The WNJ Appellate Practice Group is one of the State’s premier appellate litigation practice groups, counting among its members a recent Michigan Court of Appeals judge and former federal appellate clerks from the 4th, 6th, 7th, and 8th Circuits. Over the past five years, our attorneys have appeared in the U.S. Supreme Court 15 times; litigated in nearly every federal Circuit; regularly argued in the Michigan Supreme Court; and participated in numerous Michigan Court of Appeals cases.
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On March 4, 2010, the Michigan Court of Appeals approved its opinion in People v. Lewis, No. 274508, for publication. The court held that the trial court properly admitted the autopsy report prepared by two nontestifying medical examiners through the testimony of a third medical examiner. The report’s admittance did not violate the Sixth Amendment confrontation clause. The court’s opinion may be found here.
On March 4, 2010, the Michigan Court of Appeals issued its published opinion in Department of Human Services v. Beck (In re Beck), No. 293138. The court held that the trial court properly terminated father-respondent’s parental rights while continuing his child-support obligations. The court’s opinion may be found here.
On March 4, 2010, the Court of Appeals published a per curiam opinion in People v. Waterstone, No. 294667, directing the Attorney General (AG) to withdraw from prosecution of the case because of a conflict of interest under Michigan Rules of Professional Conduct (MRPC) 1.9 and 1.10. In this action, the AG brought a felony complaint against Circuit Court Judge Waterstone, alleging that she knowingly permitted witnesses to commit perjury during a criminal trial. One of the two defendants from that criminal trial had earlier filed a federal civil rights suit against the judge and others, based on admission of the alleged perjured testimony. The AG’s office assigned an assistant AG from the Public Employment, Elections and Tort (PEET) Division to defend the judge in the civil action, which was eventually dismissed. The Wayne County Prosecutor withdrew from prosecution of individuals allegedly involved in the perjury because of a conflict of interest, and eventually the AG agreed to prosecute the cases.
The Court of Appeals held that because the prosecuting attorney learned confidential information during representation of the judge in the civil action and was then asked to investigate an alleged crime by that former client, for purposes of this case, the AG’s office was a “firm” under MRPC 1.10. Accordingly, the AG’s office should have conducted a conflict check before undertaking the prosecution. Even though the assistant AGs involved in the prosecution did not have actual knowledge of the AG’s former representation of the judge, the court held that prosecution of a judge is unusual, and knowledge of the potential federal case against the judge could be inferred under the circumstances. Because a simple conflict check would have revealed the federal lawsuit, and knowledge could be inferred, the AG should have obtained the consent of the former client before undertaking the prosecution. Further, the AG’s failure to disclose the conflict prejudiced the judge, because it was reasonable for the judge to believe that the AG was still representing her when an investigator from the AG’s office interviewed her in connection with the perjury claims. Because of the conflict of interest, the court directed the AG to withdraw from prosecuting the judge in the criminal matter.
As reported by Michigan Radio, Chief Justice Kelly testified before the Legislature yesterday, informing lawmakers that court-run programs are in jeopardy because of budget cuts. She indicated that more funding for such programs now is likely to avoid much higher incarceration costs in the future. You can find the complete audio recording of the story here.
On Monday, March 1, 2010, the United States Supreme Court granted Wayne County prosecutors’ petition for a writ of certiorari in Michigan v. Bryant to determine “whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because ‘made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,’ that emergency including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?”. The petition for certiorari and brief in opposition can be found here.
We discussed the oral argument in the Michigan Supreme Court here and discussed the Michigan Supreme Court’s opinion here.
Yesterday, the Michigan Supreme Court issued one order, denying a prisoner’s motion to waive fees.
On March 2, 2010, the Court of Appeals issued a per curiam opinion in Driver v. Cardiovascular Clinical Associates, P.C., No. 280844, reversing the lower court’s denial of summary disposition, and remanded for entry of summary disposition in favor of Defendant Cardiovascular Clinical Associates, P.C. (CCA). The patient was diagnosed with colon cancer in November 2005, and brought this medical malpractice action claiming that his doctor failed to refer him for a colonoscopic examination.
Medical malpractice claimants must give proposed defendants notice of intent to sue, and the notice must be given at least 182 days prior to commencing an action. MCL § 600.2912b(1). If a plaintiff files a complaint before the expiration of the notice period, the medical malpractice action is not commenced. Read more »
In People v. Womack, the Michigan Supreme Court ordered the defendant’s former appellate counsel to file a supplemental brief explaining why he failed to file a delayed application for leave to appeal within the deadlines set by MCR 7.205(F). The defendant’s application for leave to appeal remains pending.
The Court, in lieu of granting leave to appeal, peremptorily reversed the Court of Appeals’ decision in People v. Fette, No. 140023, because the trial court’s order to remit prisoner funds for fines, costs, and assessments was correct.
The Court held two cases in abeyance pending decisions in other cases before the Court: Paquette v. State Farm Mutual Auto Insurance Co., No. 139582, pending decision in University of Michigan Board of Regents v. Titan Insurance Co., No. 136905; and Woodward Parking Co. v. City of Detroit, Nos. 140073, 140074, 140075, pending decision in Briggs Tax Service, LLC v. Detroit Public Schools, Nos. 138168, 138179, 138182. Our previous posts on Titan and Briggs can be found here and here.
The Court also denied leave to appeal in 115 cases and reconsideration in 10 cases.
Yesterday, the Michigan Supreme Court denied one motion for reconsideration and amended an order to correct a clerical error.
The United States Supreme Court has created a separate web page with links to the substantive pleadings in the Asian Carp litigation. That litigation encompasses three original jurisdiction actions that the State of Michigan is seeking to reopen for the purpose of obtaining an order that closes the locks and sluices connecting Illinois waterways to Lake Michigan. The Supreme Court’s web page can be reached here.
Disclaimer: WNJ represents amicus curiae the Michigan Shoreline Caucus in support of Michigan’s petition to reopen.
Yesterday, the Michigan Supreme Court issued one order, denying a prisoner’s motion to waive fees.
In what is believed to be the first deal of its kind anywhere in the country, Thomas M. Cooley Law School has entered into an 11-year naming-rights contract for the Lansing minor league baseball stadium that is home to the Lansing Lugnuts. What was Oldsmobile Park is now Cooley Law School Stadium. The National Law Journal article regarding Cooley’s new venture can be found here.
On February 23, 2010, the Court of Appeals issued its unpublished opinion in Webber v. Muy Grande Ranch, Inc., No. 289113, affirming the trial court’ s grant of summary disposition on multiple counts of fraud and breach of contract in connection with a real estate transaction. Most relevant to practitioners, the Court’s opinion discusses a non-movant’s burden of proof when arguing that additional discovery is necessary before the trial court may make a summary disposition decision.
The Court began by emphasizing that a motion under MCR 2.116(C)(10) may be raised at any time. MCR 2.116(D)(4). If a party opposes the motion on the ground that discovery is incomplete, the party must assert that a factual dispute does indeed exist, and must support that allegation “by some independent evidence.” Bellows v. Delaware McDonald’s Corp., 206 Mich. App. 555, 561; 522 N.W.2d 707 (1994). Here, the plaintiffs, the non-moving parties, raised the issue of incomplete discovery but failed to support their claim with independent evidence. Instead, the plaintiffs simply cited the defendants’ brief and attached their own attorney’s deposition and the real estate purchase agreement. None of this evidence was sufficient to create a genuine issue of material fact, or to warrant the suspension of summary disposition proceedings until discovery was complete.
Disclaimer: WNJ represented GreenStone Farm Credit Services, a prevailing defendant-appellee in this case.
One Michigan statute authorizes the recipient of a dishonored check to seek treble damages. MCL § 600.2952(4)(b). A second Michigan statute specifically addresses the business of payday loans (called “deferred presentment service transactions” by the statute) and limits recovery by payday lenders to the amount of the check plus a $25 returned-check charge. MCL § 487.2158. Interpreting these statutes, the commissioner of the Office of Financial and Insurance Regulation (OFIR), which licenses payday lenders, issued an administrative order prohibiting payday lenders from seeking treble damages under the first statute and stating that they could be fined or lose their licenses if they did. A Michigan trial court struck the order down as an unconstitutional infringement on the right of access to the courts because the payday lenders were purportedly being denied their right to seek certain legal remedies in court. In Michigan Deferred Presentment Services Association, Inc. v. Ross, No. 292685 (published Feb. 18, 2010), the Court of Appeals reversed, concluding that because the two statutes conflicted, the more specific of the two would apply, and that the latter statute was more specific because it addressed remedies available to payday lenders, as opposed to members of the general public, when they received nonsufficient funds checks. The administrative order therefore properly stated the law, the Court of Appeals concluded, and should not have been struck down.
On Wednesday February 17, 2010, the Michigan Supreme Court denied one motion by a prisoner seeking a waiver of filing fees and administratively closed the case of Howard v. Department of Corrections, Case No. 139966, for failure of the plaintiff-appellant to pay the partial filing fee.
Additionally, in lieu of granting leave to appeal the Court vacated the judgment of the Court of Appeals and remanded the case of Griesbach v. Ross, Case No. 136731, to the Oakland County Circuit Court for reconsideration in light of the Court’s decisions in Bush v. Shabahang, 484 Mich. 156 (2009) and Potter v. McLeary, 484 Mich. 397 (2009). Our post on Bush can be found here and our summary of Potter is here. Justice Young dissented arguing that the plaintiff does not meet the requirements of MCL § 600.2912b(3), and therefore is not entitled to the additional notice period provided by that statute, and that both Bush and Potter are inapplicable to this case. The Court’s Order can be found here.
The Michigan Supreme Court denied an emergency application to exercise superintending control in a bar examination dispute.
Defendants who entered the plaintiff’s apartment to execute a temporary restraining order (TRO), but wrongly told the plaintiff the TRO was a federal subpoena that allowed them to enter the apartment to either take his computers or copy what was on them, may be liable for invasion of privacy and trespass. In Dalley v. Dykema Gossett, P.L.L.C., No. 289046, a published opinion issued on February 11, 2010, the Michigan Court of Appeals reversed in part a circuit court order granting summary disposition to the defendants under MCR 2.116(C)(8). In a separate federal action, the defendants had obtained a TRO to secure certain computer data, including data from a non-party to that lawsuit, the plaintiff in this action. Several of the defendants served the TRO by slipping it under the plaintiff’s apartment door, and soon thereafter called the plaintiff to explain that the TRO was a federal subpoena that allowed the defendants to enter the plaintiff’s apartment to either take the plaintiff’s computers and hard drives or copy the data on them. According to the amended complaint, the plaintiff reasonably believed that he had no choice and would go to jail if he refused access to his computers. He thereafter allowed the defendants to enter his apartment, and then directed them to the only computer that might contain information described in the TRO. But the defendants nonetheless copied the data from two of the plaintiff’s computers and four hard drives. The Court of Appeals held that because the plaintiff alleged defendants gained access to the plaintiff’s apartment through subterfuge and threat, and then copied more than the one computer to which the plaintiff had consented, the plaintiff stated a claim for invasion of privacy. For the same reasons, the Court held that the defendants’ misrepresentations could reasonably be found to have vitiated the plaintiff’s consent to enter his apartment, and the plaintiff also stated a claim for trespass. The Court affirmed the trial court’s dismissal of claims for intentional infliction of emotional distress, abuse of process, and tortious interference with a business relationship.
Yesterday the Michigan Supreme Court granted permission to the Detroit News to file an amicus curiae brief in Smith v. Anonymous Joint Enterprise, No. 138456-8, a case we previously addressed here (fourth paragraph). It also granted permission to both the Insurance Institute of Michigan and the Coalition Protecting Auto No-Fault to file amicus curiae briefs in University of Michigan Regents v. Titan Insurance Agency, No. 136095, a case we noted here. The Court also granted a handful of extensions of time for the filing of briefs and a request to adjourn oral argument, and it denied two motions by prisoners seeking the waiver of filing fees.
At a recent Wayne State University symposium on judicial selection, retired U.S. Supreme Court Justice Sandra Day O’Connor called for change in the way Michigan elects its judges. The full article, as printed in The Detroit News, can be found here.
On February 9, 2010, the Court of Appeals released an unpublished opinion in Socia v. Pacers Basketball Corp., No. 284845, affirming the dismissal of a Palace worker’s suit against two Pacers players under theories of negligence and gross negligence. On November 19, 2004, the plaintiff was injured during the infamous “Palace brawl” that occurred at a basketball game between the Indiana Pacers and the Detroit Pistons at the Palace of Auburn Hills. The plaintiff was working at the Palace and was injured while helping to keep a tunnel clear for the players to exit. As the two defendants were confronting spectators near the tunnel, another spectator threw a chair that hit the plaintiff on her head. The Court of Appeals concluded that the plaintiff failed to establish that the defendants owed a duty to the plaintiff. The Court of Appeals emphasized that an individual has no duty to protect another from the criminal acts of a third party without a special relationship giving rise to that duty. Here, where the plaintiff did not allege that she entrusted her safety to the control of the defendants or that she lost control to protect herself, there was no special relationship.