Offer of judgment; MCR 2.405; Actual costs; Attorney fees; Interest of justice exception; Token or de minimis offer; Luidens v 63rd Dist Court; Costs & expert fees; Derderian v Genesys Health Care Sys

The court held that the trial court abused its discretion by denying defendants-sellers’ request for taxable costs and expert fees, but did not abuse its discretion by denying attorney fees under the interest-of-justice exception to MCR 2.405. Plaintiffs-buyers sued after discovering a prior fire at the residential property they bought from defendants. After defendants obtained summary disposition, they moved for actual costs and attorney fees based on plaintiffs’ rejection of a $5,000 offer of judgment, but the trial court denied the motion. On appeal, the court held that costs other than attorney fees were mandatory because “the adjusted verdict” was more favorable to defendants than the rejected offer, and the interest-of-justice exception does not apply to that part of actual costs. Thus, the trial court had to award $2,065.15 in costs and expert fees. But the court held that the trial court did not abuse its discretion by denying attorney fees because the $5,000 offer was reasonably viewed as “de minimis in the context of the case” where plaintiffs sought rescission of a $445,000 purchase agreement and the offer came before “substantial discovery took place.” Because attorney fees were properly denied, no evidentiary hearing on their reasonableness was required. Reversed in part, affirmed in part, and remanded.

Action for unpaid legal fees; Collateral estoppel; Barrow v Pritchard; Effect of a prior case in which the court declined to enforce plaintiffs’ charging lien; Souden v Souden

Holding that collateral estoppel did not bar plaintiffs-attorney and law firm’s claims for unpaid legal fees, the court reversed the dismissal of their breach of contract, account stated, and unjust enrichment claims, and remanded. Plaintiffs had represented defendant in a post-divorce proceeding. In a previous decision (Eldridge I), the court declined to enforce plaintiffs’ charging lien. The court agreed with plaintiffs here that it “did not determine whether defendant owed unpaid legal fees” in Eldridge I. Rather, “it addressed the charging liens for specific funds.” It held there that the trial court did not abuse its discretion in “declining to enforce plaintiffs’ charging lien against defendant.” The court noted that “an attorney charging lien is a distinct, equitable right to have legal fees secured out of a judgment.” Its existence is automatic, but its enforcement “depends on the facts of the case.” In dismissing the charging lien, the trial court and the court “did not determine plaintiff did not have a right to recover additional legal fees from defendant. Mutuality of estoppel does not apply in this matter because while defendant would have had to pay the legal fees out of the judgment in Eldridge I if the charging lien was enforced, it does not automatically then mean that no fees are owed or can ever be collected. The trial court erred when it dismissed plaintiffs’ claims based on collateral estoppel.” But the court affirmed the trial court’s ruling as to plaintiffs’ fraud claim as they abandoned their challenge to the dismissal of that claim on the basis it was time-barred.

Directed verdict; Assaulting, resisting, or obstructing a police officer; MCL 750.81d(1); Lawful police action; Domestic violence arrest; MCL 764.15a; Fourth Amendment; Warrantless entry; Consent; Georgia v Randolph; Domestic violence investigation; City of Westland v Kodlowski; Other acts evidence; Domestic violence; MCL 768.27b; MRE 403; Propensity evidence; People v Propp; People v Cameron; Mistrial; Prosecutorial error; Presumption of innocence; Brady v Maryland violation; Suppression of evidence; Materiality; Duress instruction; People v Lemons; People v Kolanek; Right against self-incrimination; Juror bias; Impartial jury

The court held that officers lawfully entered the apartment to arrest defendant, the trial court properly admitted domestic-violence other-acts evidence, and defendant was not entitled to relief on his prosecutorial-error, Brady, duress-instruction, or juror-bias claims. He was convicted of assaulting, resisting, or obstructing a police officer and second-offense domestic violence after an incident involving his pregnant girlfriend. The trial court denied his directed-verdict motion, admitted evidence of a prior domestic-violence incident, denied a mistrial, refused a duress instruction, and allowed the case to proceed to the jury. On appeal, the court held that the warrantless entry was lawful because the victim consented and, under domestic-violence-investigation principles, a co-occupant’s refusal “does not preclude officers from continuing to investigate cases of potential domestic violence.” The court next held that the other-acts evidence was admissible under MCL 768.27b because both incidents involved defendant choking his pregnant girlfriend, making the evidence probative of his “propensity to choke his partner,” and any unfair prejudice did not substantially outweigh its value. It rejected the mistrial and prosecutorial-error claims because the evidence was properly admitted and the prosecutor was “free to argue the evidence and all reasonable inferences” from it. The court also held that defendant failed to establish a Brady violation because he did not show the prosecution suppressed the victim’s alleged prior statement that she initiated the physical altercation. It further held that a duress instruction was unwarranted because a reasonable person would not have feared death or serious bodily harm after repeated police warnings and opportunities to comply. Finally, the court rejected his juror-bias claim because he had one peremptory challenge remaining and expressed satisfaction with the jury. Affirmed.

Sentencing; Proportionality; Effect of a within-guidelines sentence; People v Posey; Unusual circumstances; People v Burkett; Effect of defendant’s age; De facto life sentence; People v Purdle (On Remand); Wide minimum guidelines range; People v Lowery; Sentence exceeding life expectancy; Distinguishing People v Eads

The court held that defendant’s age did not render his within-guidelines sentence disproportional or a life sentence, and that he did not establish an unusual circumstance to overcome the presumption of proportionality. He was convicted of second-degree murder and sentenced as a fourth-offense habitual offender to 50 to 75 years. His minimum guidelines range was 365 to 1,200 months. He was in his 50s at the time of the crime. While he asserted the trial court did not consider his circumstances in sentencing him, at sentencing it cited the facts of the case, “noting defendant lied to the police, continued to visit” his wife’s (H] home even though he was not welcome, and killed the victim there “with either a gun or a sharp instrument.” The court noted that while “defendant’s age may have rendered any sentence within the guidelines range a de facto life sentence, the trial court considered the facts of the case and the impact defendant’s actions had on the victim’s family.” As to his claim that the minimum “guidelines range was too wide and gave the trial court ‘unfettered discretion’ to render his sentence[,]” it was true that his range spanned 70 years, but the fact that he was sentenced as a fourth-offense habitual offender enhanced his range. In arguing that his sentence was disproportionate because it exceeded his life expectancy and he could not be expected to serve it, citing Eads, the court noted that he was not a juvenile and his sentence was not an upward departure from the guidelines. As to his contention that “his sentence was a de facto life without the possibility of parole sentence, which is reserved for” first-degree murder convictions, rendering it disproportionate for his second-degree murder conviction, the court rejected this argument in Purdle. “The offense conduct, conviction, and sentence imposed in Purdle, which [it] held was proportionate, are similar to the offense conduct, conviction, and sentence imposed here.” Affirmed.

Offer of judgment; MCR 2.405; Actual costs; Attorney fees; Interest of justice exception; Token or de minimis offer; Luidens v 63rd Dist Court; Costs & expert fees; Derderian v Genesys Health Care Sys

The court held that the trial court abused its discretion by denying defendants-sellers’ request for taxable costs and expert fees, but did not abuse its discretion by denying attorney fees under the interest-of-justice exception to MCR 2.405. Plaintiffs-buyers sued after discovering a prior fire at the residential property they bought from defendants. After defendants obtained summary disposition, they moved for actual costs and attorney fees based on plaintiffs’ rejection of a $5,000 offer of judgment, but the trial court denied the motion. On appeal, the court held that costs other than attorney fees were mandatory because “the adjusted verdict” was more favorable to defendants than the rejected offer, and the interest-of-justice exception does not apply to that part of actual costs. Thus, the trial court had to award $2,065.15 in costs and expert fees. But the court held that the trial court did not abuse its discretion by denying attorney fees because the $5,000 offer was reasonably viewed as “de minimis in the context of the case” where plaintiffs sought rescission of a $445,000 purchase agreement and the offer came before “substantial discovery took place.” Because attorney fees were properly denied, no evidentiary hearing on their reasonableness was required. Reversed in part, affirmed in part, and remanded.

Action for unpaid legal fees; Collateral estoppel; Barrow v Pritchard; Effect of a prior case in which the court declined to enforce plaintiffs’ charging lien; Souden v Souden

Holding that collateral estoppel did not bar plaintiffs-attorney and law firm’s claims for unpaid legal fees, the court reversed the dismissal of their breach of contract, account stated, and unjust enrichment claims, and remanded. Plaintiffs had represented defendant in a post-divorce proceeding. In a previous decision (Eldridge I), the court declined to enforce plaintiffs’ charging lien. The court agreed with plaintiffs here that it “did not determine whether defendant owed unpaid legal fees” in Eldridge I. Rather, “it addressed the charging liens for specific funds.” It held there that the trial court did not abuse its discretion in “declining to enforce plaintiffs’ charging lien against defendant.” The court noted that “an attorney charging lien is a distinct, equitable right to have legal fees secured out of a judgment.” Its existence is automatic, but its enforcement “depends on the facts of the case.” In dismissing the charging lien, the trial court and the court “did not determine plaintiff did not have a right to recover additional legal fees from defendant. Mutuality of estoppel does not apply in this matter because while defendant would have had to pay the legal fees out of the judgment in Eldridge I if the charging lien was enforced, it does not automatically then mean that no fees are owed or can ever be collected. The trial court erred when it dismissed plaintiffs’ claims based on collateral estoppel.” But the court affirmed the trial court’s ruling as to plaintiffs’ fraud claim as they abandoned their challenge to the dismissal of that claim on the basis it was time-barred.

Involuntary dismissal; MCR 2.504(B)(2); Undue influence; Presumption of undue influence; Fiduciary relationship; Guardian; MCL 700.1104(e); In re Estate of Karmey; Burden of production; In re Peterson Estate; Testamentary capacity; MCL 700.2501(2); In re Sprenger’s Estate; Rebuttal evidence; Credibility; Bill & Dena Brown Trust v Garcia

The court held that the probate court did not err by denying appellant-son’s motion for involuntary dismissal or by finding that the decedent’s 2016 will was not the product of undue influence. A 2002 will benefited appellant and other children, but after the decedent was injured in a motor vehicle accident and became angry about appellant’s role in placing him in rehabilitation, he executed a 2016 will benefiting appellees-Daniel and Karen and disinheriting appellant and appellee-Nicholas. The probate court found that a presumption of undue influence applied, denied appellant’s motion for involuntary dismissal during the bench trial, and later admitted the 2016 will to probate. On appeal, the court first held that the probate court did not err by finding enough rebuttal evidence to continue the trial because witnesses described the decedent as “extremely strong-willed,” which supported that he acted “of his own free will,” and the probate court was not yet rendering judgment on the merits. The court next held that the probate court did not err on the final undue-influence ruling because “‘motive, opportunity, or even ability to control’” are insufficient absent affirmative evidence that influence was actually exercised. It reasoned that the decedent separately told his attorney that he “wants to redo his will,” that a psychologist had “no doubts” he was capable of making a new will, and that appellees were not present when the will was executed. The court concluded that, fair or not, the decedent had reasons for changing his estate plan, and the probate court did not err by finding those reasons were not based on undue influence. Affirmed.

Termination under § 19b(3)(c)(ii); In re Sanborn; Reasonable reunification efforts; Accommodations for a respondent’s learning disability; Children’s best interests; In re White; In re Atchley; Relative placement consideration; In re Olive/Metts

The court held that the DHHS made reasonable reunification efforts, that § (c)(ii) supported termination, and that terminating respondent-father’s parental rights was in his children’s best interests. Thus, it affirmed the termination order. It was clear from the record that his “parenting skills were the primary hurdle to reunification over the approximately three years of services provided.” Further, contrary to his claim on appeal, the record showed he “was given access to a plethora of services aimed at helping him overcome the barrier his parenting skills posed to reunification, many of which were provided to respondent one-on-one.” The court noted that he did not explain what made those services insufficient and did not “state what other accommodating services he believes should have been additionally provided[.]” As to the existence of § (c)(ii), respondent’s rights were terminated “over 1,000 days after the initial dispositional order[,]” and while jurisdiction was initially exercised on other grounds, it became clear that his “deficient parenting skills significantly affected his ability to safely and properly care for” the children. There “was a wealth of testimony and documentation to the effect that respondent was unable to adequately respond to [their] needs in a timely manner, which often raised safety concerns[.]” In addition, he “received recommendations to rectify his parenting-skills issues and failed to do so despite having a reasonable opportunity.” Finally, sufficient evidence supported the trial court’s finding that there was no reasonable likelihood that he would “rectify his parenting-skills issues within a reasonable time given” the children’s ages, in “light of the length of the provision of services without adequate improvement in respondent’s parenting skills[.]” The court also concluded that the trial court did not clearly err in finding that terminating his rights was in the children’s best interests, based on numerous factors.

Reasonable reunification efforts; MCL 712A.19a(2); Case service plan; In re Hicks/Brown; Parent participation & benefit; In re Frey; In re TK; Termination under § 19b(3)(j); Likelihood of harm; Emotional harm; In re Sanborn; Failure to comply with service plan; In re White; Children’s best interests; MCL 712A.19b(5); Permanency, stability, & finality; Individualized best-interest findings; In re Moss

The court held that DHHS made reasonable reunification efforts, that termination was proper under § (j), and that termination served the children’s best interests. The children were removed after domestic-violence and drug-use concerns, and respondent-father was ordered to participate in services addressing substance abuse, domestic violence, housing, and income. After multiple adjourned termination hearings, the trial court terminated the father’s parental rights. On appeal, the court first held that reasonable efforts were made because DHHS provided referrals and services for housing, employment, substance abuse, domestic violence, and supportive visitation, while the father only intermittently complied and still failed to “benefit from” many services. The court next held that § (j) was established because, despite “significant and commendable progress in achieving sobriety,” he still lacked child-appropriate housing, had not saved for a security deposit, had not progressed beyond supervised parenting time, and had not made meaningful progress on domestic-violence concerns, creating a reasonable likelihood of harm if the children were returned. The court also held that termination served the children’s best interests because the foster home provided “‘consistency, structure, security, love, affection,’” the older child was “begging for this to be done and get permanency,” the younger child had been in care for about half her life, and the trial court properly gave greater weight to permanence, stability, and finality than to the children’s bond with the father. Affirmed.

Termination under § 19b(3)(b)(i); In re Jenks; Credibility determinations; In re HRC; Children’s best interests; In re Sanborn; Effect of the sexual victimization of one child on that child & siblings; In re Hudson

Holding that § (b)(i) supported termination and that terminating respondent-father’s parental rights was in the children’s best interests, the court affirmed the termination order. The trial court found that the testimony of one of the children (ATK) “asserting respondent sexually abused her was credible.” While no criminal charges were filed and he denied the allegations, the court noted that it does not displace a trial court’s credibility determinations. And a respondent’s denial of sexual abuse allegations does not preclude a finding that § (b)(i) exists when the trial court believed a child’s testimony alleging such abuse. The “trial court’s finding that ATK suffered sexual abuse at respondent’s hand and experienced repeated instances of inappropriate sexual touching mean[s] that its findings that the children ‘suffered physical injury or physical or sexual abuse,’ and that there was a reasonable likelihood it would happen again in the foreseeable future, were not clearly erroneous.” This statutory ground “‘specifically states that it applies to a child on the basis of the parent’s conduct toward the child’s siblings[.]’” As to the children’s best interests, in addition to ATK’s assertions, ADK’s testimony describing respondent’s treatment of the children at his home supported “the trial court’s finding as to respondent’s deficient parenting ability.” The children all “have special needs that are treated with prescription medication, but respondent failed to consistently administer [it] as prescribed. ADK testified that he believed his prescribed medication helped him, but that respondent withheld it” due to the side-effects. Further, respondent indicated “he failed to seek urgent medical attention when ATK ingested medication not prescribed for her, which he testified was an effort to harm herself.” The petition also contained physical abuse allegations “that were substantiated by ADK’s testimony.” ADK additionally testified that neither he “nor the other children were properly fed when they were with respondent.”

Involuntary dismissal; MCR 2.504(B)(2); Undue influence; Presumption of undue influence; Fiduciary relationship; Guardian; MCL 700.1104(e); In re Estate of Karmey; Burden of production; In re Peterson Estate; Testamentary capacity; MCL 700.2501(2); In re Sprenger’s Estate; Rebuttal evidence; Credibility; Bill & Dena Brown Trust v Garcia

The court held that the probate court did not err by denying appellant-son’s motion for involuntary dismissal or by finding that the decedent’s 2016 will was not the product of undue influence. A 2002 will benefited appellant and other children, but after the decedent was injured in a motor vehicle accident and became angry about appellant’s role in placing him in rehabilitation, he executed a 2016 will benefiting appellees-Daniel and Karen and disinheriting appellant and appellee-Nicholas. The probate court found that a presumption of undue influence applied, denied appellant’s motion for involuntary dismissal during the bench trial, and later admitted the 2016 will to probate. On appeal, the court first held that the probate court did not err by finding enough rebuttal evidence to continue the trial because witnesses described the decedent as “extremely strong-willed,” which supported that he acted “of his own free will,” and the probate court was not yet rendering judgment on the merits. The court next held that the probate court did not err on the final undue-influence ruling because “‘motive, opportunity, or even ability to control’” are insufficient absent affirmative evidence that influence was actually exercised. It reasoned that the decedent separately told his attorney that he “wants to redo his will,” that a psychologist had “no doubts” he was capable of making a new will, and that appellees were not present when the will was executed. The court concluded that, fair or not, the decedent had reasons for changing his estate plan, and the probate court did not err by finding those reasons were not based on undue influence. Affirmed.