One Court of Justice

In Wayne County Employees Retirement System v. Charter County of Wayne, the Michigan Court of Appeals held that Wayne County’s ordinance, which re-directed funds meant to protect retirees from inflation to offset the County’s annual required contribution to the retirement system, violated  the Public Employee Retirement System Investment Act (“PERSIA”), MCL 38.1132.  Read more »

In Barclae v. Zarb the Michigan Court of Appeals held that a bank’s agreement not to immediately liquidate a company’s assets was subject to the statute of frauds because it was a “financial accommodation.”  The statute of frauds, MCL 566.132, prohibits an action against a financial institution to enforce the promise of a “financial accommodation” unless the promise is evidenced by a signed writing.  The plaintiffs argued that the bank’s agreement not to immediately liquidate assets was not a financial accommodation because it did not subject the bank to any additional risk.  The Court of Appeals disagreed, reasoning that the absence of additional risk was not dispositive.  The Court of Appeals also found that the writing in this case did not satisfy the statute of frauds because it reflected on-going negotiations rather than the final agreement of the parties.

On a busy Friday before the holiday weekend, in addition to other granted applications discussed further in separate posts, the Michigan Supreme Court granted an application and asked for further briefing in a township taxation issue. 

In Cherryland Electric Cooperative v East Bay Township and Garfield Township, the parties were asked to brief: (1) whether a township assessor has an independent obligation to determine the true cash value of all property within the jurisdiction of a township, or whether, in determining true cash value, a township assessor is obligated to follow the personal tax reporting form approved by the State Tax Commission; and (2) whether these cases involve a mutual mistake of fact within the meaning of MCL 211.53a.

In addition, our high court held one criminal appeal in abeyance pending determination of a similar case.

The Supreme Court granted the application of an interest group challenging the Court of Appeals’ affirmance permitting Detroit Edison to issue a prospective rebate to its customers to refund a prior unapproved rate increase.  Our July 2012 post on the Court of Appeals’ decision affirming the prospective rebate, and the dissent arguing that it was not permitted because it was contrary to the plain language of the statute at issue, can be found here.

Detroit Edison had implemented a rate hike to customers prior to receipt of Michigan Public Service Commission approval.  When only part of the rate increase was approved, Detroit Edison wanted to refund the overcharge by crediting a future bill.  The Association of Businesses Advocating Tariff Equity (ABATE) argued that such a refund was impermissible under the applicable statute and failed to compensate past customers who paid the unapproved additional charges.

In People v. Wambar the Michigan Court of Appeals affirmed the defendant’s conviction for assisting in the unlawful taking of a child, despite the fact that the defendant was the child’s biological father, because the defendant’s parental rights had been terminated.  Michigan Statute MCL 750.350 prohibits the taking of a child from his parent or guardian, but exempts the natural or adoptive parent of the child from conviction under the statute.  The court held that for the purpose of the statute, the term “natural parent” does not include a biological parent whose parental rights have been terminated.

In Karaus v. Bank of New York Mellon, the Court of Appeals held there was a genuine issue of material fact as to whether the building in question constituted a “residence” under Michigan’s construction lien act because it was unclear whether the owner, who contracted with the construction company, intended to live in the building.  The Court of Appeals also affirmed summary judgment in favor of a bank on the plaintiff’s unjust enrichment claim because, although the bank held a mortgage on the property, there was no evidence that the bank requested or was even aware of the work performed by the plaintiff.

In Hays v. Lutheran Social Services of Michigan, the Court of Appeals held that seeking advice from a public body regarding one’s own potential liability for a legal violation does not constitute a “report” and therefore is not “protected activity” under the Michigan Whistleblowers’ Protection Act (WPA).  If an employee’s communications with a public body do not provide sufficient information for that public body to further investigate illegal activity, the WPA does not protect the employee from adverse employment action based on those communications.  Read more »

In Meier v. Awaad et. al., plaintiffs issued a subpoena to the Michigan Department of Community Health (“MDCH”) seeking the identities of Medicaid beneficiaries who were diagnosed by the defendant physician as having either epliepsy or a seizure disorder.  Plaintiffs sought this information in connection with their class action claim that this doctor had intentionally misdiagnosed them, and others, with these conditions for his own financial gain.  In ruling on this subpoena, the Court of Appeals considered Michigan’s statutory physician-patient privilege and held:  (1)  that the defendants (the physician and related entities) were entitled to raise the privilege issue; and (2)  that even though the information was not sought from a physician, the privilege still protects the information from disclosure.  Read more »

Because Michigan’s septage waste disposal statute explicitly states it does not preempt local ordinances imposing stricter requirements, the Court of Appeals in Gmoser’s Septic Service LLC v Michigan Septic Tank Association upheld East Bay Township’s mandate that all township septic waste be disposed of in the Grand Traverse facility.

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The Michigan Supreme Court has affirmed the Court of Appeals in a February 8, 2013 opinion, holding that a medical marijuana dispensary that facilitates patient-to-patient transfers of marijuana is not protected by the Michigan Medical Marihuana Act (MMMA) and is therefore subject to injunction as a public nuisance.  See the prior post on the Court of Appeals opinion here.

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