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Schedule of Oral Argument
2008-2009 Term |
The following are summaries of cases that have been or will be argued before the Michigan Supreme Court's seven Justices during the term (October 2008 - July 31, 2000). This page also provides a status of the case, and links to the Court's opinion or order in each case this session. Further information may be obtained by calling the Supreme Court Clerk's Office at 517-373-0120. To help you select cases that may be of interest to you, the Court's staff has prepared the following synopses. These are simple summaries of complicated cases, and might not reflect the manner in which some or all of the Court's seven Justices view the cases. The lawyers may also disagree with regard to the facts, the issues, the procedural history, or the significance of their cases. For further details concerning these cases, you should contact the lawyers.
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May 2009 Session Calendar>>
May 2009 Case Call>>
Case Name
& Docket Number
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Calendar
Number |
At Issue |
Status |
Seyburn, Kahn
v
Bakshi
136436
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1 |
A law firm sued its former client for unpaid legal fees. The trial court entered judgment for the law firm, but the Court of Appeals reversed, finding that the firm’s claim was barred by the six-year statute of limitations. Was the firm’s lawsuit brought to recover the balance due upon a mutual and open account? If so, does MCL 600.5831 apply to an action brought by an attorney against his client to recover unpaid legal fees? Can legal services performed after the termination of an attorney-client relationship be “the last item proved in the account” under MCL 500.5831? Can there be a “mutual and open account” after termination of an attorney-client relationship? Does a claim by an attorney against his client for unpaid legal fees always accrue on the date the attorney-client relationship ends?
Background: |
Opinion
07/17/09
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People
v
McGraw (Matthew)
132876
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2 |
In sentencing criminal defendants, trial courts use statutory “offense variables,” which assign a number of points based on various factors in the crime; the number of points is used to determine the length of the sentence. Are the offense variables to be scored based on (a) the defendant’s conduct in committing the specific offense for which the guidelines are being scored, (b) the defendant’s conduct during the entire criminal transaction, or (c) the defendant’s conduct during the specific offense being scored and any offenses resulting in conviction that arise out of the same transaction and are enumerated in MCL 791.233b? When is an offense completed for purposes of scoring the offense variables? Can an accomplice to the underlying crime be considered a “victim” under MCL 777.39 (OV 9)? Was the defendant in this case properly assessed 10 points for “2 to 9 victims” under OV 9 where he broke into an unoccupied store but, in the course of driving away with two accomplices, led police on a car chase ending in a collision?
Background: |
Opinion
07/28/09>>
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Wednesday, May 13, 2009
Oral Argument will be heard at 2:00 p.m.
at
St. Joseph County Courthouse
125 W. Main Street
Centreville, MIchigan
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Roberts
v
Saffell
137749
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Oral
Argument on Application |
After spending numerous summers at their Leland home, the defendants in this case sold their home to the plaintiffs. The defendants had experienced some springtime swarms of flying insects in the home, but pest control personnel took care of it and allegedly told the defendants not to worry. On a Seller’s Disclosure Statement, the defendants answered “No” when asked if there was “any history of infestation.” After they bought the home, the plaintiffs learned that the flying insects were termites and that the entire home was structurally unsound, at least in part because of termite damage. The defendants maintain that they did not know there was a termite infestation in the house, and that the plaintiffs cannot sue them under the Seller Disclosure Act because that statute imposes liability only in cases where the sellers know they are making false statements on seller disclosure forms. Is innocent misrepresentation a viable theory of liability under the Seller Disclosure Act? Did the defendants fail to preserve their argument under the Act where they raised it at trial but did not expressly do so at the Court of Appeals? If so, did they waive that argument, so that the Court of Appeals could not consider the issue? Could the plaintiffs’ claim proceed on the basis that the actual issue presented to the jury was whether the defendants did know about the termite infestation and intentionally withheld that information from the plaintiffs?
Background: |
Order
06/17/09>>
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Argument in 136988 - In Re McBride has been ADJOURNED.
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April Session Calendar>>
April Call>>
Case Name
& Docket Number
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Calendar
Number |
At Issue |
Status |
People
v
Fisher (Jeremy)
136591
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1 |
The police, acting on a complaint about a man acting “crazy,” went to defendant’s home, where they observed damage and small amounts of blood outside the house. They tried to communicate with the defendant, but he rebuffed them and told them to get a search warrant. The officers attempted to enter the house to see if anyone else was injured, but retreated after the defendant pointed a gun at one officer who opened the front door. After obtaining a search warrant, the officers arrested the defendant for felonious assault and felony-firearm. The trial court granted the defendant’s motion to suppress evidence of the gun, concluding that the warrantless entry was unjustified by the emergency aid exception to the search warrant requirement. The Court of Appeals affirmed. Does the emergency aid exception apply? May evidence of an assault against the police be suppressed? What is the proper standard of appellate review for a trial court’s decisions concerning an alleged Fourth Amendment violation for warrantless entry of a house?
Background: |
Order
05/22/09>>
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People
v
Jackson (Harvey)
135888
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2 |
The trial court ordered the defendant in this criminal case to repay fees for his court-appointed attorney. The defendant asked the court to consider his financial circumstances under People v Dunbar, 264 Mich App 240 (2004). In Dunbar, the Michigan Court of Appeals held that, pursuant to MCL 769.1k, a trial court must consider a defendant’s ability to repay attorney fees before ordering the defendant to do so. Was Dunbar correctly decided? Did Dunbar correctly hold that a challenge to an order for repayment of attorney fees may be premature until collection efforts have begun? Should the trial court consider the defendant’s other financial obligations, and whether the defendant will be incarcerated? Does imposing a 20 percent late fee pursuant to MCL 600.4803(1) constitute an impermissible collection effort or sanction? Does such a late fee violate Dunbar by providing a means of enforcement that is not available to other civil debtors?
Background: |
Opinion
07/10/09>>
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Jackson
v
Estate of
Ronald
Green
136423
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3 |
The plaintiff had both her name and the defendant’s placed on real estate deeds, but later sued the defendant when he refused to take his name off the deeds, asking the court to grant her partition action and remove the defendant’s name from the deeds. She also sued him for money she claimed she had loaned him over the years. While the case was pending in the Court of Appeals, the defendant died. Does a partition action involving individuals who jointly own real estate survive the death of one of the parties, if the form of joint ownership is an ordinary joint tenancy that does not expressly grant rights of survivorship? If so, does title to the property nevertheless automatically transfer to the surviving owner upon the deceased owner’s death if a partition order was not entered before the death? When does a cause of action accrue, and the statute of limitations begin to run, on a claim of breach of a verbal loan that did not include explicit terms for repayment? Must the lender must demand payment on such a loan within a specified period after the loan is made?
Background: |
Opinion
07/30/09>>
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People
v
Idziak (Patrick)
137301
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4 |
The defendant, a parolee, was arrested in connection with a bar robbery, and ultimately pled guilty to armed robbery and felony-firearm. He seeks credit for time served while he awaited trial and sentencing. Is the Parole Board required to compute a new parole eligibility date for inmates who commit new criminal offenses while on parole, by exercising its discretion to determine what is the “remaining portion” of the sentence for the previous offense? If so, is this requirement satisfied by a Michigan Department of Corrections policy to automatically begin the new sentence as of the date of the most recent sentencing, minus any days of jail credit awarded by the trial court? Is the judiciary precluded from reviewing such a decision by the MDOC under Warda v City Council, 472 Mich 326 (2005)? Can the decision constitute a violation of a defendant’s right to due process or equal protection under the law? Is a trial court authorized, required, or not authorized to award jail credit under MCL 769.11b?
Background: |
Opinion
07/31/09>>
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Wednesday, April 8, 2009 |
Bush
v
Shabahang, et al
136617
136653
136983
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5 |
In this medical malpractice case, the plaintiff filed suit less than 182 days after serving the defendants with a notice of intent to sue, but argued that the suit was not premature under MCL 600.2912b(8); he contended that the defendants’ responses to the notice of intent were insufficient, allowing him to file the complaint after 154 days. The Court of Appeals majority held that the plaintiff could file suit earlier based on his belief that the responses were inadequate, and could do so without first challenging the responses in court; the plaintiff would have to bear the risk of dismissal if a court later concluded that the responses were adequate, the majority said. Was the plaintiff’s suit filed prematurely? The Court of Appeals also dismissed without prejudice direct liability claims against two of the defendants, finding that the plaintiff’s notice of intent was inadequate to put those defendants on notice that they could be held directly liable for the actions of staff other than two of the doctors who performed the surgery. Did the plaintiff’s defective notice of intent as to these defendants toll the period of limitations pursuant to MCL 600.5856(c), as amended by 2004 PA 87, effective April 22, 2004?
Background: |
Opinion
07/29/09>> |
People
v
Lowe (Jamie)
137284
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Oral
Argument on Application
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The defendant pleaded guilty to possession of methamphetamine with sentence enhancement as a second drug offender. The minimum sentence guidelines range was calculated to be 10 to 23 months. The trial court imposed a sentence of 46 months to 20 years, doubling the minimum sentence under People v Williams, 268 Mich App 416 (2005), and did not state any reason for an upward departure from the guidelines. If a defendant is subject to sentence enhancement of “twice the term otherwise authorized” under MCL 333.7413(2), may the minimum sentence range recommended by the sentencing guidelines be doubled? Was this question was correctly decided in People v Williams, 268 Mich App 416 (2005)? What, if any, impact does MCL 777.21(4) have on this question?
Background: |
Opinion
08/13/09>>
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People
v
Holder (Gregory)
137486
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Oral
Argument on Application |
The defendant had been on parole, but was discharged before the charges in this case arose. The defendant was convicted of the charges in this case, and a judgment of sentence was entered. After the Court of Appeals denied leave to appeal, the Michigan Department of Corrections informed that trial court that MDOC had “cancelled” the defendant’s discharge of parole. MDOC asked the court to amend the defendant’s judgment of sentence to show that the sentences in this case were to run consecutive to the sentences for which the defendant had been on parole. The court did so, without notifying the defendant. Was the first judgment of sentence valid when imposed because the defendant was not on parole at the time he committed the offenses in this case? Did the trial court lack the authority to modify the judgment of sentence?
Background: |
Opinion
06/10/09>>
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People
v
Kircher (David)
137652
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Oral
Argument on Application |
The defendant was convicted of pollution charges for pumping raw sewage into a catch basin that led to a river. One conviction was for “substantial endangerment to the public health, safety or welfare,” pursuant to MCL 324.3115(4). That statute states that the trial court “shall impose . . . a sentence of 5 years’ imprisonment.” But MCL 324.3115(4) is included in a list of crimes to which the guidelines for minimum sentences apply, see MCL 777.13c. Does the plain language of MCL 324.3115(4) require a determinate sentence of five years, or does the inclusion of that statute in MCL 777.13c require imposition of an indeterminate sentence, with a minimum and maximum term?
Background: |
Order
05/01/09>> |
March Session Calendar>>
March Call>>
Case Name
& Docket Number
|
Calendar
Number |
At Issue |
Status |
Henry
v
Dow Chemical
136298
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number(s) to
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9 |
The plaintiffs, who claim that Dow Chemical Company contaminated their property with dioxin, asked the trial court to certify a class action for all who own property within the one-hundred-year flood plain of the Tittabawassee River in Saginaw County. The Court of Appeals agreed that a class action was appropriate as to whether Dow was liable to the plaintiffs, but held that damages must be determined on an individual basis. Does the federal courts’ “rigorous analysis” requirement for class certification also apply to state class actions? If so, did the trial court apply that test in certifying the class action? Do the plaintiffs meet the requirements for class certification in Michigan Court Rule 3.501(A)(1)? In particular, did they show that questions of law or fact common to the class members predominate over questions affecting only individual members? Did the plaintiffs establish that they suffered injury on a class-wide basis?
Background: |
Opinion
07/31/09>>
|
People
v
Bryant
(Richard)
133725
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1 |
A shooting victim, discovered and questioned by police officers, told them “Rick shot me,” and described where the shooting occurred. The officers testified to those statements at trial; the defendant was convicted of second-degree murder, felon in possession of a firearm, and felony-firearm. Did the officers’ testimony constitute inadmissible testimonial hearsay within the meaning of Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 157 (2004), and Davis v Washington, 547 US 813; 126 S Ct 2266; 165 L Ed 2d 224 (2006)?
Background: |
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Hunter
v
Hunter
136310
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2 |
The defendant parents consented to a limited guardianship of their children with the plaintiffs; the court later appointed the plaintiffs the co-guardians of the defendants’ children. Several years later, the plaintiffs filed this custody action. The trial court found that the children’s established custodial environment was with the plaintiffs, that the defendant mother was an unfit parent, and that it was in the best interests of the children for them to remain with the plaintiffs, who were granted legal and physical custody. The Court of Appeals affirmed, with one judge dissenting. Does the standard for parental fitness in Mason v Simmons, 267 Mich App 188 (2005), violate a natural parent’s fundamental rights to his or her child? Did the lower courts properly apply the Child Custody Act’s presumption favoring the children’s established custodial environment, instead of the presumption in favor of biological parents? Were the trial court’s findings against the great weight of the evidence?
Background: |
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Attorney General
v
MPSC
134667
134668
134669
134671
134673
134674
134676
134677
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4 |
Detroit Edison Company and Consumers Energy Company filed with the Michigan Public Service Commission separate applications to increase their rates and implement power supply cost recovery (PSCR) plans. May “transmission costs” be included in the PSCR factor, MCL 460.6j(1)(a) and (b)? Was the MPSC’s decision to prohibit recovery of the control premium that DTE Energy paid to acquire MCN Energy supported by competent, material, and substantial evidence on the whole record?
Background: |
Order
05/01/09>>
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Attorney General
v
MPSC
136431
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number(s) to
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in Acrobat |
5 |
Detroit Edison Company and Consumers Energy Company filed with the Michigan Public Service Commission separate applications to increase their rates and implement power supply cost recovery (PSCR) plans. May “transmission costs” be included in the PSCR factor, MCL 460.6j(1)(a) and (b)? Was the MPSC’s decision to prohibit recovery of the control premium that DTE Energy paid to acquire MCN Energy supported by competent, material, and substantial evidence on the whole record?
Background: |
Order
05/01/09>>
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Selflube Inc
v
JJMT Inc., et al
136377
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6 |
An employer obtained a default judgment against its employee, who had been convicted of fraud against the employer. Before the court entered the default judgment, the employee applied to withdraw the funds held in his name in the employer’s 401(k) plan. The circuit court ruled that the employee had to deposit any funds that he received from the plan into an account selected or approved by the employer. The Court of Appeals reversed. Is the injunction prohibited by ERISA’s anti-alienation provision, 29 USC 1056(d)(1)? Is the injunction prohibited by 29 USC 1104(a)(1)(D), which provides that a fiduciary of an ERISA plan shall discharge its duties with respect to the plan solely in the interests of the participants and beneficiaries, and in accordance with the documents and instruments governing the plan? Is this case distinguishable from State Treasurer v Abbott, 468 Mich 143 (2003)?
Background: |
Order
03/13/09>>
|
Wednesday, March 4, 2009 |
Potter
v
McLeary, et al
136336
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7 |
In this medical malpractice case, the Court of Appeals held that the plaintiff’s notice of intent to sue did not comply with the requirements of MCL 600.2912b as to defendant Huron Valley Radiology, P.C. Is Huron Valley Radiology a “health facility or agency” which a plaintiff is required to notify under MCL 600.2912b(1)?
Background: |
Opinion
07/31/09>>
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In Re Hudson\
Morgan Minors
137362
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8 |
The trial court terminated the respondent-mother’s parental rights to her three sons, after she made certain admissions in response to a Michigan Department of Human Services’ petition concerning her family. The mother argued in the Court of Appeals that she did not make those admissions knowingly, voluntarily, and understandingly. She also argued that the trial court failed to timely provide her with an attorney. The Court of Appeals denied relief on those issues, but vacated the order terminating the mother’s parental rights. The appellate court concluded that DHS failed to present clear and convincing evidence that termination of the mother’s parental rights was warranted. Did DHS present clear and convincing evidence of statutory grounds for terminating the mother’s parental rights? Did DHS present clear and convincing evidence that termination was not contrary to the children’s best interests? Should the Supreme Court address the issues the mother raised in the Court of Appeals? Were those issues properly decided?
Background: |
Order
04/08/09
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In Re Servaas
137633
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10 |
The Judicial Tenure Commission has recommended that Judge Steven R. Servaas of the 63rd District Court be removed from office and ordered to pay costs associated with the JTC proceedings. The JTC found in part that the judge vacated his judicial office by moving outside his election district, and that he lied under oath during the JTC proceedings. Should the Supreme Court accept the JTC’s recommendations?
Background: |
Opinion
07/31/09>>
Order
09/11/09>>
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In Re Lee
137653
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in Acrobat |
11 |
The child who is the subject of this termination of parental rights proceeding is an “Indian child,” as defined in the Indian Child Welfare Act, 25 USC 1903(4). The trial court granted the Department of Human Services’ petition to terminate respondent’s parental rights to the child; the Court of Appeals affirmed. Does the term “active efforts” in 25 USC 1912(d) require a showing that there have been recent rehabilitative efforts designed to prevent the family’s breakup? Does the statute’s “beyond a reasonable doubt” standard require contemporaneous evidence that the continued custody of the Indian child by the Indian parent or custodian is likely to result in serious harm to the child before parental rights may be terminated?
Background: |
Opinion
07/14/09
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January Session Calendar>>
January Call>>
Wednesday, January 21, 2009 |
Case Name
& Docket Number
|
Calendar
Number |
At Issue |
Status |
People
v
Borgne (Michael)
134967
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|
1 |
A split panel of the Court of Appeals reversed the defendant’s convictions for armed robbery and felony-firearm and granted him a new trial, finding that the prosecutor violated the defendant’s constitutional rights under Doyle v Ohio, 426 US 610 (1976). In Doyle, the U.S. Supreme Court held that, where a defendant in a criminal case exercises the right to remain silent after receiving a Miranda warning, using the defendant’s silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. Did the prosecutor violate the defendant’s due process rights by cross-examining him about his post-Miranda-warning silence and suggesting in closing argument that the jury should infer from the defendant’s silence that he fabricated his trial testimony? Was the defendant’s claim of error under Doyle properly preserved at trial? What is the standard of review on appeal? Was any error harmless under the applicable standard of review?
Background: |
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People
v
Shafier (Harold)
135435
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2 |
A jury found the defendant guilty of two counts of second-degree criminal sexual conduct, but acquitted him of three counts of first-degree criminal sexual conduct. The Court of Appeals affirmed. Did the prosecutor’s comment on the defendant’s post-Miranda-warnings silence violate the defendant’s constitutional rights under the U.S. Supreme Court’s ruling in Doyle v Ohio, 426 US 610 (1976)? Was the defendant’s claim of error under Doyle properly preserved at trial? What is the standard of review on appeal? Was any error harmless under the applicable standard of review?
Background: |
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People
v
Williams
(Carletus)
135271
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3 |
Over the defendant’s objection, the trial court allowed the defendant to be tried before a single jury on drug delivery charges based on events several months apart and involving locations in different cities. Was the defendant entitled to separate trials under Michigan Court Rule 6.120? If the trial court erred in allowing the charges to be tried together, can the error be deemed harmless?
Background: |
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Romain
v
Frankenmuth Ins
135546
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5 |
The trial court ruled that one defendant was entitled to be dismissed from the lawsuit, holding that it had no legal duty to the plaintiffs. One of the remaining defendants then filed a notice naming the dismissed defendant as a “non-party at fault” under Michigan Court Rule 2.112(K) and Michigan’s comparative fault statutes, MCL 600.2957 and MCL 600.6304. Under those provisions, a trier of fact can allocate fault to a non-party, meaning that defendants in the case would pay less in damages – and the plaintiffs would recover less from those defendants – depending on what percentage of fault is assigned to the non-party. The trial court granted the plaintiffs’ motion to strike the notice of non-party fault, reasoning that a non-party cannot be “at fault” if it does not owe a duty to the plaintiff. Was the trial court correct? Does the use of the term “proximate cause” in MCL 600.6304 conflict with other statutory provisions? Did the Legislature intend to impose a legal duty requirement as a precondition for allocating fault under MCL 600.2957 and MCL 600.6304?
Background: |
Opinion
03/31/09>>
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Zahn
v
Kroger Company
136382
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6 |
A subcontractor signed an indemnification agreement with the general contractor, agreeing to pay for any liability imposed on the general contractor due to the subcontractor’s negligence. The subcontractor’s injured employee sued the general contractor and then settled the case; the trial court ordered the subcontractor to pay 80 percent of the settlement amount. But the subcontractor argued that it could not be held liable for its employee’s injuries other than through a worker’s compensation claim, and that the general contractor’s settlement was solely for its own negligence. Does the indemnification agreement support the trial court’s ruling? Can the employee’s settlement with the general contractor include damages due to the subcontractor’s negligence, even if the injured employee’s exclusive remedy against the subcontractor would be under the Worker’s Disability Compensation Act (MCL 418.131(1))? By agreeing to indemnify the contractor, did the subcontractor voluntarily make itself liable for injuries its employee suffered on the job due to the subcontractor’s negligence?
Background: |
Opinion
04/01/09>>
|
Thursday, January 22, 2009
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VanSlem-
brouck
v
Halperin
135893
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4 |
This medical malpractice case involves a child who was allegedly injured at birth. MCL 600.5851(7) provides that, where a medical malpractice claim accrues to a child under eight years old, the claim must be filed “. . . on or before the person’s tenth birthday or within the period of limitations set forth in section 5838a, whichever is later.” Are the plaintiffs entitled to the benefit of the tolling provision in MCL 600.5856(c) where the plaintiffs provided a notice of intent before the child turned 10, but filed their complaint after her tenth birthday? Does MCL 600.5851(7) provide a period of limitations?
Background: |
Order
Order
04/24/09>>
|
Petersen
v
Magna Corporation
136542
136543
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7 |
MCL 418.315 provides that “the worker’s compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee” on unpaid medical expenses. What is the meaning of the term “prorate” in Section 315, and does that term represent an exception to the American Rule regarding attorney fees? Should the attorney fee be taken out of the overall medical expense award, or should it be imposed in addition to the medical expenses? What is the role, if any, of health care providers and medical insurers in prorating attorney fees?
Background: |
Opinion
07/31/09>>
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People
v
Swafford (Kobeay)
136751
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8 |
The defendant was charged with crimes in Wayne County, Michigan, but was arrested on unrelated federal charges in Tennessee. Before he was convicted and sentenced in the federal case, the Wayne County Prosecutor sent a notice of detainer to the U.S. Marshals in Tennessee. After the defendant was incarcerated, the detainer was confirmed by federal prison authorities. The defendant provided the prosecutor and the court clerk with notice of his request for disposition of the Michigan charges, but the defendant was not tried within the 180-day time limit imposed by the Interstate Agreement on Detainers. Is the defendant entitled to dismissal of the charges? Does the IAD require that a detainer be lodged at the institution where the defendant is incarcerated? If so, was there sufficient evidence in this case that the detainer was properly lodged?
Background: |
Opinion
03/18/09>> |
McNeil
v
Charlevoix County
134437
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9 |
Northwest Michigan Community Health Agency enacted a Clean Indoor Air Regulation that restricts workplace smoking; the CIAR also prohibits employers from taking adverse employment action against a person who asserts the right to a smoke-free environment. The plaintiffs contend that the CIAR is preempted by state law. Can the local health department or the county board of commissioners create a private cause of action against a private entity that alters Michigan’s at-will employment doctrine? Does the right or private cause of action created by the CIAR fall within the exceptions set forth in Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692 (1982), to Michigan’s at-will employment doctrine? Are the exceptions to Michigan’s employment at-will doctrine on the basis of “public policy” consistent with this Court’s decision in Terrien v Zwit, 467 Mich 56 (2002)?
Background: |
Opinion
07/21/09>>
|
December Session Calendar
Wednesday, December 3, 2008
|
Chambers
v
Wayne County Airport Authority
136900
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Oral
Argument on Application |
The plaintiff sued the Wayne County Airport Authority, alleging that he slipped and fell in water dripping from a leaky airport ceiling. The airport argued that the case should be dismissed, contending that the plaintiff did not give the airport proper notice of his claim as required by the governmental tort liability statute. What constitutes “notice” under the statute? Was an incident report by an airport officer sufficient notice? Did the airport have constructive notice of the conditions that allegedly caused the plaintiff’s fall?
Background: |
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Ellis
v
Farm Bureau Insurance
136069
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Oral
Argument on Application |
The plaintiff, who owned a rental home, filed a claim with the defendant insurance company after vandals set fire to the property. She had earlier applied for a fire insurance policy with the defendant and had submitted a premium, but never received a copy of the policy and was told when she reported the fire that she was not in the insurer’s system. The insurer denied her claim, arguing that the home – which had not had a tenant for several months while the plaintiff had the property renovated – had been “vacant and unoccupied” for over 60 days; the policy stated that the defendant would not provide coverage in that situation, the insurer argued. But the Court of Appeals concluded, based on Smith v Lumbermen’s Insurance Company, 101 Mich App 78 (1980), that the rental home was not deemed “vacant and unoccupied” while the renovations were taking place. Is the insurer liable under the insurance policy’s terms? Did the Court of Appeals err in relying on Smith?
Background: |
|
November Session Calendar
November Case Call
Wednesday, November 12, 2008
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Case Name
& Docket Number
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Calendar
Number |
At Issue |
Status |
Sciotti
v
36th District Court
134328
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1 |
A jury found that the defendant employer either discriminated against the plaintiff employee on the basis of race, or retaliated against him after he accused his employer of race discrimination. The Court of Appeals ruled that there was insufficient evidence of retaliation, but it concluded that there was sufficient evidence of discrimination. Did the plaintiff produce viable statistical evidence of racial discrimination in support of each of his claims? Did the defendant provide a race-neutral reason for each decision? Is there a sufficient evidentiary basis to conclude that, more likely than not, each decision was a pretext for racial discrimination?
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General Motors Corporation
v
Alumi-Bunk, Inc.
135117
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2 |
General Motors offered to sell certain trucks at a low price to buyers who would agree to modify the vehicles and then sell them as used. The defendants participated in this program, and promised General Motors’ agents that they would modify the purchased trucks before resale. But the parties’ contract did not contain the modification requirement, and the defendants did not make any modifications before reselling the vehicles. General Motors sued under a variety of theories, including breach of contract and fraud. Can General Motors recover? Is there is an exception to the economic loss doctrine – which provides that parties to a purely commercial dispute are limited to the remedies of the Uniform Commercial Code, MCL 440.1101 et seq. – for claims of fraud? If so, are the fraud claims in this case sufficiently distinguishable from the contract claims for purposes of applying this exception?
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Davis
v
Forest River, Inc.
136114
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3 |
The plaintiff experienced multiple repair problems with a recreational vehicle he bought from a dealer. He sued the RV’s manufacturer, seeking to return the vehicle and recover the purchase price. A jury found in part that the manufacturer breached its express warranty and its implied warranty of merchantability, and that the plaintiff was entitled to revoke his acceptance of the RV. The manufacturer argued that revocation of the contract was not the right remedy because the manufacturer was not a party to the purchase contract. But the Court of Appeals affirmed, finding that the plaintiff could rescind the contract even if he and the manufacturer were not in “privity of contract.” Is there a cause of action for breach of warranty and a remedy of rescission where the plaintiff and the defendant are not in privity of contract? Do the Uniform Commercial Code (UCC) and the economic loss doctrine apply? If the UCC applies, are a breach of warranty claim and revocation of acceptance available under the UCC in the absence of privity?
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People
v
Watkins (Lincoln)
135787
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4 |
The defendant is charged with six counts of criminal sexual conduct involving a minor; the prosecutor seeks to call two witnesses at trial who will testify regarding their allegedly similar experiences with the defendant. The trial court ultimately ruled that their testimony was inadmissible, but the Court of Appeals held that one of the witnesses – who was a minor at the time of the alleged events – could testify under MCL 768.27a. That statute applies in criminal sexual conduct cases involving minors and governs the admissibility of certain evidence relating to other criminal sexual acts allegedly committed by the defendant on other minors. The appeals court found that this statute conflicts with MRE 404(b), the evidentiary rule that generally governs the admissibility of other-acts evidence, but held that its analysis should be guided by the statute. Does MCL 768.27a conflict with MRE 404(b)? If it does, does the statute prevail over the evidentiary rule? Does MCL 768.27a interfere with the judicial power to ensure that a criminal defendant receives a fair trial, a power exclusively vested in the courts of this state under Const 1963, art 6, § 1?
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Budget Rent-A-Car System
v
City of Detroit
133887
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5 |
A rental car company sued the city of Detroit and the Detroit Police Department to recover no-fault benefits the company paid to one of its customers, a man who fled from police in the rental car and was injured while hiding behind the car’s open door and pointing a handgun at a police officer. The trial court ruled that the city and police department were obligated to pay for the no-fault benefits; the Court of Appeals affirmed that ruling. Did the individual’s bodily injury arise out of the “ownership, operation, maintenance or use of a motor vehicle as a motor vehicle,” under MCL 500.3105(1)? Was the bodily injury accidental, under MCL 500.3105(4)?
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Thursday, November 13, 2008
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Benefiel
v
Auto-Owners Insurance Company
135778
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6 |
The plaintiff, who was injured in a 2002 car accident, sued for noneconomic benefits under Michigan’s no-fault statute, later settling the case. He filed a second lawsuit after he was again injured in a 2003 accident. In both lawsuits, the plaintiff claimed he was entitled to non-economic benefits because he had suffered a serious impairment of a bodily function. But the trial court determined that the plaintiff did not suffer a serious impairment of body function as a result of the 2003 accident because he was already impaired by the 2002 accident. The Court of Appeals reversed, holding that the relevant time frame included the plaintiff’s pre-2002 life. Did the Court of Appeals properly hold that the plaintiff established a serious impairment as a matter of law? Did the Court of Appeals correctly instruct the trial court that, if the jury finds it impossible to differentiate between the damages caused by the first and second accidents, the defendant must be deemed responsible for all the plaintiff’s injuries and damages?
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Grievance Administrator
v
Cooper
135053
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Oral
Argument on Application |
A client hired an attorney and entered into a fee agreement that required her to pay the attorney a nonrefundable $4,000 minimum fee, and stated that the attorney would bill the client at an hourly rate. The attorney spent several hours on the case before the client terminated their relationship and demanded a refund of the difference between the minimum fee and the amount owed for the hours the attorney had already worked. Taking the position that the minimum fee was nonrefundable, the attorney nevertheless refunded half of the difference. The Attorney Discipline Board found that the attorney acted unethically. Did either the fee agreement or the attorney’s partial retention of the minimum fee violate the Michigan Rules of Professional Conduct?
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People
v
Sierra (Christian)
135772
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Oral
Argument on Application |
The defendant and his brothers are charged with conducting a large-scale drug-dealing operation. A witness testified at the defendant’s brother’s trial that she was regularly involved in the operation, but did not know the defendant. She offered similar testimony at the defendant’s first trial, but then invoked her 5th amendment rights. The jury could not reach a verdict in that case, and the trial court declared a mistrial. The witness remains unavailable to testify, and the trial judge has ruled that her prior testimony will be inadmissible on retrial. Is her prior testimony admissible?
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Wednesday, November 19, 2008
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Case Name
& Docket Number
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Calendar
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Sazima
v
Shepherd Bar & Restaurant, et al
136940
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Oral
Argument on Application |
The Michigan Supreme Court has held that “there is no recovery for an employee who is injured on a public street or other property not owned, leased, or maintained by the employer while traveling to or from a nonemployer parking lot because this injury is not in the course of employment.” See Simkins v General Motors (After Remand), 453 Mich 703, 723 (1996); see also MCL 418.301(3). In this case, the plaintiff was injured while walking from a public parking space on the street to the restaurant where she worked. While there was a small employee parking lot at the restaurant, there were often not enough parking spots to accommodate all the employees; moreover, the restaurant asked its employees not to park on the street in front of the restaurant so that restaurant patrons could take those spots. A worker’s compensation magistrate awarded benefits, reasoning in part that the employer obtained “a business benefit” by having the employee park somewhere other than in front of the restaurant. Did the plaintiff’s injury occur in the course of her employment? Does Simkins bar her recovery?
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Bush
v
Shabahang, et al.
136617
136653
136983
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Oral
Argument on Application |
In this medical malpractice case, the plaintiff filed suit less than 182 days after serving the defendants with a notice of intent to sue, but argued that the suit was not premature under MCL 600.2912b(8); he contended that the defendants’ responses to the notice of intent were insufficient, allowing him to file the complaint after 154 days. The Court of Appeals majority held that the plaintiff could file suit earlier based on his belief that the responses were inadequate, and could do so without first challenging the responses in court; the plaintiff would have to bear the risk of dismissal if a court later concluded that the responses were adequate, the majority said. Was the plaintiff’s suit filed prematurely? The Court of Appeals also dismissed without prejudice direct liability claims against two of the defendants, finding that the plaintiff’s notice of intent was inadequate to put those defendants on notice that they could be held directly liable for the actions of staff other than two of the doctors who performed the surgery. Should the Court of Appeals have dismissed those claims with prejudice under Boodt v Borgess Medical Center, 481 Mich 558 (2008)?
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October Session Calendar
October Case Call
Wednesday, October 1, 2008
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Case Name
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In Re Ayden Rood, Minor
136849
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1 |
A prisoner, whose parental rights to his daughter were terminated, argued that he did not receive adequate notice of the proceedings from the family court or from the Department of Human Services. DHS argued that even if it did not make adequate efforts to contact the father or place his child with him, the father’s history of domestic violence, in addition to his failure to contact DHS for over a year or pursue visitation with his daughter, supported termination of his parental rights. The Court of Appeals, in a 2-1 decision, reversed and remanded the case to the trial court, finding DHS failed to make reasonable efforts to contact the father and provide him with services. Did DHS fail to prove the statutory grounds for termination by clear and convincing evidence?
Background: |
Opinion
04/02/09
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Roberson Builders
v
Larson
132363
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2 |
A contractor sued a homeowner for unpaid charges under a contract for home remodeling. The circuit court dismissed the contractor’s lawsuit because the contractor did not have a residential construction license, but the case proceeded to trial on the homeowner’s counterclaims against the contractor. The circuit court did allow the contractor to assert a setoff against the homeowner’s claims for work the contractor performed. But the Court of Appeals ruled that the contractor was not entitled to a setoff because it was unlicensed and therefore barred from seeking “compensation” under MCL 339.2412(1). Is a claim for setoff a counterclaim or an affirmative defense? Does asserting a claim for a setoff as a defense to another party’s claim amount to “bring[ing] or maintain[ing] an action in a court of this state for the collection of compensation” under MCL 339.2412(1)?
Background: |
Order
12/19/08>>
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People
v
Shahideh (Amir)
135495
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3 |
The defendant was charged with first-degree murder after beating his girlfriend to death with a baseball bat. His attorney asked the court to permit an independent psychological examination of the defendant, but the court denied the motion because the defendant had not first filed a notice of intent to assert an insanity defense as required by MCL 768.20a. Did the trial court err? Should the court have allowed the independent examination on the basis that the defendant’s counsel was merely exploring a possible defense?
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Order
12/29/08 |
Odom
v
Wayne County
133433
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4 |
The defendant, a deputy sheriff, arrested the plaintiff for disorderly conduct after suspecting her of prostitution. The plaintiff sued the defendant for false imprisonment and false arrest. The deputy sheriff sought to have the case dismissed on the basis of governmental immunity under MCL 691.1407, but the trial court denied her motion and the Court of Appeals affirmed. Where a government employee is being sued for the intentional torts of false imprisonment and malicious prosecution, can the employee assert governmental immunity?
Background: |
Opinion
12/30/08>>
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USF&G
v
MI Catastrophic Claims Ass'n
133466
133468
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5 |
Does § 3104 of the no-fault act (MCL 500.3104) require the Michigan Catastrophic Claims Association to indemnify the plaintiff insurers for 100 percent of the actual loss amounts above the $250,000 statutory threshold that the insurers were obligated to pay in PIP benefits, without regard to whether the payments were reasonable?
Background: |
Opinion
07/21/09>>
Order
07/21/09>>
Opinion
12/29/08>>
Order
03/27/09>>
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Thursday, October 2, 2008
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Case Name
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Calendar
Number
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At Issue |
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Tomacek
v
Bavas, et al
134665
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6 |
The plaintiffs and individual defendants are lot owners in the same plat. The plaintiffs seek to build a house on a lot and need utilities to do so; they sought a utility easement under their drive easement. The plaintiffs argued that an easement for utilities was an easement by necessity and also that the defendants used the only other easement in the plat for both a drive easement and a utilities easement. The trial court ordered a revision of the plat to allow for an easement for utilities to occupy the same space as the drive easement. The Court of Appeals affirmed. Does the Land Division Act provide a court with the power to make substantive changes to property rights? Did the plaintiffs establish an easement by necessity?
Background: |
Opinion
12/30/08>>
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People
v
Miller (Michael)
135989
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7 |
The defendant was convicted by a jury of first-degree criminal sexual conduct (CSC). Before sentencing, the defendant’s attorney learned that one of the jurors had two prior CSC convictions, but had concealed that fact during jury selection. The trial court denied the defendant’s motion for a new trial, finding no evidence that the defendant suffered actual prejudice as a result of the juror’s involvement; the Court of Appeals reversed, saying that the defendant was entitled to a new trial. Did the defendant have to show that he was prejudiced by the juror’s misconduct? Should the juror’s failure to identify himself as a felon – which would disqualify him from serving on a jury – constitute structural error that would require reversal of his conviction?
Background: |
Opinion
12/30/08>>
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In Re Hultgren
136880
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8 |
A judge met with a defendant in a collection case that was pending before another judge in the same court; the defendant claimed that a different person with the same name had incurred the debt. The judge then communicated with the office of an attorney involved in that case, including writing to the attorney on court stationery and asking the lawyer to “look into the matter and take whatever action is appropriate.” Did the judge violate judicial ethics rules?
Background: |
Opinion
12/17/08
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People
v
Parks (Ricky)
126509
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Oral
Argument on Application |
The defendant in this criminal sexual conduct case sought to introduce evidence that his accuser, his nine-year-old stepdaughter, had also accused her grandfather of sexual abuse when she was four or five years old. Is this evidence admissible, or is it barred by the rape shield statute, MCL 750.520j? Must the defendant be allowed to introduce the evidence of the child’s prior accusations in order to preserve his constitutional right of confrontation and to present a defense?
Background: |
Order
06/05/09>>
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Moore
v
Secura Ins
135028
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Oral
Argument on Application |
In this first-party no-fault case, a jury rendered a verdict in favor of the plaintiffs and the trial court awarded the plaintiffs close to $80,000 in attorney fees and costs. The Court of Appeals affirmed. Did the trial court err in awarding the plaintiffs attorney fees under MCL 500.3148(1)? Did the trial court err in determining the amount of attorney fees?
Background: |
Opinion
12/30/08>> |
Wednesday, October 22, 2008
Oral Argument will be heard at 1:30 p.m.
at
Malcolm Field Theatre in Curtiss Hall on the Campus of
Saginaw Valley State University
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In Re Raymond Estate
134461
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Oral
Argument on Application |
Does the testator’s will allow only her living siblings and her husband’s living siblings to inherit from her – or can the descendants of the couple’s deceased siblings also inherit? At stake is who may share in an almost $800,000 inheritance.
Background:
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Opinion
04/02/09 |
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