The Michigan Supreme Court released 16 important opinions in July in a variety of areas, including civil litigation, employment, municipal, negligence, and real property. For a full list of supreme court criminal cases, see Roundup of MI Supreme Court Criminal Cases Published in 2024.
Civil Litigation
Bradley v Frye-Chaiken, Nos 164900, 165901, ___ Mich ___, ___ NW3d ___ (July 26, 2024)
Defendant agreed to sell plaintiffs a condominium in the Cayman Islands, and the parties executed a contract. Before the closing, defendant’s mother passed away, and defendant became unsure of following through with the sale. Plaintiffs filed an action for breach of contract, specific performance, and promissory estoppel. Defendant responded to plaintiffs’ complaint and raised affirmative defenses, including that the agreement to sell was obtained by coercion, fraud, or both and was not enforceable. Defendant also counterclaimed that because of defendant’s mother’s illness and subsequent death, defendant had diminished capacity to agree to the sale of the condominium. Plaintiffs filed a motion for summary disposition, arguing there was no genuine issue of material fact regarding their complaint, and the trial court granted the motion. The court of appeals affirmed.
Plaintiff moved for sanctions and argued there was no legal basis for the claims in defendant’s counterclaim or affirmative defenses. Defendant hired a new attorney to represent her in the motion for sanctions, and the trial court scheduled an evidentiary hearing. Before the hearing, defendant requested an adjournment. The trial court agreed to postpone, following a hearing on the motion to adjourn. The day before the hearing, plaintiffs filed a brief setting forth the amount of attorney fees requested. During the hearing, defendant’s attorney requested a two-week adjournment to review and respond to plaintiff’s brief. The trial court agreed to the adjournment. Following the hearing on attorney fees, the court awarded plaintiffs $16,714.27 in attorney fees and ordered that defendants, defendant’s current lawyer, and defendant’s three previous lawyers were jointly and severally liable under MCR 1.109(E). Defendant’s current lawyer moved to vacate the judgment and argued that MCR 1.109(E) required a frivolous filing and that he had not filed any frivolous documents since his representation. The trial court denied the motion, and the court of appeals affirmed.
MCR 1.109(E) and MCL 600.2591(1) do not require that a trial court hold all attorneys representing a sanctioned party in a civil action responsible for frivolous conduct. In Bradley, the attorney at issue entered the proceedings solely to litigate the amount of sanctions to be imposed after they had already been ordered. Because the attorney did not participate in defendant’s frivolous defenses and counterclaims and no motion for sanctions was brought against him, the supreme court held that the trial court erred in holding him jointly and severally liable for the sanctions imposed on prior attorneys for previously filed frivolous pleadings.
Carter v DTN Mgmt Co, No 165425, ___ Mich ___, ___ NW3d ___ (July 29, 2024)
Plaintiff slipped and fell on an icy sidewalk in defendant’s complex on January 20, 2018, and brought an action alleging negligence based on premises liability and breach of statutory duties on April 13, 2021. Defendant moved for summary disposition under MCR 2.116(C)(7), arguing plaintiff was time-barred. The trial court granted the motion, and the court of appeals reversed and remanded. The court of appeals held that AO 2020-3 extended certain filing deadlines during the COVID-19 state of emergency, excluding days from the computation of time under MCR 1.108, and was within the supreme court’s authority to enter. Defendant appealed.
The supreme court was authorized under Mich Const 1963 art 6, §§4 and 5, to enter COVID-19 administrative orders AO 2020-3, which extended certain filing deadlines during the state of emergency and excluded days from computation of time under MCR 1.108, and AO 2020-18, which rescinded AO 2020-3. Because the orders were constitutional, plaintiff’s claim was timely filed, and summary disposition for defendant under MCR 2.116(C)(7) was improper. The supreme court affirmed and remanded.
Employment and Labor
Stegall v Resource Tech Corp, No 165450, ___ Mich ___, ___ NW3d ___ (July 22, 2024)
Plaintiff was hired to work at one of defendant FCA’s assembly plant through a staffing agency in 2013. In 2015, defendant FCA announced plans to eliminate plaintiff’s shift at the plant the following summer; however, plaintiff claimed he was led to believe that he and other employees would be offered a job at another plant. Plaintiff raised concerns about asbestos in the workplace to supervisors in 2016, and plaintiff claimed the supervisors indicated they would conduct air quality tests and provide plaintiff with the results. Plaintiff made periodic requests for air quality tests results but never received them. Additionally, plaintiff had another communication with his supervisor about not receiving the results and threatened to file complaints with the Michigan Occupational Safety and Health Administration and the Occupational Safety and Health Administration. Plaintiff was terminated on June 17, 2016, and filed a discrimination complaint with the Michigan Occupational Safety and Health Administration, naming defendant FCA in the complaint. Plaintiff then filed an action in the circuit court against defendant Resource Technology Corporation and FCA, alleging his employment was terminated in violation of public policy and the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Plaintiff later withdrew the WPA claim against FCA. Defendants both moved for summary disposition, and the trial court granted the motions, holding defendants did not violate the law, plaintiff’s public policy claim was preempted by the WPA, and the public policy claim could not be maintained on the basis of an internal complaint. The court of appeals affirmed.
The supreme court held the court of appeals erred in dismissing plaintiff’s public policy retaliation claim, improperly concluding that the Michigan Occupational Safety and Health Act (MIOSHA) and the Occupational Safety and Health Act (OSHA) preempted the claim. Under Dudewicz v Norris-Schmid, Inc, 443 Mich 68, 503 NW2d 645 (1993), a public policy retaliation claim is viable only when there is no statutory prohibition against retaliatory discharge for the conduct at issue. However, preemption occurs only when statutory remedies are exclusive rather than cumulative. The remedies under MIOSHA and OSHA are cumulative; therefore, plaintiff’s public policy retaliation claim remained viable.
Batista v Office of Ret Servs, No 166305, ___ Mich ___, ___ NW3d ___ (July 30, 2024)
Plaintiffs brought an action in the court of claims against defendants alleging defendants had violated the Public School Employees Retirement Act, MCL 38.1301 et seq., when it used salary schedules that it created to determine plaintiffs’ retirement allowances or pension payments. Plaintiffs were current or retired public school superintendents and administrators who worked under personal employment contracts, not collective-bargaining agreements (CBAs). Under the retirement act, pension payments to some public school employees, including superintendents and administrators, are calculated using a formula under MCL 38.1384(1), which includes an employee’s years of credited service and their “final average compensation.” The retirement act provides that an employee’s compensation usually includes salary and wages; but under MCL 38.1303a(3)(f), it does not include annual pay increases beyond those in the “normal salary schedule” for the current job classification. To determine whether compensation was excluded under MCL 38.1303a(3)(f) when calculating an employee’s final average compensation, defendant used a formula in a manual it prepared annually that included normal salary increase (NSI) schedules for superintendents and administrators.
Plaintiffs received annual increases in compensation, but defendant did not include all the increases when calculating plaintiffs’ final average compensation under the NSI schedules to determine the amount of their pension. Plaintiffs argued the retirement act did not authorize defendant to create the NSI schedules and apply them to plaintiffs. Defendants moved for summary disposition, and the court of claims granted defendants’ motion, except with respect to plaintiffs’ claim alleging violation of the Administrative Procedures Act (APA), MCL 24.201 et seq. The parties filed cross-motions for summary disposition of the APA claim, and the court of claims granted defendants’ summary disposition claim. Plaintiffs appealed, and the court of appeals reversed and remanded, holding that defendants do not have statutory authority under the retirement act to create NSI schedules and that the schedules were invalid. The court of appeals also held that MCL 38.1303a(3)(f) does not govern public school employees who work under personal employment contracts. Defendants sought leave to appeal in the supreme court, and the supreme court affirmed in part and vacated in part the judgment and remanded for the court of appeals to address how MCL 38.1303a(3)(f) applies to public school employees who do not work pursuant to CBAs and to address how the holding affected plaintiffs’ claims. On remand, the court of appeals again reversed the court of claim’s judgment, holding that because plaintiffs were not subject to normal salary schedules for the current job classifications, the exception to the exclusion in MCL 38.1303a(3)(f) did not apply. This meant the annual increases in compensation could not be included in the calculation of their retirement allowance. Plaintiffs appealed.
The supreme court held the court of appeals correctly reversed the judgment of the court of claims but erred in its analysis. In determining what salary increases are used to calculate the retirement compensation of public school employees, MCL 38.1303a(3)(f) applies to both public employees represented under a CBA and those with personal employment contracts. Annual compensation increases counted toward a final average compensation must be provided for in a “normal salary schedule,” which is defined as “a (1) written document (2) established by statute or approved by a reporting unit’s governing body (3) that indicates the time and sequence of compensation, and (4) conforms to a norm, rule, or principle.” Batista, slip op at *12. A normal salary schedule does not just refer to a salary schedule in the context of CBAs. Further, for a reporting unit with fewer than three members, MCL 38.1303a(3)(f) authorizes the Office of Retirement Services to find a comparable salary schedule in another district.
Municipal
Pinebrook Warren, LLC v City of Warren, No 164869 et al, ___ Mich ___, ___ NW3d ___ (July 31, 2024)
In 2016, the Warren city council adopted an ordinance to regulate medical marijuana provisioning center licenses, and under the ordinance applications were first submitted to and approved by the chief zoning inspector. The Marihuana Review Committee then reviewed and scored the applications and sent the recommendations to the city council. The city council then ranked the applicants and decided who received a license. The review committee reviewed 65 applicants, conducted interviews, listened to presentations, and scored and ranked the applications. The review committee met 16 times from March to July 2019, and the meetings were not open to the public. No minutes were recorded. Plaintiffs filed an action challenging defendants’ award of medical marijuana dispensary licenses to 15 of the 65 applicants who applied for a license, arguing a violation of the Open Meetings Act (OMA), MCL 15.261 et seq., and denial of due process in the application process. The trial court entered an order requiring that the review committee conduct open meetings. The last several meetings were held open to the public, including a meeting at which the review committee calculated scores and ranked applicants. The review committee sent all applications to the city council, with their scores and rankings. The city council approved and issued licenses to the top 15 based on the review committee’s scores. Plaintiffs challenged this decision after applying for and being denied licenses. One plaintiff moved for partial summary disposition, arguing that the review committee was a public body that violated the OMA and that the trial court should invalidate the city council’s licensing approval vote. All plaintiffs concurred with the motion, and defendants moved for summary disposition under MCR 2.116(I)(2).
The trial court granted plaintiff’s motion and denied defendants’ request. The trial court invalidated the licenses the city council issued to the 15 applicants since the city council violated the OMA. The entities who had been issued licenses intervened, and defendants and intervening defendants moved for reconsideration. Defendants also moved for summary disposition of plaintiffs’ due-process claims. The trial court denied the motion for reconsideration but granted defendants summary disposition of plaintiffs’ due-process claims. Defendants and intervening defendants appealed the trial court’s holding that the review committee violated the OMA and the order invalidating the licenses, and plaintiffs cross-appealed the trial court’s dismissal of their due-process claim. Intervening defendants appealed by leave granted the trial court’s order invalidating the city’s decision to reissue licenses to them as part of a settlement agreement entered into by the city and these defendants in a separate case. The court of appeals consolidated the cases and held the trial court erred by holding the review committee was a public body subject to OMA because the city council retained the final decision-making authority while the review committee only had an advisory role. With plaintiffs’ due-process claim, the court of appeals held plaintiffs did not have a property interest in obtaining a license and reversed the trial court’s grant of partial summary disposition to plaintiffs, vacated the trial court’s opinion and order, reversed the trial court’s decision on the motions for reconsideration, and vacated the trial court’s invalidation of the city council’s initial licensing decision. Plaintiffs sought leave in the supreme court.
The review committee is a public body subject to the OMA and was empowered by the ordinance to exercise the governmental function of scoring medical marijuana dispensary applications. The ordinance required the review committee to forward its recommendations to the city council, and the city council was required to rank the applications and decide who received licenses. However, the review committee de facto decided which applicants received licenses when it ranked and scored the applications, and the city council accepted the rankings without further consideration. Therefore, the review committee effectively made the public policy decision of which applicants would receive licenses and was a governing body performing a government function and had to comply with the OMA. The supreme court held the court of appeals erred when it limited its analysis only to the ordinance language and failed to consider how the review committee actually operated. The supreme court reversed and remanded to the court of appeals for consideration of whether the few meetings of the review committee conducted subject to the OMA remedied the violations of the OMA.
Michigan Farm Bureau v Department of Env’t, Great Lakes, and Energy, No 165166, ___ Mich ___, ___ NW3d ___ (July 31, 2024)
Defendant, the Department of Environment, Great Lakes, and Energy (EGLE) administers the National Pollutant Discharge Elimination System (NPDES) program that is outlined in the federal Clean Water Act, 33 USC 1251 et seq. The Environmental Protection Agency (EPA) delegated the power to administer the NPDES program within Michigan’s border under 33 USC 1342, and the Michigan Legislature delegated this authority to the EGLE. The EGLE promulged rules in AC, R 323.2101 et seq. that provided requirements for NPDES permits and the process for issuing these permits. The EGLE must include conditions in addition to or more stringent than the conditions in EGLE and EPA rules that the EGLE deems necessary to achieve water-quality standards in the relevant waterway under 40 CFR 122.44(d)(1). The EGLE promulgated these standards in AC, R 323.1041 et seq. Additionally, under Part 31 of the Natural Resources and Environmental Protection Act (NREPA), the EGLE is required to include any conditions in an NPDES permit that the EGLE deems necessary to comply with applicable laws and regulations.
The EGLE issued a general permit in March 2020 that imposed new conditions that included a reduction of the limit on the amount of phosphorus that may be applied to land and revised setback provisions. Plaintiffs brought an action in the court of claims against defendant, seeking declaratory and injunctive relief. Plaintiffs alleged that the added conditions exceeded defendant’s statutory authority and were contrary to state and federal law regulating concentrated animal feeding operations (CAFOs) under the federal Clean Water Act and MCL 324.3101 et seq. Plaintiffs also argued the conditions lacked factual justification under the standard for setting conditions under Part 31 of the NREPA and were arbitrary and capricious, unconstitutional, and invalid because defendant failed to follow the procedure required under the APA, MCL 24.201 et seq., to promulgate the conditions as rules. Defendant moved for summary disposition, arguing that plaintiffs failed to exhaust available administrative remedies and that the court of claims lacked jurisdiction. The court of claims held that it lacked subject-matter jurisdiction, and plaintiffs appealed. The court of appeals affirmed the court of claims lacked subject-matter jurisdiction but held plaintiffs could seek declaratory judgment under MCL 24.264. The court of appeals held the 2020 permit conditions were “rules” under the APA because they were in addition to or more stringent than the mandatory minimum condition. Because plaintiffs did not first request a declaratory ruling from defendant, the court of claims lacked subject-matter jurisdiction. Defendant appealed.
The supreme court held that defendant lacked the power to issue rules relating to NPDES permits issued to CAFOs. The 2020 general permit defendant issued pursuant to Part 31 of the NREPA and the discretionary conditions in that permit may not have the force and effect of law. Therefore, neither may be a “rule” under MCL 24.207 of the APA. The court of claims lacked subject matter jurisdiction under MCL 24.264.
Mothering Justice v Attorney Gen, No 165325, ___ Mich ___, ___ NW3d ___ (July 31, 2024)
Plaintiffs’ groups sponsored the Improved Workforce Opportunity Wage Act and the Earned Sick Time Act proposals. The groups collected the required number of voters and signatures on the petition under MCL 168.471 and filed the petitions with the secretary of state in 2018. The secretary of state notified the Board of State Canvassers of the petitions, under MCL 168.475(1). The proposals were submitted to the legislature under Mich Const 1963, art 2, §9, and the legislature adopted the proposed acts without change or amendments as 2018 PA 337 and 338 on September 5, 2018. Neither proposed law appeared on the ballot in 2018 because the legislature adopted both initiatives unaltered.
After the 2018 elections, the attorney general issued OAG No 7,306 (Dec 3, 2018), which stated the legislature could adopt and amend an initiative proposal in the same legislative session. However, this opinion contradicted OAG No 4,303 (Mar 6, 1964). The legislature significantly amended the proposals during a lame duck session with a simple majority vote, and both were signed into law, effective March 29, 2019. In 2019, the legislature sought an advisory opinion from the supreme court regarding the constitutionality of 2018 PA 368 and 369, but this was denied. In re House of Representatives Request for Advisory Op Regarding Constitutionality of 2018 PA 368 & 369, 505 Mich 884, 936 NW2d 241 (2019). Plaintiffs brought an action in the court of claims that challenged the legislature’s actions concerning initiative petitions plaintiffs’ groups submitted to the legislature. Plaintiffs and the attorney general moved for summary disposition, arguing Mich Const 1963, art 2, §9, did not allow the legislature to adopt and amend an initiative proposal in the same legislative session. The state moved for summary disposition, arguing the constitution did not preclude the legislature from doing so. The court of claims granted summary disposition in favor of plaintiffs and the attorney general. The court of appeals reversed, holding that the constitution did not expressly prohibit the legislature from adopting and amending an initiative proposal in the same legislative session and that the legislature could do this. Plaintiffs sought appeal, and the attorney general cross-appealed. The supreme court denied the cross-appeal as moot.
The supreme court held the legislature may not adopt an initiative petition and later amend it in the same legislative session because this violates the people’s right to propose and enact laws through the initiative process under Mich Const 1963, art 2, §9. The supreme court reversed and declared 2018 PA 368 and 369 unconstitutional. 2018 PA 337 and 338 are ordered to go back into effect 205 days after July 31, 2024, with a revised schedule, linking the gradual phase-in of minimum-wage increases to the same annual schedule as originally proposed but set into the future and accounting for inflation. The supreme court held this remedy revives the constitutional status quo while accounting for the passage of time. The Improved Workforce Opportunity Wage Act and the Earned Sick Time Act will go into effect February 21, 2025.
Negligence, Torts, and No-Fault
Danhoff v Fahim, No 163120, ___ Mich ___, ___ NW3d ___ (July 8, 2024)
Defendants performed a surgical operation on plaintiff called an extreme lateral intrabody fusion, and plaintiff experienced a number of complications following the procedure. Plaintiff had to have several subsequent procedures to correct issues from the first surgery. Plaintiffs filed suit, alleging medical malpractice as well as a derivative loss-of-consortium claim. Defendants moved for summary disposition, arguing plaintiffs failed to establish the standard of care or causation. The trial court found the affidavit of merit submitted by plaintiffs’ experts was not sufficiently reliable to admit the expert’s testimony given that the expert did not cite any published medical literature or authority to support the claim that defendants breached their standard of care. The trial court denied plaintiffs’ motion, and the court of appeals affirmed.
The supreme court reversed, holding scientific literature is not always required to support an expert’s standard-of-care opinion in a medical malpractice case but is rather one of the factors the trial court should consider when determining reliability under MRE 702 and MCL 600.2955. A plaintiff's expert may demonstrate reliability without supportive literature in certain cases, such as those involving particularly rare medical complications. In this case the trial court abused its discretion by determining unreliability and granting summary disposition without considering all applicable factors.
McLain v Roman Catholic Diocese of Lansing, No 165741, ___ Mich ___, ___ NW3d ___ (July 10, 2024)
Plaintiff brought a negligence action against the Roman Catholic Diocese of Lansing, the Roman Catholic Archdiocese of Baltimore, and Father Lobert, seeking damages for sexual abuse allegedly perpetrated by Lobert when defendant was a minor. The alleged assault occurred in 1999 when plaintiff was residing in a training school in Livingston County and Lobert was the priest employed to regularly visit the school. Plaintiff disclosed the alleged abuse to his therapist in 2020. Plaintiff argued that it was not until 2020 that he discovered that his psychological injuries were causally connected to the sexual abuse in 1999. Plaintiff brought suit in 2021 and sought damages based on the alleged sexual assaults and the failure of the diocese and the archdiocese to supervised and monitor Lobert to prevent the abuse against plaintiff and to adopt and enforce policies prohibiting unsupervised one-on-one meetings between clergy and minors. Defendants moved for summary disposition, arguing plaintiff’s claims were time-barred under MCL 600.5851b. Plaintiff argued that MCL 600.5851b(1)(b) saved the claim because it was timely filed within the three years of discovering the causal link between plaintiff’s injury and Lobert’s criminal sexual conduct. The trial court denied defendant’s motion, but the court of appeals reversed the trial court’s conclusion that the complaint was timely filed and remanded the case for entry of summary disposition for defendants.
MCL 600.5851b was enacted in June 2018 to govern claims brought by minor victims of criminal sexual conduct. Subsection (1)(b) creates a discovery rule for measuring the accrual date for the limitations period for claims of criminal sexual conduct occurring after its passage. This discovery rule does not apply retroactively to revive limitations periods that have already expired. In this case, plaintiff's negligence claim, stemming from conduct that occurred in 1999 and was discovered in 2020, would require the retroactive application of MCL 600.5851b(1)(b). Therefore, the supreme court held it was barred by the statute of limitations.
Janini v London Townhouses Condo Ass’n, No 164158, ___ Mich ___, ___ NW3d ___ (July 11, 2024)
Plaintiffs owned and resided in a condominium unit in a condominium complex, and defendant was an association of co-owners of the complex. Defendant was responsible for clearing snow and ice from common areas of the complex. One of the plaintiffs fell on the snow- and ice-covered sidewalk in a common area, hitting his head, which resulted in a brain injury. Plaintiffs filed a complaint alleging defendant breached its duty to maintain the sidewalk in the complex by failing to remove the snow and ice in a timely manner. Defendant moved for summary disposition, and the trial court granted defendant’s motion in part and denied it in part and dismissed all plaintiffs’ claims except their premises-liability claim. Defendants appealed, and the court of appeals reversed the order denying summary disposition on the premises-liability claim.
A co-owner of a condominium unit is an invitee in the common areas of the condo project, and the condo association has a duty to exercise reasonable care to protect the co-owner from dangerous conditions on the land. The duty owed in a premises-liability case stems from possession and control and not mere ownership. The supreme court held that the condo association bylaws make it the association’s responsibility to maintain the common areas and thus require the association to assume control. The Condominium Act, MCL 559.101 et seq., does not limit the types of claims that may be brought against a condominium association, nor does it preclude common-law claims. Francescutti v Fox Chase Condo Ass’n, 312 Mich App 640, 886 NW2d 891 (2015), is overruled.
El-Jamaly v Kirco Manix Constr, LLC, No 164902, ___ Mich ___, ___ NW3d ___ (July 18, 2024)
Plaintiff was employed by a subcontractor on a construction site where defendant Kirco was the general contractor. Plaintiff was carrying a bull float when it contacted or came near a high-voltage power line owned by defendant DTE, and plaintiff was electrocuted, sustaining serious injuries. Plaintiff filed a lawsuit alleging negligence and premises-liability claims, arguing defendant Kirco was liable for the negligence of its subcontractors under the common-work-area doctrine. Plaintiff also argued that defendant DTE was negligent because it was aware of the danger presented by its high-voltage power lines and failed to remediate the danger after being asked to do so. Both defendants moved for summary disposition, and the trial court denied both motions. The court of appeals reversed.
The supreme court held the court of appeals erred in granting summary disposition for defendants in plaintiff's work-injury claims against the general contractor under the common-work-area doctrine and in plaintiff's negligence claim against DTE. The record indicated there were genuine issues of material fact regarding whether the general contractor took reasonable precautions, the risk of danger to workers, and whether the injury occurred in a common work area. With respect to the negligence claims, there were material facts in dispute concerning whether DTE properly maintained the power lines that caused plaintiff's injury, which affected whether a duty of care was owed. Therefore, the supreme court held that summary disposition was premature and reversed and remanded the case.
Stokes v Swofford, Nos 162302, 163226, ___ Mich ___, ___ NW3d ___ (July 25, 2024)
In docket number 162302, Linda Horn suffered from severe headaches due to excess fluid in the brain and had a shunt catheter implanted in February 2013 to relieve fluid pressure. Following the implantation, Horn went to the emergency room, where emergency room physicians performed a procedure to relieve pressure in the brain. However, Horn’s condition deteriorated, and she passed away in March 2013. The personal representative for Horn’s estate brought a negligence action against defendant Swofford and Southfield Radiology Associates alleging medical malpractice in connection with the care Horn received before her death. Plaintiff attached an affidavit of merit containing averments that mirrored the allegations in the complaint, executed by a licensed medical physician who was a board-certified specialist in neuroradiology. Defendants filed their answer and an affidavit of meritorious defense executed by defendant Swofford, averring the doctor was a board-certified diagnostic radiologist at the time of the events giving rise to plaintiff’s actions and confirming the doctor provided treatment equivalent to that performed by a reasonable board-certified diagnostic radiologist of ordinary learning, judgment, and skill under the same or similar circumstances with respect to Horn’s brain scan interpretation. Plaintiff moved to confirm that neuroradiology was one of the most relevant specialty or subspecialties for the purpose of qualifying an expert. The trial court denied plaintiff’s motion and ruled that under Woodard v Custer, 476 Mich 545, 719 NW2d 842 (2006), the most relevant specialty in this case is diagnostic radiology. The court of appeals reversed and applied Woodard.
In docket number 163226, plaintiff brought a negligence claim against defendants Colton; Jeffrey J. Colton, PLLC; and the Colton Center, alleging that defendant Colton’s medical malpractice in performing multiple rhinoplasties on plaintiff resulted in a nasal deformity. Defendant Colton had certifications in otolaryngology. Plaintiff proposed a different doctor as the standard-of-care expert, and the doctor had the same certifications as defendant Colton. Plaintiff argued that the applicable standard of care in the malpractice action was otolaryngology; however, defendants argued that the procedure at issue was a cosmetic rhinoplasty and the specialty was facial plastic and reconstructive surgery. Defendants argued that plaintiff’s expert’s deposition testimony showed that the expert did not devote a majority of professional time to active clinical practice or instruction of facial plastic and reconstructive surgery. Therefore, the expert failed to meet the requirements of MCL 600.2169(1). The trial court denied the motion to strike plaintiff’s expert’s testimony without prejudice. The court of appeals reversed, applying Woodard.
The supreme court held that MCL 600.2169 requires that a qualifying expert in a medical malpractice trial have the same specialty as the defendant. However, this is limited to general board specialties and does not require precise matching of subspecialties. During the year immediately before the incident that led to the claim, the expert witness must have spent the majority of their professional time practicing in the defendant’s specialty, if applicable. Therefore, Woodard is overruled to the extent that it conflates specialties and subspecialties and is inconsistent with MCL 600.2169. In Estate of Horn v Swofford, 334 Mich App 281, 964 NW2d 904 (2020), the court of appeals correctly found that an expert was qualified to testify because he practiced in defendant’s specialty full-time but erred by basing its decision on a subspecialty that falls within defendant’s broader specialty. That case was affirmed in part, reversed in part, and remanded. In Selliman v Colton, No 352781 (Mich Ct App May 20, 2021) (unpublished), the court of appeals excluded an expert based on his limited practice in facial plastic and reconstructive surgery compared to otolaryngology. That case is reversed and remanded to determine whether facial plastic and reconstructive surgery is a subspecialty or a specialty.
Doe by next friend Kolokithas v Alpena Pub Sch Dist, No 165441, ___ Mich ___, ___ NW3d ___ (July 29, 2024)
Plaintiff brought an action against defendants, alleging defendants created a sexually hostile educational environment in violation of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., by failing to respond adequately when another student repeatedly subjected plaintiff to unwanted sexual conduct. Defendants moved for summary disposition under MCR 2.116(C)(8) and (10), arguing plaintiff failed to state a claim because a hostile-environment claim based on student-on-student sexual harassment is not actionable under the ELCRA. Defendants further argued that, even if it were actionable, summary disposition was appropriate because plaintiff failed to satisfy the elements of a hostile-environment claim. The trial court granted the motion, and plaintiff appealed. The court of appeals held the trial court erred by concluding that summary disposition was proper under MCR 2.116(C)(8). The court of appeals stated that the in loco parentis doctrine permits an educational institution to be held vicariously liable under the ELCRA for student-on-student sexual harassment. However, the court of appeals affirmed the trial court’s grant of summary disposition, holding the trial court correctly granted the motion under MCR 2.116(C)(10). Plaintiff appealed.
The supreme court held the court of appeals erred in holding that an educational institution could be vicariously liable for a hostile educational environment claim involving student-on-student harassment under the ELCRA. Such a claim requires the plaintiff to establish respondeat superior, showing that the educational institution is responsible for the actions taken by its agent. MCL 37.2401. As a matter of plain statutory interpretation, the doctrine of in loco parentis does not apply here. The supreme court reversed in part, vacated in part, and remanded on the question of direct liability.
Daher v Prime Healthcare Services—Garden City, LLC, No 165377, ___ Mich ___, ___ NW3d ___ (July 30, 2024)
Plaintiffs’ 13-year-old son was diagnosed with torticollis in the emergency room and was treated for the condition before being discharged. The son was found dead the next morning, and the autopsy revealed the cause of death was bacterial meningitis. Plaintiffs filed a complaint against defendants for negligence, medical malpractice, and nursing malpractice for failing to treat the bacterial meningitis and sought damages under the wrongful death act (WDA), MCL 600.2922, for their son’s lost future earnings. Defendants moved for summary disposition, arguing that lost future earnings were not permitted under the WDA and, alternatively, that plaintiffs failed to prove any lost future earnings beyond mere speculation. The trial court denied the motion, and the court of appeals affirmed, holding Denney v Kent Cty Rd Comm’n, 317 Mich App 727, 896 NW2d 808 (2016), was controlling and damages for lost future earnings were recoverable under the WDA. The court of appeals also held that Wesche v Mecosta Cty Rd Comm’n, 480 Mich 75, 746 NW2d 847 (2008), implicitly overruled Baker v Slack, 319 Mich 703, 30 NW2d 403 (1948). The court further stated that the legislature’s amendment to the WDA in 1971 superseded Baker and made the list of recoverable damages under the act nonexhaustive. Defendants appealed.
The supreme court held that the holding in Baker that the WDA does not permit the recovery of damages for lost earning capacity is reaffirmed, as Baker was not superseded by the 1971 amendments to the WDA or overruled implicitly in Wesche. The current version of the WDA, like the older version, does not allow for recovery of lost future earnings, and the court of appeals holdings in Denney and Thorn v Mercy Mem’l Hosp Corp, 281 Mich App 644, 761 NW2d 414 (2008), are overruled to the extent that they are inconsistent with Daher. The supreme court reversed, vacated in part, and remanded.
Real Property
Jostock v Mayfield Twp, No 165770, ___ Mich ___, ___ NW3d ___ (July 1, 2024)
The supreme court addressed the issue of whether Mayfield Township could conditionally rezone a property to allow the use of a dragway when a dragway was not a permitted use in the new zoning district. The property at issue has been the location of the Lapeer International Dragway since 1968, and the township adopted its current zoning ordinance in 1973. The property was located in an R-1 (residential agricultural district) zoning. Defendant A2B Properties bought the property in 2018 and expanded the facilities and increased the hours of operation. In 2019, a nearby landowner sued A2B seeking declaratory and injunctive relief to abate the nuisance from the property, and the circuit court entered a preliminary injunction that limited the dragway’s hours of operation.
A2B filed a conditional-rezoning agreement with the township in 2021 to have the property rezoned to C-2 (general commercial district), and the rezoning was approved. A2B filed a motion seeking relief from the preliminary injunction in the circuit court once the conditional rezoning became effective, but the circuit court denied the motion. The court held that because dragway operations are not a permitted use in the C-2 district, conditional rezoning was not valid. In 2021, plaintiffs sued A2B, the township, and the township board, seeking declaratory relief that the conditional rezoning was erroneous, and sought injunctive relief to enjoin the conditional rezoning. The trial court held the conditional rezoning was invalid, and A2B appealed. The court of appeals affirmed the trial court, and A2B sought leave to the supreme court.
MCL 125.3405 of the Michigan Zoning Enabling Act allows a municipality to engage in conditional rezoning. Conditional rezoning is invalid under MCL 125.3405(1) if the proposed use is not a permitted use, either by right or after special approval, within the proposed zoning district. Whether the conditional rezoning in this case was valid depends on whether the dragway operated by the property owners is a permitted use in the C-2 zoning district. The supreme court held that because the parties did not specifically address this issue in the lower courts, the lower court judgments are vacated, and the case was remanded to the trial court for further proceedings.
Schafer v Kent Cty, Nos 164975, 165219, ___ Mich ___, ___ NW3d ___ (July 29, 2024)
In docket number 164975, defendant foreclosed on plaintiffs’ homes for unpaid taxes, and the trial court entered a judgment of foreclosure. Defendant sold the properties at public auction in 2017, and in accordance with the General Property Tax Act (GPTA), MCL 211.1 et seq. (effective at the time of auction), defendant retained all proceeds exceeding what plaintiffs owed for the unpaid taxes, penalties, and interest. On July 17, 2020, the supreme court held that the government’s retention of surplus proceeds following a foreclosure sale amounts to an unconstitutional taking under Mich Const 1963 art 10, §2. Rafaeli, LLC v Oakland Cty, 505 Mich 429, 952 NW2d 434 (2020). Plaintiffs filed an action asserting that under Rafaeli, defendant’s retention of the surplus proceeds violated the Taking Clauses of the Michigan and U.S. Constitutions and argued plaintiffs were entitled to the surplus proceedings. On December 22, 2020, the legislature enacted 2020 PA 256 (effective December 22, 2020) amending the GPTA in response to Rafaeli. Under MCL 211.78t, there are different provisions for claims arising out of foreclosed properties sold after July 17, 2020, and properties sold before July 18, 2020. Defendant moved for summary disposition, arguing Rafaeli applied prospectively and did not apply to the sale of plaintiffs’ properties. Plaintiffs opposed the motion, and the trial court denied defendant’s motion to dismiss, concluding Rafaeli applied retroactively because the decision did not establish a new rule of law. The trial court affirmed.
In docket number 165219, defendant foreclosed on property owned by plaintiffs for unpaid taxes, and the trial court entered a judgment of foreclosure. Defendant sold the property at public auction in August 2018 and retained the surplus proceeds from the sale. Plaintiffs filed a court of claims notice of intention to file a claim against defendant regarding its retention of surplus proceeds on January 15, 2019. On January 29, 2019, plaintiffs filed a putative class action in the court of claims for deprivation of the surplus proceeds, asserting a claim of unconstitutional taking under the federal and state constitutions. The court of claims certified the case as a class action, and defendant moved for summary disposition. The court of claims denied the motion. After the supreme court issued the Rafaeli opinion, plaintiffs moved for summary disposition. Before the court of claims issued its decision, 2020 PA 256 was enacted. In December 2020, the court of claims granted the state’s motion to revoke the class certification, rejected defendant’s argument that Rafaeli applied prospectively only, concluded the one-year notice provision of MCL 600.6431(1) applied to plaintiffs’ constitutional and inverse-condemnation claims, determined the MCL 600.6452(1) period of limitation applied to plaintiffs constitutional claims, and rejected plaintiff’s argument that just compensation required plaintiffs be awarded the fair market value of their properties. Plaintiffs moved to recertify an amended class, which the court granted. Defendants appealed, and plaintiffs cross-appealed. The court of appeals affirmed.
The supreme court held that Rafaeli applies retroactively to claims for surplus proceeds following a foreclosure sale that were not yet final on July 17, 2020 (the date the Rafaeli opinion was issued). MCL 211.78t, which provides a procedure for processing surplus foreclosure sale claims made under Rafaeli and became effective December 22, 2020, applies retroactively to claims arising before that date. The two-year limitation period in MCL 211.78l, which also became effective December 22, 2020, applies prospectively only to claims that arose from tax foreclosure sales that occurred after that date. Claims for surplus proceeds that arose before December 22, 2020, but expired between that date and the date of the Schafer decision are allowed to proceed if filed within a reasonable time after this decision, which is defined as the balance of time the claimant had remaining under the applicable statutes of limitations as of December 22, 2020.
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