42 USC § 1983 action by a pretrial detainee for deliberate indifference; A “constitutional harm”; Whether a reasonable trier of fact could find that plaintiff was at “a substantial risk of harm from being placed in a cell” with two violent inmates; Westmoreland v Butler Cnty; Whether the action was “intentional”; Brawner v Scott Cnty; Causation; Whether plaintiff adequately alleged a claim under Monell v Department of Soc Servs

In an order on a petition for a rehearing en banc, because a majority of the judges in regular active service voted for rehearing en banc, the court vacated the previous opinion and judgment (see eJournal # 84878 in the 1/7/26 edition), stayed the mandate, and restored the case on the docket as a pending appeal.

42 USC § 1983 action by a pretrial detainee for deliberate indifference; A “constitutional harm”; Whether a reasonable trier of fact could find that plaintiff was at “a substantial risk of harm from being placed in a cell” with two violent inmates; Westmoreland v Butler Cnty; Whether the action was “intentional”; Brawner v Scott Cnty; Causation; Whether plaintiff adequately alleged a claim under Monell v Department of Soc Servs

In an order on a petition for a rehearing en banc, because a majority of the judges in regular active service voted for rehearing en banc, the court vacated the previous opinion and judgment (see eJournal # 84878 in the 1/7/26 edition), stayed the mandate, and restored the case on the docket as a pending appeal.

Speedy trial; Barker v Wingo; COVID-19 delay attribution; People v Smith; Assertion of speedy-trial right; People v Cain; Prejudice presumption & rebuttal; People v Williams

The court held that defendant’s constitutional speedy-trial right was not violated under the Barker factors, so dismissal of the municipal-ordinance charges was improper. Defendant was arrested in 7/20 during a protest and first charged with disorderly conduct, but the district court closed for COVID-19 before his motion to dismiss for failure to provide discovery was heard, and the City dismissed that case in 2/21. The City filed new ordinance violation charges in 5/21. After arraignment, the register of actions reflected that defendant requested adjournments and a 2022 jury trial. His case was reassigned multiple times before a final pretrial was set for 4/23. About a week before that hearing, defendant moved to dismiss for lack of a speedy trial. The district court granted dismissal. On appeal, the circuit court reversed and reinstated the charges. The court denied his delayed application for leave to appeal but the Supreme Court remanded for the court’s review as on leave granted. Applying Barker, the court agreed the delay (about 33 months) triggered presumed prejudice, but concluded the City rebutted prejudice. The court treated COVID-19 “emergency public-health measures” and resulting backlog as nonattributable to the prosecution. It “‘assigned only minimal weight’” to court-administration reassignment delays. It found defendant contributed by requesting adjournments and, importantly, did not “‘make a formal demand’” for a speedy trial until 4/23. Finally, he showed no personal prejudice or prejudice to the defense. He identified only generalized anxiety, no lost witnesses, and no missing evidence, and body-camera footage remained available. Affirmed.

Right to a speedy trial; Barker v Wingo; Length of the delay; Reason for the delay; Assertion of right to a speedy trial; People v Willaims; Prejudice

Having weighed the four Barker factors, the court concluded that defendant-Simpson’s right to a speedy trial was not violated. Thus, it affirmed “the circuit court order reversing the district court’s order granting Simpson’s motion to dismiss for violation of his right to a speedy trial.” The parties agreed “that the length of the delay was approximately 33 months.” Thus, in this prosecution for misdemeanor ordinance violations, plaintiff-City bore “the burden of overcoming the rebuttable presumption of prejudice, and” the court had to consider the other Barker factors. The court noted that “a substantial portion of the delay was attributable to the COVID-19 pandemic and its impact on court administrations. That portion of the delay seems to total approximately 18 months” (7/20 until 1/22). In that “period, approximately three months of delay were caused by the dismissal of the original charge and then the issuance of new charges. Another three months were attributed to a defense motion for an adjournment. That means that 15 months during that 18-month period are not accountable to either the prosecution or the defense. The remaining period of delay, after” 1/22, was not insubstantial. It accounted “for approximately another 15 months of delay. Approximately three months of that” period was “attributable to the defense. That leaves approximately 12 months of delay, which appear to be the result of congestion in the court and repeated judicial reassignments. That period” counted against the prosecution, but had “‘minimal weight.’ However, considering that it accounts for more than twice the period of delay that is attributed to the defense, on balance, this factor appears to favor neither the prosecution nor the defense.” Next, the court concluded that there was “no indication that Simpson asserted his right to a speedy trial until his [4/5/23], motion to dismiss.” Finally, the City “met its burden to prove that no prejudice was caused by the loss of witnesses.” And accepting that Simpson “suffered some minimal anxiety,” the court found that this, without more, was not sufficient to establish a violation.

Double jeopardy; Alleged successive prosecutions for the same offense; The Blockburger v United States “same elements” test; People v Nutt; Whether the prosecution impermissibly fragmented a single continuing offense; People v Beverly; Waiver; People v Powers; People v Cooper; Sentencing; Proportionality challenge to a within-guidelines sentence

While the court concluded that defendant did not waive his double jeopardy argument, it held that the record did not “establish a single continuing possession offense” and thus, it rejected his claim of successive prosecutions for the same offense. It also found that he failed to overcome the presumption that his within-guidelines sentence was proportionate. He was convicted of FIP and felony-firearm, and sentenced as a fourth-offense habitual offender to 3 to 20 years for FIP and a consecutive 2 years for felony-firearm. He pled guilty in 2018 to the same charges with an offense date of 6/9/16. During the plea proceedings, he acknowledged that a 4/8/16 photo showed him holding a Glock handgun with a visible serial number. “He denied possessing the firearm recovered on [6/9/16], or knowing how it came to be in the kitchen drawer. In 2020, [he] was charged in the present case with open murder,” FIP, and felony-firearm. At trial, a witness testified that on 5/24/16, defendant left witness-E’s “apartment with a semiautomatic firearm visible on his person. Forensic testing revealed DNA samples from both defendant and [E] on the recovered Glock.” Defendant argued on appeal that “the prosecution failed to prove a break in possession between [4/8/16], and [5/25/16], thereby rendering the present conviction a successive prosecution for the same offense.” The court disagreed. Uninterrupted control over the firearm is required to show a single continuing possession offense. The court held that the record did “not establish uninterrupted possession.” Rather, the jury could have reasonably concluded “that defendant possessed the firearm on or about [5/25/16]. He subsequently dispossessed it, and then possessed it again on [6/9/16].” The gun was observed in his “possession in early April. It was recovered from [E’s] residence in early June. Defendant denied possessing it on [6/9/16], and disclaimed knowledge of how it arrived in [E’s] apartment. The trial evidence established that [E] also had access to and control over the weapon. These circumstances support a reasonable inference that defendant’s possession on or about [5/25/16], was not part of a single, uninterrupted episode extending through” 6/9/16. Because he did not show “his April possession and his May possession constituted a single, uninterrupted offense, his successive-prosecution claim fails.” Affirmed.

Sufficiency of the evidence for a perjury committed in courts conviction (MCL 750.422); M Crim JI 14.1; Ineffective assistance of counsel; Failure to admit the transcript of the forfeiture hearing at which defendant perjured herself; Failure to object to allegedly impermissible evidence; Abandoned other acts evidence claim

The court held that “the direct and circumstantial evidence, and reasonable inferences drawn therefrom, were sufficient to support defendant’s perjury conviction for her testimony during” a civil forfeiture hearing. And while it agreed that her trial counsel performed deficiently by “failing to admit the transcript of defendant’s six-page testimony from the” hearing it concluded she did not establish prejudice. She was convicted of one count of perjury committed in a civil forfeiture hearing held to establish ownership of horses seized by Animal Control from her property. Her conviction was “for testifying that (1) she did not know Animal Control was on her property until she walked outside to talk to officers, and (2) she did not have a telephone or computer on the morning of the seizure.” She challenged whether there was sufficient evidence to show her statements were false. As to the first statement, while she asserted “she could not hear anything due to running a shower, fan, and heater,” a deputy heard other officers knocking on the door from “the back side of the house. Moreover, both Animal Control and Sheriff’s Department officers’ testimony and on-scene video showed that the knocking and the noises arising from the seizure was generally very loud. Within two minutes, defendant’s phone records show that she began making phone calls and sending texts over the next 24 minutes.” The court found that from those text messages, it was reasonable to infer she and her husband “were referring to the officers knocking. While [she] denied that she knew that [they] were from Animal Control during this period, [they] were in the process of loading the horses into the stock trailers. Therefore, it is reasonable to infer if defendant was aware of the officers’ presence in her yard because that is what she told her husband.” There was also sufficient evidence to support her conviction based on her second statement. “The evidence showed that the Sheriff’s Department officers, who assisted Animal Control in executing the search warrant, seized three cell phones and a computer tower. Further investigation showed that defendant used one of those phones to communicate with” multiple people while the search warrant was executed. As to the ineffective assistance issue, it only related to this latter basis for her conviction. Her other false statement was sufficient to sustain her conviction. Affirmed.

Divorce; Marital home; Donohue v Donohue; Interpretation of a deed; Judgment of divorce (JOD)

The court affirmed the trial court’s JOD dividing the parties’ marital estate, specifically the disposition of the marital home. Defendant-ex-wife first argued that the trial court erred by determining that plaintiff-ex-husband’s “parents held valid ownership interest in the” new residence. Defendant contended “that the evidence established that the parents’ contribution was a loan and that plaintiff misrepresented the nature of the transaction.” She also relied heavily on Donohue.“Because the trial court’s findings are supported by the record and are not clearly erroneous,” the court affirmed “the determination that plaintiff’s parents held a nonmarital ownership interest” not a loan. It found that while “defendant presented contrary testimony, conflicting evidence does not establish clear error, and we will not allow defendant to relitigate this matter on appeal.” Thus, the court held that the trial court did not err in finding plaintiff’s parents held a nonmarital ownership interest in the property. Defendant next argued “that, even if plaintiff’s parents held a valid ownership interest, the trial court abused its discretion by failing to award defendant 100% of the marital portion of the residence as a sanction for plaintiff’s alleged misconduct.” The trial court “explicitly rejected defendant’s allegations of fraud and deception. Absent such findings, defendant has not demonstrated that an equal division of the marital interest was inequitable. Because the trial court’s dispositional ruling was grounded in supported factual findings, we find no abuse of discretion.” Plaintiff argued on cross-appeal “that the trial court erred as a matter of law by concluding that his parents collectively owned 50% of the property and that he owned the remaining 50%.” The court held that nothing “in the deed expressed an intent to create three equal one-third interests or to allocate ownership based on contribution, as plaintiff suggests. Under Michigan law, plaintiff’s parents took one undivided share as tenants by the entirety, while plaintiff took a separate undivided share.” Thus, the trial court correctly concluded “that plaintiff’s parents together held a single 50% interest as tenants by the entirety, and that plaintiff held the remaining 50% interest, which constituted marital property subject to equitable division.”

Medical malpractice; Complaint filed before the expiration of the applicable notice period under MCL 600.2912b(1); Tyra v Organ Procurement Agency of MI; Burton v Reed City Hosp Corp; Whether defendants complied with MCR 2.112(L)(2)(a); Applicability of MCL 600.2912b(9) (an exception shortening the 182-day notice period); Applicability of MCL 600.2301; Personal representative (PR); Notice of intent (NOI)

The court held that because plaintiff-PR filed her medical malpractice “complaint one day before the notice period expired, [it] failed to commence an action or toll the statute of limitations.” Further, it concluded that defendants complied with MCR 2.112(L)(2)(a), that MCL 600.2912b(9) did not allow her to file the complaint early, and under Tyra, “MCL 600.2301 cannot be applied to cases such as this one.” Thus, the court affirmed the trial court’s dismissal of all claims against defendants-appellees (a doctor and a PLLC) with prejudice. The statute of limitations for the medical malpractice claims expired on 11/10/22, two years after the decedent’s shoulder surgery. Plaintiff mailed her NOI on 9/27/22, and “filed her complaint 182 days later[.]” The Michigan Supreme Court held in Tyra that “‘a medical malpractice action can only be commenced by filing a timely NOI and then filing a complaint and an affidavit of merit after the applicable notice period has expired, but before the period of limitations has expired.’” As a result, “when a plaintiff files a complaint before the expiration of the applicable notice period, the premature filing does not commence an action or toll the statute of limitations.” Plaintiff argued that the trial court erred here “because defendants did not comply with MCR 2.112(L)(2)(a).” While the court rejected defendants’ contention that the rule did not apply, it found that they complied with it, concluding that their “affidavits of noninvolvement were not an answer or motion.” Rather, they “challenged plaintiff’s compliance with the notice waiting period in the first answer or motion filed, which was their [8/23] motion to dismiss, filed ‘pursuant to MCR 2.119.’” The court also held that their 2/23 “response, merely denying liability, did not constitute written notice of an intent to waive the 182-day notice waiting period under MCL 600.2912b(9).” Finally, Tyra “held that MCL 600.2301 cannot save a plaintiff’s actions when they prematurely file a complaint before the 182-day notice period has expired and the statute of limitations period has run because there was never a pending action in such cases[.]” The court was bound by this ruling given that “Tyra has not been overruled or superseded[.]” And it found plaintiff’s attempt to distinguish this case unpersuasive.

Medical malpractice; Complaint filed before the expiration of the applicable notice period under MCL 600.2912b(1); Tyra v Organ Procurement Agency of MI; Burton v Reed City Hosp Corp; Whether defendants complied with MCR 2.112(L)(2)(a); Applicability of MCL 600.2912b(9) (an exception shortening the 182-day notice period); Applicability of MCL 600.2301; Personal representative (PR); Notice of intent (NOI)

The court held that because plaintiff-PR filed her medical malpractice “complaint one day before the notice period expired, [it] failed to commence an action or toll the statute of limitations.” Further, it concluded that defendants complied with MCR 2.112(L)(2)(a), that MCL 600.2912b(9) did not allow her to file the complaint early, and under Tyra, “MCL 600.2301 cannot be applied to cases such as this one.” Thus, the court affirmed the trial court’s dismissal of all claims against defendants-appellees (a doctor and a PLLC) with prejudice. The statute of limitations for the medical malpractice claims expired on 11/10/22, two years after the decedent’s shoulder surgery. Plaintiff mailed her NOI on 9/27/22, and “filed her complaint 182 days later[.]” The Michigan Supreme Court held in Tyra that “‘a medical malpractice action can only be commenced by filing a timely NOI and then filing a complaint and an affidavit of merit after the applicable notice period has expired, but before the period of limitations has expired.’” As a result, “when a plaintiff files a complaint before the expiration of the applicable notice period, the premature filing does not commence an action or toll the statute of limitations.” Plaintiff argued that the trial court erred here “because defendants did not comply with MCR 2.112(L)(2)(a).” While the court rejected defendants’ contention that the rule did not apply, it found that they complied with it, concluding that their “affidavits of noninvolvement were not an answer or motion.” Rather, they “challenged plaintiff’s compliance with the notice waiting period in the first answer or motion filed, which was their [8/23] motion to dismiss, filed ‘pursuant to MCR 2.119.’” The court also held that their 2/23 “response, merely denying liability, did not constitute written notice of an intent to waive the 182-day notice waiting period under MCL 600.2912b(9).” Finally, Tyra “held that MCL 600.2301 cannot save a plaintiff’s actions when they prematurely file a complaint before the 182-day notice period has expired and the statute of limitations period has run because there was never a pending action in such cases[.]” The court was bound by this ruling given that “Tyra has not been overruled or superseded[.]” And it found plaintiff’s attempt to distinguish this case unpersuasive.

Termination under §§ 19b(3)(c)(i) & (j); Distinguishing In re LaFrance & In re Richardson; Ineffective assistance; Reasonable reunification efforts; In re Frey; Forfeiture; Best interests; Permanency & stability; Guardianship vs termination; MCL 712A.19a

The court held that statutory grounds for termination were established under §§ (c)(i) and (j) and that termination was in the children’s best interests. It also found that reasonable reunification efforts were made and it rejected respondent-father’s ineffective assistance of counsel claim. The DHHS filed the case after newborn-JG2 tested positive for meth and respondent-mother admitted using meth on the day she went into labor and again after discharge. She was homeless, unemployed, on parole, and had extensive CPS history including prior terminations and guardianships. The children were initially placed with the father under a safety plan barring the mother from residing in the home and requiring supervised contact. But unannounced CPS visits raised serious concerns, including a “strong chemical odor,” covered windows, acetone in the home, refusal to permit full inspection, and the mother answering the door while alone with the children while the father slept, with the mother admitting ongoing meth use and refusing a screen. Over nearly two and a half years, the mother’s compliance with services remained inconsistent, she failed to complete a psychological evaluation, continued positive or refused drug screens, failed to secure stable housing or employment, and stopped participating in supervised parenting time. The father completed limited services, tested positive for meth, and resisted agency involvement. Further, he made statements suggesting “he might go to the judge’s house, and admitted that he had driven by the foster care placement home.” The court concluded his counsel’s actions reflected reasonable strategy and the father could not show a different outcome given the record. His reasonable-efforts claim was unpreserved because he did not timely object to services and, in any event, the DHHS offered services and he did not meaningfully participate, so no error was shown. As to the mother, the court held the adjudicative conditions continued more than 182 days and were unlikely to be rectified within a reasonable time. It emphasized her ongoing meth use with direct harm reflected by JG2’s positive toxicology at birth and persistent instability. As to the best-interests findings, it noted the children’s lengthy time in care, the lack of meaningful bond, respondents' lack of verified sobriety and stability, and the strong need for permanency and safety. Affirmed.