The Equal Access to Justice Act (EAJA); Attorney’s fees for a “prevailing party” against a federal agency under 28 USC § 2412(d)(1)(A); Whether the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) was “substantially justified” in treating rifles fitted with bump stocks as illegal “machineguns”; 26 USC § 5845(b); Garland v Cargill; Deference to the district court’s finding; Reasonableness of the position; Avoiding “hindsight bias”; Perez v Jaddou (4th Cir)

[This appeal was from the WD-MI.] The court held that the district court did not abuse its discretion by finding that defendant-ATF was “substantially justified” in reading § 5845(b) to include rifles fitted with bump stocks as illegal “machineguns.” Thus, it affirmed the district court’s denial of plaintiffs’ motion for attorney fees under the EAJA. Plaintiffs were parties in a nation-wide effort to have the ATF’s decision to consider bump stocks illegal machineguns overturned. The issue reached the Supreme Court in Cargill where the ATF lost the case. Plaintiffs then sought attorney fees under § 2412(d)(1)(A), which makes attorney frees available to the “prevailing party” in a suit against a federal agency under the EAJA if the agency’s position was not “substantially justified.” The district court ruled that the ATF’s position was substantially justified and denied plaintiffs’ motion for fees. The court noted that it had to “give deference to the district court’s finding. And” it concluded that the district “court acted reasonably because of the substantial judicial disagreement that this novel legal question produced.” The court reviewed the history and interpretations of the regulations and definitions related to various firearms and noted reasons why “a ‘reasonable person’ could have thought the ATF’s position” was correct. These included the fact that the “litigation raised ‘a novel question’” and that there were “‘objective indicia’ showing the reasonableness of the government’s position.” The court concluded that “given the plausible arguments supporting the ATF’s reading as well as the broad circuit debate that its reading engendered, the district court did not abuse its discretion by finding the reading substantially justified. A contrary holding would ‘succumb to [the] hindsight[] bias’ that we must avoid when considering this attorney’s fees question.”

Promissory estoppel & unjust enrichment claims; Cove Creek Condo Ass’n v Vistal Land & Home Dev, LLC; Bellevue Ventures, Inc v Morang-Kelly Inv; Whether the claims were actually tortious negligence claims; Applicability of the Government Tort Liability Act (GTLA); Genuine issue of material fact; Department of Public Works (DPW)

The court held that plaintiff’s promissory estoppel and unjust enrichment claims sounded in contract, not tort and thus, they did not fall within the scope of the immunity granted by the GTLA. Further, genuine issues of material fact precluded summary disposition under MCR 2.116(C)(10). Thus, it affirmed the trial court’s denial of defendant-City’s summary disposition motion. The “case arose from plaintiff’s 2021 purchase of a dump truck for the City’s use while he was employed” as its DPW Director. He testified that the Mayor assured him “that the City would reimburse him if he purchased the” truck so he went to an “auction house with a cashier’s check from his credit union, purchased the truck, signed the title directly over to the City, and drove the truck to work for future use. [He] also immediately delivered the truck’s title to the City’s Director of Finance, who then added the truck to the City’s insurance policy.” Plaintiff also testified that he later left his position with the City “without having been reimbursed.” The City argued that the substance of his promissory estoppel and unjust enrichment “claims actually constituted claims of tortious negligence” and thus, it had immunity under the GTLA. The court held that the City could not avail itself of that immunity here. The City did not offer anything “to explain how the substance of” the unjust enrichment claim actually constituted a negligence claim. It also largely failed to explain this as to the promissory estoppel “claim, asserting only that plaintiff, when alleging promissory estoppel in his complaint, used the phrase ‘as a direct and proximate result,’ which is language typically associated with a negligence claim. But” it failed to show (and the court failed to see) “how the mere use of such language, alone, would somehow transform” the claim into a negligence claim, “particularly in light of the other language used throughout the complaint.” The court also held that, at minimum, plaintiff’s proffered evidence was sufficient to show a genuine issue of material fact existed “as to whether [he] reasonably relied on a promise of reimbursement from the Mayor in purchasing the 2008 truck for the City’s use.” Likewise, it failed to see how his “proofs were insufficient to create a genuine issue of material fact regarding whether the City was unjustly enriched by its retention of the 2008 truck” he purchased.

Self-representation request; MCR 6.005(D)(1); People v Russell; People v Anderson; Disruption of proceedings; People v Hill; Substitute counsel; People v Traylor; Plain-error review; People v Carines

The court held that the trial court did not abuse its discretion by denying defendant’s midtrial request to represent himself because the request came after the jury was selected and sworn and self-representation would have “‘disrupt[ed], unduly inconvenience[d], or burden[ed] the Court in the administration of the Court’s business.’” Police went to defendant’s home to execute an arrest warrant, saw him carrying a rifle, and arrested him because he could not lawfully possess a firearm due to a prior felony. He was convicted by a jury of FIP and felony-firearm. The trial court found defendant competent twice before trial, then on the morning of trial defendant voiced dissatisfaction with the jury after selection and stated, “Yes, I’m moving to represent myself.” On appeal, the court held the trial court treated the request as unequivocal and substantially complied with MCR 6.005(D) by explaining the charges, maximum penalties, and that defendant would be held to the same standards as an attorney. It upheld the denial because the record supported the trial court’s finding that self-representation would be disruptive, noting defendant repeatedly interrupted, gave nonresponsive answers, and insisted he had no felony despite repeated explanations. It emphasized that it took “seven transcript pages” for defendant to answer whether he wanted to represent himself. The court also rejected the substitute-counsel claim because defendant never requested new counsel, did not show “good cause” such as a true breakdown in the attorney-client relationship, and counsel “diligently represented” him through objections and cross-examination. Further, replacement counsel after a sworn jury would have “unreasonably disrupt[ed] the judicial process.” Affirmed.

Particularity requirement for cell-phone warrants; People v Hughes; People v Carson; Good-faith exception; People v Hellstrom; Four-corners review; People v Keller

The court held that the search warrant for defendant’s cell phone failed the Fourth Amendment’s particularity requirement because it authorized an essentially unlimited extraction of data without adequately tying each category of data to a defined offense or providing meaningful limiting parameters such as a relevant time frame. Further, the good-faith exception did not apply because the warrant was so facially deficient that officers could not reasonably presume it valid. Defendant was charged with second-degree murder after his mother-in-law was found dead with a cord around her neck. Police sought and obtained a warrant to extract extensive categories of data from his phone, including call logs, texts, e-mails, photos, videos, audio, GPS information, calendar data, internet history, and “any and all” application data. The trial court suppressed the phone evidence after an evidentiary hearing, finding the warrant operated as a general warrant. The prosecution appealed, and the Supreme Court remanded the case to the court. The court emphasized that cell phones contain “‘the privacies of life’” and that courts must “‘jealously guard’” the particularity requirement, rejecting warrants that permit “‘wide-ranging exploratory rummaging[.]’” The court found the affidavit stated only that the device “may contain” communications, location, and “other digital evidence” related to an undefined “incident.” It did not identify a specific offense under investigation, did not refer to defendant as a suspect, and did not include “specific time or date limitations” despite the police having information to “appropriately curtail the search warrant.” The court explained that the warrant left “the scope, breadth, or focus of the search” to officer discretion, which “shifts the particularity requirement from the warrant, where it belongs[.]” The court further held the good-faith exception was unavailable because Michigan precedent recognizes that a warrant can be so facially deficient in particularizing what may be searched and seized from a phone that reliance is unreasonable. It also declined to entertain severance because the prosecution did not provide the required category-by-category analysis. Affirmed.

Sentencing; Scoring of 50 points for OV 15; Judgment of sentence (JOS)

The court affirmed defendant’s sentence but remanded for the ministerial task of correcting the JOS to accurately reflect that she was sentenced as a fourth offense habitual offender. She was sentenced to 10 to 25 years as a fourth offense habitual offender after a jury found her guilty of possession with intent to deliver meth. Defendant argued “that OV 15 was assessed incorrectly because there was no evidence that she transported [meth] across state lines.” The court found that the “trial court’s assessment of 50 points was supported by a preponderance of the evidence. [It] relied on four aspects of the record evidence against” her. It also noted that “the witness testified that she overheard defendant and codefendant discussing ‘how to get enough money to . . . secure the drugs and bring ’em to Michigan.’ The trial court clearly found this testimony credible.” Further, the meth “recovered from the witness’s house and defendant’s vehicle were contained in identical black cross-patterned plastic bags, which defendant also admitted she had at home in Wisconsin. During the trial, the State Trooper read numerous text and Facebook messages recovered from defendant’s phone that detailed her plan to pick up the [meth] from codefendant’s supplier in Wisconsin and bring it to codefendant in Michigan.” On this record, the court was “not definitely and firmly convinced the trial court made a mistake by assessing 50 points for OV 15.” However, defendant’s JOS “does not reflect that she was sentenced as a fourth-offense habitual offender.” The trial court calculated her “sentence as a fourth offense habitual offender, and her sentence was of a length that included a fourth-offense habitual offender status.”

Search incident to arrest; Arizona v Gant; United States v Robinson; New York v Belton; Ineffective assistance of counsel, Failure to move to suppress evidence as the fruit of an unlawful seizure

The court concluded that the trial court did not err by admitting the meth evidence and that defendant did not meet his burden of proving that defense counsel was ineffective. He argued that the evidence “was obtained through an unlawful, warrantless search.” There was no dispute that the arrest “on an outstanding warrant was lawful.” Thus, Officer P “had the authority to search defendant incident to his arrest.” Further, the court noted that “having located the tin container and defendant’s wallet during the lawful search, Officer [P] was permitted to inspect and open both items.” The court further found that the fact “he secured defendant in the patrol car before inspecting the items is inconsequential.” It held that “it was reasonable to very briefly delay the search in order to first secure defendant.” The court noted that “immediately opening the containers risked defendant attempting to escape, lunging for the containers, or destroying evidence that the officer had not yet seized. Accordingly, it was reasonable to very briefly delay the search in order to first secure defendant.” He argued “that Gant limits the authority of officers to open containers found on an arrestee after he has been secured and the traditional justifications for a search incident to arrest are no longer present.” However, as the Supreme Court did in Robinson, the court recognized “that there is a distinction between searches incident to arrest of an area within an arrestee’s immediate area of control, like a vehicle, and the search of items found on a person. The Court’s primary concern in Gant was that the incident-to-arrest exception had been stretched based on an overly broad reading of [Belton] to give police limitless discretion to conduct unreasonable exploratory searches of a vehicle.” The court noted that, “unlike the search of a vehicle, the search of a person is inherently limited.” It was unpersuaded “that Gant limited the search of items found on defendant’s person incident to his lawful arrest.” Affirmed.

Involuntary mental-health treatment; “Person requiring treatment” under MCL 330.1401(1)(c); MCL 330.1465; “Necessary treatment”; “Mental illness”; MCL 330.1400(g); Lack of understanding of the need for treatment; Substantial risk of significant harm; “Substantial” or “significant”

Agreeing that petitioner failed to establish by clear and convincing evidence that respondent was a “person requiring treatment” under MCL 330.1401(1)(c), the court reversed the probate court’s order requiring her to undergo involuntary mental-health treatment. She moved “to Michigan to join an unnamed spiritual or religious group.” While driving, respondent “began to experience fear because of her phobias of bridges and water.” She went to an ER “and voluntarily sought treatment because her mania, reduced sleep, and phobias were interfering with her ability to drive.” She was committed “to combined hospitalization and assisted outpatient treatment[.]” Respondent argued “that petitioner failed to establish by clear and convincing evidence that she lacked an understanding of the need for treatment and that she presented a substantial risk of significant harm.” She did not dispute that Dr. R (a board-certified psychiatrist and her treating doctor) provided a competent clinical opinion. Instead, she argued that Dr. R “did not explain why the recommended treatment was necessary to prevent a relapse.” The court disagreed. The record indicated “that respondent went to the hospital because her mania, reduced sleep, and phobias were interfering with her ability to drive. [Dr. R] testified that he had been respondent’s treating doctor for over a week, and respondent continued to refuse the treatment necessary to address these symptoms. From these facts, the probate court determined that respondent’s symptoms had increased and that her current medications were not sufficient; thus, the recommended treatment was necessary.” Respondent argued “that she clearly understood the need for treatment, but she disagreed with the recommended treatment.” The court held that there “was clear and convincing evidence to support the probate court’s finding that [her] mental illness impaired her judgment such that she failed to understand her need for the necessary treatment and was unwilling to participate in that treatment.” But it noted that she “had no history of violence or altercations with others, and did not indicate inclinations toward self-harm. Further, there was no evidence that respondent’s noncompliance with the recommended medical treatment would result in decompensation of her mental illness to the extent that there would be an increased risk of respondent developing harmful tendencies (e.g., drug abuse or suicidal thoughts or actions) or that there was a risk that [she] would develop additional harmful symptoms of her disorder.” The only potential harm that Dr. R “described was the probability that respondent could be taken advantage of by a spiritual group.” The court noted that “MCL 330.1465 requires that a finding that an individual is a ‘person requiring treatment’ must be established by clear and convincing evidence. Petitioner failed to establish by clear and convincing evidence that respondent presented a substantial risk of significant harm to herself or others.” Thus, the probate court abused its discretion by involuntarily committing her under MCL 330.1401(1)(c).

Policy rescission; Titan Ins Co v Hyten; Innocent third party; Balancing the equities; Pioneer State Mut Ins Co v Wright; Van Dyke Spinal Rehab Ctr, PLLC v USA Underwriters; Insurer priority; Michigan Assigned Claims Plan (MACP)

The court held in this insurer priority dispute that defendant-Farmers Insurance Exchange established a genuine issue of material fact as to “whether the balancing of the equities weighed in favor of” permitting defendant-Progressive to rescind its policy as to plaintiff, an innocent third party. Thus, it reversed the trial court’s grant of summary disposition to Progressive and denial of summary disposition to Farmers, and remanded. Plaintiff was injured in an accident while a passenger in a vehicle owned and operated by defendant-Roth. She did not have no-fault coverage at the time. She lived with her mother (nonparty-J), who had a policy with Progressive. When plaintiff sought no-fault benefits under the policy, Progressive rescinded it based on fraud or misrepresentation in the policy application. Plaintiff then sought no-fault benefits through the MACP, which assigned her claim to Farmers. On appeal, the court reviewed the Pioneer factors and concluded that “the trial court’s analysis of the first, second, and third factors either applied an improper standard or was contradicted by the available evidence[.]” As a result, it erred in “ruling that Progressive was entitled to rescind the insurance policy as to plaintiff.” As to the first factor, instead of “assessing the extent to which Progressive could have uncovered the fraud prior to plaintiff’s injury, as required under” this factor, it “broadly concluded that Progressive had no duty to uncover the fraud before the subject incident. In doing so, [it] failed to consider Progressive’s actual ability to discover the misrepresentations before the accident, including the timing of the original application and the relative ease of ascertaining the number of resident relatives in [J’s] household—particularly given that Progressive did so less than one month after plaintiff filed her claim.” It incorrectly weighed the second factor in Progressive’s favor given that, while she was J’s daughter, “there was no evidence that plaintiff was ever aware of the misrepresentation.” As to the third factor, considering “the evidence in the light most favorable to the nonmoving party, there is, at minimum, a question as to the extent that plaintiff’s conduct led to the accident.” She did not have control over the vehicle’s operation. And there was no evidence “it would have been safe for [her] to attempt to leave” it before the accident, or that she “encouraged or advised Roth to drive after consuming alcohol.”

Service on a foreign corporation; MCR 2.105(D); Bullington v Corbell; Notice cure for improper service; MCR 2.105(K)(3); Tucker v Eaton; Law of the case; Rott v Rott; Summary disposition burden; Quinto v Cross & Peters Co

The court held that plaintiff failed to properly serve the foreign corporate defendant (Superior Tire) under MCR 2.105(D) and failed to show that improper service nevertheless “inform[ed] the defendant of the action” within the service period as required to avoid dismissal under MCR 2.105(K)(3). Plaintiff sued over injuries from a forklift accident, and later added Superior Tire as a defendant. He attempted service by sending the summons and complaint via certified mail to Superior Tire’s Pennsylvania headquarters, where an hourly employee signed the receipt. The trial court initially entered default and default judgment, but in an earlier appeal the court vacated the default because “Superior Tire was never properly served” and remanded. On remand Superior Tire obtained summary disposition under MCR 2.116(C)(3) because service was never effectuated before the summons expired. On appeal, the court held the prior decision that certified mail did not satisfy MCR 2.105(D)’s personal-service requirements controlled under law of the case. It reiterated that the rules “‘require personal service on an officer, registered agent, director, trustee, or person in charge of an office or business establishment’” and they “‘do not contemplate that a plaintiff may use certified mail as an initial form of service’” on any corporate entity. The court further held “MCR 2.105(K)(3) ‘forgives errors in the manner or content of service or process [but] does not forgive a failure to serve process.’” The dispositive question was whether the defective attempt actually provided notice to “‘any person with authority to act for defendant’” within the time for service. The court found no record evidence that an authorized person received timely notice, and rejected plaintiff’s request to depose the hourly employee because the argument was not developed and therefore abandoned. It also held that hlis theory that the employee must have forwarded the mailing was “conclusory speculation” insufficient to create a material factual dispute under Quinto, and that unrelated pre-suit communications with Superior Tire personnel occurred outside the summons period. Affirmed.

The Equal Access to Justice Act (EAJA); Attorney’s fees for a “prevailing party” against a federal agency under 28 USC § 2412(d)(1)(A); Whether the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) was “substantially justified” in treating rifles fitted with bump stocks as illegal “machineguns”; 26 USC § 5845(b); Garland v Cargill; Deference to the district court’s finding; Reasonableness of the position; Avoiding “hindsight bias”; Perez v Jaddou (4th Cir)

[This appeal was from the WD-MI.] The court held that the district court did not abuse its discretion by finding that defendant-ATF was “substantially justified” in reading § 5845(b) to include rifles fitted with bump stocks as illegal “machineguns.” Thus, it affirmed the district court’s denial of plaintiffs’ motion for attorney fees under the EAJA. Plaintiffs were parties in a nation-wide effort to have the ATF’s decision to consider bump stocks illegal machineguns overturned. The issue reached the Supreme Court in Cargill where the ATF lost the case. Plaintiffs then sought attorney fees under § 2412(d)(1)(A), which makes attorney frees available to the “prevailing party” in a suit against a federal agency under the EAJA if the agency’s position was not “substantially justified.” The district court ruled that the ATF’s position was substantially justified and denied plaintiffs’ motion for fees. The court noted that it had to “give deference to the district court’s finding. And” it concluded that the district “court acted reasonably because of the substantial judicial disagreement that this novel legal question produced.” The court reviewed the history and interpretations of the regulations and definitions related to various firearms and noted reasons why “a ‘reasonable person’ could have thought the ATF’s position” was correct. These included the fact that the “litigation raised ‘a novel question’” and that there were “‘objective indicia’ showing the reasonableness of the government’s position.” The court concluded that “given the plausible arguments supporting the ATF’s reading as well as the broad circuit debate that its reading engendered, the district court did not abuse its discretion by finding the reading substantially justified. A contrary holding would ‘succumb to [the] hindsight[] bias’ that we must avoid when considering this attorney’s fees question.”

Supplemental jurisdiction; 28 USC § 1367(a); Claim under the Fair & Just Treatment Clause of the Michigan Constitution (Const 1963, art I, § 17); Whether the district court should have declined supplemental jurisdiction; § 1367(c); Effect of the dismissal of all plaintiff’s federal claims; “Novel or complex issues of state law”

[This appeal was from the ED-MI.] The court held that under the circumstances of this case, the district court abused its discretion by exercising supplemental jurisdiction over plaintiff-Williams’s claim under the Fair and Just Treatment Clause of the Michigan Constitution where the federal claims were dismissed and “novel or complex issues of state law” were raised. Williams was serving a one-year term as president of the Board of defendant-Addison Community Schools when the Board removed him from the position. He sued the school district, the other Board members, and the then-superintendent, asserting claims under the U.S. Constitution, the Fair and Just Treatment Clause of the Michigan Constitution, and respondeat superior liability against the school district. The district court granted defendants summary judgment on all claims, and denied Williams’s motion for partial summary judgment on his state Fair and Just Treatment claim. After dismissing the federal due process claim, it “exercised supplemental jurisdiction to also dismiss Williams’s state claims.” He appealed the denial of his motion for partial summary judgment on his Michigan constitutional claim and the grant of summary judgment for defendants on that claim. The court held that exercising supplemental jurisdiction here was not a proper exercise of discretion given that “most of the circumstances contemplated by § 1367(c)” were present. The dismissal of the federal claims before trial, along with the “novelty and complexity of the remaining state claims strongly supported declining the exercise of supplemental jurisdiction in this case.” Michigan case law on the Clause is limited, and the Michigan Supreme Court has yet to address the issue of “the meaning of legislative or executive as used in” it. The court noted that “even where a § 1367(c) circumstance applies, a district court does not necessarily abuse its discretion by exercising supplemental jurisdiction; in evaluating whether to do so, [it] should still consider and weigh judicial economy, convenience, fairness, and comity.” Its holding here was “narrowly tailored given the specific factual circumstances of this case.” It vacated and remanded “with instructions for the district court to dismiss without prejudice Williams’s Fair and Just Treatment claim and related assertion of respondeat superior liability.”

Promissory estoppel & unjust enrichment claims; Cove Creek Condo Ass’n v Vistal Land & Home Dev, LLC; Bellevue Ventures, Inc v Morang-Kelly Inv; Whether the claims were actually tortious negligence claims; Applicability of the Government Tort Liability Act (GTLA); Genuine issue of material fact; Department of Public Works (DPW)

The court held that plaintiff’s promissory estoppel and unjust enrichment claims sounded in contract, not tort and thus, they did not fall within the scope of the immunity granted by the GTLA. Further, genuine issues of material fact precluded summary disposition under MCR 2.116(C)(10). Thus, it affirmed the trial court’s denial of defendant-City’s summary disposition motion. The “case arose from plaintiff’s 2021 purchase of a dump truck for the City’s use while he was employed” as its DPW Director. He testified that the Mayor assured him “that the City would reimburse him if he purchased the” truck so he went to an “auction house with a cashier’s check from his credit union, purchased the truck, signed the title directly over to the City, and drove the truck to work for future use. [He] also immediately delivered the truck’s title to the City’s Director of Finance, who then added the truck to the City’s insurance policy.” Plaintiff also testified that he later left his position with the City “without having been reimbursed.” The City argued that the substance of his promissory estoppel and unjust enrichment “claims actually constituted claims of tortious negligence” and thus, it had immunity under the GTLA. The court held that the City could not avail itself of that immunity here. The City did not offer anything “to explain how the substance of” the unjust enrichment claim actually constituted a negligence claim. It also largely failed to explain this as to the promissory estoppel “claim, asserting only that plaintiff, when alleging promissory estoppel in his complaint, used the phrase ‘as a direct and proximate result,’ which is language typically associated with a negligence claim. But” it failed to show (and the court failed to see) “how the mere use of such language, alone, would somehow transform” the claim into a negligence claim, “particularly in light of the other language used throughout the complaint.” The court also held that, at minimum, plaintiff’s proffered evidence was sufficient to show a genuine issue of material fact existed “as to whether [he] reasonably relied on a promise of reimbursement from the Mayor in purchasing the 2008 truck for the City’s use.” Likewise, it failed to see how his “proofs were insufficient to create a genuine issue of material fact regarding whether the City was unjustly enriched by its retention of the 2008 truck” he purchased.

Involuntary mental-health treatment; “Person requiring treatment” under MCL 330.1401(1)(c); MCL 330.1465; “Necessary treatment”; “Mental illness”; MCL 330.1400(g); Lack of understanding of the need for treatment; Substantial risk of significant harm; “Substantial” or “significant”

Agreeing that petitioner failed to establish by clear and convincing evidence that respondent was a “person requiring treatment” under MCL 330.1401(1)(c), the court reversed the probate court’s order requiring her to undergo involuntary mental-health treatment. She moved “to Michigan to join an unnamed spiritual or religious group.” While driving, respondent “began to experience fear because of her phobias of bridges and water.” She went to an ER “and voluntarily sought treatment because her mania, reduced sleep, and phobias were interfering with her ability to drive.” She was committed “to combined hospitalization and assisted outpatient treatment[.]” Respondent argued “that petitioner failed to establish by clear and convincing evidence that she lacked an understanding of the need for treatment and that she presented a substantial risk of significant harm.” She did not dispute that Dr. R (a board-certified psychiatrist and her treating doctor) provided a competent clinical opinion. Instead, she argued that Dr. R “did not explain why the recommended treatment was necessary to prevent a relapse.” The court disagreed. The record indicated “that respondent went to the hospital because her mania, reduced sleep, and phobias were interfering with her ability to drive. [Dr. R] testified that he had been respondent’s treating doctor for over a week, and respondent continued to refuse the treatment necessary to address these symptoms. From these facts, the probate court determined that respondent’s symptoms had increased and that her current medications were not sufficient; thus, the recommended treatment was necessary.” Respondent argued “that she clearly understood the need for treatment, but she disagreed with the recommended treatment.” The court held that there “was clear and convincing evidence to support the probate court’s finding that [her] mental illness impaired her judgment such that she failed to understand her need for the necessary treatment and was unwilling to participate in that treatment.” But it noted that she “had no history of violence or altercations with others, and did not indicate inclinations toward self-harm. Further, there was no evidence that respondent’s noncompliance with the recommended medical treatment would result in decompensation of her mental illness to the extent that there would be an increased risk of respondent developing harmful tendencies (e.g., drug abuse or suicidal thoughts or actions) or that there was a risk that [she] would develop additional harmful symptoms of her disorder.” The only potential harm that Dr. R “described was the probability that respondent could be taken advantage of by a spiritual group.” The court noted that “MCL 330.1465 requires that a finding that an individual is a ‘person requiring treatment’ must be established by clear and convincing evidence. Petitioner failed to establish by clear and convincing evidence that respondent presented a substantial risk of significant harm to herself or others.” Thus, the probate court abused its discretion by involuntarily committing her under MCL 330.1401(1)(c).

Refund request; Sourcing of wholesale electricity sales; Distinguishing PM One, Ltd v Department of Treasury; Abandonment & waiver of the issue of whether a Tariff governing transactions constituted a contract; “Any purchaser” (MCL 206.665(1)(a)); “Purchase”; Distinguishing Uniloy Milacron USA, Inc v Department of Treasury; Applicability of Lockheed Martin Corp v Hegar (TX); The Commerce Clause (US Const, art I, § 8, cl 3); The fairness requirement; The internal & external consistency tests; Tax Tribunal (TT); Midcontinent Independent System Operator (MISO)

The court affirmed the trial court’s order granting respondent summary disposition under MCR 2.116(C)(10) “and denying petitioner’s refund request for tax years 2013 through 2016.” The court noted that petitioner “generates electricity and sells it wholesale to” a regional transmission organization, MISO, “that coordinates and controls the transmission of electricity in multiple states, including Michigan.” The transactions between them “are governed by a Tariff. Under the Tariff, petitioner is a Market Participant, and MISO is the Energy Market Counterparty[.]” Petitioner sought to amend its tax returns and obtain a partial refund. It first argued that the TT “erred by concluding that [its] wholesale electricity sales were properly sourced to Michigan.” The court disagreed. It concluded that the TT “correctly determined that petitioner’s transactions with MISO constitute sales under MCL 206.609(4) and that, ‘[b]ecause title is transferred to MISO, the sale is to MISO.’” The court found that it was “petitioner’s receipt of consideration that is pertinent under the statutory definition of ‘sale.’ The statute does not require an inquiry into the ultimate source of the funds used to pay petitioner.” While petitioner cited PM One, it was distinguishable and inapplicable to this case. Petitioner asserted that the TT “ignored the language in MCL 206.665(1)(a)[,]” which defines “any purchaser.” It also suggested “that the federally-mandated transfer of title to MISO is a mere condition of the sale that . . . must be disregarded for tax purposes.” The court found no merit in this argument, concluding that the TT “did not ignore the statutory language at issue.” Petitioner cited Uniloy. But that case was also distinguishable. It “does not alter the conclusion that petitioner’s wholesale electricity sales should be sourced to Michigan.” Petitioner also cited Lockheed Martin. “Given what the Texas court itself described as the ‘unique circumstances’ of that case, Lockheed Martin is not instructive in” this case. There was no analogous situation here. Petitioner “pointed to no evidence of an identifiable wholesale purchaser of petitioner’s electricity following delivery to MISO. After petitioner’s electricity is injected into the grid, it cannot be differentiated from electricity injected by other generators. Again, MISO is a contractual counterparty in the transactions with petitioner.” Finally, the court disagreed “that the sourcing to Michigan of all of petitioner’s wholesale electricity sales violates the Commerce Clause[.]”

Procedural due process; Notice & service of process; MCR 3.920(D)(3)(b); MCL 712A.19b(2)(c); MCR 3.977(C)(1); MCL 712A.12; MCR 3.920(B)(2)(b) & (B)(4)(a); Alternate service; MCR 3.920(B)(4)(b); MCL 712A.13; Effect of failing to challenge one of the cited statutory grounds for termination; Child’s best interests; Findings of fact & conclusion of law; MCR .977(I)(1)

The court held that respondent-mother’s procedural due process rights were not violated. Further, the trial court made the required findings of fact and conclusions of law as to the child’s (KM) best interests, and the record evidence supported those findings. It also noted that her failure to challenge one of the statutory grounds for termination relied upon by the trial court precluded appellate relief on that issue. Thus, it affirmed the termination order. She asserted “that she did not attend—and was therefore unable to meaningfully participate in—the termination hearing because she received inadequate notice and corresponding service of process of that hearing[.]” But the court concluded it was “readily apparent that respondent was provided written notice of the new date of the termination hearing within the time frames required by statute and court rule.” It also noted that when the trial “court commented on respondent’s absence at the start of the termination hearing, [her] counsel informed [it] that he had spoken to [her] that morning and that respondent ‘knew about the [termination] hearing’ that afternoon. [She] also called her counsel midway through the termination hearing, at which point counsel again confirmed with the [trial] court that respondent knew of the hearing that day, as he had previously told her that she was required to personally appear in court for the termination hearing on that date.” Thus, the court saw “no error in the trial court’s conclusion that respondent was properly notified of the” termination hearing. As to KM’s best interests, many of the trial court’s findings in its written termination order reiterated what it had “announced at the termination hearing.” But it also mentioned several other relevant considerations, including (1) the lack of any real parent-child bond; “(2) that as KM got older, he consistently expressed that he did not want to enter the visiting room during parenting times with respondent;” (3) that he was closely bonded to his foster parents; and (4) that they wished to adopt him. The court further noted that there was “a significant amount of testimony . . . that respondent failed to participate in or benefit from her case service plan, and alcohol abuse, parenting skills, stable housing, and mental health all remained issues for” her.