One Court of Justice

On June 29, 2009, the Michigan Supreme Court administratively closed one case because the plaintiff-appellant failed to refile his pleadings as required by the Court’s order.

On June 26, 2009, the Michigan Supreme Court denied applications for leave to appeal in seven cases and denied reconsideration in Attorney General v. MPSC, Case Nos. 136431 and 134676.  Our previous post regarding the Court’s summary decision in MPSC can be found here.

Whiskey, a horse, lives in Columbiaville, Michigan.  During a visit by a neighbor, he reared up, catching the neighbor’s hand in his halter and injuring the neighbor’s shoulder and arm.  The neighbor sued the owner, who was present during these events, claiming that the owner was negligent by failing to properly secure Whiskey before saddling him, by alarming him, and by saddling Whiskey in a manner that caused him to spook.  In Beattie v. Mickalich, No. 284130 (published June 25, 2009), the Court of Appeals interpreted the Equine Activity Liability Act, MCL § 691.1661 et seq., and held that an exception in the Act authorizing negligence claims applies only when the negligence involves something other than inherently risky equine activity.  The court therefore affirmed the grant of summary disposition in favor of the owner.

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In Auto-Owners Insurance Co. v. Keizer-Morris, Inc., No. 284753 (published June 25, 2009), the Court of Appeals reversed a circuit court order denying a motion to intervene.  The background events began when a man was injured while performing construction activities, allegedly because a piece of equipment exploded.  The injured man sued the equipment manufacturer.  The equipment manufacturer then sought to have its insurer defend the suit, but the insurer denied coverage.  The insurer filed a separate suit—this suit— seeking a declaration that its policy excluded coverage for the accident.  The injured man sought to intervene in this suit as a necessary party because the equipment manufacturer had dissolved or otherwise become defunct, but the circuit court denied his motion to intervene, even though the equipment manufacturer neither appeared nor filed any opposition to the insurer’s motion for summary disposition.  Writing for the Court of Appeals, Judge Markey concluded that the injured man’s interests were not adequately represented by the existing parties, see MCR 2.209(A)(3), and held that circuit court abused its discretion by denying the injured man’s motion to intervene under these circumstances.

On June 24, 2009, the Michigan Supreme Court issued one order in the case of Wojnicz v. Parole Board, No. 139017.  The Court denied the prisoner’s motion to waive filing fees, for the reason that under MCL § 600.2963, a prisoner pursuing a civil action is liable for filing fees.  However, the Court authorized a delayed payment plan.  A copy of the Court’s order can be found here.

Yesterday, the Court of Appeals published a per curiam decision in 2000 Baum Family Trust v. Babel, No. 284547, which affirmed the decision of the Charlevoix County Circuit Court that the owners of lots that fronted Lake Charlevoix but were separated from the water by a road, did not have riparian rights because that road had been dedicated to public use.  The Court concluded that the dedication of the road for public use, which was done under the 1887 Plat Act, vested the public with a fee title interest in the road.  The fronting property owners argued that the dedication was only for the limited purpose of maintaining the street, and did not cut off their riparian rights.  The Court of Appeals agreed that the language of the dedication controls the extent and scope of the fee interest.  But the Court of Appeals examined the exact language in the 1911 dedication, and concluded that the broad dedication of the road for the public’s “use” did not limit the scope of the fee interest to maintenance and does not vest the property owners with any riparian rights.

On June 23, 2009, the Court of Appeals published a split opinion in Moser v. City of Detroit, No. 283922, holding that the Michigan Department of Transportation (MDOT) did not have governmental immunity from the plaintiff’s suit in tort for injuries he suffered when concrete from the fascia of an overpass fell onto his windshield.  MDOT filed this interlocutory appeal of right after the Wayne County Circuit Court concluded that the highway exception to governmental immunity, MCL § 691.1402, applied in this situation.  The majority affirmed, reasoning that the definition of a highway includes bridges, that the Michigan Supreme Court in Nawrocki v. Macomb County Road Commission, 463 Mich. 143, 162, 615 N.W.2d 702 (2000), determined the exception encompassed the “actual physical structure of the roadbed surface,” and that the fascia, being necessary to support the traveled surface, is part of the structure of the roadbed surface.   MDOT therefore could be held liable for not keeping this part of the improved portion of the highway reasonably safe and fit for travel.  The dissent disagreed, arguing that the statute, if it is narrowly drawn as it should be, must be interpreted to only encompass that portion of the bridge that is driven on (i.e., makes contact with the wheels), which does not include the fascia.  The dissenting opinion can be found here.

Yesterday the Michigan Supreme Court denied 121 applications for leave to appeal, denied 12 motions for reconsideration, remanded one case to the trial court, remanded three cases to the Court of Appeals, ordered supplemental briefing and oral argument on the application for leave to appeal in Lee v. City of Detroit, No. 138091, concerning the sufficiency of the evidence in a Whistleblower claim, granted leave to appeal in People v. Wilcox, No. 136956, on the issue of whether the legislative sentencing guidelines applied in that case, and granted reconsideration in People v. Richmond, No. 136648, on the issue of whether the dismissal of charges rendered moot the prosecutor’s subsequent appeal.

In response to the State’s budget problems, Friday, June 19, 2009, marked the first of six so-called “furlough” days that the Michigan Supreme Court has scheduled for itself and the Court of Appeals through the end of the year.  Our previous post announcing the program and listing the furlough dates can be found here.

On Thursday, June 18, 2009, the Michigan Supreme Court issued an order staying trial court proceedings in Korpal v. Shaheen, Case No. 138724, pending resolution of the interlocutory application for leave to appeal.

In Vushaj v. Farm Bureau General Insurance Co. of Michigan, No. 283243 (published June 18, 2009, after earlier release), the Court of Appeals interpreted an insurance policy that provided that coverage was not available for any loss that occurs “while a described building, whether intended for occupany by owner or tenant, is vacant or unoccupied beyond a period of 30 consecutive days.” The Court concluded that the terms “vacant” and “unoccupied” had commonly used meanings and were not ambiguous: they meant that the house was routinely characterized by the presence of human beings.  The insured claimed the building was occupied because his father generally spent one night every other week at the premises for two years.  The Court, however, reasoned that the house was not routinely characterized by the presence of human beings where the insured’s father slept elsewhere approximately 678 times over the course of two years, and only slept in the house 52 times.  The Court also rejected the insured’s argument that the presence of furniture kept the building from being “vacant” because it was not completely empty.  The per curiam decision is available here.

In 1300 Lafayette East Cooperative, Inc. v. Savoy, Nos. 281577 & 282128 (published June 18, 2009, after earlier release), the Court of Appeals concluded that a landlord was not precluded from bringing a claim for damages for unpaid rent even though it had not joined that claim with its claim for summary eviction.  Under MCL § 600.5739(1), a party to such summary proceeding may join claims for money judgment, but it is not required to do so.  A summary eviction judgment does (and must) state the amount of past rent due, but it is not a judgment for damages enforceable by a writ of execution.  And because a summary eviction judgment is conclusive only on the narrow issue of whether the eviction was proper, it constitutes res judicata only on the question of who has the right to the premises, and thus does not preclude a subsequent claim for money damages.  Accordingly, the Court of Appeals reversed the circuit court’s ruling that the summary eviction judgment barred the claim for damages.

The decision also affiirmed the circuit court’s denial of sanctions to the tenant:  the landlord’s primary purpose in bringing  the action was not to “harass, embarrass, or injure” the prevailing party (which was now the landlord), the landlord could reasonably believe the facts it alleged were true (they were, after all, undisputed), the landlord’s legal argument was not frivolous (as shown by the fact it prevailed).  The per curiam decision can be found here.

On Wednesday, June 17, 2009, the Michigan Supreme Court denied leave to appeal in 14 cases, denied a motion for damages and attorney fees for a vexatious appeal in Chabiaa v. Chabiaa, No. 137575, and denied the appellee’s motion for reconsideration of the Court’s February 4, 2009 denial of its application for leave to appeal in Calloway v. General Motors Corporation, No. 137254.  In lieu of granting appeal, the Court also affirmed the holding of the Court of Appeals and closed the case of Roberts v. Safewell, No. 137749, which is discussed in more detail after the jump. Read more »

On June 16, 2009, the Court of Appeals submitted for publication earlier opinion in People v. Wallace, No. 283079, which held that the trial court was not required to consider the criminal defendant’s ability to pay in imposing costs under MCL § 769.1k, other than requiring reimbursement of appointed counsel’s costs.  In this case, the Court limited application of the rule in People v. Dunbar, 264 Mich. App. 240, 690 N.W.2d 476 (2004), which required trial courts to take that factor into account before requiring reimbursement of appointed counsel’s costs.  The Court explained that, while the statutory scheme for imposing costs that was enacted after Dunbar, MCL § 769.1k, and did not eliminate the Dunbar requirement, it also did not impose consideration of the Dunbar factor as a prerequisite to imposing other costs.  The court seemed to conclude that the statute restrained it from imposing that requirement as to other costs.  In essence, the act’s silence on the issue had the effect of both preserving the judicially imposed Dunbar requirement and blocking any judicial extension of that rule to other costs.  This “freeze” on common-law development in an area that the statute apparently did not supersede begs for further explanation and justification, which opinion’s generic application of statutory construction principles fails to provide.

On June 16, 2009, the Court of Appeals published an authored opinion in Risko v. Grand Haven Charter Township Zoning Board of Appeals, No. 282701, holding that the appellants were not entitled to a variance because their desire to build according to their preferred design was not a “substantial property right.”  The variance provisions in the township’s ordinance only permitted a variance from the building setback requirements if necessary to preserve a substantial property right.  After substantial discussion of Michigan Supreme Court precedent and cases from other jurisdictions, the Court of Appeals defined “substantial property right” as “the right to possess, use and enjoy the valuable and important aspects of ones land, but subject to land use regulations that advance legitimate government interests.”  Reversing the trial court, the Court of Appeals concluded that the township had properly denied the variance because an alternative design was available to the appellants that would permit them to build the two-stall garage without violating the building setback requirements.  The court also reversed the trial court’s holding that the ZBA had violated the appellants’ constitutional right to equal protection, finding no evidence in the record that appellants were treated irrationally differently from other similarly situated residents who had been granted a variance.

On June 16, 2009, in Auto-Owners Ins. Co. v Martin, No. 281482, the Court of Appeals issued a per curiam opinion finding that the full $1 million policy limit on a used car dealer’s garage liability insurance policy was the primary insurance for an accident occurring during a test drive.  In doing so, the Court of Appeals reversed the trial court’s ruling that the garage liability insurer’s primary liability was limited to $20,000.  Read more »

On June 16, 2009, the Court of Appeals published an authored opinion in People v. Breeding, No. 280708, holding that the criminal defendant’s constitutional right to confront adverse witnesses recognized in Crawford v. Washington, 541 U.S. 36 (2004), does not apply to probate revocation hearings.  The Court of Appeals agreed with other federal circuits, including the Sixth Circuit, that the Sixth Amendment, with its Right to Confrontation Clause, only applies to criminal prosecutions.  Post-conviction proceedings for violations of parole are not part of criminal prosecution.  The Court acknowledged, however, that a due process standard applies in determining the admissibility of statements made by out-of-court declarants, and that MCR 6.445(E)(1) grants probationers in Michigan the right to confront adverse witnesses.  In this case, however, the error was not properly preserved below and no plain error was found in admitting the evidence.  Read more »

Yesterday, the Michigan Supreme Court issued three orders: two orders administratively closing a case and one order correcting a clerical error in its prior order of May 7, 2009, in Department of Agriculture v. Appletree Marketing, LLC, No. 137552.  The court removed the word “fraud” from the statement of the first issue to be briefed.  The corrected statement of the issue can be found here, and the corrected blog posting on the previous order can be found here.

On June 10, 2009, the Michigan Supreme Court issued its opinion in People v. Holder, No. 137486, in a unanimous decision authored by Justice Young.  In Holder, Court considered whether a court has authority under MCR 6.429(A) to modify a sentence that it determines is invalid ex parte.  The Court concluded that the defendant was not on parole at the time he was sentenced, and therefore the Michigan Department of Correction’s (“MDOC”) attempt to retroactively cancel defendant’s parole discharge had no legal effect on defendant’s parole status.  Ultimately, the Court determined that because the original judgment of sentence was valid when imposed, the sentencing judge had no authority to modify it pursuant to MCR 6.429(A).  The case was remanded to the circuit court with orders to reinstate the original judgment of sentence.   A copy of the Court’s opinion can be found here. Read more »