Quiet title; Enforcement of arbitration award; American Arbitration Association (AAA) Rule 33; Gordon Sel-Way, Inc v Spence Bros, Inc; Arbitrator authority; AAA Rule 35; TSP Servs, Inc v National-Std, LLC; Judicial review of arbitration for legal error; Detroit Auto Inter-Ins Exch v Gavin; Delivery of deed; Resh v Fox; Lady Bird deed

The court held that the arbitrator did not exceed his authority under the parties’ agreement and the AAA Commercial Rules, and that no material legal error appeared on the face of the arbitration award invalidating the Lady Bird deeds and quieting title in the trust. After the settlors’ deaths, a beneficiary dispute arose over four recorded Lady Bird deeds that purported to convey parcels held in a revocable trust to respondent and other grantees, including deeds that were later altered and re-recorded after the settlor’s death to list the trust or the settlor as trustee as grantor. The probate court enforced the arbitration decision required by the trust instrument and entered a judgment quieting title in the trust based on the arbitrator’s determination that the deeds were invalid. On appeal, the court held that the parties’ attorneys executed a written agreement waiving oral testimony and submitting the matter on briefs and exhibits, and AAA Rule 33 expressly permits the parties to “agree to waive oral hearing,” so the arbitrator acted within his discretion to control and expedite proceedings. It rejected respondent’s arguments that cancellation of a later hearing and closure of the record exceeded arbitral authority, explaining the AAA Rules permit the arbitrator to determine admissibility and completeness of the record and that courts may not probe an arbitrator’s “mental process” or reweigh evidence. The court further held respondent’s substantive attacks impermissibly sought review of factual findings, and that the award identified at least one independent, legally proper basis for invalidity, lack of delivery, because delivery “of a deed is essential to pass title” and the arbitrator found the settlors lacked intent and the deeds were not validly delivered, leaving title in the trust. Affirmed.

Speedy trial; Barker v Wingo factors; Length of the delay; Reason for the delay; Assertion of the right; Prejudice; Sufficiency of the evidence for a CSC I conviction under MCL 750.520b(1)(f); “Personal injury”; Prosecutorial misconduct; Officer’s testimony as to his prior contact with defendant; Expert testimony; Bolstering or vouching; Ineffective assistance of counsel; Failure to make a futile objection; Flight instruction; Consecutive sentences; MCL 750.520b(3)

Finding no errors warranting reversal, the court affirmed defendant’s CSC I convictions and sentences, as a second-offense habitual offender, to consecutive terms of 262 to 480 months (21¾ to 40 years) for each count. He argued, among other things, “that his constitutional right to a speedy trial was violated, and he was prejudiced by the five-year delay from the time of his arrest to the time that trial began.” The first Barker factor was undisputed. Trial commenced nearly five years after he was arrested and arraigned. As to the second Barker factor, the court held that examining “each period of the 55½-month delay, 20 months are attributable to defendant, 24½ months are attributable to the COVID-19 pandemic, and 11 months are neutral and thus assigned minimal weight.” When considered together, there was “no evidence that the prosecution is substantially to blame for the delays in this case.” As to the third Barker factor, it weighed in defendant’s favor. In 6/21, he “moved for dismissal alleging speedy-trial and 180-day violations. The trial court acknowledged that the 180-day deadline had passed but denied the motion because jury trials were on hold during the COVID-19 pandemic and the matter was scheduled for trial.” On 7/7/23, he “again moved for dismissal alleging speedy-trial and 180-day violations. The trial court found that most of the adjournments were during the COVID-19 pandemic and there were further delays because of defendant’s transfer to and conviction in Alabama. [His] motion was denied.” As to the final factor, the court held that because “the delay between defendant’s arrest and trial was more than 18 months, prejudice” was presumed. It concluded that while “there was a 55½-month delay, there is no evidence that the prosecution is substantially to blame for the delays in this case. The prosecution also overcame the presumption of prejudice by showing that defendant’s defense was not hindered by the delay. Balancing all the relevant factors,” he did not establish “a violation of his right to a speedy trial.” Defendant next asserted “that there was insufficient evidence to prove beyond a reasonable doubt that” the victim (M M-H) suffered a personal injury as required for his convictions under MCL 750.520b(1)(f). The court held that “there was sufficient evidence to allow a rational jury to conclude beyond a reasonable doubt that M M-H experienced mental anguish.” The evidence of her “mental anguish was sufficient to establish the personal injury requirement[.]” 

Prosecutorial misconduct; Closing argument statements; People v Bahoda; Effect of the jury instructions; People v Stanaway; Plain error review

The court held that the prosecutor’s challenged closing argument “remarks, viewed in context, did not constitute plain error affecting defendant’s substantial rights and did not deprive [him] of a fair trial.” He was convicted of CSC IV. He argued “that the prosecutor made prejudicial remarks by referring to defendant’s conduct as ‘weird.’” The court determined that, read in context, the challenged “statements described defendant’s conduct, not his character. The prosecutor used the word ‘weird’ to characterize defendant’s actions in asking a minor to breakfast, not to denigrate [him] personally. Viewed as a whole, the remarks focused on specific conduct relevant to the charged offense. The prosecutor similarly described defendant’s conduct during the massage as ‘not normal behavior’ and ‘bizarre’ while arguing that the touching was for a sexual purpose[.]” The court noted that to establish CSC IV, “the prosecutor was required to argue that the touching was for a sexual purpose. . . . In doing so, the prosecutor permissibly described defendant’s conduct and argued reasonable inferences from the evidence. The remarks did not amount to personal attacks or improper character assassination and therefore did not deprive defendant of a fair trial.” Defendant also asserted “that the prosecutor improperly expressed a personal opinion by stating, ‘I don’t take teenagers to breakfast. It’s weird.’” The court concluded this remark “did not imply special knowledge or assert defendant’s guilt. Rather, it was rhetorical commentary offered to support an inference drawn from the evidence. Accordingly, the statement did not constitute prosecutorial error.” Lastly, defendant argued that the prosecutor improperly bolstered the victim's (LP) “testimony by referencing its consistency with statements LP made to” a police officer. The court found that “the challenged remarks were based on evidence presented at trial.” Further, even assuming “the prosecutor alluded to ‘some special knowledge’ concerning LP’s truthfulness, . . . or otherwise mischaracterized LP’s testimony regarding consistency, any prejudice was cured by the trial court’s instructions.” Affirmed.

Sufficiency of the evidence for a second-degree child abuse conviction; MCL 750.136b(3)(c); Cruelty element; Effect of an acquittal on an assault by strangulation charge (MCL 750.84(2)); Lack of physical injury

Holding that there was sufficient evidence to support defendant’s second-degree child abuse conviction, the court affirmed. It concluded that, viewed “in the light most favorable to the prosecution, the evidence that defendant struck the victim, choked her, destroyed household property in anger, and threatened to turn the house into a crime scene was sufficient for a rational jury to conclude that [he] committed a cruel act toward the victim that was not reasonable discipline.” While there were inconsistencies in the victim’s testimony “and her credibility was challenged at trial, issues of credibility and the weight of the evidence are for the jury to decide, and all reasonable inferences must be drawn in support of the verdict.” The court noted that a “witness’s testimony is not rendered wholly unbelievable merely because it is inconsistent or questionable in some respects.” It rejected defendant’s argument that there was insufficient evidence of the cruelty element because the jury acquitted him of an assault by strangulation charge and the victim did not sustain physical injury. That charge “requires proof that the defendant ‘imped[ed] normal breathing or circulation of the blood.’” However, physical harm is not required for a conviction of second-degree child abuse under MCL 750.136b(3)(c). “The jury’s acquittal on the strangulation charge reflects only that it was not persuaded beyond a reasonable doubt that defendant impeded the victim’s breathing or circulation, not that [he] did not choke the victim or act cruelly toward her.”

Motion to quash bindover, resisting or obstructing

Motion to quash bindover; Resisting or obstructing; MCL 750.81d(1); Failure to exit the vehicle & to remove face covering; Provision of false identification

The court held that “the prosecution presented evidence satisfying the elements of resisting or obstructing under the probable-cause standard with respect to defendant’s failure to exit the vehicle and his failure to identify himself[.]” Thus, it affirmed the district court’s bindover decision. He was charged with assaulting, resisting, or obstructing a police officer. He unsuccessfully moved to quash the bindover. The court found as “an initial matter, the district court did not abuse its discretion when it declined to bind defendant over on the theory that he resisted or obstructed by failing to remove his face covering when asked.” It noted that according “to the deputy’s testimony, he asked defendant to remove his face covering after defendant was handcuffed and detained in the deputy’s cruiser. The district court found that, assuming [he] was handcuffed behind his back, he could not have complied with the request to remove his face covering.” The court saw “no error in that finding. The prosecution did not present evidence establishing whether defendant’s hands were cuffed behind his back or in front of his person.” As to his “failure to exit the vehicle upon command,” defendant did not comply for one to two minutes. The court held that the “district court erred as a matter of law by concluding that this did not provide a basis for bindover because [he] ultimately voluntarily complied.” It was immaterial that he “eventually complied because ‘the duration of the resistance . . . is of no import, as resistance can occur in even the briefest of moments.’” As to providing false identification, the court agreed “with defendant that the district court erred by basing its probable-cause finding on an assumption that the deputy’s command to defendant to identify himself was lawful.” However, the record supported “the conclusion that the deputy’s command was lawful. Based on the syringes found on the driver, the driver’s connection to the shoplifting incident, defendant’s frantic covering of his arms and face, the lighter found on [his] person, and [his] erratic behavior, [the deputy] had a particularized and objective basis to suspect that defendant was engaged in the possession or use of narcotics.” Thus, he “had reasonable suspicion that defendant was engaged in criminal activity and could lawfully command [him] to identify himself.” The court held that the “district court did not abuse its discretion in binding [him] over for trial on the basis of his failure to comply with that lawful command.”

Sufficiency of the evidence for convictions of conspiring to possess with intent to distribute & to distribute controlled substances & of unlawful distribution of controlled substances; Failure to renew a motion for judgment of acquittal, FedRCrimP 29(a); Jury instruction on “deliberate ignorance”; Exclusion of evidence; Offer of proof; The rule of completeness; FRE 106; Plain error review; Hearsay; Use of Rule 1006 summary charts; Lay witness opinion testimony; FRE 701; Alleged district court bias or hostility; 28 USC §§ 455(a) & (b)(1); Denial of a motion for a new trial

[This appeal was from the ED-MI.] The court held that the district court did not err by instructing the jury on “deliberate ignorance” where there was adequate evidence that defendant-Sherman (a doctor) “deliberately ignored the fact that there was no legitimate medical purpose for the prescriptions he wrote.” It also held that there was sufficient evidence to support his convictions of conspiring to possess with intent to distribute and distributing controlled substances and of unlawful distribution of controlled substances. Further, it rejected his evidentiary challenges and claims of district court bias, and upheld the denial of his motion for a new trial. As to his sufficiency of the evidence challenge, the “jury heard expert testimony that Sherman’s conduct in examining patients, prescribing narcotics, and issuing refills deviated from usual, legitimate medical practice. Jurors saw the transparently fake MRI reports [his] alleged co-conspirators provided him to substantiate his diagnoses. They observed his consistent choice to prescribe the drugs most popular on the street at the highest available strength. Jurors heard that [he] never checked the results of the urine screens he ordered to see if patients were abusing other drugs. And the jury knew that [he] agreed to work in a clinic that would pay him for patient work only if he prescribed a sufficiently strong narcotic. This evidence, viewed in the light most favorable to the government, allowed the jury to conclude that Sherman knew that his prescriptions were not authorized.” Next, the court upheld the decision to give the jury a deliberate ignorance instruction. The evidence permitted “the inference that Sherman issued prescriptions with actual knowledge that those prescriptions were unauthorized. And, alternatively, the evidence permits the inference that [he] merely looked the other way[.]” As to the district court’s exclusion of pages of Sherman’s notebook, his offer of proof was not “adequate to allow this court to determine whether the specific evidence being offered was relevant, not duplicative, and whether its exclusion was harmless.” He also failed to show “‘a reasonable probability’ that the failure to admit” a portion of a recording “as substantive evidence ‘affected the outcome of the trial.’” As to his judicial bias claim, the court reviewed five statements or actions that Sherman alleged showed bias or hostility by the district court and held that none of them did. Finally, it found no error in the denial of a new trial where no “‘substantial legal error’” occurred. Affirmed.

No-Fault Act (NFA); Personal protection insurance (PIP) benefits; Effective selection of limited coverage; MCL 500.3107c(1); Rebuttable presumption under MCL 500.3107c(3); Distinguishing Bronson Healthcare Group, Inc v Esurance Prop & Cas Ins Group; Coverage limit; Whether the NFA prohibits claiming PIP medical benefits after policy coverage was exhausted; MCL 500.3114(5)

Addressing an issue of first impression as to whether a motorcyclist “or their treatment provider, once their [PIP] expenses exhaust and exceed a $250,000 coverage limit in the policy of a higher-priority insurer, may move down the priority list and claim additional benefits from a lower-priority insurer that provides unlimited coverage[,]” the court held that the answer is yes. It agreed with the trial court that defendant-Esurance’s policy was capped at $250,000 because, although the named insured (T) did not make an “effective selection” under MCL 500.3107c(1), Esurance was entitled to the rebuttable presumption under MCL 500.3107c(3) and the record showed the $250,000 limit had been exhausted. Under the NFA, “a motorcyclist injured in a motor vehicle accident must claim [PIP] medical benefits from insurers in a specified order of priority, and the insurers of the owner, registrant, or operator of the motor vehicle involved in the accident are higher in priority than the motor vehicle insurers of the owner, registrant, or operator of the motorcycle.” Plaintiff first argued that T “failed to make an ‘effective selection’ of coverage limited to $250,000 under MCL 500.3107c(1) and MCL 500.3107e.” The court concluded that as “Esurance presented no other evidence besides ‘merely offer[ing] a document with an electronically printed name and date,’ it did not demonstrate that the coverage selection was effective.” It found that given “that there was no effective selection under MCL 500.3107c(1),” the issue was whether Esurance was “entitled to the presumption under MCL 500.3107c(3).” It was. The court found that “unlike the plaintiff in Bronson, plaintiff was not prejudiced.” It noted that “Esurance established that its policy limit was $250,000.” And plaintiff did “not dispute that Esurance paid benefits to the policy limit.” Thus, the “trial court was correct to enter summary disposition in favor of Esurance.” Finally, the court turned “to whether plaintiff may also recover PIP benefits from the unlimited policy issued by [defendant-]USAA, the lower-priority insurer.” Plaintiff argued that the trial court erred by ruling that the NFA “prohibits it from claiming PIP medical benefits from USAA after Esurance’s policy coverage was exhausted.” The court found that “MCL 500.3114(5) and the other provisions of the [NFA] allow plaintiff to recover PIP payments from USAA after Esurance’s policy coverage has been exhausted. The trial court [thus] erred by granting summary disposition to USAA.” Affirmed in part, reversed in part, and remanded.

PIP benefits; “Effective selection”; MCL 500.3107c; Distinguishing Bronson Health Care Group, Inc v Esurance Prop & Cas Ins Co; “Is”; MCL 500.3107e; Choice-of-coverage form; Uniform Electronic Transactions Act (UETA); “Electronic signature” (MCL 450.832); MCL 450.839(1); Allowable expenses under MCL 500.3107(1)(a); Michigan Department of Insurance & Financial Services (DIFS)

In this first-party case for PIP benefits, the court affirmed the trial court order granting summary disposition to defendant-Esurance. The case arose from a 5/8/22 motor vehicle crash in which plaintiffs-medical care providers’ assignor and defendant’s insured, nonparty-H, was injured. Plaintiffs first argued that there were factual disputes about whether defendant issued the renewal no-fault policy to H “before she signed an updated choice-of-coverage form.” They requested that the court “‘defer’ to DIFS’s interpretation of MCL 500.3107c.” Plaintiffs’ argument was analogous to that raised by the plaintiff in Bronson. “Here, notwithstanding that MCL 500.3107c(1) requires that, as it relates to all policies issued or renewed after [7/1/20], the insured make a selection of the limits of their PIP coverage, the statute does not specially provide that an updated form be completed at each subsequent renewal of the policy. Further, although the statute contains several criteria regarding the choice-of-coverage form, the plain language of the criteria listed in MCL 500.3107c(2)(a) through (d) does not require that a new and updated choice-of-coverage form be provided by the named insured at each subsequent renewal.” The court was “not permitted to insert into the statute a requirement that the Legislature itself did not include.” It concluded that the trial “court did not err by granting summary disposition under MCR 2.116(C)(10), as material factual disputes did not remain on this issue.” Plaintiffs also argued that H’s “selection was not effective under MCL 500.3107c(1) because defendant did not obtain proof of [H’s] Medicaid enrollment when her no-fault policy was renewed.” Plaintiffs pointed to DIFS Bulletin 2020-33-INS, effective 7/28/20, and DIFS Bulletin 2023-17-INS, effective 6/22/23. The court found that there was “nothing in the language of the statute mandating that insurers secure proof of Medicaid enrollment either at the time of an individual’s application or at a subsequent renewal.” The court declined “plaintiffs’ invitation to read into MCL 500.3107c” such a requirement. Thus, the trial court also did not err by granting summary disposition on this issue. Plaintiffs’ next challenge to the effectiveness of H’s “selection of limited PIP medical coverage relates to [H’s] signature on the choice-of-coverage form.” They specifically contended that “factual disputes existed regarding whether [H’s] signature on the choice-of-coverage form was valid under MCL 500.3107c and MCL 500.3107e.” At issue was whether H “made her selection under MCL 500.3107c by electronically marking the form and providing an electronic signature as provided in the UETA.” While plaintiffs relied heavily on Bronson, that case was “both procedurally and factually distinguishable.” Unlike the plaintiff in Bronson, “plaintiffs here did not assert that defendant had not produced evidence to establish that the signature of the insured was valid under MCL 500.3107e.” 

Jury trial waiver; MCR 2.508(B)(1); Anzaldua v Band; Effect of transfer on jury waiver; MCR 2.227(E)(3); Dawley v Hall; Relevance; MRE 401; Morales v State Farm Mut Auto Ins Co

The court held that plaintiff waived her right to a civil jury trial by failing to pay the jury fee when she first demanded a jury, and that the later stipulated venue transfer did not make that waiver “ineffective.” Plaintiff, proceeding in propria persona, sued a propane supplier after a district-court matter in which the supplier agreed to a final prepaid delivery and the parties agreed the supplier could retrieve its tank, but plaintiff later blocked retrieval and pursued circuit-court claims for breach of contract, emotional distress, and ownership of the tank while the supplier counterclaimed for conversion and injunctive relief. The trial court dismissed plaintiff’s claims for no cause of action, ordered plaintiff to allow removal of the propane tank, and enjoined plaintiff from contacting defendant or its employees. On appeal, the court held that “both the timely filing of a written jury demand and payment of the jury fee are necessary to preserve the right to a jury trial,” and that plaintiff “failed to timely pay the jury fee when she made her demand for a jury trial,” so she “waived her right to a jury trial.” The court rejected plaintiff’s reliance on the transfer rule, explaining that MCR 2.227 “applies only to transfers of venue based on the original court’s lack of subject-matter jurisdiction” and the rule “does not apply to transfers by stipulation of the parties,” so the stipulated transfer “did not trigger the rule that makes prior waivers ineffective.” The court also upheld exclusion of plaintiff’s proposed exhibits, stating that the proffered materials about pyramid schemes and cybercrime “failed the test for relevance under MRE 401” because “nothing in the documents” pertained to any “fact of consequence” in the propane contract dispute and those topics were “wholly unrelated to the contractual dispute at issue.” Affirmed.

Quiet title; Enforcement of arbitration award; American Arbitration Association (AAA) Rule 33; Gordon Sel-Way, Inc v Spence Bros, Inc; Arbitrator authority; AAA Rule 35; TSP Servs, Inc v National-Std, LLC; Judicial review of arbitration for legal error; Detroit Auto Inter-Ins Exch v Gavin; Delivery of deed; Resh v Fox; Lady Bird deed

The court held that the arbitrator did not exceed his authority under the parties’ agreement and the AAA Commercial Rules, and that no material legal error appeared on the face of the arbitration award invalidating the Lady Bird deeds and quieting title in the trust. After the settlors’ deaths, a beneficiary dispute arose over four recorded Lady Bird deeds that purported to convey parcels held in a revocable trust to respondent and other grantees, including deeds that were later altered and re-recorded after the settlor’s death to list the trust or the settlor as trustee as grantor. The probate court enforced the arbitration decision required by the trust instrument and entered a judgment quieting title in the trust based on the arbitrator’s determination that the deeds were invalid. On appeal, the court held that the parties’ attorneys executed a written agreement waiving oral testimony and submitting the matter on briefs and exhibits, and AAA Rule 33 expressly permits the parties to “agree to waive oral hearing,” so the arbitrator acted within his discretion to control and expedite proceedings. It rejected respondent’s arguments that cancellation of a later hearing and closure of the record exceeded arbitral authority, explaining the AAA Rules permit the arbitrator to determine admissibility and completeness of the record and that courts may not probe an arbitrator’s “mental process” or reweigh evidence. The court further held respondent’s substantive attacks impermissibly sought review of factual findings, and that the award identified at least one independent, legally proper basis for invalidity, lack of delivery, because delivery “of a deed is essential to pass title” and the arbitrator found the settlors lacked intent and the deeds were not validly delivered, leaving title in the trust. Affirmed.