Michigan Supreme Court Calendar

A Detroit property owner's claim that the city's Solid Waste Inspection Fee amounts to a tax that was not approved by voters - and therefore violates the Headlee Amendment - will be before the Michigan Supreme Court in oral arguments this week. In Wolf v City of Detroit, the Michigan Court of Appeals ruled in favor of the city, holding that the SWIF is a "valid regulatory fee, not a disguised tax." The fee serves a regulatory purpose: "to ensure the efficient removal of solid waste products and to protect the public health," the appellate court said. Moreover, the city's fee is "reasonably proportionate" to the cost of the service, and is a voluntary charge, the court said; the fact that the city could put on lien on the property for nonpayment does not make the SWIF a tax, the Court of Appeals stated. The property owner argues that the facts - including the city's inclusion of the SWIF on property tax bills - show that the SWIF is really a tax. The court will also hear Duffy v Department of Natural Resources, et al., in which the plaintiff is suing the state of Michigan and the DNR for injuries she suffered while riding in an ATV on the Little Manistee Trail. At issue is whether the trail is a "highway" for the purposes of the Governmental Tort Liability Act, which defines "highway" as "a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway." The statute also limits the government's liability "only to the improved portion of the highway designed for vehicular travel [which] does not include sidewalks, trailways, crosswalks, or any other installation..." Although the trial court ruled in the plaintiff's favor, holding that she could pursue her claims because the trail fits the definition of a highway, the Court of Appeals disagreed, citing the provision in the statute that limits governmental liability to "the improved portion of the highway." The remaining 14 cases involve issues of contract, criminal, insurance, medical malpractice, negligence, personal injury, procedural, and worker's compensation law. The court will hear oral arguments in its courtroom on the sixth floor of the Michigan Hall of Justice on March 8, 9, and 10, beginning at 9:30 a.m. each day. The court's oral arguments are open to the public. Please note: the summaries that follow are brief accounts of complicated cases and may not reflect the way that some or all of the court's seven justices view the cases. The attorneys may also disagree about the facts, the issues, the procedural history, or the significance of their cases. Briefs are online at http://www.courts.michigan.gov/supremecourt/Clerk/MSC_orals.htm. Tuesday, March 8 Morning Session LOWEKE v ANN ARBOR CEILING & PARTITION COMPANY, INC. (case no. 141168) Attorney for plaintiffs Richard Loweke and Sherri Loweke: Steven E. Goren. Attorney for defendant Ann Arbor Ceiling & Partition Company, Inc.: Ernest R. Bazzana. Attorney for amicus curiae Michigan Association For Justice: Mark R. Granzotto. Attorney for amicus curiae Michigan Defense Trial Counsel, Inc.: Anthony F. Caffrey, III. Trial Court: Wayne County Circuit Court At issue: While working for a subcontractor at a construction site, the plaintiff was injured when cement boards stacked against a wall by another subcontractor's employees fell on him. The plaintiff sued the other subcontractor for negligence, but the trial court granted summary disposition and dismissed the case, agreeing with the subcontractor that it did not owe the plaintiff a duty separate and distinct from its contractual duties. The Court of Appeals affirmed, noting in particular that the defendant had not created a "new hazard" beyond the contract's requirements. Did the subcontractor have an independent duty to the plaintiff - an employee of another subcontractor - to exercise reasonable care? DRIVER v CARDIOVASCULAR CLINICAL ASSOCIATES, P.C., et al. (case no. 140922) Attorney for plaintiffs Willie Driver and Beverly Driver: Mark R. Granzotto. Attorney for defendant Cardiovascular Clinical Associates, P.C.: Linda M. Garbarino. Attorney for amicus curiae Michigan Optometric Association: Kelly M. Drake. Attorney for amicus curiae ProAssurance Corporation: Noreen L. Slank. Attorney for amicus curiae Michigan State Medical Society: Joanne Geha Swanson. Trial Court: Wayne County Circuit Court At issue: The plaintiff's attorney sent a notice of intent to file suit, as required by MCL 600.2912b, to the defendant physician and professional corporation, and then filed a complaint. The defendants filed a notice of nonparty fault pursuant to MCL 600.2957, naming a second professional corporation. The plaintiff sent the second professional corporation an amended notice of intent to sue, and filed an amended complaint, listing it as a defendant, 39 days later. About three months after that, the professional corporation moved for summary disposition, arguing that it should be dismissed from the lawsuit because the plaintiff had not waited 182 days - as required by MCL 600.2912b - before filing the amended complaint. In the meantime, the professional corporation said, the statute of limitations had continued to run, so the plaintiff's claim was time-barred. The trial court denied summary disposition, but the Court of Appeals reversed in a published opinion, concluding that the trial court should have dismissed the complaint against the second professional corporation under Burton v Reed City Hosp Corp, 471 Mich 745 (2005). In Burton, the Michigan Supreme Court held that a complaint filed before the statutory (MCL 600.2912b) waiting period expires is a nullity, and does not toll the limitations period. The Court of Appeals determined that MCL 600.2301, as applied in Bush v Shabahang, 484 Mich 156 (2009), does not apply because this case does not involve a defective notice of intent. Does Bush allow for the application of MCL 600.2301 in cases involving prematurely filed complaints under MCL 600.2912b(1)? Does Burton retain any viability in light of Bush? EVANS v GROSSE POINTE PUBLIC SCHOOL SYSTEM (case no. 140670) Attorneys for plaintiff Christopher L. Evans: Carl J. Marlinga, Ryan Hugh Machasic. Attorney for defendant Grosse Pointe Public School System: Mark W. McInerney. Trial Court: Wayne County Circuit Court At issue: The plaintiff served papers related to his employment discrimination suit on the defendant school system. The process server claimed that he served a summons and complaint on the executive assistant to the school's superintendent. The assistant signed a form in which she acknowledged receiving both the complaint and the summons, but she testified that she received only the complaint. The trial judge held an evidentiary hearing, and concluded that the assistant's testimony was credible and that the summons had never been served; the court granted summary disposition to the school system since the statute of limitations had expired. The Court of Appeals affirmed. Did the trial court err in granting the defendant's motion for summary disposition? Afternoon Session DUFFY v DEPARTMENT OF NATURAL RESOURCES, et al. (case no. 140937) Attorney for plaintiff Beverly Duffy: William G. Boyer Jr. Attorney for defendants Department of Natural Resources and State of Michigan: Ann M. Sherman. Trial Court: Court of Claims At issue: The plaintiff was injured when her all-terrain vehicle struck some partially buried wooden boards while she and others were riding on the Little Manistee Trail, a forest road that is open to vehicular traffic and maintained by the Department of Natural Resources. The plaintiff sued the DNR and the state of Michigan. The trial court ruled that the plaintiff could sue the defendants, concluding that the highway exception to governmental immunity applied because the trail was a highway within the meaning of the Governmental Tort Liability Act (MCL 691.1401 et seq.) and that the defendants were obligated to maintain the trail in reasonable repair. The Court of Appeals reversed, holding that the defendants had no duty to maintain the road under the GTLA. Is the Little Manistee Trail a "highway" within the meaning of MCL 691.1401(e)? If it is, does MCL 691.1402(1) exempt the state and the DNR from liability for maintaining a trailway that is not adjacent to any vehicular highway? MILLER-DAVIS COMPANY v AHRENS CONSTRUCTION, INC., et al. (case no. 139666) Attorneys for plaintiff Miller-Davis Company: Alfred J. Gemrich, Scott G. Graham. Attorney for defendant Ahrens Construction, Inc.: Samuel T. Field. Attorneys for amicus curiae Associated General Contractors of Michigan: Kevin S. Hendrick, Thomas M. Keranen, Brian P. Lick. Attorneys for amicus curiae Michigan Association of School Boards and Michigan School Business Officials: Christopher J. Iamarino, Kirk C. Herald. Trial Court: Kalamazoo County Circuit Court At issue: The plaintiff was the general contractor for a construction project that included a natatorium. The building developed a problem due to the defendant subcontractor's failure to build the natatorium roof to specifications, and the plaintiff ultimately fixed the problem at its own expense. The plaintiff successfully sued the defendant for breach of contract, but in a published opinion, the Court of Appeals reversed on the ground that suit was barred by MCL 600.5839, the statute of repose for "any action" against architects, engineers, or contractors to recover damages for "any injury to property, real or personal." Does the statute of repose apply to contract actions, or only to tort claims? Does this particular case constitute an "action to recover damages for any injury to property . . . arising out of the defective and unsafe condition of an improvement to real property"? When does a claim for breach of a construction contract accrue under MCL 600.5807(8) - on the date of "substantial completion" specified by the parties, the date the party in breach physically ceases work, the date the party in breach certifies that it has completed work, or some other date? Is the "occupancy of the completed improvement, use, or acceptance of the improvement" under MCL 600.5839 limited to occupancy, use or acceptance by the owner of the property? BROWN v TAUBMAN COMPANY, L.L.C., et al. (case no. 140385) Attorney for plaintiffs Irene M. Brown and Gary N. Brown: Mark W. Peyser. Attorney for defendant Taubman Company, L.L.C.: James W. Rose. Attorney for amicus curiae John Braden: John A. Braden. Trial Court: Oakland County Circuit Court At issue: The plaintiff slipped and fell on an alleged patch of black ice on the walkway leading into the defendant's shopping mall. The accident occurred in January, in wintry conditions. The trial court granted summary disposition to the premises owner, concluding that the black ice was open and obvious. The Court of Appeals reversed, citing the plaintiff's testimony that it was warm out that day and that there was no snow. Are indicia of a potentially slippery condition sufficient to make black ice "open and obvious"? If so, did the Court of Appeals err by concluding that these indicia could be counteracted by the plaintiff's own representations about weather conditions on the date of her fall, creating a question of fact about whether the alleged hazard was open and obvious? Wednesday, March 9 Morning Session WOLF v CITY OF DETROIT (case no. 140679) Attorneys for plaintiff Laurence G. Wolf, d/b/a Laurence Wolf Properties: Gregory D. Hanley, Timothy O. McMahon. Attorney for defendant City of Detroit: Joanne D. Stafford. At issue: The plaintiff property owner challenged the defendant city's imposition of a Solid Waste Inspection Fee; the property owner claimed that the fee amounted to a tax that had not been put to a vote of the electorate, in violation of the Headlee Amendment, Const 1963, art 9, § 31. The Court of Appeals, in a published decision, applied the factors set forth in Bolt v City of Lansing, 459 Mich 152 (1998) to conclude that the SWIF is a "valid regulatory fee, not a disguised tax." The court denied the plaintiff's motions for class certification and for sanctions for vexatious proceedings. Does the SWIF serve a regulatory purpose, is it proportionate to the necessary costs of the inspection service, and is it voluntary? Do the facts, such as the city's inclusion of the SWIF on property tax bills, support the plaintiff's contention that the SWIF is really a tax? Did the Court of Appeals abuse its discretion when it denied the plaintiff's motion for sanctions? PEOPLE v HUSTON (case no. 141312) Prosecuting attorney: Aaron J. Mead. Attorney for defendant Cecil D. Huston: Ronald D. Ambrose. Attorney for amicus curiae Prosecuting Attorneys Association of Michigan: Terrence E. Dean. Trial Court: Berrien County Circuit Court At issue: The defendant, after pleading guilty to armed robbery, was sentenced to 15 to 50 years in prison. He challenged the sentence, arguing that the sentencing judge had misscored Offense Variable 10, MCL 777.40 (exploitation of a vulnerable victim). In a published per curiam opinion, the Court of Appeals remanded for resentencing, holding that nothing on the record indicated that the victim was inherently vulnerable, and that "vulnerability" depends on the victim's personal characteristics, not the surrounding circumstances. The prosecutor argues that, because the victim was alone and isolated, she was vulnerable. Should OV 10 be scored in this case? In determining whether a victim is "vulnerable," should the sentencing judge consider the circumstances surrounding the offense, or only the victim's personal characteristics? BRONSON METHODIST HOSPITAL v ALLSTATE INSURANCE COMPANY (case no. 140301) Attorney for plaintiff Bronson Methodist Hospital: Richard E. Hillary II, Attorney for defendant Allstate Insurance Company: P. Kelly O'Dea. Attorney for amicus curiae Auto Club Insurance Association: James G. Gross. Attorney for amicus curiae Coalition Protecting Auto No-Fault: Liisa R. Speaker. Trial Court: Kalamazoo County Circuit Court At issue: Bronson Methodist Hospital provided medical care to the claimant, but waited almost a year to submit its claim to the Michigan Assigned Claims Facility. By the time the Assigned Claims Facility assigned the claim to Allstate Insurance Company and notified Bronson of the assignment, a year and two days had elapsed since the last date of treatment, so Allstate denied the claim under the one-year-back rule. Bronson filed a timely lawsuit, but the circuit court agreed that the one-year-back rule precluded recovery, and the Court of Appeals affirmed. Does the no-fault act's one-year-back rule, MCL 500.3145, bar Bronson from recovering its medical charges? Afternoon Session PEOPLE v HILL (case no. 141122) Prosecuting attorney: Randy L. Price. Attorney for defendant Naykima Tinee Hill: Gail O. Rodwan. Trial Court: Saginaw County Circuit Court At issue: The three victims identified the defendant as the woman who, while wearing a brown parka with fur around the hood, forced her way inside their house, assaulted, and threatened them. Police dog tracking led police to a coat and knife that matched those described by the victims; it also led to a house where the defendant was found. All three victims identified the defendant as their assailant before she was taken to the police station. The defendant claimed that she was misidentified. A jury convicted the defendant of first-degree home invasion, assault and battery, unlawful imprisonment, extortion, and three counts of armed robbery, based in part on a police detective's testimony that an out-of-court declarant told him that the defendant had been wearing a brown-hooded coat with fur around it. The Court of Appeals reversed the defendant's convictions, holding that the admission of the out-of-court statement was a preserved constitutional error that the court could not conclude was harmless beyond a reasonable doubt. Was the out-of-court statement harmless beyond a reasonable doubt? Was the dog tracking testimony admitted in error? PEOPLE v PETOLA (case no. 140524) Prosecuting attorney: Joel D. McGormley. Attorney for defendant Drew James Peltola: Jacqueline J. McCann. Trial Court: Dickinson County Circuit Court At issue: MCL 333.7413(2) states that an individual convicted of a second or subsequent controlled substance offense may be "imprisoned for a term not more than twice the term otherwise authorized . . . ." When a defendant's minimum and maximum sentences are doubled pursuant to MCL 333.7413(2), should the trial court score prior record variables (PRVs) to calculate the minimum sentence? Thursday, March 10 Morning Session Only GREEN v PIERSON, et al. (case no. 140808) Attorney for plaintiff Paul G. Green II, as Personal Representative of the Estate of Paul Gerald Green, Deceased: Ramona C. Howard. Attorney for defendants Charles Pierson, M.D., Barbara Carlson, M.D., and Southwestern Medical Clinic, P.C.: Timothy P. Buchalski. Attorney for defendant Richard Kammenzind, M.D.: Marcy R. Matson. Attorney for defendants Thomas Pow, M.D., and Great Lakes Heart & Vascular Institute, P.C.: Karl E. Hannum. Attorney for defendant Lakeland Medical Center St. Joseph: Jon D. Vander Ploeg. Attorney for amicus curiae Michigan Association for Justice: David R. Parker. Trial Court: Berrien County Circuit Court At issue: In this medical malpractice case, the trial court determined, on its own motion, that the plaintiff's notice of intent did not comply with the requirements of MCL 600.2912b(4) because the notice did not include an adequate statement as to how the defendants' alleged negligence proximately caused the decedent's injury. Because of that finding, the trial court granted summary disposition to the defendants and dismissed the complaint. The Court of Appeals affirmed in an unpublished per curiam opinion. Should the plaintiff have been allowed to amend his notice of intent? Does MCL 600.2301 apply to cases initiated before MCL 600.5856 was amended in 2004? HARRIS v GENERAL MOTORS CORPORATION (case no. 140241) Attorney for plaintiff Alesia Harris, Personal Representative of the Estate of Henry J. Harris, Deceased: Michael J. Cantor. Attorney for defendant General Motors Corporation: Gerald M. Marcinkoski. Attorney for amicus curiae Michigan Self-Insurers' Association and the Michigan Manufacturers Association: Martin L. Critchell. Tribunal: Workers' Compensation Appellate Commission At issue: A General Motors employee fell and struck his head on the floor of a men's room at a GM factory; he died a few days later. The cause of his fall was never determined. The employee's widow brought a worker's compensation claim. A magistrate held that the plaintiff failed to establish a connection between the employee's work and his injury. The plaintiff appealed to the Workers' Compensation Appellate Commission, claiming that the magistrate misunderstood the evidence and that his decision was not supported by sufficient evidence. In a split decision, the WCAC found that the magistrate's factual errors were harmless and that his decision was supported by the evidence. The Court of Appeals affirmed. Did the Court of Appeals err when it affirmed the WCAC's ruling? FARMERS INSURANCE EXCHANGE v YOUNG, et al. (case no. 141571) Attorney for plaintiff Farmers Insurance Exchange: Patrick W. Bennett. Attorney for defendant Rufus Young: Carl L. Collins III/. Trial Court: Wayne County Circuit Court At issue: The trial court ruled that the defendant - who was injured in a car accident while driving someone else's uninsured vehicle - was ineligible for no-fault personal protection insurance benefits under MCL 500.3113(a) because his driver's license was suspended. Since his operation of the uninsured vehicle was unlawful, he had no reasonable belief that he was entitled to take and use the vehicle merely because the person who had been operating it - but was too drunk to drive - had consented to his driving the car, the trial court said. The Court of Appeals affirmed in a split decision. Did the courts below err in concluding that the defendant could not have had a reasonable belief that he was entitled to take and use the car? PEOPLE v DUNCAN (case no. 141672) Prosecuting attorney: Janet A. Napp. Attorney for defendant Robert William Duncan: Mark M. Haidar. Trial Court: Wayne County Circuit Court At issue: The defendant was convicted by a jury of three counts of third-degree criminal sexual conduct for having an affair with a 14-year-old friend of his daughters. He filed a motion for new trial claiming that the improper admission of hearsay testimony and ineffective assistance of counsel led to his conviction. The trial judge agreed, and ordered a new trial. Following the prosecutor's appeal, the Court of Appeals affirmed in a split unpublished opinion. Did the trial court abuse its discretion in granting the defendant a new trial, for the reasons stated in the Court of Appeals dissenting opinion? PEOPLE v IVEY (case no. 141795) Prosecuting attorney: Jon P. Wojtala. Attorney for defendant Franklin Edward Ivey: Michael B. Skinner. Trial Court: Wayne County Circuit Court At issue: The defendant was acquitted of first-degree murder and felony-firearm, but was convicted of felon in possession of a firearm after claiming self-defense at a jury trial. He was sentenced to three years of probation, with 12 months in jail. In calculating the sentence guidelines for the offense of felon in possession of a firearm, the trial court assessed 100 points under Offense Variable 3, MCL 777.33 (physical injury to a victim), because "[a] victim was killed." The Court of Appeals affirmed, but one judge dissented with regard to the scoring of OV 3. Did the trial court err in assessing 100 points under OV 3 where the defendant successfully argued at trial that the killing was in self-defense? Published: Tue, Mar 8, 2011