MICHIGAN APPELLATE DIGEST
DISCORD CASES
Pursuant to Administrative Orders 1990-6, 1994-4,
and 1996-4, and MCR 7.215(J)(1) -- formerly, MCR 7.215(I)(1) -- a published
decision of the Court of Appeals issued on or after November 1, 1990, is binding
on the Court of Appeals. A panel of the Court of Appeals which follows a prior
published opinion only because it is required to do so must so indicate in its
opinion. The disagreement may be resolved by a special panel. The following
issues have been subject to Administrative Order 1990-6, 1994-4, or 1996-4 or
MCR 7.215(J)(1).
The panel in this case was required to follow Rushton v Meijer, Inc (On Remand), 225 Mich App 150 (1997), and hold that an employer may not require its employees, as a condition of employment, to prospectively waive their right to pursue direct and immediate review of civil rights claims in a judicial forum through an agreement to arbitrate such claims. Rembert was vacated and submitted to a special panel, 226 Mich App 821, and on April 9, 1999, the special panel held that a pre-dispute agreement to arbitrate statutory civil rights claims is valid if the agreement does not waive substantive rights and remedies and the procedure established by the agreement is fair, 235 Mich App 118. Motions for rehearing were filed, and by order dated July 9, 1999, the decision was modified to adopt the prior opinion as to issues not submitted to the conflict panel; otherwise, rehearing was denied. Leave to appeal to the Supreme Court was denied on November 30, 1999.
The panel in this case was required to follow Rowe v Lowry, 186 Mich App 136 (1990), and hold that partial acceptances of mediation awards, separately evaluated as to claims and counterclaims, are impermissible. The plaintiff's bifurcated response was to be treated as a nonresponse. A petition to submit Fetz to a special panel was filed on April 22, 1991, and was denied on July 15, 1991. Application for leave to appeal to the Supreme Court was filed, and by order dated March 31, 1992, the Supreme Court vacated the Court of Appeals judgment and remanded the case to circuit court. On remand, the circuit court was to exercise its discretion regarding the appropriate remedy for the improper bifurcated response. The court could treat the response as a failure to file a response or as a rejection, or give the plaintiff another opportunity to file a proper response.
The panel in this case was required to follow Hyde v University of Michigan Regents, 226 Mich App 511 (1997), and hold that a plaintiff in an employment discrimination suit puts his mental condition in controversy for the purpose of discovery of his medical information by seeking recovery for anything beyond economic damages. An order denying submission of LeGendre to a special panel was entered on April 16, 1999.
The panel in this case was required to follow Employers Mutual Casualty Co v Petroleum Equipment, Inc, 190 Mich App 57 (1991), and hold that an amended complaint which adds a new party does not relate back to the filing of the original complaint. A motion for rehearing was denied, and an order denying submission to a special panel was entered. An application for leave to appeal to the Supreme Court was denied on November 25, 1997, and reconsideration was denied on February 27, 1998.
The panel in this case was required to follow Richmond Township v Erbes, 195 Mich App 210 (1992), and hold that a motion is not a pleading within the meaning of the Court Rule pertaining to signature requirements, MCR 2.114(E). An application for leave to appeal to the Supreme Court was filed, and in lieu of granting leave to appeal, on October 19, 1993, the Supreme Court vacated Herrera and remanded to the Court of Appeals for reconsideration in light of Bechtold v Morris, 443 Mich 105 (1993). On remand, the Court of Appeals vacated the trial court's order for sanctions against the defendant on the basis that procedural due process and certain other considerations must be satisfied before the imposition of sanctions upon a pro se criminal defendant.
The panel in this case was required to follow Richmond Township v Erbes, 195 Mich App 210 (1992), and hold that a motion is not a pleading within the meaning of the Court Rule pertaining to signature requirements, MCR 2.114(E). Leave to appeal to the Supreme Court was initially granted, but the Supreme Court vacated the grant and denied leave to appeal on January 25, 1994, and denied reconsideration on March 18, 1994.
The panel in this case was required to follow Bush v Beemer, 224 Mich App 457 (1997), and hold that good cause sufficient to justify the issuance of a second summons requires a showing of due diligence in attempting to serve process during the period provided by the first summons, not diligence in matters logically preceding the decision to serve process. An order denying submission of Richards to a special panel was issued, 240 Mich App 801 (2000), and leave to appeal to the Supreme Court was denied on October 3, 2001.
The panel in this case was required to follow Howard v Canteen Corp, 192 Mich App 427 (1992), and hold that enhancement of attorney fees in a civil rights case is permitted in rare circumstances when the attorney's work is so superior that it far exceeds client expectations and normal levels of competence or when it is necessary to attract competent counsel. A motion for rehearing was denied on May 7, 1993. Leave to appeal to the Supreme Court was denied on February 23, 1994.
The panel in this case was required to follow Zoppi v Chrysler Corp, 206 Mich App 172 (1994), and hold that the Elliott-Larsen Civil Rights Act does not protect a worker from age discrimination on the basis that the worker is too young. Zanni was vacated and the case was submitted to a special panel, and the special panel held that the age discrimination prohibition of the ELCRA is not limited to the protection of older workers, but also applies to discrimination on the basis of youth. An application for leave to appeal to the Supreme Court was denied on September 26, 2000.
The panel in this case was required to follow Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464 (2002), lv den 468 Mich 884 (2003), and hold that the Elliott-Larsen Civil Rights Act does not impose liability for sexual harassment employment discrimination against an individual who is not the plaintiff's employer. An order was issued declining submission to a special panel, but the Supreme Court granted leave to appeal, and on June 1, 2005, it held that an individual may be liable for violation of the ELCRA.
The panel in this case was required to follow Cole v GMC, 236 Mich App 452 (1999), and hold that an employer implementing an affirmative action plan approved by the Michigan Civil Rights Commission is immune from liability for discrimination under the Elliott-Larsen Civil Rights Act. An order denying submission to a special panel was entered, but leave to appeal to the Supreme Court was granted, and on July 17, 2001, the Supreme Court held that implementation of an approved affirmative action plan insulates an employer from liability under the ELCRA but not for a constitutionally based claim.
The panel in this case is required to follow Rymar v Michigan Bell Telephone Co, 190 Mich App 504 (1991), and hold that, in determining whether an employee has the ability to perform the duties of his job, an employer is required by the Handicappers' Civil Rights Act to afford the employee a reasonable time in which to heal. An order vacating Lamoria and submitting it to a special panel was entered, and on January 29, 1999, the special panel held that an employer is not obliged to permit a disabled employee a reasonable time in which to heal. An application for leave to appeal to the Supreme Court was denied on September 29, 1999.
The panel in this case was required to follow Neal v Dep't of Corrections (On Rehearing), 232 Mich App 730 (1998), and hold that the operation of a prison is the provision of a public service under the Handicappers' Civil Rights Act, and thus that prisoners are subject to the protections of the act. An order vacating the opinion and submitting Doe to a special panel was issued, and the special panel held that the Elliott-Larsen Civil Rights Act and the Persons with Disabilities (nee Handicappers') Civil Rights Act apply to prisons and prisoners. An application for leave to appeal to the Supreme Court was filed, and on March 27, 2001, the Supreme Court retained jurisdiction but remanded to the special panel for consideration whether the plaintiffs' claims were barred by recent statutory amendments to the PWDCRA. On remand, the special panel held that the amendments did not apply retroactively to the plaintiffs' claims. The Supreme Court denied leave to appeal on July 30, 2002.
The panel in this case was required to follow Environair, Inc v Steelcase, Inc, 190 Mich App 289 (1991), and hold that a determination of damages based upon breach of an at-will contract would be founded upon speculation and thus that a claim based on an at-will contract may be for nominal damages only. The opinion was vacated in part and the case was submitted to a special panel. On September 8, 2005, the special panel concluded that, while claims for damages based on at-will contracts are generally speculative, in extraordinary circumstances a plaintiff might be able to present sufficient evidence of damages, and thus held that the assertion of a claim for other than nominal damages is not always precluded.
The panel in this case was required to follow Johnson v Wayne Co, 213 Mich App 143 (1995), and hold that a claim for deprivation of rights guaranteed by the Michigan Constitution may be asserted not only against the state but also against a municipality or a governmental employee. An order denying submission of Jones to a special panel was entered, and an application for leave to appeal to the Supreme Court was filed. In lieu of granting leave to appeal, on July 5, 2000, the Supreme Court issued an opinion in which it held that a claim for damages based upon a constitutional violation may be asserted against the state but not against municipalities or individuals.
The panel in this case was required to follow Forton v Laszar, 239 Mich App 711 (2000), and hold that construction contractors are subject to claims under the Consumer Protection Act. Submission to a special panel was denied on June 22, 2005, and reconsideration was denied on September 13, 2005. The Forton holding was overruled in Liss v Lewiston-Richards, Inc, 478 Mich 203 (2007), and Hartman was vacated in part and remanded. 478 Mich 891 (2007).
The panel in this case was required to follow Baks v Moroun, 227 Mich App 472 (1998), and hold that the shareholder-suit provisions of the Business Corporation Act do not establish a cause of action independent of the provisions of the BCA establishing the duties of corporate officers and directors, and thus that the three-year limitations period applicable to suits against corporate officers and directors applies to all shareholder suits. Estes was vacated in part and submitted to a special panel, and on March 5, 2002, the special panel held that the BCA establishes a direct cause of action independent of the common law on behalf of shareholders for fraudulent, unfair or oppressive conduct of the directors or others in control of a close corporation and that a claim based upon that cause is subject to a six-year limitations period.
The panel in this case was required to follow McCahan v Brennan, 291 Mich App 430; 804 NW2d 906 (2011), lv den 492 Mich 730 (2012), and hold that strict compliance with the notice requirements of the Court of Claims act is required to assert a claim for personal injury or property damage in the Court of Claims, regardless whether a failure of notice resulted in prejudice to the state. Submission to a special panel was denied on March 14, 2011.
The panel in this case was required to follow People v Fish, 207 Mich App 486 (1994), and hold that enhancement of an OUIL conviction with prior offenses requires submission of proof of the prior offenses to the factfinder for determination as an element of the pending charge. The Weatherholt opinion was vacated and the case submitted to a special panel, 209 Mich App 801, and on December 12, 1995, the special panel held that the prior convictions provisions of the drunk driving laws are sentence enhancement provisions which do not require that the prior convictions be proved as elements of the offense; rather, prior convictions may be established during sentencing proceedings. 214 Mich App 507.
The panel in this case was required to follow People v Lino, 190 Mich App 715 (1991), and hold that gross indecency consists of manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public. The Brashier panel would have adhered to the common sense of society standard instead. A petition to submit Brashier to a special panel was granted, and the panel issued its decision on December 29, 1992. The special Brashier panel rejected Lino, and adopted the common sense of society standard as the definition of gross indecency. Leave to appeal to the Supreme Court was granted, and on December 28, 1994, the Supreme Court reversed Lino and reversed Brashier in part, and held that the determination of what conduct constitutes gross indecency may not be left to the jury's assessment of the common sense of the community.
The panel in this case was required to follow People v Tims, 202 Mich App 335 (1993), and hold that a defendant must be the cause of death, and not merely a cause of death, to convict the defendant of manslaughter with a motor vehicle. Submission to a special panel was denied on September 21, 1994. 207 Mich App 801. An application for leave to appeal to the Supreme Court was filed, and on December 28, 1994, the Supreme Court held the application in abeyance pending decisions in Tims (#98192) and People v Kneip (#99174). On July 5, 1995, the Supreme Court held that proof of proximate cause in a criminal negligence case requires proof that the defendant was a cause, and not the cause, of the victim's death. People v Tims, 449 Mich 83 (1995). However, on October 31, 1995, the Supreme Court again held the Stewart application in abeyance pending a decision in People v Doyle, 203 Mich App 294 (1994). Doyle was decided on April 2, 1996, and held that the Supreme Court decision which interpreted the habitual offender statute to apply to OUIL-third offenders could be retroactively applied without violating ex post facto protections. On June 28, 1996, the Supreme Court remanded Stewart to the Court of Appeals for reconsideration in light of Tims. On remand, the Court of Appeals concluded that the trial court had properly instructed the jury on the issue of proximate cause and thus that the defendant was properly convicted of manslaughter with a motor vehicle. People v Stewart (On Remand), 219 Mich App 38 (1996). An application for leave to appeal to the Supreme Court was denied on September 9, 1997. 456 Mich 865.
The panel in this case was required to follow People v Tims, 202 Mich App 335 (1993), and hold that a defendant's negligence must the cause of death, and not merely a cause of death, to convict the defendant of vehicular homicide. Leave to appeal was granted, and in consolidation with Tims the Supreme Court held that proof of proximate cause in a criminal negligence case requires proof that the defendant was a cause, and not the cause, of the victim's death. People v Tims, 449 Mich 83 (1995).
The panel in this case was required to follow People v Gaines, 223 Mich App 230 (1997), and hold that, in proving a charge of assault on an employee of a place of confinement, a prosecutor must establish the lawfulness of the confinement by evidence beyond the fact of the confinement itself. An order vacating Neal and submitting it to a special panel was issued, and the special panel held that the lawfulness of the confinement may be inferred from the fact of confinement in a state prison and need not be separately proven. 233 Mich App 649 (1999).
The panel in this case was required to follow Bonfiglio v Pring, 202 Mich App 61 (1993), and hold that the existence of contingencies in a consent award of alimony does not automatically render the award one of modifiable periodic alimony. was vacated and submitted to a special panel, 237 Mich App 805, and on June 27, 2000, the special panel held that the modifiability of an alimony settlement depends not on the existence of contingencies or other factors traditionally used to distinguish periodic alimony from alimony in gross but on the parties' agreement to waive modification; to be enforceable, an agreement to waive the right to petition for modification of alimony must clearly set forth that the parties forgo their right and agree that the alimony provision is final, binding and nonmodifiable.
The panel in this case was required to follow Hilliard v Schmidt, 231 Mich App 316 (1998), and hold that a court adjudicating a child custody dispute may conduct an in camera interview with the child to ascertain not only the child's preference as to custody but other information relevant to the determination of the child's best interest. Molloy was vacated in part and submitted to a special panel, 243 Mich App 801, and on September 4, 2001, the special panel held that questioning in an in camera interview is limited to determining the child's preference. The special panel also ruled that a record of an in camera interview must be made and placed under seal for appellate review, and if the information obtained in the interview affects other factors than the child's preference and the information affects the outcome of the case, the record must be made available to the parties. An application for leave to appeal to the Supreme Court was granted on January 23, 2002 (#120096), and by order dated April 29, 2002, the opinion of the Court of Appeals was affirmed in part but vacated in part to the extent that it held that in camera interviews were required to be recorded.
The panel in this case was required to follow Crego v Coleman, 201 Mich App 443 (1993), and hold that the statute which precludes modification of a child support agreement reached in settlement of a paternity action does not violate the equal protection rights of the illegitimate child. An order vacating Crego and submitting it to a special panel was issued, 226 Mich App 815, and on October 23, 1998, the special panel held that the statute precluding modification of such a settlement violated the equal protection rights of the child. Leave to appeal to the Supreme Court was granted, and on July 31, 2000, the Supreme Court held that valid considerations supported the nonmodification of agreements for the support for illegitimate children whose paternity has not been established, and thus that the statute precluding modification of such agreements did not violate equal protection rights. 463 Mich 248 (2000).
The panel in this case was required to follow Thompson v Merritt, 192 Mich App 412; 481 NW2d 735 (1991), and hold that the confinement support provision of the Paternity Act, which requires only the father to contribute to the expenses of confinement, does not create a classification based on gender and consequently does not violate constitutional equal protection requirements. On October 29, 2002, the opinion was vacated in part and submitted to a special panel, and on August 28, 2003, in plurality opinions, the special panel held that the imposition of confinement expenses solely on the father does not violate equal protection guarantees.
The panel in this case was required to follow Postema v Postema, 189 Mich App 89 (1991), and hold that the trial court erred in awarding one spouse a proportion of the value of the other spouse's advanced degree as compensation. The nonstudent spouse's claim is equitable and should be compensated by restitution for efforts made rather than by a share of the value of the degree.
The panel in this case was required to follow Booth v Booth, 194 Mich App 284 (1992), and hold that pension benefits accrued by a spouse before the parties' marriage may be subject to property division during a divorce.
The panel in this case was required to follow Burkey v Burkey (On Rehearing), 189 Mich App 72 (1991), and hold that the standard of review of a trial court's division of martial assets is de novo, but that an appellate court may not reverse unless it is convinced it would have reached a different result in the trial court's place. This panel agrees with the dissent in Burkey that review should be for abuse of discretion. Application for leave to appeal to the Supreme Court was filed, and on April 24, 1992, the Supreme Court ordered proceedings held in abeyance pending resolution of Sparks v Sparks (CA No. 110535; S Ct No. 90300). The decision in Sparks was released on June 30, 1992, and held that appellate review of findings of fact is for clear error, and deference must be given to the trial court findings. Sparks further held that the trial court's dispositional ruling should be affirmed unless the appellate court is left with a firm conviction that the disposition was inequitable. Leave to appeal to the Supreme Court was denied on December 2, 1992. 440 Mich 914.
The panel in this case was required to follow People v Passeno, 195 Mich App 91 (1992), and hold that the appropriate remedy when a defendant is convicted of both felony murder and premeditated murder arising from the same homicide is to vacate the felony murder conviction. The Bigelow panel would have preserved the felony murder conviction as an alternative theory in support of a single conviction of first-degree murder. An order vacating Bigelow and submitting it to a special panel was issued, and the special panel held that the appropriate remedy is to specify that the defendant's conviction is for one count and one sentence of first-degree murder supported by two theories. 229 Mich App 218 (1998). A motion for rehearing was denied on June 11, 1998, and an application for leave to appeal to the Supreme Court was denied on November 6, 1998.
The panel in this case was required to follow Hoover Corners v Conklin, 230 Mich App 567; 584 NW2d 385 (1998), and permit a dramshop defendant to present evidence to establish its factual liability in a dramshop action for the purpose of establishing its right to indemnification from the visibly intoxicated person for damages it was required to pay to the injured party. Submission of Johnson to a special panel was denied on January 12, 2001.
The panel in this case was required to follow Brown v JoJo-Ab, Inc, 191 Mich App 208 (1991), and hold that a dramshop suit may be precluded when a plaintiff does not give notice to the defendants within 120 days of entering an attorney-client relationship, even when no prejudice has been shown. A petition to invoke a conflict panel was filed on January 21, 1993, but rejected as untimely. A delayed application for leave to appeal to the Supreme Court was denied on June 25, 1993.
The panel in this case was required to follow Bloomfield Twp v Oakland County Clerk, 253 Mich App 1 (2002), and hold that a petition seeking referendum need only be in substantial conformance with the requirements as to form. Submission to a special panel was denied on June 14, 2012. On August 3, 2012, the Supreme Court reversed, concluding that substantial compliance with the statutory standards for the form of a petition for referendum was not sufficient.
The panel in this case was required to follow Washington Mutual Bank v Shorebank Corp, 267 Mich App 111 (2005), and hold that a mortgagee whose loan proceeds are used to retire a prior mortgage cannot obtain priority status for its own mortgage through equitable subrogation. The opinion was vacated in part and the case submitted to a special panel, and on November 28, 2006, the special panel held that, in the absence of a preexisting interest in the property, a mortgagee which loans funds which are used to pay a prior mortgagee is a volunteer and acquires no priority through equitable subrogation over any intervening mortgagees. An application for leave to appeal to the Supreme Court was denied on November 21, 2007.
The panel in this case was required to follow Barnell v Taubman Co, 203 Mich App 110 (1993), and hold that resignation from one position and relocation of family to assume a new job are customary and necessary incidents of changing jobs and are not consideration sufficient to support a claim of promissory estoppel in a wrongful discharge case. An order denying submission of Meerman to a special panel was entered on June 7, 1994, and an application for leave to appeal to the Supreme Court was denied on May 2, 1995.
The panel in this case was required to follow People v Hughey, 186 Mich App 585 (1990), and hold that the corpus delicti of felony murder is constituted only of the death of the victim and that some criminal agency was the cause, and thus that evidence of the underlying felony independent of the defendant's confession need not be presented. A petition to submit Emerson to a special panel was denied on May 19, 1994. An application for leave to appeal to the Supreme Court was denied on May 16, 1995.
The panel in this case was required to follow People v Newcomb, 190 Mich App 424 (1992), and hold that testimony regarding another's out-of-court identification is not hearsay and is admissible within the discretion of the trial court. A petition to submit Malone to a special panel was denied on June 2, 1992. Application for leave to appeal to the Supreme Court was granted, and on June 14, 1994, the Supreme Court held that a third party may testify to a prior statement of identification. 445 Mich 369 (1994).
The panel in this case was required to follow Sumner v GMC, 212 Mich App 694 (1995), and hold that videotapes of the defendant's simulated collision tests were not admissible because they were used to prove an important specific factual question at issue. An order vacating Lopez and submitting it to a special panel was issued, 219 Mich App 801, and the special panel overruled Sumner to the extent it established an evidentiary rule concerning the introduction of demonstrative evidence different than in Smith v Grange Mutual Fire Ins Co, 234 Mich 119 (1926), which held that demonstrative evidence is admissible if it bears substantial similarity to an issue of fact involved in the trial. 224 Mich App 618 (1997). Leave to appeal Lopez to the Supreme Court was denied on July 28, 1998. 458 Mich 868.
The panel in this case was required to follow Carson, Fischer, Potts & Hyman v Hyman, 220 Mich App 116 (1996), and hold that a trial court is without authority to appoint a special master to preside over a case pending before the court. An order denying submission to a special panel was denied, 242 Mich App 801 (2000), and an application for leave to appeal to the Supreme Court was dismissed based upon lack of jurisdiction on September 25, 2001.
The panel in this case was required to follow Oakland County Treasurer v Title Office, Inc, 245 Mich App 196 (2001), and hold that electronic copies of property tax records are not subject to the fees provisions of the county treasurer's records fees act and thus are subject to the limitations on fees for the provision of copies set forth in the Freedom of Information Act. Submission to a special panel was declined, 249 Mich App 805 (2002), but leave to appeal to the Supreme Court was granted, and on March 9, 2004, the Supreme Court overruled Title Office, and held that electronic copies of property tax records are subject to the fee provisions of the county treasurer's records fees act.
The panel in this case was required to follow Listanski v Canton Township, 206 Mich App 356 (1994), and hold that townships have no jurisdiction over the sidewalks adjacent to county roads and thus are not liable for injuries incurred due to defective maintenance of the sidewalks. An order vacating Moceri and submitting it to a special panel was issued, and on April 21, 1995, the special panel held in Williams v Redford Township, 210 Mich App 60 (1995), that a township is responsible for the maintenance of sidewalks within its jurisdiction, including sidewalks adjacent to county or state roads. A motion for rehearing of Williams was denied, but on December 28, 1995, the Supreme Court granted leave to appeal in Moceri, Williams, and Listanski. On July 30, 1996, the Supreme Court held that a township is responsible for the maintenance of sidewalks in its jurisdiction, including sidewalks adjacent to county or state roads. Listanski v Canton Twp, 452 Mich 678 (1996). A motion for rehearing was denied on September 17, 1996.
The panel in this case was required to follow Listanski v Canton Township, 206 Mich App 356 (1994), and hold that townships have no jurisdiction over the sidewalks adjacent to county roads and thus are not liable for injuries incurred due to defective maintenance of the sidewalks. An order vacating Williams and submitting it to a special panel was issued, and on April 21, 1995, the special panel held that a township is responsible for the maintenance of sidewalks within its jurisdiction, including sidewalks adjacent to county or state roads. 210 Mich App 60 (1995). A motion for rehearing was denied on July 26, 1995, and an application for leave to appeal to the Supreme Court was granted. On July 30, 1996, the Supreme Court held that a township is responsible for the maintenance of sidewalks in its jurisdiction, including sidewalks adjacent to county or state roads. Listanski v Canton Twp, 452 Mich 678 (1996). A motion for rehearing was denied on September 17, 1996.
The panel in this case was required to follow Pick v Gratiot Co Rd Comm, 203 Mich App 138 (1993), and hold that a governmental agency has no duty to erect signs or warning devices pertaining to a roadway unless they are located on the improved portion of the road. An order denying submission of Colovos to a special panel was entered on June 20, 1994. Applications for leave to appeal and to cross-appeal were filed, and the Supreme Court affirmed by order on September 13, 1995, for the reason that the alleged inadequacy of the sign was not a proximate cause of the accident. 450 Mich 861 (1995).
The panel in this case was required to follow Ridley v Detroit (On Remand), 246 Mich App 687 (2001), and hold that streetlights are subject to the highway exception to governmental immunity. On February 8, 2002, the Weaver opinion was vacated and the case submitted to a special panel, and on July 16, 2002, the special panel held that a streetlight pole was not a part of the highway for the purpose of the highway exception. Leave to appeal to the Supreme Court was denied on March 11, 2003.
The panel in this case was required to follow Marchyok v Ann Arbor, 260 Mich App 684 (2004), and hold that a municipality is immune from liability under the highway exception to the governmental immunity act for injuries caused by defective traffic control devices. On May 26, 2004, the Johnson-McIntosh opinion was vacated and the case was submitted to a special panel, and on May 5, 2005, the special panel held that no governmental entity, including a municipality, is subject to liability for the failure to maintain traffic control devices.
The panel in this case was required to follow Grounds v Washtenaw County Road Commission, 204 Mich App 453 (1994), and hold that a temporary closing of a public roadway renders it no longer open to the public and thus not subject to the highway exception to governmental immunity. An order declining to submit the case to a special panel was issued, and an application for leave to appeal to the Supreme Court was denied on March 12, 2002.
The panel in this case was required to follow Sekulov v City of Warren, 251 Mich App 333 (2002), and hold that the decision excluding traffic control devices from the scope of the highway exception to governmental immunity applied prospectively. Adams was vacated and the case submitted to a special panel, and on October 11, 2002, the special panel overruled Sekulov and held that the decision excluding traffic control devices from the scope of the highway exception applied retroactively. Leave to appeal to the Supreme Court was denied on March 11, 2003.
The panel in this case was required to follow Wesche v Mecosta County Rd Comm, 267 Mich App 274 (2005), and hold that damages for loss of consortium are not damages for personal injury or property damage which may be recovered under the motor vehicle exception to the governmental immunity act. The opinion was vacated in part and submitted to a special panel, and on October 10, 2006, the special panel held that the damages recoverable under the governmental immunity act arising from bodily injury or property damage due to negligent operation of a motor vehicle are not restricted. A motion for reconsideration of the special panel's opinion was denied on November 20, 2006. Leave to appeal to the Supreme Court was granted, and on April 3, 2008, the Court in Wesche v Mecosta County Rd Comm, 480 Mich 75 (2008), held that loss of consortium is not included in the damages for bodily injury which are within the scope of the motor vehicle exception to governmental immunity.
The panel in this case was required to follow Li v Feldt (On Second Remand), 187 Mich App 475 (1991), and hold that public nuisance is an exception to governmental immunity.
The panel in this case was required to follow Li v Feldt (On Second Remand), 187 Mich App 475 (1991), and hold that public nuisance is an exception to governmental immunity.
The panel in this case was required to follow People v Cramer, 201 Mich App 590 (1993), and hold that the failure of a trial court to give a preliminary jury instruction on the defense of insanity is harmless error when the defendant did not object to the omission, the jury was properly instructed at the end of trial, and the defendant was found guilty and not guilty but mentally ill.
The panel in this case was required to follow Arco Industries Corp v American Motorist Insurance Co, 233 Mich App 143 (1998), and hold that the penalty interest imposed by the Uniform Trade Practices Act upon the late payment of insurance benefits does not apply to failures to pay benefits which were reasonably in dispute, regardless whether the claimants are the insureds or third-party claimants. The opinion was vacated in part and the case submitted to a special panel. On September 6, 2007, the special panel held that the award of penalty interest applies to a claim based on contract regardless whether the claim was reasonably in dispute; that a claim was reasonably in dispute affects the award of interest only as to payment to a third-party tort claimant. Leave to appeal to the Supreme Court was denied on January 30, 2008.
The panel in this case was required to follow Guiles v University of Michigan Bd of Regents, 193 Mich App 39 (1992), and hold that a provision in an employee benefit plan which requires satisfactory proof of loss does not convey sufficient discretion on the plan administrator to limit judicial review of a denial of benefits to whether the denial constituted an abuse of discretion. Submission to a special panel and reconsideration were denied, and an application for leave to appeal to the Supreme Court was filed, and on January 20, 2006, the Supreme Court, in an order considering the application for leave to appeal, vacated the Court of Appeals opinion based on the Court of Appeals' reliance on federal authority regarding state common law. 474 Mich 1010.
The panel in this case was required to follow Alber v State Farm Ins Co, 187 Mich App 557 (1991), and hold that an insurance clause excluding coverage for injuries caused intentionally by the insured requires that the insured have subjectively intended the injury. Application for leave to appeal to the Supreme Court was denied on January 12, 1993. 441 Mich 910.
The panel in this case was required to follow Butterworth Hospital v Farm Bureau Insurance Co, 225 Mich App 244 (1997), and hold that the exclusion from personal injury no fault insurance benefits for a person who unlawfully took the vehicle does not apply to a family member who took the vehicle without permission. Leave to appeal to the Supreme Court was denied on October 30, 2009. 485 Mich 935 (2009).
The panel in this case was required to follow State Farm Mutual Automobile Ins Co v Snappy Car Rental, Inc, 196 Mich App 143 (1992), and hold that a car rental company and its customer may agree that the permissive user of the vehicle provide his own primary residual liability insurance. A petition to submit Enterprise Leasing to a special panel was granted, and the panel issued its decision on June 20, 1994. The special panel adhered to the holding of Snappy Car Rental, 206 Mich App 7 (1994). An application for leave to appeal to the Supreme Court was filed, and on December 28, 1994, the Supreme Court held the application in abeyance pending decisions in Citizens Ins Co v Federated Mutual Ins Co (#97159) and Wisswell v Federated Mutual Ins Co (#98713). Citizens Ins Co and Wisswell were jointly decided on March 21, 1995. However, the issue in Citizens/Wisswell pertained to the validity of an insurer-imposed exclusion, and did not address the Snappy Car Rental issue except to state that Snappy Car Rental was factually distinguishable. A motion to amend the ground for appeal of Enterprise Leasing was filed on June 26, 1995, and on September 22, 1995, the Supreme Court granted leave to appeal. On June 25, 1996, the Supreme Court reversed State Farm v Enterprise Leasing and overruled Snappy Car; it held that the car rental companies, as owners of the vehicles, were obliged to provide primary residual liability insurance coverage for the use of the vehicles by any permissive users. State Farm v Enterprise Leasing Co, 452 Mich 25 (1996).
The panel in this case was required to follow Newton v State Police, 263 Mich App 251; 688 NW2d 94 (2004), and hold that a denial of summary disposition on the basis of governmental immunity because of the existence of material factual issues is not a final order subject to appeal by right to the Court of Appeals. Submission to a special panel was denied on October 20, 2004. 263 Mich App 801.
The panel in this case was required to follow Witt v C J Barrymore's, 195 Mich App 517 (1992), and hold that the doctrine of forum non conveniens is not applicable when a party is a resident of the forum state.
The panel in this case was required to follow Provider Creditors Committee v United American Health Care Corp, 275 Mich App 90; 738 NW2d 770 (2007), and hold that the rules for venue in tort claims do not apply unless the plaintiff is seeking damages for property damage, wrongful death, or personal injury. Angelucci was vacated in part and a special panel will be convened to resolve the conflict. ___ Mich App ___ (#305688, 12/20/12).
The panel in this case was required to follow Mink v Masters, 204 Mich App 242 (1994), and hold that when a plaintiff files a jury demand, the defendant need not do anything further to preserve his right to a jury trial. An order denying submission to a special panel was issued on October 10, 1995, and an application for leave to appeal to the Supreme Court was denied on July 29, 1996.
The panel in this case was required to follow People v Deans, 192 Mich App 327 (1991), and hold that the circuit court did not have jurisdiction over a charge of felony firearm filed against the juvenile defendant, although the court had jurisdiction over the other charges of murder and assault with intent to rob while armed which arose from the same incident. Circuit court jurisdiction over a juvenile defendant under the automatic waiver statute does not grant pendent jurisdiction to charges not enumerated under the statute. Application for leave to appeal to the Supreme Court was denied on January 29, 1993. 441 Mich 927.
The panel in this case was required to follow Guiles v University of Michigan Bd of Regents, 193 Mich App 39 (1992), and hold that a provision in an employee benefit plan which requires satisfactory proof of loss does not convey sufficient discretion on the plan administrator to limit judicial review of a denial of benefits to whether the denial constituted an abuse of discretion. On June 8, 2004, submission to a special panel and reconsideration were denied, and on January 20, 2006, the Supreme Court, in an order considering the application for leave to appeal, vacated the Court of Appeals opinion based on the Court of Appeals' reliance on federal authority regarding state common law. 474 Mich 1010.
The panel in this case was required to follow Murphy v Sears, Roebuck & Co, 190 Mich App 384 (1991), and hold that an employee may sue for wages based on a common law contract claim without first exhausting the administrative remedies available under the wage and fringe benefits act. A petition to submit Tracy to a special panel was denied on November 27, 1991.
The panel in this case was required to follow Republic Bank v Modular One LLC, 232 Mich App 444 (1998), and hold that an unlicensed builder may recover the value of work performed from a plaintiff who seeks equitable relief against the builder. An order denying submission of Stokes to a special panel was entered, 245 Mich App 801, but leave to appeal to the Supreme Court was granted, and on July 23, 2002, the Supreme Court overruled Republic Bank and held that equitable remedies are not available to permit a builder to avoid a statutory sanction. 466 Mich 660. The Supreme Court denied rehearing on September 17, 2002. 467 Mich 1202.
The panel in this case was required to follow Apsey v Memorial Hospital (On Reconsideration), 266 Mich App 666 (2005), rev'd 477 Mich 120 (2007), and hold that an affidavit submitted in support of a medical malpractice claim prepared outside of Michigan must be notarized by a person whose authority is certified by the clerk of a court of record in that location. On February 7, 2007, the opinion was vacated in part and the case submitted to a special panel. On May 1, 2007, Apsey was reversed by the Supreme Court, and on June 1, 2007, the submission to the special panel was negated and the case returned to the original panel for reconsideration in light of Apsey. On reconsideration, on July 26, 2007, the Kaczynski panel held that the plaintiff's affidavit of merit was sufficiently authenticated pursuant to the Uniform Recognition of Acknowledgments Act through notarization and a certificate attesting to the notary's standing.
The panel in this case was required to follow Apsey v Memorial Hospital (On Reconsideration), 266 Mich App 666 (2005), rev'd 477 Mich 120 (2007), and hold that an affidavit submitted in support of a medical malpractice claim prepared outside of Michigan must be notarized by a person whose authority is certified by the clerk of a court of record in that location. On February 23, 2007, the opinion was vacated and the case was submitted to a special panel. On May 1, 2007, Apsey was reversed by the Supreme Court, and on June 1, 2007, the submission to the special panel was negated and the case returned to the original panel for reconsideration in light of Apsey. On reconsideration, on July 3, 2007, the White panel held that the plaintiff's affidavit of merit was sufficiently authenticated pursuant to the Uniform Recognition of Acknowledgments Act.
The panel in this case was required to follow Zdrojewski v Murphy, 254 Mich App 50 (2002), and hold that the statutory limit on noneconomic damages in medical malpractice actions does not violate the constitutional guarantee to the right to a jury trial. Submission to a special panel was declined, and leave to appeal to the Supreme Court was denied on March 12, 2004.
The panel in this case was required to follow Fulton v Beaumont Hospital, 253 Mich App 70 (2002), lv den 469 Mich 957 (2003), and hold that a claim of medical malpractice based on a lost opportunity to survive or to achieve a better result requires a reduction in the opportunity of greater than fifty percent, rather than an initial opportunity which was greater than fifty percent. On July 13, 2004, submission to a special panel was declined, and on October 20, 2005, leave to appeal to the Supreme Court was denied.
The panel in this case was required to follow Verbrugghe v Select Specialty Hospital-Macomb County, Inc, 270 Mich App 383 (2006), and hold that the person who files notice of intent to commence a medical malpractice claim must be the same individual who files suit, and therefore that a successor personal representative may not rely on a notice filed by the predecessor personal representative of an estate. The opinion was vacated in part and the case submitted to a special panel, and on June 5, 2007, the special panel held that a notice of intent to commence a medical malpractice claim served by the personal representative of an estate constitutes notice on behalf of the estate on which a successor personal representative may rely. Leave to appeal to the Supreme Court was granted, and in an order on April 9, 2008, the Supreme Court affirmed the judgment of the special panel.
The panel in this case was required to follow Lindsley v Burke, 189 Mich App 700 (1991), and hold that the question whether a defendant was signaling his intention to waive his right of way or was signaling that all was clear ahead is a factual issue for the jury to decide. A petition to submit Kerr to a special panel was denied on December 16, 1991.
The panel in this case was required to follow Cooper v Wade, 218 Mich App 649 (1996), and hold that a police officer owes a duty to the passenger in a fleeing vehicle to refrain from chasing the vehicle at dangerous speeds. An order vacating Henderson and submitting it to a special panel was issued, and on August 1, 1997, the special panel decided that a police officer does not owe a duty to a voluntary passenger in a fleeing vehicle. In re Henderson Estate, 220 Mich App 801 (1997). Leave to appeal to the Supreme Court was granted, 458 Mich 860, and on July 18, 2000, the Supreme Court held that: (1) a police officer owes a duty to innocent persons injured during a police chase of a vehicle, but not to wrongdoers, whether passengers or bystanders, and that the motor vehicle exception to governmental immunity does not apply to injuries sustained by the passenger of a fleeing vehicle in the absence of a collision of the fleeing vehicle with the police vehicle or the forcing of the fleeing vehicle off the road or into another object by the police vehicle. Robinson v Detroit, 462 Mich 439 (2000).
The panel in this case was required to follow Harris-Fields v Syze (On Rehearing), 229 Mich App 195 (1998), and McCaw v T & L Operations, Inc (On Remand), 230 Mich App 413 (1998), and hold that the wanton, reckless or grossly negligent behavior exception to the fireman's rule does not apply unless the behavior was that of a third party unconnected to the situation. An order denying submission to a special panel was entered, 234 Mich App 801 (1999), and in lieu of granting leave to appeal, the Supreme Court reversed in an order, on the basis that the fireman's rule does not bar recovery if the injury was not the result of the conduct which caused the officer's presence at the scene.
The panel in this case was required to follow Ryder Truck Rental, Inc v Urbane, 228 Mich App 519 (1998), and hold that the volunteer doctrine applies to limit only vicarious and not direct liability for an injury to a volunteer. An order denying submission to a special panel was issued, 234 Mich App 801 (1999), but leave to appeal to the Supreme Court was granted, and the Supreme Court held that the volunteer doctrine no longer exists and does not preclude liability.
The panel in this case was required to follow People v Matelic, 249 Mich App 1; 641 NW2d 252 (2001), and hold that a trial court must conduct a hearing when determining whether a defendant is eligible for parole based upon his offer to cooperate with law enforcement. Cardenas was vacated and the case submitted to a special panel, and on September 7, 2004, the special panel overruled Matelic and held that no evidentiary hearing is required upon the mere representation of a defendant that he is willing to cooperate with law enforcement.
The panel in this case was required to follow People v Siebert, 201 Mich App 402 (1993), and hold that a court's failure to adhere to the sentence agreed upon by the parties as part of a plea agreement permits the prosecutor to withdraw from the agreement, despite the defendant's compliance with the remaining terms of the agreement, unless the defendant chooses to be resentenced in conformance with the agreement. Leave to appeal to the Supreme Court was granted, and on August 31, 1995, the Supreme Court affirmed both Jefferson and Siebert; it held that a court which intends to sentence a defendant to a lesser term than that agreed to by the parties must so inform the parties and must permit the prosecutor to withdraw from the plea agreement. People v Siebert, 450 Mich 500 (1995). A motion for rehearing was denied on October 10, 1995.
The panel in this case was required to follow People v Shuler, 188 Mich App 548 (1991), and hold that a prosecutor's agreement to recommend a sentence up to a certain term requires the prosecutor to recommend only that general range and prohibits him from advocating a sentence to a specific term within the general range.
The panel in this case was required to follow People v Ingram, 186 Mich App 615 (1990), and hold that the failure of the district court to advise the defendant of a number of rights during the defendant's guilty plea to a prior misdemeanor offense renders the prior conviction invalid for enhancement purposes, even though the guilty plea was voluntary and the defendant was represented by counsel. A petition to submit Turrell to a special panel was filed on May 16, 1991, and was denied on July 15, 1991. Application for leave to appeal to the Supreme Court was filed, and on August 5, 1991, the Supreme Court ordered proceedings held in abeyance pending its resolution of Ingram. The decision in Ingram was released on May 1, 1992, and held that the validity of a plea cannot be assailed in a collateral proceeding when the defendant was represented by counsel or intelligently waived his right to counsel in the former matter. 439 Mich 288.
The panel in this case was required to follow People v Vonins, 203 Mich App 173 (1993), and hold that a defendant who enters an unconditional guilty plea waives a claim of ineffective assistance of counsel based upon counsel's failure to inform the defendant of the prosecutor's violation of the 180-day rule. An order denying submission of Bordash to a special panel was entered on December 19, 1994. 208 Mich App 801.
The panel in this case was required to follow People v Vonins, 203 Mich App 173 (1993), and hold that a defendant who enters an unconditional guilty plea waives a claim of ineffective assistance of counsel based upon denial of the right to a speedy trial. An order denying submission to a special panel was entered on September 26, 1995, but a motion for rehearing was filed, and on February 23, 1996, rehearing was granted and the September 26, 1995, opinion was vacated. In a February 23, 1996, opinion, the Rose panel on rehearing concluded that the defendant had not been deprived of the effective assistance of counsel by the failure of counsel to pursue a speedy trial claim; the panel omitted discussion of the waiver issue.
The panel in this case was required to follow Adams v Perry Furniture Co (On Remand), 198 Mich App 1 (1993), lv den 445 Mich 900 (1994), and hold that a manufacturer of lighters has no duty to manufacture childproof lighters. Submission to a special panel was denied on June 7, 1995, 211 Mich App 801, and an application for leave to appeal to the Supreme Court was denied on June 28, 1996.
The panel in this case was required to follow Shimmons v Mortgage Corp of America, 206 Mich App 27 (1994), and hold that a claim of fraudulent concealment regarding the sale of real property may be established by showing that the vendor knew of a hidden defect but did not disclose it, regardless whether the defect was unreasonably dangerous or there was any form of misrepresentation. An order vacating M & D and submitting it to a special panel was issued, 226 Mich App 801, and on July 31, 1998, the special panel held that to establish a claim of silent fraud there must be evidence that the seller made some representation which was false; knowledge of a defect and a failure to disclose it is insufficient. 231 Mich App 22. Leave to appeal to the Supreme Court was denied on March 23, 1999.
The panel in this case was required to follow Alston v Northville Regional Psychiatric Hospital, 189 Mich App 257 (1991), and hold that an employee may be terminated from employment after 100 weeks' medical leave. Application for leave to appeal to the Supreme Court was denied on July 14, 1992. 440 Mich 869.
The panel in this case was required to follow Goodridge v Ypsilanti Township Bd, 209 Mich App 344 (1995), and hold that notice of a disciplinary charge against an officer or fireman must be given within ninety days of the date of the violation charged, regardless of the date of discovery of the violation. An order denying submission to a special panel was entered on May 26, 1995, and an application for leave to appeal to the Supreme Court was filed on June 14, 1995. On May 21, 1996, the Supreme Court reversed Goodridge and Command Officers, and held that the ninety-day notice period begins to run from the time that the employer learned, or reasonably should have learned, of the alleged misconduct. Goodridge v Ypsilanti Twp Bd, 451 Mich 446 (1996). On remand to the Court of Appeals, the Command Officers panel then held that the charges were timely filed. 219 Mich App 251 (1996).
The panel in this case was required to follow People v Haney, 192 Mich App 207 (1991), and hold that the test for whether an officer's stop of an automobile was unconstitutionally pretextual is determined by whether the officer had probable cause to believe that the defendant had committed the offense for which he was ostensibly stopped and whether he was authorized to arrest for that offense.
The panel in this case was required to follow People v Haney, 192 Mich App 207 (1991), and hold that the test for whether an officer's stop of an automobile was unconstitutionally pretextual is determined by whether the officer had probable cause to believe that the defendant had committed the offense for which he was ostensibly stopped and whether he was authorized to arrest for that offense.
The panel in this case was required to follow People v Hill, 192 Mich App 54 (1991), and hold that there is no good faith exception to the exclusion of evidence seized in violation of search and seizure guarantees under the Michigan Constitution. Submission to a special panel was declined, but an application for leave to appeal to the Supreme Court was granted, and the Supreme Court held that the pertinent violation was of a court rule and that a violation of the court rule does not authorize exclusion of the evidence. People v Hawkins, 468 Mich 488.
The panel in this case was required to follow People v Polidori, 190 Mich App 673 (1991), and hold that violation of the knock and announce statute requires suppression of the evidence. An application for leave to appeal to the Supreme Court was denied on June 21, 1994, 445 Mich 927, and a petition for certiorari to the United States Supreme Court was denied on May 30, 1995, 515 US 1102; 115 S Ct 2245; 132 L Ed 2d 254. However, in People v Stevens, 460 Mich 626 (1999), the Supreme Court ruled that violation of the knock and announce statute is subject to the inevitable discovery exception to suppression of the evidence, and that a search executed within the scope of a valid warrant would inevitably lead to the discovery of the evidence seized regardless of the statutory violation.
The panel in this case was required to follow People v Hill, 192 Mich App 54 (1991), and hold that the good faith exception to the exclusion of evidence due to a search conducted under an invalid warrant does not apply in Michigan. A petition to submit Paladino to a special panel was denied on July 21, 1994, and an application for leave to appeal to the Supreme Court was denied on January 5, 1995.
The panel in this case was required to follow People v Thomas, 223 Mich App 9 (1997), and hold that the correction of improperly imposed concurrent sentences to required consecutive sentences requires the court to conduct a resentencing proceeding rather than to merely correct the concurrent nature of the sentences. An order denying submission to a special panel was entered on July 22, 1997, 224 Mich App 801, and an application for leave to appeal to the Supreme Court was denied on January 21, 1998.
The panel in this case was required to follow People v Young, 206 Mich App 144 (1994), and hold that a person who commits a crime while on parole must serve the sentence imposed for the new offense consecutively to the maximum sentence imposed for the prior offense. On May 3, 1996, the Court of Appeals issued an order denying submission of Tolbert to a special panel, and an application for leave to appeal to the Supreme Court was filed on May 6, 1996. On May 29, 1996, the Supreme Court reversed Young, and held that a defendant is required to serve at least the combined minimums of the sentences plus whatever portion of the earlier sentence the Parole Board requires him to serve because he violated parole. Wayne Co Pros v Dep't of Corrections, 451 Mich 569 (1996). The application for leave to appeal Tolbert to the Supreme Court was dismissed on November 18, 1996. (#106233, 11/18/96).
The panel in this case was required to follow People v Brown, 186 Mich App 350 (1990), and People v Watts, 186 Mich App 686, lv den 439 Mich 863 (1991), and hold that time served while being held for an offense committed while the defendant was on parole must be credited against the sentence on the former offense for which the defendant was paroled, and not against the sentence imposed for the current offense.
The panel in this case was required to follow People v Johnson, 205 Mich App 144 (1994), and hold that a defendant being held on a parole detainer regarding an out-of-state sentence pending sentencing for a subsequent Michigan offense is entitled to sentence credit against the Michigan sentence. The opinion was vacated in part and the case was submitted to a special panel, 259 Mich App 801 (2003), and on January 22, 2004, an application for leave to appeal to the Supreme Court was filed. On July 6, 2004, the special panel overruled Johnson and held that the mandatory sentence credit applied only to a defendant who was being held only because he was denied or unable to furnish bond as to the new offense. Leave to appeal to the Supreme Court was denied on December 9, 2004.
The panel in this case was required to follow People v Fluker, 197 Mich App 225 (1992), and strike the provision precluding parole in the defendant's life sentence for his conviction of delivery of over 650 grams of cocaine. Delayed application for appeal to the Supreme Court was filed on January 25, 1993. Fluker was reversed by the Supreme Court on April 19, 1993. 442 Mich 890. Gavilan was reversed by the Supreme Court on April 30, 1993. 442 Mich 900.
The panel in this case was required to follow People v Brantley, 296 Mich App 546 (2012), and hold that the imposition of electronic monitoring applies to first-degree criminal sexual conduct regardless of the age of the defendant and the victim. Submission to a special panel was denied on August 20, 2012, and an application for leave to appeal to the Supreme Court was denied on March 4, 2013 (#145920).
The panel in this case was required to follow People v Polus, 197 Mich App 197 (1992), and hold that, when scoring offense variable twelve of the sentencing guidelines range, a court may only consider penetrations which occurred during the criminal transaction for which the defendant was convicted. An order vacating Raby and submitting it to a special panel was issued, 213 Mich App 801, and on July 30, 1996, the special panel held that a single criminal transaction can include penetrations occurring over a continuous time sequence and displaying a single intent, and that the defendant's repeated penetrations of his daughter over two-year period constituted a criminal transaction for which points may be assessed under OV 12. 218 Mich App 78 (1996). A motion for rehearing was denied on October 18, 1996.
The panel in this case was required to follow People v Knowles, 256 Mich App 53 (2003), and hold that a person who has suffered a financial loss has suffered an injury for the purpose of OV 9 of the sentencing guidelines. The opinion was vacated in part and the case submitted to a special panel, and on July 20, 2006, the special panel held that for the purpose of OV 9, an injury must be a physical injury. An application for leave to appeal to the Supreme Court was denied on March 21, 2007.
The panel in this case was required to follow People v Zinn, 217 Mich App 340 (1996), and hold that a trial court's failure to complete an SIR in a habitual offender case requires remand for completion of the SIR. An order denying submission to a special panel was issued on August 23, 1996.
The panel in this case was required to follow People v Fisher (After Second Remand), 190 Mich App 598 (1991), rev'd 442 Mich 560 (1992), and hold that a trial court may not use the second edition of the guidelines to calculate a defendant's guidelines range when resentencing a defendant whose initial sentence under the first edition of the guidelines was invalidated upon appeal. The Stein panel would follow the rule that application of the second edition of the guidelines is proper for any sentence imposed after the effective date of the second edition of the guidelines. Application for leave to appeal to the Supreme Court was filed on June 25, 1993. On the Court of Appeals' own motion, publication of the Stein opinion was withdrawn and rehearing was granted by order dated July 8, 1993; the Court affirmed the defendant's sentence on rehearing. Leave to appeal to the Supreme Court was denied on November 4, 1993.
The panel in this case was required to follow People v Weaver (After Remand), 192 Mich App 231 (1991), and hold that a defendant can be reasonably expected to serve a sentence which requires him to remain in prison until, apparently, his early nineties; the minimum sentence in Phillips was 65 years. A petition for rehearing was denied on May 3, 1994, and an application for leave to appeal to the Supreme Court was ordered held in abeyance pending a decision in People v Merriweather, #97745. On December 30, 1994, the Supreme Court issued its decision in Merriweather. It held that a sentence which avoids eligibility for parole is not invalid if otherwise within the statutory range for the offense. In Merriweather, the defendant's sentence of 60 to 100 years was proper. 447 Mich 799 (1994). On August 15, 1995, the Supreme Court denied leave in Phillips.
The panel in this case was required to follow People v Weaver (After Remand), 192 Mich App 231 (1991), and hold that a defendant can be reasonably expected to serve a sentence which requires him to remain in prison until his early nineties. Leave to appeal to the Supreme Court was denied on January 11, 1994.
The panel in this case was required to follow People v Weaver (After Remand), 192 Mich App 231 (1991), and hold that a defendant can be reasonably expected to serve a sentence which requires him to remain in prison until his early nineties. A petition to submit Martinez to a special panel was denied on September 1, 1992.
The panel in this case was required to follow People v Weaver (After Remand), 192 Mich App 231 (1991), and hold that a defendant can be reasonably expected to serve a sentence which requires him to remain in prison until his early nineties. The Supreme Court granted the prosecutor's application for leave to appeal, and on December 30, 1994, the Supreme Court held that a sentence which avoids eligibility for parole is not invalid if otherwise within the statutory range for the offense. In Merriweather, the defendant's sentence of 60 to 100 years was proper. 447 Mich 799 (1994).
The panel in this case was required to follow People v Weaver (After Remand), 192 Mich App 231 (1991), and hold that the effect of disciplinary credits may be considered by the trial court as well as by an appellate court when determining whether the defendant has a reasonable prospect of serving a minimum sentence. A petition to submit Martinez to a special panel was denied on September 1, 1992.
The panel in this case was required to follow People v Warner, 190 Mich App 734 (1991), and hold that when consecutive sentences are imposed, each sentence must be viewed individually to determine whether it violates the principle of proportionality. A petition to submit Hadley to a special panel was denied on May 21, 1993. Leave to appeal to the Supreme Court was granted, and on August 22, 1995, the Supreme Court affirmed Hadley in People v Morris, 450 Mich 316 (1995). However, the Morris opinion addressed only the proper interpretation of a controlled substances sentencing statute.
The panel in this case was required to follow People v Warner, 190 Mich App 734 (1991), and hold that when consecutive sentences are imposed, each sentence must be viewed individually to determine whether it violates the principle of proportionality. A motion for rehearing was denied on February 4, 1993. A petition to submit Landis to a special panel was denied on March 10, 1993. An application for leave to appeal to the Supreme Court was denied on July 30, 1993. 443 Mich 858.
The panel in this case was required to follow People v Lino, 213 Mich App 89 (1995), and hold that a sentence of life in prison, subject to parole, is a greater sentence than a sentence to a long minimum term of years, including a minimum term of sixty years in prison. On June 14, 1996, Carson was vacated and submitted to a special panel. On December 27, 1996, the special panel concluded that neither a sentence to life nor a sentence to a long term of years is always the greater sentence, but that the impact of the sentence depends upon the circumstances. The panel held that a sentencing court need not determine which type of sentence would be more severe, but must only be cognizant of the applicable sentencing law. 220 Mich App 662. An application for leave to appeal to the Supreme Court was denied on December 23, 1997, and reconsideration was denied on February 27, 1998. 456 Mich 904.
The panel in this case was required to follow People v Troncoso, 187 Mich App 567, lv den 437 Mich 951 (1991), and hold that the defendant's circumstances demonstrated substantial and compelling reasons to depart from the presumptive minimum sentence for controlled substances offenses. A petition to submit Hill to a special panel was granted, and the panel issued its decision on November 22, 1991. People v Hill, 192 Mich App 102 (1991). The special Hill panel rejected Troncoso, and adopted the reasoning of two earlier cases; factors establishing substantial and compelling reasons to depart from the statutory minimum sentence must be objective and verifiable, but both prearrest and postarrest conduct may be considered. Application for leave to appeal from the special panel opinion was denied on January 29, 1992. 439 Mich 917.
The panel in this case was required to follow Watson v Bureau of State Lottery, 224 Mich App 639 (1997), and hold that courts have the discretion to issue orders to permit the assignment of lottery prizes when the assignments are determined to be reasonable or in the best interests of the parties. An order vacating BP7 and submitting it to a special panel was issued, and on August 21, 1998, the special panel held that an intervening amendment to the pertinent statute -- which permits a voluntary assignment of a lottery prize -- rendered the parties' controversy moot. 231 Mich App 357.
The panel in this case was required to follow Marposs Corp v City of Troy, 204 Mich App 156 (1994), and hold that the statutory authorization for a local governmental unit to preclude a tax abatement for a transferring business constituted an unconstitutional delegation of legislative authority because the standards for precluding abatement were not sufficiently specific. Although Marposs addressed the standards set forth in the Technology Park Development Act and Bendix pertained to the plant rehabilitation and industrial development act, the Bendix panel concluded that the pertinent standards were indistinguishable in the two acts and thus that Marposs controlled. An order vacating Bendix and submitting the case to a special panel was issued, 211 Mich App 801, and on January 30, 1996, the special panel adopted the reasoning of the Bendix panel and held that the plant rehabilitation and industrial development act is constitutional; city councils are legislative bodies to whom the doctrine of delegated authority does not apply. 215 Mich App 289. An application for leave to appeal to the Supreme Court was denied on December 20, 1996. 453 Mich 970.
The panel in this case was required to follow Skene v Fileccia, 213 Mich App 1 (1995), and hold that the assumption of risk provision of the Roller Skating Safety Act precludes liability of a skating rink operator for injuries incurred by a roller skater in a collision with another roller skater regardless of the operator's breach of duty. On May 20, 1997, the Dale opinion was vacated and the case was submitted to a special panel. On December 16, 1997, the opinion of the special panel was issued, and held that a roller skater does not assume the risk of the operator violating its prescribed duties under the act, and that operators are liable for failure to maintain rolling skating equipment according to safety standards. Leave to appeal to the Supreme Court was denied on September 29, 1998.
The panel in this case was required to follow Barr v Mt Brighton, Inc, 215 Mich App 512 (1996), and hold that the Ski Area Safety Act grants immunity from liability for injuries caused by a skier's conduct inherent in the sport which caused a collision regardless whether the skier complied with the duties imposed by the act. The opinion was vacated in part and the case was submitted to a special panel, and on December 19, 2006, the special panel held that although under the SASA skiers assume the risk of injury from dangers inherent in skiing which are obvious and necessary, they do not assume the risk of injury due to another person's violation of the act. An application for leave to appeal to the Supreme Court was denied on September 12, 2007.
The panel in this case was required to follow Local 1064, RWDSU v Ernst & Young, 204 Mich App 445 (1994), and hold that the malpractice limitations period does not apply to claims of malpractice against accountants. An application for leave to appeal to the Supreme Court was filed, and on April 28, 1995, the Supreme Court held the application in abeyance pending its decision in Local 1064. On July 25, 1995, the Supreme Court issued its decision in Local 1064, and held that accountants are subject to the malpractice limitations period. Local 1064, RWDSU v Ernst & Young, 449 Mich 322 (1995). In an October 31, 1995, order, the Supreme Court reversed Enzymes insofar as it reversed the trial court order granting summary disposition to the defendants on the basis that the plaintiffs' claims were barred by the two-year limitations period applicable to professional malpractice claims. 450 Mich 887.
The panel in this case was required to follow Mazumder v University of Michigan Bd of Regents, 270 Mich App 42 (2006), and hold that equitable tolling can apply to preserve a medical malpractice claim which would otherwise be precluded by the expiration of the limitations period, if that preclusion was based on the retroactive application of the judicial decision announcing that the tolling of the limitations period arising from the serving of notice of intent to commence a medical malpractice claim does not affect the savings provision applicable to claims by personal representatives of decedents' estates. The opinion was vacated in part and submitted to a special panel, and on November 14, 2006, the special panel held that the retroactive application of the decision regarding the tolling of medical malpractice claims may not be avoided through equitable tolling. An application for leave to appeal was placed in abeyance, and on December 14, 2007, the Supreme Court reversed the decision of the Court of Appeals and remanded for entry of an order denying summary disposition and for further proceedings not inconsistent with the Supreme Court order issued in Mullins v St Joseph Mercy Hosp, 480 Mich 948 (2007), which limited the retroactivity of Waltz v Wyse, 469 Mich 642 (2004), to not apply to causes of action filed after Omelenchuk v City of Warren, 461 Mich 567 (2000), was decided in which two years had elapsed since the personal representative was appointed and within 182 days of after Waltz was decided.
The panel in this case was required to follow Farley v Carp, 287 Mich App 1 (2010), and hold that a medical malpractice plaintiff whose suit is not barred as untimely by retroactive application of the abrogation of the tolling of the savings provision afforded to personal representatives by the filing of a notice of intent may not obtain relief from a judgment entered before the retroactivity of the abrogation decision was limited. The opinion was vacated and the case submitted to a special panel, and on October 19, 2010, the special panel held that relief from judgment could not be granted in a closed case, and thus that no relief was available in this case. Leave to appeal to the Supreme Court was denied on March 30, 2011. (#142182).
The panel in this case was required to follow Ousley v McLaren, 264 Mich App 486 (2004), lv den 472 Mich 927 (2005), and hold that the decision in Waltz v Wyse, 469 Mich 642 (2004), which held that the tolling of a limitations period which arises from the serving of notice of intent to assert a medical malpractice claim does not extend the period during which a personal representative may assert a malpractice claim beyond the normal limitations period, applies retroactively. The opinion was vacated in part and the case was submitted to a special panel, and on July 11, 2006, the special panel held that the decision in Waltz applies retroactively. In an order issued on November 28, 2007, the Supreme Court limited the retroactivity of Waltz to not apply to causes of action filed after Omelenchuk v City of Warren, 461 Mich 567 (2000), was decided in which two years had elapsed since the personal representative was appointed and within 182 days of after Waltz was decided.
The panel in this case was required to follow McLean v McElhaney, 269 Mich App 196 (2005), and hold that the extension of time afforded to a personal representative in which to bring suit for wrongful death is not affected by the tolling of the running of a limitations period during the notice period applicable to medical malpractice claims. An order denying submission to a special panel was entered on November 13, 2006, and on July 2, 2008, the Supreme Court held that a defective notice precludes the filing of a valid complaint which tolls the limitations period. 481 Mich 558(2008). A motion for rehearing was denied on September 26, 2008.
The panel in this case was required to follow McLean v McElhaney, 269 Mich App 196 (2005), and hold that the extension of time afforded to a personal representative in which to bring suit for wrongful death is not affected by the tolling of the running of a limitations period during the notice period applicable to medical malpractice claims. An order denying submission to a special panel was entered on November 13, 2006, and on July 2, 2008, the Supreme Court held that a defective notice precludes the filing of a valid complaint which tolls the limitations period. 481 Mich 558(2008). A motion for rehearing was denied on September 26, 2008.
The panel in this case is required to follow Guerra v Garratt, 222 Mich App 285; 564 NW2d 121 (1997), and hold that the limitations period applicable to a tort claim is not tolled due to the plaintiff's repressed memory of the wrongful conduct, even if the defendant admits to the wrongful conduct. An order denying submission to a special panel was entered, and leave to appeal to the Supreme Court was denied on March 31, 2000.
The panel in this case was required to follow Bieker v Suttons Bay Twp Supervisor, 197 Mich App 628 (1992), and hold that the taking of private property under the opening of private roads act does not constitute an unconstitutional taking of property for a private use. An order vacating McKeighan and submitting it to a special panel was entered, and on February 19, 1999, the special panel held that the opening of private roads act does not impose an unconstitutional taking. An application for leave to appeal to the Supreme Court was dismissed as moot on December 1, 1999, and a motion for reconsideration was denied on February 29, 2000.
The panel in this case was required to follow Cook v Dep't of Treasury, 229 Mich App 653 (1998), and hold that expenses associated with an activity which generates proceeds which are not subject to income taxation cannot be deducted in calculating income tax due. An order vacating Elenbaas and submitting it to a special panel was entered, and on April 23, 1999, the special panel held that such expenses cannot be deducted in calculating income taxes due. A motion for rehearing was filed, and by order dated July 20, 1999, the opinion was amended; otherwise, rehearing was denied. Leave to appeal to the Supreme Court was denied on December 7, 2000.
The panel in this case was required to follow Bauer v Dep't of Treasury, 203 Mich App 97 (1993), and hold that the payment of severance taxes on oil and gas proceeds relieves the taxpayer from liability for single business taxes rather than merely from liability for taxes upon the property rights to oil and gas. An application for leave to appeal to the Supreme Court was denied on October 5, 1994. 447 Mich 980.
The panel in this case was required to follow CompuPharm, LTC v Dep't of Treasury, 225 Mich App 274 (1997), and hold that a drug which is not required to be dispensed by prescription is not subject to the prescription drug exemption from use tax even if the drug is actually dispensed pursuant to a prescription. On October 15, 2003, an order vacating Birchwood Manor and submitting it to a special panel was issued, and on March 16, 2004, the special panel ruled that any drug dispensed pursuant to a written prescription of a physician is a prescription drug for the purpose of the use tax exemption, regardless whether the drug is required to be dispensed by prescription. Leave to appeal to the Supreme Court was denied on September 16, 2004.
The panel in this case was required to follow Environair, Inc v Steelcase, Inc, 190 Mich App 289 (1991), and hold that a determination of damages based upon breach of an at-will contract would be founded upon speculation and thus that a claim based on an at-will contract may be for nominal damages only. The opinion was vacated in part and the case was submitted to a special panel. On September 8, 2005, the special panel concluded that, while claims for damages based on at-will contracts are generally speculative, in extraordinary circumstances a plaintiff might be able to present sufficient evidence of damages, and thus held that the assertion of a claim for other than nominal damages is not always precluded.
The panel in this case was required to follow McDougall v Eliuk, 218 Mich App 501 (1996), and hold that the statutory restrictions on the qualification of expert witnesses in medical malpractice cases which are inconsistent with the standards provided by Court Rule violate the constitutional separation of powers. Submission to a special panel was denied, and an application for leave to appeal to the Supreme Court was filed on April 10, 1997. However, on May 23, 1997, the application was dismissed pursuant to stipulation of the parties.
The panel in this case was required to follow Palmer v ITT Hancock, 189 Mich App 509 (1991), and hold that the findings of the Worker's Compensation Appellate Commission are reviewed by the Court of Appeals to determine whether the Commission correctly concluded that the magistrate's findings of fact were or were not supported by competent, material and substantial evidence. The McCravey panel would only review Commission findings to determine whether they were supported by any competent evidence. Application for leave to appeal to the Supreme Court was denied on July 31, 1992. 440 Mich 878.
The panel in this case was required to follow Smith v Michigan Bell Telephone Co, 189 Mich App 125 (1991), and hold that disability payments, extended disability payments, and sickness and accident benefits paid to an injured employee under the terms of a contractual obligation may be credited against worker's compensation benefits due, even though the contractual benefits were not paid by the employer as provided in the Worker's Disability Compensation Act. A petition to submit Maner to a special panel was granted, and the panel issued its decision on October 20, 1992. Maner v Ford Motor Co, 196 Mich App 470 (1992). The special Maner panel rejected Smith, and adopted the reasoning of the prior Maner opinion; an employer may not reduce worker's compensation payments due to an injured employee by the amount of other benefits received by the employee which were not caused to be paid by the employer as provided in the Worker's Disability Compensation Act. Application for leave to appeal to the Supreme Court was filed, but in lieu of granting leave, the Supreme Court affirmed in a memorandum opinion on June 30, 1993. 442 Mich 620.
The panel in this case was required to follow Alston v Northville Regional Psychiatric Hospital, 189 Mich App 257 (1991), and hold that an injured employee's weekly net wage under the Mental Health Code is different than the average weekly wage calculated under the Worker's Disability Compensation Act and does not include overtime. The Generou panel would include overtime in the calculation of an employee's weekly net wage, and would determine it by subtracting from the average weekly wage all taxes, deductions, and worker's compensation payments. Application for leave to appeal to the Supreme Court was denied on July 14, 1992. 440 Mich 869.
The panel in this case was required to adhere to the formula for determining dependency for the purpose of the Worker's Disability Compensation Act announced in Corbett v Montgomery Ward, 194 Mich App 624 (1992), and hold that the wife of the injured worker is not a dependent because her own income constitutes more than one-fourth of the family income. The Scott panel would calculate dependency based upon the assumption that the income of each spouse contributes to the family living standard, so that any person who makes less than her spouse would be a dependent for the purpose of WDCA benefits. A petition to submit Scott to a special panel was denied on February 10, 1994.
The panel in this case was required to follow Farrington v Total Petroleum, Inc, 189 Mich App 298 (1991), aff'd on other grounds 442 Mich 201 (1993), and hold that worker's compensation benefits may be recovered by a person afflicted with an ordinary disease of life or a preexisting condition if either the work accelerated or aggravated the disease or condition in a significant manner, or the work, coupled with the disease, in fact caused an injury. The Makky panel would interpret a 1980 amendment to the Worker's Disability Compensation Act to allow recovery only if the injury were contributed to or aggravated or accelerated by the employment in a significant manner. A petition to submit Makky to a special panel was denied on August 18, 1992. Application for leave to appeal to the Supreme Court was filed on September 8, 1992. On January 29, 1993, the Supreme Court ordered the application held in abeyance pending its resolution of Farrington v Total Petroleum, Inc, 189 Mich App 298 (1991). The result in Farrington was affirmed by the Supreme Court, 442 Mich 201 (1993), but its rationale pertaining to causation was rejected and the Makky approach approved. Leave to appeal Makky was denied, 444 Mich 860, and its companion case of Rimsa v S & S Masonry was remanded to the Court of Appeals for reconsideration. On remand, the Court of Appeals held that the magistrate had correctly applied the proper substantial evidence standard and that the claimant was not entitled to benefits. Rimsa v S & S Masonry, Inc (#168574, rel'd 3/14/94).
The panel in this case was required to follow Farrington v Total Petroleum, Inc, 189 Mich App 298 (1991), aff'd on other grounds 442 Mich 201 (1993), and hold that: (1) when an employee is able to testify with some specificity as to the activities he was performing at the time his heart attack symptoms occurred, the injury is compensable even if his work activities were usual and customary; and (2) when an employee's work, coupled with a preexisting condition, causes an injury, it is compensable without reference to whether factors of employment were a significant cause of the injury. A motion for rehearing was denied on April 5, 1993. An application for leave to appeal to the Supreme Court was filed on April 26, 1993. The result in Farrington was affirmed by the Supreme Court, 442 Mich 201 (1993), but its rationale pertaining to causation was rejected and the approach suggested in Makky v General Dynamics, 194 Mich App 105 (1992), approved. In lieu of granting leave to appeal, on September 28, 1993, the Supreme Court remanded Fresorger to the Workers' Compensation Appellate Commission for reconsideration in light of its opinion in Farrington
The panel in this case was required to follow McDonald v Meijer, Inc, 188 Mich App 210 (1991), and Siders v Gilco, Inc, 189 Mich App 670 (1991), and hold that a disability based only on increased symptoms rather than on aggravation of the underlying condition is compensable under the WDCA. A motion for rehearing was granted on October 11, 1994; and an order denying submission to a special panel was issued on October 25, 1994. An application for leave to appeal to the Supreme Court was filed, and on September 25, 1995, the Supreme Court held the application in abeyance pending a decision in McGeathy v GMC (CA #122209, rel'd 8/29/94). However, on May 8, 1996, the Supreme Court vacated its order granting leave to appeal in McGeathy, and reconsideration of that order was denied on June 18, 1996. On August 30, 1996, the Supreme Court denied leave to appeal in Laury.
The panel in this case was required to follow Dunbar v Dep't of Mental Health, 197 Mich App 1 (1992), and hold that an action for retaliatory discharge contrary to the Worker's Disability Compensation Act is an action in tort, and thus that a plaintiff may claim damages for mental or emotional distress. Applications for leave to appeal and to cross-appeal to the Supreme Court were granted, and on March 21, 1995, the Supreme Court held that an action for retaliatory discharge under the WDCA is an action in tort. 448 Mich 239.