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https://www.courtlistener.com/api/rest/v3/opinions/8490356/ | FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALEXANDER L. PASKAY, Chief Judge.
THE MATTER under consideration in this Chapter 7 case is a Complaint, filed by Jary C. Nixon, (Trustee) who seeks a Turnover Order of certain funds concededly held by the United States Government, the Internal Revenue Service (IRS). The Trustee also seeks an identical Order of Turnover against Don M. Stichter (Stichter), who is counsel of record for Her Majesties Stout Shop, Inc., the Debtor involved in this Chapter 7 case.
The procedural history and background of this entire adversary proceeding is extremely convoluted and complex and it is certainly in need of an explanation in order to put the issues in an understandable posture. This is unfortunate because in retrospect the remaining issue for consideration should have become evident at the very outset.
The adversary proceeding was commenced on June 29, 1983, when the Trustee filed his Complaint for Turnover. On July 15, 1983, Stichter answered the Complaint and promptly filed a Motion for Summary Judgment on August 26, 1983. The Complaint was answered by the IRS on November 21,1983. In due course the matter was scheduled for a pretrial conference and also scheduled the Motion for Summary Judgment filed by Stichter, which was heard on December 6,1983, which Motion was granted and Stichter was dismissed as a defendant from this adversary proceeding. On December 16, 1983, the IRS filed a Notice of Appeal concerning this Court’s Order entered on December 6, 1983.
Thereafter, this Court entered two additional separate orders on January 11, 1984. The first order vacated the Order of December 6, 1983, the order which was challenged by the IRS, and the second order struck the Notice of Appeal filed by the IRS on the basis that it was rendered moot. On February 24, 1984, the Trustee filed his own Motion for Summary Judgment at this time against the IRS. On May 4,1984, this Court entered an order and granted the Trustee’s Motion for Summary Judgment against the IRS and ordered the IRS to turnover to the Trustee the sum of $2,000.00 within 30 days from the date of entry of the order. On May 9, 1984, the IRS filed its second Notice of Appeal challenging the order entered by this Court on the Trustee’s Motion for Summary Judgment. For reasons which are not clear, the Trustee filed a renewed Motion for Summary Judgment on November 8, 1984.
However, the progress of this adversary proceeding came to a sudden halt on October 19, 1984, when the District Court Order reversed all orders heretofore entered by this Court, including the order which granted the Trustee’s Motion for Summary Judgment originally entered December 6, 1983. The District Court reversed this Court on the basis that the order was improper in as much as the IRS did not receive a proper notice of the hearing nor the Trustee’s Motion for Summary Judgment, and therefore, it was denied due process.
In addition, the District Court also ruled that during the pendency of the Notice of Appeal filed by the IRS, this Court had no jurisdiction to deal with any matters involved in this adversary proceeding and for this reason all acts taken by this Court subsequent to December 6, 1983, were a nullity and they were vacated but then were remanded to this Court for further proceedings albeit, without the District Court deciding any part of the merits of the controversy between the Trustee and the IRS.
On June 12, 1985, after receiving the Mandate from the District Court, this Court entered an order and denied the Renewed Motion for Summary Judgment filed by the Trustee. On March 24, 1986, this Court held a pretrial conference, at which time the Trustee and the IRS stipulated the facts which they agreed to be relevant to the resolution of the issue and submitted the matter for resolution by this Court based on the stipulated facts which are as follows:
*147Prior to the commencement of this Chapter 7 case the debtor corporation was indebted to the IRS in the amount of $2,794.98 for unpaid payroll taxes. On or about March 1, 1983, the Debtor sold some of its racks, fixtures and inventory items used in the Debtor’s business for $2,000.00. Upon receipt of the purchase price, the Debtor turned this money over to Mr. Stiehter, its attorney of record, who in turn forwarded the same to the IRS in order to pay in part the Debtor’s liability for unpaid payroll taxes. The payment by Stiehter was made by check which was mailed to the IRS on March 3, 1983, or three hours before Stiehter filed a petition for relief in this Court on behalf of the Debtor. The $2,000.00 check was received by the IRS in due course, and it was negotiated by the IRS on March 16, 1983, or subsequent to the commencement of the case. On June 29, 1983, as noted earlier, the Trustee filed his Complaint for Turnover and sought to recover the $2,000.00 initially from Stichter, or in the alternative, from the Government.
Based on the foregoing undisputed facts, it appears that the only issue which remains for resolution by this Court is whether or not the transfer of the $2,000.00 occurred when the check was mailed by Stiehter to the IRS, i.e., or three hours before the commencement of the case, or when the check was, in fact, negotiated by the IRS on March 16, that is postpetition. Thus, it is evident that the time the funds were transferred is dispositive of a trustee’s claim to the funds because if the transfer occurred postpetition, the monies were still property of the estate on the date of the commencement of a case, and therefore, it was a postpetition transfer, the validity of which must be determined by reference to § 549 of the Bankruptcy Code, which deals with postpetition transactions.
Considering the first issue first, there is no question that the payment of a debt by a check is a transfer within a definition of that term as defined by § 101(48) of the Bankruptcy Code. It is equally clear, however, that the payment of a debt by Stiehter did not occur when the check was mailed simply because a check itself does not vest title in the payee or grant any interest to the payee in the funds held by a drawee bank. The proposition is basically controlled by § 3-409(1) of the Uniform Commercial Code, as adopted by this state, Florida Statute 673.3-409, which provides in pertinent part as follows:
A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.
The acceptance of a draft by a drawee is defined by § 3-410(1) as adopted by this state by 673.3-410, which provides as follows:
673.3-410 Definition and Operation of Acceptance
Acceptance is the drawee’s signed engagement to honor the draft as presented. It must be written on the draft, and may consist of his signature alone. It becomes operative when completed by delivery or notification.
Based on the foregoing, it is clear that the check is nothing more than an order directed to the drawee bank to pay the sum stated and does not constitute a transfer and delivery of the funds until it is accepted by a drawee and paid. From these it follows that the date of the payment of a check is not the date of the mailing or delivery but the date the check is accepted and honored. And this is dispositive to determine when the transfer had actually occurred.
As noted supra, the $2,000.00 was mailed on March 3,1983, and was not negotiated until March 16, 1983, which occurred postpetition. Many courts have held that the payment of a check by the drawee rather than the sending or receipt of the cheek constitutes the transfer under the Bankruptcy Code. See Fitzpatrick v. Philco Finance Corp., 491 F.2d 1288 (7th Cir.1974); In re Sportsco, Inc., 12 B.R. 34 (Bankr.D.Ariz.1981); In re Duffy, 3 B.R. 263 (Bankr.S.D.N.Y.1980).
Therefore, the transfer of the $2,000.00 to the IRS occurred on March 16, 1983. The transfer was postpetition and the $2,000.00 was property of the estate under *148Bankruptcy Code § 541. In essence, the $2,000.00 was a post petition payment of a pre-petition claim, which is improper.
Having concluded that the transfer of the $2,000.00 occurred postpetition, the validity of the transfer must be tested with reference to the provisions of § 549 of the Code which provides as follows:
§ 549 Postpetition Transactions.
(a) Except as provided in subsections (b) or (c) of this section, the trustee may avoid a transfer of property of the estate
(1) made after the commencement of the case; and
(2)(A) that is authorized only under § 303(f) or 542(c) of this title; or
(B) that is not authorized under this title or by the Court.
Since it is clear that this transfer was not authorized under § 303(f) (Good faith transfers prior to the entry of an Order for Relief in an involuntary case) or under § 542 (Postpetition payment of debt owed to the Debtor made in good faith), this is clearly an avoidable transfer, and the Trustee’s entitled to the relief it seeks against the IRS. A separate final judgment will be entered in accordance with the foregoing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490357/ | MEMORANDUM OPINION AND ORDER
HELEN S. BALICE, Bankruptcy Judge.
Rivas & Rivas, Inc. is a Chapter 11 debt- or engaged in the construction business. Augustine A. DiBiase, Jr. is the holder of an allowed claim against Rivas & Rivas in the amount of $15,000. The parties reached an agreement as to the amount of the claim following extensive discovery on debtor’s objections to DiBiase’s first proof of claim filed as unsecured in the amount of $40,000 and his second proof of claim filed as secured in the amount of $15,000. DiBiase’s contention that his claim should be given secured status under equitable principles of law is disputed.
The parties’ request to waive hearing and submit the issue on a stipulation of facts was granted. The stipulation and the documentation attached to the proofs of claim reveal the following sequence of events.
Rivas & Rivas was the owner and developer of a residential subdivision in New Castle County known as Wellington Hills. In May 1977 it entered into a written contract of sale with DiBiase for Lot No. 17, Section 3, for $13,000 with settlement scheduled for December 1, 1979. On December 20, 1977, Rivas & Rivas entered into an agreement with New Castle County under which it was given permission to construct and connect, within three years, a proposed sewer system in Section 3 of Wellington Hills to the County sewer system already in place in other sections of the development. Settlement on Lot No. 17 was finalized November 27, 1979.
In May 1982, New Castle County issued a building permit to DiBiase for construction of a dwelling on Lot No. 17 with the proviso that a certificate of occupancy would not issue until the sewer was installed and accepted by the County. The dwelling was completed on or about June 15, 1982. Rivas and Rivas did not install a sewer system. No certificate of occupancy was issued. DiBiase sued Rivas & Rivas in Superior Court of Delaware for damages arising from the developer’s failure to furnish sewers, roadways and utilities to his property. That action was stayed upon the filing of Rivas & Rivas’ Chapter 11 case on November 8, 1982.
Section 506(a) of title 11 United States Code defines a secured claim as “an allowed claim of a creditor secured by a lien on property in which the estate has an interest * A lien means a “charge against or interest in property to secure payment of a debt or performance of an obligation.” 11 U.S.C. § 101(31). When a security interest is claimed, BR 3001 requires that the proof of claim be accompanied by evidence that the security interest has been perfected.
The documentation attached to DiBiase’s proof of claim, a copy of a complaint filed in Superior Court of Delaware, does not establish a lien against either real or personal property. A complaint that has not gone to judgment does not create a lien; nor is there any documentation to support the creation of a consensual security interest under Delaware law. 6 Del.C § 9-203; 9-302. Consequently, the claim does not qualify for secured treatment under 11 U.S.C. § 506(a).
DiBiase contends his claim should be given secured status under equitable principles of law. The parties agree that he is a third-party beneficiary creditor of the December 1977 agreement between Ri*169vas & Rivas and New Castle County. In order to prevail, he must prove that an equitable lien arose in favor of New Castle County by virtue of that agreement.
Pomeroy provides the most authoritative general statement of the applicable law:
The doctrine [of equitable lien] may be stated in its most general form, that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees, and purchasers or encumbrancers with notice. Under like circumstances, a merely verbal agreement may create a similar lien upon personal property.
4 Pomeroy’s Equity Jurisprudence, § 1235, at 696 (5th ed. 1941).
The agreement provides for the construction of a sewer system by Rivas & Rivas on or before December 20, 1980, and, if approved by the County, connection of that system to the County’s system. It reflects the conditions under which it is to be constructed and accepted. It does not indicate any intent to create a security interest in any property of Rivas & Rivas in favor of the County to serve as security for any obligation.
There being no identification of property against which a debt or obligation may be charged and no intention that such property serve as security, DiBiase’s claim cannot be treated as secured in Rivas & Rivas’ bankruptcy case. Therefore, the claim of Augustine Dibiase, Jr. is allowed as unsecured in the amount of $15,000. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490358/ | FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION,
ALEXANDER L. PASKAY, Chief Judge.
THE MATTER under consideration in this Chapter 7 case is an adversary proceeding in which the First National Bank (Bank) seeks a determination of the dis-chargeabililty of debt owed to First National of Florida by J. Mortimer Greene, the Debtor involved in this Chapter 7 ease. In its two count complaint the Bank alleges that the Debtor (Debtor) obtained a loan from the Bank through fraud and false pretenses. Therefore, by virtue of 11 U.S.C. § 523(a)(2)(A) and (B), the Debtor’s obligation to the Bank should be excepted from the general discharge. The facts relevant as they appear from the record established at the final evidentiary hearing are as follows:
In late February or early March 1985 the Debtor and his wife, Debra Greene, applied for a $25,000 loan from the downtown Tampa branch of the Bank. This loan was *267sought in order to consolidate all their debts owed by them. The Greenes filled out a credit application and a financial disclosure statement, on which they listed all debts they currently owed. In a few days a loan officer from the Bank told them that their application had not been approved.
After being told that the $25,000 loan had not been approved by the downtown branch, on March 5, 1985, the Debtor contacted William L. Boyd, senior vice-president of the installment loan department at the Westshore branch of the Bank and inquired about a $5,000 loan. Mr. Boyd had arranged a loan for the Debtor previously and was familiar with the Debtor’s credit history. Mr. Boyd instructed the Debtor to come by the Westshore branch office and fill out a loan application. The same day the Debtor went to the West-shore office and filled out the loan application on which he stated that he had assets of approximately $190,000 and liabilities of approximately $60,400. He also stated that the purpose of the loan was to make home repairs. Upon completing the application and returning it to Mr. Boyd, the Debtor was immediately given a check for $5,000. The Debtor used the loan proceeds to pay $3,000 in alimony arrearages owing to his ex-wife and $2,072 attorney’s fees owing to his ex-wife’s attorney. After making only four payments to the Bank, the Debtor defaulted on the loan, and on April 19, 1985, the Debtor and his wife filed their petition under Chapter 7 of the Bankrupty Code.
The claim of nondischargeability asserted by the Bank is based on Section 523(a)(2)(A) and (B), which govern exceptions from discharge and provides as follows:
(a) A discharge under § 727 ... of this title ... does not discharge an individual debtor from any debt ...
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by—
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(B) use of a statement in writing
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive.
Case law interpreting this section of the Code has been traditionally strictly construed, requiring the creditor to prove each and every element by clear and convincing evidence. See, i.e., In re Hunter, 780 F.2d 1577 (11th Cir.1986).
The Bank contends that it has met its burden of proof by showing that the Debt- or made material false representations to the Bank with the specific intent to deceive the Bank and that the Bank reasonably relied on these representations in making the loan. On the other hand, the Debtor asserts that although there were misrepresentations on the credit applications, he had no intent to deceive, and the Bank had previously been given loan applications on which the Debtor had fully disclosed his financial condition. More importantly, the Bank did not rely on the credit application at all when the loan was made, but rather on the Debtor’s credit history.
There is no doubt that the March 5,1985, credit application submitted by the Debtor to Mr. Boyd at the Westshore branch office was false in several respects. The application reflected that the Debtor had assets of $190,000 and liabilities of $60,400, representations that the Debtor admits were wholly inaccurate. The application omitted substantial liabilities and misstated the Debt- or’s assets by at least $100,000. Furthermore, the credit application was also misleading in that it misstated the purpose of the loan. The Debtor represented on the application that the purpose of the loan was for home repairs when, in fact, it was intended to be used and actually was used *268to pay arrearages in alimony due the Debt- or’s ex-wife.
Notwithstanding the materially false statements made on the credit application, this Court is satisfied that the Bank has failed to carry its burden of proof in its claim of nondischargeability because it has failed to establish, by clear and convincing evidence, that it reasonably relied on the materially false statements in making the loan. The testimony of all witnesses indicated that the decision to loan money to the Debtor was made before the application was completed and that the Bank relied on the Debtor’s past repayment record and his credit history and not on the application. The evidence that the Bank relied on the application is, at best, in equilibrium with the evidence that there was no reliance on the application. Therefore, the degree of proof presented by the Bank falls far short of the clear and convincing standard necessary to sustain its burden under § 523(a)(2)(A) or (B). Based on the foregoing, the claim of the Bank cannot be sustained. A separate final judgment shall be entered in accordance with the foregoing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490359/ | MEMORANDUM DECISION
PEDER K. ECKER, Bankruptcy Judge.
The defendant/debtor, Gary Dean Buckley, is a farmer. He first borrowed money from the Farmers Home Administration (FmHA) in 1980. On September 17, 1981, *284he executed a real estate mortgage on his real estate in Beadle County, South Dakota, in favor of FmHA. The mortgage contained a clause assigning the rents and profits of the real estate to the FmHA. The debtor defaulted on the debt to FmHA by failing to make the annual payment to FmHA on January 1, 1984.
On March 1, 1984, the debtor entered into a written farm lease with Raymond Hofer, which provided for an advance cash rental payment to the debtor of $6,353. FmHA was not informed by the debtor of the lease arrangement. The debtor then took the cash rent and some other cash proceeds from the sale of unencumbered personal property and used it to buy life insurance.
On May 4, 1984, the debtor filed for bankruptcy relief under Chapter 7. FmHA subsequently commenced this adversary proceeding, alleging that the use of the rent proceeds by the debtor was a willful conversion and that the amount of $6,353 should be determined to be a nondischargeable debt owed to FmHA.
There are two issues to be decided:
1. Whether an assignment of rents clause in a real estate mortgage creates a prospective lien which must be perfected after the debtor’s default by the lender; and
2. Whether the failure of a debtor to inform a creditor holding an assignment of rents under a real estate mortgage of the debtor’s rental of the property post-default prevented FmHA from taking action on its assignment, amounting to conversion which would rise to the level of non-dischargeability.
Under South Dakota law, an assignment of rents contained in a mortgage must be perfected post-default by the lender by obtaining possession of the property or by having a receiver appointed by the state court. See Rudolph v. Herman, 4 S.D. 283, 56 N.W. 901 (1893); First Federal Savings & Loan v. Clark Investment Co., 322 N.W.2d 258 (S.D.1982); Aetna Life Insurance Co. v. McElvain, 363 N.W.2d 186 (S.D.1985). FmHA did not move to perfect its assignment after the debtor defaulted.
The recent Eighth Circuit Court of Appeals decision in United States v. Landmark Park & Associates, 795 F.2d 683 (8th Cir.1986), held that HUD, a federal lender, was deemed to have perfected its interest in rents by filing its mortgage pre-petition and was, thus, entitled to post-petition rents. This Court believes the applicability of that decision to be limited to situations involving continuing post-petition rents and that, under the circumstances of the instant case, FmHA was subject to the requirements of South Dakota state law.
The question then becomes whether the debtor, by failing to inform FmHA of his intention to rent the property as required by the mortgage, interfered with or, in effect, prevented FmHA from perfecting its interest in rents and whether this conduct was willful and malicious, amounting to a conversion nondischargeable under the Code. 11 U.S.C. § 523(a)(6).
This Court must conclude that, although the debtor’s conduct constituted a breach of the conditions of the mortgage, such a breach is not in and of itself sufficient to declare the debtor’s conduct to be willful and malicious. FmHA knew the debtor was in default and could have taken steps to protect its interests. For whatever reasons, it did not. Although the debtor is testing the outer limits of his right to a fresh start under the provisions of the Code, the Court finds that the debtor’s rental of the land and use of the proceeds did not amount to a conversion in this instance.
Accordingly, based on the foregoing, this Memorandum Decision constitutes the Court’s Findings of Fact and Conclusions of Law in the above-entitled matter pursuant to Bankr.R.P. 7052 and F.R.Civ.P. 52. Counsel for the defendant/debtor is directed to submit a proposed order and judgment in accordance with Bankr.R.P. 9021. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490360/ | MEMORANDUM DECISION AND ORDER ON APPLICATION FOR A PRELIMINARY INJUNCTION
EDWARD J. RYAN, Bankruptcy Judge.
A Chapter 11 debtor, Coaches Sports Techniplex, Inc. (“Coaches”) seeks a preliminary injunction enjoining defendants, Thomas E. Williams (“Williams”), Tom Williams, Inc., Tom Williams Sports, Ltd. and Concorde Financial Corporation (“Concorde”), from:
a) engaging in any business or commercial activity, directly or indirectly, which is similar to or competitive with the business and commercial activity conducted by Coaches, anywhere in Harris County, Fort Bend County or Dallas County, Texas;
b) selling, offering to sell or promoting in any way any securities or interests in business activities which are the same or similar to or competitive with the business and commercial activities of Coaches, anywhere in Harris County, Fort Bend County or Dallas County, Texas;
c)representing or offers to represent, directly or indirectly, any professional athlete in any business enterprise or promotion or negotiation relating to their professional athletic careers or endorsements of products.
The hearing commenced on July 17,1986, adjourned until August 13 and concluded that same day.
Pursuant to Rule 7052 of the Bankruptcy Rules, the court makes the following:
I.
FINDINGS OF FACT
1. On or about November 19, 1984, Williams entered into a pre-incorporation agreement with Daniel K. Trevino, Jr. and Roger E. Trevino relating to the formation of Coaches. Pursuant to the pre-incorpo-ration agreement, Coaches was incorporated and commenced business operations in the area of (a) recruiting professional, and soon to turn professional, athletes for the purpose of Coaches serving as their business manager and agent in contract negotiations and related activities; (b) constructing and operating a gymnasium for the purpose of soliciting private memberships from the general public, professional and non-professional athletes; and (c) developing and implementing specialized physical conditioning and therapy techniques.
2. Daniel K. Trevino, Jr., Roger E. Trevino, and Williams were the only directors and officers of Coaches. According to the pre-incorporation agreement, the responsibilities of the officers were as follows:
(a) Daniel K. Trevino, Jr. as the Chairman of the Board, was responsible and had authority to raise all monies required for the operations of the business, to obtain leases for facilities, and provide the overall management supervision, in consultation with the President and Executive Vice President of the corporation, of the overall operations of the corporation.
*310(b) Thomas E. Williams, as the Executive Vice President/Athletic Director, was responsible and had authority to direct, create, establish and implement all athletic, fitness and health programs, and to direct all player agency relationships.
(c) Roger E. Trevino, as the President, was responsible and had authority to direct, create, establish and implement, in consultation with the Chairman of the Board and the Executive Vice President/Athletic Director of the corporation, marketing and sales strategies and programs, membership drives, purchasing of equipment, fixtures, materials, supplies, etc.
The three were also the only shareholders of Coaches. However, no stock certificate was issued to Williams and it is unclear whether any stock was issued to the other two.
3. Williams was promised a $24,000 salary and an automobile when the facility became operational. From the opening of the gym until his resignation, Williams did not receive compensation from Coaches. Williams did receive an automobile in the spring of 1985.
4. Williams had been training athletes for many years prior to the formation of Coaches, individually and in classes. He is well recognized as being pre-eminent in his field. At the time the Coaches’ gym opened, Williams transferred his exercise class to the facilities. Williams was not paid by the athletes in the class during the time that class was at Coaches.
5. Although use of the gym began in November 1984, the facilities were, and continued to be, inadequate. For example, there was no water fountain, no separate facilities for women, and the turf was torn. The inadequacy of the facilities made it impossible for Williams to fully implement his athletic program.
6. In May, 1985, Coaches began discussions and negotiations with Concorde for the purpose of Concorde acting as underwriter to raise investment capital for Coaches. These discussions and negotiations continued through the summer of 1985 without any agreement being reached. Williams participated in several of the meetings with Concorde.
7. In July 1985, Daniel K. Trevino, Chairman of the Board of Coaches and the officer responsible for raising capital for Coaches, informed Williams that Coaches was in desperate need of capital.
8. In July and August 1985, Williams presented to Daniel K. Trevino several potential investors in Coaches. However, after meeting with Trevino, these investors declined to participate.
9. In September or October, Williams contacted Concorde regarding the possibility of assisting Williams in financing his own venture to market and implement the Tom Williams System, a physical training program developed by Williams.
10. In an effort to start his venture, Williams on or about September 30, 1985, incorporated Tom Williams, Inc. Tom Williams, Inc. was to be the general partner of a limited partnership, Tom Williams Sports, Ltd. According to a Private Placement Memorandum dated November 20, 1985 which terminated December 31, 1985, the partnership would license, promote and act as consultant for the Tom Williams System. At no time was Tom Williams, Inc. or Tom Williams Sport, Ltd. funded sufficiently to become operational.
11. Williams’ efforts to launch his own venture were unknown to Coaches. In all the circumstances, however, Williams was not unfair in exploring a realistic exploitation of his talents when his co-venturers disappointed him.
12. On December 16, 1985, Williams resigned as officer and director of Coaches. Williams also resigned from any other official position he held with Coaches.
13. On or about January 3,1986, Coaches filed its petition for relief pursuant to Chapter 11 of the Bankruptcy Code under case number 86-00047-H2-11.
14. Williams continued to have an office and to operate from Coaches premises until *311April 10, 1986. At that time, he and his family were told by Daniel K. Trevino not to return to the premises.
15. Williams had an exercise class of approximately sixty athletes when he moved to Coaches. He currently has a class of approximately twenty athletes.
16. On May 1, 1986, Coaches filed this adversary proceeding alleging breach of fiduciary duties and unfair competition against Williams and against the remaining defendants for fraud, conspiracy, tortious interference with contracts and unfair competition; and against all defendants for injunctive relief.
The court states the following:
CONCLUSIONS OF LAW
1. Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974) set forth the standard for the issuance of a preliminary injunction. The four requisites to be examined by a court in considering a request for a preliminary injunction are:
a. a substantial likelihood that the plaintiff will prevail on the merits;
b. a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted;
c. the threatened injury overweighs the threatened harm the injunction may do to the defendant; and
d. granting the preliminary injunction will not disserve the public interest.
Id. at 572.
2. There is not a substantial likelihood that Coaches will prevail on the merits. Coaches failed to prove that Williams breached any fiduciary duty in attempting to set up his own venture. While it might have been more professional for Williams to have serious discussions with Concorde only after he resigned from Coaches, we do not find that Williams was taking advantage of an opportunity that was legally the property of Coaches. Williams did not unfairly compete with Coaches in the light of Coaches’ woeful performance at the time Mr. Williams realized his co-venturers could not perform their part of the bargain.
Coaches stated four claims against the other defendants: fraud, conspiracy, tor-tious interference with contracts and unfair conpetition. These claims are also unsubstantiated.
3. Coaches failed to show a substantial threat that it will suffer irreparable injury if the injunction is not granted. In July 1985, Coaches was suffering from lack of funds. This problem was never resolved. It is not a viable business capable of implementing a program as planned. Williams is continuing in the same training business he had prior to the creation of Coaches. Tom Williams, Inc. and Tom William Sports Ltd. are not truly functioning organizations? Concorde proposes no threat to Coaches.
4. In balancing the harms, the threatened injury to Coaches does not outweigh the threatened harm the injunction may do the defendants. Coaches is currently operating with Roger Trevino and Steve Trevino performing the functions previously handled by Williams. Williams is a well noted and highly respected man in the field of athletic training and to deny him the right to work in that area would be a significant detriment to him.
5. Although the public interest requisite is not a significant factor in this case, it does appear that granting of the injunction would be contrary to public interest in denying a former employee to compete with his former employer unless prohibited by contract. See Executive Tele-Communication Systems, Inc. v. Buchbaum, 669 S.W.2d 400 (Tex.Civ.App.—Dallas 1984, no writ).
For want of an adequate showing, the application for a preliminary injunction is denied.
It is so ordered. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490671/ | MEMORANDUM OPINION AND ORDER
RICHARD L. SPEER, Bankruptcy Judge.
This cause comes before the Court upon Trustee’s Objection to Claims numbered 150 through 206. The facts not being in dispute, the parties submitted Briefs on the legal issues presented in this matter. An Amicus Brief was filed by Upholster’s International Union Health and Welfare Fund and the U.I.U. Pension Trust in support of the Trustee’s Objection to Claims. The Court has reviewed the evidence and the arguments of counsel. Based on that review, and for the following reasons, the Court finds that the Trustee’s Objections to Claims 150 through 206 should be Sustained.
FACTS
The Debtor, The Holabird Company, did business as a furniture manufacturer in Bryan, Ohio. On April 15, 1981, The Hola-bird Company and the Upholster’s International Union of North America, AFL-CIO, Local 605 entered into a labor agreement. The agreement did not provide for severance pay for the employees.
On March 1, 1983, the Debtor, The Hola-bird Company filed for relief under Chapter 11 of the Bankruptcy Code. The Debt- or filed an Application for rejection of the collective bargaining agreement on March 31, 1983. A Hearing was held, and the Application was granted on June 29, 1983. The Order granting the Application to reject the executory contract was appealed by the Union and the employees. After the rejection of the agreement, the Debtor and the Upholster’s Union began negotiating a new contract. Prior to reaching that Agreement, The Holabird Company laid off some senior employees and fired all the members of the negotiating committee. The employees then went on strike. A new Labor Agreement was signed on September 5, 1983. This new agreement set the wage rate for the first year, pension benefits, health insurance, vacation and paid holidays. As in the prior contract, no provision was made for severance pay.
On October 14, 1983, The Holabird Company closed its operations. The case was converted to a, proceeding under Chapter 7 on February 7, 1984. On March 21, 1986, the Honorable Walter J. Krasniewski transferred the case to this Court.
In support of their Claims for severance pay and “wage differential” payments, the Union on behalf of the employees, argues that an implied contract existed with The Holabird Company, allowing them to receive severance pay, even though the contract does not provide for it. The Trustee filed an Objection to the allowance of the Claims for severance pay and “wage differential” payments. He contends that no severance pay provision can be implied under the facts in this case. The Trustee’s Objection also addresses the employees’ characterization of prepetition vacation pay as a Chapter 11 administrative expense under § 507(a)(1).
LAW
In the present case, the employment agreement is governed by Ohio law. The employees’ Brief cites a number of Ohio cases which allowed severance pay in situations involving employment-at-will and oral employment contracts. In the cited cases, unlike the case at bar, there was some evidence introduced which indicated an intention on the part of the employer to provide additional compensation to the employees upon termination.
The employees assert that the Debtor’s representations made during the negotiations for the new contract should result in the Court finding an implied contract. They contend that the President of The Holabird Company, Steven Harris, made statements to the effect that with a new contract the business would be viable and continue its operations. The employees *113cite cases such as Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 463 N.E.2d 150 (1985), Stearns v. Ohio Savings Assn., 15 Ohio App.3d 18, 472 N.E.2d 372 (1984), and Helle v. Landmark, Inc., 15 Ohio App.3d 1, 472 N.E.2d 765 (1984). They argue that the Court should find an implied contract for severance pay and “wage differential” payments because of their reliance on the representation that the business would be viable after the new labor contract was signed. The “wage differential” claim is based on the difference in the rate of compensation between the original labor agreement and the new contract entered into after the Application for rejection was granted.
The present case is distinguishable from the cases cited by the employees. Initially, it should be noted that this is not a situation involving an oral contract or employment-at-will. The Debtor and the employees bargained, and entered into a written labor agreement. Any assertion that an oral representation should alter the written terms of the contract would appear to run afoul of the parole evidence rule. Further, even assuming that the employees’ position does not directly contradict the terms of the written contract, it does not appear the employees fall within any of the recognized grounds for finding an implied contract for severance pay. On the contrary, the representations made by the President as to the viability of the company were not an inducement which could give rise to an implied contract.
In Mers, supra, the Ohio Supreme Court held that promissory estoppel can limit an employer’s right to discharge an employee who has an oral employment-at-will agreement. However, the Mers case involved a specific promise of reinstatement of one individual. In the case at bar, the statements by Mr. Harris were not the type of representations which would induce reliance by the employees. The Holabird’s financial information was available to the Union and the employees in the Debtor’s Schedules. In addition, Mr. Harris and The Holabird Company were not the only parties who would determine the success or failure of the reorganization. The Court and the creditors were also going to be influential factors in the Chapter 11 case. It has been observed that “Hope springs eternal in the human breast”. Alexander Pope, An Essay on Man, Epistle i (1733). That, indeed, is one of the bases of Chapter 11. If the President of the Company did not express confidence in the prospects for reorganization, how could the company continue? The Union and the employees contend that they put their trust in the representations of Mr. Harris, without verification, and without making an independent judgment as to what was in their best interest. However, such reliance does not appear to have been objectively reasonable under the circumstances.
The circumstances also suggest that the Union and the employees were not induced into giving up a position of some value' in order to enter the employment agreement. Stearns v. Ohio Savings Assn., supra, 15 Ohio App.3d at 19, 472 N.E.2d at 374. The record reflects that the Union and the employees appealed the Order approving the rejection of the executory employment contract. They exercised their right to strike. They engaged in collective bargaining. Nevertheless, the employees argue that they gave up rights and opportunities in signing the new contract, such as the right to bring an action with the National Labor Relations Board, and other employment opportunities they might have pursued. While this may be true, it does not necessarily follow that these consequences resulted from reliance on a representation that the business would be successful. It appears more likely that the decision to enter the new contract was made based upon the best interest of the employees after consideration of all the circumstances, including the financial information listed on the Debtor’s Schedules.
In Helle v. Landmark, Inc., supra, the Court of Appeals held that the employer breached an oral contract for severance pay. Landmark was a successor corporation which represented to the employees that its take over would not change the employees’ benefits. Again, the case at bar is clearly distinguishable. There are *114no allegations that any oral assurances were made regarding severance pay. In addition, the parties in the present case entered into a new contract which did not provide for severance pay. Moreover, the prepetition employment contract never provided for severance pay.
The employees also maintain that in balancing the equities of this case, the fact that the employees were forced to give up higher wages for the benefit of the company and its creditors should lead to the finding of an implied contract for severance pay. The Court does not agree. The employees do not dispute the accuracy of Mr. Harris’ statement that the company would have been closed within thirty (30) days if the prepetition labor contract had not been rejected. After Judge Krasniew-ski allowed the rejection of the 1981 labor agreement, both parties were in a position to cause The Holabird Company to cease operations. The employees negotiated to reach the best agreement possible, given the difficult economic circumstances facing the Debtor. Any assertion that the employees acted out of concern for the other creditors of The Holabird Company may not be entitled to significant weight.
Finally, policy considerations also support a finding that the employees are not entitled to severance pay, or “wage differential" payments, under the circumstances of this case. The Court does not seek to discourage owners and officers from expressing confidence in the ability of their enterprise to continue operations. Of equal importance, the Court does not wish to encourage reliance on statements which are similar in nature to “puffing”. All debtors are required to disclose their financial condition in the sworn bankruptcy Schedules in order to obviate the need to rely on overly optimistic statements concerning the debtors prospects. The Schedules provide an objective basis for decision making by those who deal with Chapter 11 debtors.
Recognizing an implied contract under these circumstances would also inject another element of uncertainty into a lender's decision whether to extend credit to a Chapter 11 debtor. If statements as to the viability of the operation can lead to additional administrative claims which would diminish the funds available to unsecured and undersecured creditors, lenders may be discouraged from doing business with debtors-in-possession.
Accordingly, the Trustee’s Objection to the claims for severance pay and “wage differential” payments should be Sustained. The statements by Mr. Harris were not the kind of specific representations which are recognized under Ohio law as providing a basis for an implied contract.
The Union and the employees also seek to have vacation pay, which was earned prior to the filing of the Chapter 11 petition, treated as a Chapter 11 administrative expense under § 507(a)(1). The cases which have addressed the vacation pay issue have held that vacation pay is an administrative expense only when it is actually earned during the Chapter 11 proceeding. In re Chicago Lutheran Hospital Ass’n, 75 B.R. 854, 856 (Bankr.N.D.Ill.1987); Matter of Schatz Federal Bearings Co., Inc., 5 B.R. 549 (Bankr.S.D.N.Y.1980). Therefore, the vacation pay which accrued prepetition not being an actual and necessary cost of preserving the estate under § 503(b), the Trustee’s Objection should be Sustained.
In reaching these conclusions, the Court has considered all the evidence and arguments of counsel, regardless of whether or not they are specifically referred to in this Opinion.
Accordingly, it is
ORDERED that the Trustee’s Objection to Claims 150-206 are Sustained.
It is FURTHER ORDERED that the employees’ Claims for severance pay and “wage differential” payments are Disallowed.
It is FURTHER ORDERED that the employees’ Claims for vacation pay which accrued prepetition are not to be treated as a § 507(a)(1) administrative expense. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490672/ | MEMORANDUM OF OPINION AND ORDER
RANDOLPH BAXTER, Bankruptcy Judge.
This matter is before the Court upon the Trustee’s complaint, as amended, to determine the validity, priority and extent of liens and/or interests and for authority to distribute funds. Following an evidentiary hearing with notice thereof having been made upon all entitled parties, a review has been made of the entire record, and pursuant to Rule 7052, Bankr.R., the following constitutes the Court’s findings and conclusions:
I.
This is a core proceeding under provisions of 28 U.S.C. 157(b)(2)(K), with jurisdiction further conferred under 28 U.S.C. 1334 and General Order No. 84 of this District. Following the filing of the subject voluntary Chapter 7 petition, Myron E. Wasserman (Trustee), inter alia, commenced the collection of certain accounts receivable owing to Drapery Design Center, Inc. (Debtor). As a result of his collection efforts, the Trustee collected $143,-544.95 from the Debtor’s prepetition accounts receivable. Another $62,647.30 in receivables remain uncollected. The parties Defendant to this adversary proceeding have claimed an interest in the accounts receivable collected, as well as in uncollected receivables. Among the several answering parties Defendant, a dispute arose among the claimants United States of America, on behalf of the Internal Revenue Service, (IRS), Robert and Minerva Alexander (Alexanders), Parma Schools Employees Federal Credit Union (Credit Union), and A1 Rigdon. This opinion and order addresses that dispute and further provides authority for the Trustee to effect a distribution.
*122II.
The dispositive issues for the Court’s determination are threefold: (1) whether the assigned accounts receivable violated relevant provisions of the Anti-Assignment Act; (2) whether the assigned accounts receivable constituted security interests requiring perfection; and (3) whether the subject federal tax liens are superior to the nonfederal liens against the Debtor’s estate.1
The disputed claims are as follows:
IRS:
In its Answer, the IRS asserted two tax claims, representing withholding and F.I. C.A. tax liabilities totalling $96,354.24. The tax liens thereon were duly filed on December 22, 1986 and on January 12, 1987, respectively, for tax liabilities incurred during the second and third quarters of 1986. Citing §§ 6321 and 6322 of the Internal Revenue Code, the IRS contends that the amounts assessed became liens as of the dates of assessments upon all of the Debtor’s property, including the subject accounts receivable. It further contends that any assignments of Debtor’s accounts receivable were made in derogation of 31 U.S.C. 3727 (Anti-Assignment Act), and that its lien is superior to any claims of Rigdon, the Alexanders, and the Credit Union.
Alfred Rigdon:
In his response to the Trustee’s complaint, Alfred Rigdon (Rigdon) acknowledged doing business with the Debtor, as a factor, over an unspecified number of years whereby he would lend the Debtor money and in return would receive assignment of certain specified accounts receivable as repayment for the loans made to the Debtor. Without indicating'how long such course of dealings lasted, Rigdon claimed that a total of $30,039.18 was due him on nine (9) assigned accounts dated from October 21,1986 through and including January 26, 1987. In his reply brief, Ridgon conceded that the assignments of the accounts receivable were never recorded, but contends that nonbankruptcy law allowed an exemption to the requirement that the subject assignments be filed in order to be perfected. Rigdon therefore asserts that his interest in the accounts receivable is a secured interest. Alternatively, Rigdon contends that should the IRS’s tax liens be accorded priority over other secured interests, only the IRS’ first tax lien should enjoy that status, and not the second tax lien, since other intervening security interests were perfected prior to the IRS’ filing of its second tax lien.
Parma School Employees Credit Union:
The Credit Union claims that the Debtor owes it $176,109.76, on certain promissory notes and accounts receivables. {See, Answer To Amended Complaint, filed September 4, 1987). That amount is purportedly owed by the Debtor for six (6) loans made by the Credit Union to the Debtor between December 2, 1985 through July 21, 1986. In payment of the loans, the Credit Union took an assignment of certain of the Debt- or’s contractual rights. Concededly, the Credit Union’s interest was a security interest and no perfection was made respecting such assignment in accordance with U.C.C. requirements. (See Brief, filed December 16, 1987). The Credit Union contends that “[Fjrom the funds collected by the Trustee, the sum of $7,700.00 is directly attributable to contracts in which [the Credit Union] had an assignment.” Further, it contends that there are some $82,-647.37 in uncollected accounts receivable which requires prioritization. The Credit Union further states that it is the sole owner of proceeds due from various contracts as of the date of its assignment from the Debtor. It also contends that nonbank-ruptcy law excused its assignment from filing requirements.
*123
Robert and Minerva Alexander:
The Alexanders represent that they are secured creditors of the Debtor and have a secured interest in its accounts receivable as evidenced by their having filed the necessary financing statements with the required state authorities. Their Answer indicates the Debtor owes them $51,213.71 for various loans. Their Amended Answer indicates that $100,427.17 is owed, and is evidenced by a perfected lien on proceeds of Debtor’s accounts receivable. This amount is reflective of six (6) loans the Alexanders made to the Debtor for alleged sales bonuses owed, plus accrued salary.
III.
First, attention is given to provisions of the Anti-Assignment Act (Claims Act) which is set forth at 31 U.S.C. 3727. In pertinent part, the following is noted:
31 U.S.C. 3727
(a) In this section, “assignment” means—
(1) a transfer or assignment of any part of a claim against the United States Government or of an interest in the claim; or
(2) the authorization to receive payment for any part of the claim.
(b) An assignment may be made only after a claim is allowed, the amount of the claim is decided, and a warrant for payment of the claim has been issued. ...
The above language of 31 U.S.C. 3727 clearly indicates that the Claims Act concerns itself with claims against the federal government or with an interest in such claim. The matter at bar is not akin to the targeted concern addressed by 31 U.S.C. 3727. Herein, the subject claim assignments are not claims which have been filed against the United States or any part of an interest in such a claim. The Claims Act was enacted for the protection of the federal government against frauds and a multiplicity of conflicting claims. It was not promulgated to regulate the equities existing between individual claimants. Thusly, the United States’ reliance on the Claims Act is misplaced. See, In re Altek Systems, Inc., 14 B.R. 144, 149 (Bankr.N.D.Ill.1981), citing, Hobbs v. McLean, 117 U.S. 567, 6 S.Ct. 870, 29 L.Ed. 940 (1886); U.S. v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949); McKenzie v. Irving Trust Co., 323 U.S. 365, 65 S.Ct. 405, 89 L.Ed. 305 (1945). The Claims Act is not applicable to the matter, sub judice. See also, Centran Corp. v. U.S., 585 F.2d 982 (Ct.Cl.1978).
The Court next turns its attention to prioritization of liens. Respecting the claims of Rigdon and the Credit Union, both assert that their claims are secured interests, and both concede that their respective secured interests were unperfect-ed. Additionally, both claimants assert that nonbankruptcy law provides them with an exemption from the perfection requirements regarding their assignments. As for Rigdon, he acknowledged doing business with the Debtor as a factor over an unspecified number of years wherein he would loan funds to the Debtor in return for an assignment of certain of the Debt- or’s accounts receivable. Rigdon’s claim for $30,039.18 is based on nine (9) unper-fected assignments which date from October 21, 1986 through January 26, 1987. The Credit Union, on the other hand, claims that it is owed $176,109.76 by the Debtor on certain promissory notes and accounts receivable. As indicated above, that amount is allegedly owed by the Debtor for six (6) loans issued by the Credit Union to the Debtor between December 2, 1985 and July 21, 1986. As repayment on those loans, the Credit Union took assignments on certain of the Debtor’s contractual rights, none of which were ever recorded.
Under Ohio Revised Code (O.R.C.) § 1301.01 (KK), a security interest is defined as being “an interest in personal property or fixtures which secures payment or performance of an obligation.” Without question, the subject assignments taken by Rigdon and the Credit Union were security interests as such assignments were made with an intention to secure repayment of the loans made to the Debtor by these claimants. Further, under O.R.C. § 1309.02(B), the Ohio Revised Code ap*124plies to a security interest created by contract including pledge, assignment, or chattel mortgage.2 Beyond that concern, it next must be determined whether those security interests were subject to the filing requirements for perfection. O.R.C. § 1309.21 [U.C.C. 9-302] addresses when filing is required to perfect a security interest and any applicable exceptions thereto. At O.R.C. § 1302.21(A), the following is provided:
(A) A financing statement must be filed to perfect all security interests except the following:
(5) an assignment of accounts which does not alone or in conjunction with other assignments to the same assign-ee transfer a significant part of the outstanding accounts of the assignor. [U.C.C. 9-302(l)(e) ]
In order to determine whether the filing exemption allowed by the provisions of U.C.C. 9-302(l)(e) are applicable to Rig-don and the Credit Union, it becomes necessary to examine closely the underlying course of dealings respecting the subject assignments. Regarding the assignments made to Rigdon, it is observed that he received assignments during the course of an unspecified number of years. Rigdon did business with the Debtor as a factor. Rigdon’s claim of $30,039.18 was based on nine accounts assigned to him by the Debt- or, dating from October 21, 1986 through January 26, 1987. As such, the assignments made to Rigdon were neither casual nor isolated.3 He engaged in multiple transactions with the Debtor. Further, the assigned accounts of Rigdon reflect an aggregate total claim of $30,039.18, which constitutes a significant part of the Debt- or’s outstanding accounts ($62,647.30). Thusly, Rigdon cannot claim an exemption from the filing requirements of U.C.C. 9-302(1), rendering his unperfected security interest subordinate to perfected security interests.
The Credit Union stands on no better footing than does Rigdon. Its underlying course of dealing regarding the Debt- or’s assigned accounts was neither casual nor isolated. Its claim of $176,109.76 relates to assigned notes and accounts receivable assigned by the Debtor to satisfy six (6) loans made by the Credit Union. The Credit Union’s business is that of a financial institution. Further, the aggregate amount of the assignments as stated above constitutes a significant portion of the Debtor’s outstanding accounts. Its transactions with the Debtor were multiple. Therefore, the Credit Union, likewise, has failed to successfully demonstrate that it meets the filing exception which is provided under U.C.C. 9-302(l)(e), rendering its unperfected security interest subordinate to those security interests which were perfected. The burden of proving that an assignment does not transfer a significant part of the outstanding accounts or contract rights of the assignor is on the party claiming the filing exemption. Herein, neither Rigdon nor the Credit Union met that burden.
IV.
Next, the Court must determine a final prioritization in light of the above rulings. The two tax liens of the IRS totalled $96,354.24. Both liens were duly perfected and applied to all of the Debtor’s property, including the accounts receivable. Its liens were filed on December 22, 1986 and on January 12,1987, respectively. The Alexanders’ amended Answer reflects a secured claim owed them by the Debtor for six loans. They executed a security agreement with the Debtor on January 12, 1987. Their lien was duly perfected on January 14, 1987 upon the proceeds of the Debtor’s accounts receivable.
Accordingly, the United States possesses the first and best lien against the subject accounts receivable, followed by *125the Alexanders’ perfected lien interest in an amount of $14,336.17. As stipulated, any remaining monies owed to the Alexanders will be treated as a general unsecured claim. As between Rigdon and the Credit Union, their entitlement is based on which party first transacted loans with the Debt- or. See, O.R.C. § 1309.31(E)(2) [U.C.C. 9-312(5)(b) ]. The Credit Union’s loans were transacted with the Debtor between December 2, 1985 and July 21, 1986. Rig-don’s loans were made between August and December, 1986. Therefore, the Credit Union has the prior unrecorded lien and, under the first in time first in right rule, the Credit Union would have distribution priority ahead of Rigdon.
IT IS SO ORDERED.
. By stipulation, the parties have agreed that Defendant, Cash Management Resources, Inc., holds the first and best lien against the Debtor's accounts receivable. See, Order dated December 7, 1987. The Court also determined earlier that Defendants James Benner and James Pink-ston do not have a valid claim against the accounts receivable. Further, default judgments were entered against Defendants Milloom Decorative Fabrics, Inc., Maharan Fabric Corporation, and Coral of Chicago, Inc.
. O.R.C. 1309.02(A) [U.C.C. 9-102]: "Except as otherwise provided ... sections 1309.01 to 1309.50 of the Ohio Revised Code apply: (1) To any transaction, regardless of its form, which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper, or accounts; _”
. See, Official Comments to U.C.C. 9-302(l)(e). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490673/ | AMENDED AND SUBSTITUTED ORDER AND MEMORANDUM OPINION
MARY D. SCOTT, Bankruptcy Judge.
Now before the Court is a Motion to Dismiss the Trustee’s Complaint filed by the Bank of New England, N.A. (BNE). BNE contends that Trustee’s Complaint should be dismissed pursuant to Rules 4, 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure and Bankruptcy Rule 7012(b), for failure to obtain service of Complaint upon the proper party within the 120 day time limit stated in Rule 4(j), Federal Rules of Civil Procedure and Bankruptcy Rule 7004(a).
BNE also contends that the Complaint should be dismissed because the fraud allegations contained in the Trustee’s Complaint do not meet the specificity requirements of F.R.C.P. 9(b) and Bankruptcy Rule 7009.
The Court will first address the issue raised by Defendant of whether the case should be dismissed for failure to obtain service of the Complaint upon the proper party within the 120 day time limit as set out in F.R.C.P. 4(j) made applicable to adversary proceedings by Rule 7004(a) of the Rules of Bankruptcy Procedure.
F.R.C.P. 4(d)(3) and Bankruptcy Rule 7004(b)(3) state essentially identical procedures for obtaining proper service upon a domestic or foreign corporation or upon a partnership or other unincorporated association, requiring that the summons either be delivered personally or mailed to an officer, a managing or general agent, or to any other agent authorized by appointment or law to receive service of process. F.R.C.P. 4(j) further provides that a complaint should be dismissed, without prejudice, unless the party required to make service shows “good cause” why such service was not made.
The legislative history of this rule provides only one example of what constitutes “good cause,” i.e., “defendant’s evasion of service.” “Inadvertence or heedless non-service has consistently been held not to be “good cause” for failure to serve.” Philipp Bros., Inc. v. M/V Merkur Bay, 110 F.R.D. 443, 445 (D.Del.1986). The court in Ruley v. Nelson, 106 F.R.D. 514 (D.Nev.1985) stated that “Rule 4 is meant to be strictly construed [and that] plaintiff’s attorney is charged with the responsibility of obtaining prompt service of summons and complaint ... if service is not effected within 120 days after the filing of the complaint, the plaintiff has the burden of establishing “good cause” for the delay.” at 517. Because Rule 4 “provides no guidance as to what constitutes “good cause,” courts must determine on the facts of each case whether good cause has been shown.” Woods v. Partenreederei M.S. Yankee Clipper, 112 F.R.D. 115, 166 (D.Mass.1986).
The court in Baden v. Craig-Hallum, Inc., 115 F.R.D. 582, 587 (D.Minn.1987) found that good cause existed because plaintiff made attempts at service and “may have been justifiably confused” as to whom to serve as a result of defendant’s attorneys appearance at a motion hearing. In another case, the court excused the plaintiff’s failure to serve defendant in the required 120 days finding that the defendant’s actions “understandably lulled plaintiff into believing that service had been accomplished. Accordingly, I excuse plaintiff’s failure to serve [defendant] within 120 days of filing the complaint, and I authorize a new summons, which I direct plaintiff to serve on [defendant] forthwith.” Ditkof v. Owens-Illinois, Inc., 114 F.R.D. 104, 105 (E.D.Mich.1987). “The Federal Rules do not in any way suggest that a defendant may halfway appear in a case, giving plaintiff and the court the impression that he has been served, and, at the appropriate time, pull failure of service *154out of the hat like a rabbit ...” Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 281 (5th Cir.1987). The court in Broadcast Music, went on to hold that defendants “through the actions of their counsel, voluntarily appeared in [the] case and waived the defense of insufficiency or failure of process.” at 281. Other courts have similarly held that authority of an attorney to act as an agent for service of process may “be implied from surrounding circumstances ...” Olympus Corp. v. Dealer Sales & Service, Inc., 107 F.R.D. 300, 305 (E.D.N.Y.1985). Also, see, United States v. Bosurgi, 343 F.Supp. 815 (S.D.N.Y.1972).
Meeting the burden of showing the existence of “good cause” is difficult. Mere inadvertence of plaintiffs counsel does not meet the test of “good cause.” Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985). It has also been determined that “a showing that defendants have not been prejudiced by a delay in service does not appear to aid plaintiff to avoid a timeliness bar under Rule 4(j).” Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 661 (D.Md.1986). “Even receipt of actual notice does not remedy ... technically defective service ...” In re Valeu, 53 B.R. 549, 553 (Bkrptcy.D.N.D.1985).
This Court recognizes that any meaningful waiver must be knowingly made and that “[generally, a motion to extend time to respond gives no hint that the answer will waive personal jurisdiction defects, and is probably best viewed as a holding maneuver while counsel consider how to proceed.” Benny v. Pipes, 799 F.2d 489, 493 (9th Cir.1986).
However, this Court believes it has discretion with regard to deciding whether to dismiss this action on the basis of improper service. “Both counsel have been diligent in citing cases supporting their positions ... Clearly, whatever I decide can be supported by case law. The trick is to do justice.” In re Furimsky, 40 B.R. 350, 354 (Bkrptcy.D.Ariz.1984).
The Court believes justice can best be done by denying the defendant’s motion to dismiss for improper service. The Court finds that “good cause” existed for the failure to serve the proper party within the time limits set out in the rules. The Court finds, under all the circumstances surrounding the filing of this action and resulting Motions for extensions of time to file preliminary motions it was reasonable for Plaintiff to believe that service had been accomplished. The Court further finds that justice would not be served by granting the Motion to Dismiss after actions of the Defendant reasonably gave the Plaintiff the impression that service had been made. As noted earlier, “dismissal [is not] invariably required where service is ineffective. Under such circumstances, the court has discretion to either dismiss the action, or quash service but retain the case.” Haley v. Simmons, 529 F.2d 78, 79 (8th Cir.1976).
Therefore, the Court, finding that the Trustee’s service was not proper service upon the bank, but that good cause existed for the failure to timely correct the improper service, denies the Defendant’s Motion to Dismiss for insufficiency of process and directs that the service upon BNE be quashed. Should the Trustee fail to properly serve BNE within ten (10) days of the entry of this Order, however, the Defendant may renew its Motion to Dismiss.
The Court has also considered the Defendant’s alternative Motion to Dismiss this action for failure to plead circumstances constituting fraud and fraudulent conveyance with particularity and also denies that Motion for the following reasons.
BNE contends that the Trustee’s Complaint is “fatally deficient” because the fraud allegations contained therein are mere vague and conclusory statements which do not meet the pleading specificity requirements of F.R.C.P. 9(b) and Bankruptcy Rule 7009, and therefore the Complaint fails to state a claim upon which relief can be granted under F.R.C.P. 12(b)(6) and Bankruptcy Rule 7012(b).
The Trustee’s original Complaint was filed August 7,1987. Trustee also filed an Amended Complaint, November 24, 1987 before BNE filed its Motion to Dismiss. *155BNE’s Motion to Dismiss addresses those allegations raised in Trustee’s Amended Complaint which contains the following allegations:
GENERAL ALLEGATIONS
1. Charles Darwin Davidson is the duly appointed acting and qualified Bankruptcy Trustee in this Chapter 11 proceeding.
2. Defendant is a national banking association based in Boston, Massachusetts.
3. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 1334 and 157 and 11 U.S.C. §§ 544 and 548. This is a core proceeding.
COUNT ONE
1.Within one year before the filing of the debtor’s pétition herein, the debtor voluntarily transferred $35,-782.71 to Defendant and received less than a reasonably equivalent value in exchange for such transfer. The transfer by the Defendant, upon the information and belief, was in payment of a debt of an affiliated company, Daria Enterprises, Inc. Upon information and belief, at the time of the transfer the debtor was insolvent, or became insolvent as a result of such transfer and the Trustee may avoid such transfer pursuant to 11 U.S.C. § 548.
COUNT TWO
1. Plaintiff restates and realleges each of the forgoing paragraphs.
2. The transfer of $35,782.71 and a transfer from the debtor of $300,-000.00 to Defendant are avoidable pursuant to 11 U.S.C. § 544(b) as transfers avoidable under applicable state law.
3. Upon information and belief, debt- or transferred the total of $335,782.71 to Defendant without consideration deemed good at law. Upon information and belief, the payments to Defendants were payments of debts of an affiliated company of the debtor, Daria Enterprises, Inc. As such, the conveyances were not for consideration deemed good at law and should therefore be void as against all creditors and purchasers pursuant to Ark. Stat.Ann 68-1304. As such, the transfers are avoidable pursuant to 11 U.S. C. § 544(b).
The test most often applied to determine whether a complaint warrants dismissal for failure to state a claim upon which relief could be granted originated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957):
[I]n appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
All that is required by Federal Rule of Civil Procedure 8(a), made applicable to adversary proceedings in bankruptcy cases by Rule 7008, is “a short and plain statement of the claim showing that the pleader is entitled to relief.” Additionally, pleadings should be construed to do substantial justice. Federal Rule of Civil Procedure 8(f). Specificity sufficient to supply fair notice of the nature of the action will withstand a motion under Rule 12(b)(6). Hanson v. Hunt Oil Co., 398 F.2d 578, 581 (9th Cir.1968). Accordingly, a complaint should not be dismissed merely because plaintiff’s allegations do not support the particular legal theory he advances, for a court is under the duty to examine the complaint to determine if the allegations provide for relief on any possible theory. 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1219 at pp. 120-121 (1969). Nor should a complaint be dismissed that does not state with precision all elements that give rise to a legal basis for recovery. Sparks v. England, 113 F.2d 579, 581-82 (8th Cir.1940). Finally, a complaint should not be dismissed merely because the court doubts that a plaintiff will prevail in the *156action. Thomason v. Hospital T.V. Rentals, 272 F.2d 263, 266 (8th Cir.1959). That determination is properly made on the basis of proof and not merely on the pleadings.
The question, therefore, is whether in the light most favorable to the Plaintiff, the Complaint states any valid claim for relief. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969); Leimer v. State Mutual Life Assurance, 108 F.2d 302, 305-306 (8th Cir.1940). Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. TV Signal Co. of Aberdeen v. American Tel. & Tel. Co., 462 F.2d 1256, 1258 (8th Cir.1972).
As indicated earlier, F.R.C.P. 8, provides that allegations in a complaint should be made in short, plain and concise statement which will provide a party with notice of the claims asserted. In re Hart, 461 F.Supp. 328 (E.D.Ark.1970). F.R.C.P. 9 requires that any fraud allegation must be pled with particularity. In re Kerr, 58 B.R. 171 (Bkrptcy.E.D.Ark.1985). Reading Rule 9 in conjunction with Rule 8, Plaintiffs Complaint must provide a short and simple description of the factual basis to support an allegation of fraud. In re Tanner’s Transfer and Storage of Virginia, 30 B.R. 22 (Bkrptcy.E.D.Va.1983).
The Court is also mindful of the more liberal approach to fraud pleading in bankruptcy cases especially in those instances where a trustee is bringing the action. Schlick v. Penn Dixie Cement Corp., 507 F.2d 374, 379 (2nd Cir.1974). This liberality is justified because the Trustee as a third party outsider to the fraudulent transaction, must plead fraud on second hand knowledge for the benefit of the estate and all its creditors. In re O.P.M. Leasing Services, Inc., 32 B.R. 199, 203 (Bkrptcy.S.D.N.Y.1983). Thus, bankruptcy courts do not generally insist on the stringent standards required in a non-bankruptcy civil action. Decker v. Massey Ferguson, Ltd., 681 F.2d 111 (2nd Cir.1982). See, also, In re McGuff, 3 B.R. 66 (Bkrptcy.S.D.Ca.1980) and In re Brown, 444 F.2d 49, 50 (8th Cir.1971).
Applying the above rules to the facts in this case, dismissal would be warranted only if the Plaintiff has not alleged any facts sufficient to demonstrate that relief can be granted by the Court pursuant to 11 U.S.C. § 548 and/or 11 U.S.C. § 544.
Section 548 of the Bankruptcy Code requires that the fraudulent conveyance be made within one year of the bankruptcy filing, that the transaction be entered into without fair consideration to the debtor, and that the debtor became insolvent as a result of the transaction. The Trustee’s assertions in his Complaint do state a claim and thus should not be dismissed pursuant to Rule 12(b)(6). The fraudulent conveyance by the debtor may represent a constructive fraud upon the debtor’s innocent creditors because the debtor does not receive in exchange a consideration reasonably equivalent in value to the obligations incurred by the debtor. Such a transaction may unfairly deplete the debtor’s estate. The Code empowers the Trustee to set aside such a fraudulent transfer and recover for the benefit of the creditors, the value of the property that has been removed. Rubin v. Manufacturers Hanover Trust Co., 661 F.2d 979, 989 (2nd Cir.1981). The Complaint alleges that within the one year period prior to filing the bankruptcy petition the debtor transferred $35,782.71 to the Defendant, received less then a reasonably equivalent value in exchange for such transfer that the debtor was insolvent at the time or became insolvent as a result of the transfer.
Section 544(b) of the Bankruptcy Code permits the Trustee to exercise whatever rights of avoidance any creditor holding an unsecured allowable claim could have exercised on its own behalf under applicable state or federal law. 4 Collier on Bankruptcy, If 544.01 (15th Ed.1982). In the Complaint filed by the Trustee, the Court finds that he states a set of facts outlining a transfer of funds by the debtor to certain of the defendants which, pursuant to § 544(b), may be avoidable as a fraudulent transfer under applicable state law. The *157Trustee specifically cites the state law in Arkansas.
The Court, after reviewing all pleadings filed by the parties and after applying the myriad of rules and case authority cited above, finds that dismissal of the Complaint is not warranted.
Accordingly, it is hereby
ORDERED that the Defendant’s Motion to Dismiss be and hereby is denied. It is further
ORDERED that the Defendant shall answer the Complaint within twenty (20) days from the date of service.
THIS AMENDED AND SUBSTITUTED ORDER AND MEMORANDUM OPINION SUPERCEDES THE JUDGMENT AND MEMORANDUM OPINION ENTERED APRIL 22, 1988.
IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490674/ | MEMORANDUM OPINION
MARY D. SCOTT, Bankruptcy Judge.
Now before the Court is a Complaint for Turnover of estate assets filed pursuant to 11 U.S.C. § 542 and/or a Complaint to Avoid a Preferential Payment filed pursuant to 11 U.S.C. § 547. The alternative actions were filed by the Trustee in this Chapter 7 case against the State of Arkan*158sas, Department of Finance and Administration (“State”) and the United States Treasury Department, Internal Revenue Division (“IRS”). The IRS has previously been dismissed as a Defendant by prior Order of the Court. The Complaints against the State of Arkansas are now before the Court.
This Court has jurisdiction over the case pursuant to 28 U.S.C. § 157. Moreover, the Court finds that it is a “core proceeding” within the meaning of 28 U.S.C. § 157(b)(1) as exemplified in 28 U.S.C. §§ 157(b)(2)(E) and (F).
The parties agreed that the matter would be submitted on stipulations and briefs. The parties submitted the following joint stipulations:
1. On September 27, 1985 the debtor’s Chapter 7 bankruptcy petition was filed in this Court.
2. On or about September 14, 1985 the debtor submitted a draft to the State of Arkansas, Department of Finance and Administration in the amount of $671.00.
3. The draft described in paragraph two was accompanied by a voucher titled “Declaration of Estimated Tax” signed by the debtor reflecting that the payment of $671.00 was for estimated state income taxes for the fiscal year ending 12-31-85.
4. The draft was deposited by the State of Arkansas, Department of Finance and Administration as payment by the debtor of estimated income taxes due for the year 1985.
5. An Arkansas Individual Income Tax Return for 1985 was filed by the debtor with the Defendant which reflects an income tax refund for $566.00.
6. The Trustee, Ben T. Barry, is in possession of the debtor’s portion of the Arkansas Income Tax refund for 1985.
7. A true and correct photocopy of the draft and Declaration of Estimated Tax voucher and Arkansas Individual Income Tax Return for 1985 mentioned above are attached hereto and made a part hereof.
The Trustee contends that the debtor’s payment of his annual estimated tax payment of $671.00 to the State of Arkansas approximately two weeks before he filed his bankruptcy petition should be recovered from the State of Arkansas either as a preferential payment or as property of the debtor estate.
11 U.S.C. § 547(b) provides as follows: Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and [emphasis added]
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
The State of Arkansas has pointed out correctly that each of these conditions must be met in order for the transfer to constitute a preference which can be avoided by the Trustee under 11 U.S.C. § 547. Brown v. First National Bank of Little Rock, Arkansas, 748 F.2d 490 (8th Cir.1984). The State concentrates its argument on the fact that the second condition has not been met, namely, that the transfer was for or on account of an antecedent debt. The State also argues that even if it was, the estimated tax payment is excepted from avoidance *159because the payment was made in the debt- or’s ordinary course of business. 11 U.S.C. § 547(c)(2).
The Court partially agrees with the State, that the estimated tax payment cannot be avoided under 11 U.S.C. § 547, but not entirely for the reasons advanced by the State. The Court does not believe it is necessary to make a finding with regard to the parties’ dispute over whether the second condition of 11 U.S.C. § 547 has been met for there is a more basic omission which supports the Court’s finding that the Trustee has not met his burden of proof. The Trustee does not address the fifth condition, namely, that the estimated tax payment enabled the State to receive more than it would receive in a straight liquidation. This case is, in fact, a Chapter 7 straight liquidation but there is no argument or evidence presented with regard to whether the fifth condition has been met; that this payment is more than the State would ultimately receive in this case. The Court can only conclude the Trustee has failed to established all the elements of proof required to prevail in a preference action.
Even if the Trustee had presented argument and evidence with regard to the fifth condition, the Court agrees with the State’s argument and finds that the payment would be excepted under subsection (c)(2) of § 547 of the Code. The Court finds that estimated tax payments, if timely made by taxpayers, are within the ordinary course of the financial affairs of taxpayers who elect this method of prepaying their income tax liability over the monthly withholding method. Therefore the payment, since it is uncontroverted that it was timely made, is not a preference recoverable pursuant to 11 U.S.C. § 547.
The Trustee argues in the alternative that if the payment is not a preference then the $671.00 payment represents property of the estate which is subject to turnover pursuant to 11 U.S.C. § 542(a).
11 U.S.C. § 542(a) requires anyone holding property of the estate on the date of filing of the petition, to deliver it to the trustee. The Court finds from the parties’ stipulations and argument that on the day the bankruptcy petition was filed, September 27, 1987, the State of Arkansas may have been holding property of the estate. Unfortunately, when a petition is filed midyear, unless there is a fairly elaborate accounting which allocates tax liability to income earned on either side of a mid-year (filing which is lacking in this case), it is impossible for the Court to reach a conclusive finding that the State, holding an estimated tax payment for the entire year, should turn over a portion of this payment because the year’s entire tax liability has not yet been incurred. For that matter the same problem could arise for any taxpayer who files a bankruptcy petition. Most taxpayers pay over to the taxing authorities estimated taxes for the year, either in the form of withholding by an employer or directly (as in this case). The methods are different, but the result is the same; taxpayers turn over funds to the taxing authorities during the tax year in question and “settle up” when the yearly tax return is due April 15. Of course, the simple way to handle the dilemma, when the figures are not known for mid-year pro-rata assignment of tax liability, is to prepare the annual tax return which provides the final calculation. That was, in fact, done in this case and the Trustee has recovered a tax refund for overpayment of taxes almost equal to the estimated tax payment he seeks to recover. That is all the taxpayer, and the Trustee who steps into the debtor’s/taxpayer’s shoes, can expect.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the Trustee’s prayer for relief seeking either avoidance of a preferential payment or in the alternative for turnover of property of the estate from the State of Arkansas be and hereby is denied.
IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490675/ | ORDER
JOHN L. PETERSON, Bankruptcy Judge.
In this Chapter 7 case, the Debtor’s father Reece Silve, Sr. has moved the Court for an order directing the Trustee to pay over to Silve, Sr. the sum of $23,000.00 for cash loans made by the father to his son for farm expenses for the 1987 crop. The Trustee and two unsecured creditors, as well as a secured creditor, Bank of Sheridan, resist the motion on grounds the perfection of the security instrument was a preference, which leaves Silve, Sr. as an unsecured creditor. The facts are not in dispute.
On May 8, 1987, the Debtor executed a promissory note for $65,000.00 to his father, together with a security agreement in all 1987 crops. The loan was for the purpose of the Debtor to pay his share of the farm expenses for the 1987 crop year. A financing statement was also executed on May 8, 1987, but was not perfected by filing with the Montana Secretary of State until August 20, 1987. The Debtors’ petition in bankruptcy was filed on October 7, 1987, within 90 days of the perfection of the security agreement. It is unquestioned that from May 6, 1987, through December 9, 1987, Silve, Sr., advanced $65,457.86 to his son and the Trustee presently has in her possession $34,000.00 derived from the sale of the 1987 crop. Silve, Sr. concedes his security interest in the crop proceeds was not perfected under Montana law, § 30-9-302, Mont.Code Ann., until August 20, 1987. Silver, Sr. contends under § 547(c)(2), payments totaling $23,000.00 were made within 45 days of perfection in the ordinary course of business. Thus, Silve, Sr., tacitly admits that a preference under § 547(b) in fact occurred, but that his advances from July 6, 1987, are excepted under § 547(c)(2). The Trustee in her skeleton response without brief claims the security interest in the crop proceeds were not perfected under 547(c)(3), which requires perfection within 10 days of the execution of the security agreement.
The filing of the U.C.C.-l financing statement on August 20, 1987, created a preference. In re Wind Power Systems, Inc., 841 F.2d 288, 290-293 (9th Cir.1987), holds:
“Among the powers of the trustee in bankruptcy is the power to avoid, and to reclaim for the benefit of the debtor’s estate, most (1) transfers (2) of an interest in property of the debtor (3) to or for the benefit of a creditor (4) on account of an antecedent debt (5) made within ninety days of the filing of the petition in bankruptcy (6) made while the debtor was insolvent — presumptively, within ninety days of the filing of the petition in bankruptcy. 11 U.S.C. § 547(b). A transfer is preferential only if it satisfies all six elements. Miller v. Wells Fargo Bank, 406 F.Supp. 452, 463 (S.D.N.Y.1975), aff’d, 540 F.2d 548 (2d Cir.1976). Section 547 aims to prevent fraudulent transfers by the debtor as bankruptcy looms imminent, and to provide an orderly collective action and distribution among creditors instead of a race to grab the debtor’s assets. In a Chapter 11 proceeding, this also gives the trustee a chance to reorganize the debtor’s business affairs and to retain what assets the debtor may need to run its business efficiently.
The Trustee has the burden of proving the avoidability of such a transfer. 11 U.S.C. § 547(g).
* * * * * *
Under Section 544, the Trustee stands in the shoes of a hypothetical lien creditor whose lien arose on the day the bank*232ruptcy petition was filed. With this ‘strong-arm’ power, she may avoid and recapture for the debtor’s estate any junior claim. Thus, the security interest of a creditor who has not perfected is defeated by the Trustee’s section 544 power and relegated to the status of an unsecured debt. A secured creditor who has timely perfected retains its interest in the bankrupt’s estate, and may look first to any collateral in which its security interest has priority.
Section 544 preserves within the bankruptcy proceeding the equities among creditors that existed outside bankruptcy. It freezes the relative positions of secured and unsecured creditors at the time of the filing, reducing the incentive to file a strategic bankruptcy petition, and awarding the diligent creditor. See generally T. Jackson, Logic and Limits of Bankruptcy, 68-88. The Bankruptcy Code looks to state law to determine the effect and validity of such liens. McKenzie v. Irving Trust, 323 U.S. 365, 370, 65 S.Ct. 405, 408, 89 L.Ed. 305 (1945).”
A preference does not occur when there is contemporaneous exchange for new value as provided in § 547(c)(1). In In re Northwest Erection, Inc., 56 B.R. 612, 1 Mont.B.R. 305, 308 (Bankr.Mont.1986), this Court, following In re Arnett, 731 F.2d 358 (6th Cir.1984), Gower, Trustee, v. Ford Motor Credit Company, 734 F.2d 604 (11th Cir.1984), and Matter of Vance, 721 F.2d 259 (9th Cir.1983), held:
“I am bound by the law of this circuit which clearly holds that the perfection of the security interest must be made within 10 days [of the execution of the security agreement] in order to rely on the contemporaneous exchange exception to the preference rule.”
The argument of Silve, Sr. that he is entitled to all payments within 45 days is outmoded because Section 547(c)(2) was amended in 1984 to eliminate the 45 day rule contained in the 1978 Code. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353. Second, the ordinary course of business exception applies only when the Trustee seeks to recover payments made by the debtor within 90 days on transactions which are due and payable in the ordinary course of business. The language of § 547(c)(2) explicitly states that the “transfer was in payment of a debt incurred by the debtor * * In the case sub judice, the payments were made by Silve, Sr. as part of his loan to his son. There was no payment in the ordinary course of business from the Debtors to Silve, Sr. as transferee. 4 Collier on Bankruptcy, If 547.10, pp. 547-22 to 24 (15th Ed.). The exception does not apply to the facts in this case.
I conclude therefore that the funds held by the Trustee from the sale of the 1987 crops are not subject to any valid security instrument of Reece Silve, Sr.1
IT IS ORDERED the motion of Reece Silve, Sr. for release of funds is denied.
. The Bank of Sheridan claims it has a valid security interest in the funds. That creditor was granted relief from the stay to take other collateral which value exceeded its debt. After the order, the Bank and the Debtors attempted to agree on allowing the Debtors to continue to use the collateral. This Court has voided the order releasing the stay and directed the Trustee to sell the collateral and satisfy the Bank's obligation. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490678/ | MEMORANDUM
DAVID A. SCHOLL, Bankruptcy Judge.
The instant adversary proceeding is, in substance, a Proof of Claim filed by the *391Plaintiff, the law firm of DECHERT PRICE & RHOADS (hereinafter referred to as “Dechert”), to which the Debtor, DIRECT SATELLITE COMMUNICATIONS, INC. (hereinafter referred to as “the Debt- or”), has filed a counterclaim. It is, therefore, a “core proceeding” such as is described by 28 U.S.C. § 157(b)(2)(C).
Dechert’s Proof of Claim was submitted for the relatively modest sum of $36,900.00 for legal services rendered. The Debtor’s counterclaim demanded damages in excess of $1 million based upon intentional or negligent malpractice by a former Dechert partner, Louis N. Marks, Esquire (hereinafter referred to as “Marks”), as a result of the failure of Marks to make the Debt- or’s other Board members aware of alleged irregularities by the former President of the Debtor, Errett L. Carpenter (hereinafter referred to as “Carpenter”), in certain stock purchase transactions between Carpenter and the Debtor.
Dechert sought to dismiss the Complaint on three grounds, only one of which remains viable: (1) Improper service of the initial pleading in this proceeding, which was withdrawn at argument on the motion on February 24, 1988; (2) Pendency of a similar state court action, commenced by praecipe for a writ of summons in state court in March, 1987, naming Dechert, Marks, and a present Dechert partner, Richard S. Seltzer, Esquire, as Defendants. The presence of this action was asserted as a basis to either dismiss this action or to stay it pending the state court outcome. Since the state court action had not proceeded after this initial filing, we could perceive no basis to dismiss this action or stay this proceeding during its pendency, and we therefore denied any motion on this ground during the course of the argument on February 24, 1988; and (3) The failure of the Debtor to join Carpenter, alleged to be a necessary and indispensable party, to this action. This is the only remaining viable basis for dismissal, and we herein reject this ground as well.
This third ground for dismissal is based on Bankruptcy Rule (hereinafter “B. Rule”) 7019 and Federal Rule of Civil Procedure (hereinafter “F.R.Civ.P.”) 19(a), which reads as follows:
Rule 19. Joinder of Persons Needed for Just Adjudication
(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
We believe that F.R.Civ.P. 19(a) can best be conceptualized as articulating three grounds for dismissal, from the vantage point of the three respective potentially interested parties, as follows: (1) 19(a)(1)— the party asserting the cause of action, i.e., the Debtor here; (2) 19(a)(2)(i) — the absent party, i.e., Carpenter; and (3) 19(a)(2)(ii)— the party opposing the action, i.e., Dechert. We also believe that the proper initial response to a meritorious F.R.Civ.P. 19 motion is to direct the party asserting the cause of action to add the omitted party in an amended pleading rather than dismissing the action. See Field v. Volkswagenwerk, AG, 626 F.2d 293, 300 (3d Cir.1980); and In re Dinkins, 79 B.R. 253, 256-57 (Bankr.E.D.Pa.1987).
Since Dechert is the party making the motion, we would normally be most *392sensitive to its objections based on F.R.Civ. P. 19(a)(2)(ii), since these would be contentions that it will be harmed by the omission of the absent party. Compare Dinkins, supra, 79 B.R. at 257-58. However, here, at argument, Dechert properly conceded that the absence of Carpenter does not give rise to Dechert’s submission to potential duplicative or multiple recoveries. Therefore, the basis which is generally the most persuasive in a defendant’s Rule 19 motion, i.e., its own prejudice from the plaintiff’s failure to join the absent party, is not present here.
Dechert is thus left with convincing us that the Debtor has, apparently irrationally, failed to include a party whose omission will deny the Debtor itself complete relief or establishing that Carpenter’s interests are unfairly prejudiced by his omission.
In considering whether the requirement of F.R.Civ.P. 19(a)(1) is met, we note that this section of the Rule refers only to the completeness of the relief “between the persons already parties, and not as between a party and the absent party whose joinder is sought.” 3A J. MOORE, FEDERAL PRACTICE, 1119.07 — 1[1], at 19-96 (2d ed. 1987). See also Field, supra, 626 F.2d at 301. Further, the application of this section of the Rule is limited to a situation where “ ‘the court would be obliged to grant “hollow” or partial rather than complete relief to the parties before the court.’ ” 3A J. MOORE, supra, at 19-93 (quoting the Advisory Committee Note to F.R.Civ.P. 19), or where, in the absence of the allegedly indispensable party, “the court would be unable to fashion an effective decree.” Field, supra, 626 F.2d at 301. It has expressly not been held applicable in a situation where the party whom the movant contends should be joined is a joint tortfeasor with the party or parties already named. See, e.g., Nottingham v. General American Communications Corp., 811 F.2d 873, 880 (5th Cir.1987); Burkett v. Western Maryland Ry., 595 F.Supp. 1058, 1062 (M.D.Pa.1984); and Micheel v. Haralson, 586 F.Supp. 169, 171 (E.D.Pa.1983).
We do not believe that the absence of Carpenter renders us unable to fashion an effective remedy against Dechert, or would render any award of relief against Dechert “hollow.” The Debtor’s claims against Dechert are based solely on Dechert’s alleged malpractice, to which Carpenter was not a direct participant. Certainly, Dechert is situated as to provide substantial relief to the Debtor. Therefore, we decline Dec-hert’s contention that F.R.Civ.P. 19(a)(1) requires Carpenter’s joinder.
The closest question is whether F.R.Civ. P. 19(a)(2)(i) requires Carpenter’s joinder because Carpenter’s absence will impair or impede his ability to protect his interests later if the proceeding results in a judgment adverse to Dechert which also implicates him. This was the most persuasive basis for the holding of the court in Whyham v. Piper Aircraft Corp., 96 F.R.D. 557, 561 (M.D.Pa.1982), that certain parties who were “active participants” in the issues relating to the claims of liability were found indispensable.
Ultimately, however, we feel that the Debtor’s claims against Dechert, based upon malpractice, are sufficiently distinct from its potential claims of malfeasance against Carpenter that it should not be compelled to add him to this action. Carpenter would not be bound by res judicata, since he is not a party. See, e.g., United States v. Athlone Industries, Inc., 746 F.2d 977, 983 (3d Cir.1984); and In re Laubach, 77 B.R. 483, 485 (Bankr.E.D.Pa.1987). Since the Debtor’s claims against Dechert appear to be distinct from those which could be raised by the Debtor against Carpenter, the issues appear sufficiently distinct to eliminate the application of collateral estoppel. See, e.g., Haize v. Hanover Insurance Co., 536 F.2d 576, 579 (3d Cir.1987); and In re Gaebler, Blackman v. Gaebler, 83 B.R. 264, 268-69 (Bankr.E.D.Pa.1988). A plaintiff generally should not be forced to proceed upon certain claims unless there are very strong considerations to the contrary. The Debtor chose to proceed upon Dechert’s alleged malpractice rather than the particular actions of Carpenter which were detrimental to the Debtor’s interests. It should be permitted to *393proceed upon its claims as it wishes, unless it is clear that to do otherwise would violate the rules of court. Compare Kingstone v. Liberman, 99 F.R.D. 329, 331 (W.D.Pa.1983).
We do recognize that it is not necessary that the absent person be bound by the judgment in the action from which he is omitted in order to invoke F.R.Civ.P. 19(a)(2)(i). 3A J. MOORE, supra, ¶ 19.07[2.-1], at 19-103. However, this is obviously an important consideration. We must further consider whether the absent party’s interests may be represented by the present parties, or whether the absent party may protect his rights by exercising an opportunity to intervene in the action. See 3A J. MOORE, supra, at 19-104 to 19-108. If his interests cannot be protected, then we should invoke F.R.Civ.P. 19(a)(2)(i).
We infer that Dechert’s defense will either be that there was no wrongdoing by Carpenter and, consequently, by it either, or that Carpenter was the party primarily liable for any wrongdoings. If the former defense is presented, we can anticipate that Dechert will vigorously protect Carpenter’s interest as well as its own. At no point in its argument or brief did Dechert suggest that Carpenter would be prejudiced by any efforts on its part to defend his actions. On the other hand, if Dechert contends that Carpenter is primarily liable and it only secondarily liable, we trust that Dechert will seek to add Carpenter as a third-party defendant pursuant to B.Rule 7014 and F.R.Civ.P. 14(b), as its counsel indicated at argument that he would possibly be prepared to do, with no suggestion of any impediment to its doing so. It is, moreover, within Carpenter’s power to seek to intervene pursuant to B.Rule 7024 and F.R. Civ.P. 24. See GTE Sylvania, Inc. v. Consumer Product Safety Comm’n, 598 F.2d 790, 798-99 (3d Cir.1979), aff'd, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). If Carpenter is added by either means, he will of course be present and the motion will be moot.
We therefore conclude that, at this juncture, this proceeding may go forward without the joinder of Carpenter. Accordingly, we will enter an Order denying Dechert’s motion to dismiss.
We also observe that this matter was listed for a trial on the merits on March 3, 1988, but that the parties joined in requesting a continuance to complete discovery. Accordingly, we shall include a Pre-trial Order setting forth a firm schedule for disposition of this proceeding as part of that Order. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490679/ | DECISION GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND REQUIRING FILING OR PROVIDING FOR DISMISSAL OF ADVERSARY PROCEEDING
THOMAS F. WALDRON, Bankruptcy Judge.
This proceeding which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order Of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(K) — proceedings to determine the validity, extent, or priority of liens. Matter of Commercial Heat Treating of Dayton, Inc., 80 B.R. 880, 888 (Bankr.S.D.Ohio 1987). A brief review of the history of this case will be helpful in explaining the resolution of Motions For Summary Judgment filed by the defendant, Rita B. Eckert and the defendant, Bruce A. Burén, (Doc. 38 and 39) and Plaintiffs’ Memorandum Contra Motions For Summary Judgment (Doc. 43).
FACTS
On January 2,1981, Faith Elizabeth Fitzgerald, Fitzgerald, who is not a named party in this adversary, but is the sister-in-law of the debtor/defendant, Rita B. Ec-kert, executed a promissory installment note and security agreement to the plaintiffs (Exhibits A and B of Doc. 1). The amount of the note was $24,000.00 at 9.75% interest and the documents executed by the parties provided for the plaintiffs to retain a security interest in the personal property to be used by Fitzgerald in her business. A financing statement was filed January 2, 1981, with the Montgomery County Recorder’s Office (Exhibit C of Doc. 1) and was thereafter continued on June 21, 1985, at the Montgomery County Recorder’s Office (Exhibit D of Doc. 1).
On July 8, 1985, Fitzgerald conveyed all of the property which was the subject of the plaintiffs’ security agreement to the defendants, Rita B. Eckert and Jerry A. Eckert, who thereafter used it in their business, Oak Creek Florist (Doc. 1). On August 11, 1986, Jerry and Rita Eckert doing business as Oak Creek Florist filed a Chapter 11 bankruptcy case, which was subsequently converted to a Chapter 7 bankruptcy case on August 18, 1987. During the pendency of the Chapter 11 case, from May 12 to May 16, 1987, the defendant, Rita B. Eckert, as debtor in possession, conducted a public sale of all the property in which the plaintiffs assert a security interest. The proceeds of the sale, approximately $13,500.00, were applied by the debt- or/defendant to the payment of debts, primarily obligations due various tax authorities.
The evidence establishes that the Recorder’s office in Montgomery County was the only location at which the plaintiffs recorded the financing statement and any subsequent continuance statement. There is no record at the Ohio Secretary of State’s Office of any filing of a financing statement or any other documents concerning the property in which the plaintiffs assert a security interest. (Doc. 37)
The plaintiffs’ complaint (Doc. 1) alleges that the plaintiffs are secured creditors who have a perfected security interest in the property originally sold to Fitzgerald, who thereafter conveyed the property to the debtors, Rita B. Eckert and her spouse, Jerry Eckert. The complaint further alleges that when the Eckerts, as debtors in possession, sold this property, the proceeds of the property remained subject to the plaintiffs’ perfected security agreement. The complaint concludes that to the extent that any of the named defendants received any of the proceeds of the sale, these pro*533ceeds must be returned to the plaintiffs. (The complaint requests other relief that the court does not need to address.)
In addition to the answers filed by the various defendants (Docs. 10,11,12,13, 14, 15, and 33), on March 24, 1988, defendant Rita B. Eckert filed a Motion For Summary Judgment pursuant to Bankr.R. 7056 (F.R.C.P. 56) seeking to have the complaint dismissed as to her (Doc. 38); and, on March 28, 1988, defendant Bruce A. Burén filed a Motion For Summary Judgment pursuant to Bankr.R. 7056 (F.R.C.P. 56) seeking to have the action dismissed as to him (Doc. 39). On April 4, 1988, the plaintiffs filed a Memorandum Contra Motions For Summary Judgment (Doc. 43).
ARGUMENTS OF THE PARTIES
All parties recognize that, in this proceeding, the resolution of the issues raised in the plaintiffs’ complaint and the defendants’ Motions For Summary Judgment is partially dependent upon Ohio Revised Code § 1309.38 which mandates that the required locations for filing documents evidencing a security interest in a commercial transaction in order to perfect that security interest are the office of the county recorder where the debtor has a place of business and the office of the Secretary of State. ORC § 1309.38(A)(4).
The defendants’ Motions For Summary Judgment assert that by failing to file in the Secretary of State’s Office, the plaintiffs’ security interest is not perfected in the property or its proceeds against a subsequent perfected lien creditor, which in this case, would be the debtors in possession as parties having the rights of a trustee.
The plaintiffs assert that ORC § 1309.38(A)(4) recognizes the effectiveness of a filing made in an improper location, or in not all the required locations against any person who has knowledge of the contents of the financing statement. The plaintiffs conclude that a material issue of fact exists as to whether or not the defendant-debtors had knowledge of the existence of the financing statement at the time that the sale took place.
LAW
Assuming that an issue of fact exists as to whether or not the defendant-debtors had knowledge of the existence of the financing statement, such an issue of fact is not a “genuine issue of material fact” that would prevent granting the defendants’ Motions For Summary Judgment.
As this court previously noted in connection with ruling on motions for summary judgment,
The cases interpreting the various provisions of Rule 56 have produced an evolving body of law that has continued to emphasize standards which require both a moving and a nonmoving party to give careful attention to the presentation and defense of a motion for summary judgment. The two recent decisions from the United States Supreme Court reflect the careful attention required by all parties involved in a motion for summary judgment.
In Anderson, the Court held that “in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden,” Id., 477 U.S. at 254, 106 S.Ct. at 2513, ie., “whether a jury [fact finder] could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the law or that he did not.” Id. (emphasis in original).
In Celotex, the Court established the standard under which a trial court should rule on a motion for summary judgment:
Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing suffi*534cient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. “[T]h[e] standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
This statement from the Court resolved the question of whether the party who does not bear the ultimate burden of proof at the trial of an issue must, as the movant in a motion for summary judgment, through the presentation of specific evidence negate the nonmovant’s case in order to establish that there is no “genuine issue of material fact,” thereby entitling the movant to summary judgment. A moving party in a motion for summary judgment meets its burden by affirmatively demonstrating from the record that is before the court that there is no evidence to support an essential element of the nonmoving party’s case. While the commonality in this aspect of Rule 56 and Rule 12(b)(6) was recognized in the text of Rule 12,1 the ease of entry to the arena of litigation provided by notice pleading was never intended to be a substitute for properly researched, factually supported causes of action. It is a recognized function of Rule 56 to terminate litigation unable to sustain the weight of its own assertions. The Supreme Court’s decision in Celotex does not place a burden on the nonmoving party that did not exist prior to the decision, nor does it increase that party’s burden in connection with a response to the motion for summary judgment. Matter of Warner, 65 B.R. 512, 516-17 (Bankr.S.D.Ohio 1986)
The Bankruptcy Code provides in 11 U.S. C. § 544(a):
(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and power of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by—
(1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists:
(2) a creditor that extends credit to the debtor at the time of the commencement of the case, and obtains, at such time and with respect to such credit, an execution against the debtor that is returned unsatisfied at such time, whether or not such a creditor exists; or
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At the time the sale of the property was held, the debtors were operating as debtors in possession. Section 1107(a) of the Bankruptcy Code provides:
Subject to any limitations on a trustee serving in a case under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, and shall perform all the functions and duties, except the duties specified in sections 1106(a)(2), *535(3), and (4) of this title, of a trustee serving in a case under this chapter.
The plaintiffs’ reliance on the exculpatory provisions of ORC 1309.38(A)(4) is misplaced. The plaintiffs, rather than having their claimed status as secured creditors, are, in fact, unsecured creditors in this proceeding and as such have no direct interest in the proceeds of the sale.
This conclusion is consistent with similar decisions in this district, Matter of Reier, 53 B.R. 395, 398-99 (Bankr.S.D.Ohio 1985) and other courts, In re Sandy Ridge Oil Co., Inc., 807 F.2d 1332, 1334-36 (7th Cir.1986), In re Matos, 50 B.R. 742, 744-45 (D.C.1985) appeal dismissed, 790 F.2d 864 (11th Cir.1986).
CONCLUSION
Since the debtors in possession are not charged with knowledge of the financing statement (§ 1107(a)), and since in the context of this proceeding, the plaintiffs’ security interest is not perfected (§ 554(a)), the Defendants’ Motions For Summary Judgments are GRANTED.
Finally, the court notes that the resolution of the Motions For Summary Judgment appears to indicate that plaintiffs’ complaint no longer states a cause of action against any of the remaining defendants.
Accordingly, the court will enter an Order GRANTING the Defendant, Rita B. Eckert’s Motion For Summary Judgment (Doc. 38) and the Defendant, Bruce A. Bu-ren’s Motion For Summary Judgment (Doc. 39). FURTHER, the court shall enter an order providing that unless the plaintiffs, not later than June 9, 1988, file a request to continue this proceeding accompanied by a memorandum setting forth the cause(s) of action they continue to assert against any remaining defendant^), the court shall dismiss this adversary proceeding.
Orders in accordance with this decision are simultaneously entered.
SO ORDERED.
. If on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed.R.Civ.P. 12(b) | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490680/ | OPINION AND ORDER ON DIS-CHARGEABILITY OF DEBT
R. GUY COLE, Jr., Bankruptcy Judge.
I. Preliminary Matters
This matter is before the Court following trial of an adversary proceeding brought by Kemba Columbus Credit Union, Inc. (“Kemba”) against the debtor, Betty Short (“Debtor”). The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding arising under 28 U.S.C. § 157(b)(1), and (2)(I). The following opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule (“B.R.”) 7052.
II. Statement of Facts
1. Debtor filed a petition under Chapter 7 of the Bankruptcy Code on April 30,1987.
2. On May 21, 1984, Debtor signed a Loan Application (“May Application”) with Kemba, requesting a loan of $2,000 for the purpose of purchasing a washing machine and dryer, and for home improvements to her kitchen. She affirmed on the Loan Application that she was neither a co-maker nor guarantor on any other loans.
3. On May 21, 1984, Debtor executed a Note and Disclosure Statement (the “May Loan”), pursuant to which she borrowed the sum of $2,000 from Kemba and pledged a 1983 Oldsmobile Cutlass (the “Oldsmobile”) as security for her obligations.
4. On March 31,1986, Debtor completed a Loan Application (“March Application”) with Kemba, pursuant to which she applied for a loan in the amount of $2,787.77 for the purpose of paying off a prior loan with Kemba and for a vacation. She indicated on the application that she was a co-maker or guarantor on a loan with BancOhio National Bank (“BancOhio”) in the amount of $5,000.
5. On March 31, 1986, Debtor executed a Note and Disclosure Statement (“March Loan”) with Kemba under which Kemba lent her the sum of $2,787.77. Kemba accepted Debtor’s pledge of the Oldsmobile as security for her obligations.
6. On November 13, 1986, Debtor signed a Loan Application (“November Application”) with Kemba, pursuant to which she requested a loan in the amount of $8,375.10 for the stated purpose of paying off obligations to BancOhio and Kemba. Debtor offered the Oldsmobile as collateral for the requested loan. Debtor affirmed on the Loan Application that she was neither a co-maker nor guarantor on any other loan.
7. On November 13, 1986, Debtor signed a Note and Disclosure Statement (the “November Loan”), pursuant to which she borrowed the sum of $8,375.10 from Kemba. She secured her debt by granting Kemba a security interest in the Oldsmobile. and a 1987 Plymouth Horizon. As of the filing date of the petition, Debtor owed Kemba approximately $8,800 under the November Loan.
8. At the time Debtor executed the November Loan, she was indebted to Associates Financial Services (“Associates”), County Savings Bank (“County”), and Bar-clays American Financial (“Barclays”). Debtor knew that she was legally obligated to satisfy her obligations to Associates, County and Barclays, but believed that her ex-husband was required to satisfy the obligations to Associates and County pursuant to a divorce decree entered by the Perry County Common Pleas Court. Debtor understood that she was individually liable on her debt to Barclays at the time she signed the November Application and procured the November Loan.
9. The proceeds from the Barclays loan, on which debtor was solely liable, were given to her ex-husband for payment to the holder of the note on his over-the-road truck tractor. Debtor chose not to list on the November Application, or otherwise advise Kemba, of her obligations to Barclays because her ex-husband was making the installment payments to Barclays. Debtor knew that if she advised Kemba of the *539Barclays’ loan it would be more difficult for her to obtain a loan from Kemba.
10. Kemba would not have made the November Loan had Debtor apprised Kem-ba of her obligations to Associates, County or Barclays. Kemba relied on the information given by Debtor in each of her loan applications, but would have issued the May Loan even if it had known about Debt- or’s other debts.
III. Legal Discussion
Kemba claims that the Debtor intended to, and did, deceive it in procuring the November Loan, as well as the other loans. Kemba argues that the Debtor understood the nature and extent of her obligations to various creditors at the time she signed loan applications with, and obtained loans from, Kemba, but misled Kemba because of an abiding desire to financially assist close family members. Debtor claims, through her counsel, that she did not understand her liability as a co-signer or comaker. Counsel claims further that Debt- or misunderstood the legal effect of her divorce decree — that she believed her former husband was legally obligated to satisfy their joint obligations to Associates and County; thus, she did not list those debts on loan applications delivered to Kemba.
The determination as to whether a debt is non-dischargeable is governed by 11 U.S.C. § 523(a)(2)(B), which states, in relevant part:
(a) A discharge under section 727, ... of this title does not discharge an individual debtor from any debt—
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(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—
(B) use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive; ....
Each of the elements of 11 U.S.C. § 523(a)(2)(B) must be proven in order for the debt to be deemed non-dischargeable. It is well-established that the plaintiff has the burden of proving each element of its claim by clear and convincing evidence. In re Duncan, 35 B.R. 323 (Bankr.W.D.Ky.1983). In considering all of the relevant facts and the governing legal standards, the Court is guided by the rule that “exceptions to discharge must be narrowly construed.” In re Magnusson, 14 B.R. 662, 667 (Bankr.N.D.N.Y.1981); In re Huffman, 45 B.R. 590, 595 (Bankr.N.D.Ohio 1984). As noted in Huffman, that policy is followed because the principles of the Bankruptcy Code generally, and the discharge provisions in particular, are to provide the honest but unfortunate debtor a new opportunity in life and a clear field for future effort.
Turning now to a consideration of each element under 11 U.S.C. § 523(a)(2)(B), the Court finds that the November Application, the one that is central to this Court’s determination, was a statement in writing that was materially false respecting the Debt- or’s financial condition. The Debtor’s failure to schedule the Associates’ debt, total-ling some $11,737; the County debt, total-ling some $49,000; and the Barclays’ obligation, totalling $800, made the November Application a materially false statement. Although Debtor’s divorce decree apparently required her ex-husband to satisfy their joint obligations to Associates and County, Debtor understood that she was not relieved, in a legal sense, as an obligor. Thus, her counsel’s claim, and primary defense, that she did not understand her liability as either a co-signer or co-maker is without merit. Further, Debtor was solely liable on the Barclays’ loan, but did not disclose it to Kemba despite her clearly understood obligation to Barclays.
It is further clear from the testimony of Kemba’s representative at trial, a Mr. Percy, that Kemba relied on the information contained in each of the loan applications. Its reliance was reasonable considering the credit history of the Debtor, the amount of the loans, and her level of income. The Court further finds that the Debtor clearly intended to deceive Kemba in that she *540knew disclosure to Kemba of her other debts would negatively impact her ability to obtain a loan. While Debtor is obviously not a malevolent person, she was willing, at least at the times she obtained loans from Kemba, to omit intentionally her other obligations so as to enhance her ability to procure the loan. Debtor’s testimony established her ex-husband’s needs regarding payments for the purchase and maintenance of his truck, as well as her daughter’s needs with respect to an automobile. So, even though her omissions were not motivated by greed or personal profit, but to assist certain family members in their financial lives, she clearly intended to deceive Kemba in the procurement of her loans.
Based upon the foregoing, the Court concludes that Kemba has demonstrated the existence of all the elements required by 11 U.S.C. § 523(a)(2)(B). The Court finds, therefore, Debtor’s obligation to Kemba is non-dischargeable. The Court further finds that, according to the uncontradicted testimony of Kemba’s representative, Debt- or’s obligation to Kemba totals $8,800. It is, therefore, the Court’s judgment that Plaintiff shall recover the sum of $8,800 from the Defendant/Debtor.
IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490859/ | MEMORANDUM OPINION
WILLIAM T. BODOH, Bankruptcy Judge.
This cause came before the Court on the Debtor’s Amended Complaint against MIDLAND BUCKEYE FEDERAL SAVINGS & LOAN ASSOCIATION (“MIDLAND BUCKEYE”) and MIDLAND SERVICE CORPORATION (“MIDLAND SERVICE”) for breach of contract. This is a core proceeding pursuant 28 U.S.C. Sec. 157(b)(2).
FACTS
On Decémber 24, 1984, the Debtor borrowed Three Hundred Eighty-Five Thousand & 00/100 Dollars ($385,000.00) from MIDLAND BUCKEYE to purchase four (4) parcels of land in or near Alliance, Ohio. The Debtor executed a mortgage deed on the purchased property to MIDLAND BUCKEYE to secure the indebtedness. The Debtor established a recreational area known as “Suntan Park”, which included a swimming pool, par 3 golf course and a pro shop.
Due to the seasonal nature of the business, the Debtor experienced recurring problems in meeting the required payments to MIDLAND BUCKEYE during the winter months. It appears that normally winter repayment problems were resolved by cooperation between the Debtor and MIDLAND BUCKEYE.
On September 29,1986, Suntan Park was listed for sale with a local real estate office. Apparently, the Debtor defaulted on its loan repayments at about that time.1 On February 11, 1987, two of the Debtor’s officers met with representatives of MID*358LAND BUCKEYE and MIDLAND SERVICE regarding the arrearage.2 At the meeting, ROBERT H. STONE, ESQ., President of the Debtor, stated that the Debtor was unable to bring the loan current. ROBERT STICKER, President of both MIDLAND BUCKEYE and MIDLAND SERVICE, apparently suggested the development of a trailer or mobile home park in order to solve the cash flow problem which occurred during the winter months. Mr. Stone questioned how the Debtor could pay for engineering plans for campgrounds when it could not pay the arrearage on the loan. Mr. Sticker indicated that if the Debtor brought the loan current, then MIDLAND BUCKEYE would seek agreement by its Directors to a three-month moratorium on further installment payments. Mr. Stone testified that Mr. Sticker also agreed to have MIDLAND SERVICE draw up engineering plans for campgrounds within the park, which costs would be paid out of the proceeds of a subsequent sale of the park. This is disputed by MIDLAND BUCKEYE. Mr. Stone accepted the terms of the agreement as he understood it.
In order to raise sufficient funds to bring the loan current, Mr. Stone convened a special shareholder meeting for the Debtor and sent a letter out to all shareholders. In both the meeting and the letter, Mr. Stone apparently attempted to convince present shareholders to purchase additional shares of stock in the company.3 Mr. Stone’s efforts were largely unsuccessful.4 As a result, Mr. Stone personally secured a signature loan and used those and other personal funds to bring Debtor’s loan current.5 On March 23, 1987, Mr. Stone delivered two (2) financial statements, two (2) plat maps, and a copy of the Ohio State Campground Regulations to the office of Mr. Shreve, former Vice-President of Lending at MIDLAND BUCKEYE. On March 24, 1987, MIDLAND BUCKEYE’S Board of Directors approved a three-month moratorium on the Debtor’s installment obligation. Although it appears that Mr. Stone repeatedly called MIDLAND BUCKEYE to inquire about the development of campground plans, his calls were not returned. At about this same time, DANIEL SCHLABACH notified Mr. Stone that he would be willing to purchase the park for Six Hundred Fifty Thousand & 00/100 Dollars ($650,000.00) after the engineering plans had been completed. In early June, 1987, Mr. Stone confronted Mr. Shreve and discovered that no plans were being prepared. In fact, MIDLAND SERVICE never had the ability to draw up engineering plans because the sole employee of MIDLAND SERVICE was a surveyor, whereas the preparation and filing of campground plans requires the certification of a professional engineer. On July 24, 1987, the Debtor filed its petition for relief under Chapter 11 of Title 11, United States Code. The Amended Complaint in this adversary action was filed on May 6, 1988, and a hearing was held on January 10, 1989.
DISCUSSION
The initial issue which we must consider is whether there was an understanding reached between the Debtor and MIDLAND BUCKEYE on February 11, 1987. When the Debtor’s officers attended the meeting on that day, it appears that they were ready to acquiesce in foreclosure because the Debtor had insufficient funds to implement any other viable alternative. Under these circumstances, it does not appear that Mr. Stone would be willing to commit further personal funds to cure the arrearage on the loan in exchange for a *359three-month moratorium alone. The testimony of Mr. Stone, Mr. Alexander, and Mr. Moushey suggests that Mr. Sticker offered to provide engineering services to the Debt- or if it so desired. Mr. Moushey testified that:
Bob Sticker suggested Midland Service had a surveyor and engineer by the name of Ron Hinton who worked for them who could perform that type of work [planning roads and utilities] if that’s what they [the Debtor] wanted to do.
Based on the testimony as a whole, the Court is persuaded that MIDLAND BUCKEYE, through its agent Robert Sticker, offered to (1) seek a three-month moratorium on payments to the Debtor; and (2) provide the Debtor with engineering services for the development of a trailer park. In exchange, the Debtor would be required to bring the loan payments current as of February, 1987. However, it also appears that the meeting concluded without a formal acceptance of this offer.
The Debtor contends that the effect of the transaction taken as a whole is that a novation occurred on February 11, 1987. There are two requirements to effect a novation under Ohio law:
(1) discharge of a valid, existing obligation by mutual agreement of all parties; and
(2) substitution of a new debt, debtor or creditor in a new obligation.
See Federal Land Bank v. Taggart, 31 Ohio St.3d 8, 508 N.E.2d 152 (1987); Citizens State Bank v. Richart, 16 Ohio App. 3d 445, 476 N.E.2d 383 (1984). The Debtor correctly admits that the burden of proving a novation is on the party who asserts it as a claim. The Court is convinced that the Debtor has failed to sustain its burden on the first element. There is nothing in the record to suggest that representatives of either the Debtor or MIDLAND BUCKEYE viewed the original obligation to be extinguished. Indeed, Mr. Stone testified that MIDLAND BUCKEYE never agreed to cancel its note and mortgage. Therefore, as a matter of law, the Debtor is not entitled to recover on the theory of novation.
Next, the Debtor argues that the contract was modified on February 11, 1987, when the Debtor was granted a three-month extension or moratorium on its loan. The original note provides, in part:
From time to time, without affecting the obligation of the undersigned or the successors or assigns of the undersigned to pay the outstanding principal balance of this Note and observe the covenants of the undersigned contained herein ..., and without liability on the part of the holder hereof, the holder hereof may, at the option of the holder, hereof, extend the time for payment of said outstanding principal balance or any part thereof....
Thus, according to the note, MIDLAND BUCKEYE had the authority to extend the repayment period by granting the moratorium without effecting any modification of the contractual obligations and rights under the note. Thus, the Debtor is not entitled to judgment on the theory of a contractual modification.
The Debtor also alleges that MIDLAND BUCKEYE fraudulently misled officers of the Debtor in promising the preparation of engineering plans. The Debtor correctly states the elements of an action for fraud:
(1) actual concealment of a material fact;
(2) defendant had knowledge of the fact;
(3) intent to mislead another;
(4) actual and reasonable reliance by plaintiff; and
(5) injury resulting from that reliance.
After a considered evaluation of the testimony and exhibits in this case, the Court has concluded that the Debtor failed to prove that Mr. Sticker knowingly intended to mislead the Debtor’s officers when he stated that Mr. Hinton of MIDLAND SERVICE could perform engineering work. Although there is evidence to suggest that MIDLAND BUCKEYE, through its officers, did not conduct itself in a wholly professional and responsible manner, we are not persuaded that the evidence is sufficient to warrant a finding of fraud.
Finally, the Debtor contends that it is entitled to relief under the principles of *360promissory estoppel. A claim under the theory of promissory estoppel requires a party to prove that:
(1) a promise was made;
(2) the promissor should have reasonably expected to induce reliance on the part of the promisee;
(3) the promisee actually relied on the promise;
(4) enforcement of the promise is necessary to avoid injustice.
Bruchac v. Universal Cab Co., 580 F.Supp. 295, 303 (N.D.Ohio 1984). The offer by MIDLAND BUCKEYE to provide engineering services was in the nature of a unilateral contract which was explained in Helle v. Landmark, Inc., 15 Ohio App.3d 1, 472 N.E.2d 765 (1984):
In the case of a unilateral contract, as here, the promissor’s offer is accepted by the promisee’s performance rather than by a return promise to perform. Consequently, when the promisee’s performance is executed, enforceable obligations arise without more.6
Id. at 12, 472 N.E.2d 765. In this case, Mr. Sticker promised to have MIDLAND SERVICE provide engineering drawings once the loan was brought current and the Debt- or indicated a desire for such plans. Thus, we find the existence of a sufficient promise by MIDLAND BUCKEYE to fulfill the first element.
The second element requires that a prom-issor reasonably expect to induce a prom-isee’s action or forebearance in reliance upon the promise of representation. In Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 483 N.E.2d 150 (1985), the Ohio Supreme Court held that the controlling consideration was what a promissor should reasonably expect a promisee to believe the promise means.7 When Mr. Stone left the meeting on February 11, 1987, it appears that he told Mr. Sticker and/or Mr. Shreve of his intent to raise enough money to bring the Debtor’s loan current. Mr. Sticker and Mr. Shreve should have realized that the only motivation behind such a move was to accept MIDLAND BUCKEYE’S offer to prepare engineering plans to permit the sale or restructuring of Debtor. Mr. Alexander’s testimony, taken with the testimony of others, supports the conclusion that it was not unreasonable for Mr. Sticker and Mr. Shreve to expect Mr. Stone, as President of the Debtor, to act in reliance on Mr. Sticker’s promise.
The third element requires that the promisee actually rely on the promise. The Debtor borrowed over Fifteen Thousand & 00/100 Dollars ($15,000.00) to bring the loan current. Mr. Stone’s letter to Mr. Shreve, along with plat maps and other material, demonstrates the continued reliance on MIDLAND BUCKEYE’S promise.
The final element requires that equity demand enforcement of the promise. The Court finds that the Debtor relied to its detriment on MIDLAND BUCKEYE’S promise. As a result, we conclude that the Debtor is entitled to judgment against MIDLAND BUCKEYE on a theory of promissory estoppel.
The last question we must consider is the amount of damages to which the Debtor may be entitled. The Debtor’s most substantial claim is for Six Hundred Fifty Thousand & 00/100 Dollars ($650,000.00) as compensation for the loss of the sale to Mr. Schlabach. There was no showing that the Debtor could have obtained drawings elsewhere, as Debtor’s President admitted it lacked resources to do so and, thus, relied on Mr. Sticker’s suggestions. In fact, the testimony showed that the Debtor’s officers were ready to acquiesce in foreclosure of the property before the February 11, 1987 meeting. Furthermore, Mr. Schla-bach testified that he decided not to buy *361the park because he had heard that the Debtor was in financial distress and he believed that his waiting until Debtor was in default might produce a better bargain. The absence of engineering drawings does not appear to have been the primary reason for the withdrawal of his purchase offer. Finally, as a matter of law, the Debtor cannot recover damages for either lost profits or lost opportunities on a promissory estoppel claim. Cincinnati Fluid Power, Inc. v. Rexnord, Inc., 773 F.2d 92 (6th Cir.1985); R. Renaissance, Inc., v. Rohm & Haas Co., 674 F.Supp. 591 (S.D.Ohio 1987); McIntosh v. Micheli Restaurant, Inc., 22 Ohio Misc.2d 5, 488 N.E.2d 1261 (1984). The Court also does not believe that punitive damages are appropriate given the factual circumstances found in this case. The Debtor has sustained damage in the amount of indebtedness incurred to bring the loan current—Fifteen Thousand, Seventy-Five & 21/100 Dollars ($15,-075.21). Judgment shall be entered for the Debtor in that amount.
This Memorandum Opinion constitutes the findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
An appropriate Order shall enter.
. Although testimony during trial suggested that the Debtor defaulted in December, 1986, the Debtor admitted in its Post-Trial Brief that Debtor first defaulted in October, 1986.
. Robert H. Stone, Esq., and Mr. Charles Alexander represented the Debtor. Mr. Richard Shreve and Thomas P. Moushey, Esq., represented MIDLAND BUCKEYE, while Robert E. Strieker appeared on behalf of MIDLAND BUCKEYE and MIDLAND SERVICE.
. Apparently, there were 17 authorized but unissued shares in the Company.
.One shareholder responded to the letter and purchased one additional share for Five Hundred & 00/100 Dollars ($500.00).
. It appears that the loan was brought current in two installments — Twelve Thousand, Five Hundred & 00/100 Dollars ($12,500.00) on February 28, 1987, and Two Thousand, Five Hundred Seventy-Five & 21/100 Dollars ($2,575.21) on March 24, 1987.
. The Court recognizes that recovery on a theory of promissory estoppel is "off the contract,” but the result of a unilateral contract is instructive here in determining whether a promise was ever made.
. The Mers court relied upon Sec. 90 of The Restatement (Second) of Contracts, which speaks in terms of the promissor’s reasonable expectations. Although the rule of law adopted by the Mers court does not include a specific requirement of reasonableness on the part of the prom-isee, the Court believes that such a requirement is inherent therein. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490860/ | MEMORANDUM OPINION
JAMES G. MIXON, Bankruptcy Judge.
On January 30, 1986, the United States District Court for the Eastern District of Arkansas determined that the customers of Brittenum & Associates, Inc. (debtor) were in need of protection under the Securities Investor Protection Act of 1970 (SIPA). The Honorable James F. Dowden was appointed trustee by the district court, and the case was removed to the bankruptcy court for administration and liquidation pursuant to 15 U.S.C. § 78eee(b)(4).
At the beginning of the liquidation proceeding, the debtor owed the Cross County Bank (Bank) approximately $300,000 for a • loan made by the Bank to the debtor on January 7, 1986. The loan was secured by a $300,000 certificate of deposit issued by the Bank on June 26, 1985, to “Jon R. Brittenum & Associates Special Reserve Account for the Exclusive Benefit of Customers.” The trustee filed this complaint on March 10, 1986, and alleged that the Bank held no valid lien in the certificate of deposit.
This proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B), and the Court has jurisdiction to enter a final judgment. The following shall constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule of Procedure 7052.
The essential facts in the case are as follows:
1. The Bank is a state chartered bank with its principal place of business in Wynne, Cross County, Arkansas.
2. Ken McClanahan (McClanahan) was serving as president of the Bank at all times relevant to this proceeding.
3. The debtor was a securities brokerage and investment banking firm with its principal place of business in Little Rock, Arkansas.
4. Jon R. Brittenum (Brittenum) was the president of the debtor at all times relevant to this proceeding.
5. On June 22, 1982, certificate of deposit number 6620 (CD 6620) was issued by the Bank to the debtor in the sum of $500,-000. The maturity date of CD 6620 was June 22, 1985.
6. On August 14, 1984, a representative of the debtor added the following words to the face of CD 6620: “Special Reserve Account for the Exclusive Benefit of Customers.”
*5057. On August 14, 1984, subsequent to the name change made on CD 6620, McCla-nahan initialed the certificate. On the same date a letter signed by Harry Ware was received by McClanahan.1
8. In May 1985, McClanahan was contacted by Beverly Sullivan, an employee of the debtor, who requested that CD 6620 be converted to a passbook savings account because the debtor needed access to the money. McClanahan advised her that if the CD was converted before the maturity date, the debtor would forfeit $32,000 in interest. McClanahan suggested that the Bank loan the debtor the face amount of the CD, and that the debtor pledge the CD as collateral and set the due date of the note on the same date as the maturity date of the CD. By structuring the loan in this fashion the loan could be paid with the CD proceeds, and the debtor would not forfeit the $32,000 interest.
9. The debtor executed a promissory note in favor of the Bank dated May 28, 1985, in the sum of $500,000, due on June 22, 1985. CD 6620 was pledged as collateral. The debtor received the loan proceeds in the amount of $500,000.
10. On May 28, 1985, a savings account was opened at the Bank by the debtor in the name of “Jon R. Brittenum & Associates, Inc. Special Reserve Account for the Exclusive Benefit of Customers.” The account number was 01-494852-10, and the $500,000 loan proceeds were initially deposited into this account on May 28, 1985. A signature card for the savings account was signed by officers of the debtor on the same date.
11. A letter dated May 28, 1985, executed by McClanahan pertaining to the savings account was sent to the debtor.2
12. On June 22, 1985, CD 6620 matured in the amount of $500,000, and the proceeds were used by the debtor to satisfy the promissory note executed on May 28, 1985.
13. On June 26, 1985, certificate of deposit number 9545 (CD 9545) in the amount of $300,000 was issued by the Bank. CD 9545 was entitled “Jon R. Brittenum & Associates, Inc. Special Reserve Account for the Exclusive Benefit of Customers.” CD 9545 was purchased with funds withdrawn from savings account 01-494852-10. After the withdrawal, $200,000 of the original deposit plus accrued interest remained in the savings account. The only explanation provided by the debtor to McClanahan of the significance of the special reserve *506language was that it was required by the debtor’s auditors. McClanahan did not inquire as to the meaning of the language.
14. On July 1, 1985, McClanahan, at Sullivan's request, signed a letter addressed to Brittenum, president of the debtor, pertaining to CD 9545. The content of the letter was prepared by an employee of the debtor and delivered to McClanahan for his signature.3
15. At the time the July 1, 1985, letter was signed by McClanahan, the debtor was not indebted to the Bank, and CD 9545 was not pledged as collateral.
16. On January 7, 1986, Brittenum, on behalf of the debtor, executed a promissory note (number 01-494852-61) payable to the Bank in the principal amount of $300,000, due on July 6, 1986. CD 9545 in the amount of $300,000 was pledged as collateral by virtue of a document entitled “Assignment of Certificate of Deposit Number 9545.” The Bank also took possession of CD 9545. This loan transaction occurred at the request of the debtor and was presumed by the Bank to be a proper request. CD 9545 was turned over to the trustee without prejudice to the Bank’s claim of lien.
DISCUSSION
The trustee contends that CD 9545 and savings account 01-494852-10 are “Special Reserve Accounts,” as provided in Rule 15c3-3 of the Securities and Exchange Act of 1934 (1934 Act), and therefore that they are special accounts which may not be pledged as collateral or subjected to the Bank’s common law right of setoff.
The Bank claims that its loan to the debtor is properly secured by CD 9545; alternatively, the Bank claims a right of setoff against CD 9545 and the savings account. The Bank also argues that since there was no formal written contract between it and the debtor not to encumber CD 9545, the debtor did not conform to the requirements of Rule 15c3-3(f), and therefore the certificate of deposit is not a “Special Reserve Account.” The Bank further argues that even if a “contract” existed, it was rescinded or modified by certain actions of the debtor.
The 1934 Act authorizes the Securities and Exchange Commission (SEC) to promulgate rules and regulations which affect the operations of security brokers and dealers. Pursuant to that authority, the SEC issued Rule 15c3-3, found in 17 C.F.R. § 240.15c3-3 (1987), pertaining to the protection and custody of customer securities. Rule 15c3-3(e), which requires that a broker or dealer maintain certain reserves in banks, states:
(e) Special reserve bank account for the exclusive benefit of customers. (1) Every broker or dealer shall maintain with a bank or banks at all times when deposits are required or hereinafter specified a “Special Reserve Bank Account, for the Exclusive Benefit of Customers” (hereinafter referred to as the “Reserve Bank Account”), and it shall be separate from any other bank account of the broker or dealer. Such broker or dealer shall at all times maintain in such Reserve Bank Account, through deposits made therein, cash and/or qualified securities in an amount not less than the amount computed in accordance with the formula set forth in § 240.15c3-3a.
Rule 15c3-3(f) provides:
(f) Notification of banks. A broker or dealer required to maintain the reserve bank account prescribed by this section or who maintains a special account referred to in paragraph (k) of this section shall obtain and preserve in accordance with § 240.17a-4 written notification from each bank in which he has his reserve bank account or special account that the bank was informed that all cash and/or qualified securities deposited therein are being held by the bank for the exclusive benefit of customers of the broker or dealer in accordance with the regulations of the Commission, and are being kept separate from any other accounts maintained by the broker or *507dealer with the bank, and the broker or dealer shall have a written contract with the bank which provides that the cash and/or qualified securities shall at no time be used directly or indirectly as security for a loan to the broker or dealer by the bank and, shall be subject to no right, charge, security interest, lien, or claim of any kind in favor of the bank or any person claiming through the bank,
(emphasis added).
The Court is unaware of any case in which a court has construed the term “written contract” in the context of Rule 15c3-3(f), and the parties have referred to none. The obvious intent of Rule 15c3-3 is to require brokers and dealers to set aside a calculated percentage of their funds for the benefit of their customers. By complying with Rule 15c3-3(f), the broker/dealer informs the depository bank of the special nature of the funds.
The letters signed by the Bank’s president and addressed to the debtor contained all of the information required by Rule 15c3-3(f). In the May 28, 1985, letter the Bank expressly agreed that savings account 01-494852-10 was to be established in accordance with the guidelines set forth in Rule 15c3-3(f), and the Bank agreed that the account could not be pledged as security for any loan by the Bank to the debtor. In the July 1, 1985, letter the Bank agreed to the same conditions after the debtor withdrew $300,000 from the savings account on June 26, 1985, and purchased certificate of deposit 9545. Both the savings account and CD 9545 were established in the name of "Jon R. Brittenum & Associates, Inc. Special Reserve Account for the Exclusive Benefit of Customers.” The trustee’s expert witness testified that in his experience with broker liquidations, he had never seen any formal “written contracts” as the term is used in Rule 15c3-3(f), and that the only documents he had seen evidencing reserve accounts were substantially the same as the letters signed by McCla-nahan. The Bank presented no evidence to controvert the debtor’s expert witness.
The Bank’s argument that it was unaware of the implications of the letters and thus never agreed to their content because they were drafted by the debtor and not properly explained to the Bank, is without merit. The Bank’s agent who signed the letters was the Bank’s president, not a less experienced bank officer. Although McClanahan may not have been knowledgeable of securities law or of the technical requirements of Rule 15c3-3(f), he certainly had the opportunity and the responsibility to learn the ramifications of the transactions in question. There was no language in the letters which could have deceived McClanahan. The letters’ content was clear; the Bank was to hold the funds for the benefit of customers of the debtor and these funds were not to be used as collateral for a loan.
The evidence establishes that the debtor entered into an agreement with the Bank, in which the Bank agreed to hold the funds pursuant to Rule 15c3-3. The letters signed by McClanahan acknowledged the Bank’s understanding of the agreement and satisfied the notification requirements of Rule 15c3-3(f). Therefore, savings account 01-494852-10 and CD 9545 were special reserve accounts at the commencement of the liquidation proceedings.
The Bank argues that even if an agreement existed not to use CD 9545 as collateral, the debtor rescinded or modified the agreement because the debtor was the party who requested the loan from the Bank and suggested that CD 9545 be used as collateral. The Court is unpersuaded by this argument. The account specified that the funds were maintained for the “exclusive benefit of customers.” The Bank was on notice that the CD was not to be used as collateral for a loan to the debtor. Although both parties acknowledge that under the agreement the Bank was allowed to presume that “any request for withdrawal ... is in conformity with” Rule 15c3-3(f), this language cannot be interpreted to excuse the Bank for accepting the certificate of deposit as collateral, in direct contravention of the terms of the same letter. There was no evidence that the Bank took any action to determine whether its agreement not to accept the certificate of deposit as *508collateral was still in effect after the debt- or suggested the loan transaction. The-Bank cannot claim that its agreement not to use the CD as collateral for a loan has been rescinded simply because the debtor requested the very transaction which is prohibited by the agreement. Such a request does not change the fact that the funds were held by the debtor for the benefit of its customers in accordance with Rule 15c3-3.
The Bank’s final argument is that it may properly exercise its right of setoff against either the funds in the savings account or CD 9545. 11 U.S.C. § 553 specifically recognizes the validity of the right of setoff in bankruptcy cases. Normally, when funds are deposited with a bank, the funds are general deposits and a debtor-creditor relationship is created between the bank and the depositor. In re Multiponics, Inc., 622 F.2d 725 (5th Cir.1980). In such a relationship, the bank has the right of setoff against the funds for debts owed to the bank by the depositor. However, this relationship does not exist when the funds on deposit are held in a special account or impressed with a trust. In re Multiponics, Inc., 622 F.2d at 728. There is no right to setoff if funds are established as special accounts or in trust for a special purpose. In re Texas Mortgage Services Corp., 761 F.2d 1068 (5th Cir.1985); Bridgeport Co. v. U.S. Postal Service, 39 B.R. 118 (Bankr.E.D.Ark.1984). In order to qualify the funds as special accounts or funds held in trust, the bank must be made aware that the deposit is for a special purpose. United States v. Butterworth-Judson Corp., 267 U.S. 387, 394-95, 45 S.Ct. 338, 340, 69 L.Ed. 672 (1925) (“[A] bank having notice that a deposit is held by one for the use of or as security for another has only such right of setoff as is not inconsistent with the rights of the latter.”); White v. Pacific Southwest Trust & Savings Bank, 9 F.2d 650, 659 (S.D.Cal.1925) (“[W]here there is no notice to the bank of its ‘trust’ character, there [is] a presumption that deposits are general, and not special or trust.”).
The Bank was clearly on notice of the nature of CD 9545 and savings account 01-494852-10. The account names specified that funds were being held for a special purpose, and the letters signed by the Bank’s president unequivocally stated that the funds were not to be commingled with any other funds of the debtor held by the Bank. The Bank agreed to hold the funds for a special purpose, and the establishment of the accounts did not create a debt- or-creditor relationship. See In re Multiponics, Inc., 622 F.2d at 728; In re Goodson Steel Corp., 488 F.2d 776, 779 (5th Cir.1974). Therefore, the Bank does not have a right of setoff against the savings account or CD 9545.
Certificate of deposit number 9545 and savings account 01-494852-10 are determined to be property of the estate free and clear of any claim of lien or right of setoff by Cross County Bank.
IT IS SO ORDERED.
.Harry L. Ware signed the letter, which was typed on the debtor’s letterhead, as vice president of the debtor. The letter was addressed to McClanahan as president of the Bank and McClanahan acknowledged its receipt by signing at the bottom of the letter. The following language appeared in the letter:
This letter is written in satisfaction of SEC Rule 15c3-3(f) concerning a Certificate of Deposit #6620 we have established with Cross County Bank. The following provisions of the Rule are hereby outlined in writing in accordance with paragraph (f) of the Rule:
1. The name of the certificate of deposit is to be entitled "Special Reserve Account for the Exclusive Benefit of Customers”.
2. The certificate of deposit is to be held for exclusive benefit of customers of Britte-num & Associates, Inc. in accordance with the regulation of the Securities and Exchange Commission, and is to be kept separate from any other account maintained by this firm with the bank.
3. The certificate of deposit shall at no time be used as security for a loan to the firm by the bank and shall be subject to no right charge security interest, lien, or claim of any kind in favor of the bank or any person claiming through the bank.
4. The bank may presume that any request for withdrawal from this account is in conformity and compliance with the rule.
5. The certificate of deposit may be redeemed upon demand during the course of normal banking hours.
6. Should the certificate of deposit be redeemed prior to its maturity the maximum penalty that would be charged is 6 months interest at 13%, or $32,500.
You may indicate your understanding and acceptance of the above by signing both the original and copy of this letter and return the copy to me. If you should have any questions regarding this matter, please let me know. Thank you for your cooperation.
. The letter was typed on the Bank’s letterhead and was signed by McClanahan as president. The letter, which was addressed to Greg H. Culver, the debtor’s compliance officer, contained virtually the same language that is contained in the introductory paragraph and provisions one through four of the letter set forth in footnote 1.
. The letter contained virtually the same language as the letter set forth in footnote 1, except that there was no closing paragraph in the July 1, 1985, letter. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483192/ | Matter of Khawari v Khawari (2022 NY Slip Op 06416)
Matter of Khawari v Khawari
2022 NY Slip Op 06416
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
CAF 21-00783.
[*1]IN THE MATTER OF ZAHRA KHAWARI, PETITIONER-RESPONDENT,
vHAIDAR KHAWARI, RESPONDENT-APPELLANT.
MEMORANDUM AND ORDER Order unanimously affirmed. Counsel's motion to be relieved of assignment granted. (Appeal from order of Family Court, Erie County, Mary Giallanza Carney, J. - Custody). (Filed Nov. 10, 2022.) | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483157/ | People v Williams (2022 NY Slip Op 06403)
People v Williams
2022 NY Slip Op 06403
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND CURRAN, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (109/22) KA 18-01725.
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vRANDY WILLIAMS, DEFENDANT-APPELLANT.
MEMORANDUM AND ORDER
Motion for writ of error coram nobis denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483246/ | Filed 11/10/22 P. v. Torkelson CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078237
Plaintiff and Respondent,
v. (Super. Ct. No. SCD193624)
JAMES DAVID TORKELSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Reversed and Remanded with Directions.
Waldemar D. Halka, under appointment by the Court of Appeal, for
Appellant and Defendant.
Rob Bonta, Attorney General, Charles C. Ragland, Senior Assistant
Attorney General, Alan Amann and Kristen Kinnaird Chenelia, Deputy
Attorneys General, for Plaintiff and Respondent.
In 2009, a jury convicted James David Torkelson on two counts of
felony first degree murder for his role in an armed robbery in which two
employees were shot and killed. The superior court sentenced him to two
consecutive terms of life in prison without the possibility of parole. Torkelson
filed a petition for resentencing in 2019, following statutory changes that
narrowed the scope of felony-murder liability and authorized resentencing for
those convicted under the prior laws. The superior court concluded he was
ineligible for relief based on felony-murder special-circumstance findings
made by the jury.
Torkelson appealed and, in our initial opinion, we affirmed the superior
court’s order. The Supreme Court of California granted Torkelson’s petition
for review and held the case for its decision in People v. Strong (2022) 13
Cal.5th 698 (Strong). In Strong, the Supreme Court held that a defendant is
not precluded from eligibility for resentencing based on a jury’s true findings
on felony-murder special-circumstance allegations made before it issued its
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), which provided substantial guidance on
the meanings of the phrases “major participant” and “with reckless
indifference to human life” as used in the statute defining the felony-murder
special circumstance. After issuing its opinion in Strong, the Supreme Court
remanded Torkelson’s appeal to us with directions to vacate our opinion and
to reconsider the matter in light of the decision.
In compliance with those directions, we hereby vacate our prior
opinion. And, based on Strong, supra, 13 Cal.5th 698, we reverse the order
denying Torkelson’s resentencing petition and remand the matter for further
proceedings.
2
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Robbery
The following facts regarding the underlying crimes are summarized
from this court’s unpublished opinion in Torkelson’s direct appeal, People v.
James David Torkelson (Feb. 10, 2011, D055104) [nonpub. opn.], in which we
affirmed the judgment of conviction.
Torkelson was terminated from his position as a security guard at a
parking lot near the San Diego airport in July 1999. At about 11:30 p.m. on
July 17, 1999, Torkelson arrived at the lot dressed in his uniform. Two other
security guards questioned Torkelson’s employment status, but Torkelson
assured them that it was okay for them to go home.
Approximately one hour later, a man with a nylon stocking over his
face approached the ticket booth with a gun drawn. He detained the
attendant and emptied the cash register. Two other employees were counting
money from the shift change in a nearby business trailer. The attendant
heard the gunman order someone inside the trailer and, shortly thereafter,
he heard a series of gunshots. The attendant saw the gunman run from the
trailer and meet up with two other men. After calling 911, the attendant
went to the business trailer and confirmed the two employees were dead,
with bullet wounds to the head. Meanwhile, the robbers ran across the street
to another commercial parking lot and stole a getaway vehicle at gunpoint.
Although the police initially suspected Torkelson, they were unable to
identify his accomplices until several years later. In 2002, another
individual, Jeffery Young, admitted that he had killed one of the victims, and
identified Max Anderson as the shooter of the second victim.
3
B. Charges, Verdict, and Sentencing
In 2005, Torkelson was charged with two counts of murder, one count
of attempted murder, and carjacking. The prosecutor presented a case based
on felony murder. Several witnesses indicated the robbery was Torkelson’s
idea, that Torkelson was the mastermind behind the plan, and that
Torkelson provided guns to Young and another accomplice. The jury found
Torkelson guilty of both counts of first degree murder and found special-
circumstance allegations that the murders were committed during the
commission of a robbery within the meaning of Penal Code1 section 190.2,
subdivision (a)(17) true as to each count. The superior court sentenced
Torkelson to two consecutive terms of life in prison without the possibility of
parole.
C. Petition for Resentencing
On January 1, 2019, legislation took effect that, among other things,
narrowed the scope of accomplice liability for felony murder by amending
sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2, 3.) The legislation also
added a new statute authorizing those convicted of felony murder to petition
for resentencing if they could not be convicted of that crime under the
amended statutes had they been in effect at the time of the killing. (Former
§ 1170.95, enacted by Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch.
551, § 2, and renumbered § 1172.6 by Stats. 2022, ch. 58, § 10.)2
In 2019, Torkelson filed a petition for resentencing pursuant to section
1172.6. The superior court appointed counsel for Torkelson and, after full
1 All further statutory references are to the Penal Code.
2 The amendments are not relevant to this appeal. We cite the current
version of the statute (§ 1172.6) in this opinion even though Torkelson filed
his petition under the former version (§ 1170.95).
4
briefing and argument, denied the petition. The court acknowledged that
there was disagreement among the appellate courts regarding the impact of
the jury’s true findings on the felony-murder special-circumstance
allegations, but relied on People v. Galvan (2020) 52 Cal.App.5th 1134
(Galvan) and People v. Gomez (2020) 52 Cal.App.5th 1 (Gomez) to conclude
that the jury’s findings made Torkelson ineligible for resentencing under
section 1172.6 as a matter of law.
D. Prior Appellate Proceedings
Torkelson appealed, and this court issued an opinion in which we also
acknowledged the split in appellate court decisions regarding the impact of
the jury’s true findings on the special- circumstance allegations, but
concluded the superior court did not err by relying on Galvan and Gomez to
conclude the findings rendered Torkelson ineligible for resentencing. As
noted, our high court granted review and held Torkelson’s case pending its
decision in Strong, supra, 13 Cal.5th 998. (Supr. Ct. Order filed Aug. 19,
2022, S269769.) And, in Strong, the California Supreme Court held that true
findings on felony-murder special-circumstance allegations do not preclude a
defendant from stating a prima facie case for relief under section 1172.6, so
long as those findings were made before its decisions in Banks and Clark.
(Strong, supra, 13 Cal.5th at p. 721.) After issuing its decision in Strong, the
Court transferred Torkelson’s appeal back to us with directions to vacate our
initial opinion and to reconsider the matter in light of the decision. (Supr. Ct.
Order filed Oct. 19, 2022, S269769.)
II.
DISCUSSION
Following the Supreme Court’s transfer order, the parties submitted
supplemental briefing addressing the impact of the Supreme Court’s decision
5
in Strong, supra, 13 Cal.5th 998. As in his original briefing on appeal,
Torkelson contends the superior court erred by summarily denying his
petition for resentencing based on the jury’s true findings on the felony-
murder special-circumstance allegations because those findings were made
before the Supreme Court decided Banks, supra, 61 Cal.4th 788, and Clark,
supra, 63 Cal.4th 522. Although they initially disagreed with Torkelson’s
position, given the Supreme Court’s decision in Strong, supra, 13 Cal.5th 698,
the People now concede that “the trial court’s order summarily denying
appellant’s petition for resentencing under Penal Code section 1172.6 based
on the existence of a pre-Banks/Clark robbery-murder special-circumstance
finding should be reversed and the matter remanded for further proceedings.”
We agree.
In Strong, our Supreme Court held that where, as here, a defendant’s
case “was tried before both Banks and Clark, the special circumstance
findings do not preclude him from making out a prima facie case for
resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.)
The Supreme Court reasoned that section 1172.6 requires the petitioner to
make a prima facie showing that he could not be convicted of murder under
the amended versions of sections 188 and 189, and “[a] pre-Banks and Clark
special-circumstance finding does not negate that showing because the
finding alone does not establish that the petitioner is in a class of defendants
who would still be viewed as liable for murder under the current
understanding of the major participant and reckless indifference
requirements.” (Strong, at pp. 717−718.) “This is true even if the trial
evidence would have been sufficient to support the findings under Banks and
Clark.” (Strong, at p. 710; see People v. Montes (2021) 71 Cal.App.5th 1001,
1008 [trial court may not deny section 1172.6 petition at prima facie stage
6
based on its own determination defendant was major participant in felony
and acted with reckless disregard for human life].) Thus, “[n]either the jury’s
pre-Banks and Clark findings nor a court’s later sufficiency of the evidence
review amounts to the determination section 1172.6 requires, and neither set
of findings supplies a basis to reject an otherwise adequate prima facie
showing and deny issuance of an order to show cause.” (Strong, at p. 720.)
In Torkelson’s case, the jury made its true findings on the special
circumstance allegations more than a decade before the Supreme Court
decided Banks, supra, 61 Cal.4th 788, and Clark, supra, 63 Cal.4th 522.
Under Strong, those findings do not preclude Torkelson from stating a prima
facie case for relief. (Strong, supra, 13 Cal.5th at p. 721.) Torkelson asserts
that he made the requisite threshold prima facie showing for relief in his
petition by alleging that he was convicted under a felony-murder theory, and
that he could not now be convicted based on the changes to sections 188 and
189. The People do not dispute his assertion, and, again, we agree.
Torkelson’s petition alleged the facts necessary for relief under section
1172.6, and the superior court erred by summarily denying his petition based
on the jury’s findings on the special circumstance allegations. We therefore
remand the matter to the superior court with directions to issue an order to
show cause and, to the extent necessary, hold an evidentiary hearing.
(§ 1172.6, subds. (c), (d); Strong, at pp. 708−709; People v. Duchine (2021) 60
Cal.App.5th 798, 816.) We express no opinion on how the court should
ultimately rule on the petition.
7
DISPOSITION
The opinion filed on June 9, 2021, is vacated. The order denying the
petition for resentencing under section 1172.6 is reversed. The matter is
remanded to the superior court with directions to issue an order to show
cause and, to the extent necessary, hold an evidentiary hearing.
IRION, J.
WE CONCUR:
McCONNELL, P.J.
BUCHANNAN, J.
8 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483250/ | Filed 11/10/22 In re Z.R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re Z.R. et al., Persons Coming Under the
Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY F084371
SERVICES AGENCY,
(Super. Ct. Nos. JVDP-20-000105,
Plaintiff and Respondent, JVDP-20-000106)
v.
OPINION
P.R.,
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Stanislaus County. Annette Rees,
Judge.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Smith, J.
Appellant Patricia R. (mother) appealed from the juvenile court’s May 12, 2022,
orders issued at a Welfare and Institutions Code section 366.26 hearing,1 placing her then
14-year-old son, Z.R., in long-term foster care and her 12-year-old daughter, G.R., in a
legal guardianship. After reviewing the juvenile court record, mother’s court-appointed
counsel informed this court he could find no arguable issues to raise on mother’s behalf.
This court granted mother leave to personally file a letter setting forth a good cause
showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47
Cal.4th 835, 844 (Phoenix H.).)
Mother filed a letter but failed to set forth a good cause showing that any arguable
issue of reversible error arose from the section 366.26 hearing. (Phoenix H., supra, 47
Cal.4th at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
On April 24, 2020, the children’s aunt picked them up from mother’s home after
their then 16-year-old sister, Layla, stated they were not safe. Layla reported mother
restrained then 12-year-old Z.R. so forcefully that he had difficulty breathing. Z.R. called
for Layla to help him. Mother kept saying to him, “ ‘You have a devil in you. Say your
name.’ ” Z.R. was able to get away from mother by biting her four times. Z.R. told his
aunt mother hit him a couple of weeks before. Mother allowed the children to stay with
their aunt in Stockton.
The children returned to Modesto to the maternal grandparents’ home on April 27,
2020. After the aunt contacted the Modesto Police Department with her concerns for the
children, an officer investigated. Layla reported mother started thinking people were
following them the week before. She took away their cellphones and school laptops.
One night mother decided that there was a demon inside of Z.R. During the night, she
1 Statutory references are to the Welfare and Institutions Code.
2
turned on the television in Layla’s room and turned up the volume. Mother was sleeping
in the living room with Z.R. During the night, Layla could hear Z.R. screaming that he
needed to go to the bathroom and was hungry. Z.R. confirmed that mother held him
tightly for five to six hours and asked him what his name was. He believed she did that
thinking he was possessed. Mother said she was holding him for religious reasons and
refused to expound on the incident. G.R. said mother talked about “ ‘Zoey’ ” who was a
demon inside of Layla.
The police did not have enough evidence to make an arrest or remove the children
but made an emergency child welfare referral after Layla refused to return home and had
to be involuntarily detained in a psychiatric facility. (§ 5150.)
Mother told an emergency response social worker that she had been given multiple
diagnoses over the years but her doctor believed posttraumatic stress disorder (PTSD)
was the most likely diagnosis. The maternal grandmother said mother had a long history
of mental illness. She believed mother was in a state of psychosis, which she had
witnessed before. The grandmother said she filed for guardianship of the children
because she was fearful that mother was going to harm them. Mother was offered the
option of having the children placed with the maternal grandmother but refused.
On May 8, 2020, a social worker from the Stanislaus County Community Services
Agency (agency) took the children into protective custody and filed a dependency
petition on their behalf, alleging under section 300, subdivision (b) mother was unable to
provide them regular care and protect them because of her mental illness and that the
whereabouts of their father, James R., were unknown. The petition further alleged that
Layla was suffering or was at risk of suffering serious emotional damage because of
mother’s conduct. (§ 300, subd. (c).)
Mother appeared at the detention hearing on May 13, 2020, and was appointed
counsel. The court continued the matter to the following day so the agency could attempt
3
to contact James. The parents appeared the following day and James was appointed
counsel. Mother’s attorney waived a formal reading of the petition and advisement of
rights and entered a denial. She also advised the court that mother read the petition and
they discussed it and submitted the matter. Her attorney added that mother was
concerned the language used in the petition was more negative than was necessary. For
example, mother wanted the court to know that the Modesto police were conducting a
welfare check as opposed to a child abuse investigation as it was described in the petition.
Mother also disagreed with the information in the petition but understood the
information. Her attorney asked the court to grant the agency discretion to release the
children to her custody. County counsel and minors’ counsel objected. County counsel
informed the court the children were with their maternal aunt and doing well.
The juvenile court found prima facie evidence the children were described by
section 300 and ordered them detained.
On August 26, 2020, mother’s attorney submitted a three-page offer of proof from
mother that was admitted and attached to the minute order. Counsel submitted the matter
of jurisdiction and the juvenile court sustained the petition and set the dispositional
hearing for a date in September 2020.
On September 16, 2020, the juvenile court ordered the children removed from
parental custody, and ordered reunification services for the parents and ordered mother to
complete a psychological evaluation.
Mother completed a psychological evaluation in December 2020 with Dr. Cheryl
Carmichael. Dr. Carmichael opined that mother has intellectual strengths in that she is
capable of understanding information, learning new information and meeting intellectual
and task standards. However, she had “experienced multiple episodes of deterioration,
likely to the level of psychosis.” In addition, she could not “tolerate the discomfort
associated with how her impaired behavior negatively impacts others” and relied heavily
4
on her diagnosis of PTSD to justify her behavior. Dr. Carmichael did not believe mother
could “rectify her behavioral and psychological style within a reasonable period of time
to successfully reunify” with the children.
By the six-month review hearing in February 2021, mother was on medication and
engaged in individual counseling. None of the children wanted to have contact with her.
They were receiving counseling to deal with their emotions and appeared to be doing
well but did not want to visit or have contact with mother. The agency believed family
counseling would benefit mother and the children when their clinicians deemed it
appropriate. It recommended mother participate in a second psychological evaluation to
determine if she could benefit from services.
The juvenile court found mother made fair progress at the six-month review
hearing on February 24, 2021, continued reunification services to the 12-month review
hearing and ordered mother to complete a second psychological evaluation.
In the intervening months, mother participated in individual counseling and
completed a second psychological evaluation with Dr. Edward Moles. She saw a
psychiatrist once a month who said mother did not have schizophrenia. Rather, she was
being treated for PTSD with a low dose of an antidepressant. The children did not want
to visit mother and 17-year-old Layla did not want to reunify with her. The agency
opined it would be detrimental to return the children to mother’s custody and
recommended the juvenile court terminate mother’s reunification services but continue
services for father and grant the agency discretion to begin overnight visits with him and
the children.
Dr. Moles issued his report of mother’s psychological evaluation on June 23,
2021. Under significant earlier behaviors, Dr. Moles reported that on October 1, 2012,
mother went to the Social Security office with G.R. and Z.R. to apply for Social Security
income. She gave the worker a note stating that she wanted to drown her children. She
5
explained the demon told her to drown them. She said she was diagnosed with bipolar
disorder and prescribed medication. She was involuntarily detained and placed in a
psychiatric facility. (§ 5150.) The following December, mother went to the Children
Crisis Center and said she was not feeling well and had been diagnosed with
schizophrenia. She stated, “ ‘My demons are scaring me.’ ” She said she was concerned
that something might happen to the children. Two other reports in 2012 indicated that
mother had bipolar disorder and schizophrenia.
Dr. Moles diagnosed mother with PTSD and schizophrenia, paranoid type. Her
mental illness was chronic, additional reunification efforts would not enable her to
adequately care for her children and there were not additional services he would
recommend. He reported she had visual and auditory hallucinations and delusions of
demons, apprehension of demons being a threat to her children, a belief that her daughter
had a demon called “ ‘Zoey’ ” and paranoid beliefs that her neighbors were recording her
and the children’s computers and cellphones were being used to listen to her.
In July 2021, mother filed a section 388 petition, asking the juvenile court to
return the children to her custody and dismiss the dependency action.
On August 30, 2021, the juvenile court conducted an evidentiary hearing on
mother’s section 388 petition and a contested 12-month review hearing. The court denied
mother’s section 388 petition, terminated her reunification services and continued
services for James to the 18-month review hearing on October 13, 2021.
By October 2021, James completed his case plan. The agency recommended the
juvenile court continue services for him. On October 13, 2021, the court continued the
18-month review to January 5, 2022.
In December 2021, the agency filed a report for the 18-month review hearing,
recommending the juvenile court terminate James’s reunification services and set a
section 366.26 hearing to establish a permanent plan of legal guardianship for the
6
children with her current caregivers. James completed his court-ordered services and
demonstrated safe parenting. However, G.R. and Z.R. did not want to begin a trial visit
with him or reunify with him and he had not taken any initiative beyond weekend visits
to enable the agency to ensure he was meeting the children’s needs.
The 18-month review hearing was continued and conducted on January 12, 2022.
The juvenile court terminated James’s reunification services and set a section 366.26
hearing for May 12, 2022.
In its report for the section 366.26 hearing, the agency recommended a permanent
plan of legal guardianship for G.R. and long-term foster care for Z.R.
Mother appeared at the section 366.26 hearing with her attorney who asked the
juvenile court to consider dismissing the matter and returning the children to mother’s
custody. James did not personally appear. His attorney submitted the matter and told the
court James agreed to the guardianship.
The juvenile court denied mother’s request and acknowledged her disagreement,
stating “I understand you disagree, that you don’t believe that this entire record or these
proceedings have been true, and I respect your truth. However, my ruling is in opposition
to that, and I will be following the [a]gency’s recommendation based on all of the
evidence before me.” The court ordered Z.R. into a permanent plan of foster care with a
concurrent plan of placement with a fit and willing relative and set a postpermanency
plan review hearing for November 3, 2022. The court ordered G.R. into a legal
guardianship and dismissed its dependency jurisdiction.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to raise claims of reversible
error or other defect and present argument and authority on each point made. If the
7
appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th
952, 994.)
By the time a dependency case reaches a section 366.26 hearing, there are few
options available to the juvenile court. Indeed, “ ‘the sole purpose of the section 366.26
hearing is to select and implement one of the listed permanent plans.’ ” (In re
Christopher M. (2003) 113 Cal.App.4th 155, 160.) The legislative preference is “for
adoption over legal guardianship over long-term foster care.” (San Diego County Dept.
of Social Services v. Superior Court (1996) 13 Cal.4th 882, 885.)
Mother does not argue the juvenile court erred in ordering permanent plans of
legal guardianship and long-term foster care for G.R. and Z.R. Rather, she seeks to raise
issues from the detention hearing. She claims her attorney submitted on detention against
her wishes, did not defend her when the juvenile court ruled on the petition without
allowing her to speak, altered her statement demanding her rights to religious freedom,
and failed to submit supporting documents that contradicted the agency’s reports against
her. She filed two motions asking this court to take judicial notice of 10 exhibits, which
we denied.
We conclude mother forfeited any issue regarding the children’s detention by
failing to timely raise it on appeal. The juvenile court’s ruling on detention was issued on
May 14, 2020. In order to challenge the manner in which the agency initially removed
her children, mother was required to raise it on appeal from the juvenile court’s
dispositional order. However, she did not. Consequently, it is not reviewable. (In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [dispositional orders are the first
appealable judgment; unappealed dispositional orders are final and binding].)
Finally, by failing to raise any issues from the juvenile court’s findings at the
termination hearing, mother has not shown good cause that an arguable issue of
reversible error arose from the court’s order terminating her parental rights. Further,
8
though we are not required to do so, we have reviewed the record as it relates to the
termination hearing and have found no arguable issues for briefing. (Phoenix H., supra,
47 Cal.4th at pp. 841–842.) Consequently, we dismiss the appeal.
DISPOSITION
This appeal is dismissed.
9 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483244/ | Filed 11/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re JHONNY S., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A164489
v.
JHONNY S., (Contra Costa County
Defendant and Appellant. Super. Ct. No. J1700117)
This is an appeal from a juvenile court order denying the petition of
defendant Jhonny S. to dismiss his juvenile delinquency petition after he
successfully completed probation and the Division of Juvenile Justice (DJJ)
granted him an honorable discharge. Jhonny argues that Welfare and
Institutions Code1 section 1179, subdivision (d) requires a juvenile court to
grant the petition to dismiss of a ward who has obtained honorable discharge.
We agree and, thus, reverse.
1Unless otherwise stated, all statutory citations are to the Welfare and
Institutions Code.
1
PROCEDURAL BACKGROUND2
On December 12, 2018, the juvenile court committed Jhonny to the DJJ
for a maximum term of confinement of four years after he admitted on an
amended petition under Welfare and Institutions Code section 602
committing one felony count of assault with force likely to cause great bodily
injury (Pen. Code, § 245, subd. (a)(4)).
On November 30, 2020, Jhonny’s wardship and probation were
successfully terminated, and on October 25, 2021, the DJJ granted him an
honorable discharge.
On December 9, 2021, Jhonny filed a petition to have his juvenile
record sealed and his petition dismissed pursuant to sections 781 and 782.
Jhonny argued, inter alia, that under section 1179, subdivision (d), dismissal
of his juvenile petition was mandatory because the DJJ granted him an
honorable discharge.
On January 27, 2022, the juvenile court granted Jhonny’s petition to
have his juvenile record sealed but declined to dismiss his petition, citing
section 782. The next day, Jhonny filed a timely notice of appeal.
2 This case raises a single legal issue rooted in principles of statutory
interpretation. Accordingly, the underlying facts of this case are not
relevant. Nonetheless, the People, in the respondent’s brief, set forth a full
narrative of the original charges against Jhonny, which included forcible rape
and sexual penetration by a foreign object, taken largely from a 2016 police
report filed by Jane Doe 1, one of the alleged victims. In doing so, the People
neglect to add that, after a five-day contested jurisdictional hearing at which
13 witnesses testified, the juvenile court ultimately dismissed all but a single
felony sexual assault count related to another victim, Jane Doe 2. Thus, the
facts set forth in the respondent’s brief were never found true in court and
are wholly irrelevant to the issue raised in this appeal. We share Jhonny’s
expression of consternation with the People’s conduct in this regard.
2
DISCUSSION
The sole issue on appeal is whether section 1179, subdivision (d)
required the juvenile court to dismiss Jhonny’s section 602 petition based on
the honorable discharge he obtained from the DJJ, or whether the court
properly exercised its discretion under section 782 to decline to dismiss it.
This purely legal issue involving statutory interpretation is reviewed de novo.
(In re David T. (2017) 13 Cal.App.5th 866, 871 (David T.).)
“Our fundamental task in construing a statute ‘is to ascertain the
Legislature’s intent [and] effectuate the law’s purpose. [Citation.] We begin
our inquiry by examining the statute’s words, giving them a plain and
commonsense meaning. [Citation.] In doing so, however, we do not consider
the statutory language “in isolation.” [Citation.] Rather, we look to “the
entire substance of the statute . . . in order to determine the scope and
purpose of the provision . . . . [Citation.]” [Citation.] That is, we construe the
words in question “ ‘in context, keeping in mind the nature and obvious
purpose of the statute . . . .’ [Citation.] [Citation.]” We must harmonize “the
various parts of a statutory enactment . . . by considering the particular
clause or section in the context of the statutory framework as a whole.”
[Citations.] We must also avoid a construction that would produce absurd
consequences, which we presume the Legislature did not intend.
[Citations.]’ ” (In re Greg F. (2012) 55 Cal.4th 393, 406 (Greg F.).)
Below, the juvenile court sided with the People in finding that under
section 782 it had discretion, which it utilized, to deny Jhonny’s request to
dismiss his juvenile petition. On appeal, Jhonny contends the court acted in
disregard of the mandatory language in section 1179, subdivision (d)
requiring dismissal. To decide which position is correct, we turn to the
statutory language. Three separate provisions, identified post, are relevant.
3
Section 782 currently provides: “A judge of the juvenile court in which
a petition was filed may dismiss the petition, or may set aside the findings
and dismiss the petition, if the court finds that the interests of justice and the
welfare of the person who is the subject of the petition require that dismissal,
or if it finds that he or she is not in need of treatment or rehabilitation. The
court has jurisdiction to order dismissal or setting aside of the findings and
dismissal regardless of whether the person who is the subject of the petition
is, at the time of the order, a ward or dependent child of the court. Nothing
in this section shall be interpreted to require the court to maintain
jurisdiction over a person who is the subject of a petition between the time
the court’s jurisdiction over that person terminates and the point at which his
or her petition is dismissed.”3
Section 1179, in turn, provides in relevant part: “(a) Each person
honorably discharged by the Board of Juvenile Hearings shall thereafter be
released from all penalties or disabilities resulting from the offenses for
which the person was committed, including, but not limited to, penalties or
disabilities that affect access to education, employment, or occupational
licenses. . . . [¶] . . . [¶] (d) In the case of a person granted an honorable
discharge, the Department of Corrections and Rehabilitation, Division of
Juvenile Facilities shall immediately certify the discharge or dismissal in
writing, and shall transmit the certificate to the committing court and the
Department of Justice. The court shall thereupon dismiss the accusation and
the action pending against that person.”
Finally, section 1772, subdivision (a) provides: “Subject to
subdivision (b) [not relevant here], every person discharged by the Board of
3Effective January 1, 2023, section 782 is amended per Senate Bill No.
1493. (Stats. 2022, ch 197, § 38, No. 4 Deering’s Adv. Legis. Service, p. 159.)
4
Juvenile Hearings may petition the court that committed him or her, and the
court may upon that petition set aside the verdict of guilty and dismiss the
accusation or information against the petitioner who shall thereafter be
released from all penalties and disabilities resulting from the offense or crime
for which he or she was committed, including, but not limited to, penalties or
disabilities that affect access to education, employment, or occupational
licenses.”
Comparing these statutes, only one, section 1179, squarely addresses
the court’s authority to dismiss a juvenile petition where, as here, the
juvenile has obtained an honorable discharge from the DJJ. Specifically,
subdivision (d) of this statute provides that where an individual has been
“granted an honorable discharge,” two actions are required. First, the
Department of Corrections and Rehabilitation, Division of Juvenile Facilities,
“shall immediately certify the discharge or dismissal in writing, and shall
transmit the certificate to the committing court . . . .” Second, the court “shall
thereupon dismiss the accusation and the action pending against that
person.” (§ 1179, subd. (d).)
On the other hand, section 1772, subdivision (a) provides more
generally that where an individual “discharged by the Board of Juvenile
Hearings” petitions the juvenile court to dismiss his or her juvenile petition,
the court “may” grant the petition and thereby release him or her from “from
all penalties and disabilities resulting from the offense or crime for which he
or she was committed . . . .” (See In re J.S. (2015) 237 Cal.App.4th 452, 458
[“Under section 1772, subdivision (a), whether honorably discharged,
generally discharged or dishonorably discharged, any youth can also petition
the juvenile court to set aside the verdict of guilty and dismiss the accusation
5
or information against the youth, and thereafter the youth would be eligible
for release from all penalties and disabilities”].)
Section 782 likewise gives the court discretion to dismiss a juvenile
petition. However, section 782 is even more general than section 1772 in that
the individual seeking dismissal need not be discharged at all. Regardless of
whether “ ‘the person who is the subject of the petition is, at the time of the
order, a ward or dependent child of the court,’ ” the court “ ‘may dismiss the
petition, or may set aside the findings and dismiss the petition, if the court
finds that the interests of justice and the welfare of the person who is the
subject of the petition require that dismissal, or if it finds that he or she is
not in need of treatment or rehabilitation.’ ” (David T., supra, 13 Cal.App.5th
at p. 873.) Thus, “section 782 is a general dismissal statute, similar in
operation to Penal Code section 1385.” (Ibid.)
Applying the standard principles of interpretation, we draw two
immediate conclusions. First, the language in these statutes is clear such
that we need not resort to legislative history. (Greg F., supra, 55 Cal.4th at
p. 408.) Second, while these statutes deal with the same subject matter
(dismissal of a juvenile petition), there is a conflict among them arising from
the Legislature’s choice of mandatory language in section 1179,
subdivision (d) (the court “shall” dismiss) and discretionary language in
sections 782 and 1772 (the court “may” dismiss). Under these circumstances,
the law is clear that the specific statute must prevail. (Greg F., supra, 55
Cal.4th at p. 407.) Accordingly, because only section 1179, subdivision (d)
addresses the specific issue raised here of the dismissal of the petition of an
individual who has obtained honorable discharge from the DJJ, we agree
with Jhonny this provision governs his case.
6
Offering further guidance is People v. Navarro (1972) 7 Cal.3d 248
(Navarro), a case cited by both parties, which examined the interplay of these
provisions at length. The court first explained: “Section 1772 is contained in
division 2.5, ‘Youths’ (§ 1700 et seq.) in article 4, ‘Powers and Duties of the
Youth Authority,’ of the Welfare and Institutions Code. . . . Division 2,
‘Children,’ contains . . . the Juvenile Court Law (§ 500 et seq. [including
section 782]) and . . . ‘Institutions for Delinquents’ (§ 1000 et seq. [including
section 1179]). . . . The provisions of divisions 2 and 2.5 necessarily overlap
and must be considered together.” (Navarro, supra, at pp. 273–274, italics
added.) The court then identified section 1179 as “[a] provision somewhat
similar to section 1772 . . . .” (Navarro, supra, 7 Cal.3d at p. 274.) “Section
1179, like section 1772, confers an absolute right, where and as soon as
honorable dismissal or discharge has occurred, upon persons affected to be
released ‘from all penalties or disabilities resulting from the offenses for
which they were committed.’ In addition it contains mandatory language
directing the Youth Authority [now the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities] upon such final discharge or
dismissal to ‘immediately certify such discharge or dismissal in writing’ and
to ‘transmit the certificate to the court by which the person was committed.’
The court is required to ‘thereupon dismiss the accusation and the action
pending against such person.’ No clearer language could have been used to
express the legislative intent as to section 1179.” (Navarro, supra, at p. 274,
italics added.)
Thus, based on section 1179’s clear language, the Navarro court held
that “upon receiving his certificate of honorable discharge Navarro was
entitled as a matter of right to have . . . the committing court take the
procedural steps required by sections 1179 and 1772.” (Navarro, supra, 7
7
Cal.3d at p. 278.) In so holding, the court noted, “In section 1772 the phrase
reading ‘and every person discharged may petition the court which committed
him, and the court may upon such petition set aside the verdict of guilty and
dismiss the accusation or information against the petitioner who shall
thereafter be released from all penalties and disabilities resulting from the
offense or crime for which he was committed,’ (italics added [by Navarro])
confers discretionary power upon the court to grant this relief on such
showing as to the court seems satisfactory, after application by the person
who did not receive an ‘honorable’ discharge.” (Navarro, supra, at p. 278.)
The Navarro decision fully supports our conclusion that the juvenile
court erred in this case by applying the discretionary language of section 782
as a basis for denying Jhonny’s petition to dismiss. Just as the defendant in
Navarro, Jhonny, “upon receiving his certificate of honorable discharge . . .
was entitled as a matter of right” to have the juvenile court take the
procedural step required by section 1179, subdivision (d) of dismissing his
petition. (Navarro, supra, 7 Cal.3d at p. 278.) Accordingly, the court’s order
of January 27, 2022, denying Jhonny’s request for dismissal must be
reversed.
DISPOSITION
The juvenile court’s denial of Jhonny’s petition to dismiss his juvenile
petition, dated January 27, 2022, is reversed. On remand, the juvenile court
is directed to apply section 1179, subdivision (d) to the facts of this case and,
if the statutory criteria are met, to dismiss said petition in accordance with
the statute’s mandatory language.
8
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Burns, J.
A164489/People v. Jhonny S.
9
A164489/People v. Jhonny S.
Trial Court: Superior Court of the County of Contra Costa
Trial Judge: Barbara C. Hinton
Counsel: Jeffrey A. Glick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and
Jeffrey M. Laurence, Assistant Attorneys General,
Rene A. Chacon and Masha A. Dabiza, Deputy
Attorneys General, for Plaintiff and Respondent.
10 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483254/ | Filed 11/10/22 Davis v. Porsche Cars of North America CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
EARNEST A. DAVIS,
Plaintiff and Appellant, E077395
v. (Super.Ct.No. RIC2001180)
PORSCHE CARS OF NORTH OPINION
AMERICA et al.,
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.
Affirmed.
Earnest A. Davis, in pro. per., for Plaintiff and Appellant.
Brownfield Law, Nevin C. Brownfield; Sweeney and Michael P. Sweeney for
Defendant and Respondent, Porsche Cars North America, Inc.
Law Office of Mark W. Hansen and Mark W. Hansen for Defendants and
Respondents, Mark Bowman and Christopher Baesen.
1
No appearance by Defendant and Respondent, Edward McRae.
No appearance by Defendant and Respondent, Doktor Ingenieur Honoris Causa
Ferdinand.
No appearance by Defendant and Respondent, Adrian Madrid.
In 2018, after his insurance company awarded him $34,000 for the total loss of his
car due to irreparable electrical damage, plaintiff Earnest A. Davis sued the insurance
1
company (GEICO ) and the Porsche dealership GEICO had selected for repairs, alleging
they had conspired together to intentionally damage and refuse to repair his car so a
preferred customer of the repair shop could purchase it. That lawsuit, Earnest Davis v.
Walter’s Auto et al., Riverside County Superior Court case No. RIC1806371 (Davis I),
was dismissed at the pleading stage after the judge determined all of the claims were
time-barred, and we upheld that ruling on appeal. (Davis v. Government Employees
Insurance Company (Aug. 15, 2022, E074317) [nonpub opn.].)
Several months after dismissal of that action, Davis filed a nearly identical lawsuit
against the car’s manufacturer—Porsche Cars North America, Inc. (Porsche)—and two
GEICO employees alleged to have some involvement in the adjustment of his claim—
Mark Bowman and Christopher Baesen. Because Davis’s new claims were based on the
same alleged facts as his previously dismissed claims, Baesen and Bowman responded by
filing a demurrer arguing the suit was time-barred, and Porsche made the same argument
in a motion for judgment on the pleadings. Unsurprisingly, the trial judge agreed the
1 GEICO stands for Government Employees Insurance Company.
2
claims were time-barred and sustained the demurrer and granted the motion for judgment
on the pleadings, both without leave to amend. However, before entering judgment on
that basis, the judge dismissed the entire lawsuit for an entirely independent reason:
Davis’s failure to file proofs of service of summons as to all of the defendants.
Davis now appeals from the judgment dismissing his second lawsuit. He argues
the judge erred by failing to enter default against Porsche, Baesen, and Bowman. We find
Davis’s argument baseless and affirm.
I
FACTS
A. The Previous Lawsuit
In April 2018, representing himself, Davis sued Riverside Porsche dealership
Walter’s Auto Sales and Service, Inc. and its service manager (collectively, Walter’s) for
$2.2 million, alleging they intentionally vandalized his 1998 Porsche 993 Series 911
Carrera Cabriolet so they could pressure him into selling it to another customer. Later on,
Davis added GEICO as a defendant, claiming they conspired with Walter’s to deem his
car a total loss.
Davis alleged his car was damaged when a tow truck operator dispatched by
GEICO to jumpstart the engine placed the cables on the wrong battery terminals,
resulting in an unusual electrical surge. GEICO selected Walter’s to perform the repairs,
and Walter’s determined the car had suffered severe electrical damage and needed a new
passenger compartment main wiring harness. According to Davis, the repairs were going
3
well until Walter’s decided they’d rather sell his car to a customer who collected rare
automobiles. To achieve that end, Walter’s removed the new passenger compartment
main wiring harness they had installed, sent it back to the manufacturer, and told Davis
the damage was irreparable because a necessary part was permanently out of stock.
GEICO adjusted Davis’s claim to a total loss and the umpire appointed under the terms of
the insurance contract issued a binding award of $34,000, which fell far short of the
$107,522 Davis claimed his car was worth.
Davis’s specific allegations are summarized in detail in our previous opinion. For
our purposes, it suffices to say Davis alleged in his first three complaints a timeline of
events that demonstrated he knew Walter’s was engaged in misconduct as early as
November 2014 and certainly by the end of January 2015.
GEICO and Walter’s demurred on several grounds, including statute of
limitations. They argued Davis’s claims accrued, at the latest, in January 2015. Davis—
who was represented by counsel by that time—did not oppose GEICO’s demurrer, and as
a result, the trial judge dismissed the claims against GEICO with prejudice. As to the
claims against Walter’s, the judge agreed they had accrued in January 2015 at the latest
and therefore were barred by the applicable three-year statute of limitations. The judge
sustained Walter’s demurrer without prejudice to give Davis an opportunity to allege
facts explaining why his claims were not time-barred.
Davis’s third amended complaint failed to allege any such facts. Instead, he simply
deleted the allegations showing he learned of misconduct in November 2014 and then
4
again in January 2015 and added a conclusory allegation that he first became aware of the
wrongdoing in July 2016. Shortly after filing this complaint, Davis began representing
himself again. Walter’s demurred, the trial judge sustained the demurrer under the sham
pleading doctrine and entered judgment in favor of the defendants in October 2019.
Davis appealed from that judgment and, as he did in the trial court, he continued to
ignore the statute of limitations issue. Instead, he reiterated his underlying allegations of
conspiracy and levied accusations of incompetence and racism at the trial judge. We
issued an opinion affirming the judgment and explaining why all of Davis’s claims were
time-barred. (Davis v. Government Employees Insurance Company, supra, E074317.)
B. The Current Lawsuit
In March 2020, four and a half months after his first lawsuit was dismissed, Davis
filed this action, which is identical to his first except for the named defendants. Based on
the same alleged set of facts as Davis I, the initial complaint in this lawsuit asserted seven
causes of action against Porsche, Baesen, Bowman, and other defendants not a party to
this appeal. Davis alleged Porsche took part in the conspiracy to defraud him of his car by
preparing a false document to support Walter’s claim that a necessary part was
permanently out of stock. He also added an allegation that, on July 25, 2016, GEICO
denied a “vandalism” claim he had submitted based on Walter’s act of “sabotage” in
removing the newly installed harness.
In July 2020, Porsche filed an answer asserting a general denial and several
affirmative defenses, including the obvious defense of statute of limitations. In October
5
2020, Baesen and Bowman filed a demurrer arguing, among other things, that Davis’s
claims were time-barred. Davis responded by filing an amended complaint that, like his
third amended complaint in Davis I, deleted all of the allegations showing when he first
learned of the alleged misconduct. He also removed five causes of action, leaving only
negligence and trespass to chattels.
On December 10, 2020, Baesen and Bowman filed a demurrer to the amended
complaint, arguing the negligence and trespass to chattels claims were subject to the
sham pleading doctrine and time-barred. In a supporting declaration, their counsel, Mark
Hansen, informed the judge of Davis’s attempts to take their default on the initial
complaint and attached his email correspondence with Davis on the subject. The emails
showed that in September 2020, Hansen had written Davis to say his clients had not been
served with the complaint and that Davis had responded, to Hansen’s surprise, that he had
already filed requests for entry of default against them.
Unaware of any such filings, Hansen searched the register of actions and
discovered Davis had attempted to file “four separate requests for entry of default against
four unspecified defendants on September 15, 2020” but, according to the register, the
court had not accepted the filings “due either to a proof of service not having been filed,
or due to the name of the defendant listed in the request for default not matching the
name of the defendant in the Complaint, or due to both reasons.” Hansen explained that,
based on Davis’s conduct, he decided to “go ahead and finalize and file this demurrer as
6
soon as reasonably possible, thereby avoiding the possible need to incur the expense of
preparing and filing a motion to set aside defaults against my clients.”
On January 13, 2021, Davis filed an opposition to Baesen and Bowman’s
demurrer. The opposition was late and, at 32 pages of argument, far exceeded the 15-
page limit in California Rules of Court, rule 3.1113(d). Despite its length, the opposition
did not address the issue of statute of limitations. Instead, Davis argued Baesen and
2
Bowman should not be allowed to file a demurrer because they were in default. He
claimed he had served them with the complaint on March 25, 2020, and when they didn’t
respond, he filed requests for entry of default against them on May 1, 2020. He argued,
“[t]he 5/1/2020 filings of the requests for entry of default should prevent both defendants
from filing a response, as these requests for entry of default completely cuts off their
respective rights to appear in the action.”
In their reply, Baesen and Bowman argued Davis’s default theory was baseless
because: (1) he had not served them with the initial complaint; (2) the “General Order Re:
Civil Division Emergency Reorganization” that Riverside Superior Court issued on April
22, 2020 in response to the Covid-19 Pandemic had paused the default procedure and was
in effect in May, 2020, when Davis claimed to have filed his requests; and (3) no default
had been taken against them when they voluntarily responded to the initial complaint in
October 2020.
2 Davis devoted most of his opposition to reiterating the arguments from his first
lawsuit that essentially everyone involved in the case was racist and corrupt. As we
explained in our prior opinion, the record contains no support for these claims. (Davis v.
Government Employees Insurance Company, supra, E074317.)
7
In advance of the hearing, Riverside County Superior Court Judge John Vineyard
issued a tentative ruling sustaining the demurrer on the ground the claims were time-
barred. The judge rejected Davis’s default theory on the ground that Davis had never
filed proofs of service of the initial complaint as to Baesen or Bowman (or, for that
matter, Porsche). On February 10, 2021, the judge heard argument from the parties, then
adopted the tentative ruling and sustained the demurrer without leave to amend.
On February 19, 2021, Baesen and Bowman filed a proposed judgment reflecting
the ruling. On February 25, Davis filed a motion for reconsideration, which the judge
denied because it was not based upon any new facts or law. The judge concluded Davis’s
motion was frivolous and, on his own motion, issued an order to show cause as to why
Davis should not be sanctioned in the amount of $1,500. During the same month, Porsche
filed a motion for judgment on the pleadings, arguing, among other things, that Davis’s
complaint was time-barred.
On April 21, 2021, the judge held a hearing on Porsche’s motion followed by a
case management conference. The judge granted the motion, and continued the case
management conference for 60 days, ordering Davis to show cause why his lawsuit
should not be dismissed based on his failure to file proofs of service as to all of the
defendants. On June 16, 2021, the judge sanctioned Davis in the amount of $1,000 for
filing a frivolous motion for reconsideration.
Two days later, on June 18, the judge issued an order dismissing the entire action
based on Davis’s failure to file proofs of service as to Porsche, Baesen, and Bowman.
8
(See Cal. Rules of Court., rule 3.110(b) [“The complaint must be served on all named
defendants and proofs of service on those defendants must be filed with the court within
60 days after the filing of the complaint”].) On June 22, 2021, the judge entered judgment
in favor of defendants and dismissed the action in its entirety.
II
ANALYSIS
As far as we can discern, Davis’s 49-page opening brief contains a single
argument for reversal—that dismissal of his lawsuit was improper because the judge
should have granted his requests for entry of default against Porsche, Baesen, and
Bowman instead. Not only is this argument conclusory (Davis has not provided any legal
or factual support for it), it is also patently baseless because Davis never filed proofs of
service for Porsche, Baesen, or Bowman, nor did he ever actually file any requests for
entry of default. A judge cannot err by failing to grant a request that was never made, and
serving a defendant with the complaint is an obvious prerequisite to obtaining a default
judgment against them. (Code Civ. Proc., § 585; Cal. Rules of Court., rule 3.110.)
But the problem with this appeal is more serious than Davis’s failure to support his
default theory with “cogent argument, legal authority or specific citations to the record on
appeal.” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142,
153.) The bigger issue is that the underlying action “indisputably has no merit” and
Davis’s strategy for pursuing his baseless claims has been to levy equally baseless
9
personal attacks against the judges presiding over his lawsuits. (Malek Media Group,
LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 834 (Malek).)
For the second time, Davis filed a sham pleading with the trial court in an attempt
to avoid the fact his claims are well past the applicable statutes of limitations. That Davis
wasn’t represented by counsel during his second lawsuit is of no consequence. We hold
self-represented litigants to the same standards as attorneys (Kobayashi v. Superior Court
(2009) 175 Cal.App.4th 536, 543), and, more to the point, Davis has been warned on
multiple occasions (by this court as well as by both trial judges) that he cannot avoid the
timing defects in his initial complaints by deleting the troublesome allegations without
explanation in subsequent pleadings. (Owens v. Kings Supermarket (1988) 198
Cal.App.3d 379, 384.)
In addition to his stubborn pursuit of time-barred claims, Davis has also adopted
the same improper approach in this appeal as he did in his previous one. Rather than
address the applicable three-year statute of limitations for trespass to chattels and
negligence resulting in damage to personal property (Code Civ. Proc., § 338 subd. (c)(1)),
he chose to dedicate his briefing on appeal to insulting the judges who dismissed his
lawsuits, accusing them of being corrupt, unintelligent, and racist. Not only are these
arguments unsupported by the record, they are highly inappropriate. “The Court of
Appeal is not . . . [the] forum to peddle far-fetched conspiracy theories . . . disguised as a
legitimate appeal. Nor is it a forum to launch personal attacks against an arbitrator,” or as
is the case here, a judge. (Malek, supra, 58 Cal.App.5th at pp. 835-836.)
10
Under California Rules of Court, rule 8.276, filing an indisputably meritless
appeal is ground for sanctions. (See id., rule 8.276(a)(1) [appellate courts may, even on
their own motion, impose sanctions on a party who files a frivolous appeal]; see also
Malek, supra, 58 Cal.App.5th at pp. 834-837 [imposing sanctions on appellant for filing a
frivolous appeal based on unfounded and offensive conspiracy theories].) Davis has
already been sanctioned once by the trial judge for filing a frivolous motion. If he doesn’t
want to face sanctions again, he would do well to put his inappropriate tactics to rest.
III
DISPOSITION
We affirm. Davis shall bear costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
RAPHAEL
J.
11 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483247/ | Filed 11/10/22 P. v. Nguyen CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049094
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1906750)
v.
TONY KIM NGUYEN,
Defendant and Appellant.
Tony Kim Nguyen appeals from a judgment entered after he pleaded no contest to
being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)),1 carrying a
concealed firearm in a vehicle (§ 25400, subd. (a)(1)), possession of ammunition by a
prohibited person (§ 30305, subd. (a)(1)), and misdemeanor possession of a controlled
substance (Health & Saf. Code, § 11350, subd. (a)). Nguyen contends that the trial court
erred in denying his motion, made under section 1538.5, to suppress evidence seized
during the search of his vehicle. We conclude that the officers did not have probable
cause to search his vehicle, and therefore we reverse and remand for further proceedings.
I. FACTS AND PROCEDURAL BACKGROUND
On the evening of November 4, 2018, San Jose Police Officer Brandon German
conducted an enforcement stop on a car driven by Nguyen after German observed
1
Undesignated statutory references are to the Penal Code.
expired registration tags. Officer Ronald Hisatomi, who was following German in a
separate patrol car, also participated in the traffic stop.2
In response to German’s signaling, Nguyen pulled into a parking lot. As German
walked up to the driver’s side of the car, he could smell burnt marijuana. Nguyen, who
was the driver of the car, immediately handed German his driver’s license. There was a
passenger in the front of the car, and she also provided German with her driver’s license.
German returned to his patrol car to conduct a records check, then he re-
approached and asked if there was anything illegal in the car. In response, Nguyen held
up a jar with marijuana inside it. It was a small jar with a closed lid. German believed
that Nguyen was transporting marijuana illegally because the jar did not appear to him to
be a sealed package issued by a cannabis dispensary. German asked Nguyen for consent
to search the car, but Nguyen declined. German then told Nguyen to step out of the car,
and when he did, German saw a “green leafy-like substance” on the seat and a “vape
pen” in the center console.
As Nguyen stepped out of the car, German smelled the same odor of marijuana,
which he characterized as a “burnt marijuana” smell, that he had noticed when he first
approached the vehicle. German was aware of the difference in smell between marijuana
vapor and marijuana smoke, and what he smelled during the traffic stop was not
marijuana vapor. Hisatomi walked up to Nguyen as he exited the car and told Nguyen
that he could smell marijuana as he approached the car.
After Nguyen exited the car, German announced that he was going to search the
vehicle. German then instructed the passenger to exit the car, and as he patted her down
German asked, “were you guys smoking in the car now?” When the passenger replied,
“no,” German responded, “it just smells like that from before or what?”
2
The facts of the search are taken from the suppression hearing, where the sole
witnesses were German and Hisatomi.
2
German searched under the passenger seat and found two clear baggies containing
cocaine. The officers handcuffed Nguyen and the passenger, then conducted a further
search of car, during which they discovered a semiautomatic gun and ammunition under
the driver’s seat.
Nguyen was charged in a criminal information with four charges related to the
firearm and cocaine recovered during the search of his vehicle. After the information
was filed, Nguyen filed a motion under section 1538.5 to suppress evidence seized during
the search of his car. In denying the motion, the trial court pointed to the footage from
the body-worn cameras and noted that both officers independently stated that they
smelled burnt marijuana. The court stated that it was reasonable for the officers to
conclude, based on this odor of burnt marijuana, that there would be more items in the car
of an illegal nature, and thus there was probable cause to search the car.
After the denial of the suppression motion, Nguyen pleaded no contest to all four
counts in the information. The court placed Nguyen on probation for a two-year term,
and ordered him to serve 188 days in custody. Nguyen filed a timely notice of appeal
from the order denying the motion to suppress.
II. DISCUSSION
On appeal, Nguyen argues that the warrantless search of his vehicle was unlawful
because there were insufficient facts to support the trial court’s conclusion that the search
was supported by probable cause. The People contend that the search was lawful because
the totality of circumstances gave rise to a fair probability that Nguyen’s car contained
contraband or evidence of unlawful marijuana use or possession.
A. Standard of Review
In reviewing the trial court’s ruling on a motion to suppress, we defer to the trial
court’s findings, express or implied, where supported by substantial evidence. (People v.
Brown (2015) 61 Cal.4th 968, 975.) In determining whether the search or seizure was
3
reasonable on the facts found by the trial court, we exercise our independent judgment.
(People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
B. Analysis
The trial court denied the motion to suppress, concluding that under the facts of
this case, the officers had probable cause to search the vehicle. We conclude, based upon
our independent review, that the trial court erred in denying the motion to suppress.
A warrantless search is unlawful under the Fourth Amendment unless is falls
within one of the specifically established and well-delineated exceptions. (Katz v. United
States (1967) 389 U.S. 347, 357.) The automobile exception allows a warrantless search
of a vehicle where an officer has probable cause to believe it contains evidence of a
criminal activity or contraband. (People v. Evans (2011) 200 Cal.App.4th 735, 753.)
Probable cause to search exists “where the known facts and circumstances are sufficient
to warrant a [person] of reasonable prudence in the belief that contraband or evidence of
crime will be found.” (Ornelas v. United States (1996) 517 U.S. 690, 696.) In evaluating
whether a reasonable officer would have probable cause to search, we consider the
totality of the circumstances. (People v. Lee (2019) 40 Cal.App.5th 853, 862.)
Before the passage of Proposition 64, an officer’s observation of the odor of
marijuana or the presence of less than one ounce of marijuana could provide probable
cause to search a vehicle. (See People v. Waxler (2014) 224 Cal.App.4th 712, 719-720.)
In 2016, the voters passed Proposition 64, the Control, Regulate and Tax Adult Use of
Marijuana Act, which legalized the possession of up to 28.5 grams of non-concentrated
cannabis and 8 grams of concentrated cannabis by individuals 21 or older. (Health &
Saf. Code, § 11362.1, subd. (a)(1) & (a)(2).) Subdivision (c) of the statute provides that
“[c]annabis and cannabis products involved in any way with conduct deemed lawful by
this section are not contraband nor subject to seizure, and no conduct deemed lawful by
this section shall constitute the basis for detention, search, or arrest.” (Health & Saf.
Code, § 11362.1, subd. (c).)
4
But while the lawful possession of cannabis and lawful conduct under the statute
may not constitute the basis for a search, “this provision does not apply when the totality
of the circumstances gives rise to a fair probability that an existing cannabis regulation
was violated when the search occurred.” (Blakes v. Superior Court (2021) 72
Cal.App.5th 904, 911 (Blakes).) After the passage of Proposition 64, it remains unlawful
to smoke or ingest cannabis while driving a vehicle. (Health & Saf. Code, § 11362.3,
subd. (a)(7).) Possessing an open container or open package of cannabis products while
driving or riding as a passenger in a vehicle is prohibited. (Id., subd. (a)(4).) Vehicle
Code section 23222, subdivision (b)(1) similarly prohibits a person who is driving from
having “in their possession on their person . . . a receptacle containing cannabis or
cannabis products . . . which has been opened or has a seal broken, or loose cannabis
flower not in a container.” It is also unlawful to drive under the influence of “any drug,”
including cannabis. (Veh. Code, § 23152, subd. (f).)
Here, the odor of burnt marijuana, coupled with the presence of a lawful amount
of marijuana, did not justify the warrantless search of the car.
First, since the passage of Proposition 64, courts have held that “the lawful
possession of marijuana in a vehicle does not provide probable cause to search the
vehicle.” (People v. Hall (2020) 57 Cal.App.5th 946, 948 (Hall).) The People do not
argue that the jar of marijuana possessed by Nguyen was unlawful on the basis that it was
unsealed or because its contents exceeded the amount made legal for possession under
Proposition 64, and indeed, no evidence was presented to support either of these theories.
Instead, the People contend that Nguyen’s presentation of the sealed jar of marijuana in
response to German’s question as to whether he had “anything illegal” in the car is
relevant to the probable cause analysis because it shows that Nguyen believed his
possession of the marijuana was illegal. But the People have provided no support to
explain why Nguyen’s belief that his possession of the jar of marijuana might be
unlawful is relevant to the probable cause analysis. We therefore decline to consider
5
Nguyen’s presentation of the jar of marijuana as relevant to the question of whether there
was probable cause to search his vehicle under the automobile exception.
Second, the odor of burnt marijuana detected by the officers was not enough to
provide probable cause to search the car. The trial court here concluded that the odor of
burnt marijuana supported the reasonable inference that there “may be more in the car of
an illegal nature to allow the search of the car.” This ruling is in conflict with persuasive
appellate cases that have considered whether the odor of marijuana, coupled with a lawful
amount of marijuana, justifies a warrantless search.
In Blakes, a police officer stopped a car based on a tinted windows violation and
discovered that the defendant was driving on a suspended license. (Blakes, supra, 72
Cal.App.5th at p. 908.) When the officer contacted the defendant, he smelled the odor of
burnt marijuana coming from the car, but he did not know if the odor was of freshly burnt
marijuana. (Id. at p. 908.) The officer told the defendant he was going to search the car
because he had smelled burnt marijuana, although he had no information indicating the
defendant was impaired or how recently the defendant had smoked marijuana. (Id. at
p. 909.) During the search of the car, the officer first found a burnt marijuana cigarette
sticking out of a trash receptacle in the center console, and then additional marijuana
cigarettes, a digital scale, and a handgun. (Ibid.)
On a mandamus petition filed after the trial court denied his suppression motion,
the appellate court granted relief, concluding that there was insufficient probable cause to
support the warrantless search under the automobile exception. (Blakes, supra, 72
Cal.App.5th at p. 913.) The court stated that there were two possible illegal uses of
marijuana that could have supported probable cause to believe that a crime was being
committed: driving under the influence of marijuana, and driving with an open container.
(Id. at p. 912.) The court noted that the prosecution had presented no evidence that the
defendant was impaired or that the officers had observed an open container before
searching the car. (Ibid.) Notably, the court added that “[t]he smell of burnt marijuana in
6
a car, where there is no indication it had been recently smoked within, cannot by itself
provide probable cause of driving under the influence.” (Ibid.)
Here, the trial court made an implied finding that the marijuana smell was recent,
but this was not a reasonable inference based on the evidence presented. As was the case
in Blakes, there was no additional evidence to support a theory that Nguyen or his
passenger had recently smoked in the car: there was no evidence of smoke coming from
the car, or other indicia of recent smoking, such as ashes, lighters, matches, or partially-
burnt marijuana cigarettes. Although German observed a vape pen3 in the car before he
searched it, he also stated that what he smelled was not marijuana vapor, so the presence
of the vape pen does not support the conclusion of recent marijuana use in the car. Thus,
because the evidence did not support an inference that marijuana “had been recently
smoked within” the car, the burnt smell of marijuana was not enough “by itself” to
provide probable cause to search the car under the automobile exception. (Blakes, supra,
72 Cal.App.5th at pp. 912-913.)
The appellate court in People v. Johnson (2020) 50 Cal.App.5th 620 (Johnson)
also determined that the smell of marijuana, along with a closed baggie of marijuana, did
not justify a warrantless search of a vehicle. In Johnson, officers approached a parked
car that had a missing registration tag. As an officer neared the vehicle, he smelled the
odor of marijuana, and he saw in plain view on the center console a knotted clear baggie
containing a small amount of marijuana. (Id. at p. 627.) On appeal from the denial of
Johnson’s suppression motion, the court first concluded that the knotted baggie was not
an open container under Health & Safety Code section 11362.3, subdivision (a)(4). (Id.
at p. 634.) Turning to the odor of marijuana, the court observed that because there was
3
The People characterize this device as a “vape pen,” while Nguyen calls it a
“vape battery.” This distinction does not affect our analysis. What is clear is that the
officer saw some form of a vape pen—either partial or whole—but it did not have a THC
vapor cartridge attached to it.
7
no evidence presented about the connection between the smell of marijuana and the
likelihood of finding an open container, evidence related to the marijuana odor “add[ed]
little to the probable cause calculus.” (Ibid.)
As was the case in Johnson, here there was no connection established between the
smell of burnt marijuana and the likelihood of finding evidence of unlawful conduct
related to marijuana. The People appear to contend that the green leafy substance
German observed on the driver’s seat constitutes evidence that Nguyen possessed an
unlawful open container, but there was no evidence presented at the hearing as to the
quantity of this leafy material or even testimony offered that it was indeed marijuana.
(See Hall, supra, 57 Cal.App.5th at p. 958 [declining to consider loose marijuana leaves
and ash as supporting probable cause to search a vehicle where nothing in the record
indicated that the magistrate considered this material as an open container under Health
& Saf. Code, § 11362.3, subd. (a)(4) or loose cannabis flower under Veh. Code, § 23152,
subd. (f)].) With respect to driving under the influence, there was no evidence that
Nguyen drove erratically, or that he appeared to be impaired, and the officers did not
conduct a DUI investigation.
Accordingly, because no connection was established between the smell of
marijuana and the likelihood of finding evidence related to unlawful activity, the
marijuana odor here did not support a conclusion that the officers had probable cause to
search the vehicle. The trial court therefore erred in denying Nguyen’s motion to
suppress.
III. DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with
directions to set aside its order denying the motion to suppress, enter an order granting
the motion, allow defendant to move to withdraw his plea, and conduct further
proceedings consistent with this opinion.
8
_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Grover, J.
______________________________________
Danner, J.
H049094
People v. Nguyen | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483245/ | Filed 11/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re the Marriage of MEREDITH B311966
BLAKE and JEREMIAH (Los Angeles County
LANGER. Super. Ct. No. 17STFL04444)
MEREDITH BLAKE,
Respondent,
v.
JEREMIAH LANGER,
Respondent;
DANIEL S. WOHL,
Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Lawrence P. Riff, Judge. Affirmed.
Garner Health Law Corporation and Craig B. Garner for Appellant.
No appearance for Respondent Meredith Blake.
Stephen Temko for Respondent Jeremiah Langer.
In September 2017, Meredith Blake initiated a marital dissolution
action against her estranged husband, Jeremiah Michael Langer. As that
dissolution action proceeded, the family court granted Langer’s motion to join
as parties Blake’s brother and father (Daniel Wohl and Steven Wohl,
respectively)1 for interfering with the court’s ability to adjudicate the
dissolution action. After Langer filed a joinder complaint against Daniel and
Steven, Daniel filed a motion to disqualify Langer’s attorneys. The court
denied Daniel’s motion, finding it to be frivolous and sanctionable.
Thereafter, Langer filed a motion for attorney fees as sanctions against
Daniel pursuant to Family Code section 271 (section 271) for conduct that
“frustrates the policy of the law to promote settlement of litigation and . . . to
reduce the cost of litigating by encouraging cooperation between the parties
and attorneys.” (§ 271, subd. (a).) At the sanctions hearing, the court ruled
that it would impose sanctions against Daniel for his frivolous
disqualification motion but postponed its final order to allow the parties to
submit additional documentation pertaining to the appropriate amount of the
sanctions award. Between the initial sanctions hearing and the court’s final
order awarding Langer $58,400 in attorney fees, Langer voluntarily
dismissed his joinder complaint against Daniel and Steven.
Daniel appeals from the postdismissal sanctions order. As his sole
contention on appeal, Daniel argues that Langer’s voluntary dismissal of the
joinder complaint divested the trial court of jurisdiction to issue the sanctions
order against Daniel. We disagree and affirm.
1 We refer to Daniel and Steven Wohl by their first names to avoid
confusion. We intend no disrespect.
2
BACKGROUND
The underlying facts are of limited relevance to the issue raised in this
appeal. For context, we briefly recite portions of the factual and procedural
background.2
A. Events Preceding Langer’s Request for Joinder in the Dissolution Action
Blake and Langer married in September 2004 and separated in June
2017. In September 2017, Blake filed the underlying action for dissolution of
marriage.
In January 2018, Langer’s attorneys Elyse Margolin and Tess Cozine
sent an email to MetLife Investors USA Insurance Company (MetLife)
instructing it to maintain the named beneficiaries or covered dependents
under any policy issued to Langer or Blake, including a $2 million term life
insurance policy that had been taken out on Blake (the Blake policy). Langer
and Daniel (Blake’s brother) were the named beneficiaries of the Blake
policy. Langer and Daniel had taken out the policy in 2012 in their capacity
as trustees of the Meredith Blake Irrevocable Trust (the 2012 Blake trust),
which was drafted by Steven (Blake’s father), a trust and estate attorney in
New York. The Blake policy was administered through Brighthouse Life
Insurance Company (Brighthouse).
In August 2018, Steven wrote to Brighthouse and enclosed forms
purportedly assigning the Blake policy to another trust created by Steven,
2 We take portions of the background from our prior opinion (In re
Marriage of Meredith Blake and Jeremiah Michael Langer (B298280, Oct. 27,
2020) [nonpub. opn.] (Marriage of Blake & Langer)), which comprises part of
the record in this appeal. We have also granted Langer’s request to take
judicial notice of the appellate record in Marriage of Blake & Langer.
3
the Blake Issue Irrevocable 2018 Trust (the 2018 Blake trust), for
which Steven was the trustee. In early 2019, Steven sent MetLife and
Brighthouse several emails urging the assignment of the Blake policy
to the 2018 Blake trust. When sending one email (which was also sent
to Langer’s attorneys), Steven inadvertently attached an email he had
sent to Blake in November 2018 in which he stated: “I have reviewed
[your residence trust] and believe I have a method of indefinitely tying
your house up in litigation against [Langer], IN NEW YORK.” Steven
then stated, “My action may well not succeed, but it would have a very
good chance of tying up your house for years—and deterring any would-
be buyer who would be offput 100% from buying a house in litigation,
especially in NY.”
B. Langer’s Motion for Joinder and the Joinder Complaint
On March 13, 2019, Langer filed an ex parte request for order (RFO) in
family court asking the court to grant his motion for joinder of Daniel,
Steven, and the 2012 Blake trust, and requesting the court to enjoin Steven
and Daniel from attempting to modify or transfer the Blake policy or transfer
or interfere with the sale of the family residence. Before the hearing on his
motion, Langer lodged evidence that Daniel and Steven had filed a petition in
New York state court requesting various declarations and orders regarding
the Blake policy, as well as seeking $10,000 in sanctions against Langer and
his attorneys Margolin and Cozine, and $100,000 in punitive damages
against Margolin for interfering with the property and contractual rights of
the 2012 and 2018 Blake Trusts.
4
The family court granted Langer’s original motion for joinder,3 and on
January 29, 2020, Langer filed the operative first amended joinder complaint
(FAC), alleging five causes of action against Daniel and Steven for
conversion; breach of fiduciary duty; wrongful use of civil proceedings;
conspiracy; and ongoing conspiracy. The causes of action were based on the
attempted transfer of the Blake policy, the filing of the New York lawsuit,
and the attempts by Daniel and Steven to interfere with the dissolution
action.
C. Daniel’s Motion to Disqualify Langer’s Attorneys
On May 19, 2020 (one month before Blake filed her prior appeal),
Daniel filed a RFO to disqualify Langer’s attorneys (Margolin and Cozine)
and refer them to the California State Bar for ethical violations. In
substance, Daniel argued that Margolin “provok[ed] the former judge” in the
dissolution action by filing pleadings that referenced Steven’s email to Blake
discussing a plot to thwart the sale of the family residence. Daniel argued
that the email constituted privileged attorney-client material, and thus
Margolin should not have submitted it to the family court.4 In opposition,
Langer argued that Steven was never Blake’s attorney in the dissolution
3 In the prior appeal in this case, we affirmed the court’s order granting
the joinder motion. (See Marriage of Blake & Langer, supra, at p. *54.)
4 Rule 4.4 of the California Rules of Professional Conduct mandates that
a lawyer must promptly notify the sender of a writing, and refrain from
further examining it, whenever “it is reasonably apparent [that the] writing
relat[es] to a lawyer’s representation of a client [and] the writing was
inadvertently sent or produced, and the lawyer knows or reasonably should
know that the writing is privileged or subject to the work product doctrine.”
5
action, and therefore his email to Blake did not constitute privileged
material.
At an October 5, 2020 hearing, the court agreed with Langer and
denied Daniel’s motion to disqualify Langer’s attorneys.
D. Langer’s Motion for Sanctions and the Initial Hearing
Langer filed a motion in part seeking $59,850 in sanctions against
Daniel pursuant to section 271 for filing and prosecuting the frivolous
disqualification motion.5 On January 20, 2021, the court held a hearing on
the motion. The court began by providing its tentative ruling: “With respect
to the motion to disqualify, my motion [sic] is to grant sanctions under 271
against Daniel. . . . [The] motion to disqualify was meritless on a variety of
bases. I told you that when I ruled on it, and I think the bringing of it is
sanctionable under 271.” Following argument of counsel, the court upheld its
tentative ruling “that Daniel should be sanctioned under 271.” Daniel’s
attorney then argued that the “incredibly high” sanctions award Langer had
5 Section 271 provides in relevant part that “the court may base an
award of attorney’s fees and costs on the extent to which the conduct of each
party or attorney furthers or frustrates the policy of the law to promote
settlement of litigation and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys. An award . . .
pursuant to this section is in the nature of a sanction. In making an award
pursuant to this section, the court shall take into consideration all evidence
concerning the parties’ incomes, assets, and liabilities. The court shall not
impose a sanction pursuant to this section that imposes an unreasonable
financial burden on the party against whom the sanction is imposed.” (§ 271,
subd. (a).)
Based on our review of the record, it appears that Daniel filed a 20-
page “Responsive Memorandum of Points and Authorities” in response to
Langer’s motion for sanctions on January 6, 2021. However, Daniel’s
responsive memorandum does not appear in the record on appeal.
6
requested was based on unsupported declarations by his attorneys; and given
Daniel’s own financial situation,6 imposition of any amount of sanctions
would cause him undue hardship and prejudice.
The court ordered Langer’s attorneys to file billing entries reflecting
time spent defending Daniel’s disqualification motion, and it ordered Daniel
to file an income and expense declaration and a declaration identifying any
monies he had placed into trust over the past year. The parties were ordered
to file these documents no later than February 11, 2021, after which the court
would issue a final order.
E. The Voluntary Dismissal, Subsequent Hearing, and Final Order
On January 21, 2021 (one day after the hearing on his motion for
sanctions), Langer served Daniel with a copy of a request to voluntarily
dismiss the FAC without prejudice. Langer filed the request for voluntary
dismissal on February 5, 2021, and a clerk entered dismissal the same day.
On February 11, 2021, Langer’s attorneys filed several billing entries
supporting the request for sanctions. The same day, the court held a
scheduled hearing on matters not relevant here. At the hearing, Daniel’s
attorney appeared “as an officer of the court” and informed the court of
Langer’s voluntary dismissal of the FAC. After summarizing the procedural
history of the case, the court stated: “Now there is nothing in front of us
today. No reason we have to have this debate today. But I gather there is a
dispute as to whether my orders [imposing sanctions on Daniel] survive the
dismissal of the [FAC].”
6 Daniel’s attorney stated that “the majority of all the funds [Daniel] has
have been put into trust or put away specifically for the care and
maintenance” of his son, who was seriously ill and incapacitated.
7
On February 18, 2021, Daniel’s attorney filed a declaration “as an
Officer of the Court, in order to put the Court on notice [that Langer’s
dismissal of the FAC] terminat[ed] the Court’s jurisdiction over Daniel.” The
attorney declared that “Daniel will not be voluntarily filing documents which
may constitute his acquiescence to new jurisdiction by the Court.”
The court issued a final order on February 22, 2021, imposing sanctions
against Daniel in the amount of $58,400. The court noted that at the
January 20, 2021 hearing, it had found “as a matter of fact that Daniel had
violated . . . section 271 by his filing and persisting in prosecuting the plainly
meritless motion to disqualify [Langer’s] counsel.” The court continued, “The
Court was prepared to and could have made a final order that day but the
Court heard from both sides assertions that the other’s factual showing [as to
the proper size of the award] was inadequate. . . . [¶] Although the Court
found on January 20, 2021 that it had sufficient information to make the
sanction order . . . the Court exercised its discretion to allow both sides to
submit further information in support of their respective positions.”
The court concluded that, despite the intervening dismissal of the
FAC, the court retained jurisdiction to award sanctions under section
271 against Daniel. The court reasoned that while it had not found a
case specifically on point relative to section 271, the case law clearly
established “that a trial court retains authority to enter orders for
abuse of the litigation process following a dismissal of the action.”
This appeal followed.
8
DISCUSSION
A. Governing Law and Standard of Review
A plaintiff or cross-complainant has a statutory right to voluntarily
dismiss, with or without prejudice, all or any part of an action or complaint
before the “actual commencement of trial.” (Code Civ. Proc., § 581, subds.
(b)(1), (c).) “Upon the proper exercise of that right, a trial court would
thereafter lack jurisdiction to enter further orders in the dismissed action.”
(Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784.)
“Accordingly, most orders entered after the dismissal are void and have no
effect.” (Pittman v. Beck Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1022
(Pittman); see Paniagua v. Orange County Fire Authority (2007) 149
Cal.App.4th 83, 89.)
“Notwithstanding this general principle, ‘courts have carved out a
number of exceptions to this rule in order to give meaning and effect to a
former party’s statutory rights.’ (Frank Annino & Sons Construction, Inc. v.
McArthur Restaurants, Inc. (1989) 215 Cal.App.3d 353, 357 (Frank Annino).)”
(Pittman, supra, 20 Cal.App.5th at p. 1022.) As with motions related to
attorney fees and costs, trial courts retain “jurisdiction . . . postdismissal and
postjudgment to decide motions for sanctions.” (Pittman, supra, at
pp. 1022−1023, citing Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1126
(Day); Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976 (Eichenbaum);
West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 706; Frank
Annino, supra, at pp. 358−359; see also Manhan v. Gallagher (2021) 62
Cal.App.5th 504, 509–510 (Manhan).)
In this case, the trial court imposed sanctions against Daniel under
section 271 for “conduct [that] furthers or frustrates the policy of the law to
promote settlement of litigation and, where possible . . . reduce the cost of
9
litigation by encouraging cooperation between the parties and attorneys.”
(§ 271, subd. (a); see ibid. [an order imposed under § 271 “is in the nature of a
sanction”].) An order imposing sanctions under section 271 is generally
reviewed for abuse of discretion. (In re Marriage of Falcone & Fyke (2012)
203 Cal.App.4th 964, 995.) However, when a party contends that the trial
court did not have jurisdiction or authority to make a challenged order, we
review the claim de novo. (See Day, supra, 144 Cal.App.4th at pp. 1123–
1124.)
B. The Court Retained Jurisdiction to Impose Sanctions Against Daniel
Daniel acknowledges the line of cases upholding a trial court’s
retention of postdismissal jurisdiction to decide motions for sanctions and
attorney fees. (E.g., Eichenbaum, supra, 106 Cal.App.4th 967; Barry v. State
Bar of California (2017) 2 Cal.5th 318.) He contends, however, that following
dismissal, sanctions may only be imposed when “the party against whom
sanctions were forthcoming filed the dismissal.” Because here Langer
voluntarily dismissed the FAC against Daniel, and Langer was the proponent
of the sanctions motion, Daniel contends the dismissal rendered the family
court without jurisdiction to award sanctions in Langer’s favor under section
271.
Contrary to Daniel’s contention, postdismissal jurisdiction to award
sanctions is not confined to cases in which the plaintiff voluntarily dismissed
a complaint to avoid a defendant’s sanctions motion for bringing a frivolous
complaint. In Day, the court considered whether a trial court had jurisdiction
to hear a request for sanctions in a different procedural context, where the
sanctions motion was filed by the defendant after the entry of summary
judgment against the plaintiff. The court acknowledged that “[t]he reason for
10
allowing a sanctions motion to be filed and decided after a plaintiff's
voluntary dismissal is particularly strong, since a contrary rule would allow a
party to ‘avoid sanctions by simply dismissing the action without prejudice.’
(Frank Annino, supra, 215 Cal.App.3d at p. 359.)” (Day, supra, 144
Cal.App.4th at p. 1125.) However, the court held that the “procedural
distinction” between the case before it and cases involving a plaintiff’s
voluntary dismissal “does not affect the analysis of the jurisdictional
question.” (Day, supra, at p. 1125.)
Rather, the Day court held, whether a court has jurisdiction to hear a
motion after a dismissal or judgment depends on whether the motion
concerns a “collateral proceeding” as opposed to one directly based on the
merits. (Day, supra, 144 Cal.App.4th at p. 1125; see Pittman, supra, 20
Cal.App.5th at p. 1022 [“When a postdismissal or postjudgment motion
involves collateral statutory rights, then the court may retain jurisdiction to
determine and enforce those rights”].) “[A] sanctions motion is a collateral
proceeding that is not directly based on the merits of the underlying
proceeding. This would be true whether the final resolution of the underlying
matter is by voluntary dismissal or a judgment. Further, a trial court’s
consideration of a postjudgment sanctions request does not undermine the
finality of the merits of the judgment.” (Day, supra, at p. 1125; see Manhan,
supra, 62 Cal.App.5th at p. 510 [imposition of statutory sanctions constitutes
“a collateral issue not directly based on the merits of the underlying
proceeding”].) Day thus concluded the trial court had jurisdiction to consider
the defendant’s postjudgment motion for sanctions. (Day, supra, at p. 1126;
see also Olcott v. Delaware Flood Co. (10th Cir. 1996) 76 F.3d 1538, 1555
[after district court had granted defendants’ motion to dismiss the action, it
still had jurisdiction to impose monetary sanctions against them for discovery
11
abuses under Fed. Rules Civ. Proc., rules 16(f) and 37(b)]; Wojan v.
General Motors Corp. (7th Cir. 1988) 851 F.2d 969, 973 [district court’s
authority to rule on plaintiff’s sanctions motion under Fed. Rules Civ.
Proc., rule 11 (Rule 11) for filing pleadings for improper purpose “is in no
way diminished if and when subject matter jurisdiction is ultimately
found lacking in the underlying case”].)
We conclude that the trial court in this case retained jurisdiction
to impose postdismissal sanctions against Daniel under section 271.
The sanctions motion was based on Daniel’s frivolous motion to
disqualify Langer’s attorneys. Deciding whether sanctions were
justified did not bear on the merits of Langer’s joinder complaint filed
against Daniel. Rather, the decision concerned the collateral issue
whether Daniel “‘has abused the judicial process, and, if so, what
sanction would be appropriate. Such a determination may be made
after the principal suit has been terminated.’” (Day, supra, 144
Cal.App.4th at p. 1125, quoting Cooter & Gell v. Hartmarx Corp. (1990)
496 U.S. 384, 395–396.)
Retaining jurisdiction to decide such a motion is consistent with
the particular purpose of section 271, which is designed to punish “a
party [who] has unreasonably increased the cost of litigation.” (In re
Marriage of Corona (2009) 172 Cal.App.4th 1205, 1227; see Parker v.
Harbert (2012) 212 Cal.App.4th 1172, 1178 [court may impose section
271 sanctions for delaying resolution of issues and “wast[ing] the court
and the parties’ time”].) The harm caused by Daniel’s prosecution of a
frivolous motion had occurred prior to the dismissal of the FAC. The
voluntary dismissal of the FAC by Langer did not “rectify the harm
already done by the filing of a groundless [motion or] extinguish the
12
court’s interest in deterring and punishing the waste of judicial resources.”
(Pittman, supra, 20 Cal.App.5th at p. 1024; accord, Cooter, supra, 496 U.S. at
p. 398 [“[T]he harm triggering Rule 11’s concerns has already occurred.
Therefore, a litigant who violates Rule 11 merits sanctions even after a
dismissal”.])
Thus, we conclude the trial court’s decision to impose sanctions under
section 271 fell within its inherent authority to redress abusive litigation
conduct that had already taken place. The timing of Langer’s voluntary
dismissal did not deprive the trial court of jurisdiction to impose
postdismissal sanctions against Daniel.7
DISPOSITION
The trial court’s order sanctioning Daniel Wohl in the amount of
$58,400 is affirmed. Costs on appeal are awarded to respondent.
CERTIFIED FOR PUBLICATION
STONE, J.*
We concur:
MANELLA, P. J. COLLINS, J.
7 In light of our conclusion, we need not consider the alternative
arguments Langer has raised in favor of affirmance, including his contention
that Daniel remained joined as a party in the dissolution action following
Langer’s dismissal of the FAC.
*
Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
13 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483243/ | Filed 11/10/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A163046
v.
MARIO GARCIA, (San Mateo County
Super. Ct. No. 16NF003723A)
Defendant and Appellant.
In 2018, defendant Mario Garcia was sentenced to 24 years in prison
after a jury found him guilty of assault on a peace officer with a
semiautomatic firearm (Pen. Code, § 245, subd. (d)(2))1 and other counts. We
affirmed the judgment in part but remanded to allow for various corrections
to the sentence. (People v. Garcia (Jul. 14, 2020, A154016) [nonpub. opn.]
(Garcia).) In this second appeal, defendant contends he is entitled to
resentencing under section 1170, subdivision (b), as amended by Senate Bill
No. 567 (2020–2021 Reg. Sess.) (Senate Bill 567). He additionally contends
the trial court abused its discretion in denying his request for a continuance
of the sentencing hearing so that he could develop facts to support a motion
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this
opinion is certified for publication with the exception of part A of the
Discussion.
1 Further unspecified section references are to the Penal Code.
1
for discovery under the California Racial Justice Act of 2020 (Stats. 2020,
ch. 317, § 1) (CRJA).
In the published portion of this opinion, we conclude defendant was
entitled to a reasonable continuance to prepare his motion for discovery
under the CRJA. In the unpublished portion of this opinion, we conclude
defendant is also entitled to resentencing under section 1170, subdivision (b).
Accordingly, we will reverse the judgment and remand for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was arrested after engaging in a physical altercation at his
home with the partner of his sister, and then firing a semiautomatic handgun
at one of the responding police officers. He was charged by information with
nine felony counts, as follows: assault on a peace officer with a
semiautomatic firearm (§ 245, subd. (d)(2), count one) plus firearm use
enhancements (§§ 12022.53, subd. (b) and 12022.5, subds. (a) and (d));
exhibiting a deadly weapon to a police officer to resist arrest (§ 417.8, count
two); assault with a semiautomatic firearm (§ 245, subd. (b), count three);
assault by means likely to produce great bodily injury (§ 245, subd. (a)(4),
count four); assault with a deadly weapon (§ 245, subd. (a)(1), count five);
criminal threats (§ 422, subd. (a), counts six and nine); resisting an executive
officer (§ 69, count seven); and possession of an assault weapon (§ 30605,
subd. (a), count eight). At trial, on motion of the prosecutor, the court
dismissed count nine. The jury found defendant not guilty of counts two and
seven but found him guilty of count one and found the section 12022.53,
subdivision (b) allegation true. The jury further found defendant guilty of
counts three, four, five, and eight, and guilty of the lesser included offense of
attempted criminal threats (§§ 664/422) for count six.
2
In March 2018, the trial court sentenced defendant to a total of 24
years in prison. Defendant appealed, and in July 2020, we affirmed the
judgment in part, but remanded the matter so that the trial court could stay
the sentence on count four or count five, correct defendant’s custody credits,
and amend the abstract of judgment. (Garcia, supra, A154016.)
In March 2021, defendant filed a motion in pro per under section 1385
to strike the ten-year firearm use enhancement attendant to count one.
Hearings were held in April 2021 to address defendant’s lack of legal
representation, and on May 11, 2021, the trial court appointed Gabriela
Guraiib to represent him. At a hearing on May 12, 2021, Guraiib requested
additional time to prepare, and the trial court granted her until May 14,
2021, to file papers in advance of the sentencing hearing on May 17, 2021.
On May 14, 2021, defendant filed his sentencing brief as well as a
motion to continue the sentencing hearing. In her declaration supporting the
continuance motion, Guraiib stated her intention “to argue additional
matters within the jurisdiction of the court such as a request to strike the
enhancement allegation pursuant to [section] 12022.53 as well as argue
matters under [section] [745] that would be crucial for the court’s analysis
under what is considered in the ‘interest of justice’ for purposes of the
imposition of the enhancement. I am unable to obtain information that
would support those arguments in a two-day timeframe afforded to briefing
the issues.”
In his sentencing brief, defendant argued in relevant part that he had
recourse under section 745 “to show that a longer or more severe sentence
was imposed on the defendant than was imposed on other similarly situated
individuals convicted of the same offense, and longer or more severe
sentences were more frequently imposed for that offense on people that share
3
the defendant’s race, ethnicity, or national origin than on defendants of other
races, ethnicities, or national origins in the county where the sentence was
imposed.” In support, the brief cited and attached various reports, articles,
and research on racial disparities in the criminal justice system.2
At the sentencing hearing, the trial court heard arguments from
counsel, including Guraiib’s remarks that “there’s a new law that just passed
in January of 2021 that shows that usually Latinos or the Latino population
that are being sentenced are being sentenced harsher than their
counterparts. And that also is in front of the Court.” The court began its
remarks by stating it did not believe it had jurisdiction to strike the firearm
use enhancement “given the remand by the appellate court directing the
Court to do three things: fix the 654 issue; award the defendant the proper
credits; and file an amended abstract showing the Court had done that.”
However, “in an abundance of caution,” the court elected to reach the merits
of the section 1385 motion to strike the firearm use enhancement.
Taking “into consideration the new racial animus act,” the trial court
acknowledged that defense counsel did not have “time to really flesh out the
statistics” bearing out that “people of color are treated more harshly in the
criminal justice system.” The court also indicated it considered the evidence
of defendant’s good character while in prison, but found nevertheless that
defendant’s lack of remorse, his unwillingness to take responsibility for his
actions, his prior criminal record, and the violent nature of the offense
2 These materials included a 2009 article entitled “Hispanics and the
Criminal Justice System,” by the Pew Research Center; a report by the
American Civil Liberties Union dated October 27, 2014, entitled “Racial
Disparities in Sentencing,” and a January 2005 report by The Sentencing
Project entitled “Racial Disparity in Sentencing: A Review of the Literature.”
4
warranted the enhancement. Accordingly, the court denied the section 1385
motion.
As to the issues on remand, the trial court stayed the sentence on count
five, recalculated defendant’s custody credits, and sentenced defendant to an
aggregate term of 23 years in prison.
This appeal followed.3
DISCUSSION
A. Resentencing Under Section 1170
Defendant argues, and the People agree, that he should be resentenced
under section 1170, subdivision (b), as amended by Senate Bill 567.
Under the law in effect at the time defendant was initially sentenced in
2018, section 1170, subdivision (b), provided that when a judgment of
imprisonment is to be imposed and the statute specifies three possible terms,
the trial court has discretion to choose the appropriate term. Senate Bill 567,
effective January 1, 2022, amended section 1170 to provide: “The court may
impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(2).)
Here, the sentencing court chose the upper term of nine years on count
one based on the aggravating circumstance that the offense involved a threat
of great bodily injury to multiple individuals. Defendant argues, and the
3 In conjunction with this appeal, defendant filed a petition for writ of
habeas corpus, In re Mario Garcia, A164591. We have denied the petition by
separate order filed this date.
5
People do not dispute, that he never stipulated to this finding, and the People
concede there was no trial in which the circumstance in aggravation was
found to be true beyond a reasonable doubt. The parties further agree that
because Senate Bill 567 is ameliorative, and because there is no indication
the Legislature intended it to apply prospectively only, the new law applies
retroactively to defendant. (People v. Flores (2022) 73 Cal.App.5th 1032,
1039.)
We agree and conclude defendant is entitled to resentencing under
section 1170, subdivision (b).
B. Denial of Continuance
Defendant argues the trial court abused its discretion in denying his
motion for a continuance to enable him to develop facts in support of a motion
for discovery under the CRJA. We agree.
1. Overview of CRJA
Effective January 1, 2021, the CRJA prohibits state criminal
convictions or sentences “on the basis of race, ethnicity, or national origin.”
(§ 745, subd. (a).) To prove a violation of the CRJA, a defendant must show
by a preponderance of the evidence that (1) any of the various individuals
involved in the case—including a judge, attorney, law enforcement officer,
expert witness, or juror—“exhibited bias or animus towards the defendant
because of the defendant’s race, ethnicity, or national origin”; (2) during the
trial and court proceedings, any of the various individuals “used racially
discriminatory language about the defendant’s race, ethnicity, or national
origin, or otherwise exhibited bias or animus towards the defendant because
of the defendant’s race, ethnicity, or national origin, whether or not
purposeful”; (3) the defendant was charged or convicted “of a more serious
offense than defendants of other races, ethnicities, or national origins who
6
commit similar offenses and are similarly situated, and the evidence
establishes that the prosecution more frequently sought or obtained
convictions for more serious offenses against people who share the
defendant’s race, ethnicity, or national origin in the county where the
convictions were sought or obtained”; or (4) “[a] longer or more severe
sentence was imposed on the defendant than was imposed on other similarly
situated individuals convicted of the same offense, and longer or more severe
sentences were more frequently imposed for that offense on people that share
the defendant’s race, ethnicity, or national origin” or “on defendants in cases
with victims of one race, ethnicity, or national origin[s],” in the county where
the sentence was imposed. (§ 745, subd. (a)(1)–(4).)
“A defendant may file a motion in the trial court or, if judgment has
been imposed, may file a petition for writ of habeas corpus or a motion under
Section 1473.7 in a court of competent jurisdiction, alleging a violation of
subdivision (a).” (§ 745, subd. (b).) If a defendant makes a prima facie
showing of a CRJA violation, the trial court shall hold an evidentiary
hearing, and the defendant has the burden of proving a violation by a
preponderance of the evidence. (Id., subd. (c)(1)–(2).) The CRJA sets forth
various available remedies for successful prejudgment (id., subd. (e)(1)) and
postjudgment claims (id., subd. (e)(2)), including vacating the conviction and
sentence and imposing a new sentence not greater than that previously
imposed (ibid.).
The CRJA also contains the following discovery provision: “A
defendant may file a motion requesting disclosure to the defense of all
evidence relevant to a potential violation of subdivision (a) in the possession
or control of the state. A motion filed under this section shall describe the
type of records or information the defendant seeks. Upon a showing of good
7
cause, the court shall order the records to be released. Upon a showing of
good cause, and if the records are not privileged, the court may permit the
prosecution to redact information prior to disclosure.” (§ 745, subd. (d).)
In Young v. Superior Court (2022) 79 Cal.App.5th 138 (Young), Division
Four of our appellate district held that the good cause requirement for
discovery under the CRJA, like the showing required for the disclosure of law
enforcement records under Pitchess, requires a defendant “only to advance a
plausible factual foundation, based on specific facts, that a violation of the
[CJRA] ‘could or might have occurred’ in his case.” (Young, at p. 159.) As
Young explained, this “plausible justification” standard is “minimal” and
even more relaxed than the “ ‘relatively relaxed’ ” good cause standard for
Pitchess discovery, which requires a logical link between the charge and a
proposed defense. (Young, at pp. 159–160.)
2. Analysis
Although trial courts enjoy broad discretion to determine whether good
cause exists to grant a continuance of trial, such discretion “ ‘ “may not be
exercised so as to deprive the defendant or his attorney of a reasonable
opportunity to prepare.” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 934–
935.) Here, defendant’s counsel had less than a week after she was appointed
to familiarize herself with the case, prepare the sentencing brief, and
marshal facts for and prepare a motion for discovery under the CRJA. While
Guraiib was able to make general arguments under the CRJA and provide
statistical information in the sentencing brief, that information was dated
and based mostly on national surveys; it did not address racially disparate
treatment as to convictions and/or sentences in the county where defendant
was convicted and sentenced. (See § 745, subd. (a)(1)–(4).) At this juncture
and on this record, there simply is no indication whether and to what extent
8
such county-level information was likely to have been readily available to
counsel in the short time frame between her appointment and the sentencing
hearing.
Furthermore, although the plausible justification standard is
“minimal,” it must still be “based on specific facts.” (Young, supra, 79
Cal.App.5th at p. 159.) Thus, preparing a discovery motion under the CRJA
necessarily entails a fairly thorough review of the trial record for any
remarks or conduct by the trial judge, attorneys, experts, jurors, and law
enforcement officers that may plausibly support the conclusion that a CRJA
violation “ ‘could or might have occurred’ in [the] case.” (Young, at pp. 158–
159.) For these reasons, we conclude defendant should have been given a
reasonable opportunity to review the trial record and gather relevant
information to prepare a motion for discovery under the CRJA. The error
was not harmless under any standard because, as indicated, nothing in the
record indicates either way whether defendant’s counsel could have
discovered facts plausibly supporting a motion for CRJA discovery had she
been given a reasonable opportunity to do so.
The People contend the trial court reasonably denied the continuance
request because defense counsel was ready to proceed on the issues properly
before the court, and the court’s jurisdiction was strictly limited to the
instructions given by this court on remand from the prior appeal. (See People
v. Ramirez (2019) 35 Cal.App.5th 55, 64 [order of reviewing court contained
in remittitur defines scope of jurisdiction of court to which matter is
returned.) But the People cite no case applying this general rule where new
legislation becomes effective in the period between the remittitur and the
proceedings on remand. “[I]t is well settled that when a case is remanded for
resentencing after an appeal, the defendant is entitled to ‘all the normal
9
rights and procedures available at his original sentencing’ [citations],
including consideration of any pertinent circumstances which have arisen
since the prior sentence was imposed.” (Dix v. Superior Court (1991) 53
Cal.3d 442, 460.) Here, the CRJA’s January 1, 2021, effective date was a
pertinent circumstance that arose after the remittitur and before the
resentencing hearing. The trial court was not barred from considering it.
The People next argue that denial of the continuance motion was not
an abuse of discretion because the CRJA does not retroactively apply to
defendant. Notably, the CRJA expressly states it applies prospectively only
to judgments not entered before January 1, 2021 (§§ 745, subd. (j); 1473,
subd. (f)), and Penal Code provisions generally are not applied retroactively
in the absence of express language conferring retroactive application (People
v. Brown (2012) 54 Cal.4th 314, 319–320).
In criminal cases, however, “judgment is synonymous with the
imposition of sentence.” (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2.)
Here, in July 2020, the judgment was partially reversed and remanded, and
defendant was not resentenced until May 17, 2021. Moreover, the People
concede in this appeal that defendant is entitled to resentencing yet again
under Senate Bill 567, and thus, a judgment has yet to be entered. Because
judgment was not entered at the time the CRJA became effective on January
1, 2021, defendant is not barred from seeking relief under the new law.4
For these reasons, we will reverse the trial court’s denial of defendant’s
request for a continuance and remand with directions to grant a reasonable
continuance for defendant to prepare a motion for discovery under the CRJA.
4 For the same reason, we reject the People’s contention that defendant
can seek only postjudgment relief under the CRJA through a habeas petition.
10
DISPOSITION
The judgment is reversed and remanded for resentencing under section
1170, subdivision (b). Prior to the resentencing hearing, defendant shall be
granted a reasonable opportunity to prepare a motion for discovery under the
CRJA.
FUJISAKI, ACTING P.J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
People v. Garcia (A163046)
11
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Elizabeth K. Lee
Counsel: Law Offices of John F. Schuck, John F. Schuck, under
appointment by the First District Appellate Project, for
Defendant and Appellant
Rob Bonta, Attorney General of California, Lance E.
Winter, Chief Assistant Attorney General, Jeffrey M.
Laurence, Senior Assistant Attorney General, René A.
Chacón, Supervising Deputy Attorney General, and
David M. Baskind, Deputy Attorney General, for
Plaintiff and Respondent
12 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490378/ | ORDER ON MOTION FOR SUMMARY JUDGMENT
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a Chapter 7 case, and the matter under consideration is a Motion for Summary Judgment filed in the above-captioned adversary proceeding by Florida Progress Corporation (Florida Progress), a Defendant named in the complaint. The complaint was filed by Tambay Trustee, Inc., (Trustee), who seek to recover the interest in a certain pension and retirement fund of Charles James Lawson, the Chapter 7 Debtor (Debtor). The fund is being administered by Florida Progress Corp., the Defendant named in the above-captioned adversary proceeding. It is the contention of Florida Progress that there are no genuine issues of material facts and it is entitled to a judgment as a matter of law based on the record which .reveals the following undisputed facts:
At the time relevant to this controversy the Debtor was and still is an employee of Florida Power Corporation (Florida Power), a public utility corporation. Florida Progress is the parent corporation of Florida Power and is the administrator of an Employee Stock Ownership Plan (ESOP) maintained by Florida Progress for the employees of Florida Power. The controversy centers around the Debtor’s interest in ESOP, which consists of 587.588 common stock of Florida Power.
Charles James Lawson filed his petition for relief under Chapter 7 of the Bankruptcy Code on July 9, 1985. On February 28, 1986, the Trustee filed a Complaint for Turnover of Property and sought an order directing Florida Progress to turn over to the Trustee the Debtor’s interest in ESOP. On April 7, 1986, Florida Progress filed its Motion for Summary Judgment. On May 19, 1986, this Court entered an Order on Motion for Summary Judgment and granted the oral motions of the Trustee and Florida Progress to invite the United States of America (Government) to participate in this adversary proceeding as amicus curae; the Government was invited to file an ami-cus brief within 30 days. The Order deferred ruling on the Motion for Summary Judgment for 30 days or such time as may be extended in order to permit the Government to file a brief. The reason the parties agreed to invite the Government’s participation is because of the contention advanced by Florida Progress, that if the Trustee prevails, this would expose not only the ESOP to a very substantial tax liability, but all the participants in the ESOP as well.
The ESOP is a tax-qualified employee benefit program that provides its participants, including the Debtor, with significant retirement and tax benefits. In order to qualify for tax exemption, the ESOP was designed to comply with 26 U.S.C. § 401(a)(13), and § 11.04 restricts the alienation of plan benefits to the beneficiaries (Defendant’s Exh. # 2) and also contains an anti-assignment provision.
Section 6.01 of the ESOP provides that the shares in a participant’s account may be distributed only upon retirement, death or termination of employment (Defendant’s Exh. # 1) with one exception. The exception is contained in Section 6.04 of ESOP (Defendant’s Exh. # 1), which provides that stocks attributable to contributions made prior to January 1, 1983, and which have been allocated for at least 84 months prior to the date of such withdrawal may be distributed to the participating employees. Under this exception, as Florida Progress concedes, as it must, 56 shares of the Debt- or are available for immediate distribution on demand by the Debtor under the terms of the ESOP but for the effect of a bankruptcy “ipso facto” clause included in the basic document creating ESOP. Specifically, Article X(a) of the Trust document provides that in the event of the involvement of any participant in ESOP in a bankruptcy case, the trustee in charge of ESOP has the discretion to terminate a participant’s bene*96fit and to hold or to apply the participant’s interest for the benefit of the participant, or for his family, or his dependants (Defendant’s Exh. # 2).
Based on the foregoing undisputed facts, Florida Progress contends first that by virtue of Article X(b) of the trust document, Florida Progress has the discretion to terminate all benefits of the Debtor because of his bankruptcy and may either hold or apply the Debtor’s interest for the benefit of the Debtor or for his family or his dependents; second, Florida Progress contends that by virtue of § 541(c)(2), the Debtor’s interest in ESOP is not “property of the estate,” and therefore, is not subject to turnover provisions of § 542. This last contention is based on the proposition urged by Florida Progress that because ESOP is, by virtue of the anti-alienation provision, in fact, a spendthrift trust, and therefore, excluded from the estate and not subject to administration by the Trustee by virtue of the specific provision of § 541(c)(2) of the Bankruptcy Code.
Considering the contentions of Florida Progress seriatim, it should be stated at the outset that forfeiture clauses triggered by bankruptcy commonly referred to as “ipso facto” clauses are unenforceable in bankruptcy. This subject is expressly dealt with by § 541(c)(1)(B) of the Code which provides:
(c)(1) Except as provided in paragraph (2) of this subsection, an interest of the debtor in property becomes property of the estate under subsection (a)(1), (a)(2), or (a)(5) of this section notwithstanding any provision in an agreement, transfer instrument, or applicable nonbankruptcy law—
(B) that is conditioned on the insolvency or financial condition of the debtor, on the commencement of a case under this title, or on the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement, and that effects or gives an option to effect a forfeiture, modification, or termination of the debtor’s interest in property.
Thus, it is evident that the “ipso facto” clause is of no effect, and presents no obstacles to the Trustee’s right to the Debtor’s shares provided, of course, that the shares are “properties of the estate” and not excluded and immunized from administration by the trustee by virtue of 541(c)(2) of the Bankruptcy Code. This view has been generally recognized and accepted by the courts in considering the enforceability of “ipso facto” clauses in bankruptcy. In re Threewitt, 20 B.R. 434, 9 BCD 38 (Bankr.D.Kan.1982); see also In re North American Dealer Group, Inc., a/k/a North American Dealer Services, Inc., 16 B.R. 996, 8 BCD 940 (Bankr.E.D.N.Y.1982). See generally 4 Collier on Bankruptcy ¶ 541.22 at 541-100 (15th ed. 1981). It is clear that the language of the statute is nothing more than a clear statement of the intent of Congress, which was not to recognize and permit enforcement of “ipso facto” forfeiture clauses. See H.R.Rep. 95-595, 95th Cong., 1st Sess. 369 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787.
This leaves for consideration the application of § 541 and § 541(c)(2) to the undisputed facts as appear from the record of this case. Under § 541 of the Bankruptcy Code the concept of “property of the estate” is no longer proscribed by the limitations found in its predecessor, § 70a of the Bankruptcy Act of 1898. There is no doubt that the Bankruptcy Code was intended to create a more uniform and comprehensive concept of the term “property of the estate”. See S.Rep. No. 95-989, 95th Cong., 2d Sess. 82 (1977), reprinted in 1978 U.S. Code Cong. & Ad.News 5787, 5868; H.Rep. No. 95-595, 95th Cong., 2d Sess. 175 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News. 5963, 6136. Under § 541 of the Bankruptcy Code, all property in which a debtor has any “legal or equitable interest” at the time of bankruptcy comes into the estate. 11 U.S.C. § 541(a)(1). This is so notwithstanding any provision [except as recognized in subsection (2)] that restricts or conditions transfer of such interest by the debtor. 11 U.S.C. § 541(c)(1)(A).
*97There is hardly any doubt that when one considers § 541 alone, the Debtor’s interest in ESOP is clearly property of the estate unless the exception set forth in § 541(c)(2) governs, which provides as follows:
(2) A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable non-bankruptcy law is enforceable in a case under this title, (emphasis added)
As noted supra, the ESOP contains an anti-alienation and anti-assignment clause designed to qualify it as tax exempt under 26 U.S.C. § 401(a)(13). Thus at first blush, the stock held by Florida Progress appears to come under the exception set forth in § 541(c)(2) of the Bankruptcy Code. The answer to the question, however, is not that simple and cases dealing with this issue are far from being in agreement.
Several cases have held that the Trustee cannot reach the Debtor’s interest in funds held in an ERISA type plans, which are also tax exempt and contain similar anti-alienation and anti-assignment clauses by virtue of the exclusion set forth in § 541(c)(2). In re Pruitt, 30 B.R. 330 (Bankr.D.Colo.1983); In re Threewitt, 24 B.R. 927 (D.Kan.1982); In re Holt, 32 B.R. 767 (Bankr.D.Tenn.1983); In re Rodgers, 24 B.R. 181 (D.Ariz.1982). The holdings of these cases are based on a broad interpretation of the reach of § 541(c)(2) by recognizing assignment and transfer restrictions under general federal non-bankruptcy law in addition to recognizing the same under traditional state trust laws. Some of these courts noted that the language of § 541(c)(2) is clear and unambiguous and since it does not contain any reference to the term “spendthrift”, the traditionally accepted definition of the term “spendthrift” has no relevance to the applicability to the exclusion set forth in § 541(c)(2). Based on this, these courts concluded that the subsection should be read to include any and all trusts which bar creditors from reaching the debtor’s interest. Because these courts held that ERISA’s transfer restrictions were enforceable under federal non-bankruptcy law, these courts took the position that they need not consider the nature of the trust under local law.
Another line of cases have rejected this reasoning and held that § 541(c)(2) was intended to protect only a debtor’s interest in traditional spendthrift trusts. In re Lichstrahl, 750 F.2d 1488 (11th Cir.1985); In re Goff, 706 F.2d 574 (5th Cir.1983): In re DiPiazza, 29 B.R. 916 (Bankr.N.D.Ill.1983); In re Graham, 24 B.R. 305 (Bankr.N.D.Iowa 1982), aff'd, 726 F.2d 1268 (8th Cir.1984). For instance, the Fifth Circuit in Goff, supra, determined that the concept of property of the estate under the Bankruptcy Code was intended to have a broad scope which would be frustrated if ERISA’s assignment and transfer restrictions were applied with a “sweeping brush.” Goff, supra at 987; see also In re Nichols, 42 B.R. 772, 775 (Bankr.M.D.Fla.1984). Furthermore, the Court in Goff, found that ERISA did not constitute a federal exemption within the meaning of § 522(b)(2)(A). As a result, the Court in Goff, supra, found it unlikely that Congress intended to remove ERISA benefits from the reach of creditors through § 541(c)(2), especially when it clearly could have done so in § 522 by exempting such benefits.
Having considered the authorities cited on the subject, this Court is satisfied that the reasoning of the Fifth Circuit in Goff, supra, is more persuasive and, therefore, rejects the holding in Threewitt, Holt, and Pruitt, supra, and agrees with the proposition that Congress intended to limit the exclusion set forth in § 541(c)(2) to “trusts” which have been traditionally recognized under local law to qualify as true “spendthrift trusts.” It follows that the next inquiry must be addressed to the issue of whether the ESOP and the Trust established under it would qualify as a spendthrift trust under Florida law and thus be excepted from the estate pursuant to § 541(c)(2).
Spendthrift trusts are designed to provide a fund for the maintenance of the beneficiary while at the same time securing it against the beneficiary’s own improvi*98dence and incapacity. Croom v. Ocala Plumbing & Electric Co., 62 Fla. 460, 465, 57 So. 243, 244 (1911). “Because the purpose of a spendthrift trust is to protect the beneficiary from himself and his creditors, such a trust fails where the beneficiary exercises absolute dominion over the property of the trust.” Lichstrahl, supra at 1490 (citing Croom, supra, 62 Fla. at 466, 57 So. at 244-45); see also In re Guernsey, 54 B.R. 68, 69 (Bankr.S.D.Fla.1985). Section 11.04 of ESOP provides in pertinent part that:
the rights or interest of a Member or Beneficiary may not be assigned or hy-pothecated, and to the extent permitted by law, no payments shall be subject to legal process or attachment for the payment of claims of any person entitled to receive the same.
(Defendant’s Exh. # 1). Article X(a) of the Trust contains a similar restraint on alienation (Defendant’s Exh. #2). The ESOP provides that the stock may be distributed only upon retirement, death or termination of employment. Furthermore, the ESOP does not permit loans to participants and the Debtor does not exercise “absolute dominion” over the stock in the ESOP, unlike the Debtor in Goff, supra.
Thus, there is hardly any question that the ESOP involved here is clearly distinguishable from the control of the parties excercised in the ERISA plans involved in Goff and Lichstrahl cases, supra. Based on the foregoing, this Court is satisfied that the ESOP would qualify as a spendthrift trust under Florida law and, therefore, excluded from the property of the estate under § 541(c)(2). Since the ESOP is excluded from the property of the estate under § 541(c)(2), the question of a right to exemption is academic and rendered moot.
However, it is conceded by Florida Progress that the Debtor has an absolute right to 56 shares held for him by the trustee in ESOP but cannot even alienate or transfer the balance of his interest in ESOP. This being the case, it is clear that while the Trustee is entitled to a turnover order of the 56 shares, the ESOP plan maintained by Florida Progress contains more than adequate anti-alienation provisions in general, and thus, would qualify as a spendthrift trust under the laws of the state of Florida.
As noted supra, the 56 shares of Florida Progress stock in which the Debtor has an interest in the property of the estate are subject to turnover to the Trustee. Contrary to the Trustee’s contention, the ESOP’s status as a spendthrift trust is not destroyed because a fraction of the Debt- or’s interest in the ESOP is distributable i.e. 56 shares from a total of 587.588 shares. A recent decision by the Florida Supreme Court unequivocally establishes that a trust does not cease to be a spendthrift trust merely because the trust is making distributions to beneficiaries under order of a court. See Bacardi v. White, 463 So.2d 218 (Fla.1985).
Finally, Florida Progress has also expressed concern that compliance with a court ordered distribution will cause the ESOP to lose its tax-qualified status under IRC § 401(a). The turnover of the . 56 shares of stock does not affect the tax-qualified status of the ESOP and as this Court has determined, the remaining shares of stock are excluded from the estate pursuant to § 541(c)(2) and will not be subject to an order of turnover by this Court. Therefore, any alleged tax consequences are irrelevant to an overall consideration and determination in this proceeding.
As noted earlier, this matter is presented for this Court’s consideration by a Motion for Summary Judgment filed by Florida Progress, the Defendant, and the Trustee did not file a cross Motion for Summary Judgment. Thus, the Court must consider whether or not it is proper at this time to enter a summary judgment for a non-moving party. Although there is some authority to the contrary, the great weight of authority is that it is not necessary to request a formal cross Motion for Summary Judgment and if it appears to the satisfaction of the Court that there are no genuine issues of material fact and the non-mov*99ing party is entitled to judgment as a matter of law it is appropriate to grant the motion even though the other party did not seek a determination of the matter by way of Motion for Summary Judgment. See Pueblo of Santa Ana v. Mountain States Telephone & Telegraph Co., 734 F.2d 1402 (10th Cir.1984), rev’d on other grounds, 472 U.S. 237, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985); Viger v. Commercial Insurance Co. of Newark, N.J., 707 F.2d 769 (3rd Cir.1983).
In sum, the ESOP and the Trust satisfy the requirements of IRC § 401(a)(13) as a tax-qualified plan. The ipso facto clause allegedly applicable to the 56 shares of Florida Progress stock is unenforceable pursuant to § 541(c)(1)(B). The ESOP and the Trust qualify as a spendthrift trust under Florida law, and therefore, except for the Debtor’s vested interest, i.e., the 56 shares, are excluded from property of the estate pursuant to § 541(c)(2). Based on the foregoing, this Court is satisfied that there are no genuine issues of material fact and that Florida Progress is entitled to partial summary judgment as a matter of law and the Trustee is entitled to a judgment with regard to the 56 shares.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed by Florida Progress be, and the same is hereby, granted in part and denied in part. It is further
ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment be, and the same is hereby, denied with respect to the 56 shares of stock of the ESOP in which the Debtor has an interest and the 56 shares shall be turned over to the Trustee. It is further
ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment be, and the same is hereby, granted as to the Debtor’s remaining shares of the ESOP and are excluded from property of the estate pursuant to § 541(c)(2). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490379/ | MEMORANDUM ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
RICHARD S. STAIR, Jr., Bankruptcy Judge.
At issue is whether a complaint to avoid an alleged fraudulent transfer filed more than two years after the appointment of a Chapter 7 trustee is barred by the limitations period prescribed by 11 U.S.C.A. § 546(a) (West 1979).
On June 24, 1983, an involuntary bankruptcy petition was filed against C.H. Butcher, Jr. This court sustained the petition and entered an order for relief under Chapter 7 on July 15, 1983. The election, pursuant to 11 U.S.C.A. § 702 (West 1979), of James R. Martin as trustee of the debt- or’s estate was approved by this court on August 17, 1983.
On May 30, 1986, the trustee filed a complaint alleging that a $384,206.10 transfer by the debtor, effected by a cashier’s check, to defendant First Security National Bank & Trust Company (First Security) is a fraudulent transfer. The trustee does not allege specific facts supporting his claim of actual fraud.1 Instead, the trustee’s complaint merely recites the language of 11 U.S.C.A. § 548(a)(1) and (2) (West 1979). Additionally, the trustee alleges the transfer is voidable under 11 U.S.C.A. § 544(b) (West 1979).
On June 30, 1986, First Security filed a “Motion For Summary Judgment” contending the trustee’s claim is barred by the statute of limitations.
Section 546 of the Bankruptcy Code enacts in material part:
Limitations on avoiding powers
(a) An action or proceeding under section 544 ... [or] 548 ... of this title may not be commenced after the earlier of—
(1) two years after the appointment of a trustee ... [or]
*103(2) the time the case is closed or dismissed.
Undisputedly, the trustee filed his complaint asserting rights under §§ 544(b) and 548(a) more than two years after the date of his appointment (August 17, 1983). However, the trustee contends the limitations period of § 546(a) should be tolled for equitable reasons. According to the trustee, in March, 1985, he discovered that the debtor had paid $384,206.10 to “First Security Bank” on or about March 9, 1983; he immediately inquired of the Federal Deposit Insurance Corporation (FDIC), receiver for First Security Bank of Union County, Tennessee, regarding the payment; in August, 1985, he filed suit against FDIC, as receiver of First Security Bank of Union County, seeking to avoid the $384,206.10 transfer; on November 25, 1985, FDIC informed him that defendant First Security National Bank & Trust Company of Lexington, Kentucky, not First Security Bank of Union County, was the transferee of the $384,206.10 payment he seeks to avoid. The trustee asserts the § 546(a) statute of limitations did not begin to run until he discovered the fraud underlying his cause of action and that he commenced this proceeding within six months of such discovery.
The trustee relies upon Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1875), a suit to avoid an alleged fraudulent transfer brought by the assignee (trustee) of the bankrupt. In Bailey, the defendants argued that the suit against them, commenced more than two years after the as-signee’s appointment, was barred by the limitations period in § 2 of the Bankruptcy Act of 1867, which provided in part:
[B]ut no suit at law or in equity shall in any case be maintainable by or against such assignee, or by or against any person claiming an adverse interest, touching the property and rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years from the time the cause of action accrued, for or against such as-signee _
Based on this limitations statute, the circuit court sustained the defendants’ demurrer to the complaint, which alleged the bankrupt concealed the conveyances the assign-ee sought to avoid and that those conveyances had been made without consideration and in contemplation of bankruptcy. Reversing, the Supreme Court said:
To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the Statute of Limitations to protect it, is to make the law which was designed to prevent fraud, the means by which it is made successful and secure.
[W]hen there has been no negligence or laches on the part of a plaintiff in coming to the knowledge of the fraud which is the foundation of the suit, and when the fraud has been concealed, or is of such character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to the party suing, or those in privity with him.
Bailey v. Glover, 88 U.S. (21 Wall.) at 349-50.
Arguing that § 546(a) is unequivocal and materially different from § 2 of the Bankruptcy Act of 1867, First Security maintains that Bailey is inapposite. According to First Security, equitable tolling of a limitations period is permissible only in “the most egregious of circumstances.” Further, First Security maintains there is neither evidence of actual fraud on the debt- or’s part in connection with the transfer nor evidence it knew of or assented to any fraudulent conduct.
Because there is no allegation of concealment of the transfer by either the debtor or First Security, this adversary proceeding is materially distinguishable from Bailey. The trustee has not alleged, much less established, either concealment or a continuing fraud.2 Assuming arguendo that the *104bar imposed by § 546(a) is not absolute, there is no basis for the exception sought by the trustee. Accordingly, First Security’s “Motion For Summary Judgment” will be granted.
. Fed.R.Civ.P. 9(b), adopted as part of Fed.R. Bankr. 7009, requires a party to state with particularity the circumstances constituting fraud where fraud is averred. Minimally, a plaintiff must allege the time, place and fraudulent act. See Bender v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir.1984).
. The trustee’s allegation that prior to November, 1985, he did not know and could not have *104discovered through due diligence that property of the debtor’s estate had been transferred to First Security falls short of an allegation of concealment or continuing fraud. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483258/ | 11/10/2022
Case Number: DA 22-0492
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE OFFICE OF THE CLERK OF SUPREME COURT
HELENA MONTANA
)
STATE OF MONTANA, ) Cause No. DA 22-0492
)
Plaintiff, ) ORDER
)
vs. )
)
)
ROBERT ERICKSON, )
)
Defendant. )
)
Upon the motion of the Counsel and good cause appearing therefore;
IT IS HEREBY ORDERED:
The 30-day extension is GRANTED and rescheduled for the 12th day of
December 2022.
DATED this 10th day of November, 2022.
________________________________
Judge
Electronically signed by:
Bowen Greenwood
Clerk of the Supreme Court
November 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483259/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0496
No. DA 22-0496
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MERLE RAYMOND BRANSTETTER,
Defendant and Appellant.
GRANT
Pursuant to authority granted under Mont. R. App. P. 26(1), the
Appellant is given an extension of time until December 14, 2022, to
prepare, file, and serve the Appellant's opening brief.
Electronically signed by:
Bowen Greenwood
Clerk of the Supreme Court
November 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483251/ | Filed 11/10/22 In re Leylani J. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re LEYLANI J., a Person Coming B317944
Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. 19CCJP06515A)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRIANNA E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen C. Marpet, Commissioner.
Affirmed.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Jane E. Kwon, Deputy County
Counsel for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Brianna E. (mother) appeals from a juvenile court order
terminating parental rights to her daughter, Leylani J. She
contends the order should be reversed because the responsible
child protective agencies failed to comply with their duties of
inquiry under the state laws (Welf. & Inst. Code, § 224 et seq.)1
implementing the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1901 et seq.) (ICWA). We conclude the juvenile court did not
prejudicially err by finding that ICWA does not apply, and thus
we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Detention, jurisdiction, and disposition
Mother gave birth to Leylani in July 2019. Mother tested
positive for marijuana and methamphetamines at the time of
Leylani’s birth, and the child was placed in protective custody
upon her release from the hospital.
Mother identified two men, Abel J. and Freddy M., as
Leylani’s possible fathers. She admitted to periodic
methamphetamine use and daily marijuana use during her
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
2
pregnancy, and said she had been using methamphetamines
since she was 15 years old. Mother’s two older children were
being cared for by her mother (the maternal grandmother) due to
mother’s drug use.
The Orange County Social Services Agency (SSA) filed a
juvenile dependency petition in July 2019 pursuant to
section 300, subdivisions (b) and (g). The petition alleged that
mother had an unresolved history of substance abuse and had
tested positive for marijuana and amphetamines at the time of
Leylani’s birth. An ICWA-010 form attached to the petition
stated that an Indian child inquiry had been made of mother,
who denied Indian ancestry.
Mother, accompanied by maternal relatives, appeared at
the July 23, 2019 detention hearing and was appointed counsel.
She signed an ICWA-020 form in which she denied any Indian
ancestry, and the court “heard statements of counsel as to issues
of American Indian Heritage.” The court noted that mother
“denies any American Indian Heritage.” It deferred making
ICWA findings, however, pending a determination of paternity.
In August 2019, Abel J. was excluded as a possible
biological father through a paternity test, and Freddy M.
(hereafter, father) was found to be Leylani’s presumed father.
Leylani was placed with her paternal grandmother, Maria P., in
August 2019. Maternal grandmother Susie T. and maternal aunt
Janelle B. assisted the paternal grandmother with childcare.
In October 2019, the juvenile court sustained the
allegations of the petition and ordered Leylani removed from her
parents. Mother was granted reunification services; father, who
was incarcerated and declined to make an appearance, was not.
The court found that ICWA did not apply. It then ordered the
3
case transferred from Orange County to Los Angeles County,
where mother was then living.
II. Termination of mother’s reunification services and
of parental rights
Mother completed a six-month substance abuse treatment
program in February 2020, but struggled with her sobriety in late
2020 and 2021, missing scheduled drug tests and testing positive
for drugs. She visited Leylani inconsistently, supervised by the
maternal grandmother, maternal aunt, or paternal grandmother.
She identified the maternal grandmother as an important source
of support for her.
In 2020 and 2021, mother gave birth to two more children,
for whom the Los Angeles County Department of Children and
Family Services (DCFS) initiated dependency proceedings.
Mother signed ICWA-020 forms in those proceedings denying
Indian ancestry.2
Father made his first court appearance on February 5,
2021, at which time he signed an ICWA-020 form denying any
Indian ancestry. In March 2021, the paternal grandmother
denied Indian ancestry in father’s family.
The maternal grandmother passed away in February 2021.
In April 2021, DCFS reported that the paternal grandmother was
willing to adopt Leylani.
The court terminated mother’s reunification services on
May 8, 2021, after it concluded that mother was unlikely to
reunify with Leylani in the next period of supervision. Parental
2 DCFS filed a request for judicial notice of the ICWA-020
forms and minute orders filed in the half-siblings’ cases on
August 25, 2022. The request for judicial notice is granted.
4
rights were terminated on November 29, 2021. Mother timely
appealed.
DISCUSSION
Mother concedes the ICWA inquiry was adequate as to
father’s family, but she urges that SSA and DCFS (collectively,
the agencies) failed to properly investigate her own possible
Indian ancestry because they did not conduct an ICWA inquiry of
members of her extended family––specifically, of the maternal
grandmother and maternal aunt. She thus urges the order
terminating parental rights should be conditionally reversed and
the matter remanded to the juvenile court for further compliance
with ICWA.
I. Legal standards
A. ICWA
ICWA was enacted “ ‘to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture . . . .’ [Citation.]”
(In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C.
§ 1902.)
“Juvenile courts and child protective agencies have ‘an
affirmative and continuing duty to inquire’ whether a dependent
child is or may be an Indian child.” (In re Michael V. (2016)
3 Cal.App.5th 225, 233; see also Isaiah W., supra, 1 Cal.5th at
pp. 9–11; § 224.2, subd. (a).) An “Indian child” is “any unmarried
person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) is eligible for membership in an Indian
5
tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903(4); see also § 224.1, subd. (a) [adopting federal
definition of “Indian child”].)
The affirmative duty to inquire has several elements. If a
child is removed from his or her parents and placed in the
custody of a county welfare agency, the agency must inquire
whether a child is an Indian child. Such inquiry “includes, but is
not limited to, asking the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child . . . .” (§ 224.2,
subd. (b).) The court also must make an ICWA inquiry when the
parents first appear in court: The court “shall ask each
participant present in the hearing whether the participant knows
or has reason to know that the child is an Indian child” (§ 224.2,
subd. (c)), and must require each party to complete California
Judicial Council Form ICWA-020, Parental Notification of Indian
Status (Cal. Rules of Court, rule 5.481(a)(2)(C)).
If the court or social worker has “reason to believe that an
Indian child is involved in a proceeding,” the court or social
worker must “make further inquiry regarding the possible Indian
status of the child” by, among other things, interviewing the
parents and extended family members, and contacting any tribe
that may reasonably be expected to have information about the
child’s membership, citizenship status, or eligibility. (§ 224.2,
subd. (e)(2).) There is “reason to believe” a child involved in a
proceeding is an Indian child whenever the court or social worker
“has information suggesting that either the parent of the child or
the child is a member or may be eligible for membership in an
Indian tribe.” (§ 224.2, subd. (e)(1).)
6
If the agency’s inquiry creates a “reason to know” that an
Indian child is involved, notice of the proceedings must be
provided to the identified tribe or tribes. (§ 224.2, subd. (f).)
There is “reason to know” a child is an Indian child if any one of
six statutory criteria is met—e.g., if the court is advised that the
child “is an Indian child,” the child’s or parent’s residence is on a
reservation, the child is or has been a ward of a tribal court, or
either parent or the child possess an identification card
indicating membership or citizenship in an Indian tribe. (§ 224.2,
subd. (d).) Thereafter, the court shall confirm that the agency
used due diligence to identify and work with all of the tribes of
which there is reason to know the child may be a member, or
eligible for membership, to verify whether the child is in fact a
member or whether a biological parent is a member and the child
is eligible for membership. (§ 224.2, subd. (g).) A determination
by an Indian tribe that a child is or is not a member of, or eligible
for membership in, that tribe “shall be conclusive.” (§ 224.2,
subd. (h).)
If the juvenile court finds that “proper and adequate
further inquiry and due diligence as required in this section have
been conducted and there is no reason to know whether the child
is an Indian child,” the court may make a finding that ICWA does
not apply to the proceedings, “subject to reversal based on
sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)
B. Standard of review
As noted above, section 224.2, subdivision (i)(2) sets out two
statutory predicates to a juvenile court’s finding that ICWA does
not apply. First, the court must determine whether there is
“reason to know” whether the child is an Indian child. Second,
the court must decide whether a “proper and adequate further
7
inquiry and due diligence as required in this section have been
conducted.” If the court finds an adequate inquiry has been
conducted and there is no reason to know a child is an Indian
child, “the court may make a finding that the federal Indian
Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) does not
apply to the proceedings.” (§ 224.2, subd. (i)(2).)
The first element––whether there is reason to know
whether the child is an Indian child––requires the juvenile court
to determine, based on the evidence before it, whether any one of
six statutory criteria is met—e.g., (1) the court has been advised
that the child “is an Indian child,” (2) the child’s or parent’s
residence is on a reservation, (3) any participant in the
proceeding informs the court that it has discovered information
indicating the child is an Indian child, (4) the child gives the
court reason to know that he or she is an Indian child, (5) the
child is or has been a ward of a tribal court, or (6) either parent or
the child possess an identification card indicating membership or
citizenship in an Indian tribe. (§ 224.2, subd. (d).) If none of
these six factors is met, the court must make a finding that there
is no reason to know the child is an Indian child. Because this
determination is fundamentally factual, we review it for
substantial evidence. (In re Caden C. (2021) 11 Cal.5th 614, 639–
640 (Caden C.) [factual determinations reviewed for substantial
evidence]; In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1005; In re
Josiah T. (2021) 71 Cal.App.5th 388, 401; In re D.F. (2020)
55 Cal.App.5th 558, 565.) In other words, we “should ‘not
reweigh the evidence, evaluate the credibility of witnesses, or
resolve evidentiary conflicts,’ ” but should uphold the lower
court’s determinations “ ‘if . . . supported by substantial evidence,
even though substantial evidence to the contrary also exists and
8
the trial court might have reached a different result had it
believed other evidence.’ ” (Caden C., at p. 640; In re J.N. (2021)
62 Cal.App.5th 767, 774; In re Noe F. (2013) 213 Cal.App.4th 358,
366.)
The second element––whether a “proper and adequate
further inquiry and due diligence as required in this section have
been conducted” (§224.2, subd. (i)(2))––is somewhat different.
Deciding whether an inquiry was “adequate” and an agency acted
with appropriate diligence requires more of a court than simply
applying a statutory checklist to undisputed facts. Instead, it
requires the court to “engage in a delicate balancing” (see In re
Caden C., supra, 11 Cal.5th at p. 640) to assess whether an
ICWA inquiry was appropriate and sufficient in light of the facts
of a particular case. In short, the statute directs the juvenile
court to perform a quintessentially discretionary function, and
thus we review it for abuse of discretion. (In re Ezequiel G.,
supra, 81 Cal.App.5th at pp. 1004–1005.)
If we conclude that the trial court erred in finding that an
adequate ICWA inquiry was conducted, we will return the case to
the juvenile court only if the error was prejudicial––that is, if
“the record contains information suggesting a reason to believe
that the child may be an ‘Indian child’ within the meaning of
ICWA, such that the absence of further inquiry was prejudicial to
the juvenile court’s ICWA finding.” (In re Dezi C. (2022)
79 Cal.App.5th 769, 779, review granted Sept. 21, 2022,
S275578.) For this purpose, the “record” includes both the record
of proceedings in the juvenile court and any proffer the appealing
parent makes on appeal. (Ibid.) As our colleagues in Division
Two have recently explained, this test is “outcome focused,”
asking whether “it is reasonably probable that an agency’s error
9
in not conducting a proper initial inquiry affected the correctness
(that is, the outcome) of the juvenile court’s ICWA finding,” and
remanding only in those cases “in which the record gives the
reviewing court a reason to believe that the remand may
undermine the juvenile court’s ICWA finding.” (Id. at pp. 781–
782, italics added.)
II. The juvenile court did not prejudicially err in
finding Leylani is not an Indian child and ICWA does
not apply to this case
Although mother denied Indian ancestry below, she
contends on appeal that the agencies’ failure to make an ICWA
inquiry of her extended family was reversible error. We disagree.
As to the first element of the ICWA finding, we conclude
that substantial evidence unquestionably supported the juvenile
court’s finding that there is no reason to know Leylani is an
Indian child on mother’s side. SSA made an initial ICWA inquiry
before filing the petition, and it attached to the petition an
ICWA-010 form attesting that an Indian child inquiry had been
made of mother and she had no known Indian ancestry.
Subsequently, mother signed an ICWA-020 form in which she
stated, under penalty of perjury, that she did not have Indian
ancestry. Further, mother appeared with counsel at the
July 2019 detention hearing where, in the presence of maternal
relatives, she denied Indian ancestry. And, she consistently
denied Indian ancestry in Leylani’s siblings’ cases in January and
August 2021, at which time she was advised to keep the court
aware of any new information relating to Indian ancestry.
Despite these repeated advisements, at no point––including now,
on appeal––has mother suggested her denial of Indian ancestry
was inaccurate, and no member of mother’s extended family has
10
ever told DCFS that Leylani has Indian ancestry on mother’s
side. Accordingly, all the evidence before the juvenile court
required the conclusion that there was no reason to know Leylani
is an Indian child through mother’s family.
As to the second element of the ICWA finding, we conclude
the juvenile court did not abuse its discretion in concluding that
the agencies conducted an adequate inquiry. In reviewing a
juvenile court’s ICWA findings for abuse of discretion, the key
question for a reviewing court is whether the ICWA investigation
has reliably answered the question at the heart of the ICWA
inquiry: Whether a child involved in a proceeding “is or may be
an Indian child” (§ 224.2, subd. (a))––that is, whether he or she
either (a) “is a member of an Indian tribe” or (b) “is eligible for
membership in an Indian tribe and is the biological child of a
member of an Indian tribe.” (25 U.S.C. § 1903, subd. (4); see also
§ 224.1, subds. (a)–(b).) In other words, the focus of the court’s
analysis is not on the number of individuals interviewed, but on
whether the agency’s ICWA inquiry has yielded reliable
information about a child’s possible tribal affiliation. (In re
Ezequiel G., supra, 81 Cal.App.5th 1009.)
As we recently explained, “ ‘ICWA does not apply simply
based on a child or parent’s Indian ancestry.’ ” (In re Ezequiel G.,
supra, 81 Cal.App.5th 1009, citing U.S. Dept. of Interior, Bureau
of Indian Affairs, Guidelines for Implementing the Indian Child
Welfare Act (Dec. 2016) (BIA Guidelines), p. 10
[as of August 1, 2022], archived at
.) Instead, “the definition of
‘Indian child,’ . . . is based on the child’s political ties to a
federally recognized Indian Tribe, either by virtue of the child’s
11
own citizenship in the Tribe, or through a biological parent’s
citizenship and the child’s eligibility for citizenship.” (Indian
Child Welfare Act Proceedings, 81 Fed.Reg. 38795 (June 14,
2016) (BIA ICWA Proceedings), italics added.) In other words, an
Indian child is one with a tribal affiliation, not merely Indian
ancestry.
“Tribal citizenship (aka Tribal membership) is voluntary
and typically requires an affirmative act by the enrollee or her
parent.” (BIA ICWA Proceedings, supra, 81 Fed.Reg. at
p. 38783.) Specifically, “Tribal laws generally include provisions
requiring the parent or legal guardian of a minor to apply for
Tribal citizenship on behalf of the child. [Citation.] Tribes also
often require an affirmative act by the individual seeking to
become a Tribal citizen, such as the filing of an application.
[Citation.] As ICWA is limited to children who are either
enrolled in a Tribe or are eligible for enrollment and have a
parent who is an enrolled member, that status inherently
demonstrates an ongoing Tribal affiliation.” (Ibid., italics added;
see also BIA Guidelines, supra, at p. 10 [“Most Tribes require
that individuals apply for citizenship and demonstrate how they
meet that Tribe’s membership criteria.”].) Because membership
in an Indian tribe therefore requires that an individual or his or
her parent apply for tribal membership, a child’s parents will, in
most cases, be the best source of information for determining
whether a child is an Indian child.
In the present case, nothing in the record gives us reason to
doubt the accuracy of mother’s denial of a tribal affiliation. Each
of the parents unequivocally denied Indian ancestry, and mother
has not identified any evidence in the record that would support
an inference that she might unknowingly be a member of an
12
Indian tribe. (See Ezequiel G., supra, 81 Cal.App.5th at p. 1015.)
Indeed, the evidence is to the contrary. Maternal relatives were
present at the July 2019 detention hearing at which mother
denied Indian ancestry, and there is no indication that any
relative contradicted mother’s statement. Further, mother
remained close with her mother and sister throughout these
proceedings, and the maternal grandmother and maternal aunt
monitored mother’s visits with Leylani, participated in child and
family team meetings, and assisted the paternal grandmother
with childcare. Indeed, mother identified the maternal
grandmother as her most important source of support. In view of
mother’s relationship with her extended family, the possibility
that she might unknowingly be a member of a tribe appears
trivially small. The juvenile court therefore did not abuse its
discretion by concluding that DCFS conducted an adequate
ICWA inquiry as to mother.
For all the same reasons, even if the juvenile court erred by
finding DCFS’s inquiry adequate, that error was not prejudicial
because it is not “reasonably probable that an agency’s error in
not conducting a proper initial inquiry affected the correctness
(that is, the outcome) of the juvenile court’s ICWA finding.” (In re
Dezi C., supra, 79 Cal.App.5th at p. 781, italics added.) As we
have said, nothing in the juvenile court record gives us a reason
to doubt the accuracy of mother’s denial that she or Leylani were
members of or eligible for membership in an Indian tribe, and she
has not made a proffer on appeal that she has Indian heritage.
We note, finally, that consideration of ICWA’s placement
preferences further bolsters our finding of no prejudice. Section
1915 of title 25 of the United States Code provides that in any
adoptive placement of an Indian child under state law, “a
13
preference shall be given, in the absence of good cause to the
contrary, to a placement with [¶] (1) a member of the child’s
extended family; [¶] (2) other members of the Indian child’s tribe;
or [¶] (3) other Indian families.” (25 U.S.C. § 1915(a).) Here, the
juvenile court implemented the first placement preference by
finding Leylani adoptable by her paternal grandmother. (See In
re J.W. (2022) 81 Cal.App.5th 384, 391 [child’s placement with
extended family member, consistent with ICWA placement
preferences, bolstered appellate court’s conclusion that an ICWA
inquiry error was not prejudicial].)
No remand therefore is warranted.
14
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
15
LAVIN, J., Dissenting:
For the reasons set forth in my dissent in In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 1015–1025, I would conditionally
affirm the order and remand for further proceedings.
LAVIN, J.
1 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483263/ | Filed 11/10/22 P. v. Gerard CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084273
Plaintiff and Respondent,
(Super. Ct. No. F21907605)
v.
TEDDY ANGELICA GERARD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Amy K.
Guerra, Judge.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Peña, J. and Smith, J.
Appointed counsel for defendant Teddy Angelica Gerard asked this court to
review the record to determine whether there are any arguable issues on appeal. (People
v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of her right to file a
supplemental brief within 30 days of the date of filing of the opening brief. Defendant
did not respond. Finding no arguable error that would result in a disposition more
favorable to defendant, we affirm the judgment.
BACKGROUND
In two separate incidents on September 10 and 24, 2021, defendant became
intoxicated and attacked two different men with a knife under domestic violence
circumstances.
On February 9, 2022, defendant pled no contest to one count of domestic violence
(Pen. Code, § 273.5, subd. (a);1 count 3), and she admitted using a deadly weapon
(§ 12022, sub. (b)(1)) and inflicting great bodily injury under circumstances involving
domestic violence (§ 12022.7, subd. (c)). Three other counts were dismissed.
On March 16, 2022, the trial court sentenced defendant to six years in prison as
follows: the lower term of two years, plus a one-year deadly weapon enhancement and a
three-year great bodily injury enhancement. The court awarded credits and imposed
various fines and fees.
On April 26, 2022, defendant filed a notice of appeal.
DISCUSSION
Having undertaken an examination of the entire record, we find no evidence of
ineffective assistance of counsel or any other arguable error that would result in a
disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
1 All statutory references are to the Penal Code.
2. | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483261/ | Filed 11/10/22 P. v. Rivera CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082815
Plaintiff and Respondent,
(Super. Ct. No. F20907555)
v.
JULIO CESAR RIVERA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Timothy A.
Kams, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Julio Cesar Rivera was convicted by jury of five offenses arising out of
a domestic violence incident with his girlfriend occurring in front of their two children.
Defendant was convicted of willful infliction of corporal injury (Pen. Code, § 273.5,
subd. (a),1 count 1); making a criminal threat (§ 422, subd. (a), count 2); false
imprisonment effected by violence (§§ 236, 237, subd. (a), count 3); and two
misdemeanor counts of willful endangerment of a child (§ 273a, subd. (b), counts 4 & 5).
Defendant admitted a prior serious felony conviction allegation.
Defendant was sentenced to an aggregate term of seven years four months, as
follows: The court imposed the middle term of three years on count 1 (§ 273.5, subd. (a))
doubled to six years for the prior strike (§ 667, subd. (e)(1)); a consecutive term of
16 months on count 2 (§§ 422, subd. (a), 1170, subd. (h)(1)) (one-third the two-year
middle term, doubled for the prior strike (§ 667, subd. (e)(1)); a concurrent middle term
of two years on count 3 (§§ 236, 237, subd. (a), 1170, subd. (h)(1)), doubled to four years
for the prior strike; and time served as to misdemeanor counts 4 and 5. Defendant timely
appealed.
Defendant argues the trial court erred by not giving a unanimity instruction with
respect to the criminal threat charge, denying his Romero2 motion, and failing to stay the
punishment for the false imprisonment conviction under section 654. The People dispute
defendant is entitled to any relief, but they note the abstract of judgment with regard to
count 3 should be corrected because it incorrectly indicates the term imposed was stayed.
FACTUAL BACKGROUND
L.C. testified she dated defendant for about 14 years, and they had two children
together, J.C. and I.C. Theirs has always been a tumultuous on-and-off-again
relationship, complicated by defendant’s methamphetamine drug use. The jury was
1 All statutory references are to the Penal Code unless otherwise indicated.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2.
informed the parties stipulated to the fact defendant had been convicted on July 23, 2013,
under section 136.1, subdivision (b)(1), for dissuading a witness—i.e., L.C.; and for
violating section 273.5, subdivision (a), causing corporal injury to L.C.
L.C. testified that in January 2016 she and defendant had an argument where
defendant pulled her hair, kicked her, and “threw [her] around like a rag dog.” She was
eventually able to get away and called the police. The next day, she and defendant fought
again. Defendant was using methamphetamine and would not let her leave the argument.
The altercation became physical, she ran and he chased her, and she ended up calling the
police from a nearby elementary school.
On October 15, 2020, L.C. and her kids were living with L.C.’s sister, E. The
week before, E. had kicked L.C. and the kids out of her house because defendant had
made a scene. L.C. and the kids had been in a car with defendant when L.C. told
defendant she wanted to end the relationship. Defendant would not let her out of the car,
but she and the kids eventually did get out of the car and ran back to the house.
Defendant chased them to the house and would not let them close the door. He was
always making scenes at E.’s house, forcing himself into the house, and yelling at the
kids and L.C.’s family. When E. told L.C. to leave, she took the kids to a motel and
defendant “tagged along.” Eventually, L.C. went back to E.’s house around October 12
or 13, 2020, after she convinced E. she had nowhere else to stay.
Defendant was renting a room in someone else’s house. L.C. had a vehicle that
defendant said he bought for her and the kids and that she had been using for about a
week before the October 15, 2020, incident. On the day of October 15, 2020, defendant
contacted L.C. by phone, and kept calling and calling. He showed up at E.’s house
around 10:30 p.m., even though L.C. had told him not to come over. When he showed
up, she talked to him in front of the house. He told L.C. she had better get in the car or he
would help her do so, which she took to mean he would force her to do so. He also
wanted the kids to come with them.
3.
She went back into the house, packed a few things, and got the kids into the car.
Defendant was completely silent the whole car trip, there were no arguments. She
suspected he was on methamphetamines again, and she tried not to talk to him in the
vehicle. The kids were also completely silent, sitting in the backseats. They checked into
a motel room with two beds, and once they were in the room, the kids huddled on one
bed, and defendant grabbed L.C.’s hair and dragged her to the other bed. He put L.C. on
the bed and then got on top of her, placing his knee on her chest.
Defendant accused her of bugging his phone, trying to locate and track him, and
planting text messages and emails on his phone. L.C. did not know what he was talking
about, but this was not the first time he had accused her of doing something to his phone.
She tried to explain she had no way to mess with his phone, and she had no idea what he
was talking about, but then he was accusing her of cheating during their relationship.
He would alternate between allowing her to get up, and then he would pin her
down again on the bed with his knee to her chest, grabbing her hair, and yelling. He
asked her questions such as whether she loved him and if they were going to get married,
but none of her answers seemed to be what he wanted to hear. When he tried to hit her,
she put her hand up, and he made contact with her wrist and palm; he tried to slap her,
but she was able to dodge the blow. He left bruises all over the left side of her body.
During this time, he lectured her about how much money he was going to make
and how easily he could get another girlfriend, better kids, and a better family. She told
him to “go for it,” and that made him angry. He told her that if she reported what
happened that night, even if he went to prison, he was going to do his time easily and
when he got out, he was going to kill her and her family. He also told her he was going
to get a gun from someone he knows, which he said more than once that night. He
threatened to kill her and her family five or six times, and she was scared. He told her
that if she tried to leave the hotel room, he was going to stop her. She was concerned
4.
about leaving the kids with him, she never screamed or he would have hit her even
harder. She had bruises on her face from where he was tapping on her forehead.
Usually when he was high on methamphetamines, he would force her to have sex.
He tried to initiate sex that night at the motel, but she did not want to, and they did not
have sex. The entire episode went on until around 5:00 a.m., when defendant’s alarm
went off to remind him to go to work. Neither L.C. nor the kids slept the entire night;
although she was unable to observe the kids all night, they seemed to be hugging each
other and they were silent the whole time.
Defendant told L.C. to get their things together because he had to go to work.
They dropped the kids off at E.’s house, and she stayed in the vehicle while he drove to
his workplace. When they arrived, he told her to get in the driver’s seat, but as he started
walking away, he was yelling things at her like she was worthless and all the typical
things he would say to her. L.C. drove to her sister’s house, picked up the kids, and
drove to a different sister’s house in Fresno.
As soon as she dropped him off at work, defendant began calling and texting her,
and this went on all day. She did not listen to the voicemail messages. He told her he
wanted the car back, and he said that he was going to have plenty of money and
insinuated he could kill her without getting his hands dirty. He also communicated he
was going to call the police and report the car stolen. Several of his text messages from
that morning were admitted into evidence, including one that said, “‘You have
15 minutes to bring the [vehicle], fucking retard. Either you call me or bring the
[vehicle]. 15 minutes call me. You’ll see if you don’t.’” She took this to mean he was
going to do something to her if she did not return the vehicle.
L.C. communicated with defendant’s cousin Sonia about the vehicle for a few
days after the incident, but then L.C. told Sonia she was done and stopped answering
Sonia.
5.
L.C. did not immediately report what had happened with defendant because she
was scared that defendant would kill her family. She went to the Selma Police
Department on October 29, 2020, because a week prior there had been a suspicious
Honda or Lexus hanging around, both cars defendant’s cousin owns, and there were two
big guys in the front seat. She believed defendant found out where she was, and so she
became frightened and reported what had happened. She requested an immediate
protective order, which she received. She turned over photographs her sister had taken
three or four days after the event that showed bruises on L.C.’s rib cage, and a bruise on
her leg where defendant had dragged her.
The police officer to whom L.C. reported these events said she appeared to be
crying and trembling, and paused a lot when providing her statement.
L.C.’s six-year-old son J.C. testified defendant is his dad and L.C. is his mom.
The last time he saw his dad was at a motel room where his mom and big sister were also.
This was not a happy time; mom was not happy and dad was mad and mean. Dad said he
was gong to buy a pistol and kill the whole family. He heard dad being mean to mom,
and he was putting his knee on mom’s chest. He saw mom and dad without clothes on,
and dad was still being mean. He called mom a lot of names.
L.C.’s 10-year-old daughter I.C. testified defendant is her dad and L.C. is her
mom. The last time she saw defendant was in a motel room with her brother and her
mom. She was scared in that room; mom and dad were not happy; dad was angry. She
heard him say mean things to mom; he said he was going to kill mom and leave I.C. and
her brother in the desert. He only said that one time, and it was in the truck before they
got to the motel. She did not hear any mean things after they got to the motel, but she did
see dad touch mom meanly at the motel, and she saw dad get on top of mom. Her parents
both had clothes on. Dad was yelling really loud and that scared her; she tried to comfort
her brother by hugging him while they were sitting on a bed. She heard dad talk about a
gun and that he was going to get a gun, and she saw him hit mom in the back of the head.
6.
She could not remember if he pulled mom’s hair. She did not think they slept, but they
were not at the motel long and they went home before the sun came up. She felt scared
for her mom, but dad was nice to I.C. and her brother.
Both children took part in forensic interviews on November 10, 2020, which were
recorded and played for the jury. Although there were discrepancies, the children’s
interviews reflected defendant was angry with L.C. on October 15, 2020, that he hit L.C.,
held her down with his knee, pulled her hair, called her names, and made threats against
her.
Defendant testified on his own behalf. He confirmed L.C. is the mother of his two
kids, and they had been in a relationship since high school. On the date of the incident,
they did not live together, and L.C. had gotten hold of him through a video call when he
was at home. She wanted to get a motel room, although she did not say why; she had
done that in the past. He did not want to because he was tired and did not have the
money for it. He was ready to break up with her; she had been accusing him of cheating
and she was not putting any effort into the relationship or looking for a place they could
live with the kids.
She called about three times, and defendant went outside to wait for her. L.C.
arrived in her car with the kids. L.C. wanted him to follow her in his car so she could
drop off her car because her dad needed it for work. After they dropped off her car, she
wanted to get clothes and stuff for the kids. After she did that, she got back into his
vehicle. They did not talk on the way to the motel. As soon as they got in the room, she
demanded to see his phone and started going through it, asking him why he had 30 email
messages. She accused him of cheating, and he told her they were going to break up if
she kept accusing him.
He laid on the edge of the bed; she wanted sex, but he did not feel like it. She was
upset, and they did not talk much. She accused him of cheating, he told her the
relationship was over, and she said he was never going to see his kids again. Eventually
7.
she laid down on the bed. Defendant woke up at 5:00 a.m. because he had to get back to
work; he did not interact with L.C. She grabbed stuff and got the kids ready, and they all
got in the vehicle and drove to a breakfast place. L.C. said she needed his car for a
doctor’s appointment, so she left the kids at her sister’s house and dropped him off at
work. She was supposed to pick him up after work, but she refused and would not give
his vehicle back. He communicated to her he was going to report the vehicle stolen.
Defendant denied he was under the influence of anything that night, although he
had drug issues in the past. He had been clean since November 2019 after successful
completion of a rehabilitation program. He said L.C. got kicked out of her sister’s house
the week before the incident because L.C. was drunk and said mean things to her sister.
Defendant was outside E.’s house while this was happening, and he told L.C. not to say
things like that to her sister since she was giving L.C. and the kids a place to stay.
L.C.’s jealousy had been going on for a long time, although he had never cheated
on her. He never called her any names, just what was in the text messages that day after
the incident when she took his vehicle and refused to come back and pick him up. He got
a call from his mother asking what was going on, and he told her L.C. did not want to
give the car back, that he was done with L.C., and that he was reporting the car stolen.
He was not angry when he sent the text messages to L.C., he just wanted his vehicle
back. When confronted with a message in which he called L.C. a “worthless whore,” he
testified he could not remember what he was feeling.
The day he was arrested, about two weeks after the night in the motel, he had told
L.C. he was out with another girl. This was untrue, but he wanted his car back. L.C.
made up the incident about the night in the motel and reported it to police because she
found underwear in his car that was actually L.C.’s, but she thought it belonged to
someone else. He stopped trying to communicate with L.C. around the 17th or 18th of
October, he was too busy working and he did not know what to do; he did not want to
report the car stolen and get her into trouble.
8.
Defendant denied being physically abusive with L.C. in any way on October 15,
2020, and he never threatened to kill her; he never made a threat to cause her any injury.
L.C. has been badmouthing him to the kids; all of her testimony was lies, as were J.C.’s
and I.C.’s testimony.
DISCUSSION
I. Unanimity Instruction
Defendant contends the trial court prejudicially erred by failing to give a
unanimity instruction (CALCRIM No. 3500) on the criminal threats charge because there
were multiple threats that suggested more than one discrete criminal threat crime.
A. Background
Defendant was charged and convicted of one count of making a criminal threat
against L.C. under section 422, subdivision (a). Witness testimony reflected different
threats defendant made against L.C. over the course of about five or six hours on the
night of October 15, 2020, and threats he made against L.C. in text messages later in the
morning and day of October 16, 2020, after they left the motel. These threats included
the following:
• When defendant picked L.C. and the kids up, he told L.C. that she
“better get in the car.” She testified when he said this, defendant
was “real blank and just showing no emotion, just real quiet. Just
told me very angrily, mad, to get in the car or he’s going to help me
get in.” When asked what that meant to her, L.C. said, “Forcing me
into the car.” She testified she got into the car.
• Once they got to the motel, L.C. testified defendant accused her of
cheating and said she “better give him [the guy’s] name or
[defendant’s] going to kill [L.C.] and [the guy].”
• Over the course of the five or six hours that defendant kept L.C. at
the motel, he told her that if she said something and she got “him
9.
into jail or prison again that he’s going to do his time as easily as he
can. Once he gets out, he’s going to kill [her] and all [her] family.”
• Over that five- to six-hour time period he also “told [her] something
about getting a gun from some guy that he knows,” and that he
threatened to kill her and her family about five or six times. She
testified she was scared.
• After L.C. dropped him off at work, he started calling and texting
her numerous times. She did not answer the calls or listen to the
voicemails, but in one message, evidently a text, he was saying he
was “going to have plenty of money. He’s not going to have to lift a
finger. He can just have somebody else do it.” She took this to
mean “he can have somebody just kill me without him needing to
get his hands dirty.”
• Another text message during that time said “‘You have 15 minutes
to bring the [vehicle], fucking retard. Either you call me or bring the
[vehicle]. 15 minutes call me. You’ll see if you don’t.’”
• J.C. testified that when they were in the motel room, defendant said
“he was going to buy a pistol to kill my mom and the whole family.”
• I.C. testified she heard defendant say to L.C. in the truck that he was
going to kill L.C. and leave J.C. and I.C. in the desert.
B. Legal Standard
The trial court has a sua sponte duty to give a unanimity instruction when “‘there
is a risk the jury may divide on two discrete crimes and not agree on any particular
crime .…’” (People v. Covarrubias (2016) 1 Cal.5th 838, 878.) “This requirement of
unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant
will be convicted even though there is no single offense which all the jurors agree the
defendant committed.’” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
10.
No unanimity instruction is required, however, if the case falls within the
continuous-course-of-conduct exception.3 The exception is applicable when (1) the acts
are so closely connected in time as to form part of one transaction; (2) the defendant
tenders the same defense or defenses to each act; and (3) there is no reasonable basis for
the jury to distinguish between them. (People v. Lueth (2012) 206 Cal.App.4th 189, 196;
see People v. Williams (2013) 56 Cal.4th 630, 682 [unanimity instruction may not be
required where criminal acts took place within a very small window of time, the
defendant offers essentially the same defense to each of the acts, and there is no
reasonable basis for the jury to distinguish among them].)
Further, no unanimity instruction is required when the prosecutor elects the
specific act relied upon to prove the charge to the jury. (People v. Brown (2017) 11
Cal.App.5th 332, 341.) “The prosecution can make an election by ‘tying each specific
count to specific criminal acts elicited from the victims’ testimony’—typically in opening
statement and/or closing argument. [Citations.] Such an election removes the need for a
unanimity instruction. [Citation.] [¶] Under these principles, there is an implicit
presumption that the jury will rely on the prosecution’s election and, indeed, is bound by
it.” (Ibid.)
We review de novo a claim that the trial court failed to properly instruct the jury
on the applicable principles of law. (People v. Covarrubias, supra, 1 Cal.5th at p. 919.)
C. Analysis
Defendant argues the continuous-course-of-conduct exception is not applicable
here because the jury could have rationally viewed the threats against L.C. that occurred
at different times: (1) threat that L.C. get in the car or he would help her get in the car;
(2) at least one threat in the car; (3) threats made to L.C. at the motel; and (4) text threats
3 Not relevant here, the continuous-course-of-conduct exception also applies “‘when … the
statute contemplates a continuous course of conduct of a series of acts over a period of time’
[citation].” (People v. Jennings (2010) 50 Cal.4th 616, 679.)
11.
after L.C. dropped defendant off at work the next day. Defendant asserts there were
different defenses to some of these statements: not all of them might have been
unanimously viewed as a threat, while others might have been deemed too conditional in
nature.
For the unanimity instruction to be required, however, there must be evidence that
suggests more than one discrete criminal threat crime—not just the existence of multiple
threats. (People v. Grimes (2016) 1 Cal.5th 698, 727 [“A unanimity instruction is
required if there is evidence that more than one crime occurred, each of which could
provide the basis for conviction under a single count.” (Italics added.)]; see People v.
Lueth, supra, 206 Cal.App.4th at p. 196 [“a unanimity instruction is not required when
the evidence shows only one discrete crime”].)
As the jury was instructed, the evidence necessary to establish a criminal threat
crime includes the following: (1) that the defendant willfully threatened to commit a
crime that would result in death or great bodily injury to another person; (2) that the
defendant made the threat with the specific intent that it be taken as a threat, even if there
is no actual intent of carrying it out; (3) that the threat—which may be made verbally, in
writing, or by means of an electronic communication device—was, on its face and under
the circumstances in which it was made, so unequivocal, unconditional, immediate, and
specific as to convey to the person threatened, a gravity of purpose and an immediate
prospect of execution of the threat; (4) that the threat actually caused the person
threatened to be in sustained fear for his or her own safety or for his or her immediate
family’s safety; and (5) the threatened person’s fear was reasonable under the
circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227–228.)
As to L.C.’s testimony that defendant told her to get in the car when he picked her
up on October 15, 2020, this could have been considered a threat. However, although
L.C. testified that she complied with defendant’s demand in this regard, she never
testified this statement caused her any subjective fear. Defendant’s words alone, even if
12.
considered a threat that would result in great bodily injury, were insufficient by
themselves to provide a basis for a criminal threat conviction and, thus, could not, by
themselves, suggest a discrete criminal threat crime. (People v. Wilson (2015) 234
Cal.App.4th 193, 201 [criminal threat not complete upon issuance of a threat; it depends
on the recipient suffering sustained fear as a result of the communication]; see People v.
Grimes, supra, 1 Cal.5th at p. 727 [“A unanimity instruction is required if there is
evidence that more than one crime occurred, each of which could provide the basis for
conviction under a single count.” (Italics added.)].)
Defendant argues I.C.’s testimony that defendant threatened L.C. in the car could
have constituted a separate threat crime, but L.C. testified defendant did not threaten her
in the car. There was no evidence, nor could there be, that L.C. subjectively experienced
fear based on a threat she did not perceive; I.C.’s testimony about a threat in the car could
not constitute, nor was it sufficient to suggest, a separate and discrete criminal threat
crime against L.C.
Defendant also maintains some of the threats at the motel could constitute discrete
criminal threat crimes, but they were not part of a continuous course of conduct because
they were reasonably distinguishable from each other and were subject to different
defenses. For example, some threats pertained to defendant getting a gun, but that could
have been perceived by the jury as conditional or simply not credited because of some of
the witnesses’ inconsistent testimony about when a gun may have been mentioned that
night. Notably, the mere fact that defendant could not carry out a threat immediately is
not a legal basis to conclude the threat was conditional, and the jury was instructed
accordingly. (People v. Lopez (1999) 74 Cal.App.4th 675, 679 [gravity of purpose and
an immediate prospect of execution of the threat “does not require an immediate ability to
carry out the threat”].)
But more importantly, L.C. testified these threats were delivered seriatim during
the continuous period of time while defendant was questioning and assaulting her at the
13.
motel. “[S]ection 422 authorizes only one conviction and one punishment per victim, per
threatening encounter during which the victim suffers a single period of sustained
fear .…” (People v. Wilson, supra, 234 Cal.App.4th at p. 202.) The prosecutor did not
elicit testimony about whether each separate threat at the motel scared L.C. or
successively increased her fear. Instead, after testifying about all the threats to kill L.C.
and her family that defendant made at the motel, the prosecutor asked L.C. whether she
was scared that night, to which L.C. responded she was. While the threats at the motel
were delivered over several hours, it was one continuous encounter and there is no
evidence L.C. experienced more than one period of sustained fear during this encounter.
She did not testify her fear increased from one threat to the next, she testified instead how
the threats at the motel, as a group, made her fearful. (See People v. Roles (2020) 44
Cal.App.5th 935, 942–943 [multiple voicemail messages victim listened to together in a
series resulted in only one period of sustained fear and could support only one criminal
threat conviction].) Thus, the evidence did not suggest more than one discrete crime of
criminal threats during the encounter at the motel.
Finally, L.C. testified that after she dropped defendant off at work, defendant
started texting and calling her, ordering and threatening her to return the car. These later
threats were not part of the series of threats at the motel, but the prosecutor did not elicit
any testimony about whether these subsequent messages placed L.C. in any kind of
fear—either additional or renewed. In fact, L.C. testified she did not care about his
threats to report the vehicle stolen because that was “his way of trying to control [her]”
and if she took the car back to him, he would do what he always did and throw her in the
car and not let her leave. And, indeed, she did not comply or return the vehicle. Because
there was no evidence suggesting L.C. experienced any subjective fear as a result of
these separate threats, they could not constitute or suggest a separate, discrete crime of
making a criminal threat. (People v. Wilson, supra, 234 Cal.App.4th at p. 201 [violation
14.
of § 422 “depends on the recipient of the threat suffering ‘sustained fear’ as a result of the
communication”].)
In sum, the evidence suggested only one discrete criminal threat crime, and it
related to threats defendant made during the uninterrupted encounter with L.C. at the
motel. Indeed, in her closing argument, the prosecutor specifically argued it was
defendant’s oral threats to kill L.C. that constituted the criminal threat crime under
count 2. Although there were multiple threats made during the motel encounter, there
was evidence of only one sustained period of fear by L.C.; as such, there could not be two
discrete criminal threat crimes arising from that series of threats.
To the extent the jury did not agree on exactly which threats at the motel
supported the criminal threat conviction, this merely presents the possibility the jury
could divide or be uncertain as to the exact way defendant was guilty of a single discrete
crime. (People v. Russo, supra, 25 Cal.4th at p. 1135.) Such a possibility does not
require a unanimity instruction. (Ibid.)
II. Denial of Defendant’s Romero Motion
A. Background
Defendant filed a motion pursuant to Romero, asking the court to exercise its
discretion to strike defendant’s prior strike offense for violation of section 136.1,
subdivision (b)(1). Taking facts from police reports, defendant explained the prior strike
offense occurred in April 2013. L.C. told officers that defendant had entered the house
while she was sleeping, and an argument ensued. Defendant left, but then returned
around 4:00 a.m., he picked L.C. up by her elbow and walked her outside as she resisted.
Defendant shoved her onto the porch, and then told her to get into the vehicle, which she
resisted. He opened the car door, pushed her inside, and drove to a different house. He
questioned her about whether she was cheating, took her phone away, and removed the
battery. At some point, he grabbed her around the neck and punched her. Officers
observed visible injuries to L.C.’s throat, face, head and body.
15.
Defendant argued the current offenses involved no injury or, in any event, did not
cause any serious injury. The prior and the current offenses occurred while defendant
was possibly under the influence and resulted from his substance abuse problem. The
strike offense is more than seven years old, and there has been no intervening criminal
behavior. At the sentencing hearing, defense counsel reiterated these factors and noted
that up until his arrest in this case, defendant was a productive member of society; he had
been holding down three different jobs and providing some financial support to his
children. The 2013 offense, while a serious felony, was not a violent one. While
defendant had some probation violations, he did ultimately complete his probation and a
batterer’s intervention program. Defense counsel also noted a substance abuse evaluation
was attached to defendant’s Romero motion, which corroborated defendant’s addiction
issue and should be considered a mitigating factor.
In May 2021, defendant submitted a letter to the court indicating that while he
disagreed with the verdict and did not feel that justice had been served, he sought
rehabilitation. He denied ever harming L.C. in any way, and asked the court to assign
him to a rehabilitation program rather than sentence him to prison.
At sentencing, the court considered defendant’s Romero motion and the attached
documentation, a letter from defendant and his in-court statement at sentencing, and
counsels’ arguments. The court observed that of the relevant factors, only defendant’s
substance abuse arguably tilted in his favor. After considering the factors, the court
concluded “[t]his case obviously involves violence and threat[s] of violence, it involves
prior criminal history with the same victim. The conduct in that [prior] case was severe
and significant, including a strike resulting from those convictions. The offenses there
were not frankly too far off. It was 2013, and less than 7 years we are back to square one
unfortunately. The [d]efendant had the opportunity and the benefit of prior treatment
program[s], but nevertheless is here again.” On this basis, the court denied the Romero
motion.
16.
B. Analysis
Pursuant to Romero, a trial court may strike a prior violent or serious felony
conviction allegation under the Three Strikes law4 “‘in furtherance of justice’ pursuant to
… section 1385[, subdivision] (a).” (People v. Williams (1998) 17 Cal.4th 148, 158
(Williams).) To determine whether dismissal of a prior strike would be in furtherance of
justice, courts must consider both the constitutional rights of the defendant and the
interests of society represented by the People. (Romero, supra, 13 Cal.4th at p. 530.)
In making this assessment, the court should consider whether “in light of the
nature and circumstances of [the defendant’s] present felonies and prior serious and/or
violent felony convictions, and the particulars of [the defendant’s] background, character,
and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in
part, and hence should be treated as though he [or she] had not previously been convicted
of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161.)
A trial court’s decision under Romero is reviewed for an abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) An abuse of discretion is
not shown just because “‘reasonable people might disagree about whether to strike one or
more’ prior conviction allegations. [Citation.] … ‘[W]here the record demonstrates that
the trial court balanced the relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have
ruled differently in the first instance’ [citation].” (Id. at p. 378.)
Defendant argues sentencing him to more than seven years in prison is “overkill”
in light of the fact there were no injuries in this case, or, at the most, very insubstantial
injuries, the prior strike was seven years old, and the problems seemed to relate to
defendant’s substance abuse problem. Moreover, he had been productively working and
supporting the children.
4 Sections 667, subdivisions (b)–(i), 1170.12, subdivisions (a)–(d).
17.
Defendant’s argument, however, is akin to requesting that we reweigh the relevant
factors, which we cannot do. Moreover, it is not enough to show that reasonable people
might disagree whether striking the prior strike is reasonable. Here, defendant’s prior
strike involves domestic violence against the same victim as the current offenses, and the
current violence against L.C. was committed in front of their children. As the trial court
pointed out, although there was no intervening criminal history between 2013 and 2020,
defendant was right back to “square one” with the same victim involving the same
conduct. Moreover, while defendant characterizes the injuries as nonexistent or minimal,
the trial court observed there was violent conduct in this case just like the conduct in
2013, and the court noted it considered the psychological pain and suffering to L.C. and
the children caused by the current offenses to be “both immense and intense.” And,
while defendant’s substance abuse issue was arguably a mitigating factor, he had had the
opportunity and benefit of treatment programs before, but “nevertheless is here again.”
The trial court considered and balanced the relevant factors and reached a decision
in conformity with the spirit of the law. Even assuming another court might reach a
different conclusion in the first instance, defendant has not demonstrated the trial court
abused its discretion in denying the Romero motion. (Carmony, supra, 33 Cal.4th at
p. 378.)
III. Section 654
Defendant claims the punishment for false imprisonment by violence under
count 3 must be stayed pursuant to section 654 because it was part of an indivisible
course of conduct with count 1 for corporal injury and count 2 for criminal threats.
Defendant argues these offenses were all committed pursuant to the single objective of
punishing L.C. for infidelity, tampering with defendant’s phone, and general
dissatisfaction with their relationship.
The People assert the record evidences several separate objectives, and section 654
is not applicable. Defendant tried to have sex with L.C., so it could be inferred that
18.
falsely imprisoning L.C. was for the purpose of sex, the objective in assaulting L.C. was
to punish and control her when she would not say or do what he wanted at the motel, and
the threats were meant to intimidate L.C. and facilitate future crimes.
A. Legal Standard
Section 654, subdivision (a), provides in relevant part as follows: “An act or
omission that is punishable in different ways by different provisions of law may be
punished under either of such provisions, but in no case shall the act or omission be
punished under more than one provision.”5 Section 654 precludes multiple punishments
not only for a single act, but for an indivisible course of conduct. (People v. Hester
(2000) 22 Cal.4th 290, 294.)
Determining “[w]hether a defendant may be subjected to multiple punishment
under section 654 requires a two-step inquiry .…” (People v. Corpening (2016) 2 Cal.5th
307, 311.) “We first consider if the different crimes were completed by a ‘single physical
act.’ [Citation.] If so, the defendant may not be punished more than once for that act.
Only if we conclude that the case involves more than a single act—i.e., a course of
conduct—do we then consider whether that course of conduct reflects a single ‘“intent
and objective”’ or multiple intents and objectives.” (Ibid.)
“It is [the] defendant’s intent and objective, not the temporal proximity of his
offenses, which determine whether the transaction is indivisible. [Citations.] We have
traditionally observed that if all of the offenses were merely incidental to, or were the
means of accomplishing or facilitating one objective, [the] defendant may be found to
have harbored a single intent and therefore may be punished only once. [Citation.] [¶]
5 This version of section 654 became applicable on January 1, 2022, and applies
retroactively to all nonfinal cases. (Stats. 2021, ch. 441, § 1; People v. Mani (2022) 74
Cal.App.5th 343, 379 [amendment to § 654 applies retroactively].) At the time of sentencing,
section 654 provided that “[a]n act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished under more than one
provision.…” (§ 654, former subd. (a), italics added.)
19.
If, on the other hand, [the] defendant harbored ‘multiple criminal objectives,’ which were
independent of and not merely incidental to each other, he may be punished for each
statutory violation committed in pursuit of each objective, ‘even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.’”
(People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) Even where a defendant has
similar but consecutive objectives, multiple punishments are permitted. (People v.
Latimer (1993) 5 Cal.4th 1203, 1211–1212.)
“The question of whether the defendant held multiple criminal objectives is one of
fact for the trial court, and, if supported by any substantial evidence, its finding will be
upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466, disapproved
on another ground in People v. Mesa (2012) 54 Cal.4th 191, 199; accord, People v.
Moseley (2008) 164 Cal.App.4th 1598, 1604.) “When a trial court sentences a defendant
to separate terms without making an express finding the defendant entertained separate
objectives, the trial court is deemed to have made an implied finding each offense had a
separate objective.” (People v. Islas (2012) 210 Cal.App.4th 116, 129.)
B. Analysis
The trial court indicated there might be an argument for application of section 654
as to count 3, but refused to stay the punishment under section 654 and imposed a
concurrent sentence for the conviction under count 3 for false imprisonment.
This case does not involve a single physical act; therefore, we focus on the second
step of the analysis governing section 654: whether the crimes were a “‘course of
conduct deemed to be indivisible in time.’” (Harrison, supra, 48 Cal.3d at p. 335,
quoting People v. Beamon (1973) 8 Cal.3d 625, 639; accord, People v. Corpening, supra,
2 Cal.5th at p. 311.) Generally, “‘“[w]hether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of section 654 depends on
the intent and objective of the actor. If all of the offenses were incident to one objective,
the defendant may be punished for any one of such offenses but not for more than one.”’”
20.
(People v. Capistrano (2014) 59 Cal.4th 830, 885, overruled in part on another ground in
People v. Hardy (2018) 5 Cal.5th 56, 103–104.)
However, “‘[b]ecause of the many differing circumstances wherein criminal
conduct involving multiple violations may be deemed to arise out of an “act or
omission,” there can be no universal construction which directs the proper application of
section 654 in every instance.’” (People v. Hicks (2017) 17 Cal.App.5th 496, 514,
quoting People v. Beamon, supra, 8 Cal.3d at p. 636; accord, Harrison, supra, 48 Cal.3d
at p. 336.) Section 654 “is intended to ensure that [the] defendant is punished
‘commensurate with his culpability[]’” (Harrison, supra, at p. 335), and the California
Supreme Court has cautioned that “a ‘broad and amorphous’ view of the single ‘intent’ or
‘objective’ needed to trigger the statute would impermissibly ‘reward the defendant who
has the greater criminal ambition with a lesser punishment[]’” (id. at pp. 335–336,
quoting People v. Perez (1979) 23 Cal.3d 545, 552–553).
Defendant argues the trial court erred by not staying his sentence for false
imprisonment effected by violence because the sole intent in committing that crime was
to punish L.C. and keep her isolated to facilitate the corporal injury and criminal threat
crimes. That is one possible inference that could be drawn from the evidence, but it is
not the only one that could be made. Defendant spent five to six hours questioning L.C.
about a range of topics, including her purported infidelity and tampering with his phone,
and he assaulted her multiple times when she gave answers that displeased him. For
example, L.C. testified that he had grabbed her by the hair and asked her if they were
going to get married. When she said yes, he pulled her hair even harder, and asked
whether they were going to get married. When she said no, it still “wasn’t the right
answer.” L.C. testified this type of questioning and assaulting went on for hours. There
was evidence defendant intended to keep her in the motel room so that he could confront
and interrogate her, not merely to facilitate, or be facilitated by, his assaults and threats
against her.
21.
Further, defendant made threats that if L.C. reported what happened, he was going
to kill her and her family. From this, it could be inferred defendant made threats with the
intent to prevent her from reporting any of his acts, separate from his intent with respect
to keeping her in the motel room to interrogate her or assaulting her when he disliked her
answers. (People v. Coleman (1989) 48 Cal.3d 112, 162–163 [separate intent and
objective in assault of unresisting robbery victim because it could be concluded “[the]
defendant committed the assault with the intent and objective of preventing the victim
from sounding the alarm about the murder” separate and not incidental to the robbery].)
In sum, the evidence gives rise to an inference defendant harbored multiple
separate objectives in falsely imprisoning L.C. in the motel room, assaulting her, and
threatening her over this extended time period. The court could reasonably conclude
defendant’s act of restricting L.C.’s liberty was not intended to facilitate assaulting and
threatening her. (People v. Beamon, supra, 8 Cal.3d at pp. 638–639 [where the defendant
entertains multiple criminal objectives independent of and not merely incidental to each
other, he may be punished for independent violations even though violations shared
common acts or were parts of an otherwise indivisible course of conduct].) The trial
court did not err by failing to apply section 654 and staying the punishment imposed on
count 3.
IV. Correction of Abstract of Judgment
The parties correctly note the abstract of judgment does not accurately reflect the
trial court’s oral judgment.
When an abstract of judgment does not accurately reflect the judgment imposed,
we have “the inherent power to correct such clerical error on appeal, whether on our own
motion or upon application of the parties.” (People v. Jones (2012) 54 Cal.4th 1, 89.)
The abstract of judgment reflects the trial court imposed a concurrent term under count 3,
but then stayed its execution. Yet, the court expressly refused to apply section 654 to
22.
stay the punishment imposed under count 3. Thus, the abstract of judgment contains a
clerical error that must be corrected.
DISPOSITION
The judgment is affirmed. The trial court shall issue an amended abstract of
judgment reflecting the term of imprisonment for count 3 was not stayed. The trial court
shall forward the amended abstract of judgment to the appropriate authorities.
MEEHAN, J.
WE CONCUR:
PEÑA, Acting P. J.
SNAUFFER, J.
23. | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483266/ | Case: 22-40333 Document: 00516541927 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 10, 2022
No. 22-40333
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Roman Alfredo Saldivar-Vazquez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:21-CR-1059-1
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
The Federal Public Defender appointed to represent Roman Alfredo
Saldivar-Vazquez has moved for leave to withdraw and has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and United States
v. Flores, 632 F.3d 229 (5th Cir. 2011). Saldivar-Vazquez has not filed a
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-40333 Document: 00516541927 Page: 2 Date Filed: 11/10/2022
No. 22-40333
response. We have reviewed counsel’s brief and the relevant portions of the
record reflected therein. We concur with counsel’s assessment that the
appeal presents no nonfrivolous issue for appellate review. Accordingly,
counsel’s motion for leave to withdraw is GRANTED, counsel is excused
from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5th Cir. R. 42.2.
2 | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490380/ | OPINION AND ORDER
BRUCE FOX, Bankruptcy Judge:
The debtor, LeRoy Moore, initiated an adversary proceeding against Philadelphia National Bank, (PNB), and the standing chapter 13 trustee. Moore had claimed as exempt, under 11 U.S.C. § 522(b), all funds on deposit in his passbook account with PNB, and is now asserting that PNB permitted unauthorized withdrawals from his account in April and May 1986. The debtor seeks damages for the total amount so withdrawn, $1,532.00. PNB denies that there were any unauthorized withdrawals.
Before turning to the merits, I must address, briefly, the issue of jurisdiction. Although the pleadings place in question whether this matter is a core proceeding under 28 U.S.C. § 157(b)(1), at trial both parties consented to my entering a final binding decision pursuant to 28 U.S.C. § 158(b)(2). See, e.g., Thomas v. Union Carbide Agr. Products Co., — U.S. -, 105 S.Ct. 3325, 3335, 87 L.Ed.2d 409 (1985). Therefore, this matter will be treated as if it were a core proceeding.
This dispute centers on three withdrawals from plaintiffs savings account, which may be listed as follows:
April 1,1986 $1,032.00 Marcus Hook Branch
April 3,1986 $ 300.00 Marcus Hook Branch
May 12,1986 $ 200.00 Brookhaven Branch
Under the provisions of the Uniform Commercial Code, adopted in Pennsylvania, a bank may lawfully charge the accounts of its customers for any item which is properly payable. 13 Pa.C.S.A. § 4401(a). However, an unauthorized signature is inoperative against a customer’s account unless the signature is ratified by the customer or the customer is precluded from denying it. 13 Pa.C.S.A. § 3404. See Cumis Insurance Society, Inc. v. Girard Bank, 522 F.Supp. 414 (E.D.Pa.1981). An “unauthorized signature” is defined to include a forgery. 13 Pa.C.S.A. § 1201.
The debtor maintains that the withdrawal slips honored by PNB on the three dates mentioned above contain unauthorized signatures while PNB believes the signatures to be valid. Neither party has called into question the activities of the other, insofar as U.C.C. sections 3-406 or 4-406 are concerned. That is, the debtor does not raise in issue the conduct of the bank under § 4406(c) and the bank does not place in question the conduct of the debtor either before or after these withdrawals. See generally Cumis Insurance Society, Inc., 522 F.Supp. at 420 n. 17. Therefore, the only issue before me is whether the signatures on the three withdrawal slips were forged. If the signatures were forged, then PNB breached its contract to the debtor and the debtor is entitled to recover his damages. Id. at 419, n. 11, 13; *121Thomas v. First National Bank of Scranton, 376 Pa. 181, 101 A.2d 910 (1954).
The testimony in this matter was extremely conflicting, and neither party offered expert testimony concerning the legitimacy of the signatures. Mr. Moore1 testified emphatically that he never withdrew any funds from PNB on the dates in question nor signed the withdrawal slips, and was never in the Marcus Hook branch office prior to late May or June 1986, when he went there solely to meet with bank employees after reporting unauthorized withdrawals from his account. He further stated that he had lost his passbook in late March 1986, implying that whoever found the passbook had utilized it in making these withdrawals. He also testified how the three withdrawal slips were completed in ways different from those normally utilized by him. Upon cross examination, he admitted that he had originally informed defendant that there was a further unauthorized withdrawal, which he later conceded was in fact a proper withdrawal.
Under Pennsylvania law, which governs this proceeding this testimony was sufficient to establish a prima facie case for plaintiff. See, e.g., Levin v. Northwestern National Bank, 154 Pa.Super. 94, 35 A.2d 769 (1944); Suny v. First Pennsylvania Banking & Trust Co., 66 D. & C.2d 762 (C.P.Phila.1973).
Defendant then offered testimony from three witnesses. The first witness was a teller at the Marcus Hook branch who testified that Marcus Hook was a very small branch office and identified the debt- or as the individual who withdrew funds from that branch on April 1 and April 3, 1986. She claimed to have been the actual teller in question on April 1 and remembered speaking to the debtor and verifying his signature against the ultrafiche reproduction of the signature card for this account. Moreover, she remembered the debtor demanding a cash withdrawal de-
spite her suggestion to the contrary, and that he returned two days later to withdraw additional funds from a teller near to her. She also claimed she knew the debtor from his visits to this branch prior to April
1, 1986.
The second witness was a bank investigator who identified a photograph of the debtor in the Brookhaven branch on May 12, taken three minutes before the withdrawal slip in question was time stamped.2 The third witness was the Operations Manager of the Brookhaven branch who stated that he remembered Mr. Moore’s visit to the branch on May 12, 1986, that Mr. Moore had been a customer at that branch for years, and that he, the Operations Manager, personally approved the withdrawal on May 12,1986. Two of the bank witnesses admitted that they never requested identification, other than the passbook, from the person making the withdrawal.
Under Pennsylvania law, it is the bank which has the burden of establishing that these withdrawal slips were not forged. Levin v. Northwestern National Bank; Suny v. First Pennsylvania Banking Trust Co. However, after hearing the witnesses and examining the exhibits, I must conclude that the bank has sustained its burden, although I do not reach this conclusion easily.
For the most part, I find the testimony of the bank’s two eyewitnesses credible and the photographic evidence does place the debtor at the Brookhaven branch just prior to the May 12 withdrawal. I am troubled by the statement that no identification in addition to the passbook was requested, (particularly for a large cash withdrawal) because this customer was known to bank employees, yet those employees went to the trouble of authenticating his signature. On the other hand, plaintiff’s testimony was confused on some points and his memory appeared faulty. For example, the *122bank claimed that Mr. Moore admitted to making the May 12 withdrawal after being confronted with the photograph, while at trial his denial of this admission was less than clear.
On balance, I find the weight of the evidence favors the position of PNB that the plaintiff did, in fact, withdraw the funds in question himself. Judgment will be entered on behalf of defendant.
. Plaintiff is a 67 year old individual with a 6th grade education. His income consists of social security benefits.
. He also explained that the Marcus Hook branch did not, unlike Brookhaven, have a camera system which automatically recorded all transactions. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490381/ | DECISION and ORDER ON MOTION FOR SUMMARY JUDGMENT
BURTON PERLMAN, Bankruptcy Judge.
At Cincinnati, in said District, on the 19th day of November, 1986.
Plaintiff, Highway Equipment Company, (hereafter “Highway”), pursuant to separate motion and court order, sold assets known as “The Highlift Division”.1 The proceeds from that sale are currently being held in escrow. In this adversary proceeding against multiple defendants, plaintiffs seek a determination of the rights of the various parties to the proceeds from the sale. Plaintiffs, in their complaint, also seek certain affirmative relief.
The plaintiffs have already settled the interests of some defendants: Baker Material Handling Corporation prevailed on its motion for summary judgment as to its lien on one particular piece of equipment by entry dated June 9, 1986; a judgment was entered that Fifth Third Bank has no liens on the assets or proceeds; and a like judgment was entered that City Bank has no lien on the assets or the proceeds. Defendant Moore, Owens and Thomas has not filed an answer or in any other way defended this action. Likewise, the State of Ohio has not filed an answer or in any other way *132defended this matter. Answering defendants whose interests have not been resolved are Crocker Commercial Services (hereinafter “Crocker”), Caterpillar Industrial, Inc., Caterpillar Financial Services, Caterpillar Tractor Company, Bank One of Dayton, General Electric Credit Corporation, and Comerica.
Aside from the demand in the complaint to determine the various lien rights of the defendants, plaintiffs assert that they are entitled to affirmative relief against Caterpillar Industrial and Caterpillar Tractor Company (hereinafter jointly “Caterpillar”). These various demands state that these entities have been overpaid because Caterpillar was to credit debtor with various credits. Caterpillar, therefore, plaintiff says, owes debtor a refund. Caterpillar has answered, denying that plaintiffs are entitled to affirmative relief, and has further set forth counterclaims against the plaintiffs. Plaintiffs have replied to these counterclaims.
Crocker, defendant, has now brought this motion for summary judgment stating there is no question that it holds a first and best lien on all the proceeds presently in the escrow account, that its lien exceeds the amount held in escrow, and it is therefore entitled to a judgment. It is noteworthy that the motion is for affirmative relief and is brought by a defendant whose only controversy is with other defendants here, identified jointly as Caterpillar, against whom it has not in its pleading sought affirmative relief. Only Caterpillar has filed a response to Crocker’s motion.
In its memorandum, Crocker states that the only issues to be resolved by this court are whether Crocker had the first and best security interest in all the assets which had been sold, and whether Crocker is an un-dersecured creditor pursuant to § 506(b) of the Bankruptcy Code. Crocker asserts it entered into a security and loan agreement with Highway2 on June 25, 1983, pursuant to which Crocker was granted a security interest in all of Highway’s inventory, accounts, chattel paper, deposit accounts, and product and proceeds of the aforementioned property. Crocker also asserts that it perfected its security interest by filing appropriate UCC statements with the Secretary of State on June 1, 1983. Further, Crocker says that it entered into a new security and loan agreement with Highway on July 25, 1985, after the commencement of the bankruptcy proceedings, and in this agreement Crocker was also granted a first priority security interest in all 'inventory, accounts, chattel paper, deposit accounts, and products and proceeds of the aforementioned property, and certain other items not here relevant. This second security and loan agreement was authorized by order of this court. Crocker asserts that it filed appropriate UCC financing statements to evidence its perfected security interest in all the assets of Highway. Crocker asserts that no other defendant in this adversary proceeding has claimed a security interest prior in time to the security interest of Crocker, other than Baker Material Handling Company, and Baker’s interest has been resolved. Crocker acknowledges that the only entity which would have a potential claim as a prior holder is Caterpillar. However, Crocker asserts that Caterpillar has been paid in full and, therefore, could have none of the proceeds from the sale.
The material which Crocker has attached to its motion for summary judgment includes an affidavit by Joseph M. Taylor which states that as of July 31, 1986, the balance due Crocker under its loan security agreement with Highway was $8,900,-495.55. This affidavit further states that, to the best of the affiant’s knowledge, the fair market value of the assets, which secure the loan is $5,611,000.00. (Ex. A.) Also attached is the security and loan agreement entered into on June 25, 1983, by which Crocker took a security interest *133in all the inventory, accounts, chattel paper, deposits at Crocker National Bank, products and proceeds of the property, and present and future, books and records. (Ex. A-l.) Exhibit A-2 is the UCC form, filed on July 1, 1983. The description of the collateral in that financing statement was amended on August 24, 1983, to exclude “new Caterpillar parts, remanufac-tured or rebuilt parts, purchased from Caterpillar Tractor Company and any credit account being held by Caterpillar Tractor Company on debtor’s behalf.”
Crocker also includes, for the purposes of this motion, Exhibit A-5 which is the security and loan agreement entered into between Crocker and Highway on July 26, 1985. Part 5 of that agreement is entitled “Creation of a Security Interest” and reads, in part:
Except for liens filed and perfected against debtor as of the commencement of the bankruptcy proceedings [which was July 2, 1985] debtor hereby grants to Crocker a first priority security interest in all the following property of the debtor, whether now owned or hereafter acquired to secure payment and performance of the indebtedness:
# ‡ * # sjc * $
Exhibits A-3 and A-4 are the copies of the financing statements filed in Kentucky and Indiana. Exhibit A-6 is a copy of the order granting the motion of debtor-in-possession for authority to incur the secured debt, to enter into post-petition financing agreement, and provide for priority liens to such post-petition financing pursuant to § 364(c) entered in this court.
In opposing the present motion for summary judgment, Caterpillar asserts that Crocker does not have the first and best lien. Attached to its memorandum as Exhibit A is a security agreement dated April 12, 1983, between the Towmotor Corporation, now known as Caterpillar Industrial, Inc., and Highway, in which Highway gives Caterpillar a security interest in various equipment. As Exhibit B to the Caterpiller memorandum is also attached a UCC financing statement for that security agreement filed April 22,1983 with the Secretary of State in Ohio. Exhibit C is a security agreement entered into on June 12, 1984, with Highway in which the Towmotor Corporation takes a security interest in various equipment. A UCC financing statement for this security agreement was filed on January 2, 1985 in the Secretary of State’s office in Ohio.
The facts that we have before us on which Crocker wishes us to grant it summary judgment are that it has a perfected security interest, perfected on July 1, 1983, and a post-petition security interest granted on June 25, 1985. There is, however, unrefuted evidence before us that Caterpillar has a security interest in property of plaintiff’s that was perfected on April 2, 1983 and January 2, 1985. Crocker’s own financing statements and security agreements reflect that there were items of Caterpillar equipment which were not covered by their security interest.
We cannot ascertain from this evidence who has the first and best lien on the proceeds from the sale of the Highlift Division. We have no information as to what type of equipment was sold, nor as to whether what was sold was that covered by the security agreement of Caterpillar or that of Crocker, or both. Therefore, there is a genuine issue of material fact concerning who is entitled to the proceeds.
Crocker’s argument that Caterpillar has been paid in full, and therefore has no lien on the proceeds, is misleading. Plaintiffs in this adversary proceeding are seeking affirmative relief against Caterpillar. Caterpillar argues that if plaintiffs are successful on this claim, Caterpillar would then reassert its first lien position as to the assets held in escrow.
It cannot be said that there exists no genuine issue of material fact, nor that Crocker is entitled, as a matter of law, to the relief it seeks. Crocker’s motion for summary judgment is therefore denied. Furthermore, it must be said that in view of the fact that Caterpillar may be in a position to contend that it holds a prior lien *134or liens, coupled with the existence of the outstanding unresolved claim that plaintiffs are entitled to recover payments made to Caterpillar, Crocker’s present motion is at best premature.
So Ordered.
. Plaintiffs in this adversary proceeding are two debtors: Highway Equipment Company, dba Highlift Equipment Company, Case No. 1 — 85— 01667, and U.S. Equipment Company, Case No. 1-85-01958. The two cases were substantively consolidated by court order dated November 1, 1985, with all filings to be made under Case No. 1-85-01667.
. While Crocker refers to transactions with the "debtor" in its motion, the evidentiary material attached show that the security and loan agreements are between Crocker and Highway Equipment Company. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490681/ | MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
JOHN C. MINAHAN, Jr., Bankruptcy Judge.
The defendant, Timothy J. Mahoney, has moved to dismiss under Fed.R.Civ.P. 12(b)(5) & (6), and also on the theory of immunity. The motion is accompanied by an affidavit. When matters outside the pleadings are presented on a motion to dismiss, and the motion is treated as a motion for summary judgment under Rule 56, “all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56.” Court v. Hall County, 725 F.2d 1170, 1172 (8th Cir.1984). The motion is hereby taken under advisement to be determined by the Court after plaintiffs have been provided an opportunity to respond.
IT IS HEREBY ORDERED, that the defendant’s motion to dismiss (Fil. # 24), will be treated as a motion for summary judgment and the plaintiffs will be given until June 27, 1988, to present evidence in the form of an affidavit in compliance with Fed.R.Civ.P. 56(e). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490682/ | MEMORANDUM OPINION
JOHN E. RYAN, Bankruptcy Judge.
The issue before me is whether there is a limitation on the number of IRA accounts a married couple filing a joint petition may claim as exempt.
JURISDICTION
This court has jurisdiction over this case pursuant to 28 U.S.C. § 1334(a) (the district courts shall have original and exclusive jurisdiction of all cases under Title 11), 28 U.S.C. § 157(a) (authorizing the district courts to refer all Title 11 cases and proceedings to the bankruptcy judges for the district) and General Order No. 266, dated October 9,1984 (referring all Title 11 cases and proceedings to the bankruptcy judges for the Central District of California). This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B).
STATEMENT OF FACTS
Howard and Julianne Elster (“Debtors”) filed their joint petition under Chapter 7 of the Bankruptcy Code on October 22, 1987. In their petition Howard Elster claimed $3,000 in an Individual Retirement Account (“IRA”) as exempt and Julianne Elster claimed $4,000 in an IRA as exempt. Both of these exemptions were claimed pursuant to Cal.Civ.Proc. Code § 704.115(a)(1), (2).
On December 9, 1987, Mr. John P. Stodd, the Chapter 7 trustee (“Trustee”), filed an objection to Debtors’ claimed exemptions on the grounds that the Debtors are not entitled to exempt their IRAs and even if they are, they are limited to a single set of exemptions. The hearing on the objection was scheduled for February 2, 1988.
On January 26, 1988, Debtors filed an amended schedule listing both IRAs under a single exemption for an aggregate amount of $7,000. The amended schedules listed Cal.Civ.Proc. Code § 704.115(a)(3) as the applicable statutory provision.
At the hearing, I found that Cal.Civ.Proc. Code § 704.115(a)(3) allowed Debtors to claim an IRA exemption. In re Vigghiany, 74 B.R. 61 (S.D.Cal.1987). I took the matter, however, under submission to determine if Debtors could exempt both IRA accounts.
DISCUSSION
Trustee argues that In re Baldwin, 70 B.R. 612, 613 (9th Cir. BAP 1987) limits Debtors to one set of exemptions. In Baldwin, the married couple claimed a separate set of exemptions for each spouse under Cal.Civ.Proc. Code § 703.140(b). The Bankruptcy Appellate Panel affirmed the bankruptcy court’s ruling that a married couple was restricted to one set of exemptions.
The trustee in Baldwin argued, and the court agreed, that Cal.Civ.Proc. Code § 703.110 modified § 703.140 to limit the exemptions available to a married couple to one set. This same reasoning should apply to exemptions previously provided by California before the enactment of § 703.140, including § 704.115.
Even though Baldwin applies, Debtors are not adversely affected. Debtors are not “stacking” their exemptions. The *633IRAs are covered by a single exemption under § 704.115. Section 704.115(a)(3) provides that an exemption applies for “Self-employment retirement plans and individual retirement annuities or accounts ... to the extent their accounts hold in the plans, annuities, or accounts do not exceed the maximum amounts exempt for federal income taxation under that code.”
Section 704.115(a)(3), however, does not grant an open-ended exemption. Section 704.115(e) provides the following limitation:
... the amounts described in paragraph (3) of subdivision (a) are exempt only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires.
The only limitation then to asserting an exemption for IRAs is necessity. Trustee does not contest the need issue.
I see no inconsistency between Baldwin, supra, and what Debtors are doing. Section 704.115(a)(3) and (e) do not limit the number of IRAs. Matter of fact, the language in § 704.115(a)(3) says “individual retirement annuities or accounts”. The plural form is used. It is clear multiple IRAs were anticipated. No distinction between either spouse’s IRAs was made.
Baldwin, supra, says only one set of exemptions may be claimed by a married couple. The amended schedules of Debtors’ show they are claiming only one set of exemptions and that set encompasses an unlimited number of IRAs. So long as the aggregate amount covered by these IRAs does not exceed what Debtors need to support their retirement, no one should object.
An analogous situation exists if a married couple filing bankruptcy has two homes that they use as residences. Under § 703.140(b)(1), they could exempt up to $7,500 of equity in the two houses. The exemption would not be limited to a single residence. Likewise, exemption of IRAs should not be limited to the IRAs of one spouse to the exclusion of the other.
Accordingly, the claimed exemptions of the Debtors for their IRAs is approved. I believe my decision is consistent with Baldwin, supra, and its rule a married couple be limited to one set of exemptions.
Separate findings of fact and conclusions of law with respect to this ruling are unnecessary. The within memorandum opinion shall constitute my findings of fact and conclusions of law.
ORDER ALLOWING EXEMPTIONS
In accordance with the findings of fact and conclusions of law set forth in my memorandum opinion this date, it is
ORDERED that debtors are allowed their exemptions for their Individual Retirement Accounts. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490861/ | MEMORANDUM
TIMOTHY J. MAHONEY, Chief Judge.
Trial was held on this matter and a companion case which is a preference and lien avoidance action, Adversary No. A88-4057, 97 B.R. 554, which is entitled W. Edward Plihal, Plaintiff, v. First National Bank of Wahoo, Defendant, on January 6 and January 20, 1989. Appearing on behalf of the plaintiff was Donald Swanson of Schmid, Mooney & Frederick, P.C., Omaha, Nebraska. Appearing on behalf of the First National Bank of Wahoo (Bank) was Steven Woolley of Polack and Woolley, P.C., Omaha, Nebraska. Appearing on behalf of The Austin Co., Inc., Receiver, was Mark Krieger of Lincoln, Nebraska.
This memorandum concerns only the turnover action. A separate memorandum has been filed in the preference case.
Written final arguments and briefs were delivered to the Court shortly after trial. After a review of all of the exhibits and a review of notes concerning the testimony of all of the witnesses plus a review of all of the briefs and final arguments, the Court now files this memorandum as its findings of fact and conclusions of law pursuant to Bankr.R. 7052.
Findings of Fact, Conclusions of Law and Discussion
The Bank is the holder of a note secured by a mortgage on real estate in Pawnee County, Nebraska. Both the note and mortgage were executed by the debtor. The note is in default and on September 4, 1987, the Bank filed a mortgage foreclosure action in the appropriate District Court and asked for the appointment of a receiver pursuant to Nebraska law. On the date scheduled for the hearing on the appointment of the receiver, the debtor filed a Chapter 7 bankruptcy. During that Chapter 7 bankruptcy, the Bank obtained relief from the automatic stay and rescheduled the hearing on the appointment of the receiver.
On the date the second hearing for the appointment of a receiver was to be held, the debtor filed a Chapter 13 bankruptcy which was eventually dismissed.
On April 20, 1988, the hearing on the appointment of the receiver was heard and the District Court ordered the appointment of the receiver by sustaining the motion of the Bank. The receiver filed the appropriate bond and took possession of the real estate. The receiver entered into a one-year lease agreement with a tenant on a cash basis. The tenant farmed the land during the crop year 1988 and paid all of the cash rent due.
In July of 1988, the debtor filed a Chapter 11 bankruptcy petition and shortly thereafter filed this adversary proceeding requesting turnover of the property from the custodian pursuant to 11 U.S.C. § 543. The Bank then intervened as a defendant.
Debtor is and has been a full time employee of a corporation with its place of business in Beatrice, Gage County, Nebras*563ka. During 1985 and 1986, debtor was experiencing financial difficulty and was unable to obtain sufficient financing to farm the land. Debtor, therefore, rented the land to a tenant for cash rent for the crop land and did not rent the pasture, nor was it used during those two years. The rental payment for 1986 was something over $6,000.00.
In 1987, the debtor decided to farm the land himself. He met with the officers of the Bank in May of 1987 and discussed a total settlement of his obligations to the Bank and on the next day a bank officer sent him a letter outlining the agreements that they had mutually come to. According to the banker, the debtor had agreed to deed the property to the Bank subject to the right of the debtor to repurchase the property for a sum certain by a certain date during 1987. Upon conveyance of such deed into escrow, the Bank agreed to permit the debtor to retain possession in the crop year 1987 to farm the ground and the Bank agreed to advance $5,000.00 for farming operations.
Debtor did not respond to the letter and testified at trial that he did not agree to give the Bank a deed in escrow but that it was his understanding the Bank would advance the $5,000.00 for farming operations even without such deed. He, therefore, went forward in May and June of 1987, without further contact with the Bank, and entered into credit arrangements with suppliers and custom operators to prepare the ground, plant the seed and do another initial input operations.
The Bank, as a result of debtor’s failure to comply with the terms of the oral arrangement, refused to advance further funds and began the foreclosure process. As described above, the Bank filed its foreclosure action on September 4, 1987, and was set for a hearing on the appointment of a receiver on September 29, 1987, when debtor filed the initial bankruptcy case.
Prior to September 29, 1987, debtor began to harvest some of the crops on the land. The harvest was incomplete at the time the bankruptcy was filed and the trustee in bankruptcy completed the harvest with the aid and financial assistance of the Bank.
During 1988 the receiver rented the land for $11,645.00. The receiver has expenses of operation, including its annual fee, certain farm operation expenses and legal fees for participation in and defense of this adversary proceeding. The receiver has several thousand dollars on hand subject to payment of taxes and various receivership expenses.
The debtor has no funds with which to operate the farm. His income received from his full time job has been allocated, according to his Chapter 11 plan, as amended, to payment of other living expenses and other obligations not directly related to the farm. He proposes in the Chapter 11 plan, as amended, to enroll the land into the Federal Government Conservation Reserve Program (CRP) for a net income to the estate over a ten-year period of approximately $50.00 per acre per year. The gross cash rent received by the receiver is approximately $50.00 per acre per year during 1988.
There is a significant dispute in the evidence with regard to the debtor’s eligibility to participate in the CRP program, the actual costs which will be incurred by the debtor with regard to fencing and cover crops and maintenance and further dispute concerning the availability of the lands for row cropping at the end of the ten-year government contract. There is additional dispute concerning the debtor’s ability to finance any of the requirements placed upon the debtor by a government contract with regard to initial preparation of .the land and fencing.
The Court finds as a fact that the debt- or’s estimates of expense with regard to cover seed, maintenance of the property and the fencing expense are credible. Those expense estimates were verified by another witness and, although the choice of inexpensive seed might not be the absolutely best way to manage property under the CRP program, it certainly is an acceptable way to do so and, all other things being equal, the government agency would permit the use of the inexpensive seed.
*564The debtor does have a disc and tractor available and the fencing, if required, would be relatively inexpensive. The receiver has purchased certain fence materials and posts which would be available to the debtor if he were to obtain turnover of the property.
The debtor intends to enroll the cropland in the CRP program for the crop year 1989 and nine future years. There is a question of fact concerning whether or not the debt- or is eligible to participate in the Conservation Reserve Program. There was some testimony by the receiver that operators who evict tenants and then attempt to enroll property in the CRP are not eligible. Such evidence was not rebutted.
The debtor testified that he had talked with certain employees of the Soil Conservation Service in Pawnee County and was satisfied that he would be eligible. However, other evidence was presented to the effect that the Soil Conservation Service employees have no authority for determining participation in CRP because that program is administered by a totally separate federal government agency, the Agricultural Stabilization & Conservation Service (ASCS).
Although it is not the debtor’s burden under Section 543 to show the Court a Chapter 11 plan can be confirmed, once evidence is presented that it is in the best interests of creditors for a custodian to remain in place, the debtor does have an obligation to present at least the framework of a plan which, under the right circumstances, could be confirmed. Here, although many witnesses testified over a two-day period, the debtor did not present evidence of his eligibility for the CRP program. In addition, he did not present any evidence that even if he is eligible for the CRP program, the amount per acre which he proposes as a bid for acceptance by the government is realistic under the present circumstances or would likely be accepted by the government agency.
The Court concludes that the debtor is ineligible to participate in CRP during 1989. Even if the debtor is eligible for the CRP program and his bid is accepted which would enable him to receive a net CRP payment of approximately $50.00 per acre per year, the Court finds as a fact that the debtor needs the 1988 rent now held by the receiver to pay the expenses necessary for preparation of the ground for entrance into the CRP program. In a memorandum opinion filed contemporaneously with this one, this Court has found that the debtor has no right to the 1988 rents and the Bank has a validly perfected interest in those rents. Therefore, this Court must find as a fact that the debtor has no funds available to prepare the land for entrance into the CRP program in 1989.
This action has been brought under 11 U.S.C. § 543 which requires, in general, a custodian, which a receiver is, to deliver the property to the debtor in possession and file an accounting with the Court. However, that statutory section permits the Bankruptcy Court, after notice and hearing, to excuse compliance with the turnover provisions “if the interests of creditors ... would be better served by permitting a custodian to continue in possession, custody or control of such property.” 11 U.S.C. § 543(d)(1). This debtor’s Chapter 11 plan depends for its implementation on enrollment in the CRP program with a net benefit to the estate of $50.00 per acre per year. The debtor has no funds to farm the land during 1989. The debtor has no funds available, either from the receiver or otherwise, to prepare the land for participation in the CRP program. The debtor has presented no credible evidence of his eligibility or his land’s eligibility for enrollment in the CRP program. There are significant property tax payments unpaid. The contract vendor of this land upon which the Bank has an inferior lien, has been unpaid for several years. If the receiver remains in place, the funds in the hands of the receiver will be used for payment of real estate taxes and for bringing current the land contract which is prior in right to the Bank’s lien.
The Court concludes that the evidence presented by the creditors that it is in the best interests of all of the creditors for the custodian to remain in possession out*565weighs the evidence presented by the debt- or that he would like to have the property back and would like the opportunity to enroll in the CRP program and would like the opportunity to pay these creditors off over a long period of time. The debtor has insufficient funds available to make even the now proposed plan work in its first year and his hope for enrollment in the CRP program seems speculative at best.
This Court concludes that it is in the best interests of the creditors that the custodian remain in possession. Separate journal entry shall be filed. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490862/ | MEMORANDUM OPINION
GEORGE L. PROCTOR, Bankruptcy Judge.
This case is before the Court upon the motion filed by Maeona M. Stegall (“Mrs. Stegall”), seeking an extension of time in which to surrender preferred stock certificates pursuant to the debtor’s Fourth Amended Joint Plan of Reorganization. An evidentiary hearing on the motion was held December 16, 1988, and upon the evidence presented, the Court enters the following Memorandum Opinion:
FACTS
On April 20, 1984, The Charter Company (“Charter”) and many of its subsidiaries filed for protection from creditors under Chapter 11 of the Bankruptcy Code. 11 U.S.C. § 1101, et seq. By orders entered April 20, 1984 and November 14, 1985, these cases have been consolidated for administration.
On August 14, 1986, the Court entered an order approving the Fourth Amended Disclosure Statement. On August 29, 1986, Mrs. Stegall cast a ballot accepting the terms and conditions of the Plan.
On December 18,1986, the Court entered an order confirming the Fourth Amended Joint Plan of Reorganization (the “Plan”) submitted in each of these cases. Jurisdiction was reserved by the Court to “determine all controversies and disputes arising under, or in connection with, the Plan.”
The terms and conditions of the Plan required the debtor’s shareholders to surrender certificates evidencing their ownership to American Transtech, Inc. (“American Transtech”), debtor's escrow agent, within one year following the consummation date. The Plan’s consummation date was March 31,1987, and Notice of Consummation and Availability of Distributions was published on March 26, 27, and 31, 1987, in The Wall Street Journal, Florida Times Union (Jacksonville, Florida), and The Luxemburger Wort. Thus, the last day for shareholders to surrender their cer*637tificates was March 31, 1988 (the “surrender date”).
Mrs. Stegall is the beneficial owner of 3,000 shares of 8.25% cumulative convertible preferred stock (Class J) issued by Charter prior to the petition date. Paragraph 2.25 of the Plan classifies her preferred stock as a “Class 7A Interest.” Paragraph 3.26 of the Plan provides that, with respect to the holders of Class 7A Interests, 6,748,605 shares of new common stock would be distributed to tendering shareholders in full satisfaction of their claims. Regarding such distribution, paragraph 4.12.3(d) of the Plan states:
4.12.3(d) Surrender of certificates as condition precedent to entitlement to distribution. As a condition precedent to the distribution by the Escrow Agent of any property to the holder of a Class _ Interest [including Class 7A Interests] with respect to such Interest, such holder must first surrender his certificates evidencing such Class_Interest to the Escrow Agent in the manner and within such time periods as may be fixed in the Escrow Agreement. In the event a holder of a Class_Interest fails to surrender his stock or warrant certificates within 365 days after the Consummation Date in accordance with the procedures fixed in the Escrow Agreement, such holder shall be conclusively deemed to have received his distribution of New Common Stock under the Plan and shall not be entitled to receive any further distribution of property under the Plan with respect to such Class_Interest and all such New Common stock not claimed by such holder shall be cancelled and returned to authorized and unissued New Common Stock.
According to the Plan, if a holder of a Class 7A Interest failed to surrender his certificates within the time specified in paragraph 4.12.2(d), American Transtech is to cancel the certificates and return the unissued stock to Charter to be held as authorized and unissued common stock.
Mrs. Stegall admits having accepted the terms of the Plan but contends that Charter failed to convey proper notice of the surrender date to her. Specifically, she states that she did not receive the letter of transmittal sent by American Transtech to Charter’s stockholders until August, 1988. The evidence indicates that the debtor changed her address in September of 1987, and this may have led to the delay in notice. Charter had knowledge of the change of address as was evidenced by the Ste-galls’ receipt of other company mailings in December, 1987. Charter conceded at the hearing that the letter of transmittal may have been mailed to the former address.
According to American Transtech, the following securities were not timely surrendered:
(1) 260,952 shares of common stock;
(2) 11,584 shares of common stock unclaimed by warrant holders who failed to surrender their certificates;
(3) Approximately $297,000 principal amount of Charter’s 10%% Subordinated Debentures (Class 6B-1);
(4) Approximately $130,000 principal amount of Charter’s 14%% Subordinated Sinking Fund Debentures due 1994 (Class 6B-2);
(5) Approximately $532,000 of Charter’s 8V4% Convertible Subordinated Guaranteed Debentures due 1994 (Class 6C); .
(6) Approximately $750,000 of Charter’s Gulf Coast Waste Disposal Authority Pollution Control Revenue Bonds (Class 6F).
CONCLUSIONS OF LAW
The central issue raised by the present motion is whether the Court has authority to extend the date for tendering debenture certificates after the Plan has been confirmed. Charter argues that the Court lacks such authority because (i) only the proponent of the plan may modify a confirmed plan, (ii) that Mrs. Stegall accepted the plan'and is now bound by its provisions, and (iii) that extending the deadline will open the “floodgates” to further litigation and uncertainty.
*638Debtor first suggests that the mov-ant is, in fact, asking for a modification of the Plan. Section 1127 of the Bankruptcy Code governs the post-confirmation modification of a plan. It states that the proponent of a confirmed plan may call for its modification any time prior to substantial consummation. Thus, according to the debtor, the Court lacks authority to modify the Plan because (i) the Plan’s proponent [Charter] did not request a modification, and (ii) because the Plan has been substantially consummated. The Court agrees with this analysis.
Substantial consummation of the Plan was accomplished on March 31, 1987, or one year prior to the filing of the present motion. Secondly, the motion was not filed by the plan’s proponent, Charter. Under § 1127 then, the Court cannot extend the deadline for surrendering the debenture certificates.
However, the Court does not find that the movant is actually seeking a modification of the Plan under § 1127. Instead, the Court is simply being asked to exercise its discretion to allow Mrs. Stegall to surrender her debenture certificates after the surrender date.
A number of cases reported prior to the enactment of the Bankruptcy Code suggest that the Court lacks the authority to extend a plan surrender deadline. For example, in In re Industrial Office Building, Corp., 108 F.Supp. 878 (D.N.J.1952), the confirmed plan of reorganization required the surrender of old certificates in order to obtain new securities in the reorganized company. Like this movant, the stockholder in that case failed to timely surrender its certificates. The Court held:
The earlier plan of reorganization was in fact a voluntary agreement to which all stockholders who accepted its terms and conditions became parties. This Court has no summary jurisdiction to alter or modify the agreement.
Id. at 882.
Similarly, in In re City Stores Company, 94 F.Supp. 266 (D.Del.1950), the Court stated:
The cases seem to hold that a court has no jurisdiction to extend the bar order. ... However, in this case there is an equity against petitioner Stern in that the capital structure of the instant company has now been altered and adjusted under the assumption of a previously existing valid bar order of this court. To readjust capital structure every time a petitioner seeks to extend a bar period would, of course, result in chaos. It may be that other potential petitioners are as favorably situated as this petitioner and consequently the court would have to compel the Debtor to readjust constantly its capital structure. It is recognized that a court will not do this in any case where intervening rights of other stockholders have come into existence, as they have in the case at bar.
Id. at 268-269.
Another court' construed former Bankruptcy Rule 10-405(b) [derived from § 204 of the Bankruptcy Act] to limit the bankruptcy court’s discretion to alter the Plan’s surrender date. Said the court:
[T]he clear intent is to fix a period of limitation within which any such creditor or stockholder may claim his distributive share or interest, so that the rights to unclaimed funds and securities may be definitely terminated.
In re Grand Rapids R. Co., 28 F.Supp. 802, 803 (D.Mich.1939).
In In re Reo Motor Car Co., 74 F.Supp. 142, 145 (D.Mich.1947), the court went a step further and said:
Stockholders of Reo Motor Car Company who failed to exchange their stock for that of Reo Motors, Inc., in accordance with the Plan of Reorganization and the various orders and the final decree entered herein on October 7, 1940, have no further rights based upon such stock-holdings.
The Court does not find this to be binding precedent and will look elsewhere to avoid a substantial forfeiture.
Bankruptcy courts have traditionally been endowed with equitable powers which enable them to avoid unjust results. Even those decisions which denied an en*639largement of time in which to surrender certificates recognize this inherent power. For instance, in North American Car Corporation v. Peerless W. & V., 143 F.2d 938 (2d Cir.1944), the court stated:
In general, questions of reopening time limits for the presentation or other adjustment of claims must rest very largely in the sound discretion of the court....
Id. at 940. See also, Industrial Office Building Corp., supra, (standard applied is whether the option to surrender is exercised “within such reasonable time as would avoid prejudice to the rights of others”).
The Court has balanced the equities present and finds that the movant is entitled to an extension of time in which to surrender her preferred stock certificates. Due consideration has been given to the relative harm which may come to the debt- or and its shareholders, and the Court can discern no justifiable reason for denying the movant’s request. The effect of the extension of time on the debtor corporation is negligible, at best, while the corresponding impact on the movant is substantial.
The Court is also concerned with the obvious lack of proper notice given to Mrs. Stegall. Due process requires that shareholders be apprised of the last date in which they may surrender their stock certificates prior to forfeiting their rights as shareholders. Charter admits that the notice of the surrender date may have been misdirected but argues that notice by publication in several leading newspapers was sufficient to apprise the movant of her rights. The Court does not agree.
In Charter International Oil Company v. Ziegler, 93 B.R. 281 (Bkrptcy.M.D.Fla. 1988), the Court found notice of the bar date for filing proofs of claim published in the Wall Street Journal, the New York Times, the Florida Times-Union (Jacksonville, Florida), the Houston Chronicle, the St. Louis Post-Dispatch, and the Oil Daily, to be insufficient notice to unknown tort creditors to deprive them of their rights against the debtor.
Similarly, in In re Charter Company, 68 B.R. 396 (Bkrptcy.M.D.Fla.1986), the Court found this identical notice to be insufficient to bar a claim filed by a foreign corporation. As the Supreme Court has stated, “Notice by publication is a poor and sometimes hopeless substitute for actual service of notice. Its justification is difficult at best....” New York v. N.Y., N.H. & H.R. Co., 344 U.S. 293, 296, 73 S.Ct. 299, 301, 97 L.Ed. 333 (1953).
In this case, notice of the consummation date was published in only three newspapers. There is no evidence that the movant subscribed to any of these publications. Thus, notice of the surrender date by publication was insufficient to apprise Mrs. Ste-gall of her rights. Actual notice is required.
Charter insists that the fault lies with Mrs. Stegall for failing to advise the transfer agent of her change in address. However, the evidence indicates that in December of 1987, the movant received two separate mailings from Charter relating to the reorganization. If anything, the fault lies with Charter for failing to give American Transtech notice of the change in address and, under the circumstances, the Court will permit Mrs. Stegall to surrender her certificates for exchange.
Contrary to debtor’s assertions, the Court finds that the extension of time given to Mrs. Stegall will not open the “floodgates” to further litigation or uncertainty. The extent of further litigation and uncertainty is limited primarily by three factors. First, the potential number of claims is limited to those security holders who failed to timely surrender their certificates. The evidence indicates that only 260,952 shares of Class 7A interests were not tendered, representing only 5.22% of. the total preferred stock outstanding. Furthermore, the names of remaining claimants are easily ascertainable by Charter and further action to advise these shareholders of their rights can be easily accomplished.
Secondly, it may be that the doctrine of “laches” will ultimately attach to those shareholders who did not timely tender their certificates or move for an extension of time in which to do so. Without indicating the point where “laches” will apply, the *640Court finds that the Mrs. Stegall’s motion is not barred by this doctrine.
Finally, § 1143 of the Code sets forth the outermost time limit in which security holders can ask for permission to surrender their debenture certificates. It provides:
If a plan requires presentment or surrender of a security or the performance of any other act as a condition to participation in distribution under the plan, such action shall be taken not later than five years after the date of the entry of the order of confirmation. Any entity that has not within such time presented or surrendered such entity’s security or taken any such other action that the plan requires may not participate in distribution under the plan.
Thus, at the extreme, Charter and American Transtech can rely on December 18, 1991, as being the last date on which shareholders can surrender their certificates. While this delay in distribution may be unfortunate, the Court does not find the delay alone justifies the termination of the movant’s rights.
The Court will, by separate order, enlarge the time period in which Mrs. Stegall may surrender her preferred stock certificates.
ORDER GRANTING MOTION FOR EXTENSION OF TIME IN WHICH TO SURRENDER STOCK CERTIFICATES
Upon the Memorandum Opinion separately entered, it is ORDERED as follows:
1. The Motion for Extension of Time in Which to Surrender Stock Certificates filed by Maeona Stegall is GRANTED.
2. Maeona Stegall shall have until March 24, 1989, in which to surrender her preferred stock certificates.
3. American Transtech is directed to (i) accept for surrender those 3,000 shares of 8.25% cumulative convertible preferred stock (Class J) issued by the Charter Company to Maeona Stegall, and (ii) to distribute the property which the Plan provides will be distributed on account of such surrender.
DONE AND ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483269/ | Case: 22-10334 Document: 00516541794 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10334
Summary Calendar FILED
November 10, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Cesar Enrique Mireles,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-96-45
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
The Federal Public Defender appointed to represent Cesar Enrique
Mireles has moved for leave to withdraw and has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632
F.3d 229 (5th Cir. 2011). Mireles has filed a response. The record is not
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-10334 Document: 00516541794 Page: 2 Date Filed: 11/10/2022
No. 22-10334
sufficiently developed to allow us to make a fair evaluation of Mireles’s claim
of ineffective assistance of counsel; we therefore decline to consider the claim
without prejudice to collateral review. See United States v. Isgar, 739 F.3d
829, 841 (5th Cir. 2014).
We have reviewed counsel’s brief and the relevant portions of the
record reflected therein, as well as Mireles’s response. We concur with
counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review. Accordingly, the motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and
the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
2 | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483273/ | Case: 22-20360 Document: 00516541466 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 22-20360 November 10, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Randall E. Rollins, and does 1-300,000,000,
Plaintiff—Appellant,
versus
The President of The United States of America; The
Senate of the United States of America; The House of
Representatives of the United States of America,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-cv-1427
Before Davis, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant, Randall E. Rollins, on behalf of Does 1-
300,000,000, appeals the district court’s dismissal of his action against
Defendant-Appellees, the President of the United States of America, the
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-20360 Document: 00516541466 Page: 2 Date Filed: 11/10/2022
No. 22-20360
Senate of the United States of America, and the House of Representatives of
the United States of America. For the reasons set forth below, we AFFIRM.
I. BACKGROUND
Randall Rollins appeals the district court’s dismissal of his complaint
and denial of his emergency motion for a temporary restraining order
(“TRO”). The basis of Rollins’s complaint and TRO is his allegation that
Defendants are violating the U.S. Constitution by “fail[ing] to enforce the
immigration laws” and are “unabashedly and proudly allow[ing] America to
be invaded by foreign criminals on a daily basis.” Rollins’s TRO sought to
“enjoin[] and restrain[] the President, Senate, and House of Representatives
from allowing people from other countries to illegally invade the United
States of America.” The district court denied Rollins’s motion for a TRO,
and dismissed Rollins’s complaint for lack of standing, holding that his
interest in Defendants’ compliance with immigration laws is no different
from that held by the general public.1 Rollins timely appealed.
II. DISCUSSION
This court reviews de novo a district court’s Rule 12(b)(1) dismissal
for lack of standing.2 “The burden of proof for a Rule 12(b)(1) motion is on
the party asserting jurisdiction.”3
On appeal, Rollins asserts that the district court erred in dismissing
his complaint because he alleged a sufficient factual basis to support his claim.
His opening brief does not address the district court’s determination that he
1
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220-21 (1974).
2
Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 133 (5th
Cir. 2009).
3
Alfonso v. United States, 752 F.3d 622, 625 (5th Cir. 2014) (quoting In re FEMA
Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011)).
2
Case: 22-20360 Document: 00516541466 Page: 3 Date Filed: 11/10/2022
No. 22-20360
lacked standing to bring his complaint, and his reply brief dedicates two
sentences to the topic. Rollins’s reply brief asserts that he has standing to
bring suit on behalf of himself and 300,000,000 Americans “because of the
incalculable damage that this invasion is doing,” and that “millions of . . .
Americans[] are suffering intentional infliction of emotional distress by the
spectacle of Defendants allowing America to be invaded.” Although pro se
briefs are afforded liberal construction, even pro se litigants must brief
arguments in their opening brief in order to preserve them.4 Rollins’s
opening brief fails to address the district court’s reason for dismissing his
claim. Therefore, his argument is abandoned.5
Accordingly, the judgment of the district court is AFFIRMED.
4
See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“This Court will not
consider a claim raised for the first time in a reply brief.” (citing United States v. Prince, 868
F.2d 1379, 1386 (5th Cir. 1989))).
5
Brinkmann v. Dall. Cnty. Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
3 | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483274/ | Case: 21-60811 Document: 00516541332 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 10, 2022
No. 21-60811 Lyle W. Cayce
Summary Calendar Clerk
Petrona Ramos Ortiz; Antonio Coj Castro,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A205-355-467 & A205-355-468
Before Davis, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
In this immigration case, Petrona Ramos Ortiz and Antonion Coj
Castro (together “the parents”) challenge the Board of Immigration
Appeals’ (“BIA”) denial of relief for cancellation of removal. For the
reasons that follow, we DISMISS the petition for lack of jurisdiction.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60811 Document: 00516541332 Page: 2 Date Filed: 11/10/2022
No. 21-60811
I. FACTS
Petrona Ramos Ortiz and Antonion Coj Castro are natives and citizens
of Guatemala who are legally married but separated and were each served
with a notice of appear (“NTA”) charging them with removability for being
present in the United States without having been “admitted or paroled.”
They each applied for cancellation of removal.1
Following a hearing on the merits, the immigration judge (“IJ”)
denied the couple cancellation of removal, concluding that they failed to
show that their three United States citizen children, aged 15, 15, and 11 at the
time of the decision in 2019, would face exceptional and extremely unusual
hardship upon the parents’ removal. The parents appealed to the BIA, but
the BIA dismissed the appeal. This appeal followed.
II. DISCUSSION
In considering a petition for review, this court generally reviews only
the BIA’s decision, but has “authority to review the IJ’s decision” if the
“BIA adopted and affirmed the IJ’s decision based upon the reasons set forth
therein.”2 We review factual findings of the BIA and IJ for substantial
evidence, and questions of law de novo.3
Proceeding pro se on appeal, the parents argue that the BIA and IJ
erred in determining that they had not met their burden to show that their
removal would cause exceptional and extremely unusual hardship for their
children. In order to be eligible for cancellation of removal under 8 U.S.C. §
1229b(b)(1), the parents must demonstrate, inter alia, “that removal would
result in exceptional and extremely unusual hardship to [their] spouse,
1
Ramos Ortiz originally sought withholding of removal and asylum, but she later
withdrew her application.
2
Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
3
Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007) (citing Nakimbugwe v. Gonzales,
475 F.3d 281, 283 (5th Cir. 2007) (per curiam)).
2
Case: 21-60811 Document: 00516541332 Page: 3 Date Filed: 11/10/2022
No. 21-60811
parent, or child, who is a citizen of the United States or an alien lawfully
admitted for permanent residence.”4
This court has recently held that, under the Supreme Court’s decision
in Patel v. Garland, 142 S. Ct. 1614 (2022), the hardship determination “is a
discretionary and authoritative decision” which “is beyond [this court’s]
review” under 8 U.S.C. § 1252(a)(2)(B)(i), which strips the court of
jurisdiction to review “any judgment regarding the granting of relief” under
§ 1229b.5 Thus, under Castillo-Gutierrez, the parents’ challenge to the BIA’s
and IJ’s hardship determination must be dismissed for lack of jurisdiction
under § 1252(a)(2)(B)(i).6
III. CONCLUSION
Accordingly, Petrona Ramos Ortiz’s and Antonio Coj Castro’s
petition for review is DISMISSED for lack of jurisdiction.7
4
8 U.S.C. § 1229b(b)(1)(D).
5
See Castillo-Gutierrez v. Garland, 43 F.4th 477, 481 (5th Cir. 2022) (per curiam)
(“Patel makes clear that the [Board’s] determination that a citizen would face exceptional
and extremely unusual hardship is an authoritative decision which falls within the scope of
§ 1252(a)(2)(B)(i) and is beyond our review.”).
6
See id. Petitioners also raise additional arguments for the first time in this court
that were not raised before the IJ or the BIA: (1) Although the parents told the IJ the
children would remain in the U.S. whether or not they were granted relief, they argue to us
that their three sons would face hardship if they accompanied their parents back to
Guatemala; (2) The parents argue that Coj Castro has three qualifying relatives with his
new partner for whom his removal would pose financial and emotional hardships; (3) The
parents additionally argue that the agency lacked jurisdiction over their removal
proceedings because the NTAs omitted the time and date of the original hearings in this
matter. Because the parents did not argue those contentions to the Agency, this court lacks
jurisdiction to consider those arguments. 8 U.S.C. § 1252(d)(1) (requiring exhaustion of
“all administrative remedies available to the alien as of right” for judicial review); see also
Avelar-Olivia v. Barr, 954 F.3d 757, 766 (5th Cir. 2020).
7
The Government filed a motion for summary denial of review, based on the
insufficiency of the parents’ evidence of hardship to their qualifying relatives. Because this
3
Case: 21-60811 Document: 00516541332 Page: 4 Date Filed: 11/10/2022
court’s summary affirmance procedure is generally reserved for cases in which the parties
concede that the issues are foreclosed by Circuit precedent, the motion is denied. United
States v. Lopez, 461 F.App’x 372, 374 n.6 (5th Cir. 2012) (per curiam) (unpublished).
Unpublished opinions issued in or after 1996 “are not precedent” except in limited
circumstances, but they “may be persuasive authority.” Ballard v. Burton, 444 F.3d 391,
401 n.7 (5th Cir. 2006). | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483262/ | Filed 11/10/22 P. v. Lugo CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049501
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 189590)
v.
JOSEPH LUGO,
Defendant and Appellant.
MEMORANDUM OPINION1
In 1997, defendant Joseph Lugo was convicted of attempted first degree burglary.
(Pen. Code, §§ 664, 459, 460, subd. (a).)2 The jury also found that he had two strike
prior convictions (§§ 667, subds. (b)-(i), 1170.12), two serious felony prior convictions
(§ 667, subd. (a)), and four prison priors (§ 667.5, subd. (b)). The trial court imposed a
total term of 38 years to life.
In January 2020, the Secretary of the California Department of Corrections and
Rehabilitation (the Secretary) sent a letter to the trial court recommending that it recall
Lugo’s sentence pursuant to former section 1170, subdivision (d). The trial court
declined to consider modifying or reducing Lugo’s sentence on the ground that Senate
1
We resolve this case by memorandum opinion under California Standards of
Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th
847, 853-855.) The facts of the offense are immaterial to this appeal.
2
Subsequent undesignated statutory references are to the Penal Code.
Bill No. 1393, which amended section 667, subdivision (a), applied only to cases not
final on appeal when it went into effect on January 1, 2019. The trial court reasoned that
Senate Bill No. 1393 was not intended to apply retroactively, and was therefore
inapplicable to Lugo’s case, which was final prior to its passage.
Lugo appeals from the trial court’s denial on the grounds that the trial court abused
its discretion under former section 1170, subdivision (d), by not recalling his sentence as
recommended by the Secretary. Alternatively, Lugo contends that under the newly
enacted section 1172.1,3 the matter should be remanded to the trial court for a hearing in
accordance with its mandates. The Attorney General concedes that we should reverse
and remand for the trial court to consider the Secretary’s recommendation, given the
change in the law.
The Attorney General’s concession is well-taken. Section 1172.1, which took
effect this year, added several requirements to the recall and resentencing process,
including notice, appointment of counsel, a hearing, and a statement of reasons for the
ruling on the record. (§ 1172.1, subds. (a)(6), (7), (8), & (b)(1).) Where, as here, the
Secretary initiates a recall and resentencing request, section 1172.1 imposes “a
presumption favoring recall and resentencing of the defendant, which may only be
overcome if a court finds the defendant is an unreasonable risk of danger to public safety,
as defined in subdivision (c) of Section 1170.18.” (§ 1172.1, subd. (b)(2).) The new
section further requires a court to “apply any changes in law that reduce sentences or
provide for judicial discretion” when resentencing under the recall statute. (§ 1172.1,
subd. (a)(2).)
3
Newly enacted Assembly Bill No. 1540 (2021-2022 Reg. Sess.), which took
effect on January 1, 2022, moved the recall and resentencing provision originally in
section 1170, subdivision (d) to section 1170.03 and revised its terms. (Assem. Bill No.
1540, Stats. 2021, ch. 719, § 3.1.) After Lugo filed his opening brief, section 1170.03
was renumbered to section 1172.1, without change, effective June 30, 2022. (Assem. Bill
No. 200, Stats. 2022, ch. 58, § 9.) For the sake of clarity, we refer to section 1172.1, the
current section number, in addressing Lugo’s appeal.
2
We agree with our colleagues in the Third District Court of Appeal who observed
that the amendment of section 1170, subdivision (d)(1) “was intended to ‘make clarifying
changes’ ” to address appellate decisions that had incorrectly construed the Legislature’s
statutory intent. Declining to decide whether the amended statute should apply
retroactively under In re Estrada (1965) 63 Cal.2d 740 (Estrada), the court nonetheless
concluded “[w]hen a case involving such a clarifying amendment is on appeal, the
appropriate resolution is to reverse and remand the matter for further proceedings in
compliance with the amended legislation.” (People v. McMurray (2022) 76 Cal.App.5th
1035, 1039, citing Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 253.)
Further, although the parties here dispute whether Lugo is entitled to retroactive
application of section 1172.1 under Estrada, supra, 63 Cal.2d 740, they agree that
remand in accordance with the new statute is appropriate for reasons of judicial economy.
As the Attorney General rightly observes, whether this court determines there was error
requiring remand under former section 1170, subdivision (d)(1), or the Secretary itself
reinitiates its recall recommendation under the new statute, the trial court will be called
upon to apply section 1172.1. Under either circumstance, Lugo is entitled to a hearing
pursuant to the new statute so that the trial court may consider the Secretary’s
recommendation to recall Lugo’s sentence consistent with section 1172.1. Remanding
this matter for hearing at this juncture, rather than requiring the Secretary to reinitiate a
recall recommendation, promotes judicial efficiency.
For these reasons, we will reverse the trial court’s order declining to recall Lugo’s
sentence and remand for reconsideration pursuant to section 1172.1.
DISPOSITION
The trial court’s September 27, 2021, order declining to recall Lugo’s sentence is
reversed, and the matter is remanded for the trial court to reconsider the recommendation
of the Secretary of the California Department of Corrections and Rehabilitation pursuant
to section 1172.1.
3
_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Grover, J.
______________________________________
Lie, J.
People v. Lugo
H049501 | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483265/ | Case: 21-20619 Document: 00516541690 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-20619 FILED
Summary Calendar November 10, 2022
Lyle W. Cayce
Clerk
Curtis Wiggins,
Plaintiff—Appellant,
versus
Poyner Spruill L.L.P.,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-cv-4048
Before Clement, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Plaintiff Curtis Wiggins appeals the district court’s grant of summary
judgment in favor of Defendant Poyner Spruill L.L.P. In its 35-word order,
the district court provided no justification as to why it granted Defendant’s
motion. Federal Rule of Civil Procedure 56(a) requires district courts to
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-20619 Document: 00516541690 Page: 2 Date Filed: 11/10/2022
No. 21-20619
“state on the record the reasons for granting or denying [a] motion [for
summary judgment].” Thus, we “require[] that a district court explain its
reasons for granting a motion for summary judgment in sufficient detail for
us to determine whether the court correctly applied the appropriate legal
test.” Wildbur v. ARCO Chem. Co., 974 F.2d 631, 644 (5th Cir. 1992). This
is because we have “little opportunity for effective review” when the district
court opinion leaves some reasoning “vague” or “unsaid.” Myers v. Gulf Oil
Corp., 731 F.2d 281, 284 (5th Cir. 1984). “In such cases, we have not
hesitated to remand [a] case . . . .” Id. Consequently, we remand the district
court order to consider the cross-motions for summary judgment anew.1
* * *
We VACATE and REMAND for further consideration consistent
with this opinion.
1
Judge Gilmore retired from judicial service after issuing her order granting
summary judgment. The case has been reassigned to Judge Bennett.
2 | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483276/ | NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-NOV-2022
01:38 PM
Dkt. 70 OCOR
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF QH
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 19-00164)
ORDER OF CORRECTION
(By: Wadsworth, J., for the court1/)
IT IS HEREBY ORDERED that the Summary Disposition Order
entered on November 10, 2022, is corrected as follows:
In the first paragraph, eighth line, the year in the
date is corrected from "2002" to "2022" so that the line reads:
Family Court's May 12, 2022 Findings of Fact and Conclusions of
The clerk of the court is directed to take all
necessary steps to notify the publishing agencies of this change.
DATED: Honolulu, Hawai#i, November 10, 2022.
/s/ Clyde J. Wadsworth
Associate Judge
1/
Ginoza, Chief Judge, and Wadsworth and Nakasone, JJ. | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483271/ | Case: 22-30343 Document: 00516541962 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 22-30343 November 10, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jamal Bazley,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CR-58-1
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Jamal Bazley pled guilty to one count of felon in possession of a firearm
and was sentenced within the guidelines range to an 80-month term of
imprisonment, followed by a three-year term of supervised release. On
appeal, Bazley contests the application of the enhancement for possession of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-30343 Document: 00516541962 Page: 2 Date Filed: 11/10/2022
No. 22-30343
a firearm in connection with another felony offense under U.S.S.G.
§ 2K2.1(b)(6)(B).
Bazley pled guilty pursuant to a plea agreement wherein he waived the
right to appeal his conviction and sentence, reserving only his right to bring
a direct appeal of a sentence imposed in excess of the statutory maximum and
the right to raise a claim of ineffective assistance of counsel. The
Government seeks to enforce the appeal waiver in Bazley’s plea agreement.
We review de novo whether an appeal waiver bars an appeal. United
States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). Our review of the record
shows that Bazley’s waiver was knowing and voluntary. See United States v.
Bond, 414 F.3d 542, 544 (5th Cir. 2005); United States v. Portillo, 18 F.3d 290,
292–93 (5th Cir. 1994). The waiver plainly applies to his challenge to the
application of a sentencing enhancement. See Bond, 414 F.3d at 544. Because
there is no argument that Bazley’s sentence exceeds the statutory maximum
or that he received ineffective assistance of counsel, the exceptions to the
waiver do not apply. See United States v. Cortez, 413 F.3d 502, 503 (5th Cir.
2005). Thus, the waiver precludes consideration of Bazley’s challenge. See
United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
Accordingly, the appeal is DISMISSED.
2 | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483295/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SALLY S. WHITE, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 359712
Oakland Circuit Court
OAKLAND COMMUNITY COLLEGE, LC No. 2021-188604-CD
Defendant-Appellee.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court’s order granting defendant, Oakland Community
College, summary disposition of her claim of reverse racial discrimination in violation of
Michigan’s Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq. (ELCRA), which arose because
defendant hired an African-American candidate for a paraprofessional position at one of its
campuses.1 Finding no error in the trial court’s decision, we affirm.
I. FACTUAL BACKGROUND
Plaintiff worked part time as an Academic Support Center paraprofessional (parapro) of
defendant, a community college in Oakland County, at defendant’s Southfield campus. During
June 2018, defendant posted a notice soliciting applications for a full-time parapro position at its
Orchard Ridge campus in Farmington Hills. A collective-bargaining agreement, the 2017-2020
AFSCME Local 2042 Classified Master Agreement, governed the terms and conditions of
employment for certain employees including parapros and specified how bargaining unit vacancies
would be filled by internal applicants who met the posted minimum qualifications. Article 2B of
the agreement prohibited among other things racial discrimination. Article 20 provided for filling
1
We note that the first candidate selected for the position plaintiff sought was, like plaintiff,
Caucasian; but that person, after starting the position, pursuant to the collective-bargaining
agreement, chose to revert to her old position. After that took place, a new hiring process was
undertaken and on that second occasion, an African-American was hired.
-1-
vacant bargaining unit positions from internal applicants who met the minimum qualifications as
posted on defendant’s intranet and required that defendant interview and choose from among the
six most senior qualified applicants for the position. Appendix F covered minimum qualifications
and, among other things, provided:
6. New applicants for any positions that become available must
successfully complete the Clerical Skills Battery, which includes 1) Language Arts
with 70% accuracy; 2) Mathematics with 70% accuracy; and 3) Microsoft Office
Applications (as defined per job classification) with 70% accuracy; 4) Typing with
80% accuracy, if applicable to the position. Internal transfers are exempt from
required work experience.
Article 20 required that defendant select the best qualified applicant “based on factors
including job related training, education, experience and skills, as well as attendance and prior
disciplinary action.” Although seniority was not a determinative factor in defendant’s hiring
decision, Article 20 provided the most senior applicant who did not get selected a right to receive
a written explanation for a hiring decision, and if unsatisfied with the explanation, the right to file
a grievance at the fourth step of the grievance procedure.
Plaintiff applied for the parapro position because it offered full-time employment and other
things she desired. Defendant’s human resources department (HR) defined the parapro position’s
selection criteria as follows: customer service orientation; education (through HR screening
process); soft skills-organizational/multitasking skills, following directions, team player, ability to
work effectively in a diverse workplace; experience with relevant software and applications; time
management skills; communication skills; knowledge of OCC processing. In relation to those
criteria, defendant’s HR department and members of the search committee prepared 14 interview
questions for the four-member search committee’s use in candidate interviews. The search
committee interviewed internal candidates and recommended that defendant hire the candidate it
deemed best for the position. Defendant hired an employee who worked at its Royal Oak campus
as a Student Services Specialist. Plaintiff is Caucasian and the candidate selected by defendant for
the parapro position is African-American.2
Unsatisfied with defendant’s hiring decision, plaintiff filed a two-count discrimination
complaint in federal court but the court declined to exercise jurisdiction over her ELCRA claim
and dismissed it without prejudice. Plaintiff’s federal discrimination lawsuit remained pending
for well over a year during which the parties conducted extensive discovery.3 The dismissal of her
state-law claim prompted plaintiff to file the instant lawsuit alleging that defendant violated
ELCRA by discriminating against her in its hiring decision on the basis of her race. Defendant
answered the complaint and a day later filed a motion for summary disposition under MCR
2.116(C)(10) on the ground that race was not a factor in the hiring for the parapro position at the
2
Later, in August 2018, plaintiff applied for and received another full-time parapro position at
defendant’s Highland Lakes campus effective October 2018.
3
The federal court granted defendant’s motion for summary judgment on plaintiff’s claim alleging
violation of Title VII of the 1964 Civil Rights Act.
-2-
Orchard Ridge campus in the Academic Support Center. Defendant argued that plaintiff failed to
prove a prima facie case of discrimination and could not rebut its legitimate nondiscriminatory
reason for its hiring decision. Plaintiff opposed the motion but the trial court agreed with defendant
that no genuine issue of material fact existed and that defendant was entitled to judgment as a
matter of law. This appeal followed.
II. STANDARD OF REVIEW
We review de novo a trial court’s grant or denial of summary disposition. Dressel v
Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion under MCR 2.116(C)(10) “tests
the factual support of a plaintiff’s claim.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d
506 (2004). The moving party bears the burden of establishing with admissible evidence its
entitlement to judgment as a matter of law. Lear Corp v Dep’t of Treasury, 299 Mich App 533,
536; 831 NW2d 255 (2013). “Summary disposition is appropriate under MCR 2.116(C)(10) if
there is no genuine issue regarding any material fact and the moving party is entitled to judgment
as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “In
reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions,
affidavits, and other relevant documentary evidence of record in the light most favorable to the
nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.”
Walsh, 263 Mich App at 621. “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” West, 469 Mich at 183.
III. ANALYSIS
ELCRA prohibits employment discrimination on the basis of religion, race, color, national
origin, age, sex, height, weight, or marital status. MCL 37.2202(1)(a); Wilcoxon v 3M, 235 Mich
App 347, 358; 597 NW2d 250 (1999). In Venable v Gen Motors Corp, 253 Mich App 473, 476-
477; 656 NW2d 188 (2002) (citations omitted), this Court discussed the framework used to
evaluate employment discrimination claims. Referencing McDonnell Douglas Corp v Green, 411
US 792, 802; 93 S Ct 1817; 36 L Ed 2d 668 (1973) as authority, this Court stated:
[O]ur Supreme Court adapted the McDonnell Douglas framework to the Michigan
Civil Rights Act. This was done to accommodate additional types of discrimination
claims-including employment discrimination based on sex and age-and to
accommodate other “adverse employment action[s].” The framework, long used
by courts of this state, requires a showing that plaintiff was “(1) a member of a
protected class, (2) subject to an adverse employment action, (3) qualified for the
position, and that (4) others, similarly situated and outside the protected class, were
unaffected by the employer’s adverse conduct.” [Venable, 253 Mich App at 476-
477 (citations omitted).]
In Venable, this Court clarified that “any individual, Caucasian or African-American, male or
female, is protected from race or sex discrimination under the Civil Rights Act. Consequently,
ordinary and reverse discrimination claims are equally sustainable under the Civil Rights Act.” Id.
at 480-481.
-3-
To establish a rebuttable prima facie case of discrimination, a plaintiff must present
evidence that (1) she belongs to a protected class, (2) she suffered an adverse employment action,
(3) she was qualified for the position, and (4) defendant’s hiring decision occurred under
circumstances giving rise to an inference of unlawful discrimination. Sniecinski v BCBSM, 469
Mich 124, 134; 666 NW2d 186 (2003). If the plaintiff successfully establishes her prima facie
case, the burden shifts to the defendant to establish legitimate nondiscriminatory reasons for its
hiring decision, and if the defendant achieves that, the burden shifts back to the plaintiff to prove
that the proffered reason was merely pretextual. Id.
A plaintiff may establish a claim that her employer discriminated against her in violation
of ELCRA by the presentation of direct or indirect evidence. Wilcoxon, 235 Mich App at 358-
359. To establish a prima facie claim of employment discrimination, a plaintiff must show that
she suffered an adverse employment action under circumstances which give rise to an inference of
unlawful discrimination. Id. at 361. “Circumstances give rise to an inference of discrimination
when the plaintiff was treated differently than persons of a different class for the same or similar
conduct.” Id. (quotation marks and citation omitted). If a prima facie claim is established, the
employer then bears the burden of showing a legitimate, nondiscriminatory reason for the adverse
employment action. Id. If the employer does so, the burden shifts back to the plaintiff to prove
that the stated reason was merely pretextual. Id.
Plaintiff argues that she proved her prima facie case. Defendant argues that she did not.
Plaintiff conceded that she has no direct evidence of racial discrimination but contends that she
established a pretextual McDonnell Douglas type prima facie case of racial discrimination in that
she suffered an adverse employment action by not being hired for the parapro position despite
being qualified, that the candidate hired by defendant had inferior skills and experience, and that
the circumstances give rise to an inference of unlawful discrimination. The parties do not dispute
that plaintiff is a member of a protected class under ELCRA, that defendant did not select plaintiff
for the parapro position, or that plaintiff qualified for the parapro position. The parties dispute
whether race served as a motivating factor in defendant’s hiring decision. Defendant contends that
no indirect evidence supports plaintiff’s claim and an inference of unlawful discrimination cannot
be drawn in this case. We agree.
The record reflects that both plaintiff and the hired candidate met the minimum
qualifications for the parapro position. Each had earned a bachelor’s degree and each passed the
clerical tests as required by the collective-bargaining agreement, satisfying the minimum
qualifications. Although plaintiff and the hired candidate scored differently on the clerical skills
tests, the differences were negligible and did not distinguish the candidates in any meaningful way.
The record also indicates that each candidate had performed their respective jobs satisfactorily.
Although plaintiff claimed to be superior, plaintiff failed to present evidence that the candidate
defendant hired for the position lacked the skills, experience, and aptitude for the position. Further,
plaintiff did not demonstrate with objective, verifiable evidence her claimed superiority.
Assuming that plaintiff established her prima facie case, the burden shifted to defendant to
proffer a legitimate nondiscriminatory reason for its hiring decision. Defendant argued below and
reiterates on appeal that it selected and hired the best candidate for the parapro position and that
race had nothing to do with its hiring decision. Defendant asserted that the hired candidate had
more seniority and was better qualified. As previously described, plaintiff and the selected
-4-
candidate each met the requisite minimum qualifications for the parapro position. Comparison of
the two candidates reveals that plaintiff had more experience as a parapro, having served in that
position part time for around six years. Nevertheless, the selected candidate had some experience
as a parapro and numerous years of service for defendant in different positions providing her
knowledge and experience in a number of areas of the college. Respecting the candidates’
education, the selected candidate had a master’s degree in business whereas plaintiff had only a
bachelor’s degree. Objective analysis of plaintiff and the selected candidate permits the conclusion
that the candidates were relatively equal with the exception that the selected candidate had
substantially more seniority and experience in higher education as an employee for defendant than
plaintiff. Witnesses testified that seniority did not serve as a definitive factor but only a
consideration in the overall hiring decision. The candidates being relatively equal in almost every
respect, the record indicates that defendant made its hiring decision based on the candidates’
respective interview performance and demonstration of their abilities in relation to the selection
criteria.4
The record indicates that the search committee’s candidate selection for recommendation
to the HR department came down to the committee’s analysis of the candidates’ interview
performance. All witnesses but plaintiff described the interview process as the decisive component
of the selection process for the committee and that the selected candidate performed better than all
other candidates.
Each member of the search committee testified that plaintiff’s interview did not showcase
her skill set. Further, the witnesses explained that they found it confusing that plaintiff waited
until the last question of the interview to present the committee an album that she put together
which featured photos of herself engaging in marketing activity related to a previous job and
various correspondences from persons who praised plaintiff’s job performance both in her position
with defendant but also in several previous jobs with other employers dating back to 1986. The
committee members’ testimonies indicate that they felt confused as to plaintiff’s rationale for
sharing that information during the interview and did not understand how it correlated to the
parapro position she sought or the selection criteria. In her deposition, plaintiff called the album
her “brag book,” and apparently assumed that the committee members would understand that it
demonstrated her abilities. The record indicates that the item’s presentation had the opposite effect
with the committee. Examination of the album reveals that it did not specify in any manner how
it should be interpreted or how it related to the selection criteria for the parapro position.
By contrast, the record reflects that the committee members were impressed with the
selected candidate’s interview because she demonstrated the scope of her skill set, presented
herself as oriented to help students and place their needs first, wove into her responses to interview
questions her experiences with students, showed how her knowledge and experience in the student
enrollment position she held would add value to her role as an Academic Support Center parapro,
and provided the most detailed and focused answers to the interview questions of all of the
4
Plaintiff repeatedly offered her subjective personal assessment of herself as superior to the
selected candidate, but she has not supported that contention with objective evidence that
definitively demonstrates her superiority.
-5-
candidates. The committee members testified that the selected candidate distinguished herself in
her interview responses as unquestionably the superior candidate who met the selection criteria.
They all testified that the committee unanimously selected her to recommend to the HR department
for hiring.
The record indicates that defendant presented admissible evidence that supported its
position that the committee found the selected candidate the most recommendable candidate based
on her interview performance. It also presented evidence that, although a qualified candidate for
the parapro position, plaintiff fell short in her interview and the selected candidate demonstrated
that she was the best choice for the position. The committee members each testified at their
respective depositions that plaintiff did an adequate job in her interview but failed to clearly
demonstrate her skills and link them to the selection criteria. Defendant’s HR department
ultimately hired the recommended candidate for the position. The record plainly establishes that
defendant articulated a legitimate, nondiscriminatory reason for its hiring decision.
Having articulated a legitimate nondiscriminatory reason for defendant’s hiring decision
and supported it with admissible evidence, the burden shifted back to plaintiff to establish that the
proffered reason merely served as a pretext and that plaintiff’s race had been a motivating factor
in defendant’s hiring decision. As explained in Hazle v Ford Motor Co, 464 Mich 456, 466; 628
NW2d 515 (2001):
The inquiry at this final stage of the McDonnell Douglas framework is
exactly the same as the ultimate factual inquiry made by the jury: whether
consideration of a protected characteristic was a motivating factor, namely, whether
it made a difference in the contested employment decision. The only difference is
that, for purposes of a motion for summary disposition or directed verdict, a
plaintiff need only create a question of material fact upon which reasonable minds
could differ regarding whether discrimination was a motivating factor in the
employer’s decision. [Citation omitted.]
* * *
[T]he McDonnell Douglas burden-shifting framework is merely intended “to
progressively sharpen the inquiry into the elusive factual question of intentional
discrimination.” It is important to keep in mind, therefore, that for purposes of
claims brought under the Michigan Civil Rights Act, the McDonnell Douglas
approach merely provides a mechanism for assessing motions for summary
disposition and directed verdict in cases involving circumstantial evidence of
discrimination. It is useful only for purposes of assisting trial courts in determining
whether there is a jury-submissible issue on the ultimate fact question of unlawful
discrimination. [Citation omitted.]
“As a matter of law, an inference of unlawful discrimination does not arise merely because an
employer has chosen between two qualified candidates.” Id. at 471.
The record in this case establishes that plaintiff failed to meet her burden. Plaintiff
attempted to establish her superiority to the selected candidate by pointing to her years of
-6-
experience as a parapro, by claiming her superiority, and by asserting that she felt that her interview
went very well. Plaintiff’s self-assessment, however, is not supported by the record. Further,
plaintiff relied on conclusory speculation that, given her self-assessment of obvious superiority,
defendant must have chosen the other candidate over her because of plaintiff’s race. As previously
explained, the two candidates met the minimum requirements for the position and were relatively
equal candidates. Their respective interview performances served as the determinative factor in
the hiring process. The witnesses testified that the selected candidate simply outperformed
plaintiff. The selected candidate articulated in her interview in a clear and concise way how her
skill set would benefit the Academic Support Center. She impressed the committee with her
communication and listening skills, and student focus. Plaintiff presented no evidence to establish
that a reasonable inference could be drawn that race played any role in defendant’s decision-
making process. Further, plaintiff failed to present any evidence direct or circumstantial that
discriminatory animus motivated defendant in any respect in its hiring decision. Other than her
subjective claim that she was more qualified than the selected candidate, plaintiff has offered
nothing to support her claim that defendant acted with racial animus.
Plaintiff casts aspersions on the committee and argues that the members colluded in their
deposition testimonies because they testified that plaintiff performed poorly in her interview in
comparison to the selected candidate. Plaintiff maintains that their testimonies cannot be true
because she herself was always the best qualified candidate. The record simply does not support
plaintiff’s arguments. Plaintiff also argues that defendant’s Dean of Learning Resources, who
convened and led the search committee, with whom she met in July 2018, gave her untrue reasons
for defendant’s decision from which the trial court should have inferred that defendant
discriminated against her. The record of that meeting, however, reveals that the dean attempted to
assist plaintiff in understanding the hiring process, the selection criteria, and recognize her
shortcomings, so that she could perform better the next time she applied for a position with
defendant. Plaintiff, however, refused to accept that she needed help or that she had not performed
as well as the selected candidate. The record of that meeting further reveals that plaintiff had
already concluded in her own mind that she had been racially discriminated against. Analysis of
that meeting and the explanation given by the dean for defendant’s hiring decision, does not permit
any reasonable inferences that defendant acted with racial animus.
Viewing the evidence in this case in the light most favorable to plaintiff and drawing any
reasonable inferences in her favor, reasonable minds cannot differ as to whether racial
discrimination served as a motivating factor in defendant’s hiring decision. Plaintiff failed to
establish with any evidence that defendant’s reasons for its decision were pretextual. Accordingly,
plaintiff has failed to demonstrate the existence of a genuine issue of material fact concerning
whether defendant relied on any discriminatory animus in making its employment decision.
-7-
We conclude that plaintiff has failed to establish the existence of a triable issue for the jury
concerning whether race served as a motivating factor in defendant’s employment decision.
Therefore, the trial court did not err in granting defendant summary disposition.
Affirmed.
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
-8- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483294/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SUNFLOWER VILLAGE HOMES UNPUBLISHED
ASSOCIATION, November 10, 2022
Plaintiff-Appellant/Cross-Appellee,
v No. 358150
Wayne Circuit Court
ERIC LACY and MICHELLE CHRISTIE, LC No. 21-000541-CH
Defendants-Appellees/Cross-
Appellants.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Plaintiff, Sunflower Village Homes Association, appeals as of right the trial court’s order
entering default judgment against defendants, Eric Lacy and Michelle Christie, that limited
plaintiff’s award of attorney fees to $500. Defendants cross-appeal, challenging the trial court’s
denial of their motion to set aside the defaults. We affirm the trial court’s denial of defendants’
motion to set aside the defaults, but vacate the trial court’s award of attorney fees and remand for
the trial court to properly address plaintiff’s request for attorney fees.
I. BACKGROUND
Defendants own a home in the Sunflower Village Homes Subdivision and, as such, are
members of plaintiff. Pursuant to plaintiff’s bylaws, each member-owner is responsible for paying
annual assessments. Defendants failed to pay their assessments for 2020 and 2021. This led
plaintiff to file this collection action on January 14, 2021. Plaintiff’s complaint alleged that
defendants owed the unpaid assessments with interest plus late fees, and requested attorney fees
pursuant to plaintiff’s bylaws.
After receiving no response, plaintiff requested entry of default against both defendants on
February 24, 2021, and defaults were entered against both defendants on March 2, 2021.
On March 31, 2021, plaintiff moved for entry of default judgment. As relevant to this
appeal, in addition to the unpaid assessments and late fees, plaintiff’s motion requested that
-1-
defendants pay $3,229.85 in “actual and reasonable attorney’s fees.” Plaintiff attached to its
motion an exhibit showing the work plaintiff’s counsel had done, the time plaintiff’s counsel spent
doing that work, and the rate that plaintiff’s counsel charged for that work. In a brief attached to
its motion, plaintiff walked through the factors outlined in Smith v Khouri, 481 Mich 519, 528-
530; 751 NW2d 472 (2008), to argue that its requested attorney fees were reasonable.
Defendants responded to plaintiff’s motion on April 28, 2021. As relevant to this appeal,
defendants contended that Christie was not properly served, and that “[t]his constitute[d] a defect
in the proceedings which would amount to a legal basis to set aside the default[s].”
Defendants later formally moved to set aside the defaults on May 7, 2021. Defendants
reiterated that Christie was not properly served, and argued that this was good cause to set aside
the defaults. Defendants then argued that they had a meritorious defense to plaintiff’s action
because Christie was never sent the outstanding assessments in violation of plaintiff’s bylaws. 1
In response to defendants’ claim that Christie was not served, plaintiff explained that
Christie was personally served by plaintiff’s process server when she, by apparent happenstance,
answered the door at defendants’ co-owned home when the process server was trying to serve
Lacy. Plaintiff attached emails to its motion in support of this assertion. Plaintiff next explained
that it had attempted to serve Christie by mail at her last known address through both certified and
first-class mail, and that, while the certified letter was returned as unclaimed, the first-class letter
was not. Plaintiff therefore assumed that the first-class letter had been forwarded to Christie.
Plaintiff further contended that it was Christie’s responsibility to update her address with plaintiff
if her address had changed, which she never did.
The trial court held a hearing on the parties’ motions on July 16, 2021. The parties argued
in line with their briefs. After listening to the parties’ arguments, the trial court issued an oral
ruling on the record. The trial court denied defendants’ motion to set aside the defaults, reasoning
that they had not established a meritorious defense “regarding the complaint about the failure to
pay the amount.” The trial court then granted plaintiff’s motion for entry of default judgment, but
on the issue of attorney fees, limited the award to $500. The court explained:
And, in looking at the factors of the amount, considering the nature of the suit and
the difficulty and given counsel’s background, this is pretty easy stuff. So, $500,
especially in light of the amount of the claim and the difficulty of the suit, is
reasonable and that would be corrected in your order.
Plaintiff’s appeal and defendants’ cross-appeal followed.
1
Defendants raised other arguments about why the defaults should be set aside, including that
Lacy’s indigency was a basis to set aside the defaults and that plaintiff’s entire action violated the
federal moratorium on evictions that was in effect at the time. Defendants do not raise those
arguments on appeal, however, so this opinion does not address them any further.
-2-
II. MOTION TO SET ASIDE DEFAULTS
In their cross-appeal, defendants argue that the trial court abused its discretion by denying
their motion to set aside the defaults. We disagree.
A. STANDARD OF REVIEW
This Court reviews a ruling on a motion to set aside a default for an abuse of discretion.
Shawl v Spence Bros, Inc, 280 Mich App 213, 218; 760 NW2d 674 (2008). “An abuse of discretion
occurs when the trial court’s decision is outside the range of reasonable and principled outcomes.”
Pirgu v United Services Auto Ass’n, 499 Mich 269, 274; 884 NW2d 257 (2016).
B. ANALYSIS
The court rules provide that a default may be set aside “if good cause is shown and a
statement of facts showing a meritorious defense . . . is filed.” MCR 2.603(D)(1). “Good cause
is established by (1) a procedural irregularity or defect, or (2) a reasonable excuse for not
complying with the requirements that created the default.” Barclay v Crown Bldg & Dev, Inc, 241
Mich App 639, 653; 617 NW2d 373 (2000).
Defendants claim that Christie was never served, and they filed an affidavit to that effect.
Plaintiffs, on the other hand, contend that Christie was personally served. The trial court did not
hold an evidentiary hearing to resolve this factual dispute, as is common in these situations. See,
e.g., id. at 651 (upholding the trial court’s finding that the defendant was served, despite his sworn
assertions that he was not). While not explicitly stated, it appears that the trial court accepted
without deciding that Christie was not served. Doing the same, we will assume for purposes of
this appeal that Christie was not served. This constituted a procedural defect or irregularity, and
thus provided good cause to set aside the defaults.
The crux of the trial court’s ruling on this issue was its finding that defendants did not
submit facts establishing a meritorious defense. This Court has explained:
In determining whether a defendant has a meritorious defense, the trial court
should consider whether the affidavit contains evidence that:
(1) the plaintiff cannot prove or defendant can disprove an element of the
claim or a statutory requirement;
(2) a ground for summary disposition exists under MCR 2.116(C)(2), (3),
(5), (6), (7) or (8); or
(3) the plaintiff’s claim rests on evidence that is inadmissible. [Brooks
Williamson & Assoc, Inc v Mayflower Const Co, 308 Mich App 18, 29; 863 NW2d
333 (2014) (quotation marks and citation omitted).]
-3-
Defendants argue that plaintiff cannot enforce the assessments against defendants because
Christie never received notice of the assessments in violation of plaintiff’s bylaws.2 In support of
this argument, defendants rely on the following provision of plaintiff’s bylaws:
The Board of Directors of the Association, subject to the limitations set forth
in Section 3 and 4 hereof, shall fix the amount of the assessment against each Lot
for each assessment period at least thirty (30) days in advance of such date or period
and shall at that time, prepare a roster of the Lots and the assessments applicable
thereto which shall be kept in the office of the Association and shall be open to
inspection by any Owner. Written notice of the assessment shall thereupon be sent
to every Owner subject thereto. The Association shall, upon demand and payment
of a reasonable charge, furnish to any Owner liable for such assessment(s) a
certificate in writing signed by an officer of the Association setting forth whether
such assessment has been paid. Such certificate shall be conclusive evidence of
payment of any assessment therein stated to have been paid. [Emphasis added.]
In Christie’s affidavit, she asserts that she never received notice of the assessments at issue.
In response, plaintiff points out that “notice” under its bylaws is not actual notice as
defendants contend, but is defined as follows:
Any notice required to be sent to every Member or Owner under the
provisions of this Declaration shall be deemed to have been properly sent when
mailed, postpaid, to the last known address of the person who appears as Member
or Owner on the records of the Association at the time of such mailing.
Plaintiff presented abundant evidence that it routinely sent written notices of its assessments to
Christie at “8611 Sunrise Meadow Lane, Houston, TX 77095,” including written notices about the
assessments at issue in this case. In her affidavit, Christie asserts that her current address is “19502
Hope Springs Lane, Cypress, Texas 77433,” but never denies that she used to live at the 8611
Sunrise Meadow Lane address. More importantly, in filings in the trial court, defendants admitted
that Christie used to live at the 8611 Sunrise Meadow Lane address. Yet, in Christie’s affidavit
that defendants rely upon as the basis for their meritorious defense, Christie never averred that she
updated her address with plaintiff.
Accordingly, defendants have failed to present a meritorious defense. While plaintiff was
required to send written notices of the at-issue assessments to Christie, the notices only had to be
sent to her last known address. Plaintiff presented ample evidence showing that it sent notices of
the at-issue assessments to Christie’s last known address, and nothing in Christie’s affidavit
contests this fact. Accordingly, the trial court did not abuse its discretion by denying defendants’
request to set aside the defaults.
2
Defendants do not argue that plaintiff’s alleged failure to properly serve Christie is a meritorious
defense, so such an argument is abandoned on appeal.
-4-
III. ATTORNEY FEES
In its claim of appeal, plaintiff argues that the trial court abused its discretion in its handling
of plaintiff’s request for attorney fees. Defendants agree that the trial court did not properly
address plaintiff’s request for attorney fees and that remand is necessary. Thus, there is no dispute
that this case should be remanded for the trial court to address plaintiff’s request for attorney fees
using the proper framework. For the sake of thoroughness, this opinion will briefly analyze the
trial court’s error.
A. STANDARD OF REVIEW
A trial court’s decision to award attorney fees is reviewed for an abuse of discretion. Smith,
481 Mich at 526. “An abuse of discretion occurs when the trial court’s decision is outside the
range of reasonable and principled outcomes.” Pirgu, 499 Mich at 274.
B. ANALYSIS
The parties agree that, if the trial court properly entered the default judgment against
defendants, then plaintiff is entitled to reasonable attorney fees pursuant to plaintiff’s bylaws. In
the trial court, plaintiff requested $3,229.85 in attorney fees, supported this request with
documentation, and made arguments for why the requested amount was reasonable. In reducing
plaintiff’s attorney fees to $500, the trial court explained:
And, in looking at the factors of the amount, considering the nature of the suit and
the difficulty and given counsel’s background, this is pretty easy stuff. So, $500,
especially in light of the amount of the claim and the difficulty of the suit, is
reasonable and that would be corrected in your order.
When determining the reasonableness of attorney fees as the trial court was required to do
here, courts are to apply the framework outlined by our Supreme Court in Smith, 481 Mich at 528-
530, and Pirgu, 499 Mich at 275-282. See Powers v Brown, 328 Mich App 617, 622; 939 NW2d
733 (2019). As this Court has explained:
In Smith, our Supreme Court instructed that the analysis begins with the trial
court determining the fee customarily charged in the locality for similar legal
services. Next, this number should be multiplied by the reasonable number of hours
expended in the case. The number produced by this calculation should serve as the
starting point for calculating a reasonable attorney fee. Then, the trial court should
consider a number of factors to determine whether an upward or downward
adjustment is appropriate. . . . [O]ur Supreme Court more recently distilled the
factors that a trial court is to consider:
(1) the experience, reputation, and ability of the lawyer or lawyers
performing the services,
(2) the difficulty of the case, i.e., the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly,
-5-
(3) the amount in question and the results obtained,
(4) the expenses incurred,
(5) the nature and length of the professional relationship with the client,
(6) the likelihood, if apparent to the client, that acceptance of the particular
employment will preclude other employment by the lawyer,
(7) the time limitations imposed by the client or by the circumstances, and
(8) whether the fee is fixed or contingent.
These factors are not exclusive, and the trial court may consider any
additional relevant factors. Further, to aid appellate review, the trial court should
briefly discuss its view of each of the factors above on the record and justify the
relevance and use of any additional factors. When a trial court fails to follow this
method, it errs. Finally, if a trial court primarily relies on only one factor—the
amount sought and results achieved—and fails to briefly discuss its view of the
other factors, the trial court necessarily abuses its discretion and remand is required.
[Id. at 622-624 (quotation marks, citations, footnotes, and alterations omitted).]
Here, the trial court clearly failed to follow this framework for determining the
reasonableness of plaintiff’s requested attorney fees. Further, to the extent that it considered some
factors, it failed to “comprehensively review and state its findings with respect to all the factors in
the Smith/Pirgu framework,” and thus abused its discretion. Id. at 624. Remand is necessary for
the trial court to analyze plaintiff’s request for attorney fees using the proper framework.3
IV. CONCLUSION
The trial court did not abuse its discretion when it denied defendants’ motion to set aside
the defaults. However, the trial court did abuse its discretion when it reduced plaintiff’s award of
attorney fees to $500 without analyzing the issue under the proper framework. The trial court’s
award of attorney fees is therefore vacated, and the case is remanded for the trial court to address
plaintiff’s request for attorney fees under the proper framework.
Affirmed in part, vacated in part, and remanded. We do not retain jurisdiction.
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
3
Plaintiff also requests reasonable attorney fees for the work associated with this appeal. The trial
court should allow additional briefing by the parties to address this issue, decide whether plaintiff
is entitled to attorney fees related to this appeal and, if so, the reasonableness of the requested fees.
-6- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483290/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
THERESA DELINCK, UNPUBLISHED
November 10, 2022
Plaintiff/Counterdefendant-Appellant,
V No. 358094
Hillsdale Circuit Court
JOSEPH DEFINA and DANIELLE DEFINA, LC No. 21-000217-CZ
Defendants/Counterplaintiffs-
Appellees.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order dismissing her complaint on the basis of
the doctrine of res judicata. We affirm.
This case arises from a dispute between family members. Defendants are plaintiff’s
daughter and son-in-law. In 2016, plaintiff provided a no-interest mortgage loan to defendants,
who used the loan to purchase the subject property. In exchange for the loan, defendants granted
plaintiff a life estate in the property. The parties, along with defendants’ children, lived together
at the subject property until relations between the parties soured and plaintiff left.
In May 2018, plaintiff sued defendants, raising multiple claims related to the property and
the parties’ contractual relations, including a claim for partition of the property. Before trial,
however, plaintiff voluntarily dismissed all of her claims except one breach-of-contract claim. On
April 11, 2019, a jury returned a verdict finding that the parties had a contract and that defendants
had granted plaintiff a life estate in the subject property, but that defendants did not breach the
contract. Plaintiff then moved back into the house with her new husband.
In May 2019, defendants sued plaintiff raising various claims, and plaintiff counterclaimed
asking, among other things, that the court partition the property. Both parties moved for summary
disposition, arguing that the other party’s claims were barred by the doctrine of res judicata. The
trial court agreed with both parties and accordingly dismissed all claims as being barred by res
judicata. This Court affirmed that ruling on appeal. See Defina v Delinck, unpublished per curiam
opinion of the Court of Appeals, issued January 21, 2021 (Docket No. 351610), p 2-4.
-1-
Afterwards, plaintiff filed the instant complaint, again asking the trial court to partition the
property. Plaintiff alleged that this new complaint was based on “new facts”—plaintiff alleged
that, after the orders in the previous case were entered, plaintiff made known her intentions of
using her life estate, but defendants denied her use of the property. Defendants moved to dismiss
this new partition claim on the basis of res judicata. The trial court agreed and granted defendants’
motion on July 19, 2021. This appeal followed.
Plaintiff argues that the trial court erred in barring her complaint for partition on the basis
of res judicata because her current partition action was a new one based on facts that occurred after
the parties’ previous case concluded. We disagree.
“We review de novo both a trial court’s decision on a motion for summary disposition and
its application of the legal doctrine of res judicata.” Garett v Washington, 314 Mich App 436,
440-441; 886 NW2d 762 (2016).
“The purpose of the doctrine of res judicata is to prevent multiple suits litigating the same
cause of action.” King v Munro, 329 Mich App 594, 600-601; 944 NW2d 198 (2019). “Under the
doctrine of res judicata, a final judgment rendered by a court of competent jurisdiction on the
merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an
absolute bar to a subsequent action involving the same claim, demand or cause of action.” Wayne
Co v Detroit, 233 Mich App 275, 277; 590 NW2d 619 (1998). The doctrine applies when three
elements are met: “(1) the first action was decided on the merits, (2) the matter contested in the
second action was or could have been resolved in the first, and (3) both actions involve the same
parties or their privies.” Verbrugghe v Select Specialty Hosp-Macomb Co, Inc, 279 Mich App
741, 744; 760 NW2d 583 (2008) (quotation marks and citation omitted).
Plaintiff does not dispute that this action involves the same parties as the 2018 action, nor
does she dispute that the 2018 action was decided on the merits. Instead, she contends that this
“partition action is a new action based upon new facts that have not been previously litigated”—
i.e., she contests the second element.
When determining whether the second element has been satisfied—“whether the matter in
the second case was or could have been resolved in the first”—courts apply a broad “transactional
test.” Adair v State, 470 Mich 105, 123-125; 680 NW2d 386 (2004). The “determinative question
is whether the claims in the instant case arose as part of the same transaction” as the claims in the
earlier case. Id. at 125. “Whether a factual grouping constitutes ‘a transaction’ for purposes of res
judicata is to be determined pragmatically” by considering whether the facts are related in time,
space, origin or motivation, and whether they form a “convenient trial unit.” Id. When the new
action involves facts and events separate from those involved in the previous suit, the doctrine
does not apply. Ditmore v Michalik, 244 Mich App 569, 577; 625 NW2d 462 (2001).
We believe there can be no serious dispute that plaintiff’s 2021 complaint requesting
partition is the same as her 2018 claim for partition and otherwise could have been resolved in her
2018 action. Plaintiff’s current claim, like her entire 2018 action, stems from the parties’
contractual relations with respect to the property. Contrary to plaintiff’s assertions, her new
complaint for partition does not allege any “new facts.” It is nearly identical to her 2019
counterclaim for partition, which was dismissed as being barred by res judicata because that 2019
-2-
counterclaim could have been resolved in plaintiff’s 2018 action. Plaintiff’s 2019 counterclaim
for partition alleged:
9. This court has jurisdiction to hear this matter pursuant to MCL 600.3301
10. Plaintiff has a right to bring this action pursuant to MCL 600.3304.
11. The property at issue is capable of geographic partition; it has separate
living quarters with kitchenette and bathroom in the lowest level of the
home, and an equal number of garage bays to tenants in common having a
possessory interest in the home (three).
12. This court has authorization under its equitable powers to order a partition
of the property pursuant to MCL 600.3301, in an equitable manner pursuant
to MCL 600.3336, and in accordance with procedure pursuant to MCR
3.401 and 3.402.
Her current claim alleges:
13. MCL 600.3304 states: “All persons holding lands as joint tenants or as
tenants in common may have those lands partitioned.” MCL 600.3301
states that such actions are “equitable in nature.”
14. MCL 600.3308 states: “Any person who has an estate in possession in the
lands of which partition is sought may maintain a claim for partition of those
lands . . .”
15. The property at issue has two separate living quarters, each with a bathroom
and kitchen. The property has three garage bays. As such, it is Plaintiff’s
position that the property can be physically divided between the parties,
with the [defendants] occupying the main living area of the home, and
[plaintiff] occupying the basement living quarters. The [defendants] would
have two garage bays, while [plaintiff] would have one.
16. Should this court determine that a physical partition is not reasonable or
possible under the circumstances, this court has the power to order the
property be sold and proceeds equitably divided, pursuant to MCL
600.3332.
Thus, to summarize, plaintiff’s initial action and the instant case involve the same parties;
the initial action was decided on the merits; plaintiff’s initial claim for partition was voluntarily
dismissed by plaintiff but could have been decided and resolved during that initial litigation1;
1
On appeal, plaintiff at one point contends that because she voluntarily dismissed her first partition
claim without prejudice, she can bring a partition claim now. This ignores that a claim need not
-3-
plaintiff later brought a second claim for partition that was dismissed by the trial court on the basis
of res judicata, and that ruling was affirmed on appeal; and her current claim for partition mirrors
her claim for partition that was dismissed on the basis of res judicata. The claim raised in this
action for partition is not new. Like her already-dismissed second claim for partition, plaintiff’s
current claim arises from the parties’ contractual relations with respect to the property, and thus
the same transactional foundation existed in both actions. See Adair, 470 Mich 124-125.
Accordingly, the trial court properly concluded that plaintiff’s current claim for partition is barred
by the doctrine of res judicata.
Affirmed.
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
be actually litigated in the first action to be barred by res judicata—it is enough if the claim “could
have been resolved in the first” action. Verbrugghe, 279 Mich App at 744. See also Adair, 470
Mich at 121 (“This Court has taken a broad approach to the doctrine of res judicata, holding that
it bars not only claims already litigated, but also every claim arising from the same transaction that
the parties, exercising reasonable diligence, could have raised but did not.”).
-4- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483270/ | Case: 22-20121 Document: 00516541834 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 22-20121 November 10, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Milton Valencia Blandon,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-876-2
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
The attorney appointed to represent Milton Valencia Blandon has
moved for leave to withdraw and has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229
(5th Cir. 2011). Blandon has not filed a response. We have reviewed counsel’s
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-20121 Document: 00516541834 Page: 2 Date Filed: 11/10/2022
No. 22-20121
brief and the relevant portions of the record reflected therein. We concur
with counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review. Accordingly, counsel’s motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and
the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Blandon’s motion
for the appointment of counsel is DENIED. See United States v. Wagner, 158
F.3d 901, 902-03 (5th Cir. 1998).
2 | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483268/ | Case: 22-50650 Document: 00516541664 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50650
Summary Calendar FILED
November 10, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Pabeel Narvaez-Gomez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:22-CR-273-1
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Pabeel Narvaez-Gomez appeals his conviction and sentence for illegal
reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b)(1). Narvaez-
Gomez contends that § 1326(b) is unconstitutional because it permits a
sentence above the otherwise-applicable statutory maximum based on facts
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-50650 Document: 00516541664 Page: 2 Date Filed: 11/10/2022
No. 22-50650
that were neither alleged in the indictment nor found by a jury beyond a
reasonable doubt. He acknowledges that this issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v.
Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). He nevertheless seeks to
preserve the issue for further review and has filed an unopposed motion for
summary disposition. Because summary disposition is appropriate, see
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969),
Narvaez-Gomez’s motion is GRANTED, and the district court’s judgment
is AFFIRMED.
2 | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483277/ | 11/10/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 1, 2022
IN RE ELIJAH F.
Appeal from the Juvenile Court for Davidson County
No. 2018-2919, PT256248 Sheila D. J. Calloway, Judge
___________________________________
No. M2022-00191-COA-R3-PT
___________________________________
In this case involving termination of the mother’s parental rights to her child, the Davidson
County Juvenile Court (“trial court”) determined that several statutory grounds for
termination had been proven by clear and convincing evidence. The trial court further
determined that clear and convincing evidence established that termination of the mother’s
parental rights was in the child’s best interest. The mother has appealed. Having
determined that three of the statutory grounds were not supported by sufficient findings of
fact and conclusions of law, we reverse the trial court’s judgment with respect to the
grounds of abandonment by an incarcerated parent by failure to support, abandonment by
exhibiting wanton disregard for the child’s welfare prior to incarceration, and failure to
manifest an ability and willingness to assume custody of or financial responsibility for the
child. We affirm the trial court’s judgment in all other respects, including the termination
of the mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part, Reversed in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.
C. Michael Cardwell, Nashville, Tennessee, for the appellant, Brittany F.
Jennifer L. E. Williams, Springfield, Tennessee, for the appellees, Dale F. and Wendellyn
F.
OPINION
I. Factual and Procedural Background
Dale F. (“Grandfather”) and Wendellyn F. (“Grandmother”) (collectively,
“Grandparents”), the maternal grandparents of Elijah F. (“the Child”), filed a petition in
the trial court on March 11, 2020, seeking termination of the parental rights of Brittany F.
(“Mother”) and Elijah N. (“Father”)1 to the Child. The trial court had adjudicated the Child
dependent and neglected in an “Order of Adjudication and Disposition” entered in March
2019. Therein, the trial court related that the Child was born on November 3, 2017, and
had lived with both Mother and Father immediately after his birth until August 13, 2018,
when DCS intervened upon receiving a referral alleging that the Child lacked supervision
and had been exposed to illegal drugs by Mother and Father.
According to the trial court’s order, upon DCS’s receipt of the referral, law
enforcement officers conducted a “welfare check on this family at a hotel.” Upon arrival,
the officers discovered that there was an outstanding warrant for Father’s arrest and found
drug paraphernalia “on the parents.” Although Father admitted to the use of heroin, Mother
denied using illegal drugs. Officers indicated that Mother’s appearance was “indicative of
a drug user.” Both parents were taken into custody, beginning DCS’s involvement with
this family. On August 17, 2018, the trial court placed the Child in the temporary custody
of Grandparents.
In their petition to terminate Mother’s and Father’s parental rights to the Child,
Grandparents alleged several grounds for termination of Mother’s parental rights,
including: (1) abandonment by failure to visit, pursuant to Tennessee Code Annotated §§
36-1-113(g)(1) and 36-1-102(1)(A)(i); (2) abandonment by failure to support, pursuant to
Tennessee Code Annotated §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i); (3) failure to
substantially comply with the requirements of her permanency plan, pursuant to Tennessee
Code Annotated § 36-1-113(g)(2); (4) persistence of the conditions that led to removal of
the Child, pursuant to Tennessee Code Annotated § 36-1-113(g)(3); and (5) failure to
manifest an ability and willingness to assume legal or physical custody of or financial
responsibility for the Child, pursuant to Tennessee Code Annotated § 36-1-113(g)(14). In
an amended petition filed on April 15, 2021, Grandparents withdrew the first two
abandonment grounds alleged in the original petition and added the following grounds:
abandonment by failure to visit during the four months prior to Mother’s incarceration,
abandonment by failure to support during the four months prior to Mother’s incarceration,
and abandonment by engaging in conduct prior to incarceration exhibiting a wanton
1
The trial court entered a default judgment against Father after he had failed to file an answer to the
termination petition and failed to appear for a hearing on September 1, 2020. Father has not appealed the
court’s decision and is not a party to this appeal. We will therefore limit our review to the trial court’s
termination of Mother’s parental rights to the Child.
-2-
disregard for the Child, all pursuant to Tennessee Code Annotated §§ 36-1-113(g)(1) and
36-1-102(1)(A)(iv).2
After conducting a bench trial on October 14, 2021, the trial court entered a final
order terminating Mother’s parental rights to the Child on January 19, 2022. The trial court
found clear and convincing evidence of the following statutory grounds for termination of
Mother’s parental rights: (1) abandonment by failure to visit, (2) abandonment by failure
to support,3 (3) abandonment by being “incarcerated willfully,”4 (4) persistence of the
conditions that led to removal of the Child from Mother’s custody, and (5) failure to
manifest an ability and willingness to assume legal and physical custody of or financial
responsibility for the Child. The court determined that the ground of failure to substantially
comply with the requirements of the permanency plan was inapplicable based on its finding
that no valid permanency plan had been developed by DCS. Upon analyzing the best
interest considerations in Tennessee Code Annotated § 36-1-113(i), the trial court
determined that termination of Mother’s parental rights was in the Child’s best interest.
Mother timely appealed.
II. Issues Presented
Mother raises the following issues for this Court’s review, which we have restated
slightly as follows:
1. Whether the trial court erred by finding clear and convincing evidence
that Mother had abandoned the Child by willfully failing to visit him
within the statutorily relevant four-month period.
2. Whether the trial court erred by finding clear and convincing evidence
that Mother had abandoned the Child by willfully failing to support
him within the statutorily relevant four-month period.
2
During trial, Grandparents explained to the trial court that the three grounds included in the amended
petition were meant to replace the two abandonment grounds included in the original petition, and they
consequently withdrew the two original abandonment grounds.
3
The trial court’s order does not specify whether its finding of the grounds of abandonment by failure to
visit and abandonment by failure to support pertain to Tennessee Code Annotated § 36-1-102(1)(A)(i) or §
36-1-102(1)(A)(iv), the latter applying to a parent who has been incarcerated for all or part of the statutory
four-month period. Mother, however, does not argue that the trial court considered the incorrect statutory
grounds of abandonment, and the trial court expressly found in its order that Mother had been incarcerated
for periods of the four months preceding the petition’s filing. Thus, we will review the court’s findings as
if applied to the proper statutory grounds of abandonment by an incarcerated parent pursuant to Tennessee
Code Annotated § 36-1-102(1)(A)(iv).
4
The trial court’s finding that Mother had been willfully incarcerated presumably refers to the abandonment
ground of exhibiting wanton disregard for the Child’s welfare prior to incarceration.
-3-
3. Whether the trial court erred by finding clear and convincing evidence
that Mother had abandoned the Child by engaging in conduct that
exhibited a wanton disregard for the Child’s welfare prior to her
incarceration.
4. Whether the trial court erred by finding clear and convincing evidence
that the conditions that led to the Child’s removal from Mother’s
custody persisted.
5. Whether the trial court erred by finding clear and convincing evidence
that Mother had failed to manifest an ability and willingness to assume
legal and physical custody of or financial responsibility for the Child.
6. Whether the trial court erred by finding clear and convincing evidence
that termination of Mother’s parental rights was in the Child’s best
interest.
Grandparents add an additional issue, restated slightly as follows:
7. Whether the trial court erred by finding insufficient evidence that
Mother had failed to substantially comply with a permanency plan.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. See
Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn.
2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de
novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524
(citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
-4-
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has explained:
The parental rights at stake are “far more precious than any property right.”
Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termination of
parental rights has the legal effect of reducing the parent to the role of a
complete stranger and of [“]severing forever all legal rights and obligations
of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1);
see also Santosky, 455 U.S. at 759 (recognizing that a decision terminating
parental rights is “final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to “fundamentally
fair procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T. 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as highly
probable, rather than as simply more probable than not. In re Audrey S., 182
S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660
(Tenn. Ct. App. 2005).
***
In light of the heightened burden of proof in termination proceedings,
however, the reviewing court must make its own determination as to whether
the facts, either as found by the trial court or as supported by a preponderance
of the evidence, amount to clear and convincing evidence of the elements
necessary to terminate parental rights. In re Bernard T., 319 S.W.3d at 596-
97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
-5-
IV. Statutory Grounds for Termination of Mother’s Parental Rights
Tennessee Code Annotated § 36-1-113 (Supp. 2022) lists the statutory requirements
for termination of parental rights, providing in relevant part:
(a) The chancery and circuit courts shall have concurrent jurisdiction with
the juvenile court to terminate parental or guardianship rights to a
child in a separate proceeding, or as a part of the adoption proceeding
by utilizing any grounds for termination of parental or guardianship
rights permitted in this part or in title 37, chapter 1, part 1 and title 37,
chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
Inasmuch as Mother has challenged the trial court’s findings and conclusions as to each
statutory ground, we will address each ground in turn.
A. Statutory Abandonment
Concerning statutory abandonment, Tennessee Code Annotated § 36-1-113(g)(1)
(Supp. 2022) provides as relevant to this action:
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the grounds listed in this subsection (g). The
following grounds are cumulative and nonexclusive, so that listing
conditions, acts or omissions in one ground does not prevent them
from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred; . . .
-6-
The version of Tennessee Code Annotated § 36-1-102(1)(A) (2020) in effect when the
instant action was filed provided the following definitions of abandonment as pertinent
here:
(iv) A parent or guardian is incarcerated at the time of the filing of a
proceeding, pleading, petition, or amended petition to terminate the
parental rights of the parent or guardian of the child who is the subject
of the petition for termination of parental rights or adoption, or a
parent or guardian has been incarcerated during all or part of the four
(4) consecutive months immediately preceding the filing of the action
and has:
(a) Failed to visit, has failed to support, or has failed to make
reasonable payments toward the support of the child for four
(4) consecutive months immediately preceding the parent’s or
guardian’s incarceration;
(b) Failed to visit, has failed to support, or has failed to make
reasonable payments toward the support of the child during an
aggregation of the first one hundred twenty (120) days of non-
incarceration immediately preceding the filing of the action; or
(c) Has engaged in conduct prior to incarceration that exhibits a
wanton disregard for the welfare of the child[.][5]
1. Abandonment by Incarcerated Parent
Pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(iv)
We begin our review of the grounds of abandonment by failure to visit and failure
to support by addressing the applicable four-month determinative period as outlined in the
statute. In their original petition, Grandparents asserted abandonment grounds for failure
to visit and failure to support pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(i),
which applies to the four months immediately preceding the filing of the termination
petition and does not apply to parents who are incarcerated during all or part of the four-
month period. Upon learning that Mother had been incarcerated for part of the four-month
period, Grandparents filed an amended petition alleging the proper statutory grounds for
abandonment by failure to visit and failure to support when the parent is incarcerated
5
Effective April 29, 2022, Tennessee Code Annotated § 36-1-102(1)(A)(iv)(c) has been amended
to state: “With knowledge of the existence of the born or unborn child, engaged in conduct prior
to, during, or after incarceration that exhibits a wanton disregard for the welfare of the child[.]”
See 2022 Tenn. Pub. Acts, Ch. 937, § 17 (H.B. 2070).
-7-
during all or part of the four-month period pursuant to Tennessee Code Annotated § 36-1-
102(1)(A)(iv).
The trial court, however, incorrectly determined that the relevant four-month period
began on January 15, 2021, and ended on April 15, 2021. The court’s determination only
amounts to a three-month period and was erroneously predicated upon the filing of
Grandparents’ amended termination petition on April 15, 2021. This Court has previously
clarified that “where an ‘amendment’ to a termination petition d[oes] not constitute a
separate and distinct petition, the proper four month period to consider [i]s the four months
preceding the filing of the original petition, not the amendment.” In re Chase L., No.
M2017-02362-COA-R3-PT, 2018 WL 3203109, at *9 (Tenn. Ct. App. June 29, 2018); see
In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *5 (Tenn. Ct. App.
July 22, 2020) (“As this amended petition was not a ‘separate and distinct’ petition from
the original . . . the proper period to consider abandonment was . . . the four months
preceding the filing of the original petition.”). In this case, the amended petition was not a
“separate and distinct” petition from the original given that Grandparents clarified within
the amended petition that it did not supersede but rather served to amend the original
petition. See In re Braelyn S., 2020 WL 4200088, at *5. Moreover, the amended petition
corrected the errors in the first petition by considering Mother’s periods of incarceration
during the four-month period preceding the original petition. Ergo, the four-month
statutory period should have been based upon the date the original petition was filed.
Furthermore, although Grandparents stated in the amended petition that Mother had
failed to visit and failed to support the Child during an aggregate total of four months
immediately preceding her incarcerated periods and the filing of the petition, the trial court
did not piece together a 120-day period in which Mother was not incarcerated. See In re
Travis H., No. E2016-02250-COA-R3-PT, 2017 WL 1843211, at *9 (Tenn. Ct. App. May
5, 2017) (“[T]he trial court was required to determine the four-month period by piecing
together Father’s periods of non-incarceration prior to the filing of the termination
petition.”). In accordance with Tennessee Code Annotated § 36-1-102(1)(A)(iv)(b), when
a parent is incarcerated during part of the four-month period immediately preceding the
filing of the termination petition, courts should consider the first 120 days of
nonincarceration immediately preceding the filing of the petition.6
Therefore, the trial court should have considered the first 120 days during which
Mother was not incarcerated preceding March 11, 2020, the filing date of the original
petition. In its final order, the court determined that Mother had been incarcerated from
July 18, 2019, through January 16, 2020. Thus, counting backwards from March 10, 2020,
see In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct.
6
On appeal, Grandparents concede that the trial court erred in calculating the determinative period based
on the filing date of the amended petition and in failing to aggregate the periods of Mother’s
nonincarceration. However, Grandparents contend that these errors were harmless.
-8-
App. Feb. 20, 2014) (concluding that the applicable four-month statutory period preceding
filing of the termination petition ends on the day preceding filing), to January 17, 2020,
establishes a period of fifty-four days during which Mother was not incarcerated. Mother
was also incarcerated from May 17, 2019, through May 29, 2019. Therefore, the next
period of nonincarceration would have been May 30, 2019, to July 17, 2019, creating a
period of forty-nine days during which Mother was not incarcerated. Prior to her
incarceration in May 2019, Mother had not been incarcerated since November 16, 2018.
Thus, the final period of nonincarceration that the trial court should have considered would
have been April 30, 2019, to May 16, 2019, amounting to seventeen days. Therefore, the
relevant, aggregated four-month statutory period for the abandonment grounds of failure
to visit and failure to support would be April 30, 2019, to May 16, 2019; May 30, 2019, to
July 17, 2019; and January 17, 2020, to March 10, 2020 (“Determinative Period”).
Although the trial court did not calculate the correct Determinative Period, this
Court has previously concluded that a court’s “miscalculation of the relevant four-month
period can be considered harmless when the trial court made sufficient findings of fact that
encompassed the correct determinative period,” see In re J’Khari F., No. M2018-00708-
COA-R3-PT, 2019 WL 411538, at *9 (Tenn. Ct. App. Jan. 31, 2019), and when the court’s
“findings of fact and conclusions of law include sufficient information to consider the
correct four-month period,” see In re Braelyn S., 2020 WL 4200088, at *5. In the present
case, the trial court included within its final order the periods of Mother’s incarceration,
which has rendered the correct Determinative Period ascertainable by this Court. We will
now consider whether the trial court made sufficient findings of fact to encompass the
Determinative Period with respect to the abandonment grounds of failure to visit and failure
to support.
a. Failure to Visit
In its final order, the trial court found that Mother had engaged in “no meaningful
visitation with the child since the fall of 2018.” Given that the court’s finding as to the
abandonment ground included a three-year period spanning and encompassing the
Determinative Period, we conclude that the court’s miscalculation of the applicable four-
month statutory period constituted harmless error. In addition, upon careful review of the
record, we conclude that the evidence does not preponderate against the court’s
determination that there had been no meaningful visitation between Mother and the Child
in over three years.
During trial, Mother acknowledged that she had not visited the Child in several
years and that she had not seen the Child since he was an infant. By the time of the trial,
the Child was nearly four years old. Mother testified that in the three years since the Child
had been in Grandparents’ custody, she had visited the Child once when the Child was still
an infant. Grandmother testified that Mother had only visited the Child one time since
-9-
Grandparents had obtained custody, which visit occurred in October 2018, well before the
beginning of the Determinative Period.
On appeal, Mother contends that her failure to visit the Child was not willful
inasmuch as the trial court suspended Mother’s visitation when it entered its Order of
Adjudication and Disposition on March 21, 2019.7 In its order, the trial court provided that
Mother would not have any contact with the Child until she presented herself before the
court so that it could decide whether visitation would be in the Child’s best interest. Mother
also argues that she attempted to visit the Child by filing a motion to dissolve the no-contact
order and request visitation on March 19, 2021, nearly two years after the no-contact order
had been implemented.
With respect to a parent’s willfulness in failing to visit or financially support,
Tennessee Code Annotated § 36-1-102(1)(I) (Supp. 2022) provides:
For purposes of this subdivision (1), it shall be a defense to
abandonment for failure to visit or failure to support that a parent or
guardian’s failure to visit or support was not willful. The parent or guardian
shall bear the burden of proof that the failure to visit or support was not
willful. Such defense must be established by a preponderance of evidence.
The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of
the Tennessee Rules of Civil Procedure[.]
As previously explained by this Court, “willfulness” does not require the same standard of
culpability as is required by the criminal code, and it does not require “malevolence or ill
will.” In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005). Rather “[w]illful
conduct consists of acts or failures to act that are intentional or voluntary rather than
accidental or inadvertent,” and such conduct is the “product of free will rather than
coercion.” Id.
Mother’s postulate that she did not willfully fail to visit the Child due to the no-
contact order is unavailing. Our Supreme Court has previously addressed similar facts in
which a father advanced the position that he did not willfully fail to visit his children due
to existence of an order suspending his visitation rights. See In re Adoption of Angela E.,
402 S.W.3d 636, 642 (Tenn. 2013). The High Court rejected the father’s argument and
7
Although Mother failed to file an answer to either one of Grandparents’ petitions, we determine that this
affirmative defense was “tried in this case by implied consent.” See Tenn. R. Civ. P. 15.02 (“When issues
not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.”); see, e.g., In re Serenity S., No. E2019-00277-COA-
R3-PT, 2020 WL 522439, at *7 (Tenn. Ct. App. Jan. 31, 2020). Much of the testimony during trial involved
Mother’s ability to visit the Child due to the trial court’s no-contact order. In addition, Mother included the
affirmative defense in her proposed order, and Grandparents address Mother’s argument without raising
the specter of waiver on appeal. See id.
- 10 -
concluded that the prior order suspending the father’s visitation rights did not preclude a
finding that he had willfully failed to visit the children. Id. The Court’s conclusion was
based upon the fact that the father had failed to visit the children for nearly three years at
the time the termination petition was filed, he had taken no steps to have his visitation
rights reinstated beyond filing a petition to reinstate visitation, and he had not attempted to
visit his children until after the termination petition had been filed. Id. Ultimately, the
Court concluded that “this is not a case in which a parent was actively trying to maintain
visitation.” Id.
Similarly, in the case at bar, Mother waited until two years after the Order of
Adjudication and Disposition had been entered and a year after Grandparents had filed the
termination petition to initiate her petition to dissolve the no-contact order and to reinstate
her visitation rights. Although Mother was not present at the hearing during which the trial
court issued its no-contact order, Mother testified that Grandmother had informed her of
the no-contact order. Mother added that she did not believe Grandmother until her court-
appointed attorney validated Grandmother’s information after the termination petition had
been filed and the Determinative Period had concluded. Nevertheless, Mother could have
accessed court records to inquire about the no-contact order and its conditions for
reinstatement of visitation upon learning of it from Grandmother. See In re Kiara C., No.
E2013-02066-COA-R3-PT, 2014 WL 2993845, at *6 (Tenn. Ct. App. June 30, 2014) (“If,
however, as Father asserts, he knew that the order of protection had been entered against
him, it follows that he at least knew which court had entered it and certainly could have
accessed that court record to discover the expiration date.”).
Alternatively, if Mother did not know which court to contact, Mother at the very
least could have communicated with DCS to inquire about the no-contact order and its
conditions. According to Mother’s sister, Ashley G. (“Aunt”), DCS had contacted her
multiple times attempting to reach Mother. Aunt eventually achieved contact with Mother
through Facebook and informed Mother that she needed to communicate with DCS. Aunt
testified that Mother retorted that she “did not need to work through DCS to get her children
back.” Aunt testified that she instructed Mother that DCS wanted to help her establish a
relationship with the Child but that Mother was “adamant that she did not have to do that.”
Based on Aunt’s testimony, Mother knew DCS had been attempting to contact her and
purposefully chose to disregard this information.
Moreover, when asked at trial whether she knew court proceedings concerning the
Child were ongoing, Mother answered affirmatively, and when questioned as to whether
she ever went to the court to retrieve a copy of “anything dealing with” the Child, Mother
responded: “No. He was with my parents. I did not think it was going to come to this.
Like I thought that everything was going to eventually work itself out originally when this
all happened.” Accordingly, we determine that Mother has failed to demonstrate that she
was actively attempting to maintain visitation with the Child.
- 11 -
We therefore cannot conclude that Mother actively attempted to maintain visitation
with the Child or that the trial court’s order suspending her visitation rights rendered her
failure to visit involuntary, particularly given the fact that Mother merely needed to present
herself to the court in order for the court to reconsider its suspension of her visitation rights.
Consequently, inasmuch as Grandparents have demonstrated that Mother failed to visit the
Child during the Determinative Period, we conclude that the record contains clear and
convincing evidence supporting this statutory ground of abandonment.
b. Failure to Support
With respect to the statutory abandonment ground of failure to support, pursuant to
Tennessee Code Annotated § 36-1-102(1)(A)(iv), the trial court determined:
Mother has provided no financial support for the child since placement with
[Grandparents]. The mother testified that she is currently employed and has
a stable source of income. However, she has failed to provide any support
to [Grandparents].
On appeal, Mother contends that when she inquired whether Grandparents “needed any
assistance for [the Child] [Grandparents] always refused.” In addition, Mother posits that
she “attempted to send Christmas gifts and letters, but [Grandparents] have failed to
provide them to [the Child].”8
Relevant to this ground, the trial court determined that Mother had provided no
financial support during the three-year period Grandparents had maintained custody of the
Child. However, the court did not include findings of fact or conclusions of law addressing
Mother’s affirmative defense of lack of willfulness. Specifically, the court failed to address
Mother’s contention that Grandparents made her “feel” as though they would not accept
her offers of support. Considering that Mother raised the affirmative defense of lack of
willfulness during trial and in her proposed order, the court should have concluded in its
final order whether Mother carried her burden to establish by a preponderance of evidence
that she did not willfully fail to support the Child during the Determinative Period. See
Tenn. Code Ann. § 36-1-102(1)(I). We therefore must reverse the court’s finding of this
statutory ground of abandonment.
8
We again note that Mother failed to file an answer to either one of Grandparents’ petitions and, thus, did
not raise lack of willfulness as an affirmative defense to this statutory ground of abandonment. We,
however, determine that this affirmative defense was “tried in this case by implied consent.” See Tenn. R.
Civ. P. 15.02; see, e.g., In re Serenity S., 2020 WL 522439, at *7. Mother testified during trial that
Grandparents made her feel as though she could not assist them financially and that often she could not
achieve contact with them. In addition, Grandmother responded to Mother’s claim, testifying that she and
Grandfather never prevented her from providing child support to them. Furthermore, Mother provided this
defense in her proposed order, and Grandparents addressed Mother’s argument without raising the issue of
waiver on appeal.
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c. Wanton Disregard
Concerning the statutory ground of wanton disregard, Tennessee Code Annotated
§ 36-1-102(1)(A)(iv)(c) provides:
(iv) A parent or guardian is incarcerated at the time of the filing of a
proceeding, pleading, petition, or amended petition to terminate the
parental rights of the parent or guardian of the child who is the subject
of the petition for termination of parental rights or adoption, or a
parent or guardian has been incarcerated during all or part of the four
(4) consecutive months immediately preceding the filing of the action
and has:
***
(c) Has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child; . . . .
With reference to this termination ground, this Court has previously explained:
Tenn. Code Ann. § 36-1-102(1)(A)(iv) also reflects the commonsense
notion that parental incarceration is a strong indicator that there may be
problems in the home that threaten the welfare of the child. Incarceration
severely compromises a parent’s ability to perform his or her parental duties.
A parent’s decision to engage in conduct that carries with it the risk of
incarceration is itself indicative that the parent may not be fit to care for the
child. Taxonomy of Children’s Rights, 11 WM. & MARY BILL RTS. J. at
958. However, parental incarceration is not an infallible predictor of parental
unfitness. Accordingly, Tenn. Code Ann. § 36-1-102(1)(A)(iv)’s second test
for abandonment does not make incarceration alone a ground for the
termination of parental rights. An incarcerated or recently incarcerated
parent can be found guilty of abandonment only if the court finds, by clear
and convincing evidence, that the parent’s pre-incarceration conduct
displayed a wanton disregard for the welfare of the child. Thus, the parent’s
incarceration serves only as a triggering mechanism that allows the court to
take a closer look at the child’s situation to determine whether the parental
behavior that resulted in incarceration is part of a broader pattern of conduct
that renders the parent unfit or poses a risk of substantial harm to the welfare
of the child.
In re Audrey S., 182 S.W.3d at 866 (footnote omitted) (emphasis added). Moreover, this
Court has stated that “probation violations, repeated incarceration, criminal behavior,
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substance abuse, and the failure to provide adequate support or supervision for a child can,
alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare
of a child.” Id. at 867-68.
Although the trial court made some findings of fact that would be relevant to this
statutory ground of abandonment, the court never explicitly concluded that it found clear
and convincing evidence to establish that Mother had abandoned the Child by exhibiting
wanton disregard for the Child’s welfare prior to her incarceration. In fact, the court failed
to mention the phrase, “wanton disregard,” in its order. The court merely concluded that
Mother had abandoned the Child “in that she has been incarcerated willfully” during the
four consecutive months prior to the filing of Grandparents’ petition. This conclusion is
insufficient in that it does not address Mother’s pre-incarceration conduct or whether that
conduct exhibited a wanton disregard for the Child’s welfare. We therefore cannot
conclude that the trial court provided sufficient findings of fact or conclusions of law to
affirm this ground for termination.
B. Failure to Substantially Comply with Permanency Plan
The trial court determined that Grandparents failed to prove the statutory ground of
substantial noncompliance with a permanency plan by clear and convincing evidence. In
making this determination, the court noted that the Child had been in foster care for a few
days before Grandparents obtained custody of him on August 18, 2018, and that a “valid
permanency plan was never developed by DCS as defined by the statute.” On appeal,
Grandparents contend that Mother’s admission during trial that she did not complete any
of the purported tasks of the plan is sufficient evidence to support a finding of this ground.
We disagree.
In order to prove the ground of substantial noncompliance with a permanency plan,
“it is essential that the plan be admitted into evidence.” See In re T.N.L.W., No. E2006-
01623-COA-R3-PT, 2007 WL 906751, at *4 (Tenn. Ct. App. Mar. 26, 2007). This Court
has unequivocally explained that “the permanency plan must be admitted into evidence
before the trial judge can consider it and it must be properly included in the record on
appeal before we can consider it.” Dep’t of Children’s Servs. v. D.W.J., No. E2004-02586-
COA-R3-PT, 2005 WL 1528367, at *3 (Tenn. Ct. App. June 29, 2005). Moreover,
testimony alone cannot provide the clear and convincing evidence required to prove this
termination ground.
In In re T.N.L.W., this Court elucidated:
As in D.W.J., a case worker in this case testified as to some of the
requirements of the plan. This is not sufficient. The permanency plan must
be introduced into evidence in a case where termination is sought on ground
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of substantial noncompliance with the plan pursuant to Tenn. Code Ann. §
36-1-113(g)(2).
In re T.N.L.W., 2007 WL 906751, at *5. Therefore, the fact that Mother may have
acknowledged during trial that she did not accomplish purported goals of the permanency
plan cannot be relied upon by Grandparents to establish this statutory ground. Inasmuch
as the permanency plan was not admitted into evidence during trial, we conclude that the
trial court properly determined that insufficient evidence supported this ground.9
C. Persistence of the Conditions Leading to the Child’s Removal
The trial court found that clear and convincing evidence supported the ground of
persistence of the conditions that led to removal of the Child from Mother’s home or
physical or legal custody. Regarding this statutory ground, Tennessee Code Annotated §
36-1-113(g)(3) (Supp. 2022) provides:
(A) The child has been removed from the home or the physical or legal
custody of a parent or guardian for a period of six (6) months by a
court order entered at any stage of proceedings in which a petition has
been filed in the juvenile court alleging that a child is a dependent and
neglected child, and:
(i) The conditions that led to the child’s removal still persist,
preventing the child’s safe return to the care of the parent or
guardian, or other conditions exist that, in all reasonable
probability, would cause the child to be subjected to further
abuse or neglect, preventing the child’s safe return to the care
of the parent or guardian;
(ii) There is little likelihood that these conditions will be remedied
at an early date so that the child can be safely returned to the
parent or guardian in the near future; and
(iii) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable, and permanent home;
9
A review of the transcript of the evidence reveals that Grandparents attempted to present as evidence what
they called a permanency plan. However, the trial court sustained Mother’s objection to its admittance
because Mother played no part in its development or creation and therefore would be unable to authenticate
it. Grandparents do not challenge the trial court’s ruling on appeal, and we will therefore not review this
evidentiary ruling.
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(B) The six (6) months must accrue on or before the first date the
termination of parental rights petition is set to be heard[.]
Mother argues that the conditions that led to the Child’s removal were no longer present or
were likely to be remedied at an early date at the time of the trial. In support, Mother cites
her testimony that she no longer was using illegal drugs by the time of trial and that she
had maintained stable housing and employment for several months prior to the trial.
In its final order, the trial court found that the Child had been removed from
Mother’s custody for more than six months as a result of drug exposure, lack of
supervision, and incarceration and that these conditions continued to persist at the time of
the trial. The court also noted that Mother had resided at ten to fifteen different locations
during the Child’s life, although at the time of trial she testified that she currently
maintained stable housing and employment. With respect to Mother’s history of illegal
drug use, the court found that Mother had been “drug free for several months” but that this
had been a recent change. Mother testified that as recently as June 2021, she had tested
positive for amphetamines, methamphetamines, and suboxone. Consequently, the court
determined that Mother’s illegal drug use persisted since the Child’s removal.
Concerning Mother’s periods of incarceration, the trial court determined that
Mother continued to be re-incarcerated on a number of occasions since the Child’s removal
and that she was most recently incarcerated in January and February of 2021. Ultimately,
the court concluded that the conditions that led to the Child’s removal persisted, that the
Child would be subject to further abuse and neglect if returned to Mother, that there was
little likelihood that the conditions would be remedied at an early date, and that the
continuation of the parent/child relationship was diminishing the Child’s chance of an early
integration into a stable and permanent home. Following our thorough review of the
record, we conclude that the evidence does not preponderate against the trial court’s
findings.
It is undisputed that the Child had been removed from Mother’s custody for more
than six months at the time of trial and that his removal had been due to drug exposure,
lack of supervision, and the parents’ incarceration. With respect to her illegal drug use,
Mother’s own testimony supported the trial court’s conclusion that this condition persisted.
Mother testified that the last time she had used illicit drugs was approximately eight weeks
prior to trial. Mother candidly described her alternating periods of sobriety and relapse as
a “roller coaster ride,” demonstrating a level of unpredictability with respect to her
recovery. She explained that the longest she had abstained from illegal drug use was six
to eight months. In addition, as mentioned by the trial court, Mother had tested positive
for illegal drugs as recently as June 2021. Thus, nearly three years after the Child’s removal
from her custody, Mother had not yet established a significant, lasting sobriety.
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In reviewing the trial court’s findings, we note this Court’s previous instruction:
[I]t is imperative for courts handling parental termination cases to view
substance abuse realistically. The power of various addictive substances
over the addict has been acknowledged by this Court. See, e.g., In re:
M.J.M., No. M2004-02377-COA-PT, 2005 WL 873302, at *10 (Tenn. Ct.
App. April 14, 2005) (“. . . we must accurately understand this challenge [the
mother] faces to overcome her methamphetamine addiction.
Methamphetamine is powerfully addictive. It has one of the highest
recidivism rates of all abused substances.”) (citation omitted). Recovery
from addiction will frequently entail “false starts and set backs, as well as
successes and, regrettably, backsliding.” Id. at *11. Parents who suffer from
addiction “can turn their lives around,” but must be given the time and
opportunity to do so. In re: D.J.R., No. M2005-02933-COA-R3-JV, 2007
WL 273576, at *5-6 (Tenn. Ct. App. Jan. 30, 2007) (citing Ray v. Ray, 83
S.W.3d 726, 734 (Tenn. Ct. App. Jan. 30, 2007)).
In re Joshua S., No. E2010-01331-COA-R3-PT, 2011 WL 2464720, at *12 (Tenn. Ct. App.
June 16, 2011).
In this case, Mother testified that she had taken steps to address her illegal drug use.
Mother related that she had completed a drug rehabilitation program at a facility named,
“Buffalo Valley,” in September or October of 2018. She also stated that she had received
drug addiction treatment through Vanderbilt’s Center for Women’s Health (“Vanderbilt”)
after she was released from jail in November 2020. She participated in treatment at
Vanderbilt throughout her entire pregnancy with her third child but ceased once she gave
birth on March 29, 2021. After “losing contact with Vanderbilt,” she proceeded “downhill”
again, and her third child was removed from her custody a few months following her birth
due to Mother’s “unstable living” and relapse into illegal drug use. After DCS gained
custody of her third child, Mother began another drug rehabilitation program known as
“Cedar’s Recovery.” Mother testified that she had been excelling in the program and had
been meeting with a counselor through the program on a bi-weekly basis. Since starting
the Cedar’s Recovery program, Mother had relapsed into drug use once.
Although we commend Mother for her perseverance and continued efforts to
maintain sobriety, a pattern of relapsing drug use remains a problem for Mother. When
considering that she had three years to achieve and maintain sobriety, we cannot conclude
that she has been afforded insufficient time to turn her life around or that eight weeks of
sobriety constitutes a remedy to this condition. See In re Navada N., 498 S.W.3d 579, 606
(Tenn. Ct. App. 2016) (“While this Court has previously recognized that ‘[r]ecovery from
addiction will frequently entail “false starts and set backs, as well as successes and,
regrettably, backsliding,”’ Mother has shown that it is uncertain if she will ever be able to
stop abusing cocaine, let alone in the near future.”); see also In re J.C.D., 254 S.W.3d 432,
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442 (Tenn. Ct. App. 2007) (“While we hope that these most recent efforts by Mother to
overcome her drug dependency problem lead to a permanent resolution of her problem,
they are insufficient to overcome the facts of her previous multiple relapses . . . .”).
We also conclude that the evidence in the record does not preponderate against the
trial court’s findings related to Mother’s repeated incarceration. Mother has been in and
out of the Davidson County or Wilson County jails six different times during the three
years since the Child was removed from her custody, and her most recent period of
incarceration was January 12, 2021, through February 4, 2021, a mere nine months before
the trial. During trial, Mother also reported that she had an upcoming criminal court
hearing scheduled for November 14, 2021, to address the unresolved indictment issued in
Wilson County. Thus, at the time of the trial, Mother continued to confront the possibility
of re-incarceration.
Based upon our review of the record, we agree with the trial court that clear and
convincing evidence established that the conditions leading to the Child’s removal
continued to persist at the time of trial. We accordingly affirm the trial court’s
determination of the existence of this statutory ground for termination.
D. Failure to Manifest an Ability and Willingness to Assume Legal and Physical
Custody of or Financial Responsibility for the Child
The trial court also found clear and convincing evidence supporting the ground of
failure to manifest an ability and willingness to assume legal and physical custody of or
financial responsibility for the Child. Concerning this statutory ground, Tennessee Code
Annotated § 36-1-113(g)(14) (Supp. 2022) provides:
A parent or guardian has failed to manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody or financial
responsibility of the child, and placing the child in the person’s legal and
physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child[.]
To prove this ground, Grandparents were required to establish by clear and convincing
evidence that (1) Mother failed to manifest either an ability or willingness to assume
custody of or financial responsibility for the Child and (2) returning the Child to Mother’s
custody would pose a risk of substantial harm to the Child’s welfare. In re Neveah M., 614
S.W.3d 659, 674, 677 (Tenn. 2020); In re Jeremiah S., No. W2019-00610-COA-R3-PT,
2020 WL 1951880, at *6 (Tenn. Ct. App. Apr. 23, 2020) (“Under this ground for
termination, the petitioner must prove each element by clear and convincing evidence.”).
In its final order, the trial court delineated findings of fact related to Mother’s failure
to manifest an ability and willingness to assume custody of or financial responsibility for
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the Child but made no such findings related to the essential element of risk of substantial
harm. The court merely concluded that placing the Child back in Mother’s custody would
pose a risk of substantial harm to him but failed to provide specific findings of fact in
support of this legal conclusion. This Court has previously emphasized that it is imperative
for trial courts to enter an order with specific facts and conclusions of law, stating: “The
absence of appropriate findings supporting this ground for termination is not a trivial
concern. With respect to termination cases, the trial court is specifically directed by statute
to ‘enter an order that makes specific findings of fact and conclusions of law.’” In re
Mickeal Z., No. E2018-01069-COA-R3-PT, 2019 WL 337038, at *13 (Tenn. Ct. App. Jan.
25, 2019) (quoting Tenn. Code Ann. § 36-1-113(k)); see In re O.W., No. W2019-01127-
COA-R3-PT, 2020 WL 97727, at *9 (Tenn. Ct. App. Jan. 9, 2020) (“There is no bright-
line test by which to assess the sufficiency of factual findings, but ‘the findings of fact must
include as much of the subsidiary facts as is necessary to disclose to the reviewing court
the steps by which the trial court reached its ultimate conclusion on each factual issue.’”)
(quoting Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013)).
Notably, this Court has previously reversed a finding of the existence of this
statutory ground when the trial court provided no findings of fact regarding why placing
the subject children back in the parent’s custody would pose a risk of substantial harm to
their welfare. See In re Nakayia S., No. M2017-01694-COA-R3-PT, 2018 WL 4462651,
at *5 (Tenn. Ct. App. Sept. 18, 2018) (reversing the trial court because it “made no findings
regarding why placing the Children back in Father’s custody would risk substantial harm
to their welfare”); see also In re Dominic B., No. E2020-01102-COA-R3-PT, 2021 WL
774185, at *9 (Tenn. Ct. App. Mar. 1, 2021) (“[A] finding that placing the child in the
parent’s custody would pose a risk of substantial harm to the child is a necessary
component of the statutory ground.”). Considering that the trial court in the case at bar did
not include specific findings of fact to support its legal conclusion that returning the Child
to Mother’s custody would pose a risk of substantial harm to the Child’s welfare, we are
compelled to reverse the court’s judgment with respect to this statutory ground. See In re
Mickeal Z., 2019 WL 337038, at *13 (opting to reverse the judgment with respect to the
deficient statutory ground rather than remand for the preparation of sufficient findings of
fact when this Court’s ultimate disposition includes the affirmance of the trial court’s
termination of the parent’s rights).
V. Best Interest of the Child
When a parent has been found to be unfit by establishment of at least one statutory
ground for termination of parental rights, as here, the interests of parent and child diverge,
and the focus shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d at
877; see also In re Carrington H., 483 S.W.3d at 523 (“The best interests analysis is
separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” (quoting In re Angela E., 303 S.W.3d at 240)).
Tennessee Code Annotated § 36-1-113(i) provides a list of factors the trial court is to
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consider when determining if termination of parental rights is in a child’s best interest.
This list is not exhaustive, and the statute does not require the court to find the existence
of every factor before concluding that termination is in a child’s best interest. See In re
Carrington H., 483 S.W.3d at 523; In re Audrey S., 182 S.W.3d at 878 (“The relevancy
and weight to be given each factor depends on the unique facts of each case.”).
Furthermore, the best interest of a child must be determined from the child’s perspective
and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
The version of Tennessee Code Annotated § 36-1-113(i) (Supp. 2020) in effect
when the termination petition was filed in the instant action listed the following factors for
consideration:10
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or another child
or adult in the family or household;
10
Effective April 22, 2021, the General Assembly has amended Tennessee Code Annotated § 36-1-113(i)
by deleting the previous subsection in its entirety and substituting a new subsection providing, inter alia,
twenty factors to be considered in determining a child’s best interest in a case involving termination of
parental rights. See 2021 Tenn. Pub. Acts, Ch. 190 § 1 (S.B. 205). However, because the termination
petition in this case was filed prior to the effective date of the amendment, the statutory best interest factors
provided in the prior version of the statute are applicable here. See, e.g., In re Braxton M., 531 S.W.3d 708,
732 (Tenn. Ct. App. 2017).
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(7) Whether the physical environment of the parent’s or guardian’s home
is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of alcohol, controlled substances or
controlled substance analogues as may render the parent or guardian
consistently unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian
from effectively providing safe and stable care and supervision for the
child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant
to § 36-5-101.
As our Supreme Court has instructed regarding the best interest analysis:
“The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for
termination.” In re Angela E., 303 S.W.3d at 254.
When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).
These statutory factors are illustrative, not exclusive, and any party to the
termination proceeding is free to offer proof of any other factor relevant to
the best interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing In
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts considered
in the best interests analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455
S.W.3d [533,] 555 [(Tenn. 2015)] (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
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Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant each
statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d
at 878. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon the
circumstances of a particular child and a particular parent, the consideration
of one factor may very well dictate the outcome of the analysis.” In re
Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
But this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
Upon considering the statutory factors, the trial court in the instant action
determined that clear and convincing evidence demonstrated that termination of Mother’s
parental rights to the Child was in his best interest. As for the first factor, the court found
that Mother had struggled to maintain safe and stable housing, overcome her drug addiction
issues, and remain out of jail throughout the life of the Child, despite having begun to make
some recent adjustments to her circumstances. On appeal, Mother contends that she has
adjusted her circumstances, conduct, and conditions. In support, Mother explains that she
has maintained stable housing and employment for several months and has complied with
the requisites of Cedar’s Recovery program. Nevertheless, as previously noted, Mother
acknowledged using illegal drugs as recently as eight weeks prior to trial and testified that
she may face re-incarceration due to a pending criminal indictment. Accordingly, the
evidence preponderates in favor of the trial court’s findings concerning this factor.
With respect to the second factor, the trial court found that Mother had been
unsuccessful in affecting a lasting adjustment to her life but determined that there had been
no reasonable efforts made by any available social services agencies. The court, however,
did not indicate whether this factor weighed in favor of or against termination. DCS’s
involvement with this case is unclear from our review of the record. Although DCS
initiated the removal of the Child from Mother’s custody, Grandparents maintained
custody of the Child and initiated the termination of Mother’s parental rights.
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Nevertheless, Grandmother testified that DCS attempted to get in touch with Mother to
develop a permanency plan and visited Grandparents’ home to monitor the Child every
week. Aunt also testified that DCS attempted to contact Mother multiple times.
Considering the trial court’s finding that no reasonable efforts had been made by available
social services agencies and the lack of clarity in the record concerning DCS’s role or
efforts throughout the duration of Grandparents’ custody of the Child, we cannot conclude
that this factor weighs in favor of termination. Consequently, we determine that this factor
should weigh against termination.
Concerning the third statutory factor, whether Mother has maintained regular
visitation or contact with the Child, and the fourth factor, whether a meaningful relationship
has been established between the two, the trial court found that neither regular visitation
and contact nor a meaningful relationship between Mother and the Child had been
established. In a previous section of this Opinion, we have affirmed the trial court’s finding
that Mother failed to visit the Child during the Determinative Period. Notwithstanding,
Mother posits that she sent letters, a birthday card, and Christmas presents to the Child
when she was incarcerated. In contrast, Grandmother testified that Mother “really didn’t
stay in contact much” and that she would typically only contact them when she needed
money, was high, or was incarcerated. With respect to the regularity of Mother’s letters,
Grandmother indicated that the letters were sporadic, testifying that “sometimes they
would come within a couple of weeks, and then after that, nothing.” We conclude that the
evidence does not preponderate against the trial court’s finding related to Mother’s lack of
regular visitation or contact.
As relevant to the fourth factor, Aunt related that the Child has bonded to
Grandparents and views them as his parents. Grandmother stressed that the Child has no
relationship with Mother and does not even know who Mother is. Therefore, the evidence
does not preponderate against the court’s findings related to this factor.
As for the fifth factor, the trial court determined that a change of caretakers and
physical environment likely would have a negative effect on the Child. The court stated
that the Child was “extremely bonded” to Grandparents and “excelling in every respect in
their care.” Grandmother articulated that the Child had required medical treatment when
they gained custody of him. Grandparents updated his immunizations and sought medical
treatment for a problem with his hip. Grandmother further testified that the Child perceives
her as his mother, and Aunt testified confirming the same. According to Grandmother, the
Child was well-adjusted to their home and was stable and happy in their care and custody.
Furthermore, Mother testified that she was not yet in a position to maintain custody of the
Child as of the date of the trial. Thus, taking the Child from a secure and safe environment
and returning him to Mother’s unpredictable environment would certainly have a
deleterious effect on the Child. The evidence does not preponderate against the court’s
findings regarding this factor.
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Respecting the sixth factor, whether the Child had been subjected to abuse or neglect
while in Mother’s care, the trial court found that Mother had been the “perpetrator of
neglect” by exposing the Child to her drug usage, not supervising the Child, and
abandoning the Child. In the court’s “Order of Adjudication and Disposition,” it
determined that the Child had been removed from Mother’s custody when police conducted
a “welfare check” at the family’s hotel room and found drug paraphernalia in the parents’
possession. As a result of the parents’ apparent illegal drug usage and subsequent arrest,
the court adjudged the Child to be dependent and neglected. Accordingly, we conclude
that the evidence does not preponderate against the court’s weighing of this factor in favor
of termination.
Similarly, with respect to the seventh factor, the trial court found that Mother could
not provide the Child with a safe and stable home environment due to her history of drug
abuse. Although it considered that Mother had testified that she was “drug free” for several
months, the court concluded that her history of drug abuse weighed heavily against her.
We agree. As previously examined by this Court, Mother has not established a lasting
sobriety, given her testimony that she had repeatedly relapsed in the three years since the
Child’s removal and had used illegal drugs as recently as eight weeks prior to trial. We
thus conclude that the evidence does not preponderate against the trial court’s findings with
respect to this factor.
Concerning the eighth factor, the trial court merely concluded: “The mental and/or
emotional status of the Mother would be detrimental to the child’s health.” The court
provided no findings of fact to support this legal conclusion. We, therefore, are constrained
to disagree with the court’s weighing of this factor in favor of termination of Mother’s
parental rights.
Relative to the ninth factor, the court found that Mother had “failed to pay child
support consistently with the child support guidelines promulgated by the Department.”
As we have previously concluded, the trial court made no findings regarding Mother’s
defense that her failure to pay was not willful. We therefore conclude that the ninth factor
weighs neither for nor against terminating Mother’s parental rights to the Child.
Upon careful review, we determine that the weight to be given to the second and
eighth factors should militate against termination and that factor nine should weigh neither
for or against termination. We otherwise affirm the trial court’s determination that the
remaining factors weighed heavily in favor of termination as well as its overall conclusion
that clear and convincing evidence demonstrated that termination of Mother’s parental
rights to the Child was in the Child’s best interest. By the time of trial, three years had
elapsed during which Mother could have adjusted her conduct and circumstances, but
instead she continued to struggle with relapsing illegal drug use. In addition, the possibility
of her re-incarceration still loomed and must be accounted for in considering the best
interest of the Child.
- 24 -
The Child had spent nearly his entire life in the custody of Grandparents, and the
evidence established that the Child had bonded closely with them and considered them to
be his parents. The Child had settled into a safe and healthy home environment while
Mother continued in her efforts to turn her life around. After three years, the Child should
not be forced to wait longer for permanence. We therefore agree with the trial court’s
determination that clear and convincing evidence established that termination of Mother’s
parental rights is in the best interest of the Child.
VI. Conclusion
For the foregoing reasons, we reverse the trial court’s determinations regarding
abandonment by an incarcerated parent by failure to support, pursuant to Tennessee Code
Annotated §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv)(b); abandonment by exhibiting
wanton disregard for the Child’s welfare prior to incarceration, pursuant to Tennessee Code
Annotated §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv)(c); and failure to manifest an ability
and willingness to assume legal and physical custody of or financial responsibility for the
Child, pursuant to Tennessee Code Annotated § 36-1-113(g)(14). We affirm the trial
court’s judgment in all other respects, including the termination of Mother’s parental rights
to the Child. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment terminating Mother’s parental rights to the Child
and collection of costs assessed below. Costs on appeal are assessed to the appellant,
Brittany F.
s/ Thomas R. Frierson, II _____________
THOMAS R. FRIERSON, II, JUDGE
- 25 - | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483284/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re ABDUL-JABARRI, Minors. November 10, 2022
No. 360815
Wayne Circuit Court
Family Division
LC No. 2022-000030-NA
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Respondent-mother appeals as of right the trial court’s order following the preliminary
hearing in which the court authorized the petition with respect to the minor children, HVA and
MWA. We affirm.
I. BACKGROUND
The petition in this case was filed on January 7, 2022. In it, petitioner asked the trial court
to take jurisdiction over the children and to terminate respondent-mother’s parental rights because
she had brutally abused the children. As its factual basis, the petition alleged that on January 1,
2022, respondent-mother repeatedly stabbed HVA and MWA in their necks. Police found
respondent-mother with the children in the bathtub after officers forced entry into the home in
response to a 911 call.1 The children were quickly transported to local hospitals. Both had suffered
lacerations to their necks. The lacerations to MWA’s neck were deep enough to injure his left
carotid artery, and at the time the petition was filed, he was nonresponsive and “in a critical state.”
HVA’s lacerations required surgery, but were not life-threatening. Respondent-mother was
arrested and charged with two counts of assault with intent to murder, two counts of first-degree
child abuse, and one count of resisting arrest.
On January 18, 2022, the trial court held a preliminary hearing on the petition. At the start
of the hearing, the court noted respondent-mother’s absence, and stated that it would need to
1
The call was placed by the children’s father, who was being treated at an inpatient psychiatric
hospital at the time. Father was a respondent in the lower court but is not a party to this appeal.
-1-
adjourn and hold another hearing with her present. The court did not immediately adjourn the
hearing, however, because petitioner was “seeking an interim placement order pending resumption
of the Preliminary Hearing.” Megan Brown testified on behalf of petitioner that HVA had been
discharged from the hospital and was placed with her maternal aunt, while MWA was still in the
hospital. According to Brown, MWA was still on life support and had only minimal brain function.
At the end of the hearing, the court ordered that the children be removed and placed with the
Department of Health and Human Services (DHHS). The court emphasized that the hearing was
not “complete” because respondent-mother was not present, and adjourned the hearing until
February 8, 2022.
In the order entered following the hearing, the court checked the box indicating that there
was good cause to adjourn the hearing to allow respondent-mother to attend, but found that the
conditions necessary to take the children into protective custody were present. The court
accordingly ordered that the children be removed and placed with the DHHS, and that respondent-
mother’s parenting time be suspended. The order provided that placement with the DHHS was
temporary pending the resolution of the preliminary hearing and the appearance of respondent-
mother.
The preliminary hearing resumed on February 8, 2022. Respondent-mother was present
for this hearing and represented by counsel. After petitioner presented its evidence, respondent-
mother’s counsel requested that “this matter be set for Pretrial,” waived probable cause, and did
“not object to this Petition being authorized.” The trial court then authorized the petition and
ordered that the children’s placement with the DHHS continue.
In the order entered following the hearing, the trial court found probable cause to believe
one or more of the allegations in the petition were true and, accordingly, authorized the petition.
The order also provided that the children’s placement with the DHHS would continue, and that
respondent-mother’s parenting time was to remain suspended.
Respondent-mother now appeals.
II. ANALYSIS
On appeal, respondent-mother argues that the trial court erred because it failed to notify
respondent-mother of, or allow her to participate in, the January 18 preliminary hearing in
supposed violation of MCR 2.004(F), and because respondent-mother was not assigned counsel at
that hearing in supposed violation of MCR 3.915. Neither argument warrants appellate relief.
Upon receiving a petition that would bring a minor child under the jurisdiction of the court,
“the trial court must hold a preliminary hearing and may authorize the filing of the petition upon a
finding of probable cause that one or more of the allegations are true and could support the trial
court’s exercise of jurisdiction under MCL 712A.2(b).” In re Ferranti, 504 Mich 1, 15; 934 NW2d
610 (2019). The procedure for preliminary hearings is governed by MCR 3.965. As relevant here,
MCR 3.965(B)(1) provides that the hearing may be adjourned to secure the presence of one of the
parents.
This occurred at the January 18 hearing—the hearing was adjourned to secure respondent-
mother’s presence. The hearing resumed on February 8, 2022. Respondent-mother participated
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at that hearing and was represented by an attorney. At the conclusion of the hearing, respondent-
mother waived probable cause and did not object to the petition being authorized. The trial court
then found probable cause to believe that one or more of the allegations in the petition was true
and authorized the petition. Thus, the court did not make any relevant findings until the February
8 hearing at which respondent-mother was present and represented by counsel. Accordingly, any
error that the trial court made at the January 18 hearing by proceeding without respondent-mother,
or by not appointing respondent-mother counsel at that time, was harmless. See MCR 2.613(A).
Relatedly, to the extent respondent-mother argues that it was error for the trial court to
remove the children and suspend her parenting time following the January 18 hearing, we note that
she does not contest the court’s decision to do so following the February 8 hearing. It follows that
even if the trial court erred by removing the children and suspending respondent-mother’s
parenting time following the January 18 hearing, this Court would be unable to grant respondent-
mother any appellate relief.2
Affirmed.
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
2
Regardless, we note that every action taken by the trial court at the January 18 preliminary hearing
was proper. The court was permitted to remove the children and place them with the DHHS, and
to suspend respondent-mother’s parenting time, at the January 18 hearing even though respondent-
mother was not present at the time. See MCL 712A.14b(1) (authorizing the ex parte removal of
children pending a preliminary hearing if certain conditions are met); MCR 3.965(B)(11) (“If the
preliminary hearing is adjourned, the court may make temporary orders for the placement of the
child when necessary to assure the immediate safety of the child, pending the completion of the
preliminary hearing and subject to subrule (C), and as applicable, MCR 3.967.”); MCL
712A.19b(4) (authorizing a court to suspend parenting time if a petition to terminate parental rights
is filed); MCR 3.965(C)(7) (permitting the court to suspend parenting time as allowed under MCL
712A.19b(4)).
We also observe that the trial court noted in its order following the January 18 hearing that
respondent-mother was notified about the hearing as required by law, and respondent-mother has
offered nothing to support her contention that this is not true. Moreover, respondent-mother’s
contention that she was not notified about the January 18 hearing is belied by the fact that her
criminal defense attorney was apparently present at the hearing.
-3- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483280/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re T. L. TODD, Minor. November 10, 2022
No. 361681
Muskegon Circuit Court
Family Division
LC No. 16-001654-NA
Before: SAWYER, P.J., and MARKEY and SWARTZLE JJ.
PER CURIAM.
Respondent was homeless, unemployed, and arrested for arson when she left her biological
child without proper care and custody. As a result, the Department of Health and Human Services
petitioned to remove the child from her care. Respondent did not meaningfully participate in the
services to which she was referred by the Department, and she was unable to rectify her barriers
to reunification with the child. The trial court terminated her parental rights to the child under
MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
I. BACKGROUND
At the beginning of the case, respondent had several misdemeanor charges for which she
was being detained in the Muskegon County Jail. Respondent was later found to be not competent
in her criminal proceedings. The Department provided respondent with a Parent-Agency-
Treatment plan that included a psychological evaluation, a psychiatric evaluation, parenting
mentorship, counseling, and Section 8 housing. Respondent completed some of the services that
were provided to her, but she did not complete the psychiatric evaluation, discontinued her
parenting mentorship, and only found housing one week before the termination hearing.
The trial court found clear and convincing evidence to terminate respondent’s parental
rights, and that termination was in the best interests of the child.
Respondent now appeals.
-1-
II. ANALYSIS
A. REASONABLE EFFORTS
Respondent first argued that the Department did not provide her with reasonable
accommodations for her mental health. “We review the trial court’s findings regarding reasonable
efforts for clear error.” In re Smith, 324 Mich App 28, 43; 919 NW2d 427 (2018). “A finding is
clearly erroneous if, although there is evidence to support it, this Court is left with a definite and
firm conviction that a mistake has been made.” In re Ellis, 294 Mich App 30, 33; 817 NW2d 111
(2011).
Petitioner “has an affirmative duty to make reasonable efforts to reunify a family before
seeking termination of parental rights.” In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637
(2017). Included in the requirement to make reasonable efforts is the creation of a service plan,
which outlines the steps that the agency and the parent “will take to rectify the issues that led to
court involvement and to achieve reunification.” Id. at 85-86 (cleaned up). While petitioner “has
a responsibility to expend reasonable efforts to provide services to secure reunification, there exists
a commensurate responsibility on the part of respondents to participate in the services that are
offered.” In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012).
Respondent argued that the Department failed to accommodate her disability, but she
ignored that she refused to engage with the psychiatric evaluation to determine what
accommodations would be appropriate. Respondent did not undertake her commensurate
responsibility to participate in the services that were offered. Id. Further, during the pendency of
the case, respondent did not request any alternative services that would accommodate her
disability, and she did not argue on appeal what services would have been appropriate to
accommodate her disability. “But, when challenging the services offered, mother must establish
that she would have fared better if other services had been offered.” In re Sanborn, 337 Mich App
252, 266; 976 NW2d 44 (2021). “Without an identification of services to accommodate mother’s
intellectual disability, we are left to speculate what other service the [Department] could have
offered.” Id.
B. STATUTORY GROUNDS
Next, respondent argued that the trial court erred by finding that a statutory ground existed
for termination. “This Court reviews for clear error the trial court’s factual findings and ultimate
determinations on the statutory grounds for termination.” In re White, 303 Mich App 701, 709;
846 NW2d 61 (2014). “A finding is clearly erroneous if, although there is evidence to support it,
this Court is left with a definite and firm conviction that a mistake has been made.” In re Ellis,
294 Mich App at 33. When applying the clear error standard in parental termination cases, “regard
is to be given to the special opportunity of the trial court to judge the credibility of the witnesses
who appeared before it.” Id.
The trial court terminated mother’s parental rights to the child under
MCL 712A.19b(3)(c)(i), (g), and (j). MCL 712A.19b(3)(c)(i) provides as follows:
(3) The court may terminate a parent’s parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
-2-
* * *
(c) The parent was a respondent in a proceeding brought under this chapter,
182 or more days have elapsed since the issuance of an initial dispositional order,
and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is
no reasonable likelihood that the conditions will be rectified within a reasonable
time considering the child’s age.
MCL 712A.19b(3)(c)(i) is appropriate “when the conditions that brought the children into
foster care continue to exist despite time to make changes and the opportunity to take advantage
of a variety of services[.]” In re White, 303 Mich App at 710 (cleaned up).
There were more than two years between the preliminary hearing authorizing the petition
to remove the child from respondent’s care and the termination hearing. Therefore, the 182-day
statutory period was satisfied.
The conditions listed in the petition, regarding respondent’s barriers to reunification with
the child, included respondent’s arrests, the child’s truancy, respondent’s mental health,
respondent’s lack of employment, and respondent’s homelessness. Although the Department
referred respondent to a psychiatric evaluation, mental-health counseling, parenting mentorship,
and Section 8 housing, respondent consistently refused to engage in those services and she actively
dropped out of the mentorship program. Respondent even admitted that she stopped talking to her
providers, she did not engage with her psychiatric assessment, and she remained unemployed.
Even though respondent had received housing days before the termination hearing, and she
had started taking medication prescribed by her family physician, respondent’s barriers to
reunification remained unchanged.
Given respondent’s inconsistent engagement with the services she was provided, we are
not left with a definite and firm conviction that a mistake has been made. See In re Ellis, 294 Mich
App at 33. “[T]he totality of evidence amply” supports that respondent “had not accomplished
any meaningful change” in the conditions that led to adjudication because she had not addressed
the conditions that led to her mental-health concerns and she continued to have problems involving
her lack of appropriate employment and housing throughout the case. In re Williams, 286 Mich
App 253, 272; 779 NW2d 286 (2009). Therefore, the record supports that the trial court did not
clearly err when it found by clear and convincing evidence that mother’s conditions continued to
exist.
If at least one statutory ground for termination is established, “we need not consider
whether the other grounds cited by the trial court also supported the termination decision.” In re
Foster, 285 Mich App 630, 633; 776 NW2d 415 (2009).
C. BEST INTERESTS
Lastly, respondent argued that termination of her parental rights was not in the child’s best
interests. “Once a statutory ground for termination has been proven, the trial court must find that
-3-
termination is in the child’s best interests before it can terminate parental rights.” In re Olive/Metts
Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). “[W]hether termination of parental rights
is in the best interests of the child must be proved by a preponderance of the evidence.” In re
Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The trial court’s ruling regarding best
interests is reviewed for clear error. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676
(2016). “A finding is clearly erroneous if, although there is evidence to support it, this Court is
left with a definite and firm conviction that a mistake has been made.” In re Ellis, 294 Mich App
at 33.
“The trial court should weigh all the evidence available to determine the children’s best
interests.” In re White, 303 Mich App at 713. With respect to the children’s best interests, this
Court places its focus on the children rather than the parent. In re Moss, 301 Mich App at 87. “In
deciding whether termination is in the child’s best interests, the court may consider the child’s
bond to the parent, the parent’s parenting ability, the child’s need for permanency, stability, and
finality, and the advantages of a foster home over the parent’s home.” In re Olive/Metts Minors,
297 Mich App at 41-42 (cleaned up). “The trial court may also consider a parent’s history of
domestic violence, the parent’s compliance with his or her case service plan, the parent’s visitation
history with the child, the children’s well-being while in care, and the possibility of adoption.” In
re White, 303 Mich App at 714.
The trial court was presented with evidence that respondent had mental health issues that
would leave the child in danger of being harmed if in respondent’s care. Specifically, when
respondent first got arrested, the child was left homeless and with a relative of respondent’s that
resulted in the child sleeping on the floor. Additionally, caseworkers testified that there were
concerns that respondent was telling the child inappropriate things about her foster family when
they went to the bathroom together during parenting-time visits. Even though the child expressed
that she had a bond with mother, it was also reported that the child had bonded to the foster family.
Furthermore, the child’s well-being while in the care of her foster families, as contrasted
to her well-being while in the care of respondent, demonstrated that termination and adoption were
in her best interests. Specifically, while the child was in respondent’s care she had missed several
days of school, but the child was doing well in school while in the care of the foster family. The
child also completed psychological evaluations while with her foster family.
Respondent’s lack of parenting ability, and her unwillingness to take consistent steps to
demonstrate that there would be finality to her housing instability, mental-health issues, and
unemployment, demonstrates that termination was in the child’s best interests. See In re
Olive/Metts Minors, 297 Mich App at 41-42.
Given the evidence presented in this case, we are not left with a definite and firm conviction
that a mistake has been made. See In re Ellis, 294 Mich App at 33. Therefore, the record supports
that the trial court did not clearly err when it found by a preponderance of evidence that termination
and adoption was in the child’s best interests.
-4-
Affirmed.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-5- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483278/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
THOMAS GRAHAM, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 361996
Kalamazoo Circuit Court
OSHTEMO CHARTER TOWNSHIP CLERK and LC No. 2021-000510-AW
OSHTEMO CHARTER TOWNSHIP,
Defendants-Appellees.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court’s order granting summary disposition in favor of
defendants and rejecting plaintiff’s request for a writ of mandamus. We affirm.
In August 2021, the Oshtemo Charter Township Board of Trustees voted to issue bonds
not to exceed $30 million to fund a sanitary sewer expansion. A petition for a referendum on
whether defendant, Oshtemo Charter Township, should issue bonds for the project garnered 2,423
signatures on 284 petition sheets. The petitions were reviewed by defendant, Oshtemo Charter
Township Clerk (the township clerk). The township clerk found that 79 individual signatures were
invalid, a decision that plaintiff did and does not dispute. The township clerk also determined that
117 full petition sheets were invalid because of errors regarding the notarization of those sheets.
The petition sheets were invalidated for the following reasons involving three different notaries
public: (1) a notary public signed petition sheets on the wrong line; (2) notaries failed to provide a
signature on petition sheets, and (3) one petition sheet was not notarized at all, which invalidation
was not challenged. Because of the notarization defects, the petition did not have the requisite
number of signatures to be placed on the ballot for purposes of a referendum.
To give context to our discussion of the litigation that ensued, we begin with the relevant
statutory provision. MCL 141.2517 addresses the issuance of securities by a municipality for the
payment of capital improvements. MCL 141.2517(2) sets forth the rules applicable to a
referendum, providing, in relevant part, as follows:
-1-
If, within 45 days after the publication of the notice of intent [to issue
securities], a petition, signed by not less than 10% or 15,000 of the registered
electors, whichever is less, residing within the county, city, village, or township, is
filed with the governing body of the county, city, village, or township, requesting a
referendum upon the question of the issuance of the municipal securities, then the
municipality shall not issue the municipal securities until authorized by the vote of
a majority of the electors of the county, city, village, or township qualified to vote
and voting on the question at a general or special election. A special election called
for this purpose shall not be included in a statutory or charter limitation as to the
number of special elections to be called within a period of time. Signatures on the
petition shall be verified by a person under oath as the actual signatures of the
persons whose names are signed to the petition, and the governing body of the
county, city, village, or township shall have the same power to reject signatures and
petitions as city clerks under section 25 of the home rule city act, 1909 PA 279,
MCL 117.25. . . . . [Emphasis added.]
Plaintiff filed a complaint seeking a writ of mandamus. Plaintiff requested that the trial
court enter an order of mandamus directing the township clerk to validate the petition sheets that
she had rejected and place the referendum on the ballot for vote by the township electorate. The
thrust of plaintiff’s position was contained in the following allegation of his complaint:
Plaintiff asserts that it was an error for [the clerk] to invalidate the notarial
acts of [the three notaries] . . . because the errors of the notary are not fatal to the
validity of the affidavit so long as it appears either from the rest of the instrument
or from “evidence aliunde” that the affidavit was in fact duly sworn to before an
authorized officer. This rule is based upon the principle that a party should not
suffer because of the inadvertent omission of the officer to perform his duty.
[Quotation marks and citations omitted.]
Defendants took the position that all the petition sheets should have been invalidated
because none of the notaries administered an oath or affirmation to the petition circulators as
required by MCL 141.2517(2). Defendants also claimed that one notary public had a pecuniary
interest that prohibited her from acting as a notary.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(10), and plaintiff
moved for a writ of mandamus. The parties presented various arguments in support of their
positions. Following a hearing on the motions, the trial court denied plaintiff’s request for a writ
of mandamus and granted defendants’ motion for summary disposition. At the hearing, the
arguments focused on the extent of the review that the township clerk was permitted or required
to engage in when examining petitions. The trial court concluded that the township clerk’s actions
fit within the authorization of the statute and her gatekeeper role and that the township clerk did
not “overstep[] her bounds with regards to simply analyzing the validity of [the] signatures and
overall petitions.” The court determined that the township clerk had taken “measured steps in
exercising her responsibilities under the statute.” An order in accord with the trial court’s ruling
from the bench was entered. Plaintiff now appeals.
-2-
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d
618 (2009). A trial court’s decision regarding whether to grant a writ of mandamus is reviewed
for an abuse of discretion. Berry v Garrett, 316 Mich App 37, 41; 890 NW2d 882 (2016). But we
review de novo “whether defendants have a clear legal duty to perform and whether plaintiff has
a clear legal right to performance of any such duty.” Id.
On appeal, plaintiff, now acting in propria persona, presents multiple arguments that are
somewhat difficult to understand. He first contends that “strict compliance . . . of the verification
requirement found in MCL 141.2517(2) creates a duty for petition circulators to swear to the
genuineness of each signature on the petition under oath[, and] [t]his is an impossible requirement
to truthfully comply with while keeping the requirement constitutional.” Plaintiff appears to argue
that the language in MCL 141.2517(2) is impossible to satisfy because the statute requires
circulator verification under oath based on personal knowledge of facts, as opposed to the
circulator swearing to his or her beliefs. Later, plaintiff asserts that “[d]ue to the absence of the
word ‘purported’ in MCL 141.2517(2) the affiant must have personal knowledge that the person
who signed the petition was in fact who they purported to be and signed their genuine signature.”
Plaintiff then claims:
If the circulator of a referendum petition swears under oath that, of his own
knowledge, the signatures on the petition which he has circulated are the signatures
of the persons whose names are signed to the petition when, in fact, he has no such
knowledge, the falsity of his affidavit gives rise, at least, to a presumption of fraud.
Without personal knowledge gained through examination of a photo identification
or the list of registered voters, there is no truthful way to make the affidavit the
statute requires.
Plaintiff next shifts to and presents a constitutional vagueness argument. He argues that
MCL 141.2517(2) “cannot be construed as requiring the circulator, while collecting signatures for
the petition, to ask the elector for the elector’s state issued photo ID.” Plaintiff posits that this
would dissuade electors from signing the petition. He also states that “[t]he duties being required
go outside of the bounds of policing the circulator, and unduly burdens the circulator’s core right
of political speech by introducing an elector policing duty while the circulator is acting at the
elector’s advocate.” Plaintiff argues that because such an approach, i.e., asking a person for a
photo identification when obtaining a signature, would be unconstitutional, the Legislature must
have intended for the circulators to gain the knowledge required by the statute after the signatures
were collected. But, according to plaintiff, the two options in doing so—proving identity by
checking names and addresses against election records gathered through the Freedom of
Information Act or scheduling an appointment with a municipal clerk or the Secretary of State to
inspect election records to determine the genuineness of actual signatures—”are either
unconstitutional or impossible to comply with.”
Defendants argue that MCL 141.2517(2) “does not purport to require the circulator to
verify [a] ‘person’s’ identification, or attest to the ‘genuineness’ of the signature, but merely that
the person whose name appears on the petition actually signed his or her name. Nothing more.”
Defendants additionally contend that plaintiff does not address the reasons the trial court gave for
its ruling.
-3-
We find it unnecessary to address the substance of plaintiff’s confusing arguments because
they are irrelevant. The arguments are entirely unrelated to the reasons the township clerk cited
for rejecting petition sheets. The township clerk did not reject any signatures because a circulator
had obtained a signature without asking for identification or verifying it by the methods suggested
by plaintiff. Moreover, plaintiff does not point to any claim by a circulator who felt obligated to
take the steps plaintiff believes are required by MCL 141.2517(2). Moreover, plaintiff’s
arguments have no connection whatsoever to the reasoning the trial court articulated in support of
its ruling. “When an appellant fails to dispute the basis of a lower court’s ruling, we need not even
consider granting the relief being sought by the appellant.” Denhof v Challa, 311 Mich App 499,
521; 876 NW2d 266 (2015). Additionally, “we will not reach constitutional issues that are not
necessary to resolve a case.” Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211,
234; 507 NW2d 422 (1993). In sum, we conclude that reversal is unwarranted.
We affirm.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-4- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483281/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KELLY VAN ASSCHE, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
V No. 361568
Wexford Circuit Court
DEREK TATE, LC No. 2021-029870-DC
Defendant-Appellee.
Before: SAWYER, P.J., and MARKEY and SWARTZLE JJ.
PER CURIAM.
Plaintiff and defendant have two children together. Plaintiff wanted to move to Virginia
and bring the children with her. So, she petitioned for primary physical, and sole legal, custody of
the children. The trial court denied her motion. We affirm.
The parties were never married, and they separated before the birth of the younger child.
Plaintiff filed a petition to be awarded sole legal and primary physical custody of the older child,
along with child support, and an “[o]rder that Plaintiff may move with the minor child to Virginia.”
Defendant opposed plaintiff’s motion, requested joint legal and physical custody, and filed a
counterclaim to establish parenting time and child support. Defendant’s paternity of both children
is not in dispute.
After a Friend of Court referee recommended that plaintiff be awarded primary physical
custody, the trial court held a de novo hearing and found that the older child had an established
custodial environment with both parties while they lived together. As a consequence of their
separation, however, that environment had been destroyed such that no established custodial
environment existed with either parent. The trial court awarded the parties joint legal and physical
custody of the children, and it denied plaintiff’s request to relocate out of state.
Plaintiff now appeals, challenging the trial court’s findings regarding the custodial
environment of the older child and the best-interest factors for both children. As an initial matter,
however, this Court notes that plaintiff withdrew her appeal regarding the trial court’s decision
concerning domicile because “the parties reached a partial settlement providing that both parties
-1-
and the minor children will all relocate to Virginia” which “renders the portion of Appellant’s
appeal and Appellee’s response related to the Trial Court’s decision denying the relocation moot.”
“A trial court’s findings regarding the existence of an established custodial environment
and regarding each custody factor should be affirmed unless the evidence clearly preponderates in
the opposite direction.” Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847
(2003) (cleaned up). “The movant…has the burden of proving by a preponderance of the evidence
that either proper cause or a change of circumstances exists before the trial court can consider
whether an established custodial environment exists (thus establishing the burden of proof) and
conduct a review of the best interest factors.” Id. at 509.
The custodial environment of a child is established if over an appreciable time the
child naturally looks to the custodian in that environment for guidance, discipline,
the necessities of life, and parental comfort. The age of the child, the physical
environment, and the inclination of the custodian and the child as to permanency of
the relationship shall also be considered. [MCL 722.27(1)(c).]
The trial court acknowledged that the Friend of Court referee had found that the older child
had an established custodial environment exclusively with plaintiff, but when the trial court
considered the parties’ separation, and plaintiff’s relocation with that child from the family home
to an apartment, the trial court found that the established custodial environment had been destroyed
for both parents. The testimony was sufficient to demonstrate that the older child did not have a
custodial environment with either parent because the change in circumstance left the child in an
apartment with the expectation that she would be moving out of state.
Plaintiff argues that the trial court erred by stating that there was a custodial environment
with defendant. This argument is misplaced because it does not address that the trial court, in fact,
found that there was not a custodial environment with defendant. “Issues insufficiently briefed are
deemed abandoned on appeal.” People v Van Tubbergen, 249 Mich App 354, 365; 642 NW2d
368 (2002). Because the trial court found that the older child did not have an established custodial
environment with either parent, plaintiff’s argument that the trial court erred by finding otherwise
warrants no further consideration.
Next, plaintiff argues that the trial court erred when it found that she had not met her burden
to demonstrate that the best-interest factors support her request for sole, legal custody or primary
physical custody of the children. Specifically, plaintiff argues that defendant should not have had
an advantage concerning MCL 722.23(d) and that the parties were not equal regarding MCL
722.23(e).
In this case, after discussing the various factors, the trial court summarized its findings as
follows: “[T]here is no advantage for either parent regarding Factors (a), (b), (e), (g), (h), (i), (k),
or (l). Factor (c) and (f) slightly favored Plaintiff and Factor (b) [sic, (d)] slightly favors Defendant,
while Factor (j) more significantly favors the Defendant.”
Factor (d) concerns the “length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.” MCL 722.23(d). After finding that
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the parties’ income and housing were similar, the trial court gave defendant the “slight advantage”
because he remained in the family home where the older child had lived.
Plaintiff argues that the trial court placed too much emphasis on defendant’s remaining in
the family home because defendant testified that he was seeking new employment in several cities
and he had arranged for housing in Virginia. Plaintiff ignores, however, that defendant was
arranging for housing in Virginia because plaintiff planned to move there. Nevertheless, at the
time of the hearing defendant remained in the family home, which was a source of stability for the
older child. The trial court’s finding a slight advantage to Factor (d) to defendant is not against
the great weight of the evidence.
Factor (e) concerns the “permanence, as a family unit, of the existing or proposed custodial
home or homes.” MCL 722.23(e). Plaintiff argues that moving to Virginia would present a more
permanent family unit because the children would be closer to her extended family. The trial court
correctly concluded that any move would provide a new situation that did not promise greater
permanence than defendant’s current housing. Thus, the trial court’s finding that Factor (e) did
not favor either party was not against the great weight of the evidence.
Defendant argues that plaintiff ignored that Factor (j) was heavily in his favor. Plaintiff
replied to argue that Factor (j) did not “more than slightly” favor defendant.
Factor (j) concerns “the moral fitness of the parties involved.” MCL 722.23(j). The trial
court found that plaintiff either interfered, or did not cooperate, with defendant in creating
scheduled parenting time. Further, plaintiff’s actions did not demonstrate a willingness to work
with defendant in fostering a closer relationship with the children. Even though the trial court’s
finding that defendant was not offered any overnight visits with the children was without
evidentiary support, there was evidence to conclude that plaintiff had withheld defendant’s access
to the children. For these reasons, it was not against the great weight of the evidence for the trial
court to find that Factor (j) was in defendant’s favor.
Affirmed.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-3- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483282/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TARAH MICHELE SINDONE, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 361010
Monroe Circuit Court
WILLIE PRESTON SINDONE, LC No. 14-037278-DM
Defendant-Appellee.
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting plaintiff the exclusive right to make medical
appointments and medical decisions for the parties’ minor child, WPS, but maintaining the parties’
joint legal custody and existing parenting-time schedule.1 On appeal, plaintiff argues that the trial
court erred in finding clear and convincing evidence supported the parties maintaining joint legal
custody, and determining there was no change in circumstances or proper cause to warrant a
modification in defendant’s parenting time. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the ongoing difficulties regarding the parties’ relationship and ability
to coparent WPS. After divorcing, the parties were awarded joint legal custody of WPS, with
plaintiff awarded physical custody of WPS. The record indicates a number of disputes between
the parties regarding various issues. Of relevance on appeal, the parties had ongoing disputes
regarding medication, scheduling medical appointments, virtual schooling, and extracurricular
activities for WPS. Specifically, the parties disagreed (1) whether one of WPS’s medications was
prescribed for every day, or only recommended on an as-needed basis; (2) whether plaintiff was
permitted to schedule medical appointments for WPS without defendant’s approval, because
1
The order states: “[T]he parties should retain joint legal and physical custody.” However,
plaintiff was awarded physical custody earlier in the proceedings. Plaintiff moved to correct this
clerical error. The trial court’s actions in response to this error are not present in the record.
-1-
defendant wanted to go to the appointments, but would not give plaintiff his work schedule; (3)
the extent to which defendant worked with WPS on his schoolwork, and whether defendant should
obtain the relevant passwords to log WPS into his schooling from defendant’s computer instead
of relying on the laptop sent by plaintiff; and (4) whether plaintiff was permitted to enroll WPS in
horseback riding lessons, without financial assistance from defendant, regardless of whether
defendant consented to the activity.
Of specific importance, plaintiff scheduled a well check-up with WPS’s pediatrician for
WPS and his half-sister but defendant asserted she had to change the date because he could not
attend. Plaintiff refused, and defendant called the pediatrician after the appointment telling them
he was going to sue them. Defendant’s actions resulted in the pediatrician’s office terminating its
relationship with WPS and his half-sister. Defendant would also video record WPS’s medical
appointments on his cellphone without the provider’s permission.
These disagreements culminated in plaintiff’s motion to modify custody and parenting
time, seeking an award of sole legal custody and to change defendant’s parenting time to the same
number of days, but different days of the week, to correlate with defendant’s days off work because
defendant was not spending all his parenting time with WPS. At the evidentiary hearing, a nurse
for the pediatrician confirmed WPS and his half-sister were terminated as patients after defendant’s
threatening telephone call. Plaintiff testified regarding the various incidents with defendant, and
asserted she did not believe the parties were capable of working together to make any decisions
for WPS, making sole legal custody necessary.
Defendant testified regarding the various incidents as well, and acknowledged he was
wrong for threatening to sue WPS’s pediatrician. Defendant agreed he and plaintiff had difficulties
coparenting, but believed they could improve. Defendant’s primary concern regarding WPS’s
medical appointments was not having a say in WPS’s treatment, and not knowing what was going
on with WPS, because, while plaintiff usually relayed this information, defendant did not trust her.
Defendant did not want to provide plaintiff with his work schedule because he did not want her
knowing what he was doing each day; she was constantly accusing him of improper behavior.
Defendant believed both parents should be equally involved in WPS’s education, but did not feel
he was given the chance. Defendant acknowledged he had a computer in his home WPS could use
for schooling, but contended it was a matter of convenience to have plaintiff send the laptop
because the passwords were already saved.
The trial court determined the change in circumstances involving WPS’s loss of his long-
time pediatrician was sufficient to justify addressing legal custody. However, the trial court
determined there were no changed circumstances warranting a review of parenting time because
the only evidence provided was plaintiff’s allegation defendant was not home during his parenting
time, which was not established by any persuasive evidence. The trial court addressed the best-
interest factors, under MCL 722.23, and found most to be neutral, but some to weigh in plaintiff’s
favor. Specifically, the trial court noted defendant’s participation in WPS’s education was less
than plaintiff’s and although both parents were able to provide for WPS’s material needs, plaintiff
was more capable of providing medical care; thus, this factor weighed in favor plaintiff. The trial
court also considered WPS’s preferences from a confidential interview.
-2-
Lastly, the trial court considered any other relevant factors. The trial court discussed the
difference between the parties’ care for WPS’s medical needs, noting plaintiff was much more
involved and defendant’s refusal to provide his schedule contributed to his own frustrations
regarding his lack of involvement. The trial court also opined that defendant did not understand
the concept of legal custody, explaining:
Joint legal custodians are not required to attend every appointment together. A joint
legal custodian does not have to put off an appointment for necessary care to
accommodate the other party when a child is sick or suffering. That would be
unreasonable and not in the child’s best interests. Nevertheless, those are the kinds
of demands that [defendant] would make.
For example, it was reasonable and prudent for [plaintiff] to take advantage
of an earlier optometrist appointment when the child was having headaches rather
than wait another month and allow him to suffer. [Defendant’s] disagreement in
that regard was not reasonable. Plaintiff’s Exhibit C is an example of [defendant]
acting in an unreasonable manner, having “notified the dr [sic] that [WPS] is not to
be seen” unless he was there for a simple well-child visit. His demand to be present
for a cardiologist appointment would have set that appointment off for an additional
two months, which did not serve his son’s best interests.
The trial court considered defendant’s improper behavior with WPS’s medical providers, but
credited defendant for admitting what he did was wrong. The trial court was also concerned with
defendant’s video recording of WPS’s medical appointments without the providers’ consent.
In light of these facts, the trial court found clear and convincing evidence demonstrated the
parties should retain joint legal custody, and parenting time should remain the same. However,
the trial court gave plaintiff “the exclusive right to make medical appointments and medical
decisions” for WPS, and required defendant to administer WPS’s medication as prescribed or
directed by WPS’s doctor. The trial court prohibited defendant from harassing or intimidating
WPS’s doctors, or recording WPS’s appointments without the medical staff’s consent, and ordered
plaintiff to provide defendant with the passwords and necessary information for WPS’s virtual
schooling. The trial court ordered that the parties could enroll WPS in extracurricular activities
during their own parenting time, and at their own expense, including horseback riding and
snowmobiling, “so long as reasonable and standard safety precautions for each activity are
observed.”
II. ANALYSIS
Plaintiff argues that the trial court erred by determining clear and convincing evidence
supported maintaining the parties’ joint custody and parenting-time schedule. We disagree.
We apply three standards of review in custody cases. The great weight of
the evidence standard applies to all findings of fact. A trial court’s findings
regarding the existence of an established custodial environment and regarding each
custody factor should be affirmed unless the evidence clearly preponderates in the
opposite direction. An abuse of discretion standard applies to the trial court’s
-3-
discretionary rulings such as custody decisions. Questions of law are reviewed for
clear legal error. A trial court commits clear legal error when it incorrectly chooses,
interprets, or applies the law. [Vodvarka v Grasmeyer, 259 Mich App 499, 507-
508; 675 NW2d 847 (2003), quoting Phillips v Jordan, 241 Mich App 17, 20; 614
NW2d 183 (2000) (internal citations omitted).]
Plaintiff does not dispute the trial court’s findings of fact or findings on the existence of an
established custodial environment. Instead, plaintiff argues that the trial court abused its discretion
by determining, on the basis of the facts in the record, the parties should retain joint legal custody.
“In child custody cases, [a]n abuse of discretion exists when the trial court’s decision is so palpably
and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment,
or the exercise of passion or bias.” Shade v Wright, 291 Mich App 17, 21; 805 NW2d 1 (2010)
(quotation marks and citation omitted, alteration in original). “Orders concerning parenting time
must be affirmed on appeal unless the trial court’s findings were against the great weight of the
evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error
on a major issue.” Id. at 20-21 (quotation marks and citation omitted).
A. LEGAL CUSTODY
The trial court did not err by refusing to grant plaintiff sole legal custody of WPS. “Before
modifying or amending a custody order, the circuit court must determine whether the moving party
has demonstrated either proper cause or a change of circumstances to warrant reconsideration of
the custody decision. MCL 722.27(1)(c)[.]” Dailey v Kloenhamer, 291 Mich App 660, 665; 811
NW2d 501 (2011).
To establish proper cause, the movant must prove the existence of an appropriate
ground for legal action to be taken by the trial court. Further, [t]he appropriate
ground(s) should be relevant to at least one of the twelve statutory best interest
factors, and must be of such magnitude [as] to have a significant effect on the
child’s well-being. Similarly, to establish a change of circumstances, the movant
must prove that since the entry of the last custody order, the conditions surrounding
custody of the child, which have or could have a significant effect on the child’s
well-being, have materially changed. [Id. (quotation marks, citations, and footnote
omitted; alterations in original).]
“Once a party has met the initial burden of showing a change in circumstances or proper cause to
revisit the custody order, the next step is for the circuit court to determine the applicable burden of
proof for the custody hearing. See MCL 722.27(1)(c).” Dailey, 291 Mich App at 666-667.
Because the trial court determined an established custodial environment existed with both parents
in this case, which is not disputed by the parties, the trial court “could not modify custody unless
it found clear and convincing evidence that modification was in the child’s best interests.” Id. at
667. “In determining the best interests of the child, the court must review the best-interest factors
listed in MCL 722.23.” Dailey, 291 Mich App at 667. “In addition, the court must consider the
general level of cooperation and agreement between the parties when considering joint custody.”
Id. (quotation marks and citation omitted).
-4-
Joint custody mandates both parents “share decision-making authority as to the important
decisions affecting the welfare of the child.” MCL 722.26a(7)(b).
At times, of course, joint legal custodians will not be able to agree on important
decisions . . . that affect their children’s welfare. Thus, where the parents as joint
custodians cannot agree on important matters . . . , it is the court’s duty to determine
the issue in the best interests of the child. [Pierron v Pierron, 282 Mich App 222,
247; 765 NW2d 345 (2009) (quotation marks and citations omitted).]
“It is presumed to be in the best interests of a child for the child to have a strong relationship with
both of his or her parents.” MCL 722.27a(1).
On appeal, plaintiff only challenges the trial court’s determinations for three of the best-
interest factors, which concern:
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the child
in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child
with food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.
* * *
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute. [MCL 722.23(b), (c), and (l).]
Plaintiff argues, while the trial court did consider the difference in the parties’ involvement
in WPS’s schooling, it failed to consider the fact that defendant blames plaintiff for his own failure
to be involved, under MCL 722.23(b). However, the person on whom defendant places blame for
his actions is irrelevant when considering his capacity to assist WPS with his schoolwork. The
trial court considered defendant’s lesser involvement by concluding this factor weighed slightly in
favor of plaintiff, in light of the parties’ equivalence on the other elements of this factor, such as
love, affection, and guidance.
Plaintiff argues the trial court also erred by failing to emphasize defendant’s tendency to
disagree with plaintiff’s medical decisions just to be difficult, under MCL 722.23(c), which was
not in WPS’s best interests. However, the trial court determined this factor weighed in favor of
plaintiff because of plaintiff’s diligent pursuit of WPS’s medical treatments and defendant’s
unreasonable demands regarding medical appointments. Furthermore, the trial court also noted it
appeared defendant’s actions, at least concerning recording WPS’s appointments, were designed
to “intimidate, control, and harass” plaintiff. The trial court considered defendant’s problematic
behavior when evaluating this factor, through its analysis under MCL 722.23(l).
Plaintiff also argues that the trial court erred in its analysis under MCL 722.23(l) because,
while defendant asserted he did not trust plaintiff, he provided no evidence for why. However,
-5-
this was only one of many other considerations, which plaintiff does not dispute. While the issue
of whether defendant’s distrust of plaintiff was warranted may have served to bolster plaintiff’s
position, the trial court already determined this factor weighed in favor of plaintiff. This
consideration would not change that analysis.
While three of the factors analyzed by the trial court weighed in favor of plaintiff, “the trial
court need not make its custody determination on the basis of a mathematical calculation and may
assign differing weights to the various best-interest factors[.]” Berger v Berger, 277 Mich App
700, 712; 747 NW2d 336 (2008). The trial court noted various factors were neutral and determined
the evidence supported a finding that WPS received love, affection, and guidance from defendant.
The record does not indicate WPS does not love defendant or enjoy his time with defendant.
Furthermore, the trial court had the opportunity to consider WPS’s preferences.
While it appears defendant was being difficult, sometimes to the detriment of WPS, the
carve-outs the trial court made in its order of granting plaintiff sole decision-making authority for
medical appointments and treatment, and permitting each parent to choose extracurricular
activities for WPS when WPS is in their care, specifically addressed these problems without
disrupting defendant’s relationship with WPS. Given the interest in maintaining a strong
relationship between WPS and his parents, MCL 722.27a(1), the special carve-outs to handle the
medical and extracurricular disputes, and the discretionary nature of the trial court’s decision, there
is insufficient evidence to support a finding the trial court abused its discretion by maintaining
joint legal custody.
B. PARENTING TIME
The trial court did not err by refusing to change defendant’s parenting time. Unlike changes
in custody, changes in parenting time require “a lesser, more flexible, understanding of proper
cause or change in circumstances is applicable to a request to modify parenting time.” Marik v
Marik, 325 Mich App 353, 367-368; 925 NW2d 885 (2018) (quotation marks and citation omitted).
“Specifically, the very normal life change factors that Vodvarka[, 259 Mich App at 499,] finds
insufficient to justify a change in custodial environment are precisely the types of considerations
that trial courts should take into account in making determinations regarding modification of
parenting time.” Marik, 325 Mich App at 368 (quotation marks and citation omitted). “If the
required parenting time adjustments will not change whom the child naturally looks to for
guidance, discipline, the necessities of life, and parental comfort, then the established custodial
environment will not have changed.” Rains v Rains, 301 Mich App 313, 340; 836 NW2d 709
(2013).
“In order to modify a parenting-time schedule, if the modification would not constitute a
change in an established custodial environment, the party proposing the change must show by a
preponderance of the evidence that the change is in the child’s best interests.” Id. Plaintiff did not
seek to change the number of days defendant had for parenting time, only which days he had. This
was unlikely to modify who WPS looks to for “guidance, discipline, the necessities of life, and
parental comfort,” id., and therefore, would not change WPS’s established custodial environment
with defendant. However, plaintiff was still required to show by a preponderance of the evidence
that the change was in WPS’s best interests. See id. Plaintiff’s sole basis for changing defendant’s
parenting time was her allegation that defendant did not spend all his parenting time with WPS
-6-
because he worked during the day. However, as the trial court noted, plaintiff did not provide any
evidence to support her contention. The trial court could not modify defendant’s parenting time
solely on the basis of plaintiff’s unsupported assertion that the change would permit WPS to spend
more time with defendant. Plaintiff provided no evidence that her proposed change would be in
WPS’s best interests, and the trial court did not err by refusing to change parenting time.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
-7- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483286/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
WADEE GHALEB, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 357812
Wayne Circuit Court
MUZAMMIL AHMED, M.D., MICHIGAN LC No. 20-014152-NH
HEALTHCARE PROFESSIONALS, doing business
as COMPREHENSIVE UROLOGY, KAHLIL N.
SAAD, M.D., and WILLIAM BEAUMONT
HOSPITAL,
Defendants-Appellees.
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Plaintiff appeals as of right orders granting summary disposition in favor of all defendants
under MCR 2.116(C)(7), on the grounds that plaintiff’s claims were barred by the statute of
limitations. We reverse and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of medical treatment plaintiff received from defendants for urinary
issues on April 26, 2018, which allegedly worsened his problems. On Monday, April 27, 2020,
plaintiff sent his notice of intent (NOI) to defendants as required under MCL 600.2912b. On
October 27, 2020, plaintiff filed his complaint and affidavit of merit asserting claims against
defendants that included medical malpractice and respondeat superior.
Defendants moved for summary disposition on the basis of the statute of limitations,
arguing that plaintiff’s NOI was not filed within the two-year statutory limitations period for
medical malpractice actions under MCL 600.5805(8). The last treatment provided to plaintiff was
on April 26, 2018; therefore, the statute of limitations expired on April 26, 2020 but plaintiff did
not serve his NOI until April 27, 2020. The motions asserted that plaintiff was required to serve
his NOI by April 26, 2020, and thus, it was not timely. And even if plaintiff was entitled to serve
the NOI on April 27, 2020—because April 26, 2020 was a Sunday—the statute of limitations was
-1-
not tolled following the 182-day notice period, which began on April 26, 2020, because there were
no days remaining in the limitations period when that notice was given. See MCL 600.5856(c).
Therefore, plaintiff was required to file his complaint on October 26, 2020, which was a Monday,
when the 182-day notice period was up and before the statute of limitations period expired.
Instead, plaintiff filed on October 27, 2020, which was the 184th day from April 26, 2020, not the
183rd day, as permitted by Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich 304; 901 NW2d
577 (2017).
Plaintiff responded, arguing that his NOI was timely filed because April 26, 2020 fell on a
Sunday and MCR 1.108(1) extended the statutory limitations period to April 27, 2020. Plaintiff
further argued that his complaint was not time-barred because he was required to wait a full 182
days after serving his NOI before filing his complaint—which meant that he could not file his
complaint until October 27, 2020. Therefore, defendants’ motions for summary disposition must
be denied.
On April 15, 2021, after a hearing on the motions, the trial court held that plaintiff’s
complaint was time-barred and granted defendants’ motions for summary disposition. Plaintiff
moved for reconsideration, arguing that his NOI and complaint were timely under MCR 1.108(1)
and MCL 8.6, which the trial court denied. This appeal followed.
II. ANALYSIS
Plaintiff argues that the trial court erred in concluding that his NOI was not timely and that
his complaint was time-barred. We agree.
A. PRESERVATION AND STANDARDS OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo. Broz v
Plante & Moran, PLLC, 331 Mich App 39, 45; 951 NW2d 64 (2020). When reviewing a motion
under MCR 2.116(C)(7), the court must accept as true all well-pleaded factual allegations and
construe them in favor of the plaintiff unless contradicted by evidence. Dextrom v Wexford Co,
287 Mich App 406, 428; 789 NW2d 211 (2010). When documentary evidence is submitted in
support of such motion, the court must consider that evidence in determining whether a genuine
issue of material fact exists. Id. at 429.
Interpretation of statutes and court rules are reviewed de novo. Haksluoto, 500 Mich at
309. “Our goal when interpreting and applying statutes or court rules is to give effect to the plain
meaning of the text. If the text is unambiguous, we apply the language as written without
construction or interpretation.” Ligons v Crittenton Hosp, 490 Mich 61, 70; 803 NW2d 271
(2011).
“Generally, to preserve a claim of error for appellate review, the party claiming the error
must raise the issue in the trial court.” Redmond v Heller, 332 Mich App 415, 430; 957 NW2d
357 (2020). In response to the motions for summary disposition, plaintiff argued that his NOI was
timely served under MCR 1.108(1) and his complaint was not time-barred; therefore, this issue is
preserved for appellate review. However, in his motion for reconsideration plaintiff raised the
additional argument that MCL 8.6 applied to the statute of limitations but this issue is not preserved
for appellate review. Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 519; 773
-2-
NW2d 758 (2009) (“Where an issue is first presented in a motion for reconsideration, it is not
properly preserved.”).
Although this Court need not address an unpreserved issue, it may overlook
preservation requirements when the failure to consider an issue would result in
manifest injustice, if consideration is necessary for a proper determination of the
case, or if the issue involves a question of law and the facts necessary for its
resolution have been presented. [Gen Motors Corp v Dep’t of Treasury, 290 Mich
App 355, 387; 803 NW2d 698 (2010).]
Unpreserved issues are reviewed for plain error. Demski v Petlick, 309 Mich App 404, 426-427;
873 NW2d 596 (2015). That means such error is forfeited unless it was a clear or obvious error
and affected substantial rights. Id. at 427. “Generally, an error affects substantial rights if it caused
prejudice, i.e., it affected the outcome of the proceedings.” In re Utrera, 281 Mich App 1, 9; 761
NW2d 253 (2008).
B. NOTICE OF INTENT
The trial court erred by concluding that plaintiff’s NOI was untimely. The statute of
limitations for a medical malpractice case is two years. See MCL 600.5805(8); see also Haksluoto,
500 Mich at 310. “The Revised Judicature Act (RJA), MCL 600.101 et seq., requires that a
prospective medical malpractice plaintiff provide a potential defendant at least 182 days of notice
prior to filing suit.” Id. at 307; see also MCL 600.2912b(1).
If a plaintiff files a notice of intent (NOI) to file a claim before the limitations period
for the malpractice action expires, but the limitations period for the malpractice
action would otherwise expire during the 182-day notice period, the statute of
limitations for the malpractice action is tolled for the duration of the notice period.
[Haksluoto, 500 Mich at 307; see also MCL 600.5856(c).]
“Michigan employs a ‘mailbox rule’ for providing this notice of intent. See MCL 600.2912b(2)
(‘Proof of the mailing constitutes prima facie evidence of compliance’ with the NOI
requirement.).” Haksluoto, 500 Mich at 310.
It is undisputed that the statute of limitations applicable to plaintiff’s action expired on
April 26, 2020. However, April 26, 2020 was a Sunday. Plaintiff mailed his NOI to defendants
on Monday, April 27, 2020. MCR 1.108 provides:
In computing a period of time prescribed or allowed by these rules, by court order,
or by statute, the following rules apply:
(1) The day of the act, event, or default after which the designated period of time
begins to run is not included. The last day of the period is included, unless it is a
Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to
court order; in that event the period runs until the end of the next day that is not a
Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to
court order.
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The court rule is clear—it applies in “computing a period of time prescribed or allowed by . . .
statute[.]” MCR 1.108. Here, the statute of limitations expired on April 26, 2020—a Sunday.
Because the last day of the statute of limitation was a Sunday, as set forth in MCR 1.108(1), “the
period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on
which the court is closed pursuant to court order.” MCR 1.108(1). In other words, MCR 1.108(1)
does not count the last day of the period if it falls on a nonbusiness day, including a Sunday.
Accordingly, the statute of limitations was extended through the end of the next business day,
Monday, April 27, 2020. And plaintiff timely filed his NOI on April 27, 2020.
This is the same result reached by our Supreme Court in Watts v Henry Ford Health Sys,
480 Mich 1055; 743 NW2d 897 (2008). In Watts, our Supreme Court noted that the alleged
medical malpractice in that case accrued no later than January 2, 2003. Id. at 1055. “Accordingly,
the period of limitations would have expired on January 2, 2005; however, because this was a
Sunday, pursuant to MCR 1.108(1), the notice of intent that was filed on January 3, 2005, was
timely.” Id. Further, the Court held: “The notice of intent tolled the period of limitations for 182
days, and, thus, the complaint that was filed on July 1, 2005, was also timely.” Id. at 1055-1056.
Plaintiff also argued in his motion for reconsideration that the overlapping statute which
addresses how time is counted, MCL 8.6, also applied under the circumstances here. MCL 8.6
states:
This section applies to the statutes and administrative rules. In computing a period
of days, the first day is excluded and the last day is included. If the last day of any
period or a fixed or final day is a Saturday, Sunday or legal holiday, the period or
day is extended to include the next day which is not a Saturday, Sunday or legal
holiday.
Clearly, plaintiff was right. Our Supreme Court in Haksluoto, 500 Mich at 314, recognized that
the “law regarding how time is counted is currently codified in two overlapping provisions,” MCL
8.6 and MCR 1.108(1). The Court also noted: “The apparent overlap of the statute with the court
rule was previously recognized in Beaudry v Beaudry, 20 Mich App 287, 288; 174 NW2d 28
(1969).” Haksluoto, 500 Mich at 315 n 4. Thus, these provisions—and the manner in which time
is computed—are plainly not recent developments in the law.
Both MCL 8.6 and MCR 1.108(1) are unambiguous and must be applied as written. While
defendants argue that the weekend and holiday extension is inapplicable to the service of an NOI,
because an NOI could be sent in the mail on any day of the week and the extension had to do with
filing court documents during the pendency of a lawsuit, the plain language of MCL 8.6 and MCR
1.108(1) does not support this contention. “Our goal when interpreting and applying statutes or
court rules is to give effect to the plain meaning of the text. If the text is unambiguous, we apply
the language as written without construction or interpretation.” Ligons, 490 Mich at 70. Here, the
statutory limitations period expired on April 26, 2020, a Sunday. Therefore, under both MCL 8.6
and MCR 1.108(1), the period was extended to April 27, 2020, the next business day, and
plaintiff’s NOI was timely filed. Accordingly, the trial court erred in concluding that plaintiff’s
NOI was not timely.
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C. COMPLAINT
The trial court also erred in concluding that plaintiff’s complaint was time-barred. If an
NOI is filed with time remaining on the applicable statute of limitations, the statute of limitations
is tolled by that NOI. Haksluoto, 500 Mich at 312 (citation omitted). In this case, as in the
Haksluoto case, because plaintiff’s NOI was “filed on the final day of the limitations period (but
before that final day ended), MCL 600.5856(c) has ostensibly been satisfied so as to trigger
tolling.” Id.
MCL 600.2912b(1) states:
Except as otherwise provided in this section, a person shall not commence
an action alleging medical malpractice against a health professional or health
facility unless the person has given the health professional or health facility written
notice under this section not less than 182 days before the action is commenced.
As our Supreme Court explained in Haksluoto, 500 Mich at 317, “when a party is afforded a certain
number of days, that period is construed as a certain number of whole days, excluding the day
which triggered the running of the period, to ensure that the party receives all of the time to which
he or she is entitled.” This requirement extends to medical malpractice cases, and requires “that a
plaintiff wait the entire 182-day notice period before filing a complaint.” Id. (emphasis provided).
Thus, in determining when that 182-day period begins to run, our Supreme Court explained
that the day the NOI is filed is a fractional day and is not counted as day number one of the 182-
day period. Rather, the next day after the NOI is filed is considered the first whole day of the
computational period which ensures “that the amount of time being provided to the ‘user’ of the
time consists of the entire amount of time the law allows for . . . .” Id. at 317-318. In other words,
defendants must receive the benefit of the entire 182-day notice period. Id. at 318.
In this case, as discussed above, plaintiff timely filed his NOI on April 27, 2020, and thus,
the 182-day notice period began to run on April 28, 2020. Therefore, plaintiff could not file his
complaint until Tuesday, October 27, 2020. See Haksluoto, 500 Mich at 318. “[W]hen an NOI is
filed on the final day of the limitations period, the next business day after the notice period expires
is an eligible day to file suit.” Id. at 323. Here, counting from April 28, 2020, day 182 was October
26, 2020—after which the notice period is considered expired. Therefore, plaintiff could not file
his complaint until the next business day which was October 27, 2020—as he did. While
defendants contend that the first day of the 182-day notice period should have started on April 26,
2020—the date the statute of limitation actually expired—that argument is without merit. At issue
is a notice provision. And plaintiff was required to give defendants the benefit of a full 182 days
of notice that he intended to file a lawsuit. It is axiomatic that the notice period cannot begin to
run before plaintiff provided notice—on April 27, 2020. Accordingly, plaintiff’s complaint was
timely filed—not time-barred—and the trial court erred in granting summary disposition in favor
of defendants.
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Reversed and remanded for proceedings consistent with this opinion. Plaintiff is entitled
to costs as the prevailing party. See MCR 7.219(A). We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
-6- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483289/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TIG ENTITY, LLC, doing business as UNPUBLISHED
THOMPSON I.G., LLC, November 10, 2022
Plaintiff-Appellant,
V No. 358531
Kalamazoo Circuit Court
AZON USA, INC., LC No. 2021-000170-CB
Defendant-Appellee.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Plaintiff manufactured insulated glass window units to be installed at the Mary Idema Pew
Library on the campus of Grand Valley State University, and defendant supplied a “spacer” for
those window units. Condensation got inside the window units and they started to fog from inside
the window. Grand Valley State University sued plaintiff, among other entities, for the faulty
windows because it alleged that the secondary sealant used to manufacture the windows did not
comply with the specifications for the project. Plaintiff reached a settlement agreement with Grand
Valley State University, and defendant was not a party to that litigation or settlement. Plaintiff
then sued defendant for common-law and implied-contractual indemnification, alleging that
defendant’s spacers were defectively designed and caused the windows to fail. The trial court
granted summary disposition to defendant under MCR 2.116(C)(8). We affirm.
“We review de novo a trial court’s decision to grant or deny a motion for summary
disposition.” Sherman v City of St Joseph, 332 Mich App 626, 632; 957 NW2d 838 (2020)
(citations omitted). “A motion for summary disposition under MCR 2.116(C)(8) tests the legal
sufficiency of a claim by the pleadings alone.” Smith v Stolberg, 231 Mich App 256, 258; 586
NW2d 103 (1998) (citation omitted).
It is undisputed that the parties do not have an express contractual agreement for
indemnification. Thus, plaintiff must look to either an implied contractual right to indemnify or
the common law. “In order to establish an implied contract to indemnify, there must be a special
relationship between the parties or a course of conduct whereby one party undertakes to perform
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certain services and impliedly assures indemnification.” Palomba v East Detroit, 112 Mich App
209, 217; 315 NW2d 898 (1982). “[T]he right to common-law indemnification is based on the
equitable theory that where the wrongful act of one party results in another party’s being held
liable, the latter party is entitled to restitution for any losses.” Botsford Continuing Care Corp v
Intelistaf Healthcare, Inc, 292 Mich App 51, 62; 807 NW2d 354 (2011).
Under either theory, where there is no express-contractual right of indemnification, a
person can obtain indemnification only if that person is “free of negligence or fault.” Williams v
Unit Handling Sys Div of Litton Sys, Inc, 433 Mich 755, 760; 449 NW2d 669 (1989); see also Dale
v Whiteman, 388 Mich 698, 705; 202 NW2d 797 (1972) (“It is a well-recognized rule that an
implied contract of indemnity arises in favor of a person who without any fault on his part is
exposed to liability and compelled to pay damages on account of the negligence or tortious act of
another.”); Botsford, 292 Mich App at 63 (holding that “common-law indemnification action[s]
cannot lie where the plaintiff was even .01 percent actively at fault”). This is consistent with
Michigan caselaw distinguishing claims for indemnification from claims for contribution.
“Contribution distributes a loss among joint tortfeasors, requiring each to pays its proportionate
share; indemnity shifts the entire loss from the party who has been forced to pay to the party who
should properly bear the burden.” Id. at 52 n 1.
“In general, whether a party is passively (vicariously) liable or actively liable for purposes
of determining the availability of common-law indemnity is to be determined from the primary
plaintiff’s complaint.” Id. at 63. “If the primary plaintiff’s complaint contained any allegations of
active negligence, rather than merely allegations of passive negligence, common-law
indemnification is not available.” Id. Similarly, this Court has also held that the underlying
complaint determines if a party is actively or vicariously liable for the purposes of deciding the
availability of implied-contractual indemnification. See Walgreen Co v RDC Enterprises, LLC,
unpublished per curiam opinion of the Court of Appeals, issued August 23, 2011 (Docket No.
293608), p 11. Although this unpublished opinion is not binding precedent, MCR 7.215(C)(1),
we consider it instructive and persuasive. See Paris Meadows, LLC v City of Kentwood, 287 Mich
App 136, 145 n 3; 783 NW2d 133 (2010).
Even though “[a] party may not support a motion under subrule (C)(8) with documentary
evidence[,]” Dalley v Dykema Gossett, 287 Mich App 296, 305; 788 NW2d 679 (2010), when “a
claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts
must be attached to the pleading,” Laurel Woods Apartments v Roumayah, 274 Mich App 631,
635; 734 NW2d 217 (2007). Plaintiff did not attach the underlying complaint by Grand Valley
State University, but that complaint was not required to be attached when it was “a matter of public
record in the county in which the action is commenced and its location in the record is stated in
the pleading,” MCR 2.113(C)(1)(a), or “in the possession of the adverse party and the pleading so
states,” MCR 2.113(C)(1)(b).
In the underlying case, Grand Valley State University’s complaint alleged that plaintiff had
breached its express warranty with the university because it had manufactured the defective
window units and did not replace them with nonfaulty windows. This was the only allegation
against plaintiff, and it alleged active negligence that resulted in plaintiff’s direct breach of an
express warranty. Further, plaintiff “alleged a complete defense to the original action” by Grand
Valley State University, Williams, 164 Mich App at 202, rather than submit a defense based upon
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implied indemnification with defendant. Thus, the trial court did not err when it granted summary
disposition to defendant under MCR 2.116(C)(8).
Lastly, plaintiff argues that there is a conflict between Williams, 164 Mich App 195, and
Kirin v Riise Engineering Co, Inc, 148 Mich App 278, 283; 384 NW2d 149 (1986) because this
Court in Kirin held that “freedom from active fault is not a precondition to an implied contractual
indemnity claim.” This argument is misplaced, however, because this Court in Williams, 164 Mich
App 195, concluded that Kirin was wrongly decided, and our Supreme Court affirmed that holding.
Williams, 433 Mich 755.
Affirmed. Defendant, as the prevailing party, may tax its costs. MCR 7.219(A).
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-3- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483285/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM HILLEY, III, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 359223
Macomb Circuit Court
JOSEPH IHAB SALEH ALAMAT, D.D.S. and LC No. 2019-005128-NH
ALAMAT ORAL AND MAXILLOFACIAL
SURGERY, PLLC,
Defendants-Appellees.
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Plaintiff appeals as of right an order striking his expert medical witness, granting summary
disposition in favor of defendants, and dismissing his medical malpractice case with prejudice for
filing an invalid affidavit of merit. We affirm.
I. FACTS AND PROCEDURAL BACKGROUND
This is a medical malpractice case. In March 2017, plaintiff went to defendants’ dentistry
practice and was advised by Dr. Joseph Ihab Saleh Alamat, D.D.S. that he needed three wisdom
teeth extracted. During the procedure, plaintiff’s inferior alveolar nerve (IAN) was allegedly
injured, causing numbness in his face. After the procedure, Dr. Alamat treated plaintiff for facial
numbness; however, plaintiff continued to suffer from facial numbness. In 2019, plaintiff brought
this lawsuit alleging that defendants breached the professional standard of care while treating
plaintiff, causing significant injury. With his complaint, plaintiff attached an affidavit of merit
(AOM) from an expert witness, Robert Staley, D.D.S., who attested that defendants breached the
standard of care. Defendants denied plaintiff’s allegations, asserting that plaintiff was reasonably
informed of the risks of the procedure, his injuries were not as significant as claimed, and he failed
to follow defendants’ instructions regarding the injury.
During discovery, the trial court allowed plaintiff to file an amended AOM for a new expert
witness after Dr. Staley was deemed unqualified under MCL 600.2169. In late September 2021,
plaintiff filed an AOM for Harold Richman, D.D.S., which attested that “[a]fter having reviewed
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records and Notice of Intent provided by Plaintiff’s attorney, I . . . submit the following opinions,”
including how the applicable standard of care was breached. About two weeks later, Dr. Richman
was deposed. When asked about the AOM, Dr. Richman stated that he did not, in fact, review any
materials before signing the AOM because “it was imperative to [plaintiff’s attorney],” from their
conversations, that the AOM be signed, notarized, and sent back. After signing the AOM, Dr.
Richman received plaintiff’s medical chart, Dr. Alamat’s depositions, and two articles on dental
elevators, which he reviewed at his leisure.
After the depositions, defendants moved to strike Dr. Richman as an expert witness,
arguing that plaintiff failed to comply with MCL 600.2912d(1), which states: “The affidavit of
merit shall certify that the health professional has reviewed the notice [i.e., notice of intent (NOI)]
and all medical records supplied to him or her by the plaintiff’s attorney concerning the allegations
contained in the notice . . . .” Here, Dr. Richman admitted in his deposition that plaintiff’s attorney
did not supply him with the NOI or plaintiff’s medical records before he signed the AOM, which
amounted to perjury. And plaintiff’s counsel was directly involved with having the AOM signed
and notarized despite Dr. Richman’s failure to review the NOI or medical records which
constituted an intentional fraud on the court. Defendants requested the trial court to strike Dr.
Richman as an expert and grant summary disposition in their favor.
Plaintiff responded to the motion, arguing that defendants failed to include any legal
authority in support of their “personal definition of the word ‘review’ in MCL 600.2912d.”
Plaintiff asserted that plaintiff’s counsel’s verbal communications over the telephone with Dr.
Richman about the NOI, AOM, and plaintiff’s medical records, followed by delivery of the
physical documents, was an efficient and common method of “review” under the statute. Plaintiff
argued that defendants could have asked Dr. Richman additional questions during his depositions
which would have revealed the detailed conversations between Dr. Richman and plaintiff’s
counsel about the NOI, AOM, and medical records. Therefore, plaintiff argued, defendants’
motion should be denied.
In reply, defendants argued that plaintiff’s counsel’s purported verbal communication with
Dr. Richman about the NOI and medical records before he signed the AOM did not constitute a
“review” under the statute. Defendants asserted that there was no caselaw distinguishing between
physically furnishing the documents for review to the expert witness as opposed to having a verbal
conversation about the documents because the statute is “absolutely clear.” Further, defendants
argued, it was not their place to thoroughly question Dr. Richman about conversations he may
have had with plaintiff’s counsel; rather, if plaintiff felt it was important to establish additional
testimony, plaintiff should have elicited that testimony. Therefore, defendants were entitled to
summary disposition in their favor and the dismissal of this action.
The trial court, without conducting oral argument, entered an opinion and order granting
the motion to strike Dr. Richman as an expert witness, granting summary disposition in favor of
defendants, and dismissing plaintiff’s case with prejudice. Because MCL 600.2912d(1) did not
define “reviewed” or “supplied,” the trial court consulted the common dictionary definitions and
concluded that plaintiff’s proposed interpretation was “not reasonable in light of the plain
language, context, and purpose of the statute.” The trial court held there was no reasonable dispute
that plaintiff failed to comply with MCL 600.2912d(1), stating:
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Plaintiff’s expert has admitted that his averment—that his opinion was based on a
review of the Plaintiff’s records and notice of intent provided by Plaintiff’s
counsel—was not true at the time Plaintiff’s counsel submitted the affidavit of
merit. This is precisely the type of conduct the Legislature intended to prohibit
when it enacted MCL 600.2912d. In sum, considering the admissions of Dr.
Richman and Plaintiff’s counsel in the light most favorable to them, there can be
no reasonable dispute that Plaintiff failed to comply with the statutory
requirements.
As a result, the trial court struck Dr. Richman’s AOM under MCR 2.115(B) and Dr. Richman was
stricken as an expert witness. Because the trial court determined that plaintiff was “unable to
create a genuine issue of material fact as to the standard of care and causation,” summary
disposition was granted in favor of defendants under MCR 2.116(C)(10). The trial court also
exercised its inherent power, as explained in Maldonado v Ford Motor Co, 476 Mich 372, 376;
719 NW2d 809 (2006), to “dismiss Plaintiff’s complaint with prejudice as a sanction for Dr.
Richman signing the affidavit under penalty of perjury knowing that he had not in fact reviewed
Plaintiff’s records or the notice of intent” because “[s]uch conduct constitutes the perpetration of
fraud on the Court.” The court also noted that it had authority under MCL 600.611 and MCR
2.504(B)(1) to impose a sanction that includes dismissal, which was appropriate in this case. This
appeal by plaintiff followed.
Plaintiff argues that the trial court abused its discretion by (1) striking Dr. Richman as an
expert because he signed the AOM after telephone discussions about the case with plaintiff’s
counsel which constituted a sufficient review under MCL 600.2912d(1), and (2) dismissing
plaintiff’s case with prejudice which was not proportionate and just. We disagree.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews de novo whether the trial court properly interpreted and applied the
relevant statutes, including the statutory requirements for AOMs. Jones v Botsford Continuing
Care Corp, 310 Mich App 192, 199; 871 NW2d 15 (2015). Our purpose in reviewing questions
of statutory construction is to discern and give effect to the Legislature’s intent. Echelon Homes,
LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005). Our analysis begins by
examining the plain language of the statute; if the language is unambiguous, no judicial
construction is required or permitted and the statute must be enforced as written. Id. (citation
omitted).
This Court also reviews de novo a trial court’s decision regarding a motion for summary
disposition under MCR 2.116(C)(10), which tests the factual sufficiency of a claim. Sheridan v
Forest Hills Pub Sch, 247 Mich App 611, 620; 637 NW2d 536 (2001). Summary disposition
should be granted when “there is no genuine issue regarding any material fact and the moving
party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183;
665 NW2d 468 (2003).
-3-
In addition, “[t]rial courts possess the inherent authority to sanction litigants and their
counsel, including the right to dismiss an action. An exercise of the court’s ‘inherent power’ may
be disturbed only upon a finding that there has been a clear abuse of discretion.” Maldonado, 476
Mich at 388 (quotation marks and citations omitted). Likewise, a trial court’s decision to grant a
motion to strike an AOM is reviewed for an abuse of discretion. Kalaj v Khan, 295 Mich App
420, 425; 820 NW2d 223 (2012). “An abuse of discretion occurs when the trial court’s decision
is outside the range of reasonable and principled outcomes.” Id., citing Maldonado, 476 Mich at
388. Thus, when a trial court misapprehends the applicable law, an abuse of discretion occurs.
Kalaj, 295 Mich App at 425 (quotation marks and citations omitted).
B. AFFIDAVIT OF MERIT
Plaintiff first argues that the trial court erred in striking Dr. Richman as an expert witness
because he signed the AOM after telephone discussions about the case with plaintiff’s counsel
which constituted a sufficient review under MCL 600.2912d(1). We disagree.
“The plaintiff in a medical malpractice action bears the burden of proving: (1) the
applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate
causation between the alleged breach and the injury.” Cox ex rel Cox v Flint Bd of Hosp Managers,
467 Mich 1, 10; 651 NW2d 356 (2002). “Failure to establish any one of these four elements is
fatal to a plaintiff’s medical malpractice suit.” Estate of Horn by Stokes v Swofford, 334 Mich
App 281, 288; 964 NW2d 904 (2020). To initiate an action for medical malpractice, a plaintiff
must file a complaint and an affidavit of merit. Young v Sellers, 254 Mich App 447, 451; 657
NW2d 555 (2002). As stated in MCL 600.2912d(1):
The affidavit of merit shall certify that the health professional has reviewed
the notice and all medical records supplied to him or her by the plaintiff’s attorney
concerning the allegations contained in the notice and shall contain a statement of
each of the following:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of practice or care
was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or
health facility in order to have complied with the applicable standard of practice or
care.
(d) The manner in which the breach of the standard of practice or care was the
proximate cause of the injury alleged in the notice.
The parties do not dispute that plaintiff’s counsel reasonably believed Dr. Richman
qualified as an expert, and it is not contested that the AOM meets the statutorily required elements
listed in MCL 600.2912d(1)(a) through (d). Rather, defendants contend, and the trial court
concluded, that the AOM violated the statutory requirements and was invalid because Dr. Richman
did not personally review the NOI and plaintiff’s medical records before signing the AOM. In
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other words, although Dr. Richman signed the AOM certifying that he had “reviewed the notice
and all medical records supplied to him,” he did not, in fact, review any documents—and they
were not even provided to him by plaintiff’s counsel—before he signed the AOM. Thus, Dr.
Richman’s AOM contained perjury and its submission by plaintiff’s counsel constituted a fraud
on the court.
Plaintiff contended in the trial court, as he does on appeal, that verbal communication
between plaintiff’s counsel and Dr. Richman about the NOI and plaintiff’s medical records before
Dr. Richman signed the AOM was sufficient “review” under MCL 600.2912d(1). The trial court
disagreed with plaintiff’s interpretation of the “review” and “supply” requirements, as do we. The
court must give effect to the plain, ordinary, or generally accepted meaning of the terms used in
statutes. See Bartalsky v Osborn, 337 Mich App 378, 383; 977 NW2d 574 (2021) (citation
omitted). A lay dictionary may be consulted, as the trial court noted, but it really is not necessary
here. To “review” documents that were “supplied” generally means, at the bare minimum, to look
over and thoughtfully consider documents that were provided. How can a health professional
provide a reliable opinion regarding the applicable standard of care, its breach, and proximate
cause in a medical malpractice case without looking at and reading the plaintiff’s medical records?
As this Court noted in Kalaj, 295 Mich App at 427, “It is sufficient, under the plain language of
[MCL 600.2912d(1)], for the expert to indicate that he or she has reviewed the records provided
by the plaintiff’s counsel and that in light of those records, the expert is willing and able to opine
with respect to the defendant’s negligence consistently with the elements set forth in the statute.”
This is not a case in which Dr. Richman claimed a visual impairment and so someone on
his staff read to him verbatim the documents that were supplied to him by plaintiff’s counsel; no
documents at all were provided to Dr. Richman before he signed the AOM. Dr. Richman testified
that he did not review any materials before signing the AOM because plaintiff’s counsel indicated
an urgent need to file the AOM with the trial court. And Dr. Richman did not recall ever seeing
or receiving the NOI. We agree with the trial court’s conclusion—Dr. Richman’s AOM was
invalid for failure to comply with the requirements of MCL 600.2912d(1). Having telephone
conversations with a plaintiff’s attorney about the contents of the NOI and the plaintiff’s medical
records is insufficient to meet the requirements of MCL 600.2912d(1).
As this Court explained in Kowalski v Fiutowski, 247 Mich App 156, 163-164; 635 NW2d
502 (2001), both the affidavit of merit and the affidavit of meritorious defense are considered part
of the pleadings and can be stricken under MCR 2.115(B).1 Accordingly, the trial court’s decision
to strike the AOM was not an abuse of discretion and defendants’ motion to strike Dr. Richman as
an expert witness was properly granted. Without Dr. Richman as an expert witness, plaintiff would
be unable to establish the applicable standard of care and to show that defendants breached that
standard; therefore, the trial court did not err in granting summary disposition in favor of
defendants. See Gonzalez v St John Hosp & Med Ctr, 275 Mich App 290, 294; 739 NW2d 392
1
MCR 2.115(B) provides, in pertinent part, that a court “may strike from a pleading redundant,
immaterial, impertinent, scandalous, or indecedent matter, or may strike all or part of a pleading
not drawn in conformity with these rules.”
-5-
(2007) (“Expert testimony is required to establish the applicable standard of care and to
demonstrate that the defendant breached that standard.”)
C. DISMISSAL WITH PREJUDICE
Plaintiff also argues that the trial court erred in dismissing his case with prejudice as a
sanction for filing an invalid affidavit of merit. We disagree.
In support of his argument, plaintiff refers us to cases involving dismissal as a discovery
sanction for filing late witness lists and for failing to provide discovery but those cases are
inapplicable—that is not what happened in this case. In this case, plaintiff’s proposed expert
executed an affidavit containing a false statement and plaintiff’s counsel not only encouraged that
false statement, but then filed that false affidavit with his complaint. In other words, Dr. Richman
made a false statement in the affidavit of merit, that affidavit was required by law under MCL
600.2912d(1) to initiate a medical malpractice action, and plaintiff’s counsel knew that the
affidavit contained a false statement but filed it anyway in support of his lawsuit.
As this Court noted in Wood v Bediako, 272 Mich App 558; 727 NW2d 654 (2006):
To constitute a valid affidavit, a document must be (1) a written or printed
declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the
oath or affirmation of the party making it, taken before a person having authority
to administer such oath or affirmation. [Id. at 562-563 (quotation marks and
citation omitted).]
The affidavit of merit at issue in this case—a sworn statement—contained a significant falsehood.
In fact, the falsehood pertained to the very purpose for which an affidavit of merit is required by
statute—to prevent the filing of frivolous medical malpractice lawsuits. See Dorris v Detroit
Osteopathic Hosp Corp, 460 Mich 26, 47; 594 NW2d 455 (1999). MCL 600.2912d(1) requires
that the health professional certify, in effect, that in his or her opinion—an opinion that is based
on a thoughtful and considered review of the NOI as well as the facts as actually set forth in the
plaintiff’s medical records and not merely the plaintiff’s attorney’s cherry-picked version of the
relevant facts—that the applicable standard of practice or care was not met in the circumstances
of that particular case and caused the plaintiff’s claimed injuries. In simple terms, it is a sworn
statement executed by a person who can be confidently relied upon and trusted to know that the
medical malpractice case has merit. In this case, the fact that Dr. Richman did not actually and
personally review any documentation before certifying that plaintiff’s medical malpractice case
was meritorious defeated the very purpose of MCL 600.2912d(1). And it was not merely an
inadvertent mistake—it was an intentional misrepresentation of fact.
While the appropriate sanction for filing a deficient affidavit of merit is generally dismissal
without prejudice, Kirkaldy v Rim, 478 Mich 581, 586; 734 NW2d 201 (2007), that sanction is not
necessarily required in every circumstance involving an invalid affidavit of merit. And it is not
necessarily required in a circumstance like this one where the affidavit is not merely deficient but
deceptive. “A fraud is perpetrated on the court when some material fact is concealed from the
court or some material misrepresentation is made to the court.” Matley v Matley, 242 Mich App
100, 101; 617 NW2d 718 (2000). We agree with the trial court that a fraud was perpetrated on the
-6-
court under the circumstances of this case, i.e., a material misrepresentation was made to the court
by the filing of the particular affidavit of merit at issue. And plaintiff’s counsel was not only
complicit, but actually urged the misconduct by Dr. Richman—a medical and not a legal
professional. Even on appeal plaintiff’s counsel demonstrates a lack of understanding, arguing
that “[j]ustice seeks equity, fairness, due process, and trust in our legal system. So many technical
roadblocks stand in the way of justice.” What? Clearly, so-called “technical roadblocks” cannot
be overcome by claiming ignorance and perpetrating misconduct. The concept of an “affidavit”
is not a difficult one to grasp. In any case, plaintiff is correct that dismissal with prejudice is the
harshest sanction applied at law. We also acknowledge that such a sanction should be reserved
for suitably egregious circumstances. And under the circumstances of this case—which does not
involve a discovery violation—we conclude that the trial court did not abuse its discretion when it
exercised its inherent authority and dismissed plaintiff’s complaint with prejudice as a sanction for
the fraud that was perpetrated on the trial court. See Maldonado, 476 Mich at 388. The trial
court’s decision was not outside the range of reasonable and principled outcomes. See id.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
-7- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483293/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SUSAN A. GRESSA, UNPUBLISHED
November 10, 2022
Petitioner-Appellant,
v No. 359545
Tax Tribunal
INDEPENDENCE TOWNSHIP, LC No. 21-000547
Respondent-Appellee.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Petitioner appeals as of right the Michigan Tax Tribunal’s (MTT) final opinion and
judgment (FOJ), valuing the true cash value (TCV) of her home (the property) at $515,000, and
the state equalized value1 (SEV), and taxable value (TV) of the property, at $257,500. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner purchased the property in October 2020 for $535,000 in an arm’s-length
transaction. Shortly after closing, petitioner removed a shed from the property. Petitioner
answered a questionnaire from respondent which provided information for tax appraisal purposes.
Of relevance, petitioner noted that the property had a generator, a finished basement of
approximately 1,500 square feet, and a shed of about 100 square feet. Petitioner asserted she
answered this questionnaire the day after she closed on the property and relied on the property’s
online listing for her answers.
An assessor assessed the property’s SEV and TV as $201,400. Petitioner appealed the
assessment to the March 2021 Independence Township Board of Review (BOR), and provided a
mortgage appraisal at the BOR’s request. The BOR increased the SEV and TV to $267,500. The
BOR explained that the adjustment was “based upon the appraisal provided by the petitioner.”
That led to the filing of a petition to the MTT for review in which petitioner alleged that the BOR
1
The SEV is also known as the assessed value.
-1-
erred by considering the sale price when changing the property’s SEV. Petitioner claimed that she
paid too much for the property and argued that the mortgage appraisal did not necessarily indicate
the property’s TCV. She contended that the BOR’s SEV exceeded 50% of the TCV and failed to
uniformly assess the property like similar properties. Petitioner asserted that the property’s TCV
equaled $380,000, rendering the SEV of $190,000.
Petitioner argued that the property’s sale price could not be the sole factor used by the
assessor or BOR, when determining the property’s TCV. Regarding the BOR’s reliance on
petitioner’s mortgage appraisal, petitioner did not include the mortgage appraisal in her petition,
and only provided it when requested. When the BOR requested the appraisal, petitioner claimed
it unreliable, but the BOR requested petitioner send the appraisal anyway. Petitioner asserted that
the BOR based its entire valuation on this appraisal and had no legally permissible reason to change
the SEV.
Petitioner submitted a table and commentary highlighting her alleged valuation errors with
corrected values for the shed, the basement’s smaller square footage, the generator which she
brought from her old property, and a corrected value for the property’s effective age. Petitioner
claimed that the property had structural defects, including broken trusses, a roof problem, and a
bat and mice infestation in the attic, all of which necessitated additional costs not properly
considered by the assessment.
In response, respondent noted that many of the claimed erroneous valuations were provided
by petitioner in her responses to the questionnaire. It pointed out that petitioner never obtained a
demolition permit to remove the shed and that petitioner’s permit to install the generator listed the
generator as new. Respondent agreed to correct the valuation to reflect the proper effective age of
the generator, but explained that petitioner had denied entry to determine the generator’s age.
Respondent asserted that the property’s effective age was “reduced to reflect interior remodeling
and updates that were completed prior to Petitioner’s sale date.”
In rebuttal, petitioner argued that the comparable properties she chose were closer matches
to the property than those provided by respondent. Petitioner could not find anything requiring a
permit to remove the shed. Regarding respondent’s reliance on her questionnaire, petitioner
argued that she received the questionnaire the day after closing without explanation of its purpose
and had filled it out before the shed’s removal. Petitioner stated that she relied on the property’s
online listing for the 1,500-square-foot basement, but the listing overestimated the actual finished
square footage of the basement. Petitioner provided proof of the generator’s initial installation in
her old home in 2016.
The administrative law judge (ALJ) held a hearing in September 2021 and prepared the
proposed opinion and judgment (POJ) that proposed valuing the TCV of the property at $515,000,
and correspondingly the property’s SEV and TV at $257,500. Concerning petitioner’s argument
that the property was not uniformly assessed, the ALJ noted numerous unknown factors which
could impact the property’s value that prevented the ALJ from concluding that the property was
not uniformly assessed. The ALJ also noted the uniformity requirement of the constitution only
applied to the original assessment, which was “very much in line with the values identified in
Petitioner’s summary[,]” not the later assessments by the BOR or the MTT.
-2-
The ALJ agreed that respondent was precluded from relying on sale price alone when
assessing the property because such reliance would result in nonuniform assessments. The ALJ,
however, explained that “this holds true only for the assessment as originally established by the
assessing officer. It does not apply to the [BOR], or the [MTT], which is a quasi-judicial agency
charged with finding a property’s true cash value when the legality of the assessment is contested.”
The ALJ stated that the MTT was not bound by the same restrictions imposed on assessors but had
the obligation “to make an independent determination of value.” The ALJ considered that this
Court has “repeatedly held that while not presumptive, actual selling price is relevant in
determining ‘usual selling price’ and must be considered by the [MTT] in the absence of an auction
or forced sale[,]” citing Jones & Laughlin Steel Corp v Warren, 193 Mich App 348, 354; 483
NW2d 416 (1992), and Samonek v Norvell Twp, 208 Mich App 80; 527 NW2d 24 (1994).
Regarding the BOR’s reliance on the mortgage appraisal, the ALJ observed that neither
respondent nor the MTT were precluded from relying on the appraisal “simply because it was
prepared for mortgage purposes.” The ALJ agreed with petitioner that the appraisal was not
necessarily a reliable indicator of the property’s actual TCV, nor conclusive evidence of the
property’s value. The ALJ concluded that the appraisal had not been provided for the MTT’s
review, and therefore, the ALJ could not determine its reliability. The ALJ found the BOR’s value
unsupported by the record, and noted that, while respondent’s representative testified that the BOR
relied on other comparable sales in addition to the appraisal when assessing the property,
respondent’s letter to petitioner explaining its reasoning did not support that position, and even if
other alleged sales were considered, they were also not provided to the MTT for review.
Based on the evidence provided to the MTT, the ALJ determined that the cost approach
was not the best evidence of the property’s TCV or usual selling price. The ALJ found the sales
comparison or market approach the proper valuation method. The adjusted sales of the
comparables provided by petitioner supported the finding that the property was assessed at less
than 50% of its TCV by the assessor. “As a result, the [ALJ found] it unnecessary to address
Petitioner’s argument regarding errors on the property record card.” The ALJ explained that
petitioner failed to provide the MTT with sufficient detail of her analysis of her comparables and
did not explain how the comparables, some of which were over five miles away from the property,
were “sufficiently similar to properly be considered not only comparable to, but also competitive
with the subject property.”
The ALJ focused on the one comparable submitted by both parties which sold for $490,000
in September 2020, and $562,500 in June 2021. The ALJ determined the adjusted sale price of
the comparable property equaled $492,500. Because both parties used this comparable—the only
one in the property’s neighborhood—the ALJ gave it the most weight in the final value
determination of the property. Regarding the comparable property’s later sale, the ALJ determined
that numerous unknown factors could have impacted the comparable’s value and should not be
given any weight.
The ALJ also found that the sale of the property should be given weight in the final value
determination but noted that purchase prices are not presumptive TCVs for properties because
many factors impact the determination of a property’s sale price. The ALJ opined: “Actual selling
price is relevant in determining the ‘usual selling price,’ however, and ‘must be considered by the
[MTT] in the absence of an auction or forced sale[,]’ ” citing Samonek, 208 Mich App at 85; Jones
-3-
& Laughlin Steel Corp, 193 Mich App at 348. Petitioner bought the property for $535,000 after
the property was on the market for 19 days. The ALJ also considered petitioner’s alleged issues
with the property and calculated a TCV of $515,000.
Petitioner, in her exceptions to the POJ, asserted that various factual inconsistencies and
legal errors existed in the POJ, including that it erroneously: (1) determined that the BOR was not
required to adhere to the uniformity requirement because the BOR was not entitled to set the TCV
as the property’s sale price; (2) failed to note that respondent’s representative made a false
statement under oath disqualifying the testimony or at least calling it into question; (3) found
unnecessary to address petitioner’s argument regarding the alleged errors on the property record
card; (4) concluded that the MTT must consider the sale price of the property; and (5) found the
the cost approach the proper valuation methodology. Petitioner argued that the TCV should be
corrected to $399,000, with a corresponding SEV and TV of $199,500.
The MTT, in its FOJ, found that the ALJ properly considered the evidence when issuing
the POJ, and noted that “any errors purportedly committed by Respondent’s BOR are not
dispositive in the determination of this case” because “[t]hose purported errors, even if true, have
no bearing upon the [MTT’s] original jurisdiction or its obligation to determine the correct taxable
status of the property for the year at issue[,]” citing MCL 205.731. The MTT noted, while
petitioner claimed the cost approach more appropriate, the MTT defers to the fact-finder unless
presented with evidence which “clearly demonstrate[d] that the POJ contain[ed] errors of fact or
law.” The MTT determined that petitioner failed to establish her alleged factual errors and agreed
with the ALJ’s analysis using the sale-comparison approach and not the cost approach. The MTT
explained that the cost approach failed to best indicate the property’s value because of the
property’s age and the unknown extent of the property’s depreciation, especially in a case where
petitioner argued the record card contained erroneous values. The MTT determined that petitioner
failed to show good cause justifying modifying the POJ or granting a rehearing, and adopted the
POJ as its final decision, including the POJ’s finding that the property’s final TCV equaled
$515,000, and its final SEV and TV were $257,500.
II. PRESERVATION AND STANDARD OF REVIEW
“Generally, issues regarding the decision of the [MTT] are preserved for review by this
Court when they are raised, addressed, and decided by the [MTT].” Empire Iron Mining
Partnership v Tilden Twp, 337 Mich App 579, 595; 977 NW2d 128 (2021). The record indicates
that petitioner preserved her argument regarding whether the BOR’s consideration of the
property’s sale price required reversal. Respondent argues that petitioner never raised the
argument about an error in the MTT’s determination that the BOR’s errors were not dispositive,
but the MTT stated that in the FOJ, not the POJ, and therefore, it was not something to which
petitioner could respond. “[A] party also need not preserve an objection to ‘a finding or decision’
made by the trial court, MCR 2.517(A)(7)[.]” Glasker-Davis v Auvenshine, 333 Mich App 222,
227; 964 NW2d 809 (2020). This issue is properly considered by this Court for appellate review.
Similarly, petitioner’s argument that the FOJ should have considered respondent’s perjury
did not need to be preserved. Id. However, petitioner failed to directly assert this claim of error
in her statement of questions presented. “Independent issues not raised in the statement of
questions presented are not properly presented for appellate review.” Bouverette v Westinghouse
-4-
Electric Corp, 245 Mich App 391, 404; 628 NW2d 86 (2001). Nevertheless, petitioner, acting in
propria persona, is entitled to more leniency than an attorney. See, e.g., Estelle v Gamble, 429
US 97, 106-108; 97 S Ct 285; 50 L Ed 2d 251 (1976); Hein v Hein, 337 Mich App 109, 115; 972
NW2d 337 (2021). Because petitioner raised this argument before the MTT and given her in
propria persona appeal, we will consider this issue preserved for appellate review.
“Unless there is fraud, this Court’s review of MTT decisions is limited to determining
whether the MTT erred in applying the law or adopted a wrong legal principle.” West Mich Annual
Conference of the United Methodist Church v Grand Rapids, 336 Mich App 132, 137; 969 NW2d
813 (2021) (quotation marks and citation omitted). “Issues of statutory interpretation are reviewed
de novo.” Empire Iron Mining Partnership, 337 Mich App at 586 (quotation marks and citations
omitted). “Although agency interpretations of a statute are entitled to ‘respectful consideration,’
‘they are not binding on courts and cannot conflict with the plain meaning of the statute.’ ” Id.
(citation omitted). “We deem the [MTT’s] factual findings conclusive if they are supported by
competent, material, and substantial evidence on the whole record.” Liberty Hill Housing Corp v
Livonia, 480 Mich 44, 49; 746 NW2d 282 (2008) (quotation marks and citations omitted).
III. ANALYSIS
Petitioner argues that the MTT erred by not reversing the BOR’s decision changing the
property’s SEV to exceed 50% of its TCV. We disagree.
MCL 211.27(1) in relevant part defines TCV as:
the usual selling price at the place where the property to which the term is applied
is at the time of assessment, being the price that could be obtained for the property
at private sale, and not at auction sale except as otherwise provided in this section,
or at forced sale. . . .
* * *
In determining the true cash value, the assessor shall also consider the advantages
and disadvantages of location; quality of soil; zoning; existing use; . . . .
Under MCL 211.27a(1), pursuant to Const 1963, art 9 § 3, a property shall be assessed at 50% of
its TCV.
“The [MTT] is under a duty to apply its expertise to the facts of a case in order to determine
the appropriate method of arriving at the [TCV] of property, utilizing an approach that provides
the most accurate valuation under the circumstances.” Great Lakes Div of Nat’l Steel Corp v
Ecorse, 227 Mich App 379, 389; 576 NW2d 667 (1998) (citations omitted). “[TCV] is
synonymous with fair market value.” Id. (citation omitted). “The burden of proof is on the
petitioner to establish [TCV].” Id. Under MCL 205.737(3), the “assessing agency has the burden
of proof in establishing the ratio of the average level of assessments in relation to true cash values
in the assessment district and the equalization factor that was uniformly applied in the assessment
district for the year in question.” The MTT “has a duty to make its own, independent determination
of [TCV].” Great Lakes, 227 Mich App at 389 (citation omitted). “The [MTT] is not bound to
accept the parties’ theories of valuation. It may accept one theory and reject the other, it may reject
-5-
both theories, or it may utilize a combination of both in arriving at its determination of [TCV].”
Id. at 389-390 (citation omitted). The MTT reviews the BOR’s assessment de novo. Mich Props,
LLC v Meridian Twp, 491 Mich 518, 543; 817 NW2d 548 (2012).
“The rule in Michigan, as in many other states, is that the selling price of a particular piece
of property is not conclusive as evidence of the value of that piece of property.” Antisdale v
Galesburg, 420 Mich 265, 278; 362 NW2d 632 (1984) (citations omitted). MCL 211.27(6)
provides:
Except as otherwise provided in subsection (7), the purchase price paid in a
transfer of property is not the presumptive true cash value of the property
transferred. In determining the true cash value of transferred property, an assessing
officer shall assess that property using the same valuation method used to value all
other property of that same classification in the assessing jurisdiction. As used in
this subsection and subsection (7), “purchase price” means the total consideration
agreed to in an arms-length transaction and not at a forced sale paid by the purchaser
of the property, stated in dollars, whether or not paid in dollars.
In Antisdale, 420 Mich at 278-279, our Supreme Court explained:
The Legislature has commanded that property be assessed as its “usual selling
price”. The most obvious deficiency in using the sales price of a piece of property
as conclusive evidence of its value is that the ultimate sale price of the property, as
a result of many factors, personal to the parties or otherwise, might not be its
“usual” price. The market approach to value has the capacity to cure this deficiency
because evidence of the sales prices of a number of comparable properties, if
sufficiently similar, supports the conclusion that factors extrinsic to the properties
have not entered into the value placed on the properties by the parties.
Therefore, while a property’s sale price cannot be used alone as conclusive evidence of its TCV,
the MTT may use the sales-comparison approach in analyzing the property’s sale price. The sales-
comparison approach derives the TCV as follows:
To elaborate, under the sales-comparison approach, true cash value is derived by
analyzing recent sales of similar properties, comparing those properties with the
subject property, and adjusting the sales price of the comparable properties to
reflect differences. The adjusted sales prices should fall within a range and allow
the appraiser to estimate the true cash value of the subject property. Once
ascertained, the true cash value of the subject property itself is not adjusted.
[Meadowlanes Ltd Dividend Housing Ass’n v Holland, 437 Mich 473, 492; 473
NW2d 636 (1991) (emphasis omitted).]
Petitioner does not allege that the MTT erred in its de novo analysis of the property’s TCV
and SEV. Instead, petitioner argues that the MTT erred by failing to reverse the BOR’s valuation.
The record reflects that the MTT’s de novo analysis resulted in a different value than the BOR.
The MTT did not err by failing to reverse the BOR’s valuation of the property because it conducted
its own independent valuation which petitioner does not dispute on appeal.
-6-
Petitioner next argues that the MTT erred by determining that the BOR’s errors were not
dispositive of the case. We disagree.
As noted, the MTT reviews de novo the BOR’s assessment. Mich Props, LLC, 491 Mich
at 543. Further, “[t]he [MTT] is not bound to accept the parties’ theories of valuation. It may
accept one theory and reject the other, it may reject both theories, or it may utilize a combination
of both in arriving at its determination of true cash value.” Great Lakes, 227 Mich App at 389-
390 (citation omitted). In this case, the MTT conducted its own analysis using a separate valuation
theory and came to a different end result. There is nothing in the record indicating that the BOR’s
alleged errors influenced or impacted the MTT’s determinations. The MTT did not err when it
determined the BOR’s alleged errors were not dispositive.
Petitioner argues that the MTT erred by failing to consider respondent’s representative’s
alleged perjury. We disagree.
Petitioner contends that footnote 17 of the POJ establishes respondent’s perjury:
Respondent’s representative testified that the [BOR] relied on other
comparable sales in addition to Petitioner’s appraisal report in its value
determination, but this is not supported by Respondent’s April 14, 2021 letter to
Petitioner. Even assuming that such sales were considered, they likewise were not
provided for the [MTT’s] review.
Analysis of this footnote indicates that the MTT did not determine respondent’s representative
committed perjury, only that the testimony lacked evidentiary support and the other evidence the
BOR allegedly considered was not provided to the MTT for review. The MTT did not consider
the statement when conducting its independent analysis of the valuation of the property. Petitioner
has provided no other evidence of perjury, let alone perjury which impacted the MTT’s valuation
of the property. The MTT, therefore, did not err by failing to consider any alleged perjury by
respondent’s representative.
Lastly, petitioner’s argument regarding the State Tax Commission’s (STC) duties conflates
the STC with the MTT:
The [MTT] has exclusive and original jurisdiction over proceedings involving
direct review of a final decision, finding, ruling, determination, or order of an
agency relating to assessment, valuation, rates, special assessments, allocation, or
equalization, under the property tax laws of this state. The Legislature has vested
the [MTT] with jurisdiction over matters previously heard by the [STC] as an
appellate body. Thus, the [MTT] has jurisdiction to hear appeals from the decisions
of the [STC]. [Autodie, LLC v Grand Rapids, 305 Mich App 423, 428; 852 NW2d
650 (2014) (quotation marks, citations, and emphasis omitted).]
Further, the STC is governed by the General Property Tax Act, MCL 211.146 et seq.; whereas, the
MTT is governed by the Tax Tribunal Act, MCL 205.701 et seq. Petitioner appeals a decision of
-7-
the MTT, not the STC, and therefore, petitioner’s alleged errors and violations of the STC’s
statutory requirements lack merit.
Affirmed.
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
-8- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483287/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TREVOR CARRANZA, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 360182
Lenawee Circuit Court
MELISSA PRICE, Family Division
LC No. 21-048628-DS
Defendant-Appellant.
Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right an order granting plaintiff sole physical and legal custody of
RC, IP, and MC, establishing a parenting-time schedule for defendant at the discretion of the
Department of Health and Human Services (DHHS), and continuing defendant’s child support
obligations. Finding no error requiring reversal, we affirm.
I. BACKGROUND
Although this appeal stems from the parties’ custody case, the particular issues raised by
defendant concern the interplay between the custody case and three additional cases assigned to
the same circuit court judge: child protective proceedings, a personal protection order (PPO) case
initiated by plaintiff, and a second PPO case initiated by plaintiff’s significant other.
The pertinent legal proceedings began in January 2019 when DHHS sought jurisdiction
over RC, IP, and MC (the children), as well as defendant’s eldest daughter, JP.1 Plaintiff and
defendant were both respondents in that case. The trial court acquired jurisdiction with respect to
defendant on the basis of her admissions that JP and IP both had bruises as a result of her improper
supervision and that there had been domestic violence between herself and plaintiff while the
children and JP were present. Plaintiff admitted that he observed IP’s bruising, neglected to follow
through with RC’s therapeutic services, failed to take the children to well-child examinations, and
1
JP is not at issue in this custody case.
-1-
that the police had been called to the parties’ home several times over the years for domestic
disputes and violence. As it did with defendant, the trial court found plaintiff’s admissions
sufficient to establish jurisdiction with respect to plaintiff. The children and JP were quickly
returned to the parties, only to be removed again in April 2019 because they all exhibited signs of
abuse or neglect. Although the precise timing is unclear from the record, plaintiff and defendant
ended their relationship sometime thereafter.
The child protective proceedings continued to progress, and the trial court again gave
DHHS discretion to return the children with in-home services in early 2020. In the first stage of
the reunification, RC was placed with plaintiff and IP was placed with defendant. MC was then
placed with defendant as well. In August 2020, RC was placed with defendant at plaintiff’s
request. JP remained in foster care. In January 2021, however, the children were removed from
defendant and placed with plaintiff after both RC and IP were observed with facial and ear bruising
that raised concerns regarding physical abuse. The children remained in plaintiff’s care throughout
the remainder of the child protective proceedings.
In March 2021, plaintiff obtained a PPO against defendant on the basis of a petition alleging
that defendant went to the childrens’ respective childcare settings twice without approval, despite
the fact that she was not allowed any unsupervised contact with them. Plaintiff further alleged that
defendant was continuously looking for his vehicle at his residence and harassed him “through
message[s] about the placement and removal of [the] children.” Plaintiff’s significant other,
Chantae, likewise obtained a PPO against defendant at the same time because defendant
confronted her in public, made a scene, and also contacted the father of her children.
In July 2021, plaintiff initiated the instant case with a complaint for support. After a child
support order was entered, the parties appeared for a custody hearing in November 2021. The trial
court announced, without objection, that it would take judicial notice of the other proceedings.
Following brief testimony from the parties, the trial court addressed the statutory best-interest
factors on the record, finding that each factor either favored plaintiff, did not favor either party, or
was inapplicable. The trial court then awarded plaintiff sole physical and legal custody of the
children. Rather than specifying a particular parenting-time schedule for defendant, the trial court
ordered parenting time “as directed by [DHHS] until the temporary jurisdiction of the court in [the
child protective proceedings] is at its natural conclusion . . . .” The trial court encouraged the
parties to mediate the question of parenting time after the child protective proceedings ended, but
noted that it would entertain a motion regarding that issue if the parties could not reach an
agreement.
II. CUSTODY ORDER DURING CHILD PROTECTIVE PROCEEDINGS
Defendant first argues that the trial court erred by entering a custody order while the child
protective proceedings were ongoing. We disagree.
An issue is generally preserved for review if it was raised before or decided by the trial
court. Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). Because
defendant did not object to the trial court’s entry of a custody order on this basis below, nor did
the trial court directly address whether it could take action on the custody issue in light of the
procedural posture of the child protective proceedings, this issue is unpreserved. Arguably, this
-2-
issue is waived, see In re Sanborn, 337 Mich App 252, 263 n 3; 976 NW2d 44 (2021), but we may
review it for plain error. Marik v Marik, 325 Mich App 353, 359; 925 NW2d 885 (2018). “To
avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Id. (quotation marks and citation omitted). “Generally, an error affects substantial rights
if it caused prejudice, i.e., it affected the outcome of the proceedings.” Sanborn, 337 Mich App at
258 (quotation marks and citation omitted).
In support of this claim of error, defendant relies exclusively on this Court’s opinion in In
re AP, 283 Mich App 574; 770 NW2d 403 (2009). In that case, the trial court presiding over child
protective proceedings awarded a father joint legal custody and sole physical custody of the minor
child, despite an earlier order in a paternity action awarding sole legal and physical custody to the
mother. Id. at 577-578. This Court held that the trial court had authority to enter a new custody
order, but vacated the order because the trial court failed to comply with the procedural
requirements of the Child Custody Act (CCA), MCL 722.21 et seq., for modifying custody. Id. at
607-608. In reaching this conclusion, this Court discussed the potential conflict that can arise
when domestic relations cases governed by the CCA and child protective proceedings under the
juvenile code, MCL 712A.1 et seq., intersect, explaining:
Obviously, upon entry of a child custody order under the CCA, a child’s parents,
or other custodians, must abide by the terms of the custody order. However, once
a juvenile court assumes jurisdiction over a child and the child becomes a ward of
the court under the juvenile code, the juvenile court’s orders supersede all previous
orders, including custody orders entered by another court, even if inconsistent or
contradictory. MCR 3.205(C); see Krajewski v Krajewski, 420 Mich 729, 734-735;
362 NW2d 230 (1984). In other words, the previous custody orders affecting the
minor become dormant, in a metaphoric sense, during the pendency of the juvenile
proceedings, but when the juvenile court dismisses its jurisdiction over the child,
all those previous custody orders continue to remain in full force and effect. This
is necessarily the result because the prior domestic relations court never
relinquished its jurisdiction over the custody dispute, as the CCA vests a court with
continuing jurisdiction over the matter, [Harvey v Harvey, 470 Mich 186, 192; 680
NW2d 835 (2004)], nor was the prior court required to relinquish or waive its
jurisdiction in order for the juvenile court to exercise its jurisdiction, Krajewski,
420 Mich at 734-735; MCR 3.205(A). In addition, the juvenile court’s orders
function to supersede, rather than modify or terminate, the custody orders while the
juvenile matter is pending because the juvenile orders are entered pursuant to a
distinct statutory scheme that takes precedence over the CCA. See Krajewski, 420
Mich at 734-735. We note that during the duration of the juvenile proceedings,
while the parties subject to the custody order can move to modify the custody order,
any modification would remain superseded by the juvenile court’s orders. [Id. at
593-594 (footnote omitted).]
Nothing within In re AP supports the notion that a circuit court is precluded from entering
a custody order while child protective proceedings are pending. To the contrary, In re AP
demonstrates that simultaneous action in both proceedings is permitted with the understanding that
a custody order entered under the CCA will be superseded by orders entered in the child protective
-3-
proceedings until jurisdiction in the latter case is dismissed. Id. After such dismissal, the custody
order is given full force and effect, even if it alters the previously existing custodial arrangement.
Id.
The balance of defendant’s arguments regarding this issue—namely, that an award of
physical custody to plaintiff interferes with the stated goal of reunification in the child protective
proceedings and imposes on defendant the burden of proving proper cause or change in
circumstances to modify custody following dismissal of the child protective proceedings—speak
more to the question of prejudice caused by the custody order, rather than the trial court’s authority
to enter the challenged order. Defendant’s focus on these arguments misapprehends the applicable
plain-error standard of review. In the absence of a plain or obvious error, there is no need to
consider whether the allegedly erroneous order affected defendant’s substantial rights. Marik, 325
Mich App at 359.
III. JUDICIAL NOTICE
Defendant next argues that the trial court erred by taking judicial notice of the parties’ other
proceedings. We disagree.
Defendant did not preserve this evidentiary issue for review by objecting before the trial
court on the same grounds presented on appeal. Nahshal v Fremont Ins Co, 324 Mich App 696,
709-710; 922 NW2d 662 (2018). This issue is arguably waived, see Sanborn, 337 Mich App at
263 n 3, but we review unpreserved issues for plain error. Marik, 325 Mich App at 359. “To avoid
forfeiture under the plain error rule, three requirements must be met: 1) the error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Id. (quotation marks and citation omitted). “Generally, an error affects substantial rights
if it caused prejudice, i.e., it affected the outcome of the proceedings.” Sanborn, 337 Mich App at
258 (quotation marks and citation omitted).
MRE 201 governs judicial notice of adjudicative facts. MRE 201(a). A court may take
judicial notice of a fact that is “not subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” MRE
201(b). Allowing judicial notice of such matters in lieu of evidentiary proof is designed to advance
convenience and expediency in litigation. Winekoff v Pospisil, 384 Mich 260, 268; 181 NW2d
897 (1970).
Defendant contends that the trial court erred by taking judicial notice of the related
proceedings because MRE 201 authorizes judicial notice of facts—not, as defendant puts it, “a
judicially recognized case file without indication of what facts are to be judicially noticed.”
Defendant’s position is unpersuasive because it has long been held that a court is permitted to take
judicial notice of its own files and records. Knowlton v Port Huron, 355 Mich 448, 452; 94 NW2d
824 (1959) (observing that “a circuit judge may take judicial notice of the files and records of the
court in which he sits”); In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009) (reasoning
that the trial court could take judicial notice of previous termination of parental rights that occurred
before the same judge).
-4-
Defendant reasons that this rule is inapplicable in this case because the trial court was not
taking judicial notice of a particular identified order from other proceedings, but she does not cite
authority imposing any such limitation on judicial notice of court files and records. Defendant
directs our attention to the discussion of judicial notice in In re Stowe, 162 Mich App 27, 32-33;
412 NW2d 655 (1987).2 In that case, the respondent’s parental rights were terminated in a
stepparent adoption case on the basis that the respondent had not financially supported,
communicated with, or visited the children for at least two years. Id. at 29. The respondent argued
that the trial court erred by taking judicial notice of a judgment of divorce that included a support
order when MRE 1002, the “best evidence rule,” required admission of the original judgment. Id.
at 32. This Court acknowledged that the judgment was crucial to the case, but held that judicial
notice was properly taken. Id. at 32-33. Because the judgment had been entered by and was on
file with the same court, whether the respondent had been ordered to pay support “could be readily
and accurately determined by reference to a source whose accuracy cannot be questioned,” as
required for judicial notice under MRE 201(b). Id. at 33.
While the entirety of the related proceedings at issue in this case is not the type of specific,
concrete fact discussed in Stowe, this Court’s reasoning and reliance on MRE 201(b) is equally
applicable in this context. The trial court, i.e., with the same circuit court judge assigned all of the
proceedings, could readily and accurately determine what occurred and what evidence was
presented in the child protective proceedings and PPO cases by reference to the record in those
cases over which he presided. Thus, the trial court did not plainly err by taking judicial notice of
the related proceedings.
Moreover, even if the trial court had plainly erred in this regard, defendant has not
demonstrated entitlement to relief because she does not offer any persuasive argument regarding
how the alleged error affected her substantial rights. Defendant reasons only that she was placed
at a severe disadvantage by having to obtain transcripts from the child protective proceedings.
This “disadvantage,” while perhaps a bit inconvenient, did not affect her substantial rights by
impacting the outcome of the proceedings in the trial court. Sanborn, 337 Mich App at 258.
IV. BEST-INTEREST FACTORS
Lastly, defendant challenges several of the trial court’s findings regarding the statutory
best-interest factors. We decline to address this issue because the record available for our review
is insufficient. Moreover, the record before us indicates that any error that may have occurred was
harmless in any event.
“Under the Child Custody Act, MCL 722.21 et seq., ‘all orders and judgments of the circuit
court shall be affirmed on appeal unless the trial judge made findings of fact against the great
weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major
issue.’ ” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010), quoting MCL 722.28. The
trial court’s factual findings regarding the statutory best-interest factors are reviewed under the
2
Opinions of this Court decided before November 1, 1990, are not precedentially binding under
MCR 7.215(J)(1), but may be considered as persuasive authority. Jackson v Dir of Dep’t of
Corrections, 329 Mich App 422, 428 n 5; 942 NW2d 635 (2019).
-5-
great-weight-of-the-evidence standard. Dailey v Kloenhamer, 291 Mich App 660, 664; 811 NW2d
501 (2011). “A finding of fact is against the great weight of the evidence if the evidence clearly
preponderates in the opposite direction.” Pennington v Pennington, 329 Mich App 562, 570; 944
NW2d 131 (2019). The trial court’s ultimate decision regarding custody is reviewed for an abuse
of discretion. Dailey, 291 Mich App at 664. “In child custody cases specifically, an abuse of
discretion retains the historic standard under which the trial court’s decision must be palpably and
grossly violative of fact and logic.” Brown v Brown, 332 Mich App 1, 8; 955 NW2d 515 (2020)
(quotation marks and citation omitted).
The factors outlined in MCL 722.23 govern the trial court’s determination of a custody
arrangement in the best interests of the children. Bofysil v Bofysil, 332 Mich App 232, 244; 956
NW2d 544 (2020). Because the children had an established custodial environment with plaintiff
and the trial court’s custody order did not alter that environment, the trial court’s order had to be
supported by a preponderance of the evidence that the new custody order was in the children’s
best interests. Id. at 243. We emphasize again that presented with challenges to the trial court’s
best-interest findings like those advanced by defendant in this appeal, this Court must determine
whether the trial court’s findings were contrary to the great weight of the evidence—that is,
whether “the evidence clearly preponderates in the opposite direction.” Pennington, 329 Mich
App at 570. This standard necessary requires review of all the evidence before the trial court.
“[T]he appellant bears the burden of furnishing the reviewing court with a record that
verifies the basis of any argument on which reversal or other claim for appellate relief is
predicated.” Petraszewsky v Keeth (On Remand), 201 Mich App 535, 540; 506 NW2d 890 (1993).
MCR 7.210(B)(1)(a) places the responsibility for securing transcripts on the appellant. Kern v
Kern-Koskela, 320 Mich App 212, 229; 905 NW2d 453 (2017). When an appellant fails to do so,
this Court will not consider issues for which the missing transcripts are necessary. Id. See also
Myers v Jarnac, 189 Mich App 436, 444; 474 NW2d 302 (1991) (explaining that the appellant
“may not unilaterally make the determination that less than the full transcript of all proceedings is
required for the appeal”).
The trial court took judicial notice of the child protective proceedings and PPO cases, but
only the record from the custody case was initially transmitted to this Court. Defendant supplied
limited documents and transcripts from the other proceedings with her appellate filings, but the
limited nature of these documents and transcripts severely hinders effective review under the
appropriate standard. Even after this Court asked defendant to produce the record from the child
protective proceedings—the case in which most of the evidence supporting the trial court’s custody
decision was received—and took steps to secure the record directly from the trial court, we are
without a complete record. The child protective proceedings have been pending since January
2019, with numerous hearings occurring in the nearly three years that elapsed between that time
and the trial court’s oral ruling granting plaintiff custody of the children. Yet only six transcripts
have been made available for our review. Because we cannot accurately determine from an
incomplete record whether the trial court’s best-interest findings were against the great weight of
the evidence, we decline to reach the merits of this issue. See Kern, 320 Mich App at 230
(declining to review issue when absence of transcripts left this Court unable to discern trial court’s
reasoning); Shinn v Mich Assigned Claims Facility, 314 Mich App 765, 769; 887 NW2d 635
(2016) (noting that failure to secure necessary transcripts constitutes a waiver of related issues).
-6-
Moreover, while the limited record leaves us unable to properly review the trial court’s
individual best-interest findings, the record that is available suggests that the trial court’s decision
to grant plaintiff custody was an appropriate exercise of its discretion. Even if we accepted all of
defendant’s arguments regarding the specific best-interest factors set forth in MCL 722.23(a)
through (k), the result would be an approximately equal balance of factors favoring each party. 3
But defendant’s argument on appeal does not address MCL 722.23(l), which directs the court to
consider any other factor “relevant to a particular child custody dispute.” One of the key
considerations that the trial court assessed under this factor was that the children were at a
substantial risk of harm in defendant’s care, even after years of services designed to alleviate that
risk. The children were temporarily returned to defendant’s physical custody only to be removed
again after RC and IP suffered injuries that were highly indicative of abuse. The evidence suggests
that defendant either personally inflicted the bruises or, in the best-case scenario, was unable to
keep the children from harming themselves or harming each other.
Approximately three months before the custody hearing, defendant’s parenting-time visits
were suspended because her behavior during the visits was harmful to the children. The order was
prompted, in part, by the guardian ad litem’s motion to suspend defendant’s visits, which motion
was supported by written accounts of defendant’s troubling behavior during visits in June 2021
and July 2021. According to those accounts, defendant placed the children in stressful situations
by being confrontational with visit supervisors, yelling, and cursing in front of the children several
times. Moreover, she seemed incapable of caring for all of her children at the same time, leading
to frustrated outbursts or failure to notice that one or more children were engaging in unsafe
activities or behaviors. For example, defendant did not notice or intervene when RC put a small
toy in his mouth, when IP was banging his head on a couch, or when MC attempted somersaults
on a couch. On one occasion, it was reported that defendant “grabbed [RC’s] arm really tight,”
which is particularly concerning in light of the circumstances that led to the children’s previous
removals.
In stark contrast, the children—especially RC—seemed to flourish in the more structured
environment created by plaintiff. The children’s behavior improved and there was no apparent
risk of physical harm in his care.4 Viewing the totality of the circumstances and the record before
us, the trial court did not abuse its discretion by awarding plaintiff custody, regardless of whether
best-interest factors (a) through (k) should have been more evenly weighted than originally found
by the trial court.
V. CONCLUSION
3
Accepting defendant’s view of the best-interest factors, five factors would be equally weighted
(factors (a), (b), (c), (e), and (f)), two factors would not favor either party (factors (g) and (k)),
factor (i) would remain inapplicable, factors (d) and (h) would favor plaintiff, and factor (j) would
favor defendant.
4
The only evidence that the children were injured in plaintiff’s care concerned bruising on RC’s
outer thigh, where he liked to hit himself, sometime in February or March 2021. Plaintiff promptly
addressed the issue by purchasing padded shorts to protect RC.
-7-
Defendant has not shown entitlement to relief. We affirm.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
-8- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483296/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RELATIVE TIME FILMS, LLC and JEAN- FOR PUBLICATION
CLAUDE LEWIS, November 10, 2022
9:20 a.m.
Plaintiffs-Appellants,
v No. 359645
Wayne Circuit Court
COVENANT HOUSE MICHIGAN, COVENANT LC No. 19-012909-CB
HOUSE ACADEMY DETROIT, and YOUTH
VISION SOLUTIONS,
Defendants-Appellees.
Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.
RIORDAN, P.J.
Plaintiffs Jean-Claude Lewis and his film-production company, Relative Time Films, LLC,
appeal as of right the trial court’s order granting summary disposition of their two-count complaint
in favor of defendants Covenant House Michigan, Covenant House Academy Detroit, and Youth
Vision Solutions, implicitly pursuant to MCR 2.116(C)(10). On appeal, plaintiffs argue that the
trial court erred in its reasoning and that the other grounds for summary disposition raised by
defendants in the trial court, but not addressed below, are meritless. We disagree and affirm the
trial court.
I. FACTS
Plaintiff Jean-Claude Lewis is the sole shareholder of plaintiff Relative Time Films, LLC,
a film-production company. At the time relevant to this case, plaintiff Lewis was a member of the
board of directors of defendant Covenant House Academy Detroit, a public-school charter
academy. Defendants Covenant House Michigan and Youth Vision Solutions are related nonprofit
organizations that provide shelter, aid, and education to students in need.1 In about July 2015,
1
Defendants’ brief on appeal explains that
-1-
plaintiff Lewis learned that a student at Covenant House, Gena Turner, apparently had significant
artistic talent.2 In August 2015, plaintiff Lewis met with Turner, which resulted in her signing two
contracts during the meeting. The first contract provided that Turner would convey to plaintiffs
the exclusive licensing rights to a film production about her life story. 3 The second contract
provided that Motorwood Entertainment, LLC, would manage her affairs with regard to the film
Covenant House Michigan (“Covenant”) is a part of Covenant House, the
largest, mostly privately-funded consolidated agency in the Americas providing
housing, food, immediate crisis care, and an array of supportive services to children
and youth facing homelessness. . . . Covenant began its operations with community
service centers, outreach programs, and vocational programs, and within a few
years opened two homeless shelters in the Detroit area . . . that together can house
up to 75 at-risk youth.
Covenant’s mission has always been to give at-risk children and youth hope
by providing them housing, support services and education so that they can become
stable, confident and independent adults. As part of its mission, Covenant opened
Covenant House Academy Detroit (“CHAD”) in 2005. CHAD has three charter
schools in east and southwest Detroit for youth and young adults ages 15-22. The
students who attend CHAD are facing homelessness and do not have high school
diplomas. . . .
Youth Vision Solutions (“YVS”), which provides the education
management services for CHAD’s charter schools in Detroit, is a nonprofit
corporation that provides education management services to public school
academies in Michigan. YVS was created for the purpose of contributing to the
advancement of education by developing educational programs and initiatives that
are more effective than traditional curricula at preparing children, especially at-risk
children residing in urban centers, to succeed educationally, emotionally,
economically, and physically. . . .
2
Documents attached to plaintiffs’ February 28, 2020 initial disclosures indicate that Turner
became involved with defendants due to “many experiential stressors including chronic financial
problems, multiple changes in residences/schools and a paucity of familial support in affiliation
with their own personal struggles.” She originally had difficulty in school, but her grades
improved with additional educational services.
3
We note that although the first contract nominally referred only to plaintiff Lewis, it is undisputed
that it essentially applied to plaintiff Relative Time Films, LLC, as well. The “Option Purchase
Format” provided that Turner conveyed “the exclusive and irrevocable right to purchase the
motion picture, television and all allied, ancillary and subsidiary rights” to plaintiffs for $1.00. It
further provided that plaintiffs would pay Turner a 2.5% share of the purchase price of “a
development deal with a television network or a major studio.”
-2-
production. When entering the contractual arrangements, Turner, then age 19, did not have counsel
or any other type of representation during plaintiff Lewis’s meeting with her.
Within days, plaintiff Lewis’s conduct became the subject of controversy within the board
of directors of defendant Covenant House Academy Detroit, among others. Gerald Piro, executive
director of defendant Covenant House Michigan, and Michael Krystyniak, superintendent of
defendant Covenant House Academy Detroit, discussed the matter with plaintiff Lewis. They
urged plaintiff Lewis to either rescind the contracts or at least allow Turner the opportunity to
consult with an attorney to reconsider the contracts. In addition, they questioned whether plaintiff
Lewis inappropriately used his position and attendant influence over Turner to exploit her for his
personal gain.4 Ultimately, one or more of the defendants provided Turner with an attorney, which
eventually resulted in her successfully suing to void the management contract with Motorwood
Entertainment, LLC, in 2017.
The anticipated film about Turner’s life journey never was produced. Instead, in
September 2019, plaintiffs commenced the instant action against defendants, claiming that
defendants tortiously interfered with their production contract with Turner. Plaintiffs alleged that
“defendants were not happy that they were not going to be able to profit from the venture
themselves, and therefore engaged in a lengthy battle with plaintiffs that ultimately resulted in
[Turner] refusing to honor the contract that she had with plaintiffs.” They alleged that defendants
provided Turner with an attorney to “encourage[] her to sue to get out of the contract[s] she entered
into,” and “by the time defendants finally allowed the litigation to be dropped, the damage had
been done and [Turner] refused to co-operate in the making of a film about her life, causing a
breach of the contract that she had entered into with plaintiffs.” Accordingly, plaintiffs sought
damages exceeding $25,000 for the lost profits of the anticipated film.5
4
The parties’ briefs on appeal do not discuss whether plaintiff Lewis violated any written conflict-
of-interest agreement by having Turner sign the contracts at issue. Statements made by plaintiff
Lewis at the 2015 meeting with Piro and Krystyniak imply that board members of defendant
Covenant House Academy Detroit, including plaintiff Lewis, were required to disclose any
potential conflict of interest to the board. According to plaintiff Lewis, “I need to put yes or no
here whether I am receiving monies from the Covenant House, which I’m not, but it’s through her,
but I asked that question [of counsel] specifically just so I’ll know which one to check so it’s
accurate, but it doesn’t matter which one I check, it’s disclosure.” Thus, it appears that plaintiff
Lewis did not technically violate a written conflict-of-interest agreement with defendants, if one
existed. However, the general appearance of impropriety—plaintiff Lewis using his position for
personal financial benefit—is readily and starkly apparent. Further, we note that plaintiff Lewis,
as a member of the board of directors of defendant Covenant House Academy Detroit, a public-
school charter academy, presumably owed that institution a fiduciary duty under MCL 450.2541
of the Nonprofit Corporation Act, MCL 450.2101 et seq., or MCL 380.634 and MCL 380.1203 of
the Revised School Code, MCL 380.1 et seq., to avoid conflicts of interest.
5
Plaintiffs also maintained an abuse-of-process claim against defendants, but the trial court
dismissed that claim and plaintiffs do not pursue it on appeal.
-3-
Defendants moved for summary disposition under MCR 2.116(C)(4) (lack of subject-
matter jurisdiction), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material
fact). The trial court granted summary disposition in favor of defendants, reasoning that “it is
beyond factual dispute that Lewis’ rights under the . . . [production contract] have been terminated
in prior proceedings. Thus, Defendants could not be said to have interfered with Lewis’ rights
under that contract, which precludes liability on the theories pled in the complaint.”
This appeal followed.
II. STANDARD OF REVIEW
“We review a trial court’s decision on a motion for summary disposition under MCR
2.116(C)(10) de novo.”6 Candler v Farm Bureau Mut Ins Co of Mich, 321 Mich App 772, 777;
910 NW2d 666 (2017). “A motion under this court rule tests the factual sufficiency of the
complaint.” Id. (quotation marks and citation omitted). “In evaluating a motion for summary
disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions,
admissions, and other evidence submitted by the parties in the light most favorable to the party
opposing the motion.” Id. (quotation marks and citation omitted). “Where the proffered evidence
fails to establish a genuine issue regarding any material fact, the moving party is entitled to
judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
III. DISCUSSION
“In Michigan, tortious interference with a contract or contractual relations is a cause of
action distinct from tortious interference with a business relationship or expectancy.” Health Call
of Detroit v Atrium Home & Health Care Servs, Inc, 268 Mich App 83, 89; 706 NW2d 843 (2005).
“The elements of tortious interference with a contract are (1) the existence of a contract, (2) a
breach of the contract, and (3) an unjustified instigation of the breach by the defendant.” Id. at 89-
90. Damages is an element as well. Id. at 90.
With regard to the third element, “[o]ne who alleges tortious interference with a contractual
or business relationship must allege the intentional doing of a per se wrongful act or the doing of
a lawful act with malice and unjustified in law for the purpose of invading the contractual rights
or business relationship of another.” Derderian v Genesys Health Care Sys, 263 Mich App 364,
382; 689 NW2d 145 (2004) (quotation marks and citation omitted). “A wrongful act per se is an
act that is inherently wrongful or an act that can never be justified under any circumstances.”
Knight Enterprises v RPF Oil Co, 299 Mich App 275, 280; 829 NW2d 345 (2013) (quotation
marks and citation omitted). “If the defendant’s conduct was not wrongful per se, the plaintiff
must demonstrate specific, affirmative acts that corroborate the unlawful purpose of the
interference.” Id. (quotation marks and citation omitted). “No categorical answer can be made to
6
Although the trial court did not specify whether it granted defendants’ motion under MCR
2.116(C)(8) or (C)(10), because it considered matters outside the pleadings, we interpret the order
as granting the motion under subrule (C)(10). See Cuddington v United Health Servs, Inc, 298
Mich App 264, 270; 826 NW2d 519 (2012).
-4-
the question of what will constitute justification, and it is usually held that this question is one for
the jury.” Wilkinson v Powe, 300 Mich 275, 283; 1 NW2d 539 (1942). “Justification exists where
the defendant acted on an equal or superior right.” Greenwald v Greenwald, 480 Mich 1158, 1158
(2008) (quotation marks and citations omitted).
We agree with plaintiffs that there is a genuine issue of material fact concerning the first
and second elements of the claim.7 However, with regard to the third element, an unjustified
instigation of the breach by the defendant, while there is a genuine issue of material fact as to
whether defendants instigated the breach, there is no genuine issue as to whether the instigation
was unjustified, as we find defendants’ actions to be privileged.8
Section 770 of the Second Restatement of Torts, which is titled Actor Responsible for
Welfare of Another, provides as follows:
One who, charged with responsibility for the welfare of a third person,
intentionally causes that person not to perform a contract or enter into a prospective
contractual relation with another, does not interfere improperly with the other’s
relation if the actor
(a) does not employ wrongful means and
(b) acts to protect the welfare of the third person.
Comment b. to that section further explains:
Relation between actor and person induced. The rule stated in this Section
deals with cases in which, by ordinary standards of decent conduct, one is charged
with some responsibility for the protection of the welfare of another. It does not
apply to an officious assumption of responsibility. The welfare that is the subject
of the actor’s responsibility may be physical, moral or economic welfare. The
responsibility may exist in such relationships as those of parent, or person standing
in loco parentis, and child, of minister and member of his congregation, attorney
and client, teacher and pupil or of employer and employee. The rule stated is
frequently applicable to those who stand in a fiduciary relation toward another, as
7
We also agree with plaintiffs that the trial court had jurisdiction because the amount in
controversy exceeded $25,000, see Hodge v State Farm Mut Auto Ins Co, 499 Mich 211, 223-224;
884 NW2d 238 (2016), and that the trial court erred in reasoning that the production contract had
been voided in prior litigation. The record showed that the management contract, not the
production contract, had been voided in prior litigation.
8
Although the trial court did not grant summary disposition in favor of defendants on this basis,
we will not reverse the trial court when it reaches the right result for the wrong reasons. See Elia
Companies, LLC v Univ of Mich Regents, 335 Mich App 439, 446; 966 NW2d 755 (2021).
-5-
in the case of agents acting for the protection of their principals, trustees for their
beneficiaries or corporate officers acting for the benefit of the corporation.
In addition, comment e. explains:
Actor’s purpose. The rule stated in this Section applies to protect the
welfare of the person induced. If the actor’s conduct is not directed to this end, he
is not protected by this rule. His conduct is not so directed if he does not believe
that danger to that welfare is threatened by the relation that he seeks to sever or
prevent.
The facts of this case fit within § 770.9 Defendants, as the nonprofit entities responsible
for housing and educating Turner, a person who entered the Covenant House programs because of
her unfortunate family circumstances, impoverishment, homelessness, chronic school
absenteeism, and intellectual challenges, were “charged with responsibility for the welfare of a
third person.” Indeed, plaintiff Lewis himself acknowledged during the 2015 meeting that
defendants’ responsibility is “to take care of the kids here.” Although plaintiffs correctly argue on
appeal that defendants did not have a “fiduciary” duty to Turner, plaintiffs do not dispute that
defendants had a responsibility for Turner akin to a “teacher-pupil” relationship due to Turner’s
enrollment in the Covenant House programs and the fact she was living in Covenant House’s
residential program.
Further, the record shows that defendants did not “employ wrongful means,” such as fraud
or violence, to interfere with the production contract between plaintiffs and Turner. See Second
Restatement of Torts, § 767, comment c. (explaining that “fraud and physical violence” are
“improper” conduct), and plaintiffs do not suggest otherwise.
Finally, and most importantly, the undisputed evidence shows that defendants acted “to
protect the welfare of the third person.” Turner was not represented or aided by an attorney or
other representative when she signed the production contract with plaintiffs, and the 2015 meeting
is rife with instances of Piro explaining that defendants would prefer to provide Turner with an
attorney to help aid her understanding in this regard. For instance, Piro informed plaintiff Lewis
that
it’s a legal document and it does outline payment and proceeds and releasing
all rights to her name, to you and to your company. So it’s pretty professional. So
going to the -- on a professional level, um, she has had no one to advise her about
9
Although § 770 of the Second Restatement of Torts apparently has not yet been cited by a
Michigan court, this Court has cited and adopted related sections of the Second Restatement of
Torts that also address tortious interference with a contract. For example, in Winiemko v Valenti,
203 Mich App 411, 416; 513 NW2d 181 (1994), P.J. GRIFFIN, on behalf of this Court, discussed
and applied §§ 766B and 767 of the Second Restatement of Torts. See also Woody v Tamer, 158
Mich App 764, 775-776; 405 NW2d 213 (1987) (citing § 766 of the Second Restatement of Torts).
Following the reasoning in this line of cases, we adopt § 770 today.
-6-
this. So probably at the very least, she should’ve had counsel from an entertainment
attorney about what this all means.
So of course, Cynthia asked her, so what -- what did you think you signed?
She couldn’t repeat one piece of it. She couldn’t explain to her what -- she -- she
kept stuttering and stuttering. So my concern is the emotional impact and I know
it’s yours too, the emotional impact that this had on this young lady who is --
Later, Piro added:
[W]hen I read the part about the film, uh, I guess this whole thing has taken
me aback a little bit, because, you know, we’re so used to trying to manage the
affairs of these young people here. They have no credit rating, they have no social
security number . . . . And so now to have this very official, legal binding contract
put in front of this young lady, it makes us nervous that did she fully understand
what she was signing . . . .
Piro reiterated that “what I think would be fair would that she have legal representation
that we would provide to guide her. She has no idea about how much she should be getting or
should -- should she hit it big or she has no concept.”
In light of these statements, as well as the fact that defendants are nonprofit entities charged
with housing and educating students in need of assistance such as Turner, it is clear that defendants
acted “to protect the welfare of the third person,” i.e., Turner, by providing her with an attorney to
assess her contracts with plaintiffs. Therefore, in concert with § 770 of the Second Restatement
of Torts, there was no unjustified instigation of the breach by defendants because they were
privileged to do so.10
Plaintiffs’ only response to the above reasoning is to point out that Piro briefly stated during
the 2015 meeting that “you stand to profit from it, we don’t,” and Krystyniak briefly stated that
10
Plaintiffs contended at oral argument that defendants did not submit sufficient documentary
evidence to support their motion for summary disposition. Therefore, plaintiffs argue, defendants
necessarily failed to satisfy their burden as the moving parties. See Quinto v Cross & Peters Co,
451 Mich 358, 362; 547 NW2d 314 (1996). However, it never has been disputed during these
proceedings that defendants were responsible for Turner’s education and care. Plaintiffs
acknowledge in their complaint that Turner was a student at defendant Covenant House Academy
Detroit, and various documents submitted to the trial court provide additional detail about the
relationship between Turner and defendants. Moreover, plaintiffs have not disputed that the record
of the 2015 meeting with Piro and Krystyniak accurately reflects defendants’ stated motivations
for providing Turner with an attorney and otherwise becoming involved in the matter. The trial
court was permitted to consider this evidence when deciding the motion for summary disposition,
see MCR 2.116(G)(5), and we may now consider it on appeal. Despite some of the more nuanced
factual issues being less than clear from the record before us, the only factual issues with which
we are concerned today are undisputed by the parties.
-7-
“[t]he things that are on my mind are -- and I’m looking at it as if someone were looking from
outside . . . I think they’d be looking for like if anybody’s going to personally profit from this and,
you know, was it our position . . . that put us in the position to profit from it.” Plaintiffs argue that
these statements at least create a question of fact as to whether defendants sought to interfere with
the production contract because they were motivated by their own self-interest of avoiding a public
appearance of impropriety, and not motivated by Turner’s interests.11 This argument misses the
mark because this Court has stated, in the context of ordinary business competition, that “[i]t
generally does not constitute improper interference with a contract if a defendant simply takes the
initiative to gain an advantage over the competition.” Knight Enterprises, 299 Mich App at 282
(quotation marks and citation omitted). In other words, a defendant may, in some circumstances,
“interfere” with a contract for its own financial benefit without that motive being deemed
“unjustified.” It follows here that defendants were justified in “interfering” with a contract, i.e.,
the production contract, to protect their public reputation from accusations of self-dealing and
conflict of interest.12 This is particularly true where defendants are not profit-seeking corporate
entities, but nonprofit entities charged with the well-being, housing, and education of individuals
such as Turner.13
For these reasons, as articulated by § 770 of the Second Restatement of Torts, we conclude
that defendants were privileged to interfere with the production contract between plaintiffs and
11
Plaintiffs also argue that these statements suggest that defendants were motivated to obtain the
anticipated film’s profits for themselves. This, however, completely fails to consider the
statements in context. When the statements are read and understood in context, defendants were
concerned with the appearance of self-dealing and conflict of interest, not about directing the
profits to themselves.
12
The Alaska Supreme Court has explained that § 770 of the Second Restatement of Torts does
not apply when the defendant’s actions “were predominately motivated . . . by spite, malice, or
some other improper objective.” Geolar, Inc v Gilbert/Commonwealth Inc of Mich, 874 P2d 937,
941 (Ak, 1994). Defendants’ motivations in this case cannot be remotely characterized as “spite,
malice, or some other improper objective.”
13
We acknowledge that Turner was 19 years old when she signed the contracts, so defendants
were not in loco parentis to her at the time. In addition, there was no written fiduciary relationship
between any one of the defendants and Turner. However, defendants undoubtedly had a
supervisory relationship to Turner, perhaps even more so than that with a student residing at a
preparatory school or in a college dormitory. As noted, Turner experienced homelessness and
other personal issues before defendants provided her with shelter and educational opportunities,
which her family was unable to provide. Thus, while defendants were not in loco parentis to
Turner in the technical, legal sense when she signed the contracts because she was an adult at the
time, defendants had similar responsibilities for Turner. Indeed, the lower-court record clearly
shows that several of defendants’ teachers and other agents assumed a personal interest in her
stability and success. Moreover, although § 770 of the Second Restatement of Torts is “frequently
applicable” to fiduciary relationships, the existence of such a relationship is not a prerequisite to
invoking that section.
-8-
Turner. Accordingly, we find there is no genuine issue of material fact as to the third element of
plaintiffs’ tortious interference with a contract claim, and defendants were entitled to summary
disposition on this basis.14
IV. CONCLUSION
There is no genuine issue of material fact as to the third element of plaintiffs’ tortious
interference with a contract claim. As we adopt the reasoning of § 770 of the Second Restatement
of Torts, there was no unjustified instigation of the breach by defendants. Therefore, we affirm
the trial court on this alternate basis.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
14
We note that in their brief on appeal, plaintiffs cite multiple cases in which this Court or our
Supreme Court held that there was a genuine issue of material fact with respect to the third element
of the claim at issue. Each of those cases, however, involve ordinary competing economic interests
with no unusual relationship between the defendant and the third party. See, e.g., Patillo v
Equitable Life Assur Soc of US, 199 Mich App 450, 457-458; 502 NW2d 696 (1992) (involving
an at-will employment contract); Winiemko v Valenti, 203 Mich App 411, 413-414; 513 NW2d
181 (1994) (involving a partnership agreement). This case, in contrast, involves nonprofit entities
that are specifically charged with the well-being, housing, and education of students of
extraordinary circumstances and need.
-9- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483311/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re BABY BOY DOE, Minor.
PETER KRUITHOFF, FOR PUBLICATION
November 10, 2022
Petitioner-Appellant,
v No. 353796
Kalamazoo Circuit Court
Family Division
CATHOLIC CHARITIES OF WEST MICHIGAN, LC No. 2018-006540-NB
Respondent-Appellee,
and
ADOPTIVE PARENT NUMBER 1 and
ADOPTIVE PARENT NUMBER 2,
Appellees.
ON REMAND
Before: RONAYNE KRAUSE, P.J., and CAVANAGH and BOONSTRA, JJ.
BOONSTRA, J. (dissenting).
I dissent. Today, our system of justice should be hanging its head in shame. It has woefully
failed in the most fundamental of ways.
Petitioner—the presumed father of Baby Boy Doe—lost his parental rights to his newborn
child essentially because he did not see a legal notice that ran for one day in a newspaper published
in a city in which he did not live. Petitioner was never adjudicated to be an unfit parent; he was
never even given notice of the proceedings or an opportunity to correct any conditions that may
have been a basis for an adjudication of his parental rights. Nor was the termination of his parental
rights determined to be in Baby Boy Doe’s best interests. Nonetheless, the majority simply tells
petitioner that his “window of opportunity has long since closed.” From this record, it appears that
-1-
petitioner’s only hope would have been to have daily examined every newspaper in Michigan and
to have followed up on every notice of a surrendered newborn; either that or, as Justice WELCH
has suggested, to have filed a “notice of intent to claim paternity” of Baby Boy Doe before Baby
Boy Doe was born, despite the fact that Baby Boy Doe was born in wedlock and his paternity was
therefore otherwise presumed under the law, see In re KH, 469 Mich 621, 630; 677 NW2d 800
(2004); see also MCR 3.903(7)(a), and despite the fact that petitioner did, in fact, seek custody of
Baby Boy Doe even before he was born. Given the extraordinary nature of either of those
alternatives, petitioner would properly be forgiven if he were to perceive and take exception to the
“well, if only you had done more” sentiment expressed in the majority opinion issued in this case.
But what of the responsibility of the child placing agency under the Safe Delivery of Newborns
Law (SDNL), MCL 712.1 et seq., or more importantly, what of the responsibility of the state to
provide constitutionally sound safeguards before commandeering parental rights (or, to use the
majority’s hyperbolic lexicon, before ripping the child from his father’s arms)—without process,
due or otherwise?1
Little over eight years ago, our Supreme Court reaffirmed, at some length, the “vital interest
in preventing the irretrievable destruction of their family life” that parents possess. See In re
1
I acknowledge that, theoretically, petitioner could have filed a petition for custody of Baby Boy
Doe under the SDNL—even without seeing the legal notice—in Ottawa circuit court (petitioner
being located in Ottawa County). See MCL 712.10(1)(c). This would have obligated the trial
court to locate and contact the court that, unbeknownst to petitioner, issued the order placing Baby
Boy Doe with adoptive parents. MCL 712.10(2). However, I do not fault petitioner for failing to
take this anticipatory action. First, petitioner did in fact take action to seek custody of Baby Boy
Doe in Ottawa circuit court; he simply did so as part of his divorce action (which this Court held
to be proper, only to be reversed in that respect by our Supreme Court). Indeed, petitioner
successfully obtained an Ottawa circuit court order—which noted that it was suspected that Baby
Boy Doe had been surrendered under the SDNL—granting petitioner temporary custody of Baby
Boy Doe even before petitioner became aware of the separate proceeding in which his parental
rights were terminated. Petitioner reasonably could have expected that the Ottawa circuit court
was therefore obligated to “locate and contact the court [placing the newborn].” MCL 712.10(2).
Second, the record shows that petitioner was searching for his soon-to-be ex-wife and child, but
did not locate Baby Boy Doe’s mother until long after the 28-day deadline provided in
MCL 712.10(1) had passed. In other words, petitioner did not even know that (or when) Baby
Boy Doe had been born or surrendered until long after the relevant time period had expired.
According to our Supreme Court, a petition for custody under the SDNL would have been invalid
if it was filed before Baby Boy Doe’s birth. See In re Doe, ___ Mich ___; ___; 975 NW2d 486,
488-490 (2022). Petitioner therefore would have had to thread a narrow (and unknowable) needle
to have filed a valid petition for custody under the SDNL under these circumstances, without notice
of either the date or location of Baby Boy Doe’s birth. I would not lay the blame on petitioner for
the fact that, with the benefit of full information, hindsight, and time to reflect, we can think of
something else petitioner could have done to preserve his parental rights. As I will elaborate on,
those rights should have been better-protected by the legal system, particularly given the
fundamental nature of the parental rights at stake, and that system’s failures far outstrip any failures
arising out of petitioner’s inability to anticipate and prepare for every contingency.
-2-
Sanders, 495 Mich 394, 415; 852 NW2d 524 (2014), quoting Santosky v Kramer, 455 US 745,
753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). In Sanders, the Court repeatedly emphasized the
“importance of the private interest at stake” when the state seeks to terminate a parent’s rights to
his child, noting that it is a “core liberty interest” that “cannot be overstated,” a right “essential to
the orderly pursuit of happiness by free men” and “so deeply rooted that the fundamental liberty
interest of natural parents in the care, custody, and management of their child does not evaporate
simply because they have not been model parents.” Id. at 409, 410, 415 (quotation marks and
citations omitted). The Court also noted the presumption that fit parents act in the best interests
of their children, and that, simply put, “all parents are constitutionally entitled to a hearing on their
fitness before their children are removed from their custody.” Id. at 412 (quotation marks and
citation omitted). Yet in this case, petitioner (who had acted to obtain a court order—shortly before
the child’s mother surrendered him—enjoining any actions toward the adoption of Baby Boy Doe)
received no such hearing, because, alas, he missed a small printed notice published in the faraway
Grand Rapids Press on August 16, 2018, and did not act to file a new custody action under the
SDNL—notwithstanding his earlier request for custody in his complaint for divorce.
The issue in Sanders was, essentially, whether one parent could act unilaterally in a way
that allowed the state to interfere with, and potentially terminate, the other parent’s parental rights
without that parent ever having been judged unfit. Although raised in the context of a child
protective proceeding under the juvenile code, see MCL 712A.1 et seq., the Sanders Court held
that one parent’s admissions during the adjudication phase could not bind the other, because it
allowed the interference with and even termination of a parent’s rights without a prior
determination of unfitness. Sanders, 495 Mich at 420-422. The Sanders Court’s conclusion was
clear: “due process requires a specific adjudication of a parent’s unfitness before the state can
infringe the constitutionally protected parent-child relationship.” Id. at 422 (emphasis added).
Yet, no such adjudication was made in this case because petitioner missed a legal notice in a distant
newspaper. Instead, Baby Boy Doe’s mother acted unilaterally to terminate not only her own
parental rights, but to surreptitiously engineer the termination of petitioner’s fundamental parental
rights as well, aided by respondent’s de minimis efforts at providing notice by publication.
In my judgment, the minimal efforts made to provide notice in this case were unreasonable
under the SDNL; alternatively, the SDNL itself is unconstitutional as applied to a nonsurrendering
parent. But this Court, and our Supreme Court, have danced around the constitutional questions
in this case. See generally In re Doe, ___ Mich App ___; ___ NW2d ___ (2021) (Docket No,
353796) (Doe I), In re Doe, ___ Mich ___; ___; 975 NW2d 486, 488-490 (2022) (Doe II). In
doing so, the legal system has refused to unravel the mess that it created, and in the process it has
divested petitioner of his fundamental right to parent his own child—without so much as the most
minimal due process.
We did not address the constitutional issues in Doe I because they were not raised on appeal
at that time and, in any event, we had already determined that petitioner’s parental rights had been
improperly terminated. However, we noted that “petitioner has argued at various points in the
proceedings that the efforts undertaken by respondent to identify and locate him, in order to
provide him with notice of Baby Boy Doe’s surrender, were not reasonable, and that his motion to
unseal the records in this case was part of his effort to challenge the reasonableness of those
efforts.” Doe I, ___ Mich at ___, slip op at 10. Although we did not go so far as to hold that
respondent had not satisfied the notice requirements of the SDNL, we did note our disagreement
-3-
with the Kalamazoo Circuit Court’s apparent interpretation of MCL 712.72 as providing that
publication of a notice, for one day, which merely generically states the newborn’s date of delivery
and hospital location, in a newspaper published in a county in which neither parent resides,
constitutes “reasonable efforts to identify, locate, and provide notice of the surrender of the
newborn to the nonsurrendering parent.” MCL 712.7(f). Id., quoting MCL 712.7(f). We also
noted that, although petitioner’s counsel had attempted—in the trial court—to raise the issue of
the constitutionality of the SDNL, the trial court made clear that it would not address that argument,
informing counsel that he was “barking up the wrong tree for an unconstitutional statute.”
Consequently, the trial court never ruled on the constitutionality of the statute in the first instance.
I continue to believe that our interpretation of MCL 712.7 was correct. Our Supreme Court
in Doe II did not address that aspect of our reasoning. In a footnote to the majority opinion in Doe
II, however, the Supreme Court noted that it had asked the parties to brief the issue “whether the
application of the SDNL violates the due process rights of an undisclosed father.” Doe II, ___
Mich at ___ n 6; 975 NW2d 486, 489 n 6 (citation omitted). However, the Court ultimately did
not address the issue, stating:
We generally do not reach issues that were not raised and briefed in the lower
courts. See Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008)
(“Although this Court has inherent power to review an issue not raised in the trial
court to prevent a miscarriage of justice, generally a ‘failure to timely raise an issue
waives review of that issue on appeal.’ ”) (citations omitted); Booth Newspapers,
Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234 n 23; 507 NW2d 422 (1993)
(“This Court has repeatedly declined to consider arguments not presented at a lower
level, including those relating to constitutional claims. We have only deviated from
that rule in the face of exceptional circumstances.”) (citations omitted). This course
of action is particularly suited to this issue because it raises a constitutional question
of first impression not only for this state, but also for other states across the country.
Justice ZAHRA considers it “debatable” whether this issue was preserved in the trial
court. But aside from a single line by petitioner’s counsel at a hearing, petitioner
2
MCL 712.7 provides that a child placing agency shall:
(f) Within 28 days, make reasonable efforts to identify, locate, and provide notice
of the surrender of the newborn to the nonsurrendering parent. The child placing
agency shall file a written report with the court that issued the order placing the
child. The report shall state the efforts the child placing agency made in attempting
to identify and locate the nonsurrendering parent and the results of those efforts. If
the identity and address of the nonsurrendering parent are unknown, the child
placing agency shall provide notice of the surrender of the newborn by publication
in a newspaper of general circulation in the county where the newborn was
surrendered.
Although the trial court arguably made a determination in this regard as an implicit part of its
original ruling, the issue would have been most amenable to appellate review if the trial court had
made its findings explicit.
-4-
never raised or addressed the constitutionality of the statute throughout this
litigation, at least not until prompted by this Court. The constitutional issue,
therefore, has not been properly preserved or even presented to the Court. [Id.]
Chief Justice MCCORMACK, while agreeing with the result reached by the majority, also
expressed via a separate opinion her concerns regarding the constitutionality of the notice
requirements of the SDNL. See Doe II, ___ Mich at ___; 975 NW2d at 490 (MCCORMACK, C.J.,
concurring in part and dissenting in part) (“I write separately to express my deep reservations about
whether the statute’s notice-by-publication provision sufficiently protects the due-process rights
of nonsurrendering parents.”). And Justice ZAHRA, in a separate opinion joined by Chief Justice
MCCORMACK, noted that the SDNL provides “a dubious method of providing notice before
terminating a legal parent’s parental rights” and that “the SDNL is a highly flawed law because of
significant constitutional concerns that this Court should not sweep under the rug,” and concluded
that “the SDNL is unconstitutional as applied to legal parents.” Doe II, ___ Mich at ___; 975
NW2d at 492-493 (ZAHRA, J., concurring in part and dissenting in part).
Over and over again, the courts, while recognizing the serious constitutional issues in this
case, have declined to squarely address them; the appellate courts have hidden behind the issue-
preservation doctrine, noting that the prior court had not had an opportunity to address these issues,
and therefore it would be improper for us to do so. Issue preservation requirements are important;
litigants have a duty to give the trial court an opportunity to correct its alleged error. Smith v
Musgrove, 372 Mich 329, 339; 125 NW2d 869 (1964). But these requirements are not fundamental
constitutional principles, nor are they rigidly inflexible. Courts have stated, for example, that a
party should not be penalized by a lower court’s failure to address or decide an issue that was
properly before it. See Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d
499 (1994); see also Loutts v Loutts, 298 Mich App 21, 23-24; 826 NW2d 152 (2012). More
generally, courts have recognized that issue preservation requirements may give way to avoiding
the entry of an unconscionable decree, Kratze v Indep Order of Oddfellows, Garden City Lodge
No. 11, 442 Mich 136, 142; 500 NW2d 115 (1993), or to prevent manifest injustice. Smith v
Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006); see also Duffy v
Dep't of Natural Resources, 490 Mich 198, 209 n 3; 805 NW2d 399 (2011). And in this case,
petitioner did attempt to raise the issue in the trial court, but was promptly shut down.
The time has come to address the constitutional issues that the trial court previously
declined to address (and that this Court and our Supreme Court have consequently ducked).
Petitioner’s arguments concerning the adoption file and the Kalamazoo Circuit Court’s rulings
depended upon whether his parental rights were properly terminated under the law. And that
question in turn hinges on the constitutionality of the SDNL as applied to him. I would either
determine the constitutional issue now in this Court or, particularly in light of our Supreme Court’s
stated concern with addressing issues that were not argued and decided in the trial court (and
despite the lengthening of the overall proceedings), remand the matter to the trial court with
instructions to consider two questions, after allowing the parties an opportunity to brief and argue
them. First, whether respondent’s efforts to provide notice to petitioner indeed satisfied the
requirements of MCL 712.7(f). Second, if so, whether petitioner’s right to the due process of law
under the Michigan and United States Constitutions was violated by the application of the SDNL
to him as a nonsurrendering legal parent. To do other than to allow a full, on-the-merits resolution
-5-
of these issues serves only to uphold—indeed, to cement into law—the constitutional violation
that I believe has occurred.
I note also that the majority contends that there would be no real point in reinstating
petitioner’s parental rights and permitting him to petition for custody, because it posits that there
is no way that the best interests of Baby Boy Doe would be served by returning him to the custody
of his father. The majority makes no mention of the general presumption that a fit parent acts in
the best interests of his child, or of our Supreme Court’s clear statement that the state must
adjudicate a parent’s unfitness before terminating his parental rights. Sanders, 495 Mich at 420-
422. There is a reason that the best-interest phase of a child protective proceeding follows the
adjudicative phase and a finding that statutory grounds for termination have been proven; a court
is not permitted to skip to the end and wave away the procedural protections of a fundamental right
because the outcome appears to have become a fait accompli. The Sanders court rejected a similar
argument from the Department of Health and Human Services. See id. at 420 (“The possibility of
a fix at the back end is not sufficient to justify a lack of process on the front end. Rather, the state
must adjudicate a parent’s fitness before interfering with his or her parental rights.”). More
generally, courts are not in the habit of declining to hold a trial because it appears obvious that a
defendant is guilty, or skipping the adjudication and dispositional phases because a parent appears
so clearly unfit that we need not waste the time and energy. When dealing with fundamental rights
and due process concerns, it is more than a bit cavalier for a reviewing court to toss off a blithe
“well, you’d never be able to win at the hearing anyway.” And it must be especially galling for a
litigant to hear this from a legal system that created the complex tangle of laws, deadlines, and
precedents that resulted in him losing his child because he missed a needle-in-a-haystack notice in
an isolated newspaper to which he had no reason to subscribe. By contrast, the legal system has
often bent over backwards to allow parents the chance to retain their parental rights, even in the
face of significant evidence of parental unfitness, in child protective proceedings following a
petition to terminate parental rights under MCL 712A. See, e.g., In re HRC, 286 Mich App 444,
449; 781 NW2d 105 (2009) (vacating the trial court’s best-interest determination and remanding
for further proceedings regarding whether termination of the respondents’ parental rights was
warranted, despite affirming the trial court’s finding that the children had been sexually abused);
In re Frey, 297 Mich App 242, 245-248; 842 NW2d 569 (2012) (noting that the respondents had
been provided numerous services for 22 months prior to termination, and that the inciting incident
that led to these proceedings involved an automobile accident with the minor child in the car; the
respondent-father had been driving over 100 miles per hour while possessing a blood alcohol level
of 0.24 grams per 100 milliliters, the respondent-mother had taken narcotics immediately before
the accident and was aware that the respondent-father was inebriated before entering the car with
the child, and the accident had resulted in the respondent-father’s fifth drunk driving conviction in
the past two years). In fact, it is an essential feature of child protective proceedings that, absent
certain extreme aggravating factors, the state is obligated to make reasonable efforts to reunify a
child with his parents before even seeking termination of those rights; these efforts include the
creation of a comprehensive service plan that outlines steps that the state, as well as the parents,
will take to “rectify the issues that led to court involvement and achieve reunification.” In re
Hicks/Brown, 500 Mich 79, 86; 893 NW2d 637 (2017). See also MCL 712A.18f(3)(b) and (c);
MCL 17A.19a(2). Yet in this case, despite the fact that petitioner’s fitness as a parent was never
even challenged, the termination of his parental rights proceeded with merciless swiftness and with
a marked lack of concern for his right to parent his own child. Simply shrugging our shoulders
and saying “well that’s a different statute” is, in my view, entirely inadequate. Fundamental rights
-6-
are fundamental; they cannot be stripped away merely by the passage of a statute that effectively
deems them not to be so fundamental after all.
Further, the majority is, in my view, incorrect about the actions the trial court could take
if, in the course of adjudicating a custody petition under the SDNL, it were to determine that it
would be in Baby Boy Doe’s best interests to remain with his adoptive parents. To the extent that
MCL 712.14 allows termination of parental rights without a prior adjudication of parental
unfitness, it is clearly constitutionally infirm. See Sanders, 495 Mich at 422. However, in my
view, MCL 712.15 states quite clearly what the trial court may do following a best-interest hearing
under the SDNL:
Based on the court’s finding under [MCL 712.14], the court may issue an order that
does 1 of the following:
(a) Grants legal or physical custody, or both, of the newborn to the parent and either
retains or relinquishes jurisdiction.
(b) Determines that the best interests of the newborn are not served by granting
custody to the petitioner parent and orders the child placing agency to petition the
court for jurisdiction under [MCL 712A.2].
(c) Dismisses the petition.
MCL 712.15(b) thus explicitly pairs a determination that the best interests of the child are not
served by granting custody to a petitioning parent with an order that the child placing agency begin
a child protective proceeding via petition. In other words, the child placing agency would file a
petition alleging parental unfitness, and the case would proceed through the usual adjudicative,
dispositional, and if necessary, best-interest phases.3 Reading the statute as the majority impliedly
does merely loops us back to the same constitutional problem we’ve had all along: the termination
of parental rights without a prior determination of unfitness.
The majority also makes much of the fact that Baby Boy Doe has been with his adoptive
family for his entire life, and indeed has never met his father. That, of course, is the very injury
that petitioner alleges was done to his family by the child placing agency and a complicit court
system; yet, it is now deployed against him as a reason why he must simply walk away from his
child as it is ripped from his outstretched arms. It seems unlikely to me that, had petitioner taken
Baby Boy Doe from the hospital while his mother slept after giving birth, driven to another city
and surrendered him, and the case otherwise unfolded the same as it has in this case, that the
majority would so easily reach the same conclusion. In any event, by describing a parent’s efforts
to reunite himself with his child as the equivalent of treating the child “as a piece of chattel subject
to a claim for replevin,” the majority engages in a level of hyperbole that is nothing short of callous
3
While MCL 712.15(c) does allow for the dismissal of a petition, dismissal is not prescribed as
the action that follows an unfavorable best-interest determination. That circumstance is instead
addressed by MCL 712.15(b); it is reasonable to conclude that MCL 712.15(c) refers to the trial
court’s power to dismiss the petition for other defects.
-7-
and cruel. Over and over again in our society, in our movies, novels, and books, we are told,
consistent with accepted societal norms, that a good parent would move heaven and earth to reunite
himself with his child, that he would never give up, and that he would brave impossible odds and
fight any battle to have his child back in his arms. Yet here the majority deigns to treat petitioner’s
efforts as somehow vaguely distasteful, suggesting that he should really consider how, given the
passage of time, Baby Boy Doe is probably pretty settled with his new family and that maybe
petitioner is just being selfish. I could not endorse that sentiment or that language even if I agreed
with the majority’s legal analysis. Again, while the best interests of the child are indeed paramount
in child protective proceedings, we presume, absent evidence to the contrary, that a fit parent acts
in those interests. Id. at 420-422.
Given the refusal of our Supreme Court and this newly-comprised panel of this Court4 to
address the serious constitutional issues presented, I am left to wonder what Baby Boy Doe will
make of all of this as an adult—assuming that these proceedings are not forever kept from him.
Will he have grown up thinking that both of his parents chose to abandon him and give him up for
adoption, only to learn that his father in fact tried for years to be his parent, only to ultimately fail
because he didn’t see legal notice in a newspaper? What will he think of the adoptive parents that
persisted in their adoption despite knowing that his father did not want to give him up, or of the
child placement agency that refused to make any effort to identify and locate his father other than
running a small notice in a distant newspaper on a single day? What will he think of the legal
system that allowed a procedural tangle and issue preservation requirements to defeat his father’s
attempts to find him and unite together as a family? I fear that he might not think much of any of
us. The legal system has failed several people in this case, including the adoptive parents,
petitioner, and Baby Boy Doe himself. All I can hope for is that, going forward, we can make the
changes necessary to prevent this from ever happening again, and that possibly, at some later time,
Baby Boy Doe’s adoptive parents and his birth father might come to a solution outside the court
system that provides everyone a measure of peace. I must admit that my hope for the latter is slim
at best, but a solution apparently cannot be found from within the court system that has so utterly
and miserably failed everyone.
For these reasons, I dissent.
/s/ Mark T. Boonstra
4
Judge BECKERING, who joined the majority opinion of this Court in Doe I, now serves on the
United States District Court for the Western District of Michigan.
-8- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483301/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 356072
Macomb Circuit Court
MIGUEL MANSOUR, LC No. 2019-002347-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.
PER CURIAM.
Defendant appeals by right his guilty but mentally ill conviction, MCL 768.36, following
a jury trial, of first-degree premeditated murder, MCL 750.316(1)(a), for which the trial court
sentenced him to life imprisonment without parole. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant’s conviction arises from the fatal stabbing of Michael Shereda in Grant Park in
Utica on September 1, 2018.1 On that day, Shereda and his girlfriend, Debra Zoppi, and her family
were celebrating Zoppi’s granddaughter’s first birthday at a pavilion in the park. Zoppi took her
granddaughter for a walk around the park, where she observed defendant sitting on a bench
inhaling a substance from silver cannisters.2 Zoppi alerted Shereda to defendant’s presence
because defendant appeared to be getting high. Shereda approached defendant, intending to tell
him to “move on.” Numerous witnesses testified that within seconds of Shereda approaching
defendant, defendant attacked Shereda, stabbing him numerous times. Defendant ignored pleas
from bystanders to stop, but immediately stopped his attack and dropped his knife when confronted
1
The medical examiner testified that Shereda died from multiple stab and incised wounds.
2
Police officers determined that the cannisters contained nitrous oxide. These cannisters are
known as “whippets” and their contents can be inhaled for their intoxicating effect. See People v
Wood, 321 Mich App 415, 418 & n 1; 910 NW2d 364 (2017), rev’d on other grounds 503 Mich
981 (2019).
-1-
by the police. At trial, defendant asserted that he was not guilty because he was legally insane at
the time of the offense. Defendant presented two experts, Dr. Jennifer Whitmore and Dr. Steven
Miller, who both opined that defendant was legally insane at the time of the killing. The defense
experts testified to interviews with defendant in which he had professed a belief in a government
conspiracy involving other-worldly aliens and had stated that he believed Shereda was an alien
whom he had been commanded to kill. The prosecution argued that defendant may have suffered
from a mental illness, but that he was not legally insane at the time of the offense and that he
attacked Shereda because he was enraged that Shereda had confronted him. The jury rejected
defendant’s claim of insanity and found him guilty but mentally ill of first-degree premeditated
murder. The trial court denied defendant’s post-conviction motion for a new trial, in which he
raised the same issues that he now raises on appeal. This appeal followed.
II. PROSECUTORIAL MISCONDUCT3
Defendant argues that the prosecution conducted itself in a manner that denied him a fair
trial and that defense counsel was ineffective for failing to object to all of the prosecution’s
conduct. We disagree.
“In order to preserve an issue of prosecutorial misconduct, a defendant must
contemporaneously object and request a curative instruction.” People v Bennett, 290 Mich App
465, 475; 802 NW2d 627 (2010). As defendant acknowledges, defendant objected to “a portion”
of the prosecution’s questions during cross-examination. Therefore, these claims are preserved.
However, the majority of his claims of prosecutorial misconduct are unpreserved. We review
preserved claims of prosecutorial misconduct case by case by examining the challenged conduct
in context to determine whether the defendant received a fair and impartial trial. People v Brown,
294 Mich App 377, 382-383; 811 NW2d 531 (2011). Unpreserved claims of prosecutorial
misconduct are reviewed for plain error affecting defendant’s substantial rights. People v Roscoe,
303 Mich App 633, 648; 846 NW2d 402 (2014). We will not reverse if the alleged prejudicial
effect of the prosecutor’s conduct could have been cured by a timely instruction. People v Watson,
245 Mich App 572, 586; 629 NW2d 411 (2001).
Preliminarily, defendant’s overriding claim is that the prosecution’s conduct in this case
was similar to the prosecutor’s conduct in People v Evans, 335 Mich App 76; 966 NW2d 402
(2020), which this Court held required reversal. We disagree.
In Evans, this Court concluded that the prosecution repeatedly transgressed the “well-
established boundaries” of cross-examination during the prosecution’s cross-examination of the
defense experts, thereby denying the defendant a fair trial. Id. at 79. The Court observed that the
prosecution: (1) “repeatedly and gratuitously disparaged [the expert’s] qualifications and her
3
This Court has noted that the term “prosecutorial misconduct” has often been used to encompass
claims of inadvertent error that are more fairly presented as “prosecutorial error.” See People v
Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015). Here, some of defendant’s claims of
error allege actions that rise to the level of deliberate misconduct, while others allege conduct more
fairly presented as inadvertent error. For simplicity, we will use the umbrella term “prosecutorial
misconduct” to refer to all of these claims.
-2-
intelligence”; (2) “inaccurately characterized [her] opinions in a sarcastic, mocking, and inaccurate
manner” in order “to generate the jury’s scorn rather than to shed light on the issues presented by
the evidence”; (3) “repeatedly accused [the expert] in a badgering fashion of deliberately ignoring
or withholding evidence from the jury,” and (4) “accused [the expert] of being unable to distinguish
‘right from wrong.’ ” Id. at 93. This Court noted that “[n]o evidence underlay these attacks.” Id.
Specific examples included the prosecution equating the expert to the cartoon character “Lucy”
from the Peanuts comic strip, offering to “write [his question] out in Crayon” so the expert could
understand it, and insisting that the expert’s refusal to opine about the defendant’s sanity after the
murder was “hypocrisy.” Id. at 95, 99, 101. This Court described the prosecution’s cross-
examination as “brutal and improper.” Id. at 105.
We have reviewed the prosecution’s questions and commentary in this case, and they
simply do not rise to the offensive and aggressive level that supported a finding of misconduct in
Evans. There is nothing about the prosecution’s conduct in this case that is comparatively
disparaging or sarcastic to the cross-examination or commentary used in Evans. As defendant
notes, the prosecution did refer to the defense experts as “shrinks.” We agree with the trial court
that this term was not a necessarily mocking and disparaging reference, nor did it rise to the level
of a cartoonish depiction. Rather, as the court observed, the term is a known colloquialism for
mental health professionals. Moreover, the prosecution used this colloquialism only once, during
its opening statement, and subsequently referred to the experts on multiple other occasions as
psychologists. Defendant has not demonstrated that the prosecution’s single use of the term
“shrinks” during opening statement denied him a fair trial. Roscoe, 303 Mich App at 648.
Regarding cross-examination, defendant argues that the prosecution engaged in
misconduct by questioning his experts in a manner that suggested that their conclusions that
defendant was legally insane were based only on defendant’s statements that he made to them, and
that defendant could have been manipulative in making statements to support that he was insane.
Defendant provides page citations to the record, but he does not indicate which specific questions
he believes were improper. According to the record citations provided by defendant, the following
exchanges occurred during the prosecution’s cross-examination of Dr. Whitmore:
Q. I mean every time I point out maybe a slight difference, you say if that
is what he said, and if it is accurate.
My question to you is how important when you interview him, is his
accuracy in answers to you.
A. I collect information from a variety of sources. I don’t—
Self report is important, but I also look to see how consistent it is with other
information. I guess from other sources like police, family , and hospital records.
* * *
Q. Do you mostly go on what the patient tells you. [sic].
A. That is a part of the evaluation, but it always important to have collateral
or corroborating information. Obviously a person with severe mental illness has
-3-
their own specific symptoms that they experience in a certain way. And it is
virtually impossible for anyone else to know what is going on in someone’s mind
at all moments.
So you rely on their self report for these inner experiences. But then I also
see how that lines up against your knowledge of what legitimate mental illness
looks like, the pattern of legitimate mental illness and what others are observing.
If someone is saying they are having severe symptoms and everyone else
they look great to me, that is really questionable. Or if someone says I’m doing
great, and then the family reports a bunch of bizarre things that are occurring, then
you see inconsistency.
* * *
Q. But you certainly spent a lot of space talking about the statement he
makes to you in that previous evaluation and you give just the one word paranoid
from the police report set of facts.
So again it weighed unevenly from, I see in the report the jury is going to
see it themselves. You have one word up here and all this down here is what he
told you.
So you weighed even for the secondary report what was more important and
put in what he told you is more important.
A. I provided a summary of the data I thought was relevant to this homicide
evaluation.
Regarding Dr. Miller, defendant provides a citation to the record that contains the following
exchange:
Q. When we go to the foundation of all of this information we, go to what
he decides to say and what he decides not to say?
Defense counsel: Your Honor, that is argumentative.
The prosecutor: It is.
The court: It is a question.
A. Do we rely on what the defendant tells us.
Q. Right.
A. To make a determination of mental illness and insanity, yes.
“Vigorous and searching cross-examination is a powerful instrument for the ascertainment
of truth,” particularly in undermining the credibility of a witness or exposing frailties in a witness’s
-4-
recitation of the pertinent events. Evans, 335 Mich App at 90. Therefore, “it is appropriate that
cross-examiners be afforded wide latitude to do their job.” Id. Further,
“[o]ne of the elementary principles of cross-examination is that the party having
the right to cross-examine has a right to draw out from the witness and lay before
the jury anything tending or which may tend to contradict, weaken, modify or
explain the testimony of the witness on direct examination or which tends or may
tend to elucidate the testimony or affect the credibility of the witness.” [Id. (citation
omitted).]
“Effective and probing cross-examination of expert witnesses is particularly important in criminal
cases when expert testimony plays a pivotal role.” Id. However, “[a] defendant’s opportunity for
a fair trial can be jeopardized when the prosecutor injects issues broader than the defendant’s guilt
or innocence.” People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007).
We agree with the trial court that the prosecution was permitted to challenge the
information that the defense experts relied on in concluding that defendant was legally insane.
Both witnesses testified that defendant’s self-report informed their ultimate conclusion. When
questioning the witnesses, the prosecution used specific examples of when defendant’s statements
changed over time or were inconsistent with other information. Defendant does not explain why
the prosecution should have been prohibited from drawing out from the experts that they relied on
defendant’s self-reporting, which the evidence showed was not always consistent with his own
prior statements or other evidence, in order to weaken their conclusion that he was legally insane.
Indeed, this is the very purpose of cross-examination. Evans, 335 Mich App at 90.
The same holds true for defendant’s claim that, during cross-examination, the prosecution
improperly stated that the experts had ignored certain information from police reports about this
case and a prior home invasion involving defendant, and had ignored prior conclusions from other
mental health professionals who had examined defendant before this incident. The prosecution
questioned the experts about their consideration, or lack thereof, of defendant’s prior actions and
defendant’s history of aggressive responses when he felt challenged. The prosecution also
inquired into whether defendant had mentioned aliens in the prior attacks. This evidence was
discussed at trial, and both doctors explained how they reached their conclusions and how they
decided what to include in their reports. Defendant has not explained why the prosecution should
have been prohibited from questioning the experts about what they chose to include in their reports
or considered when reaching their conclusions, and why they did not consider other available
information. Defendant’s claimed insanity at the time of the offense was the crux of this case, and
probing cross-examination, on the basis of the evidence, of the defense experts who concluded that
defendant was legally insane was crucial. See Evans, 335 Mich App at 90. Because this evidence,
which was properly drawn out during cross-examination, was not improper, the prosecution could
properly refer to it during closing argument to urge the jury to reject the opinions of the defense
experts and conclude that defendant was not legally insane at the time of the offense. The
prosecution may argue the evidence and all reasonable inferences that arise from the evidence in
relationship to their theory of the case, and they need not state their inferences in the blandest
possible language. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995); Dobek, 274
Mich App at 66.
-5-
Defendant also argues that the prosecution misstated the law during closing argument by
suggesting that a person cannot be legally insane if he was only temporarily insane at the time of
the offense. We disagree with that characterization of the prosecution’s comments.
Defendant challenges these specific statements by the prosecution during closing
arguments:
Second, the Defendant has proven by a preponderance of the evidence that
he was mentally ill at the time, and defined term for you at the time of the crime.
We have never doubted that he is mentally ill. I agree with Dr. Whitmore
and with Dr. Miller on all of those substantial factors that go into the fact that he
was delusional, though I have to disagree with Dr. Miller. I don’t understand
insanity from his point. He is telling you that you can jump in and out of insanity.
You can be insane for this and then no, I’m not insane. That is not how this works.
That is not how any of this works.
If I borrow the Geico commercial that is not insanity, it is not that simple.
“A prosecutor’s clear misstatement of the law that remains uncorrected may deprive a
defendant of a fair trial.” People v Grayer, 252 Mich App 349, 357; 651 NW2d 818 (2002), lv
den 468 Mich 856 (2003). Here, however, the prosecution, when making the challenged
comments, was bringing the jury’s attention to defendant’s decision-making and changes in his
behavior at certain times. For example, shortly after making the challenged remarks, the
prosecution mentioned the examples of when defendant “is normal” and then changed his behavior
when he wanted something. The prosecution did not state that the jury could not find that
defendant was insane at the time of the offense if it determined that he was only temporarily insane;
rather, the prosecution merely argued from the evidence that defendant was acting in a deliberately
manipulative, rather than insane, manner.
Moreover, to the extent that the prosecution’s argument could be perceived as improper,
an erroneous legal argument can be cured if the jury is correctly instructed on the law. Id. at 357.
In this case, before the presentation of any evidence, the trial court instructed the jury that the court
was responsible for instructing it on the law, and that the jury must accept the law as given to it by
the court. After closing arguments, in its final instructions, the trial court instructed the jury that
the lawyers’ comments are not evidence, and reminded the jurors of their oath to return “a true and
just verdict based only on the evidence and [the court’s] instructions on the law.” The court also
instructed, “It is my duty to instruct you on the law. You must take the law as I give it to you. If
a lawyer says something different about the law, follow what I say.” The court reiterated, “your
job is . . . to apply the law as I give it to you[.]” The court thereafter accurately instructed the jury
on legal insanity. Defendant does not dispute that the trial court properly instructed the jury in this
regard. Jurors are presumed to have followed their instructions, People v Breidenbach, 489 Mich
1, 13; 798 NW2d 738 (2011), and defendant has not provided any basis for concluding that the
jurors failed to do so in this case.
Defendant also lists several other comments or words used by the prosecution that he
contends require reversal, but does not provide any analysis of the allegedly prejudicial effect of
-6-
the challenged statements. “An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627,
640-641; 588 NW2d 480 (1998). In any event, as observed by the trial court, the trial court
instructed the jury that the lawyers’ questions, statements and arguments are not evidence, that the
jurors are the sole judges of witness credibility, and that the jury was to follow the court’s
instructions. The trial court’s instructions were sufficient to dispel any possible prejudice and to
protect defendant’s substantial rights. Breidenbach, 489 Mich at 13; People v Long, 246 Mich
App 582, 588; 633 NW2d 843 (2001).
Defendant also argues that defense counsel was ineffective for failing to object to all of the
prosecutor’s questions and commentary. Because we find no prosecutorial misconduct warranting
reversal occurred, defense counsel’s failure to object was not objectively unreasonable. Failure to
advance a “futile objection does not constitute ineffective assistance of counsel.” People v
Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that defense counsel was ineffective by referring to a verdict of
guilty but mentally ill as a “compromise” during closing argument. We disagree.
“Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016). “To demonstrate ineffective assistance of trial counsel, a defendant must show that
his or her attorney’s performance fell below an objective standard of reasonableness under
prevailing professional norms and that this performance caused him or her prejudice.” People v
Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). “To demonstrate
prejudice, a defendant must show the probability that, but for counsel’s errors, the result of the
proceedings would have been different.” Id. The effective assistance of counsel is presumed, and
defendant bears the burden of showing deficient conduct and the resulting prejudice. Roscoe, 303
Mich App at 644. “Reviewing courts are not only required to give counsel the benefit of the doubt
with this presumption, they are required to ‘affirmatively entertain the range of possible’ reasons
that counsel may have had for proceeding as he or she did.” People v Gioglio (On Remand), 296
Mich App 12, 22; 815 NW2d 589 (2012) (citation omitted), vacated in part on other grounds 493
Mich 864 (2012). “[A] reviewing court must conclude that the act or omission of the defendant’s
trial counsel fell within the range of reasonable professional conduct if, after affirmatively
entertaining the range of possible reasons for the act or omission under the facts known to the
reviewing court, there might have been a legitimate strategic reason for the act or omission.” Id.
at 22-23. The defendant has the burden of establishing the factual predicate of his ineffective-
assistance-of-counsel claim. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).
Defendant argues that the emphasized statement in defense counsel’s closing argument
constituted ineffective assistance of counsel:
Now you will reach a verdict. The Court will give you a verdict form and
they will go through the possible verdicts, guilty of murder one, not guilty of
murder one, not guilty by reason of insanity.
-7-
You can also find him guilty but mentally ill on murder one, as well as
murder two and manslaughter. I’m not asking you to consider guilty but mentally
ill. It’s a compromise. If I have proven that he has a mental illness at the time of
the offense which I have, I have sufficiently proven to you that he was insane at the
time. I have submitted objective evidence. Doctor testimony, historical evidence,
evidence of the act itself. Interpret those with the presumption of innocence in
mind. Make the prosecution first prove their case beyond a reasonable doubt, then
look at my evidence. When you look at my evidence it is supported by everything,
by the history, by the doctors, by the act itself. What took place before the incident.
What took place during the incident. What took place after the incident. All the
interviews all point conclusively to a verdict of not guilty by reason of insanity.
* * *
Look at all the evidence. After you looked at all the evidence, the verdict
can only be not guilty by reason of insanity. Thank you. [Emphasis added.]
Defendant has not overcome the strong presumption that defense counsel’s reference to a
verdict of guilty but mentally ill as a “compromise” was strategic. Defense counsel did not ask
the jury to return a verdict of guilty but mentally ill, but argued that, on the basis of the evidence,
the verdict should be not guilty by reason of insanity. Therefore, defendant’s contention that
defense counsel somehow argued for a compromise verdict or admitted defendant’s guilt is
inaccurate. Further, viewing defense counsel’s use of the term “compromise” in context, it is
apparent that defense counsel did not mischaracterize a verdict of guilty but mentally ill “as a lesser
offense” or “suggest[] the possibility of lesser punishment.” Rather, defense counsel urged the
jury not to return a verdict of guilty but mentally ill because the defense had “sufficiently proven
to [the jury] that [defendant] was insane at the time.” Defense counsel then discussed the evidence
that the defense had presented at trial to support a verdict of guilty by reason of insanity. In sum,
counsel reasonably chose to discuss the evidence supporting the defense theory and in fact urged
the jury not to compromise and return a verdict of guilty but mentally ill because the defense had
proven its case. Decisions regarding how to argue are presumed to be matters of trial strategy.
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). “This Court does not second-
guess counsel on matters of trial strategy, nor does it assess counsel’s competence with the benefit
of hindsight.” People v Foster, 319 Mich App 365, 391; 901 NW2d 127 (2017) (quotation marks
and citation omitted). “The fact that trial counsel’s strategy may not have worked does not
constitute ineffective assistance of counsel.” People v Stewart (On Remand), 219 Mich App 38,
42; 555 NW2d 715 (1996). Defendant was not established that defense counsel’s conduct was
objectively unreasonable or prejudiced the proceedings against him.
IV. GREAT WEIGHT OF THE EVIDENCE
Defendant also argues that he is entitled to a new trial because the great weight of the
evidence showed that he was legally insane at the time of the killing. We disagree.
A new trial may be granted if a verdict is against the great weight of the evidence.
MCR 2.611(A)(1)(e). We review for an abuse of discretion a trial court’s decision denying a
motion for a new trial on the grounds that the verdict was against the great weight of the evidence.
-8-
People v Abraham, 256 Mich App 265, 269; 662 NW2d 836 (2003). In evaluating whether a
verdict is against the great weight of the evidence, the question is whether the evidence
preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the
verdict to stand. People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998); People v Unger,
278 Mich App 210, 232; 749 NW2d 272 (2008). A verdict may be vacated only when it “does not
find reasonable support in the evidence, but is more likely to be attributed to causes outside the
record such as passion, prejudice, sympathy, or some extraneous influence.” People v DeLisle,
202 Mich App 658, 661; 509 NW2d 885 (1993) (citation omitted). Absent compelling
circumstances, the credibility of witnesses is for the jury to determine. See Lemmon, 456 Mich at
642-643.
The prosecution’s theory at trial was that defendant was not legally insane at the time he
killed Shereda. A defendant is guilty of first-degree murder if it determined, beyond a reasonable
doubt, that he committed a “willful, deliberate, and premeditated killing.” MCL 750.316(1)(a).
Defendant does not challenge the elements of first-degree premeditated murder, only the jury’s
rejection of his affirmative defense that he was legally insane at the time of the murder.
MCL 768.21a(1) states, in relevant part:
[i]t is an affirmative defense to a prosecution for a criminal offense that the
defendant was legally insane when he or she committed the acts constituting the
offense. An individual is legally insane if, as a result of mental illness . . . that
person lacks substantial capacity either to appreciate the nature and quality or the
wrongfulness of his or her conduct or to conform his or her conduct to the
requirements of the law. Mental illness or having an intellectual disability does not
otherwise constitute a defense of legal insanity.
Defendant’s principal argument is that the jury’s verdict is against the great weight of the
evidence because the defense presented two experts who opined that he was legally insane at the
time of the offense, whereas the prosecution failed to introduce any experts or otherwise effectively
challenge the defense experts’ conclusions regarding defendant’s mental state. However, as
observed by the trial court, defendant had the burden of proving his insanity defense by a
preponderance of the evidence, MCL 768.21a(3), and “[t]he prosecutor was not required to present
any evidence” on the matter. Evans, 335 Mich App at 85-86. “And ‘if a defendant produces
sufficient evidence of the elements of [an affirmative] defense, then the question whether the
defendant has asserted a valid defense is for the jury to decide.’ ” Id. at 86 (citation omitted).
Therefore, “the prosecution’s failure to put forward expert testimony did not render the evidence
supporting [the defendant’s] sanity insufficient as a matter of law.” Id.
Additionally, defendant’s great-weight argument also focuses on his expert witnesses’
credibility. Questions regarding the credibility of witnesses, however, are not sufficient grounds
for granting a new trial. Lemmon, 456 Mich at 643. Moreover, “a jury is entitled to disbelieve an
expert witness’s testimony, even though the testimony is unrebutted or uncontradicted by other
expert testimony.” Evans, 335 Mich App at 86 (citation omitted). Here, the prosecution did
challenge the conclusions of defendant’s experts during cross-examination, as discussed in Part II
of this opinion.
-9-
A reviewing court should ordinarily defer to the jury’s determination of credibility “unless
it can be said that directly contradictory testimony was so far impeached that it ‘was deprived of
all probative value or that the jury could not believe it,’ or contradicted indisputable physical facts
or defied physical realities[.]” Lemmon, 456 Mich at 644-646 (citation omitted). That is not the
case here. The fact that defendant disagrees with the jury’s weighing of his experts’ conclusions
does not warrant the unusual step of overriding the jury’s credibility determination. It was up to
the jury to assess the weight and reliability of the defense experts. The evidence does not
preponderate so heavily against the jury’s verdict that it would be a miscarriage of justice to allow
the verdict to stand. Accordingly, the jury’s verdict is not against the great weight of the evidence
and defendant is not entitled to a new trial on this basis. Id. at 627.
V. CUMULATIVE ERROR
Defendant also argues that the cumulative effect of the prosecution’s conduct and defense
counsel’s errors previously discussed in this opinion requires reversal. We disagree. We review
a claim of cumulative error to determine whether a combination of errors denied the defendant a
fair trial. Dobek, 274 Mich App at 106. “The cumulative effect of several errors can constitute
sufficient prejudice to warrant reversal even when any one of the errors alone would not merit
reversal,” but this Court will not grant a new trial unless the cumulative effect of such errors
“undermine[s] the confidence in the reliability of the verdict.” Id. “Absent the establishment of
errors, there can be no cumulative effect of errors meriting reversal.” Id.
We have rejected defendant’s claims of prosecutorial misconduct and ineffective assistance
of counsel. Because defendant has not identified any error, let alone several errors, that
undermined the reliability of the verdict, there can be no cumulative effect of errors requiring
reversal. Id.
VI. MANDATORY LIFE SENTENCE
Regarding his sentence of life without parole (LWOP), defendant argues that, given the
verdict of guilty but mentally ill, the imposition of the statutory LWOP sentence violates both US
Const, Am VIII, and Const 1963, art 1, § 16, because the mitigating factor of mental illness was
not considered. We disagree. We review constitutional issues de novo. People v Harris, 499
Mich 332, 342; 885 NW2d 832 (2016).
“The Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art 1,
[4]
§ 16, whereas the United States Constitution prohibits cruel and unusual punishment, US Const,
Am VIII.[5]” People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011). “If a punishment
passes muster under the state constitution, then it necessarily passes muster under the federal
constitution.” Id. (citation and quotation marks omitted). Whether a penalty or sentence imposed
4
The Michigan Constitution provides that “cruel or unusual punishment shall not be inflicted[.]”
Const 1963, art 1, § 16.
5
The United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” US Const, Am VIII.
-10-
against a defendant can be considered cruel or unusual is to be determined by a three-pronged test
including: “(1) the severity of the sentence imposed and the gravity of the offense, (2) a comparison
of the penalty to penalties for other crimes under Michigan law, and (3) a comparison between
Michigan’s penalty and penalties imposed for the same offense in other states.” Id. (citation
omitted).
The Legislature has mandated a sentence of LWOP for adult offenders who commit the
crime of first-degree murder. MCL 750.316. In People v Hall, 396 Mich 650, 657-658; 242 NW2d
377 (1976), our Supreme Court upheld the LWOP sentence mandated by MCL 750.316 for felony
murder, under both the United States and Michigan Constitutions. The Court expressly rejected
the defendant’s assertions that a mandatory life sentence under MCL 750.316 violates US Const,
Am VIII, prohibiting “cruel and unusual” punishment, and Const 1963, art 1, § 16, forbidding
“cruel or unusual” punishment. The Court found that “the punishment exacted is proportionate to
the crime,” that no indication existed that “Michigan’s punishment is widely divergent from any
sister jurisdiction,” and that the sentence served the Legislature’s permissible goal to deter similar
conduct by others. Hall, 396 Mich at 658. “Legislatively mandated sentences are presumptively
proportional and presumptively valid.” People v Brown, 294 Mich App 377, 390; 811 NW2d 531
(2011). “[A] proportionate sentence does not constitute cruel or unusual punishment.” People v
Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008).
Defendant acknowledges that neither the United States Supreme Court nor the Michigan
Supreme Court has held that a mandatory life sentence for those defendants found guilty but
mentally ill of first-degree murder violates the prohibition on cruel or unusual (or cruel and
unusual) punishment. Further, MCL 768.36(3), which addresses sentencing for a defendant who
has been found guilty but mentally ill, states, in relevant part:
(3) If a defendant is found guilty but mentally ill or enters a plea to that
effect which is accepted by the court, the court shall impose any sentence that could
be imposed by law upon a defendant who is convicted of the same offense. If the
defendant is committed to the custody of the department of corrections, the
defendant shall undergo further evaluation and be given such treatment as is
psychiatrically indicated for his or her mental illness or intellectual disability.
[Emphasis added.]
Therefore, the Legislature has mandated a sentence of LWOP for adult offenders who
commit the crime of first-degree murder, and has mandated that a trial court impose upon a
defendant found guilty but mentally ill any sentence that could have been imposed upon a
defendant found guilty of the same offense. Accordingly, the verdict of guilty but mentally ill did
not entitle defendant to any special sentencing consideration (but does allow him to obtain
treatment during his incarceration). Further, our Supreme Court has held that “[t]hrough
[MCL 768.36(3)], the Legislature has demonstrated its policy choice that evidence of mental
incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by negating
specific intent.” People v Carpenter, 464 Mich 223, 237; 627 NW2d 276 (2001) (emphasis added).
Defendant’s argument that the verdict of guilty but mentally ill makes him “less culpable” than a
-11-
defendant without a mental illness, and therefore the trial court should have considered his mental
illness as a mitigating factor, is without any basis in law. For these reasons, we reject defendant’s
argument that his sentence is unconstitutionally cruel or unusual.
Affirmed.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
-12- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483307/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
November 10, 2022
Plaintiff-Appellee, 9:25 a.m.
v No. 357976
Ottawa Circuit Court
CARA CHRISTINE BOWDEN, LC No. 21-044535-AR
Defendant-Appellant.
Before: BORRELLO, P.J., and M. J. KELLY and REDFORD, JJ.
BORRELLO, P.J.
In this prosecution for operating while intoxicated (OWI), MCL 257.625(1)(a), defendant
Cara Christine Bowden appeals by interlocutory leave granted1 the circuit court’s order affirming
the district court’s order qualifying Ottawa County Sheriff’s Department deputy Adam Schaller as
an expert drug recognition evaluator (DRE)2 and holding that Schaller could provide an opinion
whether defendant operated her vehicle under the influence of marijuana to a degree that rendered
her unsafe to drive. For the reasons set forth in this opinion, we reverse and remand.
I. BACKGROUND
On December 1, 2020, defendant was stopped by Ottawa County Sheriff’s Department
deputy Monte White for driving with only one working headlight. White was working with
Schaller at the time of the traffic stop. According to his testimony, Schaller was certified in
Advanced Roadside Impaired Driving Enforcement (ARIDE). White testified at the evidentiary
1
People v Bowden, unpublished order of the Court of Appeals, entered September 9, 2021 (Docket
No. 357976).
2
The record contains indications both that DRE stands for “Drug Recognition Evaluator” and
“Drug Recognition Expert.” We need not resolve this discrepancy on the proper nomenclator.
Instead, we will simply use the abbreviation “DRE” for the sake of simplicity. Furthermore, even
if Schaller’s certification designates him to be a drug recognition “expert,” that label has no bearing
on whether he may properly testify as an expert for purposes of MRE 702.
-1-
hearing that when he approached defendant, he smelled “an odor of marijuana coming from the
driver window and . . . noticed that [defendant’s] eyes were bloodshot-red.” White asked
defendant to get out of the vehicle, and White proceeded to administer standardized field sobriety
tests (SFSTs). Another Ottawa County Sheriff’s Deputy, Brian Williams, arrived on the scene.
After Williams’ arrival at the scene of the stop, Williams administered two additional tests. When
questioned, defendant stated that she smoked marijuana approximately 30 minutes earlier.
Schaller observed as defendant completed the tests administered by White and Williams. White
testified that he did not observe defendant commit any lane, speed, or other moving violations
while she was driving before he initiated the traffic stop. According to Schaller, defendant was
asked to rate her “personal feelings of impairment” on a scale of 1 to 10, with “1 being not at all-
impaired and 10 being the most high (sic) that somebody could ever be.” Schaller testified, “she
personally self-rated herself as feeling at a 3, in terms of a scale of 1 to 10.” Defendant was arrested
and taken to a hospital to have her blood drawn. At the hospital, Schaller administered a DRE
evaluation to defendant. Defendant was charged with operating while intoxicated.
As relevant to the issue presented on appeal, the prosecution filed a motion in the district
court requesting the court to “declare Deputy Adam Schaller an expert in the field of Drug
Evaluation and Classification and be allowed to testify, and provide an expert opinion, as a Drug
Recognition Expert.” Defendant opposed this motion.
At the evidentiary hearing, Schaller testified that in addition to SFST and ARIDE training,
he had completed a DRE training and certification program in 2019. Schaller explained that the
DRE program was a “months’ long process” that consisted of “80-plus hours of classroom work
where you’re instructed in different medical conditions, observable signs of drug impairment,
different types of drugs, [and] biological factors,” followed by field work performing the tests and
a final examination. Schaller testified that based on his application of the DRE protocols to
defendant and the “totality of the circumstances,” he opined that defendant was impaired by, or
under the influence of, marijuana and unable to safely drive a motor vehicle at the time of the
traffic stop.
In his testimony, Schaller described the DRE protocol in detail. There are 12 steps: a
preliminary breath test, an interview with the arresting officer, a preliminary examination and first
pulse check, an eye examination, multiple divided attention tests, a vital signs and second pulse
check, an examination of pupil sizes in various lighting conditions, an examination of muscle tone,
a check for injection sights and third pulse check, an interrogation, the DRE officer’s formation of
an opinion based on the totality of the facts gathered in the previous 10 steps, and the completion
of a laboratory toxicology report. There are 7 drug categories identified by the protocol: central
nervous system depressants, central nervous stimulants, hallucinogens, dissociative anesthetics,
narcotic analgesics, inhalants, and cannabis.
Schaller also explained the reasons for completing each of the 12 steps. The preliminary
breath test is conducted to determine whether the person is under the influence of alcohol. An
interview of the arresting officer provides facts and observations about the subject from the scene
in instances where Schaller, as the DRE investigator, was not present for the traffic stop and arrest.
The preliminary interview involves asking the subject about medical conditions, physical
conditions, and medications that may make the subject appear “impaired when they’re not.”
During this step, the DRE investigator also makes observations of any visible signs of impairment
-2-
and checks the subject’s pulse for the first time. The eye examination includes checking for
horizontal and vertical gaze nystagmus and the eyes’ ability to converge on an object approaching
the face. Next, the subject is administered a series of four tests intended to measure the subject’s
abilities to divide attention, complete multiple tasks, follow directions, accurately perceive time,
and maintain physical body control and balance. Schaller explained that these divided attention
tests were relevant to a subject’s driving ability because driving a vehicle requires a driver to divide
attention, multi-task, and accurately perceive time and distance to share the road with other
vehicles. Further, Schaller testified that the various physical examinations were completed
because different substances had different physical effects on the body that could be observed
during these examinations.
Schaller admitted that the 2018 SFST manual published by NHTSA3 indicated that the
SFSTs, which were also administered as part of the DRE protocol,4 had only been validated for
indicating impairment by alcohol or a person’s blood alcohol content. Schaller did not know of
any scientific studies validating the use of the SFSTs for determining a person’s level of
impairment by any other substance.
According to Schaller, the DRE protocol was developed by the Los Angeles Police
Department in the late 1970s. Schaller further testified about studies that were conducted
regarding the protocol:
So, in 1984, John Hopkins University with [the] National Highway Traffic
Safety Administration [NHTSA] performed a lab validation study where they had
volunteers who were dosed with different categories of drugs at different levels
who were evaluated by DRE’s from the Los Angeles Police Department and
through that process they were able to determine, like, a success and error rate and
showing that they had a high success rate. And then after that, in 1985, they did a
field validation study with the Los Angeles Police Department where 173
individuals who were arrested for impaired driving offenses other than alcohol
where blood was collected were evaluated by Drug Recognition Experts, and that
was also able to determine an error rate and a positivity rate where they were able
to determine the program -- the program validity.
Schaller further explained, however, that the studies found the DRE protocol to be
successful in determining that a person was “not impaired” but that “in determining that somebody
is impaired and to which drug category that they’re impaired, they were able to -- the error rate
would be what they were not able to opine.” Schaller stated that the goal of the first study “was to
determine whether or not the protocol was a valid method of determining whether people were
under the influence . . . of certain drug categories.” The study did not test actual driving ability.
According to Schaller, the “key finding” of the 1985 field study “was that the DBCP, Drug
Evaluation Classification Program, or DRE process or program is a reliable tool for law
3
The referenced portions of this manual were admitted into evidence.
4
According to Schaller, the SFSTs are incorporated within the divided attention tests of the DRE
protocol.
-3-
enforcement to investigate and determine impairment.” Schaller also admitted that a substance
like marijuana could be present in person’s body without rendering that person “impaired” or
“under the influence.” Schaller testified:
So, the goal of this program is not to correlate the presence of a substance
to impairment; it’s to observe the subject, their demeanor, their physical signs of
general indicators of impairment and their performance in a psychophysical test to
determine whether or not they are impaired. We use that information that we see
to help us determine which type of drug they’re -- of the seven categories that
they’re impaired by. The -- whether or not there’s a drug active in their system is
-- is only used to confirm -- a confirmatory lab to show that our observations of the
person were -- were valid or correct.
The studies referenced by Schaller were admitted into evidence. The conclusion section
of the report for the earlier laboratory study states that “[t]his laboratory simulation study does not
represent a direct test of the validity of these or related behavioral examination procedures for
detecting and identifying drug intoxication in field situations.” This study found that the protocol
was highly accurate in correctly identifying the class of drug that a subject had taken when the
evaluator judged the subject to be intoxicated. The study also found that the likelihood that a
subject who had been given an active drug would be judged intoxicated by a DRE evaluator
depended on the dose of the drug received and that “[j]udgments of drug intoxication were more
likely at the higher doses of active drug than at the lower doses.”
In the subsequent field study, the report concluded that “DREs were fairly accurate in
determining which drug or drug class the suspect had taken.” However, the following quotation
from the report succinctly illustrates the limitations of this study as relevant to the issues currently
before this Court on appeal:
This section discusses the accuracy of the DREs decisions regarding which
specific drugs the suspects were under the influence of. It is important to remember
that the DREs in this study were examining the suspects for law enforcement
purposes. The DREs indicated whether they felt the suspects were “impaired” by
drugs (and hence “unable to operate a motor vehicle safely”), and if so, what
specific drugs (or drug classes) the suspect was “impaired” by.
There is no way to determine objectively whether the suspects were actually
too “impaired” to drive safely. The fact that drugs were found in a suspect’s blood
does not necessarily mean the suspect was too impaired to drive safely. Contrary
to the case with alcohol, we do not know what quantity of a drug in blood implies
impairment. Thus, this study can only determine whether a drug was present or
absent from a suspect’s blood when the DRE said the suspect was impaired by that
drug. (emphasis added).
Furthermore, the report also stated:
This field evaluation of the LAPD drug recognition procedure was designed
to determine whether trained officers could accurately judge the presence of drugs
-4-
other than alcohol in impaired driving suspects, and whether the screening
procedure allowed the officers to differentiate between different drugs (or drug
classes).
* * *
The results of the two studies conducted by NHTSA appear to show that the
LAPD drug recognition procedure provides the trained police officer with the
ability to accurately recognize the symptoms of many types of drug use by drivers.
When the officers identify a suspect as having used particular drugs a blood test
almost always will confirm their judgement.
A 2017 report from the NHTSA to Congress, titled Marijuana-Impaired Driving - A Report
to Congress, was also admitted into evidence at the hearing. This report began by comparing what
is known about marijuana-impaired driving with what is known about alcohol-impaired driving
because “the effects of alcohol on driving performance and crash risk are relatively well
understood.” Noting the intense interest and wealth of research studies devoted to alcohol-
impaired driving over a more than 60-year period, the report explained how alcohol is absorbed
and eliminated by the body and summarized the well-established correlation between alcohol
concentration in the blood or breath and the degree to which driving skills become impaired. The
research establishing this correlation involved “studies of alcohol-impaired driving related skills,
primarily through laboratory studies involving subjects dosed on alcohol, using psychomotor tasks
(reaction time, tracking, target detection), driving simulators and drivers on closed courses in
instrumented vehicles, epidemiological studies including roadside surveys of alcohol use by
drivers, and studies of alcohol use by crash-involved drivers.”
In contrast, the report explains, marijuana is processed by the body in significantly different
ways and the effects of marijuana use on driving-related skills have yet to be extensively studied.
According to the report, there was research that had “demonstrated the potential of marijuana to
impair driving related skills,” but the research did not show a relationship between impairment and
levels of delta-9-tetrahydrocannabinal (THC).5 Studies examining the relationship between THC
blood levels and degree of impairment had consistently found that “the level of THC in the blood
and the degree of impairment do not appear to be closely related” and that “[p]eak impairment
does not occur when THC concentration in the blood is at or near peak levels.” Further, “[p]eak
THC level can occur when low impairment is measured, and high impairment can be measured
when THC level is low.” The report also indicated that “[c]urrent knowledge about the effects of
marijuana on driving is insufficient to allow specification of a simple measure of driving
impairment outside of controlled conditions” and that “there are currently no evidence-based
methods to detect marijuana-impaired driving.” The report’s general conclusion as relevant to the
issues currently before us is aptly summarized in the following quotation:
Currently, there is no impairment standard for drivers under the influence
of marijuana. Many of the reasons for this are discussed elsewhere in this report.
They include the fact that there is no chemical test for marijuana impairment, like
5
THC is the primary psychoactive substance in marijuana.
-5-
a BAC or BrAC test for alcohol that quantifies the amount of alcohol in their body,
indicates the degree of impairment, and the risk of crash involvement that results
from the use of alcohol. The psychoactive ingredient in marijuana, delta-9-
tetrahydrocannabinal (THC), does not corelate well with impairment. . . .
Without a chemical test, the alternative is to develop a psychomotor,
behavioral or cognitive test that would indicate the degree of driving impairment
and elevated risk of crash involvement due to marijuana use. As was described
earlier in this report, marijuana has been show [sic] to impair critical driving related
skills including psychomotor abilities like reaction time, tracking ability, and target
detection, cognitive skills like judgment, anticipation, and divided attention, and
executive functions like route planning and risk taking. However, available
research does not support the development of such a psychomotor, behavioral or
cognitive test that would be practical and feasible for law enforcement use at this
time. It is certainly possible that when more research has been conducted on the
impairing effects of marijuana use on driving, that can be shown to increase the risk
of crash involvement, that it may be possible to develop such a test in the future.
NHTSA, and others, are currently conducting research toward that goal. We are
funding a controlled dosing study of different ways to measure marijuana
impairment in driving related skills in the hope that some of these measures will be
amenable to use by law enforcement. The first step is to show that everyone dosed
on marijuana shows an observable amount of impairment in a controlled laboratory
setting. The next step would be to develop simplified versions of these measures
that do not require sophisticated and expensive equipment that are suitable for field
use by law enforcement. The last step would be to establish the relationship
between the observed impairment on these tests and elevated risk of crash
involvement. Success in the near term is not guaranteed, but possible.
The district court concluded that Deputy Schaller could testify as “a DRE expert.”
Specifically, the district court found that based on the two studies of the DRE program from the
1980s, the DRE program was “sufficiently reliable to meet the requirements of MRE 702.” The
district court further stated in relevant part:
The court finds Deputy Schaller has been trained in accordance with the
national standards and he performed the DRE protocol proficiently. He may testify
as to his observations of a defendant’s acts, conduct, and appearance, and to give
an opinion on the defendant’s state of impairment based on those observations. He
may express an opinion that a suspect’s behavior and physical attributes are or are
not consistent with the behavioral and physical signs associated with certain
categories of drugs.
Defendant was granted leave to appeal to the circuit court, and the circuit court affirmed
the district court’s order. The circuit court concluded that Schaller’s testimony regarding the DRE
protocol satisfied the relevance and reliability requirements of MRE 702 based on the evidence
submitted at the hearing in the district court and based on the acceptance of the DRE program by
courts in other jurisdictions.
-6-
This Court subsequently granted defendant leave to appeal the circuit court’s order.
II. STANDARD OF REVIEW
An appellate court reviews a lower court’s decision to admit or exclude expert testimony
for an abuse of discretion. People v Dobek, 274 Mich App 58, 93; 732 NW2d 546 (2007). An
abuse of discretion occurs when the court’s decision falls outside the range of reasonable and
principled outcomes. People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). We review
de novo preliminary questions of law, such as whether a rule of evidence precludes the admission
of particular evidence and any issues involving interpretation of the Michigan Rules of Evidence.
People v Muhammad, 326 Mich App 40, 47; 931 NW2d 20 (2018); Dobek, 274 Mich App at 93.
“A trial court necessarily abuses its discretion when the court permits the introduction of evidence
that is inadmissible as a matter of law.” Dobek, 274 Mich App at 93.
III. ANALYSIS
Defendant maintains on appeal that the proposed expert testimony of Schaller regarding
his application of the DRE protocol and the opinion he formed of defendant’s state of impairment
due to marijuana is inadmissible under MRE 702.
MRE 702 provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
MRE 702 imposes an obligation on the trial court to ensure that any expert testimony that
is admitted at trial is reliable. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d
391 (2004). Although the exercise of this gatekeeper role is within a trial court’s discretion, the
court may neither abandon this role nor perform it inadequately. Id. Under MRE 702, the trial
court is required to “ensure that each aspect of an expert witness’s proffered testimony—including
the data underlying the expert’s theories and the methodology by which the expert draws
conclusions from that data—is reliable.” Id. at 779.
“MRE 702 incorporates the standards of reliability that the United States Supreme Court
established in Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469
(1993), in interpreting the equivalent federal rule of evidence.” Muhammad, 326 Mich App at 51-
52.
Under Daubert, a trial court must “determine at the outset . . . whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue.” Daubert, 509 US at 592. “This entails
a preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology
-7-
properly can be applied to the facts in issue.” Id. at 592-593. Some factors that
bear on the trial court’s inquiry include: (1) whether the scientific knowledge or
technique can, and has been, tested, (2) “whether the theory or technique has been
subjected to peer review and publication,” (3) “the known or potential rate of error,”
(4) “the existence and maintenance of standards controlling the technique’s
operation,” and (5) whether there is “general acceptance” of the scientific
technique. Id. at 593-594. However, these factors are not exclusive; instead,
“[m]any factors will bear on the inquiry . . . .” Id. at 593. [Muhammad, 326 Mich
App at 52 (ellipses in original).]
This inquiry is a “flexible” one that must focus “solely on principles and methodology”
employed, “not on the conclusions that they generate.” Daubert, 509 US at 594-595. Under MRE
702 and Daubert, “the trial court’s role as a gatekeeper does not require it to search for absolute
truth, to admit only uncontested evidence, or to resolve genuine scientific disputes.” Unger, 278
Mich App at 217 (quotation marks and citation omitted). Rather, the trial court’s role is to filter
out evidence that is unreliable, with the relevant inquiry being “whether the opinion is rationally
derived from a sound foundation.” Id. (quotation marks and citation omitted). “Daubert’s general
holding—setting forth the trial judge’s general ‘gatekeeping’ obligation—applies not only to
testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other
specialized’ knowledge.” Kumho Tire Co, Ltd v Carmichael, 526 US 137, 141; 119 S Ct 1167;
143 L Ed 2d 238 (1999). The party offering the expert testimony bears the burden of satisfying
the preconditions of MRE 702 and establishing admissibility of the proposed evidence. Gilbert,
470 Mich at 781, 789.
Defendant was charged in this case with OWI under MCL 257.625(1)(a), which provides
as follows:
(1) A person, whether licensed or not, shall not operate a vehicle on a
highway or other place open to the general public or generally accessible to motor
vehicles, including an area designated for the parking of vehicles, within this state
if the person is operating while intoxicated. As used in this section, “operating
while intoxicated” means any of the following:
(a) The person is under the influence of alcoholic liquor, a controlled
substance, or other intoxicating substance or a combination of alcoholic liquor, a
controlled substance, or other intoxicating substance. [Emphasis added.]
To prove a person was “under the influence” of alcoholic liquor, a controlled substance, or
other intoxicating substance, the prosecution “must prove that defendant’s ability to drive was
substantially and materially affected by consumption” of the relevant substance. People v
Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975) (quotation marks omitted); see also People v
Dupre, 335 Mich App 126, 131-132; 966 NW2d 200 (2020).
Here, defendant argues that the prosecution “has yet to point to a study that correlates the
opinion of a DRE evaluator to actual degradation of a subjects’ ability to safely operate a motor
vehicle.” Defendant and amicus contend that the DRE protocol has not been validated as a reliable
tool for determining whether a person’s ability to drive has been impaired by marijuana and that
-8-
Schaller’s opinion is thus inadmissible under MRE 702 because it is based on unreliable principles
and methodologies. Defendant argues that the studies on which the prosecution relied only
validated the DRE protocol’s accuracy in determining the presence of a substance in a subject’s
blood but did not validate the DRE protocol for determining a subject’s degree of impairment. We
agree.
It is apparent from the record that the prosecution did not present any evidence in the
district court to show that the DRE protocol had been validated as a reliable method for
demonstrating a person’s level of impairment due to marijuana or the degree to which a person’s
driving abilities could be diminished by any given level of marijuana. The studies relied on by the
prosecution demonstrated the DRE protocol’s level of accuracy with respect to determining
whether a particular type of substance was present in a person’s blood, but neither of the submitted
reports purported to even address the question of how particular levels of marijuana impacted a
person’s ability to drive or rendered a person “impaired.” Indeed, the determination under the
DRE protocol that a person is “impaired” and unable to safely drive a car appears to be ultimately
based on the DRE officer’s subjective judgment, and there is no evidence in this record that the
ability of a person to make such a judgment based on the application of the DRE protocol has been
tested to demonstrate the accuracy and validity of reaching such a conclusion on a person’s level
of impairment due to marijuana.
Additionally, in the 2017 report to Congress, the NHTSA wrote that, although research has
shown that marijuana has the potential to impair one’s ability to drive, there were “currently no
evidence-based methods to detect marijuana-impaired driving.” This report also stated that the
available research did not yet support the development of a practical and feasible “psychomotor,
behavioral or cognitive test that would indicate the degree of driving impairment and elevated risk
of crash involvement due to marijuana use.”
It bears repeating that the earlier field study—on which the prosecution relies—contained
the following disclaimer:
This section discusses the accuracy of the DREs decisions regarding which
specific drugs the suspects were under the influence of. It is important to remember
that the DREs in this study were examining the suspects for law enforcement
purposes. The DREs indicated whether they felt the suspects were “impaired” by
drugs (and hence “unable to operate a motor vehicle safely”), and if so, what
specific drugs (or drug classes) the suspect was “impaired” by.
There is no way to determine objectively whether the suspects were actually
too “impaired” to drive safely. The fact that drugs were found in a suspect’s blood
does not necessarily mean the suspect was too impaired to drive safely. Contrary
to the case with alcohol, we do not know what quantity of a drug in blood implies
impairment. Thus, this study can only determine whether a drug was present or
absent from a suspect’s blood when the DRE said the suspect was impaired by that
drug.
The prosecution did not present any evidence that the DRE protocol has been tested, or has
a known error rate, with respect to the purpose for which the prosecution intended to use the results
-9-
of the protocol in this case—to provide evidence of defendant’s level of impairment and impaired
driving ability. Muhammad, 326 Mich App at 52. There simply is no evidence in this record to
support that the DRE protocol can reliably be used to detect the degree or level of intoxication
caused by marijuana and determine whether that level of intoxication has made the person unable
to safely drive a motor vehicle. Our Supreme Court has explained that because “MRE 702
mandates a searching inquiry, not just of the data underlying expert testimony, but also of the
manner in which the expert interprets and extrapolates from those data,” it is therefore “insufficient
for the proponent of expert opinion merely to show that the opinion rests on data viewed as
legitimate in the context of a particular area of expertise . . . .” Gilbert, 470 Mich at 782. “The
proponent must also show that any opinion based on those data expresses conclusions reached
through reliable principles and methodology.” Id. Moreover, the court’s “gatekeeping inquiry
must be tied to the facts of a particular case,” Kumho Tire, 526 US at 150 (quotation marks and
citation omitted), and there must be “ ‘a valid . . . connection to the pertinent inquiry as a
precondition to admissibility,’ ” id. at 149, quoting Daubert, 509 US at 592 (ellipsis in original).
Here, the prosecution has failed to establish any valid connection between the use of the DRE
protocol and a conclusion regarding the degree to which a person’s driving ability was diminished
by the use of marijuana.
It is clear from the very evidence which they presented to the district and circuit courts that
the prosecution failed to meet its burden to establish the reliability, and thus the admissibility, of
the proposed expert testimony. Gilbert, 470 Mich at 779-781, 789; Muhammad, 326 Mich App at
52. Therefore, the proposed expert testimony was inadmissible under MRE 702.6
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
6
We note that this conclusion does not preclude the prosecution from introducing Schaller’s
testimony as a lay witness to the extent that testimony is otherwise not inadmissible. Contrary to
the apparent concern of our dissenting colleague, our holding is not a blanket prohibition on
Schaller’s testimony. We simply hold that Schaller cannot provide expert testimony under MRE
702 regarding his application of the DRE protocol and the opinion he formed of defendant’s state
of impairment due to marijuana.
-10- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483308/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 355260
Wayne Circuit Court
AUBREY BERNARD BECKUM, LC No. 19-004852-01-AR
Defendant-Appellee.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
On remand from our Supreme Court, the prosecution appeals by leave granted1 the circuit
court’s affirmance of the district court’s refusal to bind over defendant Aubrey Beckum on the
charge of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv).
Because we conclude the district court’s probable-cause determination was an abuse of discretion,
we reverse.
I. FACTUAL BACKGROUND
In June 2019, police officers executed a search warrant on a house at 13901 Saratoga
Avenue in Detroit. Beckum and at least 10 other people were inside the house at the time. Officer
Jeremy Robson was assigned to secure the back of the house to prevent anyone from fleeing. After
Officer Robson detained one person trying to flee, he entered the house. Other officers had already
secured the rest of the house, and Beckum had been arrested by another officer. Officer Robson
searched the main floor and recovered 17 Ziploc bags of suspected cocaine on the living room
floor. At the preliminary examination, the district court admitted drug analysis results which
concluded that the bagged substances were positive for cocaine. Officer Robson testified that the
cocaine appeared to be packaged for sale.
1
Our Supreme Court, in lieu of granting leave to appeal, remanded to us for consideration as on
leave granted. People v Beckum, ___ Mich ___; 971 NW2d 613 (2022).
-1-
Another officer, Corporal Cheryl Muhammad, did not know where Beckum was found and
encountered Beckum once he and other individuals were gathered by the police in the living room.
Corporal Muhammad took Beckum to a separate room and questioned him. During the
preliminary examination, Corporal Muhammad read into the record her question-and-answer
conversation with Beckum:
Q. On 6/6/19, at approximately 3:00 p.m., were you at 13901 Saratoga
when the police arrived?
A. Yes, ma’am.
Q. Do you sell narcotics from 13901 Saratoga?
A. Yes.
Q. What type of narcotics did you have?
A. Cocaine.
Q. How much do you sell the cocaine for?
A. Five dollars a bag.
Q. How long have you been selling cocaine?
A. A week or two.
Beckum argued that the prosecution failed to meet its burden of probable cause on the
element of possession because no evidence established that Beckum constructively possessed the
cocaine found in the house or knew that the cocaine was present. The prosecutor argued that
reasonable inferences drawn from Beckum’s presence in the house and his statements to Corporal
Muhammad established probable cause of constructive possession. The district court determined
there was insufficient evidence to “connect [Beckum] to those narcotics that were found in that
house” and therefore dismissed the charge. The prosecution appealed to the circuit court, which
affirmed the district court’s decision. This appeal followed.
II. STANDARD OF REVIEW
“Absent an abuse of discretion, a reviewing court should not disturb the district court’s
bindover decision.” People v Seewald, 499 Mich 111, 116; 879 NW2d 237 (2016) (citations
omitted). A district court abuses it discretion when its decision falls outside the range of principled
outcomes. Id. We review de novo the circuit court’s affirmance of the district court’s bindover
decision. People v Green, 260 Mich App 710, 714; 680 NW2d 477 (2004). De novo review means
that we independently determine whether the district court abused its discretion by refusing to bind
the defendant over. See People v Beck, 504 Mich 605, 618; 939 NW2d 213 (2019).
-2-
III. ANALYSIS
The prosecution argues that the district court abused its discretion by dismissing the charge
of possession with intent to deliver less than 50 grams of cocaine because the evidence was
sufficiently strong to find probable cause that Beckum constructively possessed the cocaine. We
agree.
A preliminary examination requires a district court “to determine whether a felony was
committed and whether there is probable cause to believe the defendant committed it.” People v
Yost, 468 Mich 122, 125-126; 659 NW2d 604 (2003). The probable-cause standard asks whether
the evidence is “sufficient to cause a person of ordinary prudence and caution to conscientiously
entertain a reasonable belief of the accused’s guilt.” Id. at 126 (quotation marks and citation
omitted). In order to bind a defendant over for trial in the circuit court, the district court must find
probable cause to support each element of the crime charged. Seewald, 499 Mich at 116.
The district court refused to bind Beckum over on the charge of possession with intent to
deliver less than 50 grams of cocaine. The elements of this offense are: “(1) that the recovered
substance is cocaine, (2) that the cocaine is in a mixture weighing less than fifty grams, (3) that
defendant was not authorized to possess the substance, and (4) that defendant knowingly possessed
the cocaine with the intent to deliver.” People v Wolfe, 440 Mich 508, 516-517; 489 NW2d 748
(1992), amended 441 Mich 1201 (1992). The issue on appeal relates solely to the fourth element—
whether there was probable cause that Beckum knowingly possessed the recovered cocaine.
Possession may be either actual or constructive, and joint or exclusive. Id. at 519-520. The
parties agree that Beckum did not have actual possession of the cocaine, but the prosecution
contends that the evidence supported a finding of constructive possession. “[C]onstructive
possession exists when the totality of circumstances indicates a sufficient nexus between the
defendant and the contraband.” Id. at 521. Put differently, constructive possession is “the right to
exercise control over the drug coupled with knowledge of its presence.” People v Cohen, 294
Mich App 70, 76; 816 NW2d 474 (2011). But “a person’s presence, by itself, at a location where
drugs are found is insufficient to prove constructive possession.” Wolfe, 440 Mich at 520.
“Instead, some additional connection between the defendant and the contraband must be shown.”
Id.
In the instant case, defendant’s own words in response to the law enforcement officer’s
questions demonstrate more than enough probable cause to bind over defendant for trial. The
officer asked defendant questions in the present tense, to which defendant answered those
questions in the present tense that he was present when police arrived, that he sells cocaine from
the address searched, that he did so for one to two weeks, and he stated for how much he sells his
drugs. His responses were made in conjunction with the recovery of—from the very same place—
17 individually packaged Ziploc bags containing cocaine.
At the preliminary examination, the prosecution presented evidence that Beckum was
inside the house when police arrived, there was cocaine inside the house, the cocaine was packaged
for sale, and Beckum admitted to selling cocaine from the house over the past one or two weeks.
The prosecution argues that Beckum’s statement that he sold cocaine from the house for at least
the past week is inferential evidence that he constructively possessed the cocaine recovered during
-3-
the execution of the search warrant. The prosecution is correct. While it is true, at least 10 other
people were found in the house, and Beckum did not specifically state that the cocaine found in
the living room was his; the reasonable inferences of the physical evidence recovered in
conjunction with the specific present tense answers made by defendant is more than adequate to
bind him over on the charge of possession with intent to deliver cocaine.
Reversed and remanded with instructions to the district court to bind defendant over for
trial on the charge of possession with intent to deliver less than 50 grams of cocaine, in violation
of MCL 333.7401(2)(a)(iv). We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ James Robert Redford
-4- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483312/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re BABY BOY DOE, Minor.
PETER KRUITHOFF, FOR PUBLICATION
November 10, 2022
Petitioner-Appellant, 9:05 a.m.
v No. 353796
Kalamazoo Circuit Court
Family Division
CATHOLIC CHARITIES OF WEST MICHIGAN, LC No. 2018-006540-NB
Respondent-Appellee,
and
ADOPTIVE PARENT NUMBER 1 and
ADOPTIVE PARENT NUMBER 2,
Appellees.
ON REMAND
Before: RONAYNE KRAUSE, P.J., and CAVANAGH and BOONSTRA, JJ.
RONAYNE KRAUSE, P.J.,
As set forth in this Court’s prior majority opinion, this appeal concerns petitioner’s requests
to unseal a sealed adoption file and to reinstate his parental rights to Baby Boy Doe (Doe). In re
Doe, ___ Mich App ___; ___ NW2d ___ (2021) (Docket No, 353796) (Doe I). This Court’s prior
majority opinion exhaustively set forth the pertinent background facts, so we will not repeat them.
Our Supreme Court also set forth a comprehensive summary of the background facts, which we
also need not repeat. In re Doe, ___ Mich ___; ___; 975 NW2d 486 (2022) (Doe II). Very
generally, petitioner alleges that he is the biological father of a child, Doe, who was surrendered
by petitioner’s then-wife in Kent County, pursuant to the Safe Delivery of Newborns Law (SDNL),
MCL 712.1 et seq., the day after petitioner filed for divorce in Ottawa County. While petitioner
sought to establish his paternity in the Ottawa Circuit Court, the Kalamazoo Circuit Court
-1-
terminated the parental rights of Doe’s parents, granted custody of Doe to respondent, and
ultimately finalized Doe’s adoption. A majority of this Court previously held that petitioner’s
parental rights were improperly terminated, and, consequently, that it was necessary for the trial
court to consider further petitioner’s request to unseal the adoption file. In lieu of granting leave
to appeal, our Supreme Court reversed this Court’s determination that petitioner’s parental rights
had been improperly terminated, vacated this Court’s analysis of unsealing the adoption file, and
remanded to us for reconsideration of the latter issue. We now affirm the trial court.
Orders of our Supreme Court are binding precedent to the extent they can be understood.
Woodring v Phoenix, 325 Mich App 108, 115; 923 NW2d 607 (2018). Our Supreme Court’s
remand order unambiguously remanded only for consideration of petitioner’s request to unseal the
adoption records “and further proceedings not inconsistent with this order.” Doe II, ___ Mich at
___, slip op at p 5. It further expressly held that any constitutional issue was neither properly
preserved nor presented. Doe II, ___ Mich at ___ n 6, slip op at p 5 n 6. Our Supreme Court
foreclosed any possible consideration of whether respondent made “reasonable efforts” to notify
petitioner:
Assuming petitioner could have taken some postbirth action to satisfy the statutory
requirements or invoke the SDNL’s protections for alleged nonsurrendering parents
in the Ottawa Circuit Court, he did not do so. Petitioner also did not file a separate
petition for custody under the SDNL. [Doe II, ___ Mich at ___, slip op at pp 4-5.]
Hypothetically presuming respondent did not make “reasonable efforts” to notify petitioner, and
further hypothetically presuming such a lack of reasonable efforts somehow tolled the deadline for
petitioner to commence a custody action under the SDNL, petitioner’s window of opportunity has
long since closed. The reasonableness of respondent’s efforts cannot affect the outcome of this
matter, so unsealing the adoption file is moot. See C D Barnes Assoc, Inc v Star Heaven LLC, 300
Mich App 389, 406; 834 NW2d 878 (2013).
In any event, even if, hypothetically, petitioner could maintain a custody action under the
SDNL, the ultimate determination of Doe’s custody would be determined on the basis of the child’s
best interests. MCL 712.14; see also In re Miller, 322 Mich App 497, 506; 912 NW2d 872 (2018).
In general, when considering a child’s best interests for purposes of custody, trial courts must
consider up-to-date information as of the time of the hearing, whenever that hearing occurs. See
Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994). Doe is now more than four years
old and has been with his adoptive family for almost his entire life. Whatever rights parents have,
it has been well-established that children also have some rights, and the best interests of a child
are not necessarily always aligned with the interests of the parent. It defies all sense even to
consider the idea that it could somehow be in Doe’s best interests to treat him as a piece of chattel
subject to a claim for replevin. There being no reasonable alternative outcome, it would, again, be
a pointless exercise to unseal the adoption file.
As set forth in this Court’s prior dissenting opinion:
It is certainly within the purview of the courts to point out that the Legislature has
chosen a policy with consequences it may not have anticipated, but ultimately, the
wisdom or propriety of legislative policy is the sole province of the Legislature.
-2-
The Legislature enacted a statutory scheme to “encourag[e] parents of unwanted
newborns to deliver them to emergency service providers instead of abandoning
them.” See People v Schaub, 254 Mich App 110, 115 n 1; 656 NW2d 824 (2002).
That scheme includes provisions to address situations in which the newborn is only
unwanted by one of the parents. That scheme requires emergency service providers
to ask surrendering parents for identifying information, but it expressly does not
require the surrendering parent to disclose any such information. MCL 712.3(2).
The Legislature presumably understood the implications: that it was possible a
nonsurrendering parent would therefore be unknowable and unfindable. The
Legislature therefore enacted a policy that prefers to err on the side of protecting
the safety of the child and of the surrendering parent, even at the possible detriment
to the nonsurrendering parent. [Doe I, ___ Mich App at ___ (RONAYNE KRAUSE,
P.J., dissenting).]
Again, sometimes the rights of a parent and the rights of a child will come into conflict. On those
occasions, Michigan jurisprudence and public policy have long deemed the well-being and safety
of the child to be paramount. See Brown v Brown, 332 Mich App 1, 10; 955 NW2d 515 (2020).
The child’s well-being and safety may demand that, after the passage of some time, it is no longer
proper or permissible to rip the child out of what they regard as home to place them with a
biological parent the child would regard as a stranger. See In re LaFlure, 48 Mich App 377, 387-
388; 210 NW2d 482 (1973). Under these unique circumstances, the only just remedy is to affirm
the trial court’s orders.
Therefore, they are affirmed.
/s/ Amy Ronayne Krause
/s/ Mark J. Cavanagh
-3- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483316/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MEIJER, INC., UNPUBLISHED
November 10, 2022
Petitioner-Appellant,
v No. 358974
Tax Tribunal
CITY OF FLAT ROCK, LC No. 16-001205-TT
Respondent-Appellee.
Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.
PER CURIAM.
Petitioner appeals by right the final opinion and judgment of the Michigan Tax Tribunal
(the Tribunal) determining the true cash value (TCV) of real property located in Flat Rock,
Michigan for the 2016 and 2017 tax years. We vacate the Tribunal’s judgment and remand for
further proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The issue in this case is the proper calculation of the TCV of a “big box” store located in
Flat Rock.1 The property consists of 25 acres of land containing a 157,352-square-foot big box
store and a 2,500-square-foot convenience store. The property was built, owned, and occupied by
petitioner for retail business. It is not clear when construction started, but as of December 31,
2015, construction was approximately 50% complete. Construction was completed sometime in
mid-2016, with the store opening for business in August 2016.
Petitioner appealed the ad valorem property tax assessments levied by respondent for the
2016 and 2017 tax years. A hearing before the Tribunal was held, at which each party presented
the testimony of competing valuation experts. The focus was the valuation of the completed
property as of December 31, 2016. After hearing the testimony of the parties’ experts, the Tribunal
noted that it had a duty to apply its own expertise in determining the appropriate method of arriving
1
The term “big box store” refers to a store with 80,000 square feet or more.
-1-
at a TCV valuation. The Tribunal determined that neither the sales-comparison approach nor the
income approach was appropriate for valuing the newly-built construction and that the cost
approach was the most accurate method. The Tribunal also noted that the buildings on the property
were “built for [petitioner’s] specific requirements,” and if sold, the new owner would have to
perform some “reconfigurations for its own branding.” The Tribunal’s calculation of the TCV
using the cost approach made no deduction for functional obsolescence. This appeal followed.
II. STANDARD OF REVIEW
This Court’s review of a decision of the Tax Tribunal is limited. Mich Milk Producers
Ass’n v Dep’t of Treasury, 242 Mich App 486, 490; 618 NW2d 917 (2000). “In the absence of
fraud, this Court’s review of a Tax Tribunal decision is limited to determining whether the tribunal
committed an error of law or adopted a wrong legal principle.” Id. “The tribunal’s factual findings
will not be disturbed as long as they are supported by competent, material, and substantial evidence
on the whole record.” Id. at 490-491.
III. ANALYSIS
Petitioner argues that the Tribunal erred by not including any deduction for functional
obsolescence in its TCV calculation. We agree.
MCL 211.27a(1) requires Michigan property to be assessed at 50% of TCV. TCV is
defined in MCL 211.27(1), in pertinent part, as “the usual selling price at the place where the
property to which the term is applied is at the time of the assessment, being the price that could be
obtained for the property at private sale.” Therefore, the TCV of real property reflects the
property’s market value as a whole and not merely the sum of the value of its components. First
Federal S&L Ass’n v City of Flint, 415 Mich 702, 707; 329 NW2d 755 (1982).
There are three traditional methods of determining TCV: “(1) the cost-less-depreciation
approach, (2) the sales-comparison or market approach, and (3) the capitalization-of-income
approach.” Meadowlanes Ltd Dividend Housing Ass’n v City of Holland, 437 Mich 484-485; 473
NW2d 636 (1991). “It is the Tax Tribunal’s duty to determine which approaches are useful in
providing the most accurate valuation under the individual circumstances of each case.” Id. at
485. The Tribunal has no obligation to accept the valuation or approach to valuation used by any
party; indeed, it has a duty to make an independent determination of true cash value by use of the
most accurate valuation approach under the individual circumstances of the case. President Inn
Props, LLC v City of Grand Rapids, 291 Mich App 625, 631; 806 NW2d 342 (2011).
In this case, the Tribunal held that the cost-less-depreciation approach was the most
accurate method of valuation. Petitioner does not challenge the Tribunal’s use of this valuation
method; rather, petitioner argues that the trial court erred by failing to account for functional
obsolescence in calculating the property’s TCV. Under the cost approach, the TCV of property is
calculated by adding the estimated land value to the estimated replacement cost of improvements
on that land, “and then deducting the loss in value from depreciation in structures, i.e. physical
deterioration and functional or economic obsolescence.” Meadowlanes, 437 Mich at 484 n 18. At
issue in this case is the Tribunal’s decision not to deduct any amount for functional obsolescence,
which is defined as “a loss in value brought about by failure or inability to deliver full service”
-2-
and “includes any loss of value by reason of shortcomings or undesirable features contained within
the property itself.” Teledyne Continental Motors v Muskegon Twp, 145 Mich App 749, 755; 378
NW2d 590 (1985).2 In simple terms, functional obsolescence in this case represents “the cost of
modifying the buildings for use by another retailer if the buildings were leased or sold.” Meijer,
Inc v City of Midland, 240 Mich App 1, 6; 610 NW2d 242 (2000).
Relying on this Court’s decision in Meijer, petitioner argues that the Tribunal’s decision to
afford no deduction for obsolescence constitutes the application of an incorrect legal principle.
We agree. In Meijer, this Court held that the Tribunal had committed legal error in determining
the TCV of the subject property under the cost approach when it failed to include a deduction for
functional obsolescence despite finding “that the subject property includes improvements that have
utility only to Petitioner and that a typical buyer in the market place would incur considerable
modification costs.” Meijer, 240 Mich App at 6-7. In making this holding, this Court relied on
Teledyne, which held:
Clearly, the replacement cost approach does eliminate the need to calculate some
types of functional obsolescence. By definition, replacement cost eliminates
functional obsolescence due to excess construction or superadequacy. However, a
determination of other sources of functional obsolescence, not caused by excess
construction, must at least be considered in the replacement cost approach. In the
present case, the tribunal ruled that all functional obsolescence is eliminated by use
of the replacement cost approach. This amounts to an adoption of the wrong
appraisal principle. The tribunal should have specifically determined whether the
sources claimed as functional obsolescence by the petitioner are in fact eliminated
by use of the replacement cost approach. [Id. at 6, quoting Teledyne, 145 Mich App
at 756.]
The case before us is similar to Meijer, and it compels the same result. The Tribunal did
not specifically find that all functional obsolescence was eliminated by the use of the replacement-
cost approach, but instead merely found that “Petitioner’s obsolescence was not appropriate
because it was based upon comparables that were not appropriately comparable to the subject
property.” This mirrors the error in Meijer, in which the Tribunal declined to account for
obsolescence because it found that the petitioner’s calculation of obsolescence was “unrealistic
and derived from inappropriate market data.” Meijer, 240 Mich App at 6. This Court held that
although the petitioner’s calculation of obsolescence was flawed, the tribunal nonetheless had the
obligation to make “its own determination of the functional obsolescence due to modification
costs.” Id. at 7.
In this case, the tribunal acknowledged that the subject property was owner-occupied, was
“built for its specific requirements,” and if sold, the new owner would have to perform some
“reconfigurations for its own branding.” “This is the type of functional obsolescence that is not
eliminated by adoption of the replacement cost approach.” Id. Under Meijer, once the Tribunal
2
External obsolescence, or economic obsolescence, on the other hand, is the loss in value as a
result of factors outside the boundaries of the property. Forest Hills Coop v City of Ann Arbor,
305 Mich App 572, 591; 854 NW2d 172 (2014).
-3-
finds that a typical buyer in the marketplace would incur modification costs, it is not free to wholly
reject petitioner’s claim for functional obsolescence without making its own determination of how
much functional obsolescence should be deducted. Id. at 8. Accordingly, we vacate the Tribunal’s
judgment and remand to the Tribunal “to make an independent determination of how much
functional obsolescence exists due to modification costs.” Id.
Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
-4- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483305/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 359200
Berrien Circuit Court
DAESHAWN DAVONTE BATES, LC No. 2020-002808-FH
Defendant-Appellant.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
The prosecution charged defendant under MCL 750.227(2) with carrying a concealed
pistol in an automobile after the police pulled over defendant’s vehicle for alleged traffic
infractions. Police located a gun in defendant’s car following his concession to an officer that a
weapon was in the vehicle. Defendant moved to suppress his statement to the police about having
the gun in his car and to suppress evidence of the gun itself. The district and circuit courts
suppressed defendant’s incriminating statement on the basis of a violation of Miranda v Arizona,
384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). But the lower courts did not suppress evidence
of the pistol found in defendant’s automobile upon determining that the admission to the officer
that a gun was present in the car was voluntarily given and that the stop had not been unduly
prolonged by the police. This Court denied defendant’s delayed application for leave to appeal.
People v Bates, unpublished order of the Court of Appeals, entered on December 22, 2021 (Docket
No. 359200). Our Supreme Court, however, in lieu of granting leave to appeal, remanded the case
for consideration as on leave granted. People v Bates, 974 NW2d 828 (2022). We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
At defendant’s preliminary examination, Michigan State Police Trooper Ian Fields testified
that he stopped a sedan with an unusually loud, defective exhaust system after the vehicle did not
come to a complete stop at a stop sign. When Trooper Fields went to the driver’s-side door, he
observed defendant “reaching around excessively” inside the car. Additionally, defendant could
not produce any identification when requested by the trooper. In light of defendant’s furtive
movements and his lack of identification, Trooper Fields directed him to step out of the vehicle.
-1-
Trooper Fields then handcuffed defendant because he was exhibiting extremely nervous behavior
and because he had no identification.1 The trooper testified that defendant “was unable to really
speak clearly due to his nervousness.” Trooper Fields indicated that defendant was “temporarily
detained” in handcuffs for the trooper’s safety and protection and until defendant’s identity could
be confirmed. Upon placing the handcuffs on defendant, Trooper Fields, briefly and with
additional officers standing nearby, repeatedly asked defendant if he had anything in the car such
as drugs or a weapon that might be causing his anxiety and nervousness. And defendant finally
admitted, at first with an affirmative nod of the head, that there was a pistol under his seat in the
automobile. Defendant acknowledged that he did not have a concealed pistol license. Trooper
Fields entered the vehicle and found the gun under the driver’s seat; it was loaded and had a round
in the chamber. After seizing the gun, the trooper read defendant his Miranda rights, and defendant
agreed to talk to the police. Trooper Fields did not issue defendant a ticket for any civil or traffic
infraction. Details of the interaction between defendant and Trooper Fields will be discussed
below.
In the district court and upon completion of the proofs at the preliminary examination,
defendant moved to suppress his un-Mirandized statement revealing the gun’s presence in his car
as well as evidence of the gun itself because defendant had been the subject of a custodial
interrogation when he made the statement. The prosecution responded that defendant was not
under arrest when he made the statement and that police officers are permitted to ask general
questions during a traffic-stop investigation. The district court ruled that there was a Miranda
violation because defendant had not been free to leave the scene, and it suppressed defendant’s
statement and evidence of the gun, characterizing the firearm as fruit of the poisonous tree. On
the basis of its ruling excluding the evidence, the district court refused to bind defendant over to
the circuit court and dismissed the charge.
The prosecutor moved for reconsideration, arguing that even if there was a Miranda
violation that barred admission of defendant’s statement to Trooper Fields, caselaw precedent
clearly provided that evidence of the pistol remained admissible so long as the statement was
voluntarily made to police. The prosecution maintained that defendant’s statement was voluntary
under the totality-of-the-circumstances test. In response, defendant argued that his statement to
police that a gun was in the car was coerced and involuntary, as he was repeatedly badgered by
Trooper Fields about whether there was contraband or a weapon in the vehicle and where
defendant was in the foreboding presence of multiple officers. The district court agreed with the
prosecution’s stance regarding the exclusionary limits of Miranda—a violation did not preclude
admission of the firearm, just suppression of the unwarned statement. Further, the district court
agreed with the prosecutor that defendant’s statement was voluntarily made and not coerced. In
reaching this conclusion, the court reasoned that Trooper Fields’ questioning was less than three
minutes, that the questioning was out in the open on the street and not coercive, that the other
officers who were present were simply standing around and not engaging in any intimidating or
coercive behavior, that no threats were made against defendant, and that no physical force was
1
Defendant claimed that he was nervous because shortly before being pulled over he had
inadvertently left his wallet with his identification at a nearby gas station. Another officer serving
as “backup” was indeed able to retrieve the wallet from the station.
-2-
used against him. The district court acknowledged that Trooper Fields questioned defendant
multiple times about the presence of drugs or a gun in the car. But the court reiterated that the
questioning was short-lived and opined that police interrogations often involve repeated
questioning to some extent because “most defendants don’t admit readily to their crimes,” yet this
does not automatically render their statements involuntary. Otherwise, according to the court,
statements would regularly have to be declared involuntary and suppressed.
As part of the prosecution’s motion for reconsideration, it had contended that the district
court erred by finding a Miranda violation; however, the court remained steadfast in its view that
defendant’s statement was the product of a custodial interrogation. Consequently, the district court
did not alter its ruling that defendant’s statement was inadmissible given the Miranda violation.
In response to the prosecutor’s motion for reconsideration, defendant had asserted, in addition to
his argument that his statement was involuntary, that evidence of the gun should be excluded
because the evidence was discovered after Trooper Fields unduly prolonged the traffic stop absent
probable cause to do so. The district court rejected this argument. In short, the district court ruled
that defendant’s statement was inadmissible, that evidence of the gun itself was admissible, that
the prosecution’s motion for reconsideration was thus granted in part and denied in part, that the
charge was reinstated, and that there was probable cause to bind defendant over to the circuit court
for trial.
In the circuit court, where, under a county concurrent jurisdiction plan, the case was
presided over by the same judge who had handled the district court proceedings, defendant moved
to suppress evidence of the gun’s discovery in defendant’s car. As argued previously, defendant
posited that his statement to police was involuntary and that the traffic stop was unduly prolonged.
On the basis of the law-of-the-case doctrine, the circuit court, pointing to its own decision when
sitting as judge in the district court, rejected the argument that defendant’s statement was
involuntarily made to Trooper Fields. The circuit court further ruled that defendant’s motion was
effectively a motion for reconsideration, which the court denied because the arguments raised were
no more persuasive than they were back in the district court. But the circuit court did elaborate in
regard to the previously-rejected, unduly-prolonged-stop argument. The court found that the
duration of the detention was under three minutes, which was “nowhere near a long stop,” and that
much of the delay was caused by the need to confirm defendant’s identity, which delay was
defendant’s fault in leaving his identification behind at the gas station and could not be blamed on
the police.
As noted, this Court denied defendant’s delayed application for leave to appeal, Bates,
unpub order at 1, but our Supreme Court, in lieu of granting leave to appeal, remanded the case
for consideration as on leave granted, Bates, 974 NW2d at 828.
II. ANALYSIS
A. LAW-OF-THE-CASE DOCTRINE
-3-
Defendant first argues on appeal that the circuit court misapplied the law-of-the-case
doctrine to preclude review of its own prior ruling at the district court level. In Grievance
Administrator v Lopatin, 462 Mich 235, 259-260; 612 NW2d 120 (2000), our Supreme Court
explained the nature of the law-of-the-case doctrine:
Under the law of the case doctrine, if an appellate court has passed on a
legal question and remanded the case for further proceedings, the legal questions
thus determined by the appellate court will not be differently determined on a
subsequent appeal in the same case where the facts remain materially the same. The
appellate court’s decision likewise binds lower tribunals because the tribunal may
not take action on remand that is inconsistent with the judgment of the appellate
court. Thus, as a general rule, an appellate court’s determination of an issue in a
case binds lower tribunals on remand and the appellate court in subsequent appeals.
[Citations and quotation marks omitted.]
The law-of-the-case doctrine does not apply to decisions of a trial court; therefore, a
successor trial judge can correct errors or reexamine a decision made by a prior judge, and a trial
court can reverse its own prior ruling. Prentis Family Foundation, Inc v Barbara Ann Karmanos
Cancer Institute, 266 Mich App 39, 52-53; 698 NW2d 900 (2005).
As reflected in these principles governing the law-of-the-case doctrine, we conclude that
the doctrine had absolutely no application whatsoever in the context of the instant case. The circuit
court was not bound by its earlier ruling when sitting as a district court judge; the district court is
not an appellate court, nor was the case before the circuit court in an appellate posture. There was
simply a new motion to suppress filed in the circuit court after a bindover. The error, however,
does not merit reversal and remand. The two other arguments posed by defendant on appeal are
that evidence of the gun should have been suppressed because (1) the traffic stop was unduly
prolonged and because (2) the statement by defendant to Trooper Fields about the gun was coerced
and involuntary. The circuit court, while referencing the law-of-the-case doctrine, also treated
defendant’s motion as a motion for reconsideration and stated that it had not been persuaded to
change its previous determinations relative to suppression of the gun evidence. Moreover, the
court additionally offered new substantive reasoning in rejecting the unduly-prolonged-stop
argument. In sum, regardless of the court’s error with respect to the law-of-the-case doctrine, the
court clearly also ruled against defendant independent of the doctrine and would plainly do so once
again were we to reverse and remand the case. We therefore conclude that reversal is unwarranted.
B. VOLUNTARINESS OF DEFENDANT’S STATEMENT
Defendant argues that the lower court erred by determining that his statement to Trooper
Fields about the gun was not coerced and was made voluntarily. “When reviewing a trial court’s
determination of the voluntariness of inculpatory statements, this Court must examine the entire
record and make an independent determination, but will not disturb the trial court’s factual findings
absent clear error.” People v Shipley, 256 Mich App 367, 372-373; 662 NW2d 856 (2003). A
trial court’s finding amounts to clear error if this Court is left with a definite and firm conviction
that a mistake was made. Id. at 373. “[D]eference is given to the trial court’s assessment of the
weight of the evidence and credibility of the witnesses.” Id.
-4-
In People v Campbell, 329 Mich App 185, 203-204; 942 NW2d 51 (2019), this Court
addressed the admissibility of evidence that was discovered as the result of a statement made in
violation of Miranda:
The prosecution, citing United States v Patane, 542 US 630; 124 S Ct 2620,
159 L Ed 2d 667 (2004), argues that the two additional guns were admissible
because Campbell’s statement about the additional weapons was voluntary, even
though the statement was elicited in violation of Miranda. In Patane, the Supreme
Court focused on the protection afforded by the Self-Incrimination Clause of the
Fifth Amendment, which it described as a prohibition on compelling a criminal
defendant to testify against himself at trial. The Court reasoned that the right against
compelled self-incrimination cannot be violated by the introduction of
nontestimonial evidence obtained as a result of voluntary statements. The Court
further explained:
“Introduction of the nontestimonial fruit of a voluntary statement does not
implicate the Self-Incrimination Clause. The admission of such fruit presents no
risk that a defendant’s coerced statements (however defined) will be used against
him at a criminal trial. In any case, the exclusion of unwarned statements is a
complete and sufficient remedy for any perceived Miranda violation. There is
simply no need to extend (and therefore no justification for extending) the
prophylactic rule of Miranda to the physical fruit of a voluntary, albeit unwarned,
statement.”
Even before Patane, the Michigan Supreme Court observed that application
of the exclusionary rule to evidence obtained as a result of a Miranda violation is
not a foregone conclusion because a violation of Miranda is not, in and of itself, a
violation of the Constitution. Instead, when the prosecution failed to demonstrate
that the defendant had adequately waived his privilege against self-incrimination
and his right to counsel, but there was no evidence of coercive police conduct
compelling the defendant’s statements, the Court held that third-party testimony
discovered as a result of the defendant’s unwarned statements need not be
suppressed. [Quotation marks, citations, brackets, and ellipses omitted.]
In this case, defendant argues that evidence of the pistol is inadmissible because his
statement to Trooper Fields was involuntary and coerced. In People v Cipriano, 431 Mich 315,
333-334, 429 NW2d 781 (1988), the Michigan Supreme Court set forth the analysis that governs
a determination whether a confession or statement was voluntary:
The test of voluntariness should be whether, considering the totality of all
the surrounding circumstances, the confession is the product of an essentially free
and unconstrained choice by its maker, or whether the accused’s will has been
overborne and his capacity for self-determination critically impaired. The line of
demarcation is that at which governing self-direction is lost and compulsion, of
whatever nature or however infused, propels or helps to propel the confession.
-5-
In determining whether a statement is voluntary, the trial court should
consider, among other things, the following factors: the age of the accused; his lack
of education or his intelligence level; the extent of his previous experience with the
police; the repeated and prolonged nature of the questioning; the length of the
detention of the accused before he gave the statement in question; the lack of any
advice to the accused of his constitutional rights; whether there was an unnecessary
delay in bringing him before a magistrate before he gave the confession; whether
the accused was injured, intoxicated or drugged, or in ill health when he gave the
statement; whether the accused was deprived of food, sleep, or medical attention;
whether the accused was physically abused; and whether the suspect was threatened
with abuse.
The absence or presence of any one of these factors is not necessarily
conclusive on the issue of voluntariness. The ultimate test of admissibility is
whether the totality of the circumstances surrounding the making of the confession
indicates that it was freely and voluntarily made. [Quotation marks, citations, and
ellipses omitted.]
The absence or presence of any one of these factors is not necessarily conclusive on the issue of
voluntariness, and no single factor is dispositive. People v Tierney, 266 Mich App 687, 709; 703
NW2d 204 (2005).
In the present case, Trooper Fields testified, and dash-cam video confirmed, that after
defendant stopped his vehicle and as the trooper approached the driver’s-side door, defendant
furiously reached about the front passenger compartment. Trooper Fields then made direct contact
with defendant, who was the car’s driver and its lone occupant. Defendant informed the trooper
that he was looking for his wallet, which carried his identification, but he could not locate the
wallet. Trooper Fields asked defendant to step out of the vehicle in light of defendant’s furtive
movements and his lack of identification. The trooper testified that he made this request within
30 seconds of coming into contact with defendant. Defendant told Trooper Fields that he left his
identification at a nearby gas station that he had just patronized. Defendant repeatedly expressed
concern about his wallet and asked for someone to retrieve his wallet from the gas station.
Defendant appeared very nervous and distracted. He was intently focused—to the point of
distraction—on his missing wallet and identification, such that he did not appear to hear what
Trooper Fields was saying or asking. For example, defendant put his hands in his pockets
immediately after being told by the trooper not to do so, and his answers to questions posed by
Trooper Fields did not always reflect proper responses.
Trooper Fields attempted to calm defendant down by advising him that he was not
concerned about or interested in defendant’s “weed” and that they would figure out what had
happened to his wallet and identification. The video confirmed Trooper Fields’s testimony that
once outside of the vehicle, defendant “continued to make some motions, like he was trying to get
back to the car, and was moving around quite a bit.” The trooper warned defendant at least twice
not to return to the vehicle. Because of defendant’s extreme nervousness and lack of identification,
and for Trooper Fields’s own safety, the trooper placed defendant in handcuffs and “temporarily
detained him.” Once defendant was handcuffed, Trooper Fields asked defendant seven times over
the course of approximately 120 seconds what defendant had in the vehicle that was making him
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so nervous. With respect to several of these inquiries, the trooper specifically asked defendant if
there was a gun in the car. Trooper Fields asked defendant to be honest and real with him, and the
trooper offered to “work” with defendant in return. Trooper Fields touched, grabbed, and held
defendant at times, but it was not in an aggressive, offensive, or threatening manner; rather, it was
done more in a guiding and calming manner to keep the fidgety defendant from worrying and
wandering off and to redirect his attention to the questioning. Because defendant repeatedly
expressed concern about his missing wallet and identification and appeared very distracted, it is
not clear that defendant was focused on or actually mentally processed what Trooper Fields was
asking him.2 As a consequence, the trooper’s repetition of the same question was more likely
attributable, at least in part, to trying to get defendant to focus on the question being asked. During
this same period of time, the trooper twice asked defendant his name and attempted to assuage
defendant’s concern over his missing wallet. Trooper Fields asked defendant to “take it down”
and to “relax.”
During the questioning, two additional troopers arrived on the scene and stood on either
side of defendant, approximately 10 feet away from defendant. The video further revealed that a
patrol car from the local police department arrived on the scene as did another two state police
cruisers. After Trooper Fields asked for the seventh time whether there was contraband in the car,
defendant nodded affirmatively when the trooper specifically inquired about a firearm. Defendant
then told Trooper Fields where the gun was located in the vehicle.
On the basis of this record, we cannot conclude that the circuit court clearly erred by finding
that defendant’s statement was voluntarily made. Undoubtedly, Trooper Fields put some pressure
on defendant to admit that there was contraband or a firearm in defendant’s vehicle. But the
trooper’s conduct did not reach the level at which defendant’s will was overborne and his capacity
for self-determination was critically impaired; instead, defendant’s concession was the product of
an essentially free and unconstrained choice by defendant. Indeed, our repeated viewing of the
video footage demonstrated to this panel that Trooper Fields treated defendant in a professional,
respectful, disciplined, and courteous manner. We patently find that the questioning was not
prolonged, that the length of time defendant was detained before he made the statement was short,
that defendant was not injured, intoxicated, drugged, or in ill health, that defendant had not been
deprived of food, sleep, or medical attention, that defendant was not physically abused, and that
the police did not threaten defendant with abuse. See Cipriano, 431 Mich at 333-334. As
previously noted, defendant presented as nervous, fidgety, and wholly unfocused. Consequently,
Trooper Fields’ repeated questions could certainly and reasonably be attributed to an effort to make
sure that defendant was fully aware of the questions that the trooper was posing to defendant, as
opposed to an effort to procure a coerced admission. Moreover, the video reflected that while
additional officers arrived at the scene, none of them engaged in any conduct or posturing that can
be described as threatening, intimidating, coercive, or otherwise improper.
We hold that the lower court did not clearly err when it found that defendant voluntarily
informed the trooper of the firearm’s presence in the vehicle. The short interrogation did not
2
We of course recognize that defendant’s nervousness and lack of focus were also likely due to
the fact that he had a firearm in his vehicle.
-7-
disclose circumstances of coercive police conduct compelling defendant’s statement. And Trooper
Fields was free to question defendant about the presence of weapons in defendant’s vehicle
because the question constituted a negligibly burdensome precaution taken to ensure the safety of
the responding officers. Campbell, 329 Mich App at 198-199 (a police officer is free to question
a motorist about the presence of weapons in his or her vehicle because the question pertains to part
of the mission of the traffic stop, i.e., a negligibly burdensome precaution employed to ensure the
officer’s safety). Reversal is unwarranted.
C. LENGTH OF THE TRAFFIC STOP
Defendant contends that Officer Fields prolonged the traffic stop beyond the time
necessary to accomplish its mission, thereby violating defendant’s right to be free from
unreasonable searches and seizures. Thus, according to defendant, the court erred by ruling that
the prosecution could present evidence of the gun at trial. In People v Kavanagh, 320 Mich App
293, 300-301; 907 NW2d 845 (2017), this Court observed:
Until the 2015 decision of the United States Supreme Court in Rodriguez [v
United States, 575 US 348; 135 S Ct 1609; 191 L Ed 2d 492 (2015)], there was
debate about whether requiring a driver to wait for a dog sniff after a traffic stop
had concluded should be considered a seizure separate from the traffic stop itself
or whether the basis for the traffic stop could encompass a brief additional delay
for a dog sniff. In Rodriguez, the United States Supreme Court definitively resolved
the debate, holding that a dog sniff is not fairly characterized as part of the officer’s
traffic mission. The Court explained that although police officers may conduct
certain unrelated checks during an otherwise lawful traffic stop, they may not do so
in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual. The Court held [that a] police stop
exceeding the time needed to handle the matter for which the stop was made
violates the Constitution’s shield against unreasonable seizures. Once the
constitutionally sound basis for the traffic stop has been addressed, any further
extension of the detention in order to conduct on-scene investigation into other
crimes or for any other reason is a Fourth Amendment violation unless new facts
come to light during the traffic stop that give rise to reasonable suspicion of
criminal activity. [Quotation marks, citations, and brackets omitted.]
As previously indicated, when Trooper Fields conducted the traffic stop, defendant could
not produce any identification; he had no driver’s license with him. That defendant had no
identification constituted a new fact that gave rise to the trooper’s authority to investigate whether
defendant was operating a motor vehicle without a valid operator’s license. This is because it is a
misdemeanor to drive a motor vehicle without a valid operator’s or chauffeur’s license, MCL
257.301; MCL 257.901, and it is a misdemeanor to fail to display a license upon demand of a
police officer, MCL 257.311; MCL 257.901. To further Trooper Fields’s investigation, he needed
to know defendant’s name. The trooper could then conduct a computer check to determine whether
anyone with the name given to him had a valid driver’s license. Second, Trooper Fields needed to
confirm that defendant was who he claimed to be via a photo identification, which the trooper
could obtain through confirmation of defendant’s claim that he left his wallet and identification at
the gas station.
-8-
A review of the dash-cam video revealed that Trooper Fields asked defendant his name
three times. The third time that he was asked his name, defendant identified himself as Daeshawn
Bates. Defendant gave the trooper his name 3 minutes and 35 seconds into the traffic stop. A few
moments later, defendant admitted to having the pistol in his car. Then, shortly thereafter, the
backup police officer arrived with defendant’s wallet and identification that the officer had
retrieved from the gas station. On this record, we cannot conclude that Trooper Fields had unduly
or unnecessarily prolonged the traffic stop leading up to defendant’s admission, at which point,
given the admission, the trooper had probable cause to enter and search defendant’s vehicle. Once
again, reversal is unwarranted.
We affirm.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-9- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483303/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 360759
Ottawa Circuit Court
JUAN JOSE DEL CID, LC No. 16-040357-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.
PER CURIAM.
In this interlocutory appeal, defendant appeals by delayed leave granted1 the trial court’s
order regarding the disclosure of privileged records following in camera review under People v
Stanaway, 446 Mich 643; 521 NW2d 557 (1994). We affirm, but direct the trial court on remand
to disclose all material, necessary evidence in the form of redacted records, consistent with this
opinion.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant was previously convicted by a jury of two counts of first-degree criminal sexual
conduct, MCL 750.520b(2)(b) (sexual penetration of a person less than 13 years of age by a
defendant 17 years or older) and (1)(b)(i) (sexual penetration of a person at least 13 years old but
less than 16 by a member of the same household). At his first trial, the complainant, AC, accused
defendant of repeatedly sexually abusing her while she was between the ages of 8 and 13 years
old. Defendant denied these allegations. Defendant’s convictions and sentences were later vacated
after this Court determined that the prosecution’s expert had inappropriately vouched for AC’s
credibility and that the error affected defendant’s substantial rights. People v Del Cid (On
1
People v Del Cid, unpublished order of the Court of Appeals, entered June 16, 2022 (Docket No.
360759).
-1-
Remand), 331 Mich App 532, 547, 550-551; 953 NW2d 440 (2020). Defendant’s case was
remanded for a new trial.
During pretrial proceedings on remand, defendant moved for discovery of privileged
information, specifically, “records regarding mental health assessments, treatments, and/or
counseling provided to or received by” AC, which defendant argued would be relevant to AC’s
credibility. Although the trial court initially denied defendant’s motion, on reconsideration the
trial court agreed that defendant had established a reasonable probability that AC’s records from
Holland Hospital and Pine Rest Christian Mental Health Services contained evidence necessary to
the defense. The court therefore ordered the prosecution to obtain records from those facilities for
a specified date range and provide those records to the trial court for in camera review.
After inspecting the privileged records, the trial court provided the parties with a
compilation of 10 quotations from the records that it deemed relevant to AC’s credibility and
necessary to the defense. Defendant filed a second motion for reconsideration, challenging the
trial court’s disclosure as too narrow in scope. The trial court denied reconsideration. This appeal
followed.
II. STANDARD OF REVIEW
Appellate courts review decisions regarding discovery for an abuse of discretion. People
v Phillips, 468 Mich 583, 587; 663 NW2d 463 (2003). A trial court abuses its discretion when its
decision “falls outside the range of principled outcomes.” People v Magnant, 508 Mich 151, 161;
973 NW2d 60 (2021).
We review unpreserved issues for plain error. People v Burkett, 337 Mich App 631, 635;
976 NW2d 864 (2021). “To establish entitlement to relief under plain-error review, the defendant
must establish that an error occurred, that the error was plain, i.e., clear or obvious, and that the
plain error affected substantial rights.” Id. (quotation marks and citation omitted). The last
requirement is satisfied if the error impacted the outcome of the proceedings. Id. Even if defendant
establishes a plain error affecting substantial rights, “[r]eversal is warranted only when the error
resulted in the conviction of an actually innocent defendant or seriously affected the fairness,
integrity, or public reputation of judicial proceedings independently of the defendant’s innocence.”
Id. (quotation marks and citation omitted).
III. SCOPE AND MANNER OF DISCLOSURE
Defendant argues that the trial court erred by providing a limited disclosure and that
additional information was necessary to his defense. We disagree that the scope of the trial court’s
disclosure was too narrow, but conclude that the trial court may have inadvertently omitted
additional statements regarding the subject matter it deemed material. We also agree with
defendant that the disclosure of the pertinent evidence should be in the form of redacted records
rather than a selection of quotations.
In Stanaway, 446 Mich at 649, the Michigan Supreme Court considered the circumstances
in which privileged records must be made available to a defendant to satisfy the defendant’s
constitutional right to obtain evidence necessary to his or her defense. After reviewing Michigan
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precedent regarding discovery and evidence, as well as jurisprudence from other jurisdictions, the
Court concluded that an in camera inspection of privileged records by the trial court was
appropriate if the defendant establishes “a good-faith belief, grounded on some demonstrable fact,
that there is a reasonable probability that the records are likely to contain material information
necessary to the defense.” Id. at 677. In the event that the in camera review reveals evidence
necessary to the defense, that evidence is to be supplied to defense counsel. Id. at 679. The
procedure from Stanaway was later codified in MCR 6.201(C)(2). People v Davis-Christian, 316
Mich App 204, 208; 891 NW2d 250 (2016).
Defendant argues that the trial court’s disclosure was too limited, because additional
information regarding AC’s symptoms, diagnosis or diagnoses, and treatment plan contained in
the records is critical to his defense. We disagree. The Stanaway Court explained that during an
in camera review, the trial court must determine “whether the evidence is material and necessary
to the defense, with material meaning exculpatory evidence capable of raising a reasonable doubt
about the defendant’s guilt.” Stanaway, 446 Mich at 679 n 40. The trial court is simply asked “to
decide whether the evidence suspected of being contained in the records was in fact there.” Id.
Defendant’s argument is premised on his belief that AC’s records contain specific
symptoms; diagnoses of serious, mind-altering mental health conditions; and particularized
treatment plans that would have bearing on the credibility of her allegations, memory, and
testimony. While we appreciate that defendant had a good-faith belief that such information would
be found in the records, his suspicion is ultimately unfounded. We have reviewed the privileged
records and agree with the trial court that they do not contain additional material evidence
necessary to the defense as defendant suspected they would.
However, our review revealed that the records contain three comments regarding the very
topic deemed material by the trial court that were not included in the trial court’s disclosure. Those
statements appear on Page 2 of the Admission Psychiatric Assessment from Pine Rest Christian
Mental Health Services, Page 12 of the July 5, 2016 records from Holland Hospital, and Page 9 of
the 33-page August 3, 2016 records from Holland Hospital. The trial court is directed to make
these statements available to defendant on remand.
Defendant also argues that the trial court erred by disclosing the material information by
way of a list of quotations from the records, rather than providing the actual redacted records to
defendant. We agree.
Neither Stanaway nor MCR 6.201(C)(2) specifically address this issue. In Stanaway, 446
Mich at 679, the Court said, “Only after the court has conducted the in camera inspection and is
satisfied that the records reveal evidence necessary to the defense is the evidence to be supplied to
the defense.” MCR 6.201(C)(2)(b) similarly states, “If the court is satisfied, following an in
camera inspection, that the records reveal evidence necessary to the defense, the court shall direct
that such evidence as is necessary to the defense be made available to defense counsel.” Inasmuch
as both articulations of the trial court’s duty seem to distinguish between “the records” and “the
evidence” contained therein, we conclude that neither authority explicitly requires that the actual
records (or duplicates) be made available to defendant.
-3-
However, defendant presents a persuasive argument regarding the potential evidentiary
difficulties that could flow from allowing disclosure of the material evidence in the form selected
by the trial court. If, for example, AC denies a history of hallucinations at trial, her statements
regarding this issue, as reported in the mental health records, would likely be admissible as
extrinsic evidence of a witness’s prior inconsistent statement under MRE 613(b). Assuming the
evidence would be otherwise admissible under hearsay exceptions, defendant could also attempt
to admit the statements as substantive evidence. See People v Steanhouse, 313 Mich App 1, 29;
880 NW2d 297 (2015) (noting that a prior inconsistent statement may only be admitted to prove
the truth of the matter asserted if it falls within an exception to the rule against hearsay), aff’d in
part and rev’d in part on other grounds 500 Mich 453 (2017). But the original of the writing is
generally required to prove its content, unless otherwise provided by the Michigan Rules of
Evidence or statute. MRE 1002. “A duplicate is admissible to the same extent as an original
unless (1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original.” MRE 1003. “A
‘duplicate’ is a counterpart produced by the same impression as the original, or from the same
matrix, or by means of photography, including enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reproduction, or by other equivalent techniques, which
accurately reproduces the original.” MRE 1001(4). While a photocopy would constitute a
duplicate, a summary of statements extracted from the records (prepared by the trial court) would
not necessarily be a reproduction of the original.2
Other evidence of the contents of a writing are admissible under four circumstances:
(1) Originals Lost or Destroyed. All originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original Not Obtainable. No original can be obtained by any available
judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when an original was
under the control of the party against whom offered, that party was put on notice,
2
To the extent that the trial court’s list of quotations constitutes a summary, summaries are
governed by MRE 1006, which states:
The contents of voluminous writings, recordings, or photographs which
cannot conveniently be examined in court may be presented in the form of a chart,
summary, or calculation. The originals, or duplicates, shall be made available for
examination or copying, or both, by other parties at reasonable time and place. The
court may order that they be produced in court.
The records at issue are not overly voluminous. And to the extent that the records would need to
be made available to the parties (presumably in redacted form), there seems little sense in not
providing the redacted records in the first instance.
-4-
by the pleadings or otherwise, that the contents would be a subject of proof at the
hearing, and that party does not produce the original at the hearing; or
(4) Collateral Matters. The writing, recording, or photograph is not closely
related to a controlling issue. [MRE 1004(1) through (4).]
Here, MRE 1001(1) does not apply because the original is presumably still in the
possession of the healthcare facilities and a duplicate—which is generally admissible as an
original, MRE 1003—is in the possession of the trial court. MRE 1001(2) does not apply because
both Stanaway and MCR 6.201(C)(2) provide procedures for obtaining the original or a duplicate.
MRE 1001(3) does not apply because the original is not in the possession of the prosecution.
MRE 1001(4) does not apply because the evidence contained in AC’s records speak directly to
whether the jury should credit AC’s allegations or defendant’s denials. Extrinsic evidence tending
to prove a defense theory is not evidence on a collateral matter. People v Steele, 283 Mich App
472, 488-489; 769 NW2d 256 (2009).
Because the summary provided by the trial court could lead to evidentiary difficulties at
trial, we direct the trial court to provide defendant with copies of the relevant records, redacted to
reveal only the evidence that is necessary to the defense.3
IV. IN CAMERA REVIEW
Defendant also argues that the in camera review procedure established by Stanaway does
not satisfy the requirements of due process. Defendant argues that such a review by the trial court,
without involvement of defense counsel, violates due process because the trial court does not know
the details of the defense strategy and, therefore, cannot know whether information is necessary to
the defense. He also argues defense counsel’s review of the records might affect the “particulars”
of the defense in unanticipated ways. We disagree.
Defendant did not preserve this issue for review by raising it before the trial court. People
v Anderson, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 354860); slip op at 4,
app held in abeyance 978 NW2d 835 (2022). Our review is therefore limited to plain error.
Burkett, 337 Mich App at 635.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in
the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants a meaningful opportunity to present a complete defense.” Holmes
v South Carolina, 547 US 319, 324; 126 S Ct 1727; 164 L Ed 2d 503 (2006) (quotation marks and
citation omitted). “But this right is not unlimited and is subject to reasonable restrictions.” People
3
Our instructions should not be viewed as suggesting that the trial court needs to provide defendant
with extensive pages of records that are entirely redacted. It would suffice to produce the relevant
pages, redacted to reveal only the pertinent statement, the patient’s name, the date, and the name
of the authoring medical provider, as well as cover pages or other identifying documents sufficient
to enable the records to be identified and categorized (e.g., a cover page identifying the record as
a mental health assessment, a progress note from a treatment provider, therapist’s notes, et cetera).
-5-
v King, 297 Mich App 465, 473; 824 NW2d 258 (2012). Moreover, the Constitution does not
afford a defendant facing criminal charges a general right to discovery. Stanaway, 446 Mich at
664.
Defendant’s argument was considered, and rejected, in Stanaway. Our Supreme Court in
Stanaway sought to balance the state’s interest in protecting the confidentiality of certain
privileged documents with the defendant’s right to obtain evidence necessary to his defense, and
settled on a procedure that would make evidence that is reasonably necessary to the defense
available while still avoiding needless disclosure of immaterial privileged information. Id. at 649-
650. The Stanaway Court considered whether defense counsel needed to be involved in the review
process and concluded that trial judges are well-equipped to recognize evidence that might be
material to the defense. Id. at 679. Defendant’s contention that the trial court’s review is
ineffective without participation by defense counsel, who knows the full defense strategy, is
unpersuasive because the first step of the Stanaway procedure requires the defendant to establish
a reasonable probability that the records are likely to contain information necessary to the defense.
Id. at 677. This step necessarily requires the defendant to identify enough of the defense to make
the relevance of the requested records apparent. At any rate, the Stanway Court observed, “The
presence of defense counsel at such an inspection is not essential to protect the defendant’s
constitutional rights and would undermine the privilege unnecessarily.” Id. at 679. This Court is
bound by the Supreme Court’s determination that the Constitution does not require defense
counsel’s presence at the in camera review of privileged records. People v Strickland, 293 Mich
App 393, 402; 810 NW2d 660 (2011).
Affirmed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
-6- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483302/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 358389
Calhoun Circuit Court
KEVIN THEODORE WILSON, LC No. 2020-001489-FH
Defendant-Appellee.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
The prosecution appeals as of right the dismissal with prejudice of a possession of child
sexually abusive material charge, MCL 750.145c(4)(a), against defendant. The trial court denied
the prosecution’s motion for a nolle prosequi and motion to remand and dismissed the case with
prejudice. We reverse.
I. FACTUAL BACKGROUND
The facts underlying this appeal are not contested. In June 2020, the prosecution charged
defendant with possession of child sexually abusive material arising from images recovered from
defendant’s personal devices. Defendant waived a preliminary examination. Defendant was
released on bond pending trial.
In July 2021, defendant rejected the prosecution’s plea offer, so a jury trial was scheduled
for August 2021. In advance of trial, the prosecution filed a notice of intent to call several
witnesses, including the lead and secondary detectives who heard defendant’s confession. The
day before trial was scheduled to begin, the prosecution requested an adjournment because two of
its witnesses, the lead and secondary detectives, were going to be unavailable the following week
because of employment training. The trial court concluded that this reason for unavailability was
an insufficient basis for an adjournment and denied the prosecution’s request for an adjournment.
The trial court reasoned that the prosecution can either bring the law enforcement officers back
from training or have the law enforcement officers not attend training because they had a subpoena
for trial.
-1-
The morning of trial, the prosecution informed the trial court that it would not be
proceeding with trial and would be filing a motion for a nolle prosequi. The prosecution decided
to let the law enforcement officers attend training, so it could not proceed, in part, because the law
enforcement officers would not be available for the trial. In the alternative, the prosecution raised
a motion to remand. The trial court pointed out how the prosecution “decided on the eve of trial
that [it] wanted to enhance the charges.”
To begin its ruling, the trial court discussed an unpublished opinion from the Court of
Appeals, which changed how the trial court thought about the prosecution filing a nolle prosequi
on the eve of trial. In discussing the unpublished opinion, the trial court incorrectly stated that it
was a published opinion from this Court. The trial court denied the prosecution’s motion for a
nolle prosequi and motion to remand, and dismissed the case with prejudice. Afterward, the trial
court issued an order that stated “pursuant to [its] decision in this matter” and the unpublished
opinion cited during the trial court’s oral ruling, “this case [is] dismissed WITH prejudice.”
The prosecution now appeals.
II. PRESERVATION OF ISSUE
To properly preserve an issue for appeal, it must be raised before, and addressed and
decided by, the trial court. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007). The prosecution raised the matter in its motion for a nolle prosequi and its
motion to remand before the trial court. The trial court addressed and denied both the prosecution’s
motion for a nolle prosequi and to remand and dismissed the case with prejudice. The prosecution
has preserved this issue for appeal.
III. STANDARD OF REVIEW
“A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013). A
trial court necessarily abuses its discretion when it makes an error of law. People v Swain, 288
Mich App 609, 628-629; 794 NW2d 92 (2010). A trial court abuses its discretion when it premises
its decision on a misunderstanding of controlling legal principles or when it fails to exercise
discretion when called on to do so. People v Stafford, 434 Mich 125, 134 n 4; 450 NW2d 559
(1990); People v Cress, 250 Mich App 110, 149; 645 NW2d 669 (2002), rev’d on other grounds
468 Mich 678 (2003).
This Court reviews a trial court’s ruling regarding a motion to dismiss, including a motion
for nolle prosequi, for an abuse of discretion. People v Grove, 455 Mich 439, 460; 566 NW2d 547
(1997), superseded by court rule on other grounds as stated in People v Franklin, 491 Mich 916;
813 NW2d 285 (2012); People v Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998). This
Court reviews a trial court’s decision regarding a motion to remand to the district court also for an
abuse of discretion. People v Jones, 252 Mich App 1, 4; 650 NW2d 717 (2002).
A trial court possesses the inherent authority to sanction litigants and their counsel;
including the right to dismiss an action. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
-2-
NW2d 809 (2006). This Court reviews a trial court’s dismissal of a case as an exercise of this
power for an abuse of discretion. Id.
IV. ANALYSIS
A. MOTION FOR A NOLLE PROSEQUI
The prosecution states that the separation-of-powers doctrine shields a nolle prosequi
decision from judicial veto unless entering the order would be unconstitutional, illegal, or ultra
vires. The prosecution also states that the trial court made an error of law by believing the
unpublished opinion mandated the denial of the prosecution’s motion for a nolle prosequi.
Between the prosecution not acting in a manner that was unconstitutional, illegal, or ultra vires
and the trial court incorrectly applying legal principles and authority, the prosecution argues the
trial court abused its discretion when it denied the prosecution’s motion for a nolle prosequi. We
agree.
A prosecuting attorney shall not enter a nolle prosequi upon an indictment,
or discontinue or abandon the indictment, without stating on the record the reasons
for the discontinuance or abandonment and without the leave of the court having
jurisdiction to try the offense charged entered in its minutes. [MCL 767.29.]
In regard to the prosecution’s motion to dismiss, the decision is within the prosecution’s
discretion to proceed to trial or to dismiss a case. See People v Morrow, 214 Mich App 158, 165;
542 NW2d 324 (1995). In deciding whether a prosecuting attorney acted properly in proposing to
nolle prosequi, discontinue, or abandon a prosecution, the trial court must review the prosecutor’s
statement of reasons and the evidence filed in the case. Genesee Co Prosecutor v Genesee Circuit
Judge, 391 Mich 115, 121; 215 NW2d 145 (1974). Such a review is a judicial review, searching
the record to determine whether the prosecutor’s decision is in accord with the law, facts, and
reason of the matter. Id. A trial court may not substitute its judgment for that of the prosecuting
attorney as if it were acting in a supervisory capacity. Id.
“Unless the prosecution acts in a manner that is unconstitutional, illegal, or ultra vires, the
prosecution’s decision to proceed to trial or dismiss the case is exempt from judicial review
pursuant to the separation of powers doctrine.” Jones, 252 Mich App at 10. A circuit court may
reverse or revise the prosecution’s decisions only if it appears on the record that it has abused the
power confided to it. Genesee Co Prosecutor, 391 Mich at 121.
We are not persuaded that the prosecution abused the power entrusted to it in moving for
a nolle prosequi even if it did so in light of the trial court’s denial of the motion to adjourn trial.
Rather, we find the trial court’s denial of the motion to adjourn the trial to be an abuse of discretion
in this case. First, the reason for the adjournment was eminently reasonable—the need of two
police witnesses to attend training. If recent events have demonstrated anything, it is that proper
police training is a societal good of tremendous value. Any additional police training should be
encouraged, not discouraged or penalized. Second, this is not a case in which there were already
multiple adjournments. We certainly would understand where trial has been adjourned a number
of times and the trial judge finally says “Enough is enough.” But here the trial judge in effect said
-3-
that one adjournment is too much. Once may be enough, but it is certainly not too much where
there is a valid reason for the request.
Further, a nolle prosequi would not have unfairly prejudiced defendant. Had the trial court
simply granted the motion to adjourn, defendant would simply have remained free on bond until
the rescheduled trial. Defendant offers no reason why a short delay in the trial would have
prejudiced his ability to present a defense.
The prosecution further argues that the trial court abused its discretion when denying the
motion for a nolle prosequi because it cited the unpublished opinion, which the trial court
mistakenly believed was a published opinion from this Court. An unpublished opinion is not
binding under the rule of stare of decisis, but when the caselaw is limited, this Court can view
these opinions as persuasive. MCR 7.215(C)(1); People v Green, 260 Mich App 710, 720 n 5;
680 NW2d 477 (2004).
“If a party cites an unpublished opinion, the party shall explain the reason for citing it and
how it is relevant to the issues presented.” MCR 7.215(C)(1). However, if a trial court fails to
exercise its discretion when it has an affirmative obligation to do so, then its abdication to do so
constitutes an abuse of discretion. Stafford, 434 Mich at 134 n 4. For example, a trial court fails
to exercise discretion when it believes something is mandatory because of a mistaken belief about
the law, when, in reality, the decision is discretionary. See People v Green, 205 Mich App 342,
346-347; 205 NW2d 782 (1994).
It is not entirely clear from the record whether the trial court followed the unpublished
opinion because the court found it persuasive or whether it felt obligated to follow the opinion
because of the trial court’s mistaken belief that it was published. Accordingly, even if we were
not persuaded that the trial court abused its discretion in denying the prosecution’s motions, at a
minimum it would be necessary to vacate the trial court’s order and remand the matter to the trial
court for reconsideration in light of the fact that the opinion that it relied upon was unpublished.
B. MOTION TO REMAND
When the trial court denied the prosecution’s motion for a nolle prosequi, the prosecution
argues that the trial court should have then granted its motion to remand. The prosecution neglects
to provide any authority to argue this issue but still argues that the trial court abused its discretion
when it denied the prosecution’s motion to remand. We disagree. The prosecutor’s failure to
provide supporting authority for this argument could be seen as an abandonment of the issue.
People v Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004). We will nonetheless address
this issue.
“Jurisdiction of a criminal defendant is acquired by the circuit court upon the filing . . . of
the return of the magistrate before whom [the defendant] had waived preliminary examination, or
before whom the defendant had been examined.” People v Johnson, 427 Mich 98, 107 n 7; 398
NW2d 219 (1986) (quotation marks and citations omitted; alterations by Johnson Court). Once a
circuit court has obtained jurisdiction, it may remand to the district court to enable the prosecution
to present additional evidence. See People v Staffney, 187 Mich App 660, 662; 468 NW2d 238
(1991).
-4-
In this case, the trial court denied the prosecution’s motion to remand because of two
reasons: (1) the prosecution had a substantial amount of time to add more charges before bringing
its motion to remand on the eve of trial, and (2) the trial court did not want to give the impression
that defendant was being punished for his decision to not plea, finding that the prosecution’s
motion to remand was raised only after the prosecution brought up the fact that defendant rejected
the prosecution’s plea offer.
The first time the prosecution mentions additional charges is on the day of trial and in the
alternative to its motion for a nolle prosequi. The day after the trial court denied its motion for an
adjournment, the prosecution raised its motion for a nolle prosequi, which, if granted, would
ultimately prevent the trial from continuing, like an adjournment. In the alternative, the
prosecution raised its motion to remand.
When arguing for both motions, the prosecution brought up defendant’s failure to plea.
The prosecution reminded the trial court that “this case was bound over to Circuit Court based on
a plea agreement between the parties and no further charges would be brought if the [d]efendant
would plead as charged for possible time served” but defendant failed to plea. Instead, the trial
court deduced the prosecution wanted “to up the charges now and go back to District Court[,]
punishing [defendant] for not taking the plea agreement.”
While the trial court would be understandably concerned with a situation where a
prosecutor wanted to file additional charges in response to a defendant declining a plea offer, that
is not the case here. It was part of a plea agreement that no additional charges would be filed if
defendant agreed to plead guilty to the charges upon which he was bound over. Because defendant
ultimately did not comply with that plea agreement, the prosecution was free to file any additional
charges that were appropriate.1
V. CONCLUSION
We conclude that the trial court abused its discretion by denying the prosecution’s motion
for a nolle prosequi, denying the prosecution’s motion to remand, and dismissing the case with
prejudice.
Reversed.
/s/ David H. Sawyer
/s/ Jane E. Markey
1
Alternatively, unless there would be an issue of double jeopardy, an issue that is not before us, it
is not clear to us why the prosecution would have needed a motion to remand after the dismissal
rather than merely filing new charges against defendant for the uncharged offenses.
-5- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483298/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 358434
Oakland Circuit Court
WAYNE ALAN GILES, LC No. 2007-215493-FH
Defendant-Appellant.
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the trial court’s order denying his application to set
aside his convictions. We affirm.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
In 2007, defendant pleaded nolo contendere to charges of aggravated stalking, MCL
750.411i, malicious destruction of personal property valued at $200 or more but less than $1,000
(“MDOP”), 750.377a(1)(c)(i), and malicious annoyance by writing (“malicious annoyance”),
MCL 750.390. He was sentenced to 2 to 5 years’ imprisonment for the aggravated stalking
conviction, one year of imprisonment for the MDOP conviction, and 90 days’ imprisonment for
the malicious annoyance conviction.
The convictions arise from a seven-year period in which defendant repeatedly harassed his
neighbors. He sent the victims a number of sexually-explicit and threatening letters. On at least
30 occasions defendant threw various items at the victims’ properties, including batteries, eggs,
feces, and rotten fruit. The victims did not know or suspect that defendant was the one committing
these acts because they believed that defendant was a good neighbor. Defendant actively misled
1
People v Giles, unpublished order of the Court of Appeals, entered January 26, 2022 (Docket
No. 358434).
-1-
the police, putting eggs on his own roof and reporting to the police that his property was also being
egged.
On May 17, 2021, defendant filed an application with the trial court to set aside his
convictions. Oral argument was scheduled, but was later cancelled by the trial court. On August
18, 2021, the trial court entered an order stating it: “dispenses with oral argument. MCR
2.119(E)(3). Setting aside the convictions is not warranted as it would be inconsistent with the
public welfare pursuant to MCL 780.621d(13).” This appeal followed.
II. ORAL ARGUMENT
Defendant argues the trial court erred in denying his application to set aside his convictions
without conducting oral argument on the matter. We disagree.
A. STANDARD OF REVIEW
This Court reviews de novo questions of law. People v Van Tubbergen, 249 Mich App
354, 360; 642 NW2d 368 (2002). “Statutory interpretation is a question of law that is subject to
review de novo by this Court.” Id.
In examining a statute, it is our obligation to discern the legislative intent
that may reasonably be inferred from the words expressed in the statute. One
fundamental principle of statutory construction is that a clear and unambiguous
statute leaves no room for judicial construction or interpretation. Thus, when the
Legislature has unambiguously conveyed its intent in a statute, the statute speaks
for itself and there is no need for judicial construction; the proper role of a court is
to apply the terms of the statute to the circumstances in a particular case.
Concomitantly, it is our task to give the words used by the Legislature their
common, ordinary meaning. [Id. (quotation marks and citations omitted).]
B. LAW AND ANALYSIS
The Setting Aside Convictions Act (SACA), MCL 780.621 et seq., states: “For an
application under section 1(1), upon the hearing of the application the court may require the filing
of affidavits and the taking of proofs as it considers proper.” MCL 780.621d(11) (emphasis
added). Defendant argues that this subsection requires a trial court to conduct a hearing, i.e., oral
argument. He contends that the trial court erred when it decided defendant’s application without
oral argument.
By its plain language, the statute does not require oral argument. The referenced language
merely directs that a court may require an applicant to file further proofs before deciding whether
to grant or deny an application to set aside a conviction. Indeed, there is nothing in the statute that
demands a trial court conduct oral argument upon the filing of an application to set aside a
conviction. Moreover, the court rules specifically allow a trial court to “dispense with or limit oral
arguments on motions.” MCR 2.119(E)(3). The trial court did not err when it denied defendant’s
application without oral argument.
-2-
III. EXPUNGEMENT DECISION
Defendant also argues the trial court abused its discretion when it denied his application to
set aside his conviction. We disagree.
A. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a trial court’s decision to grant or deny an
application to set aside a conviction. People v Van Heck, 252 Mich App 207, 210 n 3; 651 NW2d
174 (2002). “An abuse of discretion occurs when the court chooses an outcome that falls outside
the range of reasonable and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749
NW2d 272 (2008). “The abuse of discretion standard recognizes that there will be circumstances
in which there will be no single correct outcome; rather, there will be more than one reasonable
and principled outcome.” People v Carnicom, 272 Mich App 614, 616; 727 NW2d 399 (2006)
(quotation marks and citation omitted).
B. LAW AND ANALYSIS
“The setting aside of a conviction or convictions under [the SACA] is a privilege and
conditional and is not a right.” MCL 780.621d(14). The SACA sets forth the preliminary criteria
a defendant must satisfy before applying to set aside a conviction. MCL 780.621d(1) to (4). The
statute requires that a defendant wait a specified period of time after the challenged sentence is
complete, and they must not be charged with or convicted of any other crime before filing their
application. If these criteria are satisfied, then the grant or denial of the application is at the
discretion of the trial court. MCL 780.621d(13) states:
If the court determines that the circumstances and behavior of an applicant
under section 1(1) or (3), from the date of the applicant’s conviction or convictions
to the filing of the application warrant setting aside the conviction or convictions,
and that setting aside the conviction or convictions is consistent with the public
welfare, the court may enter an order setting aside the conviction or convictions.
Defendant contends the trial court abused its discretion in denying his application to set
aside his convictions. He notes that he has incurred no other criminal convictions since the time
he was convicted of the crimes he wants set aside, and that “he is no longer the person who
committed those crimes.” And, aside from the prosecutor’s objections to his application, the trial
court lacked any evidence that he is a threat to public welfare.
By the plain language of MCL 780.621d(13), a trial court has wide discretion in deciding
whether to grant a criminal defendant’s application to set aside their conviction. Again, the statute
states “the court may enter an order setting aside the conviction or convictions.” MCL
780.621d(13) (emphasis added). “Use of the word ‘may’ ordinarily is permissive.” People v
Davis, 337 Mich App 67, 77; 972 NW2d 304 (2021). Thus, the setting aside of a conviction is at
the trial court’s discretion even if the court is presented with evidence showing the circumstances
warrant setting aside the conviction.
It is undisputed defendant satisfied the preliminary statutory criteria to set aside his
convictions. Nevertheless, the trial court retained discretion to deny defendant’s application and,
-3-
as the prosecution noted, the nature of defendant’s convictions suggested he would continue to be
a menace to society. Again, the abuse of discretion standard contemplates that “there will be more
than one reasonable and principled outcome.” Carnicom, 272 Mich App at 616. In this
circumstance, the trial court properly exercised its discretion and denied the application.2
To the extent defendant argues the trial court could not rely on the prosecutor’s objection
to the application as evidence in support of a denial, this argument is abandoned on appeal. Other
than a cursory reference suggesting that the trial court should not have relied on the objection,
defendant offers no argument or authority demonstrating that the trial court erred on this basis.
“The failure to brief the merits of an allegation of error constitutes an abandonment of the issue.”
People v McPherson, 263 Mich App 124, 136; 687 NW2d 370 (2004). Thus, we decline to
consider this argument.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
2
Defendant appears to request that this Court allow him to amend his application to include a
conviction from another case involving a second conviction for aggravated stalking, MCL
750.411i. Defendant’s request is not in the form of a motion and we decline to consider it. MCR
7.211. However, if defendant were to seek expungement of this second aggravated stalking
conviction, he will have reached the maximum number of assaultive felonies that can be expunged.
MCL 780.621(1)(b).
-4- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483318/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KATE FIELDS, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 359661
Genesee Circuit Court
FLINT CITY COUNCIL, LC No. 21-116334-AW
Defendant-Appellant.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Members of defendant Flint City Council passed a resolution barring plaintiff Kate Fields,
then-president of the City Council, from speaking at council meetings for 30 days. The trial court
enjoined the resolution, concluding that it violated the Open Meetings Act (OMA), MCL 15.261
et seq. The injunction expired on October 28, 2021, and Fields no longer serves on the City
Council. The parties acknowledge that a decision by this Court would have no practical legal
effect on the injunction, but they urge us not to dismiss the case as moot because the issue presented
is likely to recur yet evade judicial review and because a decision is necessary for future guidance.
We disagree, and therefore we dismiss the case as moot.
I. FACTUAL BACKGROUND
At a September 28, 2021 virtual meeting of the Flint City Council, the City Council passed
a resolution to silence then-president Fields from speaking at meetings for 30 days. Fields retained
the ability to attend meetings and vote.1 On October 15, 2021, Fields filed a complaint for an
expedited injunction under the OMA. Fields alleged that the resolution to silence her violated
1
There appears to be no written copy of the resolution but a recording of the City Council meeting
is available here: https://www.youtube.com/watch?v=xI6y0LVpiac. Discussion on the motion
begins at 2:15:00. At the 3:12:00 mark, an individual clarifies that the motion was to “censure the
president for 30 days,” and “what that means is silencing her voice, she can vote but she can’t
speak.”
-1-
multiple provisions of the OMA. Fields argued that the resolution infringed on her right to be
heard by other councilmembers and members of the public and amounted to an unlawful exclusion
from a public meeting.
The trial court temporarily enjoined the resolution until the court could hear the matter on
an expedited basis. The court held a hearing on October 25, 2021, to decide whether to extend the
injunction for the one remaining meeting scheduled before October 28, 2021. Following
arguments from both parties, the trial court continued the injunction, concluding that the City
Council resolution infringed on Field’s right to be heard under the OMA.2 In the trial court’s view,
allowing Fields to vote was insufficient to allow her to be heard. The court entered an order
extending the injunction through October 28, 2021. After the injunction dissolved, Fields’s term
of office expired on November 8, 2021, and she no longer serves on City Council. City Council
now appeals.
II. MOOTNESS
It is undisputed that the issue presented has been rendered moot by the expiration of the
injunction. Yet the parties argue that we should decide the issue because an exception to the
mootness doctrine applies.
The applicability of mootness presents a question of law which we review de novo. TM v
MZ, 501 Mich 312, 315; 916 NW2d 473 (2018). De novo review means that we “review the legal
issue independently” and without deference to the trial court. Wright v Genesee Co, 504 Mich
410, 417; 934 NW2d 805 (2019). We address the mootness issue first because it is a “threshold
issue that a court addresses before it reaches the substantive issues of the case itself.” People v
Richmond, 486 Mich 29, 35; 782 NW2d 187 (2010).
“An issue is moot if an event has occurred that renders it impossible for the court to grant
relief.” Attorney General v Public Serv Comm, 269 Mich App 473, 485; 713 NW2d 290 (2005).
Because this Court’s principal duty is to decide actual cases and controversies, “this Court does
not reach moot questions or declare principles or rules of law that have no practical legal effect in
the case before us unless the issue is one of public significance that is likely to recur, yet evade
judicial review.” Federated Publications, Inc v Lansing, 467 Mich 98, 112; 649 NW2d 383
(2002), abrogated on other grounds by Herald Co, Inc v Eastern Mich Univ Bd of Regents, 475
Mich 463, 467; 719 NW2d 19 (2006). City Council argues that this issue is “capable of repetition,
yet evading review,” the standard the United States Supreme Court uses when deciding whether
to review cases that might otherwise be moot. See Weinstein v Bradford, 423 US 147, 148-149;
96 S Ct 347; 46 L Ed 2d 350 (1975). A case falls into this category when “(1) the challenged
action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and
2
MCL 15.263a(2), the relevant statutory provision, provides that an electronically held meeting
of a public body “must be conducted in a manner that permits 2-way communication so that
members of the public body can hear and be heard by other members of the public body, and so
that public participants can hear members of the public body and can be heard by members of the
public body and other participants during a public comment period.” (Emphasis added.)
-2-
(2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the
same action again.” Id. at 149.
The City Council and Fields each contend that this issue remains justiciable and urge us to
resolve the disputed interpretation of the OMA. We decline to do so because we are unpersuaded
that the issue appealed is likely to recur.
Fields is no longer a member of the City Council, and nothing in the record suggests that
she plans to run for a seat on the City Council again. The City Council argues that Fields is capable
of running again, but a speculative assertion that Fields could run—without any evidence to
support it—does not satisfy the “likely to recur” prong. See League of Women Voters of Mich v
Secretary of State, 506 Mich 561, 582 n 26; 957 NW2d 731 (2020) (noting that a moot
constitutional challenge to petition drive procedures was not likely to recur because the plaintiff
“has not asserted to this Court that it intends to resume the petition drive later, nor is there any
record evidence suggesting it will”). This unsupported claim of future candidacy also does not
create a “reasonable expectation” that Fields will face this same action again.3 Therefore, this
issue is not likely to recur between the same complaining parties.
The City Council also suggests that the alleged harm is likely to recur because it is probable
that the City Council will have to punish another one of its members under its own rules again.
First, we do not dispute the possibility that City Council may have to punish one of its members
for future misconduct. But our mootness inquiry focuses on the challenged action—a resolution
barring a councilmember from speaking—not any unknown punishment that the City Council may
see fit in the future. To the best of our knowledge, a censure silencing a councilmember is a first-
of-its-kind issue in Michigan. The novelty alone bolsters our belief that the issue is not likely to
recur.4 Second, the parties broadly assert that the issue is one of public importance because it
3
The absence of evidence showing an intent to run for office is particularly relevant to our
mootness analysis. In Paquin v St Ignace, 504 Mich 124, 130-131; 934 NW2d 650 (2019), our
Supreme Court confronted a challenge to a state constitutional provision barring individuals
convicted of certain felonies within the preceding 20 years from serving in local government. The
plaintiff, who had a 2010 felony conviction, attempted to run for city council in the November
2015 election, but a local official denied his request to be placed on the ballot. Id. at 127-128.
After years of litigation, the Supreme Court in 2019 decided the matter and declined to declare the
issue moot. Id. at 131 n 4. The Court reasoned that “though the disputed election had already
occurred, the defendant was barred from public office for 20 years after his 2010 felony conviction,
and he said he planned to run for office in the future.” League of Women Voters, 506 Mich at 583
n 27, citing Paquin, 504 Mich at 131 n 4.
4
The City Council references Mays v Fields, opinion of the United States District Court for the
Eastern District of Michigan, issued March 5, 2021 (Case No. 20-CV-12504), pp 1-3, another case
involving disputes between members of Flint City Council. There, Councilmember Eric Mays and
a few of his constituents sued Fields and other councilmembers after Mays was removed or
excluded from city council meetings at least four times, including being muted on Zoom at one
meeting, for being disruptive and argumentative. Id. The federal district court dismissed the
-3-
applies to every level of government across Michigan. But the fact that an issue raises a potentially
unique question of public significance is not enough on its own to overcome the longstanding
judicial doctrine against deciding moot cases.5
Therefore, we dismiss the appeal as moot.6
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
plaintiffs’ federal claims as barred by legislative immunity. Id. at 5-6. To the extent that the City
Council cites this case to show that the type of issue challenged here is likely to recur, we disagree.
Mays did not involve a resolution silencing a councilmember for a prescribed future time period,
and the plaintiffs in the case did not raise any claims under the OMA.
5
Fields cites Mead v Batchlor, 435 Mich 480, 487-488; 460 NW2d 493 (1990), abrogated on other
grounds by Turner v Rogers, 564 US 431; 131 S Ct 2507; 180 L Ed 2d 452 (2011), for the existence
of a “public-interest exception to the mootness doctrine.” There, our Supreme Court approvingly
quoting a legal encyclopedia stating that a “court will decide a moot case or determine a moot
question where this appears to be in the public interest, as for guidance in future cases.” Mead,
435 Mich at 487 (quotation marks and citation omitted). At most, this statement was nonbinding
dictum because it was unnecessary to the resolution of the case. See Pew v Mich State Univ, 307
Mich App 328, 334; 859 NW2d 246 (2014). The Mead Court noted that the defendant’s challenge
to his sentence was likely not moot because of still-existing collateral consequences. Mead, 435
Mich at 486-487. Even so, we would not conclude that resolution of this case on the merits is
necessary for the public interest or for guidance in future cases, where future cases of the same
type are likely exceedingly rare.
6
Because this case is moot, we offer no opinion on the parties’ arguments about the proper
interpretation of the OMA and the applicability of legislative immunity.
-4- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483315/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL CLARK, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 359204
Wayne Circuit Court
SUBURBAN MOBILITY AUTHORITY FOR LC No. 18-000904-NF
REGIONAL TRANSPORTATION,
Defendant-Appellant,
and
MICHAEL ROSEBOROUGH,
Defendant.
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Defendant Suburban Mobility Authority for Regional Transportation1 (“SMART”) appeals
as of right the trial court’s order granting judgment of arbitration award to plaintiff Michael Clark.
We affirm.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
This case arises from a September 21, 2017 automobile accident involving a SMART bus
and an unknown white box truck. The bus rear-ended the box truck after the box truck stopped
abruptly at an intersection in Detroit. Defendant Michael Roseborough was the driver of the bus
and Clark was a passenger. After the accident, Clark complained of back injuries and was taken
1
The trial court granted summary disposition in favor of defendant Michael Roseborough.
Plaintiff Michael Clark does not contest this dismissal and Roseborough is not a party to this
appeal.
-1-
by ambulance to the hospital where he was diagnosed with acute back pain. In the time following
the accident, Clark treated with a number of medical providers for his accident-related injuries.
Clark executed a number of assignments to these providers, assigning his right to collect personal
injury protection (PIP) benefits under the no-fault act, MCL 500.3101 et seq.
Clark then filed the complaint in this case alleging, among other things, SMART was liable
to him for his PIP benefits. The trial court dismissed the case after the parties agreed to resolve
the issues in arbitration. During the arbitration process, SMART raised the issue of Clark’s
assignments to the medical providers. SMART argued that Clark could not collect for PIP benefits
previously assigned to the providers. SMART moved the trial court to strike from arbitration
Clark’s claim for PIP benefits that he previously assigned to the medical providers, but the trial
court denied the motion.
The arbitration panel issued an award in Clark’s favor. A portion of the award was “for all
past, present and future benefits and on the remaining PIP claims.” Clark moved the trial court to
enforce the award, which the trial court granted. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews de novo whether a specific issue is subject to arbitration. Altobelli v
Hartmann, 499 Mich 284, 295; 884 NW2d 537 (2016). “Whether an arbitrator exceeded [their]
authority is also reviewed de novo.” Washington v Washington, 283 Mich App 667, 672; 770
NW2d 908 (2009).
Further, this Court employs a de novo review to “the proper interpretation and application
of statutes and court rules.” Safdar v Aziz, 501 Mich 213, 217; 912 NW2d 511 (2018). “This
[C]ourt uses the principles of statutory construction when interpreting a Michigan court rule.”
Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009).
The paramount rule of statutory interpretation is that we are to effect the
intent of the Legislature. To do so, we begin with the statute’s language. If the
statute’s language is clear and unambiguous, we assume that the Legislature
intended its plain meaning, and we enforce the statute as written. In reviewing the
statute’s language, every word should be given meaning, and we should avoid a
construction that would render any part of the statute surplusage or nugatory. [PNC
Nat’l Bank Ass’n v Dep’t of Treasury, 285 Mich App 504, 506; 778 NW2d 282
(2009) (citation omitted).]
III. LAW AND ANALYSIS
SMART makes two arguments on appeal. First, it contends the trial court erred in declining
to consider issues involving the scope of the parties’ arbitration agreement. Second, SMART
argues the arbitrators erred in issuing the award because Clark maintained no right to recover for
PIP benefits. We disagree.
-2-
A. TRIAL COURT JURISDICTION
In matters involving arbitration, it is the purview of the arbitrator to decide the substantive
issues between the parties and a trial court’s role is limited. See, e.g., Cipriano v Cipriano, 289
Mich App 361, 367; 808 NW2d 230 (2010) (“The purpose of arbitration is to avoid protracted
litigation.”). However, under MCL 691.1686(2), “[t]he court shall decide whether an agreement
to arbitrate exists or a controversy is subject to an agreement to arbitrate.” In other words,
“whether a dispute is subject to arbitration is for a court to determine.” Lichon v Morse, 507 Mich
424, 437; 968 NW2d 461 (2021).
SMART’s motion to strike asked the trial court to “enter an order striking and excluding”
from arbitration Clark’s claim for PIP benefits. The trial court’s order denying SMART’s motion
to strike stated: “The issues raised in the instant motion are clearly subject to the arbitration
agreement pursuant to paragraph seven. The arbitration panel may not pick and choose what legal
issues it will decide. Further this court entered the dismissal order on 1/14/20.” SMART argues
on appeal that “the trial court erred in concluding that it did not have jurisdiction to determine the
arbitrability of [Clark’s] claims for medical expenses which he previously assigned to his medical
providers.”
SMART conflates the trial court’s jurisdiction with its limited review over arbitration
matters. The trial court never indicated that it lacked jurisdiction to consider SMART’s motion to
strike. Instead, the trial court exercised its limited jurisdiction, concluding the issue of Clark’s PIP
benefits was within the scope of arbitration. Put differently, the trial court did not decline
jurisdiction, it simply limited its review. Thus, there is no error because the trial court properly
exercised its power to decide preliminary issues when it determined that the issue of Clark’s PIP
benefits was subject to arbitration. Lichon, 507 Mich at 437.
SMART’s reliance on this Court’s unpublished—and not binding—decision2 in Jenkins v
Suburban Mobility Authority for Regional Transportation, unpublished per curiam opinion of the
Court of Appeals, issued January 13, 2022 (Docket No. 355452), does not support its arguments.
In Jenkins, the relevant issue was whether the trial court could decide which issues were within
the scope of arbitration. Id. at 1. This Court concluded that “the trial court had jurisdiction to
decide whether plaintiff’s claims in dispute—the ‘controversies’—were subject to the arbitration
agreement.” Id. at 4. We reach the same conclusion here. As discussed, the trial court exercised
its jurisdiction when it concluded that the issue of Clark’s PIP benefits was within the scope of
arbitration.
B. ARBITRATION AWARD
The next issue is whether the arbitration panel exceeded the scope of its authority by issuing
an award “for all past, present and future benefits on the remaining PIP claims.” According to
2
See MCR 7.215(C)(1) (“An unpublished opinion is not precedentially binding under the rule of
stare decisis.”).
-3-
SMART, Clark was not entitled to an award for PIP benefits because he “unambiguously assigned
all of his rights to the medical expenses which he incurred directly to the medical providers.”
This Court’s review of an arbitration award is extremely limited. TSP Servs, Inc v Nat’l-
Std, LLC, 329 Mich App 615, 619; 944 NW2d 148 (2019). “A court may not review an arbitrator’s
factual findings or decision on the merits.” Id. at 620 (quotation marks and citation omitted). This
Court may only reverse an arbitrator’s decision where it is clear the arbitrator made an error of
law. Id.
Under MCL 691.1703(1)(d): “[T]he court shall vacate an award made in the arbitration
proceeding if . . . [a]n arbitrator exceeded the arbitrator’s powers.” “Arbitrators exceed their
power when they act beyond the material terms of the contract from which they primarily draw
their authority, or in contravention of controlling principles of law.” Saveski v Tiseo Architects,
Inc, 261 Mich App 553, 554; 682 NW2d 542 (2004) (quotation marks and citation omitted).
[W]here it clearly appears on the face of the award or the reasons for the decision
as stated, being substantially a part of the award, that the arbitrators through an error
in law have been led to a wrong conclusion, and that, but for such error, a
substantially different award must have been made, the award and decision will be
set aside. [Detroit Auto Inter-Ins Exch v Gavin, 416 Mich 407, 439; 331 NW2d
418 (1982) (citation omitted).]
“Any such error must be readily apparent on the face of the award without second-guessing the
arbitrator’s thought processes, and the arbitrator’s findings of fact are immune from review
altogether.” Eppel v Eppel, 322 Mich App 562, 572; 912 NW2d 584 (2018).
SMART argues that the arbitrator erred by awarding Clark PIP benefits. SMART notes
that Clark executed a number of assignments to various medical providers and that, by doing so,
Clark divested himself of any claim for these expenses. SMART is correct that the record contains
a number of apparently valid assignments to Clark’s medical providers. What is not certain,
however, is whether the portion of the arbitration award relating to Clark’s PIP benefits represents
monies that were owed under the assignments. Importantly, it is unclear from the record whether
Clark assigned all of his PIP benefits. Thus, the alleged error is not readily apparent on the face
of the award. To determine whether the award pertained to Clark’s assigned PIP benefits would
require this Court to consider the arbitrators’ factual considerations—which this Court cannot do.
Eppel, 322 Mich App at 572. Thus, the award for PIP benefits is not a basis for reversal of the
trial court’s order.
Further, we need not consider SMART’s argument regarding Clark’s purported
revocations. After the parties entered into the arbitration agreement, Clark’s medical providers
executed a number of revocations, which purportedly rescinded the providers’ rights to recover for
-4-
Clark’s PIP benefits. Again, to determine whether the revocations properly rescinded the
providers’ rights under the assignments would require this Court to impermissibly invade the
province of the arbitration panel, which we cannot do.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
-5- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483300/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 357501
Kent Circuit Court
SETH MICHAEL WELCH, LC No. 18-009204-FC
Defendant-Appellant.
Before: SAWYER, P.J., and MARKEY and SWARTZLE JJ.
PER CURIAM.
Defendant’s 10-month old daughter was found dead at home from malnourishment, and
defendant was convicted of felony murder, MCL 750.316(b), and first-degree child abuse, MCL
750.136b(2). On appeal, defendant argues that there was not sufficient evidence to convict him
and that his trial counsel was ineffective. We affirm.
Several witnesses testified that the child had an emaciated appearance with a face that
“almost looked sunken.” Additionally, they could feel the child’s spine when they picked her up,
and she was very thin. Evidence was introduced that showed dried blood coming from the child’s
nose, foam coming from the child’s mouth, and a dripping brown liquid coming from the child’s
crib. The child weighed eight pounds at the time of her death, when a healthy weight for a child
of her age would have been 14 to 15 pounds. The autopsy of the child showed visible injuries to
the child’s lungs, heart, abdominal organs, as well as a shrunken thymus gland and bone marrow
incapable of producing white or red blood cells. An expert testified that this confirmed that the
child died from malnourishment and dehydration.
On appeal, defendant first argues that the evidence was insufficient to maintain his
convictions. This Court reviews a challenge to the sufficiency of the evidence de novo and “in the
light most favorable to the prosecution to determine whether a rational trier of fact could have
found the essential elements of the crime to have been proved beyond a reasonable doubt.” See
People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011).
“A person is guilty of child abuse in the first degree if the person knowingly or intentionally
causes serious physical harm or serious mental harm to a child.” MCL 750.136b(2). Defendant
-1-
argues that there was not sufficient evidence presented to demonstrate that he either knowingly or
intentionally caused the death of the child.
“Because it is difficult to prove an actor’s state of mind, the prosecution may rely on
minimal circumstantial evidence to prove that the defendant had the required mental state.” People
v McFarlane, 325 Mich App 507, 516; 926 NW2d 339 (2018). “Intent and knowledge can be
inferred from one’s actions.” People v Gould, 225 Mich App 79, 87; 570 NW2d 140 (1997).
In this case, the jury was presented with several of defendant’s text messages to his wife
complaining about his infant daughter. In one instance, for example, defendant wrote, “I can’t
deal with [the child] tonight. She is being a total cunt. Can you get out early or something because
it’s wild. I’m about to fuck her up. I gagged her for a bit. It’s so bad.” In addition to this
shockingly callous and malicious text message, photos were extracted from defendant’s phone that
showed that he was checking on his daughter through the peephole of her bedroom door (rather
than actually going into the room), and one detective testified that defendant had told him during
an interview that he would not go near the peephole if things were quiet. It was also testified that
defendant did not take his daughter to the doctor, even though he supposedly expressed concerns
regarding her weight. Based on this and other evidence of a similar character, a rational jury could
reasonably infer from defendant’s consistent disregard of his infant daughter’s basic needs that
defendant knowingly caused her death through malnourishment and dehydration.
Next, defendant argues that his trial counsel was ineffective because counsel did not call a
mental-health expert or object to certain statements made by the prosecutor.
Defendant’s right to counsel is guaranteed by the United States and Michigan
Constitutions. US Const, Am VI; Const 1963, art 1, § 20. This right includes the right to the
effective assistance of counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007).
“Whether a defendant has been denied the effective assistance of counsel is a mixed question of
fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d 255 (2016).
To establish a claim of ineffective assistance of counsel, defendant must show that: (1)
defense counsel’s performance was deficient; and (2) the deficient performance prejudiced the
defense. People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007). Defense counsel’s
performance is deficient if it fell below an objective standard of professional reasonableness.
People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). Defendant bears a heavy burden
to show that counsel made errors so serious that counsel was not performing as constitutionally
guaranteed, and defendant must overcome a strong presumption that counsel’s performance
constituted sound trial strategy. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001),
citing Strickland v Washington, 466 US 668, 104 S Ct 2052, 80 L Ed 2d 674 (1984); People v
Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). The performance will be deemed to
have prejudiced the defense if it is reasonably probable that, but for counsel’s error, the result of
the proceeding would have been different. Jordan, 275 Mich App at 667. “An attorney’s decision
whether to retain witnesses, including expert witnesses, is a matter of trial strategy.” People v
Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).
Defendant argues that his trial counsel should have called an expert witness experienced in
mental health and “complicated grief” to rebut the prosecutor’s narrative that defendant had no
-2-
concern for his infant daughter when describing defendant’s actions after she was found dead.
Defendant has not shown, however, that calling or consulting with a mental-health expert
experienced in “complicated grief” would have assisted his defense or that there is a reasonable
probability that the outcome of his trial would have been different. Moreover, the record shows
that defense counsel elicited testimony that defendant’s demeanor at the scene could be attributable
to shock. Defense counsel also cross-examined witnesses to challenge their assertion that
defendant was acting unusual and elicited testimony that defendant had at times displayed a more
typical response to the child’s death. Therefore, defendant’s claim of ineffective assistance of
counsel regarding his counsel’s alleged failure to call or consult a mental-health expert witness
fails.
Defendant also argues that his defense counsel was ineffective for not objecting to two
comments made by the prosecutor. First, during closing, the prosecutor described involuntary
manslaughter to the jury by comparing the crime to when a parent’s negligent supervision results
in a child’s drowning in a swimming pool. Second, the prosecutor characterized second-degree
murder as a crime of passion. Defendant argues on appeal that both comments to the jury were
improper.
The trial court had explained to the jury, however, that the attorneys’ arguments were not
evidence and it would provide final instructions after closing arguments. The trial court also
reminded the jury of its oath to return a verdict based only on the evidence and the trial court’s
instructions on the law.
Assuming for the sake of argument that the prosecutor made a statement to which defense
counsel should have objected, defendant cannot show any prejudice by his counsel’s failure to
object. “Jurors are presumed to follow their instructions and instructions are presumed to cure
most errors.” People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Although there
may be cases in which a prosecutor’s egregious misstatements of the law require a new trial, see
e.g., People v Unger, 278 Mich App 210, 238; 749 NW2d 272 (2008), this is not such a case. Any
objection by defense counsel would have been futile, given that the prosecutor’s statements were
not particularly egregious (if egregious at all) and the trial court’s instructions cured any alleged
defect. “Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120
(2010).
Affirmed.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-3- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483304/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 357723
Marquette Circuit Court
JAMIE JEAN ZAMBON, formerly known as JAMIE LC No. 17-056182-FH
JEAN TASSON,
Defendant-Appellant.
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the trial court’s order denying her motion to set aside
the orders that extended the term of her probation. We reverse and remand.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
In November 2017 defendant pleaded guilty to one count of embezzlement of $50,000 or
more but less than $100,000, MCL 750.174(6). On January 18, 2018, she was sentenced to 180
days’ imprisonment2 and an 18-month term of probation. The conviction arises from defendant
having embezzled funds from a former employer for her personal gain. As a result, defendant’s
probation conditions required her to make monthly restitution payments.
Defendant was compliant with the terms of probation. On June 21, 2019, defendant’s
probation officer, Eric Mason, drafted a motion requesting the trial court discharge defendant from
probation. The draft motion was sent directly to the trial court judge. On July 3, 2019—15 days
before defendant’s probation was to expire—the trial court sent the parties a notice of hearing
1
People v Zambon, unpublished order of the Court of Appeals, entered December 7, 2021 (Docket
No. 357723).
2
Defendant was ordered to serve three months’ imprisonment, with the rest of the term deferred.
-1-
scheduled for August 9, 2019.3 Rather than hold a hearing, the trial court conducted an off-the-
record “in-chambers conference” with Mason, the prosecutor, and defense counsel, during which
they discussed defendant’s discharge. Defendant was not present at this conference. Afterwards,
the trial court entered an order directing the parties to:
[D]etermine whether there is agreement on the amount of restitution
payments made to date. If so, that amount should be reduced to writing so that the
court file can reflect the accurate restitution amount remaining owed. If such a
stipulation is received, the Court will then sign the order terminating probation
supervision as the probation period has expired and there have been no violations.
After a second off-the-record in-chambers conference with the attorneys and the judge, the
trial court scheduled a hearing for October 14, 2019. At that hearing, the trial court stated that it
would enter an order extending the original 18-month term of probation by 12 months, after which
it would consider terminating probation. The trial court explained that its “focus is compliance
with a longer period of time than the 18-month term originally ordered.” The order extending
probation was entered two days later. Several months later, defendant was charged with
embezzlement in a separate case—consequently, the trial court entered another order extending
defendant’s term of probation until January 8, 2023.
Defendant moved to set aside the two orders extending the term of probation under our
Supreme Court’s opinion in People v Vanderpool, 505 Mich 391; 952 NW2d 414 (2020). The
trial court distinguished this case from Vanderpool, and denied defendant’s motion to set aside the
orders extending the term of probation. This appeal followed.
II. STANDARD OF REVIEW
Questions of both statutory and constitutional interpretation are reviewed de novo.
Vanderpool, 505 Mich at 397.
[T]he primary goal when interpreting a statute is to ascertain and facilitate the intent
of the Legislature. Under the rules of statutory construction, the Legislature is
presumed to have intended the meaning it plainly expressed. Where the language
of a statute is clear, there is no need for interpretation and courts must apply the
statute as written. [People v Roseburgh, 215 Mich App 237, 239; 545 NW2d 14
(1996) (citations omitted).]
3
The hearing was originally scheduled for August 2, 2019, and was later rescheduled for August 9,
2019.
-2-
III. LAW AND ANALYSIS
Defendant argues the trial court erred when it denied her motion to set aside the orders
extending the term of probation. According to defendant, probation had expired; therefore, the
trial court lacked further authority to modify the term of probation. We agree.
In sentencing a criminal defendant, it is up to the trial court to “fix and determine” the
period and conditions of probation and the trial court “may amend the order in form or substance
at any time.” MCL 771.2(5).4 At the time defendant was sentenced, the trial court could not
impose a probationary period greater than five years for felony convictions. MCL 771.2(1). The
former version of MCL 771.4 provided in part:
If during the probation period the sentencing court determines that the probationer
is likely again to engage in an offensive or criminal course of conduct or that the
public good requires revocation of probation, the court may revoke probation. All
probation orders are revocable in any manner the court that imposed probation
considers applicable either for a violation or attempted violation of a probation
condition or for any other type of antisocial conduct or action on the probationer’s
part for which the court determines that revocation is proper in the public interest.
There are also certain guidelines when a probationary period nears its end. Under MCL
771.5(1):
When the probation period terminates, the probation officer shall report that
fact and the probationer’s conduct during the probation period to the court. Upon
receiving the report, the court may discharge the probationer from further
supervision and enter a judgment of suspended sentence or extend the probation
period as the circumstances require, so long as the maximum probation period is
not exceeded.
“When a probationer is discharged upon the expiration of the probation period, or upon its earlier
termination by order of the court, entry of the discharge shall be made in the records of the court,
and the probationer shall be entitled to a certified copy thereof.” MCL 771.6.
In Vanderpool, our Supreme Court considered whether a trial court retained authority to
modify a term of probation after the term had expired. Vanderpool, 505 Mich at 396. The Court
held that, while a trial court may modify a term of probation by either extending or discharging
the term, it may only do so if the term of probation had not already expired. Id. at 404. If a trial
4
Effective April 1, 2021, the code of criminal procedure underwent a statutory overhaul. See 2020
PA 397. Because statutory amendments are presumed to operate prospectively, and because the
pertinent events in this case arose before the amendments became effective, we apply the statutory
provisions as they were written before the 2021 amendments. See People v Campbell, 289 Mich
App 533, 535; 798 NW2d 514 (2010).
-3-
court fails to extend the term of probation on or before its expiration, then probation terminates
and the trial court has no continued authority to modify it. Id. at 404-405.
Here, it is undisputed that defendant’s term of probation expired on July 18, 2019. That
date passed, and the trial court had not entered an order modifying defendant’s probation. Under
Vanderpool, a trial court retains authority to modify the term of probation, but only if the trial court
exercises this authority on or before the date probation expires. Id. at 403-404. Because the trial
court in this case failed to enter an order modifying probation on or before July 18, 2019, the trial
court lacked authority to make any after-the-fact modifications to defendant’s probation.
Therefore, the trial court erred when it denied defendant’s motion to set aside the orders extending
the term of probation.5
The prosecution argues that this case is distinguishable from Vanderpool because “[o]n
July 3, 2019, prior to [d]efendant’s probation term expiring, the [trial court] entered an order to
review [d]efendant’s discharge from probation and an in-chambers conference was held on August
9, 2019.” But no such order was entered; instead, the prosecution’s arguments mischaracterize the
July 3, 2019 notice to appear at a hearing. Again, a trial court retains authority to modify a term
of probation only if the trial court specifically extends the term on or before the expiration date.
Vanderpool, 505 Mich at 399. The prosecution does not argue the July 3, 2019 notice to appear
extended the term of probation. Rather, the prosecution argues that the notice operated as a
placeholder—effectively pausing defendant’s probation—until the trial court could enter an order
either discharging or extending the term of probation. The prosecution does not offer any authority
in support of this argument. “The failure to brief the merits of an allegation of error constitutes an
abandonment of the issue.” People v McPherson, 263 Mich App 124, 136; 687 NW2d 370 (2004).
Thus, the prosecution has abandoned this argument on appeal. Id. However, if we were to consider
the substance of the issue, the notice to appear did not preserve the trial court’s authority under the
order of probation because the notice did nothing but order the parties to appear before the court.
The prosecution also contends that the holding in Vanderpool should not have retroactive
effect on the trial court’s orders extending probation. We acknowledge that the trial court orders
extending defendant’s probation are dated before our Supreme Court’s decision in Vanderpool.
However, judicial decisions are generally afforded “full retroactive effect.” People v Carter, 488
Mich 925 (2010) (MARKMAN, J., concurring) (quotation marks and citation omitted). And,
“complete prospective application is limited to decisions that overrule clear and uncontradicted
caselaw.” People v Johnson, 302 Mich App 450, 464; 838 NW2d 889 (2013). To determine
whether a decision should be given retroactive effect, the following factors are considered: “(1) the
purpose to be served by the new rule; (2) the extent of reliance on the old rule; and (3) the effect
5
The dissent in Vanderpool made the persuasive argument that the trial court retains authority to
extend probation if the trial court has not already formally discharged the defendant from probation
under MCL 771.6. Vanderpool, 505 Mich at 410 (ZAHRA, J., dissenting). In this case, the trial
court never formally discharged defendant from probation. By the dissent’s reasoning, the trial
court would have retained authority to extend defendant’s probation. However, “stare decisis,
provides that a decision of the majority of justices of the Michigan Supreme Court is binding on
lower courts.” People v Beasley, 239 Mich App 548, 559; 609 NW2d 581 (2000).
-4-
of retroactivity on the administration of justice.” Carter, 488 Mich 925 (quotation marks and
citation omitted). Contrary to the prosecution’s assertions, none of these factors weighs against
giving retroactive effect to Vanderpool.
Regarding the first factor, Vanderpool did not announce a “new rule” but rather, applied
the “unambiguous” language of the statutory scheme by requiring a trial court to “make a decision
as to whether to amend the [probation] order before a probationer is discharged upon the expiration
of the probation period,” Vanderpool, 505 Mich at 399-400, 406. The prosecution also contends
that Vanderpool overruled People v Marks, 340 Mich 495; 65 NW2d 698 (1954); therefore, the
trial court was entitled to rely on the “old rule” articulated in Marks. However, Vanderpool
specifically distinguished Marks, as opposed to overruling clear and uncontradicted caselaw.
Vanderpool, 505 Mich at 401. Finally, application of Vanderpool would have a limited effect on
the administration of justice because courts are already bound to follow the plain, unambiguous
language of a statute. Roseburgh, 215 Mich App at 239. Our Supreme Court reiterated this in
Vanderpool when it reasoned that the plain language of the relevant statutes allows a trial court to
modify a term of probation only on or before the date of expiration. Vanderpool, 505 Mich at 399.
As such, we reject the prosecution’s argument that we should decline giving retroactive effect to
Vanderpool.
Because we conclude that the trial court erred in denying defendant’s motion to set aside
the orders extending probation, we decline to address defendant’s arguments that the trial court
was bound to find a probation violation before extending probation, and that the trial court’s orders
were fundamentally unfair.
Reversed and remanded for an order consistent with this opinion. We do not retain
jurisdiction.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
-5- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487475/ | Submitted to jury and verdict guilty, to have eleven lashes and .restoration. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350195/ | People v Colon (2022 NY Slip Op 07381)
People v Colon
2022 NY Slip Op 07381
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
898 KA 19-01496
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vBRYAN K. COLON, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRYAN K. COLON, DEFENDANT-APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JERRY MARTI OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered March 19, 2019. The judgment convicted defendant upon a jury verdict of burglary in the second degree (six counts).
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences on counts one and two of the indictment run consecutively to each other and concurrently with the remaining counts and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of six counts of burglary in the second degree (Penal Law § 140.25 [2]). The conviction arises from six home burglaries.
Defendant contends in his main and pro se supplemental briefs that the evidence is legally insufficient to support his conviction of certain counts because the testimony of his accomplices was not supported by the requisite corroborative evidence (see CPL 60.22 [1]). That contention is not preserved for our review inasmuch as defendant's motion for a trial order of dismissal was not
" 'specifically directed' at [that] alleged error" (People v Gray, 86 NY2d 10, 19 [1995]). In any event, the contention lacks merit (see People v Jacobs, 195 AD3d 1434, 1435 [4th Dept 2021], lv denied 38 NY3d 951 [2022]; see also People v Davis, 28 NY3d 294, 303 [2016]). Defendant further contends in his main brief that the evidence is legally insufficient to support the conviction because there is insufficient evidence that defendant was the perpetrator of the burglaries. "Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference" (People v Bay, 67 NY2d 787, 788 [1986]), we conclude that there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion" that defendant was the perpetrator of the burglaries (People v Bleakley, 69 NY2d 490, 495 [1987]). The trial evidence included, inter alia, the testimony of defendant's two accomplices who implicated defendant in five of the burglaries, evidence regarding defendant's rental of various vehicles used in the commission of the burglaries, cell phone tower records establishing that defendant was in the vicinity of the homes at the time of the crimes, and testimony of neighbors of the homeowners who observed defendant or the rental vehicles near or at the burglarized homes. In addition, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
We further reject defendant's contention in his main brief that he was denied effective assistance of counsel (see generally People v Benevento, 91 NY2d 708, 712-713 [1998]). In [*2]particular, defense counsel was not ineffective based on his elicitation of allegedly damaging testimony in cross-examining one of defendant's accomplices and defense counsel's failure to object to testimony of the other accomplice regarding his motive to testify. Those contentions involve "simple disagreement[s] with strategies, tactics or the scope of possible cross-examination, weighed long after the trial," and thus are insufficient to establish ineffective assistance of counsel (People v Flores, 84 NY2d 184, 187 [1994]; see generally People v Baldi, 54 NY2d 137, 147 [1981]). Contrary to defendant's additional claim, defense counsel was not ineffective for failing to object to certain comments made by the prosecutor during summation inasmuch as the prosecutor either did not engage in misconduct or any error did not deny defendant a fair trial (see People v Garrow, 171 AD3d 1542, 1546 [4th Dept 2019], lv denied 34 NY3d 931 [2019]; People v Lewis, 140 AD3d 1593, 1595 [4th Dept 2016], lv denied 28 NY3d 1029 [2016]). Moreover, defendant was not deprived of a fair trial by the cumulative effect of the errors allegedly committed by defense counsel.
We agree with defendant, however, that the aggregate sentence of imprisonment is unduly harsh and severe considering the disparity between the plea offer and the sentence of imprisonment imposed following trial (see People v Lewis-Bush, 204 AD3d 1424, 1427 [4th Dept 2022], lv denied 38 NY3d 1072 [2022]; People v Boyd, 175 AD3d 1030, 1031-1032 [4th Dept 2019], lv denied 34 NY3d 1015 [2019]). We therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences on the first and second counts shall run consecutively to each other and concurrently with the sentences imposed on the remaining counts (see CPL 470.15 [6] [b]).
We have reviewed defendant's remaining contention in his pro se
supplemental brief and conclude that it lacks merit.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350188/ | People v Graham (2022 NY Slip Op 07415)
People v Graham
2022 NY Slip Op 07415
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, WINSLOW, AND BANNISTER, JJ. (Filed Dec. 23, 2022.)
MOTION NO. (525/19) KA 16-00756.
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vISIAH GRAHAM, DEFENDANT-APPELLANT.
MEMORANDUM AND ORDER
Motion for writ of error coram nobis denied. | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350199/ | People v Blanding (2022 NY Slip Op 07378)
People v Blanding
2022 NY Slip Op 07378
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
894 KA 18-01545
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vXAVIER BLANDING, DEFENDANT-APPELLANT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair, J.), rendered July 9, 2018. The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment.
It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment revoking his sentence of probation imposed upon his conviction of driving while intoxicated, a class E felony (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]), and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3] [a] [i]) and sentencing him to an indeterminate term of imprisonment. Defendant contends that he was denied due process because Supreme Court failed to provide an adequate statement of its reasoning in revoking his sentence of probation (see Gagnon v Scarpelli, 411 US 778, 785-786 [1973]; People v McCloud, 205 AD2d 1024, 1025 [3d Dept 1994], lv denied 86 NY2d 738 [1995]). That contention is not preserved for our review because defendant failed to object to the sufficiency of the court's findings (see generally CPL 470.05 [2]) and, in any event, it lacks merit (see People v Hare, 124 AD3d 1148, 1149 [3d Dept 2015], lv denied 26 NY3d 929 [2015]). Inasmuch as defendant has completed serving the sentence imposed, his challenge to the severity of the sentence is moot (see People v Hancarik, 202 AD3d 1151, 1151 [3d Dept 2022]; People v Swick, 147 AD3d 1346, 1346 [4th Dept 2017], lv denied 29 NY3d 1001 [2017]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350191/ | People v Elmore (2022 NY Slip Op 07345)
People v Elmore
2022 NY Slip Op 07345
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
799 KA 20-01314
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vTREAMON ELMORE, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.), rendered September 9, 2020. The judgment convicted defendant upon a jury verdict of murder in the first degree (two counts), conspiracy in the third degree, criminal possession of a weapon in the second degree and criminal possession of a firearm.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of murder in the first degree (Penal Law § 125.27 [1] [a] [vii]; [b]) and one count each of conspiracy in the third degree (§ 105.13), criminal possession of a weapon in the second degree (§ 265.03 [3]), and criminal possession of a firearm
(§ 265.01-b [1]).
Initially, we agree with defendant that the procedures outlined in CPL article 245 became applicable to this action as soon as that article became effective in January 2020. In 2019, the Governor signed into law a bill repealing CPL former article 240 and replacing it with CPL article 245, effective January 1, 2020 (see L 2019, ch 59, part LLL, §§ 1, 2, 14). Where an action is "already pending," a newly enacted statute that effects a procedural change "is applicable even then if directed to the litigation in future steps and stages . . . It is inapplicable, unless in exceptional conditions, where the effect is to reach backward, and nullify by relation the things already done" (Matter of Berkovitz v Arbib & Houlberg, Inc., 230 NY 261, 270 [1921]; see Simonson v International Bank, 14 NY2d 281, 289 [1964]). Thus, "procedural changes are, in the absence of words of exclusion, deemed applicable to subsequent proceedings in pending actions" (Simonson, 14 NY2d at 289 [internal quotation marks omitted]; see People v Robbins, 206 AD3d 1069, 1071 [3d Dept 2022], lv denied 39 NY3d 942 [2022]; People v Hewitt, 201 AD3d 1041, 1042-1043 [3d Dept 2022], lv denied 38 NY3d 928 [2022]).
We nevertheless reject defendant's contention that the People violated CPL article 245 by failing to provide defendant with the criminal history of his brother, an alleged accomplice who testified for the People at trial pursuant to a plea agreement, until trial had already commenced. As relevant here, the automatic discovery provisions of CPL article 245 require that the People provide the defense with "[a] complete record of judgments of conviction for . . . all persons designated as potential prosecution witnesses" (CPL 245.20 [1] [p]), as well as, "[w]hen it is known to the prosecution, the existence of any pending criminal action against all persons designated as potential prosecution witnesses" (CPL 245.20 [1] [q]). Each of the two instances of prior criminal conduct allegedly committed by defendant's brother, who was only 13 years old at the time the instant offenses were committed, would have been subject to the jurisdiction of Family Court, rather than the criminal courts (see Family Ct Act § 301.2 [1]; CPL 1.20 [42]); consequently, any adjudication could not "be denominated a conviction" and defendant's brother could not be "denominated a criminal by reason of such adjudication" (Family Ct Act § 380.1 [*2][1]). Thus, the People were not required to disclose that information pursuant to CPL 245.20 (1) (p) or (q).
To the extent that defendant contends that the prosecution's failure to provide a certificate of compliance in accordance with CPL 245.50 (former [1]) hampered his ability to present a defense, defendant failed to demonstrate that he was prejudiced by the lack of a certificate. He did not identify any evidence or information that he had not received or that he had received too late to use effectively. Thus, Supreme Court did not abuse its discretion in determining that no sanction was required (see generally People v Jenkins, 98 NY2d 280, 284 [2002]; People v Sweet, 200 AD3d 1315, 1319-1320 [3d Dept 2021], lv denied 38 NY3d 930 [2022]). Defendant's related contention that the court should have dismissed the case because the People, having failed to file a certificate of compliance, could not be ready for trial pursuant to CPL 30.30 is unpreserved for our review inasmuch as he did not move, in writing, for dismissal on that ground (see CPL 210.20 [1] [g]; 210.45 [1]; 470.05 [2]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant further contends that the court erred in denying his request that the indictment be dismissed, or that other sanctions be imposed, on the ground that unauthorized audio recordings were made of the grand jury proceeding. Initially, defendant did not ask for any sanction other than dismissal and, therefore, his contention with respect to sanctions other than dismissal of the indictment is unpreserved (see CPL 470.05 [2]; People v Manigualt, 125 AD3d 1480, 1480 [4th Dept 2015], lv denied 25 NY3d 1074 [2015]; People v Pena, 259 AD2d 350, 350 [2d Dept 1999], lv denied 93 NY2d 1005 [1999]). We reject defendant's contention that the court erred in denying his request that the indictment be dismissed. A defendant may move to dismiss an indictment pursuant to CPL 210.20 on the ground that the "grand jury proceeding was defective, within the meaning of section 210.35" (CPL 210.20 [1] [c]). Of the five bases for dismissal in CPL 210.35, the only one that could apply here is the final basis, which provides that a grand jury proceeding is defective under CPL 210.20 when "[t]he proceeding otherwise fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL 210.35 [5]). The "demanding test" for invoking that provision "is met only where the prosecutor engages in an 'over-all pattern of bias and misconduct' that is 'pervasive' and typically willful, whereas isolated instances of misconduct, including the erroneous handling of evidentiary matters, do not merit invalidation of the indictment" (People v Thompson, 22 NY3d 687, 699 [2014], rearg denied 23 NY3d 948 [2014], quoting People v Huston, 88 NY2d 400, 408 [1996]). Here, there was no misconduct by the prosecutors. Unbeknownst to the grand jury stenographers, their new machines automatically recorded audio files in addition to the stenographer's shorthand. It was discovered by happenstance when the prosecution inquired of a stenographer in this case about a possible inaccuracy in the transcript. There was no evidence that the recordings were intentionally created or concealed, and the prosecution disclosed them immediately and without prompting. Thus, defendant did not meet the "demanding test" for establishing that the integrity of the grand jury proceeding was impaired by the inadvertent recordings (id.).
Defendant further contends that the court erred in denying his request for a missing witness charge. We reject that contention. Even assuming, arguendo, that defendant met his initial burden with respect to his request (see People v Hawkins, 84 AD3d 1736, 1737 [4th Dept 2011], lv denied 17 NY3d 806 [2011]), we conclude that the prosecution established that the testimony of the witness in question would have been cumulative (see People v Ortiz, 83 NY2d 989, 990 [1994]; People v White, 265 AD2d 843, 843-844 [4th Dept 1999], lv denied 94 NY2d 868 [1999]).
We further conclude that the court did not err in permitting a police detective to testify regarding certain software that he used to analyze cell phone location data. Here, the detective testified that he obtained data from cell phone companies, which he then inputted into the software to create a report. Contrary to defendant's contention, the detective testified to factual matters within his knowledge and did not provide an expert opinion (see People v Carducci, 143 AD3d 1260, 1261 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]; cf. People v Ortiz, 168 AD3d 482, 483 [1st Dept 2019], lv denied 33 NY3d 979 [2019]; see also People v Box, 181 AD3d 1238, 1242 [4th Dept 2020], lv denied 35 NY3d 1025 [2020], cert denied — US &mdash, 141 S Ct 1099 [2021]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant's sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that they do not warrant modification or reversal of the judgment.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350339/ | THE THIRTEENTH COURT OF APPEALS
13-22-00501-CV
THE STATE OF TEXAS
FOR THE BEST INTEREST AND PROTECTION OF C.G.
On Appeal from the
Probate Court of Hidalgo County, Texas
Trial Court Cause No. L-9177
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED. No costs are assessed, due to
appellant’s inability to pay costs.
We further order this decision certified below for observance.
December 22, 2022 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350341/ | THE THIRTEENTH COURT OF APPEALS
13-22-00304-CV
In the Interest of M.R. and X.R., children
On Appeal from the
County Court at Law of Aransas County, Texas
Trial Court Cause No. A-18-7036-FL
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the judgment of the trial court should be reversed and remanded to
the trial court. The Court orders the judgment of the trial court REVERSED AND
REMANDED for further proceedings consistent with its opinion. Appellee, TEXAS
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, is exempt from all costs.
We further order this decision certified below for observance.
December 22, 2022 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350347/ | NUMBER 13-22-00261-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JESUS CASTILLO, Appellant,
v.
COASTAL BEND CANCER CENTER, Appellee.
On appeal from the County Court at Law No. 1
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Memorandum Opinion by Justice Silva
Appearing pro se, appellant Jesus Castillo challenges the trial court’s Rule 91a
dismissal of his defamation suit against appellee Coastal Bend Cancer Center (CBCC).
See TEX. R. CIV. P. 91a. We affirm.
I. BACKGROUND
On February 3, 2022, Castillo filed a lawsuit setting forth a single cause of action
of defamation. Castillo alleged that CBCC had defamed him by identifying him as “ugly
and rude to all [s]taff members” and declining to accept him as a patient on this basis.
Castillo’s petition did not specify the means by which the alleged defamatory statement
was published. CBCC’s timely original answer and general denial followed. On March 14,
2022, CBCC filed a motion to dismiss pursuant to Texas Rule of Civil Procedure 91a,
asserting that Castillo’s claim has “no basis in law or fact” because he failed to plead facts
that could support every element of his claim for defamation. See id. On the same day,
Castillo filed a motion for summary judgment.
In response to CBCC’s motion, Castillo identified the alleged defamatory statement
as CBCC’s characterization of him as being “rude and ugly with all staff member[s]”;
asserted that the statement was untrue “because [it] is impossible that [he] can be rude
and ugly with the [sic] all dozens of [CBCC’s] staff member[s]”; and claimed the statement
injured him because it was “[e]mbarrassing to a bunch of third persons” and affected his
reputation and ability to promptly receive medical care. The trial court held two hearings
on the parties’ motions before granting CBCC’s Rule 91a motion and dismissing the suit.
This appeal followed.
II. DISCUSSION
Rule 91a governs the dismissal of baseless causes of action and provides that “[a]
cause of action has no basis in law if the allegations, taken as true, together with
inferences reasonably drawn from them, do not entitle the claimant to the relief sought.”
TEX. R. CIV. P. 91a.1. We perform a de novo review of a trial court’s ruling on a Rule 91a
2
motion to dismiss. San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021);
see In re Farmers Tex. Cnty. Mut. Ins., 621 S.W.3d 261, 266 (Tex. 2021) (orig.
proceeding) (“[W]hether a defendant is entitled to dismissal under the facts alleged is a
legal question.”).
In ruling on a Rule 91a motion, the trial court “must decide the motion based solely
on the pleading of the cause of action, together with any pleading exhibits permitted by
the rules of civil procedure.” Reaves v. City of Corpus Christi, 518 S.W.3d 594, 599 (Tex.
App.—Corpus Christi–Edinburg 2017, no pet.); see San Jacinto River Auth., 627 S.W.3d
at 628. “To survive a Rule 91a challenge to its pleadings, a plaintiff must make more than
‘threadbare recitals of the elements of his cause of action, supported by mere conclusory
statements.’” 1st & Trinity Super Majority, LLC v. Milligan, No. 08-20-00230-CV, 2022 WL
2759049, at *7 (Tex. App.—El Paso July 14, 2022, no pet.) (quoting Ruth v. Crow, No.
03-16-00326-CV, 2018 WL 2031902, at *5 (Tex. App.—Austin May 2, 2018, pet. denied)
(mem. op.)). With these principles in mind, we examine the elements of Castillo’s sole
cause of action: defamation.
Defamation is a tort that may occur orally (slander) or in written or graphic form
(libel). Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 623–24 (Tex. 2018); see TEX.
CIV. PRAC. & REM. CODE ANN. § 73.001 (defining “libel” as “defamation expressed in
written or other graphic form that tends to . . . injure a living person’s reputation and
thereby expose the person to public hatred, contempt or ridicule, or financial injury or to
impeach any person’s honesty, integrity, virtue, or reputation”). To establish a claim for
defamation, a plaintiff must allege and prove as follows: (1) a statement of fact to a third
party was publicized; (2) the statement concerned him and was defamatory; and (3) as
3
relevant here, the statement was made with negligence. Dall. Morning News, Inc. v. Hall,
579 S.W.3d 370, 377 (Tex. 2019); In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (orig.
proceeding) (explaining that the requisite degree of fault element turns on whether the
person allegedly defamed is a private individual or a public figure, and a private individual
need only prove negligence). The plaintiff must also plead and prove damages unless the
statements at issue are defamatory per se—that is, the statements “are so obviously
harmful that general damages may be presumed.” In re Lipsky, 460 S.W.3d at 593; see
also Pension Advisory Grp., Inc. v. Fid. Sec. Life Ins. Co., No. 13-18-00620-CV, 2020 WL
1181256, at *4 (Tex. App.—Corpus Christi–Edinburg Mar. 12, 2020, no pet.) (mem. op.).
“[C]ommunication that is merely unflattering, abusive, annoying, irksome, or
embarrassing, or that only hurts a person’s feelings, is not actionable.” MVS Int’l Corp. v.
Int’l Advert. Sols., LLC, 545 S.W.3d 180, 202 (Tex. App.—El Paso 2017, no pet.); see
Chehab v. Edgewood Dev., Ltd., 619 S.W.3d 828, 836 (Tex. App.—Houston [14th Dist.]
2021, no pet.); see also Mazaheri v. Tola, No. 05-18-01367-CV, 2019 WL 3451188, at *2
(Tex. App.—Dallas July 31, 2019, pet. denied) (mem. op.). Publication, for purposes of a
defamation suit, occurs when the statement is “communicated to a third person who is
capable of understanding its defamatory meaning and in such a way that the person did
understand its defamatory meaning.” Buckingham Senior Living Cmty., Inc. v.
Washington, 605 S.W.3d 800, 809 (Tex. App.—Houston [1st Dist.] 2020, no pet.).
Castillo’s claim for defamation is premised on CBCC’s identification of him as “rude
and ugly to all [s]taff members.” Even if we construed such statement as an objectively
verifiable fact—rather than an opinion—Castillo’s petition does not identify the
statement’s third-party recipient or address the manner or means of publication. See id.;
4
Campbell v. Clark, 471 S.W.3d 615, 625 (Tex. App.—Dallas 2015, no pet.) (“A statement
must assert an objectively verifiable fact, rather than an opinion, to be actionable.”). In
other words, Castillo’s pleading fails to allege facts necessary to support every element
of a defamation claim. See Hall, 579 S.W.3d at 377. Thus, the trial court properly
dismissed Castillo’s claim under Rule 91a. See id.; see also Malik v. GEICO Advantage
Ins., No. 01-19-00489-CV, 2021 WL 1414275, at *8 (Tex. App.—Houston [1st Dist.] Apr.
15, 2021, pet. denied) (mem. op.) (concluding trial court did not err in granting appellees’
motion to dismiss a defamation claim where the “petition alleges too few facts to
demonstrate a viable, legally cognizable right to relief”). We overrule Castillo’s issue on
appeal. 1
III. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Delivered and filed on the
22nd day of December, 2022.
1 Castillo spends a significant portion of his appellate brief arguing the merits of his summary
judgment motion and CBCC’s failure to file a timely response. See generally TEX. R. CIV. P. 166a(i);
Draughon v. Johnson, 631 S.W.3d 81, 87–88 (Tex. 2021) (“[T]he non-movant’s failure to answer or respond
cannot supply by default the summary judgment proof necessary to establish the movant’s right.” (quoting
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979))). In light of our conclusion
that the suit was properly dismissed pursuant to Rule 91a, to the extent this issue exists independent from
his Rule 91a arguments, this issue is moot and we do not address it. See TEX. APP. P. 47.1.
5 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350340/ | NUMBER 13-22-00304-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF M.R. AND X.R., CHILDREN
On appeal from the County Court at Law
of Aransas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Memorandum Opinion by Justice Silva
Appellant Evelyn appeals the trial court’s order terminating the parent-child
relationship between her and her two children, Matthew and Xander. 1 By two issues,
Evelyn argues that the trial court erred because there was legally and factually insufficient
evidence to support (1) the enumerated grounds for termination, and (2) a finding that
termination was in the children’s best interest. We reverse and remand for further
1 We refer to the parties and children by aliases in accordance with the rules of appellate
procedure. See TEX. R. APP. P. 9.8(b)(2).
proceedings.
I. BACKGROUND
Matthew and Xander were originally removed from Evelyn’s care on March 26,
2018, when Matthew and Xander were eight and four years old, respectively. By the time
of trial, Matthew was twelve and Xander was eight. According to Texas Department of
Family and Protective Services (the Department) caseworker Julia Escamilla, the
Department removed the children after it received a report that Matthew made an outcry
that his mother had hit him, and he was expressing suicidal ideations. Escamilla testified
that medical staff noted he had bruising although she herself never saw it.
At one point, the children were placed back with Evelyn on a “return and monitor”
basis; however, the placement subsequently failed. Escamilla agreed that the return failed
because Matthew made an “outcry about hitting” but she did not otherwise elaborate.
Following the failed return and monitor, the trial court entered an agreed order appointing
the Department as the permanent managing conservator of the children. The trial court
thereafter ordered the children to be placed with their father, Ruben. 2 The placement with
Ruben also failed because he “assault[ed] his pregnant girlfriend in front of the children,”
for which he was placed on deferred adjudication community supervision. After the
placements, the Department filed a new petition to terminate the parent-child relationship
between each parent and child.
Only two witnesses testified at trial: Escamilla and Evelyn. The only exhibit entered
2 The trial court also terminated Ruben’s parental rights to Matthew and Xander. Ruben is not a
party to this appeal.
2
was Ruben’s order for deferred adjudication. Escamilla testified that Evelyn has been
unable to provide a safe home environment for her children. When asked to expound on
that, Escamilla explained that Evelyn recently moved into a three-bedroom home with her
mother. Escamilla described the home as appearing cluttered and smelling like animal
urine. Evelyn’s teenage daughter and brother also lived in the home. Escamilla also
stated that there had been concerns because some of the people Evelyn resided with
would not provide their information so that the Department could perform background
checks, which was required by her service plan. Escamilla also expressed concerns
regarding Evelyn’s ability to parent because Evelyn commented that she did not believe
her children needed to be on psychotropic medication to treat their attention deficit
hyperactivity disorder (ADHD). Escamilla testified that Evelyn enrolled the children in
“mainstream classes” rather than the special education classes that the children required
due to their delays.
Escamilla described Evelyn’s visitation as “sporadic . . . due to the amount of
placements that the [children] have had, the locations . . . and also . . . the availability of
[Evelyn] to participate in visitation.” However, Evelyn’s visits were not scheduled; instead,
Evelyn worked with the children’s foster families to set up visits. 3 Escamilla did confirm
that Evelyn’s visits were supervised and that “[t]he foster parents have stated that [Evelyn]
is appropriate, that [she] brings them shoes, clothes, toys, things like that . . . .” Escamilla
summarized the Department’s belief that it was in the children’s best interests to terminate
the parent-child relationship:
3 The children were in separate foster placements in different cities.
3
The Department feels it is in the children’s best interest to terminate
[Evelyn]’s rights to both children due to her ability to not be able to provide
a safe and stable home environment for them, her inability to recognize their
medical needs and educational needs and not being able to ensure that
those needs are being met for both [children]. Her inability to provide
mental—her ability to not provide [sic] the mental care that the children need
as well. The physical disciplining is also an issue[,] and the Department
does not feel like she is able to adequately care for her children.
According to Escamilla, the children changed foster homes several times
throughout the case, sometimes due to the children’s behavior. As to the children’s
desires, Escamilla confirmed that both children wanted to return to their mother but
equivocated by stating that the children’s desires vary. Despite previously testifying that
Evelyn had not complied with her family plan of service and visited sporadically, Escamilla
agreed during cross examination that Evelyn had completed all the services requested of
her, remained drug-free, coordinated and attended her own visits, was gainfully
employed, and remained in the same residence for at least nine months, and potentially
longer.
Evelyn testified that she completed all the services requested of her. When asked
what she learned from her parenting course, Evelyn explained she learned how to
discipline her children, “how to tell them it[ i]s okay to say no[,] and let them cry if they
have to cry.” Evelyn elaborated that to discipline her children, she would put them in time
out or take away their electronics. Although Evelyn confirmed she did not believe the
children needed to be on psychotropic medication, she stated that she administered their
prescribed medications during the return and monitor period.
According to Evelyn, the home she was living in was a four-bedroom home and
the children would have their own room if they were returned to her. Evelyn further
4
testified that she applied for government supported housing and believes that she would
qualify if the children were returned to her. Evelyn also testified that she would enroll the
children in special education classes and continue their medications if they continue to
be prescribed. Evelyn denied hitting Matthew or Xander.
At the conclusion of trial, the trial court entered an order terminating the parent-
child relationship between Evelyn and both children pursuant to predicate grounds (D)
(placing the children in dangerous conditions or surroundings), (E) (engaging in
endangering conduct), and (O) (failing to complete the family plan of service). See TEX.
FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O). The trial court further found that termination
was in the children’s best interest. See id. § 161.001(b)(2).
The trial court issued findings of fact and conclusions of law. See TEX. R. CIV. P.
296. The trial court found that Evelyn failed to comply with the following provisions of her
service plan: (1) cooperate with the Department; (2) demonstrate appropriate parenting
skills attained during the parenting classes and utilize them to effectively parent the
children; (3) maintain contact with her children by participating in visitations; (4) comply
with visitation rules specified by the Department; and (5) provide a home that is free of
domestic violence, clean, safe, and drug free for the children. The trial court’s conclusions
of law stated that clear and convincing evidence supported grounds for termination under
Subsections (O) (failure to complete service plan) and (N) (constructive abandonment)
only. This appeal followed.
5
II. STANDARD OF REVIEW AND APPLICABLE LAW
A. Standard of Review
“[I]nvoluntary termination of parental rights involves fundamental constitutional
rights” and divests the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit from the parent.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting In re G.M., 596 S.W.2d 846, 846
(Tex. 1980)); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi–Edinburg
2010, no pet.); see In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J.,
concurring) (“Termination of parental rights, the total and irrevocable dissolution of the
parent-child relationship, constitutes the ‘death penalty’ of civil cases.”). Accordingly,
termination proceedings must be strictly scrutinized. In re K.M.L., 443 S.W.3d at 112.
A trial court may order termination of the parent-child relationship only if it finds by
clear and convincing evidence that (1) the parent committed an act or omission described
by Texas Family Code § 161.001(b)(1)(A)–(U) (predicate grounds), and (2) termination is
in the child’s best interests. TEX. FAM. CODE ANN. § 161.001(b)(1), (2). The “clear and
convincing” standard falls between the preponderance of the evidence standard of
ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In
re G.M., 596 S.W.2d at 847; In re L.J.N., 329 S.W.3d at 671. It is defined as the “measure
or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.
§ 101.007. The heightened burden of proof compels more stringent appellate review for
termination suits compared to decisions regarding conservatorship. In re J.A.J., 243
6
S.W.3d 611, 616 (Tex. 2007).
Evidence is legally sufficient to support termination if a reasonable factfinder could
form a firm belief or conviction that the finding was true. In re A.C., 560 S.W.3d 624, 630–
31 (Tex. 2018). In conducting a legal sufficiency review, we assume that the factfinder
resolved disputed facts in favor of its finding if it was reasonable to do so, and we
disregard all evidence that a reasonable factfinder could have disbelieved or found to be
incredible. In re L.J.N., 329 S.W.3d at 671. We must also consider undisputed evidence,
if any, that does not support the finding. In re K.M.L., 443 S.W.3d at 113; see In re J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002) (“Disregarding undisputed facts that do not support the
finding could skew the analysis of whether there is clear and convincing evidence.”).
Evidence is factually insufficient to support termination “if, in light of the entire
record, the disputed evidence a reasonable factfinder could not have credited in favor of
a finding is so significant that the factfinder could not have formed a firm belief or
conviction that the finding was true.” In re A.C., 560 S.W.3d at 631 (citing In re J.F.C., 96
S.W.3d at 266). Under the factual sufficiency standard, we defer to the factfinder’s
determinations on the credibility of the witnesses “so long as those determinations are
not themselves unreasonable.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per
curiam) (quoting Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004)); see also
In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“A standard that focuses on whether a
reasonable jury could form a firm conviction or belief retains the deference an appellate
court must have for the factfinder’s role.”).
“In a bench trial, the trial court acts as the fact[]finder and is the sole judge of
7
witness credibility.” In re A.M., 418 S.W.3d 830, 841 (Tex. App.—Dallas 2013, no pet.)
(citing Nguyen v. Nguyen, 355 S.W.3d 82, 88 (Tex. App.—Houston [1st Dist.] 2011, pet.
denied)). “The fact[]finder may choose to believe one witness over another, and we may
not impose our own opinion to the contrary.” Id. (citing Nguyen, 355 S.W.3d at 88).
“In any case tried in the district or county court without a jury, any party may request
the court to state in writing its findings of fact and conclusions of law.” TEX. R. CIV. P. 296.
A trial court’s findings of fact in a case tried to the bench carry the same force and dignity
as a jury’s verdict upon jury questions but are only binding when supported by the
evidence. Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.). A
trial court’s findings of fact are reviewable for factual and legal sufficiency while its
conclusions of law are reviewed de novo. Id.
A “judgment may not be supported upon appeal by a presumed finding upon any
ground of recovery or defense, no element of which has been included in the findings of
fact . . . .” TEX. R. CIV. P. 299. “If a ground of recovery or defense is entirely omitted, the
omission is deemed to be deliberate on the grounds that the trial court did not award relief
as to that cause of action.” Clinton v. Gallup, 621 S.W.3d 848, 850 (Tex. App.—Houston
[14th Dist.] 2021, no pet.) (cleaned up).
B. Applicable Law
Among the predicate grounds for termination is that the parent “knowingly placed
or knowingly allowed the child to remain in conditions or surroundings which endanger
the physical or emotional well-being of the child” or “engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangers the physical or
8
emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E).
“[E]ndangerment encompasses ‘more than a threat of metaphysical injury or the possible
ill effects of a less-than-ideal family environment.’” In re D.L.W.W., 617 S.W.3d 64, 78
(Tex. App.—Houston [1st Dist.] 2020, no pet.) (quoting Tex. Dep’t of Hum. Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987)). “‘[E]ndanger’ means to expose to loss or injury; to
jeopardize.” In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting Boyd, 727 S.W.2d
at 533).
Under Subsection (D), “we must examine the time before the children’s removal to
determine whether the environment itself posed a danger to the [children’s] physical or
emotional well-being.” In re L.W., 609 S.W.3d 189, 199–200 (Tex. App.—Texarkana
2020, no pet.) (quoting In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no
pet.)). The children’s physical health or emotional well-being is endangered when the
parent fails to remove them from a home in which abusive or violent conduct is occurring.
Id. Unsanitary living conditions may also endanger the children’s physical or emotional
well-being by posing a health risk to the children. In re S.B., 597 S.W.3d 571, 584 (Tex.
App.—Amarillo 2020, pet. denied). “Inappropriate, abusive, or unlawful conduct by a
parent or other persons who live in the child’s home can create an environment that
endangers the physical and emotional well-being of a child as required for termination
under [S]ubsection D.” In re P.N.T., 580 S.W.3d 331, 355 (Tex. App.—Houston [14th
Dist.] 2019, pet. denied).
Subsection (E) focuses on the parent’s conduct rather than the child’s conditions;
it generally requires more than a single act or omission, but rather a “voluntary, deliberate,
9
and conscious course of conduct by the parent.” In re A.L.H., 624 S.W.3d at 56 (citing In
re K.A.C., 594 S.W.3d 364, 372 (Tex. App.—El Paso 2019, no pet.)). “A parent’s abuse
of a child endangers that child but also endangers other children the parent may have in
his care.” In re P.N.T., 580 S.W.3d at 356 (citing In re E.C.R., 402 S.W.3d 239, 248 (Tex.
2013)). “A parent’s conduct that subjects a child to a life of uncertainty and instability
endangers the child’s physical and emotional well-being.” Id.
The primary difference between Subsection (D) and Subsection (E) is that
Subsection (D) focuses on the child’s conditions or surroundings while Subsection (E)
focuses on the parent’s or another’s conduct, whether by overt act or omission. In re
A.L.H., 624 S.W.3d 47, 55–56 (Tex. App.—El Paso 2021, no pet.). However, the same
evidence may support a finding under either subsection, depending on the circumstances.
Id. (providing the example of continued domestic violence in the home with the children
as grounds under both Subsection (D) and (E)).
The parent-child relationship is also subject to termination if a parent “fail[s] to
comply with the provisions of a court order that specifically established the actions
necessary for the parent to obtain the return of the child who has been in the permanent
or temporary managing conservatorship of the Department . . . for not less than nine
months.” TEX. FAM. CODE ANN. § 161.001(b)(1)(O). “To terminate a parent’s rights under
Subsection (O), the court’s order describing the actions necessary to obtain the return of
the child must be ‘sufficiently specific to warrant termination of parental rights for failure
to comply with it.’” In re A.L.R., 646 S.W.3d 833, 835 (Tex. 2022) (quoting In re N.G., 577
S.W.3d 230, 238 (Tex. 2019)); see TEX. FAM. CODE ANN. § 263.102(a)(1) (requiring a
10
service plan to “be specific”).
“The best-interest prong of the termination inquiry ‘is child-centered and focuses
on the child’s well-being, safety, and development.’” In re J.W., 645 S.W.3d 726, 746
(Tex. 2022) (quoting In re A.C., 560 S.W.3d at 631). The Texas Supreme Court has
identified several nonexclusive factors for courts to consider in determining the child’s
best interest, known as the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976). These factors include: (1) the child’s desires; (2) the child’s present and
future emotional and physical needs; (3) the present and future emotional and physical
danger to the child; (4) the parenting abilities of the individuals seeking custody; (5) the
programs available to assist those individuals to promote the child’s best interest; (6) the
plans for the child by those individuals or by the agency seeking custody; (7) the stability
of the home or proposed placement; (8) the parent’s acts or omissions that may indicate
the existing parent-child relationship is an improper one; and (9) any excuse for the
parent’s acts or omissions. Id. The legislature has identified additional factors to consider
when determining “whether the child’s parents are willing and able to provide the child
with a safe environment.” TEX. FAM. CODE ANN. § 263.307(b). Evidence that is probative
of grounds for termination may be probative of the best interest of the child, as well. In re
C.H., 89 S.W.3d at 28.
III. ANALYSIS
A. Best Interest
Because Evelyn’s second issue is dispositive, we address it first. The testimony
for this termination trial spanned only approximately fifty-eight pages of the reporter’s
11
record, contained only one exhibit which was unrelated to Evelyn, and included testimony
from only two witnesses to support termination for both parents. Evelyn argues that the
Holley factors support maintaining the parent-child relationship between her and the
children. The Department, on the other hand, argues the factors support termination.
Bearing in mind the elevated burden of proof, presumptions in favor of maintaining the
parent-child relationship, and deferral to the trial court’s factual determinations, we apply
the Holley factors to the evidence presented at trial to determine whether the evidence
was legally and factually sufficient.
With respect to the first fact, the children’s desires, Escamilla testified at trial that
although the children’s expressed desires vary, they most recently expressed the desire
to return to their mother. The Department urges this Court to conclude that because there
is some evidence that the children exhibited behavioral issues and cognitive delays, the
children’s desires “could be considered from the perspective of a younger child.” Coupled
with the children’s changing desires and previous desire to stay with their foster families,
the Department argues that the trial court could have concluded that the children actually
desired to stay with their foster families. However, the evidence that the children desired
to return to their mother at the time of trial is uncontroverted. See In re K.M.L., 443 S.W.3d
at 113; In re J.F.C., 96 S.W.3d at 266; see also TEX. FAM. CODE ANN. § 162.010(c)
(requiring a child twelve years of age or older to consent to their adoption unless waived
by a court). Further, while there is some testimony that the children were “extremely
delayed,” there is no evidence that their delays resulted in them being unable to
understand the proceedings, possible outcomes, or the impact of their expressed
12
wishes. 4 Accordingly, we conclude this factor weighs against termination.
The next factor considers the children’s present and future emotional and physical
needs. Evidence that the children have increased emotional and psychiatric needs is not
disputed. Escamilla testified that Evelyn failed to enroll the children in special education
classes during the return and monitor period. 5 Escamilla further expressed concern
because Evelyn “made comments that she feels her children do not need to be on
medication.” However, Evelyn provided uncontroverted testimony that when the children
were returned to her, “[t]hey always took the medication.” See In re K.M.L., 443 S.W.3d
at 113; In re J.F.C., 96 S.W.3d at 266. The Department argues that Evelyn’s “lackadaisical
attitude and inability to recognize that the children are ‘extremely delayed,’ have ADHD
diagnoses, behavioral issues, and cognitive delays is indicative of her capability to meet
the children’s needs.” We do not believe that Evelyn’s doubt regarding the children’s need
for ADHD medication and failure to enroll the children in special education classes during
the 2019 return and monitor period suffice to show that Evelyn exhibited a “lackadaisical
attitude” towards the children’s needs or otherwise failed to recognize their delays. The
Department otherwise presented no other evidence that Evelyn could not meet the
children’s emotional or psychiatric needs. And there is no evidence the children had any
special physical needs that required special care or attention that Evelyn could not
4 Escamilla testified that, although Matthew was in the sixth grade, he struggled to read and write.
Escamilla testified that Xander was “the same way.” However, neither Escamilla nor Evelyn testified that
the children did not understand the proceeding or its consequences.
5 Escamilla testified, “[F]rom my understanding[,] when they were placed with her, when she
enrolled them in school, she enrolled them in regular mainstream classes and even though she was aware
they needed to be enrolled in special education classes.” Escamilla was not the caseworker during the
return and monitor period.
13
provide. Accordingly, this factor only slightly supports termination, if at all.
The Department argues that the evidence that Evelyn abused Matthew
demonstrates an increased risk of emotional or physical danger to the children. The
evidence presented at trial shows that Matthew twice outcried that his mother hit him, and
that he had bruises from each incident. The testimony, however, provides no indication
as to the location, size, severity, or age of the bruises. Further, there is no information as
to the context of Evelyn’s alleged hitting of Matthew. See TEX. FAM. CODE ANN.
§ 151.001(e)(1) (providing a parent the right to “use corporal punishment for the
reasonable discipline of a child”).
Indeed, further testimony and questioning by the Department related to Evelyn’s
method of disciplining the children. Notably, the trial court’s findings of fact and
conclusions of law contain no finding that Evelyn abused the children or engaged in any
conduct which endangered their physical health or emotional well-being. 6 Further, the
trial court excluded the conclusion that the evidence supported termination under
Subsections (D) and (E). See TEX. R. CIV. P. 299. While a parent’s use of corporal
punishment may rise to the level of abuse that endangers a child’s physical or emotional
well-being, evidence that a parent disciplined their child and that the child had bruises
without more context is not factually sufficient to establish abuse. Compare In re J.C., 151
S.W.3d 284, 288 (Tex. App.—Texarkana 2004, no pet.) (considering evidence that father
punched his three-year-old child in the stomach, broke the child’s hand, and beat the child
6 The trial court could have believed Evelyn’s testimony that she never hit Matthew or Xander. See
In re A.M., 418 S.W.3d 830, 841 (Tex. App.—Dallas 2013, no pet.) (“The fact[]finder may choose to believe
one witness over another, and we may not impose our own opinion to the contrary.”).
14
with a belt, leaving bruises “from [the child’s] head to his toes”), and In re G.P., No. 01-
16-00346-CV, 2016 WL 6216192, at *11 (Tex. App.—Houston [1st Dist.] Oct. 25, 2016,
no pet.) (mem. op.) (considering evidence that father hit or slapped his child “multiple
times” on the face and head, enough to leave multiple bumps including a knot the size of
half a boiled egg), with In re Wean, No. 03-10-00383-CV, 2010 WL 3431708, at *7 (Tex.
App.—Austin Aug. 31, 2010, no pet.) (mem. op.) (concluding mother’s testimony that
father disciplined children by spanking them did not constitute an act of family violence
under Texas Family Code § 71.004(1)). Accordingly, this factor does not support
termination.
The Department similarly argues that the alleged physical abuse, Evelyn’s denial
that the children need psychotropic medications, denial that the children needed special
education classes before their removal, and failure to enroll the children in special needs
classes demonstrate that Evelyn lacks parenting skills. The Department further contends
that Evelyn failed to demonstrate changed behaviors and improved parenting skills during
her return and monitor, which shows questionable willingness to access programs and
follow through with services. The Department points to Evelyn’s testimony that the
children did not have any learning disabilities or behavioral problems prior to their removal
over four years ago as evidence that she lacks parenting skills. However, Evelyn’s
testimony in this regard was uncontroverted. See In re K.M.L., 443 S.W.3d at 113; In re
J.F.C., 96 S.W.3d at 266. The Department did not present any evidence that would allow
a factfinder to conclude that the children had exceptional needs prior to the Department’s
involvement. As noted, although Evelyn expressed doubt as to the children’s need for
15
psychotropic medication, the uncontroverted evidence is that when the children were
returned to her care, they were provided their medication. See In re K.M.L., 443 S.W.3d
at 113; In re J.F.C., 96 S.W.3d at 266. Additionally, we reiterate that the trial court’s
findings of fact and conclusions of law excluded any findings that Evelyn physically
abused her children. See TEX. R. CIV. P. 299.
The Department also points to testimony that Evelyn’s visitation with the children
was “sporadic” as evidence that she lacks the necessary parenting skills. However,
Escamilla explained that visits were not scheduled but rather occurred “whenever [Evelyn]
and the foster parents c[ould] agree on a day and a time” because the children were each
placed in separate foster homes in different cities than Evelyn. It is difficult to determine
what degree of fault for the “sporadic” visitation lies with Evelyn. Further, when Evelyn
was unavailable for visitations, there was no testimony elicited as to the reason for her
unavailability—such as due to her work schedule. Escamilla provided no explanation of
what “sporadic” visitation entailed: weekly, bi-weekly, monthly, or any other length of time
between visits. 7 See In re M.A.J., 612 S.W.3d 398, 412 (Tex. App.—Houston [1st Dist.]
2020, pet. denied) (“[C]onclusory opinion testimony, even if uncontradicted, does not
amount to more than a scintilla of evidence; it is no evidence at all.”); see also City of San
Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (“[I]f no basis for the opinion is
offered, or the basis offered provides no support, the opinion is merely a conclusory
7 Escamilla testified: “[The children] had a phone call with [Evelyn] on Mother’s Day and I think she
saw both [children] one time for the month of May. Then prior to that, I do[ not] know if she saw them prior
to that or not.” Trial occurred on May 25, 2022. Despite this limited testimony, the trial court found that
“[Evelyn] has had sporadic visitation and phone conversations with the children since the failed [r]eturn and
[m]onitor in August 2019.”
16
statement and cannot be considered probative evidence . . . .”). Escamilla testified that
the foster parents “have reported no concerns” and stated that Evelyn “brings [the
children] shoes, clothes, toys, [and] things like that when she visits,” albeit only to more
recent visits. Accordingly, the evidence regarding Evelyn’s parenting abilities does not
support termination.
A child’s need for permanence through the establishment of a “stable, permanent
home” has been recognized as the paramount consideration in determining best interest.
In re G.A.C., 499 S.W.3d 138, 141 (Tex. App.—Amarillo 2016, pet. denied); In re K.C.,
219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.); see In re R.S.-T., 522 S.W.3d
92, 113 (Tex. App.—San Antonio 2017, no pet.). The Department’s plan for the children
is to seek unrelated adoption. The Department is not required to identify an adoptive
family for this factor to support termination; instead, we review the entire record to
determine whether “a factfinder could reasonably form a firm conviction or belief that
termination of the parent’s rights would be in the child’s best interest—even if the
[Department] is unable to identify with precision the child’s future home environment.” In
re C.H., 89 S.W.3d at 28. The evidence relevant to the Department’s plan to seek
unrelated adoption for the children shows that the children’s current foster families are
not interested in adopting them. Further, the children have had several placement
changes attributed to their behavior, including one instance in which a relative requested
that the children be removed because Matthew claimed he was not being fed enough. 8
8Escamilla testified that she did not believe Matthew was telling the truth about not being fed
enough because he gained ten pounds in the three months that he was in the Department’s care.
17
Indeed, Escamilla agreed that the children are difficult to place. Thus, the likelihood that
the children would be adopted appears to be reduced. Escamilla also testified that
although the children’s foster families are not willing to adopt the children, they are willing
to continue as long-term placements. The parent-child relationship does not need to be
terminated in order for the children to remain in their placements. See In re F.M.E.A.F.,
572 S.W.3d 716, 732 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (“[T]here is no
evidence that termination would further the need for permanence through the
establishment of a stable, permanent home.”). Conversely, Evelyn testified that the home
she shares with her mother and teenage daughter has an extra bedroom for the children. 9
In light of the entire record, we conclude this factor does not support termination.
As it relates to the stability of the home or proposed placement, Escamilla testified
that “[Evelyn] has moved around a lot during this case.” At times, Escamilla was not able
to visit Evelyn’s home or would visit only to discover Evelyn was not living where she
claimed to be. Escamilla expressed concern that Evelyn showed an “inability to remain in
one home longer than a few months, six months.” However, the trial court found that
Evelyn resided in her current home for approximately fourteen months. Escamilla
described Evelyn’s home as a three-bedroom home that was cluttered and smelled like
animal urine. See, e.g., In re S.B., 597 S.W.3d 571, 576–84 (Tex. App.—Amarillo 2020,
pet. denied) (concluding evidence that parents failed to remedy unclean home that had a
kitchen that “was not sanitary for cooking or eating,” and other parts of the home had
9 Evelyn did not file a petition to modify the parent-child relationship or otherwise formally request
the children be returned to her.
18
“cockroaches crawling on the walls,” cookware with old food caked on it, was cluttered
with trash, and emitted a “strong odor” supported termination). Finally, the trial court found
that Evelyn failed to “[p]rovide a home that is free of domestic violence, clean, safe[,] and
drug free for the children.” However, there is no testimony supporting a finding that the
home—or any home that Evelyn lived in—had any domestic violence or drug possession
or use. See Fulgham, 349 S.W.3d at 157. Further, testimony that a home is “cluttered”
and smells like animal urine alone is not a significant reason to terminate parental rights.
The trial court additionally found that Evelyn had maintained her employment for
approximately a year and a half, which demonstrates some stability. This factor ultimately
only slightly supports termination, if at all.
Finally, we consider the last two factors together: the parent’s acts or omissions
that may indicate the existing parent-child relationship is an improper one; and any
excuse for the parent’s acts or omissions. Again, we note that the trial court excluded any
finding that Evelyn endangered the physical health or emotional well-being of the children
or that she hit either child. Rather, the trial court’s findings of facts and conclusions of law
relate exclusively to Evelyn’s failure to comply with her service plan. The trial court
specifically found that Evelyn failed to complete the following tasks on her family plan of
service:
a. Cooperate with the Department[;]
b. Demonstrate appropriate parenting skills attained during the
parenting classes and utilize them to effectively parent the children[;]
c. Maintain contact with her children by participating in visitations[;]
d. Complied with visitations rules specified by [the] [Department]
caseworker[;] [and]
19
e. Provide a home that is free of domestic violence, clean, safe[,] and
drug free for the children.
The evidence does not support the trial court’s finding that Evelyn failed to maintain
contact with her children by failing to participate in visits. Although Escamilla testified that
Evelyn’s visits were sporadic, her specific testimony only related to Evelyn’s visits during
the month of trial, and she was otherwise unaware of Evelyn’s visits. See In re M.A.J.,
612 S.W.3d at 412. Likewise, there is no evidence that Evelyn failed to follow the visitation
rules established by the Department. 10 As previously noted, there is no evidence that
Evelyn’s home had any history of domestic violence or drug possession or use. Further,
although the trial court found that Evelyn failed to demonstrate appropriate parenting skills
attained through her family plan of service, the evidence presented demonstrates the
opposite—Escamilla testified that Evelyn’s behavior was appropriate during the visits and
there were no concerns. Additionally, there is no evidence detailing when Evelyn
completed the required parenting classes, so there was no basis for the trial court to
determine whether any shortcomings occurred before or after she had an opportunity to
learn from the classes.
However, Escamilla’s testimony that Evelyn failed to provide necessary
information for people residing with her was a direct violation of her family plan of service
and demonstrates that she failed to cooperate with the Department. Although Evelyn
explained that the person that she was living with refused to provide the information, it is
10 The Department points to Escamilla answering affirmatively that there were “conversations
between [Evelyn] and the children resulted in some emotional meltdown.” However, after Escamilla agreed
to the question, Evelyn objected to Escamilla’s subsequent testimony as hearsay, which was sustained by
the trial court. Beyond that, there is no information reflecting that Evelyn violated any of the Department’s
visitation rules. Indeed, Escamilla testified that the foster parents reported the visits to be appropriate.
20
still a violation. See In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.—Houston [1st Dist.]
2017, pet. denied) (noting that partial compliance with the service plan is insufficient to
avoid termination). Further, Escamilla testified that Evelyn was not always honest about
where she was residing, but her family plan of service required her to notify the
Department of her residence within three days of moving and allow the Department to
visit the home. Evelyn did not offer any explanation for this behavior. While a parent’s
failure to comply with the service plan surely impacts whether termination is in the child’s
best interest, the degree of participation and the specific infractions is also considered.
See id. at 269 (“[I]n conducting the best-interest analysis, a court may consider not only
direct evidence but also may consider circumstantial evidence, subjective factors, and the
totality of the evidence.”). This factor only slightly supports termination.
Having reviewed the entire record, including the trial court’s findings of fact and
conclusions of law, we conclude that a reasonable factfinder could not have formed a firm
belief or conviction that termination was in the children’s best interest. See In re A.C., 560
S.W.3d at 631. Therefore, the evidence was legally insufficient to support a finding that
termination was in the children’s best interest. Evelyn’s second issue is sustained.
B. Predicate Grounds
Although we are reversing the trial court’s order terminating the parent-child
relationship on the basis that the Department failed to prove that termination is in the
children’s best interest, we conclude that due process requires us to also review the
grounds found by the trial court. See TEX. FAM. CODE ANN. § 161.004(b) (allowing a trial
court to consider evidence presented at a previous hearing for termination); In re N.G.,
21
577 S.W.3d at 235 (“[D]ue process . . . requires a heightened standard of review of a trial
court’s finding under [§] 161.001(b)(1)(D) or (E), even when another ground is sufficient
for termination . . . .”). Here, if we did not address Evelyn’s argument that the evidence
was insufficient to support a finding under predicate grounds (D) and (E), the trial court
could consider its findings in a future termination trial. See TEX. FAM. CODE ANN.
§ 161.004(b).
Beyond Escamilla’s testimony relating to Matthew’s outcry, the Department did not
present any evidence to support a finding under predicate grounds (D) and (E). Regarding
Matthew’s outcry, we note the significance of the trial court’s exclusion from its findings
of fact and conclusions of law that Evelyn struck Matthew or otherwise endangered either
child’s physical health or emotional well-being. See TEX. R. CIV. P. 299; Clinton, 621
S.W.3d at 850. Accordingly, we conclude there is both legally and factually insufficient
evidence to support termination under predicate grounds (D) and (E).
However, as discussed, Escamilla’s testimony that Evelyn failed to provide the
necessary information of the person she resided with, and that Evelyn provided false
information regarding her own residence is uncontroverted. See In re A.C., 560 S.W.3d
at 630–31. The trial court specifically found that Evelyn failed to comply with her family
plan of service. Although Escamilla acknowledged that Evelyn completed all her services,
partial compliance with a service plan does not prevent termination under Subsection
(O). 11 See In re J.M.T., 519 S.W.3d at 267. After reviewing the entire record, we conclude
11 In re N.G. does not require us to review termination under predicate ground (O); however, we
do so out of an abundance of caution.
22
there is both legally and factually sufficient evidence that Evelyn failed to comply with her
court-ordered family plan of service. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O).
Evelyn’s first issue is sustained as to predicate ground (D) and (E) and overruled as to
ground (O).
IV. CONCLUSION
We reverse the trial court’s judgment terminating the parent-child relationship
between Evelyn and her children. We remand this case with instructions for the trial court
to deny the Department’s petition for termination and for further proceedings consistent
with the Texas Family Code regarding child protection proceedings. See id.
§ 263.5031(a)(4)(K).
CLARISSA SILVA
Justice
Delivered and filed on the
22nd day of December, 2022.
23 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350343/ | NUMBER 13-21-00388-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSHUA BEAUREGARD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
Appellant Joshua Beauregard pleaded guilty to driving while intoxicated, his third
or more offense, which is a third-degree felony. See TEX. PENAL CODE ANN. § 49.09. The
trial court sentenced him to ten years’ imprisonment, but it probated the sentence for ten
years and placed Beauregard on community supervision. Less than a year later, the State
filed a motion to revoke, claiming Beauregard violated terms of his community
supervision. The trial court revoked Beauregard’s supervision and imposed his original
sentence. By a single issue, Beauregard contends his sentence is cruel and unusual in
violation of the Eighth Amendment. We affirm.
I. BACKGROUND
On June 11, 2019, the trial court accepted Beauregard’s guilty plea and placed
him on community supervision. As part of the terms of his community supervision,
Beauregard was required to, among other things: (1) avoid using or possessing controlled
substances; and (2) participate fully in and complete substance abuse treatment.
On March 12, 2020, the State filed a motion to revoke Beauregard’s community
supervision, alleging that Beauregard violated the terms of his community supervision by:
(1) possessing synthetic marijuana; (2) using synthetic marijuana; and (3) failing to
successfully complete substance abuse treatment.
On October 26, 2021, a hearing was held on the State’s motion to revoke. At the
hearing, Beauregard pleaded true to two of the three allegations. Specifically, Beauregard
admitted to using synthetic marijuana and failing to complete substance abuse treatment.
The trial court ultimately found true all three allegations and sentenced Beauregard to ten
years’ imprisonment.
This appeal followed.
II. CRUEL & UNUSUAL PUNISHMENT
Beauregard argues that the sentence imposed was disproportionate to the harm
caused, in violation of the Eighth Amendment’s prohibition against cruel and unusual
punishments. See U.S. CONST. amend. VIII.
2
A. Standard of Review & Applicable Law
When the issue has been preserved, we review a trial court’s sentencing
determination for an abuse of discretion. See Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984); see also Hargis v. State, No. 13-21-00156-CR, 2022 WL 710081,
at *1 (Tex. App.—Corpus Christi–Edinburg Mar. 10, 2022, no pet.) (mem. op., not
designated for publication). If the sentence imposed is within the statutory limits, it is
generally not “excessive, cruel, or unusual.” State v. Simpson, 488 S.W.3d 318, 323 (Tex.
Crim. App. 2016); Alvarez v. State, 525 S.W.3d 890, 892 (Tex. App.—Eastland 2017, pet.
ref’d). However, “an individual’s sentence may constitute cruel and unusual punishment,
despite falling within the statutory range, if it is grossly disproportionate to the offense.”
Alvarez, 525 S.W.3d at 892 (citing Solem v. Helm, 463 U.S. 277, 287 (1983)). A third-
degree felony is punishable by “any term of not more than 10 years or less than 2 years”
imprisonment. TEX. PENAL CODE ANN. § 12.34(a).
“Generally, an appellant may not complain of an error pertaining to his sentence
or punishment if he has failed to object or otherwise raise error in the trial court.” Ponce
v. State, 89 S.W.3d 110, 114 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.); see
TEX. R. APP. P. 33.1(a); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986).
There is no “hyper-technical or formalistic use of words or phrases” required to preserve
error. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see also Hargis, 2022
WL 710081, at *2. However, a party must still “let the trial judge know what he wants, why
he thinks he is entitled to it, and do so clearly enough for the judge to understand him at
a time when the judge is in the proper position to do something about it.” Pena, 285
3
S.W.3d at 464 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992));
see also Hargis, 2022 WL 710081, at *2.
B. Analysis
The record reveals that Beauregard did not object to his sentence either when it
was pronounced or in any post-judgment motion. See Mercado, 718 S.W.2d at 296.
“Preservation of error is not merely a technical matter by which appellate courts seek to
overrule points of error in a cursory manner.” Loredo v. State, 159 S.W.3d 920, 923 (Tex.
Crim. App. 2004). “Fairness to all parties requires a party to advance his complaints at a
time when there is an opportunity to respond or cure them.” Id. Because Beauregard
failed to object to his sentence prior to this appeal, he has failed to preserve this complaint
for our review. See TEX. R. APP. P. 33.1(a); Mercado, 718 S.W.2d at 296.
We overrule this issue.
III. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
22nd day of December, 2022.
4 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483340/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CAI LIQUIDATING, INC. and J & A PROPERTY UNPUBLISHED
HOLDINGS, LLC, November 10, 2022
Plaintiffs-Appellants,
v No. 358278
Court of Claims
MICHIGAN DEPARTMENT OF ENVIRONMENT, LC No. 20-000164-MZ
GREAT LAKES, AND ENERGY,
Defendant-Appellee.
Before: HOOD, P.J., and JANSEN and K. F. KELLY, JJ.
PER CURIAM.
Plaintiffs, CAI Liquidating, Inc. (CAI) and J & A Property Holdings, LLC (J & A), appeal
as of right the Court of Claims opinion and order dismissing the matter for lack of an actual
controversy, and granting summary disposition in favor of defendant, the Michigan Department of
Environment, Great Lakes, and Energy. We vacate the opinion and order of the Court of Claims,
and remand for a determination on the merits.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises from a dispute between the parties regarding whether defendant has
jurisdiction to order plaintiffs to perform corrective action at its hazardous waste facility under the
Michigan Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq.
When waste management spills or releases hazardous material into the environment, Part 111 of
the NREPA, MCL 324.11101 et seq., requires corrective action by the owner or operator of the
facility, which may include an investigation, assessment, or cleanup of the contaminated air,
groundwater, surface water, soil, or sediments. MCL 324.11115a.
Chemical Analytics, Inc. (CAI’s former business operating name) operated a hazardous
waste treatment, storage, and disposal facility at 29959 Beverly Road, in Romulus, under Part 111
of the NREPA. Chemical Analytics operated under a Part 111 operating permit for treatment and
storage of hazardous waste from 2002 until 2015. Around March 1, 2015, Stericycle Specialty
Waste Solutions, Inc. (Stericycle) purchased the operating name “Chemical Analytics” and all of
-1-
its assets, except the property and the buildings on the property. J & A is the current owner of the
property and its buildings (“the facility”).
When plaintiffs began closing the facility, disputes arose between the parties regarding
whether corrective action needed to be performed. Various studies conducted at the facility
showed levels of arsenic, selenium, zinc, and benzo(a)pyrene that exceeded statutory cleanup
criteria levels. Plaintiffs hired PM Environmental, Inc. (PM) throughout the years to conduct
evaluations at the facility. Contrary to PM’s conclusions, defendant believed that a release
occurred at the facility, therefore triggering corrective action under Part 111. Plaintiffs asserted
that there was no evidence of a release, and the contaminants found in the soil were naturally
occurring. Defendant suggested corrective action in the form of a restrictive covenant limiting the
use of the property to nonresidential, and to maintain a concrete slab foundation to act as an
infiltration barrier. Plaintiffs contested these recommendations, and no order or consent agreement
was ever entered requiring corrective action.
Thus, in August 2020, plaintiffs filed a one-count complaint for declaratory judgment in
the Court of Claims, seeking a declaration that defendant lacked authority under Part 111 to impose
corrective action on plaintiffs where there was no evidence of release. The parties each filed
competing motions for summary disposition. However, in July 2021, on its own motion, the Court
of Claims ordered the parties to file supplemental briefs regarding whether plaintiffs could seek
declaratory relief when no corrective action was ordered, whether plaintiffs’ action was premature,
and whether an actual controversy existed between the parties giving rise to an action for
declaratory relief.
The parties each filed briefs, and plaintiffs argued that defendant “effectively ordered”
corrective action at the facility, creating an actual controversy. Defendant asserted that no formal
order or consent order was ever entered, plaintiffs’ injuries were hypothetical, and therefore, no
actual controversy existed. The Court of Claims agreed with defendant, dismissed plaintiffs’
complaint for lack of an actual controversy, and granted defendant summary disposition. Plaintiffs
now appeal.
II. STANDARD OF REVIEW
The lower court decision whether to grant or deny declaratory relief is reviewed for an
abuse of discretion. The Reserve at Heritage Village Ass’n v Warren Fin Acquisition, LLC, 305
Mich App 92, 104; 850 NW2d 649 (2014). “An abuse of discretion occurs when a trial court’s
decision is not within the range of reasonable and principled outcomes.” Id. (quotation marks and
citation omitted). A trial court’s decision regarding a motion for summary disposition in a
declaratory-judgment action is reviewed de novo. Little v Kin, 249 Mich App 502, 507; 644 NW2d
375 (2002), aff’d 468 Mich 699 (2003). “Questions regarding ripeness are also reviewed de novo.”
Van Buren Charter Twp v Visteon Corp, 319 Mich App 538, 542; 904 NW2d 192 (2017) (quotation
marks and citation omitted).
III. ANALYSIS
Plaintiffs argue that the trial court erred by dismissing its complaint for a declaratory
judgment because an actual controversy did exist. We agree.
-2-
MCR 2.605 is the court rule governing a trial court’s authority to enter a declaratory
judgment. MCR 2.605(A)(1) states: “In a case of actual controversy within its jurisdiction, a
Michigan court of record may declare the rights and other legal relations of an interested party
seeking a declaratory judgment, whether or not other relief is or could be sought or granted.” The
decision whether to grant declaratory relief is within the sound discretion of the trial court. Van
Buren Charter Twp, 319 Mich App at 545.
When there is no actual controversy, the court lacks jurisdiction to issue a
declaratory judgment. Thus, the existence of an “actual controversy” is a condition
precedent to the invocation of declaratory relief. An actual controversy exists when
a declaratory judgment is necessary to guide the plaintiff’s future conduct in order
to preserve the plaintiff’s legal rights. It is not necessary that actual injuries or
losses have occurred; rather [that] plaintiffs plead and prove facts which indicate
an adverse interest necessitating a sharpening of the issues raised. [Id. at 545-546
(quotation marks and citations omitted; alteration added).]
Defendant’s authority to order corrective relief under Part 111 of the NREPA is provided
in MCL 324.11115a, which provides:
(1) Beginning on June 4, 1992, the owner or operator, or both, of a facility
specified in this subsection is subject to the corrective action requirements specified
in this part and the rules promulgated under this part for all releases of a
contaminant from any waste management unit at the facility, regardless of when
the contaminant may have been placed in or released from the waste management
unit. This requirement applies to a facility for which the owner or operator, or both,
is applying for or has been issued a license under this part.
(2) Beginning on June 4, 1992, if the department, on the basis of any
information, determines that there is or has been a release of a contaminant from
any waste management unit at the facility, the department may order, or may enter
a consent order with an owner or operator, or both, of a facility specified in
subsection (1), requiring corrective action at the facility. . . .
There is no dispute that defendant never entered an order or consent order requiring
plaintiffs to perform corrective action under MCL 324.11115a(2). Plaintiffs concede this point on
appeal. The parties negotiated for years what corrective action was appropriate, i.e., the restrictive
covenant restricting the land to nonresidential use and the maintenance of a concrete slab
foundation to act as an infiltration barrier. Plaintiffs were provided with draft consent agreements,
but refuted the terms, so they were never signed or entered. Defendant has not offered any reason
why it has not entered a formal order for corrective action up to this point.
Thus, the actual controversy that exists between the parties is whether defendant has
jurisdiction to order plaintiffs to perform corrective action where, as alleged by plaintiffs, there is
no evidence of a release of contaminants at the facility. The parties have debated this point for
years, culminating in this litigation, and there can be no resolution of the issue without declaratory
relief. As long as defendant fails to enter a formal order, plaintiffs will dispute the terms of any
draft consent agreement, rendering the sale of the property at a stalemate to the detriment of
-3-
plaintiffs. Thus, plaintiffs have sufficiently “plead[ed] and prove[n] facts which indicate an
adverse interest necessitating a sharpening of the issues raised.” Van Buren Charter Twp, 319
Mich App at 546 (quotation marks and citation omitted). Although the Court of Claims deemed
this issue hypothetical, and “there [] must be a present legal controversy, not one that is merely
hypothetical or anticipated in the future,” League of Women Voters of Mich v Secretary of State,
506 Mich 561, 586; 957 NW2d 731 (2020) (quotation marks and citation omitted), a controversy
exists here because the parties have disputed corrective action for years, and a declaratory
judgment is necessary for a resolution.
The parties dispute the application of Flanders Indus, Inc v Michigan, 203 Mich App 15;
512 NW2d 328 (1993) to the facts at hand.1 In Flanders, the plaintiff purchased an industrial plant
on Lake Michigan, and the previous owner had discharged contaminants into the water. Id. at 18-
19. The Michigan Department of Natural Resources (DNR, a predecessor of defendant), notified
the plaintiff that it was responsible for remediating the contamination under a previous version of
the NREPA, and the plaintiff incurred expenses for inspecting, testing, monitoring, and removing
the contaminants. Id. at 19. The plaintiff moved for declaratory relief seeking a determination
that it was not liable for the cost of cleaning up the lake, and the trial court denied the request
because it was premature. Id. at 20. This Court determined that the plaintiff could not obtain a
declaratory judgment of nonliability “before the DNR has initiated a cost recovery action.” Id.
at 21 (emphasis added). The plaintiff’s “ ‘right’ to avoid liability for the clean-up costs can be
determined just as effectively after the DNR has instituted a cost recovery action as before.” Id.
at 23. Therefore, no actual controversy existed at the time of the suit. Id.
The facts of this case are distinguishable from Flanders because defendant has initiated
corrective action proceedings. Defendant has directed plaintiffs to produce studies of the property
and has attempted to enter a consent agreement for corrective action for years. Defendant
requested that plaintiffs submit a work plan for corrective action in 2016. For unknown reasons,
defendant has not entered a formal order. Plaintiffs, therefore, are in need of declaratory relief and
a determination of this case on the merits.
Therefore, the Court of Claims abused its discretion when it determined that there was no
actual controversy between the parties, and improperly dismissed plaintiffs’ complaint for
declaratory relief and granted defendant summary disposition.2
1
Plaintiffs argue that this case is distinguishable and nonbinding because it relies on federal
caselaw. Although lower federal court decisions are not binding on this Court but merely
persuasive, Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004), the Flanders
decision itself remains good law. See Straman v Lewis, 220 Mich App 448, 451; 559 NW2d 405
(1996), citing MCR 7.215(C)(2) (the publication of an opinion of this Court creates binding
precedent until our Supreme Court enters a decision altering this Court’s decision or its rationale).
2
This renders discussion of defendant’s alternative argument that plaintiffs failed to exhaust
administrative remedies unnecessary.
-4-
The Court of Claims opinion and order is vacated, and this matter is remanded to the Court
of Claims for a determination on the merits. We do not retain jurisdiction.
/s/ Noah P. Hood
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
-5- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483322/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re BOOKER/COOPER, Minors. November 10, 2022
No. 360465
Wayne Circuit Court
Family Division
LC No. 2017-000905-NA
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Respondent-mother1 appeals as of right the trial court’s order terminating her parental
rights to the minor children, NB and LC,2 under MCL 712A.19b(3)(i) (parental rights to one or
more siblings terminated due to neglect or abuse and prior attempts to rehabilitate the parent have
been unsuccessful). We affirm.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
This case arose in October 2021 after Child Protective Services (CPS) workers learned LC
was born positive for cocaine. Respondent-mother admitted that she used cocaine throughout her
pregnancy and had engaged in domestic violence with LC’s father. Respondent-mother’s older
child, NB, was previously the subject of a guardianship with her maternal grandmother, but the
guardianship had lapsed. CPS workers engaged respondent-mother in a safety plan, but she
refused to cooperate.
On the basis of these circumstances, the Department of Health and Human Services
(DHHS) filed a petition seeking the trial court’s jurisdiction over NB and LC. The petition asked
the trial court to terminate respondent-mother’s parental rights. The trial court authorized the
1
The trial court terminated parental rights to NB’s unknown father. Although LC’s father was a
respondent in the trial court proceedings, the Department of Health and Human Services (DHHS)
did not seek termination of his parental rights. Neither father is a party to this appeal.
2
Respondent-mother has four other children. The trial court terminated her parental rights to these
children several years earlier.
-1-
petition. At the termination hearing, respondent-mother entered a plea admitting there were
statutory grounds to terminate her parental rights. The trial court conducted a separate best-
interests hearing, finding termination was in the best interests of the children. This appeal
followed.
II. STATUTORY GROUNDS
Respondent-mother first argues the trial court erred in finding statutory grounds to
terminate her parental rights. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
Respondent-mother argues on appeal that she preserved her challenge to statutory grounds
for termination because she disputed the trial court’s finding of statutory grounds during closing
arguments. In making this argument, respondent-mother fails to recognize that she pleaded to
statutory grounds at the termination hearing and she did not move to withdraw her plea, nor did
she argue that her plea was not knowingly, voluntarily, or understandably given. Therefore, the
question of statutory grounds for termination is unpreserved. See In re Pederson, 331 Mich App
445, 462; 951 NW2d 704 (2020).
Normally, this Court reviews challenges to a trial court’s finding of statutory grounds for
termination under the clear error standard of review. In re Hudson, 294 Mich App 261, 264; 817
NW2d 115 (2011). However, unpreserved challenges such as these are reviewed for plain error.
In re Pederson, 331 Mich App at 463. “To avoid forfeiture under the plain-error rule, the
proponent must establish that a clear or obvious error occurred and that the error affected
substantial rights . . . . An error affects substantial rights if it caused prejudice, i.e., it affected the
outcome of the proceedings.” In re Beers, 325 Mich App 653, 677; 926 NW2d 832 (2018)
(quotation marks and citations omitted).
B. LAW AND ANALYSIS
The trial court terminated respondent-mother’s parental rights under MCL 712A.19b(3)(i).
Termination is proper under this subsection when “[p]arental rights to 1 or more siblings of the
child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the
parent has failed to rectify the conditions that led to the prior termination of parental rights.” MCL
712A.19b(3)(i).
It is undisputed that respondent-mother’s parental rights to her other children were
previously terminated, which is one of the elements of MCL 712A.19b(3)(i). This subsection also
requires that the prior termination involve serious and chronic neglect or physical or sexual abuse,
and that prior attempts at rehabilitation were unsuccessful. MCL 712A.19b(3)(i). It further
requires the trial court “to determine the success of prior rehabilitative efforts as of the date of the
termination hearing.” In re Gach, 315 Mich App 83, 94; 889 NW2d 707 (2016). In this case,
respondent-mother admitted during her plea that her parental rights to four other children were
previously terminated due to serious and chronic neglect. She further admitted that she had used
illegal substances while pregnant with LC and that she had been in a volatile relationship with the
child’s father that involved domestic violence. Respondent-mother’s admissions established a
factual basis for the trial court to find that her parental rights to her other children were previously
-2-
terminated because of serious and chronic neglect, and that prior rehabilitative efforts were
unsuccessful. Therefore, there is no plain error in the trial court’s finding that termination was
proper under MCL 712A.19b(3)(i).
Even so, respondent-mother makes several arguments challenging the trial court’s finding
of statutory grounds to terminate her parental rights. She contends that “a prior termination should
not serve as the sole basis for terminating parental rights.” But, the trial court did not terminate
respondent-mother’s parental rights based only on her earlier termination. The trial court’s finding
of statutory grounds for termination was premised on the earlier termination, the fact that the earlier
case involved “serious and chronic neglect,” and because the conditions leading to the earlier
termination continued to exist. Cf. In re Gach, 315 Mich App at 98-99 (concluding MCL
712A.19b(3)(l) was unconstitutional because it limited a finding of statutory grounds for
termination based solely on whether a respondent’s parental rights were previously terminated.).
Respondent-mother also argues the trial court erred in finding statutory grounds because
(1) she encountered technical difficulties during the termination hearing; (2) she and LC’s father
were similarly situated in their ability to care for the children; and (3) she was entitled to a
treatment plan. These arguments are made in a perfunctory fashion and respondent-mother offers
no corresponding argument in support of these assertions. “A party cannot simply assert an error
or announce a position and then leave it to this Court to discover and rationalize the basis for [their]
claims, or unravel and elaborate [their] argument, and then search for authority either to sustain or
reject [their] position.” In re TK, 306 Mich App 698, 712; 859 NW2d 208 (2014) (quotation marks,
alterations, and citation omitted). Therefore, these arguments are abandoned on appeal and we
decline to consider them now.
III. BEST INTERESTS
Respondent-mother next argues the trial court erred in terminating her parental rights
because termination was not in the children’s best interests. We disagree.
A. STANDARD OF REVIEW
Once a statutory ground for termination has been established, the trial court must find that
it is in the child’s best interests to terminate parental rights. MCL 712A.19b(5); In re Olive/Metts
Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). Whether termination is in the best interests
of the child must be proved by a preponderance of the evidence. In re Moss, 301 Mich App 76,
90; 836 NW2d 182 (2013). This Court reviews for clear error the trial court’s determination
regarding a child’s best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014).
B. BEST INTERESTS
To make a finding that termination is in the best interests of a child, the trial court may
consider:
[T]he child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality, and the advantages of a foster home over the
parent’s home. The trial court may also consider a parent’s history of domestic
violence, the parent’s compliance with his or her case service plan, the parent’s
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visitation history with the child, the children’s well-being while in care, and the
possibility of adoption. [In re White, 303 Mich App at 713-714 (quotation marks
and citation omitted).]
In finding that termination of parental rights was in the children’s best interests, the trial
court placed great weight on respondent-mother’s unwillingness to take responsibility for her
conduct, as well as her inability to appreciate their impact on her children. The trial court also
noted that nothing had changed since the prior proceedings that led to the termination of
respondent-mother’s parental rights to four other children, that respondent-mother was unwilling
to recognize and accept responsibility for her parenting deficiencies, and that she blamed others
for her situation. The record supports these findings.
A CPS investigator testified about her attempts to work with respondent-mother to
implement a safety plan for the children to avoid filing a court petition, but respondent-mother’s
continued domestic violence, lack of cooperation, and argumentative conduct prevented
implementation of a safety plan. The psychologist who completed respondent-mother’s family
assessment testified that respondent-mother failed to fully appreciate the significance or severity
of the issues that she was dealing with and how they affected her ability to care for her children.
He also expressed concern that respondent-mother minimized the domestic violence in her
relationships and glossed over the incidents of violence. The psychologist further opined that
termination was in the children’s best interests because it would be detrimental for the children to
live in an environment with substance abuse and domestic violence.
The trial court’s findings are also supported by respondent-mother’s conflicting testimony
regarding her cocaine use, and her explanations for positive drug tests, which the trial court did
not find credible. Respondent-mother admitted to having used cocaine while pregnant with LC
when she tendered her plea. During her testimony at the best-interests hearing, she initially
claimed that she had used cocaine only once, before she knew she was pregnant, but later testified
that she had used cocaine two or three times, knowing that she was pregnant. She attributed a
positive drug test in July 2021 to her use of cocaine two months earlier. She admitted testing
positive for cocaine in October 2021, but she denied using cocaine before that test, claiming the
positive result was caused by cocaine on items in her house that she had touched.
On appeal, respondent-mother argues termination was not in the children’s best interests
because they are placed with their maternal grandmother, who is willing to take guardianship of
the children. Although placement with a relative weighs against termination, a trial court may
terminate parental rights if it finds that termination is in the child’s best interests. In re Olive/Metts,
297 Mich App at 43. The trial court considered the options of a guardianship and continued
placement of the children with their grandmother in lieu of terminating respondent-mother’s
parental rights, but rejected these options because they would not provide the children with
permanence and stability. As the trial court found, respondent-mother had not made any progress
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toward rehabilitating herself after her parental rights to four other children were previously
terminated. Indeed, NB had already been in a guardianship for approximately 10 years and was
no closer to being reunited with respondent-mother. All of these findings are supported by the
record; therefore, there is no clear error on this basis.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
-5- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483332/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ERIK SPORTELL and LISA SPORTELL, UNPUBLISHED
November 10, 2022
Plaintiffs/Counterdefendants-
Appellants,
v No. 359632
Muskegon Circuit Court
SHAWN ALSPACH, TIMOTHY R. ALSPACH, and LC No. 20-004354-CZ
PATRICIA A. ALSPACH,
Defendants/Counterplaintiffs-
Appellees.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Plaintiffs, Erik and Lisa Sportell, appeal by right the trial court’s opinion and order granting
summary disposition in favor of plaintiffs in this litigation involving the scope of an express
easement that burdens plaintiffs’ property and benefits property owned by defendants, Shawn,
Timothy, and Patricia Alspach. The court framed its opinion and order as granting summary
disposition to plaintiffs; however, the opinion and order, which construed the easement, actually
granted some declaratory relief to plaintiffs and some declaratory relief to defendants, the latter of
which forms the basis of this appeal. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
On October 29, 2020, plaintiffs filed a three-count complaint against defendants, alleging
a claim for declaratory relief, a cause of action for trespass, and a request to quiet title in plaintiffs’
favor. On December 11, 2020, defendants filed a counterclaim for declaratory relief. The
complaint and the counterclaim focused on an express easement held by defendants. Plaintiffs’
real property is subject to this easement. Although the complaint and counterclaim touched on
multiple issues with respect to the scope of the easement, i.e., questions regarding what activities
could and could not be engaged in when utilizing the easement, the only relevant issue for purposes
-1-
of this appeal is whether the easement granted defendants the right to indefinitely moor their boat
to a dock installed by defendants.1
On May 3, 2021, the parties entered into a stipulated statement of undisputed facts, which
provided as follows:
1. Plaintiffs own real property commonly referred to as 239 Sunset Trail,
Muskegon 49442 (the “Sportell Property”) pursuant to the Warranty Deed dated
October 4, 2018 and attached hereto . . . .
2. The Sportell Property adjoins Wolf Lake on its western border.
3. Defendants Timothy R. Alspach and Patricia A. Alspach own real property
commonly referred to as 239 Sunset Ridge Lane, Muskegon, Michigan 49442 (the
“Alspach Property”) pursuant to the Warranty Deed dated May 13, 2003 and
attached hereto . . . .
4. The Alspach Property is subject to a recorded land contract with Defendant
Shawn Alspach dated February 5, 2009 and attached hereto . . . .
5. The Sportell Property is subject to an express easement for the benefit of
the Alspach Property (the “Easement”). The Easement language is found on . . . .
6. The Easement is located on the northern border of the Sportell Property.
7. The Sportell Property is also subject to an ingress/egress easement to the
water’s edge of Wolf Lake for the benefit of two other properties in the community
who are non-parties to this litigation.
8. Sometime in June 2020, Defendant Shawn Alspach installed a dock from
the edge of the Easement into Wolf Lake (the “Easement Dock”).
9. Also in June 2020, Defendants moored a pontoon boat (the “Boat”) to the
Easement Dock. A picture depicting the Easement Dock and Boat is attached . . . .
10. Later that month, Plaintiff Erik Sportell had a conversation with Defendant
Shawn Alspach regarding the Defendants’ recorded interest in the Sportell Property
including the Easement, Easement Dock and Boat.
11. On June 25, 2020, Defendants furnished a copy of Defendants’ Warranty
Deed evidencing the Easement to Plaintiffs.
1
When the parties speak of “indefinite” or “permanent” mooring of the boat, they mean leaving
the boat moored to the dock night and day, except when in actual use, during the entire boating
season, not year round.
-2-
12. On August 4, 2020, Defendant Shawn Alspach installed a personal
watercraft and lift south of the Easement Dock in Wolf Lake.
13. By August 23, 2020, Defendants had installed another personal watercraft
and lift south of the easement dock in Wolf Lake (the two personal watercrafts and
lifts are referred to collectively as the “Jet Skis”). Pictures of the Jet Skis are
attached as . . . .
14. During the summer of 2020, Defendants operated an All-Terrain Vehicle
(“ATV”) on the Easement.
15. Between September and October of 2020, Plaintiffs and Defendants,
through their respective counsel, corresponded with each other regarding the
Parties’ appropriate use of the Easement.
16. The Parties are unable to agree on appropriate use of the easement.
Defendants’ easement rights were conveyed to them in a 2003 warranty deed by grantor
Wolf Lake Properties, LLC. The easement encompasses “a 10.00 foot wide footpath . . . for ingress
and egress . . . to the water’s edge of Wolf Lake . . . .” The easement further provides, in pertinent
part, as follows:
The Grantees shall have the following additional rights with regard to the
described easement: (A) the right to install and maintain a dock into Wolf Lake;
(B) the right to drive vehicles upon the easement and to park temporarily for the
purpose of installing, repairing, or removing a dock; or to transport beach or boat
supplies. Parked vehicles shall not interfere with the use of the easement by others
holding an interest therein; and (C) the right to maintain a seasonal dock box.
On May 13, 2021, plaintiffs filed a motion for summary disposition under MCR
2.116(C)(10). Plaintiffs argued that the easement language “is not ambiguous” and that extrinsic
evidence could not be considered. Plaintiffs contended that while the easement allows defendants
to install and maintain a dock, the plain and unambiguous language of the easement does not permit
a boat to be permanently moored to a dock. And defendants’ actions in doing so exceeded the
scope of the easement and materially and improperly increased the burden on plaintiffs’ estate.
Plaintiffs also maintained that the width of the easement is ten feet; however, the width of
the dock added to the width of the boat exceed ten feet, thereby exceeding the scope of the
easement. Plaintiffs further noted that the fact that the dock and the boat together exceed ten feet
establishes that the easement was never intended to allow defendants to permanently moor their
boat to the dock. Plaintiffs also presented arguments regarding other activities by defendants that
allegedly exceeded the scope of the easement, but those matters are not at issue in this appeal.
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In response, defendants argued that plaintiffs’ position was “absurd” and that the right to
maintain a dock includes the right to keep a boat at the dock.2 Defendants asserted that to the
extent that the easement is ambiguous, extrinsic evidence could be considered, and defendants
offered the affidavit of Timothy Alspach. He averred, in relevant part:
2. On or about May 13, 2003, my wife and I obtained the easement described
in the Warranty deed recorded at . . . .
3. At that time, my wife and I had owned our Wolf Lake property since 1988.
4. I had been keeping a fishing boat and dock on the beach since 1988.
5. The Easement was created to relocate my boat access easement from one
area owned by Wolf Lake Properties, LLC to another area, so Wolf Lake Properties,
LLC could develop the (then undeveloped) property.
6. To the best of my knowledge, Wolf Lake Properties, LLC, was operated by
Nelson Stone, who developed the area around my property.
7. Nelson and I created the 2003 Easement to memorialize and keep my rights
to keep a boat on a dock on Wolf Lake, as I had been doing on that property since
1988.
On November 3, 2021, a hearing was held on plaintiffs’ motion for summary disposition.
The parties reiterated their written arguments, and when the trial court attempted to narrow down
the issues, it became clear that plaintiffs were mostly upset about defendants leaving their boat
moored to the dock overnight during the boating season. The parties focused on the question
whether under the easement defendants could moor their boat to the dock indefinitely or just
temporarily. The court took the matter under advisement.
On November 18, 2021, the trial court issued a corrected opinion and order granting
plaintiffs’ motion for summary disposition relative to their claim for declaratory judgment.3 The
court ruled as follows:
The court finds that the language of the easement is unambiguous. The
easement allows access to the water’s edge (Wolf Lake). The easement allows the
Alspachs to install and maintain a dock extending into Wolf Lake. A “dock” by
definition is a structure “to which boats may be moored.” New Oxford American
Dictionary (2d ed). In addition, the easement allows the Alspachs to drive across it
2
Defendants stated that when defense counsel had presented plaintiffs’ counsel with the warranty
deed containing the easement prior to the litigation, “[p]laintiffs coordinated with their neighbor
to erect their docks on either side of [d]efendants’ dock and effectively prevent [defendants] from
using it[.]” A photograph appeared to substantiate defendants’ contention.
3
The original opinion and order was entered a couple of days earlier and contained a simple typo,
which is why the court issued a corrected version.
-4-
and park temporarily to transport “boat supplies.” Therefore, the easement allows
the Alspachs to moor a boat at the dock. Although it also allows the Alspachs to
transport “beach supplies,” the court does not read this as a right for them to recreate
on the easement.
The easement allows the Alspachs to drive across it and park temporarily
to install, repair, and maintain the dock. Such parking cannot interfere with others’
use of the easement. The easement allows the Alspachs to keep a seasonal dock
box. The easement does not allow access for other purposes, such as recreating on
the easement, storage of the dock or anything else except the dock box seasonally,
or the addition of lifts or any other structures or equipment or machinery.
We are a bit bewildered and frustrated with the trial court’s ruling because although the main issue
presented to the court was whether the boat could be moored to the dock indefinitely, the court did
not expressly state whether mooring the boat could be indefinite; it simply ruled that the easement
allows defendants “to moor a boat at the dock.” We infer from the trial court’s ruling that the court
found that there were no time parameters relative to defendants’ right to moor a boat to the dock,
considering that the court placed no temporal restrictions on mooring a boat.
At the end of the trial court’s opinion and order, it indicated that the order was “final and
closes the case.” The parties thought differently, and on December 7, 2021, the trial court entered
a stipulated order of dismissal with respect to plaintiffs’ trespass and quiet-title counts. This appeal
ensued.
II. ANALYSIS
A. OVERVIEW OF APPELLATE ARGUMENTS
Plaintiffs first point out that they are riparian owners and that defendants are nonriparian
owners. Plaintiffs state that nonriparian owners, like the public in general, have the right to use
the surface water of a lake in a reasonable manner, including for such activities as boating, fishing,
swimming, and temporarily anchoring boats, and that any additional rights must come from the
express grants of an easement. Plaintiffs agree with the trial court that the easement is
unambiguous. Plaintiffs contend that the scope of an easement is strictly confined to the four
corners of the document. Plaintiffs argue that the unambiguous language of the easement at issue
in this case, while granting defendants the right to install and maintain a dock on Wolf Lake, does
not grant defendants the right to moor a boat indefinitely. Plaintiffs maintain that permanently
mooring the boat to the dock is not necessary and incidental to the reasonable enjoyment of the
dock. Plaintiffs assert that none of the language in the easement grants defendants the right to
indefinitely anchor their boat at the dock. Rather, according to plaintiffs, as nonriparian owners,
defendants only have a right to temporarily moor or anchor their boat. Plaintiffs argue:
Reading the Easement as a whole in light of its purpose—for access to Wolf
Lake—the grantor intended to give [defendants] the right to bring a boat to the
dock, drive across the easement with boating supplies, park temporarily, load the
boat, and enjoy access to Wolf Lake. It may be more convenient to leave the boat
moored to the dock all summer, but the express language of the Easement does not
-5-
give [defendants] the right to moor the boat indefinitely. . . . Mooring a boat
indefinitely . . . is not ‘necessary’ or ‘incident’ to the reasonable enjoyment of the
dock.
Plaintiffs additionally contend that even if the easement is deemed ambiguous, extrinsic
evidence demonstrates that defendants cannot indefinitely moor their boat to the dock. In support,
plaintiffs note that their property is subject to another easement for ingress and egress to the water’s
edge of Wolf Lake, benefiting two other properties. This “second” easement covers the same area
as the easement at issue and provides the easement holders with the right to “install and maintain
a dock” on Wolf Lake, “provided only one dock is installed at any given time.” Plaintiffs argue
that it is impossible for all the easement holders, including defendants, to simultaneously moor
their boats indefinitely without interfering with someone’s easement rights and plaintiffs’ riparian
rights. Plaintiffs maintain:
[T]he extrinsic evidence shows that if all easement holders were permitted
to moor their boats to the dock indefinitely, such mooring would interfere with the
riparian owners’ access to the entire surface of Wolf Lake by overhanging the
easement and blocking access to their own docks.
Courts must construe instruments to avoid an absurd or unreasonable result.
Because permitting [defendants] and Other Easement holders to moor their boats
indefinitely on the dock would be an absurd result, this Court should not construe
the Easement to permit such mooring.
If this Court determines that the Easement is ambiguous, it should still enter
an order based on the extrinsic evidence that the Easement does not permit
[defendants] to moor their boat indefinitely and that their use of the dock is limited
to the reasonableness standard of nonriparian owners to anchor boats temporarily.
Defendants respond that the easement is unambiguous and permits them to keep a boat at
their dock. Defendants contend that when all of the provisions in the easement are viewed “as a
whole, the only ‘temporary’ rights granted in conjunction with the easement are for vehicular
access.” Defendants further assert:
Vehicles may access the land-based easement for installation, repairing, or
removing a dock, or to transport beach or boat supplies. The dock box may be
maintained “seasonally.” The right to maintain and install a dock has no temporal
restrictions. In fact, the plain language of the easement is silent on what
[defendants] may do with the dock beyond transporting beach or boat supplies to
the dock. Significantly, the Plaintiffs acknowledge that [defendants] are permitted
to keep a boat at the dock, but argue that the unqualified, bare description equates
to only temporary mooring of a boat.
Defendants emphasize the trial court’s determination that a “dock” is defined in the dictionary as
a structure to which boats may be moored.
-6-
In the alternative, defendants argue that if the language of the easement is subject to more
than one reasonable interpretation, this Court can consider extrinsic evidence. Defendants claim
that the easement might be deemed ambiguous, “as evidenced by the undefined scope of use and
the parties’ differing perspectives on whether or not [defendants] may continuously moor their
boat at the dock.” Defendants contend that Timothy Alspach’s affidavit resolves all of the
uncertainties in favor of allowing defendants to moor their boat at their dock during the entire
boating season.
In a reply brief, plaintiffs argue that the dictionary definition of “dock” and Timothy
Alspach’s affidavit do not answer the question whether the easement implies a right to moor a boat
indefinitely. Plaintiffs also reiterate that the easement is unambiguous, along with positing that
defendants’ effort to have this Court consider extrinsic evidence runs contrary to precedent by the
Michigan Supreme Court.
B. STANDARD OF REVIEW AND SUMMARY DISPOSITION PRINCIPLES
This Court reviews de novo a trial court’s ruling on a motion for summary disposition. El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). And we review
de novo the interpretation and application of contracts, such as an easement agreement. Bayberry
Group, Inc v Crystal Beach Condo Ass’n, 334 Mich App 385, 400; 964 NW2d 846 (2020);
Highfield Beach at Lake Mich v Sanderson, 331 Mich App 636, 654; 954 NW2d 231 (2020).
MCR 2.116(C)(10) provides that summary disposition is appropriate when, “[e]xcept as to
the amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” A motion brought pursuant to MCR
2.116(C)(10) tests the factual support for a party’s action. Pioneer State Mut Ins Co v Dells, 301
Mich App 368, 377; 836 NW2d 257 (2013). “Affidavits, depositions, admissions, or other
documentary evidence in support of the grounds asserted in the motion are required . . . when
judgment is sought based on subrule (C)(10),” MCR 2.116(G)(3)(b), and such evidence, along
with the pleadings, must be considered by the court when ruling on the (C)(10) motion, MCR
2.116(G)(5). “When a motion under subrule (C)(10) is made and supported . . ., an adverse party
may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or
as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for
trial.” MCR 2.116(G)(4).
“A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the
pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to
the nonmovant, show that there is no genuine issue with respect to any material fact.” Pioneer
State, 301 Mich App at 377. “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The
trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes,
and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition
under MCR 2.116(C)(10). Pioneer State, 301 Mich App at 377. “Like the trial court’s inquiry,
when an appellate court reviews a motion for summary disposition, it makes all legitimate
inferences in favor of the nonmoving party.” Skinner v Square D Co, 445 Mich 153, 162; 516
NW2d 475 (1994). “[S]peculation is insufficient to create an issue of fact.” MEEMIC Ins Co v
-7-
DTE Energy Co, 292 Mich App 278, 282; 807 NW2d 407 (2011). A court may only consider
substantively admissible evidence actually proffered by the parties when ruling on the motion.
Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999); see also MCR 2.116(G)(6).
C. RELEVANT EASEMENT PRINCIPLES
An easement constitutes the right to use another’s land for a specified purpose. Bayberry
Group, 334 Mich App at 399. An easement can be created by covenant or agreement, by
reservation or exception, or by express grant. Id. The use of an easement is strictly confined to
the purpose for which it was reserved or granted. Id. The owner of property subject to an easement
may rightfully use his or her land for any purpose that is not inconsistent with the rights of the
easement holder. Id. “The language of the instrument that granted the easement determines the
scope of the easement holder’s rights.” Id. at 399-400. When determining the purpose or scope
of an easement, we apply the rules used to construe contracts. Id. at 400. Therefore, in ascertaining
the scope of an easement, courts must discern the true intent of the parties at the time the easement
was created. Id. A court should start its examination by reviewing the easement’s plain language,
and if the language of the easement is clear, it must be enforced as written absent any further
inquiry. Id. “A dictionary may be consulted to ascertain the plain and ordinary meaning of words
or phrases used in the contract.” Auto-Owners Ins Co v Seils, 310 Mich App 132, 145; 871 NW2d
530 (2015).
It is an established principle of law that the conveyance of an easement gives the grantee
all rights as are necessary or incident to the reasonable and proper enjoyment of the easement.
Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 41-42; 700 NW2d 364 (2005). The task
of determining the intentions of the parties and construing any limiting language is strictly
confined to examining the four corners of the easement. Id. at 42. When the text of an easement
is ambiguous, a trial court may consider extrinsic evidence in order to assess and determine the
scope of the easement. Id. at 48.4
In Dyball v Lennox, 260 Mich App 698, 705-706; 680 NW2d 522 (2004), this Court
discussed riparian rights in the context of an easement, explaining:
4
In Little v Kin, 468 Mich 699, 700; 664 NW2d 749 (2003), the Michigan Supreme Court similarly
stated:
First, the trial court must determine whether the easement contemplates the
construction and maintenance of a dock by defendants. In answering this question,
the trial court shall begin by examining the text of the easement. Where the
language of a legal instrument is plain and unambiguous, it is to be enforced as
written and no further inquiry is permitted. If the text of the easement is ambiguous,
extrinsic evidence may be considered by the trial court in order to determine the
scope of the easement. [Citation omitted.]
-8-
Erecting or maintaining a dock near the water’s edge is a riparian or littoral
right. A “riparian owner” is one whose land is bounded by a river and “riparian
rights” are special rights to make use of water in a waterway adjoining the owner’s
property. There is no dispute that plaintiffs are riparian owners with riparian rights.
And, there is no dispute that defendant’s rights with regard to the lake are those
rights granted in the easement. Reservation of a right of way for access does not
give rise to riparian rights, but only a right of way. While full riparian rights and
ownership may not be severed from riparian land and transferred to nonriparian
backlot owners, Michigan law clearly allows the original owner of riparian property
to grant an easement to backlot owners to enjoy certain rights that are traditionally
regarded as exclusively riparian. [Quotation marks, citations, and brackets
omitted.5]
D. DISCUSSION AND RESOLUTION
Under the easement, defendants have the “right to install and maintain a dock into Wolf
Lake.” In pertinent part, a “dock” is defined as a “wooden pier used as a landing place or moorage
for boats.” Merriam-Webster’s Collegiate Dictionary (11th ed) (emphasis added). Accordingly,
we conclude that mooring a boat to a dock is necessary and incident to the reasonable and proper
enjoyment of an easement that allows a grantee to install and maintain a dock. See Blackhawk
Dev Corp, 473 Mich at 41-42. And this is especially true in this case where the easement
specifically contemplates using the easement “to transport . . . boat supplies.” (Emphasis added.)6
Moreover, plaintiffs concede and acknowledge that the easement grants defendants the right to
moor their boat to the dock. Additionally, even if the language of the easement on that particular
question is characterized as ambiguous such that extrinsic evidence can be considered, Timothy
Alspach’s uncontroverted affidavit makes clear as a matter of law that the intent of the grantor of
the easement, at least in part, was to provide defendants with the right to install and maintain a
dock and moor a boat to the dock.
With respect to whether the boat can be moored to the dock indefinitely, which is the
ultimate issue in this case, the parties’ primary arguments are that the easement is unambiguous
on the matter. Plaintiffs contend that there is no express language indicating that the dock can be
used to indefinitely moor a boat, whereas defendants maintain that there is no express language
restricting or limiting the usage. We agree with defendants.
The starting point is, once again, recognizing that under the easement defendants have a
right to moor a boat to their dock. The easement does not contain any temporal limitation or
restriction with respect to the use of the dock. And the silence, rather than creating an ambiguity
5
“Strictly speaking, land which includes or abuts a river is defined as riparian, while land which
includes or abuts a lake is defined as littoral[,]” but “the term ‘riparian’ is often used to describe
both types of land[.]” Thies v Howland, 424 Mich 282, 288 n 2; 380 NW2d 463 (1986) (citation
omitted).
6
The easement also refers to “the right to maintain a seasonal dock box,” and it is common
knowledge that dock boxes are used, in part, for storing boating accessories.
-9-
or demonstrating no intent to allow permanent or indefinite use, plainly and unambiguously
establishes that the intent was to allow indefinite use of the dock by defendants, which includes
mooring a boat. Indeed, the easement employs express limiting language when indicating that the
grantees may only park “temporarily” upon the easement, but no comparable language was used
in describing the right to maintain a dock—with the incidental right to moor a boat to the dock.
The flaw in plaintiffs’ position is revealed if one accepts the argument that the plain and
unambiguous language of the easement does not permit indefinite use of the dock to moor
defendants’ boat. The question that would immediately arise would concern how to identify the
parameters of limited or restricted use of the dock. Whatever parameters were offered, even a
vague reasonableness standard, would effectively entail adding language to the easement that
simply does not exist. “We cannot read words into the plain language of a contract.” Northline
Excavating, Inc v Livingston Co, 302 Mich App 621, 628; 839 NW2d 693 (2013). For example,
if the right to moor a boat to the dock is not indefinite and a restriction were put in place forcing
defendants to remove the boat at night, such restriction on the use of the dock would find no basis
in the language of the easement or in the law of easements. Plaintiffs would retort that we are
reading the term “indefinite” or “permanent” into the easement, but that is already reasonably
implied given the absence of any limiting language. On the other hand, “temporary” use cannot
be implied from the easement’s plain language.
Furthermore, assuming an ambiguity, we note that defendants submitted extrinsic evidence
in the form of Timothy Alspach’s affidavit, which provided that the intent of the easement was to
allow defendants to continue “keep[ing] a boat on a dock on Wolf Lake,” thereby indicating
indefinite use. We also note in regard to plaintiffs’ evidence of the easement benefiting two other
properties that the existence of that easement does not mean that defendants’ easement rights to
moor a boat to the dock cannot be deemed indefinite or permanent in the context of this case. Were
there an actual dispute between defendants and the other easement holders, perhaps defendants’
dock and mooring rights could be restricted, but this is not the issue or situation before us.
In sum, we hold that the plain and unambiguous language of the easement allows
defendants to moor a boat to the dock and to do so indefinitely during the boating season.
Consideration of extrinsic evidence would lead to the same result. Accordingly, the trial court did
not err in its ruling.
We affirm. Having fully prevailed on appeal, defendants may tax costs under MCR 7.219.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-10- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483339/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CHERYL COX and FRANK COX, UNPUBLISHED
November 10, 2022
Plaintiffs-Appellants,
v No. 357588
Oakland Circuit Court
AMERICA MULTI-CINEMA, INC., LC No. 2020-180668-NO
Defendant-Appellee.
Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.
PER CURIAM.
Plaintiffs appeal by right the trial court’s order granting defendant’s motion for summary
disposition under MCR 2.116(C)(10). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On December 4, 2018, plaintiff Cheryl Cox (Cheryl) purchased a ticket at a movie theater
owned by defendant. She was using a wheeled mobility scooter as she entered the theater
auditorium. Cheryl testified at her deposition that she was fully blind in her right eye and had 50%
vision in her left eye, but did not tell any of the theater staff about her vision problems. After
Cheryl entered the empty auditorium, she decided to turn around and exit the auditorium to ask
staff for assistance with parking her mobility scooter. She admitted at her deposition that she could
have walked out of the auditorium to get help, but chose to remain in her mobility scooter. When
Cheryl attempted to turn around, she accidentally backed the mobility scooter down some steps,
resulting in her falling down and her mobility scooter landing on top of her, causing injury.
Plaintiffs filed a complaint against defendant alleging claims of negligence and loss of
consortium. Plaintiffs claimed that defendant had breached its duty to Cheryl by having poor
theater design, low lighting, and inadequate staff training, and by failing to properly mark hazards
and handicapped seating sections. Defendant denied that it breached a duty owed to Cheryl and
moved for summary disposition, arguing that plaintiffs’ claims were barred by the open and
obvious doctrine because steps—especially the steps at issue, which were lined with white
handrails, lights, aluminum edges, and yellow and black stripes—are an open and obvious
-1-
condition that do not present unreasonable danger. Defendant also argued that Cheryl’s vision
problems did not preclude application of the open and obvious doctrine.
Plaintiffs responded by arguing for the first time that defendant had negligently violated
the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., when designing its theater
auditorium. Plaintiffs also claimed that special aspects existed that negated the application of the
open and obvious doctrine.
After a hearing on defendant’s motion, the trial court issued a written opinion in which it
concluded, as a matter of law, that the allegedly hazardous condition was open and obvious and
that there were no attendant special aspects. As for the ADA argument, the trial court determined
that plaintiffs had failed to timely raise a claim for violation of the ADA in their complaint. Finally,
the trial court determined that plaintiffs’ loss of consortium claim failed because it was derivative
of the failed premises liability claim.
This appeal followed.
II. STANDARD OF REVIEW
This Court “reviews de novo a trial court’s ruling on a motion for summary disposition.”
Zarzyski v Nigrelli, 337 Mich App 735, 740; 976 NW2d 916 (2021). A party is entitled to summary
disposition under MCR 2.116(C)(10) when the evidence does not present a genuine issue of
material fact. Jewett v Mesick Consol Sch Dist, 332 Mich App 462, 470; 957 NW2d 377 (2020).
“A genuine issue of material fact exists when the record, viewed in the light most favorable to the
nonmoving party, leaves open an issue upon which reasonable minds might differ.” MacDonald
v Ottawa Co, 335 Mich App 618, 622; 967 NW2d 919 (2021) (quotation marks and citation
omitted). “The reviewing court should evaluate a motion for summary disposition under
MCR 2.116(C)(10) by considering the substantively admissible evidence actually proffered in
opposition to the motion.” Jewett, 332 Mich App at 470 (quotation marks and citation omitted).
This includes pleadings, affidavits, admissions, and depositions, along with other evidence
submitted by the parties. Walega v Walega, 312 Mich App 259, 265-266; 877 NW2d 910 (2015).
This Court reviews issues of law de novo. Kocher v Dep’t of Treasury, 241 Mich App 378, 380;
615 NW2d 767 (2000).
III. ANALYSIS
Plaintiffs argue that the trial court erred by granting defendant’s motion for summary
disposition. We disagree.
In premises liability cases, “a plaintiff must prove the elements of negligence: (1) the
defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the
proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Mouzon v
Achievable Visions, 308 Mich App 415, 418; 864 NW2d 606 (2014) (quotation marks and citation
omitted). “Questions regarding whether a duty exists are for the court to decide as a matter of
law.” Id. (quotation marks and citation omitted). “The threshold question in a negligence action
is whether the defendant owed a duty to the plaintiff.” Fultz v Union-Commerce Assoc, 470 Mich
460, 463; 683 NW2d 587 (2004). There can be no tort liability if the defendant did not owe a duty
to the plaintiff. Id.
-2-
In general, “a premises possessor owes a duty to an invitee to exercise reasonable care to
protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the
land.” Finazzo v Fire Equip Co, 323 Mich App 620, 626; 918 NW2d 200 (2018) (citation omitted).
An invitee is someone who enters the “property of another for business purposes.” Stitt v Holland
Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000). “But this duty does not
extend to having to remove open and obvious dangers absent the presence of special aspects.”
Finazzo, 323 Mich App at 626. “A condition of the land is open and obvious when it is reasonable
to expect that an average person with ordinary intelligence would have discovered it upon casual
inspection.” Id. (quotation marks and citation omitted). “Special aspects exist and impose a duty
of care to protect those lawfully on the premises even if a hazard is open and obvious when the
condition is effectively unavoidable or imposes an unreasonably high risk of severe harm.” Id. at
627 (citation omitted).
Steps are generally considered an open and obvious condition. Bertrand v Alan Ford, Inc,
449 Mich 606, 614; 537 NW2d 185 (1995) (citation omitted). “[B]ecause steps are the type of
everyday occurrence that people encounter, under most circumstances, a reasonably prudent
person will look where he is going, will observe the steps, and will take appropriate care for his
own safety.” Id. “Different floor levels in private and public buildings, connected by steps, are
so common that the possibility of their presence is anticipated by prudent persons.” Id. at 615
(quotation marks and citation omitted). A landowner does not have to make his land foolproof to
prevent people from harming themselves. Id. at 616-617. Generally, open and obvious dangers
do not have to be removed because the open and obvious doctrine will cut off liability. Lugo v
Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001) (citation omitted). Steps and
differing floor levels are not ordinarily actionable unless conditions exist that make them
unreasonably dangerous. Bertrand, 449 Mich at 614.
Plaintiffs acknowledge that steps are generally considered an open and obvious condition
on land, but argue that these particular steps possessed special aspects that precluded the
application of the doctrine. Plaintiffs also argue that the trial court should have considered
Cheryl’s subjective vantage point in considering whether the steps were open and obvious.
Additionally, plaintiffs argue that the trial court should have considered their claim for ADA
violations. We disagree with each argument.
A. SPECIAL ASPECTS
Plaintiffs argue that the steps presented an unreasonable risk of harm because of attendant
special aspects. See Finazzo, 323 Mich App at 626 (stating that attendant special aspects can
negate the open and obvious doctrine defense). We disagree. There are two ways for an open and
obvious danger to possess special aspects which negate the application of the open and obvious
doctrine: (1) the danger is unreasonable, or (2) the danger is effectively unavoidable. Hoffner v
Lanctoe, 492 Mich 450, 463; 821 NW2d 88 (2012).
1. UNREASONABLY DANGEROUS
For a condition to pose an unreasonable risk of harm, it must give rise to a uniquely high
risk of severe harm if the risk is not avoided. Lugo, 464 Mich at 518-519. Consider the following:
-3-
It would, for example, be inappropriate to conclude in a retrospective fashion that
merely because a particular plaintiff, in fact, suffered harm or even severe harm,
that the condition at issue in a case posed a uniquely high risk of severe harm. This
is because a plaintiff may suffer a more or less severe injury because of
idiosyncratic reasons, such as having a particular susceptibility to injury or
engaging in unforeseeable conduct, that are immaterial to whether an open and
obvious danger is nevertheless unreasonably dangerous . . . . [T]his opinion does
not allow the imposition of liability merely because a particular open and obvious
condition has some potential for severe harm. [Id. at 518 n 2.]
The appropriate inquiry is whether there are truly special aspects which make the risk created by
the condition different from risks presented by typical open and obvious conditions. Id. at 517-
518. Generally, a premises owner need not protect an invitee from open and obvious dangers
unless there are special aspects which make even an open and obvious condition unreasonably
dangerous. Id. at 517. When evaluating open and obvious dangers, the crucial question is whether
the evidence “creates a genuine issue of material fact regarding whether there are truly ‘special
aspects’ of the open and obvious condition that differentiate the risk from typical open and obvious
risks so as to create an unreasonable risk of harm.” Id. at 517. In other words, the question is
whether the “special aspect” of the open and obvious condition should result in liability for the
defendant or whether the open and obvious character of the condition should bar liability. Id. at
517-518. “It bears repeating that exceptions to the open and obvious doctrine are narrow and
designed to permit liability for such dangers only in limited, extreme situations.” Hoffner, 492
Mich at 472.
The Court in Lugo upheld the trial court’s grant of the defendant’s summary disposition
motion, finding that reasonable minds could not differ on the conclusion that a pothole in a parking
lot was an open and obvious condition without special aspects and that an ordinary, prudent person
would be able to avoid it. Lugo, 464 Mich at 514-526. Importantly, the Court in Lugo concluded
that the debris covering the pothole was insufficient to bar the application of the open and obvious
doctrine because the plaintiff claimed that the reason she did not see the pothole was that she was
looking elsewhere, not because the debris shielded it from her view. Id. at 521. In contrast, the
Lugo Court explained that an unguarded, 30-foot-deep pit in the middle of a parking lot presented
a substantial risk of death or severe injury and was therefore unreasonably dangerous because of
this special aspect. Id. at 518. See also Millikin v Walton Manor Mobile Home Park, Inc, 234
Mich App 490, 491-492, 499; 595 NW2d 152 (1999) (holding that a low-running utility wire that
caused a woman to trip did not create a genuine issue of material fact as to whether an unreasonable
risk of harm existed because there was nothing unusual about the wire nor facts presented to
support the assertion that the wire posed an unreasonable risk of harm); Singerman v Muni Serv
Bureau, Inc, 455 Mich 135, 144; 565 NW2d 383 (1997) (holding that the risk of being hit by a
hockey puck in a hockey rink was not unreasonable, despite the rink’s poor lighting).
The special aspects that plaintiffs claim made the steps an unreasonable risk of harm are
the theater’s alleged design flaws, dark lighting, lack of signage for parking a mobility scooter,
and lack of clear markings on the steps. We disagree that any of these aspects rendered the risk
posed by the steps unreasonably dangerous. To show that the risk of harm posed by the steps was
unreasonably dangerous, plaintiffs were required to show something above and beyond the mere
risk of falling that all steps present. See Lugo, 464 Mich at 518.
-4-
Plaintiffs also contend that the theater failed to meet ADA regulations and that this failure
caused or contributed to Cheryl’s fall, relying on their expert’s affidavit in which he opined that
Cheryl most likely slipped off the edge because the walkway was narrow and because the guardrail
between the steps and the adjacent ramp did not extend the ADA-required 12 inches past the top
of the steps.1 However, even when statutory violations exist, a statutory violation does not
automatically preclude the application of the open and obvious doctrine. Wilson v BRK, Inc, 328
Mich App 505, 519-520; 938 NW2d 761 (2019). Plaintiffs have asserted that Cheryl fell because
of design defects, but plaintiffs have failed to explain how these alleged defects created an
unreasonable risk of harm; despite the claimed narrowness of the steps, the risk posed by the steps
remained the risk of falling. See Hoffner, 492 Mich at 472 (requiring the risk of harm presented
by an open and obvious condition to be unreasonable to avoid application of the doctrine).
Moreover, nothing in Cheryl’s testimony indicates that the presence of an ADA-compliant
guardrail or step-width would have prevented her fall. In light of the irrelevance of any statutory
defect and failure of plaintiffs to substantiate their conclusion that this alleged defect created an
unreasonable risk of severe harm, we conclude that reasonable minds cannot differ that these
alleged defects did not make the steps unreasonably dangerous.
Plaintiffs also argue that the lighting of the steps inside the auditorium was inadequate and
that this is a special aspect that negates the application of the open and obvious doctrine. Plaintiff
has failed to establish a material issue of fact on this issue. The undisputed evidence presented to
the trial court shows that the steps were lighted and had reflective aluminum edges along with
white guardrails and colorful tape marking the edges of the steps. Moreover, even assuming that
the lighting was inadequate, inadequate lighting can be a noticeable and predictable condition that
does not make an otherwise open and obvious risk of harm unreasonable. Singerman, 455 Mich
at 141, 144. In this case, Cheryl was aware that it was dark in the auditorium but decided to
proceed into the auditorium anyway. Cheryl had been to the theater before and either knew or
should have known that there were steps in the auditorium. Furthermore, movie theater
auditoriums are generally dark. As in Singerman, we conclude that reasonable minds cannot differ
in finding that the lighting in the theater auditorium did not render the risk presented by steps
unreasonable.
Plaintiffs also argue that there was a lack of handicap signage in the theater auditorium;
however, assuming this is true, plaintiffs have not explained how a lack of such signage made the
steps unreasonably dangerous and that this lack of signage presented an unreasonable risk of harm
to Cheryl. Plaintiffs argue that the lack of signs caused Cheryl to leave the auditorium to seek
assistance, and that doing so is what led to her fall. This argument goes to causation, not to the
application of the open and obvious doctrine. Plaintiffs have not demonstrated that the lack of
handicap signage made the steps unreasonably dangerous.
Plaintiffs also argue that the tape markings on the steps were confusing and inadequate.
However, plaintiffs do not explain how the tape marking the entrance to the steps rendered the risk
1
The claimed “narrowness” of the steps relates to the 33.5-inch width of the steps (as opposed to
the ADA-required 36 inches) between the guardrails on either side of the steps. The steps
themselves each had an extended “landing” area before reaching the next step.
-5-
of harm unreasonable. Photographs of the steps provided to the trial court shows that the area
surrounding the entrance to the steps was marked with reflective tape, while the actual steps were
marked with reflective aluminum edges and floor lighting and surrounded by a white guardrail.
Plaintiffs have not demonstrated that the tape somehow obscured the steps or otherwise rendered
them unreasonably dangerous, even if Cheryl was confused by the meaning of the tape.
As stated, steps, even steps in a dark room, do not ordinarily present an unreasonable risk
of severe harm because they are a common occurrence encountered every day and an average
person of ordinary intelligence would discover them upon casual inspection. Bertrand, 449 Mich
at 614-616. In this case, the steps in question were marked with black and yellow tape, lined with
reflective aluminum edges, surrounded by white railings, and lit at each step with floor lights.
Plaintiffs have failed to demonstrate that these steps were unreasonably dangerous. See Hoffner,
492 Mich at 472; Bertrand, 449 Mich at 614-616.
2. EFFECTIVELY UNAVOIDABLE
Plaintiffs also argue that the steps were effectively unavoidable. We disagree. A means
of showing that a special aspect existed that negates the application of the open and obvious
doctrine is to demonstrate that the condition was effectively unavoidable. Hoffner, 492 Mich at
463. “An ‘effectively unavoidable’ hazard must truly be, for all practical purposes, one that a
person is required to confront under the circumstances.” Id. at 472. “[N]either a common
condition nor an avoidable condition is uniquely dangerous.” Id.
Steps are a common, everyday condition; they are not uniquely dangerous. Hoffner, 492
Mich at 472; Bertrand, 449 Mich at 616. “[A]n ‘effectively unavoidable’ condition must be an
inherently dangerous hazard that a person is inescapably required to confront under the
circumstances.” Hoffner, 492 Mich at 463, 465. A business invitee’s right to enter a business as
a customer does not render a condition within that business effectively unavoidable. See id.
In this case, Cheryl testified that she saw an exit sign, indicating that there was another way
to leave the auditorium. Additionally, Cheryl admitted that she could have walked out of the
theater to get help, therefore avoiding turning around in her mobility scooter. Moreover, Cheryl
was not required to confront the alleged hazard presented by the steps at all; she could have chosen
not to see a movie in that particular theater or asked a staff member to provide assistance before
entering the theater auditorium (that she had visited before). There was no genuine issue of
material fact as to whether the steps were effectively unavoidable, and the trial court did not err by
concluding that the steps were open and obvious.
B. OBJECTIVE STANDARD
Plaintiffs also argue that the trial court erred by not considering Cheryl’s vantage point,
i.e., her subjective perspective, when determining whether the steps were open and obvious. We
disagree.
Whether a condition is open and obvious is determined by an objective standard. Hoffner,
492 Mich at 461. “Whether a danger is open and obvious depends on whether it is reasonable to
expect that an average person with ordinary intelligence would have discovered it upon casual
inspection. This is an objective standard, calling for an examination of the objective nature of the
-6-
condition of the premises . . . .” Id. (quotation marks and citations omitted). More recently, this
Court held that the “required analysis involves examination of the objective nature of the condition
of the premises.” Wilson, 328 Mich App at 513 n 3.
Here, plaintiffs claim that Cheryl did not see the steps because of her vision issues, not
because they could not be seen by an average person of ordinary intelligence. Although Cheryl’s
subjective characteristics may well have impaired her ability to see the steps, the law is clear that
openness and obviousness is to be determined by reference to an objective standard, and the trial
court was not at liberty to disregard that standard. Hoffner, 492 Mich at 461.
C. ADA VIOLATION
Plaintiffs also argue that the trial court erred by failing to consider plaintiffs’ arguments
concerning alleged violations of the ADA. We disagree.
Michigan is a “notice-pleading jurisdiction with a relatively low bar for the sufficiency of
initial allegations . . . .” Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809
(2020). The purpose of a pleading in Michigan is to “give notice of the nature of the claim or
defense sufficient to permit the opposing party to take a responsive position.” Id. at 230 (quotation
marks and citation omitted).
In their complaint, plaintiffs alleged that Cheryl fell down the steps in part due to the “poor
design of the area for scooters.” Plaintiffs argue that this was sufficient under Michigan’s notice-
pleading rule to notify defendant of plaintiffs’ claim that defendants had violated the ADA. We
disagree. Plaintiffs included their poor design allegation as part of their premises liability claim.
Accordingly, the nature of the argument was that defendant was negligent in its design of the
theater and that this design created an unsafe condition. Negligent design is not synonymous with
ADA violations; simply alleging that an area was negligently designed does not by itself indicate
a claim there was an ADA violation. Plaintiffs did not refer to the ADA in their complaint, either
expressly or by implication, in a manner sufficient to put defendant on notice of such a claim. Id.
Defendant was not given notice of an ADA claim, and therefore, did not have a chance in the trial
court to investigate the claim until after plaintiffs’ response to defendant’s motion for summary
disposition was filed.
In any event, as discussed, the open and obvious doctrine may still be applied when a
statutory violation is present; indeed, violation of a statute is not relevant to the application of the
doctrine. Wilson, 328 Mich App at 519-520. Plaintiffs did not allege a separate claim for violation
of the ADA, but argued that the alleged ADA violations showed that there were special aspects
-7-
that would preclude the application of the open and obvious doctrine. Even if the trial court had
determined that plaintiffs’ allegations of a violation of the ADA were properly before it, its
conclusion regarding special aspects would not have been altered.
Affirmed.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
-8- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483334/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DEPARTMENT OF AGRICULTURE AND FOR PUBLICATION
RURAL DEVELOPMENT and ACME November 10, 2022
TOWNSHIP, 9:30 a.m.
Plaintiffs-Appellees,
V No. 359098
Grand Traverse Circuit Court
KENNETH L. ENGLE and JANET C. ENGLE, LC No. 2020-035493-CZ
Defendants/Cross-Defendants-
Appellants
and
YUBA ORCHARD COMPANY, LLC,
Defendant/Cross-Plaintiff-Appellee.
Before: MARKEY, P.J., and SAWYER and BOONSTRA, JJ.
PER CURIAM.
Defendants Engle (defendants) appeal by leave granted from an order of the circuit court
denying their motion for summary disposition and granting summary disposition to plaintiffs and
rescinding the sale of property by defendants to defendant Yuba Orchard Company (Yuba). We
affirm.
The trial court provided the following concise statement of the facts underlying this appeal:
The Engles owned two adjoining parcels, consisting of 102.91 total acres,
of real property (“Protected Property”) in Acme Township. On March 30, 2012,
the Engles granted a Conservation Easement to Acme Township, the Michigan
Department of Agriculture and Rural Development (MDARD) by and for the State
of Michigan, the United States Department of Agriculture by and for the United
States of America, and the Natural Resources Conservation Service (NRCS) acting
-1-
on behalf of the Commodity Credit Corporation. The Conservation Easement was
conveyed in consideration for $402,900. Under the Conservation Easement, the
Engles (hereinafter the “Grantor”) retained the right to convey the Protected
Property, including the right to sell, lease, mortgage, bequeath, assign or donate the
land.[1] However, the Conservation Easement expressly prohibited the Grantor
from “dividing, subdividing, partitioning or otherwise creating or permitting
separate ownership of the Protected Property.”[2]
On April 5, 2019, the Grantor entered into a Purchase Agreement with
[Defendant] Yuba Orchard Company (“Yuba”), and on July 12, 2019, conveyed
the north parcel of the Protected Property to Yuba in exchange for $328,800.
Pursuant to the remedies outlined in the Conservation Easement, MDARD and
Acme notified the Grantor on January 10, 2020, of the violation and requested that
it be cured. Subsequently, on September 25, 2020, MDARD filed a complaint for
declaratory and injunctive relief, entreating the Court to order the Protected
Property be returned to single ownership. On February 16, 2021, Yuba filed a Cross
Claim against the Grantor asserting breach of contract. The Grantor filed a Motion
for Summary Disposition on February 22, 2021, asserting that: (1) the Conservation
Easement should not be interpreted to prohibit the sale of one of the parcels; (2) the
Court lacks authority to reverse the sale to Yuba; (3) the prohibition against division
constitutes an unreasonable restriction on alienation; and (4) laches should bar the
Plaintiff’s claim. On April 12, 2021, the Court heard oral arguments on the
Grantor’s motion and took the matter under advisement.
The trial court concluded that the subject easement protected “the entirety of the 102.91
acres” without distinguishing between the two separate tax parcels, and that the prohibition on
division or separate ownership was not an unreasonable restraint on alienation. The court further
rejected the defendants’ invocation of the doctrine of laches. The court additionally decreed that,
“Following resolution on appeal, . . . Plaintiff shall record a copy of this Decision and Order and
that recording shall act to rescind the Warranty Deed, dated July 12, 2019, from the Grantor to
Yuba”.
Defendants first argue that the trial court erred in determining that a restraint on alienation
was reasonable. We disagree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo
as a question of law. Ford Credit Int’l, Inc v Dep’t of Treasury, 270 Mich App 530, 534; 716
NW2d 593 (2006). More particularly, the parties and court below regarded this issue as one of
first impression to be decided by the court as a question of law. Questions of law are reviewed de
novo. Rapistan Corp v Michaels, 203 Mich App 301, 306; 511 NW2d 918 (1994), citing Cardinal
Mooney High Sch v Mich High Sch Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
1
Section 5(A).
2
Section 6(A).
-2-
We agree with the trial court that the restraint on alienation at issue here is reasonable. As
explained in LaFond v Rumler, 226 Mich App 447, 451; 574 NW2d 40 (1997):
Michigan follows the common-law rule against unreasonable restraints on
alienation of property. A restraint on alienation of property is defined as an attempt
by an otherwise effective conveyance or contract to cause a later conveyance (1) to
be void (disabling restraint), (2) to impose a contractual liability upon the
conveyance for conveying in breach of the agreement not to convey (promissory
restraint), or (3) to terminate all or part of a conveyed property interest (forfeiture
restraint). [Citations omitted.]
At issue here is a disabling restraint, given that the trial court ordered rescission of defendants-
appellants’ sale of the northern parcel to defendant Yuba.
In LaFond, this Court noted generally that, “ ‘If one’s interest in property is absolute, as a
fee simple, restriction on his right of alienation is void as repugnant to the grant,’ ” but that
“ ‘[w]here the grantor retains an interest in the property . . . the interest generally will support the
imposing of a restriction on alienation.’ ” Id., quoting Sloman v Cutler, 258 Mich 372, 374-376;
242 NW 735 (1932). In this case, the conservation easement left defendants retaining many basic
ownership rights over the protected property, while conveying to plaintiffs the rights to insist that
uses of the protected property be limited as specified in order to conserve its agricultural or open-
space character.
This Court in LaFond cited authorities for the “basic premise . . . that nonassignability
provisions in land contracts exist for the benefit of the vendor to safeguard performance,” and,
“[u]nder reasonable circumstances, these restrictions will be enforced solely for that purpose.”
LaFond, 226 Mich App at 455. Accordingly, LaFond noted with approval other cases involving
land contracts in which the question of reasonableness depended on whether the vendor was
vulnerable to suffering waste, or impairment or loss of security, with regard to the subject real
property. Id. at 453-454, 457.
Defendants argue that the trial court erred by not concerning itself with waste or
impairment of security, suggesting that, where there is no finding of such hazards, any attendant
restraint on alienation is necessarily unreasonable and thus invalid. Defendants attach too much
significance to the inquiry into waste or impairment of security. A vendor performing a land
contract obviously retains a dire interest in the subject real property until the sale is completed,
and so guarding against waste or other impairments of security is reasonable. The conservation
easement underlying this case, however, was not part of any actual or envisioned conveyance of
the fee. In short, neither party have much to fear from the other as to concerns of waste or
impairment of security.
Moreover, neither LaFond, nor the cases it cited, suggested that waste, or impairment of
security, were the sole bases for finding a restraint on alienation reasonable. LaFond, in fact, noted
generally that, after Sloman, 258 Mich 372, “the few cases dealing with the issue of restraints on
alienation in land contract provisions have taken a more measured approach and have focused on
the reasonableness of the restriction at issue.” LaFond, 226 Mich App at 453. See also id. n 2
(noting that the Restatement, Property, § 406, p 2406 (1944), “specifies that a restraint is
-3-
permissible if it is reasonable under the circumstances”). For these reasons, the trial court did not
err by deciding the question of reasonableness without narrowly tying the inquiry to concerns over
waste or impairment of security.
Additionally, these conservation easements serve an important public function. “The social
utility of devoting property to conservation, historic preservation, and charitable purposes is strong
enough to justify severe restraints on alienation that are reasonably necessary or convenient to
assure that the property will be used to carry out the intended purposes.” Restatement 3d, Property:
Servitudes, § 3.4, comment I, p 448. Accordingly, “Restraints on alienation of conservation
servitudes . . . are valid as a matter of common law so long as they are imposed to serve a
conservation or other legitimate purpose and are rationally related to accomplishing that purpose.”
Id.
More to the point, § 6(A) of the easement states that the “[g]rantor is prohibited from
dividing, subdividing, partitioning or otherwise creating or permitting separate ownership on the
Protected Property.” And § 1(D) expresses the grantor’s willingness to convey, i.e., surrender as
part of the deal, “the interest in and the right to use and subdivide land for any and all residential,
commercial and industrial purposes and activities which are not incident to agricultural and open
space uses” as part of the transaction. In short, defendants agreed to restrict their right to subdivide
the parcel.
For these reasons, we agree with the trial court that the restraint on alienation at issue is a
reasonable one.
Next, defendants argue that the trial court erred when it interpreted the easement to include
an unreasonable restraint on alienation when alternative interpretations were consistent with the
easement language and would not render any part of the agreement void. We disagree.
Resolution of this issue requires that we interpret the easement itself. “The language of an
express easement is interpreted according to rules similar to those used for the interpretation of
contracts.” Wiggins v City of Burton, 291 Mich App 532, 551; 805 NW2d 517 (2011). This Court
reviews de novo issues of contract interpretation. See Sands Appliance Servs, Inc v Wilson, 463
Mich 231, 238; 615 NW2d 241 (2000).
Defendants propose as a saving interpretation that the provision be read as applying to
division of the two individual tax parcels composing their land, such that each may be sold
separately if in its entirety. Defendants do not argue that their interpretation is more faithful to the
express terms of the easement, or otherwise tout it as superior to the one the trial court adopted,
except that “applying this reasonable interpretation of the Easement would not render the ‘multiple
owner’ language void, as an unreasonable restriction on alienation.” But, setting aside that, as
discussed above, the trial court correctly concluded that the easement, as interpreted, was not void
as an unreasonable restraint on alienation, defendants cite no authority for the proposition that a
court has some duty to interpret easement language so as to minimize the burdens on the servient
estate.
The trial court explained as follows:
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As the language of the Conservation Easement is not ambiguous, it must be
enforced as written. The Conservation Easement does not distinguish between the
two separate tax parcels, but instead defines the Protected Property as the entirety
of the 102.91 acres owned by the Grantor. Thus, the sale of the northern parcel of
the Protected Property to Yuba was expressly prohibited by the terms of the
Conservation Easement. There can be no alternate interpretation.
We agree with the trial court.
The easement references no subdivisions of the protected property, which itself is defined
on the first page as “all or any part or portion of this land” described in the legal description
provided with the easement and the certificate of survey. The legal descriptions of three separate
areas of land are set forth: the “2012 CONSERVATION EASEMENT” which “contains 98.73
Acres of land,” the “FARMSTEAD COMPLEX” (1.22 acres), and the “BUILDING
ENVELOPE/FARMSTEAD COMPLEX” (2.96 ACRES). These add up to 102.91 acres. The
certificate of survey repeats the legal descriptions, then sets forth a diagram of the premises, which
includes a notation, “ENGLE FARM 2011 easement 98.73 AC. Gross (Not including USDA
easement or 2 exceptions).” Nothing in the description or diagram implies any recognition of that
what defendants now call the northern parcel as having any status rendering it severable from the
protected property as a whole.
For these reasons, the trial court did not clearly err by concluding that the protected
property consisted of the whole, not two separately recognized parcels.
Defendants next argue that the trial court erred in ordering rescission of the warranty deed
from defendants to Yuba. Again, we disagree.
“Rescission abrogates a contract and restores the parties to the relative positions that they
would have occupied if the contract had never been made.” Bazzi, 502 Mich at 409. “Specific
performance is a remedy of grace and not of right, resting within the sound discretion of the court,
the granting of which depends upon the peculiar circumstances of each case.” Zenko v Boucher,
60 Mich App 699, 703; 233 NW2d 30 (1975) (quotation marks and citation omitted).
In this case, § 10(F) of the conservation easement states as follows:
The Grantor agrees that the Township’s remedies at law for any violation of the
terms of this Easement are inadequate and that the Township shall be entitled to
injunctive relief, both prohibitive and mandatory, in addition to such other relief to
which the Township may be entitled, including specific performance of the terms
of this Conservation Easement, without the necessity of proving either actual
damages or the inadequacy of otherwise available legal remedies.
The trial court held that, given its conclusion that defendants-appellants “violated the
express terms of the Conservation Easement by dividing the Protected Property and creating
separate ownership . . . , rescission or nullification of the Warranty Deed to Yuba is warranted in
order to restore the Plaintiff and the Grantor to their original positions under the Conservation
Easement”.
-5-
Defendants argue that it is a mischaracterization for the trial court to grant rescission of the
deed under the label of specific performance. But defendants’ obligations under the easement
were principally to refrain from taking certain actions, including subdividing the property.
Therefore, in this context, specific performance would include precluding defendants from
subdividing the property. Similarly, defendants argue that plaintiffs did not request rescission.
But plaintiffs’ request to return the property to single ownership would include the remedy of
rescinding the deed.
Defendants also cite caselaw for the proposition that rescission of a deed may be
appropriate in cases of fraud, mistake of fact, coercion, or undue influence, and protest that the
instant case involves none of those. That principle might apply were Yuba wishing to rescind the
deed. Yuba might cite a misunderstanding regarding defendants’ right to sell only part of the
protected property as a mistake of fact, see Garb-Ko, Inc v Lansing-Lewis Servs, Inc, 167 Mich
App 779, 782; 423 NW2d 355 (1988) (a contract for the sale of commercial real property “may be
rescinded because of a mutual mistake of the parties”), or a defect in title, see Stover v Whiting,
157 Mich App 462, 468; 403 NW2d 575 (1987) (“Generally speaking, the vendor is under an
obligation to convey a merchantable or marketable title. Marketable title is one of such character
which should assure the vendee the quiet and peaceful enjoyment of the property, which must be
free from encumbrance. A title may be regarded as ‘unmarketable’ where a reasonably prudent
man, familiar with the facts, would refuse to accept title in the ordinary course of business, and it
is not necessary that the title actually be bad in order to render it unmarketable.”). That is, in light
of the easement, title to only a portion of the property would be unmarketable. But as plaintiffs
point out, this case is not a dispute between the parties to the deed at issue, but rather a dispute
over the rights of plaintiffs, who are strangers to that deed, but parties to the conservation easement
with a right to enforce it.
In sum, defendants agreed in the easement to keep the property whole. They violated that
agreement by subdividing the property. Legal remedies are inadequate and, therefore, the trial
court reasonably turned to the equitable remedy of rescinding the deed and making the property
whole again. We note that defendants do not offer any other preferable remedy that would achieve
this end.
Defendants’ final argument is to attempt to invoke the doctrine of laches. We review de
novo the trial court’s decision whether to apply the equitable doctrine of laches. Knight v
Northpointe Bank, 300 Mich App 109, 113; 823 NW2d 439 (2013).
In rejecting defendants’ invocation of the doctrine of laches, the trial court noted that the
subject easement included the provision, “No delay in enforcement shall be construed as a waiver
of the . . . right to enforce the terms of this Conservation Easement at a later date”. The court
further explained:
Here, the Grantor improperly attempts to shift the burden to Plaintiff for
failing to prevent the transfer, however, the Plaintiff had no duty or obligation to
prevent the Grantor from violating the express terms of the Conservation Easement.
Additionally, the assertion that Plaintiff had sufficient time to seek an injunction to
prevent the transfer is somewhat disingenuous given that the sale occurred less than
a month after Plaintiff was made aware of the Grantor’s intent. Finally, Grantor
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has failed to adequately demonstrate how it has been prejudiced by Plaintiff’s
inaction. The Court finds that the situation of neither party has changed materially
since June 2019 and the delay of the Plaintiff in seeking relief has not put the
Grantor in a worse condition, therefore, the defense of laches is inappropriate.
We agree with the trial court that the quoted clause from the easement precludes application of the
doctrine of laches. Similarly, the trial court correctly concludes that plaintiffs had no obligation
to prevent defendants from violating the express terms of the easement.3
Affirmed. Plaintiffs may tax costs.
/s/ Jane E. Markey
/s/ David H. Sawyer
/s/ Mark T. Boonstra
3
Indeed, this point would seem to suggest the application of the clean-hands doctrine and, by
violating the easement, defendants do not come to court with clean hands, thus denying their right
to an equitable defense. See Save Our Downtown v Traverse City, ___ Mich App ___, slip op at
9; ___ NW2d ___ (No. 359536, issued 10/13/2022).
-7- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483331/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
FLEETCOR TECHNOLOGIES OPERATING UNPUBLISHED
COMPANY, LLC, November 10, 2022
Plaintiff-Appellant,
v No. 359404
Court of Claims
MICHIGAN DEPARTMENT OF TREASURY, LC No. 21-000173-MT
Defendant-Appellee.
Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court’s order granting defendant’s motion for summary
disposition under MCR 2.116(C)(4) and (C)(7). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff is a limited liability company (LLC) organized under the laws of Louisiana, doing
business in Michigan as a motor fuel retailer. In April 2018, defendant audited plaintiff’s sales tax
liability for the tax years 2015 through 2017. Prior to the audit date, plaintiff completed a “Tax
Audit Questionnaire” at defendant’s request. Relevant to the issues on appeal, plaintiff provided
the following mailing address:
Fleetcor Technologies
109 North Park Blvd., Suite 500
Covington, LA 70433-5097
In 2018 and 2019, plaintiff received information requests from defendant’s auditor through
an online secure portal, and it responded to those requests through that portal. According to
plaintiff, it received no further communications from defendant regarding the audit. In April 2021,
plaintiff was notified that defendant had placed a levy on its PNC Bank account in the amount of
$469,668.15. Plaintiff contacted defendant and learned that, according to defendant’s records, it
had sent plaintiff the final assessments of funds due under the audit on May 7, 2020 via certified
-1-
mail.1 Plaintiff requested documentation regarding defendant’s mailing of the final assessments
by certified mail; defendant provided a United States Postal Service (USPS) tracking number
indicating that a package associated with the number was delivered to Covington, Louisiana on
May 8, 2020.
Defendant provided electronic copies of the final assessments to plaintiff on May 11, 2021.
Plaintiff filed suit on September 9, 2021, alleging that defendant had failed to properly issue the
final assessments and that the time to appeal the final assessments had therefore not expired;
relatedly, plaintiff also alleged that its right to due process of law had been violated. Specifically,
plaintiff alleged that it had never received the final assessments that defendant claimed had been
sent by certified mail, and noted that the USPS website did not say that the package associated
with the tracking number provided by defendant had been delivered to plaintiff’s specific address,
but only that it had been delivered to “Covington, LA.” Plaintiff also alleged that the USPS
website indicated that the package had been delivered to a “Front Desk/Reception/Mail Room”
and that plaintiff’s building did not have a front desk, reception, or mail room. Further, plaintiff
alleged that defendant had erred in calculating plaintiff’s sales tax liability.
In lieu of an answer, defendant moved for summary disposition under MCR 2.116(C)(4)
(lack of subject matter jurisdiction) and (C)(7) (claim barred by statute of limitations). Defendant
argued that plaintiff’s claims were barred by MCL 205.22(1), which provides that a taxpayer
aggrieved by an assessment may challenge that assessment by filing a complaint in the Court of
Claims “within 90 days after the assessment, decision, or order,” or a petition with the Michigan
Tax Tribunal within 60 days. Defendant asserted that plaintiff’s complaint was filed more than a
year after the allegedly erroneous final assessments were issued. Defendant accompanied its
motion with copies of the final assessments that indicated they were issued on May 7, 2020 and
bore the mailing address provided by plaintiff. Defendant also provided the affidavit of Michelle
Bowen, an employee in defendant’s Facility Mail & Data Operations Division. In her affidavit,
Bowen averred that her review of defendant’s certified mail log indicated that the final assessments
were mailed in a single envelope on May 4, 2020, to the address provided by plaintiff. A document
entitled “Assessment Certified Mail Log” attached to the affidavit reflects plaintiff’s mailing
address, the USPS tracking number defendant had provided to plaintiff, and the assessment
numbers of the final assessments at issue; the document indicates that it was printed on April 30,
2020.
Plaintiff responded to defendant’s motion, arguing that defendant had failed to comply with
MCL 205.28(1)(a) by either personally serving it with the final assessments or sending them by
certified mail to its last known address, and that the final assessments had therefore never been
“issued” so as to start the running of the time periods found in MCL 205.22(1). Plaintiff argued
that defendant had failed to show that it had mailed the final assessments to plaintiff’s last known
address, pointing out that the USPS website did not indicate that the package was delivered to
1
According to plaintiff’s complaint, defendant also informed plaintiff that its records showed that
numerous preliminary audit documents had been mailed to plaintiff’s mailing address between
February and May 2020, and that several attempts to collect the debt had been mailed to plaintiff
after May 2020. Plaintiff asserted in its complaint that it never received any of these mailings.
-2-
plaintiff’s precise address, but only that it was delivered in the city of Covington, Louisiana, and
asserting again that plaintiff’s building did not have a front desk, reception, or mail room. In sum,
plaintiff contended that it had established at least a genuine issue of material fact regarding whether
defendant had sent the final assessments to the wrong address.
Defendant replied to plaintiff’s response, arguing that plaintiff’s arguments concerning the
issuance of the assessments lacked merit; additionally, defendant noted that plaintiff had
acknowledged receiving electronic copies of the final assessments in May 2021 but had not filed
suit until September 2021, and therefore had failed to file a complaint within 90 days of receiving
actual notice of the assessments.
The trial court decided defendant’s motion without oral argument and, as stated, issued an
opinion and order granting defendant’s motion. The trial court held that defendant’s production
of its certified mail log was evidence that it had complied with MCL 205.28(1)(a), noting that the
statute did not require proof of delivery or actual receipt. The trial court therefore held that the
assessments had been issued in May 2020. The trial court further held that, even if the assessments
had not been correctly issued in May 2020, the evidence showed that plaintiff had received actual
notice of the assessments (via electronic copy) in May 2021 but had not challenged the assessments
within 90 days of that notice. The trial court concluded that plaintiff’s failure to challenge the
assessments within 90 days of receiving actual notice independently supported its grant of
defendant’s motion. Finally, the trial court held that plaintiff’s right to due process of law had not
been violated.
This appeal followed.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision to grant or deny summary disposition under
MCR 2.116(C)(7). See Beals v Michigan, 497 Mich 363, 369-370; 871 NW2d 5 (2015). When
reviewing a motion under MCR 2.116(C)(7), a reviewing court must consider all affidavits,
pleadings, and other documentary evidence submitted by the parties and construe the pleadings
and evidence in favor of the nonmoving party.” Anzaldua v Neogen Corp, 292 Mich 626, 629;
808 NW2d 804 (2011). We review de novo issues of statutory interpretation. See Fradco, Inc v
Dep’t of Treas, 495 Mich 104, 112; 845 NW2d 81 (2014).
III. ANALYSIS
Plaintiff argues that the trial court erred by determining that its challenges to the final
assessments were untimely and therefore barred. We disagree.
Summary disposition under MCR 2.116(C)(7) is appropriately granted when a party’s
claims are barred by the applicable statute of limitations. MCR 2.116(C)(7). In this case,
plaintiff’s claims are challenges to sales tax deficiency assessments that are administered under
the General Sales Tax Act (GSTA), MCL 205.51 et seq. Under the GSTA, when defendant
“conducts an audit and ultimately issues a final assessment stating that a taxpayer owes sales
tax . . . it must provide notice to the taxpayer.” Fradco, 495 Mich at 113. MCL 205.28 establishes
the methods by which defendant may provide notice of the assessment to the taxpayer: “Notice, if
required, must be given either by personal service or by certified mail addressed to the last known
-3-
address of the taxpayer.” MCL 205.28(1)(a). MCL 205.22 governs challenges to Department of
Treasury assessments, decisions, or orders, and provides that the taxpayer “may appeal the
contested portion of the assessment, decision, or order to the tax tribunal within 60 days, or to the
court of claims within 90 days after the assessment, decision, or order.” MCL 205.22(1).
In Fradco, our Supreme Court, reading the relevant statutes in pari materia, held that the
notice requirements of MCL 205.28 must be satisfied “before the issuance of the assessment is
deemed to have occurred, starting the appeal period.” Fradco, 495 Mich at 117, 118-119. In other
words, if plaintiff could establish that defendant did not provide the requisite notice of the final
assessments under MCL 205.28(1)(a), its claims would not be barred by the 90-day time period
found in MCL 205.22(1) for filing a complaint with the Court of Claims. Id.
In this case, plaintiff argues that at least a question of fact exists regarding whether
defendant provided notice of the final assessments by certified mail in May 2020. We disagree.
Defendant provided a certified mail log to substantiate its claim that it sent the final assessments
to the last known mailing address, as provided by plaintiff, in early May 2020. This evidence was
sufficient to establish that the assessments were issued in compliance with MCL 205.28(1)(a). See
PIC Maintenance, Inc v Dep’t of Treas, 293 Mich App 403, 410; 809 NW2d 669 (2011).
Plaintiff’s arguments, as noted by the trial court, pertain to whether plaintiff received the notices.
But MCL 205.28 “does not require proof of delivery or actual receipt; it requires only personal
service or service by certified mail addressed to the last known address of the taxpayer.” PIC
Maintenance, 293 Mich App at 410. This Court in PIC Maintenance held that, even assuming that
the plaintiff never received the assessments, summary disposition is nonetheless appropriate when
“uncontroverted evidence demonstrates that respondent complied with the statute and sent the final
assessments to petitioner by certified mail.” Id. The same is true in this case. Although plaintiff
speculates that defendant sent the final assessments to the wrong address, it provides no supporting
evidence. Although plaintiff attempts to rely on alleged discrepancies in the delivery as reported
on the USPS website, problems with delivery do not establish that defendant did not comply with
its duties under MCL 205.28. Id. (emphasizing that the language of MCL 205.28(1)(a) does not
require proof of delivery or receipt); see also Fradco, 495 Mich at 118. The trial court correctly
granted summary disposition under MCR 2.116(C)(7) on this basis.
Plaintiff’s claims are untimely for an additional reason as well. Plaintiff admitted in its
complaint that it was provided with copies of the final assessments after April 2021; emails
submitted to the trial court show that plaintiff was provided with these copies on May 11, 2011.
Yet plaintiff did not file a complaint with the trial court within 90 days of receipt of those copies.
This Court has held that when a taxpayer has received actual notice of the final assessments, the
appeal period begins to run. PIC Maintenance, 293 Mich App at 411. In this case, the
uncontroverted evidence shows that copies of the final assessments were provided to Steven
Pisciotta, who, by his own affidavit, is plaintiff’s treasurer. Therefore, even if we had found that
defendant had not satisfied the notice requirements of MCL 205.28(1)(a) with the 2020 certified
mailing, defendant made personal service of the final assessments in May 2021, yet plaintiff failed
to file its claim within 90 days of receiving actual notice of the assessments.
Plaintiff’s argument that defendant simultaneously told plaintiff that the assessments could
not be appealed, and that it therefore should be estopped from arguing that plaintiff received actual
notice in 2021, lacks merit. In the first instance, the argument is unsupported by any evidence;
-4-
indeed, the copies of the assessments found in the lower court record contain a statement regarding
appellate rights. Moreover, any such statement by a representative of defendant correctly reflected
that notice had been provided in May 2020 and that the appellate period had indeed expired. The
very filing of plaintiff’s suit further demonstrates that plaintiff did not rely on any such statement.
Any challenge to the lapsing of the appellate period should have been filed within 90 days of
undisputedly receiving actual notice of the final assessments. PIC Maintenance, 293 Mich App at
411.
Because plaintiff’s claims were barred by the applicable statute of limitations, the trial
court appropriately did not consider its arguments concerning alleged errors made by defendant
during the audit process; we also decline to consider them. Moreover, defendant’s due process
argument is also without merit, as this Court has noted that proof of actual receipt of the
assessments is not necessary to satisfy due process. PIC Maintenance, 293 Mich App at 414-415.
“Sending notice by certified mail is reasonably calculated to apprise interested parties of the
pendency of an action when the correspondence is not returned to the government as “unclaimed.”
Id. at 414. There is no evidence that the final assessments were returned to defendant. And in any
event, as stated, plaintiff was given actual notice of the assessments in 2021, yet failed to file a
timely claim of appeal.
Affirmed.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
-5- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483321/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JASON P. MATTHEWS, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 360573
Kent Circuit Court
MICHELLE R. MATTHEWS, LC No. 19-003512-DM
Defendant-Appellee.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Plaintiff, Jason P. Matthews, appeals as of right the trial court’s divorce judgment. On
appeal, plaintiff asserts that the trial court erred by awarding sole legal custody of the parties’
children to defendant, Michelle R. Matthews, and modifying the parenting-time schedule on the
basis of defendant’s unsupported testimony that one of the children was struggling with the
existing schedule. In addition, plaintiff contends that the court erred by retroactively modifying
child support payments made during the course of the proceedings because defendant never sought
to modify those payments. For the reasons explained in this opinion, we affirm the portions of the
judgment of divorce that concern the legal custody of the children and the parenting-time schedule.
However, we conclude that the trial court erred by retroactively modifying child support payments.
Therefore, we reverse that portion of the judgment and remand for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The appeal arises out of the parties’ divorce, specifically the trial court’s determinations
concerning legal custody, parenting time, and child support. The parties were married on
December 19, 2012. They had two children during the marriage: PM and MM. The parties
separated on March 16, 2019. Plaintiff filed a complaint for divorce on April 23, 2019. On
April 29, 2019, defendant filed an answer and counterclaim for divorce, asking for child support
pursuant to the state formula and spousal support.
The parties attended mediation and agreed upon a temporary parenting-time schedule for
the summer of 2019. That schedule essentially consisted of the parties exchanging the children
-1-
every two or three days on a three-week rotation. This schedule allowed plaintiff 10 overnights
with the children, while defendant had 11 overnights.
The trial court held a five-day bench trial to consider witness testimony and evidence
presented by the parties. Following trial, the court issued a written opinion in which it granted
defendant’s request for sole legal custody of the children and accepted her proposed parenting-
time schedule. Further, the court accepted defendant’s request that child support commence on
May 1, 2019, because her answer and counterclaim for divorce was filed on April 29, 2019. Given
that child support payments commenced on May 1, 2019, the court ordered that plaintiff owed an
arrearage of $5,665 through September 30, 2021. The trial court later issued a judgment of divorce
consistent with its written opinion and order.
This appeal followed.
II. ANALYSIS
On appeal, plaintiff challenges the portions of the judgment of divorce that concern the
legal custody of the children, the parenting-time schedule, and the commencement of child
support.
A. STANDARD OF REVIEW
“All orders and judgments of the circuit court regarding child custody and parenting time
are to be affirmed unless the trial court made findings of fact against the great weight of the
evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”
Demski v Petlick, 309 Mich App 404, 444; 873 NW2d 596 (2015). See MCL 722.28. As a result,
“a reviewing court should not substitute its judgment on questions of fact unless the factual
determination clearly preponderate[s] in the opposite direction.” Id. (quotation marks and citation
omitted; alteration in original). “In reviewing factual findings, this Court defers to the trial court’s
determination of credibility.” Id. at 445. Moreover,
The trial court’s discretionary rulings, such as to whom to award custody, are
reviewed for an abuse of discretion. An abuse of discretion exists when the trial
court’s decision is so palpably and grossly violative of fact and logic that it
evidences a perversity of will, a defiance of judgment, or the exercise of passion or
bias. [Id. (quotation marks and citation omitted).]
B. LEGAL CUSTODY
First, plaintiff challenges the trial court’s analysis of the best-interest factors and asserts
that the trial court abused its discretion by granting defendant’s request for sole legal custody. We
disagree.
MCL 722.27 concerns the powers of the trial court in a child-custody dispute. In pertinent
part, MCL 722.27(1)(c) provides that “[t]he court shall not modify or amend its previous
judgments or orders or issue a new order so as to change the established custodial environment of
a child unless there is presented clear and convincing evidence that it is in the best interest of the
child.”
-2-
In this case, the trial court concluded that the children’s established custodial environment
existed with both parties. “The custodial environment of a child is established if over an
appreciable time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). In addition, the court
found that defendant’s request for sole legal custody would alter the children’s established
custodial environment; therefore, she was required to show that the change in custody was in the
children’s best interests by clear and convincing evidence. The parties did not dispute this finding
in the trial court, and plaintiff does not challenge it on appeal. As a result, we will accept this
conclusion for purposes of this opinion.
“[C]ustody disputes are to be resolved in the child’s best interests, and [g]enerally, a trial
court determines the best interests of the child by weighing the twelve statutory factors outlined in
MCL 722.23.” Demski, 309 Mich App at 446 (quotation marks and citation omitted; alterations
in original). MCL 722.23 contains the following factors:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the child
in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child
with food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to
be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents. A court may not consider negatively
for the purposes of this factor any reasonable action taken by a parent to protect a
child or that parent from sexual assault or domestic violence by the child’s other
parent.
-3-
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.
“In addition, the court must consider the general level of cooperation and agreement between the
parties when considering joint custody.” Dailey v Kloenhamer, 291 Mich App 660, 667; 811
NW2d 501 (2011) (quotations marks and citation omitted). “When ruling on a custody motion,
the circuit court must expressly evaluate each best-interest factor and state its reasons for granting
or denying the custody request on the record.” Id.
In this case, the trial court concluded that Factors (a), (g), (h), and (j) were neutral and did
not favor either party. The court determined that Factor (d) slightly favored plaintiff. Further, the
court determined that Factors (b), (e), and (f) slightly favored defendant. The court then concluded
that Factor (c) favored defendant, and that Factors (e) and (k) strongly favored defendant. The
court declined to interview the children to make a finding as to Factor (i). In regard to Factor (l),
the court observed that the parties had significant disputes over choice of school, counseling, and
medical care for the children. Plaintiff challenges the trial court’s findings on several of the best-
interest factors. He asserts that Factors (b), (c), (e), (k), and (l) should have been neutral, and that
Factors (f) and (g) strongly favor him.
Factor (b) concerns the capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the child in his or her
religion or creed, if any. The trial court found that this factor slightly favored defendant. The
court explained that both parties showed their capacity to provide the children with love, affection,
and guidance, and that both were involved in the children’s educations. However, the court
expressed its concerns related to some of plaintiff’s parenting choices, such as feeding MM hot
sauce and locking PM in her room. Defendant also provided testimony that plaintiff would throw
items, slam doors, and yell when things did not go as he expected. Moreover, there was evidence
that plaintiff abused the family dog on several occasions. The court did not believe that this
behavior provided a good example of appropriate behavior to the children. The court
acknowledged the testimony presented by plaintiff by witnesses who testified positively
concerning his parenting, but the court accepted that his behavior in the privacy of his own home
may be different.
On appeal, plaintiff argues that this factor should have been neutral because the testimony
presented showed that he was a loving, affectionate father who was involved and engaged with the
children. However, the trial court acknowledged this testimony in its conclusion. The court
accepted testimony provided by defendant that plaintiff may be different when at home. This
Court defers to the trial court’s credibility determinations. Demski, 309 Mich App at 445. In any
event, defendant presented testimony regarding plaintiff’s severe punishments and negative
reactions to adverse events. She also stated that plaintiff mocked and shamed PM for her feelings.
Defendant further testified that she was typically assigned to domestic duties involving the children
while plaintiff worked on projects outside, such as the treehouse. Ultimately, the trial court’s
conclusion that this factor slightly favored defendant is not against the great weight of the evidence.
See id. at 444.
-4-
Next, plaintiff disputes the trial court’s findings as to Factor (c), which involves the
capacity of the parties to provide the child with food, clothing, medical care, and other material
needs. The trial court found that both parties were capable and disposed to provide the children
with their basic needs. However, the court acknowledged that defendant had historically made the
children’s medical appointments. In addition, the court observed that the evidence revealed that
plaintiff was inclined to substitute his medical knowledge for that of the children’s pediatrician.
Importantly, the court explained that the parties had been embroiled in serious disagreements over
the children’s medical treatment, noting that at trial, plaintiff was unable to cite even one parenting
disagreement in which defendant was able to convince him that her position was valid.
On appeal, plaintiff asserts that there was no independent evidence supporting defendant’s
medical decisions, such that PM needed to wear the walking boot provided by a friend or that MM
needed therapy. However, the trial court’s conclusion was not against the great weight of the
evidence. As will also be addressed in the analysis of Factor (l), the parties had significant
disagreements in regard to medical decisions involving the children, such as the treatment for PM’s
ankle sprain, the proper way to handle her COVID-19 diagnosis, and whether the children required
counseling services. Defendant testified that plaintiff discouraged PM from using crutches and
resting her ankle. He also told defendant, in front of the children, that PM did not need the walking
boot. Further, plaintiff testified that he gave MM milk when she asked for it despite admitting that
he believed that she had a sensitivity to lactose. As a result, the evidence established that plaintiff
second-guessed medical decisions and recommendations provided by defendant. Ultimately, the
court’s finding that this factor favored defendant was not against the great weight of the evidence.
See id.
Additionally, plaintiff disagrees with the trial court’s conclusion that Factor (e), the
permanence, as a family unit, of the existing or proposed custodial homes, strongly favored
defendant. In support of its conclusion, the trial court explained that defendant had not introduced
the children to any significant others during the pendency of the divorce. The court observed that
plaintiff had been in several relationships with women much younger than him and that many of
those relationships overlapped. The court noted that plaintiff started dating defendant before his
second divorce was final. He began dating another woman a month after the parties separated. He
introduced her to the children, and the children became attached to her as she began staying in the
family home. Plaintiff had since broken up with her and evidence showed that the children were
upset when she was removed from their lives.
Plaintiff argues that this factor should have been neutral because his relationships before
the children were born are irrelevant to his parenting. Further, he only introduced the children to
his new girlfriend after months of dating and consulting his counselor. At any rate, even ignoring
plaintiff’s dating history, he started a new relationship approximately one month after separating
from defendant, and he introduced her to the children in November 2019. The parties agree that
the children liked her. However, plaintiff ended the relationship in October 2020, which had a
negative effect on PM and the stability of plaintiff’s home. As observed by the Michigan Supreme
Court, “[t]he stability of a child’s home can be undermined in various ways. This might include
frequent moves to unfamiliar settings, a succession of persons residing in the home, live-in
romantic companions for the custodial parents, or other potential disruptions.” Ireland v Smith,
451 Mich 457, 465 n 9; 546 NW2d 686 (1996). Accordingly, the trial court’s determination that
this factor strongly favored defendant was not against the great weight of the evidence.
-5-
In addition, plaintiff challenges the trial court’s finding as to Factor (f), which concerns the
moral fitness of the parties. The trial court concluded that this factor slightly favored defendant.
The court questioned the morality of plaintiff’s decision to keep the fact that the parties had gotten
married from his family after he testified that he was very close with his family. The court
explained that his willingness to tell such “white lies” raised concern regarding parenting should
the children become aware of such lies. On appeal, plaintiff asserts that this factor should have
strongly favored him because whether he decided to tell his family that he was married has no
relationship to how he will function as a parent to his children. In addition, he argues that the court
ignored evidence of defendant’s extensive marijuana use.
We do not believe that the trial court’s conclusion that this factor slightly favored defendant
was against the great weight of the evidence. According to plaintiff’s own testimony, he separated
from his second wife in the summer or fall of 2011. He met defendant in October 2011, and they
started spending serious time together in January 2012. His divorce was final in October 2012,
and he married defendant in December 2012. However, defendant testified that the parties’
wedding was kept secret from his family because he was afraid that they would not approve. The
court acknowledged that it was up to plaintiff to determine what to reveal to his family in regard
to his private life, but questioned whether his “white lies” concerning such an important life event
would affect his parenting. Ultimately, if plaintiff was willing to lie to his family in regard to when
the parties got married, he may keep other important information from others if he believes it will
portray him in a negative light. Indeed, defendant testified that plaintiff asked her to keep her
marijuana use from her doctor, who was plaintiff’s supervisor, because he did not want it to reflect
poorly on him.
Further, in regard to defendant’s marijuana use, although she reported that while living in
the marital home she frequently used marijuana to treat her migraines, she testified that she only
used “one puff” about once or twice a week during the trial. Moreover, plaintiff testified that
marijuana was the only treatment that helped defendant’s migraines and that he helped her procure
it. As a result, the testimony presented at the trial did not show that defendant’s “extensive” use
of marijuana affected her ability to care for the children or that plaintiff advocated against its use.
Similarly, plaintiff asserts on appeal that Factor (g), the physical and mental health of the
parties, should strongly favor him. The trial court concluded that this factor was neutral and did
not favor either party. Plaintiff argues that the court erred by failing to acknowledge defendant’s
post-traumatic stress disorder (PTSD) diagnosis, which affected her ability to care for the children.
However, this argument is not supported by the record. Defendant testified that she suffered from
PTSD, which initially limited the number of hours she worked at the child development center.
However, during the trial, defendant testified that she was confident in working between 35 and
40 hours a week. Neither party presented any testimony that defendant’s PTSD diagnosis affected
her ability to care for the children. Rather, defendant testified that she was not experiencing any
mental-health symptoms and that no mental or physical conditions impaired her daily life. She
also reported that she was no longer taking antidepressants. As a result, considering the testimony
provided at trial, the trial court’s conclusion that this factor was neutral was not against the great
weight of the evidence.
Plaintiff also disagrees with the trial court’s conclusion that Factor (k), which concerns
domestic violence, strongly favored defendant. Plaintiff contends that this factor should be neutral
-6-
because defendant reported to her doctor that she was not a victim of abuse, she invited a friend to
engage in a three-way sexual relationship with plaintiff, she engaged in pleasant text-message
exchanges with plaintiff, allowed her daughter from a previous relationship to spend time with
plaintiff after the separation, and allowed him to take the dog whenever he asked even though she
claimed he abused it. In the court’s ruling, it explained that while there was little evidence of
physical violence between the parties, there was “substantial evidence that showed an imbalance
of power and control between the parties.” The court acknowledged that plaintiff attempted to
combat the allegations by submitting text messages showing a loving relationship between the
parties; however, the court specifically found defendant more credible as to the relationship
dynamic, noting that domestic violence can be complex and “[w]hat the world sees outside the
home often does not reflect what is going on behind closed doors, particularly when it is emotional
abuse.” The court further wrote that “[s]urvivors of domestic violence often respond by placating
the perpetrator as much as possible as a survival mechanism.”
Although plaintiff disagrees with the trial court’s conclusion as to this factor, that does not
mean that the court’s conclusion was against the great weight of the evidence. First, this Court
must defer to the credibility determinations of the trial court. See Demski, 309 Mich App at 445.
Second, defendant testified that plaintiff controlled the family’s finances; that he belittled
defendant so that she felt useless; that he performed severe punishments to the children, including
threatening to break her other daughter’s ankle and feeding MM hot sauce; and that he physically
abused the family dog in the children’s presence. Accordingly, the trial court’s finding that this
factor strongly favored defendant was not against the great weight of the evidence.
Finally, the trial court considered the parties’ difficulties regarding academic and medical
decisions involving the children in its analysis of Factor (l), which concerns any other factors that
the trial court believes is relevant to the resolution of a child-custody dispute. On appeal, plaintiff
asserts that neither party filed any motions in the 32 months this matter was pending, and that the
evidence, including the text messages, showed that the parties were able to work together
concerning issues involving the children. However, plaintiff also complains that defendant made
decisions concerning the children without informing him. His claim that the parties were able to
resolves issues related to the children was contradicted by his testimony and argument. Indeed,
plaintiff testified that defendant sent PM to Jenison schools even though there was a pending
motion in the court about sending her to Northview schools. Plaintiff also stated that defendant
took PM to counseling that he believed was inappropriate and that defendant declined to provide
him with the necessary information for the home-based preschool to which she wished to send
MM. Plaintiff also admitted that the parties disagreed as to whether PM should attend in-person
schooling during the pandemic. Defendant testified that plaintiff did not encourage PM to use the
crutches or walking boot supplied by defendant or to rest her ankle. She also reported that plaintiff
was against sending MM to counseling, and the parties disagreed as to how to handle PM’s
COVID-diagnosis. As a result, as observed by the trial court, the evidence supports the conclusion
that the parties had significant disagreements concerning school choice, medical treatments, and
counseling for the children that would require them to return to court for resolution, and as a result,
joint legal custody was inappropriate. See Dailey, 291 Mich App at 669 (explaining that the record
showed that the parties’ acrimony affected their ability to agree on important matters, such as the
child’s medical treatment, so that awarding one party with sole legal custody was appropriate).
-7-
The trial court ultimately concluded that after weighing the best-interest factors, defendant
showed that it was in the best interests of the children for her to have sole legal custody by clear
and convincing evidence. Plaintiff disagrees; however, this Court is required to affirm a trial
court’s custody decision “unless the decision is palpably and grossly violative of fact and logic.”
Id. Given the testimony and evidence presented at trial, the court’s decision was supported by fact
and logic. As a result, the court did not abuse its discretion by awarding sole legal custody to
defendant. See id.
C. PARENTING TIME
Plaintiff next contends that the trial court abused its discretion by accepting the parenting-
time schedule proposed by defendant that resulted in a reduction of his overnights with the
children. We disagree.
MCL 722.27a concerns parenting-time determinations. According to MCL 722.27a(1),
Parenting time shall be granted in accordance with the best interests of the
child. It is presumed to be in the best interests of a child for the child to have a
strong relationship with both of his or her parents. Except as otherwise provided in
this section, parenting time shall be granted to a parent in a frequency, duration,
and type reasonably calculated to promote a strong relationship between the child
and the parent granted parenting time.
MCL 722.27a(7) provides that the court may consider the following factors when determining the
frequency, duration, and type of parenting time to be granted:
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 months of age, or less
than 1 year of age if the child receives substantial nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child during
parenting time.
(d) The reasonable likelihood of abuse of a parent resulting from the
exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on, the child of
traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time
in accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting
time.
(h) The threatened or actual detention of the child with the intent to retain
or conceal the child from the other parent or from a third person who has legal
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custody. A custodial parent’s temporary residence with the child in a domestic
violence shelter shall not be construed as evidence of the custodial parent’s intent
to retain or conceal the child from the other parent.
(i) Any other relevant factors.
Both the statutory best interest factors in the Child Custody Act, MCL 722.23, and
the factors listed in the parenting time statute, [MCL 722.27a(7),] are relevant to
parenting time decisions. Custody decisions require findings under all of the best
interest factors, but parenting time decisions may be made with findings on only
the contested issues. [Shade v Wright, 291 Mich App 17, 31-32; 805 NW2d 1
(2010).]
If a proposed change in the parenting-time schedule would result in a modification to the child’s
established custodial environment, the burden is on the party proposing the change to establish
that the change is in the child’s best interests by clear and convincing evidence. Pierron v Pierron,
486 Mich 81, 92; 782 NW2d 480 (2010). On the other hand, if the proposed change would not
modify the child’s established custodial environment, the burden is to show that the change is in
the child’s best interests by a preponderance of the evidence. Id. at 93.
In this case, both parties asked for a change in the parenting-time schedule. Plaintiff
proposed a two-week rotation in which he would have parenting time on Monday and Tuesday
during the first week, and Wednesday and Thursday during the second week, while the parties
alternated each weekend having the children from Friday through Monday. Plaintiff stated that
the change was necessary to accommodate his new work schedule. He asserted that it was similar
to the existing schedule to which the children were accustomed and that his son from a previous
relationship would be on the same schedule. On the other hand, defendant proposed a four-week
rotation that she believed would better meet the children’s needs. She opined that it would be
better for the children to have a secure base to return to. She did not feel that spending more than
two days at a time at plaintiff’s house was best for the children. Nonetheless, defendant wanted
the children to be able to make fun memories with plaintiff and have him be involved in their
schooling, so the proposal included both a full weekend and weeknights with plaintiff.
In regard to the parenting-time factors listed in MCL 722.27a(7), the trial court concluded
that Factor (c), the likelihood of abuse or neglect of the child during parenting time favored
defendant. The court found that the other factors were either inapplicable or neutral. In support
of its acceptance of defendant’s proposed schedule, the court reiterated its concerns with plaintiff’s
historic choice of discipline, his abuse of animals, and the dysregulation that defendant observed
from the children upon their return from plaintiff’s home. Moreover, the court observed that
plaintiff did not explain how his proposed schedule was in the children’s best interests, he only
testified that the change was necessary on the basis of his work schedule.
The trial court’s conclusion that defendant’s proposed schedule was in the best interests of
the children was not against the great weight of the evidence. See Demski, 309 Mich App at 444.
The court’s concerns were supported by testimony that was presented at trial. As previously
discussed in this opinion, defendant testified that plaintiff fed MM hot sauce as punishment for
biting, locked PM in her room, and threatened to break her other daughter’s ankle. She also
-9-
testified that plaintiff abused the family dog in the presence of the children. Finally, she provided
testimony that the children were dysregulated when they returned to her home after staying with
plaintiff. Although plaintiff identifies testimony and evidence that contradicts defendant’s
observations, there was testimony to support the trial court’s ruling. As a result, we conclude that
the court did not make factual findings against the great weight of the evidence, and the court’s
acceptance of defendant’s proposed parenting-time schedule did not amount to a palpable abuse
of discretion. See Shade, 291 Mich App at 32.
Plaintiff further asserts that the change in parenting time constituted a change in the
established custodial environment. We disagree. Although the new parenting-time schedule
results in plaintiff’s having three less overnights with the children a month, he still has the children
overnight two to three nights a week, which includes a long weekend once a month. “If the
required parenting time adjustments will not change whom the child naturally looks to for
guidance, discipline, the necessities of life, and parental comfort, then the established custodial
environment will not have changed.” Pierron, 486 Mich at 86. A decrease of three overnights
with the children over the span of a month will not change who the children look to for guidance,
especially when they are staying with plaintiff. See id. Accordingly, plaintiff has not shown that
the acceptance of defendant’s proposed parenting-time schedule amounted to an abuse of
discretion. See Demski, 309 Mich App at 444.
D. CHILD SUPPORT
Finally, plaintiff argues that the court erred by retroactively modifying the child support
payments he was voluntarily making during the course of the proceedings because defendant never
sought a modification. We agree.
“Child support orders and the modification of such orders are reviewed for an abuse of
discretion.” Peterson v Peterson, 272 Mich App 511, 515; 727 NW2d 393 (2006). “Whether a
trial court properly operated within the statutory framework relative to child support calculations
and any deviation from the child support formula are reviewed de novo as questions of law.” Id.
at 516. The trial court’s factual findings are reviewed for clear error. Borowsky v Borowsky, 273
Mich App 666, 672; 733 NW2d 71 (2007).
“It is well settled that children have the right to receive financial support from their parents
and that trial courts may enforce that right by ordering parents to pay child support.” Id. at 672-
673. Trial courts are required to calculate support following the Michigan Child Support Formula
(MCSF). Id. at 673. MCL 552.603 concerns the enforcement of support orders. According to
MCL 552.603(2),
Except as otherwise provided in this section, a support order that is part of
a judgment or is an order in a domestic relations matter is a judgment on and after
the date the support amount is due as prescribed in [MCL 522.605c], with the full
force, effect, and attributes of a judgment of this state, and is not, on and after the
date it is due, subject to retroactive modification. No additional action is necessary
to reduce support to a final judgment. Retroactive modification of a support
payment due under a support order is permissible with respect to a period during
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which there is pending a petition for modification, but only from the date that notice
of the petition was given to the payer or recipient of support.
MCL 552.603(3) further provides that “[t]his section does not apply to an ex parte interim support
order or a temporary support order entered under supreme court rule.” The parties may also agree
to modify a support order with the court’s approval. MCL 522.603(5).
In this case, defendant requested child support calculated pursuant to the MCSF in her
answer and counterclaim for divorce, which was filed on April 29, 2019. It appears that initially,
plaintiff voluntarily provided $500 a month in child support; however, the parties participated in
an investigation with the Friend of the Court and the Friend of the Court recommended that
plaintiff pay $458 a month. Plaintiff started paying $458 a month following the recommendation.
However, the trial court did not sign the Friend of the Court recommendation.
At the conclusion of the trial, defendant asked for child support to be calculated from
May 1, 2019, because she asked for child support in her answer and counterclaim. Plaintiff
objected to this request, arguing that MCL 552.603(2) prohibits the retroactive application of a
child support order. The trial court agreed with defendant, concluding that her request was valid
because she requested child support in her answer and counterclaim. However, defendant’s
request for child support was not a request for an interim or temporary child support order. Rather,
her request was for child support to be awarded in the judgment of divorce. Moreover, it does not
appear that there were any temporary or interim child support orders entered in this case. Plaintiff
voluntarily paid child support to defendant following their separation. The child support order was
entered as part of the judgment of the divorce after the parties presented their proofs at trial. As a
result, the child support order became effective upon entry of the judgment of divorce, and it could
not be retroactively applied to the date in which defendant filed her counterclaim. See
MCL 522.603(2). Therefore, the trial court erred by calculating child support from May 1, 2019.
See Thompson v Merritt, 192 Mich App 412, 421; 481 NW2d 735 (1991) (explaining that an
emergency interim order is not subject to the statutory prohibition of retroactive modification
because it differed significantly “from an order of support that is part of a judgment or an order
that is entered later in the proceedings after the parties have had a chance to present evidence on
the issue”).
We affirm the portions of the judgment of divorce that concern the legal custody of the
children and the parenting-time schedule. We reverse the portion of the judgment of the divorce
concerning the commencement of child support and remand for further proceedings consistent
with this opinion. We do not retain jurisdiction. No costs.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-11- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483327/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re VELASQUEZ, Minor.
MARIO VELASQUEZ-TOMAS, Guardian of LMV FOR PUBLICATION
November 10, 2022
Appellant. 9:15 a.m.
No. 360057
Ionia Probate Court
LC No. 2021-000494-GM
Before: RICK, P.J., and BOONSTRA and O’BRIEN, JJ.
RICK, P.J.
Appellant, Mario Velasquez-Tomas, guardian of LMV, a minor, appeals as of right the
probate court’s order denying his motion for special findings of fact to apply for Special Immigrant
Juvenile (SIJ) status for LMV under 8 USC 1101(a)(27)(J) with the United States Citizenship and
Immigration Services (USCIS). On appeal, appellant argues that the probate court erred when it
(1) concluded that the notice of service of the motion to LMV’s mother was insufficient, (2)
refused to find that LMV was neglected or abused by his mother, (3) failed to determine whether
or not it was in LMV’s best interests to return to his mother in Guatemala, his country of origin,
or remain in the United States. This case presents issues of first impression regarding SIJ status
proceedings. MCR 7.215(B)(2). We vacate the probate court’s order and enter the accompanying
order with special findings of fact to establish SIJ status for LMV. See MCR 7.216(A)(7).
I. BACKGROUND
Appellant, LMV’s uncle, initiated an action for full guardianship of LMV in December
2021, and further motioned the probate court to make the predicate factual findings necessary for
LMV to apply for SIJ status, including that (1) LMV is dependent on the court, (2) his reunification
with his parents was not viable because of abuse, neglect, abandonment, or a similar basis under
state law, and (3) it is not in LMV’s best interests to return to Guatemala. The record indicates
that a copy of the petition and motion were sent by first-class mail to LMV’s mother in December
2021.
-1-
The probate court held a bifurcated hearing on the guardianship petition and Motion for
Special Findings in January 2022. At the hearing, the court first heard from appellant regarding
the guardianship petition. LMV had been living with appellant since January 2021.1 Appellant
explained that he was able to provide financially for LMV while LMV attended school, and that
he would talk to LMV when he needed to be disciplined. The probate court also heard testimony
that, although LMV maintained contact with his mother, she was not providing any financial
support for LMV. LMV and appellant both testified that LMV’s mother did not oppose the
guardianship petition. LMV’s appointed guardian ad litem (GAL) expressed that LMV was in
need of a guardian and observed that it was in LMV’s best interest to have appellant appointed as
his guardian. The probate court confirmed that LMV’s father was deceased, and it granted the
petition to appoint appellant as guardian of LMV.
Next, the court heard testimony in support of the motion for special findings to establish
SIJ status. LMV explained that he left Guatemala and traveled to the United States in search of a
better life. LMV testified that, instead of attending school, he was required to work starting when
he was approximately 8 years old. When he was 12 years old, he began working alone and was
forced to work in dangerous conditions, including being exposed to chemical fertilizers and
harvesting equipment. In one instance, LMV was injured by an ax or machete and his mother did
not seek medical care for him. Before age 12, LMV assisted with his mother’s work by moving
rocks. LMV testified that he had very “little” food and water in Guatemala. LMV further testified
that his mother beat him with a belt or stick if he was unable to work, leaving marks, and she also
hit and scolded him as punishment. LMV testified that he felt bad when his mother beat and hit
him and that he would feel bad if he had to return to his mother in Guatemala. While living with
appellant, LMV was able to attend school and received appropriate care, food, and shelter. The
GAL recommended that the court enter an order with the special findings on the issue of SIJ status.
The GAL emphasized that the testimony supported a finding that LMV had been abused and
neglected by his mother, that his father was deceased, and that it was not in LMV’s best interests
to return to Guatemala, in part because LMV had better educational opportunities in the United
States and appellant was able to take better care of LMV’s needs.
Although the probate court granted the guardianship petition, the court denied the motion
for SIJ status special findings. In denying the motion, the probate court found that LMV’s mother
had not been given proper notice of the proceeding and determined that it could not conclude that
LMV was abused or neglected by his mother because she had no opportunity to refute LMV’s
testimony. The court made no findings regarding whether LMV’s best interests would be served
by returning to Guatemala, stating it was “not even sure how—what the standard would be in
making that” and noting that “within a child protection proceeding . . . [the court] would not make
a finding of abuse or neglect against a parent without giving the parent an opportunity to appear
and respond to the allegations.” Although appellant requested an adjournment to provide
additional notice to LMV’s mother, the court denied his request, stating, “I’m not granting the
special immigration status to a young man who has entered this country illegally, and . . . whose
mother has not been given an opportunity to refute the allegations.” This appeal followed.
1
LMV entered the country as an unaccompanied minor in December 2020.
-2-
II. STANDARD OF REVIEW
We review for an abuse of discretion a probate court’s dispositional rulings and review for
clear error the factual findings underlying its decision. In re Portus, 325 Mich App 374, 381; 926
NW2d 33 (2018). A court abuses its discretion if it “chooses an outcome outside the range of
reasonable and principled outcomes.” Id. (quotation marks and citations omitted). “The probate
court necessarily abuses its discretion when it makes an error of law.” Id. (quotation marks and
citations omitted). “A probate court’s finding is clearly erroneous when a reviewing court is left
with a definite and firm conviction that a mistake has been made, even if there is evidence to
support the finding.” Id. (quotation marks and citation omitted). This Court defers to the probate
court on matters of credibility and gives broad deference to findings of fact made by the probate
court because of its unique vantage point regarding witnesses, their testimony, and other
influencing factors not readily ascertainable to the reviewing court. In re Erickson Estate, 202
Mich App 329, 331; 508 NW2d 181 (1993); MCR 2.613(C). Matters of statutory interpretation
are reviewed de novo, which also applies to the interpretation of federal statutes and regulations:
Statutory interpretation is a question of law we review de
novo, as is the interpretation of administrative regulations. This
standard applies to the interpretation of federal statutes and
regulations, though reasonable administrative interpretations of
regulations operating as statutory gap-fillers are entitled to
deference. Clear and unambiguous statutory language is given its
plain meaning, and is enforced as written. [In re LFOC, 319 Mich
App 476, 480; 901 NW2d 906 (2017) (quotation marks and citations
omitted).]
III. SIJ STATUS OVERVIEW
The Immigration and Nationality Act of 1990 “established SIJ status as a path for resident
immigrant children to achieve permanent residency in the United States.” In re LFOC, 319 Mich
App at 481, quoting In re Estate of Nina L, 2015 Ill App 152223, ¶ 15; 397 Ill Dec 279; 41 NE3d
930 (2015). “In short, 8 USC 1101(a)(27)(J) and 8 CFR 204.11 afford undocumented children,
under the jurisdiction of a juvenile court, the ability to petition for special immigrant juvenile status
in order to obtain lawful permanent residence in the United States.” In re LFOC, 319 Mich App
at 484 (citation and quotation marks omitted).
There is a two-step process for obtaining SIJ status which entails “a unique hybrid
procedure that directs the collaboration of state and federal systems.” Id. at 486 (quotation marks
and citation omitted). First, the state court makes predicate factual findings pertinent to the
juvenile’s SIJ status. Id. The state court must find that an individual who seeks SIJ status is under
the age of 21, unmarried, and (1) dependent on the juvenile court, (2) cannot viably be reunified
with one or both of their parents due to neglect, abandonment, or a similar basis found under state
law, and (3) the juvenile’s best interests would not be served by returning to their country of origin.
8 USC 1101(a)(27)(J). The findings made by the state court only relate to matters of child welfare,
a subject traditionally left to the jurisdiction of the states, and are made according to state law. In
re LFOC, 319 Mich App at 486. “The federal statute places no restriction on what is an appropriate
proceeding or how these SIJ factual findings should be made. The only limitation is that the court
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entering the findings fit the federal definition of a ‘juvenile court.’ ” Id. at 487 (quotation marks
and citation omitted). However, the state court “is not to engage in an immigration analysis or
decision.” Id. at 486, citing Recinos v Escobar, 473 Mass 734, 738; 46 NE3d 60 (2016).
“Although the juvenile court determines whether the evidence supports the findings, the final
decision regarding SIJ status rests with the federal government . . . .” In re LFOC, 319 Mich App
at 485 (quotation marks and citation omitted). After the state court makes the predicate findings,
the juvenile applies to the USCIS for SIJ status. Id. The USCIS “engages in a much broader
inquiry than state courts, and makes the ultimate decision as to whether or not the juvenile’s
application for SIJ status should be granted.” Id. at 486 (quotation marks and citation omitted).
IV. SERVICE OF PROCESS
As an initial matter, the probate court appeared to imply that it could not make the requested
predicate findings because LMV’s mother was not properly served with the motion for special
findings. We conclude that the probate court erred by concluding that notice was sufficient to
grant the guardianship, yet insufficient for purposes of the SIJ proceedings.
As the USCIS notes, “USCIS generally defers to the court on matters of state law,” and
“[t]here is nothing in USCIS guidance that should be construed as instructing juvenile courts on
how to apply their own state law.” USCIS Policy Manual, Vol 6: Special Immigrant Juveniles
Part J, (USCIS Policy Manual), Ch 2 Eligibility Requirements, (updated June 10, 2022)
(accessed July 25, 2022).
Accordingly, the probate court was required to apply the laws and procedures set forth under the
laws and court rules of Michigan.
This Court has recognized that “courts around the country hear SIJ evidence in a variety of
settings, including custody proceedings, adoption petitions and probate issues.” In re LFOC, 319
Mich App at 486-487 (quotation marks and citation omitted). In this case, appellant sought to be
appointed guardian of LMV under MCL 700.5204(b) of the Estates and Protected Individuals
Code (EPIC), MCL 700.1101 et seq. MCL 700.1401(1) generally governs the notice requirements
under EPIC, which provides:
(1) If notice of a hearing on a petition is required and except for specific
notice requirements as otherwise provided by supreme court rule, the petitioner
shall cause notice of the time and place of the hearing on the petition to be given to
each interested person or the person’s attorney if the person has appeared by
attorney or requested that notice be sent to the person’s attorney. Unless otherwise
provided by supreme court rule, notice must be given by 1 of the following
methods:
(a) Mailing a copy at least 14 days before the time set for the hearing by
certified, registered, or first-class mail addressed to the person being notified at the
post office address given in the person’s demand for notice, if any, or at the person’s
office or place of residence, if known.
(b) Delivering a copy to the person being notified personally at least 7 days
before the time set for the hearing.
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(c) If the address or identity of the person is not known and cannot be
ascertained with reasonable diligence, publishing once a copy in a newspaper
having general circulation in the county where the hearing is to be held at least 14
days before the time set for the hearing.
MCL 700.5213, which governs the procedure for a court appointed guardian for a minor, provides
in relevant part:
(1) The petitioner shall give notice of the time and place of hearing of a
petition for the appointment of a minor's guardian to each of the following:
(a) The minor, if 14 years of age or older.
(b) The person who had the principal care and custody of the minor during
the 63 days preceding the date of the petition.
(c) Each living parent of the minor or, if neither of them is living, the adult
nearest of kin to the minor.
(2) Upon hearing, if the court finds that a qualified person seeks
appointment, venue is proper, the required notices have been given, the
requirements of section 5204 or of sections 5205 and 5206 are satisfied, and the
minor's welfare will be served by the requested appointment, the court shall make
the appointment. In other cases, the court may dismiss the proceeding or make
another disposition of the matter that will serve the minor's welfare. [Emphasis
added.]
The guardianship petition and motion for SIJ status special findings were jointly sent by
first-class mail to LMV’s mother. In denying appellant’s motion for SIJ special findings, the court
determined that LMV’s mother was not properly served. However, the probate court did not deny
the guardianship petition for inadequate notice. Although the court voiced some concern regarding
whether LMV’s mother received actual notice of the hearing, the court implicitly found that the
required notice was given by granting appellant full guardianship of LMV. See MCL 700.5213(2).
Because the guardianship petition and the motion for special findings were jointly mailed to
LMV’s mother, the court erred by finding that LMV’s mother did not receive proper notice of the
SIJ status special findings motion, and therefore, abused its discretion by denying the motion, in
part, on that basis.
V. SIJ STATUS FINDINGS
Next, appellant argues that the probate court erred by concluding that the evidence
presented did not support a finding that LMV had been neglected and abused by his mother as
defined by Michigan law. Appellant further argues that the court abused its discretion by refusing
to make findings related to whether reunification of LMV with his mother was viable and in
LMV’s best interests. We agree.
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A. STANDARD OF PROOF
The standard of proof required for SIJ status predicate factual findings raises an issue of
first impression for this Court. See MCR 7.215(B)(2). We hold that preponderance of the
evidence standard applies.
For SIJ status, state courts must make three factual findings: (1) the juvenile is declared
dependent on a juvenile court; (2) the juvenile’s reunification with one or both of their parents is
not viable due to neglect, abandonment, or a similar basis found under state law, and (3) the
juvenile’s interests would not be served by returning to their country of origin. 8 USC
1101(a)(27)(J). However, 8 USC 1101(a)(27)(J) does not provide a standard of proof required to
make such findings. As noted earlier, “USCIS generally defers to the court on matters of state
law,” and “[t]here is nothing in USCIS guidance that should be construed as instructing juvenile
courts on how to apply their own state law.” USCIS Policy Manual, Ch 2 Eligibility Requirements,
(updated June 10, 2022)
(accessed July 25, 2022); see also BRLF v Sarceno Zuniga, 200 A3d 770, 775 (DC, 2019)
(recognizing that the SIJ status statute does not provide a standard of proof and applying the
preponderance of the evidence standard). Moreover, the USCIS Policy Manual instructs courts
to follow their state laws regarding evidentiary standards and due process. See USCIS Policy
Manual, Ch 3 Documentation and Evidence § A.1 (updated June 10, 2022)
(accessed July 25, 2022)
(“There is nothing in USCIS guidance that should be construed as instructing juvenile courts on
how to apply their own state law. Juvenile courts should follow their state laws on issues such as
when to exercise their authority, evidentiary standards, and due process.”). As such, multiple
courts have contemplated the applicable standard of proof to be applied when making SIJ findings.
Because this is an issue of first impression, we consider how this issue has been addressed by other
jurisdictions.2
In Guardianship of SHR, 68 Cal App 5th 563, 574; 283 Cal Rptr 3d 805 (Cal App 2021),
lv gtd by 501 P3d 634 (Cal 2021), the California appellate court clarified that the preponderance
of the evidence standard was the standard of proof required to make SIJ findings. Although Cal
Civ Pro Code § 155 codified the court’s jurisdiction to make such findings, the code did not
provide a specific burden of proof for the superior court to use. Id. The court held that the
preponderance of the evidence standard applied because the code did not specify the applicable
burden of proof. Id. Additionally, the court rejected the substantial evidence standard adopted in
an earlier case because it determined that the substantial evidence standard was inconsistent with
the trial court’s factual finding task within the SIJ statutory scheme. Id. at 576.
Similarly, in BRLF v Sarceno Zuniga, 200 A3d 770, 776 (DC, 2019), the court was clear
that the standard of proof for the SIJ predicate factual findings was a preponderance of the
evidence. The court recognized that the federal statute did not establish the applicable standard of
2
“When interpreting federal statutes, we may look to decisions from other jurisdictions for
guidance. Although not binding, the decisions of courts from other states may be considered as
persuasive authority.” In re LFOC, 319 Mich App at 481, n 1 (quotation marks and citation
omitted).
-6-
proof for SIJ status findings and that there was there was no guidance on how state courts should
be applying their own state laws. Id. Because trial courts in the District of Columbia generally
applied the preponderance of the evidence standard in civil cases unless otherwise specified,
including those relating to family matters, the court concluded that the SIJ status statute required
the petitioner to demonstrate by a preponderance of the evidence that the minor’s reunification
with their parent was “not viable” under District of Columbia law. Id.
In Romero v Perez, 463 Md 182, 197; 205 A3d 903 (2018), the Maryland high court also
held that the preponderance of evidence standard applied to SIJ findings. The court recognized
that the preponderance of the evidence was generally the standard of proof in civil actions,
including various juvenile matters, and that the heightened clear and convincing standard was only
applicable in certain limited circumstances, such as when the government sought to take “unusual
coercive action”, including terminating parental rights. Id. at 198. The court concluded that no
unusual coercive action occurred in SIJ status cases because the proceedings did not involve the
termination of parental rights or placing a fundamental liberty at risk. Id. at 198-199.3 See also In
re Ena S Y, 140 App Div 3d 778, 780; 34 NYS2d 99 (Ny App, 2016) (confirming the court’s
adoption of the preponderance of the evidence standard for SIJ status findings).
Similar to the jurisdiction above, this Court has held that “when a statute fails to state the
standard that probate courts are to use to establish a particular fact, the default standard in civil
cases—preponderance of the evidence—applies.” In re Murray Conservatorship, 336 Mich App
234, 246; 970 NW2d 372 (2021) (quotation marks, citation, and alteration omitted). Accordingly,
because the SIJ statute does not state the applicable standard of proof to be applied for factual
findings, we conclude that the preponderance of the evidence standard applies.
B. ABUSE AND NEGLECT
In this case, appellant sought to be appointed full guardian of LMV under EPIC,
MCL 700.5213(2). EPIC does not define the terms abuse or neglect, nor does the Immigration
and Nationality Act of 1990 or the regulations promulgated under it. Michigan law, however,
statutorily defines the terms abuse and neglect as used in various Acts. Therefore, we review those
laws for guidance.
As used in the Child Abuse and Neglect Prevention Act, MCL 722.601 et seq.,
MCL 722.602(1)(b) provides:
“Child abuse” means harm or threatened harm to a child’s health or welfare
by a person responsible for the child’s health or welfare, which harm occurs or is
threatened through nonaccidental physical or mental injury; sexual abuse, which
includes a violation of section 145c of the Michigan penal code, 1931 PA 328,
MCL 750.145c.
3
We note that the Department of Homeland Security recently issued a rule clarifying that a state
court “is not required to terminate parental rights to determine that parental reunification is not
viable.” 8 CFR 204.11(c)(1)(ii).
-7-
As used in MCL 722.622(g) of Michigan’s Child Protection Law, MCL 722.621 et seq., “child
abuse” is defined as:
harm or threatened harm to a child’s health or welfare that occurs through
nonaccidental physical or mental injury, sexual abuse, sexual exploitation, or
maltreatment, by a parent, a legal guardian, or any other person responsible for the
child’s health or welfare or by a teacher, a teacher’s aide, or a member of the clergy.
Under the Child Abuse and Neglect Prevention Act, MCL 722.602(d)4 provides:
“Neglect” means harm to a child’s health or welfare by a person responsible
for the child’s health or welfare that occurs through negligent treatment, including
the failure to provide adequate food, clothing, shelter, or medical care, though
financially able to do so, or the failure to seek financial or other reasonable means
to provide adequate food, clothing, shelter, or medical care.
Under MCL 722.622(k) of Michigan’s Child Protection Law, “child neglect” is defined as:
harm or threatened harm to a child’s health or welfare by a parent, legal guardian,
or any other person responsible for the child’s health or welfare that occurs through
either of the following:
(i) Negligent treatment, including the failure to provide adequate food,
clothing, shelter, or medical care, though financially able to do so, or by the failure
to seek financial or other reasonable means to provide adequate food, clothing,
shelter, or medical care.
(ii) Placing a child at an unreasonable risk to the child’s health or welfare
by failure of the parent, legal guardian, or other person responsible for the child’s
health or welfare to intervene to eliminate that risk when that person is able to do
so and has, or should have, knowledge of the risk.
1. OTHER STATES’ INTERPRETATION
Other jurisdictions apply the law of their own state to determine whether a minor seeking
SIJ status was abused, neglected, or abandoned by his or her parents, and whether reunification is
viable. See Romero, 463 Md at 204 (stating that the terms abuse, neglect, and abandonment
“derive from state law because determining the viability of reunification is a question that lies
within the expertise of the juvenile court, applying relevant State law”) (alteration omitted);
Canales v Torres Orellana, 67 Va App 759, 782; 800 SE2d 208 (2017) (stating that “by its express
terms, 8 U.S.C. § 1101(a)(27)(J)(i) contemplates that state courts apply state law and render
judgments accordingly”); BRLF v Sarceno Zuniga, 200 A3d 770, 776-777 (DC, 2019) (considering
the definitions of “neglect” and “abandoned” as set forth in Subchapter I “Proceedings Regarding
4
Michigan’s Probate Code of 1939, MCL 712A.2(b)(1)(B), incorporates the definition of neglect
as used in MCL 722.602.
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Delinquency, Neglect, or Need of Supervision” of the District of Columbia Official Code in SIJ
status proceedings).
Additionally, courts have broadly interpreted the meanings of “abuse,” and “neglect,” and
“abandonment” in SIJ status proceedings. In Romero, the court held, that “in SIJ status cases in
Maryland, the terms ‘abuse,’ ‘neglect,’ and ‘abandonment’ should be interpreted broadly when
evaluating whether the totality of the circumstances indicates that the minor’s reunification with a
parent is not viable, i.e., workable or practical, due to prior mistreatment.” Romero, 463 Md at 202.
The court further held that such a holding “furthers Congress’s intent in creating SIJ status,” and
is “consistent with Maryland’s public policy of protecting children.” Id. Similarly, in BRLF, the
court indicated that “the trial court must recognize that Congress to some extent has put its
proverbial thumb on the scale favoring SIJS status [sic].” BRLF, 200 A3d at 776. The court further
stated:
The purpose of the law is to permit abused, neglected, or abandoned children to
remain in this country. And, in establishing the requirements for SIJS status [sic],
Congress knew that there would be proof problems, i.e., that those seeking the
status would have limited abilities to corroborate testimony with additional
evidence. For that reason, a trial court’s imposition of insurmountable evidentiary
burdens of production or persuasion on an SIJ petitioner would be inconsistent with
the intent of the Congress. Therefore, in this international—not merely District of
Columbia—environment, all the relevant factors must be understood in the light
most favorable to determinations of neglect and abandonment, with an eye to the
practicalities of the situation without excessive adherence to standards and
interpretations that might normally apply in strictly local contexts. [Id. at 776-777
(citations and quotation marks omitted).]
2. APPLICATION
On the basis of this record, we conclude that the actions of LMV’s mother, as described by
LMV, constituted neglect and abuse as defined by Michigan law and the record only supported a
finding that reunification was not possible.5 Therefore, the probate court clearly erred by finding
otherwise.
LMV provided unrefuted testimony that he was abused and neglected by his mother. LMV
testified that his mother would beat him with a belt and branches, leaving marks on his body, when
he was unable to work and that she hit him as a form of discipline. LMV testified that, instead of
attending school, he was required to work when he was approximately 8 years old. When he was
12 years old, he began working alone and was forced to work in dangerous conditions, including
being exposed to chemical fertilizers and harvesting equipment. LMV also suffered work-related
injuries. In one incident he was injured by a machete or ax and was unable to work for one week.
5
We note that reunification with his father was also not viable because LMV’s father was
deceased.
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His mother failed to provide medical treatment for these injuries. LMV also had “little” food and
water while working and was frequently tired. LMV testified that he had very “little” food and
water in Guatemala, which suggests that his mother may not have provided adequate food. LMV
also testified that he felt “bad” when his mother beat him and that he would feel “bad” if he was
forced to return to his mother in Guatemala. Moreover, the GAL emphasized that the evidence
supported a finding that LMV had been abused and neglected by his mother. The GAL also argued
that LMV’s best interests were served by being in the United States with his uncle, and
recommended that the court enter an order with the special findings on the issue of Special
Immigrant Juvenile Status.
In denying appellant’s motion, the court explained:
[LMV’s mother has] been given no opportunity to refute [LMV’s] testimony that,
in essence, she physically abused him, and on occasion, would neglect his needs.
And part of the testimony, apparently, is that his mother is well aware that she [sic]
came to the United States, and even assisted in his transition to this country by
providing his uncle with a power of attorney. So, I cannot conclude that [LMV]
was abused or neglected while in the care of his mother.
Although there was some indication that his mother was aware that LMV traveled to the
United States, the evidence only supported a finding that LMV had been abused and neglected, as
defined under MCL 722.622(g) and MCL 722.622(k), by his mother and that reunification was not
possible. LMV described having to work in dangerous conditions instead of attending school,
being injured from a work incident without being provided medical treatment, and physical abuse
by his mother. Therefore, on this record, we are “left with a definite and firm conviction that a
mistake has been made,” and conclude that the court’s abuse and neglect findings were clearly
erroneous. In re Portus, 325 Mich App at 38. Moreover, as discussed earlier, the court abused its
discretion by denying the motion for special findings on the basis that LMV’s mother was not
properly served. Further, to the extent that the probate court refused to make findings because
LMV’s mother was not present and suggested that this was a “a child protection proceeding,” the
court erred. The Department of Homeland Security recently clarified that a state court “is not
required to terminate parental rights to determine that parental reunification is not viable.” 8 CFR
204.11(c)(1)(ii). Therefore, LMV’s mother’s parental rights were not at issue.
The probate court further erred when it concluded that LMV had entered the United States
“illegally” and relied on that finding in its analysis. In denying appellant’s motion, the court stated,
“I’m not granting the special immigration status to a young man who has entered this country
illegally, and . . . whose mother has not been given an opportunity to refute the allegations.” This
Court has recognized that “the juvenile court’s special findings are limited to child welfare
determinations” and that “the juvenile court is not to engage in an immigration analysis or
decision.” In re LFOC, 319 Mich App at 486; see In re Estate of Nina L, 2015 IL App (1st) 152223
at ¶ 21 (“A state court’s role in the SIJ process is not to determine worthy candidates for
citizenship, but simply to identify abused, neglected, or abandoned alien children under its
jurisdiction who cannot reunify with a parent or be safely returned in their best interests to their
home country”) (quotation marks and citation omitted). Therefore, the probate court’s conclusion
and reliance on its finding that LMV entered the United States “illegally” was wholly improper
and erroneous. Moreover, the probate court had no authority to “grant” SIJ status to LMV, as the
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proceedings related solely to predicate factual findings and “the final decision regarding SIJ status
rests with the federal government . . . .” In re LFOC, 319 Mich App at 485 (quotation marks and
citation omitted).
C. BEST INTERESTS
Although the probate court did not make findings regarding best interests, the record is
sufficient for this Court to make such findings and we exercise our discretion to do so. See Hines
v Volkswagen of America, Inc, 265 Mich App 432, 443-444; 695 NW2d 84 (2005) (“where the
lower court record provides the necessary facts, appellate consideration of an issue raised before,
but not decided by, the trial court is not precluded.”).6
Other jurisdictions have approached the best-interests findings in SIJ status proceedings
differently. See In re Dany G, 223 Md App 707, 721-722; 117 A3d 650 (2015) (concluding that
“[i]n the context of a SIJ status predicate order, the inquiry is a straight-forward comparison” of
whether the child’s interests would be better served by remaining in the United States or by
returning to the same conditions from which the child fled from in his or her country of origin);
Cf Kitoko v Salomao, 210 Vt 383, 393; 2019 VT 45; 215 A3d 698 (2019) (concluding that the trial
court could rely on the best interest factors used in custody proceedings and “ha[d] discretion to
consider other factors and also to rely upon its own common sense and experience in reaching a
reasoned judgment as to the best interests of the child where the custody and SIJ statuses of the
children were at issue”) (quotation marks and citation omitted).
6
This Court has jurisdiction to make determinations concerning the care and custody of this minor
child. MCL 600.308; MCR 5.801(A)(3); MCR 7.216(A)(7); see In re LFOC, 319 Mich App
at 487 (explaining that under 8 CFR 204.11(a), “a juvenile court” means “a court located in the
United States having jurisdiction under State law to make judicial determinations about the custody
and care of juveniles.”); see also e.g., In re Diaz v Munoz, 118 AD3d 989, 991; 989 NYS2d 52
(2014) (concluding that the reviewing court had the authority to enter its own findings of fact and
conclusions of law because the record was sufficient).
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In Michigan, best interest factors are set forth in MCL 722.237 of the Child Custody Act,
MCL 722.21 et seq., as well as in MCL 710.22(g)8 of the Michigan Adoption Code, MCL 710.21
7
MCL 722.23 provides the following factors:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the child
in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child
with food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to
be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents. A court may not consider negatively
for the purposes of this factor any reasonable action taken by a parent to protect a
child or that parent from sexual assault or domestic violence by the child's other
parent.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant . . . .
8
MCL 710.22(g) of the Adoption Code provides:
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(g) “Best interests of the adoptee” or “best interests of the child” means the
sum total of the following factors to be considered, evaluated, and determined by
the court to be applied to give the adoptee permanence at the earliest possible date:
(i) The love, affection, and other emotional ties existing between the
adopting individual or individuals and the adoptee or, in the case of a hearing under
section 39 of this chapter, the putative father and the adoptee.
(ii) The capacity and disposition of the adopting individual or individuals
or, in the case of a hearing under section 39 of this chapter, the putative father to
give the adoptee love, affection, and guidance, and to educate and create a milieu
that fosters the religion, racial identity, and culture of the adoptee.
(iii) The capacity and disposition of the adopting individual or individuals
or, in the case of a hearing under section 39 of this chapter, the putative father, to
provide the adoptee with food, clothing, education, permanence, medical care or
other remedial care recognized and permitted under the laws of this state in place
of medical care, and other material needs.
(iv) The length of time the adoptee has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(v) The permanence as a family unit of the proposed adoptive home, or, in
the case of a hearing under section 39 of this chapter, the home of the putative
father.
(vi) The moral fitness of the adopting individual or individuals or, in the
case of a hearing under section 39 of this chapter, of the putative father.
(vii) The mental and physical health of the adopting individual or
individuals or, in the case of a hearing under section 39 of this chapter, of the
putative father, and of the adoptee.
(viii) The home, school, and community record of the adoptee.
(ix) The reasonable preference of the adoptee, if the adoptee is 14 years of
age or less and if the court considers the adoptee to be of sufficient age to express
a preference.
(x) The ability and willingness of the adopting individual or individuals to
adopt the adoptee's siblings.
(xi) Any other factor considered by the court to be relevant to a particular
adoption proceeding, or to a putative father's request for child custody.
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et seq. In In re COH, ERH, JRG, & KBH, 495 Mich 184; 848 NW2d 107 (2014),9 our Supreme
Court considered whether the best interest factors set forth in the Child Custody Act or the
Adoption Code were more applicable in guardianship proceedings for minors. Below, the trial
court applied the best interest factors set forth in the Child Custody Act. Id. at 190. Our Supreme
Court concluded that “[b]ecause MCL 712A.19c(2) grants the trial court discretion in determining
whether a guardianship is in the child’s best interest, a trial court’s decision regarding what factors
to consider in making the best-interest determination is reviewed for an abuse of discretion.” Id.
at 202. The Court further held that, “depending on the circumstances, a case may more reasonably
lend itself to application of the Child Custody Act factors, some combination of the Adoption Code
and Child Custody Act factors, or a unique set of factors developed by the trial court for purposes
of a particular case.” Id. at 203.
Applying those same principals recognized in In re COH, we hold that, for purposes of SIJ
status findings, a court may apply “the Child Custody Act factors, some combination of the
Adoption Code and Child Custody Act factors, or a unique set of factors developed by the trial
court.” Id. We further conclude that the probate court abused its discretion by failing to make
such findings. Moreover, because the record established that it is in LMV’s best interests to remain
in the United States, rather than return to Guatemala, we exercise our discretion to make those
findings instead of remanding to the probate court. MCR 7.216(A)(7).
The record established that LMV fled Guatemala not only to find a better life, but because
of the neglect and abuse he suffered by his mother. LMV testified that his mother would beat him
with a stick, branches or belt when he was unable to work or to discipline him. LMV explained
that he was required to work in dangerous conditions instead of attending school, and that after he
suffered a work-related accident as a result of an ax, his mother did not provide him medical care.
LMV further testified that he was frequently tired as a result of his hard labor and that appellant
provided him food and a stable home. Importantly, LMV was denied the opportunity to receive
an education in Guatemala and is able to attend school in the United States. On the other hand,
appellant, whom LMV had been living with since January 2021, testified that he was able to
provide financially for LMV, that LMV was able to attend school while living with him, and that
he talked to LMV when LMV needed to be disciplined. LMV also testified that he received an
adequate amount of food while staying with appellant. Additionally, LMV’s mother was not
providing any financial support for LMV. LMV’s testimony also indicated that he wished to
remain in the United States with appellant, and that he did not want to return to Guatemala.
Moreover, the court appointed GAL argued that the evidence supported a finding that LMV’s best
interests were served by remaining in the United States with appellant and recommended that the
court enter an order with the special findings for SIJ status. Whether using the child custody
factors, adoption factors, or a combination of factors, the record clearly established a finding that
LMV’s best interests were served by remaining in the United States with appellant instead of
returning to the conditions from which he fled, which included physical abuse, being required to
work in dangerous conditions, and the complete denial of educational opportunities.
9
Although In re COH does not involve SIJ status proceedings, it provides general guidance as to
the application of best interest factors.
-14-
Vacated.
/s/ Michelle M. Rick
/s/ Colleen A. O’Brien
-15- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483333/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DIANE NASRALLAH and MARIAM BAYDOUN, UNPUBLISHED
November 10, 2022
Plaintiffs,
and
BACK IN MOTION CHIROPRACTIC, DC, PLLC,
Intervening Plaintiff-Appellant,
v No. 360277
Wayne Circuit Court
ARGONAUT-MIDWEST INSURANCE LC No. 20-002276-NI
COMPANY,
Defendant-Appellee.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
In this no-fault personal protection insurance (PIP) dispute, intervening plaintiff medical
provider Back In Motion Chiropractic, DC, PLLC appeals by leave granted1 the trial court’s order
granting partial summary disposition to defendant insurer, Argonaut-Midwest Insurance Company
(“AMIC”). As relevant here, the trial court granted summary disposition in AMIC’s favor on Back
In Motion’s PIP claims for mechanical traction, therapeutic exercise, heat therapy, and trigger
point therapy treatment administered to AMIC’s insured, plaintiff Mariam Baydoun. Because the
trial court erred by concluding as a matter of law that these services were not eligible for
reimbursement under the no-fault act, we reverse and remand.
1
Nasrallah v Argonaut-Midwest Ins Co, unpublished order of the Court of Appeals, entered April
7, 2022 (Docket No. 360277).
-1-
I. FACTUAL BACKGROUND
This case arises out of treatment that Baydoun obtained for injuries allegedly sustained in
a 2019 car accident. Baydoun brought suit against AMIC, asserting that it unreasonably refused
to pay PIP benefits under the no-fault act, MCL 500.3101 et seq. In particular, this PIP dispute
involves various modalities of treatment that were administered by Back In Motion’s
“owner/operator,” Dr. Hassan Reichouni. Baydoun assigned her right to direct payment to Back
In Motion, which intervened to seek reimbursement for treatment rendered by Dr. Reichouni to
Baydoun.
AMIC does not dispute that, during the pertinent timeframe, Dr. Reichouni was licensed
in Michigan as both a massage therapist and a chiropractor. In his affidavit, Dr. Reichouni
described his treatment of Baydoun as follows:
9. On October 22, 2019, I performed an initial examination of Mariam
Baydoun. I found severe reductions in her cervical and lumbar range of motion,
muscle spasms, and positive cervical and lumbar orthopedic tests. Palpatory
analysis of the patient’s spine revealed multiple subluxations throughout her spine.
On that date and each subsequent visit, I performed manual chiropractic
adjustments as well as intersegmental mechanical traction to correct her spinal
subluxations and related bones and tissues for the establishment of neural integrity.
10. I also applied traditional massage therapy techniques and modalities, as
well as complementary methods on Mariam Baydoun, including application of
moist hot packs and targeted manual massage of the trigger points with my thumbs
and/or elbows (trigger point therapy), in keeping with my education, training, and
experience as a massage therapist.
11. Mariam Baydoun also participated in rehabilitative exercise that
involved her active participation in strengthening, range of motion, and stretching
against resistance.
* * *
13. Based on my training and experience, physical examination of the
patient and review of the records, it is my opinion that the chiropractic and massage
therapy treatment provided to Ms. Baydoun was reasonably necessary for her care,
recovery and rehabilitation for injuries she sustained as a result of the motor vehicle
collision . . . .
14. All of the care, treatment and evaluations provided by me falls within
the scope of my licensure as a massage therapist or a chiropractic physician as
authorized by the Michigan Public Health Code.
AMIC moved for partial summary disposition, seeking dismissal of Back In Motion’s
medical-provider claims for PIP benefits related to “chiropractic services not eligible for
reimbursement.” Specifically, AMIC sought dismissal of $31,945 of Back In Motion’s billed
services, including all pre-July 2, 2021 charges for mechanical traction, therapeutic services,
-2-
massage therapy, trigger point therapy, and heat therapy. AMIC argued that such services were
not subject to reimbursement because they fell “outside the scope of the practice of chiropractic . . .
as of January 1, 2009” for purposes of MCL 500.3107b(b). AMIC also contended that the massage
therapy services provided by Dr. Reichouni were not reimbursable PIP benefits because they were
physical therapy services that were not performed by a licensed physical therapist. In response,
Back In Motion argued that summary disposition was unwarranted because all the relevant services
were performed either as statutorily authorized massage therapy services or as compensable
chiropractic services.
After entertaining oral argument, the trial court partially granted and partially denied
AMIC’s motion for partial summary disposition. The trial court denied summary disposition on
the massage therapy services, but granted summary disposition as to the disputed “mechanical
traction” treatment. The trial court reasoned that, under Hofmann v Auto Club Ins Ass’n, 211 Mich
App 55; 535 NW2d 529 (1995), summary disposition on the mechanical traction claims was
warranted because “where mechanical traction is used for therapeutic purposes, it is a passive
treatment procedure and therefore, is outside the scope of chiropractic” under MCL 500.3107b(b).
After the parties sought clarification about the court’s ruling on the remaining three disputed
services, the trial court stated without explanation that it was granting summary disposition on all
claims except for massage therapy. The trial court denied Back In Motion’s motion for
reconsideration, and this appeal of the trial court’s partial grant of summary disposition followed.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Measel
v Auto Club Group Ins Co, 314 Mich App 320, 326; 886 NW2d 193 (2016). Underlying the trial
court’s summary disposition ruling are questions of statutory interpretation, which we likewise
review de novo. Id. “De novo review means that we review the legal issue independently” and
without deference to the trial court. Wright v Genesee Co, 504 Mich 410, 417; 934 NW2d 805
(2019).
Although AMIC cited both MCR 2.116(C)(8) and (C)(10) in support of its motion for
partial summary disposition, we review the trial court’s ruling under subrule (C)(10) exclusively,
given that the trial court considered evidence outside the pleadings. See Krass v Tri-County
Security, 233 Mich App 661, 664-665; 593 NW2d 578 (1999).
A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s
claim. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no
genuine issue regarding any material fact and the moving party is entitled to
judgment as a matter of law. In reviewing a motion under MCR 2.116(C)(10), this
Court considers the pleadings, admissions, affidavits, and other relevant
documentary evidence of record in the light most favorable to the nonmoving party
to determine whether any genuine issue of material fact exists to warrant a trial. A
genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ. [Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266
(2013) (quotations marks and citations omitted).]
-3-
III. ANALYSIS
Back In Motion argues that the trial court erred by granting summary disposition in
AMIC’s favor on Back In Motion’s PIP claims related to mechanical traction, therapeutic exercise,
heat therapy, and trigger point therapy services provided to Baydoun.
“Generally, under the no-fault act, [PIP] benefits are payable for medical expenses that are
lawfully rendered and reasonably necessary for an insured’s care, recovery, and rehabilitation.”
Measel, 314 Mich App at 326, citing MCL 500.3107.2 MCL 500.3107b acts as an exception to
this general rule, limiting the types of services insurance providers must reimburse. See Measel,
314 Mich App at 327. In relevant part, MCL 500.3107b provides:
Reimbursement or coverage for expenses within personal protection
insurance coverage under section 3107 is not required for any of the following:
* * *
(b) A practice of chiropractic service rendered before July 2, 2021, unless
that service was included in the definition of practice of chiropractic under section
16401 of the public health code, 1978 PA 368, MCL 333.16401, as of January 1,
2009. [Emphasis added.]
In other words, if a pre-July 2, 2021 “service falls within PIP coverage under MCL 500.3107 and
is ‘[a] practice of chiropractic service’ under MCL 500.3107b(b), reimbursement is only required
under the no-fault act if the service was included in the definition of ‘practice of chiropractic’
under MCL 333.16401 as that statute existed on January 1, 2009.” Measel, 314 Mich App at 328
(alteration in original). To determine which services fall within that statutory definition, this Court
often looks to pre-January 1, 2009 decisions such as Hofmann v Auto Club Ins Ass’n, 211 Mich
App 55; 535 NW2d 529 (1995), which construed the pertinent statutory provisions—including
MCL 333.16401—at some length. See, e.g., Precise MRI of Mich, LLC v State Auto Ins Co, ___
Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. No. 354653), slip op at 5-8; Skwierc v
Whisnant, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket No. 355133), slip op at 5-7.
Consistent with the dates set forth by MCL 500.3107b(b), AMIC sought partial summary
disposition on Back In Motion’s claims for reimbursement of pre-July 2, 2021 treatment to
Baydoun on the basis that the disputed services were outside the scope of the January 1, 2009
definition of “practice of chiropractic.” The trial court granted summary disposition on Back In
Motion’s claims involving mechanical traction, therapeutic exercise, trigger point therapy, and
heat therapy services, which Back In Motion argues was erroneous. We address each of the
disputed treatment modalities in turn.
2
Subject to exception, MCL 500.3107 states that PIP benefits are payable for “[a]llowable
expenses consisting of reasonable charges incurred for reasonably necessary products, services
and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL
500.3107(1)(a).
-4-
A. MECHANICAL TRACTION
Back In Motion first argues that the mechanical traction services fall within the scope of
chiropractic practice as defined by statute on January 1, 2009.
As of January 1, 2009, MCL 333.16401(1) provided:
(b) “Practice of chiropractic” means that discipline within the healing arts
which deals with the human nervous system and its relationship to the spinal
column and its interrelationship with other body systems. Practice of chiropractic
includes the following:
(i) Diagnosis, including spinal analysis, to determine the existence of spinal
subluxations or misalignments that produce nerve interference, indicating the
necessity for chiropractic care.
(ii) A chiropractic adjustment of spinal subluxations or misalignments and
related bones and tissues for the establishment of neural integrity utilizing the
inherent recuperative powers of the body for restoration and maintenance of health.
(iii) The use of analytical instruments, nutritional advice, rehabilitative
exercise and adjustment apparatus regulated by rules promulgated by the board
pursuant to section 16423, and the use of x-ray machines in the examination of
patients for the purpose of locating spinal subluxations or misaligned vertebrae of
the human spine. The practice of chiropractic does not include the performance of
incisive surgical procedures, the performance of an invasive procedure requiring
instrumentation, or the dispensing or prescribing of drugs or medicine. [MCL
333.16401(1), as amended by 2002 PA 734 (emphasis added).]
Consistent with this statutory definition, the Hofmann Court held that “traction is within the scope
of chiropractic when used for purposes of correcting a subluxation or misalignment of the vertebral
column or related bones and tissues, but excluded when used for therapeutic, treatment purposes.”
Hofmann, 211 Mich App at 82.3
In opposing summary disposition, Back In Motion presented Dr. Reichouni’s affidavit, in
which he stated that he “performed manual chiropractic adjustments as well as intersegmental
mechanical traction to correct [Baydoun’s] spinal subluxations and related bones and tissues for
the establishment of neural integrity.” AMIC presented no substantively admissible evidence to
the contrary. Thus, Dr. Reichouni’s undisputed attestation is more than enough to yield a genuine
issue of material fact that the mechanical traction services were for correcting a spinal subluxation,
and therefore fall within the January 1, 2009 definition of “practice of chiropractic” under MCL
500.3107b(b). See Hofmann, 211 Mich App at 82; former 333.16401(1)(b)(ii). Accordingly, the
3
When Hofmann was decided in 1995, MCL 333.16401(1) was identical to the January 1, 2009
version except for a few nonsubstantive differences not relevant to our analysis.
-5-
trial court erred by granting AMIC summary disposition on the disputed claims for mechanical
traction.
B. THERAPEUTIC EXERCISE
Back In Motion next argues that the therapeutic exercises are compensable services under
the no-fault act because they are active rehabilitative services that fall within the January 1, 2009
definition of “practice of chiropractic.”
As noted, “practice of chiropractic” included the use of “rehabilitative exercise” in the
statute existing on January 1, 2009. Former MCL 333.16401(1)(b)(iii). In Hofmann, 211 Mich
App at 77, this Court explained that “rehabilitative exercise” does not include “passive treatment
procedures.” Rather, rehabilitative exercises fall within the practice of chiropractic when they
involve “active movement.” Id. at 78. Again, in opposing summary disposition, Back In Motion
presented Dr. Reichouni’s affidavit testimony, in which he attested that Baydoun “participated in
rehabilitative exercise that involved her active participation in strengthening, range of motion, and
stretching against resistance.” Evidence that Baydoun actively engaged in the rehabilitative
exercises is sufficient to create a genuine issue of material fact as to whether such exercises fall
within the January 1, 2009 “definition of practice of chiropractic” for purposes of MCL
500.3107b(b). See Hofmann, 211 Mich App at 76-78. Thus, the trial court erred by granting
AMIC summary disposition on Back In Motion’s “therapeutic exercise” claims.
C. HEAT THERAPY
On the other hand, Hofmann does, in fact, support AMIC’s argument that the disputed
“heat therapy” services fall outside the proper “definition of practice of chiropractic” for purposes
of MCL 500.3107b(b). See Hofmann, 211 Mich App at 79-81 (“ . . . [W]e are compelled to
conclude that heat and cold are not included within the scope of chiropractic practice”). But the
exclusion of such treatment from the January 1, 2009 definition of “chiropractic” services is not,
standing alone, fatal to Back In Motion’s heat-therapy claim. See id. at 65 (“[T]o the extent that
plaintiffs are found to have engaged in the exercise of a health-care activity that is excluded from
the statutory scope of chiropractic, that mere fact of exclusion does not, by itself, lead to the
conclusion that the activity was rendered unlawfully.”) Put differently, if Back In Motion
“engaged lawfully in the exercise of an activity that is excluded from the scope of chiropractic,
then the expense for that activity will be payable as a no-fault benefit if it constitutes an allowable
expense under [MCL 500.3107] of the no-fault act.” Id. at 67.
As noted, it is undisputed that Dr. Reichouni is a licensed massage therapist. MCL
333.17951(1)(d) provides:
“Practice of massage therapy” means the application of a system of
structured touch, pressure, movement, and holding to the soft tissue of the human
body in which the primary intent is to enhance or restore the health and well-being
of the client. Practice of massage therapy includes complementary methods,
including the external application of water, heat, cold, lubrication, salt scrubs, body
wraps, or other topical preparations; and electromechanical devices that mimic or
enhance the actions possible by the hands. Practice of massage therapy does not
-6-
include medical diagnosis; practice of physical therapy; high-velocity, low-
amplitude thrust to a joint; electrical stimulation; application of ultrasound; or
prescription of medicines. [Emphasis added.]
In light of that statutory definition, Dr. Reichouni’s undisputed status as a licensed massage
therapist, and his affidavit testimony that his “application of moist hot packs” was performed “in
keeping with [his] education, training, and experience as a massage therapist,” we perceive no
basis to conclude that the heat-therapy services were performed unlawfully.
AMIC contends that Dr. Reichouni’s status as a licensed massage therapist does not change
whether the charges are reimbursable because the disputed services require a licensed physical
therapist to obtain reimbursement under the no-fault act. This argument relies on a different
provision of MCL 500.3107b, which states:
Reimbursement or coverage for expenses within personal protection
insurance coverage under section 3107 is not required for any of the following:
* * *
(c) A practice of physical therapy service or practice as a physical therapist
assistant service, unless that service was provided by a licensed physical therapist
or physical therapist assistant under the supervision of a licensed physical therapist
under a prescription from a health care professional who holds a license issued
under part 166, 170, 175, or 180 of the public health code, 1978 PA 368, MCL
333.16601 to 333.16659, 333.17001 to 333.17097, 333.17501 to 333.17556, and
333.18001 to 333.18058, or the equivalent license issued by another state.
Licensure as a massage therapist is not governed by any of the parts of the Public Health Code,
MCL 333.1101 et seq., referenced in MCL 500.3107b(c). Rather, such licensure is governed by
part 179a of the Public Health Code, MCL 333.17951 to MCL 333.17969. In defining the
“[p]ractice of massage therapy,” the Legislature expressly stated that such practice “does not
include . . . [the] practice of physical therapy.” MCL 333.17951(1)(d). Thus, we reject AMIC’s
argument to the extent that it suggests that Dr. Reichouni’s massage therapy services are simply
physical therapy services subject to MCL 500.3107b(c). The no-fault act’s limits on
reimbursement of PIP benefits for physical therapy services do not restrict Back In Motion’s
entitlement to reimbursement for massage therapy services performed by a licensed massage
therapist. Accordingly, the trial court erred by concluding that AMIC was entitled to summary
disposition under MCL 500.3107b.
D. TRIGGER POINT THERAPY
As with the heat-therapy services, there is authority suggesting that the trigger point
massage therapy falls outside the January 1, 2009 “definition of practice of chiropractic” for
purposes of MCL 500.3107b(b). See Measel, 314 Mich App at 337 (“[T]he massages do not fall
within the former definition of ‘practice of chiropractic’ under MCL 333.16401 because they
involved treatment to areas other than [the patient’s] spine.”). In his affidavit, Dr. Reichouni stated
that he performed “targeted manual massage of the trigger points with [his] thumbs and/or elbows
-7-
(trigger point therapy),” and that he did so “in keeping with [his] education, training, and
experience as a massage therapist,” not as a chiropractor. But Back In Motion presented no
evidence specifying that these trigger point massage services were limited to, or even involved,
Baydoun’s spine.
Again, however, the exclusion of such treatment from the January 1, 2009 definition of
“chiropractic” services is not, standing alone, fatal to Back In Motion’s massage-therapy claims.
See Hofmann, 211 Mich App at 65. To reiterate, MCL 333.17951(1)(d) defines the “[p]ractice of
massage therapy” as “the application of a system of structured touch, pressure, movement, and
holding to the soft tissue of the human body in which the primary intent is to enhance or restore
the health and well-being of the client.” (Emphasis added.) Dr. Reichouni attested that the
disputed trigger-point therapy was performed “in keeping with [his] education, training, and
experience as a massage therapist.” Considering the statutory definition of massage therapy, along
with Dr. Reichouni’s affidavit testimony, a genuine issue of material fact exists whether the trigger
point therapy services are reimbursable expenses under the no-fault act.4 By concluding that
summary disposition on these claims was appropriate, the trial court erred.
E. ALTERNATIVE GROUND FOR AFFIRMANCE
Finally, we must address an argument raised by AMIC as an alternative ground for
affirmance.5 In Belcher v Ford Motor Co, 333 Mich App 717, 728; 963 NW2d 423 (2020), this
Court held that, under the Worker’s Disability Compensation Act of 1969 (WDCA), MCL 418.101
et seq., “an employer is not required to reimburse for any service performed by a massage
therapist,” and “the WDCA only requires reimbursement for massages if they are (1) prescribed
by certain healthcare professionals and (2) performed by a licensed physical therapist or physical
therapist assistant under the supervision of a licensed physical therapist.” AMIC argues that such
holdings should be extended to the no-fault context because the no-fault act and WDCA should be
construed together under the rule of in pari materia. This rule of statutory construction “holds that
statutes relating to the same subject or sharing a common purpose should be read together as one,
even if the two statutes contain no reference to each other and were enacted at different times.”
Summer v Southfield Bd of Ed, 324 Mich App 81, 93; 919 NW2d 641 (2018).
We are unpersuaded by AMIC’s argument. Belcher’s relevant holdings were premised
exclusively on a provision of the WDCA, MCL 418.315(1), not any section of the no-fault act.
There is no basis for importing that provision of the WDCA into the no-fault act via the in pari
materia canon of construction as AMIC suggests. See Mathis v Interstate Motor Freight Sys, 408
4
Whether the services provided by Dr. Reichouni as a licensed massage therapist otherwise
constitute an “allowable expense” under MCL 500.3107 is an issue not raised by AMIC. See
generally In re Carroll (On Remand), 300 Mich App 152, 171-172; 832 NW2d 276 (2013)
(discussing the various requirements for a given “product, service, or accommodation” to be
considered an “allowable expense” for purposes of the no-fault act).
5
An appellee is “not required to file a cross-appeal to assert an alternative basis for affirmance in
this Court.” In re Smith Trust, 274 Mich App 283, 285 n 2; 731 NW2d 810 (2007), aff’d 480 Mich
19 (2008).
-8-
Mich 164, 179; 289 NW2d 708 (1980) (recognizing that the WDCA and no-fault act “are complete
and self-contained legislative schemes addressing discrete problems” and that “[n]either act refers
expressly to the other”). Therefore, we reject AMIC’s argument that Belcher’s relevant holdings
concerning the WDCA apply with equal force in the no-fault context.
IV. CONCLUSION
For those reasons, we reverse the trial court’s grant of partial summary disposition to AMIC
and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
-9- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483336/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re VELASQUEZ, Minor.
MARIO VELASQUEZ-TOMAS, Guardian of LMV FOR PUBLICATION
November 10, 2022
Appellant,
No. 360057
Ionia Probate Court
LC No. 2021-000494-GM
Before: RICK, P.J., and BOONSTRA and O’BRIEN, JJ.
BOONSTRA, J. (dissenting).
I respectfully dissent. By reversing the probate court’s decision in this case, the majority
sanctions the abandonment of all notions of due process and our role as an error-correcting court.
It facilitates the use of a by-design one-sided process (both in the probate court and in this Court)
to foist factual findings (which no one has had an opportunity to rebut) upon the courts—
notwithstanding the proper role of trial courts to evaluate witness credibility and the weight to be
given to the evidence presented. And it allows itself to be used to further a particular political
agenda—under which different living standards in other countries necessarily and conclusively
equate to “abuse” and “neglect” justifying immigration.
In my view, the probate court did not clearly err by failing to find that LMV’s1 reunification
with his mother was “not viable due to abuse, neglect, abandonment, or a similar basis found under
state law,” see 8 USC 1101(a)(27)(J)(i), or by failing to make factual findings regarding whether
it was not in LMV’s best interest to be returned to his country of origin, see 8 USC
1101(a)(27)(J)(ii). Further, even if the probate court erred in addressing (or declining to address)
those issues (in the absence of an opportunity for LMV’s mother to respond), this Court should
1
LMV will turn eighteen years of age on January 23, 2023.
-1-
not—in the first instance—make the factual findings set forth in this Court’s order, when the
probate court did not address the issues first. See 8 USC 1101(a)(27)(J)(ii).
The Immigration and Nationality Act of 1990 defines a “special immigrant,” in relevant
part, as follows:
(J) an immigrant who is present in the United States--
(i) who has been declared dependent on a juvenile court located in the
United States or whom such a court has legally committed to, or placed
under the custody of, an agency or department of a State, or an individual
or entity appointed by a State or juvenile court located in the United States,
and whose reunification with 1 or both of the immigrant's parents is not
viable due to abuse, neglect, abandonment, or a similar basis found under
State law;
(ii) for whom it has been determined in administrative or judicial
proceedings that it would not be in the alien's best interest to be returned to
the alien's or parent's previous country of nationality or country of last
habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant
of special immigrant juvenile status, except that--
(I) no juvenile court has jurisdiction to determine the custody status
or placement of an alien in the custody of the Secretary of Health
and Human Services unless the Secretary of Health and Human
Services specifically consents to such jurisdiction; and
(II) no natural parent or prior adoptive parent of any alien provided
special immigrant status under this subparagraph shall thereafter, by
virtue of such parentage, be accorded any right, privilege, or status
under this chapter . . . . [8 USC 1101(a)(27)(J).]
As the majority opinion describes, a minor immigrant may be found to be a Special Immigrant
Juvenile (SIJ) under the act. To achieve SIJ status, a state court must first make factual findings
under 8 USC 1101(a)(27)(J)(i) and (ii); if it does so, the minor may then apply to the federal
government for SIJ status. See generally In re LFOC, 319 Mich App 476; 901 NW2d 906 (2017),
quoting In re Estate of Nina L, 2015 Ill App 152223, ¶ 15; 397 Ill Dec 279; 41 NE3d 930 (2015).
The majority takes issue with the probate court’s refusal to make the necessary predicate findings
to enable LMV to apply for SIJ status. I disagree.
As a threshold matter, the majority states that the probate court “erred by concluding that
notice was sufficient to grant the guardianship, yet insufficient for purposes of the SIJ
proceedings.” I disagree with that characterization of the record. The probate court stated in
relevant part:
-2-
I suspect [the mother] has not been served. But rather than delay these proceedings,
because [LMV] certainly needs someone to have 1egal authority over him, I will
grant the guardianship. However, in cases like this, I always indicate that should
the mother, upon becoming aware of this, want to contest it and claim she was not
given proper notice, I will give her that opportunity.
From this statement, it is clear that the probate court, despite its reservations about the service of
process procedure used in this case,2 elected to grant the guardianship out of necessity, while
specifically reserving LMV’s mother’s right to challenge the lack of notice at a later date; in other
words, the majority is incorrect when it states that the probate court affirmatively concluded that
sufficient notice had been given. I note that this was a non-adversarial proceeding; there was no
party challenging the guardianship based on allegedly deficient service of process or the absence
of an interested party. See MCR 5.125(C)(20). The grant of guardianship has not been challenged
on appeal. I would not stretch the probate court’s conditional grant of the guardianship petition so
far as to find—on that basis— an abuse of discretion in its denial of the motion for special findings.
More importantly, regardless of whether LMV’s mother was provided with proper notice
of the proceedings, the probate court was not required to accept LMV’s testimony in its entirety
merely because it was not contradicted by another witness’s testimony; nor was the court required
to find that this testimony supported making a factual finding under the USCIS, merely because
no party argued otherwise. It is the fact-finder’s job to consider a witness’s credibility and what
weight to give to the evidence presented. See People v Wolfe, 440 Mich 508, 514; 489 NW2d 748
(1992), mod 441 Mich 1201 (1992). “It is fundamental that the fact finder may accept in part and
reject in part the testimony of any witness.” Adkins v Home Glass Co, 60 Mich App 106, 111; 230
NW2d 330 (1975). In my view, the majority ignores these precepts and substitutes its judgment
for that of the probate court in re-weighing the evidence. See Wolfe, 440 Mich at 514-515, quoting
People v Palmer, 392 Mich 370, 375-376; 220 NW2d 393 (1974) (“ ‘[An appellate court] must
remember that the jury is the sole judge of the facts. It is the function of the jury alone to listen to
testimony, weigh the evidence and decide the questions of fact. . . . Juries, not appellate courts,
see and hear witnesses and are in a much better position to decide the weight and credibility to be
given to their testimony.’ ”) (alteration in Wolfe).
The probate court did not clearly err by declining to make the factual finding that LMV’s
reunification with his mother was “not viable due to neglect, abandonment, or a similar basis found
2
The record shows that a copy of the petition and motion for special findings was sent by first-
class mail to “Aldea Rodeo, Cuilco, Huehuetenango, Guatemala.” Cuilco is the fourth largest
municipality in the Guatemalan department of Huehuetenango with an area of 592 square
kilometers and a population of approximately 57,000 people, living in over a hundred “aldeas” or
small villages; presumably, “Aldea Rodeo” is one of those villages. See
https://aprende.guatemala.com/historia/geografia/municipio-cuilco-huehuetenango/ (last accessed
November 2, 2022). In other words, the petition and motion were mailed to, at most, the village
in which LMV’s mother lived, without a street address. The record reflects no explanation for this
lack of specificity despite LMV’s uncle’s testimony that he had remained in contact with his sister
and that she agreed with the proposed guardianship.
-3-
under State law.” See 8 USC 1101(a)(27)(J)(1). Although the majority focuses on evidence that
it believes supports a finding of abuse or neglect, it does not discuss what evidence supported a
factual finding that reunification was impossible due to that abuse or neglect. See 8 USC
1101(a)(27)(J). Statutory language should not be rendered nugatory. Empire Iron Mining
Partnership v Tilden Twp, 337 Mich App 579, 591; 977 NW2d 128 (2021) (citation omitted). A
reasonable reading of the language of 8 USC 1101(a)(27)(J) and the USCIS as whole supports the
conclusion that the statute contemplates a current harm to the child from being reunited with his
parents in his home country; if conditions of past neglect or even abuse have been sufficiently
rectified, it is at least arguable that they do not support predicate findings under the USCIS. See
Id. at 587.
Further, my review of the evidence relied upon by the majority does not leave me with the
definite and firm conviction that a mistake was made. In re Portus, 325 Mich App 374, 381; 926
NW2d 33 (2018). Regarding neglect, although LMV testified that he accompanied his mother to
work from the age of eight, and began working in the fields by the age of twelve instead of going
to school, there was no testimony or evidence presented that LMV’s mother forced him to do so
or that she failed to provide for his health or welfare “though financially able to do so.”
MCL 722.602(d). In fact, LMV testified that “We had no money to pay school.” Further, the
majority states that LMV was “exposed to chemical fertilizers and harvesting equipment,” but I
can find no mention of what type of fertilizer was used, or that LMV was “exposed” to any
harvesting equipment more advanced than an axe or machete. And while LMV did testify that he
had “little” food, that was in response to being asked if he had water or food while he was working;
he later agreed that he was “getting more to eat” living with his uncle. LMV also testified to a
time when he was injured while working and “couldn’t work for a week.” Although he stated that
his mother did not get him medical care, he did not testify, nor was there other evidence provided,
regarding what specific medical care he should have received, its availability in his region, and
whether it was financially within his mother’s means. While LMV’s testimony establishes a
certain amount of hardship and difficulty in his younger years, I find this evidence far from
conclusive that LMV’s mother neglected him, or that any neglect occurred despite LMV’s mother
possessing the financial means to provide adequate care.
Regarding abuse, LMV testified that his mother hit him with sticks and a belt when he did
something she didn’t like. He provided no further specifics or even a general sense of when these
incidents occurred, how often, or their severity, other than stating “yes” when asked if his mother
left marks when she hit him. Again, as the statute appears to contemplate a present danger to the
child if reunited with his parent, I would find such specifics important. Further, no medical records
or other such corroborating evidence was presented. I do not fault the probate court for failing to
find that LMV’s mother committed child abuse under Michigan law based on solely on LMV’s
abbreviated testimony. See MCL 722.602(d).
There was also evidence presented that LMV was able to stay home from work when sick
(and possibly for other reasons as well, since he referred to being sick as “the most common”
reason he stayed home), that his mother provided LMV’s uncle with some form of written
permission to make decisions on LMV’s behalf, and that LMV’s uncle had stayed in contact with
LMV’s mother. During the guardianship portion of the proceedings, there was no mention of
abuse or neglect by LMV’s mother; rather, LMV’s uncle merely testified that she agreed with the
guardianship and that he would like to provide LMV with “a better life here in the States.” LMV’s
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uncle, despite being present, did not testify in support of LMV’s abuse and neglect accusations.
This evidence provides some support for the probate court’s refusal to find that LMV had been
abused, neglected, or abandoned.
On balance, I simply cannot find that the probate court, given its superior ability to judge
the credibility of witnesses before it, see Sparling Plastic Indus, Inc v Sparling, 229 Mich App
704, 716; 583 NW2d 232 (1998), clearly erred by declining to make the factual findings requested.
Additionally, even if I agreed with the majority regarding the probate court’s lack of findings under
8 USC 1101(a)(27)(J)(i), I would dissent from the majority’s best-interest findings under 8 USC
1101(a)(27)(J)(ii). This Court is an error-correcting court, Apex Labs Int’l, Inc v Detroit, 331 Mich
App 1, 10; 951 NW2d 45 (2020); it is not appropriate for us to make factual findings regarding an
issue that the probate court declined to address. See id. at 10-11, citing Autodie LLC v Grand
Rapids, 305 Mich App 423, 430-431; 852 NW2d 650 (2014). For this additional reason, I dissent
from Section V(C) of the majority opinion.
For these reasons, I respectfully dissent.
/s/ Mark T. Boonstra
-5- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483338/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 355260
Wayne Circuit Court
AUBREY BERNARD BECKUM, LC No. 19-004852-01-AR
Defendant-Appellee.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
GARRETT, P.J. (dissenting).
I respectfully dissent. I would affirm the district court’s decision not to bind over defendant
Aubrey Beckum on the charge of possession with intent to deliver less than 50 grams of cocaine,
MCL 333.7401(2)(a)(iv).
The majority accurately recites the factual and legal background in this case. But I disagree
that the district court abused its discretion by finding an absence of probable cause that Beckum
committed the charged offense. “At its core, an abuse of discretion standard acknowledges that
there will be circumstances in which there will be no single correct outcome; rather, there will be
more than one reasonable and principled outcome.” People v Babcock, 469 Mich 247, 269; 666
NW2d 231 (2003). “When the trial court selects one of these principled outcomes, the trial court
has not abused its discretion and, thus, it is proper for the reviewing court to defer to the trial
court’s judgment.” Id.
The district court reasonably found that the evidence presented at the preliminary
examination was insufficient to establish probable cause on the element of constructive possession.
At least 10 other people besides Beckum were found in the house where the cocaine was seized.
While Beckum admitted to selling cocaine from that house for the past one or two weeks,
Beckum’s statement to Corporal Muhammad did not reference the cocaine found in the living
room. As the district court noted, “there is nothing on this record that connects [Beckum] more so
than any of those other ten people to those narcotics.” (Emphasis added.) Constructive possession
of narcotics can be joint, but there must still be a “sufficient nexus” linking each individual alleged
to be in joint possession of the narcotics. See People v Williams, 268 Mich App 416, 420-422;
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707 NW2d 624 (2005). Had the prosecution presented at least one other fact about Beckum’s
connection to the specific cocaine, or the house itself, the prosecution likely would have satisfied
its burden of establishing probable cause to believe Beckum committed possession with the intent
to deliver less than 50 grams of cocaine.
The record as it stands, however, has too many gaps for me to conclude the district court
abused its discretion by refusing to bind Beckum over. It is true that the prosecution provided
evidence establishing there was cocaine found in the same house as Beckum, that it was packaged
for sale, and that Beckum admitted to selling cocaine from that location. But the prosecution did
not present evidence, other than speculation, that Beckum had “dominion or control” over the
cocaine found in the house. See People v Konrad, 449 Mich 263, 271; 536 NW2d 517 (1995).
The prosecution did not elicit any testimony or introduce documentary proof showing where
Beckum was found in relation to the cocaine, where the other people in the house were found in
relation to the cocaine, if Beckum lived at or had a property interest in the house, or if there was
other identifying information related to Beckum found near the cocaine. See People v Abcumby-
Blair, 335 Mich App 210, 224-225; 966 NW2d 437 (2020). In short, the district court reasonably
concluded that the prosecution failed to carry its burden to establish probable cause that Beckum
constructively possessed the cocaine at issue here. Therefore, I would affirm the district court’s
bindover determination.
/s/ Kristina Robinson Garrett
-2- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483344/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ANTHONY BRANCH, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v Nos. 358989; 359634
Genesee Circuit Court
GENESEE COUNTY ROAD COMMISSION and LC No. 19-113700-CD
MICHIGAN SOCIETY OF ASSOCIATION
EXECUTIVES,
Defendants-Appellees.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
These consolidated matters involve plaintiff Anthony Branch’s claims against defendants,
Genesee County Road Commission (GCRC) and Michigan Society of Association Executives
(MSAE), alleging race discrimination in employment under the Elliot-Larsen Civil Rights Act
(CRA), MCL 37.2101 et seq. In Docket No. 358989, Branch appeals as of right the trial court’s
order granting summary disposition in favor of GCRC and MSAE under MCR 2.116(C)(10) (no
genuine issue of material fact). In Docket No. 359634, Branch appeals as of right the trial court’s
order awarding MSAE attorney fees and taxable costs as case-evaluation sanctions. We affirm in
both dockets.
I. BACKGROUND
This matter stems from allegations by Branch, who is African-American, that he
experienced race discrimination when he applied for a manager-director position with the GCRC.
The GCRC ultimately appointed Fred Peivandi, an Iranian-American male, as manager director.
Branch began working for the GCRC in 1988 and was promoted to the director of
maintenance in 2004. In this role, Branch reported to John Daly, GCRC’s manager director. In
early 2018, Daly resigned as manager director and recommended that Branch replace him. Branch
and Peivandi, then GCRC’s director of engineering, were appointed as co-interim manager
directors and given raises while the Genesee County Board of Road Commissioners (the Board)
began the search process to permanently fill the role. At all relevant times, the Board consisted of
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(1) Cloyce Dickerson, who is African-American; (2) Shirley Kautman-Jones, who is Caucasian;
(3) John Mandelaris, who is Caucasian; (4) David Arceo, who is Mexican-American; and
(5) Robert Johnson, who is Caucasian.
The Board hired MSAE to assist GCRC in its search for a new manager director. In April
2018, Cheryl Ronk, MSAE’s president at the time, met with the Board to discuss the manager-
director position. When Ronk asked the Board members if they wanted certain candidates to
automatically receive an interview with the Board, she was told that the Board “wanted all
candidates to go through the same process.” After discussion of the job description for the
manager-director posting, a proposed description was prepared and stated, in relevant part:
EDUCATION AND EXPERIENCE
Possession of a Bachelor’s Degree in a field related to job functions is required.
Preference is given towards Civil Engineering and similar disciplines. A Master’s
Degree will be considered an asset. [Emphasis added.]
Branch reviewed the proposed job description and realized he was disqualified from applying for
the manager-director position because he did not have a bachelor’s degree. Branch spoke to GCRC
Human Resources Director, Donna Poplar, who raised the issue at the next board meeting. The
Board ultimately agreed to modify the job description and remove the bachelor’s degree
requirement to accommodate Branch. The final job posting was altered to reflect:
EDUCATION OR EXPERIENCE
Possession of a Bachelor’s Degree in a field related to job functions is desired.
Preference is given towards Civil Engineering and similar disciplines. A Master’s
Degree will be considered an asset. [Emphasis added.]
Ronk received 95 applications, including from Branch and Peivandi. Ronk decided to
interview 15 of the candidates,1 including Branch and Peivandi, by phone. In June 2018, Ronk
interviewed Branch and decided he would not advance to the next round of interviews. One week
later, Ronk informed the Board she had “interviewed a number of wonderful candidates” and had
narrowed it down to seven candidates for interviews with the Board. The finalists were: (1) Mark
Riley, (2) Mary Gillis, (3) Thomas Diener, (4) Peivandi, (5) Curt Carlson, (6) Haithem Aboujrad,
and (7) Neil McGinn. All finalists had bachelor’s degrees and some combination of a master’s
degree, engineering experience, and/or a management background. While Dickerson testified it
“took [him] by surprise” that Branch had not been selected to interview, Dickerson did not attempt
to halt the interview process or motion for Branch to receive an interview. The remaining board
members did not expressly question Branch’s absence from the list of interviewees.
1
Although meeting minutes from a June 2018 board meeting state that Ronk interviewed 25
candidates by phone, an e-mail written by Ronk to the Board stated that she identified 15
candidates to interview by phone.
-2-
McGinn withdrew his application, and the Board interviewed the six remaining candidates.
The Board then narrowed its selection to three candidates for a final interview: (1) Riley, an
African-American male; (2) Gillis, a Caucasian female; and (3) Peivandi. Following interviews
with these three candidates, the Board unanimously decided to offer Peivandi the position. Riley
was the Board’s second choice. After Peivandi requested a $5,000 increase in the yearly salary,
Ronk reminded the Board that Riley was still a potential candidate for the position. Dickerson
questioned why Branch did not interview before the Board. According to meeting notes, Ronk
responded that it was her decision. Ronk stated she “did not hear any enthusiasm or energy, [or]
passion to be managing director” from Branch during the phone interview. A majority of the board
agreed to offer Peivandi the increased yearly salary. Dickerson opposed increasing the salary, but
did not oppose Peivandi being appointed manager director. Peivandi accepted the manager-
director position. The Board “reappointed” Branch to his previous position as director of
maintenance and gave him another raise above what he earned as co-interim manager director.
In September 2018, Branch filed a complaint against GCRC with the Equal Employment
Opportunity Commission (EEOC), alleging that he was denied a promotion because of his race in
violation of Title VII of the federal Civil Rights Act, 42 USC 2000e et seq. The EEOC investigated
and ultimately closed Branch’s complaint because the EEOC was “unable to conclude that the
information obtained establishes violations of the statutes.” Branch then filed this lawsuit against
GCRC and MSAE, alleging that he was not permitted to interview for the manager-director
position because of his race in violation of the CRA. Branch alleged that GCRC “delegated”
authority to MSAE, which screened and selected applicants for the manager-director position.
GCRC and MSAE filed answers to the complaint and generally denied liability. Discovery
commenced.
GCRC and MSAE later moved for summary disposition under MCR 2.116(C)(10), arguing
Branch could not establish a prima facie case of discrimination. MSAE specifically argued that
Ronk’s decision not to select Branch to be one of the seven applicants interviewed by the Board
did not constitute an adverse employment action because MSAE did not prevent the Board from
interviewing or hiring him. Branch opposed the motions, arguing genuine issues of material fact
on his prima facie case of discrimination existed for trial. The trial court heard oral argument on
the motions, and the parties argued consistently with their briefs.
Before the trial court issued a decision, the parties participated in case evaluation. The case
evaluation panel proposed an award of $20,000 in favor of Branch with respect to his claim against
GCRC, and $20,000 in favor of Branch with respect to his claim against MSAE. Branch rejected
the proposed awards. GCRC rejected the proposed award, and MSAE accepted the proposed
award.
In a September 2021 opinion and order, the trial court granted summary disposition in favor
of defendants. As to MSAE, the trial court concluded that Ronk’s exclusion of Branch from the
list of recommended interviewees was not an adverse employment action because “Ronk did not
have the authority to make an ultimate employment decision regarding [Branch].” The trial court
noted that the terms of the agreement between GCRC and MSAE expressly provided that GCRC
was solely responsible for making the final hiring decision. Thus, the trial court held that Branch
failed to establish a prima facie case of race discrimination against MSAE and that dismissal of
Branch’s claim against MSAE was proper. The trial court also found it was proper to dismiss
-3-
Branch’s claim against GCRC because he failed to create a genuine issue of material fact to support
an inference of unlawful discrimination. The trial court found “[t]he final group of candidates
was . . . diverse, including individuals with educational credentials [Branch] simply did not
possess.” The court noted that although the Board agreed to remove “the educational component
as a requirement,” “a degreed individual in the Manager-Director position remained a desirable
trait to some of the Board members.” The trial court also emphasized that “a finalist, and
ultimately the second choice for the Board, was an African American male.” Therefore, the trial
court found that Branch failed to establish a prima facie case of race discrimination against GCRC.
The appeal in Docket No. 358989 followed.
In October 2021, MSAE moved for case evaluation sanctions and taxable costs. Branch
opposed the motion, arguing that the interest-of-justice exception applied because the case
presented “unusual circumstances” and the law was unsettled. The trial court disagreed with
Branch and granted MSAE’s motion in the amount of $7,673.88. The appeal in Docket No.
359634 followed. This Court consolidated the appeals.2
II. SUMMARY DISPOSITION
Branch argues the trial court erred by granting summary disposition in favor of MSAE and
GCRC.
A. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Glasker-
Davis v Auvenshine, 333 Mich App 222, 229; 964 NW2d 809 (2020). “De novo review means
that we review the legal issue independently” and without deference to the trial court. Wright v
Genesee Co, 504 Mich 410, 417; 934 NW2d 805 (2019).
A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim.
Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a
matter of law. In reviewing a motion under MCR 2.116(C)(10), this Court
considers the pleadings, admissions, affidavits, and other relevant documentary
evidence of record in the light most favorable to the nonmoving party to determine
whether any genuine issue of material fact exists to warrant a trial. A genuine issue
of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ.
[Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266 (2013) (quotations
marks and citations omitted).]
The moving party bears the initial burden of production, which may be satisfied “in one of two
ways.” Quinto v Cross & Peters Co, 451 Mich 358, 361; 547 NW2d 314 (1996). “First, the moving
party may submit affirmative evidence that negates an essential element of the nonmoving party’s
2
Branch v Genesee Co Rd Comm, unpublished order of the Court of Appeals, entered December
28, 2021 (Docket Nos. 358989 and 359634).
-4-
claim. Second, the moving party may demonstrate to the court that the nonmoving party’s
evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Id. at
362 (quotation marks and citation omitted). Once the moving party satisfies its burden in one of
those two ways, “[t]he burden then shifts to the opposing party to establish that a genuine issue of
disputed fact exists.” Id. In considering a motion for summary disposition, “[t]he trial court is not
permitted to assess credibility, weigh the evidence, or resolve factual disputes.” Pioneer State Mut
Ins Co v Dells, 301 Mich App 368, 377; 836 NW2d 257 (2013).
B. ANALYSIS
Branch first argues that the trial court erred by granting summary disposition in favor of
MSAE on Branch’s claim of race discrimination under the CRA.
The CRA provides that an “employer” shall not “[f]ail or refuse to hire or recruit, discharge,
or otherwise discriminate against an individual with respect to employment, compensation, or a
term, condition, or privilege of employment, because of . . . race . . . .” MCL 37.2202(1)(a). In
this case, the undisputed evidence establishes that MSAE was not Branch’s employer. Instead,
MSAE was hired to assist the Board with finding the appropriate candidate for the vacant manager-
director position. Nevertheless, the language of MCL 37.2202 “forbids any employer from
engaging in acts of discrimination that are prohibited by the CRA” and “appears to clearly envision
claims by nonemployees . . . .” McClements v Ford Motor Co, 473 Mich 373, 386; 702 NW2d
166 (2005). While nonemployee claims may be viable, “the language of the statute is also clear
in requiring some form of nexus or connection between the employer and the status of the
nonemployee.” Id.
In other words, an employer is liable under the CRA when it utilizes a prohibited
characteristic in order to adversely affect or control an individual’s employment or
potential employment. Thus, the key to liability under the CRA is not simply the
status of an individual as an “employee”; rather, liability is contingent upon the
employer’s affecting or controlling that individual’s work status. Accordingly, an
employer can be held liable under the CRA for discriminatory acts against a
nonemployee if the nonemployee can demonstrate that the employer affected or
controlled a term, condition, or privilege of the nonemployee’s employment. [Id.
at 386-387.]
Thus, because Branch was a nonemployee of MSAE, the relevant threshold question for Branch’s
CRA suit against MSAE is whether MSAE “affected or controlled a term, condition, or privilege
of [Branch’s] employment.” See id. at 387.
While it is clear the Board could decide who to interview and hire, Ronk provided the
Board with a list of initial candidates to interview. Branch was not included on the list. Ronk
denied the Board directed her toward any particular candidates or instructed her to grant “courtesy
interviews.” Rather, Ronk compiled the list herself after conducting preliminary interviews and
later noted it was her decision not to recommend Branch to the Board. Importantly, Mandelaris
testified: “We relied on [MSAE] to refer to us those applicants that [MSAE] decided were the most
qualified. Anthony Branch’s name never came up during that period of time.” The Board was
unaware that Ronk did not select Branch for an interview with the Board until the interview process
-5-
had commenced, which supports the conclusion that Ronk “affected or controlled a term,
condition, or privilege of [Branch’s] employment.” See McClements, 473 Mich at 387.
Branch testified at his deposition that Ronk informed him after his phone interview that he
“would not be advancing to the next round” because “the board and the employees wanted to go
in another direction.” Assuming without deciding that this alleged statement by Ronk is
substantively admissible evidence that may be considered when reviewing a (C)(10) motion, see
MCR 2.116(G)(6), at most it creates a genuine issue of material fact. Ronk did not recall making
such a statement to Branch, and other admissible evidence established that Ronk decided alone
that Branch should not advance to the second round of interviews. While Dickerson was surprised
to find out at the first round of Board interviews that Branch was not selected, Dickerson thought
they were “too far in the process” to offer an interview to Branch. Thus, although the Board still
could have chosen to interview Branch for the manager-director position, admissible evidence
supports that the Board played no role in Ronk’s decision that Branch would not advance to an
interview with the Board. When viewing this evidence in a light most favorable to Branch, a
question of fact exists as to whether MSAE, through Ronk, affected or controlled Branch’s ability
to be hired as manager director. See McClements, 473 Mich at 387. Accordingly, Branch was not
precluded from suing MSAE for race discrimination under the CRA. The question then turns to
whether MSAE and GCRC were otherwise entitled to summary disposition on Branch’s claims.
As stated earlier, the CRA provides that an “employer” shall not “[f]ail or refuse to hire or
recruit, discharge, or otherwise discriminate against an individual with respect to employment,
compensation, or a term, condition, or privilege of employment, because of . . . race . . . .” MCL
37.2202(1)(a). Branch alleges that MSAE and GCRC violated the CRA by failing to consider him
for the manager-director position because of his race.
“Proof of discriminatory treatment in violation of the CRA may be established by direct
evidence or by indirect or circumstantial evidence.” Sniecinski v Blue Cross & Blue Shield of
Mich, 469 Mich 124, 132; 666 NW2d 186 (2003). Branch did not allege that he had direct evidence
of race discrimination. Without direct evidence of discrimination, a plaintiff must instead proceed
under the burden-shifting framework of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct
1817; 36 L Ed 2d 668 (1973). Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001).
“The McDonnell Douglas approach allows a plaintiff to present a rebuttable prima facie case on
the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful
discrimination.” Id. (quotation marks and citation omitted). To make this prima facie showing,
“a plaintiff must present evidence that (1) [he] belongs to a protected class, (2) [he] suffered an
adverse employment action, (3) [he] was qualified for the position, and (4) [his] failure to obtain
the position occurred under circumstances giving rise to an inference of unlawful discrimination.”
Sniecinski, 469 Mich at 134. If a plaintiff sufficiently establishes a prima facie case of
discrimination, a rebuttable presumption of discrimination exists. Hazle, 464 Mich at 464. The
burden then shifts to the defendant to “articulate a legitimate, nondiscriminatory reason for its
employment decision.” Id. If a defendant produces the necessary evidence, the burden shifts back
to the plaintiff to show that the reason offered by the defendant was pretextual for unlawful
discrimination. Id. at 465-466.
The trial court granted summary disposition in MSAE’s favor on the second element of the
prima facie case, concluding that no genuine issue of material fact existed as to whether MSAE
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took an adverse employment action because “Ronk did not have the authority to make an ultimate
employment decision” involving Branch. Branch argues that this was in error because Ronk
admitted that it was her decision alone to deny Branch an interview with the Board.
“There is no exhaustive list of what constitutes adverse employment actions.” Chen v
Wayne State Univ, 284 Mich App 172, 201; 771 NW2d 820 (2009). An adverse employment
action must be “materially adverse to the employee,” akin to “termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices that might be unique
to a particular situation.” Id. at 201-202 (quotation marks and citations omitted). Denial of a
promotion may also constitute an adverse employment action. See Hazle, 464 Mich at 467. In
MSAE’s view, however, Ronk’s decision to deny Branch an interview was not an adverse
employment action because GCRC retained the ultimate authority to interview and hire Branch.
Viewing the evidence in the light most favorable to Branch, Ronk’s choice not to select Branch
for an interview essentially guaranteed that Branch would not receive the manager-director
promotion, as the Board deferred to Ronk’s initial screening decisions. Under the circumstances
of this case, including the fact that Ronk testified that it was her decision to deny Branch an
interview, there is a genuine issue of material fact as to whether MSAE, through Ronk, took an
adverse employment action against Branch. Thus, the trial court erred by granting summary
disposition in MSAE’s favor on this basis. Nonetheless, for the reasons discussed below, summary
disposition in favor of MSAE was proper. See Gleason v Dep’t of Transp, 256 Mich App 1, 3;
662 NW2d 822 (2003) (“A trial court’s ruling may be upheld on appeal where the right result
issued, albeit for the wrong reason.”).
The parties do not dispute that Branch is a member of a protected class and that he was
qualified for the manager-director position. The remaining dispute rests on the fourth element—
whether Ronk’s decision not to allow Branch to interview with the Board and the Board’s decision
to hire Peivandi for the manager-director position give rise to an inference of unlawful
discrimination to sustain Branch’s claims against GCRC and MSAE. “An employer’s differing
treatment of employees who were similar to the plaintiff in all relevant respects, except for their
race, can give rise to an inference of unlawful discrimination.” Hecht v Nat’l Heritage Academies,
Inc, 499 Mich 586, 608; 886 NW2d 135 (2016). “In order for this type of ‘similarly situated’
evidence alone to give rise to such an inference, however, our cases have held that the ‘comparable’
employees must be ‘nearly identical’ to the plaintiff in all relevant respects.” Id., quoting Town v
Mich Bell Tel Co, 455 Mich 688, 699-700; 568 NW2d 64 (1997) (opinion by BRICKLEY, J.).
Although “a plaintiff is not required to provide evidence that he is at least as qualified as the
successful candidate in order to establish a prima facie case under McDonnell Douglas,” a plaintiff
also cannot make out a prima facie case
merely by showing that he was qualified for the position and that a nonminority
candidate was chosen instead. While a plaintiff is not required to show
circumstances giving rise to an inference of discrimination in any one specific
manner, the plaintiff’s burden of production remains to present evidence that the
employer’s actions, if otherwise unexplained, are more likely than not based on the
consideration of impermissible factors. In short, a plaintiff must offer evidence
showing something more than an isolated decision to reject a minority applicant.
As a matter of law, an inference of unlawful discrimination does not arise merely
-7-
because an employer has chosen between two qualified candidates. Under such a
scenario, an equally—if not more—reasonable inference would be that the
employer simply selected the candidate that it believed to be most qualified for the
position. [Hazle, 464 Mich at 470-471 (quotation marks, citations, and footnote
omitted).]
In this case, Branch failed to present evidence from which a jury, if unaware of defendants’
reasons, could infer unlawful discrimination with respect to the application and interview selection
process. The Board at first agreed the manager director must possess a bachelor’s degree “in a
field related to [the manager director’s] job functions.” Nonetheless, after a May 2018 meeting,
the Board changed the job description by removing the educational requirement so Branch would
not be excluded from consideration for the manager-director position. And after seeking advice
from Poplar about places to market the job opening, Ronk added two posting locations designed
to attract minority candidates.
Ronk received 95 applications, including one from Branch. Using the criteria established
by the Board, Ronk decided to interview 15 of the candidates by phone. During a 20-minute phone
interview with Branch, Ronk asked Branch multiple questions. In his deposition, Branch denied
Ronk did or said “anything during th[e] phone conversation that [he] had with her that led [Branch]
to believe that she was biased against African Americans.” Branch also acknowledged that Ronk,
who worked for an independent company not directly affiliated with GCRC, was a “stranger” to
him.
Further, the seven candidates chosen by Ronk for the Board to interview all had higher
levels of education than Branch, as well as management experience and/or an engineering
background. And of the three finalists, Peivandi had a bachelor’s degree and master’s degree in
civil engineering, Riley had a bachelor’s degree and master’s degree in business administration,
and Gillis had a bachelor’s degree in construction engineering and was pursuing a master’s degree
in public administration. Although the Board removed a bachelor’s degree as a requirement for
the manager-director position, the posting noted that a bachelor’s degree remained a desired
qualification, and expressed a preference for individuals with a civil engineering background and
master’s degree. Ronk could consider these educational and experience-based qualifications when
screening applicants, and the Board was just as empowered to so when choosing between
interviewees. After the final round of interviews, the Board discussed the candidates at length and
unanimously decided to offer Peivandi the position, with Riley as the Board’s second choice.
Thus, even when taking the evidence in a light most favorable to Branch, the record
establishes GCRC changed the job description to ensure Branch could be considered for the
manager-director position. Branch does not argue the seven candidates MSAE forwarded to
GCRC were not qualified—nor could he—but only that he was more qualified because of his level
of experience with GCRC. When it came to experience, however, Branch did not so exceed the
selected candidates as to give rise to the inference that MSAE excluded him from the hiring pool
based on impermissible factors. While Branch had more years of experience with GCRC than any
other candidate, the record reflects that Ronk chose individuals who had higher levels of education
than Branch and candidates who had management experience. In situations such as this one, where
there were multiple qualified candidates, it is equally, if not more reasonable to infer that Ronk
selected the candidates she believed to be best qualified for the position of manager director than
-8-
that she excluded Branch from the candidate pool based on unlawful discrimination. See Hazle,
464 Mich at 471.
Further undermining any inference of unlawful discrimination is that the fact that Riley,
the Board’s second choice for the position, is a member of the same protected class as Branch.
See Lytle v Malady, 458 Mich 153, 184; 579 NW2d 906 (1998) (finding no evidence that gender
was a factor in the plaintiff’s discharge in part because some of her duties were redistributed to
members of the same protected class). Although Branch argues that Riley was only interviewed
by the Board to avoid claims of race discrimination, this assertion is speculative, unsupported by
evidence, and insufficient to create a genuine issue of material fact. See McNeill-Marks v
Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 16; 891 NW2d 528 (2016). While Poplar later
alleged Riley had been disingenuous about his level of management experience, the undisputed
evidence establishes the Board was unaware of this issue until after Peivandi was selected to be
manager director. The Board ranked Riley as their second choice for manager director, and
Peivandi inquired into hiring Riley for a high-level management position, at which point Poplar
discovered issues with Riley’s resume. Because Riley’s resume supports he was qualified for the
manager-director position and because the Board considered him to be a qualified and impressive
candidate, Branch’s allegations that Riley was interviewed solely to conceal the Board’s
discriminatory intent do not create a genuine issue of material fact. See Hazle, 464 Mich at 474-
475 (holding “any subsequently discovered shortcomings” in a candidate’s application materials
“calling into question her qualification” could not “possibly serve as a basis for an inference of
unlawful discrimination”).
In urging this Court to recognize a genuine issue of material fact, Branch also relies on
deposition testimony about general discrimination among the GCRC. For instance, Poplar testified
that a discriminatory “mindset” led Ronk and the Board to eliminate Branch from consideration.
Poplar and Dickerson testified that Johnson told them that Arceo was a racist, and Branch testified
that Daly told him that Arceo does not like African-Americans. Dickerson believed Branch was
more qualified than Peivandi and opined that Branch’s race played a role in Branch not receiving
the manager-director position. These assertions, again, rely on speculation, and are unsupported
by admissible evidence. Considering that the Board changed the job description to accommodate
Branch, that the final candidates for the manager-director position all had higher educational
qualifications than Branch, and that the runner-up selection was another African-American male,
the conclusory opinions of discrimination are insufficient to create a genuine issue of material fact.
Branch has not set forth a prima facie case from which a reasonable fact-finder could infer that he
was denied an interview and promotion because of his race. Viewed in the light most favorable to
Branch, the evidence evinces only an “isolated decision to reject a minority applicant.” See Hazle,
464 Mich at 471. Accordingly, summary disposition in favor of MSAE and GCRC was proper.
III. CASE-EVALUATION SANCTIONS
In Docket No. 359634, Branch argues that the trial court erred by awarding case-evaluation
sanctions to MSAE.
-9-
A. STANDARDS OF REVIEW
“A trial court’s decision whether to grant case-evaluation sanctions under MCR 2.403(O)
presents a question of law, which this Court reviews de novo.” Smith v Khouri, 481 Mich 519,
526; 751 NW2d 472 (2008). We review a trial court’s decision to invoke the interest-of-justice
exception for an abuse of discretion. Sabbagh v Hamilton Psychological Servs, PLC, 329 Mich
App 324, 364; 941 NW2d 685 (2019). An abuse of discretion occurs when the trial court’s
decision falls outside the range of reasonable and principled outcomes. Id. at 355-356.
B. ANALYSIS
Parties to case evaluation must “file a written acceptance or rejection of the panel’s
evaluation with the [alternative dispute resolution] clerk within 28 days after service of the panel’s
evaluation.” MCR 2.403(L)(1). “If all the parties accept the panel’s evaluation, judgment will be
entered in accordance with the evaluation, unless the amount of the award is paid within 28 days
after notification of the acceptances, in which case the court shall dismiss the action with
prejudice.” MCR 2.403(M)(1). “If all or part of the evaluation of the case evaluation panel is
rejected, the action proceeds to trial in the normal fashion.” MCR 2.403(N)(1).
MCR 2.403(O)(1), which was in effect at the time of case evaluation,3 explained when
costs may be assessed for failure to accept a case-evaluation award:
If a party has rejected an evaluation and the action proceeds to verdict, that
party must pay the opposing party’s actual costs unless the verdict is more favorable
to the rejecting party than the case evaluation. However, if the opposing party has
also rejected the evaluation, a party is entitled to costs only if the verdict is more
favorable to that party than the case evaluation.
The term “verdict” includes “a judgment entered as a result of a ruling on a motion after rejection
of the case evaluation.” MCR 2.403(O)(2)(c). “[A]ctual costs” include “those costs taxable in any
civil action,” and “a reasonable attorney fee . . . for services necessitated by the rejection of the
case evaluation.” MCR 2.403(O)(6).
In May 2021, the parties participated in case evaluation. The case-evaluation panel
recommended a proposed award of $20,000 in favor of Branch with respect to his claim against
MSAE. Branch rejected the proposed award, and MSAE accepted the proposed award. In
September 2021, the trial court granted MSAE’s motion for summary disposition and dismissed
the case. Dismissal of Branch’s claim constituted a verdict under MCR 2.403(O)(2)(c) and was
clearly less favorable to Branch than receiving $20,000. Thus, MSAE was entitled to case-
evaluation sanctions, including reasonable attorney fees and taxable costs. See MCR 2.403(O)(1).
The trial court granted MSAE’s motion for case-evaluation sanctions and taxable costs.
3
MCR 2.403 was amended in 2022 to omit all of MCR 2.403(O). The trial court granted MSAE’s
motion for case evaluation sanctions in November 2021, while MCR 2.403(O) remained in effect.
-10-
Branch, however, argues that the trial court abused its discretion by declining to apply the
interest-of-justice exception, which would have allowed Branch to avoid otherwise mandatory
case-evaluation sanctions. “If the ‘verdict’ is the result of a motion as provided by subrule
(O)(2)(c), the court may, in the interest of justice, refuse to award actual costs.” MCR
2.403(O)(11). “The interest-of-justice exception found in MCR 2.403(O)(11) has been interpreted
in the context of the analogous offer-of-judgment rule, MCR 2.405(D), because both serve
identical purposes of deterring protracted litigation and encouraging settlement.” Sabbagh, 329
Mich App at 365 (quotation marks, citation, and alteration omitted). In accordance with that
application, the interest of justice does not preclude an award of actual costs absent “unusual
circumstances.” See Derderian v Genesys Health Care Sys, 263 Mich App 364, 390; 689 NW2d
145 (2004) (quotation marks and citation omitted). That is, “a grant of fees . . . should be the rule
rather than the exception.” Id. (quotation marks and citation omitted).
Factors such as the reasonableness of the offeree’s refusal of the offer, the
party’s ability to pay, and the fact that the claim was not frivolous are too common
to constitute the unusual circumstances encompassed by the interest of justice
exception. However, the exception may be applicable when an offer is made in the
spirit of gamesmanship . . ., rather than a sincere effort at negotiation, or when
litigation of the case affects the public interest, such as a case resolving an issue of
first impression. [Id. (quotation marks and citations omitted).]
While the trial court erred by failing to recognize there was a question of fact as to whether MSAE
took an adverse employment action against Branch, the trial court’s error does not transform this
case into one involving “unusual circumstances,” nor does this case present an issue of first
impression. Nearly every case presents, in some way, a unique set of facts to apply to the
governing law. But here, the relevant law is well settled: McClements makes clear that the CRA
can apply to nonemployees, and the cases applying the McDonnell-Douglas test to CRA
discrimination claims are commonplace. The circumstances of this case are not “so unusual as to
compel” a conclusion that the trial court’s refusal to invoke the interest-of-justice exception was
an unreasonable outcome. See Haliw v Sterling Hts (On Remand), 266 Mich App 444, 450; 702
NW2d 637 (2005). Thus, the trial court did not abuse its discretion by declining to apply the
interest-of-justice exception and by awarding case-evaluation sanctions to MSAE.
IV. CONCLUSION
In Docket No. 358989, we affirm the trial court’s order granting summary disposition in
favor of MSAE and GCRC. In Docket No. 359634, we affirm the trial court’s order awarding
case-evaluation sanctions to MSAE.
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
-11- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483288/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TRAVIS H. ANDERSON, UNPUBLISHED
November 10, 2022
Claimant-Appellant,
v No. 357295
Kalamazoo Circuit Court
WRIGHT COATING COMPANY, INC., LC No. 2020-000459-AE
Respondent-Appellee,
and
DEPARTMENT OF LABOR AND ECONOMIC
OPPORTUNITY / UNEMPLOYMENT
INSURANCE AGENCY,
Appellee.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Claimant, Travis H. Anderson, appeals by leave granted1 the circuit court’s order affirming
the decision of the Michigan Unemployment Insurance Appeals Commission (the Commission)
that Anderson had voluntarily quit his employment and was therefore ineligible to receive
unemployment benefits. We affirm.
I. BACKGROUND
To give context to our discussion of the substantive and procedural facts, we begin with a
recitation of the relevant statutory provision in this case, MCL 421.29(1)(a), which provides,
1
Anderson v Wright Coating Co, Inc, unpublished order of the Court of Appeals, entered
October 8, 2021 (Docket No. 357295).
-1-
subject to an inapplicable exception, that an individual is disqualified from receiving
unemployment benefits if the person:
Left work voluntarily without good cause attributable to the employer or
employing unit. An individual who left work is presumed to have left work
voluntarily without good cause attributable to the employer or employing unit. An
individual who is absent from work for a period of 3 consecutive work days or more
without contacting the employer in a manner acceptable to the employer and of
which the individual was informed at the time of hire is considered to have
voluntarily left work without good cause attributable to the employer. . . . An
individual claiming benefits under this act has the burden of proof to establish that
he or she left work involuntarily or for good cause that was attributable to the
employer or employing unit.
In April 2020, Anderson worked as a forklift operator at respondent, Wright Coating
Company, Inc. (WCC). Anderson refused to wear the company-provided facemask in accordance
with WCC’s COVID-19 policy, and he was suspended from work for several days. When
Anderson returned to work on April 27, 2020, he met with Kent Rudlaff, a manager at WCC, about
the suspension. At WCC, employees accumulate demerit points for misconduct, and a total of 14
points is grounds for termination. At the meeting on the morning of April 27, Rudlaff informed
Anderson that he would be receiving demerit points for the days that he was suspended, which
angered Anderson. At this point, the parties disagree about what transpired next. Anderson
testified that he was upset after the meeting and decided to leave work early that day—he left mid-
shift. Anderson claimed that he spoke with several people, including Rudlaff, about leaving early
and that he believed that he had permission to leave. Anderson also testified that he checked with
the human resources department (HR) to make sure that he would not be at risk of termination if
he accumulated another half demerit point for leaving work early. Rudlaff testified, however, that
he did not speak with Anderson after the meeting and that no one representing WCC gave
Anderson permission to leave. When Anderson returned to work the next day, Rudlaff told him
that WCC took the position that Anderson had abandoned his job and quit when he left early the
previous day. WCC did not fire or terminate Anderson because he had left work; rather, WCC
would not allow Anderson to return to work because he had quit his job.
Anderson filed for unemployment benefits with appellee, Michigan Department of Labor
and Economic Opportunity / Unemployment Insurance Agency (the Agency). Anderson initially
received a determination by the Agency that he was eligible to receive unemployment benefits
because he had been terminated by WCC. But the Agency later sent Anderson a determination
that he was ineligible for benefits because Anderson had voluntarily quit his job with WCC in
accordance with MCL 421.29(1)(a). Anderson formally protested the determination of
ineligibility, but the Agency affirmed its determination. Anderson appealed the determination of
ineligibility to the Michigan Department of Licensing and Regulatory Affairs. A phone hearing
was conducted by an administrative law judge (ALJ). Anderson, HR manager Jodi Bohnsack, and
Rudlaff participated in the hearing. The testimony alluded to earlier was elicited at this hearing.
According to Anderson, he spoke to his line supervisor about leaving early on April 27,
2020, as well as to Rudlaff and an individual in HR named Molly. The ALJ did not find
Anderson’s testimony credible, explaining that Anderson waffled a little when asked whether he
-2-
had permission to leave and that Rudlaff testified that he did not even speak to Anderson after the
morning meeting. The ALJ also noted Rudlaff’s testimony that WCC’s handbook policy stated
that an employee is considered to have quit if he or she leaves work without permission. The ALJ
recognized that Rudlaff did not have a specific discussion with Anderson in which it was
communicated to Anderson that leaving early absent permission was the equivalent of voluntarily
quitting.
The ALJ determined that Anderson may have received acknowledgment that he was
leaving, but that acknowledgment was not the same as being granted permission to leave. The ALJ
found that “[w]hen an employee walks off the job without permission, particularly under
circumstances such as this—where the claimant took the time to calculate points, etc[.], the
employer is entitled to consider it job abandonment.” The ALJ concluded that Anderson had
voluntarily quit his job, and the ALJ thus affirmed the Agency’s decision that Anderson was not
eligible to receive unemployment benefits pursuant to MCL 421.29(1)(a). Anderson appealed the
ALJ’s determination to the Commission, which affirmed the ruling.
Anderson proceeded to appeal the Commission’s decision to the circuit court. Anderson
argued that the Commission’s ruling was contrary to law and not supported by competent, material,
and substantial evidence. Anderson contended that the Commission erred when it determined that
Anderson had voluntarily left his employment because the only scenario under the statute in which
an individual can be deemed to have voluntarily left his or her employment is when the person
goes three consecutive work days or more without contacting the employer. According to
Anderson, he only left work for half a day, and even if permission were lacking, it was an error of
law to conclude that he voluntarily left his employment under the language in MCL 421.29(1)(a).
The Agency maintained that the ineligibility determination should be affirmed because it was
consistent with law and supported by the record.
The circuit court affirmed the Commission’s decision. The court noted that the testimony
of the parties presented to the ALJ varied drastically and that the ALJ had credited the testimony
of WCC’s employees. The circuit court accorded deference to that decision and concluded that
there was sufficient evidentiary support for the ALJ’s factual findings. The circuit court analyzed
whether Anderson had voluntarily left work without good cause attributable to his employer. The
circuit court determined that the scenario set forth in MCL 421.29(1)(a)—being absent from work
for three or more consecutive work days without contacting the employer—was just one but not
the only manner in which an individual could voluntarily leave work or quit without good cause
attributable to the employer. The circuit court therefore concluded that the Commission’s decision
that Anderson voluntarily left work, i.e., voluntarily quit, without good cause attributable to his
employer was supported by competent, material, and substantial evidence, and it affirmed the
Commission’s ruling. Anderson appeals by leave granted.
II. ANALYSIS
On appeal, Anderson argues that the circuit court’s conclusion that he voluntarily quit or
abandoned his job constituted legal error.
-3-
A. STANDARDS OF REVIEW
In Hodge v US Security Assoc, Inc, 497 Mich 189, 193-194; 859 NW2d 683 (2015), our
Supreme Court enunciated the standards of review governing unemployment-benefit cases:
Michigan’s Constitution sets forth the guiding principles of how courts
should review a decision of an administrative body. It provides:
“All final decisions, findings, rulings and orders of any administrative
officer or agency existing under the constitution or by law, which are judicial or
quasi-judicial and affect private rights or licenses, shall be subject to direct review
by the courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
are supported by competent, material and substantial evidence on the whole
record.”
Consistent with this provision, the Michigan Employment Security Act,
MCL 421.1 et seq., expressly provides for the direct review of unemployment
benefit claims. Specifically, MCL 421.34 addresses an appeal from an ALJ to the
MCAC.[2] MCL 421.38 then addresses an appeal from the MCAC to a circuit court:
“The circuit court . . . may review questions of fact and law on the record
made before the administrative law judge and the Michigan compensation appellate
commission involved in a final order or decision of the [MCAC], . . . but the
[circuit] court may reverse an order or decision only if it finds that the order or
decision is contrary to law or is not supported by competent, material, and
substantial evidence on the whole record.”
Using this standard, a circuit court must affirm a decision of the ALJ and
the MCAC if it conforms to the law, and if competent, material, and substantial
evidence supports it. A reviewing court is not at liberty to substitute its own
judgment for a decision of the MCAC that is supported with substantial evidence.
The Court of Appeals then reviews a circuit court’s decision to determine whether
the lower court applied correct legal principles and whether it misapprehended or
misapplied the substantial evidence test to the agency’s factual findings.
[Quotation marks and citations omitted; alterations in original.]
An “ALJ’s credibility determinations and weighing of the evidence are entitled to deference.”
Shahid v Dep’t of Health & Human Servs, 333 Mich App 267, 274; 963 NW2d 638 (2020). We
2
MCAC stood for the Michigan Compensation Appellate Commission, which, under Executive
Order No. 2019-13, became, in part, the Michigan Unemployment Insurance Appeals
Commission, which we have been referring to as the Commission.
-4-
review de novo issues of statutory construction. Mericka v Dep’t of Community Health, 283 Mich
App 29, 36; 770 NW2d 24 (2009).
B. DISCUSSION AND RESOLUTION
The Michigan Supreme Court has interpreted the phrase “left work voluntarily” as used in
MCL 421.29(1)(a) to be synonymous with quitting a job voluntarily. Wickey v Appeal Bd of Mich
Employment Security Comm, 369 Mich 487, 499-500; 120 NW2d 181 (1963). This Court has
observed that a “voluntary departure is an intentional act.” McArthur v Borman’s Inc, 200 Mich
App 686, 690; 505 NW2d 32 (1993). When a person leaves work voluntarily, it means that the
individual left under his or her own volition and not that the person was discharged. Id. at 691.
Thus, the threshold question is “whether the claimant voluntarily quit the job[] or was
discharged . . . .” Clarke v North Detroit Gen Hosp, 437 Mich 280, 285; 470 NW2d 393 (1991).
In Warren v Caro Community Hosp, 457 Mich 361, 366-367; 579 NW2d 343 (1998), our Supreme
Court stated:
[W]e continue to hold that whether a person is entitled to unemployment
benefits is a two-part inquiry. Under the first prong, we must determine whether
plaintiff voluntarily left her position. If we find that she left her position
involuntarily, the inquiry ends and she is entitled to unemployment compensation.
Whether a person left voluntarily will depend on the particular facts and
circumstances of the case. However, if the court finds that plaintiff left her position
voluntarily, we must advance to prong two to determine whether her leaving was
“without good cause attributable to the employer.”
We note that this case does not involve any accusation by WCC of constructive voluntary
leaving, which has been rejected as a basis to deny unemployment benefits. See Thomas v
Employment Security Comm, 356 Mich 665, 669; 97 NW2d 784 (1959); Ackerberg v Grant
Community Hosp, 138 Mich App 295, 299-300; 360 NW2d 599 (1984).3 Furthermore, we
3
In Thomas, 356 Mich at 669, the Supreme Court explained and rebuffed the concept of
constructive voluntary leaving:
Had claimant left his work voluntarily? Employer says that, although
claimant knew the law required an operator’s license for driving, he deliberately
drove his automobile without one, that he thus voluntarily assumed the risk of
arrest, conviction and imprisonment, resulting in the necessity of absenting himself
from work, and that this was the equivalent of leaving his work voluntarily. More
concisely stated, it is employer’s position that an employee has left his work
voluntarily if he has done a voluntary act which he knew could and which later did,
in fact, cause his absence from work.
The voluntary assumption of a risk which an employee knows may, but he
trusts and assumes will not, keep him from work is not the voluntary leaving of his
work. Doing an act, even though voluntarily, which results, contrary to the doer’s
-5-
emphasize the second sentence in MCL 421.29(1)(a), which provides that “[a]n individual who
left work is presumed to have left work voluntarily without good cause attributable to the employer
or employing unit.” (Emphasis added.) This language was not part of MCL 421.29(1)(a) until
2002. See 2002 PA 192. And it creates a presumption that an employee who left work did so
voluntarily absent good cause. In other words, there is a statutory presumption that the employee
voluntarily quit if he or she left work.
Within the analytical framework discussed above, we hold that the circuit court applied
correct legal principles and did not misapprehend or misapply the substantial evidence test.
Hodge, 497 Mich at 193-194. Although Anderson claimed that he did not quit and that he did not
intend to quit, the ALJ did not find Anderson’s testimony in that respect credible. Similarly, while
Anderson contended that he spoke to several people about leaving early, including Rudlaff, and
that he believed that he had permission to leave, the ALJ credited the testimony that contradicted
Anderson’s assertions and discounted Anderson’s testimony. We defer to the ALJ’s credibility
assessments. Shahid, 333 Mich App at 274. Deferring to those assessments, we must conclude
that the circumstances effectively entailed Anderson’s walking away from his job in the middle of
his shift. Then, a reasonable inference arising from such circumstances is that Anderson
abandoned or quit his job. The fact that Anderson returned the next day as if nothing had happened
does not erase his conduct from the previous day and establish that he had not quit. He may very
well have regretted his actions in leaving work, which reasonably indicated that he had abandoned
his job, and then attempted to walk-back his decision by simply returning and resuming his job.
We cannot conclude that Anderson satisfied his burden of proof, let alone that he overcame the
statutory presumption, by demonstrating that he did not quit, such that there was a
misapprehension or misapplication of the substantial evidence test, keeping in mind the deference
given to credibility determinations. And there is no evidentiary basis to countermand the finding
that WCC did not discharge Anderson.
It is necessary for us to address Jenkins v Appeal Bd of the Mich Employment Security
Comm, 364 Mich 379; 110 NW2d 899 (1961), in which, by equal division, our Supreme Court
affirmed the trial court’s ruling denying unemployment benefits to the claimant. To the extent that
the lead opinion in Jenkins governs our legal analysis, the instant case is distinguishable. In
Jenkins, the claimant left work four hours early on Christmas Eve without express permission and
with the understanding that he would forfeit holiday pay, and he then reported for work at the usual
starting time on the next regularly scheduled work day and was promptly discharged. Id. at 380-
381. Although the circuit court’s ruling denying unemployment benefits was effectively upheld,
the lead opinion concluded:
hopes, wishes and intent, in his being kept forcibly from his work is not the same
as voluntarily leaving his work. The statute mentions the latter, but not the former,
as an act disqualifying for benefits. [W]e are not as yet prepared to accept and
apply the doctrine of constructive voluntary leaving[.] [Quotation marks, citation,
and ellipsis omitted.]
-6-
It is abundantly clear on this record that the claimant did not quit, but was
fired. There is not a scintilla of proof that he was ever presented with an either-or
choice, either stay on the job or lose it. Absence was related to holiday pay, not to
discharge. [Id. at 387.]
In this case, a presumption applied that did not exist when Jenkins was issued. Moreover,
here, the credited evidence was that there was no discussion of Anderson being penalized for
leaving work early, termination or otherwise, as compared to Jenkins, wherein the claimant was
told, apparently without dispute, that he would simply lose holiday pay at most for leaving early.
Additionally, although a subtle point, the claimant in Jenkins was actually discharged or fired by
his employer when he returned to work, but in this case WCC merely informed Anderson that he
could not return because the day before he had quit his job.
In sum, we conclude that the circuit court properly determined that the Commission’s
decision was not contrary to law and was supported by competent, material, and substantial
evidence on the whole record. Accordingly, the circuit court applied correct legal principles and
did not misapprehend or misapply the substantial evidence test.
We affirm.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-7- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483337/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
November 10, 2022
Plaintiff-Appellee,
v No. 357976
Ottawa Circuit Court
CARA CHRISTINE BOWDEN, LC No. 21-044535-AR
Defendant-Appellant.
Before: BORRELLO, P.J., and M. J. KELLY and REDFORD, JJ.
REDFORD, J. (dissenting)
From the majority opinion I respectfully dissent. I conclude that the circuit court correctly
affirmed the district court’s order qualifying Deputy Schaller as an expert Drug Recognition
Evaluator (DRE) permitted to provide an opinion whether defendant operated her vehicle under
the influence of marijuana to a degree that rendered her unsafe to drive. Defendant argues that
Deputy Schaller should be precluded from testifying regarding her impairment because the DRE
protocols do not permit detection of impairment with absolute scientific certainty. The majority
agrees that his testimony should be precluded because the studies on which the prosecution relied
only validated the DRE protocol’s accuracy in determining the presence of a substance in a
subject’s blood but did not validate the DRE protocol for determining a subject’s degree of
impairment. I disagree because evidence established that Deputy Schaller can reliably use the
DRE protocol as an investigative tool among others to detect a person’s impairment and inability
to safely drive a motor vehicle because of marijuana use.
I. FACTUAL BACKGROUND
Deputy Schaller testified that he worked as a deputy safety officer of the Ottawa County
Sheriff’s Office since 2004 primarily as a road patrol officer. He received training in standardized
field sobriety tests (SFSTs) at the police academy, later became Advanced Roadside Impaired
Driving Enforcement (ARIDE) certified, and became certified as a DRE after 80 hours of
classroom work involving instruction in medical conditions, observable signs of drug impairment
from different drugs, followed by fieldwork in which he performed tests on subjects and a final
examination. He testified that he did 12 DRE evaluations during his training and 4 additional
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evaluations during 2019, 45 evaluations in 2020, and had done 3 so far in 2021. He entered his
evaluations into the National Highway Traffic Safety Administration’s (NHTSA) data tracking
website which verified his evaluations as 97% accurate.
Following defendant’s arrest, Deputy Schaller conducted on defendant the 12-step DRE
protocol. Deputy Schaller testified that the DRE protocol aids in determining the category of drug
of which the suspect might be under the influence. He explained that the modified Romberg test
enables the evaluation of the suspect’s ability to follow instructions, divide attention to perform
multiple tasks not unlike that experienced in driving a motor vehicle, and the detection of
impairment and other observable physical traits indicative of possible impairment. During the
walk-and-turn and one-leg stand tests, he monitors each aspect of a suspect’s performance
including ability to listen to and exactly follow instructions, and perform the steps of each test
without interruption, miscue, or need to balance, pause, or stop. The finger-to-nose test, another
divided attention test, tests whether the suspect can follow instructions and do multiple tasks by
having the suspect touch alternately the tip of the nose with a fingertip of each hand in the sequence
the officer directs. During the Divided Attention Psychophysical Tests administration, Deputy
Schaller also looks for observable clues and general indicators, among other things, body tremors,
eyelid tremors, jerky movements, imbalance, and abnormal time perception.
After conducting the DRE protocol with defendant following her arrest, Deputy Schaller
concluded, based upon the totality of all the information obtained in the investigation, that
defendant was under the influence of and impaired by marijuana, making her unable to safely
operate a motor vehicle. The Ottawa County Sheriff’s Office charged defendant with one count
of operating while intoxicated in violation of MCL 257.625(1). Defendant’s toxicology lab test
later confirmed that her blood contained delta-9 tetrahydrocannabinol (THC), the active ingredient
in marijuana.
Defendant moved in limine in the district court to preclude the introduction of evidence
“related to any and all tests of defendant’s physiology, motor skills, comprehension, or
coordination.” The prosecution moved for the district court to qualify Deputy Schaller as an expert
in the field of Drug Evaluation and Classification and requested that Deputy Schaller be allowed
to testify and render expert opinions as a DRE. The district court conducted a two-day evidentiary
hearing on the parties’ competing motions at which Deputies White, Williams, and Schaller
testified. Deputy White testified regarding the traffic stop, his detection of the presence of
marijuana, his observance of defendant’s bloodshot eyes, and defendant’s performance during the
SFSTs that he administered. Deputy Williams testified regarding defendant’s performance of the
tests that he administered. Both deputies testified that they found deficiencies in defendant’s
performance of some of the tests which caused them to believe that probable cause existed to arrest
defendant for operating her vehicle while under the influence of a controlled substance in violation
of MCL 257.625.
Deputy Schaller testified regarding the training he received to become DRE certified and
his experience in performing DRE evaluations. Deputy Schaller testified at length regarding the
DRE protocol evaluation process and the development of the DRE protocols in the late 1970s by
the Los Angeles Police Department which later partnered with the NHTSA to perform validation
studies in a laboratory setting and in the field with further development over the next 40 years. He
explained that around 1984 the Johns Hopkins University conducted a lab-based validation double-
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blind study with 80 volunteers who were administered drugs from specified categories in different
doses and then evaluated using the DRE protocols to determine the success and error rate of using
that method of detection of drug usage.1 The Johns Hopkins University study is referred to as the
Bigelow Study. The study found a 90% success rate in using the DRE protocols for determining
whether subjects were under the influence of drugs, and had a 98% success rate in determining if
subjects were not impaired.
Deputy Schaller also testified regarding a 1986 field validation study conducted by the Los
Angeles Police Department, referred to as the Compton Study,2 in which 173 individuals who had
been arrested for impaired-driving offenses other than alcohol were evaluated by DRE experts
using the DRE protocols. That study validated the DRE program’s reliability as a tool for use by
law enforcement in investigating and determining drug impairment.
Deputy Schaller further testified regarding his observations of defendant during the traffic
stop including that defendant had an odor of marijuana coming from both herself and from the
vehicle in which she had been the sole occupant, she displayed bloodshot eyes, and that she told
police officers that she had smoked marijuana 30 minutes before the traffic stop. He described in
detail his observations of defendant’s performance of the SFSTs administered by Deputy White
and the ARIDE tests administered by Deputy Williams. Deputy Schaller explained that, before he
administered the DRE protocol, he felt that probable cause existed to believe that defendant
operated her vehicle under the influence of marijuana. He testified that defendant’s performance
of the tests under the DRE protocol confirmed that defendant operated her vehicle while impaired.
He testified that, in his expert opinion, based upon the totality of the information obtained during
the investigation, defendant was under the influence of marijuana and unable to safely operate a
motor vehicle.
On cross-examination, Deputy Schaller conceded that persons could have a drug in their
system and not be under the influence or impaired. He testified regarding the Bigelow Study and
Compton Study and affirmed that he considered them accurate and valid studies. He described in
detail the manner in which the Bigelow Study had been conducted under strict controls to permit
accurate analysis of the drug impairment evaluation process. He acknowledged that he had some
limitations as to knowledge of the study’s parameters but explained that the study’s goal was to
determine in a lab setting whether the DRE protocol served as a valid method of determining if
people were under the influence of certain drugs. He affirmed that the study did not involve
subjects actual driving motor vehicles. The DRE protocol tested subjects’ ability to multitask with
divided attention which correlated to operating a vehicle under driving conditions. Deputy
Schaller testified that the DRE protocol assisted law enforcement to recognize general signs and
indicators of impairment by specific drugs because different drugs affect people in specific ways
that can be recognized through the evaluation process. He conceded that the Bigelow Study stated
that it did not represent a direct tested validity of the behavioral examination procedures for
1
See National Highway Traffic Safety Administration, Identifying Types of Drug Intoxication:
Laboratory Evaluation of a Subject-Examination Procedure, May 1985.
2
See National Highway Traffic Safety Administration, Field Evaluation of the Los Angeles Police
Department Drug Detection Procedure, February 1986.
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detecting and identifying drug intoxication in field situations but noted that it also stated that the
study provided “valuable scientific information considering the potential accuracy and utility of
such procedures.” Deputy Schaller repeated his explanation of the DRE 12-step process and how
the totality of all the facts guided the formation of his opinion as to drug usage and impairment.
He stated that the later toxicology report confirmed the presence of a drug substance in the
suspects’ body but did not confirm the opinion of impairment.
Deputy Schaller also testified regarding the Compton Study which he stated had been
conducted as a field study to evaluate whether the DRE process served as a valid and useful tool
for trained law enforcement officers to determine drug impairment in motor vehicle drivers. He
explained that the study’s subjects were people who had been arrested and were suspected of being
under the influence. The Compton Study determined that the evaluators’ opinions regarding the
173 subjects were 92.5% accurate in matching the blood testing results. The analysis revealed that
49% were completely accurate opinions respecting 85 subjects, but 38% were partially accurate
opinions respecting 65 subjects. He explained that some subjects had used a combination of drugs
and the evaluators identified one but not all drugs because that one drug likely masked the other
drug in the subjects’ systems. The blood tests revealed more than one drug, and therefore, the
evaluators were deemed partially correct. Deputy Schaller affirmed that the study indicated that
identification of marijuana through use of the DRE process had a 78% accuracy rate, but other
drugs were identified at much lower percentages of accuracy. He explained that the law
enforcement officers who participated in the field study derived their impairment opinions from
the totality of their observations.
Deputy Schaller testified that the SFSTs were scientifically validated for determining
alcohol intoxication and impairment by alcohol. He admitted that he did not know of any validated
studies respecting detection of impairment by any other substances. He clarified that the two
studies concluded that the DRE protocol is an accurate and reliable tool that enables law
enforcement officers to make observations and then derive their impairment opinions based on the
totality of the circumstances of the entire investigation. He conceded that to his knowledge the
DRE protocol had not been scientifically validated for determination of drug impairment. When
asked about a 2017 Report3 to Congress by NHTSA regarding marijuana-impaired driving, after
reviewing the report briefly, Deputy Schaller concurred that the report stated that studies had not
shown that THC caused impairment on psychomotor tasks, cognitive, and executive functions as
statistically significant impairments, and that it stated that the set of signs and symptoms, and
physiological effects that are indicative of marijuana use were not based on driving impairment.
Further, he agreed that the report stated that there were no current evidence-based methods for
detecting marijuana-impaired driving.
Deputy Schaller affirmed that he prepared an evaluation form for defendant and explained
that he concluded that defendant was impaired by marijuana based on the totality of the
investigation from the time of the traffic stop, his encounter with defendant at the scene, his
observation of defendant’s performance of the tests administered at the scene, interactions with
3
Compton, Marijuana-Impaired Driving-A Report to Congress (July 2017) (DOT HS 812 440),
Washington, DC: National Highway Traffic Safety Administration.
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her, statements that she made, evidence in the vehicle, and then the DRE evaluation process. He
explained that defendant exhibited visible signs of being under the influence of marijuana
including marijuana odor coming from her person and from her vehicle, reddened bloodshot eyes,
and she admitted using marijuana 30 minutes before the traffic stop. Deputy Schaller testified that
he observed defendant’s performance of the SFSTs administered by Deputy White and observed
defendant’s performance of the ARIDE tests Deputy Williams administered. Defendant also rated
her degree of impairment as 3 on a scale of 1-10, where 1 signified no impairment and 10 signified
the highest degree of impairment one could experience. Deputy Schaller considered relevant
defendant’s admission of feeling impaired by the drug. Deputy Schaller explained that defendant
was transported to the hospital where her blood was drawn and afterward he administered the drug
evaluation. Deputy Schaller stated that at that point the law enforcement officers definitely had
probable cause to believe that defendant was under the influence of drugs.
He testified that, before administering the DRE protocol, he had formed a common-sense
judgment that defendant appeared under the influence of marijuana based on impairment
indicators. He then reiterated all of the observable general indicators and signs that indicate
marijuana impairment and described how his experience and training enabled him to draw
conclusions regarding marijuana-related impairment. He affirmed that he checked defendant’s
pupils for dilation, her pulse rate, and blood pressure because those can be indicative of impairment
by marijuana. He testified that defendant’s pupils, her pulse rate, and blood pressure were normal.
He reiterated that he based his impairment opinion on the totality of the facts and indicators
presented.
The district court issued a written opinion in which it first determined that Deputy White
could testify as a lay witness regarding his contact with defendant and his administration of the
SFSTs, but he could not testify as an expert regarding marijuana impairment because of the lack
of consensus in the scientific community on the efficacy of using SFSTs to measure marijuana
impairment. The district court opined that Deputy White’s testimony had probative value
regarding defendant’s balance, coordination, and other skills necessary for safe operation of a
motor vehicle. Similarly, the district court ruled that Deputy Williams could testify as a lay witness
regarding his observations. The district court then considered whether Deputy Schaller could
testify as a drug recognition expert and render a marijuana-impairment opinion under the
requirements of MRE 702 and applicable caselaw. The district court reflected upon Deputy
Schaller’s training and experience and the DRE program’s methodology that he used to evaluate
defendant. The district court found that Deputy Schaller’s observations were not a scientific or
medical diagnosis but were based upon physical signs and behaviors exhibited by defendant. The
district court concluded that DRE training enabled officers to recognize observable signs,
symptoms, and behaviors sufficient to permit the rendering of opinions on a defendant’s state of
impairment. The district court found that the Bigelow Study and the Compton Study indicated
that officers trained in DRE could identify specific drugs and impairment in the studies’ subjects
with a high degree of accuracy which made the DRE program sufficiently reliable to meet the
MRE 702 requirements. The district court found that Deputy Schaller had “been trained in
accordance with the national standards and performed the DRE protocol proficiently.” The district
court ruled as follows:
[Deputy Schaller] may testify as to his observations of a defendant’s acts, conduct,
and appearance, and to give an opinion on the defendant’s state of impairment
-5-
based on those observations. He may express an opinion that a suspect’s behavior
and physical attributes are or are not consistent with the behavioral and physical
signs associated with certain categories of drugs.
* * *
Deputy Schaller may testify as a DRE expert.
Defendant sought and the circuit court granted her leave to appeal the district court’s ruling.
The circuit court analyzed the evidence presented at the district court’s two-day hearing. The
circuit court found that defendant’s toxicology report and her admission that she used marijuana
30 minutes before the traffic stop indisputably established that she internally possessed marijuana,
a controlled substance, while operating her motor vehicle. The court considered the applicable
law and concluded that the standard of proof for a conviction of violation of MCL 257.625(1)
required the prosecution to establish that defendant was “under the influence” while operating a
motor vehicle. The circuit court found that the NHTSA 2017 Marijuana-Impaired Driving-A
Report to Congress indicated that no test available to law enforcement could determine driving
impairment caused by marijuana use because the measurable amount of THC in a person did not
correlate with impairment. The circuit court observed that trained DRE officers were being
qualified as expert witnesses but no published Michigan case had addressed or decided the
reliability and admissibility of testimony regarding application of the DRE protocol or opinion
testimony that marijuana use affected a defendant’s ability to drive and to what degree.
The circuit court next considered whether the district court had properly exercised its
gatekeeper role by correctly applying the three-part test under MRE 702 and the factors articulated
in Daubert v Merrell Dow Pharm, Inc, 509 US 579, 592-593; 113 S Ct 2786; 125 L Ed 2d 469
(1993), while recognizing the degree of latitude and discretionary authority trial courts have in
determining an expert’s reliability as expressed in Kumho Tire Co, Ltd v Carmichael, 526 US 137,
152-153; 119 S Ct 1167; 143 L Ed 2d 238 (1999), and People v Kowalski, 492 Mich 106, 120-
121; 821 NW2d 14 (2012). The circuit court noted that defendant argued that the DRE protocol
lacked relevance and reliability because it did not do what it purported to do, i.e., prove that
defendant’s marijuana intoxication affected her driving or rendered her “under the influence.”
The circuit court analyzed the DRE protocol functions and purpose and noted that its
purpose was not to conclusively determine the presence of a particular drug which only a later
toxicology test could reveal, but to determine whether a person is impaired at the time of the
alleged violation and to opine which drug caused the impairment. The circuit court considered the
DRE protocol 12-step process and noted that all DREs conduct it in the same standardized manner
and record the results for each step on a standardized form. The circuit court found that only DRE
trained officers who achieved a 75% corroboration rate were certified and that they were required
to maintain a minimum accuracy rate and renew certification every two years.
The circuit court concluded that Deputy Schaller’s testimony regarding his application of
the DRE protocol in the present case and his opinion that defendant had been under the influence
of marijuana and unsafe to drive met the relevance and reliability requirements of MRE 702. The
circuit court concluded from the record evidence that Deputy Schaller had the requisite training,
specialized knowledge, and experience to identify behavioral and physiological signs of
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impairment caused by different classes of drugs, plus 17 years’ experience as a road patrol deputy
interacting with intoxicated drivers. The circuit court found that sufficient facts and data supported
the validity of the DRE protocol and Deputy Schaller’s testimony regarding defendant’s marijuana
intoxication. The circuit court concluded that Deputy Schaller formed his opinion based on
reliable principles and methods and his testimony would assist the trier of fact in understanding
the effects of marijuana intoxication and in determining a fact in issue. The circuit court observed
that the degree of defendant’s intoxication remained a question for the trier of fact to decide as the
ultimate arbiter of whether the prosecution proved all of the elements of the charged offense.
The circuit court also considered whether the probative value of Deputy Schaller’s
proposed testimony would be substantially outweighed by unfair prejudice, confusion of the
issues, misleading of the jury, or be needlessly cumulative. The court concluded that it would not.
Respecting defendant’s argument that the testimony would be unfairly prejudicial because the jury
would attribute undue and preemptive weight to it, the circuit court found no such danger because
the trial court could instruct the jury to judge Deputy Schaller’s testimony by the same standard
applicable to all witnesses and noted that he could be subjected to cross-examination and
impeachment through presentation of contradictory evidence. The circuit court, therefore,
affirmed the district court’s ruling that Deputy Schaller qualified as an expert.
II. ANALYSIS
Defendant argues that the DRE protocol and its application in her case is inadmissible
under MRE 702 because no studies correlate a DRE’s ability to determine the degree of
impairment in someone who operates a motor vehicle after using marijuana. Defendant’s
argument, although alluring, is unpersuasive.
The admissibility of expert testimony is governed by MRE 702 which provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
“A court considering whether to admit expert testimony under MRE 702 acts as a
gatekeeper and has a fundamental duty to ensure that the proffered expert testimony is both
relevant and reliable.” Kowalski, 492 Mich at 120 (citation omitted). The court “must ensure that
the [expert] testimony (1) will assist the trier of fact to understand a fact in issue, (2) is provided
by an expert qualified in the relevant field of knowledge, and (3) is based on reliable data,
principles, and methodologies that are applied reliably to the facts of the case.” Id. “The party
proffering the expert’s testimony must persuade the court that the expert possesses specialized
knowledge which will aid the trier of fact in understanding the evidence or determining a fact in
issue.” People v Smith, 425 Mich 98, 112; 387 NW2d 814 (1986), citing MRE 702. Specialized
knowledge must be something beyond the common knowledge of the average person. Kowalski,
492 Mich at 123. An expert may be qualified by “knowledge, skill, experience, training, or
-7-
education.” MRE 702. “MRE 702 requires the trial court to ensure that each aspect of an expert
witness’s proffered testimony—including the data underlying the expert’s theories and the
methodology by which the expert draws conclusions from that data—is reliable.” Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 779; 685 NW2d 391 (2004).
In its gatekeeping capacity, the trial court must make “a preliminary assessment of whether
the reasoning or methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 US at 592-
593. This analysis does not hinge on discovering “absolute truth” or resolving “genuine scientific
disputes.” Chapin v A & L Parts, Inc, 274 Mich App 122, 127; 732 NW2d 578 (2007). Even the
Daubert court recognized the unreasonableness of expecting that an expert’s testimony “must be
‘known’ to a certainty; arguably, there are no certainties in science.” Daubert, 509 US at 590.
Trial courts have broad latitude to consider whether the expert’s specialized knowledge or
technique has been tested or subjected to peer review and publication, whether the known or
potential rate of error has been determined, whether standards exist that control the technique’s
operation, and the degree of general acceptance in the relevant expert community, as well as, other
relevant factors as part of its determination of the reliability of the expert’s relevant testimony. Id.
at 593-594; Kumho Tire, 526 US at 151-153. An expert may draw a conclusion from a set of
observations based on extensive and specialized experience and knowledge. Kumho Tire, 526 US
at 156. “[T]he trial court’s role as gatekeeper does not require it to search for absolute truth, to
admit only uncontested evidence, or to resolve genuine scientific disputes.” People v Unger, 278
Mich App 210, 217; 749 NW2d 272 (2008) (citation omitted). “The inquiry is not into whether
an expert’s opinion is necessarily correct or universally accepted,” but “whether the opinion is
rationally derived from a sound foundation.” Id. (citation omitted).
Defendant concedes that opinion testimony regarding whether a suspect was impaired
would likely assist the trier of fact to determine a fact in issue at trial. She also concedes that
Deputy Schaller completed the requisite training and education to be proficient in the DRE
protocol. Defendant, however, takes issue with using the DRE analysis because the presence of a
drug in a subject’s blood does not necessarily equate to impairment, and she contends that use of
the DRE protocol cannot establish the degree of driving impairment with “scientific certainty.”
The record indicates that neither the prosecution nor Deputy Schaller represented to the
lower courts that use of the DRE protocol, in and of itself, definitively establishes a person’s degree
of impairment. Nor did Deputy Schaller testify that the DRE protocol’s use led to absolute
certainty regarding a person’s drug impairment. Rather, the record indicates that the DRE protocol
serves as one of several tools law enforcement uses to determine if probable cause exists to charge
a suspect of violation of MCL 257.625(1).
Evidence presented to the lower courts revealed that the DRE program is a nationally
standardized protocol used by specially trained and certified law enforcement officers for
identification of intoxication of persons by controlled substances within seven categories of drugs.
Officers are trained to follow the 12-step protocol to observe behavioral and physiological
indicators to determine the drug that the suspect may have used and assess the degree of
impairment based on the totality of the officer’s relevant observations. The record does not reflect
that any dispute exists regarding the indicators of marijuana intoxication which can include
-8-
observable physical evidence such as bloodshot eyes, eyelid tremors, pupil size, body tremors,
body balance issues, and behavioral indicators such as inattention, inability to follow directions,
inability to perform multiple tasks, and altered space and time perception. The record also
indicates that NHTSA studies and data collected over many years confirm that the use of the DRE
protocol methodology enables highly accurate conclusions regarding drug intoxication.
Defendant relies on some statements made in NHTSA’s 2017 Report to Congress to argue
that, because no tests have established the specific level of THC in a person’s blood that affects a
person’s ability to safely operate a motor vehicle, the DRE testing protocol completely lacks
reliability, requiring exclusion of Deputy Schaller’s testimony. The 2017 NHTSA Report
indicates that, unlike alcohol, there is no chemical test for marijuana impairment that correlates
the level of THC in the blood with the degree of impairment. Consequently, THC blood test levels
cannot serve as an indicator of driver impairment.4 Nevertheless, the Report acknowledges that
smoking marijuana has been shown in many studies to affect a number of driving-related skills
such as reaction time, tracking ability, lane position variability, decreased divided attention-target
recognition, impaired cognitive performance like judgment, attention maintenance, impaired
executive functioning, as well as impairment on psychomotor tasks.5 Although the Report
recognizes limitations of the DRE testing protocol because no chemical based impairment standard
exists, and that it cannot serve alone as an impairment determiner, the Report, nevertheless,
acknowledges that the DRE program serves as an aid in law enforcement investigations of
suspected drug-impaired driving cases where properly trained officers follow good investigatory
techniques and carefully document their factual observations.6 The Report does not assert
anywhere that law enforcement should not use DRE trained and certified officers as part of drug-
impaired driving case investigation. Rather, it endorses the DRE program as the highest level of
training an officer can receive to “identify the signs and symptoms of drug use that could be used
to determine whether a suspected driver was impaired by drugs and to rule out possible causes
such as neurological deficits, diseases, and illness.”7 The Report is not dispositive on whether the
district court erred by qualifying Deputy Schaller as an expert or the circuit court’s affirmance of
that decision. I find defendant’s arguments go to the weight of Deputy Schaller’s testimony but
not its admissibility.
As explained in Kumho Tire, an “expert might draw a conclusion from a set of observations
based on extensive and specialized experience.” Kumho Tire, 526 US at 156. Examination of the
record in this case reveals that Deputy Schaller had numerous years’ experience as a sheriff’s
deputy serving on road patrol during which he investigated and apprehended suspected drug-
4
Marijuana-Impaired Driving-A Report to Congress, at 7, 11, 13, 27-29.
5
Id. at 11, 13, 22.
6
Id. at 9, 27-28. The Report states:
The lack of an “impairment standard” equivalent to BAC level does not prevent the
successful prosecution of a marijuana-impaired driver. The lack of toxicological
evidence simply means that the officer has to offer other evidence that the driver
was under the influence of marijuana too impaired to drive safely. [Id. at 28.]
7
Id. at 28.
-9-
impaired drivers. He had training and experience in administering SFSTs, was ARIDE certified,
and trained and certified in the DRE program, and had administered the DRE testing protocol in
the field numerous times. His conclusions regarding driver drug usage and impairment were
confirmed in a very high percentage of the cases. The record confirms the district court’s and
circuit court’s conclusions that Deputy Schaller had the requisite training, specialized knowledge,
and experience to identify behavioral and physiological signs of impairment caused by different
classes of drugs, plus 17 years’ experience as a road patrol deputy interacting with intoxicated
drivers.
Respecting the sufficiency of the facts and data on which Deputy Schaller relied, he
testified regarding the manner in which he conducted his investigation in this case which included
attending the scene and observing defendant’s traffic stop, observing her bloodshot eyes, smelling
the odor of marijuana on her person and in her car, observing her deficient performance of the
SFSTs administered by Deputy White, observing her deficient performance of the tests
administered by Deputy Williams, and observing defendant and collecting data during his
administering of the DRE protocol. Deputy Schaller followed the applicable steps in the DRE
protocol and documented his findings. Deputy Schaller also considered defendant’s admissions
to the investigating officers that she smoked marijuana 30 minutes before the traffic stop and
admitted to the officers in Deputy Schaller’s presence that she felt impaired at level 3 on a scale
of 1-10. Deputy Schaller considered all of these facts and data obtained during the investigation
and concluded that defendant had operated her motor vehicle while under the influence of
marijuana and had been impaired to the extent that she could not safely operate her vehicle.
Defendant has failed to establish that the facts and data obtained during the investigation by Deputy
Schaller lacked accuracy or sufficiency for an experienced law enforcement officer to form an
opinion. She does not challenge the deficiencies of her performance of the various tests. Nor does
she dispute Deputy Schaller’s testimony that he based his opinions upon the totality of the
circumstances, not merely the application of the DRE protocol. The record indicates that Deputy
Schaller derived his conclusions by applying standardized principles and valid investigative
methods to the facts of this case.
I conclude that the district court did not abuse its discretion by finding that sufficient facts
and data supported the validity of the DRE protocol and Deputy Schaller’s testimony regarding
defendant’s marijuana intoxication based upon the totality of the circumstances. Likewise, the
circuit court correctly concluded that Deputy Schaller formed his opinions based on reliable
principles and methods and properly concluded that his testimony would assist the trier of fact in
understanding the effects of marijuana intoxication and in determining a fact in issue. The circuit
court also correctly understood that the degree of defendant’s intoxication remained a question for
the trier of fact to decide in relation to its determination whether the prosecution proved all of the
elements of the charged offense.
The record supports the district court’s and the circuit court’s conclusions that Deputy
Schaller’s testimony is based on sufficient facts and data collected during the investigation, that
his testimony is the product of reliable investigatory principles and methods, and that he applied
those principles and methods to the fact of this case. The record also supports the courts’ respective
conclusions that Deputy Schaller’s testimony will assist the trier of fact to understand a fact in
issue. I conclude that Deputy Schaller’s testimony meets the requirements of MRE 702 and
applicable law and is admissible. Moreover, to the extent that any concerns exist regarding how
-10-
the jury should understand his testimony, Deputy Schaller would be subjected to cross-
examination and the trial court can ably instruct the jury regarding its consideration of his
testimony.
Accordingly, in my opinion, the district court did not abuse its discretion by qualifying
Deputy Schaller as an expert to testify regarding whether defendant operated her motor vehicle
while under the influence of marijuana and impaired to a degree that made her unable to safely
operate her motor vehicle. The circuit court did not err by affirming the district court’s decision.
Accordingly, I would affirm.
/s/ James Robert Redford
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