Offer of Judgment rule

Although the Michigan Supreme Court rarely addresses the offer of judgment rule, MCR 2.405 (I could only find one previous case--Freeman v Consumers Power Co., 437 Mich 514, 473 NW2d 63 (1991)), the Court issued an opinion this week regarding the interplay of offers of judgment in equity actions in Knue v Smith. In this quiet title action, a party made an offer of judgment of $3,000 in exchange for a quitclaim deed. The Court held, in a highly divided decision, that the offer was not an offer to stipulate to "the entry of a judgment in a sum certain" as required by MCR 2.405. The decision has important implications for attorneys in real property disputes, which typically involve equity issues.

Apsey and out-of-state notary requirements

The Michigan Supreme Court issued a long-awaited decision in Apsey v. Memorial Hospital yesterday. The opinion clears up an important area of law that was muddied by the Court of Appeals' decision in 2005. Although this decision arose from a medical malpractice case, its implications are far-reaching. I predict that Apsey will be the Court's most important decision of the 2006-2007 decisional year. Interestingly, each of the nine amicus curiae briefs (including briefs from the MDTC, MTLA, and SBM) that were submitted in this case supported the plaintiff who had lost in the Court of Appeals because the notarized affidavit of her expert witness was not authenticated by a clerk of the court in the county in which the affidavit was made. In short, the Supreme Court's decision confirms that an out-of-state affidavit that is notarized in accordance with the laws of that state satisfies Michigan's affidavit and notarial requirements and can be accepted in Michigan judicial proceedings without further authentication.