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A Better Partnership
April 25, 2009

MSC Order List: April 24, 2009

On Friday, April 24, 2009, the Michigan Supreme Court denied leave to appeal in five cases, denied a motion to waive fees in another case, and ordered oral argument on whether to grant leave the five cases discussed below. In each case, the Court gave the parties 42 days to submit supplemental briefing, all but guaranteeing that these arguments will occur in the Court's 2009-2010 term.

Finally, the Court denied leave to appeal in VanSlembrouck v. Halperin, No. 135893, after hearing oral argument on whether to grant leave to appeal. In VanSlembrouck, a medical malpractice action, the parties addressed whether medical malpractice plaintiffs relying on the 10-years-of-age provision in MCL ' 600.5851(7) are entitled to the benefit of the notice-of-intent tolling provision in MCL ' 600.5856(c). The parties focused their arguments on whether MCL ' 600.5851(7) is a savings provision, rather than a statute limitation. The Court's denial of leave affirms the Court of Appeals' decision that the plaintiffs are entitled to benefit from the tolling provision in MCL ' 600.5856(c). Justices Corrigan, Markman, and Young dissented. This decision may be a harbinger of a relaxation of the Court's jurisprudence strictly applying statutes of limitation. Our earlier post on VanSlembrouck is here.

In People v. Plunkett, No. 138123, the Court ordered oral argument on the application for leave, instructing the parties to address whether MCL ' 750.317a applies. The statute authorizes a life sentence for delivering heroin to a person who later dies from using that heroin. The defendant is alleged to have aided and abetted delivery or constructively delivered the heroin at issue by providing the funds for the heroin's purchase and taking the buyer to meet with a drug dealer. The Court of Appeals, in a 2-1 decision, concluded that the defendants' conduct did not fall within the statute. Judge Schuette dissented, indicating that he believed there was sufficient evidence to prosecute the defendant under an aiding and abetting theory. The Court of Appeals' decision is here. Judge Schuette's dissent is here. Disclaimer: Former Court of Appeals Judge Schuette is now an attorney with Warner Norcross & Judd LLP.

In People v. Tennyson, No. 137755, the Michigan Supreme Court order a MOA. The parties were instructed to address "whether evidence that a child was present in the home when the defendant was in possession of concealed drugs and weapons is legally sufficient to support the defendant’s conviction for doing an act that tended to cause a child to become neglected or delinquent so as to tend to come under the jurisdiction of the juvenile division of the probate court" i.e. contributing to the delinquency of a minor. The Court of Appeals affirmed the defendant's conviction for contributing to the delinquency of a minor. The Court of Appeals per curiam, unpublished decision is here.

In Bonkowski v. Allstate Insurance Company, No. 137672, the Michigan Supreme Court ordered argument on whether to grant leave to appeal. The parties were instructed to address "whether 12 percent no-fault penalty interest under MCL ' 500.3142 ceases to accrue once the judgment is entered." The statute provides that interest accrues on overdue personal protection benefits at a rate of 12 percent per year. The Court of Appeals unanimously found that the 12 percent rate is a substantive element of damages, and as such only applies until judgment. After judgment, interest accrues at the post-judgment rate set by MCL ' 600.6013(8). The Court of Appeals' decision is here.

In People v. Warren, No. 137666, the Court ordered a MOA, requiring the parties to address "whether the trial court is obligated under the statutory sentencing guidelines to score all felonies or only the highest class felony." The Court of Appeals affirmed the trial court's decision to score only the highest class felony. The Court of Appeals' per curiam unpublished decision is here.

In Decosta v. Gossage, No. 137480, the Court ordered argument to determine whether to grant leave to appeal. Justice Young concurred, writing separately to ask the parties to address whether a plaintiff can send a notice of intent ("NOI") to file a claim to an address other than the defendant's last known business address, and still receive the benefit of NOI tolling in a medical malpractice action. Justice Young further asked the parties to address whether the plaintiff receives the benefit of NOI tolling, assuming that MCL ' 600.2919b's notice provisions do not apply to a professional corporation.

The Court also summarily partially vacated the Court of Appeals' analysis of standing in Unthank v. Wolfe, No. 138172, concluding that the Court of Appeals wrongly considered the validity of a guardianship order entered by the probate court in a separate proceeding. Justice Corrigan concurred, but wrote separate to exhort the circuit courts to follow the requirement of MCL ' 722.26b(5) requiring application to the Michigan Supreme Court by the circuit court to have the judge who determined guardianship assigned to hear later child custody actions. Justice Corrigan chastised the Wayne County Circuit and Probate courts for failing to comply with the caseflow management guidelines imposed by Administrative Order 2003-7. Justice Hathaway would have granted leave to appeal.

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