Chapter 13; Whether a transfer of property title for tax delinquency constituted a “preferential transfer”; 11 USC §§ 547(b)(4)-(5); Whether the transfer occurred during the 90-day “lookback period” before bankruptcy was filed; The “more than” test; Whether defendant needed to file a cross-appeal; Whether there was a “transfer”; § 101(54)(D); Rights to/interest in the property; The Michigan General Property Tax Act (GPTA); MCL 211.78g(1) & (8)(b); Establishing the “perfection date” (§ 547(e)(2)); Race-notice recording; MCL 565.29

[This appeal was from the ED-MI.] The court held that defendant-Bay County Treasurer’s foreclosure on debtor-Reinhardt’s home for unpaid taxes constituted a “preferential transfer” in this Chapter 13 case. Bay County initiated a foreclosure on Reinhardt’s home for failure to pay her 2019 property taxes. It received title to the property when “a Michigan court entered a foreclosure judgment against the property three years later,” and she filed for Chapter 13 bankruptcy shortly after, along with a complaint seeking to avoid the title transfer as preferential. The issues in dispute in the bankruptcy court were whether the transfer occurred during the 90-day “lookback period” and whether the transfer would enable the creditor to receive more than it would have if the transfer had not occurred and if the debtor’s estate had been liquidated in a Chapter 7 bankruptcy—the “more than” test. The bankruptcy court granted defendant summary judgment after ruling that even though the transfer had occurred inside the lookback period, Reinhardt could not satisfy the “more than” test. The district court affirmed. On appeal, the court first concluded that it was not necessary for defendant to file a cross-appeal. It then explained that the definition of a transfer “includes involuntary modes of transfer that ‘occur[] when property is transferred by operation of law, such as by means of an execution of judgment.’” Under Michigan law, when Reinhardt forfeited her property due to not paying her taxes, the only interest defendant received “was a right to seek a judgment of foreclosure; the Treasurer did ‘not acquire a right to possession or any other interest in the property.’” Pursuant to the 2/18/22 foreclosure judgment, when “Reinhardt didn’t pay off the tax lien, the foreclosure judgment took effect on March 31. On that day, title to the property vested absolutely in the Treasurer, and Reinhardt lost all rights to” it other than “the right to claim remaining proceeds from the Treasurer’s sale of the property.” Thus, a transfer occurred on 3/31, less than 90 days before Reinhardt filed her bankruptcy petition on 6/10, and was “perfected” when the Treasurer recorded the foreclosure judgment on 4/5/22. As to the “more than” test, a Treasurer retains a 5% sales commission from a tax sale, and this ensured that the 3/31 “transfer enabled the Treasurer to receive more than he would’ve if the transfer hadn’t happened and the case was a Chapter 7 bankruptcy.” Reinhardt was entitled to summary judgment. Reversed.

The Elliott-Larsen Civil Rights Act (ELCRA); Quid pro quo sexual harassment; Hamood v Trinity Health Corp; Hostile work environment based on sexual harassment; Statute of limitations; MCL 600.5805(2)

While the court held that the trial court did not err in dismissing plaintiff-Bellestri’s quid pro quo sexual harassment claim under MCR 2.116(C)(7), it erred in dismissing her hostile work environment claim. Plaintiff sued her employer, defendant-Costco, related to alleged sexual harassment perpetrated by defendant-Williams, “who was a supervisor at Costco up until the time that he was sentenced to prison for raping and physically assaulting her” in 2021. As to her quid pro quo claim, it was “undisputed that Williams was Bellestri’s supervisor prior to his demotion and transfer on” 8/31/18. But nothing in the amended complaint or the documentary evidence indicated “that Costco left Williams in a position capable of offering Bellestri tangible job benefits in exchange for sexual favors or with the ability to threaten her job based upon her failure to submit to his demands for sexual favors.” He ceased being her “supervisor. His alleged ability to threaten her career at Costco was dependent upon his alleged influence and friendship with individuals who were actually in a position to take a tangible employment action against Bellestri. Influence with individuals with authority over the plaintiff cannot form the basis for a quid pro quo sexual harassment claim.” Thus, she failed to allege any “conduct by Williams within the statutory limitations period that can form the basis for” this claim. But the court concluded she alleged conduct forming the basis for her hostile work environment claim that occurred after 8/31/18. She alleged that “Williams was again promoted by Costco to a supervisory position. He then contacted her. He threatened to destroy her career if she did not submit to a sexual relationship with him.” Among other things, he told her he was able “to influence her supervisors based upon his friendship with them. Bellestri alleged that, using that influence, Williams was able to affect her employment by having her paid time off canceled or scheduled for his benefit. He also allegedly used” it to prevent her from obtaining a transfer. And she asserted in an affidavit that “in 2020 and 2021 she reported to multiple supervisors and managers that Williams[] was threatening her employment if she did not engage in a sexual relationship with him. That report is sufficient to put Costco on notice of the ongoing nature of Williams’s sexual harassment.” Affirmed in part and reversed in part.

Ineffective assistance of counsel; Advice about a plea offer; Lafler v Cooper; People v White; Cruel or unusual punishment; Imposition of lifetime electronic monitoring (LEM); Unreasonable search; People v Hallak; Lifetime sex offender registration; People v Kardasz; Sex Offenders Registration Act (SORA)

The court held that defendant failed to show either deficient performance or prejudice as to his claim that defense counsel did not provide sufficient advice about a plea offer. It also rejected his arguments that the imposition of LEM and lifetime sex offender registration are cruel or unusual punishment and that LEM constitutes an unconstitutional search. Thus, it affirmed his CSC I and II convictions, and his sentences, including mandatory LEM and SORA registration. As to his ineffective assistance claim, at “the Ginther hearing, defense counsel testified that he communicated the seven-year offer to defendant, advised him to ‘sleep on it,’ and emphasized the significant disparity between the offer and the potential 25-year mandatory minimum sentence that would be imposed if defendant were convicted. Defense counsel further testified that his approach was to have defendant weigh the risks of trial against the benefits of the plea, particularly with respect to sentencing exposure.” The record showed “that defendant was aware of the mandatory minimum sentence” related to the CSC I charge, which was “explained at arraignment and discussed during the proceedings. Ultimately, defense counsel communicated the plea offer, discussed the potential sentencing consequences, and advised defendant to seriously consider the offer. That advice was sufficient to allow defendant to make an informed decision.” As to prejudice, there was substantial record “evidence that defendant consistently maintained his innocence and was unwilling to accept a plea.” Both he and defense counsel testified at the Ginther hearing that “defendant maintained this position throughout the proceedings.” Under such circumstances, “it is generally not reasonably probable that the defendant would have accepted a plea offer.” As to the unreasonable search claim related to LEM, the court held in Hallak that while “LEM is a search, it is not unreasonable as applied to a defendant convicted of” CSC II against a minor. Hallak is binding precedent that foreclosed his constitutional challenges. Finally, to the extent he raised a facial constitutional challenge to SORA lifetime registration, it failed under Kardasz. And under that case’s framework, he did not establish that the requirements were “unconstitutional as applied to him.”

Drug delivery; Lay witness opinion testimony; MRE 701; People v Fomby; Pretextual stop; Fourth Amendment; People v Haney; Ineffective assistance of counsel; Failure to object; Failure to investigate; People v Trakhtenberg; Conspiracy; MCL 750.157a; People v Seewald; Prosecutorial error; People v Dobek; In-court identification; People v Posey; Brady v Maryland claim; Confrontation Clause; Lab report; Bullcoming v New Mexico; Juror challenges for cause; MCR 2.511(E)(10); People v Eccles

The court held that defendant was not entitled to relief on his evidentiary, Fourth Amendment, ineffective-assistance, evidence sufficiency, prosecutorial-error, identification, Brady, confrontation, or juror-challenge claims. He was convicted of delivery of a controlled substance and conspiracy to deliver after an undercover officer testified that defendant sold crack cocaine through an intermediary during a drug operation. On appeal, the court first held that the officer’s identification testimony was admissible because he was “a witness to, and participant in, the transaction,” and the disputed testimony addressed identity rather than directly opining on guilt. The court next held that defendant failed to show error from the stop where officers used littering as a reason to stop and identify him because, under Haney, the officer had probable cause to believe defendant committed an offense and was authorized to stop him. The court rejected defendant’s ineffective-assistance claims because he provided no offer of proof that uncalled witnesses would have helped him, counsel reasonably pursued misidentification through cross-examination, the habitual-offender notice was timely, and suppression arguments and proposed objections would have been futile. The court also held that sufficient circumstantial evidence supported conspiracy because defendant knowingly gave cocaine to the intermediary after the undercover officer provided money, permitting the jury to infer an agreement. The court further rejected defendant’s prosecutorial-error and in-court-identification claims, noting that the identification was not a first-time in-court identification under Posey. Finally, the court held that defendant failed to establish a Brady violation or Confrontation Clause violation related to the lab testing, and that the trial court properly excused jurors for cause under Eccles. Affirmed.

Malicious destruction of a building; Intent to destroy or damage; MCL 750.380(3)(a); People v Nelson; Sufficiency of the evidence; Ineffective assistance of counsel; Failure to move for a directed verdict; People v Riley; Prison attire; People v Harris; Evidentiary error; Surveillance-video title; Jury instructions; Accident defense; Court costs; MCL 769.1k(1)(b)(iii); People v Konopka; Restitution; MCL 769.1a(2); Indigency; People v Jackson

The court held that sufficient evidence supported defendant’s malicious-destruction conviction, that no trial-related prejudice required reversal, and that the trial court did not abuse its discretion by declining to waive costs, fees, and restitution. Defendant, an inmate at a correctional facility, became agitated and threw a dense plastic garbage can weighing several pounds into a glass window, breaking it. On appeal, the court first held that the evidence supported an intent to destroy or damage the property because defendant was agitated, used his “whole body” to throw the can, stepped toward the glass, created torque by lifting his back leg, and then “sauntered up to the door and sneered at the camera.” Although defendant testified that he did not intend to break the glass and was “shocked” when it broke, the jury was not required to credit that testimony. Counsel was not ineffective for failing to seek a directed verdict because the evidence was sufficient and the motion would have been futile. The court next held that defendant was not prejudiced by jail-issued clothing because the tan khakis did “not readily resemble prison attire,” and the record did not support his claim that MDOC guards were improperly positioned near him. It also held that the surveillance-video title identifying defendant as breaking the glass did not affect substantial rights because those facts were uncontested and cumulative. The court further held that the jury instructions adequately covered intent and accident because they stated that if defendant “did not intend to damage or destroy the property, he is not guilty.” Finally, the court upheld the costs, fees, and restitution because existing precedent rejected defendant’s tax arguments, the court costs were reasonably related to a jury trial, and defendant failed to prove extraordinary financial circumstances. Affirmed.

Ineffective assistance of counsel; Failure to obtain evidence; Failure to object to other acts evidence; Failure to renew request for an assault & battery jury instruction; Explanation of a plea offer; People v White; Prosecutorial error; Alleged Brady v Maryland violations; Leading witnesses; Eliciting other acts evidence; Closing remarks; Double jeopardy; Felonious assault & AWIGBH convictions; People v McKewen

The court held that defendant failed to show that either defense counsel or the prosecution made any errors at trial that prejudiced him. Further, his convictions of AWIGBH and felonious assault (and the accompanying felony-firearm offenses) did not violate double jeopardy. The case arose from a shooting. Defendant asserted that defense counsel was ineffective for, among other things, “failing to obtain Ring camera footage from the shooting because the footage could have been exculpatory.” However, the court noted that he did not “prove that this footage existed in the first place.” It concluded defense “counsel was not ineffective for failing to obtain evidence after requesting it, learning that it did not exist, and cross-examining a witness to confirm to the jury that it did not exist.” Defendant’s prosecutorial error claims included that “the prosecution committed ‘potential’ Brady violations by failing to obtain any Ring camera footage of the shooting and failing to provide him with all the text messages from the time of the shooting.” This claim failed because he did not establish that either the footage or the messages existed. As to the prosecutor’s closing remarks, the court noted that even if the challenged statements were improper, defendant failed to explain how any of them “prejudiced the outcome of his trial. Furthermore, the trial court instructed the jury not to consider evidence that defendant may have committed a separate crime or improper act as evidence of his guilt, that the lawyer’s arguments were not evidence, and that it must base the verdict solely on the evidence presented.” Defendant did not offer any “argument as to how the jury did not follow the trial court’s instructions or why the instructions did not cure any prosecutorial error.” Thus, he was not entitled to reversal. His claim that his AWIGBH and felonious assault convictions violated his constitutional right to be free from multiple punishments likewise failed. In McKewen, the Michigan Supreme Court “held that ‘convictions for both AWIGBH and felonious assault arising out of the same act do not violate constitutional double-jeopardy protections because the AWIGBH statute authorizes multiple punishments for the same conduct.’” Affirmed.

Sentencing; Procedural reasonableness; Application of the enhancement for terrorism offenses (USSG § 3A1.4); Substantive reasonableness; Whether the district court understated the seriousness of defendant’s conduct; Weight placed on national sentencing data; The need to protect the public; 18 USC § 3553(a)(2)(C)

The court held that defendant-Ramic’s sentence for providing material support to a terrorist group and receiving military-type training from it, which was substantially lower than the Guideline range, was “substantively unreasonable.” Ramic grew up in Bosnia but became a naturalized U.S. citizen. He joined ISIS, left this country for Syria, and participated in terrorist acts. He fought in the siege of Kobane, where the U.S. launched airstrikes against ISIS. Ramic’s Guideline sentence range was 360 to 600 months, but the district court sentenced him to 101 months. It ruled that the lower sentence was appropriate where Ramic “was merely a ‘fighter’ and a ‘soldier’ who joined ‘a standard army’ that wanted to ‘require strict adherence to [Islamic] law.’” Ramic appealed the sentence, and the government cross-appealed. The court rejected Ramic’s claim that his sentence was procedurally unreasonable, upholding the enhancement for terrorism offenses, § 3A1.4. Applying the “ordinary meaning” to the undefined word “government,” the court concluded it was not “limited to governments that the United States has formally recognized.” Additionally, “even if the Assad regime didn’t count as a government” the enhancement still applied “because Ramic’s conduct was also calculated to influence or affect the United States.” On cross-appeal, the government argued that the sentence was “too low.” The court agreed, holding that the district court failed to “adequately weigh the seriousness of Ramic’s crime, potential sentencing disparities, and the need to protect the public.” The evidence supported ISIS’s brutality, and Ramic’s embrace of ISIS’s ideology. The court also noted that the district court’s ruling that Ramic did not participate in “acts of terrorism” was not supported by Congress’s interpretation of what constitutes terrorism, and conflicted with the district court’s own findings. It also held that the district court misapplied the “national statistics” factor, noting the sentence was “shockingly low” compared to other defendants who engaged in similar conduct. Further, it “failed to properly weigh the need to protect the public from Ramic’s potential future crimes.” This was critical where “Ramic hasn’t disavowed terrorism.” Vacated and remanded for resentencing.

The Elliott-Larsen Civil Rights Act (ELCRA); Quid pro quo sexual harassment; Hamood v Trinity Health Corp; Hostile work environment based on sexual harassment; Statute of limitations; MCL 600.5805(2)

While the court held that the trial court did not err in dismissing plaintiff-Bellestri’s quid pro quo sexual harassment claim under MCR 2.116(C)(7), it erred in dismissing her hostile work environment claim. Plaintiff sued her employer, defendant-Costco, related to alleged sexual harassment perpetrated by defendant-Williams, “who was a supervisor at Costco up until the time that he was sentenced to prison for raping and physically assaulting her” in 2021. As to her quid pro quo claim, it was “undisputed that Williams was Bellestri’s supervisor prior to his demotion and transfer on” 8/31/18. But nothing in the amended complaint or the documentary evidence indicated “that Costco left Williams in a position capable of offering Bellestri tangible job benefits in exchange for sexual favors or with the ability to threaten her job based upon her failure to submit to his demands for sexual favors.” He ceased being her “supervisor. His alleged ability to threaten her career at Costco was dependent upon his alleged influence and friendship with individuals who were actually in a position to take a tangible employment action against Bellestri. Influence with individuals with authority over the plaintiff cannot form the basis for a quid pro quo sexual harassment claim.” Thus, she failed to allege any “conduct by Williams within the statutory limitations period that can form the basis for” this claim. But the court concluded she alleged conduct forming the basis for her hostile work environment claim that occurred after 8/31/18. She alleged that “Williams was again promoted by Costco to a supervisory position. He then contacted her. He threatened to destroy her career if she did not submit to a sexual relationship with him.” Among other things, he told her he was able “to influence her supervisors based upon his friendship with them. Bellestri alleged that, using that influence, Williams was able to affect her employment by having her paid time off canceled or scheduled for his benefit. He also allegedly used” it to prevent her from obtaining a transfer. And she asserted in an affidavit that “in 2020 and 2021 she reported to multiple supervisors and managers that Williams[] was threatening her employment if she did not engage in a sexual relationship with him. That report is sufficient to put Costco on notice of the ongoing nature of Williams’s sexual harassment.” Affirmed in part and reversed in part.

The 1976 Copyright Act; The three-year statute of limitations (17 USC § 507(b)); Claim accrual; “Plain and express repudiation”; Everly v Everly; Remaining issues of fact as to co-ownership & co-authorship of recordings

[This appeal was from the ED-MI.] The court reversed summary judgment for defendants-Thang and Clinton in this copyright case, holding that material disputes remain as to whether the statute of limitations barred plaintiff-Estate’s co-ownership and co-authorship claims over its decedent’s (Worrell) recordings with the funk group Parliament-Funkadelic (P-Funk). Worrell and Clinton were members of P-Funk. Their relationship became acrimonious, with allegations of failure to pay royalties and violation of agreements. After Worrell died in 2016, his Estate unsuccessfully sued Thang (Clinton’s company) in New York state court for contract breach involving a 1976 Agreement. “Thang successfully defended on the ground that Worrell lacked a countersigned copy of” that agreement. In 2022, the Estate sued Thang and Clinton in federal court, “seeking a declaration of its joint ownership of recordings Worrell created with P-Funk and, in turn, an accounting of royalties due.” The district court granted Thang and Clinton summary judgment based on the statute of limitations. On appeal, the court noted the 1976 Agreement’s invalidity was now res judicata—this case was a copyright matter with a three-year limitation period. Under the Copyright Act, an ownership claim accrues “whenever there is a ‘plain and express repudiation’ of ownership by one party as against the other.” The Estate argued that Worrell had relied on the Agreement instead of copyright law, so his “ownership rights under copyright law were not plainly and expressly repudiated until 2020 when Thang and Clinton denied the Agreement’s validity, at which point the copyright-ownership claims accrued.” The court held that there were genuine disputes of material fact precluding judgment as a matter of law. “Thang and Clinton arguably acted for years as though their nonpayment of royalties to Worrell was a problem under the terms of the 1976 Agreement, not a repudiation of Worrell’s status as a co-author and co-owner of the works produced in a period covered by the purported agreement.” The court held that whether the statute of limitations applied to songs that fell under “the 1976 Agreement and whether Worrell was a co-author and co-owner of those songs” were issues for a factfinder. Reversed and remanded.

Involuntary mental-health treatment; Continuing treatment order; MCL 330.1400(f); Ineffective assistance of counsel; In re Londowski; Counsel consultation; MCL 330.1454(7); Certification requirement; MCL 330.1454(9); In re Jestila; Evidentiary hearing; People v Ginther

The court held that respondent failed to establish ineffective assistance of counsel in connection with the order for continuing involuntary mental-health treatment. Respondent had a history of court-ordered treatment beginning in 2016, was transferred from jail to a hospital after an altercation with his mother, and later became the subject of a petition for a one-year continuing treatment order after repeated noncompliance with a prior order. On appeal, the court first rejected respondent’s claim that he did not understand the petition sought one year of treatment because he relied on a declaration outside the lower court record, the record showed he was personally served with a petition that “expressly recited the one-year duration in two distinct locations,” and he stated on the record that he agreed to a treatment order. The court next held that counsel’s failure to file the certification required by MCL 330.1454(9) fell below an objective standard of reasonableness, but respondent could not show prejudice because the record showed counsel met with him before the hearing, understood his consent to treatment and medication concerns, and “competently communicated respondent’s wishes to the court.” The court also deemed abandoned respondent’s claim that counsel should have scheduled a review hearing because he cited no authority imposing that duty. Finally, the court denied remand for a Ginther hearing because respondent’s declaration did not raise new factual disputes and an involuntary-treatment order “does not require respondent’s consent.” Affirmed.

No-fault insurance; PIP benefits; Discovery sanctions; MCR 2.313(B)(2); Dismissal; MCR 2.504(B)(1); Maldonado v Ford Motor Co; Failure to comply with discovery; Dean v Tucker; Lesser sanctions

The court held that the trial court did not abuse its discretion by dismissing plaintiff’s no-fault PIP claim as a discovery sanction. Plaintiff, an Uber passenger injured in a hit-and-run crash, sued defendant-insurer for PIP benefits. But he repeatedly failed to provide required discovery, including executed medical authorizations, supplemental initial disclosures, damages computations, medical-bill amounts, wage-loss information, and adequate interrogatory responses. On appeal, the court held that sanctions were warranted because plaintiff failed to comply with multiple court orders, including the scheduling order and a stipulated order requiring supplemental disclosures, medical authorizations, deposition dates, and discovery responses. The court then held that dismissal was within the range of reasonable outcomes because the trial court carefully applied the Dean factors and recognized that dismissal is a “drastic step that should be taken cautiously.” The violation was willful because plaintiff consciously chose not to provide supplemental initial disclosures after deciding that the original disclosures were enough, and “willful” does not require wrongful intent. The record also showed a repeated history of delay and noncompliance, including failure to respond to the dismissal motion and counsel’s failure to appear at the hearing. The court rejected plaintiff’s attempt to blame defendant for any incomplete record, noting that plaintiff could not shift his “self-advocacy responsibility” to opposing counsel. Finally, the trial court considered lesser sanctions, including striking portions of the claim or issuing another order to compel, but reasonably found them insufficient. Affirmed.

The 1976 Copyright Act; The three-year statute of limitations (17 USC § 507(b)); Claim accrual; “Plain and express repudiation”; Everly v Everly; Remaining issues of fact as to co-ownership & co-authorship of recordings

[This appeal was from the ED-MI.] The court reversed summary judgment for defendants-Thang and Clinton in this copyright case, holding that material disputes remain as to whether the statute of limitations barred plaintiff-Estate’s co-ownership and co-authorship claims over its decedent’s (Worrell) recordings with the funk group Parliament-Funkadelic (P-Funk). Worrell and Clinton were members of P-Funk. Their relationship became acrimonious, with allegations of failure to pay royalties and violation of agreements. After Worrell died in 2016, his Estate unsuccessfully sued Thang (Clinton’s company) in New York state court for contract breach involving a 1976 Agreement. “Thang successfully defended on the ground that Worrell lacked a countersigned copy of” that agreement. In 2022, the Estate sued Thang and Clinton in federal court, “seeking a declaration of its joint ownership of recordings Worrell created with P-Funk and, in turn, an accounting of royalties due.” The district court granted Thang and Clinton summary judgment based on the statute of limitations. On appeal, the court noted the 1976 Agreement’s invalidity was now res judicata—this case was a copyright matter with a three-year limitation period. Under the Copyright Act, an ownership claim accrues “whenever there is a ‘plain and express repudiation’ of ownership by one party as against the other.” The Estate argued that Worrell had relied on the Agreement instead of copyright law, so his “ownership rights under copyright law were not plainly and expressly repudiated until 2020 when Thang and Clinton denied the Agreement’s validity, at which point the copyright-ownership claims accrued.” The court held that there were genuine disputes of material fact precluding judgment as a matter of law. “Thang and Clinton arguably acted for years as though their nonpayment of royalties to Worrell was a problem under the terms of the 1976 Agreement, not a repudiation of Worrell’s status as a co-author and co-owner of the works produced in a period covered by the purported agreement.” The court held that whether the statute of limitations applied to songs that fell under “the 1976 Agreement and whether Worrell was a co-author and co-owner of those songs” were issues for a factfinder. Reversed and remanded.

No-fault insurance; PIP benefits; Discovery sanctions; MCR 2.313(B)(2); Dismissal; MCR 2.504(B)(1); Maldonado v Ford Motor Co; Failure to comply with discovery; Dean v Tucker; Lesser sanctions

The court held that the trial court did not abuse its discretion by dismissing plaintiff’s no-fault PIP claim as a discovery sanction. Plaintiff, an Uber passenger injured in a hit-and-run crash, sued defendant-insurer for PIP benefits. But he repeatedly failed to provide required discovery, including executed medical authorizations, supplemental initial disclosures, damages computations, medical-bill amounts, wage-loss information, and adequate interrogatory responses. On appeal, the court held that sanctions were warranted because plaintiff failed to comply with multiple court orders, including the scheduling order and a stipulated order requiring supplemental disclosures, medical authorizations, deposition dates, and discovery responses. The court then held that dismissal was within the range of reasonable outcomes because the trial court carefully applied the Dean factors and recognized that dismissal is a “drastic step that should be taken cautiously.” The violation was willful because plaintiff consciously chose not to provide supplemental initial disclosures after deciding that the original disclosures were enough, and “willful” does not require wrongful intent. The record also showed a repeated history of delay and noncompliance, including failure to respond to the dismissal motion and counsel’s failure to appear at the hearing. The court rejected plaintiff’s attempt to blame defendant for any incomplete record, noting that plaintiff could not shift his “self-advocacy responsibility” to opposing counsel. Finally, the trial court considered lesser sanctions, including striking portions of the claim or issuing another order to compel, but reasonably found them insufficient. Affirmed.

Involuntary mental-health treatment; Continuing treatment order; MCL 330.1400(f); Ineffective assistance of counsel; In re Londowski; Counsel consultation; MCL 330.1454(7); Certification requirement; MCL 330.1454(9); In re Jestila; Evidentiary hearing; People v Ginther

The court held that respondent failed to establish ineffective assistance of counsel in connection with the order for continuing involuntary mental-health treatment. Respondent had a history of court-ordered treatment beginning in 2016, was transferred from jail to a hospital after an altercation with his mother, and later became the subject of a petition for a one-year continuing treatment order after repeated noncompliance with a prior order. On appeal, the court first rejected respondent’s claim that he did not understand the petition sought one year of treatment because he relied on a declaration outside the lower court record, the record showed he was personally served with a petition that “expressly recited the one-year duration in two distinct locations,” and he stated on the record that he agreed to a treatment order. The court next held that counsel’s failure to file the certification required by MCL 330.1454(9) fell below an objective standard of reasonableness, but respondent could not show prejudice because the record showed counsel met with him before the hearing, understood his consent to treatment and medication concerns, and “competently communicated respondent’s wishes to the court.” The court also deemed abandoned respondent’s claim that counsel should have scheduled a review hearing because he cited no authority imposing that duty. Finally, the court denied remand for a Ginther hearing because respondent’s declaration did not raise new factual disputes and an involuntary-treatment order “does not require respondent’s consent.” Affirmed.

Termination under § 19b(3)(c)(i); Reasonable reunification efforts; Accommodation of a respondent’s disability; The Americans with Disabilities Act (ADA); In re Hicks/Brown; Distinguishing In re Matamoros; Child’s best interests; Effect of relative placement; Consideration of a guardianship

The court held that the trial court did not clearly err in finding that termination of both respondents’ parental rights was warranted under § (c)(i). Further, respondent-father did not show plain error affecting his substantial rights as to the DHHS’s alleged failure to accommodate his mental-health related disability. Finally, it concluded the trial court did not clearly err in finding that terminating the father’s rights was in the child’s (KH) best interests. As to respondent-mother, over “two years elapsed between the initial dispositional order and the termination order. During that substantial period of time, [she] made progress on rectifying the conditions that led to adjudication by addressing her untreated mental health condition.” The court noted her “progress was remarkable given [her] history with CPS and foster care.” But despite that progress, concerns about her “mental health status had resurfaced yet again. [She] would, for ‘a majority’ of unsupervised visits, call foster-care workers after hours ‘in a panic,’ report that she was feeling ‘overwhelmed and stressed out,’ and request that KH be picked up. On one such occasion, the on-call supervisor who picked up KH reported that [the] mother smelled of alcohol and that KH had a mark on his chin. KH reported that [the] mother had hit him. Then [she] was incarcerated for three days following an altercation with [the] father. On another occasion, [she] was reported to have attempted to kick in [the] father’s front door, after which she walked with a limp for a week or two.” As to the father, he made “no effort to explain how and why petitioner’s efforts were not reasonably accommodating[,]” and his reliance on Matamoros was unpersuasive as that case was distinguishable. As to § (c)(i), in “the roughly two-year period between the dispositional order imposing [the] father’s service plan and the termination of his parental rights, [his] lack of participation in KH’s life—one of the conditions that led to his removal—remained constant. In that period of time, [he] had visited KH just three times out of a possible 143 weekly visits.” Finally, the court found that “the trial court properly weighed KH’s relative placement against termination” and did not clearly err in considering “KH’s need for stability, permanency, and a safe home environment.” Affirmed.