One Court of Justice

On Wednesday, September 29, 2010, the Michigan Supreme Court denied four applications for leave to appeal and ordered oral argument on applications for leave to appeal in two cases.  The Court ordered oral argument on the application filed by the State Appellate Defender Office in People v. Peltola, Case No. 140524.  At oral argument, the parties will address whether scoring of the prior record variables is improper when the defendant’s minimum and maximum sentences are doubled because it is their second or subsequent controlled substance offense pursuant to MCL 333.7413(2).  The Court also ordered oral argument on the application for leave filed by the Plaintiff-Appellant in Green v. Pierson, Case No. 140808.  At oral argument, the parties were directed to address whether MCL 600.2301, empowering the court to amend any process or pleading in a particular action, applies to cases initiated before the amendment of MCL 600.5856 in 2004 and whether the plaintiff in this case should have been permitted to amend his notice of intent.

The Court also took action in three criminal and seven civil cases which are discussed after the jump. Read more »

In Swanson v. Port Huron Hospital, No. 275404, 278491, the Court of Appeals held that providing the jury with a res ipsa loquiter instruction is reversable error in a medical malpractice case where the injury suffered was a known complication of the procedure and occurred even in the absence of negligence. Read more »

On September 28, 2010, the Michigan Supreme Court denied one motion to waive fees and one motion to disqualify a Justice.

On Monday, September 27, 2010, the Michigan Supreme Court denied 107 applications for leave to appeal, held three cases in abeyance, denied eight motions for reconsideration, and remanded – without substantive discussion - two cases to the Michigan Court of Appeals for consideration as on leave granted.  The Court also denied one objection to the taxation of costs, and remanded one criminal case to the trial court for correction of a clerical error in a sentencing information report.

On Wednesday, September 22, 2010, the Michigan Supreme Court denied one application for leave to appeal. 

The Court also vacated the Court of Appeals’ September 2, 2010 order in Michigan Afscme Council 25 v. County of Wayne, Case No. 141738.  In that opinion, the Court of Appeals vacated the Wayne County Circuit Court’s June 25, 2010 preliminary injunction.  A copy of the Court of Appeals’ opinion can be found here.  The Court of Appeals held that the trial court failed to address whether the availability of COBRA to county employees for a one-month period mitigates any irreparable harm and whether the financial burden of paying for one-month of COBRA is sufficient to warrant injunctive relief under Pontiac Firefighters Union Local 376 v. City of Pontiac, 482 Mich 1; 753 NW2d 595 (2008).  The Court of Appeals’ opinion further ordered the trial court to conduct an evidentiary hearing to determine how much union employees have to pay for COBRA coverage and how many union employees had the financial means to make this payment.

The Supreme Court remanded this case back to the Court of Appeals for reconsideration or clarification in light of the Wayne Circuit Court’s September 9, 2010 order which was entered after the Court of Appeals’ opinion.  The Court further ordered the Court of Appeals to consider whether relief at this point is moot in view of the fact that the layoff periods have passed.

As reported in this morning’s Detroit Free Press, a court reporter for Detroit’s 36th District Court has been jailed for repeatedly missing deadlines to produce an overdue transcript.  It is believed that this is the first time such a penalty has been imposed on a court reporter.  The contempt sentence is for 30 days.

In Wilson v. Sparrow Health System et al., No. 290895, the Court of Appeals affirmed the trial court’s dismissal of Plaintiff’s negligence claim because the police investigation was the proximate cause of Plaintiff’s injuries, not Defendant’s inaccurate report to the police that Plaintiff was the person who had exposed himself. Read more »

On September 21, 2010, the Michigan Supreme Court dismissed on stipulation one case, denied in one case the motion of an amicus curiae to participate in oral argument, and granted extensions in 10 other cases.

The Michigan Supreme Court took substantive action in three cases.  The Court ordered oral argument on the application for leave in Amerisure Mutual Insurance Co. v. Hall Steel Co., No. 140784, to address whether the act of supplying a nonconforming grade of steel is an “occurrence” under the terms of Amerisure’s insurance policy.     The Court of Appeals unanimously concludedthat the act of supplying nonconforming steel was an “accident” which is included in the policy’s definition of “occurrence,” and therefore Amerisure was indemnify and defend Hall Steel Co. for the loss.

In Geico Indemnity Co. v. Goldstein, No. 140662, the Court ordered the parties to submit supplemental briefing to address the question of if Geico was obligated to provide no-fault coverage (an issue in dispute on appeal), does that satisfy the requirement of an individual having no-fault coverage to be eligible for personal-protection-insurance benefits even if the individual is an otherwise uninsured constructive owner of the vehicle.  The applications for leave remain pending.

Finally, in People v. Adams, No. 140384, the Court granted a motion for reconsideration, reversed its earlier decision denying leave to appeal, vacated the Court of Appeals’ decision, and remanded the case to the Court of Appeals for a new appeal.  The defendant requested appointed counsel in the district court while his appeal was pending in the Court of Appeals, but counsel was not appointed until after the Court of Appeals had issued its judgment.  The Court concluded that the defendant had been deprived his right to appellate counsel.  Justice Davis did not participate in this case because he was part of the panel in the Court of Appeals.

As a law student, the plaintiff was accused of dishonesty by one of her professors after she claimed to have completed a project, but then admitted that she had been dishonest.  The professor referred the matter to the assistant dean for honor code review.  A disciplinary panel concluded that the student has been dishonest and issued a penalty of three hours of counseling and instruction in civility, ethics, and stress management.  The panel specifically concluded that the nature and circumstances of the student’s conduct would not prevent her admission to the bar.  Before the disciplinary proceeding, the student had filed a complaint in circuit court seeking to prevent the hearing from occurring.  When the injunction was denied, the student amended her complaint to claim breach of contract and arbitrary and capricious conduct.  She did not identify any monetary damages.  After the panel rendered its decision, the trial court granted summary disposition to the school, finding that the honor code did not create an enforceable contract, and the school’s conduct was not arbitrary and capricious.  The student graduated and was admitted to the Illinois bar, but she nonetheless appealed as of right the trial court’s dismissal of her action.  In Keita v. Thomas M. Cooley Law School, No. 291608 (published Sept. 16, 2010), the Michigan Court of Appeals dismissed the appeal as moot, holding that because the student had already graduated from the law school, the Court of Appeals could not fashion a remedy.