Summary disposition under MCR 2.116(C)(7); Applicable statutes of limitations; LLC member oppression; MCL 450.4515(1)(e); Breach of fiduciary duty; MCL 600.5805(2); Unjust enrichment; Fraud; MCL 600.5813; Accrual; Fraudulent-concealment exception; MCL 600.5855; Duty to disclose; MCL 450.4409(1)(c); Summary disposition under MCR 2.116(C)(10); Silent fraud; Accounting under MCL 450.4503(5)

The court held that plaintiff-trustee’s claims for LLC member oppression, breach of fiduciary duty, and unjust enrichment were time-barred, that its fraud claim was timely but failed on the merits, and that it was not entitled to an accounting of a separate entity’s financial affairs. Plaintiff served as successor trustee of two trusts that became minority members of defendant-LLC (RCM II). RCM II loaned substantially all of its funds (including funds received from the trusts) to another Rose family business, ERC, which invested in other family entities in which defendant-manager (Warren) or his family, but not the trusts, had interests. Plaintiff later sued Warren and RCM II. On appeal, the court concluded that MCL 450.4515(1)(e)’s two-to-three-year limitations period governed both the member-oppression and unjust-enrichment claims because the latter arose from Warren’s allegedly self-interested actions as RCM II’s manager. The fiduciary-duty claim carried a three-year period under MCL 600.5805(2), while the fraud claim was governed by MCL 600.5813’s six-year period. Because the claims accrued when RCM II was formed in 12/16, the first three claims were untimely, but the trial court erred by finding the fraud claim time-barred. The fraudulent-concealment exception in MCL 600.5855 did not save the untimely claims. Plaintiff failed to establish that Warren affirmatively concealed information, and MCL 450.4409(1)(c) did not create a fiduciary duty requiring an LLC manager to disclose self-interested transactions. The fraud claim failed under MCR 2.116(C)(10) because there was no evidence Warren suppressed a material fact he had a duty to disclose. Finally, MCL 450.4503(5) did not entitle RCM II’s members to an accounting of ERC’s financial affairs merely because Warren managed one entity and served as president of the other. Affirmed.

Ineffective assistance of counsel; Failure to make use of certain evidence; Factual predicate; Overcoming the presumption that counsel performed effectively; Failure to call additional witnesses; People v Wade

Rejecting defendant’s claims that his trial counsel was unconstitutionally ineffective for failing to make use of certain evidence and to call additional witnesses at trial, the court affirmed his resisting and obstructing a police officer convictions. The evidence concerned “an ‘attack and injury’ that defendant claims he suffered on the night of the events at issue in” the case (9/30/23). He offered two documents. The first was a police report about a complaint he made a few days after those events. The second was “an ‘After Visit Summary’ reflecting” his 10/3/23 ER visit for a head injury, which included “a listed diagnosis of ‘[c]oncussion with loss of consciousness of 30 minutes or less, initial encounter.’” He asserted that trial counsel was ineffective for not using them to mount a defense “‘that he lacked intent and was not criminally responsible for his actions[.]’” But he offered nothing to support his contention that the documents “would have provided a colorable basis for requesting a criminal responsibility exam, let alone one that would have inured in favor of any defense on his part. In fact,” he did not identify what defense he believed such an exam would have supported. He also did not offer any meaningful support, legally or factually, for his argument that the documents would have warranted a jury instruction on intent. As to prejudice, he “offered nothing more than the conclusory assertion that a jury likely would have acquitted him had it only known of this alleged assault on him and his concussion.” He also failed to carry his burden as to his claim for failure to call additional witnesses. He noted that other people were present and witnessed the events at issue, but he made no effort to identify them, and he did not provide “affidavits or any other offer of proof that [they] would have testified in his favor.” To the extent his claim comprised “any suggestion that counsel inadequately investigated these witnesses, that suggestion is likewise wholly unsupported and undeveloped.”

Personal protection insurance (PIP) benefits; MCL 500.3112; Policy-limit exhaustion; Good-faith payment & discharge; Written notice of another claimant; Insurer’s burden on affirmative defense; Phase One Rehab, LLC v Allstate Prop & Cas Ins Co

The court held that defendant-insurer was not entitled to summary disposition based on exhaustion of its $250,000 PIP medical-benefits limit because the evidence showed that it received written notice of plaintiff-healthcare provider’s claim before it paid out, or even finally agreed to distribute, the remaining policy benefits. The insured, nonparty-W, was injured in a motor vehicle collision and received treatment and services from multiple providers. After approximately $181,000 in PIP benefits remained, defendant participated in a 4/24 global facilitation with W and several providers, but no agreement was reached. Plaintiff later submitted a claim for home-health services, which defendant received on 5/23/24. Under MCL 500.3112, an insurer’s good-faith payment of PIP benefits discharges its liability to the extent of the payments unless it has been notified in writing of another person’s claim. On appeal, the court explained that the statute functions as an affirmative defense and places the burden on the insurer to support it. Defendant contended that it effectively exhausted its limits by extending the remaining benefits at the April facilitation. But its evidence included no resulting facilitation agreements, releases, or dismissals. Instead, a 5/23/24 email stated that the participants had “reached an impasse,” and later emails showed that additional providers were added to the proposed distribution after defendant received plaintiff’s claim. Defendant’s counsel further stated that it could not “finalize settlements and exhaust the policy limits” until all parties approved the distribution. The payment ledger likewise showed that no additional payments were made until 7/10/24. Thus, defendant’s proofs did not establish exhaustion before written notice of plaintiff’s claim and “if anything, they demonstrate the opposite.” Reversed and remanded.

Personal protection insurance (PIP) benefits; MCL 500.3112; Policy-limit exhaustion; Good-faith payment & discharge; Written notice of another claimant; Insurer’s burden on affirmative defense; Phase One Rehab, LLC v Allstate Prop & Cas Ins Co

The court held that defendant-insurer was not entitled to summary disposition based on exhaustion of its $250,000 PIP medical-benefits limit because the evidence showed that it received written notice of plaintiff-healthcare provider’s claim before it paid out, or even finally agreed to distribute, the remaining policy benefits. The insured, nonparty-W, was injured in a motor vehicle collision and received treatment and services from multiple providers. After approximately $181,000 in PIP benefits remained, defendant participated in a 4/24 global facilitation with W and several providers, but no agreement was reached. Plaintiff later submitted a claim for home-health services, which defendant received on 5/23/24. Under MCL 500.3112, an insurer’s good-faith payment of PIP benefits discharges its liability to the extent of the payments unless it has been notified in writing of another person’s claim. On appeal, the court explained that the statute functions as an affirmative defense and places the burden on the insurer to support it. Defendant contended that it effectively exhausted its limits by extending the remaining benefits at the April facilitation. But its evidence included no resulting facilitation agreements, releases, or dismissals. Instead, a 5/23/24 email stated that the participants had “reached an impasse,” and later emails showed that additional providers were added to the proposed distribution after defendant received plaintiff’s claim. Defendant’s counsel further stated that it could not “finalize settlements and exhaust the policy limits” until all parties approved the distribution. The payment ledger likewise showed that no additional payments were made until 7/10/24. Thus, defendant’s proofs did not establish exhaustion before written notice of plaintiff’s claim and “if anything, they demonstrate the opposite.” Reversed and remanded.

Summary disposition under MCR 2.116(C)(7); Applicable statutes of limitations; LLC member oppression; MCL 450.4515(1)(e); Breach of fiduciary duty; MCL 600.5805(2); Unjust enrichment; Fraud; MCL 600.5813; Accrual; Fraudulent-concealment exception; MCL 600.5855; Duty to disclose; MCL 450.4409(1)(c); Summary disposition under MCR 2.116(C)(10); Silent fraud; Accounting under MCL 450.4503(5)

The court held that plaintiff-trustee’s claims for LLC member oppression, breach of fiduciary duty, and unjust enrichment were time-barred, that its fraud claim was timely but failed on the merits, and that it was not entitled to an accounting of a separate entity’s financial affairs. Plaintiff served as successor trustee of two trusts that became minority members of defendant-LLC (RCM II). RCM II loaned substantially all of its funds (including funds received from the trusts) to another Rose family business, ERC, which invested in other family entities in which defendant-manager (Warren) or his family, but not the trusts, had interests. Plaintiff later sued Warren and RCM II. On appeal, the court concluded that MCL 450.4515(1)(e)’s two-to-three-year limitations period governed both the member-oppression and unjust-enrichment claims because the latter arose from Warren’s allegedly self-interested actions as RCM II’s manager. The fiduciary-duty claim carried a three-year period under MCL 600.5805(2), while the fraud claim was governed by MCL 600.5813’s six-year period. Because the claims accrued when RCM II was formed in 12/16, the first three claims were untimely, but the trial court erred by finding the fraud claim time-barred. The fraudulent-concealment exception in MCL 600.5855 did not save the untimely claims. Plaintiff failed to establish that Warren affirmatively concealed information, and MCL 450.4409(1)(c) did not create a fiduciary duty requiring an LLC manager to disclose self-interested transactions. The fraud claim failed under MCR 2.116(C)(10) because there was no evidence Warren suppressed a material fact he had a duty to disclose. Finally, MCL 450.4503(5) did not entitle RCM II’s members to an accounting of ERC’s financial affairs merely because Warren managed one entity and served as president of the other. Affirmed.

Reasonable reunification efforts requirement; Aggravated circumstances; MCL 712A.19a(2)(a); MCL 722.638(1) & (2); A parent required to register under the Sex Offenders Registration Act (SORA); MCL 712A.19a(2)(d); Children’s best interests; In re Simpson; Relative placement consideration; In re CJM

The court held that the trial court did not commit reversible error in concluding that reasonable reunification efforts were excused under MCL 712A.19a(2)(d), as respondent-father had been ordered to register as a sex offender due to a prior CSC III conviction. It also found no clear error in the trial court’s findings as to the children’s (KK and AK) best interests. Thus, it affirmed the termination order. The case began after respondent’s “then-girlfriend’s two-year-old child, JT, suffered life-threatening injuries while in his mother’s and respondent’s care.” KK and AK were respondent’s children with his ex-wife. They lived with her, and she had sole legal and primary physical custody, although they “would occasionally visit or stay the night with respondent.” The DHHS sought “jurisdiction over KK and AK and termination of respondent’s parental rights at initial disposition” after it substantiated “several instances of domestic violence against” their mother. The trial court initially found that reasonable reunification efforts were excused due to the aggravated circumstances of “the ‘serious physical abuse’ that JT had suffered[.]” It later recognized that because “JT was neither subject to DHHS’s petition in this case nor KK’s or AK’s sibling,” MCL 722.638(1)(a)(iii) did not apply. But it found that error harmless given respondent’s sex offender status. He did not dispute his CSC III conviction, the SORA registration order, or “that this circumstance existed at the time the [trial] court made its initial determination that reasonable efforts were not required.” He took issue with the fact that the trial court did not expressly find that reasonable efforts were excused under this provision until approximately two years after it had first erroneously “reached that conclusion under MCL 712A.19a(2)(a)[.]” But the trial “court made clear that reasonable efforts were not required under MCL 712A.19a(2)(d) at the initial-dispositional hearing” before terminating his “rights, as it was required to do.” As to his children’s best interests, it found his “continued involvement in violent crimes and substance use, his mistreatment of and unsafe behavior around children with whom he had contact, and his role in” JT’s serious physical abuse, “‘substantially outweigh[ed]’” the relative placement. The record supported its conclusion.