Breach of contract; Nonexclusive contract; Implied covenant of good faith & fair dealing; Actionable damages; Unconscionability; Injunctive relief; Tortious interference; Standing to challenge public bidding; Offer of judgment; MCR 2.405; Summary disposition as a “verdict”; Interest-of-justice exception

The court held that plaintiff failed to state viable breach-of-contract, injunctive-relief, or tortious-interference claims, and lacked standing to challenge defendant-Oakland County’s bidding process. But defendant-Title Check could seek attorney fees under MCR 2.405 following summary disposition. Plaintiff contracted with the county to provide title-search services but alleged the county breached the contract by directing work to Title Check instead. On appeal, the court first rejected the contract claim because “the plain and unambiguous terms of the contract permit the behavior [plaintiff] asserts constitutes a breach.” The agreement was expressly nonexclusive, permitted the county to engage others to perform the same work, and guaranteed plaintiff no fixed quantity of work. Nor could plaintiff rely on the implied covenant of good faith and fair dealing because that covenant “‘neither overrides nor replaces any express contractual term.’” The claim independently failed because plaintiff did not “plead actionable damages,” given provisions limiting recovery and excluding lost profits and similar damages. The court also rejected plaintiff’s unconscionability argument, finding nothing about the limitation that “shocks the conscience.” As to injunctive relief, “‘an injunction is a remedy, not an independent cause of action.’” Plaintiff’s tortious-interference theories were properly treated as interference-with-contract claims and “fail as a matter of law because . . . [plaintiff] failed to state a claim for breach of contract.” Even as business-relationship claims, plaintiff did not sufficiently allege improper interference or malice. Further, applying public-bidding principles, the court reasoned that plaintiff “cannot challenge Oakland County’s bidding processes.” On Title Check’s cross-appeal, however, the court held that the trial court applied outdated law in denying offer-of-judgment sanctions. Under the current rule, “‘[a] judgment resulting from a grant of summary disposition is a verdict for purposes of imposing sanctions pursuant to MCR 2.405.’” The court affirmed summary disposition, vacated the attorney-fee ruling, and remanded for consideration of the interest-of-justice exception.

Contractual indemnification; Premises-liability claim; Contract interpretation; “Arising out of”; “Resulting from”; “Attributable in any way to”; Causal connection; But-for causation

The court held that an indemnity clause in the contract between defendant-country club (Wabeek) and third-party defendant-parish (Our Lady) did not require the parish to indemnify the club for plaintiff-Rivet’s premises-liability claim because her fall lacked the required causal connection to the parish’s event. Plaintiff attended a parish fundraiser at the club and allegedly slipped when a wet rug outside the women’s restroom slid across accumulated water. The club sought indemnification under language covering liabilities “arising out of or resulting from or attributable in any way to” the event. On appeal, the court concluded that all three phrases “plainly require a causal connection that is more substantial than mere coincidence or but-for causation.” As to “arising out of,” it reasoned that “the connection between Our Lady’s event and Rivet’s claims against Wabeek is simply incidental.” Plaintiff’s claims arose from an alleged hazardous condition involving accumulated water and the wet rug, and there was “no cause-and-effect relationship between Our Lady’s event and Rivet’s fall.” Likewise, her claims did not “result[] from” the event because “there is no evidence connecting the event to either the water accumulation or the placement of the rug on which Rivet fell.” The phrase “attributable in any way to” also required causation. The court explained that “‘the normal meaning of one thing to be attributed to another is that one thing is caused or brought about by that other thing.’” Although the indemnity language was broad, “such does not negate the requirement of a causal connection that is more substantial than mere coincidence between the underlying condition and the injury.” Construing the clause otherwise would effectively create a blanket assumption of liability for any injury occurring on the property during the event. Because the leaking-roof condition was unrelated to the fundraiser, the parish was entitled to summary disposition. Affirmed.

Ineffective assistance of counsel; Failure to move to quash bindover; Witness credibility; Failure to move to dismiss based on a speedy trial violation; Prejudice from delay; Plea advice; Expert witness; Victim identification testimony; Hearsay; Excited utterance; MRE 803(2); Cumulative error; Motion for new trial

The court held that defendant failed to establish ineffective assistance of counsel on any of the asserted grounds and that the trial court did not abuse its discretion in denying his motion for a new trial. He was convicted of AWIM and felony-firearm after two victims were shot while sitting in a vehicle. One victim identified defendant as the shooter while the other did not actually see who fired the shots. On appeal, the court first rejected defendant’s claim that counsel should have sought to quash the bindover. The preliminary-exam testimony “constitutes ‘enough evidence to cause a person of ordinary caution and prudence to conscientiously entertain a reasonable belief of the defendant’s guilt,’” making a motion to quash futile. Counsel also was not ineffective for failing to assert defendant’s speedy-trial right despite an approximately 58-month delay. Much of it “was the result of pandemic restrictions or adjournments either requested, or agreed to, by defense counsel,” and defendant failed to establish prejudice to his defense. His plea-advice claim likewise failed because “the record belies defendant’s assertion that had he been fully informed, he would have accepted the plea.” At sentencing, he stated he rejected the four-year offer because he could not accept responsibility for something he maintained he did not do. As to counsel’s decision not to offer a private investigator as an expert, defendant “failed to overcome the presumption that this decision constituted sound trial strategy” and did not establish that the witness could qualify or what admissible expert testimony he would provide. Counsel’s handling of one victim’s identification testimony also “amounted to sound trial strategy because it supported defendant’s argument that the evidence of his identification as the shooter was flawed and not credible.” Finally, even assuming deficient handling of the hearsay objection to a victim’s excited statement identifying defendant, “he cannot establish that he suffered prejudice as a result.” Having established no ineffective assistance, his cumulative-error claim necessarily failed. Affirmed.

Sufficiency of the evidence for an unlawful imprisonment (MCL 750.349b) conviction; “Restrain”; Other acts evidence; MCL 768.27b; MRE 403; Constitutional challenge to MCL 768.27b; Sentencing; Scoring of OV 8; MCL 777.38(1)(a); Ineffective assistance of counsel; Failure to raise a futile objection

The court held that there was sufficient evidence to support defendant’s unlawful imprisonment conviction, including properly admitted other acts evidence. Further, the trial court properly scored 15 points for OV 8 and thus, defense counsel was not ineffective for failing to object to the score. Defendant was also convicted of AWIGBH and domestic violence arising from an incident with his then girlfriend. He asserted that he did not “forcibly confine the victim to interfere with her ability to leave the room.” This ignored her testimony. “Before she successfully fled the room, there were two instances where [she] was able to separate herself from defendant but was unable to escape from the vicinity” because he grabbed her by her neck. And by doing so, he “was able to squeeze the victim’s neck for a second and third time. Thus, [her] testimony provided a sufficient basis for a rational jury to find that (1) defendant knowingly restrained [her] by forcibly restricting her movement, i.e., grabbing her by the neck so she could not move to a different area of the home, and (2)” his restraining her facilitated his assault. As to the admission of other acts evidence from defendant’s former partner under MCL 768.27b, the “other acts involved defendant assaulting a former partner while intoxicated[,]” as did this case. While the assault here may have been more severe, “the other acts were significantly useful to corroborate the victim’s testimony and provide context to defendant’s behavior in his relationships.” The court noted that the jury was properly instructed, and jurors are presumed to follow their instructions. The “possible unfair prejudice did not substantially outweigh the significant probative value of the former partner’s testimony.” The court also rejected his constitutional challenge to MCL 768.27b. Finally, defendant’s dragging the victim across the room after he caught her when she tried to escape indicated that she “was carried from one place to another. Additionally, the victim was in more danger after being dragged by defendant; she was farther from a safe exit and closer to defendant who posed a great risk to her.” This, and the fact that he continued to restrain her “beyond the time necessary to commit the offense[,]” supported the 15-point score for OV 8. Affirmed.

Child custody; De novo hearing on timely filed objections to a referee’s recommendations; MCL 552.507(4); “Shall”; MCR 3.215(F); McGregor v Jones

Holding that the trial court clearly erred in not conducting the required de novo hearing, the court vacated the order denying defendant-father’s objection to the referee recommendation and remanded for a de novo hearing pursuant to MCR 3.215(F). Defendant “sought a change in legal custody and parenting time for the parties’ three” children. After a hearing before a family court referee, “the referee issued findings and recommended denying the motion. Defendant filed a timely objection to the referee’s findings and recommendation, which the trial court denied without holding a hearing de novo.” The court held that “the trial court committed clear legal error by resolving defendant’s objection on the basis of the record without giving [him] the opportunity to present evidence at a live hearing[.]” The court noted that “defendant did not request a hearing de novo in the trial court; rather, he requested a de novo ‘review.’ A party can obtain a record-based review as one type of de novo hearing.” However, under MCR 3.215(F)(2), the trial court is required to “provide the parties with an opportunity to ‘present live evidence at the judicial hearing’ which did not occur here.” Further, the court recognized in McGregor “that trial courts are not permitted to resolve an objection to the referee’s recommendation ‘on the basis of the record alone without providing the parties some opportunity to supplement that record at the hearing if they wish to do so.’” That is what occurred here.

Applicability of the Recreational Land Use Act (RLUA); MCL 324.73301(1); The “other outdoor recreational use” catchall provision; Neal v Wilkes; “Valuable consideration”; Syrowik v Detroit; “Pay”; Land covered by the RLUA; Admissibility of a defendant’s prior felony conviction; Negligent entrustment; Fredericks v General Motors Corp; Grand Trunk W RR Co v Pre-Fab Transit; Directed verdict; Gross negligence; Tarlea v Crabtree

The court held that the RLUA applied in this case arising from an accidental shooting, and that defendant-shooter’s (Andrew) prior felony conviction was properly excluded from evidence. But it concluded that the trial court erred in granting another defendant’s (Andrew’s father, John) motion for a directed verdict and dismissing the claims against defendant-Mann Farms (which were derivative of the claims against John). Plaintiff argued that the RLUA did not apply “because he was not engaging in any of the activities described.” But, based on the evidence, the court concluded there was no question of fact that plaintiff, Andrew, and another man “were engaging in activity within the scope of the RLUA by scouting for future hunting purposes and by hunting for small game. The fact that no small game was actually killed is not dispositive.” Further, the activity clearly fell “under the ‘other outdoor recreational use’ catchall provision. The act of scouting for future hunting purposes, while looking for small game, is sufficiently similar to the enumerated activity of ‘hunting’ to qualify as an ‘other outdoor recreational use.’” The court also rejected his claim that “he provided valuable consideration for his use of the land” because the evidence showed there were no crops “to protect. Consequently, there was no ‘benefit’ of quelling deer to protect crops at the time of the shooting incident.” As there was no dispute that he “never paid any money or gave a pecuniary measurable benefit for the privilege of hunting on the farm, he cannot escape the application of the RLUA.” And his argument that it “should not apply because it should only apply to ‘large tracts of undeveloped land’” failed under Neal. As to Andrew’s 12-year-old conviction, it “related to a much different category of ‘recklessness’ and had no bearing on whether John knew or had reason to know that Andrew would be reckless with the shotgun John let him use.” But the court reversed the directed verdict because the evidence, viewed in the light most favorable to plaintiff, allowed reasonable minds to “differ whether Andrew was intoxicated and whether John was so reckless as to demonstrate a substantial lack of concern for whether an injury results by giving Andrew the shotgun.” Affirmed in part, reversed in part, and remanded.

Breach of contract; Nonexclusive contract; Implied covenant of good faith & fair dealing; Actionable damages; Unconscionability; Injunctive relief; Tortious interference; Standing to challenge public bidding; Offer of judgment; MCR 2.405; Summary disposition as a “verdict”; Interest-of-justice exception

The court held that plaintiff failed to state viable breach-of-contract, injunctive-relief, or tortious-interference claims, and lacked standing to challenge defendant-Oakland County’s bidding process. But defendant-Title Check could seek attorney fees under MCR 2.405 following summary disposition. Plaintiff contracted with the county to provide title-search services but alleged the county breached the contract by directing work to Title Check instead. On appeal, the court first rejected the contract claim because “the plain and unambiguous terms of the contract permit the behavior [plaintiff] asserts constitutes a breach.” The agreement was expressly nonexclusive, permitted the county to engage others to perform the same work, and guaranteed plaintiff no fixed quantity of work. Nor could plaintiff rely on the implied covenant of good faith and fair dealing because that covenant “‘neither overrides nor replaces any express contractual term.’” The claim independently failed because plaintiff did not “plead actionable damages,” given provisions limiting recovery and excluding lost profits and similar damages. The court also rejected plaintiff’s unconscionability argument, finding nothing about the limitation that “shocks the conscience.” As to injunctive relief, “‘an injunction is a remedy, not an independent cause of action.’” Plaintiff’s tortious-interference theories were properly treated as interference-with-contract claims and “fail as a matter of law because . . . [plaintiff] failed to state a claim for breach of contract.” Even as business-relationship claims, plaintiff did not sufficiently allege improper interference or malice. Further, applying public-bidding principles, the court reasoned that plaintiff “cannot challenge Oakland County’s bidding processes.” On Title Check’s cross-appeal, however, the court held that the trial court applied outdated law in denying offer-of-judgment sanctions. Under the current rule, “‘[a] judgment resulting from a grant of summary disposition is a verdict for purposes of imposing sanctions pursuant to MCR 2.405.’” The court affirmed summary disposition, vacated the attorney-fee ruling, and remanded for consideration of the interest-of-justice exception.

Applicability of the Recreational Land Use Act (RLUA); MCL 324.73301(1); The “other outdoor recreational use” catchall provision; Neal v Wilkes; “Valuable consideration”; Syrowik v Detroit; “Pay”; Land covered by the RLUA; Admissibility of a defendant’s prior felony conviction; Negligent entrustment; Fredericks v General Motors Corp; Grand Trunk W RR Co v Pre-Fab Transit; Directed verdict; Gross negligence; Tarlea v Crabtree

The court held that the RLUA applied in this case arising from an accidental shooting, and that defendant-shooter’s (Andrew) prior felony conviction was properly excluded from evidence. But it concluded that the trial court erred in granting another defendant’s (Andrew’s father, John) motion for a directed verdict and dismissing the claims against defendant-Mann Farms (which were derivative of the claims against John). Plaintiff argued that the RLUA did not apply “because he was not engaging in any of the activities described.” But, based on the evidence, the court concluded there was no question of fact that plaintiff, Andrew, and another man “were engaging in activity within the scope of the RLUA by scouting for future hunting purposes and by hunting for small game. The fact that no small game was actually killed is not dispositive.” Further, the activity clearly fell “under the ‘other outdoor recreational use’ catchall provision. The act of scouting for future hunting purposes, while looking for small game, is sufficiently similar to the enumerated activity of ‘hunting’ to qualify as an ‘other outdoor recreational use.’” The court also rejected his claim that “he provided valuable consideration for his use of the land” because the evidence showed there were no crops “to protect. Consequently, there was no ‘benefit’ of quelling deer to protect crops at the time of the shooting incident.” As there was no dispute that he “never paid any money or gave a pecuniary measurable benefit for the privilege of hunting on the farm, he cannot escape the application of the RLUA.” And his argument that it “should not apply because it should only apply to ‘large tracts of undeveloped land’” failed under Neal. As to Andrew’s 12-year-old conviction, it “related to a much different category of ‘recklessness’ and had no bearing on whether John knew or had reason to know that Andrew would be reckless with the shotgun John let him use.” But the court reversed the directed verdict because the evidence, viewed in the light most favorable to plaintiff, allowed reasonable minds to “differ whether Andrew was intoxicated and whether John was so reckless as to demonstrate a substantial lack of concern for whether an injury results by giving Andrew the shotgun.” Affirmed in part, reversed in part, and remanded.

Contractual indemnification; Premises-liability claim; Contract interpretation; “Arising out of”; “Resulting from”; “Attributable in any way to”; Causal connection; But-for causation

The court held that an indemnity clause in the contract between defendant-country club (Wabeek) and third-party defendant-parish (Our Lady) did not require the parish to indemnify the club for plaintiff-Rivet’s premises-liability claim because her fall lacked the required causal connection to the parish’s event. Plaintiff attended a parish fundraiser at the club and allegedly slipped when a wet rug outside the women’s restroom slid across accumulated water. The club sought indemnification under language covering liabilities “arising out of or resulting from or attributable in any way to” the event. On appeal, the court concluded that all three phrases “plainly require a causal connection that is more substantial than mere coincidence or but-for causation.” As to “arising out of,” it reasoned that “the connection between Our Lady’s event and Rivet’s claims against Wabeek is simply incidental.” Plaintiff’s claims arose from an alleged hazardous condition involving accumulated water and the wet rug, and there was “no cause-and-effect relationship between Our Lady’s event and Rivet’s fall.” Likewise, her claims did not “result[] from” the event because “there is no evidence connecting the event to either the water accumulation or the placement of the rug on which Rivet fell.” The phrase “attributable in any way to” also required causation. The court explained that “‘the normal meaning of one thing to be attributed to another is that one thing is caused or brought about by that other thing.’” Although the indemnity language was broad, “such does not negate the requirement of a causal connection that is more substantial than mere coincidence between the underlying condition and the injury.” Construing the clause otherwise would effectively create a blanket assumption of liability for any injury occurring on the property during the event. Because the leaking-roof condition was unrelated to the fundraiser, the parish was entitled to summary disposition. Affirmed.