The Michigan Supreme Court has scheduled oral arguments to be heard in 12 cases on Wednesday, December 8, and Thursday, December 9. Eleven cases will be heard in person in the Supreme Court courtroom on the 6th floor of the Michigan Hall of Justice at 925 W. Ottawa Street, Lansing. Those will be livestreamed from the MSC website. (Changing local health and safety guidelines could prompt a shift to remote oral arguments.)
The first case on Thursday—No. 162136, People v Kevin White, Jr.—will be heard remotely via Zoom. It will be livestreamed from the MSC YouTube Channel at www.youtube.com/user/
MichiganCourts.
The schedule of arguments is posted on the Supreme court’s oral arguments web page (www.courts.michigan.gov/courts/supreme-court/schedule-of-oral-arguments).
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 8, 2021
Morning Session – 9:30 a.m.
161836
Pennie Marie Davis (attorney, Mark Granzotto)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Jackson - McBain, J)
Jackson Public Schools, (attorney Timothy Mullins),
Defendant-Appellant.
The plaintiff, a school teacher, reported to the police that she had been assaulted by a student and obtained a personal protection order (PPO) against the student. The plaintiff filed a lawsuit against the defendant for violation of the Whistleblowers’ Protection Act (WPA), alleging that the defendant unlawfully retaliated against her for reporting the assault to the police and obtaining the PPO. Following a trial in Jackson Circuit Court, a jury returned a verdict in favor of the plaintiff. Under the WPA, MCL 15.362, an employer shall not discharge, threaten, or discriminate against an employee “because of” protected activity. At trial, the defendant asked the trial court to instruct the jury that “because of” means that the plaintiff would not have been retaliated against but for her protected activity. But the trial court instructed the jury that “because of” means that protected activity must be one of the motives or reasons the defendant threatened or retaliated against the plaintiff. On appeal, the defendant argued that the trial court erred in using the motivating-factor causation standard instead of a but-for causation standard. The Court of Appeals affirmed the trial court in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether causation, in cases brought under Section 2 of the Whistleblowers’ Protection Act, MCL 15.362, is determined using a motivating-factor standard or instead a but-for standard.
162208
People of Michigan (attorney, Aaron Mead)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Berrien - Howard, D.)
John Altonya Moss (attorney, Christine Pagac)
Defendant-Appellant.
The defendant pled no contest to third-degree criminal sexual conduct, MCL 750.520d(1)(d) (related by blood or affinity), for acts committed against his adoptive sister. He moved to withdraw his plea on the grounds that the plea lacked an adequate factual basis, arguing that, although he and the complainant shared an adoptive parent, they were not related “by blood or affinity.” The trial court denied the motion, and the Court of Appeals denied the defendant’s application for leave to appeal. The Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. On remand, the Court of Appeals affirmed the trial court’s denial of the defendant’s motion to withdraw his plea. The Court of Appeals held that the language of the Adoption Code, MCL 710.60, makes clear that, after an adoption, it is as if the adopted child was born to the adopted parents. The Court of Appeals held that the defendant must be treated as a blood relative of the complainant for the purposes of MCL 750.520d(1)(d). The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals erred in concluding on remand that the defendant and the complainant are effectively related by blood for purposes of MCL 750.520d(1)(d), such that there was an adequate factual basis for the defendant’s no-contest plea.
161598
David Sole (attorney, Jerome Goldberg)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims – Murray C.)
Michigan Economic Development Corporation, (attorney Joseph Vernon)
Defendant-Appellee.
The plaintiff submitted a Freedom of Information Act (FOIA) request to the defendant seeking disclosure of information regarding certain tax credits extended to General Motors under the Michigan Economic Growth Authority Act. The defendant refused to provide some of the requested information on the grounds that it was protected from disclosure by the Michigan Strategic Fund Act. The plaintiff filed a complaint in the Court of Claims challenging the defendant’s FOIA decision and moved for summary disposition. The Court of Claims denied the plaintiff’s motion and granted summary disposition in favor of the defendant. The Court of Appeals affirmed the Court of Claims in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether, at the time of the request and pursuant to MCL 125.2005, the total value of tax credits extended to General Motors was exempt from disclosure under the Freedom of Information Act, MCL 15.231 et seq., as “financial or proprietary information” or as “[a] record or portion of a record, material, or other data received, prepared, used, or retained by the fund . . . in connection with an application to or with . . . an award, grant, loan, or investment that relates to financial or proprietary information submitted by the applicant that is considered by the applicant and acknowledged by the board or a designee of the board as confidential”; and (2) whether MCL 125.2005(11) requires the full disclosure, without redaction, of the tax credit agreement because “[a]ny document to which the fund is a party evidencing a loan, insurance, mortgage, lease, venture, or other type of agreement the fund is authorized to enter into shall not be considered financial or proprietary information that may be exempt from disclosure under subsection (9).”
161661
Comerica, Inc. (attorney, Thomas Bruetsch)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(MI Tax Tribunal - Marmon D.)
Michigan Department of Treasury, (attorney, David Thompson)
Defendant-Appellant.
The plaintiff’s Michigan subsidiary merged with a Texas banking corporation in 2007. In tax years 2008 through 2011, the plaintiff filed Michigan Business Tax returns that included tax credits that had been assigned to its former Michigan subsidiary under the now-repealed Single Business Tax Act (SBTA), MCL 208.1101 et seq., which it claimed transferred by operation of law from the Michigan subsidiary to the Texas banking corporation when the two subsidiaries merged. During an audit, defendant Department of Treasury determined that the plaintiff was not entitled to the tax credits and disallowed them. The Michigan Tax Tribunal agreed with the defendant that because the tax credits had already been assigned once, the SBTA prohibited a second assignment and that the plaintiff was not otherwise entitled to claim these tax credits. The Court of Appeals, in a published opinion, determined, among other things, that the tax credits were “vested property rights” that transferred to the Texas banking corporation by operation of law during the merger. The Supreme Court has granted leave to appeal to address whether, under the now-repealed Single Business Tax Act, MCL 208.1 et seq., the plaintiff is entitled to the transfer of single business tax credits, by virtue of the merger of two of its subsidiaries, under the theory that the tax credits are either vested property rights or privileges that automatically transferred by operation of law during the merger.
Wednesday, December 8, 2021
Afternoon Session – 12:40 p.m.
161007
Rowland, PR of the Estate of Kermath (attorneys, Donna Mackenzie, Mark Granzotto)
Plaintiff-Appellant
v
(Appeal from Ct of Appeals)
(Oakland – Langford-Morris, D.)
Independence Village of Oxford, and Unified Management Services, and Senior Village Management (attorney, Amanda Waske)
Defendants-Appellees.
The plaintiff represents the estate of her deceased mother, Virginia Kermath, a resident of an independent senior living facility who suffered frostbite and hypothermia when she left the building in freezing temperatures without her keys. The plaintiff alleged that the defendants were negligent by failing to monitor the exterior doors or arm them with alarms to alert staff if a resident is locked out. The plaintiff also alleged that the defendants failed to provide residents with a reliable means of notifying staff if they are locked out. The trial court granted summary disposition in favor of the defendants under MCR 2.116(C)(10), ruling that they did not owe a common-law duty of care to prevent the injury because the risk of harm was not foreseeable. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the Court of Appeals properly applied the test for assessing the foreseeability of the alleged harm, see Bertin v Mann, 502 Mich 603, 620-621 (2018) (saying, albeit in the assumption of the risk context, that the test for foreseeability “is objective and focuses on what risks a reasonable participant, under the circumstances, would have foreseen. The risk must be defined by the factual circumstances of the case—it is not enough that the participant could foresee being injured in general; the participant must have been able to foresee that the injury could arise through the ‘mechanism’ it resulted from”); (2) whether the Court of Appeals erred by holding that no special relationship exists between the senior living facility at issue and its residents, including the decedent. See Bailey v Schaaf, 494 Mich 595 (2013); Williams v Cunningham Drug Stores, Inc, 429 Mich 495 (1988); and (3) whether the Court of Appeals erred in concluding that the defendants did not owe the decedent a common law duty to monitor and secure the side entrances and exits to the facility, see Hill v Sears, Roebuck & Co, 492 Mich 651 (2012); Valcaniant v Detroit Edison, Co, 470 Mich 82 (2004).
161672
Charlette Legion-London (attorney, Mark Bendure)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
The Surgical Institute of MI Ambulatory Surgery Center, and Michigan Brain & Spine Physicians Group PLLC, and Kevin T. Crawford DO PC (attorneys, Wilson Copeland II, Mary Massaron, Robert Kamenec)
Defendants-Appellants.
In this medical malpractice case, the defendant was granted summary disposition in the trial court because the author of the affidavit of merit filed with the plaintiff’s complaint was a neurosurgeon, not an orthopedic surgeon like the defendant. The trial court denied the plaintiff’s motion to amend her affidavit of merit to correctly identify the defendant’s specialty as orthopedics and to include the signature of an expert in orthopedics. The trial court denied the motion to amend on the ground that the new affidavit could not be considered an amendment because a different expert signed the affidavit. Because the statute of limitations had run, the case could not be refiled. The Court of Appeals, in a 2-1 published opinion, reversed and remanded the case to the trial court to accept the amendment for filing and for further proceedings. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals erred when it determined that the second affidavit of merit constituted an amendment of the first affidavit of merit.
161683
Norman Champine (attorney, Christopher Desmond)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims – O’Brien, C.)
Michigan Department of Transportation (attorney, Philip Bladen) Defendant-Appellee.
The plaintiff claims he was injured while driving on I-696 when a chunk of concrete from the road’s surface smashed through his windshield. He mailed notice to defendant Michigan Department of Transportation to inform it of the highway defect, but did not file the notice with the Clerk of the Court of Claims, as required by MCL 691.1404(2). The plaintiff filed a timely complaint against the defendant in the Court of Claims. The defendant moved for summary disposition on governmental immunity grounds under MCR 2.116(C)(7), arguing that the plaintiff failed to comply with the statutory notice requirement of MCL 691.1404. The Court of Claims granted the defendant’s motion, and the Court of Appeals affirmed in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address whether the plaintiff’s timely filed complaint against the state constituted compliance with the notice requirement of MCL 691.1404. See also MCL 600.6431.
Thursday, December 9, 2021
Morning Session – 9:30 a.m.
The first case will be heard remotely via Zoom; it will be livestreamed from the MSC YouTube Channel.
162136
People of Michigan (attorney, William Worden)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Livingston - Hatty, M.)
Kevin White, Jr. (attorney, Kevin Gentry)
Defendant-Appellant.
The defendant allegedly sold cocaine to a person in Macomb County, who then allegedly took the cocaine to her home in Livingston County, where she allegedly shared it with another person, who died. The Livingston County Prosecutor charged the defendant with aiding and abetting the delivery of cocaine, causing death. The trial court denied the defendant’s motion to dismiss for lack of venue. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the criminal act of the principal can, for purposes of venue, be attributed to an alleged aider and abettor who is being “prosecuted, indicted, [and] tried . . . as if he had directly committed the offense,” MCL 767.39; and (2) whether it is relevant for the purpose of establishing venue in this prosecution for delivery of a controlled substance causing death, MCL 760.317a, that the defendant delivered the controlled substance in Macomb County and there is no evidence that he knew that the person to whom he delivered the controlled substance had moved from Macomb County to Livingston County, see MCL 762.8; People v McBurrows, 504 Mich 308 (2019).
161535
In re Estate of Hermann A. Von Greiff
Carla J. Von Greiff (attorney, Jonathan Colman)
Petitioner-Appellant,
v
(Appeal from Ct of Appeals)
(Marquette – Hill, C.)
Anne Jones-Von Greiff (attorney, William McDonald)
Respondent-Appellee.
Petitioner Carla Von Greiff is the daughter of the decedent, Hermann Von Greiff. After her father died intestate, the petitioner petitioned the probate court for a declaration that her stepmother, respondent Anne Jones-Von Greiff, does not qualify as a surviving spouse under MCL 700.2801(2)(e)(i) and is therefore disinherited. The respondent had filed for divorce a little more than a year before Hermann Von Greiff’s death, and he died just before a final judgment of divorce was set to enter. The probate court conducted an evidentiary hearing and determined that the respondent was “willfully absent” from Hermann for more than one year before his death, making her ineligible to receive a spousal share of his estate under MCL 700.2801(2)(e)(i). The Court of Appeals reversed the probate court in a 2-1 published opinion. The Court of Appeals majority concluded that the time period consumed by divorce proceedings does not count when calculating whether a spouse has been “willfully absent” for a year or more. The Supreme Court has ordered oral argument on the application to address whether the period of time after the filing of a complaint for divorce is counted when considering whether a spouse was “willfully absent” from the decedent for more than a year before his or her death. MCL 700.2801(2)(e)(i); In re Estate of Erwin, 503 Mich 1 (2018).
161592
Foundation for Behavioral Resources (attorney, Michael Perry)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Kalamazoo – Lipsey, A.)
W.E. Upjohn Unemployment Trustee Corp, and Ben Damerow (attorney, Daniel Saylor)
Defendants-Appellees.
The plaintiff is a non-profit corporation that, for nearly two decades, contracted with Michigan Works to provide employment services and education and training programs for residents of southwest Michigan. Defendant Upjohn Institute is the administrative and fiscal agent for Michigan Works in that region. In 2015, the defendants rejected the plaintiff’s bid for a contract to provide services for the Partnership, Accountability, Training and Hope (“PATH”) program in southwest Michigan. The plaintiff claims this decision was based on false statements made by an employee of the Upjohn Institute during the bid-review process. The plaintiff filed a lawsuit alleging, among other things, defamation and false light invasion of privacy. False light invasion of privacy is a disclosure of information that places a person in a false light and the person who made the disclosure must have had knowledge of or acted in reckless disregard of the falsity of the disclosed information. The trial court granted summary disposition to the defendants on the false light count on the basis that the plaintiff failed to establish a genuine issue of material fact as to malice. The Court of Appeals affirmed the trial court in a published opinion. The Supreme Court has ordered oral argument on the application to address whether private-figure plaintiffs must prove malice to establish the tort of false light invasion of privacy.
161454
Leslie Murphy (attorney, Sara MacWilliams)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Oakland - Potts, W.)
Samuel Inman, III, John F. Smith, Bernard M. Goldsmith, William O. Grabe, Lawrence David Hansen, Andreas Mai, Jonathan Yaron, and Enrico Digirolamo (attorney, Jason Killips)
Defendants-Appellees.
Covisint Corporation merged with OpenText Corporation, and OpenText acquired all of Covisint’s outstanding stock. The plaintiff, a former shareholder of Covisint, sued its former directors and officers for breach of their statutory and common law fiduciary duties related to the merger. Among other things, the plaintiff alleged that the defendants arranged a cash-out merger for inadequate consideration, resulting in the plaintiff receiving insufficient compensation for his shares of Covisint stock. The trial court granted summary disposition in favor of the defendants, concluding that the plaintiff lacked standing to bring a direct action because his claim was derivative in nature and therefore could not be brought in the plaintiff’s individual capacity. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether, with respect to Covisint Corporation’s cash-out merger with OpenText Corporation, corporate officers and directors owed cognizable common law fiduciary duties to the corporation’s shareholders independent of any statutory duty; and (2) whether the plaintiff has standing to bring a direct cause of action under either the common law or MCL 450.1541a.
162221
People of Michigan (attorney, Jillian Sadler)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Chippewa - Lambros, J.)
Hamin Lorenzo Dixon (attorney, Nicholas Curcio)
Defendant-Appellant.
The defendant, who was an inmate at the Kinross Correctional Facility, pled guilty to attempted possession of a cell phone by a prisoner, MCL 800.283a, and was sentenced to 11 to 30 months to be served consecutively to the prison term he was serving. The defendant filed a motion to correct an invalid sentence, arguing that offense variable (OV) 19 (threat to security of penal institution) was incorrectly scored at 25 points. The trial court denied the motion. The Court of Appeals affirmed in a published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether attempted violation of MCL 800.283a necessarily requires a score of 25 points for Offense Variable (OV) 19; and if not, (2) whether there is sufficient evidence to score OV 19 at 25 points on this record.
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