C Amy McCormick v. Michigan State University College of Law

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

AMY MCCORMICK and ROBERT MCCORMICK, UNPUBLISHED July 11, 2024 Plaintiffs-Appellants,

v No. 362932 Ingham Circuit Court MICHIGAN STATE UNIVERSITY COLLEGE OF LC No. 22-000007-CK LAW,

Defendant-Appellee. Before: LETICA, P.J., and N. P. HOOD and MALDONADO, JJ. N. P. HOOD, J. (concurring).

I agree with the analysis and conclusions in the majority opinion. I write separately as it relates to the conclusion in Section V, regarding waiver. There, relying on this Court’s decision in Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 359090); slip op at 2-5, we conclude that under the so-called “raise-or- waive rule,” plaintiffs waived their argument regarding fraudulent transfer by failing to raise it below.

But it is unclear whether Tolas was correctly decided. Cf. Wischmeyer v Schanz, 449 Mich 469, 483& n 26; 536 NW2d 760 (1995) (applying the plain-error standard to an unpreserved error in the civil context); Lenawee Co v Wagley, 301 Mich App 134, 164-165; 836 NW2d 193 (2013) (applying the same); Tillman Indus Props, LLC v Mercantile Bank Mortgage Co, LLC, unpublished per curiam opinion of the Court of Appeals, issued May 9, 2024 (Docket No. 361369) (applying the same).1 See also MRE 103(e). Tolas revisited precedent from our Supreme Court to effectively overrule prior decisions of this Court and resolve conflicting Court of Appeals precedent without a conflict panel as normally required under MCR 7.215(J)(2) and (3). Compare Tolas, ___ Mich App at ___; slip op at 2-5 (interpreting Napier v Jacobs, 429 Mich 222; 414

1 Unpublished opinions are not precedentially binding but may be persuasive or instructive. Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 726 n 5; 957 NW2d 858 (2020); MCR 7.215(C)(1).

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NW2d 862 (1987), to hold that our Supreme Court unambiguously requires application of the so- called raise-or-waive rule to civil cases) with Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 194 n 5; 920 NW2d 148 (2018) (noting that the Michigan Supreme Court has yet to hold that plain-error is the correct or only standard to apply to civil cases). The Tolas Court acknowledged that this Court has applied the plain-error standard to civil cases. See Tolas, ___ Mich App at ___; slip op at 3 (citing as example Henderson v Dep’t of Treasury, 307 Mich App 1, 9, 858 NW2d 733 (2014), and noting that Henderson did not address the distinction between criminal and civil contexts for preservation purposes). This Court previously acknowledged this inconsistency in Shah, 324 Mich App at 194 n 5 (citing Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000), as an example of application of the plain-error standard to civil cases). Unlike Tolas, in Shah, this Court also acknowledged that our Supreme Court has also applied both standards. Shah, 324 Mich App at 194 n 5 (citing as example Wischmeyer, 449 Mich at 483 & n 26). In Shah, this Court declined to resolve the conflict, but appeared to acknowledge that there may be certain civil contexts where the plain-error standard applies. Id. Tolas did not address Shah or Wischmeyer. Instead, it recharacterized the holding in Napier, 429 Mich at 222, as imposing a firm rule that the raise-or-waive rule always applies to civil cases, when Napier held that it generally applies to civil cases. Compare Tolas, ___ Mich App at ___; slip op 4-5, with Napier, 429 Mich at 227-228, 231-233 (noting throughout its analysis that raise-or-waive is the general rule).

Despite the possibility that Tolas is wrong, the nature of the decision likely forecloses this panel’s ability to recommend a conflict panel because the myriad exceptions to the so-called raise- or-waive standard (i.e., avoiding manifest injustice, necessity, sufficient facts to resolve a question of law) mean that the effect of Tolas will never be outcome-determinative. See MCR 7.215(J)(3)(a) (providing that “[s]pecial panels may be convened to consider outcome- determinative questions only.”). Historically, the Court has easily found qualifying exceptions. See, e.g., Compagner v Burch, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 359699); slip op at 12 & n 22 (exercising an exception to the so-called raise-or-waive rule to address an unpreserved argument in a civil case first raised in a motion for reconsideration and also addressing a constitutional issue not raised by the parties); Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006) (exercising an exception to the so-called raise- or-waive rule to address an unpreserved issue involving the implied warranty of habitability); In re Conservatorship of Murray, 336 Mich App 234, 240-242; 970 NW2d 372 (2021) (finding no manifest necessity, but exercising the Court’s inherent “discretion to nevertheless address the issue because the issue involves a question of law and the facts necessary for its determination have been presented.”). See also Napier, 429 Mich at 231-235 (reversing this Court’s decision to address an unpreserved issue under the miscarriage-of-justice exception). Unlike plain-error review, which is a predictable—albeit unforgiving—standard without exception, the “raise-or- waive” rule allows a given panel to simply ignore waiver by invoking one of the many exceptions within the raise-or-waive standard. Tolas, therefore, is unlikely to ever be outcome-determinative.

/s/ Noah P. Hood

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