Nuisance abatement action to enjoin a piggery; Zoning; Right to Farm Act (RTFA); Retroactivity; Travis v Preston (On Rehearing); Laches; Equitable estoppel; Generally accepted agricultural & management practices (GAAMPs)

The court held that “the trial court erred as a matter of law in concluding that the RTFA defense was unavailable on nonretroactivity grounds, and did not make the additional factual findings necessary under the RTFA to enable further appellate review.” But it did not err in ruling that laches and equitable estoppel did not bar the action. This was a nuisance abatement action to enjoin a piggery owned by defendant-Haney, on real property within the boundaries of plaintiff-Township, under its zoning ordinance. The court noted that all “the relevant events in Travis occurred before the effective date of the 2000 amendment to the RTFA. In this case, plaintiff’s zoning ordinance has not changed since the 1970s, so under Travis the 2000 amendment to the RTFA did not retroactively invalidate that ordinance as applied to pre-2000 activity. But defendant began his pig farming operation after 2000, and plaintiff seeks only injunctive—not retrospective—relief. MCL 286.474(6), by providing that ‘a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or [GAAMPs]’ . . . prohibits prospective enforcement of a zoning ordinance that is contrary to the RTFA and GAAMPs, even if the enactment of the ordinance itself predated the 2000 amendment to the RTFA. Therefore, the trial court erred as a matter of law by holding that defendant’s MCL 286.474(6) defense to plaintiff’s nuisance abatement action was barred under Travis.” Given that the “zoning ordinance must yield to the RTFA and GAAMPs,” the court turned to whether defendant “raised a meritorious RTFA defense.” It found “no error, much less clear error, in classifying defendant’s activities as a farm operation. [He] testified that he initially raised elk and deer, and later approximately 50 pigs, for profit. He also testified that he would sell variable amounts of pigs for hunting at $400 to $450 apiece and would sell approximately twenty pigs per year at auction where they would fetch $150 to $250 each.” The court found that he “met his burden to show that he was engaged in the ‘commercial production of a farm product,’ because he cultivated animals that were ‘intended to be marketed and sold at a profit.’” But because the trial court found “that the RTFA did not apply, it did not make any factual findings or a legal determination regarding the second element of the RTFA defense: whether defendant’s farm operation conformed to ‘all applicable GAAMPs.’” The court concluded that this “failure to make factual findings regarding defendant’s compliance with applicable GAAMPs inhibits appellate review of this issue, and requires a remand for the trial court to make such findings in the first instance.” it vacated the judgment for plaintiff and remanded.

Business court jurisdiction; MCL 600.8035(1); MCL 600.8031(3)(i); MCR 2.621(A); MCL 600.6134; Claims under the Uniform Voidable Transactions Act (UVTA); Tolling the statute of limitations; MCL 600.5856; Actual notice; Whether the complaint related back to the date a supplemental complaint was filed in a prior case; Whether the supplemental complaint was a proper pleading; MCR 2.118(A) & (E); Waiver; Applicability of equitable tolling

The court held that while the trial court was incorrect that it did not have jurisdiction as a business court, it was correct that the complaint was untimely. Thus, the court affirmed summary disposition for defendants. Plaintiff previously successfully sued defendant-MHT in business court for breach of contract and later filed a supplemental complaint in that 2017 case. It then filed this separate action in 2023. The court found the complaint was “confusing. But when read in whole, it is clear the business court had subject-matter jurisdiction.” The first sentence of the introductory paragraph asserted that plaintiff was “bringing this claim to enforce a judgment. But the body of the complaint asserts two counts under the UVTA, alleging the mortgage on the property was a voidable transaction that encumbered MHT’s assets, and therefore interfered with plaintiff’s interest in the property. It is strange to lead the complaint with a statement that the case is being brought specifically to enforce a judgment, yet the two-count complaint does not include a count to enforce the judgment. When read in context of the entire introduction section, the statement regarding enforcement of the judgment precedes paragraphs of background information” about the prior litigation and how it provided “the basis for plaintiff’s UVTA claims.” The court held that the complaint met “the definition of a ‘business or commercial dispute’ because the parties are business enterprises. . . . While proceedings to enforce judgments are expressly excluded under” MCL 600.8031(3)(i), that was “not the only claim being asserted here; plaintiff brings two counts to void the mortgage pursuant to the UVTA, which are claims that are within the business court’s jurisdiction.” But the complaint was filed outside the limitations period. Plaintiff argued that MCL 600.5856 “should apply because it is undisputed that the supplemental complaint provided all parties with actual notice of the claims within the statutory period.” The court disagreed, concluding that defendants-J&K and Tremonti “had no actual notice of the supplemental complaint,” and thus, this “new action was untimely as to” them. And while it was clear MHT had actual notice of the claims in the supplemental complaint, “the trial court was correct in holding that [it] was not a proper pleading under the court rules.” The court also held that equitable tolling was “not appropriate here.”

Action involving local permits to grow marijuana; Promissory estoppel; Bodnar v St John Providence, Inc; Principle that a claim of promissory estoppel is akin to a contract claim; Long v Chelsea Cmty Hosp; Regulatory taking; Gym 24/7 Fitness, LLC v State; Whether plaintiff established a vested property right; Upper Peninsula Power Co v Village of L’Anse; Categorical vs noncategorical taking; Penn Cent Transp Co v New York City; Equal protection; Engquist v Oregon Dep’t of Agric; Declaratory relief; MCR 2.605(A)(1)

Agreeing with the trial court that plaintiff “failed to plead viable claims premised on promissory estoppel, regulatory takings, and equal protection,” and that declaratory relief was unobtainable, the court affirmed. Plaintiff sued defendant-township alleging that, in reliance on its ordinance amendment allowing unlimited marijuana grower permits, he spent over $300,000 to convert his property into a “Cannabis Grow Park,” in hopes of selling parcels to marijuana grow operators, but that defendant’s subsequent limit on permits rendered his property almost worthless. The trial court ruled for defendant and dismissed the case. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting defendant summary disposition of his promissory estoppel claim, noting he “did not establish the ‘promise’ element of promissory estoppel.” The ordinances at issue provided “that defendant’s board could review and amend the number of permits ‘annually or as it determines to be advisable.’ This language unmistakably demonstrates that defendant’s amendment to the number of . . . grower permits was not a promise to plaintiff that the number of permits would remain indefinitely ‘unlimited.’” The court also upheld summary disposition of his regulatory taking claim. “[A]ccepting plaintiff’s factual allegations as true and applying them to the Penn Central balancing test, we conclude . . . that no compensable taking of plaintiff’s property occurred . . . [and] that no factual development could change this outcome,” rendering summary disposition on this issue appropriate. Because he “failed to plead facts demonstrating either a categorical taking of his land such that his property was rendered wholly unusable, or a noncategorical taking under the Penn Central inquiry, the trial court correctly granted summary disposition on plaintiff’s takings claim.” The court also held that the trial court did not err by granting defendant summary disposition of his equal protection claim. He “did not identify a similarly situated property owner whom defendant treated differently under the ordinance.” His allegation that defendant told two marijuana growers “that it would issue additional Class C grower permits to them has no bearing on plaintiff’s position as a seller of land, because he does not grow marijuana and he did not assert that he applied for any Class C grower permits that defendant denied.” Finally, because it affirmed the dismissal of his underlying claims, it likewise affirmed “dismissal of his claim for declaratory relief.”

Jury instructions; Ineffective assistance of counsel; Failure to request M Crim JI 13.5; Sufficiency of the evidence; Operating a vehicle without security & a valid license; Resisting or obstructing a police officer

The court rejected defendant’s claim that his trial counsel was ineffective as to jury instructions. It also held that there was sufficient evidence to support his convictions of assaulting, resisting, and obstructing a police officer, and operating a motor vehicle without security and a license. Given that defense counsel did not object to the instructions when given the opportunity, the court addressed the lack of particular “instructions only through an ineffective assistance of counsel analysis.” Defendant asserted “his trial counsel was ineffective for failing to request that the trial court read” M Crim JI 13.5. The court found that this argument failed “for two reasons. First, the trial court instructed the jury on the elements of resisting arrest, which include a requirement that the arrest be lawful. Thus, . . . the jury was instructed that the lawfulness of the arrest was an essential element of resisting arrest. Second,” trial counsel requested an instruction on “self-defense, arguing that defendant’s actions in resisting the arrest were lawful. The trial court denied the request on the basis that defendant did not have a ‘rational or reasonable expectation’ that he was going to suffer immediate death or great bodily harm ‘by simply exiting the vehicle at the request of the officers.’ Importantly, the trial court also added that [he] was not entitled to” a self-defense instruction “because he had committed criminal acts. Namely, he had ‘resisted the officer’ and ‘broken the law with respect to the vehicle.’” Thus, it was evident that trial “counsel requested a jury instruction related to the theory of unlawful arrest and that the trial court denied” it. As to the sufficiency of the evidence for the driving offenses, an officer’s bodycam footage showed “that when he arrived, the truck was idling in the travel lane and defendant was the only person nearby. The footage also showed that there were several items piled on the passenger-side of the bench seat and that when defendant entered the truck, he sat in the driver’s seat. [He] repeatedly told the officers that he was taking the truck around the block,” and did not mention the relative who testified that he, not defendant, was the driver. As to the resisting conviction, “the evidence established that the officers’ commands and defendant’s arrest were lawful” and the bodycam footage corroborated their testimonies that he “not only resisted their commands to get out of the truck, but that [he] threatened to hit one of” them. Affirmed.

Wrongful death action under MCL 600.2922; The notice provision for claims against the state; MCL 600.6431; The wrongful-death savings provision; MCL 600.5852(1); Lindsey v Harper Hosp; Comparing Mays v Snyder; Personal representative (PR); Court of Claims Act (COCA)

The court held that the Court of Claims erred by granting defendants-State and State Police summary disposition of plaintiff-PR’s wrongful death action. Plaintiff sued defendants on behalf of his daughter, Hana, who was killed in a school shooting, claiming they inadequately responded to multiple tips received about potential school violence. The Court of Claims granted summary disposition for defendants, finding plaintiff failed to comply with the notice provision of MCL 600.6431, within six months of Hana’s death. On appeal, the court found that “[a]pplying the legal principles established by this Court in Mays to the current matter, the underlying rationale is applicable to the wrongful-death savings provision articulated in MCL 600.5852. This provision is intended to safeguard plaintiffs’ rights in wrongful-death actions, particularly when confronting statutory deadlines.” In addition, in “accordance with the recognized methods of statutory interpretation set forth in Mays, and in light of the Legislature’s clear intent to implement the wrongful-death savings provision in conjunction with the COCA, we conclude that this provision not only extends the filing timeframe but also tolls the statutory notice period albeit any tolling is contingent upon meeting the specific conditions specified within the provision.” As such, the court reversed the Court of Claim’s ruling that granted summary disposition for defendants, and remanded to the Court of Claims, instructing that “further proceedings take place consistent with the conclusions outlined in this opinion.”

Business court jurisdiction; MCL 600.8035(1); MCL 600.8031(3)(i); MCR 2.621(A); MCL 600.6134; Claims under the Uniform Voidable Transactions Act (UVTA); Tolling the statute of limitations; MCL 600.5856; Actual notice; Whether the complaint related back to the date a supplemental complaint was filed in a prior case; Whether the supplemental complaint was a proper pleading; MCR 2.118(A) & (E); Waiver; Applicability of equitable tolling

The court held that while the trial court was incorrect that it did not have jurisdiction as a business court, it was correct that the complaint was untimely. Thus, the court affirmed summary disposition for defendants. Plaintiff previously successfully sued defendant-MHT in business court for breach of contract and later filed a supplemental complaint in that 2017 case. It then filed this separate action in 2023. The court found the complaint was “confusing. But when read in whole, it is clear the business court had subject-matter jurisdiction.” The first sentence of the introductory paragraph asserted that plaintiff was “bringing this claim to enforce a judgment. But the body of the complaint asserts two counts under the UVTA, alleging the mortgage on the property was a voidable transaction that encumbered MHT’s assets, and therefore interfered with plaintiff’s interest in the property. It is strange to lead the complaint with a statement that the case is being brought specifically to enforce a judgment, yet the two-count complaint does not include a count to enforce the judgment. When read in context of the entire introduction section, the statement regarding enforcement of the judgment precedes paragraphs of background information” about the prior litigation and how it provided “the basis for plaintiff’s UVTA claims.” The court held that the complaint met “the definition of a ‘business or commercial dispute’ because the parties are business enterprises. . . . While proceedings to enforce judgments are expressly excluded under” MCL 600.8031(3)(i), that was “not the only claim being asserted here; plaintiff brings two counts to void the mortgage pursuant to the UVTA, which are claims that are within the business court’s jurisdiction.” But the complaint was filed outside the limitations period. Plaintiff argued that MCL 600.5856 “should apply because it is undisputed that the supplemental complaint provided all parties with actual notice of the claims within the statutory period.” The court disagreed, concluding that defendants-J&K and Tremonti “had no actual notice of the supplemental complaint,” and thus, this “new action was untimely as to” them. And while it was clear MHT had actual notice of the claims in the supplemental complaint, “the trial court was correct in holding that [it] was not a proper pleading under the court rules.” The court also held that equitable tolling was “not appropriate here.”

Medical malpractice action; Damages available under the Wrongful Death Act (WDA); MCL 600.2922(6); Loss-of-services damages; Thompson v Ogemaw Cnty Bd of Rd Comm’rs; Lost-earning-capacity damages; Daher v Prime Healthcare Servs-Garden City, LLC; Baker v Slack; Speculative damages; Zehel v Nugent; Courtney v Apple; Cooper v Lake Shore & MI S Ry Co

The court held that loss-of-services damages remain available under the WDA, and that in a WDA action involving an infant-decedent, a plaintiff “is not barred as a matter of law from recovering loss-of-services damages for the time after the decedent would have reached the age of 18.” But after Daher, lost-earning-capacity damages no longer remain available under the WDA. Thus, the trial court did not err in denying defendants’ motion for partial summary disposition as to plaintiff’s claim for loss-of-service damages but did err in denying it as to lost-earning-capacity damages. This medical malpractice action arose from the death of an infant days after birth. The parties agreed on appeal “that lost-earning-capacity damages are no longer available under the” WDA after the Michigan Supreme Court’s decision in Daher. “But Daher did not resolve whether loss-of-services damages remain available under the WDA, and” the court determined that they do. It found that, “by concluding that loss-of-services damages remain available under the WDA following the 1971 amendments, we are not expanding the types of damages available under the act but merely concluding that the 1971 amendment did not disallow damages that were historically available under [it]. Such an interpretation is consistent with the ‘unique facts and the extensive statutory history of the WDA and the caselaw interpreting it.’” The court added that the “historical treatment of loss-of-services damages under the WDA also makes the question presented in this case materially different from the one presented in Daher.” The court noted that the “Supreme Court has never held that loss-of-services damages are unavailable under the WDA—indeed, after the death act and survival act were combined, our Supreme Court repeatedly reaffirmed that loss-of-services damages remained available under the newly-combined act.” The court found that these “dissimilarities place this case on different footing from Daher.” Defendants argued that even if the damages were available under the WDA, “plaintiff’s requested loss-of-services damages were too speculative.” After reviewing case law on speculative damages generally, the court rejected this argument. It concluded that “a jury is better suited to sort out the contested issues as factual matters instead of this Court deciding them as matters of law.” Reversed in part, affirmed in part, and remanded.

Action involving local permits to grow marijuana; Promissory estoppel; Bodnar v St John Providence, Inc; Principle that a claim of promissory estoppel is akin to a contract claim; Long v Chelsea Cmty Hosp; Regulatory taking; Gym 24/7 Fitness, LLC v State; Whether plaintiff established a vested property right; Upper Peninsula Power Co v Village of L’Anse; Categorical vs noncategorical taking; Penn Cent Transp Co v New York City; Equal protection; Engquist v Oregon Dep’t of Agric; Declaratory relief; MCR 2.605(A)(1)

Agreeing with the trial court that plaintiff “failed to plead viable claims premised on promissory estoppel, regulatory takings, and equal protection,” and that declaratory relief was unobtainable, the court affirmed. Plaintiff sued defendant-township alleging that, in reliance on its ordinance amendment allowing unlimited marijuana grower permits, he spent over $300,000 to convert his property into a “Cannabis Grow Park,” in hopes of selling parcels to marijuana grow operators, but that defendant’s subsequent limit on permits rendered his property almost worthless. The trial court ruled for defendant and dismissed the case. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting defendant summary disposition of his promissory estoppel claim, noting he “did not establish the ‘promise’ element of promissory estoppel.” The ordinances at issue provided “that defendant’s board could review and amend the number of permits ‘annually or as it determines to be advisable.’ This language unmistakably demonstrates that defendant’s amendment to the number of . . . grower permits was not a promise to plaintiff that the number of permits would remain indefinitely ‘unlimited.’” The court also upheld summary disposition of his regulatory taking claim. “[A]ccepting plaintiff’s factual allegations as true and applying them to the Penn Central balancing test, we conclude . . . that no compensable taking of plaintiff’s property occurred . . . [and] that no factual development could change this outcome,” rendering summary disposition on this issue appropriate. Because he “failed to plead facts demonstrating either a categorical taking of his land such that his property was rendered wholly unusable, or a noncategorical taking under the Penn Central inquiry, the trial court correctly granted summary disposition on plaintiff’s takings claim.” The court also held that the trial court did not err by granting defendant summary disposition of his equal protection claim. He “did not identify a similarly situated property owner whom defendant treated differently under the ordinance.” His allegation that defendant told two marijuana growers “that it would issue additional Class C grower permits to them has no bearing on plaintiff’s position as a seller of land, because he does not grow marijuana and he did not assert that he applied for any Class C grower permits that defendant denied.” Finally, because it affirmed the dismissal of his underlying claims, it likewise affirmed “dismissal of his claim for declaratory relief.”

Petition to initiate child protective & removal proceedings; Notice under the Indian Child Welfare Act (ICWA) & the Michigan Indian Family Preservation Act (MIFPA); 25 USC § 1912(a); MCL 712B.9(3); MCR 3.977(G); In re Beers; “Indian child”; § 1903(4); MCL 712B.3(k); Sufficient information of Indian heritage; MCL 712B.9(4)(a) & (6); In re Morris; Bureau of Indian Affairs (BIA); Ineffective assistance of counsel; In re Casto; Probable cause; MCL 712A.13a(2); MCL 712A.2(b); In re KNK; Failure to make a futile objection

The court held that the trial court and DHHS complied with the notice requirements under ICWA and MIFPA, and that respondent-mother was not denied the effective assistance of counsel in this child protective proceeding. The trial court found that her “acknowledgment of her home conditions, as well as the child’s mental health—which was impacted by respondent’s conduct—established sufficient probable cause to authorize the” petition to initiate child protective proceedings and remove the child from her care. On appeal, the court rejected her argument that the trial court failed to comply with the notice requirements under the ICWA and the MIFPA. “The trial court ordered respondent to provide DHHS with the names of the tribes to which she thought that the child may be a member or eligible for membership. Respondent complied with” the order and DHHS notified the tribes identified as well as a local tribe. DHHS ultimately received denial letters from two tribes, and because it did not receive a response from a third tribe, it sent an additional notice to the BIA. It did not receive responses from the BIA or another tribe, but “it received green cards, indicating that its inquiries were received by both. These contacts and receipts demonstrate DHHS’s due diligence to contact the Indian tribes and verify the child’s eligibility for membership.” The court also rejected her claim that she was denied effective assistance of counsel because her counsel failed to object to the finding of probable cause at the preliminary hearing. “Although respondent’s counsel did not object to [the] petition’s allegation of an unfit home, any such objection would have been futile considering that respondent: (1) informed CPS that her home was in deplorable condition, (2) was unwilling to allow CPS to inspect the home, and (3) informed DHHS that she did not want the child returned home because of the home’s condition.” Affirmed.

Medical malpractice action; Damages available under the Wrongful Death Act (WDA); MCL 600.2922(6); Loss-of-services damages; Thompson v Ogemaw Cnty Bd of Rd Comm’rs; Lost-earning-capacity damages; Daher v Prime Healthcare Servs-Garden City, LLC; Baker v Slack; Speculative damages; Zehel v Nugent; Courtney v Apple; Cooper v Lake Shore & MI S Ry Co

The court held that loss-of-services damages remain available under the WDA, and that in a WDA action involving an infant-decedent, a plaintiff “is not barred as a matter of law from recovering loss-of-services damages for the time after the decedent would have reached the age of 18.” But after Daher, lost-earning-capacity damages no longer remain available under the WDA. Thus, the trial court did not err in denying defendants’ motion for partial summary disposition as to plaintiff’s claim for loss-of-service damages but did err in denying it as to lost-earning-capacity damages. This medical malpractice action arose from the death of an infant days after birth. The parties agreed on appeal “that lost-earning-capacity damages are no longer available under the” WDA after the Michigan Supreme Court’s decision in Daher. “But Daher did not resolve whether loss-of-services damages remain available under the WDA, and” the court determined that they do. It found that, “by concluding that loss-of-services damages remain available under the WDA following the 1971 amendments, we are not expanding the types of damages available under the act but merely concluding that the 1971 amendment did not disallow damages that were historically available under [it]. Such an interpretation is consistent with the ‘unique facts and the extensive statutory history of the WDA and the caselaw interpreting it.’” The court added that the “historical treatment of loss-of-services damages under the WDA also makes the question presented in this case materially different from the one presented in Daher.” The court noted that the “Supreme Court has never held that loss-of-services damages are unavailable under the WDA—indeed, after the death act and survival act were combined, our Supreme Court repeatedly reaffirmed that loss-of-services damages remained available under the newly-combined act.” The court found that these “dissimilarities place this case on different footing from Daher.” Defendants argued that even if the damages were available under the WDA, “plaintiff’s requested loss-of-services damages were too speculative.” After reviewing case law on speculative damages generally, the court rejected this argument. It concluded that “a jury is better suited to sort out the contested issues as factual matters instead of this Court deciding them as matters of law.” Reversed in part, affirmed in part, and remanded.

Wrongful death action under MCL 600.2922; The notice provision for claims against the state; MCL 600.6431; The wrongful-death savings provision; MCL 600.5852(1); Lindsey v Harper Hosp; Comparing Mays v Snyder; Personal representative (PR); Court of Claims Act (COCA)

The court held that the Court of Claims erred by granting defendants-State and State Police summary disposition of plaintiff-PR’s wrongful death action. Plaintiff sued defendants on behalf of his daughter, Hana, who was killed in a school shooting, claiming they inadequately responded to multiple tips received about potential school violence. The Court of Claims granted summary disposition for defendants, finding plaintiff failed to comply with the notice provision of MCL 600.6431, within six months of Hana’s death. On appeal, the court found that “[a]pplying the legal principles established by this Court in Mays to the current matter, the underlying rationale is applicable to the wrongful-death savings provision articulated in MCL 600.5852. This provision is intended to safeguard plaintiffs’ rights in wrongful-death actions, particularly when confronting statutory deadlines.” In addition, in “accordance with the recognized methods of statutory interpretation set forth in Mays, and in light of the Legislature’s clear intent to implement the wrongful-death savings provision in conjunction with the COCA, we conclude that this provision not only extends the filing timeframe but also tolls the statutory notice period albeit any tolling is contingent upon meeting the specific conditions specified within the provision.” As such, the court reversed the Court of Claim’s ruling that granted summary disposition for defendants, and remanded to the Court of Claims, instructing that “further proceedings take place consistent with the conclusions outlined in this opinion.”

Whether a claim sounded in premises liability or ordinary negligence; Wilson v BRK, Inc; Bowman v Walker; Duty; Kandil-Elsayed v F & E Oil Co; Bertrand v Alan Ford, Inc; Maurer v Oakland Cnty Parks & Recreation Dep’t; Causation

The court held that the trial court appropriately treated plaintiff’s claim against defendant-Jones Lang LaSalle Americas as sounding in premises liability, not ordinary negligence, and correctly granted it summary disposition under MCR 2.116(C)(10). It also held that his claim against defendant-Scott Wesney Construction failed because he could not establish duty or causation. Thus, it affirmed summary disposition for both of them. As to Jones, given that it could not “possibly be characterized as an owner, possessor, or occupier of the premises where plaintiff fell and injured himself,” summary disposition was proper if his claim against it sounded in premises liability. The court concluded that here, as in Wilson, “plaintiff’s ‘lawsuit ultimately concerns an injury arising from an allegedly dangerous condition on the land, i.e., a step that must be navigated . . . in order to enter and exit’ the premises. [He] had to step up from the parking lot onto the curb and sidewalk to enter the Chase bank, and then he had to step down from the sidewalk and curb onto the parking lot surface to return to his vehicle. The step up and the subsequent step down involved encountering what [he] described in his complaint as a dangerous condition on the premises, which turned his claim against Jones into one that sounded in premises liability[.]” In addition, while “Jones was involved in the construction project, [it] completed that work in 2018. Plaintiff fell in the parking lot” nearly three years later. Jones was properly granted summary disposition because it “had no continuing involvement with the Chase premises after the final inspection occurred” in 2018, and plaintiff had “no evidence that his fall was traceable to anything involving Jones other than the allegedly dangerous condition on the premises[.]” As to Wesney, as the Michigan Supreme Court put it in Maurer, “‘[b]ecause the plaintiff has not presented any facts that the step posed an unreasonable risk of harm, the trial court properly granted summary disposition.’ Faithfully applying that logic,” the court found “Wesney was entitled to summary disposition under MCR 2.116(C)(10) because it owed no duty to plaintiff.” Further, as to causation, “plaintiff acquired notice of the step when he walked into the bank. Simply looking where he was going when he left the bank would have prevented him from losing his footing because he admitted that he walked toward the parking lot without looking down.”

Petition to initiate child protective & removal proceedings; Notice under the Indian Child Welfare Act (ICWA) & the Michigan Indian Family Preservation Act (MIFPA); 25 USC § 1912(a); MCL 712B.9(3); MCR 3.977(G); In re Beers; “Indian child”; § 1903(4); MCL 712B.3(k); Sufficient information of Indian heritage; MCL 712B.9(4)(a) & (6); In re Morris; Bureau of Indian Affairs (BIA); Ineffective assistance of counsel; In re Casto; Probable cause; MCL 712A.13a(2); MCL 712A.2(b); In re KNK; Failure to make a futile objection

The court held that the trial court and DHHS complied with the notice requirements under ICWA and MIFPA, and that respondent-mother was not denied the effective assistance of counsel in this child protective proceeding. The trial court found that her “acknowledgment of her home conditions, as well as the child’s mental health—which was impacted by respondent’s conduct—established sufficient probable cause to authorize the” petition to initiate child protective proceedings and remove the child from her care. On appeal, the court rejected her argument that the trial court failed to comply with the notice requirements under the ICWA and the MIFPA. “The trial court ordered respondent to provide DHHS with the names of the tribes to which she thought that the child may be a member or eligible for membership. Respondent complied with” the order and DHHS notified the tribes identified as well as a local tribe. DHHS ultimately received denial letters from two tribes, and because it did not receive a response from a third tribe, it sent an additional notice to the BIA. It did not receive responses from the BIA or another tribe, but “it received green cards, indicating that its inquiries were received by both. These contacts and receipts demonstrate DHHS’s due diligence to contact the Indian tribes and verify the child’s eligibility for membership.” The court also rejected her claim that she was denied effective assistance of counsel because her counsel failed to object to the finding of probable cause at the preliminary hearing. “Although respondent’s counsel did not object to [the] petition’s allegation of an unfit home, any such objection would have been futile considering that respondent: (1) informed CPS that her home was in deplorable condition, (2) was unwilling to allow CPS to inspect the home, and (3) informed DHHS that she did not want the child returned home because of the home’s condition.” Affirmed.

Termination under § 19b(3)(b)(i); Physical harm; In re LaFrance; Reasonable reunification efforts; MCL 712A.18f(3)(b) & (c); In re Hicks/Brown; In re Mason; A parent’s responsibility to participate in & benefit from the services offered; In re Frey; Order of jurisdiction; MCR 3.205(A); In re AP; Child’s best interests; MCL 712A.19b(5); Parent-child bond; Friend of the Court (FOC)

Holding that reasonable reunification efforts were made, § (b)(i) was met, and termination was in the child’s best interests, the court affirmed termination of respondent-father’s parental rights. His rights were terminated on the basis of his lack of parenting skills, anger issues, history of domestic violence, emotional instability, and substance abuse problems. On appeal, the court rejected his argument that the DHHS failed to make reasonable reunification efforts because it did not provide him with parenting time due to an FOC order and did not help him address his barriers to reunification. His contention that “the DHHS’s reliance on the FOC order prevented him from having contact with” the child overlooked “his own actions and refusal to participate in services and” lacked merit. In addition, he “was offered services that he could have completed in conjunction with his work schedule.” The court also rejected his claim that there were no statutory grounds to support termination, finding § (b)(i) was met. Sufficient evidence established a reasonable likelihood that the child “would suffer injury in the foreseeable future if he were in respondent’s care[.]” Finally, the court rejected his claim that termination was not in the child’s best interests because they had a strong bond. Given his “substance abuse, lack of parenting skills, history of domestic violence, emotional instability,” the child’s time in foster care, need for permanence and stability, bond with another child, and respondent’s lack of contact with the child throughout the proceedings, the trial court did not err by finding termination was in the child’s best interests.

Nuisance abatement action to enjoin a piggery; Zoning; Right to Farm Act (RTFA); Retroactivity; Travis v Preston (On Rehearing); Laches; Equitable estoppel; Generally accepted agricultural & management practices (GAAMPs)

The court held that “the trial court erred as a matter of law in concluding that the RTFA defense was unavailable on nonretroactivity grounds, and did not make the additional factual findings necessary under the RTFA to enable further appellate review.” But it did not err in ruling that laches and equitable estoppel did not bar the action. This was a nuisance abatement action to enjoin a piggery owned by defendant-Haney, on real property within the boundaries of plaintiff-Township, under its zoning ordinance. The court noted that all “the relevant events in Travis occurred before the effective date of the 2000 amendment to the RTFA. In this case, plaintiff’s zoning ordinance has not changed since the 1970s, so under Travis the 2000 amendment to the RTFA did not retroactively invalidate that ordinance as applied to pre-2000 activity. But defendant began his pig farming operation after 2000, and plaintiff seeks only injunctive—not retrospective—relief. MCL 286.474(6), by providing that ‘a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or [GAAMPs]’ . . . prohibits prospective enforcement of a zoning ordinance that is contrary to the RTFA and GAAMPs, even if the enactment of the ordinance itself predated the 2000 amendment to the RTFA. Therefore, the trial court erred as a matter of law by holding that defendant’s MCL 286.474(6) defense to plaintiff’s nuisance abatement action was barred under Travis.” Given that the “zoning ordinance must yield to the RTFA and GAAMPs,” the court turned to whether defendant “raised a meritorious RTFA defense.” It found “no error, much less clear error, in classifying defendant’s activities as a farm operation. [He] testified that he initially raised elk and deer, and later approximately 50 pigs, for profit. He also testified that he would sell variable amounts of pigs for hunting at $400 to $450 apiece and would sell approximately twenty pigs per year at auction where they would fetch $150 to $250 each.” The court found that he “met his burden to show that he was engaged in the ‘commercial production of a farm product,’ because he cultivated animals that were ‘intended to be marketed and sold at a profit.’” But because the trial court found “that the RTFA did not apply, it did not make any factual findings or a legal determination regarding the second element of the RTFA defense: whether defendant’s farm operation conformed to ‘all applicable GAAMPs.’” The court concluded that this “failure to make factual findings regarding defendant’s compliance with applicable GAAMPs inhibits appellate review of this issue, and requires a remand for the trial court to make such findings in the first instance.” it vacated the judgment for plaintiff and remanded.