Civil Procedure- Parties may contractually vary effect of Uniform Arbitration...
The parties to an arbitration agreement may determine the effects of the requirements of the arbitration act as permitted by law. One example is that the parties may choose to delegate the question of...
View ArticleGovernment Tort Liability- Notice must be in strict compliance with the statute
The notice requirement under the government tort liability act requires service of notice on a city’s mayor, city clerk, or city attorney, unless some other person “was authorized by written...
View ArticlePremises Liability- ‘Wintry conditions’ do not automatically render ice ‘open...
The presence of snow and cold temperatures does not create an irrefutable presumption of accompanying ice; therefore, a premises owner has a duty to exercise reasonable care to diminish the hazards of...
View ArticleAttorney Fees- Attorney-client relationship must exist before attorney...
A special or charging lien is an equitable right to have the fees and costs due for services secured out of the judgment or recovery in a particular suit. The charging lien creates a lien on a...
View ArticleIs ice always ‘open and obvious’ during winter?
The Michigan Court of Appeals ruled in the plaintiff’s favor in a slip and fall at a gas station, holding that winter weather doesn’t necessarily dictate that ice is open and obvious.
View ArticleEmployment Law- Plaintiff’s burden — employer discriminatory pretext and...
A plaintiff cannot merely raise a triable issue that the employer’s proffered reason for the adverse employment action was pre-textual, the plaintiff must also present to the court that it was a...
View ArticleAttorney Fees- Clear intent that fee provisions include appellate work must...
Parties to a contract can include contractual provisions that provide for payment of reasonable attorney fees incurred in enforcement of the contract in case of breach.
View ArticleSecured Transactions- ‘Fair dealing’ focuses on fairness of conduct, not care...
“Good faith” is defined as honesty in fact and the observance of reasonable commercial standards of fair dealing. While fair dealing is a broad term that must be defined in context, it is clear and it...
View ArticleCriminal Procedure- On appeal of guilty plea, only government’s right to...
A defendant may appeal an unconditional guilty plea only when the government’s right to prosecute is being challenged. Otherwise, the guilty plea waives all claims that involve the capacity of the...
View ArticleCivil Procedure- ‘Same transaction test’ considers parties and facts, not...
Res judicata acts to bar the re-litigation of claims upon proof that the prior action was decided on the merits, both actions involve the same parties or their privies and the matter in the second case...
View ArticleCivil Procedure- ‘Dean’ factors ensure dismissal sanction ‘exercised...
The court’s dismissal power should be exercised with caution and employed as a sanction only after careful consideration of the facts and circumstances of each case in conjunction with the factors set...
View ArticlePremises Liability- Municipal ordinances do not create duties of care on...
Although violation of a municipal ordinance may be evidence of negligence, it is not in itself sufficient to impose a legal duty cognizable in negligence.
View ArticleCivil Procedure- Court must evaluate options and articulate dismissal ‘just...
Before imposing the “drastic” sanction of involuntary dismissal, a trial judge must give careful consideration to all factors involved, evaluate all available options on the record and conclude that...
View ArticleCivil Procedure- Ambiguous contract provisions may be defined upon de novo...
Insurance policies are construed and interpreted in accordance with ordinary contract construction principles; therefore a provision may be deemed ambiguous and unenforceable on the trial court level...
View ArticleNo-Fault Law- Serious impairment of body function — subjective proof but...
Under the Michigan no-fault scheme, a party cannot recover in tort for injuries sustained in an automobile accident unless serious impairment of body function or permanent serious disfigurement has...
View ArticleEmployment Law- ‘Motivation’ irrelevant to determination if plaintiff...
There is no condition in the Whistleblowers’ Protection Act that an employee must report wrongdoing to an outside agency or higher authority nor is there language that limits protection to employees...
View ArticleCivil Procedure- Identical claims not required: ‘substantially similar’ with...
Summary disposition is proper under MCR 2.116(C)(6) when two suits involve the same parties and are based on the same or substantially the same cause of action. All claims need not be identical;...
View ArticleGovernment Tort Liability- ‘Gross negligence’ — substantially more than ‘mere...
A government employee acting within the scope of his or her authority and engaging in the exercise of a governmental function is immune from tort liability per MCL 691.1407(2) so long as their conduct...
View ArticleCivil Procedure- MCR 2.116 (C)(6) requires ‘examination of the same operative...
A party seeking summary disposition pursuant to MCR 2.116 (C)(6) need not prove that the two actions are identical.
View ArticleCivil Procedure- Dismissal is a ‘drastic step’ that courts must ‘take...
Before imposing dismissal as a sanction, a trial court must consider the factors set forth in Vicencio v Ramirez. It is an abuse of discretion to dismiss a case without, first, carefully evaluating all...
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