878 N.W.2d 476
Mich.
2016

PEOPLE V SWAIN

No. 150994

Supreme Court of Michigan

May 18, 2016

499 Mich. 920

Court of Appeals No. 314564

amendment of the AOM-allowing a new affiant to sign the old affidavit-defendants contend that this constitutes not an amendment of the AOM, but the introduction of an entirely new AOM. That is, a demarcation exists between valid and invalid amendments, and amendments that fundamentally alter the nature of the original AOM, as might the substitution of an altogether new affiant, conceivably would fall on the invalid side of this demarcation. Further, plaintiff‘s amendment of the complaint to limit the malpractice allegations to the postoperative period might also be seen as an attempt to circumvent the AOM requirements. If a party may always amend the complaint itself to cure a deficient AOM, then the AOM requirements would have increasingly little substantive force. A party could include a deficient AOM with the complaint but nonetheless proceed with the case as long as the complaint was later amended to fit the AOM.

I would remand this case to the Court of Appeals to consider both of these issues. Each raises the common concern that a defendant will be presented with one manner of case when the AOM is filed, but later be required to defend a different manner of case after the complaint or the AOM has been amended. Here, for instance, it may be that defendants were initially presented with, and prepared for, a case focusing on the intricacies of colorectal surgery, but as a result of amendment have had the case transformed into one focused on general medical practices during the postoperative period. Yet, the AOM is intended to “certify merit at the outset of the case .” Ligons v Crittenton Hosp, 490 Mich 61, 84 (2011) (emphasis added). When, contrary to Grossman, the AOM‘s merits are not judged at the time it was prepared, but only after amendments have retroactively cured its deficiencies, merit has not been certified at the outset, and a defendant may face a case that was not certified as meritorious when the complaint and AOM were filed. In light of these concerns, I respectfully dissent and would remand for further consideration by the Court of Appeals.

PEOPLE V CLAYTON, No. 153063; Court of Appeals No. 329878.

In re HALEY/HOLTON, No. 153528; Court of Appeals No. 328239.

Summary Disposition May 18, 2016:

PEOPLE V SWAIN, No. 150994; Court of Appeals No. 314564. On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we reverse the February 5, 2015 judgment of the Court of Appeals and we remand this case to the Calhoun Circuit Court for proceedings consistent with its judgment ordering a new trial. The Court of Appeals erred in applying People v Cress, 468 Mich 678 (2003), to an analysis of a successive motion filed pursuant to MCR 6.502(G)(2). Cress does not apply to the procedural threshold of MCR 6.502(G)(2), as the plain text of the court rule does not require that a defendant satisfy all elements of the test. The Court of Appeals erred in failing to give proper deference to the specific findings of the trial court that the defendant was entitled to a new trial. The defendant provided “a claim of new evidence that was not discovered before the first” motion for relief from judgment, MCR 6.502(G)(2), and we conclude that the trial court did not abuse its discretion in ordering a new trial on the facts of this case. In light of this disposition, we decline to address the other issues presented in our order granting leave to appeal. We do not retain jurisdiction.

MCCORMACK, J., did not participate because of her prior involvement in this case as counsel for a party.

BOARD OF TRUSTEES OF THE CITY OF PONTIAC POLICE & FIRE RETIREE PREFUNDED GROUP HEALTH & INSURANCE TRUST V CITY OF PONTIAC, No. 151717; reported below: 309 Mich App 590.

On April 6, 2016, the Court heard oral argument on the application for leave to appeal the March 17, 2015 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). The Court of Appeals erred in its reading of Executive Order 225 (EO 225). Contrary to the Court of Appeals conclusion, EO 225 by its plain language expresses the intent of the emergency manager to extinguish the defendant‘s 2011-2012 fiscal year contribution. Although that contribution accrued on June 30, 2012, the defendant had not yet paid the obligation when EO 225 went into effect. EO 225 clearly states that, as of August 1, 2012, the defendant no longer has an obligation “to continue to make contributions” under Article III of the Trust Agreement. It does not differentiate between already accrued, but unpaid obligations and future obligations, and thus by its terms applies to both. Accordingly, the Court of Appeals erred by concluding that the emergency manager did not intend to extinguish the defendant‘s 2011-2012 fiscal year contribution. Nonetheless, although the Court of Appeals determined that the emergency manager could retroactively extinguish the 2011-2012 fiscal year contribution through his authority under 2011 PA 14, it did not specifically address whether EO 225 was a permissible retroactive modification of the plaintiff‘s accrued right to the contribution. See LaFontaine Saline, Inc v Chrysler Group, LLC, 496 Mich 26 (2014). We therefore reverse that part of the Court of Appeals judgment which interprets EO 225, vacate that part of the Court of Appeals judgment which discusses the plaintiff‘s breach of contract claim, and remand this case to the Court of Appeals for it to consider: (1) whether the retroactivity analysis stated in LaFontaine applies to EO 225; (2) if so, whether the extinguishment of the defendant‘s accrued, but unpaid, 2011-2012 fiscal year contribution by EO 225 is permissible under LaFontaine; and (3) if LaFontaine does not apply, the appropriate method for determining whether EO 225 constitutes a permissible retroactive modification of the 2011-2012 fiscal year contribution. We do not retain jurisdiction.

PEOPLE V URIBE, No. 151899; reported below: 310 Mich App 467. On March 10, 2016, the Court heard oral argument on the application for leave to appeal the May 12, 2015 judgment of the Court of Appeals. The application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals. The Court of Appeals analysis of whether the Eaton Circuit