Other acts evidence; MRE 404(b)(1); Knowledge & absence of mistake; People v Denson; People v Bergman; MRE 403; Ineffective assistance of counsel; Consecutive sentencing; MCL 769.36(1)(b); Particularized reasons; People v Norfleet

The court held that the trial court did not abuse its discretion by admitting other acts evidence of defendant’s 2017 impaired-driving incident, but remand was required because the trial court failed to articulate particularized reasons for imposing consecutive sentences. Defendant was convicted after she drove into a line of bicyclists while intoxicated, killing two riders and seriously injuring two others. The trial court admitted evidence that she had a 2017 impaired-driving incident involving controlled substances, and it ordered her two second-degree murder sentences to run consecutively. On appeal, the court held that the other acts evidence was admitted for proper noncharacter purposes: knowledge and absence of mistake. It reasoned the evidence was relevant because the 2017 incident was “probative of defendant’s knowledge of her inability to drive safely after consuming [controlled] substances.” Further, the two events were substantially similar because they involved some of the same or similar drug classes, unsafe driving, confusion, balance issues, and difficulty following directions. The court also held that MRE 403 did not bar the evidence because the 2017 event was “minor in comparison to the charged offenses,” and the trial court instructed jurors they could not use it to conclude defendant was “a bad person” or likely to commit crimes. But the court held that remand was required on consecutive sentencing because the trial court did not give “particularized reasons” for making Count 2 consecutive to Count 1, and appellate review was hindered because consecutive sentencing is a “drastic deviation from the norm.” Affirmed in part and remanded with jurisdiction retained.

Motion to quash; Hearsay; MRE 803(17); People v Lemons

The court held that the prosecution failed to establish that an officer’s (G) testimony identifying pills fell within MRE 803(17). Thus, it was inadmissible hearsay. And without that testimony, the prosecution did not offer “any admissible evidence identifying the pills as controlled substances.” As a result, the district court abused its discretion in binding defendant over for trial, and the circuit court erred in denying his motion to quash. During a traffic stop, G arrested defendant on an outstanding warrant. A vehicle search revealed “two pill bottles in the seatback pocket directly in front of defendant’s seat. One pill bottle was a labeled prescription belonging to” him. The other “was unlabeled and contained two clear plastic bags holding green and white pills. To identify” them, G entered the letters and numbers imprinted on the pills “into the website Drugs.com. Based on that search, he identified the green pills as alprazolam, a schedule four controlled substance, and the white pills as hydrocodone, a schedule two controlled substance.” In asserting that the testimony was admissible under MRE 803(17), “the prosecution had the burden to establish that Drugs.com is a market quotation, list, directory, or compilation, that is ‘generally relied on by the public or by persons in particular occupations.’” But it did not present evidence “to support those foundational requirements. Nor did [it] cite any authority recognizing that Drugs.com is a source that falls under the scope of MRE 803(17). The prosecution’s broad, unsupported assertion that the website is generally relied upon by the public, law enforcement, and pharmacists did not establish the applicability of the hearsay exception. Both the district and circuit courts overlooked this failure of proof.” Reversed.

Motion for a new trial; Ineffective assistance of counsel; Failure to object; Standalone voluntary manslaughter jury instruction (M Crim JI 16.8) given instead of the lesser included offense instruction (M Crim JI 16.9); People v Yeager

The court held that defendant’s trial counsel provided ineffective assistance by failing to object when the trial court gave an incorrect, standalone voluntary manslaughter jury instruction instead of the lesser included offense instruction. And because it concluded that “a reasonable jury could have convicted defendant of voluntary manslaughter as a lesser included offense[,]” he was entitled to a new trial. Thus, it vacated his second-degree murder conviction and sentence, and remanded for a new trial. The case arose from an altercation between defendant and the victim (K). K came after him “and struck defendant with a chain. In response, defendant kicked [K] in the chest.” K dropped the chain and ran away. Defendant chased him, “engaged in a physical fight, and ultimately stabbed [K] multiple times in the abdomen. Defendant said he chased after [K] because he was ‘pissed’ at [K] for hitting him with the chain.” Another man also fought with defendant. K later died from the stab wounds. While “the trial court agreed to instruct the jury on voluntary manslaughter as a lesser included offense, it instead read the instructions for voluntary manslaughter as a standalone offense, M Crim JI 16.8. The instruction defendant requested—and the trial court agreed to give—was the lesser included offense instruction, M Crim JI 16.9[.]” The instructions it gave on “voluntary manslaughter were nearly identical to the instructions for second-degree murder in M Crim JI 16.5. Most importantly, the instructions failed to ‘present to the jury the differing states of mind required for murder and voluntary manslaughter.’ By failing to meaningfully distinguish the two offenses, the trial court erred when it instructed the jury on M Crim JI 16.8.” The court further found that trial “counsel’s admitted failure to recognize and object to this error was not a matter of strategy and constituted deficient performance” that warranted a new trial.

FOIA; Pending-litigation exemption; MCL 15.243(1)(v); Certified copy; MCL 15.233(6); Creation of new public record; MCL 15.233(5); County board certification; MCL 46.4; County board records; MCL 46.29; Mootness; Motion to strike counsel; Standing; MCR 2.605; Frivolous claims & filings; MCL 600.2591; MCR 1.109(E); Department of Wayne County Clerk (WCC)

The court held that plaintiff’s FOIA claims were moot, he lacked standing to strike defendants’ counsel’s appearances, and the trial court did not err by finding some of his claims and his motion to strike frivolous. Plaintiff sued after seeking certified copies of county commission resolutions from defendants-Commission and the WCC. The trial court granted defendants summary disposition, reasoning that the requested documents had been produced or did not exist, and it found Counts I and III and plaintiff’s motion to strike frivolous. On appeal, the court first held that the FOIA claims were moot because the requested records had been produced, and plaintiff’s certification argument failed. It reasoned the FOIA required only that the custodian furnish a “certified copy” that authenticated the copy as “a true and genuine reproduction of the existing public record,” not a document separately certified under MCL 46.4 or MCL 46.29. The court also held that plaintiff lacked standing to challenge a law firm’s representation of two defendants because his standing to seek declaratory relief did not “by itself, confer standing to bring the motion to strike.” Finally, the court held that the sanctions rulings were proper. Count I “served no legitimate purpose” because the Commission had already responded to plaintiff’s request, Count III rested on a certification theory “multiple trial courts had soundly rejected,” and the motion to strike repeated unsuccessful arguments while ignoring prior documentation that the Commission approved the retention. Affirmed.

Motion to terminate an ex parte personal protection order (PPO); MCL 600.2950(1)(l); Burden of proof; MCL 600.2950(4); Failure to brief the issues presented

Holding that the trial court did not abuse its discretion in denying respondent’s motion to terminate the PPO, the court affirmed. Petitioner obtained the ex parte PPO after an altercation at her home with respondent on Thanksgiving. They share a young child. On appeal, the court first noted that respondent cited no legal authority for the requested relief and provided “no analysis applying the facts of the case to the applicable law. Instead, his brief on appeal contains only a series of conclusory statements taking the form of a one-page ‘Statement of Facts’ and a one-page ‘Statement of Questions.’” On this basis alone, it “would affirm the trial court’s order.” It further found that there was no merit in any of his arguments. While he asserted that petitioner’s evidence did not meet the burden of proof, the court disagreed. She “provided a transcript of an audio recording of respondent at the time of the altercation, the contents of which were authenticated by respondent, which included,” among other things, his threats that she “would get her ‘head cracked’ and that he would ‘hurt and destroy’ her. Those threats were made after respondent let himself into petitioner’s home uninvited, refused to give her back the key he used to gain entry, and while” he was verbally abusing her “and openly carrying a firearm. At a minimum, that evidence constituted reasonable cause regarding petitioner’s apprehension of violence, i.e., reasonable cause to believe that respondent would be violent towards [her] consistent with MCL 600.2950(1)(l).” The court also found no error in the trial court’s rejection of irrelevant evidence proffered by respondent.

Whether subdivision back-lot owners had riparian rights; Effect of fee ownership of a park; Dobie v Morrison; Whether a plat dedication easement gave defendants the right to moor & dock boats at the park; “Use”; Principle that mooring & docking boats are riparian rights; Thies v Howland; Principle that a deeded easement does not include riparian rights; Little v Kin; Easement by prescription; Astemborski v Manetta; Period of adversity

The court held that the trial court erred in ruling that defendants-back-lot subdivision owners had riparian rights by virtue of fee ownership of a lakefront neighborhood park (Park A). It also held that the plat dedication easement did not give them the right to moor or dock boats at the park, and that they failed to establish an easement by prescription. Thus, it vacated in part and reversed in part the trial court’s rulings, and remanded. On summary disposition, the trial court determined “‘that those properties that are separated from the lake only by the Park have riparian rights,’ meaning all defendants’ properties had riparian rights except for” two whose property did not border Park A. Concluding that the trial court “misread Dobie in reaching this conclusion,” the court vacated that portion of its ruling. While it agreed that the factual distinction “between the Dobie plat and this plat (namely, the shape of the park) is unavailing, the trial court overlooked the critical legal conclusion that the Dobie plaintiffs were the owners in fee of the park by virtue of their being ‘successors in interest to the plattors’ and the fact that the plat dedication did not indicate otherwise. Dobie was not a generalized grant of riparian rights to all properties separated from waterfront by a park.” As to the plat dedication easement, the court noted that mooring “and docking boats are riparian rights” and that a “deeded easement does not include riparian rights.” It noted that there was “no record evidence that the plattors intended, at the time the Plat Dedication was enacted, that all lot owners would have use of Park A that resembled riparian rights, including mooring boats and installing docks and boat lifts.” The court concluded that while “defendants (and all lot owners in the Plat) hold an easement to use Park A,” the Plat Dedication’s plain language “providing the easement does not permit defendants to use the park in the way that riparian owners may (e.g., mooring and docking boats).” And while the trial court found that they established a prescriptive easement allowing them to engage in such riparian activities, the court disagreed, finding that the length of adversity did not satisfy the required 15-year period.

Equitable mortgage; Equitable lien; Intent to use property as security; Eastbrook Homes, Inc v Department of Treasury; In re Estate of Moukalled; Clean hands doctrine; McFerren v B & B Inv Group; Adequate remedy at law; Unjust enrichment; Benefit from complaining party; Karaus v Bank of NY Mellon; Motion for reconsideration; Abandoned appellate issue; MCR 7.212(C)(5)

The court held that plaintiff failed to state claims for an equitable mortgage or unjust enrichment against defendants after their mortgage was mistakenly paid off and discharged by others. Nonparty-Liberty Title, plaintiff’s issuing agent, tried to obtain a payoff statement for one mortgage (the C mortgage) but received defendants’ payoff information, leading nonparty-University Bank to discharge defendants’ mortgage instead. Defendants alerted Liberty Title, declined a new-loan proposal that required credit disclosures, and offered a private note or mortgage, but plaintiff filed a notice of lis pendens and sued before satisfying its title-insurance obligation on the C property. The trial court granted defendants summary disposition and later denied reconsideration after plaintiff paid off the C mortgage. On appeal, the court first declined to consider the effect of that later payment because it occurred after summary disposition, was raised for the first time on reconsideration, and was not included in plaintiff’s questions presented. The court next held that an equitable mortgage was unavailable because such relief generally requires a “clear intent to use an identifiable piece of property as security for a debt,” while plaintiff had “no relationship whatsoever” with defendants, who were “innocent third parties” to others’ errors. It further reasoned plaintiff did not come with clean hands because it sued and recorded a lis pendens before suffering damages, which “closes the door” of equity. The court also held that unjust enrichment failed because plaintiff alleged no benefit it provided to defendants, and any later payment of the C mortgage still did not show “any benefit flowing from plaintiff to defendants.” Affirmed.

Termination under §§ 19b(3)(c)(i) & (j); Substance abuse; Failure to benefit from services; In re MJC; Reasonable likelihood of harm; Emotional harm; In re Hudson; Service-plan compliance; In re White; Child’s best interests; MCL 712A.19b(5); Permanency, stability, & foster placement

The court held that the trial court did not err by finding statutory grounds to terminate respondents-parents’ rights and by determining termination was in the child’s best interests. The child was removed after respondent-mother overdosed in the child’s presence while respondent-father was driving without a valid license and drug paraphernalia was found in the child’s car seat. Both parents pled no contest, the father later progressed enough to have the child returned to him, but both parents relapsed. The child was removed from the father a second time after a positive drug screen. The trial court terminated both parents’ rights after 28 months of proceedings. On appeal, the court first held that § (c)(i) was established as to the mother because she repeatedly left rehabilitation, relapsed multiple times, admitted she was still using substances, and was “still absolutely in square one” after nearly two-and-a-half years. It rejected her best-interest challenge because, despite services, she was “no better able to provide proper care and custody” than when the child was removed, while the child was thriving in a foster placement willing to adopt him. The court next held that § (j) was established as to the father because his continued relationship with the mother, whom he identified as his primary relapse trigger, supported the trial court’s concern that she would reenter the child’s life and cause “further emotional trauma and instability.” It also held that termination was in the child’s best interests despite the father’s bond because that bond “would be significantly damaged at this point in time,” the child improved in foster care, the foster family was willing to adopt, and the father relapsed three times during the case. Affirmed.