Issue: In 1996, the plaintiff sustained a traumatic brain injury when he was struck by a hit-and-run driver. He sued for no-fault benefits in 2005, claiming that the defendant insurance company failed to pay for attendant care that was provided by his wife. After a bench trial, the trial court entered a judgment in the plaintiff’s favor. The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings, finding in part that the trial court should have required more documentation before awarding attendant care benefits. Did the plaintiff present sufficient proofs to support the trial court’s award of attendant care benefits? Did the activities plaintiff’s wife performed constitute attendant care under MCL 500.3107(1)(a), or replacement services under MCL 500.3107(1)(c)? Did the trial court err in awarding attendant care benefits at the rate of $40 per hour?

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Issue: After she was injured in a car accident, the plaintiff sued the defendant driver and his insurance company. Among other things, she sought to be compensated for replacement services – household services that someone performs for an injured person when her injuries prevent her from caring for herself. The trial court held that the plaintiff could not recover replacement services from the defendant driver, because replacement services are not “allowable expenses” under MCL 500.3135(3)(c). The Court of Appeals reversed, holding that replacement services are a subset of “allowable expenses.” Does MCL 500.3135(3)(c), which permits an injured person to recover excess damages for allowable expenses, work loss, and survivor’s loss in third-party actions, include the cost of replacement services?

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Issue: After confronting a Michigan State University employee about a parking ticket, the defendant was charged and convicted under a university ordinance that makes it a crime to disrupt “the normal activity . . . of any person . . . carrying out . . . service, activity or agreement for or with the University.” The defendant argued that the ordinance was unconstitutional, but the Court of Appeals upheld his conviction, holding that the ordinance was not unconstitutional on its face; the appellate court remanded the case to the trial court to determine whether the ordinance was unconstitutional as applied. Is Michigan State University Ordinance 15.05 facially unconstitutional under City of Houston v Hill, 482 US 451 (1987)? Does MCR 7.101(O) allow taxation of costs in criminal cases appealed in the circuit court?

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Issue: The defendant was charged with driving with a suspended license (second offense), a violation of MCL 257.904(1). An element of that offense is that the offender was notified of the first suspension as required by the statute. The prosecutor sought to introduce into evidence a Department of State certificate of mailing, which states that the defendant was notified by first-class mail the first time that his license was suspended. The district court held that the certificate could not be admitted into evidence unless the person who prepared it appeared at trial to testify. Both the circuit court and the Court of Appeals affirmed the trial court’s ruling. Did the Court of Appeals err 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?

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Issue: This case involves a dispute over the validity of a will and allegations of undue influence. The children of the decedent claimed undue influence by the sole beneficiary, who became an integral part of their father’s life at the time of their mother’s death. The probate court ruled in favor of the beneficiary, and found that the will was not the product of her undue influence. The Court of Appeals reversed, holding that the probate court failed to recognize a mandatory presumption of undue influence, based on the beneficiary’s fiduciary relationship with the deceased. What standards should apply and what factors should a court consider in determining whether a transaction was the product of undue influence where there is a fiduciary relationship between the parties?

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Issue: After sending his dentist a letter complaining about the dental care that he received, the plaintiff sued the dentist for dental malpractice. The plaintiff apparently obtained an affidavit of merit to support his claim, but failed to file it with his lawsuit. The defendant moved for summary disposition, contending that the plaintiff failed to satisfy the pre-suit notice requirement of MCL 600.2912b, and failed to file an affidavit of merit with the complaint, as required by MCL 600.2912d. The trial court denied summary disposition and the Court of Appeals affirmed. The Court of Appeals held that the plaintiff’s submission of a copy of the affidavit of merit to the trial court, as an exhibit to a brief, satisfied MCL 600.2912d, since it was filed before the statute of limitations expired. The panel also held that the plaintiff’s letter qualified as a notice of intent under MCL 600.2912b(4) and that, although that letter failed to precisely state the proximate cause of the alleged injury, the defect should be disregarded in the interests of justice. See Bush v Shabahang, 484 Mich 156 (2009), and MCL 600.2301. Did the Court of Appeals correctly resolve this case?

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Issue: The plaintiff was injured when his motorcycle struck a patch of gravel on a paved road. He sued the county road commission under the highway exception to governmental immunity, claiming that the hazardous road surface was caused by improper grading and that the defendant knew about the defect. The road commission moved for summary disposition, claiming that it did not have notice of the alleged defect, and that the gravel on the road was not a defect within the meaning of the highway exception. The trial court denied the motion, and the Court of Appeals affirmed. Was the accumulation of gravel on the roadway actionable under the highway exception to the governmental tort liability act, MCL 691.1402? Does such an accumulation of gravel implicate the defendant’s duty to maintain the highway in “reasonable repair” within the meaning of MCL 691.1402(1)?

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Issue: The defendant pled guilty to second-degree home invasion as a second habitual offender in exchange for dismissal of other charges. At the plea hearing, the defendant was informed that his maximum potential sentence was 15 years, which is the statutory maximum sentence for second-degree home invasion without the sentence enhancement for second habitual offenders. At sentencing, the trial court imposed the enhanced maximum sentence of 22.5 years. The defendant filed a motion to withdraw his plea, arguing that he had been misinformed of the maximum possible sentence. The motion was denied by the trial court, relying on People v Boatman, 273 Mich App 405 (2006). What relief, if any, is available to the defendant?

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Houston v Governor
144691
144768
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Issue: Public Act 280 of 2011 limits the maximum number of county commissioners to 21 for any county with a population of 50,000 or more, and changes the composition of the county apportionment commission for certain counties. Only Oakland County, with 25 commissioners, will be immediately affected by this bill. The plaintiffs, all Oakland County electors, filed a lawsuit claiming that PA 280 violates the Michigan Constitution’s prohibition against “local or special” acts, imposes a new unfunded “activity” on local government in violation of the Headlee Amendment, and also violates the plaintiffs’ right to have judicial review of the new reapportionment plan required by the act. A majority of the Court of Appeals held that PA 280 amounted to a “local or special act” in violation of the state Constitution, but did not rule on the plaintiffs’ other issues: the dissenting judge would have upheld PA 280 as constitutional on all three grounds. The Michigan Supreme Court is hearing oral arguments to decide whether to grant the defendants’ applications for leave to appeal the Court of Appeals ruling, or to take other action.

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Issue: A hospital sued an insurance company to recover payment for medical services that it provided to Craig Smith, Jr. after he was injured in an accident while driving his father’s car. Smith, who was unlicensed and legally drunk at the time of the accident, had been forbidden by his father to drive the car – but the father had given permission to Smith’s girlfriend to use the vehicle, cautioning her not to let Smith drive it. The insurance company argued that it was not liable for benefits because Smith had taken the vehicle “unlawfully,” as defined by Michigan’s no-fault act. But the trial court ruled that Smith was driving the vehicle lawfully, because his girlfriend, by virtue of having the father’s permission, could in turn give Smith permission to drive the car. May an immediate family member who knows that he has been forbidden to drive a vehicle nonetheless be a permissive user – and be eligible for personal protection insurance benefits under MCL 500.3113(a) – if an intermediate permissive user grants permission to operate the accident vehicle, despite the owner’s prohibition? Does the “family joyriding” exception to MCL 500.3113(a) apply?

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Issue: The no-fault automobile policy in this case expressly excluded the car owner’s husband – who has four drunk driving convictions – from coverage. Although he knew this, the husband drove the car while drunk and was injured in an accident. The insurance company filed a lawsuit, seeking a declaration that it was not obligated to pay for the injured husband’s medical treatment and care. The trial court ruled in the insurance company’s favor, but the Court of Appeals reversed. Does the “family joyriding exception” in MCL 500.3113(a) apply to a family member who knows that he or she has been forbidden to drive a vehicle and is excluded from coverage in the no-fault policy, but nevertheless drives the car and is hurt in an accident? If so, should the “family joyriding” exception be limited or overruled?

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Issue: The defendant entered a plea to two counts of second-degree criminal sexual conduct, with an evaluation from the court, under People v Cobbs, 443 Mich 276 (1993), for concurrent five-year minimum prison sentences. Consistent with the plea, the judge sentenced the defendant to concurrent prison terms of five to 15 years; he also ordered lifetime electronic monitoring as required by MCL 750.520n. On appeal, the defendant argued that his plea was not voluntary because he was not informed of the lifetime monitoring requirement. In a split decision, the Court of Appeals remanded the case to the trial court with directions to permit the defendant to withdraw his plea. Does Michigan Court Rule 6.302 require that a defendant entering a plea to first-degree or second-degree criminal sexual conduct be informed that he or she will be subject to lifetime electronic monitoring if the victim is under 13 years of age and the defendant is sentenced to prison? Must lifetime electronic monitoring be included in the terms of a sentence evaluation under People v Cobbs?

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McCahan v Brennan
142765
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Issue: The plaintiff, injured in a collision with vehicle owned by the University of Michigan, failed to file a notice of intent to file a claim with the Clerk of the Court of Claims within six months after the accident, as required by MCL 600.6431. She did provide information about the accident to the university within that time frame, and filed a notice of intent with the Clerk of the Court of Claims almost a year after the accident. The trial court granted summary disposition to the university and dismissed the case because the plaintiff failed to comply with MCL 600.6431’s notice requirements. The Court of Appeals affirmed in a split, published decision. The plaintiff contends that the actual notice and information she provided substantially complied with the statute, foreclosing any claim that the university was prejudiced by noncompliance with the notice requirements. Did the plaintiff’s failure to comply with the notice requirement of MCL 600.6431(3) require dismissal of her claim against the university?

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Issue: The plaintiff was the low bidder on a construction project contract that was offered by a public school district. The defendant architectural firm had an agreement with the school district to assist with the project bid evaluations. After the defendant provided its recommendation – which stated that the plaintiff should be disqualified – the school district chose the bidder that had submitted the second lowest bid. The plaintiff sued the defendant for tortious interference with a business expectancy, but the trial court granted summary disposition to the defendant. A split Court of Appeals reversed in a published decision. Are there genuine issues of material fact as to whether the plaintiff, a disappointed low bidder on a public contract, had a valid business expectancy? Did the defendant architectural firm’s communications, made pursuant to its agreement with the school district, amount to intentional and improper conduct sufficient to sustain a claim of tortious interference with a business expectancy?

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Issue: In 2004, the petitioner purchased three properties. Such a transfer in ownership allows the township to “uncap” the property’s taxable value and assess property tax on the full state equalized value without the limitations imposed by Proposal A (Const 1963, art 9, § 3). In this case, the township failed to uncap the SEV of the three properties for the 2005 or 2006 tax year. In March 2007, the local Board of Review corrected the taxable value for 2007, using the uncapped value of the property in 2005 as the base value. The petitioner appealed to the Tax Tribunal, arguing that MCL 211.27a requires that any change in taxable value be made in the year immediately after the property transfer. The Tax Tribunal ruled against the petitioner, but the Court of Appeals reversed, holding that the township was not permitted to adjust the taxable value because it had failed to do so in the year after the transfer. If the taxing authority fails to adjust real property’s taxable value in the year immediately after a transfer, does MCL 211.27a(3) preclude a later adjustment?

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Issue: Northville Township raised the taxable value of the petitioner’s property in 2000, pursuant to a statute that provided for the increase. The petitioner did not challenge the increase in 2000, but in 2001, the petitioner filed a lawsuit claiming that the statute was unconstitutional; in 2008, the Michigan Supreme Court declared that the statute was unconstitutional. The property owner then sought relief from the property taxes that it had paid on the unconstitutional addition to its property’s taxable value. Did the Court of Appeals correctly hold that the Michigan Tax Tribunal had no jurisdiction to reduce an unconstitutional increase in the taxable value if the owner did not challenge the increase in the same year?

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Issue: The trial court appointed a receiver to seize and sell property to satisfy an outstanding judgment against the property’s owner. The receiver repaired the property, which was dilapidated and uninhabitable, to prepare it for sale. But as a result of the real estate market collapse, he could not sell the property for a high enough price to pay off an existing mortgage and to also pay the receiver’s outstanding costs and fees. The trial court granted a lien against the property in the amount of the receiver’s costs and fees, ruling that this lien had priority over the mortgage. The Court of Appeals affirmed. Must a mortgagee consent to the appointment of a receiver to be required to pay the receiver’s costs and fees? Does the statutory right of first priority belonging to the holder of the recorded mortgage, MCL 600.3236, override the common-law rule that a receiver’s costs and fees are entitled to first priority? Can a mortgagee be required to pay for expenses that did not benefit it?

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Issue: This auto no-fault case involves a claim for reimbursement of the full cost of a handicap-accessible van for a person who was catastrophically injured in an automobile accident. The trial judge granted summary disposition in the plaintiff’s favor, finding that the defendant insurance company was obligated under a contract between the parties to pay the full purchase price of a new van (as opposed to paying for only those modifications required to enable the injured person to use the van). The Court of Appeals affirmed. The insurance company appeals, arguing that it is not required under the no-fault act to pay the full purchase price for the new van. The plaintiff filed a cross-appeal, arguing that the insurance company is obligated under both the no-fault act and the contract to pay the full cost of a new van. Whether, or to what extent, is the defendant obligated to pay the plaintiff personal protection insurance benefits under the no-fault act, MCL 500.3101 et seq., for handicap-accessible transportation?

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Issue: The plaintiff was injured while riding one of the defendant’s buses. Within 60 days of the accident, she contacted the defendant regarding an auto no-fault claim. But when the plaintiff sued the defendant, the trial court dismissed her tort claims, noting that she had not notified the defendant in writing of her tort claims within 60 days of the accident, as required by MCL 124.419. The Court of Appeals reversed, finding that the plaintiff’s written contacts with the defendant’s no-fault insurer, and other information the plaintiff provided, were sufficient to put the defendant on notice of the plaintiff’s tort claims. Does written notice of the plaintiff’s no-fault claim, together with the defendant’s knowledge of facts that could give rise to a tort claim, satisfy MCL 124.419’s written notice requirement?

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Issue: The plaintiff insurance company issued a policy to an insured with a suspended driver’s license; the policy became effective on the date that the insured expected her license to be reinstated. In fact, her license was not reinstated until about a month after the policy went into effect. Several months later, she was involved in an automobile accident, injuring two others. The insurance company sought to reduce the coverage provided by the policy, arguing that it could do so in light of the insured’s misrepresentation about the status of her license, but the trial court denied its request. May an insurance carrier reform an insurance policy due to a misrepresentation in the insurance application where the misrepresentation is “easily ascertainable” and the claimant is an injured third-party?

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Issue: During jury selection, the trial judge closed the courtroom to the public. Defense counsel did not object. Was the defendant denied his right to a public trial pursuant to US Const, Am VI, and Const 1963, art 1, § 20, see Presley v Georgia, 558 US ___; 130 S Ct 721; 175 L Ed 2d 675 (2010)? Did the defendant, by failing to object, forfeit or waive any error resulting from the exclusion of the public from the courtroom during the jury voir dire? If so, did trial counsel’s failure to object amount to ineffective assistance of counsel? If some structural errors can be forfeited, is the denial of the right to a public trial among those forfeitable errors? Is the defendant is entitled to a new trial as a consequence of the trial court’s exclusion of the public during the jury voir dire?

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Issue: The respondent was appointed emergency manager for the Detroit Public Schools, but he did not take the oath of office before assuming his duties. The petitioner asked the Attorney General to institute quo warranto proceedings against the respondent, to obtain a declaration that the office of emergency manager was vacant due to respondent’s failure to take the oath. The respondent belatedly took the oath of office and the Attorney General declined the petitioner’s request to institute quo warranto proceedings. The respondent filed an application for leave to file a complaint for quo warranto in the Court of Appeals, but the Court of Appeals denied the application. Should the office of emergency manager be declared vacant because the respondent did not take the oath of office before assuming his duties, but subsequently took the oath of office before this quo warranto action was filed?

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Issue: The plaintiff sued the defendants for medical malpractice. The defendants moved for summary disposition, arguing that the plaintiff’s pre-suit notice of intent to sue was defective because it did not contain the information required by MCL 600.2912b(4). The trial court granted the motion and dismissed the plaintiff’s complaint. The Court of Appeals reversed, holding that the plaintiff was entitled to amend her notice of intent pursuant to MCL 600.2301 and Bush v Shabahang, 484 Mich 156 (2009), and to have that amendment relate back to the date of the original service of the notice. Does MCL 600.2301 apply to cases initiated before the amendment of MCL 600.5856 in 2004? Should the plaintiff have been allowed to amend her notice of intent?

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Order
1/25/12
142441

In re J.L. GORDON
143673
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Townships of Haring & Selma v City of Cadillac
142117-8
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Issue:  In the mid-1970s, the city of Cadillac and Wexford County executed two contracts to allow nearby townships to use the city’s wastewater treatment system. Both contracts were set to expire in 2017 unless renewed by the parties’ agreement. In 2006, the city notified the townships that it did not intend to renew the contracts, absent the townships’ annexation into the city. Three of the townships sued, claiming that the city had a legal obligation to allow them to continue using the wastewater treatment system at least through 2052 and possibly beyond. The trial court granted summary disposition to the city, and the Court of Appeals affirmed. Are the townships entitled to relief based on the holding of Washtenaw Co Health Dep’t v T&M Chevrolet, Inc, 406 Mich 518 (1979), which states that “[w]hen ... an available sewer line crosses municipal boundaries, the municipality operating the sewer system may not condition connection on annexation of the properties involved when connection means abatement of a public health hazard”? Are plaintiffs’ claims ripe for adjudication now, when the contracts have not yet expired?

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Issue:  Following a jury trial, the defendant was convicted of five counts of first-degree criminal sexual conduct, as well as felony-firearm. Two of the prosecution’s medical experts testified from remote locations by video-conferencing; before trial, the defendant’s attorney agreed that they could do so. Did the trial court violate the defendant’s rights under the Confrontation Clause or MCR 6.006(C)(2) by allowing the witnesses to testify via two-way interactive video technology? Did defense counsel waive the issue?

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Findley v DaimlerChrysler
141858
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Oral argument adjourned pending legislative action bearing on the issue.

• Was the woman’s injury “a direct result of physical contact with equipment permanently mounted on the vehicle,” as provided by MCL 500.3106(1)(b)?
• Did she sustain her injury while “alighting from the vehicle” within the meaning of MCL 500.3106(1)(c)?
• Is she entitled to attorney fees under MCL 500.3148(1)?