Criminal contempt; MCL 600.1711(1); People v MacLean; Due process; Notice of contempt charges; MCL 600.1711(2); In re Contempt of Henry; Judicial disqualification; Appearance of impropriety; MCR 2.003(C)(1)(b)(ii); People v Loew; Guardianships; Right to counsel; MCL 700.5304; In re Malloy Guardianship

The court held that the criminal-contempt order had to be reversed because the evidence was insufficient and appellant’s due-process rights were violated, although the probate court did not err by temporarily restricting his contact with the ward (JO) concerning the jury-demand issue. The case arose after appellant, an attorney and former counsel for JO, appeared in a guardianship matter, filed an appearance and jury demand, and was later accused by the probate court of making misrepresentations about whether he had spoken with JO before doing so. The probate court ultimately found him in criminal contempt. On appeal, the court held that criminal contempt must be proven beyond a reasonable doubt and that the record did not clearly and unequivocally show a willful disregard of the probate court’s authority. It emphasized that whether appellant had been dishonest depended on facts outside the judge’s personal knowledge, so he could not be punished summarily based only on an alleged in-court inconsistency. Further, “[s]elf-contradiction alone cannot be a basis for the exercise of a power our Supreme Court has deemed ‘awesome’ and to be used ‘with the utmost restraint.’” The court next held that due process was denied because appellant was not given notice of the charges in a manner consistent with MCL 600.1711(2) and MCR 3.606(A), which require some form of proof of the facts charged and an opportunity to defend. The court also held that reassignment was necessary because the judge’s remarks suggested “the trial court would have difficulty putting aside its previously expressed views, and” the court concluded “the appearance of justice would be better served by remanding” the contempt proceedings to a different judge. But it held that the limited 21-day restriction on contact with JO about a jury trial did not violate JO’s rights because it was narrowly tailored to protect the fairness and ethical integrity of the proceedings. Reversed and remanded for vacatur of the contempt judgment and dismissal, with any further contempt proceedings to be heard by a different judge.

Postconviction relief; Successive motion for relief from judgment; MCR 6.502(G)(2)(a); People v Lemons; Sentencing; Acquitted conduct; People v Beck; Retroactivity; Collateral review; People v Motten

The court held that as Beck did not apply retroactively on collateral review, defendant was not entitled to file a successive motion for relief from judgment based on his acquitted-conduct sentencing claim. After a 2011 jury trial, defendant was convicted of armed robbery, conspiracy, cocaine possession, resisting and obstructing, fleeing and eluding, FIP, and felony-firearm, but was acquitted of murder charges stemming from a drug-transaction shooting. The trial court denied his request for leave to file another motion for relief from judgment after he argued that Beck retroactively barred the sentencing court from relying on the victim’s death. On appeal, the court noted that MCR 6.502 generally limits a defendant to “one and only one motion for relief from judgment” and allows a successive motion only when there has been “a retroactive change in the law that occurred after the first motion for relief from judgment was filed.” The court held that although Beck declared that “due process bars sentencing courts from finding by a preponderance of evidence that a defendant engaged in conduct of which he was acquitted,” that rule could not help defendant because Motten had already concluded that “Beck’s holding is not retroactive on collateral review.” Because Motten is binding, the court held that the trial court did not abuse its discretion in denying leave under MCR 6.502(G)(2)(a). Affirmed.

Sentencing; Adequacy of the explanation & justification for a departure sentence; People v Walden; People v Dixon-Bey; References to defendant’s apparent lack of remorse in connection with status conference delays; Absence of a rationale for the extent of the departure; People v Smith

The court held “that the trial court provided adequate explanation and justification for a departure sentence in this case[.]” But it found that remand and resentencing were required (1) to ensure the “sentence was not influenced by the trial court’s improper consideration of the fact that defendant waited to plead guilty” and (2) for further clarification of the reasons for the extent of the departure. Defendant pled guilty to CSC III. The trial court departed from the minimum guidelines range of 24 to 40 months and sentenced him to 10 to 15 years. It “discussed some topics already considered by the OVs, such as: (1) the psychological injury to [victim-]DH, (2) the exploitation of a vulnerable victim, (3) defendant’s pressuring statements to DH and her grandmother to not report his crimes, and (4) DH’s disclosure of at least three specific assaults by defendant[.]” However, it also discussed topics the OVs did not consider, “such as: (1) the timeframe in which defendant took accountability and expressed remorse; (2) the fact that defendant was charged with three” CSC I counts and that the circumstances indicated he “was guilty of at least two” CSC I counts; “and (3) the trial court’s belief that defendant was a risk to children, especially considering that [his] actions took place in the presence of DH’s unaware mother and brother.” The court concluded “the trial court’s sentencing rationale—which spanned six pages of transcript—provided adequate explanation and justification for a departure sentence” here. But it was concerned about “the trial court’s: (1) references to defendant’s apparent lack of remorse in connection with the delay of status conferences in this case, and (2) rationale, or lack thereof, explaining the extent of the departure imposed.” The court noted that trial courts “may not factor a defendant’s delay in accepting a plea deal as a reason for a departure sentence. Doing so could be seen as penalizing a defendant for exercising his or her right to a trial.” A statement made by the trial court suggested it “may have been motivated to penalize defendant for waiting to accept a plea deal.” This required remand and resentencing. The court also found there was “a question as to whether the trial court provided adequate reasons for the extent of the departure imposed.” Vacated and remanded. The court retained jurisdiction.

Interstate child custody dispute; The Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA); Subject-matter jurisdiction; Reliance on the Child Custody Act (CCA), Acknowledgment of Parentage Act, & Paternity Act; Applicability of MCR 2.621; The collateral bar rule; In re Ferranti; Standing; Enforcement of an Arizona custody order; MCL 722.1307; MCL 722.1304(4); “Shall”; The Parental Kidnapping Prevention Act; US Const, art IV, § 1; 28 USC § 1738

Concluding that respondent-mother’s (Brock) jurisdictional arguments lacked merit, the court held that the trial court complied with the UCCJEA’s mandates and did not err in “registering, confirming, and enforcing the Arizona custody order” obtained by petitioner-father (Winter). It first noted that Brock’s reliance on the CCA, the Acknowledgment of Parentage Act, and the Paternity Act was misplaced. Given that this was “an interstate custody dispute, ‘[t]he UCCJEA is the exclusive basis for determining whether a court has jurisdiction to make an initial child-custody determination.’” Her reliance on MCR 2.621 was also misplaced as it did not apply. She next argued that the trial court erred in “registering and confirming the Arizona custody order because the Arizona trial court lacked subject-matter jurisdiction over the custody proceedings[.]” The court determined this was an impermissible collateral attack on its 10/23 order in a related prior case, which “held that Arizona was the child’s home state under the UCCJEA and ordered the dismissal of a custody action initiated by Brock for lack of jurisdiction.” It noted that she “had an opportunity to ‘seek relief by’ filing a motion for reconsideration of [that] order, or by filing an application for leave to appeal to our Supreme Court.” While she unsuccessfully moved for reconsideration, “she did not avail herself of the opportunity to seek leave to appeal to our Supreme Court, and the time to do so has long since expired.” Thus, she failed to “exercise her direct right to appeal to the Supreme Court.” She tried to avoid the collateral bar rule by arguing that the court lacked jurisdiction to issue the 10/23 “order because Winter lacked standing to appeal.” But the court concluded it had jurisdiction over the appeal even if Winter lacked standing, “and the alleged lack of standing does not render void the” 10/23 order. As a result, “the collateral bar rule prohibits Brock from arguing that the Arizona trial court lacked subject-matter jurisdiction over the custody matter under the UCCJEA.” In addition, for these reasons, she was “not entitled to relief under MCL 722.1206, MCL 722.1207, and MCL 722.1208.” Further, given that “the Arizona trial court had subject-matter jurisdiction under the UCCJEA, Brock’s arguments that” the US Constitution and federal statutes barred enforcement of the Arizona custody order had no merit. Affirmed.

Personal protection insurance (PIP) benefits; MCL 500.3157(15)(f); The multiple-procedure payment reduction (MPPR) Medicare rule; Favot v Brown

Concluding that the outcome here was governed by Favot, the court held that “the MPPR may be applied in determining the amount of PIP benefits payable by” defendant-no-fault insurer for plaintiffs-providers’ MRI services. This interlocutory appeal concerned payment of PIP benefits. “Defendant provided no-fault PIP coverage to a nonparty insured[,]” who sustained injuries due to a motor vehicle accident, and received MRI services provided by plaintiffs. “In determining the amount potentially payable for those services, defendant applied the” Medicare MPPR “rule, which reduces the payable amount by a certain percentage when multiple procedures are performed during a single patient encounter. Plaintiffs brought suit in district court, seeking nonreduced payment for their services.” The district court denied defendant’s motion for partial summary disposition, and the circuit court affirmed. The dispositive issue was “whether the MPPR is a ‘limitation[] unrelated to the rates in the fee schedule’ for purposes of MCL 500.3157(15)(f), such that it cannot be used in determining the amount payable under MCL 500.3157(2).” While this appeal was pending, the court decided this question in Favot, concluding “the Medicare rules at issue in that case—which included the MPPR—'are related to the fee schedule’ and ‘affect the amount Medicare would pay for the particular service, meaning they may be considered for purposes of the no-fault act.’” The lower courts here erred in ruling “otherwise (although of course, they did not have the benefit of Favot when reaching their conclusions). Favot is precedentially binding[.]” Thus, the court reversed the circuit court’s order affirming the district court’s denial of defendant’s motion, and remanded.

Personal protection insurance (PIP) benefits; MCL 500.3157(15)(f); The multiple-procedure payment reduction (MPPR) Medicare rule; Favot v Brown

Concluding that the outcome here was governed by Favot, the court held that “the MPPR may be applied in determining the amount of PIP benefits payable by” defendant-no-fault insurer for plaintiffs-providers’ MRI services. This interlocutory appeal concerned payment of PIP benefits. “Defendant provided no-fault PIP coverage to a nonparty insured[,]” who sustained injuries due to a motor vehicle accident, and received MRI services provided by plaintiffs. “In determining the amount potentially payable for those services, defendant applied the” Medicare MPPR “rule, which reduces the payable amount by a certain percentage when multiple procedures are performed during a single patient encounter. Plaintiffs brought suit in district court, seeking nonreduced payment for their services.” The district court denied defendant’s motion for partial summary disposition, and the circuit court affirmed. The dispositive issue was “whether the MPPR is a ‘limitation[] unrelated to the rates in the fee schedule’ for purposes of MCL 500.3157(15)(f), such that it cannot be used in determining the amount payable under MCL 500.3157(2).” While this appeal was pending, the court decided this question in Favot, concluding “the Medicare rules at issue in that case—which included the MPPR—'are related to the fee schedule’ and ‘affect the amount Medicare would pay for the particular service, meaning they may be considered for purposes of the no-fault act.’” The lower courts here erred in ruling “otherwise (although of course, they did not have the benefit of Favot when reaching their conclusions). Favot is precedentially binding[.]” Thus, the court reversed the circuit court’s order affirming the district court’s denial of defendant’s motion, and remanded.

Preclusion; Res judicata; MCR 2.116(C)(7); Garrett v Washington; Appellate procedure; Abandonment; Mitcham v Detroit; Settlements; Voluntary dismissal with prejudice; Limbach v Oakland Cnty Bd of Rd Comm’rs; Same transaction test; Adair v Michigan

The court held that plaintiff’s claims were barred by res judicata because the ownership dispute over the property at issue and related land contract had already been resolved in the prior probate settlement proceeding. Plaintiff and defendant-Thomas are siblings and beneficiaries of their parents’ trust. Their dispute centered on whether plaintiff retained a separate interest in the land contract on the property after the property was conveyed to the trust and later awarded to defendant in a settlement. The trial court granted summary disposition after plaintiff filed a new action seeking foreclosure against the land-contract vendees and partition against defendant. On appeal, the court held that plaintiff had abandoned any meaningful challenge to the res judicata ruling because she did not address whether the prior action was decided on the merits, whether the same parties or privies were involved, or whether the new claims were or could have been resolved earlier. An appellant may not simply “‘announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims[.]’” The court next held that, even aside from abandonment, all elements of res judicata were satisfied. It explained that the prior action was decided on the merits because “[v]oluntary dismissals with prejudice are decisions on the merits for purposes of res judicata.” The court further held that the present action arose from the same transaction because the “evidence, essential facts, and the arguments raised related to the” property were identical to those raised before, and plaintiff was merely trying to relitigate an argument already rejected. Affirmed.

Criminal contempt; MCL 600.1711(1); People v MacLean; Due process; Notice of contempt charges; MCL 600.1711(2); In re Contempt of Henry; Judicial disqualification; Appearance of impropriety; MCR 2.003(C)(1)(b)(ii); People v Loew; Guardianships; Right to counsel; MCL 700.5304; In re Malloy Guardianship

The court held that the criminal-contempt order had to be reversed because the evidence was insufficient and appellant’s due-process rights were violated, although the probate court did not err by temporarily restricting his contact with the ward (JO) concerning the jury-demand issue. The case arose after appellant, an attorney and former counsel for JO, appeared in a guardianship matter, filed an appearance and jury demand, and was later accused by the probate court of making misrepresentations about whether he had spoken with JO before doing so. The probate court ultimately found him in criminal contempt. On appeal, the court held that criminal contempt must be proven beyond a reasonable doubt and that the record did not clearly and unequivocally show a willful disregard of the probate court’s authority. It emphasized that whether appellant had been dishonest depended on facts outside the judge’s personal knowledge, so he could not be punished summarily based only on an alleged in-court inconsistency. Further, “[s]elf-contradiction alone cannot be a basis for the exercise of a power our Supreme Court has deemed ‘awesome’ and to be used ‘with the utmost restraint.’” The court next held that due process was denied because appellant was not given notice of the charges in a manner consistent with MCL 600.1711(2) and MCR 3.606(A), which require some form of proof of the facts charged and an opportunity to defend. The court also held that reassignment was necessary because the judge’s remarks suggested “the trial court would have difficulty putting aside its previously expressed views, and” the court concluded “the appearance of justice would be better served by remanding” the contempt proceedings to a different judge. But it held that the limited 21-day restriction on contact with JO about a jury trial did not violate JO’s rights because it was narrowly tailored to protect the fairness and ethical integrity of the proceedings. Reversed and remanded for vacatur of the contempt judgment and dismissal, with any further contempt proceedings to be heard by a different judge.

Preclusion; Res judicata; MCR 2.116(C)(7); Garrett v Washington; Appellate procedure; Abandonment; Mitcham v Detroit; Settlements; Voluntary dismissal with prejudice; Limbach v Oakland Cnty Bd of Rd Comm’rs; Same transaction test; Adair v Michigan

The court held that plaintiff’s claims were barred by res judicata because the ownership dispute over the property at issue and related land contract had already been resolved in the prior probate settlement proceeding. Plaintiff and defendant-Thomas are siblings and beneficiaries of their parents’ trust. Their dispute centered on whether plaintiff retained a separate interest in the land contract on the property after the property was conveyed to the trust and later awarded to defendant in a settlement. The trial court granted summary disposition after plaintiff filed a new action seeking foreclosure against the land-contract vendees and partition against defendant. On appeal, the court held that plaintiff had abandoned any meaningful challenge to the res judicata ruling because she did not address whether the prior action was decided on the merits, whether the same parties or privies were involved, or whether the new claims were or could have been resolved earlier. An appellant may not simply “‘announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims[.]’” The court next held that, even aside from abandonment, all elements of res judicata were satisfied. It explained that the prior action was decided on the merits because “[v]oluntary dismissals with prejudice are decisions on the merits for purposes of res judicata.” The court further held that the present action arose from the same transaction because the “evidence, essential facts, and the arguments raised related to the” property were identical to those raised before, and plaintiff was merely trying to relitigate an argument already rejected. Affirmed.