The Michigan Supreme Court (MSC) will begin the 2024-25 session by hearing oral arguments in 11 cases on Wednesday, October 9, and Thursday, October 10, 2024, beginning at 9:30 a.m. on both days.
Continuing a longtime tradition, the first case will be heard in the Old Supreme Court Chambers at the State Capitol Building located in the east wing of the 3rd floor (current Senate Appropriations Committee Room), following a presentation of the Annual Report of the Michigan Supreme Court Historical Society. That case will be livestreamed at https://cloud.castus.tv/vod/misenate?page=HOME.
The remaining cases will be heard in the 6th floor courtroom at the Michigan Hall of Justice at 925 W. Ottawa, Lansing, and will be livestreamed from the MSC website.
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, October 9
Morning Session – 9:30 a.m.
Annual Report of the Michigan Supreme Court Historical Society
–Joseph J. Gavin, president
165761
HARK ORCHIDS LP, (attorney Jennifer Alberts)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
Kalamazoo CC - Lipsey, A.)
WILLIAM BUIE and CONKLIN BENHAM, PC, (attorney David Saperstein)
Defendants-Appellees
Defendants William Buie and Conklin Benham, PC, represented plaintiff Hark Orchids and its insurance carriers in a workers’ compensation case involving Antoinette Wright. The plaintiff and Wright settled the workers’ compensation case, but Wright filed a subsequent lawsuit against the plaintiff, raising employment-related civil rights claims. The plaintiff filed a legal malpractice lawsuit against the defendants, contending that it was forced to pay over $300,000 in attorney fees and costs to another law firm to defend the subsequent lawsuit filed by Wright because the defendants did not warn the plaintiff that Wright intended to bring other claims and did not include the other claims in the workers’ compensation settlement agreement. Although Wright’s lawsuit was ultimately dismissed, the plaintiff contended that the claims would have been resolved sooner at less cost if not for the alleged legal malpractice. The plaintiff sought damages in the form of attorney fees and costs, which it alleged were necessary to mitigate its damages. The defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (10), arguing, among other things, that the attorney fees incurred by the plaintiff in the employment lawsuit are not a proper element of damages in a legal malpractice lawsuit because the plaintiff’s complaint did not allege fraudulent or malicious conduct on the part of the defendants. The trial court granted the defendants’ motion for summary disposition, holding that the damages sought by the plaintiff were not appropriate. The Court of Appeals affirmed in an unpublished opinion, holding that the plaintiff was required to plead that the defendants engaged in malicious, fraudulent, or similarly wrongful conduct to survive a motion for summary disposition under MCR 2.116(C)(8) and that the plaintiff alleged only that the defendants were negligent. The Supreme Court has ordered oral argument on the application to address: (1) whether in this legal malpractice action there is a basis on which attorney fees may be recoverable damages absent allegations of malicious, fraudulent, or similarly wrongful conduct; and (2) whether the trial court erred in granting the defendants’ motion for summary disposition.
Wednesday, October 9
Resume Morning Session – 10:30 a.m.
Hall of Justice, 6th Floor Courtroom
165321
ENCOMPASS HEALTHCARE, PLLC, (attorney Harold Perakis)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland CC - Grant, N.)
CITIZENS INSURANCE COMPANY, (attorney Donald Brownell)
Defendant-Appellant.
Encompass Healthcare provided medical care to a patient who had been injured in a motor vehicle accident. The patient was insured under a policy of no-fault insurance issued by Citizens Insurance Company. Encompass sued Citizens for no-fault personal protection insurance benefits for the medical care that Encompass provided to Citizens’ insured. The treatment ended in October 2018, and Encompass filed suit in November 2019. Citizens moved for summary disposition, arguing that the one-year-back rule of the no-fault act, MCL 500.3145, precluded recovery. The trial court applied the amended version of the statute with its tolling provision that became effective June 11, 2019, but found no basis for tolling because Citizens “formally denie[d]” the claims, as that term is used in the amended version of MCL 500.3145(3), more than one year before Encompass filed suit. The Court of Appeals, in a published opinion, reversed and remanded the case to the trial court for further proceedings. The Court of Appeals held that Citizens’ Explanation of Review notices denying the claims were not formal denials that began the running of the one-year-back period. Consequently, the Court of Appeals held that the period was tolled and recovery is not barred. In a footnote, the Court of Appeals stated that the amended version of the one-year-back rule applies because Encompass filed its complaint after the statute was amended on June 11, 2019. On the same date that the Court of Appeals issued its decision in this case, the court issued Spine Specialists of Mich, PC v MemberSelect Ins Co, ___ Mich App ___ (Docket No. 358296, rel’d November 17, 2022), holding that the new version of the one-year-back rule does not apply to claims that accrued before its effective date, June 11, 2019.
The Supreme Court has ordered oral argument on the application to address: (1) whether the defendant waived its challenge to the retroactive application of MCL 500.3145(3); (2) whether the Court of Appeals correctly applied the tolling provision of the one-year-back rule, MCL 500.3145(3), to claims that accrued, MCL 500.3110(4), before the amendment to § 3145 took effect on June 11, 2019, cf. Spine Specialists of Mich, PC v MemberSelect Ins Co, ___ Mich App ___ (Docket No. 358296, rel’d November 17, 2022); and (3) if so, whether the Court of Appeals adopted the correct standard for determining whether an insurer “formally denies” a claim for purposes of tolling the one-year-back period in § 3145(3). The Supreme 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 Spine Specialists of Mich, PC v MemberSelect Ins Co (Docket No. 165445).
165445
SPINE SPECIALISTS OF MICHIGAN, PC, (attorney Steven Hicks)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Macomb CC - Servitto, E.)
MEMBERSELECT INSURANCE COMPANY, (attorney Daniel Saylor)
Defendant-Appellee.
Spine Specialists of Michigan provided medical care to a patient who had been injured in a motor vehicle accident. The patient was insured under a policy of no-fault insurance issued by MemberSelect Insurance Company. Spine Specialists sued MemberSelect for no-fault personal protection insurance benefits for the medical care that Spine Specialists provided to MemberSelect’s insured. The treatment was provided in April and May 2019, and Spine Specialists filed suit in September 2020. MemberSelect moved for summary disposition, arguing that the one-year-back rule of the no-fault act, MCL 500.3145, precluded recovery. In response, Spine Specialists relied on the amended version of MCL 500.3145(3), which took effect on June 11, 2019, and tolls the running of the one-year-back period until the insurer “formally denies” the claim. The trial court granted summary disposition in favor of MemberSelect on claims for services rendered before that date. The Court of Appeals affirmed the trial court in a published opinion, holding that the amended version of the one-year-back rule does not apply to claims that accrued before its effective date. On the same date that the Court of Appeals issued its decision in this case, the Court of Appeals issued its decision in Encompass Healthcare, PLLC v Citizens Ins Co, ___ Mich App ___ (Docket No. 357225, rel’d November 17, 2022), which includes a footnote stating that the amended version of the one-year-back rule applied to claims that accrued in 2018 because the plaintiff filed its complaint after the statute was amended on June 11, 2019. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals correctly held that the tolling provision of the one-year-back rule, MCL 500.3145(3), does not apply to claims for personal protection insurance no-fault benefits that accrued, MCL 500.3110(4), before the amendment to § 3145 took effect on June 11, 2019. The Supreme 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 Encompass Healthcare, PLLC v Citizens Ins Co (Docket No. 165321).
165763
JAMES HEOS, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, (attorney Gregory Hanley)
v
(Appeal from Ct of Appeals)
(Ingham CC - Stokes, W.)
CITY OF EAST LANSING, (attorney Laura Genovich)
Defendant-Appellee.
Defendant City of East Lansing entered into an agreement with the Lansing Board of Water and Light (LBWL), an electric utility provider, under which the LBWL agreed to pay a franchise fee and to put the fee in its bills to the city’s consumers of electricity. The LBWL put the fee in its bills to consumers for almost three years before the plaintiff, a resident of East Lansing and a consumer of electricity, filed a class action, alleging that the franchise fee was an impermissible tax imposed in violation of § 31 of the Headlee Amendment, Const 1963, art 9, § 31, MCL 141.91, and the Foote Act, 264 PA 1905. The parties filed competing motions for summary disposition. The city argued, in part, that the Headlee Amendment’s one-year statute of limitations applied to bar the plaintiff’s claims. The trial court denied the city’s motion with respect to the statute of limitations and granted partial summary disposition in favor of the plaintiff. The Court of Appeals reversed in an unpublished opinion, holding that the plaintiff’s Headlee Amendment claim was barred by the statute of limitations. The court further held that the plaintiff’s claims premised on MCL 141.91 were not distinct from his Headlee Amendment claim and were likewise time-barred. Finally, the Court of Appeals held that the plaintiff was not a real party in interest for purposes of enforcing the Foote Act. The Supreme Court has ordered oral argument on the application to address: (1) the criteria for determining when a pass-through fee imposed by a local government on a business or utility should be considered a tax paid by a customer; (2) whether, in the context of a utility rate, a utility customer may challenge an improper pass-through fee as an improper rate in an action against the utility; (3) if so, what effect, if any, the availability of that challenge has on the analysis and governing timelines for a customer pursuing recovery from a local government of an improper fee paid to the utility; (4) what authority provides the plaintiff with standing to pursue recovery of an improper tax under MCL 141.91; and (5) whether there is case law supporting the plaintiff’s argument that the six-year period in MCL 600.5813 applies to his MCL 141.91 claims, and if there is any case law supporting a different period of limitations.
Wednesday, October 9
Afternoon Session – 1 p.m.
166509
In re D V LANGE, Minor.
(Appeal from Ct of Appeals)
(Wayne CC Family Division - Szymanski, F.)
Guardian Ad Litem for minor child (attorney Patricia Patrick)
Attorney for petitioner-appellee (attorney Jennifer Rosen)
Attorney for respondent-appellant mother (attorney Timothy Pinto)
The respondent adopted DVL (born in 2008) when he was five years old. DVL suffers from mental health issues. In early June 2021, the respondent took DVL to a hospital, seeking to have him medically cleared so he could enter an inpatient treatment program. After a suitable pediatric inpatient psychiatric program could not be found, the hospital cleared DVL for discharge with the recommendation that he receive intensive outpatient mental health services. The respondent refused to pick up DVL from the hospital, asserting that he posed a danger to himself, his siblings, and the respondent, and that he required inpatient treatment. The Department of Health and Human Services filed a petition in the Wayne Circuit Court Family Division, alleging that the respondent’s abandonment of DVL allowed the court to assume jurisdiction over DVL, as well as his two siblings. The trial court declined to exercise jurisdiction over DVL, concluding that there were no grounds to exercise jurisdiction under MCL 712A.2(b)(1) and (2). The Court of Appeals, in a 2-1 unpublished opinion, reversed and remanded for further proceedings, holding that the trial court clearly erred when it failed to assume jurisdiction over DVL under MCL 712A.2(b)(l) and (2). The Court of Appeals majority found that this case was similar to In re Hockett, 339 Mich App 250 (2021), in which the Court of Appeals affirmed jurisdiction. The Supreme Court has ordered oral argument on the application to address: (1) whether the Court of Appeals correctly found that the trial court should have assumed jurisdiction over the minor child pursuant to MCL 712A.2(b)(1) and (2) under the circumstances of this case; (2) whether In re Hockett, 339 Mich App 250 (2021), was correctly decided; and (3) whether DVL would qualify as a dependent homeless minor pursuant to MCL 712A.2(b)(3)(A).
165229
PEOPLE OF THE STATE OF MICHIGAN, (attorney Elizabeth Mathews)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Calhoun CC - Lincoln, S.)
JEFFREY RICARDO WIMBERLY, (attorney Angeles Meneses)
Defendant-Appellant.
Following a jury trial in 2017, the defendant was convicted of two counts of first-degree criminal sexual conduct. The offenses were committed in 2002, but it was not until 2017 that forensic scientists matched DNA recovered from the victim to defendant’s DNA profile. The trial court sentenced the defendant as a second-offense habitual offender to consecutive prison terms of 39 to 60 years. In the defendant’s initial appeal by right, the Court of Appeals affirmed his convictions but vacated his sentences and remanded for resentencing based on the trial court’s improper reliance on acquitted conduct. The trial court held the resentencing hearing before the expiration of the deadline for the defendant to seek leave to appeal in the Supreme Court. On resentencing, the trial court imposed the same sentences as before. The defendant then filed an application for leave to appeal the affirmance of his convictions in the Supreme Court, which denied leave to appeal in 2022. The defendant also claimed an appeal of right from the resentencing hearing and filed a motion to correct an invalid sentence in the trial court. After the trial court denied that motion, the Court of Appeals affirmed the defendant’s sentences in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the imposition of consecutive sentences in this case violates the Ex Post Facto Clauses of the United States and Michigan Constitutions, US Const, art I, § 10, cl 1; Const 1963, art 1, § 10, because the criminal conduct preceded the amendment to MCL 750.520b that authorized consecutive sentences; (2) if so, whether the appropriate remedy is to grant the defendant a new sentencing hearing or to direct the sentencing court to amend the judgment of sentence to reflect concurrent sentences; and (3) whether the Calhoun Circuit Court lacked subject-matter jurisdiction to conduct resentencing before the expiration of the defendant’s deadline for applying for leave to appeal the November 24, 2020 judgment of the Court of Appeals, see People v Washington, 508 Mich 107 (2021).
Thursday, October 10
Morning Session – 9:30 a.m.
165961
ATTORNEY GENERAL, (attorney Darrin Fowler)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ingham CC - Stokes, W.)
ELI LILLY AND COMPANY, (attorney John O’Quinn)
Defendant-Appellee.
Argument by amicus Michigan Association for Justice (attorney Paul Novak) (5 mins)
The Attorney General seeks to investigate the cost of insulin medications manufactured by the defendant to determine whether the defendant’s pricing practices violate the Michigan Consumer Protection Act (MCPA). To that end, the Attorney General petitioned the Ingham Circuit Court for the issuance of civil investigative subpoenas under MCL 445.907. The Attorney General also filed a complaint seeking a declaratory judgment that the proposed investigation of the defendant’s pricing practices is not barred by the MCPA’s exemption for “transaction[s] or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.” MCL 445.904(1)(a). The complaint acknowledged that the Attorney General’s interpretation of the exemption is contrary to the construction given by the Supreme Court in Smith v Globe Life Ins Co, 460 Mich 446 (1999), and Liss v Lewiston-Richards, Inc, 478 Mich 203 (2007). The complaint alleged, however, that those cases were wrongly decided. The defendant moved for summary disposition under MCR 2.116(C)(8) (failure to state a claim), arguing that its transactions and conduct fall within the MCPA’s exemption based on the Smith and Liss decisions. The circuit court granted the motion and dismissed the Attorney General’s complaint. The Attorney General claimed an appeal of right in the Court of Appeals and then filed a bypass application in the Supreme Court. The Supreme Court denied the bypass application but directed the Court of Appeals to expedite its consideration of the case. The Court of Appeals affirmed the trial court in an unpublished opinion, holding that it was bound by Smith and Liss. The Supreme Court has ordered oral argument on the application to address: (1) whether this Court’s decisions in Smith v Globe Life Ins Co, 460 Mich 446 (1999), and Liss v Lewiston-Richards, Inc, 478 Mich 203 (2007), were correctly decided; and (2) if not, whether they should nonetheless be retained under principles of stare decisis, Robinson v City of Detroit, 462 Mich 439, 463-468 (2000).
158869
PEOPLE OF THE STATE OF MICHIGAN, (attorney Kahla Crino)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Isabella CC - Chamberlain, P)
BENJAMIN KEITH McKEWEN, (attorney Matthew Monahan)
Defendant-Appellee.
The defendant was convicted by a jury of assault with intent to do great bodily harm (AWIGBH) and felonious assault. The trial court sentenced him to concurrent terms of 5 to 10 years for AWIGBH and 2 to 4 years for felonious assault. The Court of Appeals, in a 2-1 published opinion, affirmed the AWIGBH conviction but vacated the felonious assault conviction. The Court of Appeals majority was not persuaded by the defendant’s double-jeopardy argument, but held that the crimes were mutually exclusive. The prosecutor (Docket No. 158869) and the defendant (Docket No. 158893) appealed to the Supreme Court. The applications were held in abeyance for People v Davis (Docket No. 160775) and then People v Monroe (Docket No. 163973). After leave to appeal was denied in Monroe, the Supreme Court granted the prosecutor’s application for leave to appeal to address whether conviction for both assault with intent to do great bodily harm, MCL 750.84, and felonious assault, MCL 750.82, violates the constitutional double-jeopardy protection against multiple punishments for the same offense where MCL 750.84 requires intent “to do great bodily harm,” and MCL 750.82 applies where an assault is committed “without intending to commit murder or to inflict great bodily harm less than murder,” but also where MCL 750.84(3) states “[t]his section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law arising out of the same conduct as the violation of this section.” The Supreme Court has 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 People v Gardner (Docket No. 163124) and People v Fredell (Docket No. 164098).
163124
PEOPLE OF THE STATE OF MICHIGAN, (attorney Amanda Smith)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Wayne CC - Hathaway, B.)
CHRISTIAN ANDREW GARDNER, (attorney Jacqueline McCann)
Defendant-Appellee.
The defendant was convicted at a bench trial of assault with intent to murder, felonious assault, resisting arrest, and domestic violence. He was sentenced to 15 to 20 years for assault with intent to murder, 2 to 6 years for felonious assault, 1 to 3 years for resisting arrest, and 90 days for domestic violence. The Court of Appeals, in a 2-1 unpublished opinion, affirmed the assault with intent to murder conviction but vacated the felonious assault conviction, holding that the convictions were inconsistent. The prosecutor filed an application for leave to appeal in the Supreme Court, and the application was held in abeyance for People v Davis (Docket No. 160775) and then People v Monroe (Docket No.163973). After leave to appeal was denied in Monroe, the Supreme Court granted the prosecutor’s application for leave to appeal to address whether conviction for both assault with intent to murder, MCL 750.83, and felonious assault, MCL 750.82, violates the constitutional double-jeopardy protection against multiple punishments for the same offense where MCL 750.83 requires intent “to commit the crime of murder,” and MCL 750.82 applies where an assault is committed “without intending to commit murder or to inflict great bodily harm less than murder.” The Supreme Court has 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 People v McKewen (Docket No. 158869) and People v Fredell (Docket No. 164098).
164098
PEOPLE OF THE STATE OF MICHIGAN, (attorney Katie Jory)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Genesee CC - Farah J.)
FREDERICK MICHAEL FREDELL, (attorney Michael Faraone)
Defendant-Appellant.
As a result of a motor vehicle accident in which two occupants of the other vehicle were killed and three occupants were seriously injured, the defendant was convicted by a jury of two counts of OWI causing death, two counts of reckless driving causing death, two counts of involuntary manslaughter, three counts of OWI causing a serious impairment of a bodily function, and three counts of reckless driving causing a serious impairment of a bodily function. The trial court sentenced the defendant to 86 months to 15 years for the involuntary manslaughter and OWI causing death convictions, 6 to 15 years for the reckless driving causing death convictions, and 28 to 60 months for the other convictions. The defendant argued on appeal that his multiple convictions violated double-jeopardy protections. The Court of Appeals, in a published opinion, affirmed the defendant’s convictions and sentences, but remanded the case to the trial court to allow the defendant to pursue corrections to his sentencing information report and to permit the trial court to perform the ministerial task of correcting a clerical error in the judgment of sentence. The defendant filed an application for leave to appeal in the Supreme Court, and the case was held in abeyance for People v Monroe (Docket No. 163937). After leave to appeal was denied in Monroe, the Supreme Court ordered oral argument on the application to address whether conviction for both involuntary manslaughter, MCL 750.321, and reckless driving causing death, MCL 257.626(4), violates the constitutional double-jeopardy protection against multiple punishments for the same offense where the theory under which the defendant was convicted of involuntary manslaughter requires that the defendant act with “gross negligence” in committing an unintentional killing, People v Holtschlag, 471 Mich 1, 21-22 (2004), and MCL 257.626(4) requires that the defendant cause a death with “willful or wanton disregard for the safety of persons or property.” The Supreme Court has 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 People v McKewen (Docket No. 158869) and People v Gardner (Docket No. 163124).
165391-2
DINE BRANDS GLOBAL, INC., (attorney Ethan Millar)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland CC - McMillen, P.)
RACHAEL EUBANKS, in her capacity as the TREASURER FOR THE STATE OF MICHIGAN, (attorney James Ziehmer)
Defendant-Appellant.
—————
THE WALT DISNEY COMPANY, (attorney Ethan Millar)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland CC - McMillen, P.)
RACHAEL EUBANKS, in her capacity as the TREASURER FOR THE STATE OF MICHIGAN, (attorney James Ziehmer)
Defendant-Appellant
The State Treasurer began examinations into whether the plaintiffs were complying with the Uniform Unclaimed Property Act (UUPA), MCL 567.221 et seq. Those examinations resulted in findings that the plaintiffs had failed to comply with the UUPA, so the Treasurer issued determinations concluding that the plaintiffs owed hundreds of thousands of dollars to the Department of Treasury. The Treasurer rejected the plaintiffs’ defense based on the statute of limitations. The plaintiffs then filed actions for declaratory relief in Oakland Circuit Court, seeking a ruling that the statute of limitations in the UUPA, MCL 567.250(2), bars the Treasurer from requiring them to report and remit the unclaimed property. The circuit court granted the plaintiffs’ request for summary disposition and enjoined the Treasurer from requiring the plaintiffs to report and remit the property. The Court of Appeals affirmed the circuit court in two published opinions issued on January 19, 2023. The Treasurer appealed to the Supreme Court and filed motions to stay the precedential effect of the Court of Appeals opinions. The Supreme Court denied the motions for stay, while keeping the applications for leave to appeal pending. The Supreme Court then remanded the cases to the Court of Appeals, while retaining jurisdiction, and directed the Court of Appeals to determine, “assuming that an examination is a ‘proceeding’ for purposes of MCL 567.250(2): (1) whether the commencement of the examination tolled the statute of limitations in MCL 567.250(2); and (2) whether the Treasurer must still file a lawsuit within the applicable time frame to avoid the lawsuit being time-barred.” On remand, the Court of Appeals, in an unpublished opinion, reversed the circuit court and remanded the case to the circuit court for further proceedings, reasoning that the statute of limitations did not bar the Treasurer from seeking the unclaimed property because she had commenced examinations of both plaintiffs before the limitations period had run. The Supreme Court has ordered oral argument on the applications to address: (1) whether the Court of Appeals erred in interpreting the Uniform Unclaimed Property Act, MCL 567.221 et seq., when it concluded that an examination or audit conducted by the Treasurer was not an “action or proceeding” under MCL 567.250(2); (2) if so, whether the commencement of the examination tolled the statute of limitations in MCL 567.250(2); and (3) whether, even if an examination is a “proceeding,” the Treasurer must still file a lawsuit within the applicable time frame to avoid the lawsuit being time-barred.
Continuing a longtime tradition, the first case will be heard in the Old Supreme Court Chambers at the State Capitol Building located in the east wing of the 3rd floor (current Senate Appropriations Committee Room), following a presentation of the Annual Report of the Michigan Supreme Court Historical Society. That case will be livestreamed at https://cloud.castus.tv/vod/misenate?page=HOME.
The remaining cases will be heard in the 6th floor courtroom at the Michigan Hall of Justice at 925 W. Ottawa, Lansing, and will be livestreamed from the MSC website.
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, October 9
Morning Session – 9:30 a.m.
Annual Report of the Michigan Supreme Court Historical Society
–Joseph J. Gavin, president
165761
HARK ORCHIDS LP, (attorney Jennifer Alberts)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
Kalamazoo CC - Lipsey, A.)
WILLIAM BUIE and CONKLIN BENHAM, PC, (attorney David Saperstein)
Defendants-Appellees
Defendants William Buie and Conklin Benham, PC, represented plaintiff Hark Orchids and its insurance carriers in a workers’ compensation case involving Antoinette Wright. The plaintiff and Wright settled the workers’ compensation case, but Wright filed a subsequent lawsuit against the plaintiff, raising employment-related civil rights claims. The plaintiff filed a legal malpractice lawsuit against the defendants, contending that it was forced to pay over $300,000 in attorney fees and costs to another law firm to defend the subsequent lawsuit filed by Wright because the defendants did not warn the plaintiff that Wright intended to bring other claims and did not include the other claims in the workers’ compensation settlement agreement. Although Wright’s lawsuit was ultimately dismissed, the plaintiff contended that the claims would have been resolved sooner at less cost if not for the alleged legal malpractice. The plaintiff sought damages in the form of attorney fees and costs, which it alleged were necessary to mitigate its damages. The defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (10), arguing, among other things, that the attorney fees incurred by the plaintiff in the employment lawsuit are not a proper element of damages in a legal malpractice lawsuit because the plaintiff’s complaint did not allege fraudulent or malicious conduct on the part of the defendants. The trial court granted the defendants’ motion for summary disposition, holding that the damages sought by the plaintiff were not appropriate. The Court of Appeals affirmed in an unpublished opinion, holding that the plaintiff was required to plead that the defendants engaged in malicious, fraudulent, or similarly wrongful conduct to survive a motion for summary disposition under MCR 2.116(C)(8) and that the plaintiff alleged only that the defendants were negligent. The Supreme Court has ordered oral argument on the application to address: (1) whether in this legal malpractice action there is a basis on which attorney fees may be recoverable damages absent allegations of malicious, fraudulent, or similarly wrongful conduct; and (2) whether the trial court erred in granting the defendants’ motion for summary disposition.
Wednesday, October 9
Resume Morning Session – 10:30 a.m.
Hall of Justice, 6th Floor Courtroom
165321
ENCOMPASS HEALTHCARE, PLLC, (attorney Harold Perakis)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland CC - Grant, N.)
CITIZENS INSURANCE COMPANY, (attorney Donald Brownell)
Defendant-Appellant.
Encompass Healthcare provided medical care to a patient who had been injured in a motor vehicle accident. The patient was insured under a policy of no-fault insurance issued by Citizens Insurance Company. Encompass sued Citizens for no-fault personal protection insurance benefits for the medical care that Encompass provided to Citizens’ insured. The treatment ended in October 2018, and Encompass filed suit in November 2019. Citizens moved for summary disposition, arguing that the one-year-back rule of the no-fault act, MCL 500.3145, precluded recovery. The trial court applied the amended version of the statute with its tolling provision that became effective June 11, 2019, but found no basis for tolling because Citizens “formally denie[d]” the claims, as that term is used in the amended version of MCL 500.3145(3), more than one year before Encompass filed suit. The Court of Appeals, in a published opinion, reversed and remanded the case to the trial court for further proceedings. The Court of Appeals held that Citizens’ Explanation of Review notices denying the claims were not formal denials that began the running of the one-year-back period. Consequently, the Court of Appeals held that the period was tolled and recovery is not barred. In a footnote, the Court of Appeals stated that the amended version of the one-year-back rule applies because Encompass filed its complaint after the statute was amended on June 11, 2019. On the same date that the Court of Appeals issued its decision in this case, the court issued Spine Specialists of Mich, PC v MemberSelect Ins Co, ___ Mich App ___ (Docket No. 358296, rel’d November 17, 2022), holding that the new version of the one-year-back rule does not apply to claims that accrued before its effective date, June 11, 2019.
The Supreme Court has ordered oral argument on the application to address: (1) whether the defendant waived its challenge to the retroactive application of MCL 500.3145(3); (2) whether the Court of Appeals correctly applied the tolling provision of the one-year-back rule, MCL 500.3145(3), to claims that accrued, MCL 500.3110(4), before the amendment to § 3145 took effect on June 11, 2019, cf. Spine Specialists of Mich, PC v MemberSelect Ins Co, ___ Mich App ___ (Docket No. 358296, rel’d November 17, 2022); and (3) if so, whether the Court of Appeals adopted the correct standard for determining whether an insurer “formally denies” a claim for purposes of tolling the one-year-back period in § 3145(3). The Supreme 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 Spine Specialists of Mich, PC v MemberSelect Ins Co (Docket No. 165445).
165445
SPINE SPECIALISTS OF MICHIGAN, PC, (attorney Steven Hicks)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Macomb CC - Servitto, E.)
MEMBERSELECT INSURANCE COMPANY, (attorney Daniel Saylor)
Defendant-Appellee.
Spine Specialists of Michigan provided medical care to a patient who had been injured in a motor vehicle accident. The patient was insured under a policy of no-fault insurance issued by MemberSelect Insurance Company. Spine Specialists sued MemberSelect for no-fault personal protection insurance benefits for the medical care that Spine Specialists provided to MemberSelect’s insured. The treatment was provided in April and May 2019, and Spine Specialists filed suit in September 2020. MemberSelect moved for summary disposition, arguing that the one-year-back rule of the no-fault act, MCL 500.3145, precluded recovery. In response, Spine Specialists relied on the amended version of MCL 500.3145(3), which took effect on June 11, 2019, and tolls the running of the one-year-back period until the insurer “formally denies” the claim. The trial court granted summary disposition in favor of MemberSelect on claims for services rendered before that date. The Court of Appeals affirmed the trial court in a published opinion, holding that the amended version of the one-year-back rule does not apply to claims that accrued before its effective date. On the same date that the Court of Appeals issued its decision in this case, the Court of Appeals issued its decision in Encompass Healthcare, PLLC v Citizens Ins Co, ___ Mich App ___ (Docket No. 357225, rel’d November 17, 2022), which includes a footnote stating that the amended version of the one-year-back rule applied to claims that accrued in 2018 because the plaintiff filed its complaint after the statute was amended on June 11, 2019. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals correctly held that the tolling provision of the one-year-back rule, MCL 500.3145(3), does not apply to claims for personal protection insurance no-fault benefits that accrued, MCL 500.3110(4), before the amendment to § 3145 took effect on June 11, 2019. The Supreme 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 Encompass Healthcare, PLLC v Citizens Ins Co (Docket No. 165321).
165763
JAMES HEOS, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, (attorney Gregory Hanley)
v
(Appeal from Ct of Appeals)
(Ingham CC - Stokes, W.)
CITY OF EAST LANSING, (attorney Laura Genovich)
Defendant-Appellee.
Defendant City of East Lansing entered into an agreement with the Lansing Board of Water and Light (LBWL), an electric utility provider, under which the LBWL agreed to pay a franchise fee and to put the fee in its bills to the city’s consumers of electricity. The LBWL put the fee in its bills to consumers for almost three years before the plaintiff, a resident of East Lansing and a consumer of electricity, filed a class action, alleging that the franchise fee was an impermissible tax imposed in violation of § 31 of the Headlee Amendment, Const 1963, art 9, § 31, MCL 141.91, and the Foote Act, 264 PA 1905. The parties filed competing motions for summary disposition. The city argued, in part, that the Headlee Amendment’s one-year statute of limitations applied to bar the plaintiff’s claims. The trial court denied the city’s motion with respect to the statute of limitations and granted partial summary disposition in favor of the plaintiff. The Court of Appeals reversed in an unpublished opinion, holding that the plaintiff’s Headlee Amendment claim was barred by the statute of limitations. The court further held that the plaintiff’s claims premised on MCL 141.91 were not distinct from his Headlee Amendment claim and were likewise time-barred. Finally, the Court of Appeals held that the plaintiff was not a real party in interest for purposes of enforcing the Foote Act. The Supreme Court has ordered oral argument on the application to address: (1) the criteria for determining when a pass-through fee imposed by a local government on a business or utility should be considered a tax paid by a customer; (2) whether, in the context of a utility rate, a utility customer may challenge an improper pass-through fee as an improper rate in an action against the utility; (3) if so, what effect, if any, the availability of that challenge has on the analysis and governing timelines for a customer pursuing recovery from a local government of an improper fee paid to the utility; (4) what authority provides the plaintiff with standing to pursue recovery of an improper tax under MCL 141.91; and (5) whether there is case law supporting the plaintiff’s argument that the six-year period in MCL 600.5813 applies to his MCL 141.91 claims, and if there is any case law supporting a different period of limitations.
Wednesday, October 9
Afternoon Session – 1 p.m.
166509
In re D V LANGE, Minor.
(Appeal from Ct of Appeals)
(Wayne CC Family Division - Szymanski, F.)
Guardian Ad Litem for minor child (attorney Patricia Patrick)
Attorney for petitioner-appellee (attorney Jennifer Rosen)
Attorney for respondent-appellant mother (attorney Timothy Pinto)
The respondent adopted DVL (born in 2008) when he was five years old. DVL suffers from mental health issues. In early June 2021, the respondent took DVL to a hospital, seeking to have him medically cleared so he could enter an inpatient treatment program. After a suitable pediatric inpatient psychiatric program could not be found, the hospital cleared DVL for discharge with the recommendation that he receive intensive outpatient mental health services. The respondent refused to pick up DVL from the hospital, asserting that he posed a danger to himself, his siblings, and the respondent, and that he required inpatient treatment. The Department of Health and Human Services filed a petition in the Wayne Circuit Court Family Division, alleging that the respondent’s abandonment of DVL allowed the court to assume jurisdiction over DVL, as well as his two siblings. The trial court declined to exercise jurisdiction over DVL, concluding that there were no grounds to exercise jurisdiction under MCL 712A.2(b)(1) and (2). The Court of Appeals, in a 2-1 unpublished opinion, reversed and remanded for further proceedings, holding that the trial court clearly erred when it failed to assume jurisdiction over DVL under MCL 712A.2(b)(l) and (2). The Court of Appeals majority found that this case was similar to In re Hockett, 339 Mich App 250 (2021), in which the Court of Appeals affirmed jurisdiction. The Supreme Court has ordered oral argument on the application to address: (1) whether the Court of Appeals correctly found that the trial court should have assumed jurisdiction over the minor child pursuant to MCL 712A.2(b)(1) and (2) under the circumstances of this case; (2) whether In re Hockett, 339 Mich App 250 (2021), was correctly decided; and (3) whether DVL would qualify as a dependent homeless minor pursuant to MCL 712A.2(b)(3)(A).
165229
PEOPLE OF THE STATE OF MICHIGAN, (attorney Elizabeth Mathews)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Calhoun CC - Lincoln, S.)
JEFFREY RICARDO WIMBERLY, (attorney Angeles Meneses)
Defendant-Appellant.
Following a jury trial in 2017, the defendant was convicted of two counts of first-degree criminal sexual conduct. The offenses were committed in 2002, but it was not until 2017 that forensic scientists matched DNA recovered from the victim to defendant’s DNA profile. The trial court sentenced the defendant as a second-offense habitual offender to consecutive prison terms of 39 to 60 years. In the defendant’s initial appeal by right, the Court of Appeals affirmed his convictions but vacated his sentences and remanded for resentencing based on the trial court’s improper reliance on acquitted conduct. The trial court held the resentencing hearing before the expiration of the deadline for the defendant to seek leave to appeal in the Supreme Court. On resentencing, the trial court imposed the same sentences as before. The defendant then filed an application for leave to appeal the affirmance of his convictions in the Supreme Court, which denied leave to appeal in 2022. The defendant also claimed an appeal of right from the resentencing hearing and filed a motion to correct an invalid sentence in the trial court. After the trial court denied that motion, the Court of Appeals affirmed the defendant’s sentences in an unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the imposition of consecutive sentences in this case violates the Ex Post Facto Clauses of the United States and Michigan Constitutions, US Const, art I, § 10, cl 1; Const 1963, art 1, § 10, because the criminal conduct preceded the amendment to MCL 750.520b that authorized consecutive sentences; (2) if so, whether the appropriate remedy is to grant the defendant a new sentencing hearing or to direct the sentencing court to amend the judgment of sentence to reflect concurrent sentences; and (3) whether the Calhoun Circuit Court lacked subject-matter jurisdiction to conduct resentencing before the expiration of the defendant’s deadline for applying for leave to appeal the November 24, 2020 judgment of the Court of Appeals, see People v Washington, 508 Mich 107 (2021).
Thursday, October 10
Morning Session – 9:30 a.m.
165961
ATTORNEY GENERAL, (attorney Darrin Fowler)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ingham CC - Stokes, W.)
ELI LILLY AND COMPANY, (attorney John O’Quinn)
Defendant-Appellee.
Argument by amicus Michigan Association for Justice (attorney Paul Novak) (5 mins)
The Attorney General seeks to investigate the cost of insulin medications manufactured by the defendant to determine whether the defendant’s pricing practices violate the Michigan Consumer Protection Act (MCPA). To that end, the Attorney General petitioned the Ingham Circuit Court for the issuance of civil investigative subpoenas under MCL 445.907. The Attorney General also filed a complaint seeking a declaratory judgment that the proposed investigation of the defendant’s pricing practices is not barred by the MCPA’s exemption for “transaction[s] or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.” MCL 445.904(1)(a). The complaint acknowledged that the Attorney General’s interpretation of the exemption is contrary to the construction given by the Supreme Court in Smith v Globe Life Ins Co, 460 Mich 446 (1999), and Liss v Lewiston-Richards, Inc, 478 Mich 203 (2007). The complaint alleged, however, that those cases were wrongly decided. The defendant moved for summary disposition under MCR 2.116(C)(8) (failure to state a claim), arguing that its transactions and conduct fall within the MCPA’s exemption based on the Smith and Liss decisions. The circuit court granted the motion and dismissed the Attorney General’s complaint. The Attorney General claimed an appeal of right in the Court of Appeals and then filed a bypass application in the Supreme Court. The Supreme Court denied the bypass application but directed the Court of Appeals to expedite its consideration of the case. The Court of Appeals affirmed the trial court in an unpublished opinion, holding that it was bound by Smith and Liss. The Supreme Court has ordered oral argument on the application to address: (1) whether this Court’s decisions in Smith v Globe Life Ins Co, 460 Mich 446 (1999), and Liss v Lewiston-Richards, Inc, 478 Mich 203 (2007), were correctly decided; and (2) if not, whether they should nonetheless be retained under principles of stare decisis, Robinson v City of Detroit, 462 Mich 439, 463-468 (2000).
158869
PEOPLE OF THE STATE OF MICHIGAN, (attorney Kahla Crino)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Isabella CC - Chamberlain, P)
BENJAMIN KEITH McKEWEN, (attorney Matthew Monahan)
Defendant-Appellee.
The defendant was convicted by a jury of assault with intent to do great bodily harm (AWIGBH) and felonious assault. The trial court sentenced him to concurrent terms of 5 to 10 years for AWIGBH and 2 to 4 years for felonious assault. The Court of Appeals, in a 2-1 published opinion, affirmed the AWIGBH conviction but vacated the felonious assault conviction. The Court of Appeals majority was not persuaded by the defendant’s double-jeopardy argument, but held that the crimes were mutually exclusive. The prosecutor (Docket No. 158869) and the defendant (Docket No. 158893) appealed to the Supreme Court. The applications were held in abeyance for People v Davis (Docket No. 160775) and then People v Monroe (Docket No. 163973). After leave to appeal was denied in Monroe, the Supreme Court granted the prosecutor’s application for leave to appeal to address whether conviction for both assault with intent to do great bodily harm, MCL 750.84, and felonious assault, MCL 750.82, violates the constitutional double-jeopardy protection against multiple punishments for the same offense where MCL 750.84 requires intent “to do great bodily harm,” and MCL 750.82 applies where an assault is committed “without intending to commit murder or to inflict great bodily harm less than murder,” but also where MCL 750.84(3) states “[t]his section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law arising out of the same conduct as the violation of this section.” The Supreme Court has 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 People v Gardner (Docket No. 163124) and People v Fredell (Docket No. 164098).
163124
PEOPLE OF THE STATE OF MICHIGAN, (attorney Amanda Smith)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Wayne CC - Hathaway, B.)
CHRISTIAN ANDREW GARDNER, (attorney Jacqueline McCann)
Defendant-Appellee.
The defendant was convicted at a bench trial of assault with intent to murder, felonious assault, resisting arrest, and domestic violence. He was sentenced to 15 to 20 years for assault with intent to murder, 2 to 6 years for felonious assault, 1 to 3 years for resisting arrest, and 90 days for domestic violence. The Court of Appeals, in a 2-1 unpublished opinion, affirmed the assault with intent to murder conviction but vacated the felonious assault conviction, holding that the convictions were inconsistent. The prosecutor filed an application for leave to appeal in the Supreme Court, and the application was held in abeyance for People v Davis (Docket No. 160775) and then People v Monroe (Docket No.163973). After leave to appeal was denied in Monroe, the Supreme Court granted the prosecutor’s application for leave to appeal to address whether conviction for both assault with intent to murder, MCL 750.83, and felonious assault, MCL 750.82, violates the constitutional double-jeopardy protection against multiple punishments for the same offense where MCL 750.83 requires intent “to commit the crime of murder,” and MCL 750.82 applies where an assault is committed “without intending to commit murder or to inflict great bodily harm less than murder.” The Supreme Court has 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 People v McKewen (Docket No. 158869) and People v Fredell (Docket No. 164098).
164098
PEOPLE OF THE STATE OF MICHIGAN, (attorney Katie Jory)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Genesee CC - Farah J.)
FREDERICK MICHAEL FREDELL, (attorney Michael Faraone)
Defendant-Appellant.
As a result of a motor vehicle accident in which two occupants of the other vehicle were killed and three occupants were seriously injured, the defendant was convicted by a jury of two counts of OWI causing death, two counts of reckless driving causing death, two counts of involuntary manslaughter, three counts of OWI causing a serious impairment of a bodily function, and three counts of reckless driving causing a serious impairment of a bodily function. The trial court sentenced the defendant to 86 months to 15 years for the involuntary manslaughter and OWI causing death convictions, 6 to 15 years for the reckless driving causing death convictions, and 28 to 60 months for the other convictions. The defendant argued on appeal that his multiple convictions violated double-jeopardy protections. The Court of Appeals, in a published opinion, affirmed the defendant’s convictions and sentences, but remanded the case to the trial court to allow the defendant to pursue corrections to his sentencing information report and to permit the trial court to perform the ministerial task of correcting a clerical error in the judgment of sentence. The defendant filed an application for leave to appeal in the Supreme Court, and the case was held in abeyance for People v Monroe (Docket No. 163937). After leave to appeal was denied in Monroe, the Supreme Court ordered oral argument on the application to address whether conviction for both involuntary manslaughter, MCL 750.321, and reckless driving causing death, MCL 257.626(4), violates the constitutional double-jeopardy protection against multiple punishments for the same offense where the theory under which the defendant was convicted of involuntary manslaughter requires that the defendant act with “gross negligence” in committing an unintentional killing, People v Holtschlag, 471 Mich 1, 21-22 (2004), and MCL 257.626(4) requires that the defendant cause a death with “willful or wanton disregard for the safety of persons or property.” The Supreme Court has 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 People v McKewen (Docket No. 158869) and People v Gardner (Docket No. 163124).
165391-2
DINE BRANDS GLOBAL, INC., (attorney Ethan Millar)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland CC - McMillen, P.)
RACHAEL EUBANKS, in her capacity as the TREASURER FOR THE STATE OF MICHIGAN, (attorney James Ziehmer)
Defendant-Appellant.
—————
THE WALT DISNEY COMPANY, (attorney Ethan Millar)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland CC - McMillen, P.)
RACHAEL EUBANKS, in her capacity as the TREASURER FOR THE STATE OF MICHIGAN, (attorney James Ziehmer)
Defendant-Appellant
The State Treasurer began examinations into whether the plaintiffs were complying with the Uniform Unclaimed Property Act (UUPA), MCL 567.221 et seq. Those examinations resulted in findings that the plaintiffs had failed to comply with the UUPA, so the Treasurer issued determinations concluding that the plaintiffs owed hundreds of thousands of dollars to the Department of Treasury. The Treasurer rejected the plaintiffs’ defense based on the statute of limitations. The plaintiffs then filed actions for declaratory relief in Oakland Circuit Court, seeking a ruling that the statute of limitations in the UUPA, MCL 567.250(2), bars the Treasurer from requiring them to report and remit the unclaimed property. The circuit court granted the plaintiffs’ request for summary disposition and enjoined the Treasurer from requiring the plaintiffs to report and remit the property. The Court of Appeals affirmed the circuit court in two published opinions issued on January 19, 2023. The Treasurer appealed to the Supreme Court and filed motions to stay the precedential effect of the Court of Appeals opinions. The Supreme Court denied the motions for stay, while keeping the applications for leave to appeal pending. The Supreme Court then remanded the cases to the Court of Appeals, while retaining jurisdiction, and directed the Court of Appeals to determine, “assuming that an examination is a ‘proceeding’ for purposes of MCL 567.250(2): (1) whether the commencement of the examination tolled the statute of limitations in MCL 567.250(2); and (2) whether the Treasurer must still file a lawsuit within the applicable time frame to avoid the lawsuit being time-barred.” On remand, the Court of Appeals, in an unpublished opinion, reversed the circuit court and remanded the case to the circuit court for further proceedings, reasoning that the statute of limitations did not bar the Treasurer from seeking the unclaimed property because she had commenced examinations of both plaintiffs before the limitations period had run. The Supreme Court has ordered oral argument on the applications to address: (1) whether the Court of Appeals erred in interpreting the Uniform Unclaimed Property Act, MCL 567.221 et seq., when it concluded that an examination or audit conducted by the Treasurer was not an “action or proceeding” under MCL 567.250(2); (2) if so, whether the commencement of the examination tolled the statute of limitations in MCL 567.250(2); and (3) whether, even if an examination is a “proceeding,” the Treasurer must still file a lawsuit within the applicable time frame to avoid the lawsuit being time-barred.
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