Mills v. Franco Food Equipment, Inc

Michigan Court of Appeals

Mills v. Franco Food Equipment, Inc

409 N.W.2d 829, 161 Mich. App. 376

CourtMichigan Court of Appeals

DecidedJuly 7, 1987

DocketDocket 92663

StatusPublished

Cited by7 cases

This text of 409 N.W.2d 829 (Mills v. Franco Food Equipment, Inc) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mills v. Franco Food Equipment, Inc, 409 N.W.2d 829, 161 Mich. App. 376 (Mich. Ct. App. 1987).

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Opinions

M. J. Kelly, J.

The parties have this Court’s February 21, 1985, opinion in Case No. 72984, and [378]*378its order on rehearing dated October 24, 1985. The facts need not be repeated.

Because of the order on rehearing the doctrine of law of the case is inappropriate and inapplicable on these facts.

We hold that timely rejection of the mediation award is not complete upon mailing.

On review, however, we have a definite and firm conviction that the trial court erred in denying plaintiffs’ request to have their rejection notice received by the mediation tribunal as timely filed and we therefore reverse.

Two witnesses testified that the rejection was indeed mailed timely, in fact eleven days before the deadline. There was testimony regarding the percentage of delayed mail delivery by the United States Post Office in the area serviced. The trial court concluded:

The item that would have put this entire problem to rest once and for all is a [sic] fact the letter envelope which was used by Mr. Stockler’s office to mail the rejection, which would have shown the postmark of it having been placed in the U. S. Mails, just isn’t available, and no one is at fault for this; that is, for its unavailability.

That unavailability was not the fault of the plaintiffs. The plaintiffs’ attorney introduced his copies of the correspondence and his secretary testified as to the date of the mailing. The mediation tribunal routinely discarded envelopes.

Unless the witnesses, Mr. Lawrence Stockier, a practicing attorney, and his secretary of eleven years, Miss Gail Musialowski, conspired to commit perjury and a fraud upon the court, there was unrebutted testimony that the rejection was timely mailed. If it was a delayed delivery on the [379]*379part of the United States Post Office, the rejection should have been deemed timely and the motion granted.

Reversed.

C. W. Simon, J., concurred.

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M. J. Kelly, J.

The parties have this Court’s February 21, 1985, opinion in Case No. 72984, and [378]*378its order on rehearing dated October 24, 1985. The facts need not be repeated.

Because of the order on rehearing the doctrine of law of the case is inappropriate and inapplicable on these facts.

We hold that timely rejection of the mediation award is not complete upon mailing.

On review, however, we have a definite and firm conviction that the trial court erred in denying plaintiffs’ request to have their rejection notice received by the mediation tribunal as timely filed and we therefore reverse.

Two witnesses testified that the rejection was indeed mailed timely, in fact eleven days before the deadline. There was testimony regarding the percentage of delayed mail delivery by the United States Post Office in the area serviced. The trial court concluded:

The item that would have put this entire problem to rest once and for all is a [sic] fact the letter envelope which was used by Mr. Stockler’s office to mail the rejection, which would have shown the postmark of it having been placed in the U. S. Mails, just isn’t available, and no one is at fault for this; that is, for its unavailability.

That unavailability was not the fault of the plaintiffs. The plaintiffs’ attorney introduced his copies of the correspondence and his secretary testified as to the date of the mailing. The mediation tribunal routinely discarded envelopes.

Unless the witnesses, Mr. Lawrence Stockier, a practicing attorney, and his secretary of eleven years, Miss Gail Musialowski, conspired to commit perjury and a fraud upon the court, there was unrebutted testimony that the rejection was timely mailed. If it was a delayed delivery on the [379]*379part of the United States Post Office, the rejection should have been deemed timely and the motion granted.

Reversed.

C. W. Simon, J., concurred.

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Bluebook (online)

409 N.W.2d 829, 161 Mich. App. 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mills-v-franco-food-equipment-inc-michctapp-1987.

Opinions

M. J. Kelly, J.

C. W. Simon, J., concurred.

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