Divorce; Child custody; Parenting time; Attorney fees in a domestic relations case; Smith v Khouri; Need-based attorney fees; MCR 3.206(D)(2); MCR 3.206(C)(2)(a); Wood v Detroit Auto Inter-Ins Exch; Myland v Myland; Michigan Rules of Professional Conduct (MRPC) 1.5(a); Preclusion; The law of the case doctrine; Collateral estoppel & res judicata; Passage of time; Colen v Colen

The court held that the trial court did not abuse its discretion by denying plaintiff-ex-husband’s motion for need-based attorney fees or an evidentiary hearing. In this divorce action, the parties filed multiple motions regarding child custody and parenting time, as well as attorney fees. The trial court ultimately denied plaintiff’s motion for need-based attorney fees. On appeal, the court first noted that plaintiff’s motion was not precluded by the law of the case doctrine, collateral estoppel, or res judicata. And “[c]onsidering the unusual facts and circumstances of this case, including that plaintiff’s earlier request for need-based fees and expenses had never been explicitly addressed, and that the trial court delayed a decision on plaintiff’s motion for disqualification for over two years, . . . consideration of plaintiff’s motion was also not precluded by the passage of time.” But the court rejected plaintiff’s argument that the trial court erred by failing to conduct an evidentiary hearing on his motion for need-based attorney fees and expenses. “We agree with the trial court that the existing record was sufficient to allow the court to decide the issue of attorney fees and expenses under MCR 3.206(C)(2)(a), and therefore conclude that the court did not abuse its discretion by declining to conduct yet another evidentiary hearing. Plaintiff is not entitled to attorney fees just because this case has been a lengthy and drawn out ordeal.” Moreover, under “the facts of this case, the trial court was not required to adhere to the Smith framework.” Finally, plaintiff was not denied the opportunity to present argument or evidence, as he “had numerous opportunities to present evidence and arguments on this issue.” Affirmed.

The statute of repose for the construction industry; MCL 600.5839(1); The 6-year repose period under MCL 600.5839(1)(a); The 10-year repose period under MCL 600.5839(1)(b); Abbott v John E. Green Co; Comparing Citizens Ins Co v Scholz; “Improvement”; Pendzsu v Beazer E, Inc; Fraudulent concealment; Equitable estoppel

The court held that defendant was entitled to protection under MCL 600.5839(1), the statute of repose for the construction industry. Plaintiffs sued for injuries they sustained in an explosion they claimed was caused by defendant’s negligence when installing a sewer line. The trial court denied defendant’s motion for summary disposition, finding it was not entitled to protection under MCL 600.5839(1) as plaintiffs’ injuries were not caused by the sewer line, but rather by the damage (gas leak) done to the line. On appeal, defendant argued that: (1) plaintiffs’ allegations did not amount to gross negligence, so the six-year repose period under MCL 600.5839(1)(a) applied, and (2) even if the allegations did amount to gross negligence, the 10-year repose period under MCL 600.5839(1)(b) would apply. The court agreed, noting that in prior opinions it “has held that an ‘improvement’ for purposes of the statute is a ‘permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.’” The sewer line here “enhanced the value and utility of the properties it served and was intended to be permanent. In light of Abbott and Citizens Ins Co, both the physical object and the labor expended in its construction constitute the ‘improvement’ under MCL 600.5839(1).” As such, “any action ‘arising out of the defective or unsafe condition of’ the work performed to install the sewer line had to be brought within either six or 10 years of 2008. This suit, brought in 2023, falls well outside the statutory period of repose.” The court rejected plaintiffs’ contention that the caselaw interpreting the statute was distinguishable, noting that “a statute of repose operates independently of notice, aiming solely to provide finality by barring claims regardless of when the injury is discovered.” Finally, the court rejected the gas company’s fraudulent concealment and equitable estoppel arguments as meritless. Reversed and remanded.

Search & seizure; Warrantless search; The automobile exception to the warrant requirement; Pennsylvania v Labron; Probable cause; Whether the odor of marijuana alone constitutes sufficient probable cause to support a search under the automobile exception; Whether the Michigan Regulation & Taxation of Marihuana Act (MRTMA) superseded the holding in People v Kazmierczak; Terry stop; Terry v Ohio; The plain-view doctrine; People v Champion; Reasonable suspicion

Holding that the smell of marijuana alone no longer constitutes probable cause to support a search for contraband, as was the case in Kazmierczak, the court affirmed the trial court’s order granting defendant’s motion to suppress. He was charged with CCW, FIP, and felony-firearm after an investigatory search based on the smell of marijuana ultimately revealed a handgun. The trial court granted defendant’s motion to suppress the introduction of the gun as evidence, finding: (1) defendant was seized, (3) the smell of marijuana alone did not establish probable cause, and (3) the plain-view exception to the warrant requirement did not apply. The Court of Appeals affirmed, finding “the rule from Kazmierczak was superseded by the MRTMA because, given that the MRTMA generally decriminalized the adult use of marijuana, the smell of marijuana is no longer necessarily indicative of unlawful activity.” On leave, the court concluded that “Kazmierczak’s rule that the smell of marijuana, standing alone, is sufficient to support a finding of probable cause under the automobile exception to the warrant requirement is no longer viable in light of the enactment of the MRTMA. As applied in the present case, because the alleged basis for the officers’ search of the automobile was the smell of marijuana standing alone, the search was not constitutional under the automobile exception to the warrant requirement.” In addition, “even assuming that the police officers possessed reasonable suspicion to detain and investigate defendant based on the smell of marijuana,” the trial court did not err in holding “that the gun was discovered during a search based on the smell of burnt marijuana, not because it was seized while in plain view. A warrantless search must be based on probable cause and the smell of marijuana is insufficient to support probable cause.” 

Dissenting, Justice Zahra stated his belief that the “lower courts erred by failing to consider whether the handgun could have been discovered in plain view during a Terry stop. [Those] errors leave open the possibility that the smell of marijuana was not the only valid evidence supporting probable cause.” As such, he found “the facts of this case, as presented, do not allow us to revisit Kazmierczak.” He would vacate the lower courts’ judgments “and remand to the trial court for a new ruling on the motion to suppress under a correct understanding of the law.”

Violation of a sequestration order; People v Meconi; Unfair prejudice; MRE 403; Sufficiency of the evidence for AWIM, CCW, FIP, & discharging a firearm from a vehicle convictions; Identity

The court held that the trial court’s admission of a witness’s testimony after violation of a sequestration order “did not thwart the purpose of the sequestration order.” Further, the trial court did not err in refusing to exclude the testimony under MRE 403. Finally, the court held that the evidence of defendant-Burton’s identity was sufficient to support his convictions. He was convicted of AWIM, CCW, FIP, and discharging a firearm from a vehicle. He argued that a witness (J) violated the sequestration order by telling his girlfriend (witness-R) “about his testimony before she testified.” Defendant contended that R’s testimony “was ‘highly suspect and unreliable’ because she initially denied that [J] had told her about his testimony and admitted the truth only when confronted with the fact that her conversation with [J] had been recorded.” But the court noted that matters of witness credibility “are for the jury to determine.” It further noted that “the trial court offered counsel the opportunity to question [R] regarding the sequestration violation, but they declined. Further, [R] did not conform her testimony to [J’s] testimony, which conflicted with her testimony in many respects. Most notably, although [J] denied that he knew who the shooter was, [R] identified Burton as the shooter.” As to defendant’s MRE 403 argument, R’s “testimony was not merely marginally probative. Rather, it was highly probative of Burton’s identity as the shooter, which was the ultimate issue at trial.” As to the sufficiency of the evidence for his convictions, multiple witnesses testified that he “was involved in an altercation with [J] before he left the party.” One witness saw him “get into his vehicle alone and saw the vehicle turn around and head back toward the house. Numerous witnesses heard gunshots as Burton’s vehicle drove by the house. The window of the car was down, and [R] saw Burton ‘clear as day’ before she felt hot and saw blood on her chest. In addition, a few of the witnesses gave statements to the police, identifying Burton as the shooter by his nickname.” Affirmed.

Sentencing; Armed career criminal designation; The Armed Career Criminal Act (ACCA); Whether defendant’s Michigan convictions could be a predicate “serious drug offense” for an ACCA enhancement; Brown v United States; The “time-of-offense rule”

[This appeal was from the WD-MI.] In a successive opinion after holding this case in abeyance pending the Supreme Court’s decision in Brown, the court held that under Brown, “because Michigan’s definition of cocaine matched the definition contained in the federal drug schedules at the time of his offenses,” defendant-Wilkes’s Michigan cocaine convictions counted “as ‘serious drug offenses’ under the ACCA.” Wilkes pled guilty in this case to FIP. He challenged his sentence enhancement under the ACCA, arguing that his prior Michigan cocaine-related convictions could not constitute “serious drug offenses” where Michigan’s law includes [¹²³ I]ioflupane in its definition of cocaine but federal law does not. Under Brown, “‘[a] state drug offense counts as an ACCA predicate only if the State’s definition of the drug in question “matche[s]” the definition under federal law.’” As a result, “[i]f the state law criminalizes more conduct than the federal law does, then the state conviction cannot count as a sentencing-enhancement predicate.” However, when Wilkes was convicted of his offenses, both the Michigan and federal laws included [¹²³ I]ioflupane in their definition of cocaine. By the time he was sentenced in this case, it had been removed from the federal law. Wilkes, like the defendant in Brown, argued “that a sentencing court should apply the ACCA ‘as it reads’ at the time of federal sentencing.” But in Brown, the Supreme Court held that “a ‘state drug conviction counts as an ACCA predicate if it involved a drug on the federal schedules at the time of that offense.’” Affirmed.

Divorce; Child custody; Parenting time; Attorney fees in a domestic relations case; Smith v Khouri; Need-based attorney fees; MCR 3.206(D)(2); MCR 3.206(C)(2)(a); Wood v Detroit Auto Inter-Ins Exch; Myland v Myland; Michigan Rules of Professional Conduct (MRPC) 1.5(a); Preclusion; The law of the case doctrine; Collateral estoppel & res judicata; Passage of time; Colen v Colen

The court held that the trial court did not abuse its discretion by denying plaintiff-ex-husband’s motion for need-based attorney fees or an evidentiary hearing. In this divorce action, the parties filed multiple motions regarding child custody and parenting time, as well as attorney fees. The trial court ultimately denied plaintiff’s motion for need-based attorney fees. On appeal, the court first noted that plaintiff’s motion was not precluded by the law of the case doctrine, collateral estoppel, or res judicata. And “[c]onsidering the unusual facts and circumstances of this case, including that plaintiff’s earlier request for need-based fees and expenses had never been explicitly addressed, and that the trial court delayed a decision on plaintiff’s motion for disqualification for over two years, . . . consideration of plaintiff’s motion was also not precluded by the passage of time.” But the court rejected plaintiff’s argument that the trial court erred by failing to conduct an evidentiary hearing on his motion for need-based attorney fees and expenses. “We agree with the trial court that the existing record was sufficient to allow the court to decide the issue of attorney fees and expenses under MCR 3.206(C)(2)(a), and therefore conclude that the court did not abuse its discretion by declining to conduct yet another evidentiary hearing. Plaintiff is not entitled to attorney fees just because this case has been a lengthy and drawn out ordeal.” Moreover, under “the facts of this case, the trial court was not required to adhere to the Smith framework.” Finally, plaintiff was not denied the opportunity to present argument or evidence, as he “had numerous opportunities to present evidence and arguments on this issue.” Affirmed.

Application of the privacy exemption to Michigan’s Freedom of Information Act (FOIA); Public interest; Office of Institutional Equity (OIE)

In this dispute over the application of the privacy exemption to FOIA, the court held that defendant “bore the burden of showing that the privacy exemption applies” but had not satisfied that burden. “Plaintiff sought unredacted notifications so it could further its investigation and ‘request the investigative records relating to only those employees who are the subject of the notifications.’” Defendant argued “the Court of Claims erred in determining that the employee names were not exempt from disclosure under MCL 15.243(1)(a) and concluding that defendant violated FOIA by redacting the names in its response to plaintiff’s FOIA requests.” The court noted that defendant “redacted the names of the employees in the OIE notifications under MCL 15.243(1)(a) (‘the privacy exemption’), which provides that a public body may exempt from disclosure ‘[i]nformation of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.’ This exemption has two prongs: (1) the information must be ‘of a personal nature[,]’ (2) which, if disclosed publicly, ‘would constitute a clearly unwarranted invasion of an individual’s privacy[.]’” The parties did “not dispute whether the information was of a personal nature; they challenge only the second prong on appeal—whether public disclosure would be an unwarranted invasion of the employees’ privacy. In determining whether public disclosure is an unwarranted invasion of privacy, ‘courts must balance the public interest in disclosure against the interest the Legislature intended the exemption to protect.’” The only “relevant public interest in disclosure to be weighed in this balance is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government.” The court held that “defendant’s arguments do not squarely address plaintiff’s purpose for seeking the notifications.” The court found the “fact that defendant did not make findings of misconduct against its employees does not necessarily diminish the public’s interest in understanding defendant’s internal operations. In fact, it furthers the purpose of plaintiff’s request: to determine whether defendant was properly investigating employees who were reported multiple times for sexual misconduct.” The court rejected “defendant’s straw man argument that, because the notifications themselves, regardless of their contents, demonstrate that defendant was complying with the State School Aid Act, the redactions did not hinder plaintiff’s purpose.” It was also persuaded by plaintiff’s claim “that it will be able to differentiate any cases that were ultimately dismissed on unrelated grounds by further investigation into the names provided.” Defendant contended “that the notifications ‘do not offer any substantive insight into the manner in which [it] handles RVSM [Relationship Violence and Sexual Misconduct] and Title IX proceedings[,]’ noting that ‘[p]laintiff is free to request information about [defendant’s] policies for RVSM and Title IX proceedings, or even reports rendered in actual cases.’” As plaintiff explained “on appeal, however, that is precisely what it was trying to do. Defendant provides no argument on appeal as to why the names sought, in the context of the actual purpose underlying plaintiff’s request, did not serve the public interest.” Affirmed.

Medical malpractice; Statute of limitations; MCL 600.5805(8); Wrongful death savings provision; MCL 600.5852; The notice-tolling provision; MCL 600.5856(c); Waltz v Wyse; Hardy v Maxheimer; Omelenchuk v Warren; Notice of intent (NOI)

The court concluded in this medical malpractice wrongful death case that because Waltz is binding, it lacked the authority to consider plaintiff-estate’s “argument regarding legislative intent.” As for plaintiff’s claim as to Hardy and Omelenchuk, Waltz explicitly overruled Omelenchuk, and Hardy predated Waltz, meaning the court must follow Waltz. Thus, it affirmed summary disposition under MCR 2.116(C)(7) for defendants because plaintiff’s claim was untimely. Plaintiff’s claim accrued when decedent allegedly received negligent medical care on 7/16/20. “Had plaintiff provided its [NOI] within two years of this date, the limitations period for bringing the claim under MCL 600.5805(8) would have been tolled, but plaintiff did not do so. Thus, when considered solely in the context of the original statute of limitations, plaintiff’s claim expired on” 7/16/22, and its 8/13/23 complaint was untimely. But “the savings provision provided plaintiff with additional time in which to file suit.” Plaintiff’s letters of authority were issued on 6/7/21. Thus, under MCL 600.5852, plaintiff had until 6/7/23 “to file suit, even though the original statute of limitations had already expired.” As plaintiff did not do so, the “complaint was still untimely even when the savings provision is considered.” Plaintiff argued that the NOI it provided on 2/10/23 “tolled the period in which it could file suit under the savings provision. According to plaintiff, the notice tolling provision applies to the savings provision, rendering its suit timely.” This claim failed because, in Waltz, “our Supreme Court expressly rejected the application of the tolling provision in MCL 600.5856 to the savings provision in MCL 600.5852.” Plaintiff acknowledged that but asserted “Waltz’s holding is contrary to the Legislature’s intent. In its effort to side step Waltz’s holding, plaintiff spins two earlier cases from our Supreme Court to support its claim that the tolling provision in MCL 600.5856(c) applies to the savings provision:” Hardy and Omelenchuk. It argued “that Hardy remains good law because it was not expressly overruled by Waltz, and urges this Court to ‘apply the unambiguous language’ of Omelenchuk despite it having been overruled by Waltz.” The court noted that in Waltz, the Supreme Court “reasoned that MCL 600.5856 applies to a ‘period of limitations[,]’ and MCL 600.5852 ‘clearly provides that it is an exception to the limitation period,’ not a limitation period itself.” Thus, the court held that “while MCL 600.5856 may serve to toll the two-year statute of limitations for the underlying medical malpractice claim, it does not toll the two-year exception to the statute of limitations under MCL 600.5852.”

The statute of repose for the construction industry; MCL 600.5839(1); The 6-year repose period under MCL 600.5839(1)(a); The 10-year repose period under MCL 600.5839(1)(b); Abbott v John E. Green Co; Comparing Citizens Ins Co v Scholz; “Improvement”; Pendzsu v Beazer E, Inc; Fraudulent concealment; Equitable estoppel

The court held that defendant was entitled to protection under MCL 600.5839(1), the statute of repose for the construction industry. Plaintiffs sued for injuries they sustained in an explosion they claimed was caused by defendant’s negligence when installing a sewer line. The trial court denied defendant’s motion for summary disposition, finding it was not entitled to protection under MCL 600.5839(1) as plaintiffs’ injuries were not caused by the sewer line, but rather by the damage (gas leak) done to the line. On appeal, defendant argued that: (1) plaintiffs’ allegations did not amount to gross negligence, so the six-year repose period under MCL 600.5839(1)(a) applied, and (2) even if the allegations did amount to gross negligence, the 10-year repose period under MCL 600.5839(1)(b) would apply. The court agreed, noting that in prior opinions it “has held that an ‘improvement’ for purposes of the statute is a ‘permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.’” The sewer line here “enhanced the value and utility of the properties it served and was intended to be permanent. In light of Abbott and Citizens Ins Co, both the physical object and the labor expended in its construction constitute the ‘improvement’ under MCL 600.5839(1).” As such, “any action ‘arising out of the defective or unsafe condition of’ the work performed to install the sewer line had to be brought within either six or 10 years of 2008. This suit, brought in 2023, falls well outside the statutory period of repose.” The court rejected plaintiffs’ contention that the caselaw interpreting the statute was distinguishable, noting that “a statute of repose operates independently of notice, aiming solely to provide finality by barring claims regardless of when the injury is discovered.” Finally, the court rejected the gas company’s fraudulent concealment and equitable estoppel arguments as meritless. Reversed and remanded.

Termination under §§ 19b(3)(c)(i) & (j); Child’s best interests; Reasonable reunification efforts

Concluding that: (1) §§ (c)(i) and (j) existed, (2) the trial court properly found that termination of respondent-mother’s parental rights was in BE’s best interest, and (3) her assertion that the DHHS failed to make reasonable efforts toward reunification as to KE lacked merit, the court affirmed. As to BE, the court held that because ‘“the totality of the evidence amply support[ed]’ a finding that respondent had not achieved ‘any meaningful change’ in the conditions that led to the trial court assuming jurisdiction over BE,” the trial court did not clearly err by holding “that clear and convincing evidence supported the termination of respondent’s parental rights under” § (c)(i). It also held the trial court “did not clearly err by finding that clear and convincing evidence supported the termination of” her parental rights under § (j). The evidence showed that she “admitted her substance abuse impaired her ability to safely parent BE, that she nonetheless continued to abuse substances and failed to participate in her treatment plan designed to address that abuse until [11/23], and that she missed a significant number of drug screens that her service plan required her to take. Considering this evidence and respondent’s history of sobriety for brief periods, followed by relapses, we see no clear error in the trial court’s conclusion that there existed a reasonable likelihood of harm to BE if he was returned to” her care. Also, the trial court terminated her parental rights to BE under § (i). “Respondent’s parental rights to BE’s older half-siblings, AE and EE, were terminated after respondent failed to comply with guardianship agreements that had been reached regarding those children.” However, in 7/24, the court reversed the order terminating her “parental rights to AE and EE on the basis that clear and convincing evidence did not show that respondent failed to substantially comply with a support order for a period of 2 years or more.” The record showed that she “failed to substantially comply with a support order for only 22 or 23 months rather than 24 months as the statute required.” Because the court “reversed the order terminating respondent’s parental rights to AE and EE, the trial court’s order terminating respondent’s parental rights to BE is erroneous to the extent that the court relied on” § (i) in doing so. Reversal was “not required, however, because only one statutory ground must be established to terminate parental rights.” Also, on “this record, the trial court did not clearly err when it found that termination of respondent’s parental rights was in BE’s best interests. Despite being provided a multitude of services, respondent was not in a position to safely and consistently parent her son. Continuing a parent-child relationship would have been detrimental to BE’s physical, educational, and emotional well-being.” The trial “court properly weighed the appropriate factors when considering BE’s best interests, and a preponderance of the evidence supported terminating respondent’s parental rights.” Finally, the court found that after “reviewing the record, it is readily apparent that the DHHS made reasonable efforts to reunify respondent with KE and that termination of respondent’s parental rights resulted from her failure to participate in and benefit from services rather than from the adequacy of the DHHS’s efforts.”