Juarez v. Holbrook
764 N.W.2d 216
Mich.
2009
Check Treatment

JUAREZ v HOLBROOK

Nos. 137358 and 137359

Supreme Court of Michigan

483 Mich 970

Court of Appeals Nos. 275040 and 276312

of any action.” (Emphasis added.) (The final section referred to by § 5838a[2] is § 5856, the tolling statute, which applies only to statutes of limitations and repose as explained above.)

Thus, the Legislature clearly distinguishes saving provisions through its use of language and the structure of the statutory scheme. Consistent with the definition from Black‘s Law Dictionary, MCL 600.5838a provides the statutes of limitations applicable to medical malpractice cases on the basis of accrual or discovery. MCL 600.5851(7) does not establish a distinct statute of limitations. Accordingly, the notice tolling statute, MCL 600.5856(c), does not toll the grace period provided in § 5851(7). Therefore, the complaint in this case was untimely because it was filed after the grace period, which extended the time for commencement only to plaintiff‘s tenth birthday. The complaint should have been dismissed with prejudice.

YOUNG and MARKMAN, JJ. We join the statement of Justice CORRIGAN.

CORRIGAN, J. (dissenting). I would vacate that part of the Court of Appeals judgment that held that the trial court properly determined the amount of attorney fees as case evaluation sanctions, and I would remand this case to the Wayne Circuit Court for reconsideration in light of . In all other respects, I would deny leave to appeal.

MARKMAN, J. (dissenting). I dissent and would vacate that part of the Court of Appeals judgment that held that the trial court properly determined the amount of attorney fees as case evaluation sanctions. I would also remand to the trial court for reconsideration in light of .

Defendant was entitled to such sanctions because the jury verdict was well below the case evaluation award that all parties had rejected. The trial court awarded $68,893 in attorney fees, calculating the amount by taking the defense attorneys’ hourly rate, which the court found to be low, and multiplying it by the number of hours billed, which the court found to be high. Defendants appealed, arguing that the amount was inadequate, but the Court of Appeals affirmed. One day later, this Court issued , in which we clarified the process of calculating case evaluation attorney fees:

[T]he trial court should begin the process of calculating a reasonable attorney fee by determining factor 3 under MRPC 1.5(a), i.e., the reasonable hourly or daily rate customarily charged in the locality for similar legal services, using reliable surveys or other credible evidence. This number should be multiplied by the reasonable number of hours expended. This will lead to a more objective analysis. After this, the court may consider making adjustments up or down in light of the other factors listed in and MRPC 1.5(a). In order to aid appellate review, the court should briefly indicate its view of each of the factors. [.]

A remand to the trial court for compliance with is clearly required here. See . However, the majority‘s disdain for is apparently viewed as adequate justification for ignoring . Rather than forthrightly overruling this decision, something the new majority is apparently loath to do (perhaps because several majority justices repeatedly and loudly proclaimed fealty to stare decisis, and dissented, whenever the former majority overruled a precedent), it is increasingly becoming the modus operandi of this Court that relevant precedents simply be ignored. See, e.g., , where the new majority ignored , , where the new majority failed to follow , and , where the new majority failed to follow , and .

CORRIGAN and YOUNG, JJ. We join the statement of Justice MARKMAN.

PEOPLE V OLMAN

No. 138071

Supreme Court of Michigan

Court of Appeals No. 281151

MARKMAN, J. (concurring). Defendant was convicted of second-degree criminal sexual conduct. Although the sentencing guidelines called for a minimum sentence of 0 to 17 months of imprisonment, the trial court sentenced defendant to 2 to 15 years. The Court of Appeals affirmed the conviction, but remanded for resentencing, concluding that the trial court failed to articulate substantial and compelling reasons to justify the sentencing departure. . This Court denied leave to appeal (although defendant appealed the affirmance of his conviction, the prosecutor did not file a cross-appeal regarding the sentencing issue). . On remand, the trial court again sentenced defendant to 2 to 15 years. The Court of Appeals again remanded for resentencing. .

The trial court‘s first reason for departing was that offense variable 10, MCL 777.40, gives the victim‘s age inadequate weight. However, in the first appeal, the Court of Appeals held that the victim‘s age did not justify a departure, and the prosecutor never appealed. Therefore, this was clearly the law of the case in the second appeal.

The trial court‘s second reason for departing was that defendant is a corrections officer, a position of public trust. However, MCL 769.34(3)(a) prohibits the court from using the defendant‘s legal occupation to depart from the guidelines range. Contrary to the dissent‘s contention, this case is significantly distinguishable from , because there the “defendant exploited his position of trust as a child-care provider for the vulnerable victim” to commit the offense. Here, defendant did not use his position in any way to commit the crime; he was not acting in any way as a corrections officer. He could have just