Motion to rescind or enforce a settlement agreement; Order compelling the defendants to reinstate the plaintiff into the defendant-Association; Principle that a party may not assert a position in the trial court & later seek redress on appeal based on a contrary position; Kloian v. Domino’s Pizza LLC; Integration clause in a release; Hamade v. Sunoco, Inc. (R & M)

Holding that the defendant-Association’s bylaws governed the plaintiff’s membership, and finding no error in the trial court’s analysis and conclusion, the court affirmed the order compelling the defendants to reinstate plaintiff’s membership into the Association. He previously sued for revocation of “the Association’s decisions imposing fines and costs and suspending him. The parties reached a settlement and prepared a release,” which he signed. After he “paid his outstanding fines and fees and served his 30-day suspension, he applied for membership” but was denied. He moved to rescind or enforce the settlement agreement. The trial court ruled that the agreement did not state that he “was giving up rights under the bylaws of the Association and that, under the bylaws, his membership had to be accepted.” The court noted that in his lawsuit, plaintiff sought revocation of the Association’s 8/11/12 and 10/23/12 decisions. The August decision “made note of drug test results, assessed fines and fees, and stated that plaintiff would be ‘barred from pulling with our association, until the fines and penalties are paid. Following the payment of all fines and penalties, you will be suspended for 30 days.’” The October decision assessed another fee. Reading his complaint and the release together showed that these decisions remained in place. He asked for the complete revocation of those decisions; “he did not ask for a reinstatement after complying with the terms of the letters.” Thus, “the settlement and release did not directly address the issue at hand.” Defendants “clearly and unambiguously admitted below, in their ‘response to plaintiff’s motion to enforce settlement,’ that ‘[t]he by-laws govern the issue of whether Plaintiff can be reinstated.’” Under Article 4 of the bylaws, any person paying $30 to the Association and complying with its constitution and bylaws “shall have membership voting privileges.” A member “may be expelled ‘for cause and after hearing and notice to said member,’ but, as noted by the trial court, these procedures were not followed and plaintiff was never, in fact, expelled. A suspension does not equal an expulsion.”

Due diligence in locating a witness; Unavailable witness pursuant to MRE 804(a)(5); People v. Bean; MRE 804(b)(1); People v. Farquharson; Right to confrontation; People v. Garland; Ineffective assistance of counsel; Strickland v. Washington; People v. Pubrat; People v. Sabin (On Second Remand); Failure to object to a warrantless arrest; People v. Cohen; Law Enforcement Information Network (LEIN)

The court held that in light of the steps taken by Detective M to locate eyewitness-T, based on the information he had, he acted diligently in his attempts to locate her, and that the trial court properly found T to be unavailable, pursuant to MRE 804(a)(5). Also, the trial court did not err by admitting T’s preliminary exam testimony at trial pursuant to MRE 804(b)(1). Properly admitted under MRE 804(b)(1), the testimony did not run afoul of defendant’s right to confrontation under the Sixth Amendment. He was convicted of first-degree premeditated murder. He challenged the admission of T’s preliminary exam testimony, arguing that the prosecution did not show due diligence in attempting to secure T’s presence and that the admission of her preliminary exam testimony violated his right to confrontation under the Sixth Amendment. M testified that he took charge of the case and was given a trial subpoena for T. He painstakingly searched for T. He called the phone number T gave during her police interview, but she did not return the call. Next, M went by the address T provided and spoke with her aunt, who advised him that she had not seen T in some time and, in fact, rarely spoke with her. M next checked local hospitals and morgues, but could not find T. He utilized the LEIN, but was not able to locate any warrants for T, or find her in custody. Eventually, unnamed members of her family told M “that she may have gone to seek treatment for substance abuse. Based on this information,” M contacted “several area hospitals, local women’s shelters, and ‘other facilities’ to determine whether they were treating” T. Referring to patient privacy laws, none of these facilities would confirm or deny that T was under their care. M obtained a warrant and a witness detainer order for T’s arrest, but was unable to locate her. The court agreed with the trial court that the record adequately showed that the prosecution exercised due diligence in trying to locate T for trial. Although defendant argued that “the police should have requested more help from the prosecution or the trial court when several health facilities refused to disclose whether they were treating” T, the trial court issued a warrant for her arrest and a witness detainer order. “Beyond these measures, neither the trial court nor the prosecution could have provided much more assistance.” Affirmed.

Sentencing; People v. Lockridge; United States v. Crosby (2d Cir.); OV 8 (victim asportation or captivity); OV 12 (contemporaneous felonious criminal acts)

Holding that the defendant was entitled to a Crosby remand pursuant to Lockridge, the court remanded for further proceedings as to his sentences. He pleaded no contest to unarmed robbery, second-degree home invasion, and felonious assault. The trial court sentenced him to concurrent prison terms of 84 to 180 months each for the unarmed robbery and second-degree home invasion, and 24 to 48 months for the felonious assault. The Supreme Court, in lieu of granting leave to appeal, remanded the case to the court for consideration as on leave granted. Defendant’s only claim was that he was “entitled to a Crosby remand because the trial court engaged in judicial fact-finding at sentencing to mandatorily increase his sentencing guidelines range, thereby violating his rights under the Sixth Amendment.” The prosecution conceded that remand was required, and the court agreed, concluding that the facts underlying his 15-point score for OV 8 and 10-point score for OV 12 were not encompassed by his plea-based convictions or any other admission he made. Further, those scores affected his sentencing range. His total OV score was “86 points, which combined with his 24 prior record variable points, placed him in the C-VI cell of the applicable sentencing grid, for which the minimum sentence range is 43 to 86 months.” The scores for OVs 8 and 12 increased his “total OV score from 61 points to 86 points, which in turn changed his placement in OV Level V (36 - 71 points) to OV Level VI (75+ points), resulting in a higher guidelines range.” Because his minimum range “was actually constrained by a Sixth Amendment violation, and he was not subject to an upward departure,” defendant was entitled to a Crosby remand. The trial court “must determine whether it would have imposed materially different sentences but for the unconstitutional constraint on its discretion because of the mandatory application of the guidelines at the time of” his original sentencing, following the procedure set forth in Lockridge.

Child custody; Whether an established custodial environment (ECE) existed with both parents; MCL 722.27(1)(c); In re AP; Credibility; Berger v. Berger; The statutory best interest factors; MCL 722.23; McCain v. McCain; Dempsey v. Dempsey; Effect of childcare arrangements; Ireland v. Smith; Presumption that it is in the best interests of a child for the child to have a strong relationship with both of his or her parents; MCL 722.27a(1)

The court held that the trial court did not err in awarding both the plaintiff-mother and the defendant-father joint physical and legal custody of their child. At the time of the divorce, the trial court granted the parties joint physical and legal custody of the child, dividing parenting time equally on an alternating four day, three day rotation. On appeal, the court rejected plaintiff’s argument that the trial court erred in determining that an ECE existed with both parents. It agreed with the trial court that “ample evidence suggested that the child looked to both parents to provide ‘guidance, discipline, the necessities of life, and parental comfort.’” Although the parties “had disparate views on defendant-father’s involvement in the child’s life prior to the parties’ separation, there [wa]s evidence showing that the child was cared for by both parents during the child’s first three months.” In addition, after the parties’ separation, defendant “quickly filed an emergency motion because plaintiff was not allowing him to see the child.” He also consistently exercised his parenting time. Further, his home “provided an appropriate environment,” and the psychologist who tested both parents found him to be “‘an appropriate, warm, nurturing, appropriate caregiver.’” Finally, the court rejected her claim that the trial court erred in its determination as to several best interest factors. “Given the trial court’s determination on the best interest factors, which were not erroneous and most of which favored defendant, plaintiff has failed to show that the trial court’s ultimate decision was an abuse of discretion.” Affirmed.

Divorce; Effect of a prenuptial agreement; Allard v. Allard (Allard I, II, & III); MCL 557.28; Principle that spousal support has traditionally been regarded as distinct from a property division; Kyte v. Kyte; MCL 552.23(1); Principle that prenuptial agreements have traditionally been at least assumed to be capable of governing spousal support; Rinvelt v. Rinvelt; MCL 552.401; Valuation of an asset; Beason v. Beason; Jansen v. Jansen; Woodington v. Shokoohi

Pursuant to Allard III, the court held that the trial court’s modification of the value of the marital estate in the amended divorce judgment was not sustainable under Allard I. Thus, it reversed that judgment to the extent it modified the value of the marital estate in the original judgment, and remanded for reinstatement of this portion of the original judgment. It affirmed in all other respects, holding that the trial court did not abuse its discretion in awarding the plaintiff-ex-wife spousal support pursuant to MCL 552.23(1) and in declining to award her attorney fees. The defendant-ex-husband moved for reconsideration after the trial based on Allard I, arguing it “barred the invasion of separate property under MCL 552.23, MCL 552.401, and MCL 557.28 where a prenuptial agreement controlled” the property distribution, so “he should have received all of his separate property and plaintiff should have been awarded no spousal support. The trial court agreed in part. It deducted” the premarital values of one of his companies and of some rental properties from the marital estate. It found that 40% of his “income was attributable to separate property that could not be used for spousal support,” but that there was still a basis for transitional support. It reduced plaintiff’s monthly spousal support award to $3,000 for 7 years. While this appeal was pending, the Supreme Court held in Allard II that “as a general matter, even if a prenuptial agreement purported to divide the parties’ property between marital and separate estates, ‘the trial court could exercise its discretion under MCL 552.23(1) and MCL 552.401 to invade [a party’s] separate estate.’” On remand, in Allard III the court held “as an absolute matter ‘that parties cannot, by antenuptial agreement, deprive a trial court of its equitable discretion under MCL 552.23(1) and MCL 552.401[.]’” The court rejected defendant’s argument that the trial court improperly valued one of his companies, finding no abuse of discretion in the decision to use the valuation date that it did. While plaintiff argued that the court “wrongly decided in Allard III that prenuptial agreements under MCL 557.28 may pertain to either spousal support or attorney fees,” and that its discussion of that issue was non-binding dicta, the court was not persuaded that the discussion was dicta.

Action for insurance benefits under the No-Fault Act (MCL 500.3101 et seq.); Whether plaintiff was domiciled in her daughter’s home at the time of the accident such that she was entitled to personal protection insurance (PIP) benefits under her insurance policy; MCL 500.3114(1); MCL 500.3111; Dairyland Ins. Co. v. Auto-Owners Ins. Co.; Workman v. Detroit Auto. Inter–Ins. Exch.; Williams v. State Farm Mut. Auto. Ins. Co.; “Domicile” defined; Grange Ins. Co. of MI v. Lawrence

The court held that the trial court properly concluded that there was no genuine issue of material fact as to whether the plaintiff was covered as a resident relative under her daughter’s insurance policy, such that she and intervening plaintiff (Beaumont) were entitled to judgment as a matter of law on the issue of liability. Plaintiff sued defendant seeking insurance benefits after she was severely injured in a bus accident in Ohio. Beaumont intervened as a plaintiff seeking coverage for the medical services it provided. The parties filed cross-motions for summary disposition, disputing the proper standards for determining whether plaintiff, who had been living in Louisiana but had apparently moved back to Michigan, was domiciled with her daughter in Michigan and thus, covered by her insurance policy through defendant. The trial court ruled for plaintiff and Beaumont. On appeal, the court rejected defendant’s argument that the trial court misapplied the governing common law principles of domicile, noting that, contrary to defendant’s claims, the court “must consider the Workman-Dairyland factors in determining plaintiff’s domicile at the time of the accident and follow Williams as binding precedent.” It then found that, “[c]onsistent with Williams, the trial court properly concluded, based on the Workman-Dairyland factors, that plaintiff’s domicile was in Michigan with” her daughter, rather than in Louisiana. The court noted that “at least three out of the four Workman factors weigh[ed] in favor of a finding that plaintiff was domiciled with” her daughter at the time of the accident, and that “[m]ost of the Dairyland factors also weigh[ed] in favor of a finding that plaintiff was domiciled with” her daughter. “Consistent with . . . Williams, applying the Workman-Dairyland factors to the undisputed facts in this case shows, as a matter of law, that plaintiff had established her domicile in [her daughter’s] home—and abandoned her domicile in Louisiana—at the time of the accident.” Affirmed.

Slip & fall on ice; Premises liability; Bullard v. Oakwood Annapolis Hosp.; A premises possessor’s duty to use reasonable care to protect invitees from an unreasonable risk of harm caused by dangerous conditions on the premises; Hoffner v. Lanctoe; Lugo v. Ameritech Corp., Inc.; Lowrey v. LMPS & LMPH, Inc.; Whether the danger was open & obvious; Riddle v. McLouth Steel Prods. Corp.; Slaughter v. Blarney Castle Oil Co.; Janson v. Sajewski Funeral Home, Inc.; Negligence; Case v. Consumers Power Co.; A party’s common-law duty to exercise reasonable care & avoid harm when it acts, even if that action is related to its obligations under a contract; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Hill v. Sears, Roebuck & Co.; Causation; Auto-Owners Ins. Co. v. Seils; Principle that a duty in tort does not arise when it is based solely on the nonperformance of a contractual duty; Fultz v. UnionCommerce Assoc.

Holding that there was no genuine issue of material fact as to whether the ice on which the plaintiff slipped and fell was open and obvious, the court affirmed the trial court’s grant of summary disposition for the defendants-condominium association, gutter company, gutter installer, and snow removal contractor. Plaintiff sued defendants for injuries he sustained when he slipped and fell on black ice as he entered the carport in the parking lot of his condominium complex. The court rejected his argument that the trial court erred in granting summary disposition for the association because the ice was not open and obvious and it had actual or constructive notice of the condition. The court noted that, even if he did not see any ice or snow nearby, it was not “persuaded that the absence of visible snow or ice underneath the carport’s roof preclude[d] application of the open and obvious doctrine.” Further, the conditions that day “would have alerted an average user of ordinary intelligence to discover, upon casual inspection, a potentially hazardous situation from ice or melting and refreezing snow underneath the open-air carport.” Moreover, there was “no indication that the hazard included any special aspects so that it constituted an unreasonable risk of harm outside the scope of the open and obvious doctrine.” The “icy condition on which plaintiff fell was neither unreasonably dangerous nor effectively unavoidable.” It noted there was no genuine issue of material fact that the gutter company “was not asked to provide a general professional recommendation regarding the installation of gutters on the carports, but was, instead, specifically consulted regarding the front sides of the carports.” Thus, it “had no duty to provide general recommendations regarding the installation of additional gutters.” Next, the court noted there was no evidence that the snow removal contractor “created the condition that caused plaintiff’s fall, and plaintiff did not allege or identify the existence of a common-law duty owed by” the contactor to plaintiff separate and distinct from its contractual obligations to the association. Finally, the court found no genuine issues of material fact as to whether the gutter installer properly installed the gutters on the carport. The installer’s “only involvement was limited to installing the gutters as specified in its subcontract with [the gutter contractor], and there is no evidence that [it] failed to install the gutters in accordance with that contract, or that the installed gutters even contributed to the formation of the ice that caused” plaintiff’s fall.

Termination under §§ 19b(3)(c)(i), (g), & (j); In re Mason; In re Martin; Failure to comply with the service plan; In re White; Consideration of a parent’s substance abuse; In re AH; Children’s best interests; In re Olive/Metts Minors; In re CR; Consideration of the advantages of a foster home placement; In re Foster; Relative placement; In re Gonzales/Martinez

Holding that the trial court did not clearly err in finding that §§ (c)(i), (g), and (j) were established by clear and convincing evidence, or in finding that termination was in the children’s best interests, the court affirmed the order terminating the respondent-mother’s parental rights. The trial court ordered various services to assist her in addressing “her substance abuse issues, but she refused to participate in them. The children were in foster care for over a year and 10 months, respectively. During that time, respondent engaged in threatening conduct toward her therapists, service providers,” and others during attempts to engage in therapy services. She refused to provide substance abuse screening and missed 23 screens. There was evidence that she “continued to abuse alcohol—testimony established that respondent showed up to therapy sessions and parenting time while visibly intoxicated and smelling of alcohol. Given respondent’s utter refusal to admit that she had a problem and engage in services, no amount of additional time would have allowed” her to address her substance abuse issues. The court concluded that her “failure to participate in her service plan and her unaddressed substance abuse supported the trial court’s finding” that the statutory grounds for termination were established. As to the children’s best interests, the trial court specifically addressed their relative placement, and it was “not required to initiate a guardianship.” It considered this possibility, but “the maternal grandparents had requested to no longer supervise visitation at their house” due to issues with respondent, and the trial court was “wary about leaving the children in ‘legal limbo,’ which would be contrary to” their need for permanency and finality. While it was “undisputed that respondent and the children had a bond,” it was “not a healthy one” given her inability to remain sober enough to parent them.