Enforcement of a settlement agreement (SA); Whether the parties reached a settlement

The court held that the “trial court abused its discretion by not enforcing the terms of the [SA], which also included a provision for a pocket judgment and mortgage, and by denying the renewed motion” to enforce the SA. Plaintiff argued that the parties entered a valid SA “on the record in open court and that the trial court erred in its determination that there was no settlement and by ordering the parties to execute a written [SA] that (a) modified the terms of the payment dates and (b) did not include certain terms, including a consent judgment and mortgage.” The court held that the “trial court abused its discretion by not enforcing the terms of the [SA], as it erred by modifying the dates of the payment schedule under the” SA. It “was not permitted to modify the bargained for dates of the payment plan solely because defendants interpreted the terms differently.” The court appreciated “the trial court’s attempt at a practical solution to the problem of certain dates having passed since the agreement was enforced.” However, the trial court was not allowed to provide any reasonable details “because the payment dates were specific and not open to interpretation.” Plaintiff would “not receive the benefit of the bargain under the trial court’s modified payment plan. Under the [SA], plaintiff was to receive the final payment on” 6/1/27. But “under the new schedule, plaintiff would not receive the final payment until a year later.” Reversed and remanded.

Sentencing; Scoring of OV 10; MCL 777.40(1)(b); “Predatory conduct” (MCL 777.40(3)(a)); People v Cannon; Proportionality of a departure sentence; Explanation for the extent of the departure; People v Steanhouse; Request for resentencing before a different judge

The court held that the trial court did not err in scoring 15 points for OV 10 in sentencing defendant-Boglarsky on his CSC I conviction. But while the departure sentence it imposed may be reasonable given the facts here, the trial court did not “state adequate reasons on the record” for the court to conclude this was so. Thus, it vacated defendant’s 20 to 50-year sentence and remanded for resentencing, noting that if the trial court again departs from the “guidelines, it must justify the departure, including the extent of the departure imposed.” The court declined defendant’s request for resentencing before another judge. As to the scoring of OV 10, the court found it “clear that Boglarsky engaged in predatory conduct. As the trial court recognized, Boglarsky preyed on the 13-year-old’s susceptibilities and desire to ‘get back’ at her father for abandoning her and her sister. The presentence investigation report indicates that the 13-year-old has a cognitive developmental delay and a cognitive impairment. Moreover, Boglarsky’s primary purpose for engaging in his behavior was to convince [her] to have a sexual relationship with him. In fact, he maintained that [they] were ‘dating,’ and he gave her a ring.” Thus, the court held that the record supported the OV 10 score on the ground that he “engaged in predatory conduct.” As to his proportionality challenge, he contended that while “the trial court’s reasons for departing from the guidelines may have explained the 33% departure from the guidelines initially imposed, [it] did not adequately explain the 185% departure from the corrected guidelines range.” The court agreed. While the trial “court acknowledged that the departure imposed was very significant and stated that the ‘drastic change and reduction in the advisory minimum guidelines’ did not affect its determination regarding a proportionate sentence, [it] failed to justify the extent of the departure.” Although it stated that it would have imposed “the same 20-year minimum sentence regardless of the” guidelines and of whether the court remands for resentencing, it was “required to justify the extent of the departure.”

Jail credit; MCL 769.11b; People v Prieskorn; People v Allen; Mootness

While it rejected the prosecution’s argument that the issue was moot, the court held that defendant was not entitled to additional jail credit. She pled guilty to possession of meth with intent to deliver and was sentenced to 1 to 20 years, with eight days of jail credit. In 2022, she had pled guilty to attempted delivery or manufacture of meth. In 2023, while she was out on bond for that “conviction and before sentencing in that case,” she was arrested and found in possession of meth “and cocaine, which formed the basis for” this case. She was subsequently sentenced to six months to five years in the 2022 case. Arguing for additional jail credit in this case, she asserted “her parole-eligibility date should be treated as her release date for purposes of jail credit” and that she was entitled to four months of credit. She also contended that if trial counsel had moved to revoke her bond in this “case, the trial court could have denied bond, thereby permitting her to accrue jail credit pursuant to MCL 769.11b.” The court found her arguments lacked merit. “Parole eligibility does not equate to a right to release, and prisoners have no constitutional or inherent right to parole.” Thus, her eligibility date for parole “did not constitute a release date, and because parole was denied, defendant remained incarcerated pursuant to her” sentence for the 2022 case. “The fact that the parole board would not have released her until” this case was resolved did “not convert her incarceration for the 2022 case into custody attributable to” this case. The court noted that those “detained for reasons other than the denial of or inability to furnish bond are not entitled to jail credit.” The trial court did not have to grant her jail credit “because she was not being held in jail for the offense of which she was ultimately convicted in the instant case, nor was she denied or unable to furnish bond.”

Proportionality; People v Steanhouse; Within-guidelines presumption; People v Posey; Resentencing after probation revocation; MCL 771.4; People v Hendrick; Indigency; Costs & fees; MCL 769.1k; MCL 769.1l; People v Jackson

The court held that defendant’s within-guidelines minimum sentence after probation revocation was proportionate and that the trial court did not abuse its discretion by declining to waive costs and fees absent evidence of “extraordinary financial circumstances.” Defendant pled guilty to unarmed robbery and AWIM arising from a robbery plan that resulted in the victim’s death, received a jail-and-probation sentence under a plea agreement, and was warned that if she returned on a violation “all bets are off” because the guidelines called for 14 to 23 years. After she absconded, failed to report, and later returned to custody, the trial court revoked probation and resentenced her to 15 to 60 years on the assault conviction (and 6 to 15 years on robbery) within the 171-to-285-month guidelines range, explaining she was “clearly involved in a murder,” “set it up,” and “could have been convicted of felony murder.” On appeal, the court emphasized revocation “simply clears the way for a resentencing on the original offense,” and although the guidelines are advisory they remain “highly relevant,” creating a presumption of proportionality for a within-guidelines sentence that the defendant must rebut with “unusual circumstances.” It concluded the trial court provided an adequate rationale tied to the “seriousness of the underlying offense conduct” and defendant’s post-sentencing absconding, and defendant’s mitigation arguments did not overcome the presumption. The court also affirmed denial of an indigency-based waiver of $1,326 in costs and fees, citing that incarcerated defendants bear a “heavy burden” to show “extraordinary financial circumstances” and defendant provided no evidence beyond generalized claims about limited prison income and necessities. Affirmed.

Sentencing; Applicability of USSG § 2K2.1(a)(4)(B) (firearms offense enhancement for possession by a “prohibited person”); Whether a defendant who was in a youth diversion program was “under indictment” when the federal crime occurred; Effect of “youthful trainee” status under the Holmes Youthful Trainee Act (HYTA); MCL 762.14(2)

[This appeal was from the WD-MI.] The court affirmed the enhancement of defendant-Rolon’s firearm sentence under § 2K2.1(a)(4)(B) where his participation in Michigan’s HYTA program qualified him as being “under indictment” and thus, a “prohibited person” for federal firearms purposes. Rolon pled guilty to a state felony and was placed in the HYTA diversion program, on 18 months’ probation. This “deferred” his conviction and entry of judgment. While in this program, he committed the federal gun crime giving rise to this case, and his participation in the program was revoked. He pled guilty in this case to possessing a stolen firearm with an altered serial number. In sentencing him, the district court increased his sentence two levels under § 2K2.1(a)(4)(B), reasoning that he was still “under indictment” for his state offense because it “‘remained pending’ when” he committed the federal offense. The district court sentenced him to 48 months. The court agreed that Rolon’s participation in the diversion program meant that he was “under indictment” and thus was a “prohibited person” under federal firearm laws when he committed the federal crime. “Nothing dissolved or withdrew the original information filed by Michigan prosecutors” and the state court had not “entered any judgment on it.” Rolon acknowledged that “‘the charge remain[ed] pending.’” As long as he remained “a trainee, the Michigan court could at ‘any time’ revoke that status and ‘enter an adjudication of guilt’ under the original information.” A new information is not required under Michigan law. The court rejected Rolon’s claim that he was “already serving” his sentence when he was on probation, noting that MCL 762.14(2) provides that “‘assignment of an individual to the status of youthful trainee . . . is not a conviction for a crime.’” Moreover, he would still be a “prohibited person” whether he was an individual “under indictment” or a convicted felon.

As-applied constitutional challenge to the FIP statute (18 USC § 922(g)(1)); The Second Amendment; New York State Rifle & Pistol Ass’n v Bruen; District of Columbia v Heller; United States v Williams; Whether there was sufficient evidence to support the district court’s “dangerousness” determination for purposes of § 922(g)(1)

In an issue of first impression in this circuit, the court considered whether the “dangerousness” inquiries for pretrial detention and taking away a felon’s right to possess a firearm under § 922(g)(1) “are one and the same” and held that they are different. It also held that the district court properly determined that defendant-Taylor “was dangerous based on his prior felony drug trafficking convictions.” He moved to have his indictment for FIP dismissed on Second Amendment grounds. When the district court denied his motion, he pled guilty, reserving his right to appeal. He brought an as-applied challenge to the constitutionality of § 922(g)(1). The court first reviewed Second Amendment case law, including Williams, where it held that “‘governments may use class-based legislation to disarm people it believes are dangerous, so long as members of that class have an opportunity to show they [are not].’” Taylor argued that he could not be considered “dangerous” under Williams where the district court apparently determined he was not dangerous when it granted him pretrial release. The court noted that the two inquiries implicate “different liberty interests” as well as “different legal presumptions: a presumption runs against pretrial detention for most crimes, . . . but under § 922(g)(1), a presumption runs in favor of restricting felons’ access to firearms.” Thus, the district court’s dangerousness assessment for pretrial detention purposes “does not automatically resolve” whether a defendant is dangerous for § 922(g)(1) purposes, it concluded that the district court’s allowing “Taylor to remain on bail pending sentencing and to self-surrender speaks to [his] ability to obey the conditions set by the court, not his alleged lack of dangerousness.” Turning to the dangerousness inquiry for § 922(g)(1) purposes, the court applied Williams, looking at his offense conduct and then his criminal history. As to the former, while under the influence of meth, he “began hallucinating and claimed to ‘see[] people watching him that others can’t see.’ Holes from four shots were then found inside his townhouse.” As to the latter, his “felony drug trafficking convictions fall within the second Williams category.” While he asserted he “is a ‘nonviolent felon,’” the court noted that “Williams does not require violence to show dangerousness.” Further, the age of his convictions did not preclude a dangerousness finding. Affirmed.

Child custody; Proper cause or change of circumstances; Vodvarka v Grasmeyer; Established custodial environment (ECE); MCL 722.27(1)(c); Pierron v Pierron; Burden of proof; Kessler v Kessler; Best-interest factors; MCL 722.23; Rittershaus v Rittershaus; Child Custody Act (CCA)

The court held that the trial court erred by awarding plaintiff-mother sole legal custody without making the required findings on ECE, burden of proof, and the 12 best-interest factors, so the order was vacated and the matter remanded for a new evidentiary hearing. Plaintiff and defendant-father shared joint legal and physical custody under a consent judgment, but repeated disputes over “parental decision-making” including counseling and medical care, led to multiple motions and hearings, culminating in the trial court granting sole legal custody to plaintiff on the theory that “sole custody should be awarded if parents cannot agree on essential decisions.” On appeal, the court emphasized the CCA’s “specific procedural requirements and factual findings” and that MCL 722.27(1)(c) serves a “gatekeeping function” and “barrier against removal of a child from an” ECE. Although the panel could “adduce from the record” that the counseling dispute supplied “proper cause or change in circumstances” because medical decisions “are clearly important decisions affecting the welfare of the children” and implicated factor (c), it found error in the trial court’s wholesale omission of required custody findings. The trial court “did not rule on whether an [ECE] existed, and if so, with whom,” so it never determined “the appropriate burden of proof,” and despite referencing cooperation, it made “no findings on any of the 12 specific best-interest factors under MCL 722.23,” violating the requirement that courts “explicitly state” findings and conclusions for each factor. The panel held this failure affected the children’s substantial rights and “seriously affected the fairness and integrity of the proceedings,” requiring vacatur and remand for an evidentiary hearing to make explicit findings on custodial environment, apply the resulting burden of proof, and make best-interest findings using “up-to-date information.”

Medicare Secondary Payer Act (MSPA) in the workmen’s compensation context; 42 USC §§ 1395y(b)(2)(A), (b)(2)(B)(ii), & (b)(3)(A); Private cause of action for double damages; Demonstration of responsibility to pay; Condition precedent; Distinguishing Bio-Medical Applications of TN, Inc v Central States Health SE & SW Areas Health & Welfare Fund (6th Cir); Glover v Ligget (11th Cir); Good faith; DaVita Inc v Virginia Mason Mem’l Hosp (9th Cir)

The court held that although “an initial decision in the workmen’s compensation proceedings has now arguably demonstrated [defendant-] Conifer’s responsibility for” the injured person’s (R) medical care, plaintiff-Bronson Healthcare “has not demonstrated that Conifer failed to reimburse Medicare within the meaning of the MSPA,” so the trial court erred by granting summary disposition for the medical provider. “Because Bronson Healthcare filed this litigation prematurely, Conifer had no real opportunity to reimburse Medicare” and “[a]t the very least, Conifer should be given that opportunity, as other workmen’s compensation insurers have been.” Thus, the court vacated and remanded with instructions to the trial court to dismiss without prejudice. “When a workmen’s compensation insurer does not pay a medical provider for services rendered because there is a dispute over coverage, and Medicare makes a conditional payment under the [MSPA], does the provider have a private cause of action for double damages under the MSPA?” As long as the insurer “has a good-faith ground for disputing coverage, the service provider does not have a viable cause of action unless and until it is demonstrated that the insurer has a responsibility to pay but fails to do so in a timely manner consistent with the MSPA.” Conifer Insurance “provided workmen’s compensation insurance to the Fraternal Order of Eagles[.]” R fell and injured bartending at the Eagles. “Bronson Healthcare billed Conifer for [R’s] medical expenses, but Conifer denied the claim on the basis that [R] was a volunteer and not an employee covered under the plan. Medicare conditionally paid for [her] medical expenses.” Conifer maintained “that, when Bronson Healthcare sued the insurer, there was, at minimum, a good-faith question whether [R] was covered under the policy as an ‘employee’ of the Fraternal Order of Eagles when she was injured. Given this, according to Conifer, any requirement that it cover [R’s] medical bills would not have arisen until and unless a court or administrative agency determined that she was, in fact, an employee and not a volunteer.” The court concluded that based on the record before it, there was “no genuine issue of material fact that Conifer had a good-faith basis for disputing coverage; thus, something more than mere reference to the plan documents and law was needed to demonstrate that Conifer was, in fact, responsible for payments related to [R’s] care. Beyond a plain reading of the statute, we further recognize that a contrary holding would have several distorting effects in cases like this one.” It also concluded that to “be clear, neither the plain text of the MSPA nor our holding today should be read to give carte blanche to a workmen’s compensation insurer or other primary payer to deny payment when the law or the plan’s own terms and conditions plainly provide coverage.”

PIP benefits; Material misrepresentation on application; Whether a question on the application was ambiguous

Holding that the trial court correctly determined that defendant-USA Underwriters (insurer) was entitled to rescind the policy on the basis of plaintiff’s material misrepresentation, the court affirmed. “Because the intent behind the misrepresentation is irrelevant,” the issue was whether question 8 is ambiguous. “The trial court correctly read question 8 as asking whether, in the prior three years, plaintiff’s [insured] license had been revoked at any time. The fact that questions 6 and 7 ask about the current status of suspension and question 8 asks about suspension in the prior three years indicates that the subsequent question is a follow-up to its predecessors—that is, questions 6 and 7 ask whether any of the applicable individuals had their licenses currently suspended, while question 8 asks whether any of the applicable individuals had their license suspended within the last three years of the application.” The court concluded that because “the question is not ambiguous, plaintiff’s response was false and a misrepresentation. Furthermore, the misrepresentation was material because defendant’s chief underwriter attested that defendant did ‘not issue policies to individuals with known driver’s license suspensions in the three years prior to the policy application.’ Finally, in issuing the policy, defendant necessarily relied on this misrepresentation.”

Enforcement of a settlement agreement (SA); Whether the parties reached a settlement

The court held that the “trial court abused its discretion by not enforcing the terms of the [SA], which also included a provision for a pocket judgment and mortgage, and by denying the renewed motion” to enforce the SA. Plaintiff argued that the parties entered a valid SA “on the record in open court and that the trial court erred in its determination that there was no settlement and by ordering the parties to execute a written [SA] that (a) modified the terms of the payment dates and (b) did not include certain terms, including a consent judgment and mortgage.” The court held that the “trial court abused its discretion by not enforcing the terms of the [SA], as it erred by modifying the dates of the payment schedule under the” SA. It “was not permitted to modify the bargained for dates of the payment plan solely because defendants interpreted the terms differently.” The court appreciated “the trial court’s attempt at a practical solution to the problem of certain dates having passed since the agreement was enforced.” However, the trial court was not allowed to provide any reasonable details “because the payment dates were specific and not open to interpretation.” Plaintiff would “not receive the benefit of the bargain under the trial court’s modified payment plan. Under the [SA], plaintiff was to receive the final payment on” 6/1/27. But “under the new schedule, plaintiff would not receive the final payment until a year later.” Reversed and remanded.

Mootness; Attorney Gen v Michigan Pub Serv Comm’n; Uniform Condemnation Procedures Act (UCPA) jurisdictional prerequisites; MCL 213.55(1); Board of Cnty Rd Comm’rs for Cnty of Washtenaw v Shankle; Necessity review; MCL 213.56; Nelson Drainage Dist v Filippis; Subject-matter jurisdiction; Void orders; Bowie v Arder; Strict construction of UCPA; Indiana MI Power Co v Community Mills, Inc; Vesting of title; MCL 213.57(1); Goodwill Cmty Chapel v General Motors Corp

The court held that completion of the replacement pipeline did not moot defendants’ appeals because the jurisdictional defects and necessity-review claims could still yield effective relief, so it reaffirmed its prior decision requiring dismissal for lack of subject-matter jurisdiction. On remand from the Supreme Court, the court addressed whether the pipeline’s completion before the landowner and lessee sought leave to appeal rendered the case moot. The court reiterated that an issue is moot only when an event makes it “impossible for the reviewing court to grant relief,” and emphasized that the UCPA “‘is to be strictly construed, and its jurisdictional conditions must be established in fact[.]’” It concluded the appeals were not moot because defendant-Double Eagle’s claim—that plaintiff-Michigan Gas failed to make a statutorily compliant “good faith written offer” to an “owner” (Double Eagle) under MCL 213.55(1) before filing—implicated subject-matter jurisdiction. When “‘a court lacks subject matter jurisdiction,’” “‘any action it takes, other than to dismiss the action, is void,’” and the appellate court’s role is limited to reversing and ordering dismissal. The court also explained that reversal and dismissal “would provide defendants practical relief short of unwinding the” completed project by allowing the parties to address abandonment of the original easement and removal of the original pipeline, potentially avoiding “future litigation” over continued presence of the old line, including possible “continuing trespass” concerns. It rejected reliance on Goodwill as not controlling on mootness here, noting that case involved just-compensation issues and did not present the necessity-review and jurisdiction questions at issue in this proceeding. Affirmed.

Mootness; Attorney Gen v Michigan Pub Serv Comm’n; Uniform Condemnation Procedures Act (UCPA) jurisdictional prerequisites; MCL 213.55(1); Board of Cnty Rd Comm’rs for Cnty of Washtenaw v Shankle; Necessity review; MCL 213.56; Nelson Drainage Dist v Filippis; Subject-matter jurisdiction; Void orders; Bowie v Arder; Strict construction of UCPA; Indiana MI Power Co v Community Mills, Inc; Vesting of title; MCL 213.57(1); Goodwill Cmty Chapel v General Motors Corp

The court held that completion of the replacement pipeline did not moot defendants’ appeals because the jurisdictional defects and necessity-review claims could still yield effective relief, so it reaffirmed its prior decision requiring dismissal for lack of subject-matter jurisdiction. On remand from the Supreme Court, the court addressed whether the pipeline’s completion before the landowner and lessee sought leave to appeal rendered the case moot. The court reiterated that an issue is moot only when an event makes it “impossible for the reviewing court to grant relief,” and emphasized that the UCPA “‘is to be strictly construed, and its jurisdictional conditions must be established in fact[.]’” It concluded the appeals were not moot because defendant-Double Eagle’s claim—that plaintiff-Michigan Gas failed to make a statutorily compliant “good faith written offer” to an “owner” (Double Eagle) under MCL 213.55(1) before filing—implicated subject-matter jurisdiction. When “‘a court lacks subject matter jurisdiction,’” “‘any action it takes, other than to dismiss the action, is void,’” and the appellate court’s role is limited to reversing and ordering dismissal. The court also explained that reversal and dismissal “would provide defendants practical relief short of unwinding the” completed project by allowing the parties to address abandonment of the original easement and removal of the original pipeline, potentially avoiding “future litigation” over continued presence of the old line, including possible “continuing trespass” concerns. It rejected reliance on Goodwill as not controlling on mootness here, noting that case involved just-compensation issues and did not present the necessity-review and jurisdiction questions at issue in this proceeding. Affirmed.

Medicare Secondary Payer Act (MSPA) in the workmen’s compensation context; 42 USC §§ 1395y(b)(2)(A), (b)(2)(B)(ii), & (b)(3)(A); Private cause of action for double damages; Demonstration of responsibility to pay; Condition precedent; Distinguishing Bio-Medical Applications of TN, Inc v Central States Health SE & SW Areas Health & Welfare Fund (6th Cir); Glover v Ligget (11th Cir); Good faith; DaVita Inc v Virginia Mason Mem’l Hosp (9th Cir)

The court held that although “an initial decision in the workmen’s compensation proceedings has now arguably demonstrated [defendant-] Conifer’s responsibility for” the injured person’s (R) medical care, plaintiff-Bronson Healthcare “has not demonstrated that Conifer failed to reimburse Medicare within the meaning of the MSPA,” so the trial court erred by granting summary disposition for the medical provider. “Because Bronson Healthcare filed this litigation prematurely, Conifer had no real opportunity to reimburse Medicare” and “[a]t the very least, Conifer should be given that opportunity, as other workmen’s compensation insurers have been.” Thus, the court vacated and remanded with instructions to the trial court to dismiss without prejudice. “When a workmen’s compensation insurer does not pay a medical provider for services rendered because there is a dispute over coverage, and Medicare makes a conditional payment under the [MSPA], does the provider have a private cause of action for double damages under the MSPA?” As long as the insurer “has a good-faith ground for disputing coverage, the service provider does not have a viable cause of action unless and until it is demonstrated that the insurer has a responsibility to pay but fails to do so in a timely manner consistent with the MSPA.” Conifer Insurance “provided workmen’s compensation insurance to the Fraternal Order of Eagles[.]” R fell and injured bartending at the Eagles. “Bronson Healthcare billed Conifer for [R’s] medical expenses, but Conifer denied the claim on the basis that [R] was a volunteer and not an employee covered under the plan. Medicare conditionally paid for [her] medical expenses.” Conifer maintained “that, when Bronson Healthcare sued the insurer, there was, at minimum, a good-faith question whether [R] was covered under the policy as an ‘employee’ of the Fraternal Order of Eagles when she was injured. Given this, according to Conifer, any requirement that it cover [R’s] medical bills would not have arisen until and unless a court or administrative agency determined that she was, in fact, an employee and not a volunteer.” The court concluded that based on the record before it, there was “no genuine issue of material fact that Conifer had a good-faith basis for disputing coverage; thus, something more than mere reference to the plan documents and law was needed to demonstrate that Conifer was, in fact, responsible for payments related to [R’s] care. Beyond a plain reading of the statute, we further recognize that a contrary holding would have several distorting effects in cases like this one.” It also concluded that to “be clear, neither the plain text of the MSPA nor our holding today should be read to give carte blanche to a workmen’s compensation insurer or other primary payer to deny payment when the law or the plan’s own terms and conditions plainly provide coverage.”