One Court of Justice

On April 25, 2011, the Michigan Supreme Court on rehearing vacated its earlier opinion in Anglers of the AuSable, Inc. v. Department of Environmental Quality, No. 138863-138866, and the opinion of the Court of Appeals, on the ground that the underlying controversy is moot because the Merit Energy Company lost its disputed discharge rights.  In its earlier opinion, a four-justice majority had overruled prior precedent in Preserve the Dunes v. Department of Environmental Quality, 471 Mich 508, 684 NW2d 847 (2004), which had held that the MDEQ may not be sued under the Michigan Environmental Protection Act (MEPA) for issuing a permit.  Justices Young, Corrigan, and Markman dissented, arguing that the case should be dismissed as moot and that Preserve the Dunes should not be overruled.  Now that the earlier opinion in Anglers of the AuSable is vacated, Preserve the Dunes is once again controlling precedent, and the MDEQ may not be sued under MEPA for issuing a permit.

The Court’s change of course resulted from a change in the Court’s composition after issuing its earlier opinion on December 29, 2010.  Justice Mary Beth Kelly replaced Justice Alton Thomas Davis, and Justice Brian K. Zahra replaced Justice Maura D. Corrigan.  On rehearing, Justice Mary Beth Kelly disagreed with the view of her predecessor, Justice Davis, and instead supported the dissent.  As a result, Justice Young’s dissent received majority support.  To see the order granting rehearing and vacating the earlier opinions, click here.

In Residential Funding Co v. Saurman, the Michigan Court of Appeals held, in an opinion authored by Judge Shapiro, that Mortgage Electronic Registration System (MERS) did not have authority under MCL 600.3204(1)(d) to foreclose by advertisement because it did not own an interest in the indebtedness secured by the mortgage.  Judge Wilder dissented, concluding that under the mortgage security instruments, MERS had a contractual interest in the indebtedness.

In these consolidated actions, lender Homecoming Financial LLC and defendants executed promissory notes and mortgages for home purchases.  The mortgages named MERS as mortgagee and gave it the right to foreclose on the property in the event of default.  Defendants defaulted on their respective notes.  MERS began non-judicial foreclosures by advertisement as permitted under MCL 600.3201, et seq., purchased the property at the subsequent sheriff’s sales and then quit-claimed the property to plaintiffs as respective successor lenders.  When plaintiffs subsequently began eviction actions, defendants challenged the respective foreclosures as invalid, asserting, inter alia, that MERS did not have authority under MCL 600.3204(1)(d) to foreclose by advertisement because it did not fall within any of the three categories of mortgagees permitted to do so under that statute.  The district courts concluded that MERS did have authority to foreclose by advertisement and their conclusions were affirmed by the respective circuit  courts.  In a split decision, the Court of Appeals reversed. Read more »

Plaintiffs stopped making payments on and moved out of their mobile home because of a defective hot-water heater.  The trial court dismissed Plaintiffs’ claim against QFD, a mobile home dealer, for rescission of the purchase agreement and damages.  In this case of first impression, Johnson v QFD Inc, No 294732, the Court of Appeals unanimously held that plaintiffs were entitled to sue under certain provisions of Michigan’s Mobile Home Commission Act (MHCA), MCL 125.2301 et seq., and that the applicable statute of limitations was not shortened by a term in the purchase agreement.  The Legislature provided an express private remedy for rescission and damages against a mobile home dealer that has violated the MHCA.  MCL 125.2331.  The Court of Appeals determined that the statute does not limit the availability of a claim to significant or substantial violations only.  The Court of Appeals also rejected the contention that to proceed under MCL 125.2331 plaintiffs would have to show detrimental reliance or a direct link between damages and the violation.  The Court of Appeals concluded that the entitlement to proceed under MCL 125.2331 was not affected by the MHCA’s alternate remedies.  The Court of Appeals determined that the purchase agreement’s one-year limitation period for an “action for breach of contract” was not applicable to this statutory claim and that the MHCA’s specific three-year statute of limitations prevailed over the UCC’s more general provisions governing the limitation of actions.

In Sharp v. City of Benton Harbor, No. 292389, the Court of Appeals held that municipal governments are not immune from tort claims for failure to properly maintain curbs in reasonable repair.  Plaintiff Jeanette Sharp sued the City of Benton Harbor for injuries sustained when she stepped onto a curb, it crumbled, and she fell to the ground.  Though a grass verge separated the curb from the sidewalk, the court held that this structure fell within the category of structures that Congress intended to include within the highway exception to the governmental immunity act.   Read more »

The Michigan Supreme Court denied two applications for leave to appeal.

The Michigan Supreme Court dismissed one application for leave to appeal based on the parties’ stipulation, granted five motions for brief filing extensions and vacated its 2009 opinion in People v Bryant in accordance with the mandate of the Supreme Court of the United States.

In People v Bryant, defendant was convicted of second-degree murder.  The Court of Appeals affirmed, and the Michigan Supreme Court reversed and remanded for a new trial.  The Michigan Supreme Court determined that the victim’s statements to the police was inadmissible testimonial hearsay, because the primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution.  The present order vacates the Michigan Supreme Court’s determination and reinstates the Court of Appeals conclusion that the statements were non-testimonial under the test set forth in Davis, 547 US at 822, because they were made “in the course of a police interrogation under circumstances objectively indicating that its primary purpose was to enable police assistance to meet an ongoing emergency.”

The Michigan Supreme Court denied 3 applications for leave to appeal and dismissed one motion for reconsideration based on the parties’ stipulation.

In Estate of Domonique Daquan Wheeler v Central Michigan Inns, Inc, No 296511, the Court of Appeals held that claim for ordinary negligence, rather than premises liability, does not place upon a defendant a duty to supervise a child if the child’s parent was present and the defendant does not voluntarily assume responsibility for supervising the child. Read more »

In People v Steele, the Court of Appeals reversed the trial court’s suppression of evidence based on the police officer’s investigatory stop of defendant’s vehicle.  The Court determined that defendant’s purchase of several packages of sudafed and a gallon of camping fuel gave the officer a reasonable suspicion that criminal activity was afoot and that the officer was not required to give defendant his Miranda rights prior to the roadside questioning.

Defendant purchased several packages of Sudafed and a gallon of Coleman fuel at Meijer.  Meijer’s loss prevention officer alerted the police.  Police Officer Doxtader stopped defendant’s vehicle. Officer Doxtader questioned defendant, and defendant revealed that there was methamphetamine in the car, that he uses and/or cooks methamphetamine, and that he had methamphetamine components in the vehicle.  Officer Doxtader arrested defendant.  At the police station Officer Doxtader advised defendant of his Miranda rights. Defendant waived his rights and essentially repeated his roadside statements.

The trial court suppressed both the evidence and defendant’s statements opining that “the purchase of only one package of Sudafed and camping fuel is not enough to meet the standard of particularized suspicion.”  The trial court found that the traffic stop was illegal and that the evidence obtained was the fruit of an illegal search.  The court also found that defendant was in custody during the roadside stop and should have been Mirandized.  Finally, the court determined that defendant’s statements at the police station were the fruit of an illegal custodial interrogation because “there were no intervening circumstances to purge the taint between the statements made at the side of the road to the statements made in-house.” Read more »

In Kubicki v. Mortgage Electronic Registration Systems, released on February 22 and approved for publication on April 12, 2011, the Michigan Court of Appeals considered whether a person who was deputed as a special deputy to perform the specific task of conducting foreclosures could conduct such sales.  The Michigan foreclosure statute requires that a sheriff’s foreclosure sale be conducted by a sheriff, an undersheriff or a deputy sheriff.  Under MCL 51.70, a sheriff may appoint special deputies by a written instrument to do particular acts.  The Court of Appeals concluded that an appointment of a special deputy under MCL 51.70 must be in writing, but it does not need to be recorded with the county clerk’s office under MCL 51.73.  In this case, the special deputy qualified as a deputy able to conduct foreclosure sales under MCL 600.3216.