Action for foreclosure of a land contract; Election of remedies doctrine; Barclae v Zarb; Gruskin v Fisher; Wilson v Taylor; Accord & satisfaction; Faith Reformed Church of Traverse City, MI v Thompson; Adequate notice of the alleged default; Waiver; Houston v Lud; Minchella v Fredericks

The court held that the trial court erred in barring plaintiff’s land contract foreclosure action based on “election of remedies, accord and satisfaction, and lack of adequate notice.” It also rejected defendant’s argument on appeal that plaintiff waived her right to seek foreclosure. It first determined that the trial court erred in ruling “plaintiff elected a remedy by filing a forfeiture action and agreeing to dismiss that action after defendant’s $130,000 payment.” It held that the “fact plaintiff did not just send a notice of forfeiture but filed a forfeiture action and dismissed that action after defendant paid $130,000 does not constitute an election of remedies. [She] would only have elected a remedy if the district court awarded her a judgment of possession and writ of restitution, neither of which occurred. Because [her] earlier forfeiture action did not bar her from seeking foreclosure, the trial court erred by granting defendant summary disposition under the election of remedies doctrine.” The court next concluded that defendant “did not establish an accord and satisfaction because the evidence did not show plaintiff accepted [his] payment under the condition [it] would fully discharge plaintiff’s claim.” The court noted that she notified him “she would exercise the land contract’s acceleration clause, requiring defendant to pay the full accelerated balance of approximately $2.9 million.” He asserted he paid her the $130,000 “before the parties dismissed her forfeiture action to discharge the full accelerated balance. But there was no record evidence that [he] communicated this alleged condition to plaintiff or that [she] accepted the payment with knowledge of the condition.” As to the trial court’s adequacy of notice ruling, the unambiguous land contract language did “not require notice of a default 45 days before filing a foreclosure action.” It added that plaintiff notified him “of his default before filing the forfeiture action, and [she] did not have to provide new notice before seeking foreclosure.” Finally, the court found there “was no evidence from which the trial court could have concluded plaintiff waived her contractual right to seek foreclosure.” Reversed and remanded.

Juvenile delinquency; Sufficiency of the evidence; People v Kenny; Assault with intent to murder (AWIM); MCL 750.83; Identity; People v Yost; Intent to kill; People v Brown; Transferred intent; People v Lawton; Felony-firearm; MCL 750.227b(1); People v Avant

The court held that sufficient evidence supported respondent’s juvenile adjudications for AWIM and felony-firearm. Respondent was adjudicated responsible after an attempted carjacking was followed minutes later by gunfire directed at responding officers. Although the trial court found that the victim “wasn’t really able to identify who the person was that had the gun” during the attempted carjacking, it found respondent responsible for AWIM and felony-firearm for the later shooting at the officers. On appeal, the court first held that identity was sufficiently established because dashcam footage showed that “the shooter wore gray,” the other individuals wore black, and troopers later found respondent nearby wearing gray sweatpants. The court also relied on testimony that a handgun with an extended magazine was found “directly beneath him,” concluding that “a rational factfinder could reasonably infer that respondent was the individual who fired at the officers.” As to intent, the court held that the evidence supported an intent to kill because respondent “turned toward the officers and fired 8 to 10 rounds at their vehicle,” struck the cruiser twice, fled, and attempted to conceal his clothing and the firearm. The court further rejected respondent’s argument that the evidence did not show an intent to kill each officer, explaining that under transferred intent, “‘it is only necessary that the state of mind exist, not that it be directed at a particular person.’” Because the AWIM adjudications were supported, respondent’s derivative challenge to the felony-firearm adjudications also failed. Affirmed.

Search & seizure; Consent; People v Rodriguez; Third-party consent; People v Brown; Voluntariness; People v Farrow; Ineffective assistance of counsel; Failure to move to suppress; People v Trakhtenberg; Sentencing; OV 4 scoring; MCL 777.34(1)(a); People v Lampe

The court held that defendant failed to show a Fourth Amendment violation, that counsel was not ineffective for failing to seek suppression of the firearm, and that the trial court properly assessed 10 points for OV 4. Defendant was convicted of armed robbery and felony-firearm after a traffic incident escalated, and the victims testified that defendant pointed a gun, struck one victim with it, took money and necklaces, and later threw the victim’s phone into the street. On appeal, the court first held that the warrantless search of defendant’s residence was valid because defendant’s fiancée lived there and gave consent to search. Although the police detained defendant and another occupant and ordered everyone out of the home, the court found “little evidence that police actions rendered her consent involuntary.” It emphasized that she “accompanied officers throughout the search,” and had “ample opportunity to limit or revoke her consent but did not do so.” Because the search was supported by valid consent, the court found it unnecessary to decide whether it also qualified as a protective sweep. The court next held that counsel was not ineffective for failing to move to suppress the gun because the motion “would have failed,” and “even without the firearm, the victims’ testimony independently established defendant’s guilt.” Finally, the court held that OV 4 was properly scored because one victim “sought treatment for his ‘mental state,’ including therapy,” experienced paranoia, and was “constantly looking over his shoulders,” while the other reported a PTSD diagnosis and treatment. Affirmed.

Ineffective assistance of counsel; Failure to request a self-defense instruction as to felony-firearm charges; M Crim JI 11.34(c); Remedy

The court held that defendant established both prongs of his ineffective assistance of counsel claim for failure to request a self-defense instruction as to the felony-firearm charge predicated on second-degree murder. But he was not entitled to relief on the felony-firearm conviction predicated on FIP because he did not establish prejudice. Thus, the court vacated his “conviction and sentence for the felony-firearm count predicated on second-degree murder” and remanded for a new trial in that respect but it otherwise affirmed his convictions and sentences. He was acquitted of second-degree murder. The prosecution conceded that trial counsel was ineffective for failing to request a self-defense instruction as to the felony-firearm charges. Defense “counsel requested—and the trial court provided—several self-defense instructions,” but defense counsel failed to “request M Crim JI 11.34(c) (self-defense as to felony-firearm)[.]” The prosecution agreed with defendant on appeal that “the evidence supported that instruction and that counsel’s failure to request it was objectively unreasonable. The defense theory was that defendant acted in self-defense, and evidence supported that theory.” The court held that under the circumstances, the “failure to request a self-defense instruction as to the felony-firearm charges fell below an objective standard of reasonableness” He also established prejudice, with the result that his “conviction for the felony-firearm charge predicated on second-degree murder must be vacated.” He asked the court “to vacate both felony-firearm convictions” and remand with instructions to dismiss the charges with prejudice. The court declined to do so, noting that “the appropriate remedy is to vacate the affected conviction and remand for a new trial.” In addition, he was “not entitled to relief on the felony-firearm conviction predicated on” FIP because he did not establish prejudice. While the jury was instructed on self-defense as to both the murder and FIP charges, “it rejected that defense as to the latter, ultimately convicting” him of FIP. “That verdict necessarily reflects that the jury did not credit defendant’s claim that his possession of the firearm was justified.”

Admission of a Facebook video; MRE 403; Relevance; MRE 401; People v Mills; Materiality; Intent element of AWIM; “Probative force”; “Unfair prejudice”; Sufficient evidence for an AWIM conviction; PSIR accuracy challenge; Sentencing, Scoring of OV 3; MCL 777.33(1)(c); “Life-threatening”; “Bodily injury”; People v Rosa

The court held that the trial court did not abuse its discretion in admitting the Facebook video at issue and that there was sufficient evidence to support defendant’s AWIM conviction. It also upheld the trial court’s 25-point score for OV 3. But it remanded for the trial court to resolve his challenge to the accuracy of the PSIR. He was also convicted of felonious assault and felony-firearm. Several months after the incident giving rise to the case, while he was released on bond, he “created a Facebook Live video in which he appeared to threaten” the victim (J). He argued that the trial court abused its discretion in admitting the video “because it was filmed approximately 6 months after the shooting and its probative value was thus substantially outweighed by the danger of unfair prejudice under MRE 403.” The court noted that his “intent constituted a central issue at trial.” It concluded that his “statements in the video, specifically the assertion that he would kill the victim ‘again,’ support an inference that defendant harbored the intent to kill at the time of the initial shooting—despite the video having been recorded months after the incident. As the evidence bears directly on the issue of defendant’s specific intent regarding the AWIM charge,” it qualified as “material” under Mills. The court further found “no indicia of unfair prejudice arising from the video’s admission.” As to the sufficiency of the evidence, in addition to the video the prosecution presented “uncontroverted proof that defendant discharged a firearm, striking [J]. Under Michigan law, the intentional use of a deadly weapon, such as a firearm, is sufficient to support an inference of intent to kill.” The prosecution agreed with defendant that the trial court erred in not holding a hearing or making “any factual finding when defense counsel challenged the inclusion of information in the PSIR indicating that defendant had gang affiliations.” But it rejected his challenge to the scoring of OV 3, holding that a preponderance of the evidence supported that J’s “injuries were life-threatening or permanently incapacitating.” The court affirmed defendant’s conviction and sentence but remanded as to the PSIR.

Carrying a concealed weapon (CCW); MCL 750.227(2); License exemption; MCL 750.231a(1)(a); Jury instructions; M Crim JI 11.10; People v Henderson; Affirmative defense; People v Leffew; Burden of production; People v Perkins; Defendant’s assertion of licensure; People v Combs; People v Pegenau; Due process; Right to present a defense; People v Kurr

The court held that the trial court did not abuse its discretion by refusing to instruct the jury on the concealed pistol license (CPL) exemption to the CCW statute. Defendant was convicted of CCW after an officer saw that the front pocket of his sweatshirt was “unusually heavy,” confirmed through dispatch that he lacked a valid CPL, approached him, and recovered a pistol from his sweatshirt pocket. On appeal, defendant argued that the officer’s testimony that defendant said he had a CPL and did not know it had expired was enough to require M Crim JI 11.10. The court disagreed, explaining that the absence of a valid CPL is not an element of CCW, and once the prosecution presented evidence that defendant knowingly carried a concealed pistol, defendant had the burden to produce “some evidence” that he was licensed. The court relied on Henderson for the rule that a defendant must inject the license issue by “offering some proof—not necessarily by official record—that he has been so licensed.” The court held that defendant’s statement to the officer was only “a mere assertion at the time of arrest” and was insufficient under Combs and Pegenau, which require “‘more than defendant’s own assertion.’” Because defendant failed to meet his burden of production, the prosecution had no duty to prove beyond a reasonable doubt that he lacked a valid CPL, and no due-process violation occurred because there was no instructional error. Affirmed.

Habeas corpus; The Antiterrorism & Effective Death Penalty Act (AEDPA); Deferential standard of review; Self-representation; Whether defendant’s waiver of counsel was “unequivocal”; Whether the waiver was voluntary

[This appeal was from the ED-MI.] The court affirmed the denial of habeas relief, holding that there were “reasonable arguments” that petitioner-Karacson voluntarily waived his right to counsel. A Michigan jury convicted him of arson of his own home and insurance fraud. Before trial, he filed grievances against two attorneys who were appointed to represent him. The first one withdrew and the second informed the trial court that Karacson wished to represent himself. “On the day of jury selection, Karacson confirmed” this. The trial court warned him of the dangers arising from self-representation and appointed his counsel as his standby advisor. After a lunch break, Karacson said that he was not willing to proceed and wanted a new attorney. The trial court denied his request, noting that he had requested to represent himself and that a group of potential jurors were “‘waiting in the hallway[.]’” Karacson carried on with standby counsel. In his habeas petition, he argued that, although he represented himself at trial, he had not waived his right to an attorney. The district court denied the writ, concluding that the Michigan courts had “reasonably rejected his claim on direct appeal.” On appeal here, the court explained that the AEDPA requires a “highly deferential” standard of review. If “any reasonable argument supports the state court’s decision, Karacson can’t obtain relief.” It concluded the record showed he “knowingly and intelligently waived” his right to counsel before trial. He expressed his desire to represent himself to his second attorney, and confirmed this to the trial court “when he said he ‘believe[d]’ he wanted to represent himself.” The trial court then “proceeded to ensure Karacson was committed to representing himself.” It appropriately informed him of the procedural requirements and of the risks that come with self-representation. He responded, “Yes, sir.” And when the trial court asked if he was sure he wanted to do that, he again answered, “Yes.” The court found that this “clear affirmation established that, despite knowing the trouble he might face, Karacson intentionally waived his right to counsel” Further, he repeatedly confirmed his choice during the trial. The court held that there was “a sufficient basis to find unequivocal waiver.” It also held that his waiver was voluntary. He could not “show that his attorney was unprepared for trial. Instead, a fairminded jurist could decide that Karacson had a reasonable choice between adequate counsel and representing himself.”

Juvenile delinquency; Sufficiency of the evidence; People v Kenny; Assault with intent to murder (AWIM); MCL 750.83; Identity; People v Yost; Intent to kill; People v Brown; Transferred intent; People v Lawton; Felony-firearm; MCL 750.227b(1); People v Avant

The court held that sufficient evidence supported respondent’s juvenile adjudications for AWIM and felony-firearm. Respondent was adjudicated responsible after an attempted carjacking was followed minutes later by gunfire directed at responding officers. Although the trial court found that the victim “wasn’t really able to identify who the person was that had the gun” during the attempted carjacking, it found respondent responsible for AWIM and felony-firearm for the later shooting at the officers. On appeal, the court first held that identity was sufficiently established because dashcam footage showed that “the shooter wore gray,” the other individuals wore black, and troopers later found respondent nearby wearing gray sweatpants. The court also relied on testimony that a handgun with an extended magazine was found “directly beneath him,” concluding that “a rational factfinder could reasonably infer that respondent was the individual who fired at the officers.” As to intent, the court held that the evidence supported an intent to kill because respondent “turned toward the officers and fired 8 to 10 rounds at their vehicle,” struck the cruiser twice, fled, and attempted to conceal his clothing and the firearm. The court further rejected respondent’s argument that the evidence did not show an intent to kill each officer, explaining that under transferred intent, “‘it is only necessary that the state of mind exist, not that it be directed at a particular person.’” Because the AWIM adjudications were supported, respondent’s derivative challenge to the felony-firearm adjudications also failed. Affirmed.

Motion to set aside a default judgment; MCR 2.603(D)(1); “Good cause”; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC; Shawl v Spence Bros, Inc; Service of process; Credibility determination; Due process; Opportunity to be heard; Sanctions for filing a frivolous motion; MCR 2.625(A)(2); MCL 600.2591

Holding that defendant-appellant did not present a basis to set aside the default judgment, and that the trial court properly imposed sanctions against him for filing a frivolous motion, the court affirmed. The default judgment quieted title to a parcel of property in plaintiff. After denying defendant’s motion to set it aside, the trial court issued $500 in sanctions against him. It conducted a hearing on defendant’s motion, “during which it addressed the issue of whether plaintiff properly served defendant, and it found the statements of plaintiff’s counsel more credible than that of defendant and” his partner. Defendant essentially asked the court to reach a different conclusion as to witness credibility. It declined to do so. It also noted that while “the trial court appeared to consider the status of plaintiff’s counsel as an officer of the court in resolving credibility, it expressly stated that its determination was based on ‘the whole facts and circumstances of this case.’ Moreover, the proof of service document and the time stamps reflected in” a 9/23 hearing transcript for a related eviction proceeding corroborated counsel’s representations. The court further found that defendant failed to show “that he was denied an opportunity to be heard.” He did not establish how any bar to cross-examining plaintiff’s counsel “deprived him of due process. He was afforded a meaningful opportunity to present his position and to contest the assertions of plaintiff’s counsel regarding service.” As to the sanctions award, the record did not show “that defendant maintained a viable interest in the subject property” and even assuming his “proffered land contract and payment receipts were authentic, Michigan’s race-notice statute” governed priority. Plaintiff recorded its interest in the “property approximately two years before defendant recorded his purported land contract” (which was unfulfilled).

Estate surcharge; Scope of remand; Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC; Reopening proofs; Bonner v Ames; Tax penalties; Tax interest; Prejudgment interest; MCL 600.6013(8); “Money judgment”; Moore v Carney; Personal representative (PR)

The court held that the probate court did not exceed the scope of remand by considering additional evidence on tax-related damages and did not err by awarding statutory prejudgment interest. In a prior appeal, the court affirmed the finding that defendant-Tracy breached her fiduciary duties while managing the estate and related LLCs, but vacated the inclusion of tax penalties and interest because the estate’s future tax liability was then “uncertain and speculative.” On remand, plaintiff-PR showed that federal and state tax penalties and interest had since been assessed, and the probate court entered a new judgment including those amounts and prejudgment interest. The court first held that the probate court stayed within the remand because the prior opinion “vacated” rather than reversed the tax-damages award, and vacating returned the issue “to a blank slate.” The court emphasized that the prior ruling did not mean tax penalties and interest were unrecoverable, only that the original evidence was insufficient because the amounts had not yet been assessed. Given the “unique factual and procedural posture” and the time needed for formal tax determinations, the probate court had discretion to receive additional evidence. The court also held that prejudgment interest was proper because the judgment replenished an insolvent estate for creditors, and the case bore the hallmarks of a “typical civil action” resulting in a “money judgment.” The court rejected Tracy’s argument that interest was improper because she was the residual beneficiary, noting that creditors had filed approximately $4.8 million in claims and were delayed in receiving payment. Affirmed.

Estate surcharge; Scope of remand; Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC; Reopening proofs; Bonner v Ames; Tax penalties; Tax interest; Prejudgment interest; MCL 600.6013(8); “Money judgment”; Moore v Carney; Personal representative (PR)

The court held that the probate court did not exceed the scope of remand by considering additional evidence on tax-related damages and did not err by awarding statutory prejudgment interest. In a prior appeal, the court affirmed the finding that defendant-Tracy breached her fiduciary duties while managing the estate and related LLCs, but vacated the inclusion of tax penalties and interest because the estate’s future tax liability was then “uncertain and speculative.” On remand, plaintiff-PR showed that federal and state tax penalties and interest had since been assessed, and the probate court entered a new judgment including those amounts and prejudgment interest. The court first held that the probate court stayed within the remand because the prior opinion “vacated” rather than reversed the tax-damages award, and vacating returned the issue “to a blank slate.” The court emphasized that the prior ruling did not mean tax penalties and interest were unrecoverable, only that the original evidence was insufficient because the amounts had not yet been assessed. Given the “unique factual and procedural posture” and the time needed for formal tax determinations, the probate court had discretion to receive additional evidence. The court also held that prejudgment interest was proper because the judgment replenished an insolvent estate for creditors, and the case bore the hallmarks of a “typical civil action” resulting in a “money judgment.” The court rejected Tracy’s argument that interest was improper because she was the residual beneficiary, noting that creditors had filed approximately $4.8 million in claims and were delayed in receiving payment. Affirmed.

Action for foreclosure of a land contract; Election of remedies doctrine; Barclae v Zarb; Gruskin v Fisher; Wilson v Taylor; Accord & satisfaction; Faith Reformed Church of Traverse City, MI v Thompson; Adequate notice of the alleged default; Waiver; Houston v Lud; Minchella v Fredericks

The court held that the trial court erred in barring plaintiff’s land contract foreclosure action based on “election of remedies, accord and satisfaction, and lack of adequate notice.” It also rejected defendant’s argument on appeal that plaintiff waived her right to seek foreclosure. It first determined that the trial court erred in ruling “plaintiff elected a remedy by filing a forfeiture action and agreeing to dismiss that action after defendant’s $130,000 payment.” It held that the “fact plaintiff did not just send a notice of forfeiture but filed a forfeiture action and dismissed that action after defendant paid $130,000 does not constitute an election of remedies. [She] would only have elected a remedy if the district court awarded her a judgment of possession and writ of restitution, neither of which occurred. Because [her] earlier forfeiture action did not bar her from seeking foreclosure, the trial court erred by granting defendant summary disposition under the election of remedies doctrine.” The court next concluded that defendant “did not establish an accord and satisfaction because the evidence did not show plaintiff accepted [his] payment under the condition [it] would fully discharge plaintiff’s claim.” The court noted that she notified him “she would exercise the land contract’s acceleration clause, requiring defendant to pay the full accelerated balance of approximately $2.9 million.” He asserted he paid her the $130,000 “before the parties dismissed her forfeiture action to discharge the full accelerated balance. But there was no record evidence that [he] communicated this alleged condition to plaintiff or that [she] accepted the payment with knowledge of the condition.” As to the trial court’s adequacy of notice ruling, the unambiguous land contract language did “not require notice of a default 45 days before filing a foreclosure action.” It added that plaintiff notified him “of his default before filing the forfeiture action, and [she] did not have to provide new notice before seeking foreclosure.” Finally, the court found there “was no evidence from which the trial court could have concluded plaintiff waived her contractual right to seek foreclosure.” Reversed and remanded.