Personal jurisdiction; Due process; Exercise of “specific jurisdiction”; Burger King Corp. v Rudzewicz; Calder v Jones; Johnson v Griffin; Walden v Fiore; Jurisdiction under Michigan’s long-arm statute (MCL 600.715(2)); Fair Debt Collection Practices Act (FDCPA); The Michigan Regulation of Collection Practices Act (MRCPA); Michigan’s Uniform Enforcement of Foreign Judgments Act (MUEFJA)

[This appeal was from the ED-MI.] The court held that the district court had personal jurisdiction over defendant-Robinson, Hoover & Fudge, PLLC (RHF), an Oklahoma law firm, on plaintiff-Ross’s FDCPA and MRCPA claims based on RHF’s garnishment actions aimed at his Michigan wages based on an Oklahoma default judgment where their conduct was expressly aimed at a Michigan resident. Ross and his former wife bought a used car in Oklahoma. After they divorced, Ross moved to Michigan. They failed to make the payments on the car and their creditor hired RHF to sue them for contract breach in Oklahoma. Ross defaulted. Using the Oklahoma default judgment, RHF submitted “a garnishment summons to the Oklahoma registered agent of Ross’s employer’s parent company. The parent company passed the garnishment summons to Ross’s employer, which began garnishing wages Ross earned in Michigan.” He then sued RHF in Michigan federal district court for violations of the FDCPA and the MRCPA. He argued that RHF had been required to domesticate the Oklahoma default judgment under Michigan’s MUEFJA. RHF alleged that the district court lacked personal jurisdiction, and the district court agreed, dismissing the case. On appeal, the court explained that because neither party requested an evidentiary hearing on the jurisdiction issue, Ross was only required to make a prima facie showing that personal jurisdiction existed. While the district court agreed with RHF that Walden controlled this case, the court disagreed, concluding it bore “a closer resemblance to Calder and Johnson than to Walden.” The court held that Ross made a prima facie showing RHF “‘purposefully directed’” its activities at him, a forum resident, “thereby purposefully availing itself of the privileges of conducting activities in Michigan.” The court noted unlike “the Walden plaintiffs, Ross did not experience his injury in Michigan merely because he made a unilateral choice to travel there after he was the victim of unlawful conduct outside the forum.” Rather, RHF targeted his Michigan earnings, and according to Ross, had “circumvent[ed] the MUEFJA” by failing to domesticate the Oklahoma default judgment. As to whether Michigan law authorized personal jurisdiction over RHF, the court noted it has held that MCL “600.715(2) is satisfied where the plaintiff alleges that the defendant engaged in tortious conduct outside the state that ‘has caused an adverse economic effect upon [the plaintiff] in Michigan.’ That plainly happened here.” Reversed and remanded.

Breach of contract claim arising in the context of medical treatment; Failure to perform a “special agreement”; Stewart v Rudner; Penner v Seaway Hosp; Statute of frauds (MCL 566.132); Powers v Peoples Cmty Hosp Auth

Holding that plaintiffs’ allegations sounded “exclusively in medical malpractice rather than in contract[,]” and that the statute of frauds mandated a written contract, the court concluded the trial court did not err in granting defendants summary disposition on the contract claims. The complaint also asserted medical malpractice claims, but they were not at issue on appeal. The court noted that in “the context of medical treatment, a cause of action for breach of contract is ‘entirely separate’ from an action for malpractice even though both claims may arise out of the same transaction.” As explained in Stewart, the “action in contract is based upon a failure to perform a special agreement.” In Penner, the court explained “that the ‘special agreement’ that gives rise to a contract claim under Stewart in the context of providing medical treatment requires a ‘contract to perform a specific act,’ such as the express agreement that the physician in Stewart made to perform a Caesarean section.” And the court held in Powers that MCL 566.132 “requires a writing for any agreement, promise or contract relating to medical care or treatment as well as any warranty of cure.” The complaint here showed that the gravamen of plaintiffs’ claim was “that defendants breached an alleged contract to provide [plaintiff-]Cooper with an accurate diagnosis and appropriate medical treatment.” This alleged medical malpractice rather than breach of contract. And as to the statute of frauds, they conceded “the absence of a written agreement; consequently, any purported oral contract is void. The consent form executed in this case does not constitute a contract for these purposes, nor can an implied contract arise under these circumstances.” Affirmed.

Sentencing; Lifetime sex offender registration; Cruel & unusual punishment; People v Kardasz; People v Malone; People v Spencer; People v O’Connor

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 79269 in the 4/18/23 edition) and remanded the case to that court. It directed the Court of Appeals to hold the case in abeyance pending its decisions in Malone, Spencer, and O’Connor. After the Court of Appeals decides those cases, it is to “reconsider this case in light of Kardasz and the decisions in Malone, Spencer, and O’Connor.”

Jury procedure; Juror anonymity; People v Hanks; Prosecutorial error; Facts not in evidence; People v Stanaway; Burden shifting; Denigration of counsel; People v Watson; Jury instructions; Good-faith claim of title; M Crim JI 7.5; People v Wilder; Ineffective assistance of counsel; Failure to request a meritless instruction

The court held that defendant was not denied a fair trial by the use of juror numbers, the prosecutor’s remarks, or the absence of a good-faith claim-of-title instruction, and that counsel was not ineffective for failing to request that instruction. Defendant was convicted after a consolidated jury trial of multiple home invasion offenses, domestic violence, and aggravated stalking arising from repeated break-ins and assaults against a former partner. On appeal, the court held that referring to jurors by number did not create an “anonymous jury” because defendant was not deprived of biographical information or meaningful voir dire, and his presumption of innocence was not compromised. The court next held that the prosecutor did not improperly argue facts not in evidence because it was a reasonable inference that the purse seen at trial was the one defendant stole. And while he asserted “the prosecutor’s remarks implicated defendant’s ‘decision to exercise his Fifth Amendment privilege’” not to testify, the court found that, read in context, nothing in the remarks suggested that they “somehow amounted to an improper comment about defendant’s decision.” The court further held that the prosecutor’s comments did not shift the burden of proof or denigrate defense counsel when read in context as a response to attacks on the victim’s credibility. Finally, the court held that a good-faith claim-of-title instruction was not supported because there was no evidence defendant honestly believed he had a legal right to the victim’s property, and therefore counsel was not ineffective for failing to request a meritless instruction. Affirmed.

Sufficiency of the evidence for a second-degree murder conviction; Self-defense; People v Bailey; Jury selection; Juror excusal for cause; MCR 2.511(E)(10); People v Eccles; Sentencing; Proportionality; People v Steanhouse; OVs 5 & 9; MCL 777.35 & 777.39; Habitual-offender notice; MCL 769.13; Acquitted conduct; Waiver

The court held that sufficient evidence supported defendant’s second-degree murder conviction because the prosecution disproved self-defense beyond a reasonable doubt, and that defendant was not entitled to relief on his jury-selection or sentencing claims. Defendant shot the victim (L) inside a Benton Harbor gas station after a prior altercation between the two men had been posted on social media. The shooting was captured on multiple surveillance videos without audio. L entered the store holding a coffee and grabbed a bottle of water in the store. Defendant got in line directly behind him, and after a verbal exchange defendant brandished and racked a gun, pointed it down, then raised it and shot L in the chest. On appeal, the court held that the prosecution rebutted self-defense because defendant had already encountered L outside, could have left, but instead reentered the store, got in line behind L, and shot an unarmed man who was still holding two drinks, making it reasonable for the jury to reject defendant’s claim that he faced an immediate threat. The court next held that the trial court properly followed Eccles in excusing six jurors who had prior criminal matters in the county, because Eccles remains binding precedent and defendant failed to show any error. The court also held that defendant’s 50-year minimum sentence for second-degree murder was proportionate because it fell within the guidelines, the trial court expressly considered “protection of the community, punishment, deterrence, restitution, and reformation,” and defendant was a fourth-offense habitual offender. The court further held that there was no improper reliance on acquitted conduct, that OV 5 and OV 9 were properly scored, that any OV 3 challenge was waived, and that defendant waived his habitual-offender-notice challenge by expressly agreeing at sentencing that he had no objection to the enhancement. Affirmed.

Double jeopardy; Multiple punishments; Blockburger v United States; CSC I under MCL 750.520b(1)(g); CSC III under MCL 750.520d(1)(c); Greater & lesser included offenses; Brown v Ohio; Hearsay; Excited utterance; MRE 803(2); People v Gee

The court held that defendant’s convictions and sentences for both CSC I and CSC III violated double-jeopardy protections because they were based on the same single act of sexual penetration. But it held that the trial court properly admitted the victim’s statement to police as an excited utterance. The victim (TR) testified that defendant picked her up after jail, gave her a substance she injected, and she then blacked in and out of consciousness before waking up with defendant’s penis in her vagina while he held his arm or hand to her throat. A nurse later documented injuries to TR’s neck, thighs, lower back, buttocks, lips, and cervix, and testing indicated the likely presence of defendant’s DNA. On appeal, the court held that the prosecutor properly conceded a double-jeopardy violation because TR described only one act of vaginal intercourse, the nurse’s testimony supplied the injury element for CSC I, and the prosecutor acknowledged that the CSC III count was simply a “mirror” of the CSC I charge “with the injury removed.” The court next held that CSC III was a lesser included offense of CSC I as charged here because the CSC III elements required “no proof beyond that which is required for conviction of the greater” offense. The court therefore held that sentencing defendant for both offenses for the same act violated the prohibition on “multiple punishments for the same offense,” so the proper remedy was to affirm the higher offense conviction and vacate the lower one. The court also held that a deputy’s testimony about TR’s statement was properly admitted under MRE 803(2) because TR was crying, disheveled, and had ripped clothes, supporting the finding that she was still under the stress of the assault and had not had time to fabricate. Affirmed in part, vacated in part, and remanded.

Divorce; Property division; Sparks v Sparks; Pension award; Voluntary underemployment; General principles of equity; Valuation & apportionment of marital home equity; Distinguishing Reeves v Reeves; Repudiation theory; Applicability of MCL 552.401; Valuation date; Judge reassignment in family court cases; MCL 600.1011(1) & (5); MCR 8.111(C); Alleged violation of MCR 2.517; Motion in limine to limit testimony about a party’s tort claims against the other; Statute of limitations; Economic exploitation as intentional infliction of emotional distress (IIED); Distinguishing Roberts v Auto-Owners Ins Co; Harmless error

The court held that the trial court did not err in determining “an equitable property distribution and valued and apportioned the equity in the marital home[.]” While it erred in limiting evidence at trial about plaintiff-ex-husband’s alleged economic abuse, this was harmless. It also held that the trial court did not err in “issuing a post-tort-trial opinion and order signed by a judge who had not presided over the property-disposition phase of the case” or in granting plaintiff’s motion in limine “to limit the tort trial testimony to events occurring within the statute of limitations.” Thus, the court affirmed the trial court’s order dividing defendant-ex-wife’s “pension benefits and the equity in the marital home following the” judgment of divorce. She first argued on appeal “that a successor judge who did not preside over the bench trial could not possibly determine the division of a marital estate without violating” MCR 2.517. But the court did not “see why MCL 600.1011(5) would authorize reassigning cases to a successor judge and why MCR 8.111(C) would require the successor judge to take on any pending matters if doing so would necessarily result in a violation of MCR 2.517.” Next, while it agreed the trial court erred in “excluding evidence of plaintiff’s economic exploitation,” it concluded the error was harmless. “The trial court erroneously interpreted Roberts” in denying defendant the opportunity to present this evidence. “There is a significant difference between an insurance company’s refusal to pay contractual benefits and the type of economic exploitation that defendant alleged in her IIED claim.” But in light of the three-year statutory period of limitations for the IIED claim, the error was harmless. As to the division of the marital assets, the court rejected defendant’s argument that awarding “plaintiff half of defendant’s pension was inequitable because plaintiff concealed and wasted most of his own retirement funds.” In addition, it was “not convinced that the trial court’s division of marital assets was inequitable just because it did not credit defendant for her down payment on the marital home.” It noted that Reeves was distinguishable “because defendant purchased the marital home during the marriage. The parties also stipulated that the marital home ‘is by law a marital asset’ without carving out any exceptions, and they stipulated” to its value.

Standing to pursue an action under the Freedom of Information Act (FOIA); “The requesting person” for purposes of MCL 15.240(1)(b); Detroit Free Press, Inc v City of Southfield; Effect of the fact plaintiff submitted the FOIA requests on behalf of a newspaper; “Person” (MCL 15.232(g))

Holding that “there was one requesting ‘person’ and that ‘person’ was the” newspaper plaintiff worked for, the court agreed with the trial court that she lacked standing to bring this FOIA action in her individual capacity. Thus, it affirmed summary disposition for defendant. Plaintiff, who works for the Ann Arbor Independent, submitted two FOIA requests to defendant. Defendant denied them on the basis it is not a public body. Plaintiff, proceeding pro per, sued challenging the denial. The trial court agreed with defendant that, because the requests were made on behalf of the newspaper, only the newspaper “had standing to bring a FOIA action challenging” their denial. On appeal, the court noted that plaintiff’s requests, sent from her newspaper email address, spoke “on behalf o[f] ‘the Ann Arbor Independent’ and mention that should defendant fail to comply with the request, the ‘Ann Arbor Independent’s only recourse is to . . . sue Supreme Felons.’ The email specifies that ‘The Ann Arbor Independent would like copies of the following public records . . . .’ In a later email, plaintiff thanked defendant for ‘acknowledging the newspaper’s second FOIA request.’” The court concluded that “the only ‘requesting person’ was the non-individual corporate entity. Plaintiff, an individual who herself can make a FOIA request, acted only in her capacity as an agent of the non-individual corporate entity. An agent cannot become an individual ‘requesting person’ by signing a document and providing their name and address. They must also be requesting something. Here, the only ‘person’ requesting documents, according to the FOIA requests themselves, is the Ann Arbor Independent. The corporate entity remains ‘the requesting person’ and only that ‘requesting person’ may commence a civil action ‘to compel the public body’s disclosure of the public record.’”

Breach of contract claim arising in the context of medical treatment; Failure to perform a “special agreement”; Stewart v Rudner; Penner v Seaway Hosp; Statute of frauds (MCL 566.132); Powers v Peoples Cmty Hosp Auth

Holding that plaintiffs’ allegations sounded “exclusively in medical malpractice rather than in contract[,]” and that the statute of frauds mandated a written contract, the court concluded the trial court did not err in granting defendants summary disposition on the contract claims. The complaint also asserted medical malpractice claims, but they were not at issue on appeal. The court noted that in “the context of medical treatment, a cause of action for breach of contract is ‘entirely separate’ from an action for malpractice even though both claims may arise out of the same transaction.” As explained in Stewart, the “action in contract is based upon a failure to perform a special agreement.” In Penner, the court explained “that the ‘special agreement’ that gives rise to a contract claim under Stewart in the context of providing medical treatment requires a ‘contract to perform a specific act,’ such as the express agreement that the physician in Stewart made to perform a Caesarean section.” And the court held in Powers that MCL 566.132 “requires a writing for any agreement, promise or contract relating to medical care or treatment as well as any warranty of cure.” The complaint here showed that the gravamen of plaintiffs’ claim was “that defendants breached an alleged contract to provide [plaintiff-]Cooper with an accurate diagnosis and appropriate medical treatment.” This alleged medical malpractice rather than breach of contract. And as to the statute of frauds, they conceded “the absence of a written agreement; consequently, any purported oral contract is void. The consent form executed in this case does not constitute a contract for these purposes, nor can an implied contract arise under these circumstances.” Affirmed.

Personal jurisdiction; Due process; Exercise of “specific jurisdiction”; Burger King Corp. v Rudzewicz; Calder v Jones; Johnson v Griffin; Walden v Fiore; Jurisdiction under Michigan’s long-arm statute (MCL 600.715(2)); Fair Debt Collection Practices Act (FDCPA); The Michigan Regulation of Collection Practices Act (MRCPA); Michigan’s Uniform Enforcement of Foreign Judgments Act (MUEFJA)

[This appeal was from the ED-MI.] The court held that the district court had personal jurisdiction over defendant-Robinson, Hoover & Fudge, PLLC (RHF), an Oklahoma law firm, on plaintiff-Ross’s FDCPA and MRCPA claims based on RHF’s garnishment actions aimed at his Michigan wages based on an Oklahoma default judgment where their conduct was expressly aimed at a Michigan resident. Ross and his former wife bought a used car in Oklahoma. After they divorced, Ross moved to Michigan. They failed to make the payments on the car and their creditor hired RHF to sue them for contract breach in Oklahoma. Ross defaulted. Using the Oklahoma default judgment, RHF submitted “a garnishment summons to the Oklahoma registered agent of Ross’s employer’s parent company. The parent company passed the garnishment summons to Ross’s employer, which began garnishing wages Ross earned in Michigan.” He then sued RHF in Michigan federal district court for violations of the FDCPA and the MRCPA. He argued that RHF had been required to domesticate the Oklahoma default judgment under Michigan’s MUEFJA. RHF alleged that the district court lacked personal jurisdiction, and the district court agreed, dismissing the case. On appeal, the court explained that because neither party requested an evidentiary hearing on the jurisdiction issue, Ross was only required to make a prima facie showing that personal jurisdiction existed. While the district court agreed with RHF that Walden controlled this case, the court disagreed, concluding it bore “a closer resemblance to Calder and Johnson than to Walden.” The court held that Ross made a prima facie showing RHF “‘purposefully directed’” its activities at him, a forum resident, “thereby purposefully availing itself of the privileges of conducting activities in Michigan.” The court noted unlike “the Walden plaintiffs, Ross did not experience his injury in Michigan merely because he made a unilateral choice to travel there after he was the victim of unlawful conduct outside the forum.” Rather, RHF targeted his Michigan earnings, and according to Ross, had “circumvent[ed] the MUEFJA” by failing to domesticate the Oklahoma default judgment. As to whether Michigan law authorized personal jurisdiction over RHF, the court noted it has held that MCL “600.715(2) is satisfied where the plaintiff alleges that the defendant engaged in tortious conduct outside the state that ‘has caused an adverse economic effect upon [the plaintiff] in Michigan.’ That plainly happened here.” Reversed and remanded.

Children’s best interests; Whether reasonable reunification efforts were required; MCL 712A.19a(2)(b)(iv); Timing of the petition; MCR 3.977

Holding that the trial court did not clearly err in finding that terminating respondent-father’s parental rights was in the children’s best interests, the court affirmed. The trial court legitimately considered his “failure to accept responsibility for” the injuries to one of the children (JSL) “as probative of an ongoing risk of harm to the children should they be returned to his care.” Further, the record showed that his “purported acceptance of responsibility is undermined by his own inconsistent statements.” The court was “not definitely and firmly convinced that the trial court erred by viewing respondent’s failure to take accountability and show remorse for his past actions as a factor that supported” terminating his rights. It also determined that evidence of his “present aptitude as a parent and bond with the children is tenuous at best and does not rise to the level of” showing the trial court erred in concluding that termination was in the children’s best interests. As to his assertion that they were safe in their mother’s care and that she could protect them if he were allowed some visitation, both she and a DHHS employee “opined that termination was the best way to ensure the children’s safety.” And the court found that there was “abundant evidence in the record supporting” this. It showed that his “physical abuse has permanently impacted JSL and will continue to do so in the future. Furthermore, while the children are presently safe and healthy, the trial court noted that the professional judgment of multiple witnesses supported that there is a high risk of respondent reoffending and abusing his children further. [It] determined that respondent’s abuse reflected a pattern of violent behavior and was not convinced that, even with treatment, [he] would be able to control his emotions and not abuse the children.” As to his assertion he should have had “the opportunity to complete a parent agency agreement[,]” the court held that in light of his no-contest plea conviction of first-degree child abuse, reasonable reunification efforts were not required. Finally, it rejected his claim that the “petition was filed too late and should have been filed at the time” he pled to the criminal charges. MCR 3.977 “does not impose a time limit on the filing of a” termination petition, and this issue was irrelevant to the court’s review of the only issue he raised on appeal, the children’s best interests.

Termination under § 19b(3)(j); Reasonable reunification efforts; Americans with Disabilities Act (ADA) accommodations; In re Hicks/Brown; Due process; In re Ferranti; Best interests; Relative placement; In re Olive/Metts Minors

The court held that the DHHS made reasonable efforts to reunify respondent-mother with the children, that § (j) was proven, and that termination was in the children’s best interests. The children were removed after two-month-old MB suffered broken bones caused by his father. Respondent had a CPS history, and she had recently pled guilty to fourth-degree child abuse involving the other child, HM. The trial court took jurisdiction after respondent’s plea and ordered services addressing parenting, mental health, dyslexia, and her seizure disorder. It later changed the goal to adoption after respondent’s parenting time returned to supervised status and the DHHS alleged that she had not benefited from services. On appeal, the court held that respondent’s ADA-based reasonable-efforts claim was unpreserved and failed because the record showed the DHHS “tried to accommodate respondent,” gave her “the necessary referrals,” and repeatedly instructed her to seek neurological treatment, attend therapy, and take prescribed medication, yet she “failed to do so.” The court also held that respondent “failed to uphold her ‘commensurate responsibility’ to engage in and benefit from the services offered.” There was also “no indication that she would have fared better if DHHS had offered other services or accommodations.” Turning to statutory grounds, the court held that termination was proper under § (j) because respondent “did not substantially comply with her case service plan,” there were “serious concerns that she would be unable to care for the children’s needs,” and “there was a reasonable likelihood that the children would experience physical, mental, or emotional harm if returned to respondent.” Finally, the trial court considered the children’s relative placements, and it did not err in finding that termination would provide the “permanency, stability, and finality they desperately required.” Affirmed.