One Court of Justice

On December 28, 2011, in lieu of granting leave to appeal, the Michigan Supreme Court remanded People v. Stecker, No. 143943, to the Court of Appeals for consideration as on leave granted.

In lieu of granting leave to appeal in Haywood v. Schumaker, No. 143534, the Michigan Supreme Court remanded the case to the Court of Appeals for reconsideration in light of Driver v. Naini, 490 Mich 239 (2011).  Justice Cavanagh would deny leave to appeal.  Justice Hathaway would grant leave to appeal.

In lieu of granting leave to appeal in People v. Spangler, No. 143418, the Michigan Supreme Court remanded the case to the Oakland Circuit Court and directed that court to comply with a Court of Appeals order.  The Court denied the application in all other respects.

The Court ordered that the application for leave to appeal in People v. Edwards, No. 143502, be held in abeyance pending the decision in People v. Vaughn, No. 142627, pending on appeal before the Court.

The Court directed the Oakland County Prosecuting Attorney to answer the waiver of counsel issue in People v. Childress, No. 143606.

The Michigan Supreme Court denied an application for leave to appeal prior to decision by the Court of Appeals.  The Court denied 211 other applications for leave to appeal.  The Court also denied 12 motions for reconsideration.  A motion for reconsideration was dismissed following the parties’ stipulation to dismissal.

In Wells Fargo Bank, NA v. Cherryland Mall Ltd. P’ship, No. 304682, the Michigan Court of Appeals affirmed the trial court’s judgment awarding plaintiff money damages on its mortgage deficiency claim and for attorney fees. 

This case arises out of a commercial mortgage-backed securities (CMBS) loan.  A CMBS loan has a unique structure: a non-recourse basis in exchange for the isolation of the assets to be financed.  Two components of asset isolation are separateness covenants and limited recourse provisions limiting the lender’s general agreement not to pursue recourse liability.  Accordingly, in a CMBS financing, in the event on “recourse triggers” on the part of the borrower, the lender’s agreement not to pursue recourse liability against the borrower or owner has limited application, allowing the lender to pursue recourse as part of its remedies. 

In this case, defendant partnership obtained a CMBS loan from plaintiff, using property it owned as collateral. When defendant partnership failed to make a mortgage payment, plaintiff commenced foreclosure by advertisement and a sheriff’s sale was conducted, leaving a deficiency of approximately $2.1 million on the loan.  Plaintiff then filed suit to enforce the loan documents for the deficiency against mortgagor and the guarantor of the loan.  Plaintiff filed multiple summary disposition motions, of which all but one were granted in favor of plaintiff.  Defendants appealed two motion grant rulings.  The first objection by defendants was to the grant of summary disposition for plaintiff on the finding that the guarantor was liable for the entire loan deficiency because the trial court had concluded that insolvency was a violation of defendant’s requirement that it remain its single purpose entity (SPE) status.  The second objection was as to the award of attorney fees to plaintiff.  Read more »

Plaintiff was injured when she slipped and fell on a patch of ice while closing the passenger door of her vehicle, after placing some items in the passenger compartment.  The Michigan Supreme Court determined that the defendant insurer is not liable to plaintiff for personal protection insurance benefits under the no-fault act, MCL 500.3101 et seq., because plaintiff’s injury did not arise out of the use of a parked vehicle under MCL 500.3106(1).  In a memorandum opinion in Frazier v. Allstate Ins Co, Nos. 142545, 142547, four justices of the Michigan Supreme Court reversed the judgment of the Court of Appeals and remanded the case to the trial court for further proceedings.

MCL 500.3105(1) provides that:  ”Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.”  In cases of a parked vehicle, the next section of the act, MCL 500.3106, explains that accidental bodily injury does not arise unless an express exception is met, such as “(b) … [T]he injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used …” or “(c) … [T]he injury was sustained by a person while occupying, entering into, or alighting from the vehicle.”  MCL 500.3106(1)(b)-(c).  The majority determined that plaintiff’s injury was not “a direct result of physical contact with equipment permanently mounted on the vehicle …” under MCL 500.3106(1)(b) because she was in contact of the door of the vehicle at the time of her injury, which constitutes contact with the vehicle itself rather than with “equipment” mounted on the vehicle.  The majority further determined that plaintiff was not in the process of “alighting from” the vehicle under MCL 500.3106(1)(c), because before her injury, plaintiff had been standing with both feet firmly on the ground outside of the vehicle and she was in no way reliant upon the vehicle itself – in other words, “[a]t the time of her injury, plaintiff had already alighted.” Read more »

On December 21, 2011, the Michigan Supreme Court granted the Attorney General’s motion to enlarge the record on appeal, and granted the application for leave to appeal the judgment of the Court of Appeals, in People v. Nunley, No. 144036.  The parties shall address “whether the Court of Appeals erred when it held that the Department of State certificate of mailing is testimonial in nature and thus that its admission, without accompanying witness testimony, would violate the Confrontation Clause.”  The Michigan Supreme Court invited the Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan to file briefs amicus curiae.

The Court ordered the Clerk to schedule oral argument on whether to grant the application for leave to appeal or take other action in Davis v. Emergency Manager for the Detroit Public Schools, No. 144084.  At oral argument, the parties shall address “whether the office of Emergency Manager for the Detroit Public Schools should be declared vacant because Roy Roberts did not take the oath of office before entering upon his duties, but subsequently took the oath of office before this quo warranto action was filed.”

In Jones v. Detroit Medical Center, Nos. 141624 & 141629, leave to appeal having been granted, and the briefs and oral arguments of the parties having been considered, the Michigan Supreme Court reversed the judgment of the Court of Appeals and remanded the case to the Wayne Circuit Court for further proceedings.  The Michigan Supreme Court determined that the lower courts erred by granting partial summary disposition to plaintiffs on the issue of proximate causation because there is a question of fact that should be submitted to the trier of fact.  Justice Hathaway dissented, stating that she believed that leave to appeal was improvidently granted because the result reached by the Court of Appeals was correct.  Justices Cavanagh and Marilyn Kelly joined the statement of Justice Hathaway. Read more »

The Michigan Supreme Court appointed Honorable Ann Mattson as Master to hear Formal Complaint No. 88 in In re Hon. Sylvia A. James, No. 143942, before the Judicial Tenure Commission (“JTC”).  In that same case, the Court granted the petition for interim suspension with pay, and ordered the Master and the JTC to coordinate their schedules to ensure that the JTC recommendation of action, if any, be submitted within five months of the date of the order. Justice Markman dissented, in part, stating that given the potential harm to the integrity of the judiciary and the public trust in the judicial disciplinary process, he would order the respondent suspended without salary, and that her salary should be held in escrow pending resolution of the charges.

On December 15, 2012, the Michigan Court of Appeals released its opinion in Citimortgage Inc. v. Mortgage Electronic Registration Systems Inc, No. 298004.  The Court held that equitable subrogation may apply to give a mortgagee who refinances its prior mortgage priority over intervening lienholders, but only where the intervening lienholders are not prejudiced, adopting the Third Restatement of Property (Mortgages) § 7.3.

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On December 14, 2011, the Michigan Supreme Court denied two applications for leave to appeal and denied one prisoner’s motion to waive fees.

In People v. Kloosterman, No. 301283, the Michigan Court of Appeals affirmed the trial court’s sentencing of defendant under MCL § 750.356a(3), which imposes an enhanced sentence where damage is done to any part of a motor vehicle or trailer in the commission of a larceny under MCL § 750.356a(2)(a) or (b).  Defendant argued that the padlock securing the trailer was not “any part” of the trailer and thus, the trial court erred in imposing an enhanced sentence in defendant’s case.  The Court of Appeals disagreed, using the dictionary definitions to define “any part of . . . [a] trailer” to cover every and all portions of the trailer in whatever degree or whatever separate or distinct piece of the trailer that is broken, torn, cut, or otherwise damaged.  Cutting the padlock constituted damage to a distinct piece of the trailer that was specifically designed to be compatible with the trailer’s latches and to secure the tools transported inside the trailer.  Accordingly, the trial court did not err in denying defendant’s motion for directed verdict because there was sufficient evidence to prove that the defendant damaged a part of the trailer in the commission of a larceny.

On December 12, 2011, the Michigan Supreme Court released one order in the case of Lawrence v. Michigan Board of Law Examiners, No. 144191.  In Lawrence, F. Lawrence filed an action asking the Michigan Supreme Court to implement superintending control power over the Board of Law examiners pursuant to MCR 7.304. Lawrence seeks review of the Board of Law Examiners’ 2010 decision denying plaintiff’s application for admission to the state bar.

In this order, Justice Zahra recused himself from the case because Justice Zahra was a member of the Board of Law Examiners when the Board decided to deny Lawrence admission to the State Bar of Michigan.

On December 9, 2001, the Michigan Supreme Court, in lieu of granting leave to appeal in Findley v DaimlerChrysler Corp., No. 141858, reversed the judgment of the Court of Appeals and reinstated an order of the Workers’ Compensation Appellate Commission.  The Court found that the Court of Appeals had erred in concluding that the holding in Aquilina v General Motors Corp., 403 Mich 206 (1978), remained valid after the 1985 amendments to the Workers’ Compensation Disability Act.  Judges Cavanagh and Kelly would have denied leave to appeal, while Judge Hathaway would have granted leave to appeal. Read more »