State Supreme Court to hear oral arguments at Hall of Justice Dec. 7-8

The Michigan Supreme Court (MSC) will hear oral arguments in 12 cases on Wednesday, December 7, and Thursday, December 8, beginning at 9:30 a.m. on both days in the Supreme Court courtroom on the 6th floor of the Michigan Hall of Justice, 925 W. Ottawa in Lansing. Oral arguments will be livestreamed from the MSC website.

The notice of cases is posted on the Supreme Court’s oral arguments web page. 

The following brief accounts may not reflect the way that some or all of the court’s seven justices view the case. The attorneys may also disagree about the facts, issues, procedural history, and significance of this case. For further details, contact the attorneys.

Wednesday, December 7, 2022

Morning Session – 9:30 a.m.

 163120

Lynda Danhoff and Daniel Danhoff (attorney David Parker)

Plaintiffs-Appellants,

(Appeal from Ct of Appeals)

(Oakland - Grant, N.)

v

Daniel K. Fahim, M.D. and Michigan Head & Spine Institute (attorney Scott Saurbier)

Defendants-Appellees,

and

Daniel K. Fahim, M.D., PC, Kenneth P. D’Andrea, D.O., and William Beaumont Hospital, d/b/a Beaumont Hospital-Royal Oak,

Defendants. 

After Lynda Danhoff suffered complications following back surgery during which her colon was perforated, she and her husband brought a claim for medical malpractice against the doctor who performed the surgery, his medical practice, and the hospital where the surgery was performed. The defendants filed a motion for summary disposition, arguing that the plaintiffs’ standard-of-care expert was not qualified because his testimony was based solely on his experience and background and not upon scholarly authority. The trial court granted summary disposition in the defendants’ favor, and the Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the Supreme Court’s decisions in Edry v Adelman, 486 Mich 634 (2010), and Elher v Misra, 499 Mich 11 (2016), correctly describe the role of supporting literature in determining the admissibility of expert witness testimony on the standard of care in a medical malpractice case; (2) if not, what a plaintiff must demonstrate to support an expert’s standard-of-care opinion; and (3) whether the plaintiffs’ standard-of-care expert met the standards for determining the reliability of expert testimony and was thus qualified to testify as an expert witness under MRE 702 and MCL 600.2955 or whether a Daubert hearing was necessary before making that decision.

 

163404

Cindy Schaaf, Colleen M. Fryer, and Gwen Mason (attorney Nicholas Curcio)

Plaintiffs/Counterdefendants-Appellees, 

(Appeal from Ct of Appeals)

(Antrim CC - Elsenheimer, K.)

v

Charlene Forbes, a/k/a Angie Forbes (attorney Brace Kern)

Defendant/Counterplaintiff-Appellant. 

The parties are family members who are co-owners of waterfront property on Torch Lake. As a result of a proceeding in probate court, deeds were executed that conveyed an interest in the property to a trust (or trustee of the trust) as a joint tenant with right of survivorship (JTWROS). In circuit court, the plaintiffs challenged the validity of the deeds, arguing that a trust cannot hold real property as a JTWROS. The circuit court agreed with plaintiffs, and entered orders voiding the challenged deeds and ordering that the property be sold intact in lieu of partition. The Court of Appeals, in a 2-1 unpublished opinion, held that the circuit court erred in holding that a trust cannot hold property as a JTWROS and remanded the case to the circuit court for further proceedings, including consideration of whether the circuit court has subject matter jurisdiction of the case in light of the defendant’s argument that exclusive jurisdiction is vested in the probate court. The Supreme Court vacated the judgment of the Court of Appeals and remanded the case to the Court of Appeals to determine whether the circuit court was vested with subject matter jurisdiction. On remand, the Court of Appeals, in a 2-1 published opinion, affirmed the circuit court’s rulings that the circuit court was vested with subject matter jurisdiction and that a trust cannot hold and convey real property as a JTWROS. The Supreme Court has granted leave to appeal to address: (1) whether the circuit court was vested with subject matter jurisdiction of the plaintiffs’ complaint, which sought a determination of interests in the subject property and partition, see MCL 700.1302; MCL 700.1303; (2) whether Michigan law allows a trust to hold title to real property as a joint tenant with right of survivorship; and (3) whether the deeds in dispute in this case were valid insofar as they granted the trustee of a trust a life estate in the real property as a joint tenant with right of survivorship.

 

163523

MSSC, Inc., (attorney Michael Latiff)

Plaintiff/Counterdefendant-

Appellee,

(Appeal from Ct of Appeals)

(Oakland - Alexander, J.)

Airboss Flexible Products Co., (attorney Adam Ratliff)

Defendant/Counterplaintiff-Appellant.

The plaintiff purchased parts from the defendant and supplies finished components to its original equipment manufacturer (OEM) customers for use in the automotive industry. The parties dispute whether a purchase order was a requirements contract that bound the defendant to supply parts for the entire length of an OEM customer’s program. When a dispute arose regarding the defendant’s price increase request, the defendant notified the plaintiff of its intention to stop supplying the parts. This prompted the plaintiff to file a lawsuit. The defendant moved for summary disposition regarding the plaintiff’s contract claims, arguing that the purchase order does not contain a quantity or language establishing that it is a requirements contract, and is therefore unenforceable because it violates the Uniform Commercial Code’s statute of frauds, MCL 440.2201(1). The plaintiff responded that it was entitled to judgment as a matter of law under MCR 2.116(I)(2). The trial court denied the defendant’s motion for summary disposition and granted a judgment in favor of the plaintiff. The Court of Appeals affirmed the trial court in a published opinion. The Supreme Court has granted leave to appeal to address whether the purchase order between the parties, together with the relevant written terms and conditions, satisfied the requirements of the Uniform Commercial Code’s statute of frauds, MCL 440.2201(1).

 

162909

Drago Kostadinovski and Blaga Kostadinovski (attorney Mark Granzotto)

Plaintiffs-Appellants, 

(Appeal from Ct of Appeals)

(Macomb CC - Viviano, K.) 

v

Steven D. Harrington, M.D., and Advanced Cardiothoracic Surgeons, PLLC (attorney Michael Cook)

Defendants-Appellees. 

*****Justice Viviano is not participating*****

In this medical malpractice case, the plaintiffs served the defendants with a timely notice of intent (“NOI”), as required under MCL 600.2912b, prior to filing their complaint. Two years later, they developed a new theory of negligence and causation. The plaintiffs filed a motion to amend the complaint, and the defendants filed a motion to strike allegations not contained in the NOI, complaint, and affidavits of merit, and for summary disposition pursuant to MCR 2.116(C)(10). The parties agreed to dismiss the original claims with prejudice. The trial court then denied the plaintiffs’ motion to amend the complaint. The Court of Appeals reversed in a published opinion, and remanded the case to the trial court for further proceedings. This Court heard arguments and ultimately denied leave to appeal (Docket No. 156850). On remand, the trial court again denied the plaintiffs’ motion to amend their complaint, holding that they were not entitled to relief under MCL 600.2301 and had never filed or served the defendants with an amended NOI. The Court of Appeals affirmed in an unpublished opinion, holding that: the law of the case controlled the issue as to whether MCL 600.2912b applied; the plaintiffs never attempted to cure the deficiencies in the NOI by sending an amended notice of intent to the defendants; the plaintiffs were not entitled to relief under MCL 600.2301 because the amendment would impair a substantial right of the defendants; and the plaintiffs stipulated to dismiss the original claims with prejudice. The Supreme Court has ordered oral argument on the application to address: (1) whether MCL 600.2912b applies where the plaintiff seeks to add new theories of recovery against an already-named defendant; and (2) if so, when and how a plaintiff seeking to add such new theories may satisfy the requirements of MCL 600.2912b, see Bush v Shabahang, 484 Mich 156 (2009), and MCL 600.2301.

 

Wednesday, December 7, 2022

Afternoon Session – 12:30 p.m.

 

163072

Petersen Financial, LLC (attorney Donald Visser

Plaintiff-Appellee,

(Appeal from Ct of Appeals)

 (Kent CC - Quist, G.)

City of Kentwood (attorney Josephine DeLorenzo

Defendant-Appellant,

and

Kent County Treasurer,

Defendant-Appellee.

The plaintiff purchased land following a tax foreclosure that was previously subject to various special assessment agreements relating to infrastructure improvements benefiting the property. The plaintiff initiated a lawsuit, primarily seeking a declaration that the foreclosure extinguished any obligation. The trial court ultimately granted summary disposition to the defendants, concluding that the obligation involved “future installments of a special assessment” that survived the foreclosure pursuant to MCL 211.78k(5)(c). The Court of Appeals, in a published opinion, reversed and held that although the City of Kentwood levied a special assessment through adoption of a resolution, efforts to extend the term for payment of the assessment were invalid. Thus, the Court of Appeals held that the special assessment was extinguished by the foreclosure because there were no future installments owing at the time of foreclosure, and post-foreclosure efforts to revive the extinguished assessment either by contract or resolution were void. The Supreme Court has ordered oral argument on the application to address whether the City of Kentwood lacked the express or implied power to extend the payment terms of the special assessment where the city established it via a valid agreement with the developer, confirmed it through a resolution, and reserved the power to extend its payment terms through legislative action.

 

162706

Susan Christie (attorney Joseph Richotte)

Plaintiff-Appellee,

(Appeal from Ct of Appeals)

(Wayne CC - Allen, D.)

v

Wayne State University, (attorney Jennifer Lord)

 Defendant-Appellant.

The plaintiff worked for Wayne State University (defendant) for over 40 years before the defendant terminated her employment in late 2017. The plaintiff filed age and disability discrimination claims under the Elliott-Larsen Civil Rights Act (ELCRA) and the Persons with Disabilities Civil Rights Act (PWDCRA) in Wayne Circuit Court. The defendant moved for summary disposition under MCR 2.116(C)(7), arguing that, because the plaintiff did not file notice in the Court of Claims within 1 year of the time the claims accrued, as required under MCL 600.6431, it is immune to suit under the doctrine of sovereign immunity. The trial court denied the motion, and the Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the plaintiff’s claims against the defendant, which were filed in the circuit court, are subject to MCL 600.6431(1)’s notice requirements, see Tyrrell v Univ of Michigan, 335 Mich App 254 (2020), app dism 507 Mich 990 (2021); and (2) whether the order denying the defendant’s motion for summary disposition, which asserted governmental immunity, is a final order that is appealable by right, see MCR 7.202(6)(a)(v).

 

162830

Elia Companies, LLC (attorney Jason Conti)

Plaintiff-Appellee/

Cross-Appellant, 

 (Appeal from Ct of Appeals)

(Ct of Claims - Murray, C.)

v

University of Michigan Regents, (attorney Keefe Brooks)

Defendant-Appellant/Cross-Appellee.

The plaintiff filed a lawsuit against the University of Michigan Regents (defendant), alleging breach of contract, violations of Michigan’s lock-out statute, breach of covenant for quiet possession, constructive eviction, conversion, and unjust enrichment. The plaintiff filed the action in Washtenaw Circuit Court, but the defendant removed the case to the Court of Claims, which dismissed the plaintiff’s claims for failing to timely comply with the verified notice/complaint requirement in MCL 600.6431. The Court of Appeals, in a published opinion, relied on Progress Michigan v Attorney General, 506 Mich 74 (2020), and held that the defect could be remedied by amendment even though the one-year time period had lapsed. The Court of Appeals nevertheless affirmed the dismissal of the non-contract claims by applying immunity under the governmental tort liability act, MCL 691.1401 et seq. The Supreme Court has ordered oral argument on the application to address: (1) whether the plaintiff’s filing of the initial complaint in circuit court extinguished or otherwise affected its obligation to comply with MCL 600.6431’s verification requirement; (2) whether the affidavit that was attached to the plaintiff’s November 2018 response to the defendant’s motion for summary disposition satisfied the verification requirement of MCL 600.6431; (3) whether transfer of the case to the Court of Claims extended the time to file a verified notice or complaint under MCR 2.227; (4) whether the one-year time limit in MCL 600.6431 is a statute of limitations that is tolled by MCL 600.5856 or is otherwise subject to tolling; and (5) whether the plaintiff could cure any failure to comply with MCL 600.6431’s verification requirement on remand even though more than one year has passed since accrual of the breach of contract claim. See Fairley v Dep’t of Corrections, 497 Mich 290 (2015); MCR 2.118(D).

 

Thursday, December 8, 2022

Morning Session – 9:30 a.m.

 

163354

Charles Dale Perry, Jr., (attorney Michael Cafferty)

Plaintiff-Appellant,

(Appeal from Ct of Appeals)

(Ct of Claims - Stephens, C.)

v

State of Michigan (attorney Barry Freeman)

Defendant-Appellee.

In 1990, a jury convicted the plaintiff of four counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct, and the trial court sentenced him to concurrent terms of 20 to 40 years. On appeal, the Court of Appeals remanded the case to the trial court for an evidentiary hearing on the plaintiff’s claims of trial court error, newly discovered evidence, and ineffective assistance of counsel. On remand, the trial court conducted an evidentiary hearing in which testimony was presented from several witnesses, including the plaintiff and his trial counsel. The trial court denied the plaintiff’s motion for a new trial. The plaintiff appealed again, arguing that he was entitled to a new trial on the basis of prosecutorial misconduct, abuse of discretion by the trial court prior to the original trial, and ineffective assistance of counsel. The Court of Appeals held that the plaintiff was entitled to a new trial on the basis of prosecutorial misconduct and ineffective assistance of counsel for failing to object to the prosecutor’s actions. The Court of Appeals noted that because its reversal would permit the plaintiff to introduce new witnesses on retrial, it did not need to reach his new evidence issue. On retrial, the jury found the plaintiff not guilty of all charges. He then filed a complaint against the defendant in the Court of Claims under the Wrongful Imprisonment Compensation Act (WICA), asserting that new evidence produced after his first trial resulted in his exoneration. The defendant moved for summary disposition, arguing that the plaintiff had failed to show that new evidence presented on appeal “result[ed] in the reversal or vacation of the charges” against him within the meaning of MCL 691.1755(1)(c). The Court of Claims denied the defendant’s motion, but the Court of Appeals reversed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether new evidence “result[ed] in the reversal or vacation” of the plaintiff’s criminal charges. MCL 691.1755(1)(c). In particular, the Supreme Court has directed the plaintiff to address whether new evidence was relevant to the Court of Appeals’ conclusion that he was entitled to a new trial on the basis of prosecutorial misconduct and ineffective assistance of counsel. People v Perry, unpublished per curiam opinion of the Court of Appeals, issued July 26, 1994 (Docket No. 136961).

 

162302

Joelynn T. Stokes, Personal Representative of the Estate of Linda Horn (attorney Ramona Howard)

Plaintiff-Appellee, 

(Appeal from Ct of Appeals)

(Oakland - Matthews, C.)

v

Michael J. Swofford, D.O., and Southfield Radiology Associates, PLLC (attorney Michael Cook)

Defendants-Appellants.

This medical malpractice case was brought by the personal representative of the Estate of Linda Horn (plaintiff) against Michael J. Swofford, D.O., and his practice group. The plaintiff provided an affidavit of merit executed by a physician specializing and board certified in the field of neuroradiology. The defendants filed an answer and an affidavit of meritorious defense executed by Dr. Swofford in which he averred that he was board certified in diagnostic radiology at the time of the events giving rise to the plaintiff’s action. The plaintiff brought a motion to confirm that neuroradiology was the one most relevant specialty or subspecialty under Woodard v Custer, 476 Mich 545 (2006), but the trial court denied the motion. The Court of Appeals reversed in a published opinion, determining that the most relevant specialty was neuroradiology. The Supreme Court has ordered oral argument on the application to address whether MCL 600.2169, as interpreted by Woodard v Custer, 476 Mich 545 (2006), permits a medical malpractice plaintiff to establish the standard of care with an expert whose subspecialty focuses on the type of care at issue, but whose subspecialty is not the same specialty of the defendant health professional.

 

163226

Antonio Selliman (attorney Rachel Ratton)

Plaintiff-Appellant,

(Appeal from Ct of Appeals)

 (Oakland CC - Matis, J.)

v

Jeffrey J. Colton, M.D., Jeffrey J. Colton, PLLC, and Colton Center (attorney Jeffrey Gerish)

Defendants-Appellees.

In this medical malpractice case, the defendants filed a motion to strike the plaintiff’s sole expert witness and for summary disposition on the basis that the expert’s one relevant specialty was facial plastic and reconstructive surgery, and the plaintiff’s expert testified in his deposition that he devoted 90% of his practice to ENT procedures and 10% to facial plastic and reconstructive surgery. The trial court denied the motions, finding it unclear whether the expert testified as the defendants contended. The Court of Appeals reversed in an unpublished opinion, holding that the trial court abused its discretion, because the expert unequivocally testified that 10% of his practice was facial plastic and reconstructive surgery procedures and 90% was ENT procedures, and the most relevant specialty in this case was facial plastic reconstructive surgery. The Supreme Court has ordered oral argument on the application to address: (1) whether the one most relevant specialty test as articulated in Woodard v Custer, 476 Mich 545 (2006), and as applied in this case, is consistent with the requirements of MCL 600.2169(1); (2) whether the Court of Appeals properly applied the requirements of MCL 600.2169(1) in this case; and (3) whether the Court of Appeals properly applied the abuse of discretion standard of review. The Court directed the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Stokes v Swofford (Docket No. 162302).

 

163559

Agnes N. Cramer (attorney Roger Kline)

Plaintiff-Appellant,

(Appeal from Ct of Appeals)

(MCAC)

v

Transitional Health Services of Wayne and American Zurich Insurance Company (attorney Geoffrey Wagner)

 Defendant-Appellees.

The plaintiff was electrocuted at work, causing her to fall off a ladder. She sought workers’ compensation benefits for mental disability and a shoulder injury. The workers’ compensation magistrate concluded that there was insufficient evidence of a work-related mental disability. The magistrate applied the four-factor test set forth in Martin v City of Pontiac Sch Dist, 2001 ACO 118, lv den 466 Mich 873 (2002), to determine whether occupational factors contributed to the plaintiff’s alleged mental disability in a significant manner. In making that determination, the magistrate considered nonoccupational contributors, including physical, mental, and sexual abuse the plaintiff suffered in her first marriage, and the loss of relationships with her mother, her children, and her friends after her divorce. Although the magistrate found that the plaintiff was physically disabled because of the injury to her right shoulder, she denied the plaintiff full wage loss benefits on the basis that there was no evidence that the plaintiff made a good faith effort to find employment. The Michigan Compensation Appellate Commission (MCAC) issued a decision that clarified the magistrate’s order in part, reversed the part of the order denying the plaintiff wage loss benefits for the shoulder injury, and affirmed the remainder of the order, including the magistrate’s finding that the plaintiff was not entitled to workers’ compensation benefits for mental disability. The Court of Appeals denied the plaintiff’s application for leave to appeal with respect to her mental disability claim, but the Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. On remand, the Court of Appeals, in a 2-1 published opinion, affirmed the MCAC and formally recognized the Martin test as a useful guide for magistrates to use. The Supreme Court has granted leave to appeal to address: (1) whether the four-factor Martin test (a) is at odds with the principle that a preexisting condition is not a bar to eligibility for workers’ compensation benefits, and (b) conflicts with the plain meaning of MCL 418.301(2); and (2) assuming that Martin provides the appropriate test, whether the Court of Appeals erred in affirming the MCAC’s conclusion that the magistrate properly applied Martin, as well as the standard in Yost v Detroit Board of Education, 2000 Mich ACO 347, lv den 465 Mich 907 (2001).

 

163116

Adora Wilmore-Moody, Individually and as Next Friend of Daimler Aaku (attorney Keith Banka)

 Plaintiff/Counterdefendant-

 Appellee,

(Appeal from Ct of Appeals)

(Wayne CC - Gillis, J.)

v

Mohammed Zakir (attorney Julie Ferschtman) 

 Defendant-Appellant,

and

Everest National Insurance Co., 

Defendant/Counterplaintiff- Appellee,

and

PDB Investments & Insurance Co., Michigan Assigned Claims Plan, and Michigan Automobile Insurance Placement Facility,

 Defendants.

The plaintiff claims that her parked vehicle was struck from behind while she and her son were occupying the vehicle as she was dropping him off at school. The plaintiff brought a negligence lawsuit on her own behalf and on behalf of her son against the driver of the other vehicle, Mohammed Zakir. She also asserted a claim for first-party no-fault benefits against her own insurer, Everest National Insurance Company. Everest rescinded the policy of insurance and returned the premiums previously paid after determining that the plaintiff had committed fraud in the inducement of the policy. The trial court granted summary disposition in favor of Everest. Zakir subsequently moved for summary disposition on the claims brought by the plaintiff in her individual capacity. The motion was based on the dismissal of the claim against Everest and the rescission of the policy. Zakir argued that, under MCL 500.3135(2)(c), the plaintiff was barred from recovering noneconomic damages because she did not have no-fault insurance at the time of the accident in light of the rescission of her policy with Everest. The trial court granted Zakir’s motion for summary disposition. The Court of Appeals, in a 2-1 unpublished opinion, affirmed the trial court’s finding that there was fraud in the original application for insurance that warranted rescission of the policy. But the Court of Appeals reversed the grant of summary disposition in favor of Zakir, finding that the rescission of the insurance policy as a contractual remedy did not by itself operate to render the plaintiff as actually having been without no-fault insurance at the time of the accident for purposes of MCL 500.3135(2)(c). The Supreme Court has ordered oral argument on the application to address whether the rescission of an insurance policy under the no-fault act, MCL 500.3101 et seq., bars recovery of noneconomic damages under MCL 500.3135(2)(c) on the basis that the claimant “did not have in effect . . . the security required by [MCL 500.3101(1)] at the time the injury occurred.”


––––––––––––––––––––
Subscribe to the Legal News!
http://legalnews.com/subscriptions
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available