One Court of Justice

On August 31, 2010, the Court of Appeals published its earlier, July 1, 2010,  opinion in Ajax Paving Industries, LLC v. VanOpdenbosch Construction Co., No. 288452.  The primary issue in this case concerned the fees and costs incurred by a contractor in defending a tort action, arguably covered under an indemnity clause in a contract between the contractor and its subcontractor.  After finding that the indemnity clause was sufficiently broad to cover the underlying action, the Court of Appeals turned to the question of liability under that clause for the fees and costs incurred by the contractor during the 18 months it defended that case without notifying the subcontractor.  The Court of Appeals found that, because the indemnity clause did not require the contractor to notify the subcontractor of the underlying action or tender the defense of that action to the subcontractor, the contractor is entitled to complete indemnification of all of its fees and costs incurred in defending the underlying case, without limitation.

Plaintiff worked as a painter on the Mackinac Bridge for over 25 years, for various employers.  Plaintiff was working for Allstate Painting Company, Inc. (Allstate) in May 2005 when he injured his right knee.  Plaintiff filed a petition seeking benefits from Allstate, which did not have workers’ compensation insurance.  Although the magistrate granted Plaintiff an open award of benefits against Allstate, Plaintiff was unable to collect.  Subsequently, Plaintiff filed this action seeking benefits from defendants Mackinac Bridge Authority (the Authority) and American Painting Company, Inc. (American Painting) under Section 171 of the Workers’ Disability Compensation Act (WDCA), the statutory employment provision.  MCL 418.171.  The magistrate applied res judicata, or claim preclusion, to dismiss Plaintiff’s claim against the Authority and American Painting because the magistrate concluded Plaintiff could have brought his Section 171 claim in his earlier action against Allstate.  The Workers’ Compensation Appellate Commission (WCAC) affirmed the magistrate’s dismissal in a 2-1 decision.  In Bennett v. Mackinac Bridge Authority, No. 287628, the Court of Appeals reversed the decision of the WCAC and remanded the case to the magistrate for reinstatement.  The Court of Appeals concluded that application of the doctrine of res judicata in this case to bar Plaintiff’s Section 171 claim against defendants would subvert the intent of the Legislature because it would, in effect, read a rule of mandatory party joinder in Section 171.  The Court of Appeals explained that the Legislature has, in other provisions, required the joinder of parties or prescribed methods for compelling the joinder of parties, and neither provision exists in Section 171.  Thus, the Court of Appeals determined that the an injured employee may bring separate workers’ compensation actions against a direct employer and statutory employer under Section 171 without having to join all potentially liable parties in a single action.

On August 31, 2010, the Court of Appeals published its per curiam decision in Barksdale v. Bert’s Martketplace, No. 290329, where plaintiff challenged the conduct of a sexual harassment trial where the the judge limited the testimony of the owner of the defendant business to a half-hour per side, and ended plaintiff counsel’s direct examination of that witness at the end of that time, not allowing re-direct or an offer of proof.  The Court of Appeals found the time limitation to be arbitrary under the circumstances of this case, as it was unrelated to the complexity of the case or the time taken for other witnesses.  Additionally, the Court of Appeals found that the trial court’s failure to take an offer of proof meant that there was no record that would permit a finding of harmless error, meaning the case would have to be reversed and remanded for a new trial as a result of the trial court’s abuse of discretion.

On August 31, 2010, the Court of Appeals published Judge Wilder’s opinion in Auto Club Group Ins. Co. v. Booth, No. 290430, reversing the trial court’s conclusion that the insured was covered under his homeowner’s policy in response to an injury claim from the victim of a negligent shooting.  Here, several people were in the insured’s home when the intoxicated insured retrieved his automatic handgun and, thinking that there was no round in the chamber, placed the barrel the gun against the wrist of another man whereupon the weapon discharged (the insured could not recall pulling the trigger), causing significant injuries to the other individual.  The insured pled no contest to a misdemeanor charge of careless discharge of a firearm resulting in injury.  The injured party filed suit against the insured, but the homeowner’s insurer denied coverage citing an exclusion in the policy that barred coverage for injuries resulting from “a criminal act or omission.”  The Court of Appeals found that while the insured’s no contest plea  in the criminal case was not conclusive proof that the insured had committed a crime, the undisputed record clearly established that the insured had control over the gun, knew it had a loaded magazine, and held it against another person’s wrist (all while intoxicated), was sufficient to prove the careless discharge of a firearm.  Thus, the Court of Appeals reversed the trial court and found that the insurer was entitled to summary disposition.  

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Carlton and his wife Viola had a son and a daughter.  The daughter is the deceased mother of Carlton and Viola’s two granddaughters, Melady and Melinda.  Carlton and Viola executed identical wills, a revocable trust agreement, and an agreement to execute mutual wills, all of which reflected an estate plan to establish a trust for the benefit of Melady for life, with the remainder to the issue of Carlton and Viola.  Viola died first.  Subsequently, Carlton transferred title from assets that had been jointly owned by Carlton and Viola to be titled jointly in his and Melady’s name or to name Melady as beneficiary.  Carlton and Viola’s son and other granddaughter brought this action requesting that the probate court impose a constructive trust on certain assets in Melady and her husband’s control, alleging that Carlton transferred the assets in violation of the agreement to execute mutual wills.  After a hearing, the probate court found that the agreement to execute mutual wills was valid and binding, that nothing in the agreement restricted what the surviving party could do with the the joint assets, and that Carlton’s transfer of assets did not constitute a breach of the agreement.  The probate court granted summary disposition in favor of Melady and her husband, and in a per curiam opinion, In re Estate of Carlton J Leix, No. 291406, the Court of Appeals affirmed.  The Court of Appeals held that there was no implied limitation in an agreement to execute mutual wills that limits the surviving spouse’s ability to transfer assets as he or she pleases.

In an opinion released after the Michigan Supreme Court’s July 31 end of term, the Court reinvigorated the latent-ambiguity doctrine by holding that the word “all” in a liability release did not actually mean “all” where extrinsic evidence demonstrated that the parties to the release meant less than “all.”

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On August 26, 2010, the Michigan Supreme Court published its opinion in People v. Szalma, No. 140021.  The Court held that where the trial judge determined that a prosecutor failed to present sufficient evidence to convict the defendant, the double-jeopardy clauses of the United States Constitution and the Michigan Constitution prohibit retrial.

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A search of the defendant’s car after he was arrested and in police custody was unconstitutional under Arizona v. Gant, 129 S. Ct. 1710 (2009), decided on the day of the defendant’s suppression hearing.  In Gant, the Supreme Court ruled that police may search a vehicle incident to an arrest only “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” or when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”  129 S. Ct. at 1719.  In People v. Short, No. 292288 (published Aug. 26, 2010), the Michigan Court of Appeals explained that Gant applied retroactively, and the police search of the defendant’s car was unconstitutional.  But exclusion of evidence is not an automatic remedy for an unlawful search.  The exclusionary rule is designed to deter police misconduct, and therefore, courts have recognized a good-faith exception to the rule.  Addressing this issue of first impression, the Court of Appeals concluded that an officer’s reliance on valid case law which was later overturned may form the basis of an officer’s good faith and avoid exclusion of the disputed evidence at trial.  Because the search was lawful under well-established case law at the time of the arrest, the Court of Appeals upheld the trial court’s application of the good faith exception to the exclusionary rule.

On August 26, 2010, the Court of Appeals published its decision in McLean v. Phenix, affirming the trial court’s holding that Michigan’s “medical care or treatment” exception to governmental immunity, found in MCL 691.1407(4), extends to treatment for mental, as well as physical, diseases and illnesses.  The Court found MCL 691.1407(4) clear and unambiguous; accordingly, the Court confined its analysis to the statutory language.  The statute provides immunity does not extend “to a governmental agency or an employee or agent of a governmental agency with respect to providing medical care or treatment to a patient…”  The section includes no qualifier or other language limiting the exception to care directed at physical maladies.  Therefore, the Court affirmed the trial court’s holding that the “medical care or treatment” exception did not apply in a suit arising out of a community mental health service agency’s care for the plaintiff’s decedent.  However, because the plaintiffs did not allege the CEO of the defendant had provided care to the decedent, the Court reversed the holding of the trial court with respect to him.

Defendant Tion Terrell was convicted of assault with intent to murder and related crimes after a non-lethal shooting incident.  After his conviction, the defendant moved for a new trial and offered the testimony of his codefendant.  The codefendant, who had invoked his Fifth Amendment privilege against self-incrimination and was acquitted at trial, testified post-trial that the victim had been armed and that someone other than the defendant shot the victim.  The trial court granted a new trial based on newly discovered evidence.  In People v. Terrell, No. 286834 (published Aug. 26, 2010), the Court of Appeals reversed the order for new trial, holding that the testimony of the codefendant was not newly discovered evidence, and therefore a new trial was not warranted.  In this issue of first impression, Judge Borrello, joined by Judge Meter, adopted the approach of the majority of federal circuit courts:  a codefendant’s post-trial exculpatory testimony constitutes newly available evidence, but it is not newly discovered if the defendant knew or should have known of the evidence before or during trial.  The Court of Appeals stressed that the codefendant’s testimony was not new to the defendant, and the defendant did not seek available remedies to overcome the potential prejudice caused by his codefendant’s refusal to testify, such as severance of trial and limited immunity.  Judge Borrello’s opinion can be found here.  Judge Shapiro concurred in the result, but believed that the Court of Appeals should have applied the test articulated by the Court of Appeals for the First Circuit, which assesses such testimony on a case-by-case basis, rather than applying a bright-line rule.  You can find Judge Shapiro’s concurring opinion here.

On August 24, 2010, the Court of Appeals published Judge’s Saad’s opinion in People v. Dendel, No. 247391.  The defendant in this case had been convicted of second-degree murder for causing the death of her domestic partner by injecting him with a fatal dose of insulin.  This case had been remanded by the Michigan Supreme Court for examination of Confrontation Clause issues in light of the recent United States Supreme Court decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).  Here, these Confrontation Clause issues related to the testimony of a toxicologist who had testified about the level of glucose found in the alleged victim’s system based upon the findings of forensic toxicology tests he did not perform compiled in a report he did not prepare.  The Court of Appeals concluded that, under the current standards, the report of a zero-glucose level in the body was a testimonial statement, and that the defendant’s constitutional right to confront his accusers was violated where the trial court allowed an expert witness to give hearsay testimony about those glucose levels.  The Court of Appeals, however, found that this was error was harmless beyond a reasonable doubt because of the wealth of other evidence, establishing the cause of death and supporting defendant’s conviction.

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In People v. Campbell, No. 29135 (published Aug. 26, 2010), the Court of Appeals held that the Medical Marihuana Act, MCL § 333.26421 et seq., does not apply retroactively.  The case began when Keith Campbell was arrested in December 2007 for various marijuana charges and for possessing a firearm during the commission of a felony.  A year later, while his charges where still pending, the Act passed and became effective.  The Court of Appeals explained that legislatives acts are presumed to apply only prospectively unless the legislature indicates an intent for a new law to apply retroactively, and the Medical Marihuana Act did not contain any such indication.  Nor was the legislation a remedial, because it created a new right—an affirmative defense that did not exist prior to the enactment of the Act.  Accordingly, the Court reversed the trial court’s dismissal of the criminal charges and remanded for further proceedings.

Ronald Rose was convicted of four counts of criminal sexual conduct against an eight-year-old girl and of two counts of disseminating sexually explicit matter to minor (the girl and her ten-year-old brother).  In People v. Rose, No. 290936 (published Aug. 26, 2010), the Court of Appeals rejected his argument that allowing the girl to testify at trial from behind a screen violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and a Michigan statute.  This procedure did not violate the Confrontation Clause because the U.S. Supreme Court has held that there is a compelling state interest in protecting child witnesses, and the trial court here made specific findings that the screen was necessary to protect the girl because of her fear of Rose, of her age, and of a therapist’s testimony that there was a high likelihood that the girl would suffer psychological damage if required to testify face to face.  It also did not violate the Michigan statute, MCL § 600.2123a, because that statute does not address witness screens, and courts have inherent authority to control procedures that includes the authority to use witness screens.  The Court of Appeals also concluded (1) that the use of witness screens is not inherently prejudicial (like requiring a defendant to testify in prison garb is), (2) that it was not an abuse of discretion to deny Rose’s motion, filed one day before trial, to exclude the prosecution’s expert witness on child sexual abuse dynamics, and (3) that Rose’s counsel was not ineffective.  Accordingly, the Court of Appeals affirmed Rose’s conviction and sentence of 25 to 50 years in prison.

Concluding a whirlwind of events that began early this morning, Governor Granholm has announced her appointment of Michigan Court of Appeals Judge Alton Davis to the Michigan Supreme Court.  Justice Davis fills the vacancy left by Justice Weaver, who announced her retirement and resignation earlier this morning.  The Detroit Free Press article covering the announcement can be found here.

As reported by several media outlets today, Justice Weaver has announced that she is retiring this morning, and that Governor Granholm will be announcing her replacement.  At least one outlet speculates that the replacement may be Michigan Court of Appeals Judge Alton Davis.

On August 24, 2010, the Court of Appeals published its per curiam opinion in Findley v. DaimlerChrysler Corp., No. 291402.  The case arose from an appeal from the Workers’ Compensation Appellate Commission (“WCAC”) which had affirmed a magistrate’s denial of benefits.  In affirming that decision, one commissioner issued an opinion that analyzed and adopted the magistrate’s findings.  Another member concurred “in result only” and provided no explanation, while the last member of the three-commissioner panel dissented.  The Court of Appeals held that it can only review the decisions of a “true majority” of a WCAC panel, and that this did not constitute a true majority.  The Court concluded that a “true majority” is an opinion in which a majority of the commissioners agree on the material facts and ultimate outcome.  Here, it is not clear that a majority of the commissioners agree on the facts because the second member of the majority only concurred in the result.  Therefore, the Court of Appeals remanded the matter to the WCAC for further proceedings.

As reported in today’s Detroit Free Press, a group of Republican candidates and Tea Party activists have filed suit in the Michigan Court of Appeals to keep candidates from appearing on the ballot whom the plaintiffs claim represent a phony Tea Party formed by Mark Steffek, a retired UAW worker.  The plaintiffs allege that the 23 candidates claimed to have been nominated before a party convention was even held.  Already, assertions that at least one of the candidate affidavits was forged has led to the resignation of an Oakland County Democratic Party official who apparently acted as a notary.  Steffek’s Tea Party plans to file a separate lawsuit today, challenging the Board of State Canvassers’ decision to leave the candidates off the ballot.

A new update to our blog software yesterday temporarily erased all of our content.  The site has been restored, but you may notice a few out-of-place special characters in our blog entries.  Thank you for your patience as we continue our remedial work on the postings.

Thank you for your patronage,

John Bursch

In May 2007, Salvatore moved to amend the trial court’s award of spousal support or property award to his ex-wife Mary, or to make installment payments.  The trial court referred the case to the Friend of the Court for an evidentiary hearing.  However, the parties then agreed to submit to binding arbitration.  In September 2008, the arbitrator’s final award orderd Salvatore to pay Mary $485,155, for Mary’s interest in a company, in installments, without interest, and terminated his spousal support obligation effective May 2007.  The arbitrator granted Salvatore credit for the spousal support that he had paid Mary between May 2007 and September 2008, and ordered that he would continue to pay $5,500 a month until he paid the remaining $391,655 to satisfy the award.

In December 2008, the trial court issued an order confirming the arbitrator’s award and denied Mary’s motions to vacate, modify, or correct the arbitration award.  Salvatore filed a motion to reduce his monthly payments, and in June 2009 after a hearing on the matter, the trial court reduced his monthly payments to $3,870 without modifying the total amount that was awarded.  Mary appealed both orders.  In Cipriano v. Cipriano, Nos. 291377 and 292806, a per curiam opinion, the Court of Appeals affirmed the first order and reversed the second order.  Even though Salvatore had ex parte communication with the arbitrator, the Court of Appeals determined that it did not violate the Domestic Relations Arbitration Act (DRAA) because it did not violate the procedures for the arbitration in Mary and Salvatore’s arbitration agreement. Parties are required under the DRAA to sign an agreement for binding aribtration that delineates the powers and duties of the arbitrator.  Unlike the required formality of courts, arbitration allows parties to determine the procedures of their proceeding.  Despite the ex parte communication, the Court of Appeals held that the trial court did not err in confirming the arbitrator’s award.  The Court of Appeals reversed the second order because under MCR 3.602(K)(1), since there was no pending action between the parties, a complaint to modify the arbitration award must have been filed within 21 days (Salvatore filed his complaint several months after), and neither Salvatore nor the trial court referred any provisions in MCR 3.602(K)(2), the grounds for modification of an arbitration award, to justify modification.

The Michigan Court of Appeals published its per curiam opinion on August 12, 2010 in Dawe v. Dr. Reuvan Bar-Levav & Assocs., P.C., No. 269147, on remand from the Michigan Supreme Court.  The Supreme Court reversed the Court of Appeals™ original opinion and held that a patient may pursue a common-law, medical-malpractice claim against her treating mental-health professional if the professional negligently placed the patient in danger of harm from another patient.  Our discussion of the Michigan Supreme Court™s March 30, 2010 decision remanding the case to the Court of Appeals can be found here.

On remand, the Court of Appeals largely adopted Judge Smolenski™s dissent in the earlier Court of Appeals™ opinion and concluded that defendant psychiatrists owed a duty of care to their patient to protect her from harm by a third party.  Further, the Court of Appeals held that a reasonable jury could conclude that the defendants proximately caused the plaintiff™s injuries “ being shot by defendants™ former patient with whom she had been placed in group therapy. The defendants knew or should have known that the former patient would form improper emotional attachments to persons in his group therapy and that he might seek to harm those persons and therefore should not have placed the former patient in group therapy. Read more »