One Court of Justice

On Wednesday, October 28, 2009, the Michigan Supreme Court denied 17 applications for leave to appeal and ordered the Saginaw County Prosecuting Attorney to respond to the application for leave to appeal in People v. Mushatt, Case No. 137846.  Mushatt had been held in abeyance pending the Court’s decision in People v. Idziak.  Our post on Idziak is here.  The Court directed the prosecutor to respond to the application for leave to appeal within 28 days.  The prosecutor was asked to address: 1) whether, in light of the Court’s holding in Idziak, the defendant is entitled to jail credit under MCL §769.11b, and 2) whether because he is being held subject to an Alabama detainer, the defendant has received or will receive credit on his Alabama sentences for the time he spent in jail awaiting the disposition of this case.  The Court also remanded one criminal case for resentencing and peremptorily reversed and remanded three cases, which are discussed after the jump. Read more »

On October 27, 2009, the Court of Appeals published its opinion in the consolidated appeals of Delta Engineered Plastics, LLC v. Autolign Mfg. Group, Inc., No. 283786, Moon Roof Corp. of America v. Autolign Mfg. Group, Inc., No. 283787, and Proto-Plastics, Inc. v. Autolign Mfg. Group, Inc., No. 283788.  In its unanimous opinion, the Court of Appeals reversed the trial court’s order granting declaratory relief in favor of the intervening defendant, a lender, and remanded to the trial court for a determination of the plaintiffs’ damages and appropriate remedies.  The Court of Appeals determined that the plaintiffs’ possessory liens under the Molder’s Lien Act, MCL § 445.611, et seq., on the defendant’s plastic injection molds used for producing automotive parts, have priority over the lender’s security interest in the molds.  The Court of Appeals declined to interpret MCL § 445.618d to ‘expressly’ provide that possessory molders’ liens are inferior to the interests of a secured creditor.  This case appears to be a likely candidate for Michigan Supreme Court review, in that it involves an issue of first impression regarding statutory language that will likely affect hundreds of automotive suppliers and financial institutions with competing security interests.

On October 27, 2009, the Michigan Court of Appeals issued a published opinion in In re Estate of Graves, No. 286674, authored by Judge Alton Davis, affirming summary disposition against an attorney for reimbursement to the estate, after his client, the court-appointed conservator, absconded with the funds.  The Court concluded that the probate court had subject matter jurisdiction over those claims because they concerned a conservatorship and sought return of funds to the estate.  It also held that the special fiduciary’s oral release of Attorney Ford did not bar the fiduciary’s subsequent  claims and that Ford violated state law by issuing the checks to the conservator in her personal name, rather than in her capacity as representative of the estate.
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On October 27, 2009, the Court of Appeals released its published opinion in In re Michael Allen Jones, Jr., No. 290194.  The Court of Appeals affirmed the termination of Appellant’s parental rights to her son.  The Court of Appeals, however, found that the trial court had committed clear error in finding the a statutory ground for termination existed through MCL § 712A.19b(3)(1) which related to involuntary termination of parental rights to another child.  The Court of Appeals pointed out that although the Appellant’s parental rights to her daughter were terminated, such termination was voluntary pursuant to the adoption code and does not meet the terms of the statutory ground cited by the trial court.  The Court of Appeals concluded, however, that this error was harmless.   In this case, the voluntary termination of rights to the daughter occurred after involuntary termination proceedings had commenced.  Pursuant to MCL § 712A.19b(3)(m), there is a statutory basis for termination of parental rights to the son because the voluntary termination of rights to the daughter followed the initiation of involuntary termination proceedings as to the daughter.  Thus, the Court of Appeals concluded there was a proper statutory ground to justify termination of parental rights to Appellant’s son.

On October 27, 2009, the Michigan Court of Appeals published its opinion in Prayer Temple of Love v. Wayne County Treasurer, No. 282995.  The case arises out of a foreclosure action initiated by the Wayne County Treasurer against the Prayer Temple based upon an unpaid assessment of property taxes.  Prayer Temple defended the foreclosure action arguing that its property was used for religious purposes and therefore was statutorily exempt from property taxes.  The Wayne County Treasurer disagreed, arguing that Prayer Temple’s outreach center was leased to a private party.  During the foreclosure proceedings the Wayne County Circuit Court agreed with Prayer Temple and ruled it was exempt from the assessed taxes.  The Court of Appeals, however, concluded that the Circuit Court did not have jurisdiction to make that ruling.  The Court of Appeals held that the Circuit Court can hear purely legal challenges to an assessment (i.e., that a tax assessment was made under the authority of an unconstitutional statute), but that the relevant statutes invest the Michigan Tax Tribunal with exclusive jurisdiction to hear arguments that factual circumstances render an assessment improper.  Thus, the Court of Appeals concluded that the Circuit Court did not have the jurisdiction to conclude that Prayer Temple was entitled to the protection of the religious-purposes exception to property taxes.

On October 26, 2009, the Michigan Supreme Court denied 123 applications for leave to appeal, denied 28 motions for reconsideration, and administratively closed one case.  The Court also held three applications in abeyance pending the outcome in McCormick v. Carrier, No. 136738 (our post on McCormick can be found here), and held one case in abeyance pending the outcome in Hoover v. Michigan Mutual Ins., Case No. 138018 (our post on Hoover can be found here).

On October 23, 2009, the Michigan Supreme Court denied six applications for leave to appeal, and remanded five cases:  two to trial court, two to the Court of Appeals, and one as on leave granted.  The remanded cases are discussed after the jump. Read more »

In Zwiers v. Growney, No. 286828 (published Oct. 22, 2009), the Michigan Court of Appeals reversed dismissal of a medical malpractice claim where the plaintiff filed her complaint one day before the expiration of the 182-day no-suit period of MCL § 600.2912b.  The Court held that MCL § 600.2301, which allows the courts to disregard or correct errors when they “affect the substantial rights of the parties,” empowered the Court to correct the one-day defect in plaintiff’s filing.  The Court’s opinion may be found here.

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The Court of Appeals affirmed the defendant’s conviction for second-degree murder in People v. Roper, No. 285137, in a unanimous opinion published on October 22, 2009.  The Court held that malice could be inferred from evidence that the defendant grabbed a knife, brandished it, swung it at the victim at close range, and then followed the victim outside and kicked him, stomped on him and taunted him.  The Court also affirmed the trial court’s decision to allow the prosecutor to cross-examine the defendant about his character for aggression or violence, because the defendant placed the character trait at issue during his direct testimony when he testified that he was not the sort of person who would do “anything like that” – i.e., who would resort to violence without provocation.  The Court held that this testimony was sufficient under MRE 404(a) to open the door to cross-examination about his character for aggression.  Further, the Court held that Michigan law recognizes an exception to MRE 405(a) concerning permissible forms of character evidence when the defendant places his character at issue on direct and then denies specific instances of conduct on cross-examination.  In such a situation, the prosecution may elicit testimony through a rebuttal witness concerning specific instances of conduct.

When stopped in his truck at a red light, Mr. Fisher was struck from behind by a car, causing him to strike his mouth and nose on the steering wheel.  He lost one tooth as a result of the accident, and three years after the accident he had his remaining upper teeth removed and replaced with dentures, as the accident apparently accelerated existing problems he was already experiencing with his teeth.  He sued the driver and owners of the car and alleged that his injuries amounted to both a serious impairment of body function and a permanent serious disfigurement.  In Fisher v. Blankenship, No. 285852 (published Oct. 22, 2009), the Court of Appeals affirmed the denial of summary judgment to the defendants and allowed Mr. Fisher’s claim to go forward to trial.  The majority opinion is available here, and the dissent by Judge K.F. Kelly here.

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On October 21, 2009, the Michigan Supreme Court denied five applications for leave to appeal, denied one motion for reconsideration, adjourned oral argument in Pellegrino v. Ampco Systems Parking, Case No. 137111, and ordered the argument rescheduled on a future session calendar, granted one motion to extend the deadline for appellee to file its brief, and granted the motion of John A. Braden to file a brief amicus curiae in McCormick v. Carrier, Case No. 136738.  The Court also took substantive action in two criminal and three civil cases, which are discussed after the jump. Read more »

On Friday, October 16, 2009, the Michigan Supreme Court granted leave to appeal in Lighthouse Place Development, LLC v. Moorings Association to address whether recording a title on advice of counsel is a defense to slander of title.  The case arises from very contentious efforts by the plaintiff to use his property to re-site the Village of New Buffalo’s Amtrak station into the village.  The defendant called into question the defendant’s title to the property by recording an amendment to an earlier agreement to terminate certain parking easements near the New Buffalo harbor.  The Court of Appeals declined to declare that advice of counsel is a complete defense to slander of title as a matter of law and concluded that the defendant had failed to identify a sufficient basis in the record to show that it had actually argued advice of counsel as a defense.  The Court of Appeals decision is here.  Judge Wilder dissented and would have reversed the trial court on the slander of title claim based on the advice of counsel defense.

The Court also ordered the Kent County Prosecuting Attorney to respond to an application for leave to appeal in People v. Mitz.  In Mitz, the defendant claims that he pled no contest to a charge of operating a motor vehicle while under the influence (third offense) only after the trial judge told defendant’s counsel off the record that defendant would receive a prison sentence if he took his case to trial.  The sentencing guidelines provide for a term of jail or probation.  Accordingly, the defendant claims that the judge improperly stated or implied that he would receive a harsher sentence if he went to trial.  In a concurrence, Justice Corrigan specifically noted that the Court is considering an amendment to MCR 6.302(C)(1) that would require all discussions regarding a defendant’s plea to take place on the record.  The Court of Appeals denied a late application for leave to appeal leaving open the possibility that the Court will remand this case to the Court of Appeals as on leave granted.

On October 15, 2009, the Michigan Court of Appeals released for publication its unanimous decision in People v. Garland, No. 284300 (decided on August 18, 2009), in which the Court affirmed the defendant’s conviction of four counts of criminal sexual conduct (CSC).  The court examined whether the conviction for two counts of CSC I and two counts of CSC III where there were only two acts of penetration violated the prong of double jeopardy prohibiting multiple punishments.  The defendant was convicted of CSC I because the crime occurred during a home invasion and of CSC III because the victim was physically helpless.  The Court concluded that because the abstract, statutory elements of the two crimes each required proof of an element that the other crime did not require, there was no violation of double jeopardy.  The Court also held that the victim’s statements made to a nurse during an examination following the assault were reasonably necessary for her treatment and were therefore nontestimonial.  Because they were nontestimonial, their admission did not violate the Confrontation Clause of the United States and Michigan constitutions.

The Michigan Court of Appeals published a unanimous decision on October 15, 2009 in Vyletel-Rivard v. Rivard, No. 285210, in which the court held that a motion to vacate a domestic relations arbitration award must be filed either 1) within 21 days after delivery of the initial written arbitration award; or 2) if a motion to correct errors or omissions is filed, within 21 days after delivery of the decision on that motion.  The defendant filed a second motion to correct errors or omissions after receiving the decision on his first such motion, but the Court held that a second motion was not authorized by the statute.  He then filed a motion to vacate only after receiving a decision on his second motion.  Because his motion to vacate was filed more than three months after the decision on the first motion to correct errors, it was untimely.

On October 15, 2009, the Court of Appeals published its unanimous decision in People v. Bemer, No. 284739, holding that the trial court erred when it determined that the defendant’s uncharged armed robbery, which occurred just hours before the crime for which he was being charged, was not contemporaneous criminal conduct under the sentencing guidelines.  The defendant pleaded guilty to unarmed robbery in Jackson County, and on sentencing the trial court concluded that the defendant had also conducted another robbery in Washtenaw County hours before the robbery in Jackson County.  The defendant was not charged with the Washtenaw County robbery.  The Court of Appeals held that in scoring the various offense variables (OV), the trial court erred when it failed to count the earlier uncharged robbery under OV 12 (contemporaneous felonious criminal act), rather than counting it under OV 13 (pattern of felonious criminal activity).  Because the trial court should have considered the uncharged robbery under OV 12, it could not then count it under OV 13.  The Court of Appeals remanded for resentencing.

On October 14, 2009, the Michigan Supreme Court granted two applications for temporary admission to practice law in Michigan, granted appellee’s motion for an extension of time to file its appellee’s brief in two cases, granted leave to the Michigan State Medical Society to file an amicus curiae brief in Holman v. Rasak, Case No. 137993, and granted leave to the Michigan Association for Justice Society to file an amicus curiae brief in Shay v. Aldrich, Case No. 138908.  Our discussion of the Court’s decision to order oral argument on the application for leave to appeal in Shay, and summary of the issues presented in that case, is here. 

The Court also granted leave to appeal in People v. Hill, Case No. 138668, to determine whether an individual is guilty of “making or producing” child pornography when they download child sexually abusive material from the internet.  The Court’s order granting leave can be found here.  A more in-depth discussion of the facts and issues raised in this case can be found after the jump. Read more »

On October 13, 2009, the Court of Appeals published its unanimous decision in Fries v. Mavrick Metal Stamping, Inc., et al., Case No. 283193.  In Fries, the Court of Appeals considered whether an employee’s injury, sustained when her clothing caught in a stamping press, qualified as an intentional tort and, therefore, was an exception to the Worker’s Disability Compensation Act’s exclusive remedy rule.  Here, the employer had been notified that the clothing of another employee had previously been caught in the machine, and that its managers were not monitoring proper use of safety mechanisms on the machines.  On appeal, Mavrick argued that even if this evidence was true, it did not constitute notice that a continuous dangerous condition existed that was certain to lead to injury.  Ultimately, the Court of Appeals affirmed the Antrim County Circuit Court’s order denying Defendant Mavrick’s motion for summary disposition, holding that the circumstantial evidence on record was sufficient that a reasonable jury could conclude that Mavrick was on notice that a continuous dangerous condition existed.  A copy of the court’s order can be found here. Read more »

On October 13, 2009, the Michigan Supreme Court dismissed one case, Progressive Michigan Insurance Company v. Super Kicker Rodeo Productions, Case No. 139504, on stipulation of the parties.

On Friday, October 9, 2009, the Michigan Supreme Court peremptorily reversed and remanded two cases, ordered oral argument on the application in one case, and denied leave to appeal in five cases.  In Auto-Owners Insurance Co. v. Ferwerda Enterprises, Inc., the Court peremptorily reversed the Court of Appeals decision because the Court concluded that the defendants’ claim clearly fell within the coverage provided by the Auto-Owners’ policy.  The Court remanded the case to the Court of Appeals to consider whether the trial court properly assessed attorneys’ fees and penalty interest against Auto-Owners.   

In Andres v. State Farm Mutual Automobile Insurance Co., the Court also peremptorily reversed the Court of Appeals’ decision.  The Court concluded that even though State Farm may not have plead fraud with specificity as an affirmative defense to the plaintiff’s claim, because State Farm did mention fraud in its affirmative defenses and the trial court’s consideration of State Farm’s fraud defense, the Court of Appeals erred by failing to consider State Farm’s fraud defense to the parties’ attendant care agreement.  The Court remanded the case to the Court of Appeals for further consideration.

In Shay v. Aldrich, the Court ordered oral argument on the application for leave to appeal.  The Court ordered the parties to determine whether Romska v. Opper is rightly decided.  Romska, an opinion written by Justice Markman while he was on the Court of Appeals, holds that a where a driver releases “all other parties, firms or corporations who are or might be liable,” the releasor is barred from asserting claims against third parties to the release.

On October 8, 2009, the Court of Appeals approved for publication its decision in Lockridge v. Oakwood Hospital, Nos. 283522 and 284664, originally released on August 20, 2009.  The Court of Appeals affirmed a medical malpractice jury verdict against a hospital and emergency room physician for failure to diagnose a 14-year-old boy with aortic dissection.  The patient was taken to the emergency room after he suffered chest pain, difficulty breathing, vomiting, and collapse.  The physician concluded the patient suffered from anxiety and hyperventilation and treated him with valium and an analgesic.  The boy died in his sleep that evening.  On appeal, the defendants argued they had no duty as a matter of law to diagnose the patient’s condition because it was unforeseeable in a pediatric patient.  The Court of Appeals concluded the physician owed a duty to conform to the standard of care.  In this case, the standard of care required ordering a chest x-ray, which likely would have revealed the condition.  In a typical negligence case, the plaintiff need not show that the specific injury was foreseeable, so long as the evidence establishes that some injury was foreseeable.  On the issue of causation, the Court of Appeals stated that the issue is not whether the patient’s actual ailment is foreseeable, “but whether the patient’s injuries and damages arising from the missed diagnosis qualify as a ‘natural and probable result of’ the defendant’s negligent conduct.”  Slip. Op. at 6