Mauer v. Topping

739 N.W.2d 625 (2007) Joseph M. MAUER, Personal Representative for the Estate of Kristiana Leigh Mauer, Deceased, Joseph M. Mauer, Individually, Joseph M. Mauer, as Next Friend of Carl Mauer, a minor, Minde M. Mauer, and Cory Mauer, Plaintiffs-Appellees, v. Robert Wayne TOPPING, Defendant, and Board of County Road Commissioners of Manistee County, Defendant-Appellant. Docket No. 128676. COA No. 250858. Supreme Court of Michigan. October 19, 2007. By order of March 31, 2006, the application for leave to appeal the April 7, 2005 judgment of the Court of Appeals was held in abeyance pending the decision in Rowland v. Washtenaw Co. Rd. Comm. (Docket No. 130379). The case was decided on May 2, 2007, 477 Mich. 197, 731 N.W.2d 41 (2007). On May 29, 2007, the defendant Board of County Road Commissioners of Manistee County filed a motion for peremptory reversal. On order of the Court, the application and the motion for peremptory reversal are considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we GRANT, in part, the *626 motion for peremptory reversal and REVERSE the judgment of the Court of Appeals with respect to the defendant's motion for summary disposition regarding the claims of individual plaintiffs Joseph Mauer, Minde Mauer, Carl Mauer, and Cory Mauer. The plaintiffs' notice to the defendant Board was untimely under MCL 691.1404 as to these plaintiffs. Rowland, supra. We REMAND this case to the Manistee Circuit Court for entry of an order granting summary disposition to the defendant Board with respect to these individual plaintiffs. With respect to the claims brought on behalf of the estate of Kristiana Leigh Mauer, the application and motion for peremptory reversal are DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court. WEAVER, J., concurs in part and states as follows: I concur in the majority's decision because, as was the case in Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 731 N.W.2d 41 (2007), the notice provided by the plaintiffs in this case was insufficient under the statute in that it failed to provide "the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant." MCL 691.1404(1). Consequently, the defendant road commission need not show actual prejudice arising from the untimeliness of the notice because, even if the notice had been timely, it was deficient under the statute. MICHAEL F. CAVANAGH, J., dissents and states as follows: I continue to adhere to the views expressed in my dissent in Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 270-279, 731 N.W.2d 41 (2007). MARILYN J. KELLY, J., dissents and states as follows: I continue to adhere to the views expressed in my dissent in Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 248-270, 731 N.W.2d 41 (2007).