Legal malpractice; Attorney lien; Res judicata; Garrett v Washington; Collateral estoppel; Monat v State Farm Ins Co; Mutuality of estoppel

The court held that the trial court erred by granting summary disposition for defendant-law firm in this matter involving legal malpractice and an attorney lien. Plaintiffs were involved in civil and criminal federal court proceedings related to their healthcare businesses. They subsequently retained defendant to assist them with an in rem proceeding seeking money and accounts seized by the federal government. Plaintiffs alleged the firm failed to file a claim of interest on two accounts, which were administratively forfeited. The federal district court eventually granted defendant’s motion to withdraw and entered an order requiring plaintiffs to satisfy defendant’s attorney lien before it could receive any remaining funds from a proposed settlement in their underlying case. The 6th Circuit remanded, and on remand the federal district court entered an order declining to exercise supplemental jurisdiction over the malpractice issue and closed the case. Plaintiffs then filed this suit in state court. On appeal, the court agreed with plaintiffs that (1) the trial court erred when it granted defendant’s motion for summary disposition because the federal district court’s order was not itself a release that could be enforced, and (2) because their malpractice claims were never litigated on the merits and there was no final judgment, they were not precluded from bringing their claims in state court. At every stage of the proceedings they “have objected to the idea of executing a release of liability. Moreover, there is no contractual language for this Court to interpret to determine the intent of the parties. The order itself required plaintiffs to execute a ‘full and complete’ release, but the order is not the release itself.” And because “there was no ‘release’ in the first place, it would have been error for the [trial] court to rely on the ‘release’ when granting summary disposition.” In addition, neither “res judicata nor collateral estoppel apply to the facts of this case for the same reason: there was no final decision on the merits.” Had defendant “immediately tried to enforce the order, it would not have been successful because the record was undeveloped. Thus, there was neither a ‘decision on the merits,’ nor a ‘valid and final judgment’ for the” trial court to enforce. “And once the federal district court declined to exercise supplemental jurisdiction, neither collateral estoppel nor res judicata prevented plaintiffs from asserting their malpractice claims in state court.” Reversed and remanded.

Motion for relief from judgment; MCR 6.502; Whether defendant was entitled to a new trial; People v Cress; People v Johnson; Probability of a different result; People v Rogers; Whether the court should direct the entry of a second-degree murder conviction; People v Williams; Conviction Integrity Unit (CIU)

Concluding that a different result on retrial was probable, the court held that the trial court abused its discretion in determining otherwise and that defendant was entitled to a new trial. Thus, it reversed the denial of a joint motion for reconsideration of the denial of defendant’s motion for relief from judgment, and remanded. He was convicted of first-degree murder and felony-firearm. “After two witnesses recanted their testimony, and because of prosecutorial misconduct during trial and indications that the jury struggled with the verdict,” the county CIU recommended “the conviction be vacated in exchange for a guilty plea to second-degree murder.” On appeal, the court reviewed “the trial court’s decision as a denial of a motion for relief from judgment under MCR 6.502, rather than as a motion for reconsideration.” The trial court determined “that defendant met the first three Cress factors, and” the court found no abuse of discretion as to that finding. Thus, the primary issue was “whether ‘the new evidence makes a different result probable on retrial.’” The trial court found that one witness’s (B) recantation testimony was not credible but that the other witness’s (S) testimony was credible. Once it “concluded that a reasonable juror could find that [S’s] recantation testimony was credible, [it] was required to consider all of the evidence that would be admitted at a new trial to determine whether a different result would be probable.” This would include B’s recantation. “Thus, during a new trial, [S] would not testify that defendant threatened the victim and his son in the months leading up to the shooting, while [B] would testify that the victim lunged at defendant before defendant shot him. The trial court did not make clear in its opinion that, once it had concluded that a reasonable juror could find [S’s] recantation credible, it must then consider the likely effect of both recantations on a reasonable juror.” Further, it failed to “address the recantation evidence within the context of the prosecutorial misconduct that occurred in” the original trial. The court noted that at a new trial, the prosecution would avoid the “plainly improper remarks” made at the first one, “and there would be more evidence of self-defense than was presented at” that trial. Lastly, a “jury question indicated that the jury was struggling to arrive at a decision, and this was confirmed by the foreperson, who said that the jury’s decision was not an ‘easy’ one.”

Sentencing; Proportionality; Consecutive sentences; Distinguishing People v Baskerville; People v Steanhouse; Testimony about other acts resulting in incarceration; Fair & impartial jury; Prejudice; Ineffective assistance of counsel; Failure to object to the victim’s statement about defendant’s earlier incarceration & move for a mistrial

The court concluded that defendant did not establish “that his challenged sentences were unreasonable or disproportionate to the circumstances of the offense and offender, and the trial court did not abuse its discretion when it sentenced [him] to consecutive sentences for” his CSC I convictions. Also, it held that “any error that occurred with the victim’s testimony” that defendant had gone to prison before “did not result in unfair prejudice.” Finally, he was not denied that effective assistance of counsel. He was convicted of AWIGBH, domestic violence, aggravated stalking, and CSC I. He was sentenced to consecutive prison terms of 30 to 60 years for the two CSC I “convictions, to be served concurrently with” his sentences for his other convictions. Defendant first argued that he was entitled to be resentenced because the consecutive sentences for the CSC I convictions were, in effect, a life sentence and disproportionate. The court concluded that “the trial court’s decision to impose consecutive sentencing served the purpose of protecting the public because it ensures that it will be very unlikely that defendant will have another [chance] to harm another victim. Additionally, the consecutive sentences will appropriately discipline [him] and provide general deterrence from committing sexual assaults.” Defendant argued “generally that sentencing does not deter others from committing similar offenses. The trial court properly treated general deterrence as a consideration in issuing consecutive sentences, because doubling the length of incarceration should, rationally, deter others from committing similar offenses. [His] consecutive sentences also serve the legitimate purposes of ensuring the protection of society from any further vicious crimes specifically by defendant, appropriately punishing [him] for his exploitative, violent, and unconscionable conduct, and generally deterring others from engaging in similar criminal behavior.” While he relied on Baskerville in arguing that the consecutive sentences were “‘overkill’ and disproportionate under the circumstances” here, the court “explained in Baskerville that when a trial court imposes consecutive sentences, our review concerns whether each individual sentence is proportionate, not the aggregate length of the combined sentences.” As a result, “when ‘the individual sentences do not exceed the maximum punishment allowed for each sentence, which is life imprisonment, . . . the aggregate of the sentences is not disproportionate.’” The maximum penalty for his CSC I convictions was life imprisonment. “Because the individual 30-year sentences do not exceed the maximum punishment allowed for each sentence, the aggregate of the sentences is not disproportionate.” Affirmed.

Other acts evidence; MCL 768.27b; People v Cameron; Relevance; MRE 401; Risk of unfair prejudice; MRE 403; People v Watkins; People v Sharpe; Admission of victim’s diary entries & accompanying testimony; Harmless error

The court held that the trial court did not abuse its discretion in admitting the challenged other acts evidence under MCL 768.27b and in not excluding it under MRE 403. As to the admission of the victim’s diary entries, it found that “the trial court acted within its discretion in admitting Exhibits 12 and 15” and that even if admitting them “was erroneous, any error was harmless and” did not merit reversal. Thus, it affirmed defendant’s CSC I and II convictions. He challenged the trial court’s admission of the victim’s testimony about a 2022 sexual assault, arguing it was not admissible under MCL 768.27b and should have been excluded under MRE 403. But this “evidence related to defendant’s commission of another act of sexual assault, and MCL 768.27b permitted its admission for any purpose for which it was relevant as long as it was not excluded under MRE 403.” He contended that it “was not relevant because whether he sexually assaulted the victim as an adult is not probative of whether he sexually assaulted her as a child.” The court found that argument unpersuasive. His CSC II “charge was based on the victim’s allegation that, while the family prayed in a circle with their heads bowed and eyes closed, [he] touched her breasts and bottom. [Her] testimony that defendant touched her breasts and bottom at her graduation party while surrounded by friends and family increases the likelihood that [he] similarly groped her while surrounded by praying family members. The fact that [she] was over 18 during the graduation party assault does not render that assault so dissimilar to the charged assaults as to deprive it of its probative value.” In addition, the “evidence was relevant because it clarified why the victim reported the allegations to law enforcement in 2022.” As to MRE 403, the “trial court considered the Watkins factors and found that: (1) the 2022 assault was not so dissimilar from the charged offenses as to deprive it of probative value; (2) [it] occurred a significant time after the charged conduct; (3) the other act occurred ‘fairly frequently or whenever [defendant] was around [the victim]’; (4) there were no intervening acts; (5) no other witnesses would testify” about the 2022 assault; and (6) the “testimony was necessary to the prosecution’s case because ‘[t]his is a case that would be based on the credibility’ of the victim. Those findings were supported by the record evidence.”

Standard of review for ex parte communication with a jury when defendant failed to object after the district court disclosed it; FedRCrimP 51(b) United States v Paul (Unpub 6th Cir); Other acts evidence; FRE 404(b); Jury instructions as to FIP; Sentencing under the Armed Career Criminal Act (ACCA); Crimes committed on different “occasions”; Erlinger v United States; Harmless error

The court held for the first time in a published decision that plain-error review applies to claims of ex parte communications between a district court and the jury when the defendant failed to object after the district court disclosed the communication. It also found that defendant-Robinson was not entitled to relief on his claims as to the admission of other acts evidence, the jury instructions on FIP, and his sentencing under the ACCA. A jury convicted him of FIP. He argued that the district court violated the Sixth Amendment by responding to a jury note without the defense’s input. The court found that he had forfeited his claim by raising it for the first time on appeal. It noted that it has “held that the defendant must alert the court to the claimed error after the fact to preserve it.” Further, the court has previously specifically held in an unpublished decision, Paul, that “plain-error review should apply to claims of ex parte communications between a court and the jury when the defendant failed to object after the court disclosed the communication.” In addition, “many other courts have applied plain-error review to claims that a district court (or court staff) wrongly communicated with jurors outside the presence of the defendant or defense counsel.” The court formally joined them here. And it concluded that this “standard dooms Robinson’s claim because he has not shown an ‘obvious’ Sixth Amendment violation.” The court noted that “the district court would not have committed an ‘obvious’ error by believing that it was providing . . . ‘scheduling information.’” And it concluded “the district court reasonably interpreted the jury’s note—with its limited ‘tonight’ language—to be asking about scheduling rather than about how to proceed if they have reached an unfixable impasse.” As to his other acts evidence argument, “detectives’ generic statements that” a unit existed to investigate shootings did not even mention him, “let alone disclose that he had committed a prior crime or bad act.” Also, the district court properly concluded that the defense had “opened the door” to testimony that a witness had seen Robinson with a gun. The court found no error in the district court’s jury instructions as to the relationship between gun ownership and gun possession. Lastly, Robinson argued that the district court erred by invoking the ACCA where the jury was required to resolve whether his prior offenses were committed on different occasions. While Erlinger confirmed he was right, “a gap of many years separated each of Robinson’s three crimes. The record thus leaves no doubt that he committed those crimes on different occasions and that this error was harmless here.” Affirmed.

Whistleblowers’ Protection Act (the WPA); Whether reporting a violation of the common law is protected activity under MCL 15.362; Whether “law” as used in “a violation or a suspected violation of a law” includes the common law

The court held that “to receive protection under MCL 15.362, an employee must report a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law. When given its plain and ordinary meaning, the term ‘law’ [as used in the statutory phrase ‘a violation or a suspected violation of a law’] includes the common law.” Thus, it reversed the Court of Appeals’ decision, but remanded the “case to the Court of Appeals for consideration of whether gross negligence is a violation of ‘a’ law and whether” plaintiff-Stefanski’s “conduct constituted a report under MCL 15.362.” Stefanski was a former employee of defendant-Saginaw County 911. He was placed on a 90-day unpaid suspension. “Believing that the reason for his suspension was pretextual, [he] resigned and filed” this case, alleging a violation of MCL 15.362. At issue was “whether the statutory phrase ‘a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States’” includes a violation of the common law. Stefanski argued “that a violation of the common law is a violation of a law under MCL 15.362.” Because the WPA does not define “law,” the court turned “to dictionary definitions to ascertain the word’s plain meaning.” In sum, it concluded that “the word ‘law’ as used in MCL 15.362 encompasses the common law, whether understood as a term of art or in its ordinary sense. This interpretation aligns with the WPA’s broader purpose of public protection, which is achieved ‘by protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law.’” The court held that “MCL 15.362 does not limit the word ‘law.’ It does not say ‘statutory law’ or ‘constitutional law’; it merely states ‘a law.’ As explained, the plain and ordinary definition of ‘law’ encompasses the common law. The statutory interpretation of the WPA urged by Saginaw County 911 would exclude a large subset of law, which, in turn, would undermine the WPA’s purpose. If we were to exclude the common law from MCL 15.362, we would be imposing a limiting barrier that is not found in the statute. Under this construction, employees would have to worry about whether the law they suspect has been violated is a part of this excluded subset, thus eliminating their access to any protection under the WPA. Such a construction is impermissible and inconsistent with our mandate to liberally construe the WPA as a remedial statute.”

Justice Zahra dissented, believing that “the majority opinion improperly holds that common law is ‘a law’ under the WPA and exponentially expands the violations that the Legislature intended employees to be able to report without fear of losing employment.”

Grandparenting time; Whether the presumption in MCL 722.27b(4)(b) was rebutted; Best-interest determination; Best-interest factors; MCL 722.27b(6)(a)-(g), (i), & (j); Great weight of the evidence

The court “affirmed the trial court’s holding that the presumption found in MCL 722.27b(4)(b) was rebutted by a preponderance of the evidence.” Also, it affirmed “the trial court’s holding that grandparenting time was in [the child-]VPL’s best interests.” Thus, it affirmed the trial court’s order granting plaintiffs grandparenting time. Defendant-mother argued “that the trial court erred by determining that her decision, as a fit parent, to deny grandparenting time created a substantial risk of harm to VPL’s mental, physical, or emotional health.” Based on the “testimony, including evidence that VPL was upset when he could not see plaintiffs, various witnesses’ concerns about defendant’s parenting, and the general principle that the removal of attachment figures could create a higher likelihood of damage to a child, we conclude that the evidence does not clearly preponderate against the trial court’s determination that plaintiffs satisfied the rebuttable presumption.” Further, the court found that “to the extent that defendant’s testimony contradicted this evidence, this Court must defer to the trial court’s credibility assessments.” It held that the “trial court’s findings were not against the great weight of the evidence.”

Homeowners insurance coverage dispute; Whether defendant-insurer waived or was estopped from asserting a residency defense; Martinek v Firemen’s Ins Co; “Reside”; Heniser v Frankenmuth Mut Ins Co

The court held that defendant-insurer’s “failure to assert the residency defense in its initial denial letter was not a knowing waiver, and defendant was not estopped from raising this defense.” It further concluded that reasonable minds could not differ as to whether plaintiff actually lived at the home in question at the time of the loss and thus, the trial court did not err in granting defendant summary disposition on the basis “there was no coverage under the policy.” As a result, the court affirmed summary disposition for defendant. Plaintiff filed a claim for water damage to the home. In rejecting his waiver/estoppel argument, the court noted that “for an insurance company to waive or be estopped from asserting a defense, it must have been aware of facts that would support the assertion of the defense at the time of the denial.” In this case, there was “no evidence on the record that defendant was aware of facts that would support a residency defense until plaintiff was deposed.” While he pointed out “that defendant received some information indicating that [plaintiff’s nephew, F] was residing at the White Cloud home, there is no evidence that defendant had any knowledge of the necessary facts to assert that plaintiff did not reside at the White Cloud home.” As to the coverage issue, the policy did not define the term “reside.” Michigan courts have found that this term has “two different meanings: a legal or technical meaning involving an insured’s intent to return to the property, and a general or popular meaning based on the insured’s actual use of the property as a residence.” The record here showed that plaintiff “rented the home to a relative who paid the full amount of the monthly mortgage and, at best, plaintiff occasionally visited the home. During those visits, he used [F’s] property. He stored no property of his own at the home. At the time of the loss, plaintiff had not set foot in the home for at least a couple of months. Therefore, plaintiff cannot establish a genuine issue of material fact regarding coverage[.]”

Homeowners insurance coverage dispute; Whether defendant-insurer waived or was estopped from asserting a residency defense; Martinek v Firemen’s Ins Co; “Reside”; Heniser v Frankenmuth Mut Ins Co

The court held that defendant-insurer’s “failure to assert the residency defense in its initial denial letter was not a knowing waiver, and defendant was not estopped from raising this defense.” It further concluded that reasonable minds could not differ as to whether plaintiff actually lived at the home in question at the time of the loss and thus, the trial court did not err in granting defendant summary disposition on the basis “there was no coverage under the policy.” As a result, the court affirmed summary disposition for defendant. Plaintiff filed a claim for water damage to the home. In rejecting his waiver/estoppel argument, the court noted that “for an insurance company to waive or be estopped from asserting a defense, it must have been aware of facts that would support the assertion of the defense at the time of the denial.” In this case, there was “no evidence on the record that defendant was aware of facts that would support a residency defense until plaintiff was deposed.” While he pointed out “that defendant received some information indicating that [plaintiff’s nephew, F] was residing at the White Cloud home, there is no evidence that defendant had any knowledge of the necessary facts to assert that plaintiff did not reside at the White Cloud home.” As to the coverage issue, the policy did not define the term “reside.” Michigan courts have found that this term has “two different meanings: a legal or technical meaning involving an insured’s intent to return to the property, and a general or popular meaning based on the insured’s actual use of the property as a residence.” The record here showed that plaintiff “rented the home to a relative who paid the full amount of the monthly mortgage and, at best, plaintiff occasionally visited the home. During those visits, he used [F’s] property. He stored no property of his own at the home. At the time of the loss, plaintiff had not set foot in the home for at least a couple of months. Therefore, plaintiff cannot establish a genuine issue of material fact regarding coverage[.]”

Legal malpractice; Attorney lien; Res judicata; Garrett v Washington; Collateral estoppel; Monat v State Farm Ins Co; Mutuality of estoppel

The court held that the trial court erred by granting summary disposition for defendant-law firm in this matter involving legal malpractice and an attorney lien. Plaintiffs were involved in civil and criminal federal court proceedings related to their healthcare businesses. They subsequently retained defendant to assist them with an in rem proceeding seeking money and accounts seized by the federal government. Plaintiffs alleged the firm failed to file a claim of interest on two accounts, which were administratively forfeited. The federal district court eventually granted defendant’s motion to withdraw and entered an order requiring plaintiffs to satisfy defendant’s attorney lien before it could receive any remaining funds from a proposed settlement in their underlying case. The 6th Circuit remanded, and on remand the federal district court entered an order declining to exercise supplemental jurisdiction over the malpractice issue and closed the case. Plaintiffs then filed this suit in state court. On appeal, the court agreed with plaintiffs that (1) the trial court erred when it granted defendant’s motion for summary disposition because the federal district court’s order was not itself a release that could be enforced, and (2) because their malpractice claims were never litigated on the merits and there was no final judgment, they were not precluded from bringing their claims in state court. At every stage of the proceedings they “have objected to the idea of executing a release of liability. Moreover, there is no contractual language for this Court to interpret to determine the intent of the parties. The order itself required plaintiffs to execute a ‘full and complete’ release, but the order is not the release itself.” And because “there was no ‘release’ in the first place, it would have been error for the [trial] court to rely on the ‘release’ when granting summary disposition.” In addition, neither “res judicata nor collateral estoppel apply to the facts of this case for the same reason: there was no final decision on the merits.” Had defendant “immediately tried to enforce the order, it would not have been successful because the record was undeveloped. Thus, there was neither a ‘decision on the merits,’ nor a ‘valid and final judgment’ for the” trial court to enforce. “And once the federal district court declined to exercise supplemental jurisdiction, neither collateral estoppel nor res judicata prevented plaintiffs from asserting their malpractice claims in state court.” Reversed and remanded.

Jurisdiction over a child; 712A.2(b)(1) & (2); “Neglect”; MCL 722.602(1)(d); “When able to do so,” “able,” & “negligent treatment”; In re Hockett; Deference owed to a trial court’s decision

Holding that the trial court did not err by finding no basis for jurisdiction over the child, the court reversed the Court of Appeals judgment to the contrary and remanded to the trial court. The DHHS petitioned to take jurisdiction over the child (who had serious psychological issues) after respondent-mother refused to pick him up from the hospital (where he was awaiting inpatient psychiatric treatment) because she felt that bringing him home would pose a significant risk to himself, her other children, their pets, and herself. The trial court determined that a preponderance of the evidence did not support jurisdiction. The Court of Appeals reversed, finding that both 2(b)(1) and (2) were met. The court disagreed, noting respondent “did not have sufficient power, skill, or resources to have [the child] return and stay at home because he posed a danger to the other members of the household, as well as himself. Even had [she] worked with DHHS to obtain outpatient services, those services had failed in the past, and there was no indication that such services would provide respondent with sufficient power, skill, or resources to enable [him] to live at home safely, especially given [he] did not receive treatment during his most recent hospital stay.” In addition, respondent’s treatment of the child did not satisfy the “definition of ‘negligent.’” She has been trying to get him “the treatment he needs, as any reasonably prudent person in her circumstance would have. Refusing to take [him] home under the circumstances was precisely what an ordinarily and reasonably prudent person would do, given [he] posed a danger to himself and others if taken home. Past experience indicated that even if [the child] were provided outpatient treatment, he would still pose a danger to the household.” Finally, while the court agreed that the facts of this case and Hockett are similar, and the Court of Appeals was certainly right to look to it, “it should have remained mindful of the deference owed to the trial court’s decision.”

Justice Cavanagh concurred but wrote separately, asking the Legislature “to consider creating a no-fault procedure that allows the state to intervene without requiring courts to adjudicate parents as unfit when they are struggling to support children with complex mental health needs,” noting that “[r]eform is needed, or parents and children will continue to suffer.”

Justice Bernstein concurred in part and dissented in part, agreeing with the majority that the trial court did not abuse its discretion, but noting its “analysis of culpability with respect to MCL 712A.2(b)(2) is insufficient, and to the extent that the majority suggests that MCL 712A.2(b)(3) ‘may’ provide an adequate basis to obtain jurisdiction over” the child, he disagreed.

Justice Zahra dissented, noting his belief that “a parent who causes their child to become homeless has in fact neglected or abandoned the child. Further, the notion adopted by the majority opinion—that a parent can dictate the scope and extent of a treatment plan—is not supported by statute and is certain to create more problems than it purports to solve.”

Termination under §§ 19b(3)(c)(i) & (j); Reasonable reunification efforts; MCL 712A.19a(2); In re Hicks; Aggravating circumstances; In re MJC; Americans with Disabilities Act (ADA) accommodations; In re Sanborn; Children’s best interests; MCL 712A.19b(5); In re Sanford; Whether children’s best interests must be considered together; Whether a guardianship must be considered; In re TK

Holding that the DHHS made reasonable efforts to reunify respondent-mother with her two children, and that termination was in the children’s best interests, the court affirmed the termination of her parental rights. Her rights were terminated based on her lack of cognitive ability to parent, improper supervision of the children, lack of participation in services, disregard for the children’s medical care, and ongoing domestic violence. On appeal, the court found that the DHHS “made reasonable efforts to reunify respondent and her children and modified the offered services to accommodate respondent’s cognitive disability.” But despite “the additional assistance with services, respondent failed to participate consistently in the provided services.” And despite the numerous services and accommodations provided, “respondent was unable to demonstrate sufficient ability or understanding to safely care for the children, and failed to demonstrate that she would have been able to acquire sufficient ability to care for the children had different or additional services or accommodations been offered.” The court also found that termination was in the children’s best interests and the trial court did not have to consider the children individually or the possibility of a guardianship. The trial court “considered respondent’s lack of parenting ability, as shown by the ongoing safety and health concerns, and [her] lack of engagement in, and progress from, the services offered.” It also considered “the children’s need for stability and permanency, which their foster home provided, the children’s bond with their foster parents, the foster parents’ willingness to adopt both children, and that the children were doing well mentally, emotionally, and physically in the foster home.” In addition, apart from one child’s “dental health, there were no characteristics or needs warranting separate consideration of each child.” There was also no need to consider a guardianship, even though respondent claimed it “would allow her more time to improve her parenting skills. The focus of the best-interests inquiry, however, is the child rather than the parent. Moreover, there was no clear timeline in this case regarding if or when respondent would improve sufficiently to care for her children.”