Breach of contract; Contract interpretation; Contract terms; Condition precedent; Waiver; Attorney fees under the contract; Motion for reconsideration

The court concluded the trial court did not err in awarding plaintiff-Cherry Oak “$52,321 in damages for nonpayment of landscaping work, $64,524 in attorney fees, $8,872 in supplemental attorney fees, $33,953 in interest, and $1,502 in costs.” But it remanded for a determination as to the reasonableness of appellate attorney fees. Defendant-OPV Partners contended “that the trial court erred by construing the initial paragraph” of the master contract “as incorporating the entirety of Attachment A.” The court held that “because the language of the master contract incorporates the entirety of Attachment A into the contract, the trial court did not err by granting Cherry Oak Landscaping partial summary disposition, nor did [it] abuse its discretion by denying OPV Partners’ motion for reconsideration.” OPV Partners next argued “that the trial court should have granted its motion for summary disposition because Cherry Oak Landscaping failed to submit with its invoices sworn statements and lien waivers. Because that condition precedent to payment was not satisfied, OPV Partners contends that it did not breach the contract by failing to pay Cherry Oak Landscaping for the services that it performed under the contract.” But the court determined that summary disposition would not have been appropriate “given that one party averred that the required documentation was not provided and the other party averred that it had been provided,” creating a genuine issue of material fact. OPV Partners next argued “that the trial court erred by finding at trial that it had waived the requirement that Cherry Oak Landscaping submit lien waivers and sworn statements with its invoices.” The court concluded that the “trial court did not clearly err by finding that the communications, coupled with OPV Partners’ silence as to the need for lien waivers and sworn statements, constituted a waiver of the provisions regarding lien waivers and sworn statements.” The court further determined that the award of attorney fees in this case was “not unreasonable simply because the damages for the breach of contract were less than the amount of attorney fees awarded.” In addition, the court noted that the attorney-fees provision was “clearly broad and does not exclude the award of appellate attorney fees.” Affirmed but remanded.

Notice requirements in MCL 600.6431; “Personal,” “injury,” & “personal injury”; Absolute prosecutorial immunity; Qualified immunity; Intentional torts; Gross negligence; Constitutional claims; 42 USC § 1983; Search & seizure; Procedural due process; Equal protection; Intentional infliction of emotional distress (IIED)

The court concluded that because plaintiffs “gave notice seven months after accrual, the trial court did not err by summarily dismissing their claims against the state of Michigan, the Attorney General’s Office, and DHHS.” The trial court also did not err by holding defendant-Pheney “was entitled to absolute immunity and by granting” him summary disposition on the constitutional and tort claims. Because a genuine issue of material fact did not exist on the issue of whether defendants-Massey and Sampson were entitled to qualified immunity on the defamation and IIED claims, the trial court did not err in dismissing them. Further, they were “entitled to immunity on the gross-negligence claims under MCL 691.1407(2).” Finally, plaintiffs’ constitutional claims failed. Plaintiffs-Hall and Genuine Solutions asserted that Pheney “was acting in an investigative capacity.” The record reflected “that Pheney, who was working as an assistant attorney general in the Health Care Fraud Division of the Attorney General’s office, was the lawyer that was assigned to” plaintiffs’ case. A “special agent investigated the matter, and Pheney’s name appeared on the special agent’s reports.” But there was “no indication from the investigation reports that Pheney determined which witnesses to interview, questioned witnesses personally or determined what questions to ask, observed interviews, or gathered documentary evidence before charges were initiated. The investigation reports only support that the special agent interviewed former interns and the parents of minor clients. Based upon the evidence gathered by the special agent, and information gathered during Hall’s interview, Pheney believed probable cause existed to support pursuing criminal charges against Hall” and filed a felony complaint. Thus, the court held that “even when viewing the evidence in a light most favorable to plaintiffs, the record does not support a finding that the functions of Pheney and the special agent” were the same. Instead, the evidence supported “a finding that Pheney reviewed the evidence collected by the special agent and determined probable cause existed to pursue criminal charges.” Under these facts, the trial court did not err by holding Pheney was entitled to absolute immunity. As to the intentional-tort claims against Massey and Sampson, the court concluded the undisputed evidence established they “reasonably believed that they were acting within the scope of their authority and acted in good faith, i.e., without ‘malicious intent,’ ‘capricious action,’ or ‘corrupt conduct,’ when signing the order of suspension.” The court noted they “were presented with evidence that Hall, who was a provider, had been charged with Medicaid fraud. This was accurate information and was reflected in the order of suspension.” Affirmed.

Breach of contract; Contract interpretation; Contract terms; Condition precedent; Waiver; Attorney fees under the contract; Motion for reconsideration

The court concluded the trial court did not err in awarding plaintiff-Cherry Oak “$52,321 in damages for nonpayment of landscaping work, $64,524 in attorney fees, $8,872 in supplemental attorney fees, $33,953 in interest, and $1,502 in costs.” But it remanded for a determination as to the reasonableness of appellate attorney fees. Defendant-OPV Partners contended “that the trial court erred by construing the initial paragraph” of the master contract “as incorporating the entirety of Attachment A.” The court held that “because the language of the master contract incorporates the entirety of Attachment A into the contract, the trial court did not err by granting Cherry Oak Landscaping partial summary disposition, nor did [it] abuse its discretion by denying OPV Partners’ motion for reconsideration.” OPV Partners next argued “that the trial court should have granted its motion for summary disposition because Cherry Oak Landscaping failed to submit with its invoices sworn statements and lien waivers. Because that condition precedent to payment was not satisfied, OPV Partners contends that it did not breach the contract by failing to pay Cherry Oak Landscaping for the services that it performed under the contract.” But the court determined that summary disposition would not have been appropriate “given that one party averred that the required documentation was not provided and the other party averred that it had been provided,” creating a genuine issue of material fact. OPV Partners next argued “that the trial court erred by finding at trial that it had waived the requirement that Cherry Oak Landscaping submit lien waivers and sworn statements with its invoices.” The court concluded that the “trial court did not clearly err by finding that the communications, coupled with OPV Partners’ silence as to the need for lien waivers and sworn statements, constituted a waiver of the provisions regarding lien waivers and sworn statements.” The court further determined that the award of attorney fees in this case was “not unreasonable simply because the damages for the breach of contract were less than the amount of attorney fees awarded.” In addition, the court noted that the attorney-fees provision was “clearly broad and does not exclude the award of appellate attorney fees.” Affirmed but remanded.

Criminal contempt for violating a domestic personal protection order (PPO); Standard of proof; “Beyond a reasonable doubt”; “Stalking,” “harassment,” “course of conduct,” & “emotional distress”; Totality of the circumstances; Right to present a defense; Extension of the PPO; MCR 3.707(B)(1); MCR 3.708(H)(5)

Under the circumstances, the court held “that the trial court did not violate respondent’s due process rights or otherwise abuse its discretion by considering the totality of the circumstances and determining that his conduct violated the PPO beyond a reasonable doubt.” Also, he did not show “that the absence of his son’s testimony affected the outcome of the contempt proceedings, or that he was denied his constitutional right to present his defense.” Finally, he did not establish that the trial “court’s sua sponte extension of the PPO constituted plain error that affected his substantial rights[.]” Thus, the court affirmed the trial court’s order finding respondent guilty of criminal contempt for violating a domestic PPO concerning petitioner and extending the duration of the PPO. Respondent argued “that the trial court did not properly apply the ‘beyond a reasonable doubt’ standard in finding him guilty of criminal contempt because it relied on the totality of the circumstances.” The court concluded that “the trial court did not adjudicate [his] guilt under an incorrect view of the law by assessing [his] conduct from a totality-of-the-circumstances perspective.” Further, it did not otherwise err in determining, “beyond a reasonable doubt and based on the totality of the circumstances, that [he] (1) continued to engage in a willful course of conduct involving repeated or continuing harassment of petitioner that would cause a reasonable person emotional distress, and did cause petitioner emotional distress, in violation of the PPO’s prohibition of stalking, or (2) engaged in ‘a continuous pattern of . . . interfering in [petitioner’s] daily life one way or another’ in violation of the PPO’s prohibition of engaging in conduct that impaired petitioner’s environment.” It was proper for the trial “court to consider respondent’s continued pattern of harassing and intimidating conduct toward petitioner, i.e., the totality of the circumstances, to establish that he violated the PPO, particularly where the PPO plainly prohibited such conduct.” The court concluded “that the evidence, viewed as a whole and in context, sufficed to establish beyond a reasonable doubt that respondent violated the PPO.”

Search & seizure; Constitutionality of a warrantless search of a probationer’s property without reasonable suspicion or a signed waiver; United States v Knights; “Common authority”; Consent; People v Farrow

The court held that a “warrantless search of a probationer’s property, without reasonable suspicion or a signed waiver of Fourth Amendment protections pursuant to an order of probation, is unconstitutional.” Thus, it vacated the trial court’s order denying defendant-Chandler’s motion to suppress. Given that the record was undeveloped as to whether Chandler’s “cousin had ‘common authority’ to consent to the search of [his] room and whether that consent was voluntary,” the court remanded as to that matter. He first argued “that the trial court’s order denying his motion to suppress evidence seized during the search of his bedroom should be vacated because the search was unconstitutional.” The court agreed. His “probation order simply stated he was to submit to a search of his person and property. It did not include the requirement of reasonable cause as was stated at sentencing.” Using the totality-of-circumstances test from Knights, the court took “note of the importance of the trial court’s probation order as a salient circumstance. However, Chandler did not sign or date the probation order, and there is no indication that he was aware of its contents or consented to the same. In fact, at sentencing, [he] was told that he would be subject to searches if reasonable cause or suspicion existed that he had violated the terms of probation or committed a crime.” As a result, the court concluded “that the warrantless search of [his] bedroom violated” his Fourth Amendment rights. “Barring any other Fourth Amendment exception to the warrant requirement, the fruits of this search should have been suppressed.” Chandler asserted “that the search was also not a valid consent search because the prosecution failed to meet its burden to show that his cousin properly consented to the search.” The record reflected that his cousin was the homeowner. “The extent of his provision of the living quarters is less clear.” The court found that given “how lacking the record is regarding this issue, we believe further development in the trial court is appropriate as to this question of consent. This inquiry should include whether the consent itself was ‘unequivocal, specific, and freely and intelligently given.’”

Ineffective assistance of counsel; Matters of trial strategy; Prejudice; Exclusion of text message evidence; Hearsay; Discovery; Alleged violations of MCL 767.40a(3), MCR 6.201(A)(1), & MCR 6.201(A)(3); Remedy; Expert testimony; MRE 702; Curriculum vitae (CV)

The court rejected defendant’s ineffective assistance of counsel claims and also concluded the trial court did not abuse its discretion in excluding his text messages to the victim (CH). As to discovery violations, while it did “not condone the prosecution’s violation of MCL 767.40a and the” MCRs, it found defendant was not prejudiced as a result of the conduct. Finally, it held that the trial court did not abuse its discretion in allowing a witness (S) to testify as an expert pursuant to MRE 702. Thus, the court affirmed defendant’s convictions of unarmed robbery and engaging the services of another person for the purpose of prostitution. He argued defense “counsel was ineffective for failing to investigate the cell-site location data presented by the prosecution and failing to consult or present any defense witnesses to rebut that evidence.” The court determined that “counsel’s performance did not fall below an objective standard of reasonableness.” The record showed “that defense counsel did not seek a rebuttal witness regarding the cell-site location data because the prosecution failed to provide adequate notice regarding its intent to present [S] as an expert witness during trial. The prosecution neglected to provide an endorsed witness list until one business day before the bench trial,” or to provide defense counsel with S’s CV and final report. Defense counsel raised numerous objections during the bench trial “to the prosecution’s presentation of [S] as an expert witness, particularly in light of the lack of notice . . . .” The court found that under the “circumstances, defense counsel was not objectively unreasonable for neglecting to further investigate the cell-site location data presented by the prosecution, consult any defense witnesses to rebut the aforementioned evidence, or seek potential funding for the acquisition of an expert witness.” Further, defendant failed to show prejudice. As to the prosecution’s discovery violations, it did not appear he was prejudiced by S’s testimony. The “undisputed data corroborated CH’s testimony concerning her stolen cell phone, and the trial court recognized the limitations of cell-site location mapping.” It found CH’s testimony credible and the photos “taken by law enforcement of CH’s injuries matched her narrative.” Defendant did not show the trial court’s decision to admit S’s “testimony despite the prosecution’s discovery violations was outcome-determinative.”

Constitutional right to counsel; Self-representation; People v Anderson; MCR 6.005(E); Sufficiency of the evidence for an aggravated stalking conviction; MCL 750.411i(2)(a); “Unconsented contact” (MCL L 750.411i(1)(f)); Waiver of jury instruction issue; Sentencing; Scoring of OV 10; MCL 777.40(1)(a); “Predatory conduct” (MCL 777.40(3)(a))

The court held that (1) defendant was not denied his right to counsel, (2) there was sufficient evidence to support his aggravated stalking conviction, (3) he waived his jury instruction issue, and (4) OV 10 was properly scored at 15 points in sentencing him. He was sentenced as a fourth-offense habitual offender to 6 to 15 years. It was “undisputed that defendant waived his right to appointed counsel and asserted his right to represent himself until” after the jury was impaneled and the first witness was sworn, when he requested a one-month adjournment to retain an attorney. The trial court was clear that it denied the “adjournment after the jury was impaneled because jeopardy had attached, defendant repeatedly declined the offer of appointed counsel, and adjournment would significantly prejudice the prosecution.” The court found that the “trial court complied with MCR 6.005 in its repeated advisement of rights and confirmation of defendant’s waiver, and in its reasons for refusing an adjournment after trial began.” In challenging the sufficiency of the evidence for his conviction, defendant focused on whether his contact with the victim (S) was unconsented. The court noted that the prosecution did not have to prove S “explicitly asked defendant to stop contacting her, but only that [his] calls and texts were without [S’s] consent. Here, the numerous unanswered text messages and phone calls and [S’s] blocking of contacts from defendant’s number were proof beyond a reasonable doubt that [S] did not consent to the contacts. The fact that [S] met with defendant after the assault and that her phone showed contact with [him] during this period does not refute that [his] numerous other calls and messages were unconsented.” As to the scoring of OV 15, the court found that it was reasonable to infer from defendant’s preoffense conduct that he “intended to make [S] more susceptible to the fear that [he] would find her wherever she went.” Affirmed.

Restraint element of kidnapping; MCL 750.349(2); Effect of the victim’s voluntary entry into a vehicle; CSC I under MCL 750.520b(1)(c); CSC II under MCL 750.520c(1)(c); Sentencing; Scoring of OV 10; MCL 777.40(1)(a); People v Cannon; People v Kosik; People v Barnes; “Predatory conduct”; “Exploitation” & “vulnerability”

The court held that there was sufficient evidence “for the jury to find restraint as defined in MCL 750.349” and thus, there was no merit in defendant’s challenge to the sufficiency of the evidence for his kidnapping and CSC convictions. It also held that the trial court did not err in scoring OV 10 at 15 points in sentencing him. He was resentenced to concurrent terms of 15 to 40 years for his kidnapping conviction, 14 to 25 years for his CSC I conviction, and 5 to 15 years for his CSC II conviction. He argued that the prosecution did not provide sufficient “evidence of the victim’s restraint to establish that he kidnapped” her and, because the kidnapping crime “served as the felony committed to support the” CSC charges, there was also insufficient evidence for those convictions. The court disagreed, rejecting his “contention that the victim’s voluntary entry into his vehicle negates the knowingly restraint element of kidnapping. Consent is a complete defense to kidnapping only if it has not been obtained by fraud, duress, or threats.” The court concluded the jury could have reasonably found “that any consent by the victim to enter defendant’s car was obtained by fraud.” She got into his “car under the mistaken belief that [he] would drive her home, leaving her near the vet clinic. However, [he] drove past the vet clinic to a secluded area in the back parking lot near a trash can. Contrary to his argument, this act was indeed inconsistent with his agreement to drive the victim to an area near her apartment but outside the view of her mother. The jury was entitled to conclude that [he] did not offer to drive [her] home because he was a nice person from their common native land, but used that information as a ruse to get [her] into his car. Once inside, [he] secreted [her] in the area behind the vet clinic, where no one was present, and there he sexually assaulted her. [He] restrained [her] when he did not drop her off near her home, but continued to a secluded area to which she did not agree. And, the victim testified that being restrained during the sexual assault in the front seat prevented her from attempting to exit the locked Jeep as well as the sexual assault that transpired in the backseat.” The court held that, viewing “the evidence in the light most favorable to the prosecution, any consent obtained by defendant was obtained by fraud and that defendant’s real intention had been to sexually assault the victim.” Affirmed.

Sufficient evidence of resisting or obstructing an officer (MCL 750.81d(1)); Sufficient evidence of fourth-degree fleeing & eluding (MCL 750.479a); People v Grayer; Prosecutorial error; Other acts evidence; MRE 404(b)(1); A police witness’s testimony; MRE 701 & 704

The court held that there was sufficient evidence to support defendant’s convictions of resisting or obstructing an officer and fourth-degree fleeing and eluding. It also rejected his prosecutorial error claims. The court found that the state trooper’s (W) “testimony was sufficient for a rational jury to conclude that defendant received a lawful command and failed to comply. [W] testified that he told defendant to turn off the car, open the door, and get out of the car, and that defendant failed to follow his instructions. After considering the testimony and watching the dashcam video, the jury resolved the conflicting testimony and determined that defendant failed to comply with at least one of” W’s commands. The court noted that it does “not second-guess the jury’s credibility determinations, but must make credibility determinations that support its’ verdict.” The jury here credited W’s “testimony and the fact that seconds passed between the trooper’s command and defendant’s failure to comply is not dispositive because resistance ‘can occur in even the briefest of moments[.]’” As to the fleeing and eluding conviction, “the jury heard defendant’s claimed justification for failing to heed [W’s] initial use of the lights and siren and [W’s] subsequent use of the lights and commands before it convicted him. Notably, despite the alleged emergency, defendant and his girlfriend did not travel to the nearest hospital, [his] girlfriend declined medical assistance and an EMS transport, and” their baby did not arrive until 16 days after the traffic stop. Defendant admitted at trial that he knew W “turned his lights on two separate occasions.” The court noted that the “defense theory was that defendant called 911 when he noticed the lights to explain why he was driving so quickly and not stopping. Intrinsic to this argument is defendant’s acknowledgment that [W] was commanding him to stop. Moreover, the evidence further supported a rational inference that defendant saw [W] turning around and purposefully sped up to avoid being stopped. Likewise, [his] failure to comply with [W’s] commands during the traffic stop was further circumstantial evidence that defendant acted with the requisite intent to flee and elude.” Affirmed.

The court’s jurisdiction; MCR 7.203; “Final order”; Aggrieved party; Effect of a consent or stipulated final order on an appeal from an earlier order; Sandoval v Farmers Ins Exch; Consent judgments & settlement agreements as contracts; Whether negligence claims as to employees’ training & supervision were barred by the exclusive remedy provision of the Dramshop Act   

While it concluded Sandoval was wrongly decided, the court was bound by it to dismiss plaintiff’s appeal in this dramshop/negligence action for lack of jurisdiction. Under Sandoval, “a consent or stipulated final order does not allow for an appeal from an earlier order unless a party reserved the right to appeal the underlying order in the stipulation to the order of dismissal.” Failure to do so results in the court lacking jurisdiction to hear the appeal. Plaintiff sued defendants-P & P and Randall (who she alleged was overserved at P & P’s establishment) asserting negligence claims and dramshop liability. She later agreed to the dismissal of the dramshop claim but continued to pursue her negligence claims. “The trial court dismissed the dramshop claim in light of the parties’ agreement” and further concluded the Dramshop Act’s “exclusive remedy provision precluded an independent cause of action for negligence[.]” On appeal, the court found that “plaintiff was an aggrieved party from the underlying order granting” P & P summary disposition. But the case “was not closed at that time and a final order was not entered because” of the claims against Randall. After he was dismissed, plaintiff was entitled to pursue an appeal of right. The court concluded that under “the plain language of the court rule” she was an aggrieved party given the earlier adverse summary disposition decision and she “appealed from the final order that dismissed the remaining parties and closed the case.” Thus, the court would find it had jurisdiction because she “was an aggrieved party and was entitled to appeal the trial court’s adverse summary disposition ruling related to P & P.” It would find that she “was not required to reserve the right to appeal an earlier order granting P & P’s dispositive motion in the final order of dismissal because P & P was no longer a participant in the litigation and not a party to the final order closing the case. But, the Sandoval majority determined that a final order must contain language reserving the right to appeal the earlier order granting summary disposition, and the failure to do so requires” dismissal for lack of jurisdiction. The court found that Sandoval was wrongly decided because it correlated the court’s “jurisdiction to the inclusion of specific language in a lower court order rather than on the court rules governing jurisdiction and it ignored the application of contract principles.” The court added that it agreed with plaintiff the trial court erred in ruling “her negligence claims addressing the training and supervision of P & P’s employees were barred by the” Dramshop Act’s exclusive remedy provision. Dismissed for lack of jurisdiction.

Medical malpractice; Vicarious liability; Actual & ostensible agency; Whether amending the complaint would be futile; The misnomer doctrine; MCL 600.2301; Mootness; The Professional Services Agreement (CMU Agreement)

The court held that the trial court erred by finding no genuine issue of material fact existed as to whether a nonparty doctor (Kais) was an actual agent of defendant-St. Mary’s. It also erred in “summarily disposing of plaintiffs’ ostensible-agency claim” as to Dr. Kais. But it did not err by holding no genuine issue of material fact existed as to whether another nonparty doctor (Kottamasu) was St. Mary’s actual or ostensible agent. However, the trial court abused its discretion by determining amending the second amended complaint on the question of actual and ostensible agency would be futile. This medical malpractice case arose out of the alleged negligent treatment of plaintiffs’ decedent after she presented to the ER of St. Mary’s. As to whether Dr. Kais was an actual agent of St. Mary’s, plaintiffs pointed to an agreement (the CMU Agreement) “between CMU Partners and St. Mary’s as proof that St. Mary’s exercised sufficient control over Dr. Kais to establish an agency relationship.” The court concluded “the terms of the CMU Agreement, together with Dr. Kais’s employment agreement with CMU Partners, create a genuine issue of material fact for the jury.” However, it could not “be said St. Mary’s exerted control over ‘the manner or methodology’ of the treatment provided by Dr. Kottamasu at the time of the alleged malpractice.” As to whether Dr. Kais was St. Mary’s ostensible agent, the consent-for-services agreement “would have been enough to put plaintiffs on notice that some physicians present at the hospital were not agents of the hospital. But, it did not specify whether the specific physicians who treated or diagnosed decedent were agents or employees of St. Mary’s. This is particularly important considering there is no evidence decedent had a preexisting relationship with any of her treating physicians.” But as to whether Dr. Kottamasu was St. Mary’s ostensible agent, it could not “be said that decedent had a reasonable belief Dr. Kottamasu was an agent of St. Mary’s.” Affirmed in part, reversed in part, and remanded.

The Uniform Budgeting & Accounting Act; Disbursement of funds appropriated by a county board of commissioners (the Commission) for the county prosecutor’s office; Interpretation of a municipal charter; Use of independent legal counsel; MCL 49.73; MCL 691.1408(3); Equitable estoppel; Contempt for interfering with the prosecutor’s discretion to spend funds appropriated by the Commission; Subject-matter jurisdiction; Bay Cnty Clerk v Bay Cnty Exec (Unpub); MCL 141.438(9); Capacity to sue; Timeliness; MCL 141.438(7); Frank v Linkner; Collateral estoppel

The court held that it had original jurisdiction here under MCL 141.438(7), that plaintiff-county prosecutor had “the capacity to file suit, and that the suit was timely filed.” It further concluded he did not fail to state a claim against defendant-County given the language of the county charter, and collateral estoppel did not bar this action. It also held “that the charter authorizes the Commission to appropriate funds so plaintiff may hire independent legal counsel.” This dispute concerned $42,500 “for the retention of five law firms to provide independent legal counsel to plaintiff.” Plaintiff sought an order directing defendant-County Executive (Hackel) “to disburse specific funds appropriated by” the Commission. After rejecting defendants’ arguments for dismissal, the court further determined that a prior decision involving the parties, while helpful here, did “not operate to collaterally estop defendants.” It then considered the gravamen of the dispute – “whether the charter provisions authorize plaintiff to obtain public funds for independent legal representation.” He contended that it does, while defendants asserted it does not. The court determined that the charter language supported plaintiff’s position. Central to its analysis was § 6.6.5. While it “indicates that an elected county official cannot expend funds on independent counsel, it has an exception if such an expenditure is permitted by law. The Commission appropriated the funds, then issued a resolution that specifically authorized their use for independent legal counsel, and defendants have not cited anything in the charter proscribing that authority or process.” Given that it was “undisputed that the purpose of the appropriation was plaintiff’s retention of independent counsel,” Hackel lacked the “authority to frustrate that purpose. Where the charter permits the Commission to appropriate funds for plaintiff to use independent legal counsel, Hackel should not have impounded the funds absent a showing of economic efficiencies.” The court denied the County’s motion to dismiss, and granted in part plaintiff’s motion for summary disposition as to Count III, in which he sought mandamus as to the five outside legal contracts. It denied the complaint in all other respects and denied plaintiff’s motion for show cause as to civil contempt. It issued a writ of mandamus directing Hackel “to disburse the funds to plaintiff and directing that the parties work together to facilitate the appropriate contracts.”

The court’s jurisdiction; MCR 7.203; “Final order”; Aggrieved party; Effect of a consent or stipulated final order on an appeal from an earlier order; Sandoval v Farmers Ins Exch; Consent judgments & settlement agreements as contracts; Whether negligence claims as to employees’ training & supervision were barred by the exclusive remedy provision of the Dramshop Act   

While it concluded Sandoval was wrongly decided, the court was bound by it to dismiss plaintiff’s appeal in this dramshop/negligence action for lack of jurisdiction. Under Sandoval, “a consent or stipulated final order does not allow for an appeal from an earlier order unless a party reserved the right to appeal the underlying order in the stipulation to the order of dismissal.” Failure to do so results in the court lacking jurisdiction to hear the appeal. Plaintiff sued defendants-P & P and Randall (who she alleged was overserved at P & P’s establishment) asserting negligence claims and dramshop liability. She later agreed to the dismissal of the dramshop claim but continued to pursue her negligence claims. “The trial court dismissed the dramshop claim in light of the parties’ agreement” and further concluded the Dramshop Act’s “exclusive remedy provision precluded an independent cause of action for negligence[.]” On appeal, the court found that “plaintiff was an aggrieved party from the underlying order granting” P & P summary disposition. But the case “was not closed at that time and a final order was not entered because” of the claims against Randall. After he was dismissed, plaintiff was entitled to pursue an appeal of right. The court concluded that under “the plain language of the court rule” she was an aggrieved party given the earlier adverse summary disposition decision and she “appealed from the final order that dismissed the remaining parties and closed the case.” Thus, the court would find it had jurisdiction because she “was an aggrieved party and was entitled to appeal the trial court’s adverse summary disposition ruling related to P & P.” It would find that she “was not required to reserve the right to appeal an earlier order granting P & P’s dispositive motion in the final order of dismissal because P & P was no longer a participant in the litigation and not a party to the final order closing the case. But, the Sandoval majority determined that a final order must contain language reserving the right to appeal the earlier order granting summary disposition, and the failure to do so requires” dismissal for lack of jurisdiction. The court found that Sandoval was wrongly decided because it correlated the court’s “jurisdiction to the inclusion of specific language in a lower court order rather than on the court rules governing jurisdiction and it ignored the application of contract principles.” The court added that it agreed with plaintiff the trial court erred in ruling “her negligence claims addressing the training and supervision of P & P’s employees were barred by the” Dramshop Act’s exclusive remedy provision. Dismissed for lack of jurisdiction.

Notice requirements in MCL 600.6431; “Personal,” “injury,” & “personal injury”; Absolute prosecutorial immunity; Qualified immunity; Intentional torts; Gross negligence; Constitutional claims; 42 USC § 1983; Search & seizure; Procedural due process; Equal protection; Intentional infliction of emotional distress (IIED)

The court concluded that because plaintiffs “gave notice seven months after accrual, the trial court did not err by summarily dismissing their claims against the state of Michigan, the Attorney General’s Office, and DHHS.” The trial court also did not err by holding defendant-Pheney “was entitled to absolute immunity and by granting” him summary disposition on the constitutional and tort claims. Because a genuine issue of material fact did not exist on the issue of whether defendants-Massey and Sampson were entitled to qualified immunity on the defamation and IIED claims, the trial court did not err in dismissing them. Further, they were “entitled to immunity on the gross-negligence claims under MCL 691.1407(2).” Finally, plaintiffs’ constitutional claims failed. Plaintiffs-Hall and Genuine Solutions asserted that Pheney “was acting in an investigative capacity.” The record reflected “that Pheney, who was working as an assistant attorney general in the Health Care Fraud Division of the Attorney General’s office, was the lawyer that was assigned to” plaintiffs’ case. A “special agent investigated the matter, and Pheney’s name appeared on the special agent’s reports.” But there was “no indication from the investigation reports that Pheney determined which witnesses to interview, questioned witnesses personally or determined what questions to ask, observed interviews, or gathered documentary evidence before charges were initiated. The investigation reports only support that the special agent interviewed former interns and the parents of minor clients. Based upon the evidence gathered by the special agent, and information gathered during Hall’s interview, Pheney believed probable cause existed to support pursuing criminal charges against Hall” and filed a felony complaint. Thus, the court held that “even when viewing the evidence in a light most favorable to plaintiffs, the record does not support a finding that the functions of Pheney and the special agent” were the same. Instead, the evidence supported “a finding that Pheney reviewed the evidence collected by the special agent and determined probable cause existed to pursue criminal charges.” Under these facts, the trial court did not err by holding Pheney was entitled to absolute immunity. As to the intentional-tort claims against Massey and Sampson, the court concluded the undisputed evidence established they “reasonably believed that they were acting within the scope of their authority and acted in good faith, i.e., without ‘malicious intent,’ ‘capricious action,’ or ‘corrupt conduct,’ when signing the order of suspension.” The court noted they “were presented with evidence that Hall, who was a provider, had been charged with Medicaid fraud. This was accurate information and was reflected in the order of suspension.” Affirmed.

Criminal contempt for violating a domestic personal protection order (PPO); Standard of proof; “Beyond a reasonable doubt”; “Stalking,” “harassment,” “course of conduct,” & “emotional distress”; Totality of the circumstances; Right to present a defense; Extension of the PPO; MCR 3.707(B)(1); MCR 3.708(H)(5)

Under the circumstances, the court held “that the trial court did not violate respondent’s due process rights or otherwise abuse its discretion by considering the totality of the circumstances and determining that his conduct violated the PPO beyond a reasonable doubt.” Also, he did not show “that the absence of his son’s testimony affected the outcome of the contempt proceedings, or that he was denied his constitutional right to present his defense.” Finally, he did not establish that the trial “court’s sua sponte extension of the PPO constituted plain error that affected his substantial rights[.]” Thus, the court affirmed the trial court’s order finding respondent guilty of criminal contempt for violating a domestic PPO concerning petitioner and extending the duration of the PPO. Respondent argued “that the trial court did not properly apply the ‘beyond a reasonable doubt’ standard in finding him guilty of criminal contempt because it relied on the totality of the circumstances.” The court concluded that “the trial court did not adjudicate [his] guilt under an incorrect view of the law by assessing [his] conduct from a totality-of-the-circumstances perspective.” Further, it did not otherwise err in determining, “beyond a reasonable doubt and based on the totality of the circumstances, that [he] (1) continued to engage in a willful course of conduct involving repeated or continuing harassment of petitioner that would cause a reasonable person emotional distress, and did cause petitioner emotional distress, in violation of the PPO’s prohibition of stalking, or (2) engaged in ‘a continuous pattern of . . . interfering in [petitioner’s] daily life one way or another’ in violation of the PPO’s prohibition of engaging in conduct that impaired petitioner’s environment.” It was proper for the trial “court to consider respondent’s continued pattern of harassing and intimidating conduct toward petitioner, i.e., the totality of the circumstances, to establish that he violated the PPO, particularly where the PPO plainly prohibited such conduct.” The court concluded “that the evidence, viewed as a whole and in context, sufficed to establish beyond a reasonable doubt that respondent violated the PPO.”

Proceeds after tax-foreclosure sales; Rafaeli, LLC v Oakland Cnty; Exclusivity of MCL 211.78t; Whether deadlines under MCL 211.78t(2) & (4) violate due process; Taking claim; Whether deadlines under MCL 211.78t are tolled by application of the death-saving provision (MCL 600.5852(1)); Unjust enrichment; n re Petition of Barry Cnty Treasurer for Foreclosure; In re Petition of Muskegon Cnty Treasurer for Foreclosure; The General Property Tax Act (GPTA)

The court concluded the trial court did not err in “interpreting and applying MCL 211.78t(2) as the sole mechanism under which claimants could recover their surplus proceeds. The statutory scheme established by our Legislature in response to the decision in Rafaeli and followed by petitioner passes constitutional muster. Claimants failed to avail themselves of the statutory protections.” Thus, they failed to enforce their constitutional rights. The court affirmed the trial “court’s orders denying their motions for distribution of proceeds remaining after the tax-foreclosure sales of their properties and the satisfaction of their tax debts and related costs.” Claimants asserted “that the trial court erred when it interpreted and applied MCL 211.78t as the exclusive means of recovering the proceeds that remained from the tax-foreclosure sales of their properties after their tax debts and associated costs were paid.” They contended “that alternate means of recovering proceeds is suggested by: (1) the difference between Rafaeli’s ‘surplus proceeds’ and the statute’s ‘remaining proceeds,’ and (2) MCL 211.78t(12)’s definition of ‘claimants,’ as a subset of foreclosed property owners, when read together with the permissive ‘may’ in MCL 211.78t(1).” Based on these differences, they argued “that, even if MCL 211.78t is the exclusive means for recovering remaining proceeds if they choose to do so, there still exist alternate means for foreclosed property owners to recover surplus proceeds.” But as the court explained in Muskegon Cnty, “to the extent that claimants assert an ambiguity between ‘remaining proceeds’ and ‘surplus proceeds,’ this argument is actually aimed at whether 2020 PA 256 addressed the constitutional infirmity of the prior GPTA; it has ‘no bearing on the separate question of whether our Legislature intended its amendment [to the GPTA] to be the exclusive mechanism for a former property owner to pursue a constitutional claim.’” The court also rejected “claimants’ interpretation of the use of ‘may’ in MCL 211.78t(1) as signaling an alternate means of recovering remaining proceeds. Rather, it acknowledges that there are valid reasons why former property owners might exercise their discretion by not submitting Form 5743.” Like the respondents in Muskegon Cnty, claimants here erred “by assuming ‘that the alternative to pursuing a claim under MCL 211.78t was to pursue a claim by some other means—rather, their alternative was not to claim an interest in the foreclosed property in the first place.’”