Quiet title; MCL 600.2932(1); Whether the parties’ agreement was a land contract; Differences between a land contract & a contract for the sale of land; Zurcher v Herveat; Conversion; Check payable to multiple people conjunctively; Application of insurance proceeds

The court held that the parties’ agreement was a land contract and thus, the trial court did not err in quieting title to the property at issue in defendants’ favor. It also held that summary disposition was properly granted to defendants on plaintiff’s conversion claim. The case concerned the sale of an apartment complex. The parties sued each other to quiet title after the “complex burned down and an insurance company issued a check payable to the parties for $210,000.” Plaintiff argued that a question of fact existed as to whether the parties entered into a land contract. After reviewing the differences between a land contract and a contract for the sale of land, the court concluded that to constitute a land contract, an agreement “must, among other things, (1) list the installment payments’ amounts and dates, and (2) provide an interest rate.” It determined that the Contract for Deed here contained all the “requirements for a land contract. First, [it] provided for installment payments and listed the amounts and times for those payments. Although [it] may have only called for two payments, ‘paying in installments refers to any transaction where full payment does not occur simultaneously with the transfer’ of the purchase.” As the second payment was to occur several months after the first one, it was “an installment payment under Zurcher. Second, the Contract for Deed provided for an interest rate of 0%. If the parties had omitted the interest provision altogether, then their agreement might well have been missing an essential term to be a land contract. The fact that the contract explicitly stipulated and provided for” a 0% interest rate suggested they “intended to include all essential terms to form a land contract, even if one of those terms had no practical effect. It is also notable that the Contract for Deed did not involve a promissory note or mortgage between plaintiff and defendants.” As the essential terms that supported finding a land contract were unambiguous in the agreement, the issue was decided as a matter of law. As to the conversion claim related to the check, plaintiff “was entitled to the purchase price it negotiated with” defendant-Westcombe. It “accepted late payments, and with the release of $10,500 from escrow, [it] has received the full amount it bargained for. To receive any additional proceeds from the insurance check would result in plaintiff’s unjust enrichment.” Affirmed.

Motion for relief from judgment; MCR 6.508(D); Sentencing; Scoring of OV 5; MCL 777.35(1)(a); People v Bailey

Holding that 15 points should not have been scored for OV 5 based on the record, the court concluded defendant showed good cause and actual prejudice entitling him to resentencing under MCR 6.508(D)(3). Thus, it found that the trial court abused its discretion in denying his motion for relief from judgment. He was convicted of second-degree murder, CCW, marijuana possession, and felony-firearm. He was sentenced to concurrent terms of 300 to 650 months for murder, 2 to 5 years for CCW, and 1 day for the marijuana conviction, with a 2-year felony-firearm sentence to run consecutive to the murder sentence. Defendant argued here “that the trial court incorrectly assessed 15 points for OV 5, that his attorneys were ineffective for” not raising objections to this, and that the trial court erred by not granting his motion for relief from judgment as a result. The court noted that the “victim’s father described the following consequences of the victim’s death: the victim was no longer in his life, and the family was devastated by the loss. The only other effect described by the father was that he was upset over defendant’s demeanor at trial, but this feeling resulted from the trial, not the victim’s death. A victim’s father’s feelings about the defendant’s lack of remorse or compassion is not the kind of injury contemplated by OV 5.” The court added that, “even if such feeling could be considered, being upset is similar to grieving in this context, which is not sufficient for serious psychological harm under OV 5.” It noted that there were “no descriptions in the record of specific manifestations of present or future serious psychological injury. In fact, the PSIR provided that the victim’s family was moving on, which did not suggest a need for professional treatment.” Because the record did not support scoring 15 points for OV 5, the court concluded defense counsel was deficient for not raising a challenge to this in the trial court and in the original appeal. Further, defendant was prejudiced as a 15-point reduction “would result in a lowered minimum guidelines range of 180 months to 300 months, or life.” Reversed and remanded for resentencing.

Ineffective assistance of counsel; Failure to present evidence of defendant’s character; MRE 404(a)(1); MRE 405(a) & (b); Relevance; MRE 401; Matters of trial strategy; Prejudice; Exclusion of evidence of the victim’s character; MRE 403; Self-defense; MRE 404(a)(2); People v Edwards; Admission of autopsy photos; Distinguishing People v Falkner; Sentencing; Scoring of OV 6; MCL 777.36(1)(b) & (2)(a); Proportionality; Effect of a within-guidelines sentence

The court rejected defendant’s ineffective assistance of counsel claims, and held that the trial court did not abuse its discretion by excluding evidence of the victim’s character, or err in admitting two autopsy photos. The court also upheld the 25-point score for OV 6 and rejected defendant’s claim that his within-guidelines sentence was disproportionate. Thus, it affirmed his second-degree murder and felony-firearm convictions, and sentences of 14 to 40 years for murder and a consecutive 2-year term for felony-firearm. He first argued on appeal that defense counsel was ineffective for failing to present evidence of his character. But the court found that the trial court did not err in denying him a new trial or evidentiary hearing based on ineffective assistance. The record showed “that defense counsel argued at trial that defendant acted in self-defense and, accordingly, cross-examined the prosecution’s witnesses and called defense witnesses who testified that the teenagers had guns. Further, before trial, defense counsel sought to introduce evidence about the victim to demonstrate that he was the aggressor in this situation, and defense counsel mentioned that an investigator would possibly testify on defendant’s behalf, indicating that defense counsel was acting intentionally to craft his defense. Decisions about which witnesses to call are a matter of trial strategy.” In this case, “defense counsel decided to present a self-defense claim and not present the named-character witnesses. Defendant” failed to “overcome the strong presumption that this constituted reasonable trial strategy[.]” As to the exclusion of “evidence from the victim’s social media sites displaying violent poses or his purported gang affiliation[,]” the trial court focused, in part, during the pretrial motion hearing on the fact defendant did not know the victim. It also “raised doubts that the victim was, in fact, the aggressor even if he made the statement to shoot defendant when it was another person who would have pulled out a gun. Further, [it] stated that the evidence would cause the jury to focus on the wrong information.” The court concluded that it “was not outside of the range of reasonable and principled decisions for the trial court to find that the evidence was irrelevant and prejudicial.”

CSC I; CSC II; Other acts evidence; MCL 768.27a; MRE 403; People v Watkins; Due process; People v Muniz; Children’s Protective Services (CPS) records; In camera review; MCR 6.201(C)(2); People v Stanaway

The court held that the trial court did not abuse its discretion by admitting other acts evidence or by denying defendant access to CPS records after in camera review. He was convicted of CSC I and CSC II based on allegations that he sexually assaulted the victim repeatedly when she was a child. On appeal, the court first held that even assuming the trial court did not properly apply MRE 403, any error was harmless because the other acts evidence was highly probative and insufficiently prejudicial. Applying Watkins, the court reasoned that the other acts were substantially similar because defendant allegedly touched or attempted to touch three minor girls “under their pants while they were sleeping,” and the differences in age, timing, and frequency were not so great as to make the evidence unfairly prejudicial. The court also rejected defendant’s constitutional challenge to MCL 768.27a because Muniz held that the statute does not violate due process where it does not lower the prosecution’s burden of proof. The court next held that defendant was not entitled to the CPS records because the trial court reviewed them in camera and found nothing necessary to the defense. Under Stanaway, privileged records must be material and capable of raising a reasonable doubt, and defendant’s request amounted to a “fishing expedition” because he did not show how the records would support his defense, especially where he could have questioned the victim and her mother about delayed disclosure. Affirmed.

Absent-voter ballot stubs

Absent-voter ballots; Missing or mismatched ballot stubs; MCL 168.768; In-person ballots; MCL 168.797a(2); Statutory interpretation; O’Connell v Director of Elections; Negative-implication canon; Daher v Prime Healthcare Servs-Garden City, LLC; Secretary of State guidance; Challenged ballots; MCL 168.21; MCL 168.31; Permanent injunction; Irreparable injury; Youmans v Bloomfield Twp; Hopkins Twp v State Boundary Comm’

The court held that MCL 168.768 does not prohibit tabulating absent-voter ballots returned with missing or mismatched ballot stubs, and that the Court of Claims abused its discretion by imposing a mandatory statewide cure procedure. Plaintiffs challenged defendants’ statewide guidance allowing those ballots to be processed as challenged ballots. The Court of Claims declared the guidance unlawful and ordered defendants to implement plaintiffs’ 10-step cure procedure. On appeal, the court first held that MCL 168.768 was ambiguous as applied to missing or mismatched stubs because it says what to do “[i]f the ballot numbers match,” but “does not state what must happen when the numbers do not match.” Reading the statute with MCL 168.797a(2), the court reasoned that when the Legislature intended a stub mismatch to require rejection of an in-person ballot, “it said so expressly,” but it did not include comparable rejection language for absent-voter ballots. The court rejected plaintiffs’ negative-implication argument because that canon is “not a license to add a prohibition” omitted from one provision while included in a related one. The court also held that the Secretary’s challenged-ballot guidance did not conflict with the statute because MCL 168.768 requires a comparison but “did not prescribe rejection or any other consequence for a discrepancy,” and the Secretary may issue instructions consistent with election law. Finally, the court held that the permanent injunction had to be vacated because plaintiffs had not requested permanent injunctive relief until their proposed order, defendants lacked a meaningful opportunity to address the equitable standards, and the Court of Claims did not find a “real and imminent danger of irreparable injury.” The court emphasized that “the mere apprehension of future injury” is insufficient and that the order was not adequately tailored to the record. The court reversed the Court of Claims order and judgment, vacated the permanent injunction, and remanded for entry of judgment in defendants’ favor.

Appellate jurisdiction; Claim of appeal; MCR 7.204(A); Untimely service of a trial court’s judgment or order; MCR 7.204(A)(3); Application for leave to appeal; MCR 7.205

The court dismissed plaintiff’s appeal for lack of jurisdiction because her claim of appeal was untimely. Plaintiff sued defendants after allegedly observing rats in her apartment, vacating the unit, and terminating her lease. The trial court granted defendants summary disposition on 5/24/24, making 6/14/24 the ordinary deadline for a claim of appeal, but plaintiff filed on 6/25/24. The court held that “[t]he time limit for an appeal of right is jurisdictional,” and plaintiff’s reliance on MCR 7.205(A)(4) did not help because that rule governs “applications for leave to appeal, not claims of appeal.” The court also held that even assuming delayed service made MCR 7.204(A)(3) applicable, plaintiff still failed to meet that rule’s 14-day deadline. Plaintiff averred that she received the order on 6/7/24, meaning she had until 6/21/24 to file, but she did not file until 6/25/24. Because the claim of appeal was untimely and the deadline was jurisdictional, the court lacked jurisdiction. Appeal dismissed.

Grant of a personal protection order (PPO); Mootness exception; TM v MZ; Domestic relations PPO; MCL 600.2950; Stalking; MCL 750.411h; Principle that a PPO need not comply with the Child Custody Act (CCA) under certain circumstances; Hayford v Hayford; Due process; Lack of notice; Kampf v Kampf; Applicability of MCR 3.705(B)(1); Request for ex parte PPO; First Amendment rights; ARM v KJL; Law Enforcement Information Network (LEIN)

The court held that the trial court did not err in granting petitioner’s request for an ex parte PPO or in denying respondent’s motion to terminate it. The parties share a child. The court noted that the PPO had expired and there was no record evidence of efforts to continue it, which suggested the case was moot. But a case is not moot “if a respondent argues that a PPO was improperly issued and requests that notice of the PPO’s rescission be reflected in the” LEIN, as was the situation here. While respondent argued the trial court erred in granting petitioner’s request for a PPO, the court concluded that her “actions created reasonable cause to believe that she would commit acts of stalking under MCL 750.411h.” Petitioner sought the PPO after he “received an excessive number of calls and messages from respondent and told [her] to stop contacting him,” but she ignored his request and “also published [his] phone number on social media, which led to threats from an unknown phone number, as well as called the police to petitioner’s house multiple times. Because [he] reasonably felt harassed, intimidated, and concerned for his safety as a result of respondent’s actions, there was reasonable cause to believe [she] committed an act under MCL 600.2950(1). Further, there was reasonable cause to believe that respondent would continue the harassment, considering that [she] explicitly stated that she would be continuing her course of action, including contacting the police every time [he] denied [her] contact with the child.” While she asserted “that her conduct was simply parental communication, the excessiveness and pervasiveness of respondent’s contact with petitioner fails to serve any legitimate purpose.” As to her contention “the PPO was misused to interfere with the custody arrangement[,]” the court noted that it “‘has recognized that a PPO need not comply with the’” CCA under some circumstances, and she failed to show that they did not apply here. The court also rejected her due process and First Amendment arguments. Affirmed.

Testate probate; Copy of will; MCR 5.132; Estates & Protected Individuals Code; Presumption of revocation; In re Smith Estate; Lost original will; Personal representative (PR)

The court held that the probate court did not err by refusing to admit a copy of the decedent’s purported will and allowing the estate to proceed as intestate. The decedent’s sister was appointed PR in informal proceedings, and appellant later sought testate probate of a copied document that named him PR. On appeal, the court first rejected appellant’s reliance on MCR 5.132 because that rule “does not provide that a purported copy of a will be admitted so long as the other party does not object.” Instead, the rule allows a copy to be used when taking a witness’s deposition. The court next held that the probate court properly applied the common-law presumption of revocation. Under Smith Estate, when a will “cannot be found at the death of the testator” after proper search, and especially when it is not traced out of the testator’s possession, “it is to be presumed that it was destroyed by him” with intent to revoke it. The court held that appellant failed to rebut that presumption because he offered only his own testimony and the copy, his testimony was ambiguous about where the electronic copy was found, and his claim about who drafted the will was directly contradicted by counsel, who stated that the document was “not mine.” The probate court was entitled to assess credibility and the record did not leave the court “with a definite and firm conviction that a mistake” was made. Affirmed.

Quiet title; MCL 600.2932(1); Whether the parties’ agreement was a land contract; Differences between a land contract & a contract for the sale of land; Zurcher v Herveat; Conversion; Check payable to multiple people conjunctively; Application of insurance proceeds

The court held that the parties’ agreement was a land contract and thus, the trial court did not err in quieting title to the property at issue in defendants’ favor. It also held that summary disposition was properly granted to defendants on plaintiff’s conversion claim. The case concerned the sale of an apartment complex. The parties sued each other to quiet title after the “complex burned down and an insurance company issued a check payable to the parties for $210,000.” Plaintiff argued that a question of fact existed as to whether the parties entered into a land contract. After reviewing the differences between a land contract and a contract for the sale of land, the court concluded that to constitute a land contract, an agreement “must, among other things, (1) list the installment payments’ amounts and dates, and (2) provide an interest rate.” It determined that the Contract for Deed here contained all the “requirements for a land contract. First, [it] provided for installment payments and listed the amounts and times for those payments. Although [it] may have only called for two payments, ‘paying in installments refers to any transaction where full payment does not occur simultaneously with the transfer’ of the purchase.” As the second payment was to occur several months after the first one, it was “an installment payment under Zurcher. Second, the Contract for Deed provided for an interest rate of 0%. If the parties had omitted the interest provision altogether, then their agreement might well have been missing an essential term to be a land contract. The fact that the contract explicitly stipulated and provided for” a 0% interest rate suggested they “intended to include all essential terms to form a land contract, even if one of those terms had no practical effect. It is also notable that the Contract for Deed did not involve a promissory note or mortgage between plaintiff and defendants.” As the essential terms that supported finding a land contract were unambiguous in the agreement, the issue was decided as a matter of law. As to the conversion claim related to the check, plaintiff “was entitled to the purchase price it negotiated with” defendant-Westcombe. It “accepted late payments, and with the release of $10,500 from escrow, [it] has received the full amount it bargained for. To receive any additional proceeds from the insurance check would result in plaintiff’s unjust enrichment.” Affirmed.

Termination at initial disposition; MCR 3.977(E); Petition requirements; MCR 3.961(B)(6); Request for termination; Jurisdiction; MCL 712A.2(b)(1); In re Kellogg; Distinguishing In re Lange; Ineffective assistance of counsel

The court held that termination of respondent-mother’s parental rights at the initial disposition was erroneous because the DHHS petition did not properly request that relief, but that the trial court’s adjudication order should be affirmed. The DHHS petition used an SCAO form but did not check the box requesting termination at the initial disposition. Instead, the request was “phrased as a ‘recommendation’ and buried in the last few lines of an attachment” listing allegations. The court held this was insufficient because MCR 3.961(B)(6) requires that a “request for removal of the child or a parent or for termination of parental rights at the initial disposition must be specifically stated,” and the investigator’s later testimony that she sought termination did not “retroactively satisfy” the petition requirement. The error affected respondent’s substantial rights because she lacked proper notice and could not prepare for termination at the initial disposition. But the court rejected respondent’s ineffective-assistance challenge to adjudication because she failed to show a reasonable probability that the trial court would have declined jurisdiction. It was undisputed that she told hospital staff she could no longer care for the child and asked them to call CPS to take the child away, meaning the child was without proper care under MCL 712A.2(b)(1). The court also distinguished Lange because this case involved respondent’s mental-health issues, not a child whose severe mental illness made hospital placement necessary. Affirmed in part, vacated in part, and remanded.

Testate probate; Copy of will; MCR 5.132; Estates & Protected Individuals Code; Presumption of revocation; In re Smith Estate; Lost original will; Personal representative (PR)

The court held that the probate court did not err by refusing to admit a copy of the decedent’s purported will and allowing the estate to proceed as intestate. The decedent’s sister was appointed PR in informal proceedings, and appellant later sought testate probate of a copied document that named him PR. On appeal, the court first rejected appellant’s reliance on MCR 5.132 because that rule “does not provide that a purported copy of a will be admitted so long as the other party does not object.” Instead, the rule allows a copy to be used when taking a witness’s deposition. The court next held that the probate court properly applied the common-law presumption of revocation. Under Smith Estate, when a will “cannot be found at the death of the testator” after proper search, and especially when it is not traced out of the testator’s possession, “it is to be presumed that it was destroyed by him” with intent to revoke it. The court held that appellant failed to rebut that presumption because he offered only his own testimony and the copy, his testimony was ambiguous about where the electronic copy was found, and his claim about who drafted the will was directly contradicted by counsel, who stated that the document was “not mine.” The probate court was entitled to assess credibility and the record did not leave the court “with a definite and firm conviction that a mistake” was made. Affirmed.