Legal malpractice; Statute of limitations; MCL 600.5805 & 600.5838; Gebhardt v O’Rourke; Harm for purposes of accrual; Equitable estoppel; Lothian v City of Detroit

Holding that plaintiffs’ legal malpractice claim was barred by the statute of limitations and that invoking the equitable estoppel doctrine was unwarranted, the court affirmed summary disposition for defendants. Plaintiffs contended their action was not time-barred because pursuant to MCL 600.5838(2), they filed it within six months of a related Delaware trial court judgment and that “judgment constituted the earliest date on which they could have reasonably discovered the alleged malpractice.” The court noted that the relevant limitations statutes were MCL 600.5805 and 600.5838, which the Michigan Supreme Court interpreted in the context of a legal malpractice claim in Gebhardt. Plaintiffs here “acknowledged that defendants stopped representing them on [1/21/21]. Plaintiffs knew of possible legal malpractice by [5/21], when they were named as defendants in the Delaware case based on” a letter written by defendant-Frenkel. They, “or their representative, had communicated with Frenkel, expressly conveying their position that the Delaware action was based solely upon statements made during his representation. The record demonstrates the existence of an attorney-client relationship, plaintiffs’ belief that Frenkel was negligent in his drafting of the [12/18/20], letter, and their conviction that such negligence proximately caused the harm suffered through the necessity of defending the Delaware action.” They filed this action on 11/12/24—well over six months after “they knew, or reasonably should have known, of the potential claim in” 5/21. Even if 5/22 “e-mail correspondence with defendants, which articulated more specific allegations of malpractice, were viewed as the triggering event for the six-month period,” the action was still untimely. Thus, their claim was barred under the six-month discovery rule. While they asserted that they had “to await a final judgment in the Delaware litigation before” filing their malpractice suit, the court noted that “Michigan law is clear that harm for purposes of accrual is established not by the finality of damages, but by the occurrence of an identifiable and appreciable loss.” Further, they did not “establish that defendants made any false representation or concealed material facts with the intent and knowledge necessary to invoke equitable estoppel.”

Condominium assessments; Lien; Condominium Act; Bylaws; MCL 559.165; Breach of contract; Statute of limitations; MCL 600.5807(9); Miller-Davis Co v Ahrens Constr, Inc; Tortious interference with a business expectancy; Dalley v Dykema Gossett; Amendment of complaint; Futility

The court held that the trial court properly granted defendant-condominium association summary disposition on plaintiff’s breach-of-contract, tortious-interference, and Condominium Act claims. The dispute involved assessments and a lien on plaintiff’s condominium, which later resulted in funds being held in escrow during a sale. The court first held that plaintiff’s breach-of-contract claim was barred by the six-year statute of limitations because a contract claim “begins to run when the promisor fails to perform,” and defendant continued charging assessments in 2015 after the parties’ 2014 release. Because plaintiff filed suit in 2023, more than six years after accrual, the claim was time-barred. The court next held that plaintiff could not show tortious interference with the escrow agreement because defendant was not a party to that agreement, plaintiff presented no evidence defendant knew about it, and she failed to show “specific and affirmative acts” corroborating improper motive. The court also held that plaintiff failed to establish a Condominium Act violation because defendant’s bylaws authorized assessments, made unpaid assessments a lien, and permitted collection from the sale price, while plaintiff cited no bylaw or statutory provision that defendant violated. Finally, the court declined remand for amendment because the proposed new breach-of-contract claims were futile, including one barred by limitations and others unsupported by evidence defendant refused to release liens. Affirmed.

Miranda waiver; Knowing & intelligent waiver; Voluntary intoxication; LSD; Miranda v Arizona; People v Daoud; People v Cipriano; Harmless error; People v Sammons; Assault with intent to commit criminal sexual conduct (CSC) involving penetration; MCL 750.520g(1); Specific intent

The court held that defendant’s Miranda waiver was invalid because it was not knowing and intelligent, and that admission of his hospital statement was not harmless beyond a reasonable doubt. Defendant, who was 18, had taken six tabs of LSD before allegedly assaulting someone. He was hospitalized after police found him partially unclothed and hallucinating, and later told a deputy, “I am a rapist and I am fucked.” The court first held that voluntary intoxication does not make a Miranda waiver “per se invalid,” but is part of the totality of the circumstances. It reasoned that the question was not whether defendant was still hallucinating when warned, but whether he had “the mental capacity to understand his rights and the import of waiving” them. The court emphasized that the deputy described defendant as “confused,” that defendant gave mostly yes-or-no answers after “long pauses,” that he testified time was “moving at a weird pace,” and that the deputy later told defendant’s stepfather he was “too out of it” for a conversation. The court also relied on defendant’s age, lack of prior law-enforcement experience, and lack of sleep or food, concluding the prosecution failed to prove a knowing and intelligent waiver by a preponderance of the evidence. The court next held that the error was not harmless because defendant was convicted of a specific-intent offense requiring proof that he intended CSC involving penetration. It reasoned that his statement that he was “a rapist” was “tantamount to an admission” of intent and “the strongest evidence” on that element, so an average jury would have found the prosecution’s case “significantly less persuasive” without it. Reversed, vacated, and remanded.

Justice Bernstein concurred in part and dissented in part. He agreed that defendant’s Miranda waiver was invalid, that the statements should have been excluded, and that the error was not harmless, but would have held the waiver invalid because it was involuntary rather than because it was not knowing and intelligent. He reasoned that Daoud requires only “a very basic understanding” for a knowing and intelligent waiver, and that the better analysis was voluntariness under the circumstances here.

Jury instruction on the lesser included offense of manslaughter; People v Mendoza; People v Mitchell; Sufficiency of the evidence for a first-degree premeditated murder conviction; People v Oros; Evidence that defendant watched pornographic materials after the victim’s death; Relevance; MRE 401; Unfair prejudice; MRE 403; People v Jones; Harmless error

The court held that (1) the trial court did not abuse its discretion in not giving a voluntary manslaughter jury instruction, (2) there was sufficient evidence to support defendant’s first-degree premeditated murder conviction, and (3) any error in admitting evidence that he “watched pornographic materials after the victim’s death” was harmless. He first argued that the trial court erred in “not instructing the jury of the lesser included offense of manslaughter.” The court disagreed, concluding that the evidence did not support the instruction. While he asserted two bases for adequate provocation, the court noted that “when the claimed provocation consists only of words, it is generally considered inadequate provocation.” As to the second basis, the evidence indicated “that defendant may have initiated the act, and even if he did not initiate [it], he felt like he could simply tell the victim to stop if he did not like it.” Thus, the evidence did not support his allegation that the act in question “would have caused him to become so inflamed with a murderous passion that he could not make reasoned decisions.” The court added that, even assuming he “was adequately provoked, the evidence demonstrated that he had ample time to control his emotions.” Among other things, he told someone “that when he saw that the victim was ‘groggy,’ he looked at her and decided that he had to ‘finish her off[,]’” and the medical examiner testified that “death by strangulation takes approximately two minutes[.]” As to the sufficiency of the evidence for his conviction, his claim “that the victim’s death was an accident is directly rebutted by his own statement that he chose not to stop choking her when she requested that he stop.” Further, there was ample evidence that could lead a rational trier of fact “to find that there was sufficient time for a reasonable person in [his] shoes to subject his action to a second look.” Among the evidence supporting a finding of premeditation and deliberation was “the nature, number, and location of the victim’s wounds, including evidence of multiple blows to her head, as well as fractured cartilage in her neck;” the presence of his DNA under her fingernails; and his “post offense conduct of physically concealing the crime[.]” Affirmed.

Motion to suppress; Custodial statements; Validity of a Miranda waiver; People v Gipson; Invocation of the right to counsel; People v Tierney; Jury trial waiver; People v Cook; Compliance with MCR 6.402(B); Admission of preliminary exam testimony; Unavailable witness; MRE 804(a)(2) & (b)(1); Opportunity to fully develop the witness’s testimony during the preliminary exam; People v Farquharson; People v Vera; Confrontation Clause; People v Garland

The court held that the trial court did not err in denying defendant’s motion to suppress his custodial statements because he “knowingly and voluntarily waived his rights in both interviews.” It also did not err in accepting his jury trial waiver, or in determining that the complainant was unavailable and admitting her preliminary exam testimony. Finally, there was no violation of the Confrontation Clause. Thus, the court affirmed defendant’s CSC I and kidnapping convictions. In his motion to suppress, he challenged the admissibility of statements he made during his polygraph exam and a police interview. The court concluded the record clearly showed that “in both instances, defendant initiated contact with law enforcement and was properly advised of and waived his rights under Miranda.” The police detectives involved in the interview did not observe “any indicia of impairment or distress that would have affected defendant’s capacity to waive his rights, and” he did not assert any diminished capacity. As to the jury trial waiver, the “trial court adhered to the procedural requirements set forth in MCR 6.402(B) when it examined defendant” about waiving his right. He did not identify any deficiency in its inquiry. As to the admission of the complainant’s preliminary exam testimony, the court held that under the circumstances, the trial court properly concluded she was unavailable. The complainant acknowledged she received the “order to appear but nonetheless persisted in her refusal to testify.” Defendant contended that he did not have “an adequate opportunity to fully develop” her testimony during the preliminary exam “because his original counsel was newly appointed and had not yet received discovery.” But he failed to “identify any specific portions of the complainant’s preliminary examination testimony that would have been subject to more robust cross-examination had discovery been available.” The court noted that her testimony addressed the charged offenses, “and defendant had the opportunity and motive to subject her testimony to cross-examination.” Thus, he had “an ‘interest of substantially similar intensity in proving or disproving’” her testimony. Lastly, “because the witness was unavailable within the meaning of MRE 804(a)(2), and defendant was afforded a prior opportunity for cross-examination, the requirements of the Confrontation Clause were satisfied.”

Sentencing; Forfeiture; FedRCrimP 32.2(b)(4)(B); Failure to impose forfeiture at the time of sentencing; Failure to include forfeiture in the initial & first amended judgments; Whether the error could be corrected as a “clerical error” under Rule 36; Whether Rule 32.2(b)(4)(B) is a “claim-processing rule” or a “time-related directive”; McIntosh v United States; Maddux v United States; Harmless error; “Right to presence”; Due process; Rule 43(a); Plain error review; Applicability of the invited-error doctrine; Department of Veterans Affairs (VA)

While the district court violated Rule 32.2(b)(4)(B) with its post-sentencing imposition of forfeiture, the court ruled in an issue of first impression that the rule is a “time-related directive subject to harmless-error review,” and that defendant-Harrell’s substantial rights were not violated by the error. A jury convicted him of theft of government funds by accepting VA disability benefits after he had become “gainfully employed.” His sentence included forfeiture of his proceeds. However, the district court did not impose the “forfeiture until several months after the sentencing hearing.” The case included “a series of judgment-related anomalies.” Eventually, the district court issued a second amended judgment that “finally imposed forfeiture in the amount of $108,454.88.” On appeal, Harrell sought to have the forfeiture vacated. The court first held that the district court violated Rule 32.2(b)(4)(B) where it failed to “affirmatively impose forfeiture at the point of sentencing.” It additionally violated the rule “by failing to include forfeiture in its initial or first amended judgments.” The court considered whether Rule 32.2(b)(4)(B) is a claim-processing rule or a time-related directive, and held that, under the reasoning of McIntosh (which abrogated Maddux), it is the latter. As such, it is subject to harmless error analysis, and Harrell’s claim failed. He “had plenty of notice that the government sought forfeiture in the amount of $108,454.88.” It included forfeiture in its indictment, moved for a preliminary order of forfeiture about a month before sentencing, requested that amount “in forfeiture in its sentencing memorandum, and requested forfeiture orally at the sentencing hearing. Harrell also had a full and fair opportunity to contest the government’s forfeiture request.” The court further concluded that the district court’s post-sentencing written imposition of forfeiture did not violate his “right to presence under the Due Process Clause, and, although it violated Harrell’s right to presence under Rule 43(a), it did not affect [his] substantial rights under plain-error review. Additionally, the written sentence did not impermissibly conflict with the oral sentence.” Affirmed.

No-fault insurance; Personal protection insurance (PIP) benefits; Unlawful taking; MCL 500.3113(a); Supreme Court remand; Knowledge; Ahmed v Tokio Marine Am Ins Co

The court held that plaintiff was barred from recovering PIP benefits because she knowingly took her friend’s vehicle without permission. The case returned on remand from the Supreme Court, which directed the court to address whether plaintiff’s taking of the vehicle was unlawful rather than whether she operated it unlawfully. Plaintiff took her friend’s keys and vehicle without permission during a family emergency, had never driven the vehicle before, lacked a valid driver’s license, and was injured in an accident. On remand, the court held that MCL 500.3113(a) barred recovery because plaintiff testified she “did not ask . . . for permission,” “just got the car because [she] had a family emergency,” and “had no permission to operate [the] vehicle.” The court rejected plaintiff’s reliance on her friendship with the owner and the emergency circumstances because “reasonable belief” is no longer the statutory standard. Relying on Ahmed, the court explained that the Legislature removed the earlier “safe-harbor provision” and replaced it with a scienter requirement under which a claimant is disqualified if she “knew or should have known” the taking was unlawful. Because the undisputed facts showed plaintiff knowingly took the vehicle without permission, the trial court erred by denying defendant’s motion for summary disposition. Reversed and remanded.

No-fault insurance; Personal protection insurance (PIP) benefits; Unlawful taking; MCL 500.3113(a); Supreme Court remand; Knowledge; Ahmed v Tokio Marine Am Ins Co

The court held that plaintiff was barred from recovering PIP benefits because she knowingly took her friend’s vehicle without permission. The case returned on remand from the Supreme Court, which directed the court to address whether plaintiff’s taking of the vehicle was unlawful rather than whether she operated it unlawfully. Plaintiff took her friend’s keys and vehicle without permission during a family emergency, had never driven the vehicle before, lacked a valid driver’s license, and was injured in an accident. On remand, the court held that MCL 500.3113(a) barred recovery because plaintiff testified she “did not ask . . . for permission,” “just got the car because [she] had a family emergency,” and “had no permission to operate [the] vehicle.” The court rejected plaintiff’s reliance on her friendship with the owner and the emergency circumstances because “reasonable belief” is no longer the statutory standard. Relying on Ahmed, the court explained that the Legislature removed the earlier “safe-harbor provision” and replaced it with a scienter requirement under which a claimant is disqualified if she “knew or should have known” the taking was unlawful. Because the undisputed facts showed plaintiff knowingly took the vehicle without permission, the trial court erred by denying defendant’s motion for summary disposition. Reversed and remanded.

Legal malpractice; Statute of limitations; MCL 600.5805 & 600.5838; Gebhardt v O’Rourke; Harm for purposes of accrual; Equitable estoppel; Lothian v City of Detroit

Holding that plaintiffs’ legal malpractice claim was barred by the statute of limitations and that invoking the equitable estoppel doctrine was unwarranted, the court affirmed summary disposition for defendants. Plaintiffs contended their action was not time-barred because pursuant to MCL 600.5838(2), they filed it within six months of a related Delaware trial court judgment and that “judgment constituted the earliest date on which they could have reasonably discovered the alleged malpractice.” The court noted that the relevant limitations statutes were MCL 600.5805 and 600.5838, which the Michigan Supreme Court interpreted in the context of a legal malpractice claim in Gebhardt. Plaintiffs here “acknowledged that defendants stopped representing them on [1/21/21]. Plaintiffs knew of possible legal malpractice by [5/21], when they were named as defendants in the Delaware case based on” a letter written by defendant-Frenkel. They, “or their representative, had communicated with Frenkel, expressly conveying their position that the Delaware action was based solely upon statements made during his representation. The record demonstrates the existence of an attorney-client relationship, plaintiffs’ belief that Frenkel was negligent in his drafting of the [12/18/20], letter, and their conviction that such negligence proximately caused the harm suffered through the necessity of defending the Delaware action.” They filed this action on 11/12/24—well over six months after “they knew, or reasonably should have known, of the potential claim in” 5/21. Even if 5/22 “e-mail correspondence with defendants, which articulated more specific allegations of malpractice, were viewed as the triggering event for the six-month period,” the action was still untimely. Thus, their claim was barred under the six-month discovery rule. While they asserted that they had “to await a final judgment in the Delaware litigation before” filing their malpractice suit, the court noted that “Michigan law is clear that harm for purposes of accrual is established not by the finality of damages, but by the occurrence of an identifiable and appreciable loss.” Further, they did not “establish that defendants made any false representation or concealed material facts with the intent and knowledge necessary to invoke equitable estoppel.”

Condominium assessments; Lien; Condominium Act; Bylaws; MCL 559.165; Breach of contract; Statute of limitations; MCL 600.5807(9); Miller-Davis Co v Ahrens Constr, Inc; Tortious interference with a business expectancy; Dalley v Dykema Gossett; Amendment of complaint; Futility

The court held that the trial court properly granted defendant-condominium association summary disposition on plaintiff’s breach-of-contract, tortious-interference, and Condominium Act claims. The dispute involved assessments and a lien on plaintiff’s condominium, which later resulted in funds being held in escrow during a sale. The court first held that plaintiff’s breach-of-contract claim was barred by the six-year statute of limitations because a contract claim “begins to run when the promisor fails to perform,” and defendant continued charging assessments in 2015 after the parties’ 2014 release. Because plaintiff filed suit in 2023, more than six years after accrual, the claim was time-barred. The court next held that plaintiff could not show tortious interference with the escrow agreement because defendant was not a party to that agreement, plaintiff presented no evidence defendant knew about it, and she failed to show “specific and affirmative acts” corroborating improper motive. The court also held that plaintiff failed to establish a Condominium Act violation because defendant’s bylaws authorized assessments, made unpaid assessments a lien, and permitted collection from the sale price, while plaintiff cited no bylaw or statutory provision that defendant violated. Finally, the court declined remand for amendment because the proposed new breach-of-contract claims were futile, including one barred by limitations and others unsupported by evidence defendant refused to release liens. Affirmed.

Children’s best interests; Parent-child bond; Sexual abuse of sibling; Anticipatory neglect; In re Mota; In re AH; Distinguishing In re Kellogg & In re LaFrance; Relative placement; In re Atchley; Credibility

The court held that the trial court did not err by finding that termination of respondent-father’s parental rights was in the children’s best interests. Respondent challenged only the best-interests ruling after the trial court found statutory grounds based on his sexual abuse of the children’s half-sister, who regarded him as her father and had cognitive and developmental impairments. The court first acknowledged factors weighing against termination, including an “undisputed” parental bond, appropriate parenting time, and placement with nonrespondent-mother, but held that the trial court properly considered those “countervailing factors.” The court next held that respondent’s sexual abuse of the half-sister was highly probative of risk to the children because, under anticipatory neglect, a parent’s treatment of one child is “probative of potential treatment of other children.” The court reasoned that Kellogg and LaFrance were distinguishable because this case involved a nonbiological child to whom respondent stood in a parental role, and Mota recognizes use of anticipatory neglect where a respondent “has assumed a parental role with respect to the victim.” The court also held that the children’s vulnerabilities supported the risk finding because one child had developmental disabilities and the younger children’s “tender age and susceptibility” placed them similarly at risk. Finally, the court deferred to the trial court’s credibility finding that the half-sister’s allegations were “highly credible and persuasive,” particularly because her cognitive delays made successful coaching “unlikely.” Affirmed.

Reasonable reunification efforts; Americans with Disabilities Act (ADA); Cognitive impairments; Mental health; In re Hicks/Brown; In re Terry; In re Frey; In re Sanborn; Service plan; Accommodations; Failure to benefit

The court held that the trial court did not err by finding that DHHS made reasonable reunification efforts, including reasonable accommodations for respondent-mother’s disability-related needs. Respondent challenged only reasonable efforts after termination of her parental rights to three children, arguing that DHHS failed to accommodate her cognitive impairments and mental-health conditions. The court first recognized that, under Hicks/Brown, DHHS’s reasonable-efforts duty overlaps with the ADA when it knows a parent has a disability, but concluded the record contained “ample evidence” of accommodations. The foster-care supervisor testified that DHHS modified “typical and routine practices” by providing transportation, appointment reminders, “hands-on assistance,” a lawyer-guardian ad litem, psychological and IQ testing, help completing evaluation paperwork, and material supports such as pill containers, calendars, planners, bags, and glasses. The court also held that respondent failed to show the accommodations were inadequate because she did not identify specific service deficiencies or establish that she would have “fared better” with different services. Finally, it rejected the claim that DHHS prematurely sought termination based only on the psychological evaluation. The court reasoned that DHHS continued services after receiving the report, did not file the supplemental petition until late 2024, and witnesses later testified respondent “failed to demonstrate any benefit” from services or improvement sufficient to address reunification barriers. Affirmed.