COA holds that an affidavit of merit in a medical malpractice action is proper where it was reasonable to believe an expert is qualified to testify at trial at the time the affidavit was signed

In Jones v. Botsford Continuing Care Corp., No. 317573, the Court of Appeals held that a plaintiff in a medical malpractice action need only show that it reasonably believes an expert who signs an affidavit of merit is qualified to testify at trial and not that the expert is actually qualified to testify.  Therefore, the Court of Appeals reversed the trial court’s order granting defendants’ motion for summary disposition because it was reasonable for plaintiff to believe that its affiants were qualified to testify in this case.   Read More

COA considers alternative arguments in Galien Township school funding case and upholds its earlier decision

The Michigan Court of Appeals in Galien Township School District v. Department of Education and Superintendent of Public Instruction, No. 317739 considered Galien Township's alternative arguments that it did not consider in its original opinion decided in favor of the Michigan Board of Education. The Michigan Supreme Court remanded the case to the COA to decide the issues of procedural due process violations and violation of the best evidence requirement of MCL 388.1614. Read More

COA concludes that member oppression claim was timely as relevant statute operated as statute of limitations and not statute of repose

In Frank v. Linkner, No . 318751, the Court of Appeals considered the timeliness of a member oppression claim arising out of the sale of a business whereby plaintiffs claim they were improperly denied participation in the proceeds of the sale.  The trial court concluded the action was time barred because the relevant statute, MCL 450.4515, acted as a three-year statute of repose, and the alleged wrongful acts, which allegedly divested the plaintiffs of their ability to participate in the distribution of proceeds in a subsequent sale, occurred more than three years before the suit was filed.  The Court of Appeals disagreed, looking at the plain text of the statute to conclude that it was, in fact, a statute of limitations and that the three-year period did not begin to run until the plaintiffs' claims accrued.  In this case, the claims did not accrue until the plaintiffs suffered damages, and the damages in this case were the inability to share in the proceeds from the sale of the business.  Thus, the limitations period commenced in conjunction with the sale of the business, which was within three years of the filing of the lawsuit.  The Court of Appeals reversed and remanded the case for further proceedings. Read More

COA holds that defendant must register under SORA even where conviction for unlawful imprisonment of minor involved no sexual contact

In People v. Bosca, No. 317633, the Michigan Court of Appeals held that the trial court did not err in requiring the defendant to register as a sex offender, where the defendant was convicted of unlawful imprisonment of a minor in violation of MCL 750.349b.  The Court determined that the required registration was constitutional and was proper under the 2011 version of SORA applicable in this case.  Even though the underlying conduct was not of a sexual nature, registration is required because unlawful imprisonment involved a victim under the age of 18 is a listed offense Read More

MSC grants mini-oral argument to consider whether termination of parental rights was in best interests of child

The Michigan Supreme Court has granted mini-oral argument in In re McCarthy, 151039, to hear whether termination of parental rights was in the best interests of a child. The Court directed the parties to focus on the effect given to the child’s age, her expressed desire for her mother to retain parental rights, and the lawyer-guardian ad litem’s concurrence that parental rights should not be terminated. Read More

COA adopts SCOTUS’ functionality approach to determine whether a legislator’s acts are immune from civil liability

The Court of Appeals adopted the U.S. Supreme Court’s functionality approach to determine whether a public official’s decisions should be granted immunity from suit under Michigan’s Speech and Debate Clause in Cotton v. Banks, No. 319001. With the new approach in mind, the Court of Appeals affirmed the trial court’s order denying Banks’ motion for summary disposition because he was not immune from suit when he terminated one of his personnel. Read More

COA: dismissal of medical malpractice action against doctor without prejudice does not bar an action against doctor’s principals

The Court of Appeals held in Estate of Grimmer v. Lee, No. 318046, that a plaintiff may continue with a medical malpractice action against a doctor’s professional corporations on the basis of vicarious liability even when the doctor has been dismissed from the case without prejudice. Therefore, the Court of Appeals reversed the trial court’s order granting summary disposition in favor of defendant professional corporations.
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COA holds Fraternal Order of Police Associates and Olympia Entertainment are not liable for homicides after serving alcohol to murderer

The Michigan Court of Appeals in the consolidated cases of Auto Owners Insurance Co. v Olympia Entertainment Inc., No. 315891 and Seils v Fraternal Order of Police Associates, Nos. 315901 & 316511, held that (i) an exclusion in an insurance policy for a company engaging in the business of alcohol did not apply to the Fraternal Order of Police Associates (“FOPA”) as the organization did not engage in alcohol sales on a continuous, ongoing basis; (ii) serving alcohol to an intoxicated individual is not the proximate cause of that individual committing a violent intentional act; (iii) the Michigan Dramshop Act does not permit a claim for vicarious liability to an entity that does not hold the liquor license; and (iv) a courtesy copy of a notice sent to another party is not sufficient for notice under the Dramshop Act. Read More

MSC will consider whether trial court erred by admitting entire recording of interrogation and testimony regarding sexual abuse accommodation syndrome

In People v. Tomasik, No. 149371, the Michigan Supreme Court granted leave to appeal to consider whether the trial court erred by (1) admitting a recording of the entire police interrogation; (2) admitting expert testimony regarding child sexual abuse accommodation syndrome under MRE 702; and (3) denying the defendant’s motion for a new trial based on newly disclosed impeachment evidence from a 2003 report concluding that the abuse victim tended to be dishonest.
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MSC directs COA to decide whether state’s failure to execute probation violation warrant, when it knew defendant was serving prison sentence out-of-state, entitles defendant to relief

In People v. Cowan, No. 149595, the Michigan Supreme Court remanded to the Court of Appeals, directing it to consider whether the defendant is entitled to relief because the State of Michigan, whether deliberately or negligently, failed to execute a warrant for a probation violation while it knew that the defendant was serving a prison sentence in Indiana. The Court directed the Court of Appeals’ attention to People v. Ortman, 209 Mich. App. 251 (1995), in which it held the warrant should have been waived when the state waited almost two years to execute the warrant, and People v. Diamond, 59 Mich. App. 581 (1975), in which the Court of Appeals held that probation authorities must use due diligence in executing a probation revocation warrant once it has issued. The Court directed the Court of Appeals to compare the Michigan cases with Moody v. Daggett, 429 U.S. 78 (1976), in which the U.S. Supreme Court held that a prisoner was not denied due process when authorities waited to execute a parole violation warrant until he was done serving prison time for another crime.   
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