Guaranty enforcement; Statute of limitations defense; Waiver; MCR 2.111(D)(3)(a); Palenkas v Beaumont Hosp; Attorney Gen ex rel Dep’t of Envtl Quality v Bulk Petroleum Co; Motion for involuntary dismissal; Whether plaintiff first breached the loan agreement; Whether defendant signed the guaranty under undue influence; Misrepresentations; Deduction of a tax benefit from defendant’s liability; Contract interpretation; Damages mitigation; Uptown Ridge Investors, LLC (URI)

In this suit to enforce a guaranty, the court held that defendant waived the statute of limitations (SOL) defense, and even if he had not, the trial court correctly denied his motion for involuntary dismissal on this basis. Further, plaintiff did not first breach a contract, and defendant did not sign the guaranty under undue influence due to misrepresentations by plaintiff. Finally, the court concluded the trial court erred in deducting a tax benefit plaintiff received from defendant’s liability. Thus, it affirmed in part, vacated in part, and remanded for “the trial court to correct the amount of defendant’s liability in the judgment.” The case arose from a loan agreement between plaintiff and a nonparty-LLC (URI), for which all three members of URI, including defendant, signed guaranties. After a bench trial, the trial court found his total indebtedness was $649,628.62. But it deducted half of an alleged $228,845 benefit plaintiff had received from taking tax losses. He appealed and plaintiff cross-appealed. Defendant first asserted the trial court erred in ruling that the SOL did not bar plaintiff’s claim and in denying his motion for involuntary dismissal based on the SOL. The court disagreed, first concluding that he waived the SOL defense. “While he listed the statute as barring plaintiff’s claims, like the defendant hospital in Palenkas, defendant here did not state the facts to support his defense.” As to his motion, the “trial court weighed the evidence it had heard and determined that defendant had not established that the [SOL] barred plaintiff’s claims.” It did not clearly err in doing so. Next, the court found no contract language supporting his “argument that plaintiff first engaged in a breach, let alone a ‘substantial’ one that deprived defendant of something he reasonably expected to receive[.]” It noted that the “lack of additional loans may have slowed (and contributed to ending) URI’s project, but the trial court did not clearly err in concluding that plaintiff had not substantially breached a contract.” The court also held that “the trial court did not clearly err in concluding, based on the evidence, that defendant’s guaranty ‘was freely and voluntarily executed and delivered by’” him. Lastly, the court determined that the evidence and the agreements’ terms did “not support a factual finding or legal conclusion that the tax losses were intended to minimize defendant’s potential liability.”

Failure to stop at accident scene; Knowledge element; MCL 257.617; MCL 257.619; Charging defect; MCR 6.101(A) & 6.112(A); Jury instructions; People v Dumback; Other acts evidence; Arrest warrants; MRE 404(b); Motive to flee; People v VanderVliet; Lay opinion testimony; MRE 701; Prosecutorial error; Burden shifting; People v Fields; Habitual offender sentencing; MCL 769.12; Attempted felony; People v Slocum

The court held that defendant was not entitled to relief from his conviction for failing to stop at the scene of an accident resulting in serious impairment or death or from his fourth-offense habitual-offender sentence. Defendant struck a bicyclist while driving, stopped 200 to 300 feet away, continued driving, and later claimed he thought he had hit a trashcan or mailbox. On appeal, the court first rejected defendant’s charging-defect argument because MCL 257.617 requires knowledge that the driver was “involved in an accident,” not knowledge that the accident involved “an individual or” another vehicle. The court held that the charging documents adequately tracked the statute by alleging that defendant “knew or had reason to believe” he had been involved in an accident. The court next held that the jury was properly instructed for the same reason, explaining that the trial court correctly required proof that defendant “knew or had reason to know that he had been involved in an accident.” The court also found that evidence of outstanding arrest warrants was admissible after defendant offered an innocent explanation for leaving the scene because it showed “ulterior motivations” to flee, and the trial court limited prejudice by excluding the nature of the warrants. The court further held that gambling-related testimony was relevant to defendant’s timeline and nap claim, and that officers’ accident-scene observations were proper lay opinion because they gave “a general idea of where and how the accident occurred.” The court rejected defendant’s burden-shifting argument because the prosecutor permissibly challenged the reliability of his new gas-station-nap claim. Finally, the court found that attempted resisting and obstructing could support the fourth-offense habitual enhancement because MCL 769.12 applies to “felonies or attempts to commit felonies.” Affirmed.

Prosecutorial error; Inflammatory argument; People v Bahoda; Lay opinion testimony; MRE 701; People v Fomby; Sufficiency of the evidence; Assault with intent to murder (AWIM); MCL 750.83; Intent to kill; People v Ericksen; Sentencing; Proportionality; People v Posey; Accurate information; People v McGraw

The court held that defendant was not denied a fair trial by the prosecutor’s arguments or law-enforcement testimony, that sufficient evidence supported his AWIM conviction, and that his within-guidelines sentence was proportionate. Defendant was convicted after evidence showed that he fired a handgun toward vehicles, shot toward a truck occupied by a father driving his daughter to preschool, and later pointed a gun toward an officer in a dollar store parking lot. On appeal, the court first held that the prosecutor’s references to defendant “hunting humans,” acting on a “rampage,” and potentially carrying out a “mass shooting” did not require reversal because the remarks were “grounded in the evidence presented at trial” and were “rhetorical characterizations of the evidence rather than assertions of facts not supported by the record.” The court also held that law-enforcement testimony about reloading, bullet strikes, firearm mechanics, and handgun accuracy was proper lay opinion because it was based on the officers’ observations and experience and “helped the jury understand the physical evidence and the mechanics of the firearm.” As to sufficiency, the court held that a rational jury could infer intent to kill because defendant “exited his vehicle and fired several shots toward” the victim, the victim heard bullets pass by, and one bullet struck his truck. The jury was not required to accept defendant’s claim that he intended only to frighten the victim. Finally, the court found that the trial court did not rely on inaccurate information at sentencing because it focused on defendant’s intoxication, drug-induced paranoia, the danger caused by firing at motorists, and “the number of innocent people” placed in jeopardy, rather than simply adopting the prosecutor’s attempted-mass-shooting characterization. Affirmed.

Sentencing; Right to allocution; MCR 6.425(D)(1)(c); People v Dixon-Bey; Remand for resentencing before a different judge

Holding that the trial court denied defendant-West his right to allocution during sentencing, the court vacated his sentence and remanded for resentencing before a different judge. He pled guilty to possession with intent to deliver (PWID) 50 to 449 grams of cocaine; possession of less than 25 grams of oxycodone; resisting or obstructing a police officer; and possession of psilocybin. He was sentenced as a third-offense habitual offender to 12 to 40 years for PWID cocaine, 4 to 8 years for oxycodone possession, 2 to 4 years for each count of resisting or obstructing, and 5 days for psilocybin possession. The court concluded that the trial court judge “denied West a meaningful opportunity to speak during allocution.” Rather than waiting until he “was finished with his allocution to voice her thoughts, [she] continually interrupted, interrogated, and lectured him, denying him a meaningful opportunity to speak.” The court found that, considering how often she interrupted him “and the argumentative nature of her comments, . . . her conduct amounted to plain error that affected West’s substantial rights and that remand for resentencing” was required. In addition, it agreed with him that “remand for resentencing before a different judge is appropriate despite any inefficiency that may attend doing so.”

Termination under § 19b(3)(b)(i); Sexual abuse; Anticipatory neglect; In re Mota; Children’s best interests; Individualized findings; In re White; Forensic-interview recordings; MCL 712A.17b(5); In re Martin

The court held that § (b)(i) supported termination, that termination was in the children’s best interests, and that the trial court did not err by admitting forensic-interview recordings. Respondent-father’s three daughters disclosed sexual abuse, including one child’s disclosure of repeated penetrative abuse beginning when she was nine, while there were allegations of physical abuse as to his son. On appeal, the court first held that § (b)(i) was established because the trial court found the oldest daughter’s disclosures “very trustworthy,” noting that her statements were consistent with only “mild deviations,” that she first disclosed “solely to a friend,” and that there was no evidence she was part of a “Machiavellian scheme” to avoid respondent. The court also held that anticipatory neglect supported the risk-of-harm finding because “‘how a parent treats one child is probative of how the parent may treat other children,’” and physical abuse of the son was reported. As to best interests, the court held that individualized findings were adequate because the children’s interests did not significantly differ, except that there was no sexual abuse alleged as to the son, a difference the trial court expressly acknowledged. The court emphasized that the three older children wanted respondent’s rights terminated, the youngest did not ask about him, the children were thriving with their mothers, and termination would provide “finality.” Lastly, the court held that respondent could not obtain relief from the admission of the forensic-interview videos because MCL 712A.17b(5) “‘not only permits but mandates’” admission outside adjudication when prerequisites are met, the interviewer testified that forensic protocol was followed, and respondent had advocated for avoiding live testimony from the children. Affirmed.

§§ (b)(ii), (c)(i), & (j)

Termination under §§ 19b(3)(b)(ii), (c)(i), & (j); Ineffective assistance of counsel; Advice to enter a no-contest plea; In re Casto; Reasonable reunification efforts; Aggravated circumstances; MCL 722.638(1)(a); In re Barber/Espinoza; Validity of plea; MCR 3.971; Factual basis; In re Olive/Metts Minors

The court held that respondent-father was not denied the effective assistance of counsel, that any reasonable-efforts error did not affect his substantial rights, and that his no-contest plea supported termination under §§ (b)(ii), (c)(i), and (j). The trial court originally took jurisdiction after domestic violence occurred in the child’s presence, later returned the child to respondent’s care, and then removed the child again after wounds appeared that medical personnel found were consistent with nonaccidental cigarette burns. On appeal, the court first held that counsel performed unreasonably by stipulating that respondent had severely beaten the mother when “the record did not support this factual basis,” but respondent failed to show prejudice because the trial court already knew its prior findings and terminated parental rights because the child was injured soon after returning to respondent’s care and respondent had not visited the child in nine months. The court also rejected respondent’s challenge to counsel’s stipulation that the child’s injuries were nonaccidental and consistent with cigarette burns because the stipulation “did not name respondent as the cause of the injuries,” and counsel could still argue that respondent did not inflict them. The court next held that the trial court erred by allowing the DHHS to stop reasonable efforts because there was “no evidence establishing the requirements of MCL 722.638(1)(a),” but the error did not affect substantial rights because respondent had already quit counseling and visitation before the order. As to the plea, the court held that respondent knowingly and voluntarily entered it, and his later disputes reflected “irritation and frustration,” not confusion. Although the plea did not support §§ (b)(iii) or (c)(ii), it supported §§ (b)(ii), (c)(i), and (j) because respondent’s anger-management issues continued, the child sustained unexplained nonaccidental injuries in his care, and there was a reasonable likelihood of harm if returned. Affirmed.

Termination under § 19b(3)(c)(i); In re Jackisch/Stamm-Jackisch; Reasonable reunification efforts; Accommodations under the Americans with Disabilities Act (ADA); In re Hicks/Brown; Child’s best interests; In re Simpson; Guardianship consideration; Case service plan (CSP)

The court held that the trial court did not reversibly err in concluding that the DHHS made reasonable reunification efforts and adequately accommodated respondent-father’s disability in doing so. Further, clear and convincing evidence supported termination under § (c)(i), and the trial court did not clearly err in finding that it was in the child’s best interests. The court first determined that “reasonable efforts were made to provide respondent with services that accommodated his cognitive disability.” The disability was known to the DHHS from the inception of the case, and his “CSP was specifically designed with [it] in mind.” The court noted that “he was referred to complete a supportive visitation program a second time after the caseworker and service providers determined that he was still struggling with routine parenting responsibilities and required continued support. [He] was also repeatedly referred to parenting education classes because, even after his completion of them, he continued to struggle with parenting-related tasks and decision-making.” The DHHS provided him additional services “not ordinarily provided to respondent-parents, including assistance with setting up services and scheduling appointments, constant reminders regarding appointments and parenting times, and transportation to and from services, parenting times, and court hearings as needed.” Further, he had over four years to participate in and benefit from services. As to § (c)(i), his primary barrier to reunification was his inability to safely care for the child “without assistance or supervision.” The court found “no reversible error in the [trial] court’s conclusion that this condition continued to exist and that there was no reasonable likelihood that [it] would be rectified within a reasonable time considering” the child’s age. While he participated in and completed services, he still could not show that he could safely care for the child on his own. Also, psychological evaluations and cognitive assessments “taken at different times during the proceedings and after respondent had participated in and completed multiple services, concluded that [he] could not safely care for [the child] for longer periods of time without constant supervision and assistance.” As to the child’s best interests, “the trial court properly weighed all the evidence available to it” and the court saw no reversible error in its findings. Affirmed.

Termination at the initial disposition; Aggravated circumstances; In re Barber/Espinoza; MCL 712A.19a(2); MCL 722.638; Distinguishing In re Simonetta & In re Berryman/Hurd/Morgan/Morgan-Hurd; Child’s best interests; Individualized findings; Reliance on unproven allegations; Due process; Requirement that evidence bear sufficient indicia of fairness, reliability, & trustworthiness

The court held that the trial court did not fail to find the existence of aggravated circumstances allowing termination of respondent-father’s parental rights at the initial disposition. As to his child’s (DLS) best interests, it also did not fail to make individualized findings. But it did clearly err “in relying on unproven allegations that respondent also molested a second child.” Thus, the court affirmed in part, vacated the best-interest determination, and remanded. The DHHS sought “to terminate respondent’s parental rights to DLS after it investigated and substantiated allegations that respondent had repeatedly sexually abused DLS’s 14-year-old half-sister[.]” On appeal, the court disagreed with respondent’s assertion the trial court failed to determine whether aggravated circumstances existed. It noted that the “DHHS specifically alleged that aggravated circumstances existed in its petition and the trial court articulated factual findings based on” the DHHS’s investigative summary of the case, a document that it referred to as CPS 154, “establishing the existence of aggravated circumstances. The” court found the case respondent relied on, Simonetta, and another case it reviewed, Berryman/Hurd/Morgan/Morgan-Hurd, distinguishable. It concluded that “the trial court’s omission of the words ‘aggravated circumstances’ or reference to the pertinent statutes does not negate the factual findings it articulated establishing their existence and to which respondent pleaded no contest.” Thus, under the plain-error standard of review that applied here, reversal was not warranted. As to best interests, the court determined that “the trial court considered DLS’s individualized circumstances in finding that the stability, permanence, and finality provided by termination was in DLS’s best interests. [It] did not clearly err” as to those findings. However, as to the unproven allegations that respondent molested a second child, the record contained “no indication that anything was done to verify, corroborate, investigate, or otherwise follow up on” that report. The record also suggested “the unproven allegation was likely a significant factor in the trial court’s ultimate best-interest determination.” As a result, the court remanded for a new best-interest hearing.