece of metal under his desk and another in his pocket. The jury convicted him only as to the item in his pocket. On appeal, the court first held that counsel was not ineffective for failing to better investigate and oppose the amended information adding the desk-item charge because defendant “cannot show prejudice given that he was acquitted of the count involving the blade under the desk.” The court also held that any constructive-possession argument would not have defeated amendment because the prosecutor needed only probable cause, and “the object was found in defendant’s cell, regardless of access by others.” The court next rejected defendant’s speedy-trial ineffective-assistance claim because the clock began when he became an accused, not when the prison incident occurred, and only about 10 months elapsed before trial, so “prejudice is not presumed.” The court also held that counsel was prepared, reviewed the plea offer and evidence with defendant, and advanced the defense that the item was a tool rather than a weapon, even though “the jury was not convinced.” Finally, the court held that the 22-month minimum sentence, in the middle of the guidelines range, was proportionate because deterrence of prison weapons protects “other inmates and correction officers,” and “possession of a dangerous item alone causes the risk of harm that needs to be deterred.” Affirmed.

Criminal enterprise; MCL 750.159i(1); Sentencing departure; Proportionality; People v Milbourn; Reasonableness; People v Steanhouse; Guidelines; Inadequately considered offense variables; People v Walden; Distinguishing People v Dixon-Bey; Abuse of discretion; People v Butka

The court held that defendant’s upward departure sentence for conducting a criminal enterprise was reasonable and proportionate to the seriousness of the offense. Defendant pled guilty after using a computer program to obtain mPerks login information, running the program “numerous times,” affecting approximately 29,291 customers, and causing restitution exceeding $1 million. On appeal, the court held that the trial court did not abuse its discretion by imposing a 5-to-20-year sentence despite the 12-to-20-month guidelines range because the trial court explained why the guidelines did not adequately account for the offense. The court noted that the trial judge considered mitigating facts, including defendant’s age, lack of criminal record, cooperation, forfeiture of more than $600,000 in cryptocurrency, and “numerous letters from family and friends,” but reasonably concluded that the severity of the offense justified departure. The court emphasized that the sentencing judge grounded the departure in the fact that defendant sold login information “on the internet to people who were buying those for criminal reasons” (which defendant knew), that the offense affected “thousands of people,” and that the loss exceeded $1 million, which was “50 times the 20,000.00” threshold reflected in OV 16. Unlike Dixon-Bey, the trial court did not rely on unsupported characterizations of defendant, but instead identified offense-specific facts “not adequately reflected in the guidelines as scored.” The court also rejected defendant’s argument that there was only one victim because the crime involved thousands of customers whose information was “breached and sold on the dark web.” Affirmed.

Motion for relief from judgment; MCR 6.508(D); Alleged Sixth Amendment right to counsel violation during arraignment; Hospital arraignment; People v Sullivan; Alleged mental incompetence at the time of the arraignment; Constitutional right to an appeal; The trial court’s failure to preserve a note addressing a potential juror-conflict issue

The court held that the trial court did not abuse its discretion in denying defendant’s motion for relief from judgment based on his claims relating to his arraignment. Further, his constitutional right to an appeal was not violated by the trial court’s failure to preserve a jury note. He filed his motion nearly 20 years after his convictions. The trial court granted him relief as to a correction to his presentence investigation report but denied his other claims. He argued on appeal that it erred in denying his claim that “his Sixth Amendment right to counsel was violated during his arraignment[,]” which took place while he was in the hospital. The court first concluded he failed to show that he did not have appointed counsel at his arraignment. His “reliance on the register of actions is not sufficient alone to provide a factual basis for his claim, given that the order appointing counsel for [him] was signed the same day as the arraignment.” Further, even if he did not have counsel, he failed to establish “that his Sixth Amendment right was violated based on the record” presented. The court noted it held in Sullivan “that a hospital arraignment was not a critical stage of the proceedings based on the circumstances” of the case. As in Sullivan, nothing in the record here indicated “that defendant’s hospital arraignment was a critical stage of the proceedings that required the presence of counsel.” He could not show “any circumstances arising from his arraignment to suggest that the purported absence of counsel harmed his right to a fair trial when defendant stood mute and did not enter a plea.” There also was no indication that he “made any statements or admissions, waived any defenses, or was otherwise prejudiced at trial because of his lack of counsel at the arraignment.” As to his due process claim based on his assertion that “he was mentally incompetent at the time of” the arraignment, it was not clear from the record that was in fact the case. There was no official determination from the hospital to this effect. There was also “no indication in the record that defendant requested a competency hearing, showed that he was unable to understand the arraignment proceedings, or otherwise brought facts to the trial court’s attention that would raise doubts to his competence.”

Child custody; Established custodial environment (ECE); MCL 722.27(1)(c); Child’s best interests; MCL 722.23; Parenting time modification; Pierron v Pierron; Evidentiary standard; Stoudemire v Thomas; Cross-examination; MRE 614(a); Due process; HMM by Next Friend CM v JS

The court held that the trial court did not abuse its discretion by awarding plaintiff-mother sole physical custody and defendant-father joint legal custody and parenting time, and did not err in its handling of cross-examination. The parties appeared in propria persona in a custody dispute involving their young child. On appeal, the court first held that any omission in the ECE analysis was harmless because “even under the higher evidentiary standard, the trial court did not abuse its discretion in finding that the best interests favored sole physical custody for the mother.” The court emphasized that the child was “quite young” and being breastfed, had spent most of her life with plaintiff, and that “at this early stage of the child’s development, the trial court correctly concluded that this favored plaintiff.” The court also rejected defendant’s claim that the order reduced his parenting time because the record did not support his assertion that he had the child five days a week. Instead, the prior arrangement involved Tuesday/Thursday and alternating weekend visits, while the new order gave him slightly more total time and added overnight visits. Thus, the order “formalizes the situation that the child is accustomed to, while also increasing the time and providing overnight visits with defendant.” The court next held that defendant was not denied due process when plaintiff questioned him but he did not question plaintiff. Under MRE 614(a), each party was entitled to cross-examine, but “it is defendant’s error, not the trial court’s, that defendant failed to exercise his right[.]” Because the trial court did not prevent cross-examination and defendant failed to show prejudice, no error occurred. Affirmed.

Judicial discipline; In re Brown; In re Probert; The Judicial Tenure Commission (JTC)

In an order, the court accepted the JTC’s recommendation and ordered that respondent-Judge “Slaven be conditionally suspended without pay for six years, effective on the date of” the order. The order further provided that should he “be elected or appointed to judicial office during that time, he ‘will nevertheless be debarred from exercising the power and prerogatives of the office until at least the expiration of the suspension.’” In deciding the matter, the court applied the standards set forth in Brown to the JTC’s factual findings, which it adopted as its own. It also applied the Brown standards to the JTC’s legal conclusions, which it also adopted as its own. The JTC determined, and the court agreed, that “respondent committed misconduct by violating” Code of Judicial Conduct, Canon 2A; Code of Judicial Conduct, Canon 2B and MCR 8.115(B); Code of Judicial Conduct, Canon 2C; Code of Judicial Conduct, Canon 3(A)(14) and (3); Code of Judicial Conduct, Canon 3(B)(1); MCR 9.104(2) and (3); and MCR 9.202(B)(1)(c) and (e).

Concurring, Chief Justice Cavanagh agreed with the majority’s factual findings and conclusions as to misconduct but wrote separately to express doubts about the court’s “authority to impose a conditional suspension on a respondent who is no longer a sitting judge.” While she remains open to considering whether Probert was correctly decided, respondent here “effectively conceded that the sanction is proportionate.”

Also concurring, Justice Bolden agreed with the court’s decision and with Chief Justice Cavanagh that respondent “‘effectively conceded that the sanction is proportionate.’” She wrote separately to address “the unique circumstances in which this default judgment is appropriate and also to caution about whether such a penalty would be considered proportionate had there been participation, a challenge, or an appeal by respondent.”

Diversity jurisdiction; Whether there was complete diversity in this contract case; 28 USC § 1332(a)(2); Determining whether there was jurisdiction over an “unincorporated association” defendant; Carden v Arkoma Assocs; Comparing Certain Interested Underwriters v Layne

[This appeal was from the WD-MI.] Holding that diversity jurisdiction in this insurance contract case depended on “the citizenship of each underwriting Name of” defendant-Hiscox Syndicate 33, the court vacated the district court’s dismissal and remanded for further jurisdictional discovery. Plaintiff-Trustee sued Hiscox for failure to pay on an insurance policy that had been obtained from the Lloyd’s marketplace for two paintings that were later destroyed in a fire. The policy was underwritten by Hiscox Syndicate 33, the managing agent for which is Hiscox Syndicate Limited. The district court dismissed the case because neither painting was specifically included on the list held by the Lloyd’s Broker. On appeal, the court sua sponte raised the issue of whether diversity jurisdiction existed here. The parties, who assumed jurisdiction was satisfied based on § 1332(a)(2), submitted supplemental briefs on the issue. The court concluded that the Trustee was a citizen of New Hampshire. But the citizenship of Hiscox, an “unincorporated association,” was more complicated. Applying the Supreme Court’s reasoning in Carden, the court held that “Hiscox’s citizenship is tied to the citizenship of each of its underwriting Names . . . the underwriting Names of the Syndicate, Hiscox, listed on the policy at issue.” The court “read Layne to hold that, for purposes of diversity jurisdiction, where the Syndicate is not listed on the insurance policy in question, only the citizenship of the plaintiff-Underwriters (as opposed to all underwriters in the Syndicate) is relevant.” Thus, diversity jurisdiction here depended “upon the citizenship of each underwriting Name of Hiscox Syndicate 33.” The district court “relied solely on the citizenship of the Syndicate’s Managing Agent” to assess diversity. The court concluded that “determining the citizenship of each underwriting Name of Hiscox Syndicate 33 would be best addressed by” the district court.

Student finger injury; Governmental immunity; The Governmental Tort Liability Act (GTLA); Governmental function (MCL 691.1401(b)); Allegations of gross negligence by individual defendants; Lack of a gross negligence exception for a governmental agency; Waiver of public-building exception argument; Whether there is a statutory exception as to mandatory reporting of child abuse under MCL 722.623

Holding that defendant-school district was engaged in a governmental function and that plaintiff failed to plead his claims in avoidance of governmental immunity, the court reversed the denial of governmental immunity to the school. Plaintiff sued defendants “for various claims involving negligence after he suffered a finger injury during the school day. The school and its principal moved for summary disposition” based on governmental immunity. The trial court granted summary disposition as to the claims against the principal but denied it as to the school. The court noted that plaintiff did not dispute that the school is a governmental agency or that his claims against it are for tort liability. Thus, it was immune from the claims unless he could “show that the school was acting outside of its governmental functions or an express statutory exception applies.” As to the former, the court concluded “the hiring, training, and supervising of teachers and other school personnel are functions that constitute ‘the essence of government.’” As to the latter, plaintiff failed to “assert a specific statutory exception under the GTLA” in his complaint, his summary disposition brief, or at oral argument. He also did not “plead factual allegations in his complaint that would clearly fit within one of the GTLA’s exception[s].” While he repeatedly pointed to the individual defendants’ alleged gross negligence, there “is no statutory exception to immunity under the GTLA for the gross negligence of a governmental agency.” He tried to rectify the omission “by arguing for the first time that the GTLA’s public-building exception applies.” This failed for two reasons – (1) the issue was waived for appellate review and (2) even if it had been preserved, nothing in the complaint suggested “that somehow the building caused his injuries.” As to liability for failing to report child abuse under MCL 722.623, he did not point “to a statutory exception that would disallow governmental immunity in regard to mandatory reporting.” He failed to plead or otherwise make “a viable argument in avoidance of governmental immunity under the GTLA.” Remanded with instructions to the trial court to enter summary disposition for the school.

Settlement agreement; Enforcement; MCR 2.507(G); Dabish v Gayar; Change of heart; Vittiglio v Vittiglio; Mootness; Garrett v Washington; Aggrieved party; 1373 Moulin, LLC v Wolf

The court held that the trial court did not abuse its discretion by enforcing plaintiff-Jones’s settlement agreement with defendants because the material terms were placed on the record in open court and the agreement was binding under MCR 2.507(G). Jones was a top-floor cooperative resident who, along with the other plaintiffs, withheld monthly carrying charges after water leaks damaged their units. The parties later reached a settlement involving dismissal of circuit and district court cases, renovation payments, sale coordination, waiver of past-due carrying charges, and cooperative-board approval. On appeal, the court first held that the settlement was enforceable because, at the settlement hearing, the trial court “reviewed each material provision of the parties’ agreement in open court,” asked Jones whether he agreed to each provision, and he “affirmed his agreement.” Although defendants later tried to add dismissal of his separate civil-rights case as a condition, they ultimately removed that term, and the only stated contingency, board approval, was satisfied. The court rejected his argument that he could withdraw his consent because the agreement was “a binding settlement, not an offer that Jones could withdraw.” It reasoned that “‘settlement agreements should not normally be set aside,’” and under Vittiglio, “[a] change of heart” is not enough to disavow an otherwise valid settlement. The court also held that Jones’s remaining claims were moot because the settlement resolved the controversy, and any unresolved sanction-related issues were waived because he failed to raise them below. Affirmed.

Student finger injury; Governmental immunity; The Governmental Tort Liability Act (GTLA); Governmental function (MCL 691.1401(b)); Allegations of gross negligence by individual defendants; Lack of a gross negligence exception for a governmental agency; Waiver of public-building exception argument; Whether there is a statutory exception as to mandatory reporting of child abuse under MCL 722.623

Holding that defendant-school district was engaged in a governmental function and that plaintiff failed to plead his claims in avoidance of governmental immunity, the court reversed the denial of governmental immunity to the school. Plaintiff sued defendants “for various claims involving negligence after he suffered a finger injury during the school day. The school and its principal moved for summary disposition” based on governmental immunity. The trial court granted summary disposition as to the claims against the principal but denied it as to the school. The court noted that plaintiff did not dispute that the school is a governmental agency or that his claims against it are for tort liability. Thus, it was immune from the claims unless he could “show that the school was acting outside of its governmental functions or an express statutory exception applies.” As to the former, the court concluded “the hiring, training, and supervising of teachers and other school personnel are functions that constitute ‘the essence of government.’” As to the latter, plaintiff failed to “assert a specific statutory exception under the GTLA” in his complaint, his summary disposition brief, or at oral argument. He also did not “plead factual allegations in his complaint that would clearly fit within one of the GTLA’s exception[s].” While he repeatedly pointed to the individual defendants’ alleged gross negligence, there “is no statutory exception to immunity under the GTLA for the gross negligence of a governmental agency.” He tried to rectify the omission “by arguing for the first time that the GTLA’s public-building exception applies.” This failed for two reasons – (1) the issue was waived for appellate review and (2) even if it had been preserved, nothing in the complaint suggested “that somehow the building caused his injuries.” As to liability for failing to report child abuse under MCL 722.623, he did not point “to a statutory exception that would disallow governmental immunity in regard to mandatory reporting.” He failed to plead or otherwise make “a viable argument in avoidance of governmental immunity under the GTLA.” Remanded with instructions to the trial court to enter summary disposition for the school.

Trust dispute; Approval of a settlement agreement & addendum; MCL 700.7111; Whether the agreement violated the material purpose of the revocable trust; Trustee breach of fiduciary duty claims; Reliance on counsel’s recommendations; MCL 700.7817(w)

The court held that the probate court did not abuse its discretion in approving the settlement agreement in this trust dispute, and that the cotrustees did not breach their duties by entering into the agreement. Appellants filed a petition requesting “an accounting, return of property, and turn-over of real estate as well as to remove the cotrustees.” The probate court denied the petition. The now deceased Walter Sparling established a revocable trust. He was married to appellee-Mary for 66 years and had eight children, including the four appellants and the other two appellees (the cotrustees). As a result of negotiations in prior litigation, Mary and the cotrustees entered into the settlement agreement, which provided a payment of $746,000 to her from the trust. They also entered into an addendum to the agreement that provided she would receive a Florida condo “in lieu of some of the monthly payments under the agreement.” Appellants argued the probate court erred in approving the “agreement and addendum under MCL 700.7111 because the cotrustees’ representation was inadequate, and the agreements violated the revocable trust’s material purpose.” The court found that the “trust, the trustees, and the probate court were all clear that the purpose of the trust was to give Mary the income from the trust during her lifetime. This purpose was thwarted when income-producing assets were removed from the revocable trust and placed in the irrevocable trust that was later found to be invalid due to Walter’s diminished mental capacity. The settlement attempted to restore Mary to the position that she would have been in had the trust’s purpose been respected throughout the years.” The court concluded the probate “court did not abuse its discretion in finding that the settlement was in furtherance of the material purpose of the trust, given that the settlement returned to Mary income that she would have received but for the invalid irrevocable trust.” As to appellants’ breach of fiduciary duty claim, “not only did the cotrustees rely on counsel’s advice, but they also did their own investigation into the amount Mary should have been receiving. Moreover, the settlement was favorable to the trust, in that Mary accepted less than what she was likely entitled. Therefore, the cotrustees did not breach their duties by entering into the” agreement. Affirmed.