Order Michigan Supreme Court
Lansing, Michigan
November 7, 2008 Clifford W. Taylor,
Chief Justice
134879 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
THERESA ROYCE and CARL ROYCE, Stephen J. Markman,
Plaintiffs-Appellees, Justices
v SC: 134879
COA: 266682
Genesee CC: 04-080383-NO
CHATWELL CLUB APARTMENTS, a/k/a
TOBIN GROUP,
Defendant-Appellant.
_________________________________________/
By order of January 22, 2008, the application for leave to appeal the August 7,
2007 judgment of the Court of Appeals was held in abeyance pending the decision in
Allison v AEW Capital Mgmt, LLP (Docket No. 133771). On order of the Court, the case
having been decided on June 25, 2008, 481 Mich 419 (2008), the application is again
considered, and it is DENIED, because we are not persuaded that the questions presented
should be reviewed by this Court. Although the Court of Appeals relied on Allison v
AEW Capital Mgt, LLP (On Reconsideration), 274 Mich App 663 (2007), and this Court
subsequently reversed that decision in Allison v AEW Capital Mgt, LLP, 481 Mich 419
(2008), the Court of Appeals determination in the present case to remand for further
proceedings because the trial court used a legally unsound basis for granting summary
disposition to defendant with regard to MCL 554.139(1) is not in conflict with the
reasoning set forth in this Court's opinion in Allison. The trial court on remand must
determine whether the defendant owed a duty to the plaintiff under MCL 554.139(1) on
the basis of the evidence the plaintiff has presented in this case.
CORRIGAN, J. (concurring.)
I concur in the denial of leave to appeal so that the trial court can decide whether
defendant is entitled to summary disposition under this Court’s recent decision in Allison
v AEW Capital Mgt, LLP, 481 Mich 419 (2008). I write separately only to express
continued adherence to my concurring opinion in Allison. For the reasons expressed in
that case, I continue to believe that the duty under MCL 554.139(1)(a) to keep the
premises and common areas “fit for the use intended by the parties” extends only to
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significant, structural defects in the property, not to transitory conditions such as snow
and ice accumulations. Id. at 442.
CAVANAGH, J. (concurring in result only.)
I agree with the order denying defendant’s application for leave to appeal. I
disagree with the order, however, to the extent that it implies that defendant’s duty is
dependent on the evidence presented in this case. Defendant has a statutorily mandated
duty to plaintiff to keep all common areas, including sidewalks and parking lots, in a
condition that is “fit for the use intended by the parties.” MCL 554.139(1)(a). The duty
is not dependent on the evidence; rather, the trial court must review the evidence to
determine whether defendant violated the statutory duty it owed to plaintiff.
KELLY, J., joins the statement of CAVANAGH, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 7, 2008 _________________________________________
1104 Clerk