One Court of Justice

On September 29, 2009, the Court of Appeals published a 2-1 opinion in Shivers v. St. Mary’s Medical Center of Saginaw, Inc., No. 284635, affirming in part and reversing in part.  The Court of Appeals reversed the trial court’s order denying defendants’ motion for judgment notwithstanding the verdict, and vacated the jury’s economic damage award of $522,000.  In this medical malpractice case, the jury awarded plaintiff approximately $1.8 million in economic and non-economic damages.  The Court of Appeals agreed with defendants’ argument that there was no evidence presented showing that plaintiff would suffer future economic damages.  Although counsel for plaintiff argued damages for professional attendant care services to the jury, the Court of Appeals concluded that this was in the context of non-economicdamages.  The Court of Appeals noted that given the facts of this case, while a jury could infer that plaintiff would require attendant care, there was no evidence upon which the jury could calculate its award for future economic damages.  Judge Servitto’s opinion dissenting in part and concurring in part can be found here.

On September 29, 2009, the Court of Appeals issued its unanimous opinion in Renny v. MDOT, No. 285039, affirming the trial court’s grant of summary disposition to defendant Michigan Department of Transportation (MDOT).  In this personal injury lawsuit, plaintiff sued MDOT for injuries she sustained when she slipped and fell on a patch of snow and ice in front of the entranceway of a state rest area building.  Plaintiff alleged that the lack of gutters and downspouts in the building, as well as other defects, allowed for the accumulation of snow and ice on the sidewalks in front of the entranceway, thereby creating hazardous conditions for the public.  Plaintiff also alleged that MDOT failed to repair and maintain the building, which was previously equipped with some form of downspouts system.   

On remand from the Michigan Supreme Court, Renny v. MDOT, 478 Mich. 490, 734 N.W.2d 518 (2007) (Renny II), the trial court determined that plaintiff’s injuries resulted from a design defect in the building rather than a failure to maintain the building.  In Renny II, the Michigan Supreme Court held that design defects do not fall within MCL § 691.1406, the public building exception to governmental immunity.  Adhering to Renny II, the Court of Appeals emphasized that injuries resulting from a design defect of a government building, instead of a failure to maintain or repair, fail to satisfy a necessary element to avoid governmental immunity under the public building exception.  Accordingly, the Court of Appeals concluded that summary disposition was proper. 

This case is a likely candidate for Michigan Supreme Court review because it presents an important question of statutory interpretation that the current Court may view differently than it did in 2007, when Renny II was decided.

Yesterday, the Michigan Supreme Court issued one order amending the text of a previous order that dismissed the appeal on stipulation of the parties.

On Monday, September 28, 2009, the Michigan Supreme Court denied 232 complaints and applications for leave, one motion to waive fees, and eight motions for reconsideration.  The Court also unanimously remanded People v. Gordon, Case No. 138382, with directions to correct the judgment of sentence to specify that defendant’s convictions and sentences were supported by two theories.  And the Court remanded as on leave granted People v. Huston, Case No. 138287, so the Court of Appeals could consider a challenge to the scoring of Offense Variable 10, MCL § 77.40, in light of People v. Cannon, 481 Mich. 152 (2008).  Finally, the court administratively closed People v. Dewulf, Case No. 137574, after first vacating an order that assessed a prisoner defendant $475 in unspecified fees.

On Friday, September 25, 2009, the Michigan Supreme Court denied leave to appeal in People v. Aceval.  Leave was denied by an equally divided Court with Justices Cavanagh and Markman and Chief Justice Kelly dissenting.  Justice Corrigan recused herself because she has agreed to be a character witness for retired Wayne County Circuit Judge Mary Waterstone. 

Aceval, an Inkster bar owner, was convicted of possession of cocaine.  During his first trial, Judge Waterstone, the former head of the Wayne County prosecutor’s drug unit, and two police officers allegedly permitted perjured testimony to conceal the identity of a confidential informant.  The first trial ended in a mistrial, and Aceval was retried.  During the second trial, Aceval’s counsel uncovered the perjury and the Judge Waterstone recused herself.  The replacement judge disqualified one of Aceval’s attorneys who had appeared for the limited purpose of filing certain pretrial motions.  Aceval eventually entered a guilty plea.

On appeal, Aceval contended that he was denied his right to counsel of his choice and that the use of perjured testimony at his first trial deprived him of due process to the extent that his retrial should have been barred.  The Court of Appeals found the conduct at the first trial to be “disgraceful” and “reprehensible,” but did not conclude that Aceval had been denied the counsel of his choice or that retrial was barred.  The Court of Appeals’ decision is here.

Judge Waterstone, the prosecutor, and the two officers have been charged with felonies for permitting the perjured testimony. The Detroit News is reporting that Justice Corrigan has agreed to be a character witness for Judge Waterstone. 

On Friday, September 25, 2009, the Michigan Supreme Court granted leave to appeal in Hoover v. Michigan Mutual Insurance Co.  The Court ordered the parties to address whether under the No-Fault Act, the defendant is obligated to pay for various costs including increases in property taxes, standard utility bills, homeowner’s insurance, home maintenance costs, telephone bills, dumpster expenses, elevator inspection expenses, cleaning stipends paid to the accident victim’s mother for time spent cleaning the victim’s area of the home, and snow removal.  The Court further ordered the parties to address whether Griffith v. State Farm Mutual Automobile Insurance Co., 472 Mich. 521 (2005) was correctly decided.  In Griffith, the Court concluded that food consumed by an accident victim while being cared for at home are not recoverable as “allowable expenses” under the No-Fault Act.  The Coalition Protecting Auto No-Fault, an advocacy group including various health care provider groups and the Michigan Association of Justice, submitted an amicus brief.

The Court also vacated the Court of Appeals’ judgment Braverman v. McCormick (In re McCormick), and remanded the case to the probate court to require an itemized accounting of the amounts that the petitioner and the receiver were paid from the estate.   In People v. Lloyd, in lieu of granting leave to appeal, the Court remanded the case to the Court of Appeals to reconsider whether the trial court’s error in admitting a 911 call was constitutional, whether the court had applied the proper “harmless beyond a reasonable doubt” standard, and whether the error was in fact harmless beyond a reasonable doubt. 

Finally, the Court denied leave to appeal in four cases.

In In re Foster, Nos. 289345 & 289346 (published Sept. 24, 2009, after earlier unpublished release), the Court of Appeals addressed the impact of foster care placement when determining whether to terminate parental rights under MCL § 712A.19b.  Under MCL § 712A.19b(5),  “[i]f the court finds [1] that there are grounds for termination of parental rights and [2] that termination of parental rights is in the child’s best interests, the court shall order termination of parental rights.”  The parents argued that the trial court improperly considered the facts of the child’s foster care (the child had been developing well in foster care and his foster parents wanted to adopt him) when determining if the statutory “grounds for termination” were met.  The Court of Appeals disagreed, concluding that the trial court had not weighed the child’s foster care as a ground for termination, but had instead relied upon a proper statutory ground:  that “[t]he 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).  Furthermore, when looking at the second half of the termination evaluation—”that termination of parental rights is in the child’s best interests”—the trial court properly examined the foster care situation.

On September 23, 2009, the Michigan Supreme Court denied thirteen applications for leave to appeal. It vacated and remanded two criminal cases and one civil case. The Court granted one motion for immediate consideration and it also took substantive action in one criminal case and one civil case. These are discussed after the jump. Read more »

On September 22, 2009, the Court of Appeals reversed the decision of the Wayne County Circuit Court, holding that the Circuit Court should have granted a stipulated order of mandamus ordering the Detroit city clerk to place on the November 2009 general election ballot a proposal regarding the composition of the Detroit City Council.  Specifically, the Court of Appeals directed the Detroit city clerk to place on the ballot the following question:  “Shall the Detroit City Charter be amended to provide for a total of nine members of City Council with one (1) council member, with district residency, elected from each of seven (7) districts and two (2) members elected at large[?]” Read more »

On September 22, 2009, the Court of Appeals issued its opinion in Charter Township of Meridian v. Ingham County Clerk, No. 279459 affirming summary disposition in favor of East Lansing’s annexation of a portion of Meridian Township.  The Township challenged the annexation referendum (which passed in the November 2006 election) on the grounds that it only allowed those qualified electors from the small portion of the Township to be annexed to vote, as opposed to the entire Township.  Both the trial court and the Court of Appeals rejected this challenge, finding no violation of voting rights or equal protection guarantees. Read more »

On September 22, 2009, the Court of Appeals published its decision in Lamont Community Church v. Lamont Christian Reformed Church, No. 283154.  This case arises from a 2005 split in the congregation of the  Christian Reformed Church (“CRC”)-affiliated Lamont Christian Reformed Church (“LCRC”), whereby a number of people left LCRC and formed the Lamont Community Church (“LCC”).  LCC demanded that LCRC turn over real property that LCRC had transferred to a separate, nondenominational holding corporation in 1998.  The CRC hierarchy determined that the real property belonged to LCRC.  LCC disagreed and filed a civil action.  The Court of Appeals affirmed the trial court’s decision to uphold the CRC’s resolution of the property dispute, reiterating that in dealing with a heriarchical denomination, the court’s role is limited to enter judgment consistent with the denomination’s determination. Read more »

The Detroit Free Press is reporting that the Michigan Court of Appeals has reversed a Wayne County Circuit Court decision from last week that struck a ballot proposal that will allow voters to decide whether to elect City Council members by district beginning in the 2013 election cycle.  Unless the Michigan Supreme Court intervenes, the proposal will appear on the November 3 ballot.  The trial court had concluded that the ballot language was “insufficient.”  But the Court of Appeals held that the City Clerk had a clear legal duty to place the proposal on the ballot after she “canvassed the petitions . . . and certified the sufficiency of the petition.”

On Friday, September 18, 2009, the Court denied leave to appeal in two cases, denied a prisoner’s motion to waive fees, denied reconsideration of In re McBride Minors (Corrigan, J. and Kelly, C.J. dissenting) and ordered supplemental briefing on the issue of whether the government tort liability act applies to claims against a former tribal chairperson in Sault St. Marie Tribe of Chippewa Indians v. Bouschor (application for leave pending), and entered remand orders in the following cases:

• People v. Elanani:  The Court vacated the decision of the Court of Appeals because the Court concluded that the trial court erred in scoring the defendant’s offense and erroneously departed from the guideline range.   The Court remanded the case to the circuit court for re-sentencing.   Justice Weaver dissented and would have denied leave to appeal.
• People v. Wiggins:  The Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for consideration, as on leave granted, whether the circuit court the defendant’s offense was properly scored.  Justice Weaver again dissented, and Justice Markman concurred to dispute Justice Weaver.

On Friday, September 18, 2009, the Michigan Supreme Court remanded Lipnevicius v. Lipnevicius to the Court of Appeals as on leave granted.  Somewhat unusually, the Court directed the Court of Appeals to address various specific questions regarding the equitable parent doctrine.  Chief Justice Kelly dissented and would have granted leave to appeal because the case presents an issue of first impression:  how the equitable parent doctrine applies where the legal father wishes to continue as father even though he is not the biological father, and the biological father also seeks legal right to the child.  This case seems likely to return to the Michigan Supreme Court after decision by the Court of Appeals.

If an unwed couple has a baby and Medicaid pays the confinement and pregnancy expenses, then the expenses may be apportioned to the father of the child (but not the mother).  MCL § 722.712(3).  But if the father later marries the mother, the father’s repayment obligation is abated (subject to reinstatement for good cause, including divorce).  MCL § 722.712(4) & (5).  In Booker v. Shannon, No. 284937 (published Sept. 17, 2009), the Court of Appeals addressed whether these provisions, which took effect October 1, 2004, applied to a marriage that occurred in 1997.  Based on the plain language of the statute and on policy considerations of encouraging unwed parents to marry and remain married, the Court held that the abatement provision applies to marriages that occurred before the provision’s effective date, and therefore reversed the circuit court. Read more »

On September 16, 2009, the Michigan Supreme Court denied seventeen applications for leave to appeal and granted one motion in Pierron v. Pierron, No. 138824, striking the defendant’s non-record affidavit, pursuant to MCR 7.210(A)(1), because it contained information that was not part of the record on appeal.  The Court also took substantive action in two criminal and two civil cases which are discussed after the jump. Read more »

On September 15, 2009, the Michigan Supreme Court granted one appellant’s request to dismiss an application for leave to appeal, granted eight extensions in briefing schedules, and granted motions allowing amicus curiae briefs in two cases.

In Wolverine Power Supply Cooperative, Inc. v. Department of Environmental Quality, No. 287553 (published September 15, 2009), the Michigan Court of Appeals struck down MDEQ Rule 1830, which purported to add a contested case proceeding to the process for obtaining a permit to install a new source of air emissions.  Under the detailed procedures that the Legislature has enacted for air permitting, an RJA appeal is the only prescribed remedy when the MDEQ issues a new permit to install.  By contrast, the Legislature provided both an RJA appeal and a contested case proceeding for MDEQ decisions involving operating permits.  In its published opinion, the Court of Appeals held that the inclusion of the contested case procedure in the subsection concerning operating permits, but not in the subsection concerning permits to install, demonstrates the Legislature’s decision that contested case hearings are not appropriate for decisions on permits to install.  Accordingly, Rule 1830 cannot stand.

Disclaimer:   WNJ represented the prevailing party, Wolverine Power, in the Court of Appeals.

On Friday, September 11, 2009, the Michigan Supreme Court peremptorily reversed the Court of Appeals’ decision in Oneida Charter Township v. City of Grand Ledge.  In Oneida, the City of Grand Ledge and the Oneida Charter Township entered into a long-term contract by which the City of Grand Ledge provided water service to some of the residents of the township and charged those residents twice the rate it charged City of Grand Ledge residents.  Nearly 25 years later, the township sued claiming that under MCL § 123.141, the City of Grand Ledge cannot charge township residents more than the city’s actual cost of providing the water.  The township advanced the argument that the statute, read as a whole, prohibits the City of Grand Ledge from charging township residents more than its actual cost.  Grand Ledge responded that the statute explicitly excludes municipalities, like Grand Ledge, that serve less than 1% of the State’s population, and that the actual cost requirement applies only to water department customers, not suppliers.  The Eaton County Circuit Court agreed with Grand Ledge and dismissed the township’s case with prejudice.  The Court of Appeals reversed and adopted the township’s reasoning.  The Michigan Supreme Court reinstated the circuit court’s ruling, and explained that the actual-cost requirement in MCL § 123.141 does not apply to the City of Grand Ledge.  Our previous summary of the Court of Appeals’ decision is here.

Disclaimer:  WNJ represented the prevailing petitioner, City of Grand Ledge, in the Michigan Supreme Court.

Yesterday, the Michigan Supreme Court peremptorily reversed the Court of Appeals’ decision in People v. Lonsby in light of the Court’s recent decision in People v. Jackson.  In Lonsby, the Court of Appeals reversed the trial court’s imposition of costs for defendant’s attorney’s fees because the trial court failed to consider the defendant’s ability to pay.  In Jackson, the Court held that an assessment of a defendant’s ability to pay is not necessary at the time costs are imposed.  Our previous summary of the Jackson decision is here.