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Court dismisses "slip and fall" because Plaintiff's brief was in Court's mailbox and not in the Court file

Judges Henry Saad and Kirsten Kelly out-did themselves for the insurance industry this week.  Georgia Luke had sued the Valley Ranch Apartments after a fall on ice.   The defendants sought to dismiss the case, and on October 16 they filed a motion to be heard on October 30.  Luke's attorney scrambled to file an response, and send it USPS Express Mail for delivery on October 23--the date her response to the motion was due.  Unfortunately, the response was delivered to the Court's Post Office Box after the Circuit Court clerk picked up the regular mail, so it wasn't "stamped" received by the Court until the next business day.  On that basis, the Circuit Court refused to consider the response and dismissed Luke's case.  Luke appealed, arguing that the Circuit Judge's refusal to consider her response was an abuse of discretion. 

The Court of Appeals, with Saad and Kelly, rejected Luke's claim and upheld the dismissal.  Its opinion included this pearl of semantic wisdom: 

"[T]he court did not  grant defendant's motion simply because the  plaintiff's response was late.  Rather, because the plaintiff's response was late, the trial court did not consider her brief and its attachments when deciding the motion.  Plaintiff did not produce any other evidence to support her response [because her response was late and the court wouldn't consider it], so there was nothing to refute the weather reports and deposition evidence defendant submitted to the  court.  This lack of substantive evidence in support of plaintiff's claims formed the basis for the grant of defendant's motion..."

Today, this passes for justice in our state.  Maybe Luke's case should be dismissed.  On the other hand, it seems as though justice needn't move quite that swiftly:  delivering a dispositive brief to the court's post office box on the seventh day after the adverse party requests dismissal, rather than handing it to a clerk, shouldn't decide the merits of a case.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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