Identity theft; Personal identifying information; MCL 445.65(1)(b); Federal grant funds; Compensatory damages; Fraudulent conduct; Wright v Genesee Cnty; Special master; Lost salary; Lost profits; Lease damages; Substance Abuse & Mental Health Services Administration (SAMHSA); Medical assisted treatment (MAT)

The court held that the trial court properly granted plaintiffs partial summary disposition on their identity-theft claim and did not clearly err by awarding compensatory damages. Plaintiff-Goldsmith and her company partnered with defendants to apply for a federal SAMHSA grant because the company, a for-profit MAT services provider, needed a nonprofit partner. On appeal, the court first held that defendant-Coats violated MCL 445.65(1)(b) by using Goldsmith’s name and credentials while substituting Coats’s own e-mail address and telephone number in the application, which allowed Coats to control SAMHSA communications and obtain grant funds. The court emphasized that Coats admitted she used her own contact information because “she wanted to be the only person to receive notifications regarding the application” and “never intended” to show the award notice to plaintiffs. The court rejected defendants’ intent arguments because MCL 445.65(1)(b), unlike MCL 445.65(1)(a), does not require intent to defraud. The court also held that the damages award was supported by the record. Although the trial court called the award “expectancy damages,” the court clarified that the proper label was compensatory damages because the remedy for fraudulent conduct is to make the injured party whole. The court upheld $360,000 for Goldsmith’s lost project-director salary because she withdrew only after Coats’s conduct, and it deferred to the special master’s credibility finding that SAMHSA did not compel Coats to alter the grant budget. The court also upheld $16,000 in lease damages because testimony supported that plaintiffs obtained the Ann Arbor facility to advance the grant proposal. Affirmed.

Setoffs to the amount owed under a consent judgment; The common-law setoff rule; Tort principle that a plaintiff is entitled to only one recovery for an injury; Markley v Oak Health Care Investors of Coldwater, Inc; Distinction between tort & contract causes of action/remedies; Neibarger v Universal Coops, Inc; Corl v Huron Castings, Inc

The court held that the common-law rule of setoff did not apply here and that defendant had to show the language of the consent judgment (CJ) contract at issue entitled him to an offset. As the CJ had no such language, he was not entitled to any offsets. The case arose from “a series of loans and resulting promissory notes plaintiff made to defendant” and two others, nonparties-W and G (the debtors). After the debtors defaulted, plaintiff sued defendant for breach of contract, which resulted in the CJ. Plaintiff later served multiple writs of garnishment. Defendant filed objections to two of them. He asserted he was entitled to setoffs for, among other things, a payment plaintiff received from the malpractice insurance carrier for G on a malpractice claim; “criminal restitution payments plaintiff received from” G; and payments plaintiff received from W on the underlying promissory notes for the loans. The trial court concluded “that only the criminal restitution payments could be offset against the amount defendant owed under the” CJ. On appeal he focused “on the reasoning underlying the setoff rule that ‘a plaintiff is entitled to only one recovery for his injury.’” But the court noted “this rule concerns tort actions against joint tortfeasors, not breach-of-contract actions.” They are different causes of action and “the purposes of their respective remedies” are also different. The Michigan Supreme Court stated in Corl that it was reluctant to extend tort remedies to contract cases, particularly “where such an extension would be ‘in direct conflict with the fundamental precept that the remedy for breach of contract focuses on making the nonbreaching party whole.’ Such as is the case here.” The court added that there were “different ‘injuries’ (that is, different breaches) in this case.” Once the CJ was entered, “defendant’s obligations under the promissory notes were extinguished and replaced with his obligations under the” CJ. Plaintiff had “the right to be made whole under the promissory notes by” W, and also “a distinct right to be made whole under the [CJ] by defendant; accordingly, applying the common-law rule of setoff would undermine plaintiff’s rights under the” CJ. Affirmed.

Sentencing; OV 3 scoring; MCL 777.33(2)(b); Acquitted conduct; People v Beck; Res gestae; People v Stokes; Rational-jury approach; People v Brown; Factual causation; People v Laidler; Relief from judgment; MCR 6.508(D)

The court held that the trial court did not err by assigning 100 points for OV 3 because it relied on defendant’s role as the catalyst for the fatal home invasion, not acquitted conduct barred by Beck. Defendant was convicted of first-degree home invasion and felony-firearm for aiding and abetting a home invasion that led to a shooting in which a three-year-old child died, but he was acquitted of murder and assault-related charges. On appeal from the denial of relief from judgment, defendant argued that the trial court violated Beck by using acquitted conduct to score OV 3. The court first noted that OV 3 requires 100 points “if death results from the commission of a crime and homicide is not the sentencing offense,” and that the causal requirement is factual causation, meaning the death would not have occurred but for defendant’s criminal actions. The court then held that defendant failed to show reliance on acquitted conduct because the sentencing offense was first-degree home invasion, and the jury necessarily found that he aided and abetted the home invasion that resulted in the child’s death. The court emphasized that the trial court focused on defendant’s pre-offense conduct as the “catalyst” for the death, including that he “mobilized an angry, volatile young person” who had “a penchant for using guns” over missing shoes. The court further explained that sentencing courts may consider “the entire res gestae of an acquitted offense” and “the time, place, and manner” of the convicted offense, and that defendant’s phone call and participation in bringing the armed group together supported the OV 3 score. Affirmed.

Sentencing; Consideration of youth as a mitigating factor; People v Boykin; Miller v Alabama; People v Snow; Alleged de facto life sentence; Distinguishing People v Eads; Ineffective assistance of counsel; People v Trakhtenberg; Arguing the correct legal standard; Investigation & presentation of mitigating evidence; Failure to hire an expert

The court concluded the trial court adequately considered defendant’s youth at the time of the crimes as a mitigating factor in resentencing him, and that his 40 to 75-year sentences for first-degree murder were proportionate. It also rejected his ineffective assistance of counsel claims. He was 15 at the time of the crimes. He claimed that the trial court did not “follow Boykin because it failed to provide sufficient analysis on the record for its consideration of his youth under the Miller and Snow factors. But” the court noted that “Boykin imposed no such requirement on the trial court.” As long as the record showed it considered his “youth as a mitigating factor, the trial court satisfied its burden. At resentencing, [it] explicitly referenced [his] youth but reasoned that this did not outweigh the severity of the crime. It properly applied the principle of proportionality, by balancing defendant’s youth with the severity of the crime and his actions. Given the deliberate, premeditated nature of the offense and the fact that [he] shot two women a total of four times over a suspected fake $10 bill, the trial court’s ultimate imposition of 40 to 75 years’ imprisonment despite the mitigating nature of defendant’s young age at the time cannot be said to fall outside the range of reasonable and principled outcomes.” The court also disagreed that his sentence was “an impermissible de facto life sentence” and as a result, “cruel or unusual under Eads.” This case was factually distinguishable “because defendant here was convicted of first-degree murder, and, therefore, was given the statutory procedural safeguards under MCL 769.25 that the defendant in Eads lacked.” His resentencing fell under MCL 769.25(1)(b)(ii) and 769.25(9) imposes a maximum of “‘not less than 60 years and’” a minimum of “‘not less than 25 years or more than 40 years.’” Thus, his sentence was within the statutory range and presumed proportionate and constitutional. He offered no “argument on appeal that his case presents any unusual circumstances that render his presumptively proportionate sentence disproportionate, nor are any readily apparent from the record.” Finally, the court rejected his claims that defense counsel was ineffective for failing “to ‘argue the correct legal standard’ during resentencing,” not properly investigating his history and presenting it as mitigating evidence, and failing to hire an expert witness. Affirmed.

Ineffective assistance of counsel; Failure to investigate & present evidence of the victim’s prior assaultive criminal history; People v Anderson; Other acts evidence; MRE 404(b)(1); Relevance; People v Harris; Right to present a defense; Denial of defense counsel access to jail calls that were reviewed by a detective; MRE 403; Sufficiency of the evidence; Self-defense; Use of deadly force; MCL 780.972(1)(a)

The court held that defense counsel was not ineffective for failing to investigate and present evidence of the victim’s (S) prior assaultive criminal history. Further, defendant was not denied his right to present a defense because defense counsel was denied access to jail calls reviewed by a detective. The court also rejected his self-defense claim and concluded there was sufficient evidence to support his convictions. Thus, it affirmed his AWIM, CCW, and felony-firearm convictions. The case arose from his altercation with a co-worker, S. Defendant first argued that defense counsel was ineffective for failing “to investigate and introduce evidence of [S’s] assaultive criminal history, which would have supported defendant’s” self-defense claim. But given that there was “no indication that defendant was aware of [S’s] assaultive criminal history at the time of the incident, any evidence of such was irrelevant to defendant’s state of mind when he shot” S. Because the evidence would have been inadmissible, defense counsel was not ineffective for failing to present it. The court added that under the circumstances, it was unlikely the evidence would have changed the jury’s verdict. As to his right to present a defense claim, “considering the time it would take for the detective to compile the ‘random’ jail calls, and the time that it would take for defense counsel to review them,” the court concluded “the trial court did not err by determining that the minimally probative value of potentially impeaching the detective was substantially outweighed by precluding undue delay and wasting time.” As to his self-defense claim, he “testified that he was ‘scared for [his] life’ because he thought that [S] was going to reverse and strike defendant with his vehicle.” However, S “testified that he reversed ‘slow’ because defendant was trying to tell him something, and [S] could not hear him. [S] explained that he looked out his rear window to ensure he did not harm defendant while reversing because [S] was ‘not trying to hit [defendant] or anything.’ Four eyewitnesses also testified that they did not see [S] attempt to hit or run defendant over with his vehicle. Moreover, multiple eyewitnesses described the initial altercation as ‘verbal,’ which defendant escalated when he shot [S] multiple times[.]”

Right to present a defense; Evidence exclusion; Relevance; MRE 401 & 402; People v Unger; Custodial-kidnapping (MCL 750.350a(1)); People v McBride; Harmless error

Holding that the trial court did not abuse its discretion in excluding as irrelevant the custody order defendant sought to introduce, the court affirmed his custodial-kidnapping convictions. A default judgment entered in Berrien County awarded the children’s mother (D) sole custody of her two children with defendant. He later obtained a parenting-time order in Wayne County. When D was hospitalized, she asked defendant to watch the children at her home, and he agreed. But when she returned home, it was locked and no one was there. In a phone conversation, defendant told her “not to worry about the children’s whereabouts and that he was keeping them and getting his parenting time.” He kept them from her for several months. Eventually with police assistance the children were returned to her care. The Berrien County Prosecutor’s Office charged defendant with two counts of kidnapping–custodial interference. He unsuccessfully sought to admit the Wayne County order at trial. He argued that it was relevant to show “that he was unaware of the Berrien County orders and that he conversely believed that the Wayne County order controlled. Even if that were true, the admission of the order is irrelevant because: (1) when [he] failed to return the children, there was a valid court order granting [D] exclusive parental rights to the children; and (2) defendant did not follow the parenting-time arrangement in the Wayne County order.” The court noted that the Wayne County order provided for “week on, week off” parenting-time, but D testified that after defendant took the children in June, she did not see them again until July or August, and they were not returned to her care until the following March and April. Thus, “even if defendant were operating under the improper assumption that the Wayne County order controlled, [his] actions would still have been in violation of MCL 750.350a(1), and any error in excluding the Wayne County order was harmless.”

Mistrial; People v Beck; Tainted jury pool; Juror impartiality; People v Miller; Ineffective assistance of counsel; Trial strategy; Strickland v Washington; Possession with intent to deliver meth; MCL 333.7401(2)(b)(i); Constructive possession; People v Meshell; FIP; MCL 750.224f; Felony-firearm; MCL 750.227b

The court held that the trial court did not abuse its discretion by denying defendant’s motion for a mistrial, that his counsel was not ineffective, and that sufficient evidence supported his drug and firearm convictions. Defendant was convicted after police executed a search warrant at the home he shared with his girlfriend and found meth, firearms, ammunition, cash from a controlled buy, packaging materials, and drug-related items. On appeal, the court first held that a mistrial was not required after a prospective juror said defendant looked like he used meth and appeared guilty, and then another said he believed defendant was guilty. The biased jurors were excused, the trial court questioned the remaining jurors, and they stated they could “set aside outside factors” and decide the case on the evidence and instructions. The court rejected defendant’s implied-bias argument because he failed to show that the remaining jurors’ impartiality was compromised. The court next held that counsel was not ineffective for acknowledging during closing that he “should not have called” a defense witness who was impeached, because counsel reasonably tried to redirect the jury to the useful portion of that witness’s testimony attacking the girlfriend’s credibility. As to sufficiency, the court held that constructive possession of meth was shown because meth was found in areas defendant could access, his girlfriend testified they both sold meth, and defendant was present for portions of the controlled buys. Intent to deliver was supported by about 190 grams of meth divided into multiple bags, scales, packaging materials, and scissors with “white crystal residue.” The court also held that defendant constructively possessed firearms and ammunition because they were located in the bedroom where he was found and were “reasonably accessible.” Affirmed.

Sentencing; Upward departure; Proportionality; People v Milbourn; Sentencing guidelines; People v Dixon-Bey; Psychological injury; OV 4; MCL 777.34(1)(a); Relationship to victim; People v Walden; Bond violations; Judicial bias; People v Gaines

The court held that the trial court did not abuse its discretion by imposing an upward departure sentence for defendant’s CSC II convictions. His convictions arose from sexual contact with the 15-year-old victim, and the trial court departed from the 12-to-24-month guidelines range by sentencing him to concurrent 5-to-15-year prison terms. On appeal, the court first held that the trial court did not improperly ignore defendant’s lack of criminal history because it reviewed the PSIR, which included the PRV score, and “‘trial courts are not required to expressly or explicitly consider mitigating factors at sentencing.’” The court next held that OV 4 did not adequately capture the victim’s psychological injury because the record supported the trial court’s findings concerning the “long-term effect,” “permanent damage,” and “violation of trust” caused by defendant’s conduct. The victim was still in therapy, had been diagnosed with PTSD, experienced violent nightmares, struggled with trust, turned to alcohol and marijuana, and described educational delay from “the re-traumatization of this legal process.” The court also held that the trial court properly considered the relationship between defendant and the victim, noting she trusted him, and he was “tasked with protecting” her rather than victimizing her. Finally, the court held that the trial court could consider defendant’s repeated bond violations, including “contacting the victim’s mother, attempting to contact the victim, and sending threats to influence the case[,]” because those facts bore on proportionality, protection of the victim, and the seriousness of the offense. The court rejected his bias argument, explaining that the sentencing judge’s description of the conduct as “disgusting” did not pierce the veil of impartiality because “‘the language of punishment need not be tepid.’” Affirmed.

Venue; Multiclaim tort actions; MCL 600.1641(2); Tort venue; MCL 600.1629; Attorney General venue statutes; MCL 14.102; MCL 600.1631(a); “Original injury”; Dimmitt & Owens Fin’l, Inc v Deloitte & Touche (ISC), LLC; Conversion; Medicaid overpayments

The court held that MCL 600.1629 controlled venue because the DHHS pled multiple claims and at least one sounded in tort, but that venue was proper in Ingham County because that is where the DHHS suffered the original injury from defendants’ alleged conversion of Medicaid overpayments. The DHHS, represented by the Attorney General, sued defendants to recover alleged Medicaid overpayments and asserted claims including common-law and statutory conversion, breach of contract, unjust enrichment, and enforcement of a final agency order. The court first held that MCL 600.1641(2) required application of the tort venue statute because the DHHS pled “more than 1 cause of action” and “1 of the causes of action is based on tort.” And under that statute, venue “shall be determined” under MCL 600.1629. The court rejected reliance on the Attorney General venue statutes because MCL 14.102 and MCL 600.1631(a) are permissive, while MCL 600.1641(2) is mandatory and “demands the application of MCL 600.1629 over” the AG venue statutes here. But the court next held that the Court of Appeals erred by placing venue in Oakland County because MCL 600.1629 looks to where “the plaintiff suffered its first actual injury,” not where defendants were located when the alleged wrongdoing occurred. Applying Dimmitt, the court held that the injury from conversion was not defendants’ refusal to repay in Oakland County, but the DHHS’s “lack of possession and its concomitant inability to exercise control or dominion over the intangible electronic funds” at issue. Because the DHHS suffered that injury at its Ingham County headquarters, where it administers the Medicaid program, the “county in which the original injury occurred” was Ingham County. The Court of Appeals was affirmed in part, reversed in part, and the case remanded for entry of an order changing venue to the Ingham Circuit Court.

Justice Welch, concurring in part and dissenting in part, agreed with the majority that Ingham County was the proper venue under MCL 600.1629, but disagreed that the tort venue statutes displaced the Attorney General venue statutes. She reasoned that MCL 600.1641(2) did not “abrogate the Attorney General’s longstanding authority to file an action in Ingham County” under MCL 14.102 and MCL 600.1631, and that the statutes could be harmonized.

Justice Thomas, joined by Justice Zahra, also concurring in part and dissenting in part, agreed with the majority that MCL 600.1629 and MCL 600.1641(2) controlled venue and displaced the Attorney General venue statutes, but disagreed that Ingham County was the proper venue. She concluded that in a conversion case, the “original injury” occurs where the defendant wrongfully exercises dominion over the property, and because the alleged refusal to return the electronic funds occurred at defendants’ corporate office, “the ‘original injury’ occurred in Oakland County[.]”

Venue; Multiclaim tort actions; MCL 600.1641(2); Tort venue; MCL 600.1629; Attorney General venue statutes; MCL 14.102; MCL 600.1631(a); “Original injury”; Dimmitt & Owens Fin’l, Inc v Deloitte & Touche (ISC), LLC; Conversion; Medicaid overpayments

The court held that MCL 600.1629 controlled venue because the DHHS pled multiple claims and at least one sounded in tort, but that venue was proper in Ingham County because that is where the DHHS suffered the original injury from defendants’ alleged conversion of Medicaid overpayments. The DHHS, represented by the Attorney General, sued defendants to recover alleged Medicaid overpayments and asserted claims including common-law and statutory conversion, breach of contract, unjust enrichment, and enforcement of a final agency order. The court first held that MCL 600.1641(2) required application of the tort venue statute because the DHHS pled “more than 1 cause of action” and “1 of the causes of action is based on tort.” And under that statute, venue “shall be determined” under MCL 600.1629. The court rejected reliance on the Attorney General venue statutes because MCL 14.102 and MCL 600.1631(a) are permissive, while MCL 600.1641(2) is mandatory and “demands the application of MCL 600.1629 over” the AG venue statutes here. But the court next held that the Court of Appeals erred by placing venue in Oakland County because MCL 600.1629 looks to where “the plaintiff suffered its first actual injury,” not where defendants were located when the alleged wrongdoing occurred. Applying Dimmitt, the court held that the injury from conversion was not defendants’ refusal to repay in Oakland County, but the DHHS’s “lack of possession and its concomitant inability to exercise control or dominion over the intangible electronic funds” at issue. Because the DHHS suffered that injury at its Ingham County headquarters, where it administers the Medicaid program, the “county in which the original injury occurred” was Ingham County. The Court of Appeals was affirmed in part, reversed in part, and the case remanded for entry of an order changing venue to the Ingham Circuit Court.

Justice Welch, concurring in part and dissenting in part, agreed with the majority that Ingham County was the proper venue under MCL 600.1629, but disagreed that the tort venue statutes displaced the Attorney General venue statutes. She reasoned that MCL 600.1641(2) did not “abrogate the Attorney General’s longstanding authority to file an action in Ingham County” under MCL 14.102 and MCL 600.1631, and that the statutes could be harmonized.

Justice Thomas, joined by Justice Zahra, also concurring in part and dissenting in part, agreed with the majority that MCL 600.1629 and MCL 600.1641(2) controlled venue and displaced the Attorney General venue statutes, but disagreed that Ingham County was the proper venue. She concluded that in a conversion case, the “original injury” occurs where the defendant wrongfully exercises dominion over the property, and because the alleged refusal to return the electronic funds occurred at defendants’ corporate office, “the ‘original injury’ occurred in Oakland County[.]”

Identity theft; Personal identifying information; MCL 445.65(1)(b); Federal grant funds; Compensatory damages; Fraudulent conduct; Wright v Genesee Cnty; Special master; Lost salary; Lost profits; Lease damages; Substance Abuse & Mental Health Services Administration (SAMHSA); Medical assisted treatment (MAT)

The court held that the trial court properly granted plaintiffs partial summary disposition on their identity-theft claim and did not clearly err by awarding compensatory damages. Plaintiff-Goldsmith and her company partnered with defendants to apply for a federal SAMHSA grant because the company, a for-profit MAT services provider, needed a nonprofit partner. On appeal, the court first held that defendant-Coats violated MCL 445.65(1)(b) by using Goldsmith’s name and credentials while substituting Coats’s own e-mail address and telephone number in the application, which allowed Coats to control SAMHSA communications and obtain grant funds. The court emphasized that Coats admitted she used her own contact information because “she wanted to be the only person to receive notifications regarding the application” and “never intended” to show the award notice to plaintiffs. The court rejected defendants’ intent arguments because MCL 445.65(1)(b), unlike MCL 445.65(1)(a), does not require intent to defraud. The court also held that the damages award was supported by the record. Although the trial court called the award “expectancy damages,” the court clarified that the proper label was compensatory damages because the remedy for fraudulent conduct is to make the injured party whole. The court upheld $360,000 for Goldsmith’s lost project-director salary because she withdrew only after Coats’s conduct, and it deferred to the special master’s credibility finding that SAMHSA did not compel Coats to alter the grant budget. The court also upheld $16,000 in lease damages because testimony supported that plaintiffs obtained the Ann Arbor facility to advance the grant proposal. Affirmed.

Premises liability; Motion for relief from a default judgment; MCR 2.612(C)(1); Successor liability; Mere continuation; Commonwealth Land Title Ins Co v Metro Title Corp; Service of process; MCR 2.105(D); Knowledge of action; MCR 2.612(B); Proof of service; MCR 2.104(A)(1); Insufficient service; MCR 2.116(C)(3)

The court held that the trial court did not abuse its discretion by setting aside the default based on mistake or innocent misrepresentation about defendant’s ownership status, but erred by finding defendant lacked sufficient notice and by granting defendant summary disposition on service grounds. Plaintiff sued after allegedly slipping and falling at defendant’s hotel, but defendant did not own the hotel when plaintiff was injured and acquired it roughly two years later. On appeal, the court first held that the trial court properly set aside the default because plaintiff’s pleadings mistakenly alleged that defendant owned or possessed the hotel at the time of injury. The court rejected plaintiff’s successor-liability theory because, although several business features remained the same, the trial court determined there was “a legitimate sale of the business and its assets to an entirely new ownership group,” with different officers, no ownership continuity, and no evidence that the transaction was anything other than arm’s length. The court next held that plaintiff did not properly serve defendant by certified mail because a private corporation with a resident agent generally requires personal service. But the court also held that defendant had knowledge of the action because its resident agent received the summons and complaint and forwarded them to defendant’s president by e-mail, and his failure to open the e-mail did “not excuse his receipt of the documents.” Because the resident agent was authorized to receive service and gave written acknowledgment of receipt, the court found “proof of service” under MCR 2.104(A)(1). Thus, while the default was properly set aside on the ownership/mistake ground, summary disposition for insufficient service was improper. Affirmed in part, reversed in part, vacated in part, and remanded.

Fall from an ambulance gurney; Governmental immunity; The Governmental Tort Liability Act (GTLA); The motor-vehicle exception (MCL 691.1405); Chandler v County of Muskegon; Martin v Rapid Inter-Urban Transit P’ship; Strozier v Flint Cmty Schs; Applicability of the Emergency Medical Services Act (EMSA); Bartalsky v Osborn; Emergency medical technicians (EMTs)

The court held that the trial court erred in applying the EMSA, and that plaintiff-Winters stated a claim under the motor-vehicle exception to governmental immunity. Thus, it reversed summary disposition for defendant-City and remanded. Winters was injured when he fell to the ground as EMTs unloaded the gurney he was on from the ambulance. He sued the City for negligence. It sought summary disposition based on governmental immunity under the GTLA. The trial court, rather than analyzing his claim under the GTLA, applied the EMSA, and ruled that he “failed to establish gross negligence or willful misconduct as required to avoid summary disposition under the EMSA.” On appeal, the City agreed with Winters that the EMSA did not apply, and so did the court. Rather, the GTLA applied. Winters alleged “that the City’s EMTs strapped him onto a gurney for transport and negligently ‘failed to keep the gurney upright’ which caused him to fall to the ground and sustain injury while the EMTs unloaded him from the ambulance. [He] also alleged that the City had a duty to ensure that its employees safely unload patients from an ambulance and that the City was liable for its own negligence, and that of the EMTs, because the City owned the ambulance. Winters cited the owner’s liability statute, MCL 257.401.” The court held that his “allegations were sufficient to plead in avoidance of governmental immunity because they stated a claim” within the motor-vehicle exception. The court noted this “exception requires that the governmental agency owned the motor vehicle involved in the incident and that the plaintiff’s injuries resulted from the negligent operation of the vehicle by the governmental agency’s employees. Further, as in Martin, the loading and unloading of patients is an action within the operation of an ambulance. Indeed, similar to the garbage truck in Strozier, it is impossible for an ambulance to perform its intended function absent the loading and unloading of patients.”

Premises liability; Motion for relief from a default judgment; MCR 2.612(C)(1); Successor liability; Mere continuation; Commonwealth Land Title Ins Co v Metro Title Corp; Service of process; MCR 2.105(D); Knowledge of action; MCR 2.612(B); Proof of service; MCR 2.104(A)(1); Insufficient service; MCR 2.116(C)(3)

The court held that the trial court did not abuse its discretion by setting aside the default based on mistake or innocent misrepresentation about defendant’s ownership status, but erred by finding defendant lacked sufficient notice and by granting defendant summary disposition on service grounds. Plaintiff sued after allegedly slipping and falling at defendant’s hotel, but defendant did not own the hotel when plaintiff was injured and acquired it roughly two years later. On appeal, the court first held that the trial court properly set aside the default because plaintiff’s pleadings mistakenly alleged that defendant owned or possessed the hotel at the time of injury. The court rejected plaintiff’s successor-liability theory because, although several business features remained the same, the trial court determined there was “a legitimate sale of the business and its assets to an entirely new ownership group,” with different officers, no ownership continuity, and no evidence that the transaction was anything other than arm’s length. The court next held that plaintiff did not properly serve defendant by certified mail because a private corporation with a resident agent generally requires personal service. But the court also held that defendant had knowledge of the action because its resident agent received the summons and complaint and forwarded them to defendant’s president by e-mail, and his failure to open the e-mail did “not excuse his receipt of the documents.” Because the resident agent was authorized to receive service and gave written acknowledgment of receipt, the court found “proof of service” under MCR 2.104(A)(1). Thus, while the default was properly set aside on the ownership/mistake ground, summary disposition for insufficient service was improper. Affirmed in part, reversed in part, vacated in part, and remanded.

Fall from an ambulance gurney; Governmental immunity; The Governmental Tort Liability Act (GTLA); The motor-vehicle exception (MCL 691.1405); Chandler v County of Muskegon; Martin v Rapid Inter-Urban Transit P’ship; Strozier v Flint Cmty Schs; Applicability of the Emergency Medical Services Act (EMSA); Bartalsky v Osborn; Emergency medical technicians (EMTs)

The court held that the trial court erred in applying the EMSA, and that plaintiff-Winters stated a claim under the motor-vehicle exception to governmental immunity. Thus, it reversed summary disposition for defendant-City and remanded. Winters was injured when he fell to the ground as EMTs unloaded the gurney he was on from the ambulance. He sued the City for negligence. It sought summary disposition based on governmental immunity under the GTLA. The trial court, rather than analyzing his claim under the GTLA, applied the EMSA, and ruled that he “failed to establish gross negligence or willful misconduct as required to avoid summary disposition under the EMSA.” On appeal, the City agreed with Winters that the EMSA did not apply, and so did the court. Rather, the GTLA applied. Winters alleged “that the City’s EMTs strapped him onto a gurney for transport and negligently ‘failed to keep the gurney upright’ which caused him to fall to the ground and sustain injury while the EMTs unloaded him from the ambulance. [He] also alleged that the City had a duty to ensure that its employees safely unload patients from an ambulance and that the City was liable for its own negligence, and that of the EMTs, because the City owned the ambulance. Winters cited the owner’s liability statute, MCL 257.401.” The court held that his “allegations were sufficient to plead in avoidance of governmental immunity because they stated a claim” within the motor-vehicle exception. The court noted this “exception requires that the governmental agency owned the motor vehicle involved in the incident and that the plaintiff’s injuries resulted from the negligent operation of the vehicle by the governmental agency’s employees. Further, as in Martin, the loading and unloading of patients is an action within the operation of an ambulance. Indeed, similar to the garbage truck in Strozier, it is impossible for an ambulance to perform its intended function absent the loading and unloading of patients.”