Opinion
No. 127515.
January 13, 2006.
Summary Disposition.
SC: 127515, COA: 248795.
In lieu of granting leave to appeal, we reverse part III of the Court of Appeals opinion and reinstate the Oakland Circuit Court's order denying plaintiff's motion for reconsideration. For the reasons stated in the partially dissenting opinion in the Court of Appeals, the trial judge did not abuse her discretion when she denied plaintiff's motion for reconsideration.
CAVANAGH, J. I would deny leave to appeal.
I would deny leave to appeal. In denying plaintiff's motion for reconsideration, the trial court held that plaintiff "merely present[ed] the same issues ruled upon previously by this Court. . . ." This statement was an error because plaintiff argued for the first time in his motion for reconsideration that defendant was liable under MCL 554.139. The dissent in the Court of Appeals, upon which the majority relies, asserted that "`[w]e find no abuse of discretion in denying a motion resting on a legal theory and facts which could have been pled or argued prior to the trial court's original order.'" Bentfield v. Brandon's Landing Boat Bar, unpublished opinion per curiam of the Court of Appeals, issued August 31, 2004 (Docket No. 248795) (METER, J., concurring in part and dissenting in part), quoting Charbeneau v. Wayne Co Gen Hosp, 158 Mich App 730, 733 (1987). However, it also would not necessarily have been an abuse of discretion to have considered a motion for reconsideration resting upon a new legal theory. See MCR 2.119(F)(3). The trial court simply failed to recognize that plaintiff was raising a new legal theory and, as a result, failed to exercise its discretion to consider (or not consider) plaintiff's argument. The trial court's failure to exercise its discretion was itself an abuse of discretion.
KELLY, J. I join the statement of Justice MARKMAN.