One Court of Justice

On Wednesday December 30, 2009, the Michigan Supreme Court denied twelve applications for leave to appeal and directed the Oakland County Prosecuting Attorney to answer the defendant’s application for leave to appeal in People v. Trakhtenberg, Case No. 138875.  The Court also remanded three criminal cases for further consideration which are discussed after the jump.  Read more »

On December 29, 2009, the Court of Appeals published a unanimous opinion in City of Rockford v. 63rd District Court, No. 287501, affirming the trial court’s grant of summary disposition in favor of Defendants.  The 63rd District Court is divided into two election divisions.  Currently, Judge Servaas presides over the first division in a facility in Rockford, and Chief Judge Smolenski presides over the second division in a facility in Grand Rapids Township.  Kent County, as the “funding unit” of the 63rd District Court, acquired property in Grand Rapids Township to consolidate both divisions of the court in a new facility.  On February 4, 2008, Chief Judge Smolenski issued a statement indicating her support for the proposed consolidation, and stated that, as chief judge, she had the ultimate authority to decide whether both divisions would be consolidated.  The Rockford City Council and Servaas objected to the proposed consolidation.  Plaintiff brought suit seeking declaratory and injunctive relief, on the ground that the proposed consolidation plan violated the statutory requirement that the district court “shall sit” in Rockford.  The location of district courts of the second class is governed by MCL § 600.8251(2), which provides in pertinent part: “[i]n districts of the second class, the court shall sit . . . at each city and incorporated village within the district having a population of 3,250 or more . . . .”  The Court of Appeals determined that the trial court did not err in determining that the 63rd District Court is not required to maintain a full-time judicial presence in Rockford.  To “sit” has been interpreted by the Michigan Supreme Court to generally mean “to hold court” or “do any act of a judicial nature.”  The Court of Appeals further determined that the trial court did not err in holding that the only judicial services the 63rd District Court must provide in Rockford are those it is required to provide under the District Court Act.  The Court of Appeals also determined that the trial court did not err in concluding that, as chief judge, Smolenski had the authority to determine that Servaas would “sit” in Grand Rapids Township, despite his objection.

On December 29, 2009, the Court of Appeals published a 2-1 opinion in Morrison v. Secura Insurance, No. 286936, affirming the trial court’s grant of summary disposition in favor of Plaintiffs.  Plaintiffs suffered injuries after their motorcycle was struck by a Chevrolet Cavalier.  Plaintiffs brought this declaratory judgment action against the Defendant insurance company regarding the validity of the no-fault insurance policy covering the Cavalier.  The insurance policy at issue was purchased by the driver’s mother in October 2005.  The mother was listed as the named insured, and both the mother and the driver were listed as “drivers” of the vehicle, even though only the driver drove the Cavalier.  The driver’s mother paid the premiums for the entire year up front.  At the time the insurance policy was purchased, the driver’s mother was the owner and registrant of the Cavalier.  In March 2006, the driver’s mother transferred title to the Cavalier to the driver, who applied for a new title and registered the Cavalier in her own name.  The accident happened on April 16, 2006.  Defendant argued that the insurance policy was void at the time of the accident because the insured did not have an “insurable interest” in the Cavalier at the time.  The Court of Appeals determined that the trial court’s ruling was correct because the driver’s mother had an “insurable interest” at the time the insurance policy was purchased and paid for, the insured-against risk had not changed, the basis for the “insurable interest” requirement is weak, and public policy favoring family units is strong.  The Court of Appeals did not find the need to reach the issue of whether the driver’s mother had an “insurable interest” in the Cavalier at the time of the accident.  Judge Talbot’s dissenting opinion can be found here.

On December 29, 2009, the Court of Appeals published its opinion in Granger Land Development Co. v. Department of Treasury, Case No. 286355.  Under the unique facts of the case, the Court reaffirmed the proposition that the use or consumption of personal property is exempt from Michigan’s use tax when it is used for industrial processing and is not affixed to or used in the development of real property.  Granger, a landfill operator, employs a complicated and involved process for removing both methane gas and wastewater, or leachate, from its landfills.  In short, Granger constructs impermeable cells, complete with compactors and horizontal and vertical wells, to monitor and capture leachate and methane gas.  Ultimately, Granger sells the captured methane to other companies, which in turn burn the gas to create electricity they sell to a local utility.  At issue was whether the materials and equipment used and consumed to build and maintain these cells should be subject to use tax. Read more »

On December 29, 2009, the Court of Appeals published its consolidated opinion in multiple appeals related to classification of assessable property, Nos. 291579, 291586, 291729, 291730, 291731, 291732, 291733, 291734, and 291907.  In each of these cases, plaintiffs owned assessable parcels of property and challenged the classification of that property to the March board of review.  Then each plaintiff appealed the decision of the March board of review to the State Tax Commission (“STC”) through filing of a classification complaint petition pursuant to MCL § 211.34c(6).  The STC upheld the classification in all these cases, and plaintiffs filed complaints in the relevant circuit courts.  The STC moved for summary disposition in each case on the grounds that the circuit courts lacked jurisdiction.  The Court of Appeals found the circuit courts erred in denying summary disposition in these cases.  Specifically, the Court of Appeals found that MCL § 211.34c(6) “clearly states that an appeal may not be taken from STC’s decision in a property classification appeal.”  Additionally, the Court of Appeals found that review under the Administrative Procedures Act is inapplicable because the STC review does not constitute a “contested case.”  The Court of Appeals also rejected arguments that the right to review exists in the Revised Judicature Act or the Michigan Constitution on the grounds that both provide for the Legislature to exert authority over administrative review, and here the Legislature decided to exercise that authority by cutting off appellate review to the circuit court.

On December 29, 2009, the Court of Appeals published its opinion in Skelly v. Skelly, No. 287127.  In this case, the Court of Appeals overturned a circuit court’s determination that in a judgment of divorce, a wife was entitled to a share of her husband’s retention bonus, and any future bonuses he might earn at his current job.  In this case, the retention bonus involved an installment paid by the employer in 2007, and future payments to be made in 2008 and 2009, as long as the husband remained employed with his current employer.  These bonuses, however, were contingent, and he would have to repay any such bonuses if he left the company before a certain date in 2009.  The trial court ruled that all of the retention bonus installments be divided between the divorcing parties.  The Court of Appeals, however, concluded that none of those bonus installments could be considered “earned” until the husband reached the relevant employment date in 2009—after the marriage had ended.  Thus, the Court of Appeals found that the lower court erred, and none of the retention bonus was earned during the marriage, and thus was not subject to division.  Similarly, the Court of Appeals found that potential future bonuses were not earned during the marriage and are not subject to division.

On December 29, 2009  the Michigan Supreme Court ordered oral argument and supplemental briefing as to whether it should grant applications for leave to appeal in two cases.  One of those cases was Beattie v. Mickalich.  Our summary of the Court of Appeals opinion in that case can be found here.

Robert Curry fell about 20 feet when the tree stand he was hunting from failed, and he sustained injuries from the fall. As Loc-On Corporation, the manufacturer of the tree stand, was defunct, he sued Meijer, Inc., the store where he bought the tree stand, and two companies that supplied Loc-On tree stands to Meijer.  In Curry v. Meijer, Inc., No. 288187 (published Dec. 29, 2009), the Court of Appeals held that his claims against these sellers and distributors failed because he did not prove, as MCL § 600.2947(6)(a) requires, that they failed to exercise reasonable care with respect to the tree stands.

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On December 22, 2009, the Court of Appeals published its per curiam opinion in Taylor v. Kent Radiology, PC, No. 286078, affirming a verdict in favor of Plaintiffs in this medical-malpractice case.  Plaintiff fell off a ladder and injured his foot while working at his business, which sets up and finishes mobile and modular homes.  Plaintiff visited his family physician in December 2003 and was diagnosed with a sprained foot/ankle.  Days later, Plaintiff returned to his family physician, complaining of continued pain in his foot.  His family physician sent him to the hospital for an x-ray.  The radiologist that examined the films at the hospital reported that he saw “no evidence of fracture.”  From December 2003 through March 2004, Plaintiff saw his family physician for continued foot pain.  His family physician eventually suggested that Plaintiff visit an orthopedic surgeon, where he had new x-rays taken.  The orthopedic surgeon’s office informed Plaintiff that he had a broken talus, and Plaintiff underwent ankle surgery.  The delayed diagnosis made the first surgery more difficult and made a second surgery necessary.  Plaintiff sued the radiologist for breaching the standard of care applicable to a radiologist by failing to diagnose the broken talus.  The case proceeded to trial, and the jury returned a verdict in favor of Plaintiffs.  The Court of Appeals concluded that there were no errors warranting relief, and affirmed the verdict.  Judge Kelly concurred in result only. Read more »

On December 22, 2009, the Court of Appeals published a per curiam decision in Al-Maliki v. Lagrant, No. 287641, reversing the trial court’s grant of defendant’s motion for summary disposition and remanding the case.  Plaintiff sued alleging that she suffered serious impairment of body function when her vehicle was rear-ended by a vehicle being driven by Defendant.  Defendant moved for summary disposition on the ground that Plaintiff’s injuries did not meet the threshold for serious impairment of body function.  At oral argument, the trial court sua sponte raised the issue of causation and granted summary disposition on the ground that Plaintiff failed to present evidence to prove that the auto accident caused her injury.  Defendant had conceded the issue of causation for purposes of the summary disposition motion.  The Court of Appeals held that procedural due process error occurred because the record revealed that Plaintiff had no notice that the causation issue would be raised at the summary disposition hearing and was not provided with the opportunity to be heard on the issue.  The Court of Appeals noted that although the trial court has authority to sua sponte grant summary disposition under MCR 2.116(I)(1), the trial court may not do so when the basic requirements of notice and a meaningful opportunity to be heard have not been satisfied.