Awarding attorney fees & costs after a mistrial; Persichini v William Beaumont Hosp; Benmark v Steffen; Failure to accurately address the actual basis for the trial court’s ruling

On remand from the Supreme Court, the court concluded that defendants did not “accurately address the actual basis for the trial court’s ruling that” they challenged on appeal, and thus they abandoned their claim of error. The case arose from a dispute involving the renovation of plaintiffs’ home. Defendants “prevailed at a trial that followed the grant of a mistrial[.]” On appeal, they challenged an earlier ruling by the trial court awarding plaintiffs attorney fees and costs. Defendants argued the trial court erred in doing so “because a trial court is prohibited from awarding costs and attorney fees after granting a mistrial unless the sanctioned party engaged in egregious misconduct that caused the mistrial.” They cited Persichini and Benmark. But the record here indicated “that the trial court awarded costs and attorney fees to plaintiffs for prevailing on defendants’ motion for summary disposition that was predicated on an issue that the [trial] court determined was untimely raised by defendants for the first time during the second day of trial rather than previously through a timely summary disposition motion that complied with [its] scheduling order. Contrary to defendants’ assertions on appeal, the trial court did not sanction defendants for causing a mistrial.” As a result of defendants’ failure to dispute the actual basis of the trial court’s ruling, the court expressly refrained “from opining on the propriety or correctness of any of the trial court’s rulings . . . .” Rather, its analysis was solely confined to the arguments defendants advanced on appeal. After carefully reviewing the appellate briefs and the record, the court found that defendants did not articulate any legal error or present “any argument that would warrant reversal or modification of the” trial court judgment. Thus, it held that they “failed to establish a basis for appellate relief.” Affirmed.

Ineffective assistance of counsel; Failure to move to suppress or redact a body camera video of defendant’s police interview; Whether defendant was “in custody”; People v Barritt; Comments about credibility in the video; People v Musser; Failure to object to police opinion testimony; Prejudice; Distinguishing People v Hawkins; Failure to object to or move to redact evidence of the victim’s profession; Trial strategy; Cumulative error

Holding that defendant was not entitled to relief based on his ineffective assistance of trial counsel claims and that reversal for cumulative error was also not warranted, the court affirmed his felonious assault conviction. The victim was working as the assistant county prosecutor at the time of the incident. Defendant first argued that defense counsel was ineffective for failing to move to suppress or redact the body camera video of a state trooper (G) interviewing him. The questioning occurred before G formally placed defendant under arrest. It “occurred at defendant’s house, while [he] was not physically restrained, and lasted about five minutes.” Those factors weighed against a custody finding. Factors weighing in favor included that he “was surrounded by police officers, [G] told defendant to ‘stay here with me’ when defendant turned away from him, [he] was not told that he was free to leave, and [he] was arrested and taken to jail after the questioning was completed. [G] also made several accusatory statements toward [him], implied that he was lying, and asked defendant repeatedly why he hit the victim with a shovel[.]” But the court noted “the environment in which he was questioned bore little resemblance to a station house questioning.” Further, he “did not seem reluctant to speak to [G] and did not ask to end the questioning or leave. Thus,” the court held that he “was not in custody for the purposes of the Fifth Amendment and the interview footage was admissible.” His trial counsel was not ineffective for failing to make a meritless motion to suppress. And a motion to redact the footage “would have correctly been denied[.]” While the failure to object to G’s “testimony about defendant’s credibility was deficient performance,” the error did not prejudice defendant. “The jury was shown the entire video and defendant took the stand in his own defense, allowing the jury to hear his testimony and come to their own conclusion about [his] credibility.” The court also found that it “was not objectively unreasonable for defense counsel to believe that evidence of the conflict of interest created by the victim’s work as a prosecutor could damage the prosecution witnesses’ credibility rather than bolster it.”

Larceny of a firearm; MCL 750.357b; Intent to steal; People v March; Sufficiency of the evidence; People v Oros; Prosecutorial error; Cross-examination; People v Evans; Criminal history; MRE 609(a); People v Snyder; Mischaracterization of testimony; People v Watson; Sentencing; Proportionality; People v Posey

The court held that 1) sufficient evidence supported defendant’s larceny-of-a-firearm conviction, 2) the prosecutor did not deny him a fair trial, and 3) his within-guidelines sentence was proportionate. Defendant entered a closed tow yard, searched vehicles, and was found in the bed of a pickup truck where the owner’s firearm had been moved from the center console. On appeal, the court first held that intent to steal the firearm was supported because defendant admitted that he entered the tow yard “with the intent to steal items for money,” was arrested with property from the truck, and an officer testified that defendant said “he planned on stealing the firearm.” Although defendant denied that intent at trial, the jury was entitled to reject his testimony, and only “minimal circumstantial evidence” was needed to prove intent. The court next rejected defendant’s prosecutorial-error claims. The prosecutor did not badger defendant by questioning why he moved the gun because the questions sought to “contradict, weaken, modify or explain” his direct testimony. The prosecutor also did not improperly use criminal-history evidence because he never mentioned defendant’s prior conviction and only asked about his claimed lack of knowledge concerning different larceny offenses. Nor did the prosecutor mischaracterize defendant’s testimony because it was reasonable to infer that he understood the gun “changed the circumstances of his crime and raised the stakes.” Finally, the court held that defendant failed to rebut the presumption of proportionality for his within-guidelines sentence, given the stolen firearm, his prior armed-robbery conviction, and his parole history. Affirmed.

Ineffective assistance of counsel; Failure to assert a defense of illegal police action; Reasonable suspicion that defendant was a disorderly person (MCL 750.167); Failure to have defendant’s medical records admitted into evidence

The court held that defendant’s trial counsel was not ineffective for failing to (1) assert an illegal police action defense or (2) have his medical records admitted into evidence. He was convicted of attempted malicious destruction of police property, and drunk and disorderly person. The court concluded his first ineffective assistance claim was “misplaced because the police conduct was not unlawful.” The court noted that the police were called “because an employee of the business where defendant was arrested testified that defendant was intoxicated and would not leave the workplace. When police arrived, defendant was so intoxicated that they could not understand him. The report from the business that an intoxicated man needed to be removed from their premises, combined with police observations of defendant’s intoxication level, formed a sufficiently particularized and objective basis for reasonable suspicion that [he] had committed the offense of being a drunk and disorderly person[.]” Thus, his temporary detainment was lawful, and a defense that it “was unlawful would not have been successful[.]” As a result, “trial counsel’s performance did not fall below an objective standard of reasonableness for failing to raise” it. As to the medical records, trial counsel “elicited testimony from defendant that his reactions to the police were either involuntary pain responses or caused by his poor left side vision, and used this testimony to argue during closing that defendant was entitled to acquittal[.]” He was acquitted of assaulting, resisting, or obstructing a police officer charges. His “medical records were unnecessary for this argument to succeed, so trial counsel was not ineffective.” Affirmed.

Divorce; Third-party property interests; Cassidy v Cassidy; Standing; Reed v Reed; Property division; Equitable distribution; Sparks v Sparks; Factual findings; Butler v Simmons-Butler

The court held that defendant-ex-husband was not entitled to relief based on the trial court’s treatment of a nonparty’s claimed interest in a condominium, but remand was required because the trial court failed to make adequate findings supporting the property division. The parties divorced after a lengthy marriage, and the judgment awarded plaintiff-ex-wife the Garrison condominium and Lebanon property, while awarding defendant his businesses and associated assets and debts. On appeal, the court first rejected defendant’s argument that the divorce court lacked subject-matter jurisdiction to eliminate the nonparty’s interest in the Garrison condominium. Although divorce courts generally may determine only “‘the rights and obligations between the husband and wife, to the exclusion of third parties,’” the court held that defendant could not obtain appellate relief because “a litigant must assert his or her own legal rights and interests” and may not seek relief based on a third party’s rights. The court next held that remand was required on the property division because the trial court “did not explain how its property distribution was equitable.” The trial court merely divided the property “without any discussion of relative values” and only “implied” that the division was equitable. Relying on Sparks and Butler, the court held that this was insufficient because a divorce court must make “specific findings of fact justifying and explaining its decision” to permit meaningful appellate review. Remanded.

Auto negligence; Statutory duty under MCL 257.683(1), MCL 480.11a, 49 CFR § 392.7(a), & § 393.205(a); Wood v Detroit; JNOV on duty, breach, factual cause, & proximate cause; Craig ex rel Craig v Oakwood Hosp; Superseding cause; Auto Owners Ins Co v Seils; Damages; Conscious pain & suffering; MCL 600.2922(6); Byrne v Schneider’s Iron & Metal, Inc

The court held that the trial court properly denied defendant’s motion for summary disposition, properly denied JNOV, and did not abuse its discretion by denying remittitur. Plaintiff alleged that defendant’s delivery truck had a cracked wheel and that a piece of metal from the wheel came through decedent’s windshield, causing fatal injuries. After trial, the jury found defendant negligent, allocated 60% fault to defendant and 40% to the towing defendants, and awarded damages including $2 million for conscious pain and suffering. On appeal, the court held that defendant owed statutory duties under MCL 257.683(1), MCL 480.11a, 49 CFR § 392.7(a), and § 393.205(a). It explained that MCL 257.683(1) was designed to prevent “harm caused by unsafe conditions on a vehicle” and that cracked-wheel regulations likewise protected motorists and passengers. It found sufficient evidence of breach and causation, including testimony that the truck was unsafe, the wheel cracks were or could have been visible, used wheels had been installed, and lug nuts were tightened incorrectly. The court also rejected defendant’s superseding-cause argument, reasoning that the towing company’s conduct could be found merely negligent, not grossly so, and thus did not break causation. As to remittitur, the court held that the jury could infer conscious pain and suffering from testimony that decedent was “gasping for air,” that consciousness “is a gradation,” and that he could feel pain and a sense of suffocation before death. Affirmed.

Awarding attorney fees & costs after a mistrial; Persichini v William Beaumont Hosp; Benmark v Steffen; Failure to accurately address the actual basis for the trial court’s ruling

On remand from the Supreme Court, the court concluded that defendants did not “accurately address the actual basis for the trial court’s ruling that” they challenged on appeal, and thus they abandoned their claim of error. The case arose from a dispute involving the renovation of plaintiffs’ home. Defendants “prevailed at a trial that followed the grant of a mistrial[.]” On appeal, they challenged an earlier ruling by the trial court awarding plaintiffs attorney fees and costs. Defendants argued the trial court erred in doing so “because a trial court is prohibited from awarding costs and attorney fees after granting a mistrial unless the sanctioned party engaged in egregious misconduct that caused the mistrial.” They cited Persichini and Benmark. But the record here indicated “that the trial court awarded costs and attorney fees to plaintiffs for prevailing on defendants’ motion for summary disposition that was predicated on an issue that the [trial] court determined was untimely raised by defendants for the first time during the second day of trial rather than previously through a timely summary disposition motion that complied with [its] scheduling order. Contrary to defendants’ assertions on appeal, the trial court did not sanction defendants for causing a mistrial.” As a result of defendants’ failure to dispute the actual basis of the trial court’s ruling, the court expressly refrained “from opining on the propriety or correctness of any of the trial court’s rulings . . . .” Rather, its analysis was solely confined to the arguments defendants advanced on appeal. After carefully reviewing the appellate briefs and the record, the court found that defendants did not articulate any legal error or present “any argument that would warrant reversal or modification of the” trial court judgment. Thus, it held that they “failed to establish a basis for appellate relief.” Affirmed.

The notification requirements under the Indian Child Welfare Act (ICWA) & the Michigan Indian Family Preservation Act (MIFPA); 25 USC § 1912(a); In re Morris; MCL 712B.9(4)(e); In re Jones; Whether the requirements were triggered; In re Johnson; Due process; Testimony about an event that took place after the petition was filed; In re Dearmon

Holding that a brief statement by respondent-mother’s counsel triggered the notice requirements of the ICWA and the MIFPA, the court conditionally reversed the termination order and remanded to the trial court only to resolve the notice issue. It rejected respondent’s claim that her due process rights were violated by admission of testimony at the adjudication trial about an event that took place after the petition was filed. Her counsel informed the trial court at the preliminary hearing “that respondent said that she had ‘some’ Indian heritage ‘down the line’ and that she thought that [the child’s] father also may have some Indian heritage.” This statement constituted “sufficient indicia of Indian heritage as to trigger the” requirements. The court noted that “the information came directly from an officer of the court, i.e., respondent’s counsel, and ultimately from respondent. Under MCL 712B.9(4)(e), this is sufficient to trigger the notification mandate.” Further, the fact that they “did not provide a specific tribe is not determinative because ‘indicia sufficient to trigger tribal notice’ also exists when ‘no particular Indian tribe can be identified.’” The court noted that the trigger for the requirement “is a ‘low bar[.]’” There was no indication “the DHHS ever notified potential tribes or the Secretary of the Interior. At most, the court reports indicate that the DHHS made a ‘Native American Inquiry,’ with the ultimate determination that there was not any ‘Native American affiliation.’ However, there is no indication or explanation in the record as to how the DHHS came to this conclusion, and the trial court never made any specific findings regarding whether notice was sent or whether [the child] was considered an ‘Indian child’ under ICWA and MIFPA.” This case was very similar to Johnson, where the court likewise determined that remand was necessary. But it rejected respondent’s claim that “her due-process rights were violated by the admission of a process server’s testimony at the adjudication trial.” It concluded in Dearmon that “‘[n]either the juvenile code nor the court rules mandates the exclusion of evidence concerning events that occur after a jurisdictional petition has been filed.’”

Auto negligence; Statutory duty under MCL 257.683(1), MCL 480.11a, 49 CFR § 392.7(a), & § 393.205(a); Wood v Detroit; JNOV on duty, breach, factual cause, & proximate cause; Craig ex rel Craig v Oakwood Hosp; Superseding cause; Auto Owners Ins Co v Seils; Damages; Conscious pain & suffering; MCL 600.2922(6); Byrne v Schneider’s Iron & Metal, Inc

The court held that the trial court properly denied defendant’s motion for summary disposition, properly denied JNOV, and did not abuse its discretion by denying remittitur. Plaintiff alleged that defendant’s delivery truck had a cracked wheel and that a piece of metal from the wheel came through decedent’s windshield, causing fatal injuries. After trial, the jury found defendant negligent, allocated 60% fault to defendant and 40% to the towing defendants, and awarded damages including $2 million for conscious pain and suffering. On appeal, the court held that defendant owed statutory duties under MCL 257.683(1), MCL 480.11a, 49 CFR § 392.7(a), and § 393.205(a). It explained that MCL 257.683(1) was designed to prevent “harm caused by unsafe conditions on a vehicle” and that cracked-wheel regulations likewise protected motorists and passengers. It found sufficient evidence of breach and causation, including testimony that the truck was unsafe, the wheel cracks were or could have been visible, used wheels had been installed, and lug nuts were tightened incorrectly. The court also rejected defendant’s superseding-cause argument, reasoning that the towing company’s conduct could be found merely negligent, not grossly so, and thus did not break causation. As to remittitur, the court held that the jury could infer conscious pain and suffering from testimony that decedent was “gasping for air,” that consciousness “is a gradation,” and that he could feel pain and a sense of suffocation before death. Affirmed.

Estate claims; Caregiver compensation; Presumption of gratuity; In re Lewis; Implied-in-fact contract; Deck labor; Fair Labor Standards Act (FLSA) claim; Waiver; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC

The court held that the probate court did not abuse its discretion by awarding appellant partial compensation for care services provided to the decedent and denying his separate claim for deck-installation labor. Appellant, one of the decedent’s children and the estate’s personal representative, filed claims against the estate seeking compensation for caregiving and labor on two decks. On appeal, the court first held that the probate court reasonably found an oral compensation agreement for care services, relying on testimony that appellant had quit his job to care for the decedent, that the decedent “wanted him to be paid,” and that another sibling witnessed a discussion about compensation. But the court also held that the agreement’s terms were “murky,” and the presumption of gratuity applied because appellant was related to the decedent. The court rejected appellant’s argument that he should have been compensated for 24-hour care, noting that he lived rent-free in the home, paid no rent or utilities, and was unlikely to have actually worked “16 hours per day.” The 40-hour calculation was reasonable because appellant was essentially “on call” while providing in-home care. The court also rejected his FLSA argument as waived and inapplicable to this estate claim. Finally, the court held that the deck-labor claim was properly denied because the decks were built years before death, appeared unfinished, and if the decedent “‘had wanted to pay him labor for the decks, it would have been paid prior to her death.’” Affirmed.

Quiet title; Boundary line; Acquiescence; Houston v Mint Group, LLC; Prescriptive easement; Marlette Auto Wash, LLC v Van Dyke SC Props; Failure to move to amend pleadings; MCR 2.118(C)(1); Scope of relief that a trial court may grant; City of Jackson v Thompson-McCully Co, LLC; St Cecelia Soc’y v Universal Car & Serv Co; “Hostile” use; Goodall v Whitefish Hunting Club; Adverse possession; Gorte v Department of Transp; Exclusive use

The court held that the trial court did not err in quieting title to certain disputed areas of property and granting plaintiffs a prescriptive easement after a bench trial. Defendant first argued that the trial court erred in ruling they “acquiesced to the boundary line as established by the board in the side-yard area.” But the court was “not left with a definite and firm conviction that the trial court made a mistake by finding by a preponderance of the evidence that the parties had treated the board as the boundary line for the statutory period.” It found that defendant’s appellate arguments amounted to disagreements “with how the trial court assessed the weight and credibility of the testimony and evidence.” The court noted that it is not its “task to usurp the trial court’s position as finder of fact,” and it deferred to the trial court’s assessments given its superior opportunity to observe the testifying witnesses. Defendant next asserted the trial court erred in granting a prescriptive easement in the outbuilding area. As to the scope of the easement, the court noted the “first amended complaint generally alleged that plaintiffs had used and maintained all the disputed area, and [it] sought relief based on theories of adverse possession, acquiescence, and prescriptive easement.” While defendant was correct that it stated “that plaintiffs sought a prescriptive easement ‘to continue use of the disputed property to access their outbuilding,’ the prescriptive easement count also expressly includes the other paragraphs of the amended complaint and references [their] use and maintenance of the disputed property generally.” The court found those “allegations sufficiently broad to incorporate the relief granted by the trial court in the form of a prescriptive easement, especially considering that the prescriptive easement theory was expressly pled as an alternative to the adverse possession and acquiescence counts.” The court concluded “the trial court’s award of a prescriptive easement was clearly germane to the issues presented by the pleadings, and defendant was not somehow deprived of notice or the opportunity to” defend against the claims. Defendant also failed to show the trial court clearly erred in (1) “finding that the use was ‘hostile’ for purposes of a prescriptive easement” or (2) ruling that plaintiffs established adverse possession over the stepping-stones area. Affirmed.

The notification requirements under the Indian Child Welfare Act (ICWA) & the Michigan Indian Family Preservation Act (MIFPA); 25 USC § 1912(a); In re Morris; MCL 712B.9(4)(e); In re Jones; Whether the requirements were triggered; In re Johnson; Due process; Testimony about an event that took place after the petition was filed; In re Dearmon

Holding that a brief statement by respondent-mother’s counsel triggered the notice requirements of the ICWA and the MIFPA, the court conditionally reversed the termination order and remanded to the trial court only to resolve the notice issue. It rejected respondent’s claim that her due process rights were violated by admission of testimony at the adjudication trial about an event that took place after the petition was filed. Her counsel informed the trial court at the preliminary hearing “that respondent said that she had ‘some’ Indian heritage ‘down the line’ and that she thought that [the child’s] father also may have some Indian heritage.” This statement constituted “sufficient indicia of Indian heritage as to trigger the” requirements. The court noted that “the information came directly from an officer of the court, i.e., respondent’s counsel, and ultimately from respondent. Under MCL 712B.9(4)(e), this is sufficient to trigger the notification mandate.” Further, the fact that they “did not provide a specific tribe is not determinative because ‘indicia sufficient to trigger tribal notice’ also exists when ‘no particular Indian tribe can be identified.’” The court noted that the trigger for the requirement “is a ‘low bar[.]’” There was no indication “the DHHS ever notified potential tribes or the Secretary of the Interior. At most, the court reports indicate that the DHHS made a ‘Native American Inquiry,’ with the ultimate determination that there was not any ‘Native American affiliation.’ However, there is no indication or explanation in the record as to how the DHHS came to this conclusion, and the trial court never made any specific findings regarding whether notice was sent or whether [the child] was considered an ‘Indian child’ under ICWA and MIFPA.” This case was very similar to Johnson, where the court likewise determined that remand was necessary. But it rejected respondent’s claim that “her due-process rights were violated by the admission of a process server’s testimony at the adjudication trial.” It concluded in Dearmon that “‘[n]either the juvenile code nor the court rules mandates the exclusion of evidence concerning events that occur after a jurisdictional petition has been filed.’”