One Court of Justice

On Wednesday, May 26, 2010, the Michigan Supreme Court denied seven applications for leave to appeal.  The Court also took substantive action regarding two criminal cases and one civil case which are discussed after the jump.

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On Wednesday May 26, 2010, the Michigan Court of Appeals issued its opinion in In re Mason Minors, Case No. 139785.  In Mason, the Court reversed the Court of Appeals’ opinion which had affirmed the trial court’s decision to terminate the respondent-father’s parental rights.  The Court determined that the trial court had committed several legal errors and that the Department of Human Services had failed to engage the respondent in the proceedings.  In particular, the Court held that the trial court and DHS had failed to facilitate the respondent’s participation in the termination proceeding by telephone, as required by MCR 2.004, and provide the respondent with a copy of the parent-agency agreement.  In light of these errors and failures, the Court reasoned that the termination of the respondent’s parental rights was premature.  Read more »

The AP is reporting today that Senior Sixth Circuit Judge James Ryan, of Michigan, will be stepping down in September.  In addition to his work on the Sixth Circuit since 1986, Judge Ryan also served nine years as a Wayne County Circuit Court judge and ten years on the Michigan Supreme Court.  The full article can be found here.

On May 25, 2010, the Michigan Court of Appeals published its opinion in People v. Kern, Case No. 289478, affirming the trial court’s denial of the state’s motion to amend the defendant’s sentence to require lifetime electronic monitoring.  The Court of Appeals concluded that MCL § 791.285 only provides for the implementation of lifetime electronic monitoring for defendants who are released from prison and/or parole. Read more »

On May 25, 2010, the Michigan Supreme Court denied two applications for leave to appeal prior to decision by the Court of Appeals, six motions for reconsideration, and 121 applications for leave to appeal.  The Michigan Supreme Court ordered that the application in Bronson Methodist Hospital v. Allstate Insurance Co, COA No. 286087, be held in abeyance pending the decision in University of Michigan Regents, et al. v. Titan Insurance Co., No. 136905.  The Michigan Supreme Court vacated the order of the Court of Appeals in People v. Tate, No. 139914, and remanded the case to the Court of Appeals for consideration.

For purposes of preemption, “it is the activity being regulated rather than the actor who is being regulated that matters . . . .”  On May 25, 2010, the Court of Appeals published its opinion in Patterson v. Citifinancial Mortgage Corp., No. 287370, affirming the trial court’s decision that plaintiffs’ claims against a national bank regarding mortgage transactions were preempted under federal law.  The Court of Appeals concluded that the National Bank Act, 12 U.S.C. § 1 et seq., and corresponding federal regulations, preempts this action even though it arises out of conduct by independent agents working for the national bank that were not licensed or registered under state law.  The Court of Appeals rejected plaintiffs’ argument that preemption protection was not available to the national bank because the allegations were based on the actions of a third party.  The regulation at issue, promulgated by the Office of the Comptroller of the Currency (OCC), allows national banks to make real-estate loans without regard to state law.  Following the Supreme Court’s decision in Watters v. Wachovia Bank, NA, 550 U.S. 1 (2000), the Court of Appeals focused on the exercise of the national bank’s power to make real-estate transactions.  Here, the independent agents’ conduct was done in furtherance of the national bank’s power to make real-estate loans.

On May 25, 2009, the Michigan Supreme Court published its decision in DeCosta v. Gossage, No. 137480.  In a plurality opinion authored by Justice Weaver and joined by Justice Hathaway (with Justices Kelly and Cavanagh concurring in the result), the Court found that the notice of intent to sue on a medical-malpractice claim, sent by plaintiff to defendant’s prior business address effectively tolled the limitations period, and the Court of Appeals erred by affirming the dismissal of plaintiff’s complaint on the statute of limitations.  The relevant statute provided that “[t]he notice of intent to file a claim . . . shall be mailed to the last known professional business address.”  MCL § 600.2919b(2).  Additionally, the Legislature has provided for the tolling of the limitations period where a timely notice of intent is given.  MCL § 600.5856(c)  In this case, the plaintiff mailed the notice of intent before the limitation period expired, but defendant received it (forwarded from prior address) three days after the limitations period expired.  Justice Weaver reasoned that even if the notice was not sent to the correct address at the time, it was a minor defect which did not effect any party’s substantial rights.  Additionally, she noted that the statute does not require receipt of a notice of intent before the limitations period expired, therefore the date of mailing was the key date and the date of receipt was irrelevant.  Justice Markman, joined by Justices Corrigan and Young, dissented, arguing that the statute explicitly required the notice be sent to the last-known business address.  Here, plaintiff had visited defendant’s new location and the events underlying the alleged malpractice took place at the new location.  The dissent argued that the Court’s ruling created a situation where the period of limitations would be tolled “as long as an improperly addressed notice was mailed before the limitations period expired and the notice is eventually received by a defendant.”

The Michigan Supreme Court resolved three cases by peremptory orders reversing the Court of Appeals’ decisions and ordered oral argument on the application for two cases in its next term.

The Michigan Supreme Court reversed the Court of Appeals’ decision in Kachudas v. Invaders Self Auto Wash, No. 139794.  In Kachudas, the plaintiff slipped and fell at an auto wash on a winter day and sued the company that operated the facility.  The Court of Appeals concluded that the open-and-obvious defense was not available to the defendant because the plaintiff’s claims sounded in general liability and not premises liability.  Four justices of the Michigan Supreme Court disagreed, explaining that the plaintiff alleged injury because of a condition of the land and thus the plaintiff’s claims were for premises liability.  The Court further found that a person of average intelligence would anticipate that spraying water on a day with average temperatures between 11 and 24 degrees would likely lead to the formation of ice.  Accordingly, the Court also concluded that the danger was open and obvious.  The Court peremptorily reversed the Court of Appeals’ decision, and reinstated the trial court’s grant of summary disposition to the defendant.  Chief Justice Kelly and Justices Cavanagh and Hathaway dissented.

The Court apparently decided to revisit the open-and-obvious doctine by ordering oral argument on the application in Ahola v. Genessee Christian School, No. 140447.  The Court of Appeals, in a divided opinion, concluded that faults to the defendant school’s steps that caused the plaintiff’s injury were not open and obvious despite the plaintiff’s navigation of those steps several hours earlier because the steps were unlit at the time of the injury.  Read more »

On May 20, 2010, the Michigan Court of Appeals published its opinion in Jones v. Detroit Medical Center, No. 288710.  The decedent-plaintiff Jones was involved in a car accident.  He received treatment in the emergency room from the defendant-doctor Watson.  Watson diagnosed Jones with a seizure disorder and prescribed the drug tegretol.  Later, Jones suffered a rare allergic reaction to tegretol and eventually died.  Jones’ estate sued Watson for malpractice, arguing two theories: (1) Watson negligently did not warn Jones about the possibility of this reaction, even though it was well known; and (2) Watson negligently diagnosed Jones with a seizure disorder that Jones did not have.  The trial court granted Jones summary disposition on the question of proximate cause.  The Court of Appeals affirmed.

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In People v. Parker, No. 289357, the Court of Appeals overturned the defendant’s conviction and acquitted him of the charge of carrying a dangerous weapon with unlawful intent, MCL § 750.226.  Because this statute applies only to a person who both (1) carries “a pistol or other firearm or dagger, . . . or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon” and (2) carries the instrument “with intent to use the same unlawfully,” the Court concluded that a knife qualified as a dangerous weapon under this particular statute only if it has a blade of at least 3 inches.  Because the prosecution failed to prove the length of the knife, it failed to prove an element of the crime, and the Court ordered the defendant’s acquittal because the Double Jeopardy Clause would bar a retrial.

Interestingly, the Court explained that the outcome could be different under a related statute, MCL § 750.227, because the Michigan Supreme Court has interpreted the second statute (a concealed weapon statute) to forbid either (1) carrying an instrument that is a dangerous weapon per se or (2) carrying an “instrument used, or intended for use, as a weapon for bodily assault or defense.”  This means that under § 750.226 the prosecution must prove both intent to use a weapon unlawfully and that the knife is at least 3 inches, while under § 750.227 the prosecution could prove that a 2-and-1/2-inch knife was carried “for bodily assault or defense.”