MSC to hear oral arguments March 6-7

By Lee Dryden
BridgeTower Media Newswires

DETROIT - A dispute over a Qualified Domestic Relations Order, the definition of a modular home, a slip-and-fall involving Best Buy and Samsung, and several criminal matters are among the cases that will be heard by the Michigan Supreme Court during March oral arguments.

The high court will convene to hear the cases on the sixth floor of the Hall of Justice, 925 W. Ottawa St. in Lansing. Arguments will begin at 9:30 a.m. March 6-7.

Oral arguments are broadcast live.

March 6 morning session: People v. Bruce, People v. Nicholson; Dorko v. Dorko; People v. Urban; People v. Moss.

March 6 afternoon session: Thiel v. Goyings; People v. Betts; People v. Snyder.

March 7 morning session: People v. Swilley; Stenzel v. Best Buy Co, Inc.; People v. Carter; Michigan Ass'n of Home Builders v. City of Troy.

Information about select cases below is based on case summaries provided by the Michigan Courts.


March 6 morning session:

- People v. Bruce, People v. Nicholson

In 2014, defendants Bruce and Nicholson - federal border patrol agents assigned to a task force that also included Michigan State Police and Michigan motor carrier officers - assisted a local narcotics enforcement team in executing a search warrant on two residences that were tied to a marijuana growing operation. Following the search, the tenant of the premises discovered several items of no evidentiary value missing, including a stool and an antique thermometer that he considered a family heirloom.

Defendants were charged with misconduct in office, a common-law offense, and larceny in a building, a statutory felony. They moved to dismiss the misconduct in office charges, arguing that their employment as border patrol agents did not fall within the definition of employment in a "public office" for purposes of the crime of misconduct in office.

The trial court denied the motions, and also denied defendants' motions for a directed verdict, which were advanced on the same grounds. The jury convicted defendants of misconduct in office, but acquitted them of larceny. The Court of Appeals, in a split unpublished decision, vacated the convictions, agreeing with defendants that they are not public officers who could be charged with misconduct in office.

The Supreme Court has granted leave to appeal to consider whether defendants were "public officers" for purposes of the common-law crime of misconduct in office when they assisted in the execution of the search warrant.

- Dorko v. Dorko

The parties were divorced in 2005. The judgment of divorce awarded defendant-wife one-half of the marital interest in plaintiff-husband's pension and retirement benefits in a Qualified Domestic Relations Order (QDRO). Ten years and eight days after entry of the divorce judgment, defendant submitted a proposed QDRO to the trial court, which was entered without objection. Several months later, after the pension plan rejected the proposed QDRO because of deficiencies in the draft language, defendant submitted an amended proposed QDRO. Plaintiff filed objections to entry of the amended proposed QDRO on grounds unrelated to the statute of limitations.

Plaintiff then moved to set aside the first proposed QDRO and to deny the amended proposed QDRO, claiming that entry of any QDRO was barred by the 10-year statute of limitations applicable to enforcement of noncontractual money obligations in MCL 600.5809(3). The trial court denied plaintiff's motion and entered the amended proposed QDRO. In an unpublished opinion, the Court of Appeals affirmed, holding that it was bound by Joughin v. Joughin, 320 Mich App 380 (2017), which held that a former spouse's submission of a proposed QDRO is merely a ministerial task attendant to the judgment of divorce that is not subject to the statute of limitations period in MCL 600.5809(3).

The Supreme Court has directed oral argument on plaintiff's application for leave to appeal to address: (1) whether plaintiff waived any statute of limitations defense; (2) whether Joughin was correctly decided; and (3) when a claim for retirement benefits under a judgment of divorce accrues.

March 6 afternoon session

- Thiel v. Goyings

Defendants David and Helen Goyings purchased a lot in the Timber Ridge Bay subdivision and then designed a "system-built" home that included three modules built off-site, transported to their lot, affixed permanently to the foundation, and incorporated into the final stick-built project. Plaintiffs Matthew and Nikole Thiel, who also own a home in the subdivision, filed this lawsuit, alleging that defendants were in violation of the subdivision's restrictive covenants that prohibit a "modular home."

Plaintiffs sought a court order for removal of defendants' home. Following a bench trial, the trial court determined that defendants' home did not violate the restrictive covenants because the uncontroverted testimony was that the home would be a visually attractive home of equal or superior quality to other homes that could have been entirely stick-built on site. The court also found that defendants' system-built home was not a "modular home" because it was primarily stick-built on site, and because the modules were not a complete residence upon delivery.

The court further noted that other homes in the area included components that were prefabricated, and no objection had been raised. Thus, the court denied plaintiffs' request for an order directing defendants to remove the home. Plaintiffs appealed. The Court of Appeals reversed in an unpublished opinion, ordering removal of the home.

The Supreme Court has directed oral argument on defendants' application for leave to appeal to address: (1) whether defendants' home is a "modular home" as defined by Timber Ridge Bay's "Declaration of Restrictions, Covenants and Conditions"; and (2) if so, whether the violation was a technical violation that did not cause substantial injury, Cooper v. Kovan, 349 Mich 520, 530 (1957).

March 7 morning session

- People v. Swilley

Defendant, a juvenile, and his two adult co-defendants were charged with multiple felonies, including first-degree murder and conspiracy to commit first-degree murder for their alleged involvement in a shooting from a vehicle that resulted in one death. At the joint jury trial, the trial judge extensively questioned certain prosecution witnesses. The jury convicted defendant of first-degree murder, conspiracy to commit first-degree murder, and other felonies. On appeal, defendant argued that the judge's questioning of witnesses pierced the veil of judicial impartiality.

The Court of Appeals affirmed defendant's convictions, holding that, although the judge's questioning of two witnesses may have unintentionally exhibited some doubt as to their credibility, the totality of the circumstances did not lead to the conclusion that defendant was deprived of a fair trial.

The Supreme Court has ordered oral argument on defendant's application for leave to appeal to address whether it is reasonably likely that the trial judge's questioning of witnesses improperly influenced the jury by creating the appearance of advocacy or partiality against a party. See People v. Stevens, 498 Mich 162 (2015).

- Stenzel v. Best Buy Co, Inc.

Plaintiff purchased a Samsung refrigerator from defendant Best Buy, which handled the installation. Within days, the refrigerator leaked. While cleaning up, plaintiff fell and was injured. She sued Best Buy, which filed a notice of nonparty fault, naming Samsung. Best Buy moved for summary disposition, arguing that plaintiff could not establish causation. The trial court granted the motion. Plaintiff amended her complaint pursuant to MCR 2.112(K) to name Samsung. The trial court granted summary disposition to Samsung because plaintiff did not file a motion to amend before amending her complaint and also due to lack of causation. Plaintiff appealed.

In a published opinion, the Court of Appeals reversed Best Buy's dismissal on causation grounds. The court also would have reversed Samsung's dismissal, but it concluded that it was required to affirm by Williams v. Arbor Home, Inc, 254 Mich App 439 (2002). The court declared a conflict with Williams and a special conflict resolution panel was convened. In a published opinion, the special panel held that Williams was wrongly decided. The four judges in the majority concluded that there was a conflict between MCL 600.2957(2) and MCR 2.112(K), and that the court rule prevailed because the conflict related to a procedural question.

As a result, it was not necessary for plaintiff to file a motion before amending her complaint because MCR 2.112(K) has no such requirement. The majority also held that the relation-back provision of MCL 600.2957(2) applied. The three judges who concurred did not find a conflict between the statute and the court rule but agreed that it was unnecessary for plaintiff to file a motion to amend. The concurring judges also agreed that the relation-back rule applied. The special panel reversed the trial court's order granting summary disposition to Samsung, and remanded the case for further proceedings.

The Supreme Court has granted Samsung's application for leave to appeal to address: (1) whether the Court of Appeals special panel correctly held that there is a conflict between MCL 600.2957(2) and MCR 2.112(K); (2) whether, in any event, a party may amend a complaint upon receipt of a notice of nonparty fault without first filing a motion to amend; and (3) if so, whether the amendment relates back to the date the complaint was filed.

- Michigan Ass'n of Home Builders v. City of Troy

In 2010, defendant city privatized its building department by contracting with SAFEbuilt of Michigan, Inc., which agreed to assume the duties and perform the services of the building department. Thereafter, the fees collected by the building department generated surpluses, which defendant transferred to its general fund to make up for prior years of deficits when the general fund was used to maintain building department operations.

Plaintiffs are associations representing builders, contractors, and plumbers who filed this lawsuit, alleging that defendant violated the Construction Code Act (CCA), MCL 125.1501 et seq., and the Headlee Amendment, Const 1963, art 9, § 31, with respect to its practice of using fee surpluses from the building department to augment its general fund. The circuit court granted summary disposition in favor of defendant.

The Court of Appeals affirmed in a split unpublished opinion. The Supreme Court has directed oral argument on plaintiffs' application for leave to appeal to address: (1) whether the creation of a fee surplus generated by an enforcing agency under the CCA, and the use of that surplus to pay for shortfalls in previous years by transfer of the surplus into the city's general fund, violates the constraints of § 22 of the CCA that fees be reasonable, be intended to bear a reasonable relation to the cost of acts and services provided by the enforcing agency, and be used only for the operation of the enforcing agency or the construction board of appeals, or both; (2) if so, whether plaintiffs have a private cause of action against a governmental subdivision for enforcement of the CCA, MCL 125.1508b(1); (3) whether plaintiffs are "taxpayers" that have standing to file suit pursuant to the Headlee Amendment, Const 1963, art 9, § 32; and (4) if so, whether the challenged fees violate the Headlee Amendment, Const 1963, art 9, § 31.

Published: Thu, Feb 28, 2019