Commercial lease dispute; The doctrine of impossibility/impracticability; Mutual mistake of fact; Assumption of risk; Action to vacate, modify, or correct an arbitration award; MCL 600.5081(2)

The court rejected plaintiffs’ argument that the commercial lease at issue was unenforceable due to impossibility or impracticability, and held that the arbitrator did not legally err in concluding the mutual mistake of fact defense did not apply. The court found that he “did not exceed his authority or make an error of law discernible on the face of the arbitration award.” Thus, it affirmed the trial court’s denial of plaintiffs-appellants’ motion to vacate the award and grant of defendant’s motion to confirm it. Plaintiffs-tenants entered into the lease intending to use the property to sell tires. After they took possession, the city issued corrections orders, and the tenants abandoned the premises. “The chief problem with the property was that it lacked an automatic sprinkler system, which was required to store tires on” it. The arbitrator later awarded defendant $411,131.50 plus interest. On appeal, appellants argued “the arbitration award must be vacated because the sprinkler system requirement rendered the tenants’ performance of their obligations under the lease impracticable, if not impossible.” But the court concluded they “failed to establish that the arbitrator exceeded his authority or made an error of law. [He] determined that the lease unambiguously required the tenants ‘at [their] own expense’ to comply with all laws and regulations necessary to operate their new tire sales business. He recognized that [it] did not require defendant to perform any work on the premises and instead placed the burden of compliance on the tenants.” He further recognized that they “accepted the property ‘as is,’ without a sprinkler system in place. As the trial court recognized, the tenants, rather than defendant, were in the better position to know what was legally required to operate their business.” And while defendant’s owner was willing to assist them “by meeting with city officials, the tenants did not show up to the meeting.” As to the mistake of fact defense, that they “were unable to use the premises as desired until a fire suppression system was installed did not affect ‘the whole substance of the agreement.’ Instead, [they] were required to make the premises suitable for their business, if necessary, as stated in the lease.” Finally, to the extent the arbitrator allocated any risk, this involved his “mental processes and factual determinations, which” were not reviewable.

Commercial lease dispute; The doctrine of impossibility/impracticability; Mutual mistake of fact; Assumption of risk; Action to vacate, modify, or correct an arbitration award; MCL 600.5081(2)

The court rejected plaintiffs’ argument that the commercial lease at issue was unenforceable due to impossibility or impracticability, and held that the arbitrator did not legally err in concluding the mutual mistake of fact defense did not apply. The court found that he “did not exceed his authority or make an error of law discernible on the face of the arbitration award.” Thus, it affirmed the trial court’s denial of plaintiffs-appellants’ motion to vacate the award and grant of defendant’s motion to confirm it. Plaintiffs-tenants entered into the lease intending to use the property to sell tires. After they took possession, the city issued corrections orders, and the tenants abandoned the premises. “The chief problem with the property was that it lacked an automatic sprinkler system, which was required to store tires on” it. The arbitrator later awarded defendant $411,131.50 plus interest. On appeal, appellants argued “the arbitration award must be vacated because the sprinkler system requirement rendered the tenants’ performance of their obligations under the lease impracticable, if not impossible.” But the court concluded they “failed to establish that the arbitrator exceeded his authority or made an error of law. [He] determined that the lease unambiguously required the tenants ‘at [their] own expense’ to comply with all laws and regulations necessary to operate their new tire sales business. He recognized that [it] did not require defendant to perform any work on the premises and instead placed the burden of compliance on the tenants.” He further recognized that they “accepted the property ‘as is,’ without a sprinkler system in place. As the trial court recognized, the tenants, rather than defendant, were in the better position to know what was legally required to operate their business.” And while defendant’s owner was willing to assist them “by meeting with city officials, the tenants did not show up to the meeting.” As to the mistake of fact defense, that they “were unable to use the premises as desired until a fire suppression system was installed did not affect ‘the whole substance of the agreement.’ Instead, [they] were required to make the premises suitable for their business, if necessary, as stated in the lease.” Finally, to the extent the arbitrator allocated any risk, this involved his “mental processes and factual determinations, which” were not reviewable.

Exclusion of the audio portion of an officer’s body-camera footage; Hearsay; Right to a meaningful opportunity to present a defense; Prejudice; Right to a speedy trial; Barker v Wingo; People v Williams; People v Waclawski

The court held that the trial court’s admission of an officer’s body-camera “video but not the unredacted audio fell within the range of principled outcomes[,]” and that defendant was not denied his right to a meaningful opportunity to present a defense. Further, the Barker factors did not establish a violation of his constitutional right to a speedy trial. Thus, the court affirmed his domestic violence conviction. He first argued that he was denied a fair trial by the trial court’s decision to exclude the audio portion of the body-camera footage. “The trial court excluded the audio of the three-minute body-camera excerpt on the ground that it was hearsay and that no exception applied.” Defense counsel “stated that he offered the recording solely to show the complainant’s mental and emotional condition while she spoke with the responding officers.” The court noted that he “asked to play the entire three-minute segment, acknowledged that it contained material requiring redaction that he was unable to edit, and did not identify which of the complainant’s words were needed to place her demeanor in context. The visual and audio components of a recording may be evaluated separately for admissibility,” and the trial court here “accommodated counsel’s stated purpose by permitting the jury to view the footage without sound. Given the proffer before it,” it did not abuse its discretion in doing so. Further, the audio “was not critical to defendant’s theory. [He] was able to present that theory through other means. The jury watched the three-minute video and could independently observe the complainant’s facial expressions and body language.” The court concluded that because “the jury heard the substance of [his] challenge to the complainant’s initial account and was able to observe her demeanor for itself, exclusion of the audio did not prevent defendant from presenting his theory that the encounter was less severe than [her] trial testimony suggested.” The court added that, “even if the trial court erred,” he did not show that the audio’s exclusion affected the outcome. The jury acquitted him of three of the four charges he faced. As to his speedy trial claim, while the third Barker factor slightly favored him, the other three weighed against him.

Ineffective assistance of counsel; Effect of a silent record; Presumption that counsel rendered effective assistance; Strickland v Washington; Prejudice; People v Douglas; Sufficiency of the evidence for an aggravated domestic violence conviction; MCL 750.81a(2); People v Cameron; People v Corbiere; Voluntariness of jury trial waiver; People v Lafey; People v Cook; MCR 6.402(B)

The court rejected defendant’s ineffective assistance of counsel claim, and held that there was sufficient evidence to support his aggravated domestic violence conviction. It also concluded that he did not overcome the presumption that his jury trial waiver was knowing and voluntary. He first contended that his attorney (M) was ineffective for “failing to pursue a plea agreement and by inadequately advising him about the consequences of a felony conviction.” But the court found that he failed to show deficient performance or prejudice. The record was silent as to the substance of M’s “discussions with the prosecutor. The absence of a later plea offer does not establish that counsel failed to negotiate, particularly where [M] and the prosecutor jointly indicated that they needed more time to discuss the case after [M] was appointed.” The record also did not provide any support for the assertion that M “inadequately advised him about the consequences of a felony conviction.” The court noted that a silent record cannot overcome the strong presumption that counsel rendered effective assistance. As to prejudice, he did not show “a reasonable probability that he would have accepted a renewed plea offer or that the prosecutor would have renewed the earlier offer.” He next challenged the sufficiency of the evidence for his conviction. He admitted that he and the victim (YZ) “argued, that he stood from the couch while telling YZ to get away from him, and that he grabbed both of her arms above the elbows.” While he asserted that he only grabbed her because she seemed faint, the “trial court was not required to accept defendant’s explanation” and other evidence reinforced the inference that the contact “was not merely an attempt to steady her.” The court concluded that “a rational fact-finder could infer that defendant intentionally grabbed YZ in a harmful or offensive manner during the argument and that his conduct caused her fractured humerus.” Finally, as to his jury waiver, the record showed “that defendant understood his choice and voluntarily selected a bench trial.” Affirmed.

Motion to reinstate an AWIM charge after the district court declined to bind defendant over on it; People v Yost; Probable cause; People v Plunkett; People v Schurr; Intent to kill; People v Brown; People v Ericksen

Holding that there was probable cause supporting the AWIM charge, the court concluded that the district court abused its discretion in refusing to bind defendant over for trial on the charge and the circuit court erred in denying the prosecution’s motion to reinstate it. The prosecution presented “evidence that after arguing for several minutes with” the victim (A), “defendant repeatedly stabbed and swung a knife toward [A’s] head and face, and during the assault, defendant told [A] that he would cut his face. Although [he] made no direct statement that he intended to kill [A], one could infer such an intent from the relentless assault and the extreme force that defendant used when swinging the blade. [A] testified that he was stabbed in the hand because he used his hands to shield his face, and the wounds were serious enough to require surgery to repair the muscles, tendons, and nerves in the hand. If [A’s] defensive maneuvers had been unsuccessful, then he would have suffered those injuries to his head and likely could have died. Defendant’s argument that his actions demonstrated only an intent to cause great bodily harm is a factual question[.]” The court noted the “district court stated that the prosecution had to show the intent to kill ‘from what happened or show it from, you know, the words of the defendant . . . and I don’t have that here.’ But even if the district court personally believed that defendant did not intend to kill [A], the conflicting evidence from the vicious nature of the assault and the extent of [A’s] injuries created probable cause to support an AWIM charge.” The court vacated the circuit court’s order denying the prosecution’s motion to reinstate the charge, and remanded.

Sentencing; Proportionality challenge to a within-guidelines sentence; People v Posey; Presumption of reasonableness; “Unusual” circumstances; People v Ventour

Holding that the trial court did not abuse its discretion in imposing defendant’s within-guidelines sentence, the court affirmed. He was convicted of kidnapping, extortion, unlawful imprisonment, AWIGBH, FIP, felonious assault, and multiple felony-firearm counts. He was sentenced as a fourth-offense habitual offender. The only sentence he challenged on appeal was his 38 to 60-year sentence for the kidnapping conviction. “A 38-year (456-month) minimum sentence is within the statutory guidelines of 171 to 570 months.” Thus, he had to “overcome the presumption that the sentence was reasonable.” He did not present “any unusual circumstances that would render the sentence disproportionate. The crime was particularly severe—defendant kidnapped a child, took his phone, and then beat him and held him at gunpoint. The fact that” the victim (KB) “had slept with defendant’s daughter and allegedly stolen his property the night before the crime explains defendant’s motive, but it does not justify or mitigate the brutality of the offense. As the trial court noted at sentencing, ‘this was a completely unnecessary crime.’” Defendant contended “the trial court excessively focused on punishment as opposed to other sentencing factors.” But the record belied “this argument—the trial court clearly considered the seriousness of the offense, noting the significant size and age difference between defendant and KB, and it found that defendant was ‘not a changed man’ after his three previous felonies, that he had expressed ‘zero remorse’ for the crime, and that he was ‘a great danger to society.’” The court noted that “the trial court was not required to consider all the possible sentencing factors, nor was it required to ‘expressly explain why a within-guidelines sentence is reasonable and proportionate.’”

The Whistleblowers’ Protection Act (WPA); MCL 15.362; Protected activity; Report of a violation or suspected violation of a law, regulation, or rule; Stefanski v Saginaw Cnty 911 Commc’ns Ctr Auth; About to report; Rivera v SVRC Indus, Inc; National Highway Traffic Safety Administration (NHTSA)

Holding that “generally discussing suspicious behavior with an attorney is not a protected activity,” the court concluded that plaintiff failed to establish a prima facie WPA retaliation claim. Thus, it affirmed summary disposition for defendant-former employer. Defendant terminated plaintiff’s employment after he informed an attorney (nonparty-S) “about his concerns regarding the safety of defendant’s new product.” The court found that, even if S qualified “as a public body, plaintiff’s WPA claim fails as a matter of law because he did not report to [S] a violation or suspected violation of a law, regulation, or rule. Plaintiff had significant safety concerns about defendant’s approach to the development of [the product], but he did not make a charge of illegality against defendant when he spoke with” S. The evidence suggested that he “was unsure whether defendant’s conduct was illegal—he went to [S] for general ‘guidance[.]’” Further, he did not identify “the specific law, regulation, or rule that he believes defendant to have violated. Even if plaintiff believed that defendant’s conduct was illegal and made that conduct known to [S], such a general assertion of illegality is not protected activity under the WPA.” In addition, there was no evidence that he “was about to report a violation.” He did not testify “that he told defendant that he would report his concerns to NHTSA, and” his supervisor stated that they “never discussed filing such a report. Plaintiff’s conversations with [S] also did not establish that he was about to report. They discussed the benefits and risks of reporting, and [S] suggested that they wait to report until defendant moved forward without fixing the defect and failed to self-report. Mere ‘inquiries about potential consequences [do] not indicate an affirmative intent to actually report,’ even if pertinent information is communicated to a public body. And simply wanting or hoping that someone else will report is not the same as being ‘about to report.’”

Medical malpractice; Motion for new trial; Great weight of the evidence; MCR 2.611(A)(1)(e); Conflicting expert testimony; Witness credibility

The court held that the trial court did not abuse its discretion by denying plaintiff’s motion for a new trial because competent evidence supported the jury’s no-cause verdict in his medical-malpractice action. Plaintiff underwent a triple arthrodesis performed by defendant-podiatrist and later sued, alleging the surgery was premature and negligently performed. Plaintiff’s expert testified that defendant improperly placed hardware in his foot, causing a nonunion and continuing pain. Defendants presented contrary expert testimony that the surgery was successful. On appeal, plaintiff argued that his expert’s testimony concerning placement of the screws was unrebutted and the verdict was against the great weight of the evidence. The court disagreed, noting that defendants’ expert “directly discussed the screws and opined that a joint with two screws in it cannot move, even with a partial union.” Defendant also testified that he had “complied with the standard of care with the treatment options, with the care, with the surgery, with the result of the surgery, everything that I could control did well.” Further, defendants’ expert relied on postoperative imaging showing improved alignment and structure and opined that the surgery was successful. Plaintiff’s expert also acknowledged that hardware removal was common even where fusion occurred and “never explained the reason why” plaintiff’s other reported pain could have resulted from the arthrodesis. His testimony presented additional credibility concerns because he initially relied on an x-ray of the wrong foot, had not reviewed certain medical records, and never examined plaintiff. Thus, although “the experts disagreed on the ultimate issue of breach, the jury heard all the testimony and decided to credit defendants’ experts.” Affirmed.

Lawsuit initiated by a pro se litigant in violation of 28 USC § 1654; Dismissal; Whether a complaint filed in violation of the statute is curable by later retaining legal counsel or is a “legal nullity”; Jones ex rel Jones v Correctional Med Servs, Inc (8th Cir); Iriele v Griffin (11th Cir); In re IFC Credit Corp (7th Cir); Motion for reconsideration; Introduction of evidence that could have been presented earlier

In an issue of first impression for the court, it held that while “§ 1654 prohibits pro se litigants from proceeding on behalf of third parties,” filing a lawsuit in violation of the statute does not “render the complaint a nullity.” Thus, it concluded that the district court erred in granting defendants’ motion to dismiss on this basis. The suit was filed by the father (Isham) of plaintiff-estate’s decedent, on behalf of the estate, without the assistance of counsel. “The district court determined that Isham could not represent the estate pro se and ordered Isham to retain counsel. [He] complied with that order, but the district court dismissed the estate’s complaint nonetheless, concluding that the lawsuit’s pro se origins rendered the complaint a nullity from the outset.” On appeal, the court first rejected plaintiff’s argument concerning the district court’s denial of its motion for reconsideration, which related to evidence purportedly establishing Isham’s ability to proceed pro se. “Reconsideration is not a vehicle to introduce evidence that could have been presented beforehand[,]” and the new documents presented with the motion did not contain “late-breaking information that couldn’t have been offered the first time around.” The court then turned to the question of what “happens when a pro se litigant initiates a lawsuit in violation of § 1654? Is the defect curable by later retaining counsel, as the estate sees it? Or is any complaint filed contrary to this statutory requirement a ‘legal nullity,’” destined for dismissal? In Jones, the Eighth Circuit ruled that such a complaint was “a ‘nullity’ to which no ‘subsequent pleadings’ could ‘relate back.’” But in Iriele, “the Eleventh Circuit rejected the Eighth Circuit’s ‘nullity rule’ under nearly identical facts.” And the Seventh Circuit took a similar approach in IFC Credit, “a case involving pro se representation of a corporation, permitting but not requiring ‘dismissal’ as a ‘discretionary’ ‘sanction.’” The court joined them in rejecting “the Eighth Circuit’s nullity rule.” It noted that its cases had “not treated a complaint filed in violation of § 1654 as being subject to mandatory dismissal.” And it saw “no sound basis to depart from this practice in favor of the Eighth Circuit’s mandatory dismissal rule.” Here, when Isham retained counsel, he “brought the estate’s lawsuit into compliance with § 1654, and the statute no longer provided a basis for dismissal.” Reversed and remanded.

Medical malpractice; Motion for new trial; Great weight of the evidence; MCR 2.611(A)(1)(e); Conflicting expert testimony; Witness credibility

The court held that the trial court did not abuse its discretion by denying plaintiff’s motion for a new trial because competent evidence supported the jury’s no-cause verdict in his medical-malpractice action. Plaintiff underwent a triple arthrodesis performed by defendant-podiatrist and later sued, alleging the surgery was premature and negligently performed. Plaintiff’s expert testified that defendant improperly placed hardware in his foot, causing a nonunion and continuing pain. Defendants presented contrary expert testimony that the surgery was successful. On appeal, plaintiff argued that his expert’s testimony concerning placement of the screws was unrebutted and the verdict was against the great weight of the evidence. The court disagreed, noting that defendants’ expert “directly discussed the screws and opined that a joint with two screws in it cannot move, even with a partial union.” Defendant also testified that he had “complied with the standard of care with the treatment options, with the care, with the surgery, with the result of the surgery, everything that I could control did well.” Further, defendants’ expert relied on postoperative imaging showing improved alignment and structure and opined that the surgery was successful. Plaintiff’s expert also acknowledged that hardware removal was common even where fusion occurred and “never explained the reason why” plaintiff’s other reported pain could have resulted from the arthrodesis. His testimony presented additional credibility concerns because he initially relied on an x-ray of the wrong foot, had not reviewed certain medical records, and never examined plaintiff. Thus, although “the experts disagreed on the ultimate issue of breach, the jury heard all the testimony and decided to credit defendants’ experts.” Affirmed.

Tenant trip & fall; Failure to maintain the sidewalk in a condition that rendered it fit for its intended use; MCL 554.139(1)(a); Allison v AEW Capital Mgmt, LLP; Common-law negligence; Height discontinuity; Reliance on statutes addressing municipal liability; MCL 691.1402a(3)(a); Effect of failing to respond to a summary disposition motion; MCR 2.116(G)(4)

The court held that the trial court correctly ruled that the sidewalk at issue was not unfit for the use the parties intended, but that it erred in granting defendants summary disposition on plaintiff-Williams’s common-law negligence claims. He filed the action after he tripped and “fell on three occasions while walking from his vehicle to his manufactured home located on a lot he leased from” defendant-Creekside Huron Shores (Huron Shores). Defendant-Creekside Communities (Creekside) maintained the property. As to Williams’s claim under MCL 554.139(1)(a), the “parties ostensibly intended the sidewalk at issue to be used for walking and providing access to the walkway located on Williams’s lot. The fact that the sidewalk had sunk to a degree, creating a height differential between the sidewalk and walkway, did not render it unfit for this use. As the trial court recognized, Williams had used the sidewalk without incident for more than one year before he fell.” As to his common-law negligence claims, the court concluded that a factual dispute existed as to “the height discontinuity, rendering summary disposition inappropriate.” Further, the trial court erred in “determining that defendants were entitled to summary disposition if the height differential was less than two inches.” While Williams failed to respond to defendants’ motion, the trial court (and the court) still had to “‘review the legal arguments and the evidence properly submitted in support to determine if they are sufficient in themselves to show entitlement to judgment as a matter of law.’” The court held that MCL 691.1402a(3)(a)’s “rebuttable presumption of reasonable repair for municipal vertical discontinuities less than two inches . . . did not entitle defendants to judgment as a matter of law. Moreover, it cannot be said that there exists no genuine issue of material fact that a private landowner should not be held to a higher standard than a municipality.” In addition, the statute relates to premises liability. “Williams did not allege a premises-liability claim against Creekside and could not have done so given that [it] did not have possession and control over the property. Defendants’ motion” did not assert an applicable defense to the claim against Creekside. Affirmed in part, reversed in part, and remanded.

Children’s best interests; MCL 712A.19b(5); In re Olive/Metts; Effect of incomplete transcripts; People v Craig; Prejudice; Waiver of claim as to a no-contest plea to statutory grounds for termination

The court held that respondent-father failed to show that he was prejudiced by incomplete transcripts of his termination proceeding, and that the trial court did not clearly err in finding that terminating both respondents’ parental rights was in the children’s best interests. As an initial matter, the court concluded that respondent-mother waived her claim that her no-contest plea to statutory grounds for termination was not knowing, voluntary, and intelligent. Among other things, her attorney indicated at the plea proceeding that he was satisfied with her waiver of rights. As to the father’s incomplete transcripts argument, his substantive claim on appeal was that terminating his parental rights was not in his child’s (ELC) best interests, and the record was sufficient to allow the court to review that claim. Further, both he and his trial counsel were present at the “hearing where the overwhelming majority of the transcription problems occurred” but he did not “identify anything that occurred at that hearing that is relevant to his substantive argument on appeal[.]” As to the children’s best interests, the “mother repeatedly tested positive for cocaine during these proceedings. She failed to provide proof of steady employment or housing. Moreover, ELC told a caseworker that mother gave him marijuana, although [she] claimed that ELC took it from her car.” The court also held that the “children’s need for permanency, stability, and finality weighed in favor of termination. [They] had varying degrees of special needs that either developed or worsened during these proceedings,” which continued for over five years without the mother making “any significant progress.” As to the father, while he “believed he had a bond with ELC, he knew very little about ELC or his challenges, he had little involvement in ELC’s life, he did not visit ELC for long periods of time during these proceedings, and ELC” told the caseworker “that he did not want to continue visits with father.” Further, the evidence showed that the father failed to “comply with his case service plan, as he admitted as much.” The court affirmed the termination orders.