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What is a Case Evaluation and is it necessary?

Posted December 5, 2018

Any civil action in which the relief sought is primarily money damages or division of property may be submitted to case evaluation under MCR 2.403(A)(1). Case evaluation is mandatory for tort cases filed in circuit court after October 1, 1986. A court may exempt claims seeking equitable relief from case evaluation for good cause shown on motion or by stipulation of the parties if the court finds that case evaluation of such claims would be inappropriate. The judge to whom an action is assigned or the chief judge may select it for case evaluation by written order after the filing of the answer:

  • on written stipulation by the parties;
  • on written motion by a party; or,
  • on the judge’s own initiative.”MCR 2.403(B)(1)(a)–(c).

To object to case evaluation, a written motion and notice of hearing must be filed and served within 14 days after notice of the order assigning the case to case evaluation. MCR 2.403(C)(1). The motion must be set for hearing within 14 days after it is filed, unless the court orders otherwise. A timely motion must be heard before the case is submitted to case evaluation. The panel’s case evaluation must be in writing and made within 14 days after the case evaluation hearing. Except as indicated in MCR 2.403(H)(3) (derivative claims), the panel’s case evaluation must include a separate award as to each plaintiff’s claim against each defendant and as to each crossclaim, counterclaim, or thirdparty claim that has been filed in the action under MCR 2.403(K)(2).

The evaluation must indicate if it is not a unanimous award. Costs shall not be awarded if the case evaluation aware was not unanimous. If case evaluation results in a nonunanimous award, a case may be ordered to a subsequent case evaluation hearing conducted without reference to the prior case evaluation award, or other alternative dispute resolution process, at the expense of the parties, pursuant to MCR 2.410(C)(1). In certain tort cases, if the panel unanimously finds that a party’s action or defense as to any other party is frivolous the panel shall so indicate on the evaluation. An experienced attorney can help you to navigate civil litigation and tort laws in Michigan.

Parol Evidence:

Posted November 9, 2018

Oral (parol) evidence is not admissible to contradict or change an unambiguous written agreement. The parol evidence rule has four exceptions. Extrinsic evidence is admissible to show that the writing was a sham, not intended to create legal relations, that the contract has no efficacy or effect because of fraud, illegality, or mistake, that the parties did not integrate their agreement or assent to it as the final embodiment of their understanding, or that the agreement was only partially integrated because essential elements were not reduced to writing.

Parol evidence is inadmissible to show that an agreement is not integrated when the parties have included an integration clause in the contract, unless the case involves fraud or the agreement is obviously incomplete on its face, making parol evidence necessary as a gap filler. Where the writing is not ambiguous on its face, the circumstances under which the parties contract may be looked at to establish an ambiguity, as well as to indicate the proper choice of possible meanings; and the common knowledge and the understanding of the parties themselves as shown by their previous negotiations is sometimes such a circumstance.

The parol evidence rule does not preclude the introduction of evidence to establish that there was a condition precedent to the contract that was not included within the contract. Where there is evidence that a latent ambiguity exists with respect to the intended scope of a release, a court may consider parol evidence regarding that scope when an unnamed party seeks to enforce thirdpartybeneficiary rights based on the broad release language.

In Shay v Aldrich, 487 Mich 648, 676, (2010), the plaintiff claimed that he had been assaulted by several police officers. Shay, supra at 651. After accepting case evaluation awards with respect to two of the officers, the plaintiff executed two separate releases in each officer’s name. Id. at 652653. The releases also stated that “all other persons” were released from liability. A latent ambiguity exists when the language in a contract appears to be clear and intelligible and suggests a single meaning, but other facts create the necessity for interpretation or a choice among two or more possible meanings. To verify the existence of a latent ambiguity, a court must examine the extrinsic evidence presented and determine if in fact that evidence supports an argument that the contract language at issue, under the circumstances of its formation, is susceptible to more than one interpretation. Then, if a latent ambiguity is found to exist, a court must examine the extrinsic evidence again to ascertain the meaning of the contract language at issue. The Court concluded that the extrinsic evidence presented by the plaintiff clearly showed that the broad release language was not intended to release the defendants from liability.

Parties to a written agreement may, by parol evidence, extend the time for performance, especially where the contract does not make time of the essence. As it relates to oral modification of a written agreement, there is a higher burden of proof. Clear and convincing evidence of a mutual agreement to modify the contract is required. A departure from the written contract can be predicated on the parties’ conduct, as well as on the express language of an agreement.

Shay v Aldrich, 487 Mich 648, 676, (2010).

Hamade v Sunoco, Inc (R&M), 271 Mich App 145, 166 (2006)


Construction of a Contract:

Posted October 22, 2018

In determining contractual rights and obligations, a court must look to the intention of the parties, and a contract should always be construed so that it carries that intention into effect. When the words of a written contract are clear and unambiguous and have a definite meaning, the court has no right to look to extrinsic evidence to determine their intent. Indeed, if the language of the entire contract is clear and unambiguous, there is no room for construction by the courts, and in such case, the language must be held to express the intention of the parties and the court need not search for meanings nor indulge in inferences as to the intention of the parties.

Where a contract’s language “is subject to two or more reasonable interpretations or is inconsistent on its face, the contract is ambiguous, and a factual development is necessary to determine the intent of the parties. Generally, the language of a contract is to be construed against its drafter. However, construing a contract against the drafter to resolve ambiguous contract language (called the rule of contra proferentem) is applicable only if the intent of the parties cannot be discerned through the use of all conventional rules of interpretation, including an examination of relevant extrinsic evidence.

Klapp v United Ins Group Agency, Inc, 468 Mich 459, 472 (2003).