The No-Fault Act (NFA); Attorney fees under MCL 500.3148(1); Ross v Auto Club Group; Unreasonable refusal to pay claims; Moore v Secura Ins; Waiver; Traumatic brain injury (TBI)

Holding that the trial court did not clearly err in concluding defendant-insurer unreasonably refused to pay plaintiffs’ claims, the court affirmed its attorney fee award for plaintiffs under the NFA. Plaintiff-JB was injured after being hit by a truck in 7/15. JB was covered by a no-fault policy with defendant, which paid JB’s medical bills for a time. After a period with no activity on JB’s file, defendant’s claims adjuster closed it. In 7/18, JB was admitted to a rehabilitation facility that treats TBIs (plaintiff-Moriah, Inc., doing business as Eisenhower Center). Defendant refused to pay for this care. A jury returned a verdict for plaintiffs. On appeal, the court first noted that, contrary to defendant’s representations, “plaintiffs presented evidence that JB was indeed diagnosed with a TBI following the 2015 accident, and that defendant had a record in its possession that reflected this diagnosis.” Relying on a note written by a doctor (M) who was treating JB in 7/18, defendant contended there was “a legitimate factual uncertainty about whether JB’s treatment for a TBI at Eisenhower in 2018 was related to JB’s 2015 accident or” a 2018 accident. But the statement on which defendant relied was “in the section of the treatment note titled, ‘History of Present Illness.’” The court found it was “obvious from this context that [M] was not opining that JB had suffered a TBI in the [4/18] accident but was merely recording background information that was largely irrelevant to the reason that [M] was treating JB. Even assuming that this was not patently obvious from a cursory review of [M’s] treatment note, no one associated with defendant ever followed up with” M to clarify what the note meant, despite its heavy reliance on the note. Further, defendant ignored “how sparsely it investigated JB’s injury before concluding that JB’s treatment at Eisenhower was related to his 2018 accident.”

Embezzlement by agent or trustee; MCL 750.174(5)(a); Jury instruction on a lesser included offense; Waiver; Discovery violation; MCR 6.201(J); Late disclosure; Prosecutorial error; Civic-duty argument; Ineffective assistance of counsel

The court held that defendant waived his jury-instruction claim, that the trial court’s remedy for a discovery violation was adequate, and that he failed to establish prosecutorial error or ineffective assistance. Defendant was convicted of embezzling $47,214.85 in state motor-pool costs by using vehicles for unauthorized purposes while employed by a state agency. On appeal, the court first held that his claim about a lesser included embezzlement instruction was waived because, after the trial court read the instructions, counsel said, “I’m satisfied, Judge,” and “a waiver extinguishes the right” to appellate relief. The court next held that delaying witness-R’s testimony was an adequate remedy for late disclosure of interview notes. It reasoned the notes were “not intentionally suppressed,” defendant already had notice of the interview contents through R’s preliminary exam testimony, and he failed to identify how the notes would have changed trial strategy. The record instead showed counsel “effectively cross-examined” R with the notes and used them to highlight memory and disclosure issues. The court also rejected the claim that the prosecutor made an improper civic-duty argument by saying taxpayers bore the loss. Because the prosecution had to prove the property belonged to the state, the comment was “highlighting an element of the charged offense” and also responded to the defense theory that the state suffered no real loss. Finally, the court held that counsel was not ineffective for failing to request a lesser offense instruction because that would have “undermined his own trial strategy” that defendant committed no embezzlement, and no reasonable view of the evidence reduced the amount below $20,000. Affirmed.

Possession with intent to deliver fentanyl; Possession with intent to deliver cocaine; MCL 333.7401(2)(a)(ii); Search warrant; Standing; Probable cause; Other acts evidence; MRE 404(b); Prosecutorial error; Drug-profile evidence; Narcotics expert; MRE 702; Ineffective assistance of counsel; Sentencing; Blanket sentencing policy; Individualized sentencing; People v Chapa; People v Pennington

The court held that defendant’s search-warrant challenge failed, and the challenged other-acts and expert testimony did not require reversal, but resentencing was required because the trial court relied on a blanket no-departure policy. Defendant was convicted of possessing with intent to deliver large quantities of fentanyl and cocaine after officers found drugs in a home associated with him. The trial court imposed within-guidelines sentences after stating, “I don’t sentence below the guidelines.” On appeal, the court first held that he lacked standing to challenge the home search because, at the suppression hearing, he denied the house, clothing, or items were his, and the limited evidence showed he was “merely a visitor,” not someone with a legitimate expectation of privacy. The court further held that, even if standing existed, the warrant was supported by probable cause because he left the residence immediately before cocaine was found near his feet, had a history of narcotics trafficking, and the affidavit created a “fair probability that evidence of narcotics trafficking would be discovered within the residence.” The court next held that prior drug arrests were admissible under MRE 404(b) because knowledge, possession, and intent were contested, and the prior acts involved concealment, drugs, and small-denomination cash, supporting an inference of the “same recurring pattern of drug-trafficking activity.” It also rejected the prosecutorial-error and ineffective-assistance claims because the challenged testimony was nonresponsive or admissible contextual evidence, “‘unresponsive answers from witnesses are generally not prosecutorial error,’” and futile objections were not required. The court found no error in qualifying the detective as a narcotics expert because “‘drug-related law enforcement is a recognized area of expertise,’” and his testimony explained the significance of drug quantities, cash, and scales rather than inviting conviction from a profile. But the court held that resentencing was required because the trial court’s statement that it did not sentence below the guidelines showed it “declined to consider” a lower sentence under a “blanket policy” instead of individualized assessment. Affirmed in part, vacated in part, and remanded for resentencing.

Michigan Election Law (MEL); Michigan Campaign Finance Act (MCFA); Candidate affidavit of identity; MCL 168.558; Mich Admin Code, R 168.2; Late filing fees; Waiver for good cause; MCL 169.215(1)(f); Retroactivity; Mootness; Declaratory judgment; Complaint amendment; Laches; Waiver; Candidate name on ballot; MCL 168.560b

The court held that plaintiff’s claims related to the 2024 election were moot, complaint amendment would have been futile, and defendants were entitled to dismissal of her ballot-access and ballot-name claims. Plaintiff sued county and city election officials after she was disqualified from the 2024 general-election ballot because she owed late filing fees and falsely stated in her affidavit of identity that all fees and fines had been paid. The trial court granted defendants summary disposition. On appeal, the court first held that the 2024-election claims were moot because the election had passed and relief would have “no practical effect.” Although the trial court should have considered amendment, the court held that amendment was futile because plaintiff merely continued to assert that she was entitled to waiver of the same fees. The court next held that Rule 168.2 was not improperly applied retroactively because candidates already had to file truthful affidavits, and the rule imposed new record-checking duties on election officials, not “new legal obligations for candidates.” The court also held that plaintiff failed to establish good cause for waiver because her medical letter did not show inability to file the required paperwork, her treasurer’s death did not excuse years of filings, and a 2017 password issue did not justify waiving fees for other campaigns. Finally, the court held that the claim against the city clerk failed because MCL 168.560b governs how a name appears on the ballot, and plaintiff did not dispute that her name was correct on the 2021 ballot. Affirmed.

Child custody; Motion to modify custody & parenting time; Due process; Proper cause or change in circumstances; Vodvarka v Grasmeyer; Determining whether an evidentiary hearing is necessary; MCR 3.210(C)(8); Motion for reconsideration; Motion to suppress & strike a social worker’s statements from the record; Social worker-client privilege; MCL 333.18513(2); Applicability of MCL 600.2157a; MCL 330.1750

The court held that the trial court did not abuse its discretion or commit clear legal error in granting plaintiff-mother’s motion to suppress a social worker’s testimony and strike the pleadings referencing her anticipated testimony. It also did not err or abuse its discretion in denying defendant-father’s motion to modify custody and parenting time without an evidentiary hearing because he did not meet the threshold requirement under Vodvarka. There was no due process violation. The social worker (S) was assigned by the trial court to provide family counseling as part of an agreement to resolve the parties’ dispute out of court. While the communications with S were protected by MCL 333.18513(2), defendant argued “the trial court was authorized to pierce the privilege under MCL 600.2157a or MCL 330.1750(3), or both[.]” The court concluded MCL 600.2157a(1)(a) did not apply “because the communications at issue were not made under” the circumstances set forth in the statute. As to MCL 330.1750, none of the exceptions in MCL 330.1750(2)(a) to (f) were implicated, and “the mere fact that the trial court directed the parties to attend counseling does not constitute a waiver of the presumptive social worker-client privilege.” For the trial court to be able to consider S’s “statements, records, and testimony, there must be some statute or caselaw authorizing [it] to do so notwithstanding the privilege. Defendant” did not cite such authorization, and the court was unaware of any that would apply here. And without S’s “statements and testimony, defendant’s motion created no contested factual issue to justify holding an evidentiary hearing. Due process did not require an evidentiary hearing on” his motion under the circumstances. The court noted that he may in future file another motion and “may then receive an evidentiary hearing in the event that his motion is sufficient to require one.” Affirmed.

The No-Fault Act (NFA); Attorney fees under MCL 500.3148(1); Ross v Auto Club Group; Unreasonable refusal to pay claims; Moore v Secura Ins; Waiver; Traumatic brain injury (TBI)

Holding that the trial court did not clearly err in concluding defendant-insurer unreasonably refused to pay plaintiffs’ claims, the court affirmed its attorney fee award for plaintiffs under the NFA. Plaintiff-JB was injured after being hit by a truck in 7/15. JB was covered by a no-fault policy with defendant, which paid JB’s medical bills for a time. After a period with no activity on JB’s file, defendant’s claims adjuster closed it. In 7/18, JB was admitted to a rehabilitation facility that treats TBIs (plaintiff-Moriah, Inc., doing business as Eisenhower Center). Defendant refused to pay for this care. A jury returned a verdict for plaintiffs. On appeal, the court first noted that, contrary to defendant’s representations, “plaintiffs presented evidence that JB was indeed diagnosed with a TBI following the 2015 accident, and that defendant had a record in its possession that reflected this diagnosis.” Relying on a note written by a doctor (M) who was treating JB in 7/18, defendant contended there was “a legitimate factual uncertainty about whether JB’s treatment for a TBI at Eisenhower in 2018 was related to JB’s 2015 accident or” a 2018 accident. But the statement on which defendant relied was “in the section of the treatment note titled, ‘History of Present Illness.’” The court found it was “obvious from this context that [M] was not opining that JB had suffered a TBI in the [4/18] accident but was merely recording background information that was largely irrelevant to the reason that [M] was treating JB. Even assuming that this was not patently obvious from a cursory review of [M’s] treatment note, no one associated with defendant ever followed up with” M to clarify what the note meant, despite its heavy reliance on the note. Further, defendant ignored “how sparsely it investigated JB’s injury before concluding that JB’s treatment at Eisenhower was related to his 2018 accident.”

Termination under § 19b(3)(b)(i); Acceptance of a no-contest plea; Compliance with MCR 3.971’s requirements; Plain error review; In re Pederson; Reasonable reunification efforts; Child’s best interests; Relative placement; In re Mota; Case service plan (CSP)

The court held that respondent-father failed to establish plain error related to the trial court’s acceptance of his no-contest plea and compliance with MCR 3.971’s requirements. It was also not convinced that the trial court was mistaken in finding that the DHHS made reasonable reunification efforts, and it held that termination was supported under § (b)(i). Finally, it concluded that the trial court’s findings as to the child’s best interests were sufficient. Thus, it affirmed the termination order. As to the adjudication, it held that the trial court complied with the requirement that the petition be read in open court. There was “no dispute that respondent and his counsel were present, that the May hearing occurred prior to the hearing where [he] entered his plea, and that the trial court read aloud the contents of the petition.” His argument on this point was factually incorrect. He next argued that, at the 9/1/23 “hearing, the trial court failed to explain that the contents of the petition that respondent would be pleading no-contest to could be used in subsequent termination proceedings.” But the record was “replete with references by the [trial] court about how respondent’s plea would preclude him from contesting the truthfulness of the petition allegations, and from petitioner having to prove any of those allegations. With counsel by his side, and having had many on and off the record discussions about the potential for a plea, respondent expressed that he understood these ramifications, and still wanted to plead no contest.” The court determined that while “one somewhat ambiguous statement” to the effect that the “plea would not be used against him was arguably not accurate, one comment did not render invalid the otherwise lengthy and thorough colloquy, particularly when respondent was very engaged in the discussions about whether, and how to enter a plea, and his counsel was also actively engaged in the hearing.” The court also rejected his argument “that he was not advised that he would have to comply with a CSP, and if he failed to do so, termination” could occur. Thus, it concluded the trial “court only misspoke on one occasion, but otherwise did not commit the errors” he asserted it did, and the “error in not clearly articulating that the plea could be used against him later in the proceedings did not affect” his substantial rights.