One Court of Justice

In People v. Womack, the Michigan Supreme Court ordered the defendant’s former appellate counsel to file a supplemental brief explaining why he failed to file a delayed application for leave to appeal within the deadlines set by MCR 7.205(F).  The defendant’s application for leave to appeal remains pending.

The Court, in lieu of granting leave to appeal, peremptorily reversed the Court of Appeals’ decision in People v. Fette, No. 140023, because the trial court’s order to remit prisoner funds for fines, costs, and assessments was correct.

The Court held two cases in abeyance pending decisions in other cases before the Court:  Paquette v. State Farm Mutual Auto Insurance Co., No. 139582, pending decision in University of Michigan Board of Regents v. Titan Insurance Co., No. 136905; and Woodward Parking Co. v. City of Detroit, Nos. 140073, 140074, 140075, pending decision in Briggs Tax Service, LLC v. Detroit Public Schools, Nos. 138168, 138179, 138182.  Our previous posts on Titan and Briggs can be found here and here.

The Court also denied leave to appeal in 115 cases and reconsideration in 10 cases.

Yesterday, the Michigan Supreme Court denied one motion for reconsideration and amended an order to correct a clerical error.

The United States Supreme Court has created a separate web page with links to the substantive pleadings in the Asian Carp litigation.  That litigation encompasses three original jurisdiction actions that the State of Michigan is seeking to reopen for the purpose of obtaining an order that closes the locks and sluices connecting Illinois waterways to Lake Michigan.  The Supreme Court’s web page can be reached here.

Disclaimer:  WNJ represents amicus curiae the Michigan Shoreline Caucus in support of Michigan’s petition to reopen.

Yesterday, the Michigan Supreme Court issued one order, denying a prisoner’s motion to waive fees.

In what is believed to be the first deal of its kind anywhere in the country, Thomas M. Cooley Law School has entered into an 11-year naming-rights contract for the Lansing minor league baseball stadium that is home to the Lansing Lugnuts.  What was Oldsmobile Park is now Cooley Law School Stadium.  The National Law Journal article regarding Cooley’s new venture can be found here.

On February 23, 2010, the Court of Appeals issued its unpublished opinion in Webber v. Muy Grande Ranch, Inc., No. 289113, affirming the trial court’ s grant of summary disposition on multiple counts of fraud and breach of contract in connection with a real estate transaction.  Most relevant to practitioners, the Court’s opinion discusses a non-movant’s burden of proof when arguing that additional discovery is necessary before the trial court may make a summary disposition decision.

The Court began by emphasizing that a motion under MCR 2.116(C)(10) may be raised at any time.  MCR 2.116(D)(4).  If a party opposes the motion on the ground that discovery is incomplete, the party must assert that a factual dispute does indeed exist, and must support that allegation “by some independent evidence.”  Bellows v. Delaware McDonald’s Corp., 206 Mich. App. 555, 561; 522 N.W.2d 707 (1994).  Here, the plaintiffs, the non-moving parties, raised the issue of incomplete discovery but failed to support their claim with independent evidence.  Instead, the plaintiffs simply cited the defendants’ brief and attached their own attorney’s deposition and the real estate purchase agreement.  None of this evidence was sufficient to create a genuine issue of material fact, or to warrant the suspension of summary disposition proceedings until discovery was complete.

Disclaimer:  WNJ represented GreenStone Farm Credit Services, a prevailing defendant-appellee in this case.

One Michigan statute authorizes the recipient of a dishonored check to seek treble damages.  MCL § 600.2952(4)(b).  A second Michigan statute specifically addresses the business of payday loans (called “deferred presentment service transactions” by the statute) and limits recovery by payday lenders to the amount of the check plus a $25 returned-check charge.  MCL § 487.2158.  Interpreting these statutes, the commissioner of the Office of Financial and Insurance Regulation (OFIR), which licenses payday lenders, issued an administrative order prohibiting payday lenders from seeking treble damages under the first statute and stating that they could be fined or lose their licenses if they did.  A Michigan trial court struck the order down as an unconstitutional infringement on the right of access to the courts because the payday lenders were purportedly being denied their right to seek certain legal remedies in court.  In Michigan Deferred Presentment Services Association, Inc. v. Ross, No. 292685 (published Feb. 18, 2010), the Court of Appeals reversed, concluding that because the two statutes conflicted, the more specific of the two would apply, and that the latter statute was more specific because it addressed remedies available to payday lenders, as opposed to members of the general public, when they received nonsufficient funds checks.  The administrative order therefore properly stated the law, the Court of Appeals concluded, and should not have been struck down.

On Wednesday February 17, 2010, the Michigan Supreme Court denied one motion by a prisoner seeking a waiver of filing fees and administratively closed the case of Howard v. Department of Corrections, Case No. 139966, for failure of the plaintiff-appellant to pay the partial filing fee. 

Additionally, in lieu of granting leave to appeal the Court vacated the judgment of the Court of Appeals and remanded the case of Griesbach v. Ross, Case No. 136731, to the Oakland County Circuit Court for reconsideration in light of the Court’s decisions in Bush v. Shabahang, 484 Mich. 156 (2009) and Potter v. McLeary, 484 Mich. 397 (2009).  Our post on Bush can be found here and our summary of Potter is here.  Justice Young dissented arguing that the plaintiff does not meet the requirements of MCL § 600.2912b(3), and therefore is not entitled to the additional notice period provided by that statute, and that both Bush and Potter are inapplicable to this case.  The Court’s Order can be found here.

The Michigan Supreme Court denied an emergency application to exercise superintending control in a bar examination dispute.

Defendants who entered the plaintiff’s apartment to execute a temporary restraining order (TRO), but wrongly told the plaintiff the TRO was a federal subpoena that allowed them to enter the apartment to either take his computers or copy what was on them, may be liable for invasion of privacy and trespass.  In Dalley v. Dykema Gossett, P.L.L.C., No. 289046, a published opinion issued on February 11, 2010, the Michigan Court of Appeals reversed in part a circuit court order granting summary disposition to the defendants under MCR 2.116(C)(8).  In a separate federal action, the defendants had obtained a TRO to secure certain computer data, including data from a non-party to that lawsuit, the plaintiff in this action.  Several of the defendants served the TRO by slipping it under the plaintiff’s apartment door, and soon thereafter called the plaintiff to explain that the TRO was a federal subpoena that allowed the defendants to enter the plaintiff’s apartment to either take the plaintiff’s computers and hard drives or copy the data on them.  According to the amended complaint, the plaintiff reasonably believed that he had no choice and would go to jail if he refused access to his computers.  He thereafter allowed the defendants to enter his apartment, and then directed them to the only computer that might contain information described in the TRO.  But the defendants nonetheless copied the data from two of the plaintiff’s computers and four hard drives.  The Court of Appeals held that because the plaintiff alleged defendants gained access to the plaintiff’s apartment through subterfuge and threat, and then copied more than the one computer to which the plaintiff had consented, the plaintiff stated a claim for invasion of privacy.  For the same reasons, the Court held that the defendants’ misrepresentations could reasonably be found to have vitiated the plaintiff’s consent to enter his apartment, and the plaintiff also stated a claim for trespass.  The Court affirmed the trial court’s dismissal of claims for intentional infliction of emotional distress, abuse of process, and tortious interference with a business relationship.

Yesterday the Michigan Supreme Court granted permission to the Detroit News to file an amicus curiae brief in Smith v. Anonymous Joint Enterprise, No. 138456-8, a case we previously addressed here (fourth paragraph).  It also granted permission to both the Insurance Institute of Michigan and the Coalition Protecting Auto No-Fault to file amicus curiae briefs in University of Michigan Regents v. Titan Insurance Agency, No. 136095, a case we noted here.  The Court also granted a handful of extensions of time for the filing of briefs and a request to adjourn oral argument, and it denied two motions by prisoners seeking the waiver of filing fees.

At a recent Wayne State University symposium on judicial selection, retired U.S. Supreme Court Justice Sandra Day O’Connor called for change in the way Michigan elects its judges.  The full article, as printed in The Detroit News, can be found here.

On February 9, 2010, the Court of Appeals released an unpublished opinion in Socia v. Pacers Basketball Corp., No. 284845, affirming the dismissal of a Palace worker’s suit against two Pacers players under theories of negligence and gross negligence.  On November 19, 2004, the plaintiff was injured during the infamous “Palace brawl” that occurred at a basketball game between the Indiana Pacers and the Detroit Pistons at the Palace of Auburn Hills.  The plaintiff was working at the Palace and was injured while helping to keep a tunnel clear for the players to exit.  As the two defendants were confronting spectators near the tunnel, another spectator threw a chair that hit the plaintiff on her head.  The Court of Appeals concluded that the plaintiff failed to establish that the defendants owed a duty to the plaintiff.  The Court of Appeals emphasized that an individual has no duty to protect another from the criminal acts of a third party without a special relationship giving rise to that duty.  Here, where the plaintiff did not allege that she entrusted her safety to the control of the defendants or that she lost control to protect herself, there was no special relationship.

On February 9, 2010, the Court of Appeals published its opinion in Citizens State Bank v. Nakash, No. 286990.  Here, a property owner owed a lender $250,000 pursuant to a promissory note secured by a mortgage on real property.  Ultimately, the property owner defaulted on the mortgage and the property was placed into foreclosure.  At the time of the Sheriff’s Sale, the amount due under the mortgage, along with subsequent loans, interest and costs was approximately $474,000.  The lender was the only bidder, and bid that exact amount.  A subsequent mortgage lender argued that initial lender’s mortgage lien was limited to $250,000, and the $474,000 bid created a surplus that they were entitled to as a junior lien holder on the property.  The initial lien holder countered, arguing that its initial mortgage was a future advance mortgage, and thus the bid did not create a surplus.  The initial mortgage itself did not contain any future advance language, but the initial lender argued that it incorporated the underlying promissory note that did use such language.  The Court of Appeals affirmed the trial court’s ruling that the initial mortgage was not a future advance mortgage, and the secondary lender was entitled to the surplus from the foreclosure bid.  The Court of Appeals relied on the statutory requirement that the instrument creating a future advance mortgage must be recorded.  Here, although the mortgage was recorded, it did not contain any of the necessary language.  All that language was in the underlying note, which was not recorded.  Thus, a future advance mortgage was not properly created, and the junior lien holder was entitled to the surplus from the bid on the foreclosed property.

This week, the American Inns of Court held a panel discussion on the future of civil litigation.  The panel included Judge Shapiro, who offered his perspective from the appellate bench. 

First, the panel discussed the proliferation of summary disposition motions over the last decades.  Judge Shapiro emphasized the importance of producing record evidence to support the plaintiff’s claim below and then attaching the key evidence to the appendix of the appellate brief, if summary disposition is granted.  The evidence should also exist in the record on appeal, but only one judge on the panel will receive the record and he or she typically holds onto it until after oral argument.  The other judges won’t see the key evidence referenced in the briefing until after oral argument, unless it is attached to an appendix.

As for new technology, Judge Shapiro welcomed the advent of video depositions and video technology in the courtroom.  He advised that if video is the only way to give the court a full and accurate picture of key evidence or testimony, send the DVD with the briefing to the Court of Appeals for the judges to review.  In his experience, the judges will watch it.

Finally, while the use of ADR has increased of late, Judge Shapiro lamented that the Court of Appeals had to disband its settlement office because of recent budget cuts.  The Court is looking for other methods and avenues for encouraging and facilitating settlement.

On Wednesday, February 3, 2010, the Michigan Supreme Court administratively closed two cases for failure of the appellants to pay the required filing fees.

On remand from the Michigan Supreme Court, on February 2, 2010, the Court of Appeals published a per curiam opinion in People v. Dowdy, No. 287689.  The Court of Appeals affirmed the trial court’s dismissal of charges against a homeless defendant for his failure to comply with the reporting requirements of the Sex Offenders Registration Act (“SORA”), MCL § 28.721 et seq.  Although acknowledging that the terms “domicile” and “residence” are often used interchangeably, the Court of Appeals emphasized that the term “residence” generally, and as it is defined in SORA, does not include the intent to make a residence a permanent home.  Under the plain language of SORA, the term “residence” refers to a place, dwelling, or abode, where an individual has a “regular place of lodging.”  Applying dictionary definitions to the term “lodging,” the Court of Appeals stated that it is defined as “[a] place to live,” or “accommodations in a house, esp. in rooms for rent[.]”  In considering whether the homeless defendant has a residence for purposes of SORA, the Court of Appeals explained that “[t]he provisional location where a homeless person happens to spend the night does not fall within the ambit of these definitions.”  The Court of Appeals recognized the Legislature’s intent to provide for public safety by requiring the maintaining of information regarding the location of convicted sex offenders, but focused on those who have a domicile or residence as defined by SORA.  The Court of Appeals noted that it is solely within the province of the Legislature to require compliance by a homeless person by including a provision in SORA regarding reporting requirements for the homeless.

Yesterday, the Michigan Supreme Court peremptorily reversed the Court of Appeals in two cases.  In Ancona v. Gillepsie, No. 139319-21, 139328-33, The Court reversed that part of the judgment granting summary disposition to Bennigan’s in this dram shop action for the reasons stated in the Court of Appeals’ dissenting opinion.  Justice Markman, joined by Justice Corrigan, dissented in part, contending that the inconsistent deposition testimony of the drunk driver did not create a genuine issue of material fact that he was served alcohol at Bennigan’s on the night that he collided with the deceased. 

In People v. Bailey, No. 139276, the court vacated that portion of the Court of Appeals’ opinion addressing harmless error with respect to the jury instructions under review and remanded for reconsideration of its harmless error analysis for constitutional error under the holding in Neder v. United States, 527 U.S. 1 (1999).  Justice Young, joined by Justice Weaver, dissented, arguing that the jury instructions properly set forth the correct standards for self-defense and provocation and that the Court of Appeals’ opinion should be affirmed on that basis.

The court also denied a prisoner’s motion to waive filing fees.

On February 2, 2010, the Michigan Court of Appeals issued a per curiam opinion for publication in People v. Lucey, No. 287446, where it remanded for resentencing or rearticulation of a substantial and compelling reason for departing from sentencing guidelines.  The trial court imposed a prison sentence rather than the lesser penalty prescribed for reasons of logistical convenience and because the offense was a “location departure.”  The court held these were not substantial and compelling reasons.  Read more »

On February 2, 2010, the Court of Appeal published its opinion in People v. Mann, No. 288314.  Here, the Court of Appeals reviewed the Offense Variable (“OV”) 9 score associated with the Defendant’s conviction for armed robbery.  OV 9 is based on the number of victims placed in danger of physical injury or death.  Ten points are assessed for OV 9 where the number of victims is between two and nine, whereas a score of zero is assessed where the number of victims falls below that range.  In this case, the Defendant had entered a store armed with a knife and demanded money from an employee.  After obtaining the money, the Defendant left the store, commandeered a car, and forced the driver to drive him away from the scene.  The Defendant argued that his armed robbery was completed before he stopped the car to flee the scene, and thus the number of victims endangered during the robbery was only one.  The Court of Appeals disagreed, and pointed to the applicable statute (MCL § 750.530) which states that the course of committing a larceny includes “flight or attempted flight.”  Therefore, the Court of Appeals concluded that the carjacking was not only a separate crime, but a continuation of the armed robbery, thus the number of victims was two and the OV 9 score of 10 was appropriate.