Motion to dismiss on double-jeopardy grounds; Whether a prior order declaring a mistrial was properly rescinded; MCR 6.435(B); People v Jones

The court held that even assuming that the second trial court judge involved in this case “could and did properly rely on MCR 6.435(B) to rescind his mistrial declaration,” his decision to do so was an abuse of discretion under the circumstances. The case was originally assigned to Judge R, but the bench trial had to be adjourned, and before it resumed, Judge R went on medical leave. The case was reassigned to Judge H, who “proposed declaring a mistrial so that the case could be resolved before a different factfinder, but defendant insisted on finishing the trial he started before” Judge R. Judge H later sua sponte declared a mistrial. Before “the new trial began, the case was reassigned back to” Judge R, who referred defendant’s motion to dismiss on double-jeopardy grounds back to Judge H. Instead of ruling on whether a second prosecution could proceed, Judge H “rescinded his order declaring a mistrial so that the original proceedings before” Judge R could resume. On appeal, the court considered only whether Judge H erred in rescinding his mistrial order. It found that, under “Jones’s interpretation of MCR 6.435(B), this was not a valid use of MCR 6.435(B). That rule, according to the majority in Jones, can only be used to alter a ruling that was based on a mistaken belief in the facts or the applicable law, and according to Judge [H], his decision to declare a mistrial was based on neither. But even under the broader interpretation of” the rule advocated for in the Jones dissent, it was questionable whether Judge H’s decision was permitted. The court determined that, in any event, it was “significant that (1) defendant was forced to spend time and resources litigating a second trial for a significant period of time before Judge [H] rescinded his order declaring a mistrial, and (2) Judge” H only did so “after defendant moved to dismiss the second prosecution of him on double-jeopardy grounds. Under these circumstances, rescinding the mistrial declaration 16 months after it was entered was outside the range of reasonable and principled outcomes.” The court reversed the order rescinding the mistrial order, vacated the order denying defendant’s motion to dismiss as moot, and remanded for the trial court to address the substance of his motion to dismiss.

Right to present a defense; Videoconference witness testimony; MCR 6.006(B)(4); MCR 2.407(C); Prosecutorial error; Leading questions; MRE 611(d)(1); Ineffective assistance of counsel

The court held that the trial court did not err by denying defendant’s last-minute request to present a defense witness by videoconference, the prosecutor’s challenged questions did not warrant relief, and trial counsel was not ineffective for failing to object to them. Defendant was convicted of drug-delivery offenses and maintaining a drug house following controlled purchases by a confidential informant (CI). During trial, defense counsel asked to have a witness (N) testify by Zoom because she lacked transportation. The trial court denied the request. On appeal, the court noted that although a criminal defendant has the right to “a meaningful opportunity to present a defense,” that right “is not an absolute right” and remains subject to established procedural rules. MCR 6.006(B)(4) permitted remote testimony during a jury trial only in the trial court’s discretion after notice and an opportunity to be heard. Relevant MCR 2.407(C) factors supported denial here. The request came on the day N was scheduled to testify, the prosecutor lacked meaningful notice, exhibits would have been difficult to use remotely, and credibility was significant because N was expected to attack the CI’s reputation for truthfulness. The situation differed from the prosecution witness who had been permitted to testify remotely after a pretrial motion and who lived in Arizona. The court emphasized that the trial court “did not preclude the witness from testifying but rather denied his last-minute request for her to testify remotely.” As to prosecutorial error, the challenged questions either were unanswered after sustained objections, were not actually leading, or properly clarified prior testimony. Defendant showed no pattern of eliciting inadmissible evidence or resulting prejudice. His ineffective-assistance claim likewise failed because the underlying objections lacked merit or the questions could simply have been rephrased to elicit the same admissible testimony. Affirmed.

No-fault policy rescission; Innocent misrepresentation; Sherman v Progressive MI Ins Co; Material misrepresentation; Reliance; Vehicle ownership & registration; MCL 257.37(a); Equitable remedy of rescission

The court held that there was no genuine issue of material fact that defendant-insured (Toneysha) made a material misrepresentation in her insurance application and that plaintiff-insurer (CURE) relied on it, making rescission potentially available under an innocent-misrepresentation theory. Toneysha sought coverage for two leased vehicles and answered “Yes” when asked whether each vehicle was solely owned by and registered to her. After an accident, CURE learned that her fiancé, nonparty-H, was also listed as a co-owner and coregistrant. CURE presented documentary evidence showing that both had applied for title and registration as lessees, and Toneysha admitted that the vehicles were registered in both names. CURE’s underwriting manager testified that it does not insure vehicles with nonrelative, nonresident co-owners and that it would have declined the policy had the information been disclosed. Thus, CURE established both materiality and reliance. The trial court nevertheless found a factual dispute based on the possibility that Toneysha was confused about whether a coregistrant or lessee was an owner. The court determined that this reasoning applied the wrong standard. Under innocent misrepresentation, the insurer need not prove that the insured knew the statement was false or intended to deceive. Even if Toneysha was confused, “it would not change the nature of her innocent misrepresentation.” The nonmoving parties also produced no evidence disputing H’s co-ownership. The court therefore concluded that “[t]here was no genuine issue of material fact that Toneysha made a material misrepresentation in her application for insurance and that CURE relied on that misrepresentation to issue Toneysha a policy.” Because rescission is an equitable remedy, however, that determination did not automatically require rescission. Reversed and remanded.

No-fault policy rescission; Innocent misrepresentation; Sherman v Progressive MI Ins Co; Material misrepresentation; Reliance; Vehicle ownership & registration; MCL 257.37(a); Equitable remedy of rescission

The court held that there was no genuine issue of material fact that defendant-insured (Toneysha) made a material misrepresentation in her insurance application and that plaintiff-insurer (CURE) relied on it, making rescission potentially available under an innocent-misrepresentation theory. Toneysha sought coverage for two leased vehicles and answered “Yes” when asked whether each vehicle was solely owned by and registered to her. After an accident, CURE learned that her fiancé, nonparty-H, was also listed as a co-owner and coregistrant. CURE presented documentary evidence showing that both had applied for title and registration as lessees, and Toneysha admitted that the vehicles were registered in both names. CURE’s underwriting manager testified that it does not insure vehicles with nonrelative, nonresident co-owners and that it would have declined the policy had the information been disclosed. Thus, CURE established both materiality and reliance. The trial court nevertheless found a factual dispute based on the possibility that Toneysha was confused about whether a coregistrant or lessee was an owner. The court determined that this reasoning applied the wrong standard. Under innocent misrepresentation, the insurer need not prove that the insured knew the statement was false or intended to deceive. Even if Toneysha was confused, “it would not change the nature of her innocent misrepresentation.” The nonmoving parties also produced no evidence disputing H’s co-ownership. The court therefore concluded that “[t]here was no genuine issue of material fact that Toneysha made a material misrepresentation in her application for insurance and that CURE relied on that misrepresentation to issue Toneysha a policy.” Because rescission is an equitable remedy, however, that determination did not automatically require rescission. Reversed and remanded.

Quiet title; Sua sponte summary disposition; MCR 2.116(I)(1) & (C)(7); Impermissible collateral attack; Foreclosure by advertisement; Expiration of redemption period; MCL 600.3236; Subject-matter jurisdiction; MCL 600.5704; Consent judgment

The court held that the trial court properly dismissed plaintiff’s quiet-title action because it constituted an impermissible collateral attack on a district court judgment awarding possession of the property to nonparty-Comerica Bank. Defendant-Probst mortgaged the property, Comerica subsequently acquired the mortgage and purchased the property at a sheriff’s sale after foreclosure, and Probst failed to redeem it. Comerica then obtained a district court judgment granting it possession. Plaintiff-LaMie, an occupant of the property, recorded a lien based on an alleged agreement with Probst and later filed this action seeking quiet title. Afterward, he recorded an affidavit purporting to expunge Comerica’s sheriff’s deed, and Probst executed a quitclaim deed transferring the property to him. The trial court refused to enter a proposed consent judgment between LaMie and Probst and dismissed the action. On appeal, the court explained that, assuming competent jurisdiction, “‘a party cannot use a second proceeding to attack a tribunal’s decision in a previous proceeding.’” The parties sought to use this action to relitigate the foreclosure and LaMie’s asserted ownership based on the same agreement, liens, affidavits, and quitclaim deed he had previously raised. “There is simply no discernable difference between the arguments LaMie raised in the Comerica case and the arguments he raised in the underlying case and in this appeal.” His avenue for challenging the district court judgment was a direct appeal in that proceeding. Although a collateral attack may be permitted against a void judgment entered without personal or subject-matter jurisdiction, neither LaMie nor Probst established such a defect. The district court had statutory jurisdiction over the summary possession proceeding and jurisdiction over the property. Thus, the collateral attack was impermissible. Affirmed.

Claims against a school district & employee arising from an auto accident; Governmental agency immunity; MCL 691.1407(1); Motor-vehicle exception (MCL 691.1405); Requirement that a plaintiff plead facts in avoidance of immunity; Mack v City of Detroit; Notice pleading; Whether the complaint had to contain “magic words”; Employee immunity; MCL 691.1407(2); “Gross negligence” (MCL 691.1407(8)(a)); Motion under MCR 2.116(C)(7); Roseville Community Schools (RCS); Governmental Tort Liability Act (GTLA)

The court held that the facts asserted in plaintiff’s complaint clearly alleged a cause of action under the motor-vehicle exception to governmental immunity as to defendant-school district (RCS). Further, plaintiff presented “evidence tending to establish a genuine issue of material fact whether” defendant-employee (Cremonte) was grossly negligent. Thus, the court affirmed the order denying defendants’ summary disposition motion under MCR 2.116(C)(7). As to RCS, the “complaint alleged that plaintiff was injured as a result of Cremonte’s negligent or grossly negligent operation of a van owned by RCS during the course of Cremonte’s employment with RCS. [It] further laid out the facts underlying this claim—that Cremonte, while driving a vehicle owned by RCS during the course of his employment, was driving southbound on Groesbeck Highway when he crossed into the northbound lane of travel and collided with plaintiff’s vehicle, causing injury to plaintiff. These facts plainly alleged a cause of action” under MCL 691.1405. Rather than engage with the facts alleged, defendants focused “on what is supposedly missing from the complaint—any mention of the GTLA, governmental immunity, or a host of words and phrases. But” they did not cite any case law “supporting their contention that plaintiff’s complaint needed to use some combination of these ‘magic words’ to plead his claim in avoidance of governmental immunity. This, presumably, is because requiring the use of specific words or phrases to state a claim would be inconsistent with Michigan’s general pleading requirements.” As to Cremonte, in response to the summary disposition motion, plaintiff attached the traffic crash report describing the collision. It “detailed how Cremonte drifted across the center lane of Groesbeck Highway into traffic going the opposite direction, then collided with multiple other motor vehicles until colliding with the front of plaintiff’s vehicle and coming to rest on top of plaintiff’s vehicle. Viewing this evidence in the light most favorable to plaintiff, a reasonable juror could find that Cremonte’s conduct of drifting into oncoming traffic and colliding with multiple vehicles was so reckless as to demonstrate a substantial lack of concern for whether an injury result.”

Quiet title; MCL 600.2932(1); 15-year limitations period; MCL 600.5801(4); Disseisin; MCL 600.5829(1); Adverse possession; Marlette Auto Wash LLC v Van Dyke SC Props LLC; Tacking; Acquiescence; Houston v Mint Group LLC; Summary disposition

The court held that plaintiffs failed to create a genuine issue of material fact that they or their predecessors reacquired title to a disputed 50-foot strip of land through adverse possession or acquiescence. Plaintiffs purchased their property at a 2015 tax sale. They alleged that a mistake originating in a 1965 tax deed changed a boundary measurement from 400 to 450 feet and improperly placed the disputed strip within defendant’s property. Plaintiffs did not challenge the determination that their predecessors had been disseised of the strip by 1980. Instead, they asserted that title was later reacquired through adverse possession or acquiescence, relying primarily on a 1982 deed, a 2013 affidavit, the existence and use of a structure on the disputed land, and tax records. The court found that the documents did not support adverse possession. The 1982 deed repeated the same legal description as the 1965 deed and referred only generally to other property possessed “in this vicinity,” while the affidavit likewise failed to identify the specific land allegedly adversely possessed. Thus, “there is no indication that anyone reviewing these documents in the chain of title could have constructive notice that plaintiffs’ predecessors in title were adversely possessing the disputed area.” Nor did evidence concerning the structure establish when it was built, by whom, or how the disputed strip was continuously used. “Simply put, plaintiffs have not proffered facts that could establish that their predecessors in title openly and notoriously possessed the disputed area for the requisite 15-year period.” The acquiescence claim also failed because there was no evidence that successive neighboring owners treated a particular boundary as controlling for 15 years. Rather, the record lacked evidence concerning defendants’ predecessors’ “thoughts, actions, acquiescence, or lack thereof,” and defendant’s most recent predecessor affirmatively disputed plaintiffs’ ownership. The court affirmed summary disposition but remanded for further proceedings on defendant’s unresolved counterclaims.

Quiet title; Sua sponte summary disposition; MCR 2.116(I)(1) & (C)(7); Impermissible collateral attack; Foreclosure by advertisement; Expiration of redemption period; MCL 600.3236; Subject-matter jurisdiction; MCL 600.5704; Consent judgment

The court held that the trial court properly dismissed plaintiff’s quiet-title action because it constituted an impermissible collateral attack on a district court judgment awarding possession of the property to nonparty-Comerica Bank. Defendant-Probst mortgaged the property, Comerica subsequently acquired the mortgage and purchased the property at a sheriff’s sale after foreclosure, and Probst failed to redeem it. Comerica then obtained a district court judgment granting it possession. Plaintiff-LaMie, an occupant of the property, recorded a lien based on an alleged agreement with Probst and later filed this action seeking quiet title. Afterward, he recorded an affidavit purporting to expunge Comerica’s sheriff’s deed, and Probst executed a quitclaim deed transferring the property to him. The trial court refused to enter a proposed consent judgment between LaMie and Probst and dismissed the action. On appeal, the court explained that, assuming competent jurisdiction, “‘a party cannot use a second proceeding to attack a tribunal’s decision in a previous proceeding.’” The parties sought to use this action to relitigate the foreclosure and LaMie’s asserted ownership based on the same agreement, liens, affidavits, and quitclaim deed he had previously raised. “There is simply no discernable difference between the arguments LaMie raised in the Comerica case and the arguments he raised in the underlying case and in this appeal.” His avenue for challenging the district court judgment was a direct appeal in that proceeding. Although a collateral attack may be permitted against a void judgment entered without personal or subject-matter jurisdiction, neither LaMie nor Probst established such a defect. The district court had statutory jurisdiction over the summary possession proceeding and jurisdiction over the property. Thus, the collateral attack was impermissible. Affirmed.

Claims against a school district & employee arising from an auto accident; Governmental agency immunity; MCL 691.1407(1); Motor-vehicle exception (MCL 691.1405); Requirement that a plaintiff plead facts in avoidance of immunity; Mack v City of Detroit; Notice pleading; Whether the complaint had to contain “magic words”; Employee immunity; MCL 691.1407(2); “Gross negligence” (MCL 691.1407(8)(a)); Motion under MCR 2.116(C)(7); Roseville Community Schools (RCS); Governmental Tort Liability Act (GTLA)

The court held that the facts asserted in plaintiff’s complaint clearly alleged a cause of action under the motor-vehicle exception to governmental immunity as to defendant-school district (RCS). Further, plaintiff presented “evidence tending to establish a genuine issue of material fact whether” defendant-employee (Cremonte) was grossly negligent. Thus, the court affirmed the order denying defendants’ summary disposition motion under MCR 2.116(C)(7). As to RCS, the “complaint alleged that plaintiff was injured as a result of Cremonte’s negligent or grossly negligent operation of a van owned by RCS during the course of Cremonte’s employment with RCS. [It] further laid out the facts underlying this claim—that Cremonte, while driving a vehicle owned by RCS during the course of his employment, was driving southbound on Groesbeck Highway when he crossed into the northbound lane of travel and collided with plaintiff’s vehicle, causing injury to plaintiff. These facts plainly alleged a cause of action” under MCL 691.1405. Rather than engage with the facts alleged, defendants focused “on what is supposedly missing from the complaint—any mention of the GTLA, governmental immunity, or a host of words and phrases. But” they did not cite any case law “supporting their contention that plaintiff’s complaint needed to use some combination of these ‘magic words’ to plead his claim in avoidance of governmental immunity. This, presumably, is because requiring the use of specific words or phrases to state a claim would be inconsistent with Michigan’s general pleading requirements.” As to Cremonte, in response to the summary disposition motion, plaintiff attached the traffic crash report describing the collision. It “detailed how Cremonte drifted across the center lane of Groesbeck Highway into traffic going the opposite direction, then collided with multiple other motor vehicles until colliding with the front of plaintiff’s vehicle and coming to rest on top of plaintiff’s vehicle. Viewing this evidence in the light most favorable to plaintiff, a reasonable juror could find that Cremonte’s conduct of drifting into oncoming traffic and colliding with multiple vehicles was so reckless as to demonstrate a substantial lack of concern for whether an injury result.”