One Court of Justice

On April 29, 2009, the Court of Appeals published a per curiam opinion in Oshtemo Charter Twp. v. Kalamazoo County Road Commission, No. 292980, in which it vacated a preliminary injunction order that was based on a typographical error in a recent amendment to the Michigan Vehicle Code.  The lower court had enjoined Kalamazoo County Road Commission (“KCRC”) from invalidating Oshtemo Charter Townsip’s truck route ordinance under recently enacted MCL § 257.726(3) because that new subsection cross-referenced incorrect sections of the Code.  The Court of Appeals reversed, ruling that the trial court should have applied the doctrine of “scrivener’s error” to avoid construing the new subsection in a manner that rendered it completely nugatory. Read more »

Salt hurts blueberry bushes.  Based on this fact, a number of blueberry farms sued the Michigan Department of Transportation (MDOT), arguing that road salt that sprayed from highways and county roads onto their blueberry bushes, which were located on properties adjacent to those roads, hurt their blueberry production.  The blueberry farms alleged that the State had committed trespass nuisance, which is “a trespass or interference with the use of or enjoyment of land by way of a physical intrusion that the government sets in motion and that results in personal or property damage.”  In Blue Harvest, Inc. v. Department of Transportation, No. 281595 (published Apr. 29, 2010), the Court of Appeals held that sovereign immunity precluded the suit against MDOT because the state had not waived its sovereign immunity.  No statutory exception applied, so the Court turned to the harder question of determining whether the common law governing sovereign immunity as it existed before July 1, 1965 (when MCL § 691.1407 was enacted to reinstate sovereign immunity after it was temporarily abolished) provided an exception for trespass nuisance.  Concluding that it did not, the Court reversed the trial court’s denial of MDOT’s motion for summary disposition based on sovereign immunity.  Turning to a second issue, the Court affirmed the trial court’s dismissal of the blueberry farms’ claims for inverse condemnation, because the injury they suffered was not peculiar or unique, but rather was the same kind (though worse in degree) of injury that all properties adjacent to the roads suffered.  The majority opinion by Judge Meter is available here, and the concurring opinion by Judge Beckering, who analyzed the common-law history in greater detail, is available here.

On April 29, 2001, the Michigan Court of Appeals issued its published opinion in Ulrich v. Farm Bureau Insurance, No. 289467.  In 2005, the Office of Financial and Insurance Services (“OFIS”), now the Office of Financial and Insurance Regulation, issued an order prohibiting insurance companies from issuing new forms that provide a contractual limitations period of less than three years for claims for uninsured motorist coverage (the “OFIS Order”).  The plaintiff’s policy had a one-year contractual limitations period on uninsured motorist coverage.  However, because the policy was issued before 2005, the Court upheld the limitation.

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The Michigan Supreme Court released two orders yesterday, each denying a prisoner’s motion to waive fees relating to the civil action the prisoner was pursuing.  See MCL § 600.2963.

A landowner in Grand Rapids sued the Kent County Drain Commissioner and a special-assessment drain district alleging that the design of the drain district caused flooding on his property.  In Arath II, Inc. v. Heukels County Drain District, No. 288725 (published Apr. 29, 2010), the Court of Appeals, in an opinion authored by Judge O’Connell, concluded that the landowner had failed to state a claim because he failed to petition the drain commission first.  Under the Drain Code, in particular MCL § 280.191, the drain commissioner has authority to improve or repair a drain only after a landowner files a petition and the commission determines the improvement is needed.  Furthermore, the petition must be joined by a certain number of other landowners in the district, as the landowners in the drain district will have to pay a special assessment to fund the work.  Because the landowner had not filed a petition, the drain district had never received the authority to make any improvements or repairs to the drains on the landowner’s property, and therefore the district could not be held liable for failing to take action.

On Wednesday, April 28, 2010, the Michigan Supreme Court denied seven applications for leave to appeal, dismissed two cases on stipulation of the parties, denied one motion for reconsideration, and denied the motion of the defendant-appellant in People v. Holden, Case No. 140256, for the reason that the defendant failed to provide extraordinary and compelling reasons in support of his motion seeking leave to file a 72-page application for leave to appeal.  The Court also issued several housekeeping orders including two orders granting temporary admission to the practice of law in Michigan, four orders granting extension of the time for filing briefs, and granting the motions of John A. Braden and the Michigan Municipal League to file briefs amicus curiae in the matter of Mawri v. City of Dearborn, Case No. 139647.  The Court also issued two substantive criminal orders with are discussed after the jump. Read more »

On April 27, 2009, the Court of Appeals published its opinion in King v. McPherson Hospital, No. 284436.  In this case, the Court was presented with a medical-malpractice action involving the application of the relevant statute of limitations.   Here, the trial court initially rejected defendant’s motion to dismiss, but the Court of Appeals reversed finding that the plaintiff’s complaint was untimely according to the then-existing precedent.  The case was ultimately remanded, and the trial court granted the defense motion for entry of an order of dismissal based on the Court of Appeals’ decision.  Later, the Michigan Supreme Court decided another case involving the application of similar statute-of-limitations issues.  The plaintiff filed a motion to set aside the dismissal order based on a change in the law.   The defense disagreed that the relevant legal precedent had been reversed, and also argued that the law-of-the-case doctrine required the Court to uphold the dismissal that had been ordered by the Court of Appeals.  The trial court agreed with the defendants and denied the motion pursuant to the law of the case.  Plaintiff filed an application for leave to appeal to the Court of Appeals, which was denied.  But the Supreme Court remanded the case to Court of Appeals for consideration as on leave granted.  Now, the Court of Appeals noted that the recent Court of Appeals opinion in Farley v. Carp was directly on point, and required this panel of the Court of Appeals to affirm the trial court’s decision to uphold the earlier directive from the Court of Appeals to dismiss the case.  Our prior post on the Farley decision can be found here.  This panel, however, disagreed with the result in Farley and called “for the convening of a special panel of this Court pursuant to MCR 7.215(J)(3).”

On April 27, 2010, the Michigan Supreme Court denied one motion to waive fees, seven motions for reconsideration, one motion for an award of costs on appeal, and 114 applications for leave to appeal. 

The Michigan Supreme Court also issued an order directing a prosecuting attorney to answer an application for leave to appeal filed by the State Appellate Defender’s Office in People v. Peltola, No. 140524, and to specifically address the argument that People v. Lowe, 484 Mich. 718 (2009), precludes the scoring of the prior record variables. 

In lieu of granting appeal, pursuant to MCR 7.302(H)(1), the Michigan Supreme Court remanded People v. Taybron, No. 140388, to the trial court for correction of the judgment of sentence, and denied the application for leave to appeal in all other respects.  The Michigan Supreme Court ordered the application of Trakhtenberg v. McKelvy, No. 140150, to be held in abeyance pending the decision in People v. Trakhtenberg, which has been remanded to the Court of Appeals for further proceedings.    

On April 27, 2010, the Court of Appeals published a per curiam opinion in Chelsea Investment Group LLC v. City of Chelsea, No. 288920.  In this contract action, the Court of Appeals affirmed the trial court’s order entering judgment in favor of defendants after a bench trial.  However, the Court of Appeals vacated the trial court’s order with respect to the trial court’s calculation of interest.

On this issue of first impression, the Court of Appeals considered whether MCL § 600.6013(8), which allows an award of interest on a money judgment, requires interest to be calculated at six-month intervals from the date of the complaint, or whether the statute requires interest to be calculated every six months on July 1 and January 1 from the date of the complaint.  The Court of Appeals viewed the language of this provision requiring that “interest on a money judgment [be] calculated at 6-month intervals from the date of the filing of the complaint at a rate of interest equal to . . . United States treasury notes during the 6 months immediately preceding July 1 and January 1 . . .” as plain and unambiguous.  MCL § 600.6013(8).  The Court of Appeals interpreted this provision to require that “interest on a judgment be re-calculated every six months from the date of the filing of the complaint using the interest rates announced on July 1 or January 1, whichever is ’immediately preceding’ the complaint’s six-month anniversary date.”  As an example, the Court of Appeals explained that for a complaint filed in August 2008, interest would be calculated in February 2009 using the January 1 interest rate, and calculated again in August 2009, using the July 1 rate. Read more »

Current Michigan governor Jennifer Granholm is receiving national press coverage as a possible nominee to replace United States Supreme Court Justice John Paul Stevens.  The Associated Press, CNN, and The Hill’s blog all published stories over the weekend regarding Governor Granholm’s musing that it would be “wise” for President Obama to consider nominees not currently serving in the judiciary.  Governor Granholm’s public statements about the Justice Stevens vacancy are notably different than her reaction after Justice Souter announced his retirement.  Then, Governor Granholm downplayed reports that she was a possible Supreme Court nominee.