Sufficiency of the evidence; Bank robbery; MCL 750.531; Armed robbery; MCL 750.529 & MCL 750.530; Identification evidence; Due process; People v Posey; Appellate review of incomplete record; Transcript omission; People v Dunigan

The court held that sufficient evidence established defendant’s identity as the perpetrator of both bank robberies and the related armed-robbery offense, and that any alleged suggestiveness in a teller’s identification did not warrant reversal because the remaining evidence of identity was overwhelming. The case involved two bank robberies in the fall of 2020. At trial the prosecution introduced DNA evidence from a black bag dropped during the first robbery, testimony from the teller robbed during the second incident, surveillance evidence, vehicle descriptions, and evidence from defendant’s cell phone. The trial court denied defendant’s motion in limine challenging the teller’s identification and the jury convicted him of bank robbery in one case and armed robbery and bank robbery in the other. On appeal, the court held that the identity evidence was sufficient because 1) the DNA on the dropped bag was “234 billion times more likely to have come from defendant and three unknown individuals” than from four unrelated people, 2) the second teller testified she was “100% certain” defendant was the robber, and 3) the evidence showed the robber left in vehicles matching those tied to defendant’s girlfriends, one of which defendant indisputably drove. The court also held that even if the identification procedure at the preliminary exam was unnecessarily suggestive, reversal was not required because “the error was harmless beyond a reasonable doubt” in light of the “overwhelming amount of evidence indicating that defendant was the robber[.]” The court also declined to review the separate challenge to the first teller’s identification because defendant failed to provide the transcript of the motion hearing, and the court generally refuses “‘to consider issues for which an appellant has failed to do so[.]’” Affirmed.

Self-defense; Evidence of the victim’s prior murder conviction; MRE 405(b); People v Edwards; Sufficiency of the evidence; Self-defense rebuttal; People v Stevens; Missing witness instruction; Due diligence to produce an unavailable witness; M Crim JI 5.12; People v Eccles; Ineffective assistance of counsel; Trial preparation & jury instructions; People v Fyda

The court held that defendant was not entitled to a new trial because 1) any error in excluding evidence of the victim’s prior murder conviction was harmless, 2) the prosecution presented sufficient evidence to disprove self-defense, 3) the prosecutor exercised due diligence regarding the missing witness, and 4) defendant failed to establish ineffective assistance of counsel. Defendant confronted her ex-boyfriend, G, at his smoke shop over money. She shattered glassware, tried to strike him with an umbrella, was pushed outside and locked out, then returned to the door, pulled a handgun from her purse, and fired “a single round at [G] through the locked door” before the two exchanged gunfire. On appeal, the court first held that even assuming the trial court erred by barring testimony about G’s prior murder conviction, the error was harmless because defendant still presented her self-defense theory through evidence of his other violent acts and gun possession. It noted that the surveillance video showed she shot “through a locked door, without any apparent threat, and with the ability to remove herself from the situation,” which the court called “fatal to her self-defense claim[.]” The court next held that the evidence was sufficient because the video established that defendant “intentionally fired into an occupied building,” and the prosecution “produced sufficient evidence to exclude self-defense,” namely “the surveillance video,” which showed “the ability to leave and a lack of reasonable apprehension of harm[.]” The court also held that no missing-witness instruction was required because the prosecutor did “everything reasonable” to find G. Finally, the court held that counsel’s alleged failures in preparation and jury instructions did not prejudice defendant because “the surveillance footage that was played to the jury remain[ed] fatal to her defense.” Affirmed.

The Whistleblowers’ Protection Act (WPA); MCL 15.362; Statute of limitations; MCL 15.363(1); Wrongful discharge under public policy; WPA preemption; Licensing & Regulatory Affairs (LARA)

Holding that plaintiffs’ WPA claims were barred by the statute of limitations, and that their wrongful discharge in violation of public policy claims were preempted by the WPA, the court affirmed summary disposition for defendant-former employer. Plaintiffs previously worked at defendant’s nursing home and rehabilitation facility as direct care workers. After they contacted the state and the LARA department about “concerns with the facility’s conditions,” state officials investigated the facility. Plaintiffs stopped working at the facility about a month after their “reports and the state investigation because of an alleged suspension or layoff.” They contended “that defendant’s violation of the WPA occurred in [8/24] when they were informed by their former managers that the facility had been sold and defendant was no longer hiring. For a violation of the WPA, defendant as an employer must have committed a discriminatory, adverse employment action against one of their employees. To be employees, plaintiffs needed to be performing services for wages under an express or implied contract of hire.” They asserted the adverse action here “was a constructive discharge that occurred in [8/24] when plaintiffs were still employees.” They contended that their layoffs in 3/24 “were not terminations and instead compared them to temporary suspensions. Accepting plaintiffs’ unrebutted allegations in their complaint as true, [they] were informed in [3/24] that they were laid off and could seek ‘re-employment’ at a later date. The term ‘re-employment’ logically implies that the layoff was not a temporary condition, but rather an actual termination of employment. Had plaintiffs understood the [3/24] layoff as merely temporary, there would be no reason to have to seek employment again, i.e., ‘re-employment,’ at a later date. Thus, the 90-day clock for [their] WPA claims began sometime in” 3/24, meaning it expired well before they filed their complaint.

Change of domicile; Best interests under MCL 722.23; Rains v Rains; Change of custody; Proper cause or change of circumstances under MCL 722.27(1)(c); Merecki v Merecki; Established custodial environment (ECE); Burden of proof; Pierron v Pierron; Joint legal custody; Ability to cooperate under MCL 722.26a(1)(b); Bofysil v Bofysil

The court held that the trial court’s order had to be vacated because its findings on the domicile motion were insufficient for appellate review as to best-interest factors (a) and (b), and because it failed to make the threshold and statutory findings necessary to grant defendant’s request for a change in legal custody. Plaintiff-mother and defendant-father divorced in 2020, and plaintiff received sole legal and physical custody of their child (RLR). Years later plaintiff sought to move the child’s domicile to Texas while defendant moved for joint legal custody. The trial court denied the domicile motion and granted the custody motion. On appeal the court held that the domicile ruling could not stand because the trial court merely stated that factors (a) and (b) were “equal between the parties” and failed to “explain which facts or evidence supported this conclusion,” leaving the record insufficient to determine whether “the evidence clearly preponderates against the trial court’s findings.” The court next held that the legal-custody ruling was defective because the trial court “failed to analyze whether defendant had established, by a preponderance of the evidence, that proper cause or a change of circumstances warranted revisiting the custody arrangement,” and “never made the threshold determination of whether modifying legal custody would change RLR’s” ECE. It also held that the trial court erred because it did not conduct the required best-interest analysis for the custody motion itself and did not expressly address whether the parties could “cooperate and generally agree concerning important decisions affecting the welfare of the child.” Because these omitted findings precluded appellate review, the order was vacated and the matter remanded for further proceedings.

No-fault benefits; Causation under MCL 500.3105(1); McPherson v McPherson; Summary disposition; Genuine issue of material fact; MCR 2.116(C)(10); Quinto v Cross & Peters Co; Expert testimony; Factual basis for opinion; MRE 703; Skinner v Square D Co; Computed tomography angiography (CTA)

The court held that the trial court properly denied defendant-insurer’s motion for summary disposition because plaintiff’s expert testimony created a genuine issue of material fact whether his brain injury arose out of the operation of the motor vehicle rather than from a spontaneous aneurysm rupture. Plaintiff (who died after this case was filed) was involved in a single-car crash at a hospital, where he hit a gate, ran over signs, and struck a concrete barrier. Imaging later revealed a large intracranial hemorrhage and a partially thrombosed aneurysm. Defendant denied PIP benefits on the theory that plaintiff’s injuries did not arise from the use of the vehicle because “his injuries resulted from a ruptured aneurysm, not from the operation of a motor vehicle,” and it moved for summary disposition on that basis. On appeal, the court held that MCL 500.3105(1) requires a causal connection “more than incidental, fortuitous, or but for,” and that the trial court correctly found a factual dispute on that issue. The court found that plaintiff’s expert testimony supported “a reasonable inference that the hematoma surrounding plaintiff’s brain was caused by head trauma sustained during the automobile collision with the concrete barrier, rather than by the aneurysm in his brain rupturing prior to the accident and causing the collision.” The court emphasized that the expert “rejected the possibility that the aneurysm discovered during surgery caused the collision” because the aneurysm “did not appear on the CTA scan,” meaning that “no blood was flowing through it, and without blood flow, it could not have bled and caused the hematoma[.]” It also rejected defendant’s attack on the expert’s credibility, explaining that an expert’s credibility is for the jury and that the trial court “‘may not resolve factual disputes or determine credibility in ruling on a summary disposition motion.’” Affirmed.

Request for reimbursement of attorney fees incurred in a guardianship proceeding; Laches; Penrose v McCullough; Res judicata; In re Bibi Guardianship; Waiver; The Cadle Co v Kentwood; Failure to state a claim for unjust enrichment; Probate court’s jurisdiction to hear the claim; MCL 700.1302; The court’s jurisdiction to hear the appeal; “Aggrieved party” under MCR 7.203; Compulsory joinder; MCR 2.203(A); Effect of a party’s failure to respond to a particular argument; Reliance on MCR 2.116(G)(4); Request for sanctions under MCR 1.109; Personal representative (PR)

The court held, among other things, that plaintiff-former guardian’s claim for reimbursement of attorney fees was not barred by laches or res judicata, that she stated a claim for unjust enrichment, and that both it and the probate court had jurisdiction. Thus, it affirmed the order denying defendant-PR’s summary disposition motion and granting plaintiff’s request for judgment, in part, under MCR 2.116(I)(2). Defendant first argued that plaintiff’s claim was barred by laches because she sought a final accounting of the trust assets without making a request for attorney fees. The court noted the “mere passage of a short amount of time is insufficient to establish laches.” Defendant also had to “show a change in circumstances that would render it inequitable to allow plaintiff to assert her right to the fees and must show more than de minimis prejudice.” The court found that she did not establish either required element. She failed to provide “any argument as to why it would be inequitable to allow plaintiff to seek her attorney fees in a separate action against the decedent estate.” Defendant had the burden to show “it would be inequitable to grant” plaintiff relief. Likewise, she did not offer any “argument as to how she was prejudiced by plaintiff’s alleged inaction.” As to res judicata, the court agreed with the trial court that plaintiff was “no different from any other creditor seeking reimbursement from an estate.” It noted the attorney fees issue “was not addressed in the order allowing the final account, meaning it was not a final decision on the issue of whether plaintiff was entitled to reimbursement for attorney fees. That order indicates that any remaining assets shall be released to the decedent estate. As such, those assets are subject to creditor claims under MCL 700.3801[.] . . . Plaintiff made a timely claim against the decedent estate under that statute.” Thus, the court could not “hold that the trial court erred when it held that plaintiff was not barred by res judicata from bringing her claim.” It found that defendant’s assertion that the probate court lacked jurisdiction to hear plaintiff’s unjust enrichment equitable claim was both abandoned and lacked merit, concluding there were “multiple statutory sections under which the probate court properly exercised jurisdiction.” It also rejected plaintiff’s challenge to its jurisdiction, finding defendant was “an aggrieved party under MCR 7.203[.]”

Request for reimbursement of attorney fees incurred in a guardianship proceeding; Laches; Penrose v McCullough; Res judicata; In re Bibi Guardianship; Waiver; The Cadle Co v Kentwood; Failure to state a claim for unjust enrichment; Probate court’s jurisdiction to hear the claim; MCL 700.1302; The court’s jurisdiction to hear the appeal; “Aggrieved party” under MCR 7.203; Compulsory joinder; MCR 2.203(A); Effect of a party’s failure to respond to a particular argument; Reliance on MCR 2.116(G)(4); Request for sanctions under MCR 1.109; Personal representative (PR)

The court held, among other things, that plaintiff-former guardian’s claim for reimbursement of attorney fees was not barred by laches or res judicata, that she stated a claim for unjust enrichment, and that both it and the probate court had jurisdiction. Thus, it affirmed the order denying defendant-PR’s summary disposition motion and granting plaintiff’s request for judgment, in part, under MCR 2.116(I)(2). Defendant first argued that plaintiff’s claim was barred by laches because she sought a final accounting of the trust assets without making a request for attorney fees. The court noted the “mere passage of a short amount of time is insufficient to establish laches.” Defendant also had to “show a change in circumstances that would render it inequitable to allow plaintiff to assert her right to the fees and must show more than de minimis prejudice.” The court found that she did not establish either required element. She failed to provide “any argument as to why it would be inequitable to allow plaintiff to seek her attorney fees in a separate action against the decedent estate.” Defendant had the burden to show “it would be inequitable to grant” plaintiff relief. Likewise, she did not offer any “argument as to how she was prejudiced by plaintiff’s alleged inaction.” As to res judicata, the court agreed with the trial court that plaintiff was “no different from any other creditor seeking reimbursement from an estate.” It noted the attorney fees issue “was not addressed in the order allowing the final account, meaning it was not a final decision on the issue of whether plaintiff was entitled to reimbursement for attorney fees. That order indicates that any remaining assets shall be released to the decedent estate. As such, those assets are subject to creditor claims under MCL 700.3801[.] . . . Plaintiff made a timely claim against the decedent estate under that statute.” Thus, the court could not “hold that the trial court erred when it held that plaintiff was not barred by res judicata from bringing her claim.” It found that defendant’s assertion that the probate court lacked jurisdiction to hear plaintiff’s unjust enrichment equitable claim was both abandoned and lacked merit, concluding there were “multiple statutory sections under which the probate court properly exercised jurisdiction.” It also rejected plaintiff’s challenge to its jurisdiction, finding defendant was “an aggrieved party under MCR 7.203[.]”

Removal; MCL 712A.13a(9); MCR 3.965(C)(2); Waiver; In re Ferranti; Plain error review; Adjudication; Exercise of jurisdiction; MCL 712A.2(b)(1) & (2); Separate adjudication of respondents; In re Sanders; Hearsay; Then-existing state of mind exception (MRE 803(3)); People v Moorer; Opposing-party statement (MRE 801(d)(2)); Credibility determinations; Doctrine of anticipatory neglect; Personal protection order (PPO)

In this consolidated appeal, the court rejected respondent-father’s challenges to the children’s removal and held that the trial court did not clearly err in assuming jurisdiction over them. Two separate child protective proceedings were at issue, one involving one child (RWA1) and the other involving two children. As to the children’s removal, as an initial matter the court rejected the DHHS’s argument that the father waived the issue, concluding that his failure to timely appeal the removal orders did not constitute a waiver. Turning to the required factors, the court held as to MCL 712A.13a(9)(a) that “the trial court did not clearly err by finding that the children would be at a substantial risk of harm if they remained in” the father’s custody. The domestic violence concerns equally applied to all “the children, not just RWA1. Nor did the trial court limit its consideration of domestic violence to RWA1.” The record indicated the father “was the perpetrator of domestic violence” and the court determined that a CPS employee’s testimony supported “the trial court’s finding that the children would be at a substantial risk of harm in” the father’s care. And while it “ultimately determined that respondent-mother could remain in the home with the younger children, that does not necessarily preclude its finding that respondent-father placed [them] at a substantial risk of harm by allowing them to reside with [the] mother following RWA1’s sexual abuse allegations.” The court also held that a preponderance of the evidence supported the trial court’s finding as to MCL 712A.13a(9)(b). “Given the concerns about [the] father’s domestic violence, and the unreliability of” a PPO that was in place, it did not clearly err in “finding that no other arrangement except removal from [the] father was reasonably available to safeguard the children from harm.” As to MCL 712A.13a(9)(c), a preponderance of the evidence also supported a “finding that ‘[c]ontinuing the child’s residence in the home is contrary to the child’s welfare.’” Finally, the record likewise supported its finding as to MCL 712A.13a(9)(e). As to the adjudication, the court held that the testimony established both MCL 712A.2(b)(1) and (b)(2) by a preponderance of the evidence. Affirmed.

Termination under § 19b(3)(j); Whether reasonable reunification efforts were required; MCL 712A.19a(2)(c); Children’s best interests

The court held that the trial court did not clearly err in finding that (1) terminating respondent-mother’s parental rights was warranted under § (j), (2) reasonable reunification efforts were not required here, and (3) termination was in the children’s best interests. Thus, it affirmed the termination order. The court noted that the “children suffered nonaccidental trauma, and when asked about the trauma, respondents provided inconsistent stories to police and [DHHS], resulting in uncertainty in how the children were injured. Even if respondent-mother was not the direct cause of the injuries, she left the children in the care of someone who did injure [them], thereby failing to prevent the harm.” She also did not “participate in required services in past cases involving [DHHS], evidencing possibility of harm to the children in this case.” In addition, her “history with little-to-no change indicated that the children would be at risk of harm if returned to her care. This conclusion is supported by the clinical evaluation” that indicated, among other things, that she “did not fully appreciate the injuries to the children and the care they needed. Thus, it was not clearly erroneous for the trial court to find that” § (j) was established. As to reunification efforts, it was undisputed that she “had her parental rights to two children—siblings of the children in this case—terminated in the past.” Further, the clinical evaluation determined “that the conditions which led to the prior terminations, including serious and chronic neglect, improper supervision, threatened harm, and substance abuse, had not been rectified.” As to the children’s best interests, any parent-child bond was at best weak – they were in her “care for only two months before removal and parenting time had been suspended for over two years.” They had been in their current placement “for a majority of their lives, their foster parents are willing to adopt both of them and specifically provide for their medical needs. Adoption will provide the permanency and stability that the children need, emotionally and medically.”