Michigan Supreme Court to hold oral arguments this week

The Court will hear oral arguments in its courtroom on the sixth floor of the Michigan Hall of Justice on November 14 and 15, starting at 9:30 a.m. each day. The Court’s oral arguments are open to the public.

As a public service, the Court provides summaries of the cases it will hear at http://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Oral-Arguments/Pages/default.aspx.

Note: These brief accounts 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, issues, procedural history, and significance of these cases.

Wednesday, November 14
Morning Session

Attorneys for plaintiff Kenneth Admire: George T. Sinas, Stephen H. Sinas
Attorney for defendant Auto-Owners Insurance Company: Kimberlee A. Hillock
Attorney for amicus curiae Michigan Catastrophic Claims Association: Jill M. Wheaton
Attorney for amicus curiae Michigan Insurance Coalition and Insurance Institute of Michigan: Lori McAllister
Attorney for amicus curiae Coalition Protecting Auto No-Fault: Joanne Geha Swanson
Attorney for amicus curiae Auto Club Insurance Association concurrence in Michigan Catastrophic Claims Association: James G. Gross
Trial Court: Ingham County Circuit Court
Issue: At issue is whether the defendant insurance company is obligated to pay for a new van plus the cost of modifying the van to accommodate the injured plaintiff’s needs. The insurer argues that it is obligated to pay for the modifications only.
Background: Kenneth Admire was injured in a motor vehicle accident in 1987, leaving him bound to a wheelchair. The driver of the other vehicle was insured by Auto-Owners Insurance Company. Under the Michigan no-fault act (MCL 500.3103 et seq.), Auto-Owners became responsible for paying personal protection insurance benefits to Admire.
Because of his injuries, Admire cannot get in or out of a standard vehicle, and needs hand controls for accelerations and braking. To accommodate Admire’s special needs, Auto-Owners paid the full cost of three modified vans at seven-year intervals. Under the most recent transportation agreement, in April 2000, Auto-Owners agreed to pay $37,807.76 for a van. In December 2006, Admire’s guardian, Russell Admire, notified Auto-Owners that it was time to purchase a new handicap-accessible van. Auto-Owners responded that it was not obligated to pay for a new van under either the transportation agreement or the no-fault act, but Auto-Owners advised Admire that he could trade in the 2000 van for a new one and that the insurer would cover the cost of “necessary medical modifications.” In February 2007, Russell Admire purchased a new van and received $6,000 for the trade-in of the 2000 van, leaving a balance of $18,388.50, not including modifications. Auto-Owners later paid $19,405.00 for modifications.
Admire sued Auto-Owners, seeking reimbursement of the full cost of the replacement van ($18,388.50) as an allowable expense under MCL 500.3107(1)(a). Under this provision of the no-fault act, no-fault benefits are payable for “all reasonable charges incurred for reasonably necessary products, services, and accommodations for an injured person’s care, recovery, or rehabilitation.” Auto-Owners filed a motion for summary disposition under MCR 2.116(C)(10), citing Griffith v State Farm Mutual Automobile Ins Co, 472 Mich 521 (2005), and Weakland v Toledo Engineering Co, 467 Mich 344 (2003), for the proposition that it was not obligated under the no-fault act to pay the base purchase price of the van, but was only required to pay for modifications required because of Admire’s injuries. The trial judge denied Auto-Owners’ motion, ruling that the insurer was obligated under the parties’ 2000 agreement to pay the full price of the new van.
The Court of Appeals affirmed in an unpublished per curiam opinion. The appellate court did not agree with the trial court that the parties’ 2000 agreement obligated Auto-Owners to purchase a new van; the contract was ambiguous in that regard, the Court of Appeals said. But the Court of Appeals did conclude that the no-fault act imposed such an obligation on Auto-Owners. Admire had established that he could not drive a standard vehicle and needed a modified van for his transportation needs, the Court of Appeals stated. Moreover, Auto-Owners did not show that Admire could use alternative transportation or that the amount requested for reimbursement was unreasonable; accordingly, MCL 500.3107(1)(a) obligated Auto-Owners to purchase a van for Admire, the Court of Appeals concluded.
Auto-Owners appealed, and on March 7, 2012, the Michigan Supreme Court heard oral argument on Auto-Owners’ application for leave to appeal. In an order dated March 23, 2012, the Supreme Court granted leave to appeal. The Court directed the parties to address “(1) whether MCL 500.3107(1)(a) allows the plaintiff to recover the full cost of handicap-accessible transportation or whether the plaintiff’s recovery is offset to the extent that the handicap-accessible transportation replaces the plaintiff’s other transportation costs; (2) if the plaintiff’s recovery is offset, what procedure a factfinder must undertake in calculating the amount of the plaintiff’s recovery and what evidence is relevant to that calculation; (3) whether there is any basis in MCL 500.3107(1)(a) to treat transportation costs differently from other household expenses, such as food or housing, that every person incurs whether injured or not; and (4) whether the principles and standards articulated in Griffith v State Farm Mutual Automobile Insurance, 472 Mich 521 (2005), are sufficient to resolve this dispute.”


CHARTER TOWNSHIP OF LYON v McDONALD’S USA, L.L.C., et al. (case no. 143342)
Attorneys for plaintiff Charter Township of Lyon: Nancy Vayda Dembinski, Matthew C. Quinn
Attorney for intervening defendant Milford Road East Development Associates, L.L.C.: Robert M. Carson
Attorney for amicus curiae Michigan Chamber Litigation Center: Clifford W. Taylor
Attorney for amicus curiae Michigan Townships Association and Michigan Municipal League Legal Defense Fund: John K. Lohrstorfer
Trial Court: Oakland County Circuit Court
Issue: To extend water and sewer service to another property, Lyon Township exercised eminent domain over water and sewage lines located under a unit in the defendant’s development. The defendant’s development, Lyon Towne Center, shares owners, utilities, a strategic development plan, and infrastructure with another development, Lyon Crossing. The defendant owner claims that the township’s taking on Lyon Towne Center property harmed Lyon Crossing’s market advantage — and that the owner is entitled to damages.
Background: In 2002, Lyon Township and Milford Road East Development Associates, L.L.C. entered into an agreement for the development of Lyon Towne Center; the township also contracted with MREDA’s related company, Milford Road West Development Associates, L.L.C., for the development of a nearby site called Lyon Crossing. MREDA and MRWDA have the same owners.
Lyon Crossing and Lyon Towne Center are located south of I-96; Milford Road runs between them, but the properties are connected by a ring road and have common utilities and infrastructure. When the Towne Center was constructed, MREDA paid about $10 million to run water and sewer lines to the property. MREDA sold condominium units in the Towne Center to retail businesses, including McDonald’s.
Between 2004 and 2006, another developer, Republic West, sought to develop property for Bob Saks GM dealership north of I-96. The Saks dealership and another auto dealership had previously been under contract to be developed at Lyon Crossing, but both were diverted north of I-96 after the township withheld approval. The proposed Saks site was not served by water and sewer lines, and tests indicated that the property was not suitable for a septic system. After negotiations with Saks, the township agreed to extend the water and sewer lines from Towne Center to the dealership site. It is undisputed that Saks agreed to indemnify the township for all costs of exercising eminent domain and extending the public utilities from Lyon Towne Center under I-96 to the new Saks location north of I-96.
After MREDA refused to grant an easement to extend the water and sewer lines, the township filed a condemnation suit against McDonald’s, asserting eminent domain and seeking a permanent subsurface water and sewer utility easement under the McDonald’s unit.
The trial court granted the township’s request for a permanent easement, but awarded McDonald’s $50,000 in compensation for the taking. Meanwhile, MREDA had joined the lawsuit as intervening defendant, seeking damages for the taking. While the township contended that its condemnation proceeding affected only McDonald’s property interest, MREDA’s expert witness testified that the township had also taken a property interest from MREDA, making MREDA’s property less marketable and desirable. Because Lyon Towne Center and Lyon Crossing had essentially the same owners and were being developed under a common plan, they should be considered as a single parcel — Lyon Centers — for the purposes of the Uniform Condemnation Procedures Act, the expert said. MREDA was “outpositioned in the marketplace” because, with the location of the Saks dealership on the other side of I-96, it would now be more difficult for Lyon Crossing to attract other car dealerships as tenants — for example, because GM does not allow its dealerships to locate less than six miles of each other, the expert said. The fair market value of the property before the taking was $15,035,200, but $12,028,040 afterwards, the expert opined; he concluded that MREDA was owed $3,007,040.
The trial court agreed with many of the expert’s conclusions, finding that the properties should be considered as a single parcel. Under the master deed and bylaws for the properties, MREDA had the right to control improvements in the condominium units, the judge noted, so MREDA retained a property interest in the McDonald’s unit. The judge said that the township’s taking of the water and sewer easement under that unit made the Lyons properties “less desirable from a competitive standpoint” and had reduced “the value of the Lyon Centers Parcel” by $1,503,520.
But in a published decision, with a concurrence from one judge, the Court of Appeals reversed and vacated the trial court’s award to MREDA. Both the Fifth Amendment of the U.S. Constitution and art 10, § 2 of the Michigan Constitution prohibit government from taking private property for public use without just compensation, the appellate court noted. “In this action, there is no dispute that plaintiff took property for the easement from McDonald’s by eminent domain,” the majority wrote. “The disputed issue is whether that taking affected any compensable property interest retained by defendant.”
The majority rejected the trial court’s conclusion that the two Lyons properties constituted a “parcel” under the Uniform Condemnation Procedures Act. “To constitute a parcel under the UCPA, the property at issue must meet all four aspects of the definition of a parcel: (1) an identifiable unit of land; (2) having common beneficial ownership; (3) at least part of which is being acquired; and (4) that can be separately valued,” the majority said. The majority said it would assume, for the purposes of the opinion, that the properties met the first two criteria, “i.e., that the Lyon Towne Center and the Lyon Crossing constitute Lyon Centers, and that Lyon Centers is an identifiable unit of land having common ownership.” But, said the majority, “we find nothing in the record” to show that the easement under McDonald’s was “part of the commonly owned parcel.” Moreover, “[d]efendant’s limited right to control improvements in the property pertained only to Lyon Towne Center, not to Lyon Crossing,” so the trial court should not have considered any effect the easement had on Lyon Crossing, the majority said. The majority also noted that MREDA’s expert had admitted that the taking of the easement did not affect the value of any interest MREDA may have retained in either the McDonald’s unit or the entire Lyon Towne Center. In addition, the UCPA does not recognize loss of competitive advantage or “outpositioning” as an element of damages, the majority said.
In a separate concurrence, the other judge agreed with the majority’s conclusions, except as to its ruling that MREDA would not be entitled to damages for loss of market advantage. It was not necessary for the majority to reach that issue, the concurring judge said, because the appellate court had already concluded, based on MREDA’s expert’s admission, that Lyon Towne Center had not suffered any loss in value. “I find there to be no need to determine the nature or extent of the property interest retained by Milford Road East in the Lyon Towne Center property, nor whether Milford Road East would be entitled to recover damages for any loss caused by ‘outpositioning’ in the marketplace or similar market-value loss suffered by Lyon Crossing,” the judge wrote. “While these determinations would have been required had we instead concluded that Lyon Crossing was part of the ‘parcel’ being valued under the UCPA, because we conclude otherwise, any discussion of these issues is unnecessary and hence, constitutes mere dicta.”
MREDA appealed; in a March 23, 2012 order, the Supreme Court granted leave to appeal.


HALL, et al. v STARK REAGAN P.C., et al. (case nos. 143909, 143911)
Attorneys for plaintiffs Patrick C. Hall and Ava Ortner: Kathleen L. Bogas, Robert W. Palmer
Attorney for defendants Stark Reagan, P.C., Peter L. Arvant, Kenneth M. Boyer, William D. Girardot, Christopher E. LeVasseur, R. Keith Stark, and Michael H. Whiting: Thomas G. Kienbaum
Attorney for defendants Joseph A. Ahern and Jeffrey J. Fleury: Joseph A. Ahern
Trial Court: Oakland County Circuit Court
Issue: Two attorneys are suing their former law firm for alleged violations of the state’s Civil Rights Act, claiming that the firm forced them out because of their age. The firm and other defendants maintain that the plaintiffs have to submit their claims to binding arbitration, rather than pursue them in court, under an agreement that all members of the law firm signed.
Background: Attorneys Patrick Hall and Ava Ortner joined the Troy law firm of Stark Reagan, P.C., in 2003. At the time, Hall was 55 years and Ortner was 49. They became shareholders in the firm on January 1, 2004; Hall, Ortner, and the other eight partners each owned 10 percent of the firm’s shares and had the same voting rights.
In 2005, the firm’s 10 partners entered into a shareholder agreement governing their ownership rights and obligations in the law firm; the agreement deals with such matters as disposing of and valuing firm stock in the event of a partner’s resignation, death, or retirement. The agreement includes an arbitration clause, which requires the parties to submit to binding arbitration “[a]ny dispute regarding interpretation or enforcement of any of the parties’ rights or obligations hereunder.”  The agreement also states that “[p]roceeding to arbitration and obtaining an award thereunder shall be a condition precedent to the bringing or maintaining of any action in any court with respect to any dispute arising under this Agreement, except for the institution of a civil action of a summary nature where the relief sought is predicated on there being no dispute with respect to any fact.” The agreement specifically provides that it is subject to the laws of the state of Michigan.
At a January 8, 2009 shareholders’ meeting, firm president and partner R. Keith Stark either proposed or announced that the firm was terminating its relationship with Hall and Ortner. The parties dispute what was said at this meeting; Hall and Ortner claim that Stark and another attorney made comments indicating that Hall and Ortner were being terminated because the firm wanted younger attorneys to bring in new clients. At a meeting on January 12, Hall and Ortner announced that they would retain their own lawyers and fight their forced separation from the firm because it “constituted illegal age discrimination.”
Ultimately, on February 25, 2009, the shareholders met and formally voted Hall and Ortner out of the firm effective March 1. Just days before, partners Joseph Ahern and Jeffrey Fleury had resigned from the firm and opened their own law office, so they were no longer present or voting on February 25.
In April, Hall and Ortner sued their former law firm, including the six current partners and former partners Ahern and Fleury, in Oakland County Circuit Court. Hall and Ortner charged that the defendants had violated Michigan’s Elliott-Larsen Civil Rights Act by discriminating against them based on age. Hall and Ortner also claimed that the defendants retaliated against them after they retained counsel, and had conspired to violate the Civil Rights Act. The defendants moved for summary disposition, arguing that the court should dismiss the plaintiffs’ lawsuit because, the defendants contended, Hall and Ortner were bound to arbitrate their claims under the shareholders’ agreement rather than take those claims to court. The defendant also argued that, as shareholders and part owners of the firm, Hall and Ortner lacked the capacity to sue under the civil Rights Act. In addition, Ahern and Fleury argued that they should be dismissed from the lawsuit because they had left the firm before the February 25 meeting and took no part in the formal vote to end the plaintiffs’ relationship with the firm.
Hall and Ortner responded that the arbitration provision in the shareholders’ agreement did not include civil rights violations. The plaintiffs also claimed that, although they were formally equal partners in the firm, in reality they were employees of the firm, lacking the same authority and influence as the other shareholders.
But the circuit court disagreed, granting summary disposition to the defendants and sending the matter to arbitration. The court found that the plaintiffs’ civil rights claim was “also subject to the arbitration clause”; the defendants’ other arguments “are moot here and can be raised before the Arbitrator,” the court said.
In a 2-1 published decision, the Court of Appeals reversed and remanded the case to the circuit court for further proceedings. The two judges in the majority concluded that the plaintiffs’ age discrimination claim was not covered by the arbitration provision, because the shareholders’ agreement pertains only to “various forms of entitlement to stock ownership and restrictions attending stock transfer” and not workplace discrimination or other statutory civil rights claims. The majority observed, “To include an age discrimination action within the scope of an arbitration provision expressly limited to the ‘interpretation or enforcement’ of ‘rights or obligations’ concerning corporate stock would expand the clause’s reach beyond that intended by the parties.”
Moreover, the majority said, Hall and Ortner could bring a claim under the Civil Rights Act, despite being partners in the firm. “Defendants have not challenged that Hall’s and Ortner’s age discrimination claims assert an adverse employment action,” the majority wrote. “And even assuming that Hall and Ortner cannot be characterized as Stark Reagan ‘employees,’ we nevertheless find that their pleadings state a claim under the CRA.” The majority cited McClements v Ford Motor Co, 473 Mich 373 (2005), amended 474 Mich 1201 (2005). In Clements, the Supreme Court stated in part that “the key to liability under the CRA is not simply the status of an individual as an ‘employee’; rather, liability is contingent upon the employer’s affecting or controlling that individual’s work status. Accordingly, an employer can be held liable under the CRA for discriminatory acts against a nonemployee if the nonemployee can demonstrate that the employer affected or controlled a term, condition, or privilege of the nonemployee’s employment.” Based on Clements, the Court of Appeals majority said that, even if Hall and Ortner were not employees of the firm, “we interpret the CRA as permitting their age discrimination claim against defendants in light of the record evidence that defendants’ actions ‘affected or controlled a term, condition, or privilege’ of Hall’s and Ortner’s employment.”
The dissenting judge would have held that the shareholders’ agreement did cover the plaintiffs’ claims and that the matter should be arbitrated. “The relevant question is whether plaintiffs’ CRA claims are on its face, or arguably within, the Agreement’s arbitration clause,” the dissenting judge wrote. “I would conclude that it is. The arbitration clause clearly and unambiguously declares that it applies to ‘[a]ny dispute regarding interpretation or enforcement of any of the parties’ rights or obligations hereunder.’ The word “any” is defined as “every; all.” . . . By its very terms, the Agreement is also ‘subject to’ and ‘governed by’ the laws of Michigan … Because Michigan law prohibits the discrimination of an employee on the basis of age, MCL 37.2202(1)(a), the arbitration clause in the Agreement clearly applies. Moreover, engaging in illegal discrimination can hardly be said to be conducive to ‘the continuous, harmonious and effective management’ of the firm which is a key purpose of the Agreement.”
As to whether the plaintiffs were “employees” of the firm, or were “partners” only in a formal sense, the dissent said that the shareholders’ agreement would be at issue. “The claim that plaintiffs were marginalized as shareholders directly affects their rights and responsibilities under the Agreement,” said the dissenting judge. Moreover, the arbitration clause specifically states that “any” dispute about application of the agreement must go to arbitration, and it does not exempt actions under the Civil Rights Act – as it does civil actions of a summary nature, the dissent said. “Distilled to its essence, plaintiffs are contesting the involuntary redemption of shares, which was allegedly the result of unlawful discrimination. The Shareholders’ Agreement is inextricably linked to plaintiffs’ claim, which cannot be maintained without reference to the Agreement. Plaintiffs’ claim is, therefore, subject to arbitration.”
The defendants appealed. In an order dated April 4, 2012, the Supreme Court granted leave to appeal, ordering the parties to address in their briefs “(1) whether the parties’ shareholder agreement arbitration clause encompasses claims arising under the Civil Rights Act (CRA), MCL 37.2101 et seq., and (2) whether the plaintiffs, as mutual equal shareholders of the law firm, have a legally cognizable claim against the defendants under the CRA.”

Afternoon Session
PETIPREN v JASKOWSKI, et al. (case nos. 144142-3)
Attorney for plaintiff Thomas J. Petipren: Michael H. Cutler
Attorney for defendant Rodney Jaskowski: G. Gus Morris
Attorney for amicus curiae Michigan Association of Chiefs of Police: Janet A. Napp
Trial Court: Sanilac County Circuit Court
Issue: The plaintiff sued the defendant police chief, alleging that the defendant assaulted him without provocation and wrongfully arrested him. Is the police chief absolutely immune from suit, or can the lawsuit proceed on the ground that he was acting as a police officer and not in his executive capacity?
Background: On July 19, 2008, Village of Port Sanilac Police Chief Ronald Jaskowski was called by another police chief to a fundraiser at a local park; a number of people had complained about a band playing at the event, and trouble appeared to be brewing between those who wanted the band to play and those who did not. When Jaskowski arrived, the event’s organizer had returned to the park; at some point, the decision was made to stop the concert. Meanwhile, a drummer from another band, Thomas Petipren, had set up and was playing. According to Petipren, Jaskowski grabbed him without warning and pushed him off his seat. When Petipren began asking “What did I do?”, Jaskowski pushed him off the stage and shoved him to the ground before handcuffing him, Petipren asserts. Jaskowski disputes this account, saying that he told Petipren to stop playing and that Petipren refused, swore at him, and punched him in the jaw when he tried to take Petipren’s drumsticks; Petipren also resisted arrest, Jaskowski maintains.
Petipren sued Jaskowski, both individually and in his capacity as police chief, claiming that Jaskowski assaulted him without provocation and wrongfully arrested him. Jaskowski filed his own lawsuit against Petipren, alleging assault, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. Petipren filed a countercomplaint in that case alleging intentional and negligent infliction of emotional distress and negligence against Jaskowski.
Jaskowski moved for summary disposition of the claims against him in each case, asserting governmental immunity. Jaskowski could not be sued, he argued, because he was acting in his capacity as police chief when he responded to the incident at the park and arrested Petipren. The trial court denied Jaskowski’s motions.
Jaskowski appealed, but in a published 2-1 decision, the Court of Appeals affirmed the lower court’s ruling, saying that Jaskowski acted outside the scope of his “executive authority” as police chief and hence was not immune from suit.
“Governmental immunity from tort liability is governed by MCL 691.1407,” the majority noted. Under MCL 691.1407(5), “A judge, legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.” In general, a police chief is deemed to be the highest appointive official in the police department, the majority said.
“However, under MCL 691.1407(5), the highest appointive executive officials of a level of government are not immune from tort liability unless their acts fall within the scope of their executive authority,” the majority stated. “Whether the highest executive official of a local government was acting within his or her authority depends on a number of factors, including the nature of the acts, the position held by the official, the local law defining the authority, and the structure and allocation of powers at that particular level of government.”
Citing the Port Sanilac village council’s job description for chief of police, the majority said that Jaskowski’s duties “generally involve policy, procedure, administration, and personnel matters,” but not “acting as an ordinary police officer.” Earlier published Court of Appeals decisions had recognized immunity for a police chief when the chief was exercising executive authority, such as supervising and discharging police officers, the majority said.
“Although a police chief may occasionally perform the duties of an ordinary police officer, the police chief is not acting within the scope of his or her executive authority as the highest executive official in the police department when doing so,” the majority declared. “Rather, the nature of the act is that of an ordinary police officer. As an ordinary police officer, he would be entitled to the immunity provided to governmental employees under MCL 691.1407(2) if all the statutory requirements were satisfied.” MCL 691.1407(2) does not confer absolute immunity on police officers from tort claims; the statute provides that police officers are immune from suit if 1) they are acting, or reasonably believe they are acting, within the scope of their authority; 2) they are engaged in the exercise or discharge of a governmental function; and 3) their conduct does not amount to gross negligence that is the proximate cause of the injury or damage.
But the dissenting judge said that the trial court should have granted summary disposition and dismissed Petigren’s claims against Jaskowski. The dissent reasoned that Jaskowski was entitled to absolute immunity, based on Jaskowski’s “functional responsibilities” as police chief. “Jaskowski submitted an affidavit in which he attested that his executive authority as the chief of police included, amongst many other things, the duty to ‘arrest offenders,’” the dissent noted. “This testimony was based in part on the job description for the chief of police (which was also submitted to the trial court), which sets forth both the ‘functional responsibilities of the Police Department’ as well as the ‘essential duties and responsibilities’ of the position. As described in Jaskowski’s affidavit, his work as chief of police also included controlling public gatherings, the dissent noted.
“Furthermore, the Legislature has given all police officers the authority to pursue, arrest, and detain persons suspected of committing a crime,” the dissenting judge said. “Because Jaskowski was the highest executive official within the police department and the authority granted to that executive position included the ability to arrest offenders, he acted within the scope of his executive authority when he arrested plaintiff.”
Jaskowski appealed. In a May 2, 2012 order, the Supreme Court granted leave to appeal, “limited to the issue whether Chief of Police Jaskowski is entitled to absolute immunity under MCL 691.1407(5).”


BAZZI v MACAULAY (case no. 144238)
Attorney for plaintiff Hafez M. Bazzi: Marc N. Drasnin
Attorney for defendant Anne Elizabeth Macaulay: Anne Argiroff
Trial Court: Oakland County Circuit Court
Issue: A man brought a paternity action against his former girlfriend, contending that he was the father of her child – but the woman moved to dismiss the lawsuit, based on what appeared, on its face, to be a valid acknowledgment of parentage signed by another man. Does the plaintiff, the alleged biological father, have standing to bring this paternity suit?
Background: Anne Elizabeth Macaulay became pregnant while she was in an intimate relationship with Hafez M. Bazzi. According to Bazzi, Mccaulay told him and others that the child, who was born in January 2005, was fathered by Bazzi. For about three years, Bazzi maintained what he termed a “regular parenting arrangement” with the child and also contributed financial support. But in December 2008, Macaulay broke off all contact with Bazzi.
In August 2009, Bazzi sued Macaulay, asking the court, among other matters, to determine the child’s paternity and grant Bazzi joint physical and legal custody with Macaulay. In December, Macaulay moved to dismiss the lawsuit, stating that — one day after the child’s birth — she and Steven Szakaly signed an affidavit acknowledging Szakaly as the child’s father. Macaulay also attached a copy of a document purporting to be an acknowledgment of parentage by Szakaly. Macaulay contended that, given these documents acknowledging another man as the father, the trial court had to dismiss Bazzi’s paternity suit. Bazzi moved for a stay, arguing that the trial court should allow the parties to conduct discovery — including allowing Bazzi to investigate “the manner in which the Affidavit of Parentage was procured” — before ruling on Macaulay’s motion. According to Bazzi, Macaulay had repeatedly told him that Szakaly was just a “platonic” friend from college; moreover, Szakaly was involved in a committed relationship with another woman, whom he later married, when the child was conceived, Bazzi asserted. Bazzi also asked the court to appoint a guardian ad litem to protect the child’s best interests.
In a January 2010 hearing, the trial court observed that the case involved two “exceptional circumstances”: that Bazzi allegedly acted as the child’s father for three years and that the affidavit of parentage might be fraudulent. The court said these allegations should be investigated to protect the child’s rights. Accordingly, the court appointed a guardian ad litem to represent the child and conduct the investigation, and held Macaulay’s motion to dismiss in abeyance. The trial court also entered an order staying the lower court proceedings to permit Macaulay to appeal to the Court of Appeals.
The Court of Appeals granted Macaulay’s request for leave to appeal, but in a 2-1 unpublished decision, the Court of Appeals affirmed the trial court’s rulings.
The majority rejected Macaulay’s argument that Bazzi lacked standing to bring a paternity suit. The le


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