$2 million too much for missing status conference?

No doubt about it, Jordan Mirch or someone representing him should have appeared at a scheduled status conference in Oakland County Circuit Court Judge Denise Langford-Morris’ courtroom.

But summarily clobbering him with a $2 million default judgment isn’t right either, according to a per curiam Court of Appeals panel in RDI of Michigan v. Michigan Coin-Op Vending, et al.

Langford-Morris granted the motion of Mirch’s counsel to withdraw from the case on Aug. 27, 2008. She stated on the record:

So, what I will do is I will stay the case for 21 days and we’ll have you appear with or without counsel, and all trial counsel must appear on that status date.

My clerk will give you the date in approximately 21 days. Failure to appear could result in sanctions and/or finding of liability.

A 21-day stay would have lasted until Sept. 17. But the judge’s written order called for a Sept. 16 status conference, at which “all counsel and parties” must appear.

Mirch didn’t show, later explaining that the written order’s scheduled date clashed with what Langford-Morris told him in court.

Wrong, COA judges Henry William Saad, Joel P. Hoekstra and Deborah A. Servitto collectively said. Even if the date was incorrect, Mirch still had an obligation to appear, the panel said, citing Porter v. Porter, 285 Mich. App. 450 (2009).

Langford-Morris’ response to Mirch’s non-appearance wasn’t right either, the panel ruled. After noting that no one representing Mirch had appeared, the judge, “without any analysis, consideration, or weighing of options,” entered an on-the-spot default and a $2 million default judgment against him.

That’s not the way it’s supposed to go under MCR 2.401(G)(1). The COA panel explained:

[U]nder MCR 2.401(G), the trial court was required to excuse defendant’s failure to attend the pre-trial conference and not enter a default if it found that the entry of default would cause manifest injustice or if defendant’s failure to attend was not a result of his or his attorney’s culpable negligence. Here the trial court did not make any findings pursuant to MCR 2.401(G).

When defendant’s counsel argued at the hearing on his motion to vacate the order finding liability that permitting the default judgment of more than $2,000,000 to remain in place would result in manifest injustice, the trial court simply replied that there was no excuse for failing to appear at the status conference. Therefore, the trial court appears to have disregarded MCR 2.401(G). …

Accordingly, the trial court abused its discretion when it failed to evaluate any other available options on the record. On remand, the trial court is to evaluate less drastic sanctions … .

What’s more, because Mirch had previously appeared in the case, under MCR 2.603(B)(1), he was entitled to seven day’s notice before the default judgment was entered. The lack of notice was “plain error,” the COA panel said.

And, despite plaintiff’s protests, Mirch should have been allowed to contest damages, the panel ruled:

Plaintiff argues that, regardless of any notice violation, the end result will remain unchanged because the damages were all enumerated in the complaint and lease agreement. While this may be true, this Court cannot assume it will be the case – that is the very reason to allow defaulted parties an opportunity to participate in any damages determinations.

The parties, and Langford-Morris, will have another go at it on remand.

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State gets child-murderer’s pension

The Muskegon Chronicle reports that a Muskegon judge has awarded most of child-murderer Dean Catlin Metcalfe’s pension money to the state, to reimburse taxpayers for some of the cost of keeping Metcalfe in prison until he dies.

The order from 14th Circuit Judge James M. Graves Jr. earlier this month

ends a lawsuit by the state treasurer seeking the bulk of the killer’s past and future pension checks from CMS Energy. Metcalfe gets a $263 monthly check deposited into his prison account from CMS, formerly Consumers Power, where he worked as a mechanical repairman. …

Earlier, Graves ruled that the estate of Metcalfe’s murder victim, Andre Bosse, has no legal right to the pension money. That ruling was not disputed by the victim’s mother, Linda Bosse, whose attorney conceded the state’s argument that a December 1997 judgment awarding all of Metcalfe’s assets to the victim’s estate was no longer in effect because more than 10 years had passed without its being enforced.

Damage cap trims $15M dental malpractice verdict

Dental malpractice attorney Robert Gittleman recently obtained a $15 million verdict for one of his clients from an Oakland County jury.

But under a statutory damage cap, his client will get only $500,000.

“Ludicrous and unfair,” says Gittleman.

“It’s not tort reform, it’s tort deform,” Gittleman railed in a report posted on hometownlife.com.

Legislating against Santa Cox

“Political,” “misguided” and “malevolent” fumed Michigan Attorney General and 2010 Republican gubernatorial hopeful Mike Cox last week at a Michigan House Judiciary hearing.

The object of Cox’s wrath? Legislation sponsored by committee chair Mark Meadows (D-East Lansing) that would prevent the AG from handing out settlement money as he chooses when there is no aggrieved party to receive the funds.

Last March, Cox wanted to shower two Grand Rapids-area parks with $250,000 each. The money was part of a settlement Cox obtained from Countrywide Finance, a large mortgage lender that Cox accused of predatory lending practices.

This did not sit well with some politicos, who were upset that Cox had consulted with Peter Secchia, a Republican Party heavyweight who’s in charge of fundraising for the parks. A report in The Grand Rapids Press indicated that Democratic Kent County Commissioner Brandon Dillon felt that Cox’s proposed donation might have had as much to do with the AG’s political ambitions as it did with philanthropy.

Cox said his critics were the ones dragging politics into the matter but announced a last-minute change of plans and gave the money to Heart of West Michigan United Way.

It didn’t take Meadows long to introduce HB 4799, which, in a nutshell, would require left-over settlement money to be deposited into the state’s general fund to be disbursed through the appropriations process, instead of leaving it up to Cox to decide which charity or deserving institution should be favored.

Cox characterized the legislation as an attack on the power of his office. Meadows, according to a report in The Detroit News, says it’s not about curbing Cox, it’s about ensuring that money is disbursed transparently.

Otherwise, as the Detroit News quoted committee member Lisa Brown (D-West Bloomfield), Cox gets “to play Santa Claus almost. How do you decide who’s naughty and who’s nice?”

No one is questioning whether the money is winding up in deserving hands. It is, plain and simple.

But the proposed legislation prevents Cox from playing Santa Claus and would eliminate any suspicion, founded or unfounded, that there is any electioneering wrapped up with the gifts.

State pays less for judgments and settlements in FY 2007-08

The State of Michigan paid out $15.8 million in lawsuit settlements and court judgments in Fiscal Year 2007-08, according to a report from the Senate Fiscal Agency.

That’s a little less than half of the $31.7 million paid out in the previous fiscal year.

For the most recent fiscal year, the Department of Corrections took the biggest hit, $4.8 million. The bulk of that amount was paid to settle two prisoner death cases.

Overall, 89 cases against the state resulted in payments. Fourteen of those cases ended with court-ordered judgments totaling $262,948. The remaining 75 cases were settlements totaling $15.5 million.

It pays to compromise.

Complete report here.