Gary R. McDonald

This case concerned a procedural order by the Michigan Court of Appeals regarding whether to convene a special panel under MCR 7.215(1) to address a potential conflict between its May 21, 2002, opinion in People v. Scherf and the prior decision in People v. Hill. The court polled its judges after the initial opinion was issued and reviewed the matter for any need to resolve inconsistencies in precedent. A majority of the judges determined that convening a special panel was unnecessary. Accordingly, the court ordered that no special panel would be convened in the matter.

criminal lawprocedure

This case is an appeal by plaintiff Senia Pusakulich against the City of Ironwood and a construction contractor. The Court of Appeals considered whether to convene a special panel to resolve any potential conflict between the present matter and two prior decisions, Grounds v. Washtenaw Co. Rd. Comm. and Stabley v. Huron-Clinton Metropolitan Park Authority. After polling the judges, a majority determined that a special panel should not be convened. Judge McDonald did not participate in the decision.

procedure

The case involved a construction worker injured on a water main replacement project who sued the city engineers (McNeely & Lincoln) and the City of Northville after the city had hired a general contractor (Basile) for the work. The trial court granted a directed verdict to the engineers and summary disposition to the city, and later awarded mediation sanctions and costs to the city; the plaintiff appealed both rulings. The appellate court affirmed, holding that even if Michigan recognizes negligent hiring of a contractor, the engineers had no duty to investigate the contractor and the plaintiff could not prevail on that theory because he was employed by the contractor, not the engineers; the court also found the retained-control argument unpreserved and the mediation sanctions properly awarded under MCR 2.403. The decision rested on the absence of a viable claim against the engineers and the application of mediation sanction rules to encourage settlement.

torts & liabilityprocedure

In Sirrey v Danou, plaintiffs appealed the dismissal of their lawsuit against defendant for failing to pay court-ordered costs and attorney fees from a prior similar action that they had voluntarily dismissed without prejudice. The trial court had denied summary disposition on the new claims but stayed proceedings and required payment of $13,102 in costs under MCR 2.504(D) before allowing the case to proceed; when plaintiffs did not comply, it dismissed the action with prejudice. The Court of Appeals affirmed, holding that MCR 2.504(D) authorizes recovery of attorney fees as part of such costs and permits a court to award costs from a prior action dismissed in any court, citing McKelvie v City of Mt Clemens as precedent and rejecting arguments that the rule does not apply to fees or to actions in other courts.

procedure

This case involves a prosecution for two counts of third-degree criminal sexual conduct arising from an alleged incident between the defendant and his wife, who were living in the same home despite a pending divorce complaint. The defendant sought to introduce evidence of subsequent consensual sexual relations with the victim within thirty days after the alleged assault. The Michigan Court of Appeals vacated the trial court's order admitting that evidence. The court held that the rape-shield statute bars evidence of the victim's sexual conduct except in narrow circumstances, and the exception for the victim's past sexual conduct with the actor applies only to acts preceding the charged incident, not subsequent ones, based on the plain meaning of the statutory language.

criminal lawprocedure

This case involved a gas cost recovery reconciliation proceeding under Michigan's Public Service Commission Act, in which the Residential Ratepayer Consortium challenged the amount of costs Michigan Consolidated Gas Company (MichCon) could recover from customers after the Commission had earlier found part of MichCon's planned purchases from ANR Pipeline unreasonable. The Commission ultimately allowed recovery for 60 billion cubic feet of gas but disallowed costs for an additional 6 billion cubic feet and ordered a refund to customers for overcollections. The Court of Appeals affirmed, holding that the plain language of MCL 460.6h(13) governed the refund determination and required only a preponderance of the evidence standard rather than the clear-and-convincing standard in subsection (14), which applies only when a utility seeks to surcharge customers for excess costs. The court rejected the Consortium's argument for a higher burden of proof, finding the statutory provisions unambiguous and the Commission's evaluation of the utility's post-order renegotiation efforts proper under the reconciliation statute.

business & regulatory