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Marston, J:
The action in this case was assumpsit on the common counts. The plea was the general issue with notice of recoupment. Plaintiffs furnished a bill of particulars which is not printed, but it is conceded that they confined themselves therein to a recovery upon an account stated. Plaintiffs offered evidence tending to show that they had performed certain work under a contract; that the work was well done; that the materials furnished were good, and that every thing was done in accordance with the terms of the contract. This evidence was objected to by defendant’s counsel, on the ground that the plaintiffs sought to recover on an account stated. The court sustained the objection and excluded the evidence. After the plaintiffs rested counsel for defendant offered to show that the work was not properly done and the damages he sustained in consequence thereof; this was objected to and excluded. The court in charging the jury confined them to the single question of a settlement between the parties, and instructed them that they had nothing to do with the question as to whether the work was well done or not; that the question submitted was whether the one thousand dollars was agreed upon absolutely and without condition.
Counsel for plaintiff in' error, in this court, insist that there was no evidence of an account stated, and that the jury should have been instructed to "find for the defendant. It is sufficient to say that there was evidence tending to show that the parties met, settled up, and that a balance was struck and agreed upon. That question was fairly submitted to the jury and their finding is conclusive.
It is next claimed that a certain account, exhibit H, was erroneously admitted in evidence. We think this was ad missible as tending' to show that there had been dealings between the parties which the other evidence in the case tended to show had been examined, and a balance agreed upon. Besides, we do not see, and - counsel have not even suggested, how its admission could in any way prejudice the defendant.
There was some question as to whether at the time the settlement was made and order give'n on Steyskall and Brothers, it was upon condition that they had accepted the work, and the court permitted evidence to be introduced tending to show that the Steyskalls had accepted the work, and there was also evidence given tending to show that they had not. All evidence, however, as to whether the work had been properly done or not was excluded by the court, and this upon the objection, in the first instance, of counsel for defendant below, who is plaintiff in error here. It would seem that if the court below, upon defendant’s counsel insisting that the plaintiffs were only entitled to recover, if at all, upon an account stated, excluded all testimony offered by them tending to show that the work had been properly done according to contract, afterwards for the same reason excluded testimony offered by defendant tending to show that the work had not been properly done according to contract, that he should not now be permitted to come here and complain of a ruling which was the legal result .of the position he had taken when the plaintiffs were making their case.
At defendant’s request the court ruled that the plaintiffs could only recover upon an account stated. This being so, whether the work was properly done or not was of no importance. The nature of the original transaction out of which the acknowledgment of indebtedness grew was immaterial. — Stevens v. Tuller, 4 Mich., 388; 2 Greenleaf on E., § 127.
There being no error, the judgment must be affirmed, with costs.
The other Justices concurred. | [
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Per Curiam:
This was assumpsit by defendant in error, against plaintiff in error and others, upon several promissory notes. The plaintiff in error appeared and demurred to the declaration, and defendant in error joined. Subsequently the court overruled the demurrer, and without any notice of assessment of damages, proceeded immediately to assess damages and enter final judgment. Conceding for the present purpose, but not deciding, that the case was not a proper one for allowing the plaintiff in error to plead over (Tefft v. McNoah, 9 Mich., 201), the court could go no further, on overruling the demurrer, than to award judgment interlocutory. It was not regular to give final judgment in the first instance for a given sum in damages. — 1 Burrill’s Prac., 250; 2 Tidd, 798.
The course was, if the case was not proper for pleading-over, to adjudge that the demurrer be overruled, and that the plaintiff below ought to recover his damages, leaving the amount to be subsequently ascertained, and ordering it to be referred to the clerk to “examine, ascertain and report what sum the plaintiff ought to recover for his damages.”— §§ 6060, 6061, 6062, C. L. And no assessment could be regularly made without notice. — § 6063, C. L.
The defendants below were entitled to be heard upon the assessment, after having appeared. — 1 Burrill’s Prac., 873, 374.
The judgment and assessment must be reversed, with costs, and the cause remanded for further proceedings.
The other Justices concurred. | [
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Cooley, Oh. J:
This action is brought upon a promissory note for five thousand dollars, given to the plaintiff by the defendant Bennett as principal, and the defendants Buck and New-hall as sureties, bearing date November 16th, 1867, and payable in ninety days from that date. The amount of the note was applied, in the main, to the taking up of a previous note held by the plaintiff against Bennett, on which other parties were sureties.
The defense is based upon transactions which occurred contemporaneous with the giving of the note sued upon. It appears that Richard Reed was at that time president of the bank, and was very desirous of accommodating Bennett with a discount, for reasons which are not explained: he therefore undertook to procure sureties for Bennett, and personally solicited Buck and Newhall to become such sureties. They at first declined, but Reed took from Bennett a note of five thousand dollars to himself, with a mortgage on real estate collateral thereto, the sum being nominally payable in six months, and considering this a sufficient indemnity, executed and delivered to Buck the following paper:
“Sturgis, November 18th, .1867. For value received, I hereby guaranty Benjamin C. Buck against all loss or liability by reason of signing a. note with E. G. Bennett for five thousand dollars, discounted at the First National Bank of Sturgis, dated November 16th, 1867, and due ninety days from date. Richard Reed.”
He also executed and delivered a paper of corresponding import to Newhall.
The mortgage which Reed took was subsequently foreclosed in his name, but nothing has as yet been realized upon ‘it. Buck and Newhall defend this suit on the claim that the guaranty given to them respectively, is really the guaranty of the bank, and therefore constitutes a legal bar to any claim against them on the note.
The defense is sought-to-be made out on the testimony of Reed. It is not claimed that the directors of the bank ever authorized him to give any guaranty on behalf of the bank, or that they were privy to or cognizant of Reed's negotiations on behalf of Bennett. The defense rely upon the fact, which was very clearly established, that Reed at the time had general charge of all discounts by the bank, and in respect to them was allowed to exercise all the powers of the board of directors.
It is a serious question whether a general authority in the president of a bank to make discounts, could empower him to make an arrangement under which the bank would surrender securities on receiving others, which it was at the same time agreed should be mere nullities so far as the sureties .were concerned. But this would be the effect of the arrangement now under consideration, if the guaranty-made by Reed can be treated as the guaranty of the bank. 'The circuit judge was quite right in holding that such a guaranty, if made by the bank and binding upon it, would be a bar to any suit by' the bank against' the sureties. It would also be a serious question whether, under the general banking law, the bank itself could give such a guaranty, when the effect would be to make the paper discounted the paper of one party only, secured by mortgages on real estate.
But we think these questions not involved in the present case. The guaranties given by Reed to Buck and Newliall .were on their face his own guaranties, and did not purport to bind the bank in any manner. They were also undertakings to answer for the debt or default of another, •and were therefore directly within the statute of frauds, and would have been invalid if not in writing.
They could only be made the undertakings of the bank by the parol evidence of Reed as to his understanding and purpose to bind the bank by giving them. But when that understanding and purpose are proved, the whole arrangement, so far as the bank is concerned, is left to rest in parol, and the bank, if charged at all, is made liable on a contract that on its face is plainly and professedly the contract of Reed alone. This is not only directly in the face of the statute of frauds, but it is difficult to conceive of a case in which the reasons for the enactment of the statute could apply with more force. The arrangement, as it appears on its face, was valid in all its parts; the bank could enforce the note against all the parties to it, and the sureties could enforce the guaranty against Reed, who had solicited their signature to the note. But the arrangement, as Reed sets it up, defeats itself in the most important particular, by making the guaranty nullify the obligation of the sureties. Now if Need can shoulder his responsibilities upon the bank by the parol evidence which is to make the bank promise in his name, .the statute is not only set aside, so far as it precludes one being charged by parol for the debt or default of another, but the written engagement of Need, which is perfectly legal and valid on its face, and which, as a personal undertaking, is entirely consistent with the circumstances, is at the same time remodeled by releasing the ostensible party and charging another who by the writing does not appear to have any connection with it.
It is very manifest, we think, that the court erred in admitting the parol evidence to charge the bank on Need’s guaranties. The judgment must consequently be reversed.
As this is a case made, and the facts are all found which show the liability of the defendants, judgment will be entered against them on the finding for the amount of the note, with costs of both courts.
The other Justices concurred. | [
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] |
Marston, J:
This was an action on the case for false imprisonment. Defendant in error made complaint before Caleb J. Barlow, a justice of the peace, upon which a warrant was issued, and plaintiff in error arrested thereon, at the city of Detroit, December 13, 1873. The plaintiff testified on his own behalf that-he was taken before the justice on the evening of the same day that he was arrested, and that he “stayed with the said justice from that time (Saturday, December 13th, 1873) until Monday morning, December 15th, when the said defendant Burroughs appeared, and on his motion the examination was adjourned until December 30th, although the plaintiff was ready and asked that the examination should be had at that timo, and said plaintiff ivas allowed to go upon his own recognizance from said 15th to said 30th day of December;” that on the 30th the parties again appeared and such proceedings were thereupon had that the plaintiff was discharged.
It seems to have been conceded on the trial in the court below, and also in this court, that neither the complaint made before the justice, nor the warrant issued thereon, alleged any offense known to the law, and that the arrest and imprisonment thereunder were consequently illegal.
The defendant was examined as a witness on his own behalf; and after testifying that ho made the complaint and caused the warrant to be issued, he further testified that he did so “under the advice of one William E. Warner, who was not an attorney, but who sometimes gave advice to his neighbors in the country for pay; and also upon the statements of Myron Ellis and one or two others, that the said plaintiff Livingston intended to cheat him, Burroughs, out of what he, Livingston, owed him.” He also testified to statements made to him by the plaintiff, and also by several other parties, as to conveyances of certain lands for the purpose of cheating him. This evidence was all objected to, but upon what ground does not appear. After all the evidence in the case was introduced, and before the case was submitted to the jury, counsel for the plaintiff moved to strike out all this evidence on the ground that it was incompetent, irrelevant and immaterial. The motion was overruled, counsel excepted, and error is assigned thereon.
Counsel for defendant in error now insist that this evidence ivas introduced in mitigation of damages, for the purpose of showing that defendant had reasonable or probable cause for making the complaint, and that ho was not actuated by malice.
Evidence had been introduced on the part of the plaintiff tending to show that Burroughs was induced to cause plaintiff’s arrest at the instance of one Ellis, who wanted to get plaintiff out of the way, so that he could not be a witness in a certain cause then pending at the time of his arrest. Defendant had undoubtedly the right to prove by any competent testimony that he was not induced to make the arrest for any such purpose as the one to which the plaintiff had thus testified, and for this purpose might have introduced and testified to the conversations he had with Ellis, if any, in reference to the arrest. But independent of this, we still think the evidence was admissible in case the plaintiff claimed any thing more than actual damages m the case. Exemplary damages may be allowed in cases where the elements of fraud, malice, gross negligence or oppression mingle in the controversy. In such cases it becomes a material question whether the defendant acted prudently, wisely or in good faith, and for this purpose the information on which he acted, whether true or false, is original and material evidence. — 1 Green. Ev. § 101.
For the purpose of determining whether, under all the circumstances, the party acted in good faith or not, the jury will have the right, and it will be their duty, to consider the sources from which the party sought and derived his information. He would not be justified in knowingly seeking and acting upon information, either of law or fact, given him by unreliable or disreputable parties. We can but say that the information should be of such character, and be obtained from such sources, that business men generally, of ordinary care, prudence and discretion, would act upon it under similar circumstances, believing it to be reliable.— Gallaway v. Burr, 32 Mich., 332. And whether the facts will bring the case within this rule or not, must bo a question for the jury.
The evidence as to the advice of Warner was inadmissible. This is disposed of in Stanton v. Hart, 27 Mich., 540.
The court, at the request of defendant’s counsel, charged the jury, first, “that the evidence in this case shows a case of malicious prosecution, if it shows any thing, and that under the plaintiff’s declaration he cannot maintain a case of malicious prosecution.”
The court was also requested to charge,,fourth, “that the jury cannot find in favor of the plaintiff Livingston, without being satisfied that Burroughs procured the arrest of Livingston without reasonable or probable cause for making the complaint before justice Barlow, and that Burroughs, in making the complaint, was actuated by feelings of malice.” To which the court said: “I will say to you on that, that you can find nothing more than nominal damages.”
We think the first request as given was ambiguous and likely to mislead the jury. As to the fourth, whether Burroughs had or had not reasonable or probable cause for making the complaint, was wholly immaterial, except as it might affect the question of exemplary damages. His good faith could not prevent the plaintiff from recovering the actual damages he had suffered from thé alleged false imprisonment.
The judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Campbell, J:
James sued Muir for a quantity of square timber delivered to the latter in June, 1873. The declaration contains one count on special contract, one for timber sold and delivered, and agreed to be paid for at a reasonable price, and the common counts.
The special count averred a sale of four hundred and twenty-eight pieces of timber, August 6, 1872, then in Arbola, Tuscola county, and an agreement to deliver the same to defendant in Bay City in the spring of 1873 as early as the ice and weather would permit; and that defendant, in consideration thereof, agreed and promised to pay the plaintiff therefor, as the same should be delivered at Bay City, the market price of square oak timber of like quality at Bay City aforesaid at the time of the delivery thereof. It then avers a delivery and acceptance of three hundred and sixty-two pieces, and proceeds as follows: “that a portion of said timber so agreed to be delivered, to-wit: sixty-six pieces, the said plaintiff did not deliver with the said three hundred and sixty-two pieces, because the same, without his fault or neglect, while the same was being run to Bay City aforesaid, became scattered, and portions thereof wholly lost, and the said plaintiff refused to deliver the said sixty-six pieces, or any part thereof, because the said defendant wholly failed and refused to comply with and fulfill his said contract in this, that the said defandant refused .to pay for said timber, or any part thereof, at a higher or greater price than fifteen cents per cubic foot;” and it then avers the market price to have been twenty-eight cents a foot.
The verdict was at the rate of fifteen cents a cubic foot, for so much as had not been paid for at that rate by advances.
The plaintiff, to make out his case, besides showing a delivery of the timber, introduced the following paper, claiming it to be a contract of sale, and to contain the entire bargain between the parties:
“Port Huron, August 6, 1872.
“Beceived from B. Muir the sum of $629 00, C. cur., (six hundred and twenty-nine dollars, C. cur.) being pay in full of all demands for making and delivering square oak timber at Bay City, Michigan, for the year 1872. Also, B. Muir has advanced to J. James $2,077 42 C. c., (two thousand no hundred and seventy-seven dollars forty-two cents, C. c.) on 428 pieces of timber now lying in town of Arbela, Michigan, measured and marked M., which -said timber J. James agrees to deliver at Bay City, Michigan, in spring of 1873, as early as the ice and weather will permit, free of all incumbrances, to B. Muir. Interest at the rate of 10 per cent, from 1st of April, year 1872, till the timber is delivered at Bay City. J. James agrees to pay and account to B, Muir in spring of 1873 for the within mentioned §2,077 42, C. c., with interest, advanced on said timber to be delivered in spring of 1873 at Bay City, interest at the rate of 10 per cent., C. c., from 1st of April, 1872 till the timber is delivered at Bay City in the year 1873.
“'[Signed] J. James.”
When this contract was produced, it appeared to have been altered, and the alteration was explained and admitted to have been made at the time of signing; the draft having expressed a rate of payment in the words “at the rate as in 1872,” and nothing having been expressed as to interest on advances.
The plaintiff swore that on the delivery of the timber actually brought down in 1873, defendant was not willing to pay for it except at the last year’s prices, while plaintiff was unwilling to settle on such terms on account of the arrangement in the writing. An agreement was made to arbitrate, which was not carried into effect. Plaintiff" also swore that the balance of the timber was scattered along the river, and could not then be delivered, and had not been.
Upon cross-examination, and in other ways, a considerable amount of testimony was introduced, to which plaintiff objected, and which will be referred to presently.
Plaintiff claims that the agreement of August 6th, 1872, on which he seeks to recover, was in itself a complete and binding bargain, containing every essential of a contract of sale, except the price, which it is claimed appears by implication.
As this is a suit in which defendant and not plaintiff is the “party to be charged,” and as the payment of the price is the only thing for which he is chargeable, it may be a (¡uestion of some importance whether, if this paper is a contract of sale, the statute of frauds is complied with so as to bind him. Where a contract is executory and not executed, it is laid down by somo authorities, if not generally, that unless the price is fixed distinctly according to some standard, either bf amount, or of market, or of reasonableness, or some other method of ascertainment, the contract is incomplete, and the purchaser is not bound. Where goods are accepted, and nothing has been said about the price, a reasonable price has been recognized as 'correct. In Acebal v. Levy, 10 Bing., 376, it rvas held that where a contract was' silent as to price, and there was evidence of a parol agreement as to price, there could be no recovery on a quantum valebant, and that á contract in writing was as necessary for a reasonable price as any other. In Valpy v. Gibson, 4 C. B., 837, where the court found expressly an acceptance of goods where the invoice was priced, Wilde, C. J., remarked obiter, that the Omission of price did not necessarily invalidate a contract of sale, and that goods were frequently sold by a contract “which does not specify the price or mode of payment, leaving them to be, settled by somo future agreement, or to be determined by what is reasonable under the circumstances.” In that case the court found everything had been agreed upon, and the discussion was not important, except as intimating that when the price was not mentioned, that element was not thereby fixed by implication at a reasonable or any other rate, but was open to proof. Proof that there was a parol agreement disproves the completeness of the memorandum. — Benjamin on Sales.
In the present case it is sufficient to say that according to Acebal v. Levy there is at least no implication of a promise to pay at what may happen to bo the market rate, which may not be always, as there held, a reasonable rate 3 and tire contract does not support the special count.
As the contract, whatever it may be, becomes important in another point of view, it is still necessary to determine whether it is such an instrument, as with the addition of such help as might come from the implication claimed, is' complete enough otherwise to exclude parol evidence of the real ature of the agreement.
We do not think that the writing, taken by itself ¿done, indicates a sale at all. It shows upon its face that it is a settlement of some past transaction, in part, and that the defendant had, as early as the April previous, advanced a large sum of money on four hundred and twenty-eight pieces of timber, identified by their marks, which plaintiff was to deliver to defendant free of encumbrance the next-spring, when plaintiff was to pay and account for the advances and interest.
There is nothing to indicate for what purpose defendant was to receive or hold this timber, whether as purchaser, mortgagee or factor. It is quite as consistent with a loan upon the security of the timber as anything else. It does show unmistakably that the advances must have been made on some previous arrangement, and not under this paper, because they were to bear interest from April 1st, and the writing is dated August 6th. The only definite conclusion to be drawn from the paper, assuming it to be fully binding as a contract of some kind, is, that it is not a complete transaction in itself, but only a part of some course of dealings, and to be read and applied by their aid. It is merely an agreement to deliver timber to defendant, and at the-time of delivery to account for the advances and interest. It is not on its face an agreement which binds defendant to-pay any money, or to purchase timber, nor is it complete in itself as an entirely independent contract for any purpose.
Without extrinsic evidence there was nothing to bind defendant under the writing. He distinctly refused, in receiving the timber, to pay any price except one which he insisted was within a former agreement. Plaintiff does not -show, unless very indirectly and inferentially, what price he demanded. There was no waiver or assent which could prevent defendant from setting up his actual «rights, whatever they may have been.
There was no error, therefore, in holding it competent to show by any relevant testimony all the previous relations and dealings of the parties concerning this timber; and the written contracts and arrangements of 1870 and 1871 were relevant for that purpose.
The agreement of September 27, 1871, bound James to make, draw, raft and deliver 'to Muir all the square oak which “he makes in 1872, or has now made, in the spring of 1872, as early as navigation will permit, free of encumbrances;” and also bound him to use all moneys received, in buying standing timber, or skidding, making and drawing timber or rafting material, or rafting and running the timber to Bay City. It was to average at least sixty-eight feet, and if possible seventy; and it was to be paid for at one hundred and fifty dollars per thousand feet, in the following way: twenty dollars for standing oak, forty dollars for making, ten dollars for skidding, twenty dollars for hauling, and forty dollars for rafting and rafting material and running, and five dollars for towing, and fifteen dollars per thousand when delivered, with an additional five dollars if the timber sold at Quebec for three hundred and seventy-five dollars per thousand.
The present timber was got out, identified and measured, and marked by plaintiff and defendant, before or during the time mentioned in that contract, and was undoubtedly covered by it. It is also beyond question that the failure to deliver it in the spring of 1872 was a breach of that contract, unless excused, and one which might be excused by a change of time.
July 20th, 1872, an account was made up, which brought together in a single statement the timber actually delivered at that date at sixteen cents a foot, and the other expenses of the business, and included a reference to the four hundred and twenty-eight pieces in question, as “measured in the bush,” showing an advance of two thousand seventy-seven dollars and forty-two cents, which is the advance referred to in the instrument of August Gth, 1872. Appended to this account is the following document: “July 20th. This is to certify that J. Janies has settled up in full for year 1872, as above account shows. And B. Muir has advanced on four hundred and twenty-eight pieces oak timber, measured in the bush in town of Arbela, two thousand, seventy-seven dollars and forty-two cents, Canada currencjy which amount J. James agrees to pay or account for in year 1873, when work is commenced on above timber to draw in year 1873, and agrees to deliver said timber at Bay City to B. Muir, interest at ten per cent., Canada currency, from 1st of April, 1872, till the timber is delivered at Bay City. J. James.”
This originally did not contain the last clause, which provides for interest, and fixed the price at rates of 1872. The change was made at the time the agreement of August Gth was made, and so as to make the two correspond.
It will bo observed -that the only essential difference between these two papers as originally drawn is, that the July paper required James to account for the advances as soon as work was commenced on the timber, while the August paper postponed it until delivery of the timber. The change as to price and interest was made at the same time.
Under those circumstances we think the writings all belong together, and that there could be no presumption of a change beyond the. writings, until established by- distinct evidence. There is no ambiguity whatever in either of these papers, when so construed, while, without this connection, neither of them is complete, and neither would make out a contract of sale, or any other contract on which plaintiff could have a right of action. The evidence that all these papers existed, and that the timber was got out and measured so as to come within the agreement of 1871, ’is not disputed. The result is inevitable that the instrument of August, 1872, is either a supplement to that of 1871, or else is invalid entirely, for want of a compliance with the statute of frauds, which, whatever may be the rule as to price, requires that the memorandum shall at least show all the other terms of the contract, and especially must show that it is a contract of sale. The parol negotiations were merged in the writing. Whatever may have been the reasons which led to the peculiar form of the writing when made, it must speak for itself. And the reference to an advance on the timber, made and to be credited as of a period within the life of, and before any default in, the contract of 1871, precludes the claim that the writing was an entirely new agreement. If the advance had been made at the date of the paper, the case might have stood on different grounds; but the language incorporates the advances as an essential element in the transaction, and as having been connected with some sort of claim upon the timber which was to be respected. The only claim shown by either party at the time the advances were made was the contract of 1871, then in full force, and with that and the paper of August Oth a complete written contract is made out upon the now basis.
The question whether any arrangement was made about the price after August 6th, 1872, was left by the court where the parties had been satisfied to leave it. The jury must have found there was no new bargain made after August 6th.
Wo do not think it material what was the precise extent of defendant’s specific interest in the timber under the contract of 1871, after it was got out and identified and marked, because it would not change or affect any question involved here. If ho had any rights at all, and the new contract did not abrogate them, the case was fairly left to the jury.
The judgment must bo affirmed, with costs.
. Graves, J., and Cooley, Cu. J., concurred.
Marston, .1., did not sit in this case. | [
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Per Curiam.
Petitioner appeals by leave granted an order of the probate court admitting Comor White’s will to probate. Petitioner challenges the probate court’s finding that the will at issue is not a joint and mutual will. Petitioner also argues that because it is undisputed that Catherine White’s execution of the will was invalid, the entire will is invalid and the probate court erred when it admitted the will to probate in the estate of Comor White. We agree with the probate court that the will at issue is a joint and reciprocal will, but not a mutual will, and also find that Catherine White’s failed execution of the joint will did not invalidate the will as it pertained to Comor White. We affirm. This case is being decided without oral argument pursuant to MCR 7.214(E).
Comor White was bom on October 17, 1915, and Catherine White was bom on December 24, 1918. The testators married but had no children. They purportedly signed a will on May 8, 1999, distributing their estate to approximately seventy friends and relatives. The estate was comprised of several rental properties and a barber shop business. A few months later, on November 29, 1999, Catherine White died. No probate estate was opened for Catherine White. Upon Catherine’s death, property that was jointly owned went to Comor White regardless of the will. Any remainder property owned by Catherine White is subject to the probate court’s determination of intestacy and not a matter of this appeal. Comor White died the following spring, on May 3, 2000.
A probate estate was opened for Comor White. On January 15, 2002, petitioner, who would benefit from intestate succession, challenged the validity of the will. Soon after, the probate court entered an order ordering a bill of particulars. Petitioner furnished a bill of particulars in March 2002, asserting that one of the two purported witnesses to the will “did not see the two principals sign” and that “the other subscribing witness has built into the will a $5,000 legacy to himself.” Petitioner concluded in the bill of particulars that the will should be disallowed as the last will and testament of both Catherine and Cornor White.
The two purported witnesses to the will, Theresa Pearce and attorney Charles Waugh, gave their deposition testimony in March 2002. The parties do not dispute that Catherine White’s signature on the will was witnessed only by Waugh and not by two persons as required by statute. Further, attorney Waugh could not remember whether Pearce was in the room when Comor White signed the will or if Pearce entered the room after both Catherine and Comor signed. Pearce testified that she was called into the room and both Comor White’s and Waugh’s signatures were on the will. Pearce also stated that Comor White asked her to witness his will, and then she noted the document stated that it was a will and then she witnessed the will in Comor White’s presence. Waugh also testified that he both drafted the will and was the recipient of a $5,000 bequest from the testators in their will. Waugh was removed as counsel as of August 29, 2001, as noted by a probate court docket entry.
In April 2002, petitioner moved for summary disposition, arguing again that the will should be invalidated in its entirety. Respondents, who are devisees under the will, opposed petitioner’s motion and filed their own motion for summary disposition in May 2002. The personal representative specifically declined to take a position on the motions. The probate court heard arguments on the motions on June 11, 2002.
In a written opinion, the probate court found that the will was joint and reciprocal but not mutual. The probate court found that the will constituted a single document expressing the individual intentions of the testators “just as two separate wills would have done instead of this one will.” The will was “not necessarily mutual because the will does not express a mutually acknowledged promise, consideration, or obligation between the testators that the will is irrevocable.” The probate court held that the will was invalid and unenforceable with regard to Catherine White and that her assets will pass by intestacy. However, the probate court held that the will was valid and enforceable with regard to Comor White and that the will should be admitted to probate to carry out his intentions. Hence, jointly owned assets would pass to Comor White by intestacy and then as directed in Comor White’s will. The probate court’s opinion was effectuated by an order dated August 12, 2002, admitting Comor White’s will to probate. This appeal followed.
“The standard of review on appeal in cases where a probate court sits without a jury is whether the court’s findings are clearly erroneous.” In re Bennett Estate, 255 Mich App 545, 549; 662 NW2d 772 (2003). “A finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding.” Id.
Petitioner argues that the trial court impermissibly made findings of disputed fact when it found that the document at issue is not a joint and mutual will. Petitioner asserts that the document should be construed as a joint and mutual will and attempts to persuade us to apply Illinois law to this matter. Respondents argue that the probate court made no impermissible findings of disputed fact and assert that the mere use of the words “joint” and “mutual” in the will do not make the will a binding contract. Respondents also state that the will contains no words indicating a contractual agreement between Catherine and Comor White and no basis to reach a conclusion that there was a contractual commitment to make the joint will irrevocable.
The probate court held that Cornor and Catherine White did not execute a mutual will. “A will, although jointly executed by two persons, is not a contract, strictly speaking, since it is subject to change and represents simply a statement of the wishes of the testators as they exist at the time of execution.” Rogers v Rogers, 136 Mich App 125, 130; 356 NW2d 288 (1984). “[A] will jointly executed by two testators containing reciprocal bequests may be, under some circumstances, sufficient evidence to establish a contract to make the testamentary dispositions contained in such a will.” Id. “[T]he mere fact alone that two identical wills are made by a husband and wife does not suffice to establish an oral agreement to make mutual reciprocal wills, each binding on the other.” Id. at 130-131. Furthermore, MCL 700.2514(2) states: “The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.”
The probate court stated that, “the will does not express a mutually acknowledged promise, consideration, or obligation between the testators that the will is irrevocable” and held that the will was joint and reciprocal, but not mutual. After reviewing the language of the document at issue and the relevant case law and statutory law, we agree with the probate court that Comor and Catherine White did not execute a mutual will. Nothing in the language of the will indicates that the will is irrevocable. Accordingly, we find that the probate court did not make any impermissible findings of fact and did not err when it found that the document at issue is not a joint and mutual will.
Petitioner next argues in conjunction with the first issue, that the trial court erred as a matter of law when it held that Catherine White’s failure to properly execute the will did not render the will invalid as it pertained to both Catherine White and Comor White. As Michigan courts have not yet addressed the specific factual scenario before us, petitioner again cites Illinois law in support of his assertion that Catherine White’s failure to properly execute the will consequently renders the entire will invalid. Respondents took the opposite view, and the probate court agreed, that the will is partially invalid and unenforceable with respect to Catherine White only, but valid and enforceable with respect to Comor White.
Our review has found a dearth of Michigan law in this area. However, the probate court’s holding comports with 79 Am Jur 2d Wills § 665, p 724, which provides, in pertinent part:
A will jointly executed by both spouses in which the dispositions made by one spouse are separate from those made by the other may be valid as the will of one spouse, even if it fails as the will of the other because he or she did not understand the effect of his or her signature or the contents of the instrument. However, an instrument purporting to be the will of both spouses with reciprocal bequests is not valid as the will of the spouse who dies first if it is ineffective as the will of the survivor because it was not legally executed by him or her, and the will was made pursuant to an agreement and understanding between the spouses.
Concerning the language of the joint and reciprocal will in this case alone, we hold that Catherine White’s improper execution has no import on Comor White’s execution of the will. And since this will is not a mutual will, we agree with the probate court that the will is invalid and unenforceable with respect to Catherine White, and valid and enforceable with respect to Comor White.
Finally, petitioner raises in passing in his brief on appeal that the probate court prematurely admitted Comor White’s will to probate without deciding if Comor White’s execution of the will was proper. We disagree. We are convinced by respondents’ argument, in this case only, that petitioner waived this issue. Petitioner represented to the probate court that the parties “pretty well agree as to the facts” at the hearing on the summary disposition motions. He also stated to the probate court, when discussing the issue before the court in his summary disposition motion, that “it is only a question of law based on those facts” referring to the effect of Catherine White’s failure to properly execute her will and whether invalid execution by Catherine White invalidated the testamentary execution by Comor White. We view these assertions, coupled with the fact that petitioner did not raise the issue in his summary disposition motion, as a concession that Comor White’s execution of the will was proper.
Affirmed.
Young v Young, 210 Ill App 3d 912; 569 NE 2d 1 (1991).
Martin v Helms, 319 Ill 281; 149 NE 770 (1925); In the Matter of Estate of Edwards, 3 Ill 2d 116; 120 NE 2d 10 (1954). | [
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Wilder, J.
The suits in these consolidated cases arise out of allegations that in the late 1980s and early 1990s, Dr. Marion David Sutton committed criminal sexual conduct (CSC) against several of his patients, including Peggy Schneider (also Dr. Sutton’s former employee), Nina Shepherd, Kallie Geiling, Margaret Mayes, and Dorothy Shuler, by inappropriately touching each patient’s clitoris during pelvic examinations. Upon consideration of the various issues raised, we affirm in part, reverse in part, and remand to the trial court.
I. facts and proceedings
a. criminal proceedings
In February 1992, the Midland County Prosecuting Attorney charged Dr. Sutton with two counts of second-degree CSC based on the accusations made by Schneider and a patient who is not a party to these proceedings. In April 1992, the prosecuting attorney charged Dr. Sutton (in a separate complaint) with five counts of second-degree CSC and one count of fourth-degree CSC arising out of claims made by a number of other patients.
After severing the charges in the first complaint, the trial court conducted a jury trial on the complaint concerning the nonparty patient’s accusations. The jury convicted Dr. Sutton of second-degree CSC as charged. In October 1992, immediately before sentencing Dr. Sutton, the trial court met with counsel for the parties and requested that Dr. Sutton plead guilty to the remaining charges in exchange for a delayed sentence without additional time in jail. Dr. Sutton accepted that offer and pleaded guilty of committing second-degree esc against Schneider, Shepherd, Geiling, and Shuler, and pleaded guilty of committing fourth-degree CSC against an additional patient who is not a party to these proceedings. Before entering his pleas, Dr. Sutton stated that that he could not admit having a conscious awareness of touching his patients with a sexual intent, although he stated that he intentionally touched each patient’s clitoris without a medical purpose. The trial court sentenced Dr. Sutton to five years’ probation and one year in jail, subject to review in six months, for his jury trial conviction. Thereafter, the trial court imposed a delayed sentence for the charges to which Dr. Sutton pleaded guilty during the October 1992 sentencing hearing. On appeal, this Court vacated Dr. Sutton’s sentence because it was disproportionately lenient. People v Sutton, unpublished opinion per curiam of the Court of Appeals, issued October 26, 1994 (Docket No. 171214).
Following remand, the trial court granted Dr. Sutton’s motion to withdraw the guilty pleas he entered in October 1992. Thereafter, in 1995, the trial court conducted a jury trial concerning the charge based on Schneider’s allegation regarding a 1990 pelvic examination by Dr. Sutton. Although the jury acquitted Dr. Sutton of second-degree CSC, it convicted him of fourth-degree CSC. Subsequently, in March 1996, Dr. Sutton pleaded no contest to fourth-degree CSC in the cases concerning Geiling, Shuler, Shepherd, and another patient. In addition to the charges arising directly out of the sexual assaults, Dr. Sutton pleaded no contest to a charge of attempted perjury in exchange for dismissal of a perjury charge based on the inconsistency between his trial testimony and his statements at the October 1992 plea proceeding. Dr. Sutton served his sentence for these convictions and was released in August 1997.
B. CIVIL PROCEEDINGS
1. SUITS FILED BY SCHNEIDER AND THE PLAINTIFF-PATIENTS
In 1992, in separate yet nearly identical complaints, Shuler, Shepherd, Geiling, and Mayes (the plaintiff-patients) sued Dr. Sutton and his professional corpo rations, M. David Sutton, M.D., PC., and Mid-Michigan Family Physicians, PC., for assault and battery or criminal sexual conduct, medical malpractice, and breach of contract. The same year, Schneider filed an action alleging (1) gross negligence, sexual harassment, hostile work environment sexual harassment, assault and battery, and medical malpractice against Dr. Sutton, (2) negligent hiring and supervision against Mid-Michigan Family Physicians, P.C., and M. David Sutton, M.D., PC., and (3) intentional and negligent infliction of emotional distress against Dr. Sutton, M. David Sutton, M.D., PC., and Mid-Michigan Family Physicians, PC.
2. DECLARATORY RELIEF REQUESTED BY MICHIGAN PHYSICIANS MUTUAL LIABILITY COMPANY
After becoming aware of the suits against its insureds in 1992, Michigan Physicians Mutual Liability Company (mpmlc), Dr. Sutton’s malpractice insurer, refused to defend or indemnify Dr. Sutton and Mid-Michigan Family Physicians, PC., because of the “criminal acts” exclusion in the insurance policy. The exclusion provides that coverage is not provided for “any liability as a consequence of the performance of a criminal or fraudulent act by the Insured, whether or not such an act was performed in conjunction with the rendering or failure to render professional ser vices.” On the basis of this exclusion, mpmlc filed a complaint seeking a declaratory judgment that it did not need to defend or indemnify Dr. Sutton or Mid-Michigan Family Physicians, PC. Mpmlc also named Shuler, the first patient to file suit, as a defendant in the declaratory action.
In 1993, the trial court granted mpmlc’s motion for summary disposition pursuant to MCR 2.116(C)(10), concluding that none of Shuler’s theories of liability was covered by the policy in light of Dr. Sutton’s guilty pleas to charges involving Shuler. Thus, the trial court held that mpmlc had no duty to indemnify or defend Dr. Sutton or Mid-Michigan Family Physicians, P.C., in Shuler’s suit.
3. SETTLEMENT REACHED BY THE PLAINTIFF-PATIENTS
In June 1998, after Dr. Sutton had completed his sentences in the criminal matters, the plaintiff-patients entered into settlement agreements with Dr. Sutton and his professional corporations, settling their civil claims for $500,000 for each person or couple. Each agreement was subject to Dr. Sutton and his corporations (1) assigning the plaintiff-patients their rights under insurance policies issued by four insurance companies; (2) requiring the plaintiff-patients to pursue declaratory relief against the insurance companies; and (3) permitting the plaintiff-patients to refile their suits if their efforts to collect from the insurers were unsuccessful.
4. DECLARATORY RELIEF REQUESTED BY LAKE STATES INSURANCE COMPANY
In April 1998, three of the four insurers named in the settlement agreements, Lake States Insurance Company (Lake States), TIG, and Aetna (succeeded in interest by Travelers Property & Casualty Company), sought declaratory judgments stating that they did not have to provide coverage for the suits by Schneider and the plaintiff-patients arising from Dr. Sutton’s actions. Lake States’ suit against Schneider is the only one of these declaratory actions relevant on appeal (Docket Nos. 239471 and 239472). Lake States, which insured Dr. Sutton and Mid-Michigan Family Physicians, PC., under a Special Business Owners Policy, asserted in its complaint that under the terms of the policy (1) Schneider did not suffer a “personal injury,” (2) her injuries did not result from an “occurrence,” and (3) coverage did not extend to the injuries because (a) they were expected or intended by the insureds, (b) they arose out of Schneider’s employment with the insureds, (c) they arose out of rendering or a failure to render treatment or professional services, (d) they arose out of the willful violation of a penal statute, and (e) Dr. Sutton was not an “insured” under the policy.
5. DECLARATORY RELIEF REQUESTED BY THE PLAINTIFF-PATIENTS
In August 1998, the plaintiff-patients filed a, suit for declaratory relief against mpmlc and TIG, requesting a declaratory judgment that mpmlc and TIG, alternatively or together, were required to indemnify their insureds, and a money judgment in favor of each plaintiff-patient consistent with the settlement agree ments, plus interest, costs, and attorney fees. In its affirmative defenses, mpmlc asserted that the plaintiff-patients’ claims were barred by res judicata and the prior decision that mpmlc did not have to provide coverage. Additionally, mpmlc stated that the criminal acts exclusion in its policy excluded these claims from coverage. Mpmlc also filed a counterclaim requesting a declaratory judgment concerning the criminal acts exclusion and the binding nature of the prior declaratory judgment in its favor. The trial court permitted Dr. Sutton, Mid-Michigan Family Physicians, PC., and Schneider to intervene as plaintiffs in this matter, following a stipulation by the parties.
6. MOTIONS FOR SUMMARY DISPOSITION FILED BY THE INSURERS AND SCHNEIDER
The insurers in both declaratory actions filed motions for summary disposition pursuant to MCR 2.116(C)(8) and (10) and Schneider moved for summary disposition pursuant to MCR 2.116(C)(10) against Lake States only. The trial court consolidated these cases for hearing and decision on the various motions. Following oral arguments, the trial court issued a written opinion in which it granted the motions filed by TIG and Aetna for reasons not relevant on appeal.
Additionally, the trial court denied Lake States’ motion concerning coverage for Schneider’s claim of negligent hiring and supervision against Mid-Michigan Family Physicians, PC., and granted her cross- motion for summaiy disposition, concluding that (1) negligent hiring and supervision could be characterized as an occurrence under the policy, (2) Schneider had alleged physical ailments that qualify as “bodily injury” under the terms of the policy, and (3) it was irrelevant whether Dr. Sutton was an insured under the policy because Schneider’s claim pertained to Mid-Michigan Family Physicians’ negligence. The trial court also stated that Schneider’s claims against Mid-Michigan Family Physicians, PC., did not arise out of rendering or failing to render a professional service and, therefore, were not excluded from coverage.
The trial court denied mpmlc’s motion for summary disposition in part, deciding that res judicata did not bar the plaintiff-patients’ suits because Dr. Sutton withdrew the guilty pleas underlying the prior declaratory judgment after the declaratory judgment had been entered. Additionally, the trial court stated that because Dr. Sutton pleaded no contest to the criminal charges, a genuine issue of material fact existed regarding whether his actions constituted criminal acts excluded from coverage. The trial court granted mpmlc’s motion regarding Schneider’s claims, however, stating that no genuine issue of material fact existed because a jury convicted Dr. Sutton of fourth-degree CSC based on Schneider’s allegations.
7. TRIAL CONDUCTED IN THE PLAINTIFF-PATIENTS’ SUIT AGAINST MPMLC
At trial, Shepherd testified that, on Shuler’s recommendation, she visited Dr. Sutton’s office for a physi cal and pelvic examination in November 1990, during her pregnancy. While Dr. Sutton conducted the pelvic examination, she felt him “flip[] his hand upward and tilt[] it in” as though he was feeling for something, and then felt his thumb moving back and forth against her clitoris. She believed that he did not intentionally touch her clitoris and did not have any indication that he was sexually aroused.
She further testified that despite this incident, she continued to treat with Dr. Sutton, and Dr. Sutton did not stimulate her clitoris during any subsequent examinations. On one occasion, however, he hugged her while she sat on the examining table with only a paper sheet covering her and later kissed her after she got dressed. However, she had no knowledge that he had engaged in any of this behavior for a sexual purpose.
Shuler testified that she started treating with Dr. Sutton in 1988. She estimated that Dr. Sutton performed approximately eight pelvic examinations on her. During three nonconsecutive examinations, she felt Dr. Sutton touch her clitoris for a period of perhaps ten to thirty seconds. She did not say anything to Dr. Sutton about his conduct. He did not say anything to her of a sexual nature during the examinations, and she did not know whether he touched her clitoris intentionally or accidentally.
Shuler testified that when she heard that other women complained about Dr. Sutton, she wondered whether the contact she experienced was not accidental, and she and Shepherd decided to contact a police detective concerning their experiences. She felt a duty to the other complaining women to assist them by providing testimony during the criminal trials recounting what had happened to her. She would not have referred Shepherd to a doctor she believed was intentionally touching her inappropriately.
Geiling testified that she began treating with Dr. Sutton in 1989. In November 1990, Dr. Sutton rubbed her clitoris while performing a pelvic examination. Dr. Sutton did not say anything to her of a sexual nature during the examination, and she had no reason to believe that he touched her for a sexual purpose or was sexually aroused during the examination. At some point after the incident, Geiling told her sister that Dr. Sutton had done something that no doctor should do, that she felt “very raped,” and that she was not going back to Dr. Sutton. She stated that she did not undergo any pelvic examinations from 1990 until 1998 because she did not want to be in that situation again and has not treated with Dr. Sutton since that incident. After she learned that other women had reported similar experiences, she felt a need to support the women making the complaints.
Mayes testified that Dr. Sutton examined her in December 1990, after Shepherd referred her to him. She intended to undergo only a routine physical, having lost a significant amount of weight in a short time, but Dr. Sutton decided to perform a pelvic examination and take a pap smear as well. During the pelvic examination, Dr. Sutton touched her clitoris for “just a matter of a few seconds.” He did not say anything to her of a sexually suggestive nature during the examination. When she asked him whether she was underweight, he put his hands on her waist and told her she looked just right. She did not treat with him thereafter.
Dr. Sutton testified that while performing bimanual pelvic examinations, he attempts to avoid touching the patient’s clitoris, although the thumb of one hand is positioned near the clitoris while he uses the first two fingers of that hand to examine the patient internally. He also testified that he cut a tendon in his left pinky finger in 1977 and subsequently injured it beyond repair while delivering a baby. Scarring caused the finger to “contracture” down. Then, in September 1989, he tore ligaments in the ring finger of the same hand and subsequently reinjured it twice in 1990. For the V-h years this injury was healing, conducting bimanual pelvic examinations became uncomfortable and, at times, he was only able to use his right hand to conduct the entire examination. If, after he suffered this injury, any patient had complained that he touched her clitoris during an examination, he would have attempted to explain that his hand was sore and, if concerned it might happen again, he would have stopped conducting pelvic examinations.
Dr. Sutton recalled treating Shepherd on November 13, 1990, and examining her internally to assess the bones of her pelvis to ensure that her baby would not have difficulty moving through her birth canal. This examination involves pressing very deeply with the fingers inside to try to reach the backbone of the pelvis and then moving those fingers side to side to feel the mid-pelvis bones. He stated that he did not recall stimulating her clitoris at any point during the examination. Dr. Sutton testified that on the day he hugged and kissed Shepherd, she was emotionally distraught, and he was suddenly “caught up in the emotion of the moment.”
Dr. Sutton testified that he performed a pelvic examination on Shuler during her first prenatal visit in January 1989. He had no memory of touching her clitoris during this examination or her October 1990 pelvic examination, but did not deny that he may have touched it. Dr. Sutton testified that because Shuler suffered an anal fissure during the delivery of one of her children, he tried to avoid applying pressure to the tissues near her anus, which meant he had to apply more pressure in the front, increasing the chance of contact with the clitoris.
Dr. Sutton also did not recall touching Geiling’s clitoris during her pelvic examinations. Because Geiling complained that she had pain during intercourse, Dr. Sutton examined her more fully to try to find the source of her pain. Although Dr. Sutton did not have any medical records for Mayes, he testified that he would have insisted on conducting a full examination in light of her recent weight loss, given that it could be a sign of ovarian cancer. He testified that he did not do anything for his own sexual gratification during any examination and did not attempt to induce sexual arousal in his patients.
After deliberating, the jury concluded that Dr. Sutton had not engaged in a criminal act with respect to any of the plaintiff-patients.
8. POSTTRIAL MOTIONS FILED BY THE PARTIES
On July 19, 2001, the trial court heard the plaintiff-patients’ motion for entry of judgment. The plaintiff-patients requested a collective judgment of $600,000, representing the limit of Dr. Sutton’s insurance policy, plus prejudgment interest. Over mpmlc’s objection, the trial court concluded that pursuant to MCR 2.605(F), which permits the court to enter “[f]urther necessary or proper relief” in addition to a declaratory judgment, the plaintiff-patients could request further relief in the form of a money judgment. Accordingly, the trial court indicated that it would enter a declaratory judgment based on the jury verdict and permit the plaintiff-patients to file a motion for further relief. Mpmlc opposed the plaintiff-patients’ subsequent motion, but the trial court stated that MPMLC had waived its right to contest the fairness of the settlement amount, having failed to accept requests that it participate in the settlement negotiations, object to the request for a money judgment in the pleadings, or indicate that the jury needed to consider any issue other than the existence of criminal acts. Accordingly, the trial court granted the plaintiff-patients’ request for further relief.
After the trial court entered the judgment, mpmlc moved for a new trial on the basis of MCR 2.611, arguing that the trial court abused its discretion regarding several evidentiary issues at trial. Mpmlc also argued that that the jury’s verdict was against the great weight of the evidence. The trial court denied the motion on each of the grounds raised. The trial court did, however, grant mpmlc’s motion for a stay of execution or enforcement of the judgments pending appeal. This appeal followed.
H. STANDARDS OP REVIEW
This Court reviews the trial court’s decision to admit or exclude evidence for abuse of discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001), citing People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no excuse for the ruling made. People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000). A decision on a close evidentiary question ordinarily cannot be an abuse of discretion. People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000). [Aldrich, supra at 113.]
However, when the resolution of a preliminary question of law determines the admissibility of the evidence, this Court’s review is de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). A trial court abuses its discretion if it admits evidence that is inadmissible as a matter of law. Id.
This Court also reviews for abuse of discretion the trial court’s decision to permit the use of leading questions, In re Susser Estate, 254 Mich App 232, 239; 657 NW2d 147 (2002), the trial court’s denial of a motion for new trial, Campbell v Sullins, 257 Mich App 179, 193; 667 NW2d 887 (2003), and the trial court’s decision to grant or deny declaratory relief, Allstate Ins Co v Hayes, 442 Mich 56, 75; 499 NW2d 743 (1993).
We review questions of statutory interpretation de novo. People v Schaub, 254 Mich App 110, 114-115; 656 NW2d 824 (2002). Likewise, this Court reviews a trial court’s decision on a motion for summary disposition de novo. Ditmore v Michalik, 244 Mich App 569, 574; 625 NW2d 462 (2001), citing Van v Zahorik, 460 Mich 320, 326; 597 NW2d 15 (1999). Whether res judicata bars a claim is also a question of law subject to review de novo. Ditmore, supra at 574.
HI. ANALYSIS
A. MPMLC’S APPEAL
Mpmlc first argues that the trial court abused its discretion by prohibiting mpmlc from impeaching Dr. Sutton’s credibility with his conviction of attempted perjury. We agree.
As mentioned above, the prosecution charged Dr. Sutton with perjury as a result of the inconsistencies between his trial testimony and the statements he made while pleading guilty on October 16, 1992. Dr. Sutton pleaded no contest to one count of attempted perjury in exchange for dismissal of the perjury charges. In granting the plaintiff-patients’ motion to exclude evidence of this conviction, the trial court perceived a conflict between MRE 410, which prohibits admission of evidence of a plea of nolo contendere “except... in a civil proceeding to support a defense against a claim asserted by the person who entered the plea,” and MRE 609, which permits impeachment of a witness’s credibility with proof of a conviction of a crime involving “an element of dishonesty or false statement.” Ultimately, the trial court decided that MRE 410 “trumped” application of MRE 609 and excluded the evidence. The trial court stated that even if that were not the case, it still would have excluded the evidence because the danger of unfair prejudice substantially outweighed the probative value of the attempted perjury conviction.
The trial court erred, however, in deciding that MRE 609 and MRE 410 conflict. MRE 410 excludes evidence of a plea of no contest, while MRE 609 permits use of certain convictions for impeachment purposes, regardless of whether the specific conviction followed a guilty plea, a no-contest plea, or a not-guilty plea. Although no published opinion of this Court or our Supreme Court addresses the intersection of these two rules, we agree with the federal courts of appeal that have determined, after construing federal rules that are nearly identical in all relevant respects, that a conviction that ordinarily could be used for impeachment purposes is not excluded from that use because the conviction resulted from a plea of no contest. See Brewer v City of Napa, 210 F3d 1093, 1096 (CA 9, 2000), citing United States v Williams, 642 F2d 136, 138-140 (CA 5, 1981), and United States v Lipscomb, 226 US App DC 312; 702 F2d 1049 (1983). As these courts noted, FRE 609 does not distinguish between convictions arising from guilty pleas and those arising from no-contest or not-guilty pleas. Brewer, supra at 1096. Similarly, MRE 609 does not contain such a distinction.
A plea of no contest “admits ‘every essential element of the offense [that is] well pleaded in the charge.’ ” Williams, supra at 138, quoting Lott v United States, 367 US 421, 426; 81 S Ct 1563, 1567; 6 L Ed 2d 940 (1961). Although a no-contest plea cannot be used as an admission, it nevertheless forms the basis of a conviction that can be used to impeach, just as a conviction following a not-guilty plea and trial can be used to impeach credibility. Williams, supra at 139. Therefore, the fact that Dr. Sutton’s conviction of attempted perjury resulted from a plea of no contest bears no relevance in the analysis whether the conviction can be used to impeach his credibility.
Moreover, because this conviction indisputably falls within the class of crimes that “contain[] an element of dishonesty or false statement” that are available for impeachment use pursuant to MRE 609(a)(1), the trial court may not engage in the balancing test of MRE 609(b) or MRE 403 to exclude the conviction because of its prejudicial effect. People v Allen, 429 Mich 558, 593-594, 594 n 16; 420 NW2d 499 (1988) (“Since we find that as a matter of law prior convictions of crimes involving dishonesty or false statement are more probative than prejudicial, it obviously cannot be argued that the probative value is ‘substantially outweighed’ by prejudice.”). Accordingly, the trial court lacked the discretion to prohibit mpmlc from impeaching Dr. Sutton with his conviction of attempted perjury, although mpmlc could not have done so by indicating that Dr. Sutton pleaded no contest to that crime.
Despite the trial court’s improper exclusion of this evidence, we need not reverse because failure to do so would not be inconsistent with substantial justice. MCR 2.613. Through Dr. Sutton’s testimony, the jury learned that Dr. Sutton pleaded guilty to esc charges and that he later testified that he did not commit those crimes. Although the jury did not learn that he was convicted of attempted perjury, the readily apparent inconsistencies in his testimony could have conveyed his lack of credibility to the jury with equal force.
Mpmlc next argues that the trial court abused its discretion by excluding the complaints filed in the initial civil suits against Dr. Sutton. We disagree. In ruling on the plaintiff-patients’ motion in limine, the trial court stated that admitting the pleadings from the underlying civil suits, suits that were never tried, would contravene principles behind permitting alternative or inconsistent pleading and, therefore, concluded that the pleadings in the underlying civil suits did not constitute admissions. Mpmlc asserts that because the jury was charged with determining credibility, it was entitled to know that the plaintiff-patients alleged in the underlying civil suits that Dr. Sutton intentionally touched them.
On the contrary, we conclude that the trial court appropriately relied on principles underlying alterna tive pleading in granting the plaintiff-patients’ request to exclude the complaints because the plaintiff-patients alleged that Dr. Sutton acted either “intentionally or in a grossly negligent manner.” In Larion v Detroit, 149 Mich App 402, 407; 386 NW2d 199 (1986), this Court stated that “a party should not be placed in the position of having to forego a claim at the risk of having inconsistent allegations treated as admissions.” In support of its decision that alternative pleadings are an exception to the general rule permitting treating pleadings as admissions, the Court quoted with approval McCormick on Evidence (3d ed, 1984), § 265, pp 780-782:
“A basic problem which attends the use of written pleadings is uncertainty whether the evidence as it actually unfolds at trial will prove the case described in the pleadings. Traditionally a failure in this respect, i.e., a variance between pleading and proof, could bring disaster to the pleader’s case. As a safeguard against developments of this kind, the common law evolved the use of counts, each a complete separate statement of a different version of the same basic claim, combined in the same declaration, to take care of variance possibilities. . . . The modem equivalent of the common law system is the use of alternative and hypothetical forms of statement of claims and defenses, regardless of consistency. It can readily be appreciated that pleadings of this nature are directed primarily to giving notice and lack the essential character of an admission. To allow them to operate as admissions would render their use ineffective and frustrate their underlying purpose. Hence the decisions with seeming unanimity deny them status as judicial admissions, and generally disallow them as evidential admissions.” [Larion, supra at 408 (emphasis in Larion).]
Accordingly, the trial court properly concluded that the alternatively stated claims in the plaintiff-patients’ underlying civil suits did not constitute admissions that could be used against them at trial.
Next, mpmlc claims that the trial court abused its discretion by overruling mpmlc’s hearsay objection and permitting Dr. Sutton to testify about the impressions his attorney’s statements made on him concerning the plea-taking and sentencing process. We disagree.
At trial, Dr. Sutton testified that when talking to his attorney during plea negotiations in the various criminal cases, he gained certain impressions concerning the consequences he would face if he accepted or rejected the various plea bargains offered. Although the trial court did not permit Dr. Sutton to testify directly about his attorney’s statements, it stated:
However, I don’t think that stops you from inquiring of your client that he was under certain impressions and that that’s why he did things. Based on what he had been told by his lawyer, he did certain things.
He took certain, made certain decisions to avoid. I think you can get at it indirectly in any event.
Mpmlc contends that permitting Dr. Sutton to testify to his impressions does not differ from permitting him to testify about his attorney’s statements because his impressions were founded on his attorney’s statements. Mpmlc also contends that the statements were being offered for the truth of the matter asserted because the relevance of the statements depended on their truth. In other words, unless Dr. Sutton believed the statements were true, mpmlc claims, he would not have responded to the statements in the manner he did.
Contrary to mpmlc’s arguments, the impressions Dr. Sutton formed from his attorney’s statements are analytically distinguishable from the statements themselves. For example, Dr. Sutton may have misunderstood his attorney’s statements and gained impressions that did not correspond with his attorney’s intentions. In any event, the statements were not being offered for their truth, but for their effect on Dr. Sutton and were, therefore, admissible. City of Westland v Okopski, 208 Mich App 66, 77; 527 NW2d 780 (1994) (holding that a 911 tape was admissible to show why police officers responded to a specific location). Accordingly, the trial court properly permitted Dr. Sutton’s testimony.
Mpmlc next asserts that the trial court abused its discretion by excluding the written settlement agreements from evidence. We disagree. At trial, the trial court sustained the plaintiff-patients’ objection to mpmlc’s request to admit the agreements into evidence and stated:
If we put these in, I see great confusion for the jury. You guys are looking at this in terms of spin. I am not. I am looking at it in terms of confusion, and they could easily come to a conclusion that there are all kinds of insurance companies out there that I would have to — we would have to go into another section for this court to explain what’s happened with regard to those other companies and where that all stands, and I am not about to do that.
Mpmlc argues on appeal that the agreements were relevant to the relationship between Dr. Sutton and the plaintiff-patients and were “crucial” to the jury’s determination of credibility. Because the agreements were relevant, mpmlc claims, they should have been excluded only if the danger of confusion “substantially outweighed” their probative value. MRE 403. Mpmlc contends that the potential for confusion was minimal and that any confusion could have been eliminated by a jury instruction on the issue.
We agree with the trial court’s determination that the agreements could create confusion in the minds of the jurors because insurers other than mpmlc, the only insurer participating at trial, are listed in the agreements. Additionally, the documents have minimal probative value because the existence of the agreements, and therefore the relationship between the plaintiff-patients and Dr. Sutton, was conceded at trial. Although whether the danger of confusion “substantially outweighed” the probative value of the agreements is a close question, this Court does not find an abuse of discretion when faced with a close evidentiary question, Aldrich, supra, and we, therefore, affirm the trial court’s decision on this issue.
Mpmlc next contends that the trial court abused its discretion by permitting Dr. Sutton’s counsel to ask leading questions of Dr." Sutton and the plaintiff-patients on cross-examination. We disagree. MRE 611(c)(2) states: “Ordinarily leading questions should be permitted on cross-examination.” As the word “ordinarily” indicates, a trial court is not always required to permit leading questions on cross-examination. Mpmlc urges this Court to follow the 1972 Advisory Committee notes to proposed FRE 611(c), which contains the same language as MRE 611(c)(2). The committee stated:
The purpose of the qualification “ordinarily” is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the “cross examination” of a party by his own counsel after being called by the opponent (savoring more of a re-direct) or of an insured defendant who proves to be friendly to the plaintiff.
Although the trial court has the discretion to prohibit leading questions on cross-examination, it does not follow that the trial court abuses its discretion if it permits leading questions in the situations mentioned in the committee notes. See Morvant v Constr Aggregates Corp, 570 F2d 626, 635 (CA 6, 1978). Mpmlc, therefore, has not demonstrated that the trial court abused its discretion.
Next, mpmlc argues that the trial court abused its discretion by denying mpmlc’s motion for new trial based on the great weight of the evidence. We disagree.
In deciding whether to grant or deny a motion for a new trial, the trial court’s function is to determine whether the overwhelming weight of the evidence favors the losing party. This Court gives substantial deference to a trial court’s determination that the verdict is not against the great weight of the evidence. This Court and the trial court should not substitute their judgment for that of the jury unless the record reveals that the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. [Campbell, supra at 193 (citations omitted).]
Contrary to mpmlc’s assertions, this is not “one of those few cases where a genuine miscarriage of justice can be found” if the verdict stands. Mpmlc bases its argument on the existence of conflicting evidence and its contention that the evidence of Dr. Sutton’s criminal convictions should carry great weight.
[W]hen testimony is in direct conflict and testimony supporting the verdict has been impeached, if “it cannot be said as a matter of law that the testimony thus impeached was deprived of all probative value or that the jury could not believe it,” the credibility of witnesses is for the jury. [People v Lemmon, 456 Mich 625, 643; 576 NW2d 129 (1998), quoting Anderson v Conterio, 303 Mich 75, 79; 5 NW2d 572 (1942).]
During trial, Dr. Sutton offered explanations for his decisions to enter guilty pleas and no-contest pleas in his criminal cases. He also testified that the injuries from which he suffered, as well as the conditions from which the plaintiff-patients suffered, could have increased the risk of contacting a patient’s clitoris. Although his testimony and that of the plaintiff-patients was impeached at trial, it was not deprived of all probative value. “The credibility of a witness is determined by more than words and includes tonal quality, volume, speech patterns, and demeanor, all giving clues to the factfinder regarding whether a witness is telling the truth.” Lemmon, supra at 646, citing State v Tamer, 186 Wis 2d 277; 521 NW2d 148 (Wis App, 1994). The jury had the opportunity to perceive all of these factors, as did the trial court, and it cannot be said that the trial court abused its discretion by denying the motion.
Mpmlc also argues that the trial court abused its discretion by granting the plaintiff-patients’ motion for further relief. We disagree. MCR 2.605(F) provides that “[f]urther necessary or proper relief based on a declaratory judgment may be granted, after reasonable notice and hearing, against a party whose rights have been determined by the declaratory judgment.” Mpmlc claims that the money judgment granted by the trial court was neither necessary nor proper because the plaintiff-patients could have refiled the underlying civil suits, providing mpmlc a “fair” opportunity to participate in settlement negotiations or trial. We note, however, that mpmlc had the opportunity to participate in the settlement negotiations in the underlying civil suits but chose not to participate. Moreover, the existence of an alternative means of proceeding does not defeat the propriety of the trial court’s order. Mpmlc also asserts that the settlement amounts are excessive because the jury decided that Dr. Sutton’s acts were unintentional, a decision inconsistent with the plaintiff-patients claims in the underlying suits. This argument lacks merit, however, because the settlement agreements also resolved the plaintiff-patients’ alternative claims of negligent behavior.
Additionally, mpmlc contends that enforcement of the settlement agreements is improper because the jury considered only the criminality of Dr. Sutton’s acts and not the amount of damages. This argument also lacks merit. The complaint in this action put mpmlc on notice that the plaintiff-patients requested enforcement of the settlement agreements, yet mpmlc raised no objections to this request, did not contest the validity of the settlement agreements throughout this litigation, and did not indicate to the trial court that the jury should also consider the amount of damages.
Mpmlc also claims that the complaint did not allege causes of action that could support a money judgment, citing MCR 2.111(B). Mpmlc, however, did not move for a more definite statement or to strike the request for money damages from the complaint. See Hofmann v Auto Club Ins Ass’n, 211 Mich App 55; 535 NW2d 529 (1995). Mpmlc should have raised with the trial court before trial its belief and desire that the issue of damages should also be submitted for determination by the jury. See Hofmann, supra at 92.
Finally, mpmlc argues that the judgment interest in this case should be adjusted to reflect amendments of MCL 600.6013 that took effect during the pendency of these appeals. We agree. As amended, the relevant portions of MCL 600.6013 provide:
(1) Interest is allowed on a money judgment recovered in a civil action, as provided in this section. However, for complaints filed on or after October 1, 1986, interest is not allowed on future damages from the date of filing the complaint to the date of entry of the judgment. As used in this subsection, “future damages” means that term as defined in section 6301.
(5) Except as provided in subsection (6), for a complaint filed on or after January 1, 1987, but before July 1, 2002, if a judgment is rendered on a written instrument, interest is calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate of 12% per year compounded annually, unless the instrument has a higher rate of interest. In that case, interest shall be calculated at the rate specified in the instrument if the rate was legal at the time the instrument was executed. The rate shall not exceed 13% per year compounded annually after the date judgment is entered.
(6) For a complaint filed on or after January 1, 1987, but before July 1, 2002, if the civil action has not resulted in a final, nonappealable judgment as of July 1, 2002, and if a judgment is or has been rendered on a written instrument that does not evidence indebtedness with a specified interest rate, interest is calculated as provided in subsection (8).
(7) For a complaint filed on or after July 1, 2002, if a judgment is rendered on a written instrument evidencing indebtedness with a specified interest rate, interest is calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate specified in the instrument if the rate was legal at the time the instrument was executed. If the rate in the written instrument is a variable rate, interest shall be fixed at the rate in effect under the instrument at the time the complaint is filed. The rate under this subsection shall not exceed 13% per year compounded annually.
(8) Except as otherwise provided in subsections (5) and (7) and subject to subsection (13), for complaints filed on or after January 1, 1987, interest on a money judgment recovered in a civil action is calculated at 6-month intervals from the date of filing the complaint at a rate of interest equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually, according to this section. Interest under this subsection is calculated on the entire amount of the money judgment, including attorney fees and other costs. The amount of interest attributable to that part of the money judgment from which attorney fees are paid is retained by the plaintiff, and not paid to the plaintiff’s attorney.
Mpmlc correctly argues that this case falls within the category of cases described in MCL 600.6013(6). The plaintiff-patients filed this action between January 1, 1987, and July 1, 2002; the action did not result in a final nonappealable judgment as of July 1, 2002; and the judgment was rendered based , on the insurance policy, which, pursuant to Yaldo v North Pointe Ins Co, 457 Mich 341, 346; 578 NW2d 274 (1998), constitutes a written instrument for purposes of the statute. Mpmlc freely admits that the trial court correctly applied the law as it existed at the time of its decision and applied an interest rate of twelve percent.
The plaintiff-patients argue that this Court cannot consider the issue presented by mpmlc because mpmlc consented to the trial court’s application of the twelve-percent interest rate. However, because the Legislature had not enacted the relevant amendments of MCL 600.6013 when the trial court entered the judgment in this case, mpmlc had no basis upon which it could have objected. Mpmlc’s agreement to apply the law as it then existed does not amount to a consent judgment, order, or decree that mpmlc cannot appeal. See Dora v Lesinski, 351 Mich 579, 582; 88 NW2d 592 (1958).
The plaintiff-patients also argue that the judgment rendered was a “final, nonappealable” judgment not subject to modification to provide for the rate found in MCL 600.6013(8). In support of this contention, they argue that because MCR 7.203(B)(5) grants this Court jurisdiction over “any judgment or order when an appeal of right could have been taken but was not timely filed,” virtually any judgment based on a written instrument that was rendered in the specified time frame is subject to modification. The Legislature, the plaintiff-patients claim, could not have intended such a broad result. It is not necessary for this Court to examine the reach of the Legislature’s action, however. Because the judgment at issue fits within the classification described in MCL 600.6013(6), we remand to the trial court for modification of the judgment to conform to MCL 600.6013(8).
B. INTERVENING-PLAINTIFF SCHNEIDER’S CROSS-APPEAL
Schneider first argues that mpmlc waived all defenses other than the applicability of the criminal acts exclusion by not asserting them when it initially denied coverage. Because the trial court did not address this issue, it has not been properly preserved. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). Nevertheless, we will briefly address it. We conclude that MPMLC did not waive defenses to Schneider’s intervening complaint by failing to assert them when it initially denied coverage. Schneider’s reliance on cases such as Smith v Grange Mut Fire Ins Co of Michigan, 234 Mich 119, 122; 208 NW 145 (1926), is misplaced. Smith provides that when an insurer denies coverage, it must assert or waive every defense to coverage based on the policy. Because the defenses mpmlc later raised, such as res judicata, were not based on the policy, they were not waived.
Schneider also argues that the trial court erroneously granted mpmlc summary disposition because res judicata does not bar her claims. The trial court, however, did not conclude that res judicata barred Schneider’s claims. Rather, it concluded that because the jury’s verdict convicting Dr. Sutton constituted conclusive evidence of criminal activity, no genuine issue of material fact precluded summary disposition in mpmlc’s favor. We need not, therefore, examine the applicability of res judicata to this case.
Schneider also argues, however, that because her second claim, based on allegations that Dr. Sutton removed her bra during a 1991 bronchial examination, did not form the basis of criminal charges, the trial court erred by concluding that Dr. Sutton’s conviction regarding the 1990 incident supported granting mpmlc summary disposition on her second claim. Because it is unclear from the trial court’s ruling whether the trial court considered Schneider’s claims separately, we remand to the trial court to consider whether any genuine issue of material fact exists concerning the applicability of the criminal acts exclusion to Schneider’s claims arising out of her 1991 bronchial examination.
C. LAKE STATES’ APPEAL
Lake States argues that the trial court erred by granting Schneider summary disposition regarding coverage for her claim of negligent hiring and super vision against Mid-Michigan Family Physicians, P.C. We agree. “ ‘[I]f the allegations of the underlying suit arguably fall within the coverage of the policy, the insurer has a duty to defend its insured.’ ” Radenbaugh v Farm Bureau Gen Ins Co of Michigan, 240 Mich App 134, 137; 610 NW2d 272 (2000), quoting Royce v Citizens Ins Co, 219 Mich App 537, 543; 557 NW2d 144 (1996) (emphasis supplied), in turn citing American Bumper & Mfg Co v Hartford Fire Ins Co, 207 Mich App 60, 67; 523 NW2d 841 (1994), aff’d 452 Mich 440; 550 NW2d 475 (1995).
Lake States contends that this Court should first examine the viability of Schneider’s underlying claim, stating that Schneider has offered no factual support for her claim of negligent hiring and supervision. We decline to do so. The issue before the trial court was whether, as a matter of law, Lake States was obligated to defend Mid-Michigan Family Physicians, P.C., against Schneider’s claim. Because the scope of an insurer’s duty to defend can require an insurer to defend against frivolous lawsuits, Auto-Owners Ins Co v City of Clare, 446 Mich 1, 10; 521 NW2d 480 (1994), we will not determine whether the claim would succeed before deciding whether the policy requires Lake States to defend against the allegations in the complaint.
Next, Lake States argues that Schneider’s claim of negligent hiring and supervision constitutes a claim of medical malpractice and is, therefore, excluded from coverage under the policy’s professional services exclusion. We agree that Schneider’s claim against Mid-Michigan Family Physicians, P.C., is excluded from coverage because it arose out of rendering or failing to render a professional service.
The Lake States policy does not provide coverage for “ ‘[b]odily injury’ or ‘property damage’ due to rendering or failure to render any professional service. This includes but is not limited to . . . [m]edical, surgical, dental, x-ray or nursing services or treatment; . . . [a]ny health service or treatment.” The policy’s definition of professional services also includes “supervisory . . . services.” Lake States relies on cases such as Bronson v Sisters of Mercy Health Corp, 175 Mich App 647, 652-653; 438 NW2d 276 (1989), to show that a failure to properly hire and supervise physicians constitutes medical malpractice. We need not resolve this question, however, because the relevant inquiry is whether the injury resulted from rendering or failing to render a professional service.
Although Schneider contends that St Paul Fire & Marine Ins Co v Quintana, 165 Mich App 719; 419 NW2d 60 (1988), leads to the conclusion that her injuries did not result from rendering or failing to render professional services, that case is inapplicable because it addresses only a physician’s provision of medical services. Id. at 724. Our concern, rather, is whether Mid-Michigan Family Physicians, PC., provided or failed to provide a professional service when it allegedly negligently failed to supervise Dr. Sutton. Whether a professional service is being rendered depends on the nature of the act or omission, not the character or title of the person who acted or failed to act. See American Fellowship Mut Ins Co v Ins Co of North America, 90 Mich App 633, 636-638; 282 NW2d 425 (1979) (also stating that “professional services” include any business activity performed by insured company); see also Centennial Ins Co v Neyer, Tiseo & Hindo, Ltd, 207 Mich App 235, 238-239; 523 NW2d 808 (1994).
Properly supervising employees to prevent patient harm is part of providing health services, which was the undertaking of Mid-Michigan Family Physicians, P.C. See Bronson, supra at 652-653 (“The providing of professional medical care and treatment by a hospital includes supervision of staff physicians and decisions regarding selection and retention of medical staff.”). Moreover, Schneider’s claim against Mid-Michigan Family Physicians, P.C., depends on Dr. Sutton’s actions, which, admittedly, are excluded from coverage. In a similar situation, the court iii Duncanville Diagnostic Center, Inc v Atlantic Lloyd’s Ins Co of Texas, 875 SW2d 788, 791-792 (Tex App, 1994), decided that a similar professional services exclusion applied equally to the plaintiff’s claim of negligent hiring and supervision against the defendant medical center and the plaintiff’s negligence claims against the health care provider because the two claims are interrelated. See also American Rehabilitation & Physical Therapy, Inc v American Motorists Ins Co, 829 A2d 1173, 1177-1179 (Pa Super, 2003), citing Millers Casualty Ins Co of Texas v Flores, 876 P2d 227 (NM, 1994), and Duncanville, supra (also stating that supervising employees constitutes a vital part of providing medical services and is excluded from coverage by the “professional services” provision). Accordingly, we conclude that Schneider’s claim of negligent hiring and supervision is not covered by the policy and that the trial court erroneously granted Schneider, rather than Lake States, summary disposition.
IV. CONCLUSION
In mpmlc’s appeal, we conclude that although the trial court erroneously excluded evidence of Dr. Sutton’s attempted perjury conviction, reversal is not necessary. We affirm each of the trial court’s other rulings challenged by mpmlc on appeal. Finally, we remand for the trial court to amend the judgment to provide interest as dictated by the recent amendments to MCL 600.6013.
In Schneider’s cross-appeal, we remand to the trial court for consideration of whether a genuine issue of material fact exists concerning the applicability of the criminal acts exclusion to Schneider’s claim arising out of her 1991 bronchial examination. We affirm the trial court’s grant of summary disposition to mpmlc in all other respects.
In Lake States’ appeal, we conclude that the trial court erroneously granted Schneider summary dispo sition and remand for entry of summary disposition in Lake States’ favor.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Additionally, Brian Shuler, Francis Mayes, and James Geiling each filed a claim of ioss of consortium.
Ronald Schneider also filed a claim of loss of consortium. Although Peggy Schneider was Dr. Sutton’s patient, she was also his employee. Throughout the rest of this opinion, the term “plaintiff-patients” refers only to Shuler, Shepherd, Geiling, and Mayes. Moreover, because the loss of consortium claims filed by the patients’ husbands are derivative in nature, references to married plaintiffs (i.e., Peggy and Ronald Schneider) are stated in the singular throughout this opinion.
Lake States filed appeals from the trial court’s decisions regarding lower court number 98-007874-CK, its case against the plaintiff-patients (Docket No. 239471), and lower court number 98-007872-CK, its case against Schneider (Docket No. 239472). Although the caption of its brief on appeal references both docket numbers, Lake States’ arguments address the trial court’s decision regarding Schneider only.
Presumably, Lake States intended to file pursuant to MCR 2.116(C)(9), failure to state a valid defense, rather than C(8), failure to state a claim.
Schneider admits this is the only count of her complaint to which the Lake States policy applied.
The trial court did not mention the fact that Dr. Sutton was not charged with any crime based on Mayes’s allegations.
Later testimony revealed that at the time Shuler referred Shepherd to Dr. Sutton, Shuler had already been inappropriately touched by Dr. Sutton during three examinations.
In each of its arguments concerning the admission or exclusion of evidence, mpmlc asserts that the trial court denied its right to a fair trial. Other than a brief conclusory statement in each section of its brief, however, mpmlc devotes no argument to and provides no support for this assertion. Accordingly, this argument has been abandoned. Flint City Council v Michigan, 253 Mich App 378, 393 n 2; 653 NW2d 604 (2002), citing Davenport v Grosse Pointe Farms Bd of Zoning Appeals, 210 Mich App 400, 405; 534 NW2d 143 (1995).
Although the parties seem unaware of this distinction, on some level, the trial court seemed to recognize the difference. When framing the issue before it, the trial court stated that it was reviewing the “possible 609 use of the convictions on a nolo conviction — nolo plea based conviction on the perjury charges.” After reaching its decision and learning from mpmlc that, if allowed, it would have used the stipulation of fact for the no-contest plea and the judgment of sentence to prove the conviction, the trial court stated:
I must tell you . . . that you would not have used that stipulation in a 609 case. You would have had the fact that he had, by his plea, been convicted of perjury, but it’s a nolo plea. That stipulation of fact that was used to establish the basis, I don’t think I would have allowed. . . .
The trial court’s ruling, however, does not reflect its awareness of this distinction.
MRE 609(d), however, does except from admissibility convictions that have been pardoned or annulled, in certain circumstances.
Mpmlc offers no legal authority to support its argument that the witness’s belief in the declarant’s statement determines whether the statement is being offered for its truth and has, consequently, abandoned this argument. Flint City Council, supra.
Notably, however, mpmlc did not suggest during trial that the trial court attempt to eliminate any confusion with a jury instruction.
Contrary to mpmlc’s claims, the trial court did not state in its opinion resolving the motions for summary disposition that the only issue for the jury’s resolution was whether Dr. Sutton’s actions were criminal in nature.
See Morales v Auto Owners Ins Co (After Remand), 469 Mich 487, 490 n 4; 672 NW2d 849 (2003) (applying the most recent amendments to MCL 600.6013 to a judgment rendered before the amendments were enacted).
We reject mpmlc’s request that we assume that the trial court considered that the 1991 examination did not form the basis of criminal charges against Dr. Sutton. Similarly, we decline mpmlc’s request that we nevertheless affirm the trial court’s decision because Dr. Sutton committed fourth-degree esc during the 1991 examination, triggering the applicability of the criminal acts exclusion. Other than presenting Schneider’s opinions that the act of removing her bra did not have a medical purpose, mpmlc offers no evidence to support its contention that removing a patient’s bra while listening to a patient’s chest is medically recognized as unethical or unacceptable. See MCL 750.520e(l)(b)(iv). Accordingly, we will not determine that, as a matter of law, Dr. Sutton committed a criminal act.
Lake States also argues that summary disposition was improper because Schneider’s claim against Mid-Michigan Family Physicians, P.C., is a “sham” because Dr. Sutton is Mid-Michigan Family Physicians, P.C. Lake States did not preserve this argument in the trial court, and we decline to address it. Fast Air, Inc, supra.
Although Schneider admits that the policy does not cover Dr. Sutton’s actions because they arose out of providing professional services, she does not admit that the corporation’s actions are likewise excluded from coverage.
See also Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 45-47; 594 NW2d 455 (1999) (relying on the Bronson Court’s analysis for determining the applicable statute of limitations to establish whether the plaintiff needed to comply with certain requirements of MCL 600.2912b and MCL 600.2912d).
Because we conclude that the policy does not provide coverage for Schneider’s claim, we need not address Lake States’ alternative argument that the claim does not qualify as an occurrence under the policy. | [
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] |
Per Curiam.
Appellants Verizon North, Inc., and Contel of the South, Inc., doing business as Verizon North Systems (here referred to collectively as Verizon), appeal as of right an order of appellee Michigan Public Service Commission requiring that they cease and desist from charging rates for intrastate access services at levels that exceed corresponding interstate rates, and refund all excess earnings. We affirm.
I. INTRODUCTION
The Michigan Telecommunications Act (mta), MCL 484.2101 et seq., regulates rates for various services provided by telecommunications carriers, including access service. “Access service” is defined as “access to a local exchange network for the purpose of enabling a provider to originate or terminate telecommunication services within the local exchange.” MCL 484.2102(a). Charges imposed for access services include switching and transport charges, and line charges. Switching and transport charges apply to the use of a telecommunications provider’s equipment to route long distance telephone calls from their points of origin to their destinations. Line charges are assessed for the use of a provider’s lines to carry long distance calls and include the End User Common Line Charge (euclc), which is paid by residential consumers and businesses, and the Carrier Common Line Charge (cclc), which is paid by other long distance carriers.
The first stated purpose of the mta is to ensure Michigan citizens “just, reasonable, and affordable” telephone service. MCL 484.2101(2)(a). A “reasonable rate” or a “just and reasonable rate” is “a rate that is not inadequate, excessive, or unreasonably discriminatory. A rate is inadequate if it is less than the total service long run incremental cost [tslric] of providing the service.” MCL 484.2102(y). A provider’s rates for access services “shall not be less” than the TSLRIC for each service. MCL 484.2304a(2). Further, the provider of any regulated telecommunications service “shall not charge a rate for the service that is less than the [TSLRIC] of providing the service.” MCL 484.2321. However, a provider’s intrastate rates for access services “that exceed the rates allowed for the same interstate services by the federal government are not just and reasonable.” MCL 484.2310(2) (emphasis added).
U UNDERLYING FACTS AND PROCEEDINGS
Verizon provides telephone service to more than 800,000 customer lines in Michigan. In July 2001, the Federal Communications Commission (FCC) required Verizon to reduce its rates for its interstate switching and transport access services, as well as its cclc, and permitted Verizon to increase its interstate euclc to offset the forced decrease in other rates. Verizon North, Inc v Engler, 205 F Supp 2d 765 (ED Mich, 2002). Unfortunately for Verizon, our Legislature specifically prohibits providers from raising corresponding intrastate end-user line charges beyond the limit the FCC set on May 1, 2000, for similar interstate charges. MCL 484.2310(2). The statute unambiguously decrees that, “[i]n no event” may such charges exceed the May 1, 2000, interstate rate. Verizon was consequentially required to drop some of its intrastate rates to “mirror” interstate rates, but was specifically precluded from raising its intrastate euclc rates to offset the loss in revenue. Verizon filed a revised tariff that adjusted its rates for some of its intrastate access ser vices, but some intrastate rates remained higher than their interstate counterparts.
Appellee AT&T Communications of Michigan, Inc. (AT&T), requested that Verizon comply with MCL 484.2310(2) and reduce its rates for intrastate access services to interstate levels. Verizon sought a declaratory ruling from the commission that its rates for intrastate access services did not exceed the levels authorized by the mta. In return, AT&T filed a complaint with the commission alleging that Verizon was violating MCL 484.2310(2) by improperly charging higher rates for intrastate access services than it charged for corresponding interstate access services. AT&T sought an order requiring Verizon to cease and desist from continuing to violate MCL 484.2310(2), and to refund with interest the excessive amounts it received. In addition, AT&T sought sanctions and requested an award of attorney fees.
The commission observed that MCL 484.2310(2) applied specifically to rates for intrastate access services, whereas MCL 484.2102(y), MCL 484.2304a(2), and MCL 484.2321 dealt with rates for all regulated services, and concluded that MCL 484.2310(2) controlled and prohibited Verizon from charging rates for intrastate access services that exceeded rates for the corresponding interstate services. The commission declined to address Verizon’s challenge to the constitutionality of MCL 484.2310(2), and determined that because that statute controlled as a matter of law, it need not determine whether Verizon properly calculated its tslric. The commission ordered Verizon to cease and desist charging higher rates for intrastate access services than it charged for corresponding interstate services, and refund with interest the money it earned from the excessive fees. The commission declined to impose sanctions or to award costs and fees.
HI. ANALYSIS
The standard of review for commission orders is narrow and well-defined. According to MCL 462.25, all rates, fares, charges, regulations, practices, and services prescribed by the commission are presumed, prima facie, to be lawful and reasonable. A party aggrieved by an order of the commission has the burden of proving by “clear and satisfactory” evidence that the order is unlawful or unreasonable. MCL 462.26(8). To establish that a commission order is unlawful, the appellant must show that the commission “failed to follow some mandatory statute or was guilty of an abuse of discretion in the exercise of its judgment.” In re MCI, 460 Mich 396, 427; 596 NW2d 164 (1999).
To determine the validity of the order, we must first interpret some statutes that appear inconsistent when applied to the facts as Verizon presents them. “The primary goal of statutory interpretation is to give effect to the intent of the Legislature.” Id. at 411. “The first step in that determination is to review the language of the statute itself.” Id. If the language of the statute is unambiguous the reviewing court must presume that the Legislature intended what is stated, “and judicial construction is neither required nor permissible.” Id. We presume that the Legislature is familiar with the rules of statutory construction and knows of existing laws on the same subject. Inter Coop Council v Dep’t of Treasury, 257 Mich App 219, 227; 668 NW2d 181 (2003). We also presume that the Legislature knows the state and effect of the interpretation given to its statutes. Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505; 475 NW2d 704 (1991).
Statutes that relate to the same subject or share a common purpose are in pari materia and must be read together as one law. State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998). In construing statutes that address the same subject, the more recently enacted statute takes precedence over the older statute, especially if the more recent statute is also the more specific statute. Travelers Ins v U-Haul of Michigan, Inc, 235 Mich App 273, 280; 597 NW2d 235 (1999).
Overarching our analysis is the fact that we “give great weight to any reasonable construction of a regulatory scheme that the PSC is empowered to administer.” Champion’s Auto Ferry, Inc v Pub Service Comm, 231 Mich App 699, 708; 588 NW2d 153 (1998). Especially in matters of policy, we defer to the commission’s administrative expertise, and will not substi tute our judgment for that of the commission. Id. at 707-708.
Verizon argues that the relevant statutes conflict because MCL 484.2321 requires it to charge rates at or above TSLRIC, but MCL 484.2310(2) forces it to drop its rates below TSLRIC levels. Verizon concludes that in this case the ceiling on rates for intrastate access services imposed by MCL 484.2310(2) must yield to the tslric floor provisions in MCL 484.2304a(2) and MCL 484.2321 to accommodate the Legislature’s goal of guaranteeing profitability for competing providers. We disagree and affirm.
The commission correctly concluded that MCL 484.2310(2) is more specific and, therefore, prevails over MCL 484.2304a(2) and MCL 484.2321. Travelers Ins, supra. The statutes requiring tslric compliance, MCL 484.2304a(2) and MCL 484.2321, do not apply exclusively to rates for intrastate access services, but to all rates charged by a telecommunications provider. The first statute, MCL 484.2304a(2), indicates that providers must not set rates for basic local exchange, toll, and access services below the TSLRIC of each service. Likewise, MCL 484.2321 does not specifically refer to access services, but states that providers must not set rates for any regulated telecommunications service below the tslric of providing each service. In contrast, the “ceiling” statute, MCL 484.2310(2), relates specifically and exclusively to rates for intrastate toll access services, and clearly deems unjust and unreasonable any intrastate rate that exceeds the corresponding rate for identical interstate services.
By deeming relatively higher intrastate rates unjust and unreasonable, MCL 484.2310(2) unambiguously manifests the specific legislative intent that rates for intrastate toll access services may not exceed rates for the same interstate access services. Over the years, the commission has correctly and consistently extracted this intent from the statute’s language. Further, the commission’s conclusion that MCL 484.2310(2) prevails over MCL 484.2102(y), MCL 484.2304a(2), and MCL 484.2321 does not render those statutes nugatory. Rather, it merely narrows the scope and applicability of those statutes in those rare instances when a provider’s rates for intrastate toll access services at tslric levels would actually exceed corresponding interstate rates. The commission’s construction and application of the mta gives the fullest possible effect to the statutes, avoids conflict to the greatest extent possible, and does not render nugatory any portion of MCL 484.2310(2). Travelers Ins, supra at 279. Therefore, we will not disturb it.
Finally, the commission’s order is not a violation of due process or an unconstitutional taking. In a lengthy hearing below and now on appeal, Verizon has taken full advantage of its opportunity to challenge the required reduction in its rates. Further, a telecommunications provider has no constitutionally protected interest in charging any particular rate for a service or in earning any particular rate of return on its investment. See Duquesne Light Co v Barasch, 488 US 299, 310; 109 S Ct 609; 102 L Ed 2d 646 (1989). While a rate order is unconstitutional if it establishes a rate that is so low that it is confiscatory, Verizon has failed to demonstrate that reducing its rates for some of its intrastate toll access services would, in this case, cause it severe financial hardship or otherwise result in confiscatory rates. Id. at 310, 312. In sum, we cannot find the commission’s order unconstitutional, unlawful, or unreasonable. MCL 462.26(8).
Affirmed.
The mta Is subject to prospective repeal effective December 31, 2005. MCL 484.2604
The tslric is either the “total forward-looking cost of a telecommunication service, relevant group of services, or basic network component, using current least cost technology that would be required if the provider had never offered the service,” or the “total cost that the provider would incur if the provider were to initially offer the service, group of services, or basic network component.” MCL 484.2102(ff).
The commission dismissed Verizon’s request for a declaratory ruling, concluding that the issues Verizon raised could be addressed in the adjudication of AT&T’s claim.
Following the entry of the commission’s decision, Verizon filed a complaint for declaratory and injunctive relief in the United States District Court for the Eastern District of Michigan, alleging that MCL 484.2310(2) failed to provide a procedural mechanism to protect its constitutional right to a return on its investment, that the enforcement of MCL 484.2310(2) deprived it of property without a hearing and confiscated property without compensation, and deprived it of equal protection. The federal court dismissed the matter without prejudice, choosing to abstain from adjudicating the constitutional issues presented until the underlying state law issues had been resolved. Verizon North, supra. | [
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Per Curiam.
The people charged defendants with conspiracy to commit prostitution, MCL 750.157a(c); MSA 28.354(l)(c), and MCL 750.448; MSA 28.703. Defendants moved for dismissal based upon an entrapment theory and, following an evidentiary hearing, People v Turner, 390 Mich 7; 210 NW2d 336 (1973), a 36th District Court judge dismissed the charge against all defendants. The people appealed to the Recorder’s Court of the City of Detroit, which affirmed the dismissal. This Court granted the people’s application for leave to appeal. We reverse and reinstate the charge against all defendants.
The facts taken from the evidentiary hearing are summarized as follows.
Detroit Police Officer Gerardo Pecchia said his Vice Section received anonymous phone calls tipping the officers about a possible prostitution "ring” or operation emanating from two bars or. lounges nearby the Westin Hotel in Detroit’s Renaissance Center. Officer Pecchia began an undercover investigation of these accusations in August, 1982. He and Officer James O’Brien rented rooms in the Westin and frequented the bars as customers. On August 7, 1982, Officer Pecchia was accosted and solicited by a woman. He did not arrest her but continued his investigation. On August 14, 1982, Officer O’Brien began talking to defendant Nathaniel Smalls, a doorman at DJ’s bar. Officer O’Brien said, "Boy, I’m really bored seeing all these housewives dancing”. Smalls offered to help O’Brien relieve his boredom. Soon after, three women approached Officer O’Brien and accosted and solicited him. Officer O’Brien did not arrest these women but continued with the investigation.
Officers Pecchia and O’Brien decided to see if Officer O’Brien could "obtain a girl” from Smalls. On August 14, 1982, Smalls and Officer O’Brien met in the bar and Smalls offered to help O’Brien "get a girl”. Smalls said he needed $20 for his "overhead” to do so. Smalls then asked defendant Weaver to help him find "Tracey”, defendant Paula Frank, because O’Brien wanted a whore. The defendants located Frank. She said, "I understand from Nate, I believe you want to go out”. She told Officer O’Brien that it was "house policy” to order drinks and dance a bit before going to O’Brien’s room. They did so and set a price for her services of $200.
After Officer O’Brien and defendant Frank went to a hotel room, Officer Pecchia, as planned, came to their door and announced he was a hotel security guard. He said Officer O’Brien registered as a single and it was against hotel policy to have unmarried couples together in rooms. Officer Pecchia checked defendant Frank’s identification, wrote down her name and address, and escorted her out of the Renaissance Center instructing her not to return. Officer O’Brien returned to DJ’s Bar to tell defendant Smalls and defendant Brooks that the "girl” was taken out by a hotel security guard. Smalls said it was too bad and advised Officer O’Brien not to open his hotel door to security personnel in the future. Defendant Brooks told Officer O’Brien that any "girl” we get is o.k.
On August 19, 1982, Officer O’Brien again registered at the Westin Hotel and later talked to defendant Smalls. He told Smalls that he was thinking about having a party in a couple of days. Smalls asked O’Brien if he was going to have girls there. O’Brien responded that he didn’t think so because he didn’t know too many. Smalls offered to get him some at $40 per girl. Later, defendant Weaver asked if he could have the same deal as Smalls’ with Officer O’Brien. Defendants Bulger and Weaver gave Officer O’Brien defendant Paula Frank’s phone number for obtaining additional girls.
In a telephone conversation, defendant Frank asked Officer O’Brien about the party. She asked if she could attend and asked if there would be any other girls there. Officer O’Brien said no because he didn’t know too many. Frank asked Officer O’Brien if he would like 10 to 20 girls which she would obtain at $50 a girl. Officer O’Brien said that earlier defendant Smalls had asked for a couple of dollars for each girl defendant Frank would bring to the party. Defendant Frank also inquired if defendant Smalls was going to "get any girls” for Officer O’Brien.
At the party, on either August 21 or 22, 1982, Officer O’Brien and defendant Frank devised a sign-in list to keep track of the girls who attended the party. That night, the defendants were arrested.
The District Court judge’s decision states:
"In this matter it is apparent from the testimony which has been taken over a period of three sessions, I believe, four, that the anonymous tip had been made to the Detroit Police or some authorities that there was prostitution flourishing at the Westin Hotel. The Vice Squad set up a surveillance there for about four weeks and made a couple of cases but they weren’t satisfied, they couldn’t find anything. They then decided to go back, apparently from the testimony, and see if it wasn’t true.
The truth of the tip is not in question here. I think the issue is whether or not because the question is entrapment, whether or not there was entrapment of the conspiracy. And so if there was a conspiracy to commit prostitution the issue is whether or not there was entrapment of conspiracy to commit prostitution although the prosecutor says that the question of conspiracy is not important, it’s just the entrapment.
"It appears that on August 22nd there was a party, there was a sign-in sheet, and the people who attended the party were arrested and that was the basis of the accosting and soliciting which was the basis for the conspiracy to commit prostitution at the party on the 22nd.
"I think as Mr. Elston or perhaps one of the other defense counsels alluded to, there were other acts of accosting and soliciting made but none of the parties were charged. There apparently was prostitution going on in the Westin by housewives, salesgirls, and probably salesboys, and other people then and now.
"I don’t think that the tactics of the Detroit Police were reprehensible but I think that the continuing investigation was reprehensible.
"It is the opinion of this court that there was entrapment and the court so rules and dismisses this matter as to all remaining defendants.”
After reviewing the evidentiary hearing record on appeal, the Recorder’s Court judge noted that he could find no evidence of a conspiracy on that record, then stated:
"To be sure, the efforts of the police to entrap were gross. It is apparent that they spent a substantial amount of public money and devoted a tremendous amount of police time and manpower trying to inveigle the defendants into a common plot to engage in prostitution or procurement. If the lower court erred at all it was merely because it’s findings of entrapment may have been legally unnecessary in view of the lack of evidence establishing the crime of conspiracy in the first place.
"In People v Wisneski, 96 Mich App 299, 303; 292 NW2d 196 (1980), lv den 409 Mich 928 (1980), [the] Court of Appeals said:
" 'If the methods used by the police are repugnant to fair play and justice, the courts, in an attempt to discourage the practice and to uphold confidence in the fair and honorable administration of justice, will refuse to permit prosecution. The real concern in entrapment cases is "whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand”. People v Turner, supra, 22.’
"It follows then, that if trial courts are mandated as they are under People v D’Angelo, [401 Mich 167; 257 NW2d 655 (1977)] to determine the question of entrapment by pre-trial motions, where entrapment is found, no trial or conviction should take place. This Court agrees with the lower court that the conduct of the police was reprehensible. Extreme efforts were exerted and defendants were individually [sic] exhorted to become involved in some kind of activity, apparently sexual. Each may well have had the propensity for so doing, but the record reflects no agreement between any two or more of them, either express or implied, to carry such propensities into execution.
"The district court was not, in the opinion of this Court, in error in finding entrapment, and its determination is affirmed.”
The people now argue that both lower courts clearly erred by finding entrapment in this case. The people are correct in stating that the standard of review of a trial court’s finding of entrapment is whether it was clearly erroneous. People v LaBate, 122 Mich App 644, 647; 332 NW2d 555 (1983); People v Weatherford, 129 Mich App 359, 360; 341 NW2d 119 (1983).
We first note that the reviewing court’s comments regarding the lack of evidence of a conspiracy are beside the point. The hearing below was an evidentiary hearing at which defendants were to meet their burden under Turner, supra, of proving entrapment. The hearing was not a preliminary examination, nor will there be such an examination since this is a misdemeanor charge. Judicial review of the adequacy of evidence in support of the conspiracy charge must await, apparently, a motion for a directed verdict after the prosecution’s case, if and when there is a trial.
The test for finding entrapment in Michigan is objective: whether agents of the government have acted in a manner likely to instigate or create a criminal offense. People v Turner, supra; People v Killian, 117 Mich App 220, 222; 323 NW2d 660 (1982), lv den 414 Mich 944 (1982). To find entrapment defendants must show that police officers impermissibly manufactured or instigated a crime. Turner, supra; People v White, 411 Mich 366; 308 NW2d 128 (1981).
We find that the lower courts clearly erred by finding the police activity in this case entrapment. Rather, the officers undertook a valid undercover operation to determine whether a prostitution operation was afoot at the Westin Hotel, emanating from nearby bars. They did so only after receiving repeated calls regarding such activity from nonpublic sources and after , observing suspicious activ ities suggesting such activity in the bars. That suspicious activity included the activities of several male employees at the bars. The fact that the officers posed as bar customers or rented rooms at the Westin does not make their behavior reprehensible. Moreover, we agree with the prosecütor’s argument that, prior to arranging the party on the 21st or 22nd of August, the police officers had encountered voluntary offers to provide sexual partners for money from at least defendants Bulger, Weaver, Brooks and Smalls. The evidence also shows that defendant Frank was involved with at least defendants Smalls and Weaver in providing such services.
Nor do we find, despite defendant Frank’s argument to the contrary, that the police officers’ activities in planning a party escalated Frank’s criminal culpability from that of a prostitute to that of a madame. Killian, supra, p 223. Rather, the evidence tended to show that Frank, like Smalls, Weaver, Bulger and Brooks, offered her services to procure girls for the party. The officers never explicitly sought out defendants for the purpose of asking them to procure prostitutes for them. Compare the facts in White, supra, and Killian, supra. Nor were there any extreme appeals to sympathy or friendship involved in this case. Compare Turner, supra, and People v Gratzer, 104 Mich App 705; 305 NW2d 300 (1981), lv den 411 Mich 961 (1981).
While we may agree that it is difficult to view the existence of prostitution in a convention city such as Detroit as one of the great evils facing Detroit law enforcement officers in 1982, we cannot say that it is entrapment for the police and prosecutor to target their resources on that crime.
Because we find that the lower court clearly erred by finding entrapment, we reverse, reinstate the charges, and remand to the district court.
Reversed and remanded. | [
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] |
Per Curiam.
Defendant, Allen Bradley Com pany, appeals as of right from a judgment in the amount of $1,195,171, including interest, following a five-week bench trial. Plaintiff Allan Scott sued for personal injuries under theories. of products liability and negligent design of a punch press switch. Plaintiff Aetna Insurance Company is the workers’ compensation carrier for Scott’s employer, G & L Industries, and intervened on Scott’s behalf.
On July 30, 1975, Scott was operating a Sheridan die press for G & L. His job involved placing pieces of cardboard stock into the press’s opening and depressing two palm buttons which activated the press and cut the stock into desired shapes. The press’s two operating modes were controlled by a switch allegedly manufactured by Allen Bradley. With the switch at the "H” or "hand” position, the press only cycled once. In the "A” or "automatic” position, the press cycled continuously. The switch was enclosed in a control box located to the immediate left of the die opening.
Approximately 30 minutes before the accident, Scott accidently bumped the switch to the automatic position while loading stock into the press. Scott informed his supervisor, who told Scott that the same problem had occurred two weeks earlier. The supervisor told Scott to either tape the switch down or move his stock away from the control box.
Scott returned to his work. The stock hit the switch again, thereby activating the press’s automatic mode. Unaware of this, Scott placed his hands into the press to remove some stock. His entire right hand and most of his left hand were severed in the accident.
The trial court set damages at $975,000, reduced by 20% based on Scott’s comparative negligence, for a total award of $780,000, plus costs and interest. Although the trial court was confronted with conflicting evidence regarding the factual issues in this case, we are not left with a definite and firm conviction that the court’s findings were clearly erroneous. GCR 1963, 517.1; Precopio v City of Detroit, 415 Mich 457, 465-466; 330 NW2d 802 (1982).
Allen Bradley first argues that the trial court erred in finding that the switch was modified while it was in Allen Bradley’s exclusive control. After reviewing the record, we cannot say that the trial court’s finding was clearly erroneous. Furthermore, the trial court’s opinion expressly states that this finding was not the determining factor in deciding the case. Therefore, even if erroneous, this finding was not prejudicial to the defendant.
Next, defendant argues that the trial court erred in finding that Allen Bradley manufactured the switches. We disagree. Scott’s expert testified that the switch was made by Allen Bradley. After the accident, an electrician removed the switch and placed it on a wall control box. It remained there until Allen Bradley representatives removed it for photographs in 1978. These photographs clearly showed the initials "AB” appearing on the switch contact blocks. The operator portion of the switch had no specific markings which would conclusively link it to any manufacturer. However, an Allen Bradley sales catalog depicts an operator switch with a similar raised black arrow. Under these circumstances, we reject the defendant’s argument that the trial court’s finding was based on mere speculation. See Parsonson v Construction Equipment Co, 386 Mich 61, 77; 191 NW2d 465 (1971). The record contains sufficient evidence to conclude that the switch was manufactured by Allen Bradley, and therefore the court’s finding was not clearly erroneous.
Allen Bradley next argues that the trial court erred in imposing liability based on Allen Bradley’s failure to guard the switch. In reality, the trial judge imposed liability on alternative theories. His opinion was based on the defendant’s duty to issue warnings with respect to appropriate usage or Allen Bradley’s failure to supply an appropriate safety device (switch guard).
A product may be rendered unreasonably dangerous by the omission of a safety device. Furthermore, where an injury is reasonably foreseeable, the trier of fact must determine whether a safety device should have been put on the product by the manufacturer. See Coger v Mackinaw Products Co, 48 Mich App 113, 122; 210 NW2d 124 (1973). In the case at bar, the trial judge found that the risk of injury to Scott was unreasonable and reasonably foreseeable by Allen Bradley. The court also found that Allen Bradley had a duty to guard the switch, and that the failure to guard the switch was a proximate cause of Scott’s injuries.
Allen Bradley cites Jordan v Whiting Corp (On Rehearing), 49 Mich App 481; 212 NW2d 324 (1973), rev’d in part on other grounds 396 Mich 145; 240 NW2d 468 (1976), in support of its argument that it met its burden of furnishing a product safe for its reasonably foreseeable uses. The record in Jordan, however, did not show that the manufacturer knew how the component would ultimately be integrated. See 49 Mich App 486. Here, in contrast, the trial court ruled as a matter of fact that Allen Bradley knew or should have known that the switch would be used as a power press mode selector. We believe that sufficient evidence was introduced to raise a question as to the foreseeability of the particular injury and the reasonableness of Allen Bradley’s conduct in relation to it. Allen Bradley argues that there was no showing that a defect existed at the time the switch left the manufacturer in 1955. However, the defect involved at the time was the absence of any safety device or guard. This defect had nothing to do with the internal operation of the switch or the fact that it might wear out. In short, we agree with the trial court’s imposition of liability based upon the finding that Allen Bradley did not produce a product which was safe for its foreseeable uses. The fact that liability was properly imposed on this basis makes it unnecessary to address the trial court’s alternative basis of liability.
Allen Bradley next contends that Scott failed to present sufficient evidence to establish defective design according to Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982). Owens established that the plaintiff must present evidence concerning the magnitude of the risks involved and the reasonableness of any proposed alternative design. Owens, supra, p 432. Allen Bradley’s expert testified that the company began producing switch guards sometime after 1955. Two guards were introduced at trial which cost approximately $1 each to produce. It was obvious that the proposed guards would not affect the worker’s ability to perform his job. Allen Bradley’s expert stated that the guards were developed to avoid accidental activation. Therefore, it is apparent that Allen Bradley was aware of the magnitude of the risks involved. Under the circumstances, we find that Scott introduced sufficient evidence to satisfy Owens.
Allen Bradley also argues that the actions of Scott and G & L were intervening, superseding causes. The defendant points to G & L’s removal of a point-of-operation guard, and to Scott’s admitted knowledge that the switch could accidentally slip into the automatic mode.
Generally, an intervening act will not sever the connection between a defendant’s negligence and a plaintiffs injury if such intervening act was reasonably foreseeable. If there might be a reasonable difference of opinion as to the foreseeability of a particular risk, the reasonableness of a defendant’s conduct with respect to it, or the character of the intervening cause, the issue should be resolved by the trier of fact. See Maletich v Zemaiduk, 115 Mich App 206, 210; 320 NW2d 72 (1982), and cases cited therein. The trial court determined as a matter of fact that Scott’s actions were reasonably foreseeable. The court also found that Allen Bradley’s omissions were a proximate cause of the injuries. These findings were not clearly erroneous. Allen Bradley knew or should have known that its switches would be used as mode selectors and that the switches would be placed near points of operation. The trial court did not err in concluding that Scott’s intervening act was reasonably foreseeable.
On a related issue, we are not convinced that the damage award was "grossly excessive”. The clearly erroneous standard of review applies to a damage award rendered in a bench trial. Precopio, supra, p 467. However, a bench award is subject to a finer "judicial sieve” than a jury award. Id.; Schneider v Pomerville, 348 Mich 49, 54; 81 NW2d 405 (1957). Even using this "finer mesh” on review, the ultimate award was not out of line with similar injuries. See Burnett v Mackworth G Rees, Inc, 109 Mich App 547; 311 NW2d 417 (1981), where this Court upheld a jury award of $1.5 million for the loss of four fingers in a die press accident. See also Anno: Excessiveness or adequacy of damages awarded for injuries to arms and hands, 12 ALR4th 96, pp 191-192.
Rather than focusing on the amount of damages, Allen Bradley attacks the percentage of compara tive negligence attributed to Scott. The record indicates that Scott was aware of the danger of accidental activation of the switch, and that Scott decided to move his stock rather than tape the switch. However, there is no magical formula for apportioning negligence. In this case, we do not find that the trial court’s finding was clearly erroneous.
The remaining issue involves the calculation of interest on the judgment. The trial court calculated interest at 6% from the date of filing the complaint to June 1, 1980, and 12% compounded annually thereafter on the damage amount plus the accrued interest up to June 1, 1980. Allen Bradley now argues that the 12% should be compounded only on the original judgment amount rather than on the balance owing as of June 1, 1980.
MCL 600.6013(2); MSA 27A.6013(2) reads:
"For complaints filed before June 1, 1980, in an action involving other than a written instrument having a rate of interest exceeding 6% per year, the interest on the judgment shall be calculated from the date of filing the complaint to June 1, 1980 at the rate of 6% per year and on and after June 1, 1980 to the date of satisfaction of the judgment at the rate of 12% per year compounded annually.”
This Court interpreted this statute in Gage v Ford Motor Co, 133 Mich App 366, 374; 350 NW2d 257 (1984), as follows:
"The statutory language reasonably lends itself to the conclusion that the 12% interest rate applies to the amount of the judgment, plus interest accrued as of June 1, 1980, in that the annual compounding begins 'on and after June 1, 1980’. Since compound interest actually represents interest upon interest, the new interest rate should apply to any interest that has accrued as of the date that the compounding begins.
"Based on the foregoing, this Court concludes that the 12% interest rate commencing June 1, 1980, applies to the amount of judgment combined with interest which has accrued to that date at the 6% simple interest rate.”
We agree with the Gage interpretation and affirm the trial court’s interest calculation on that basis.
Affirmed. | [
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Per Curiam.
Defendant appeals by leave granted from an order of the Workers’ Compensation Appeal Board. The action arises from a work-related injury to plaintiff where he lost the industrial use of his legs as a result of the accident and is considered totally and permanently disabled.
This dispute arose when defendant notified plaintiff in April of 1982 that his weekly compensation benefits were to be reduced under the newly enacted coordination provisions of MCL 418.354; MSA 17.237(354), Plaintiff disputed this reduction and his full benefits were ordered restored by a hearing referee in September of 1982; however, no penalties were assessed. Defendant filed for review in November of 1982 and filed a motion to stay the payments in December of 1982. In August the WCAB affirmed the decision that defendant’s coordination of benefits was improper and that plaintiff was entitled to his full benefits. Additionally, the WCAB ordered defendant to pay penalties in the amount of $1,500 for the failure to pay full benefits before April 20, 1982, and $50 a day for each day in excess of 30 days that it failed to pay plaintiff his full amount owed.
On appeal, defendant acknowledges the improper coordination of benefits and is only concerned with the penalties imposed. Defendant alleges that the penalties were improper because there was an ongoing dispute that the multiple penalties are a constitutional violation and that the WCAB had no jurisdiction to decide and raise the applicability of the penalty provisions.
The penalties were assessed under MCL 418.801(2); MSA 17.237(801X2), which provides that:
"(2) If weekly compensation benefits, accrued weekly benefits, medical bills, or travel allowance are not paid within 30 days after becoming due and payable in cases where there is not an ongoing dispute, $50.00 per day shall be added and paid to the worker for each day over 30 days in which the benefits, medical bills, or travel allowance are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection.”
We agree with defendant’s contention that the penalties were improper because there was an ongoing dispute. The WCAB is bound by this Court’s decisions until a contrary result is reached by another panel of this Court or the Supreme Court takes other action. Hackett v Ferndale City Clerk, 1 Mich App 6; 133 NW2d 221 (1965).
This Court has repeatedly held that "[a]n award is to be considered in dispute while review or appeal is pending and during the time periods permitted for filing a claim for review or of appeal”. Charpentier v Canteen Corp, 105 Mich App 700, 705; 307 NW2d 704 (1981), and DeKind v Gale Manufacturing Co, 125 Mich App 598, 608; 337 NW2d 252 (1983), lv den 418 Mich 852 (1983). Our thorough review of the record reveals that there was an ongoing dispute for all time periods for which defendant was penalized.
Additionally, the WCAB made a qualitative determination of the merits of a defense for the purpose of assessing a penalty, which is clearly contrary to Michigan law. Couture v General Motors Corp, 125 Mich App 174; 335 NW2d 668 (1983), lv den 418 Mich 884 (1983).
We find that the WCAB was clearly in error in assessing penalties against defendant because there was an ongoing dispute. Accordingly, we reverse the WCAB on the issue of penalties and defendant is not assessed any penalties.
Resolution of the foregoing issue being dispositive, defendant’s remaining allegations of error are rendered moot.
Reversed. Costs to defendant. | [
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] |
Mackenzie, P.J.
Defendant appeals as of right his conviction after a jury trial of escape from jail through violence, MCL 750.197c; MSA 28.394(3); unarmed robbery, MCL 750.530; MSA 28.798; assault with intent to commit murder, MCL 750.83; MSA 28.278; taking another as a hostage, MCL 750.349a; MSA 28.581(1); assault with a dangerous weapon, MCL 750.82; MSA 28.277; assault with intent to commit a felony, MCL 750.87; MSA 28.282; entry without breaking with intent to commit larceny, MCL 750.111; MSA 28.306; armed robbery, MCL 750.529; MSA 28.797; kidnapping, MCL 750.349; MSA 28.581; unlawfully driving away an automobile, MCL 750.413; MSA 28.645; and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).
The series of offenses began when defendant, who was awaiting trial on other charges, was being transported by Deputy McRae from the Saginaw County Courthouse back to the jail through a security elevator and tunnel which connected the courthouse to the jail. Deputy McRae testified that he handcuffed defendant’s hands in front, and he and defendant then entered the security elevator. When the elevator reached the basement where the tunnel was located, just as the elevator doors were opening, defendant kicked Deputy McRae three times in the groin. Still inside the elevator, defendant then put the handcuffs around McRae’s neck and began choking him. McRae stated that he managed to drag himself to the alarm button inside the elevator and hit the button twice. Struggling, defendant and McRae exited from the elevator, spilling out onto the basement floor. Defendant repeatedly demanded that McRae give him his gun. McRae refused, but during the struggle he felt defendant removing the gun from his holster. McRae heard the gun being cocked, hit the gun with his hand, and the gun discharged.
McRae recalled then being on his knees with defendant holding the cocked gun to his head and demanding that McRae get him out or he was going to kill him. Defendant ordered McRae to unlock a security door leading to the public door of the courthouse, but McRae feigned that his key did not fit. Defendant also asked McRae for additional ammunition, but McRae stated he didn’t have any more rounds. McRae testified that defendant then said, "Turn around, I’m going to kill you”, and defendant proceeded to hit McRae in the head with the gun. McRae testified that the next thing he could recall was lying next to the wall on the second floor of the courthouse with defendant standing next to him but not touching him in any way, and then being in a courtroom announcing to the people therein that a prisoner had just escaped. McRae testified that the only way he could have arrived at the second floor of the courthouse was via the security elevator, although he had no recollection of entering into or being in the elevator. McRae also testified that there was an alarm button in the downstairs area just across from the elevator, but that he had not been able to reach that mechanism during the struggle in the basement.
In his testimony, defendant admitted to attempting to escape from McRae. According to defendant, McRae attempted to stop him and a struggle ensued. Defendant testified that McRae went for his gun and that he struggled with McRae to prevent him from removing the gun from his holster. During the struggle, the gun went off, wounding McRae. Defendant then removed his handcuffs and took possession of the revolver. Defendant denied any intention of shooting McRae, testifying that had he so desired he could have killed McRae. Defendant also testified that he took the elevator to the second floor and fled the building, and that he had not taken McRae with him in the elevator.
The prosecution’s evidence showed that after fleeing the courthouse, defendant encountered Theophile Louchart, Jr., a postal employee. Defendant forced his way into Louchart’s Jeep and instructed Louchart to drive. Louchart informed defendant that he was unable to comply with the request. Louchart attempted to convince defendant that he did not have a key to the vehicle. Defendant pulled the revolver and shot Louchart, wounding Louchart in the arm. Louchart then exited from the vehicle and ran for help.
The prosecution’s evidence further showed that defendant subsequently entered the house of Anna Gosen. Gosen testified that she discovered defendant standing in her bedroom holding a gun, and defendant told her she would not be harmed if she followed his instructions. Defendant asked Gosen for clothes and money, and she complied. Defendant later demanded that Gosen drive him out of town, she complied, and when they approached Detroit defendant assumed the driving. After arriving in Detroit, defendant exited from the vehicle and told Gosen she was free to leave. On cross-examination of defendant at the trial, the following exchange occurred:
"[Prosecutor]: Is it in fact the case that you wanted Mrs. Gosen to go with you so you would have a hostage to use in the event you ran into a police roadblock?
"[Defendant]: I don’t see the gun would have did any good. It’s been a proven fact that they don’t start knowing what they going to do to you because you got hostages.”
Arising out of the events with McRae were defendant’s convictions for escape from jail through violence, unarmed robbery (for taking McRae’s gun), assault with intent to commit murder, and taking a hostage. Arising out of the incident with Louchart were defendant’s convictions for assault with a dangerous weapon (for shooting Louchart in the arm) and assault with intent to commit a felony (kidnapping). Defendant’s convictions for entering an occupied dwelling with intent to commit a larceny, armed robbery, kidnapping, and unlawfully driving away an automobile were in connection with the events involving Gosen.
Defendant raises five issues on appeal which we will address seriatim.
I
Defendant claims that there was insufficient evidence to support his conviction of taking Deputy McRae as a hostage in contravention of MCL 750.349a; MSA 28.581(1), which provides as follows:
"A person imprisoned in any penal or correctional institution located in this state who takes, holds, carries away, decoys, entices away or secretes another person as a hostage by means of threats, coercion, intimidation or physical force is guilty of a felony and shall be imprisoned in the state prison for life, or any term of years, which shall be served as a consecutive sentence.”
Resolution of this issue requires us to define the meaning of the language "as a hostage” in the above statute, a task which has not heretofore been undertaken by an appellate court of this state. However, we find guiding precedent in decisions from other jurisdictions.
In State v Crump, 82 NM 487; 484 P2d 329 (1971), the Supreme Court of New Mexico held that "hostage”, as used in New Mexico’s kidnapping statute,
"implies the unlawful taking, restraining or confining of a person with the intent that the person, or victim, be held as security for the performance, or forbearance, of some act by a third person.” State v Crump, 82 NM 493; 484 P2d 335.
The Crump court rejected a broader definition which would have embraced not only demands made by the defendant on a third person, but also demands made directly on the victim. State v Crump, supra. Courts from other states have adopted as their own the definition of "hostage” set forth in Crump. State v Stone, 122 Ariz 304; 594 P2d 558 (Ariz App, 1979); State v Littlefield, 389 A2d 16 (Me, 1978); State v Lee, 33 NC App 162; 234 SE2d 482 (1977).
We likewise adopt the definition of "hostage” articulated in State v Crump, supra. We further hold that the phrase "as a hostage” employed in MCL 750.349a; MSA 28.581(1) requires only an intent or purpose to use the victim as a hostage and does not require for conviction that the defendant have actually used the victim as a hostage. We so hold in view of the statutory language "takes, holds, carries away, decoys, entices away or secretes another person as a hostage”. This language reflects that the taking or holding, etc. is the requisite act and "as a hostage” merely denotes the requisite intent or purpose which must accompany the taking or holding of the victim.
We must now determine whether there was sufficient evidence for the jury to find that defendant took McRae into the elevator and up to the second floor of the courthouse with the intention or purpose of using McRae as security for the performance or forbearance of some act by a third person. The standard of review applicable to defendant’s claim of insufficient evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact, could have found the element of intent to use as a hostage proven beyond a reasonable doubt. People v Delongchamps, 103 Mich App 151, 159; 302 NW2d 626 (1981), lv den 412 Mich 857 (1981). The requisite element of intent to use as a hostage may be found based on a reasonable inference drawn from the evidence. People v Hunten, 115 Mich App 167, 171; 320 NW2d 68 (1982); People v McWilson, 104 Mich App 550, 555; 305 NW2d 536 (1981), lv den 412 Mich 865 (1981).
We find that, viewing the evidence in a light most favorable to the prosecution, the jury could have inferred beyond a reasonable doubt that defendant took Deputy McRae into the elevator with the intent to use him as a hostage if necessary. In order to effectuate his escape from the second floor of the building, defendant had to make his way through a populated public area. Moreover, on cross-examination regarding the incident with Ms. Gosen, defendant himself testified that possession of a hostage would be more useful than, a gun in resisting capture by the police. This testimony by defendant reflecting his readiness to use Ms. Gosen as a hostage if necessary supports an inference that defendant also intended to use Deputy McRae as a hostage if the need arose. Compare State v Littlefield, supra. While the jury might have found that defendant took McRae merely to prevent McRae from sounding the alarm in the basement and revealing defendant’s escape, the evidence did not preclude the jury from finding otherwise. Compare State v Littlefield, supra. Indeed, the fact that there was also an alarm in the elevator itself, and that the second floor contained numerous other persons whom McRae could inform of the escape, greatly undermined the likelihood that defendant took McRae into the elevator merely to prevent McRae from alerting others of defendant’s escape.
Defendant also contends that the trial court committed reversible error by failing to instruct the jury as to the meaning of the phrase "as a hostage” as used in MCL 750.349a; MSA 28.581(1). Defendant never requested or objected to the absence of an instruction defining "hostage”, and therefore appellate review is precluded unless the court’s failure to so instruct resulted in a miscarriage of justice. GCR 1963, 516.2; People v Avery, 114 Mich App 159, 168; 318 NW2d 685 (1982), lv den 417 Mich 861 (1983). We find no miscarriage of justice in the present case. The trial court in its instructions read to the jury the pertinent language of the hostage statute, MCL 750.349a; MSA 28.581(1), and clearly conveyed to the jury that an essential element of the offense was the intent to use Deputy McRae as a hostage. Compare People v Hunt, 120 Mich App 736, 741-742; 327 NW2d 547 (1982). It is not reversible error for a court to fail to define a term which is generally familiar to lay persons and is susceptible of ordinary comprehension. People v MacPherson, 323 Mich 438, 449; 35 NW2d 376 (1949); People v Plummer, 37 Mich App 657, 661; 195 NW2d 328 (1972). In State v Carnes, 97 NM 76; 636 P2d 895 (Ct App, 1981), the New Mexico Court of Appeals held that "hostage” was a nontechnical term having a common meaning and found no reversible error in the trial court’s failure to instruct on the Crump definition of that term. We likewise find the term "hostage” to be one generally familiar to and comprehensible by lay persons, and therefore the trial court’s failure to instruct on the Crump definition did not constitute a miscarriage of justice requiring reversal.
II
Defendant next claims that, since he made it clear on the record that there had been a breakdown in the attorney-client relationship, the trial court abused its discretion by failing to make further inquiries and by refusing defendant’s request that appointed defense counsel be dismissed. The record reflects that the court gave defendant a full opportunity to express his complaints. While the court made no express finding as to whether or not there existed such a breakdown in the attorney-client relationship as to justify appointment of substitute counsel, reversal is required only if the record supports defendant’s claim that appointment of substitute counsel was warranted. People v Ginther, 390 Mich 436, 442; 212 NW2d 922 (1973). Appointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process and a trial court’s decision on a request for substitution will not be upset on appeal absent an abuse of discretion. People v Meyers (On Remand), 124 Mich App 148, 165; 335 NW2d 189 (1983).
We find no abuse of discretion in the instant case. We first note that defendant’s request that defense counsel be dismissed came after the prosecution had rested its case and on the fifth day of trial. Hence, appointment of substitute counsel would have significantly disrupted the judicial process by necessitating an adjournment in order to permit substitute counsel to become familiar with the case and the trial proceedings held thus far. Defendant’s complaint pertaining to his observation of a discussion during a recess between defense counsel and the prosecutor did not amount to good cause. As established by the explanations of defense counsel and the prosecutor, the nature of their discussion was not prejudicial to defendant nor grounds for defendant to have a reasonable belief that he could not trust defense counsel. Defendant also related to the trial judge that he believed defense counsel harbored ill feelings toward him for defendant’s bringing the discussion at recess to the court’s attention. Although at the time defendant conveyed his complaint to the trial court defense counsel expressed some displeasure with defendant for questioning his loyalty to defendant, subsequent trial proceedings reflected no communication breakdown between defendant and counsel nor any lack of diligence by defense counsel.
Ill
Defendant contends that his conviction of both escape from jail through violence and assault with intent to commit murder violated his right against double jeopardy. More particularly, defendant argues that conviction of both offenses violated the state constitutional protection against "factual” double jeopardy because the same evidence which was used to establish the "use of violence, threats of violence, or dangerous weapons” element of the escape charge, MCL 750.197c; MSA 28.394(3), was also used to support the assault with intent to murder charge, MCL 750.83; MSA 28.278.
We cannot agree. In People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983), the Supreme Court disavowed earlier case law suggesting that the state constitutional guarantee against double jeopardy is violated where the defendant is multiply punished based on the same evidence or for a single wrongful act:
"Viewed in this light, defendant’s claim of factual double jeopardy depends not upon whether most or all of the same evidence was utilized to convict of both counts of armed robbery, but whether the legislative intent or statutory purpose was that two convictions should result. To the extent certain language in Martin, Stewart, and Jankowski suggests that the critical test is whether the defendant committed 'one single wrongful act’, we specifically disavow that test. It is up to the Legislature, not this Court, to determine what constitutes a single offense. The so-called 'factual double jeopardy’ doctrine simply asks whether the Legislature authorized multiple punishment under the circumstances.” People v Wakeford, supra, pp 110-111.
See also People v Robideau, 419 Mich 458; 355 NW2d 592 (1984). The determinative inquiry here, then, is whether the Legislature intended to allow multiple punishment for both escape from jail through violence and assault with intent to commit murder. This inquiry necessitates reference to the subject, language, and history of the two statutes. Robideau, supra.
The immediate predecessor to the current MCL 750.197c; MSA 28.394(3) prohibited only a break or escape from jail through the use or threat of violence or dangerous weapons. This statute was amended by 1976 PA 188, § 1, to further prohibit assaults on jail employees. See People v Boyd, 102 Mich App 112; 300 NW2d 760 (1980). While this section prohibits two distinct acts, we are concerned only with the language with which defendant was charged — escape from jail through the use of violence. We therefore do not address the issue of whether an accused could be convicted of both assault on a jail employee under MCL 750.197c; MSA 28.394(3) and assault with intent to commit murder under MCL 750.83; MSA 28.278 without violating the double jeopardy clause.
After reviewing the two statutes involved herein we conclude that conviction under both is not violative of legislative intent. MCL 750.197c; MSA 28.394(3) is obviously aimed at preventing violent jail breaks or escapes by those confined within. MCL 750.83; MSA 28.278, on the other hand, prohibits assaults in which murder is the intended consequence. Each statute serves to protect a separate social norm — one seeks to discourage escapes from jail, the other to discourage murder. Statutes such as these which prohibit conduct violative of distinct social norms generally permit multiple punishments. Robideau, supra.
Nor do we find, after reviewing the separate elements of each offense, cf. CJI 13:8:01 with CJI 17:2:01, that either crime is a lesser included or cognate offense of the other. See generally People v Ora Jones, 395 Mich 379, 387-390; 236 NW2d 461 (1975). To the contrary, we find it very doubtful that the Legislature intended the crime of assault with intent to commit murder, which carries a punishment of up to life imprisonment, MCL 750.83; MSA 28.278, to be subsumed by the crime of escape from jail through violence, which is punishable by only four years in prison. MCL 750.503; MSA 28.771. See Robideau, supra.
Furthermore, even if the "same evidence” approach to state constitutional "factual” double jeopardy were still viable after People v Wakeford, there would still be no double jeopardy violation in the instant case. In the pre- Wakeford case of People v Carter, 415 Mich 558, 586-588; 330 NW2d 314 (1982), the Court emphasized that the focus in "factual” double jeopardy is not on what the jury could or did conclude, but rather on what the jury necessarily found. If the factual proofs presented were such that the jury may have convicted of both offenses based on completely different facts, no double jeopardy violation exists. People v Carter, supra, p 588. Here, the jury may have found the "through violence” element of the escape charge satisfied based on defendant’s kicking and choking of Deputy McRae. The jury did not necessarily use the factual proofs establishing assault with intent to commit murder, i.e., defendant’s threat to kill and subsequent pistol whipping of Deputy McRae, in finding defendant guilty of escape from jail through violence. People v Anderson, 83 Mich App 744, 749; 269 NW2d 288 (1978), lv den 405 Mich 812 (1979), relied on by defendant, is distinguishable since there the defendant’s striking of the prison officer was the only evidence of violence, and hence was necessarily used to convict the defendant of both assaulting a police officer and breaking jail through violence. In addition, due to the post-Anderson decisions of Wakeford and Robideau which focus solely on the question of legislative intent in determining double jeopardy claims, we doubt the continued validity of Anderson on its own facts.
IV
Defendant next argues that the information was defective in that it did not state that the sentence for a conviction of taking a hostage, in violation of MCL 750.349a; MSA 28.581(1), is mandatorily consecutive, and consequently that his consecutive sentence for this conviction violated his right to due process. This claim is without merit. We know of no authority, nor does defendant cite us to any, requiring that the penalty for conviction of a crime be stated on the information. See MCL 767.45; MSA 28.985. In any event, the information did cite to the hostage statute, MCL 750.349a; MSA 28.581(1), wherein the mandatory consecutive sentence provision is found. Moreover, the record does not disclose that defendant ever objected to this alleged defect in the information, and no manifest injustice requiring reversal exists in this case since the alleged defect could have been corrected by amendment without prejudice to defendant upon a timely objection. People v Covington, 132 Mich App 79, 86-87; 346 NW2d 903 (1984).
V
Defendant’s final claim on appeal is that MCL 750.197c; MSA 28.394(3), prohibiting jail break or escape through violence, as well as prohibiting assaults on known jail employees or guards, violates the title-object and single-object clauses of the Michigan Constitution, Const 1963, art 4, § 24. This argument has previously been addressed by this Court and held to be without merit. People v Wingo, 95 Mich App 101; 290 NW2d 93 (1980), lv den 410 Mich 880 (1981); People v Bellafant, 105 Mich App 788, 790; 307 NW2d 422 (1981).
Affirmed.
People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), and People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980). | [
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Per Curiam.
American Fidelity Fire Insurance Company (AFF) appeals as of right from the opinion and orders of the trial court which granted accelerated and summary judgments in two cases which the court consolidated on its own motion. These appeals concern various insurance suits arising from an accident injuring Lonnie DeCare (Lonnie) and his two brothers, Alger and Ernest. In Docket No. 72436, AFF appeals from the trial court’s order requiring it to continue to pay personal injury protection (PIP) benefits to Ernest DeCare. In Docket No. 72347, AFF appeals from an order dismissing its complaint to reform the insurance policy between it and Lonnie. This Court consolidated these appeals on its own motion.
In 1979 Lonnie told his insurance agent, Alpine-North Insurance Company (Alpine), to add a 1972 Chevrolet pickup truck to his automobile insurance policy. Alpine notified AFF through Hallmark Underwriter (Hallmark), AFF’s agent. On February 20, 1980, Lonnie allegedly instructed Alpine by telephone to delete the Chevy pickup from the policy and substitute a 1972 Dodge Dart. The truck, however, continued to be listed in the policy, allegedly through the negligence of Alpine or Hallmark.
On May 3, 1980, Lonnie was traveling in the truck with his two brothers. Lonnie ran a stop sign and the truck collided with another automobile. All three DeCare brothers were injured. Ernest received the most serious injuries, is presently a quadriplegic, and will require treatment for the rest of his life. Shortly after the accident Ernest applied for Medicaid assistance, MCL 400.105 et seq.; MSA 16.490(15) et seq.; pursuant to this application the state paid $55,455.81 for Ernest’s medical care.
Lonnie applied for no-fault benefits with Michigan Claims Services, Inc., a company which serviced AFF claims. On October 16, 1980, Lonnie gave a statement to a claims adjuster, representing that neither he nor his wife had ever requested that the 1972 pickup truck be deleted from the policy. There followed a series of lawsuits, which are summarized below.
On December 12, 1980, Alger DeCare (individually and on behalf of Ernest’s estate) sued AFF in Alpena County for no-fault benefits (DeCare #1). AFF settled the suit after it agreed to pay Lonnie’s policy limits of $20,000 to both Alger and Ernest. The agreement also provided that AFF would continue to pay all statutorily mandated PIP benefits. AFF claimed that it voluntarily agreed to settle this case based on the statements made by Lonnie to the claims adjuster on October 16, 1980.
On February 23, 1981, the Attorney General, on behalf of the Michigan Department of Social Services (DSS), a subrogee of Ernest, sued AFF in Ingham County for reimbursement of various medical bills paid by Medicare for the DeCare brothers’ treatment (the DSS case). AFF’s answer admitted that it insured the pickup truck at the time of the accident, an admission AFF now claims it was fraudulently induced to make based on Lonnie’s misrepresentation to the claims adjuster.
In 1981 AFF sued Hallmark and Alpine in Oakland County for their alleged negligence in failing to delete the truck from Lonnie’s policy (the Hallmark suit). On November 13, 1981, AFF deposed Lonnie pursuant to this suit. In this deposition Lonnie told AFF’s attorney that he indeed had, on or about February 20, 1980, requested of Alpine that the 1972 Chevy pickup be deleted from his policy.
As a result of this deposition testimony, AFF filed suit against Lonnie and Elaine DeCare in Alpena County on December 20, 1981 (the AFF reformation suit). AFF sought to reform the DeCare’s insurance policy "to. accurately reflect the instructions and intent of Lonnie DeCare to delete the 1972 Chevrolet from the policy * * In March of 1982, AFF instructed the Michigan Claims Services to stop paying PIP benefits to Ernest.
On May 10, 1982, Alger DeCare filed a second suit (DeCare #2) on behalf of Ernest in Alpena County to force AFF to resume paying PIP benefits. This suit was based on the settlement in the DeCare #1 suit.
On May 11, 1982, AFF made a motion in the DSS case to amend its answer to reflect its contention that the pickup was not insured at the time of the accident. On July 13, 1982, appellee State Farm Mutual Automobile Insurance Company (State Farm) was joined in the DSS suit. DSS alleged that, if AFF was not liable, State Farm would be liable pursuant to the assigned claims plan authorized by MCL 500.3171 et seq.; MSA 24.13171 et seq. State Farm brought a motion to dismiss itself from the DSS suit. DSS brought a motion for summary judgment claiming that AFF had already admitted liability. On January 26, 1983, Ingham County Circuit Court Judge James T. Kallman denied AFF’s motion to amend its answer, stating:
"That the Court will not allow amendment of Defendant American Fidelity’s pleadings at this time to deny liability since, pursuant to GCR 118 such a ruling would not result in justice and because American Fidelity is estopped from denying coverage based upon the excessive length of time which has passed since this suit was commenced.”
The same order also granted State Farm’s motion to be dismissed from the case.
In a subsequent opinion and order dated February 3, 1983, Judge Kallman granted DSS’s motion for summary judgment. AFF was ordered to pay PIP benefits in the amount of $70,646.24, plus interest and attorney fees. AFF’s application for leave to appeal that order was denied by this Court.
Meanwhile, in the DeCare #2 suit, State Farm brought a motion for summary judgment after being added as a party defendant. State Farm also sought to be reimbursed by AFF for first-party benefits paid to Ernest in the amount of $23,178.78. Ernest also brought a motion for summary judgment against AFF, claiming that it was estopped from denying liability.
In AFF’s reformation suit, Lonnie and Elaine DeCare brought a motion for summary judgment based on estoppel and waiver. On March 23, 1983, Judge Swallow consolidated the DeCare #2 suit and AFF’s reformation action on his own motion.
On April 12, 1983, Judge Swallow heard all the motions for summary judgment, took the matter under advisement, and ordered all parties to submit supplemental briefs as to whether Judge Kailman’s orders were res judicata and whether AFF was estopped to deny liability.
On May 27, 1983, Judge Swallow granted Lonnie’s motion for accelerated judgment and barred AFF’s reformation claim based on res judicata. The court ordered AFF to pay to Ernest’s estate PIP benefits currently due and those accruing pending the outcome of the appeal. He also ordered AFF to reimburse State Farm for PIP benefits paid by State Farm to Ernest’s estate.
AFF contends that Judge Swallow erred in holding that the DSS suit was res judicata. In Ward v DAIIE, 115 Mich App 30, 37; 320 NW2d 280 (1982), this Court stated:
"The doctrine of res judicata provides that where two parties have fully litigated a particular claim and a final judgment has resulted, that claim may not be relitigated by either party. In Tucker v Rohrback, [13 Mich 73, 75 (1864)] the Supreme Court delineated three prerequisites for a prior judgment to constitute a bar in a subsequent action: (1) the former action must have been decided on the merits; (2) the same matter contested in the second action must have been decided in the first; and (3) the two actions must be between the same parties or privies.” (Footnotes omitted.)
AFF argues that the "merits” of its claim, i.e., the issues of reformation and mutual mistake, were never addressed in the former action (the DSS suit). AFF also contends that Judge Kallman’s denial of its motion to amend indicates the merits were never reached. In Martin v Michigan Consolidated Gas Co, 114 Mich App 380, 383-384; 319 NW2d 352 (1982), the Court stated:
"In most instances, the denial of a motion to amend will not be a decision on the merits. For example, when amendment is denied because of undue delay, bad faith, dilatory motive or undue prejudice to the opposing party, Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973), the substance of the claims sought to be added will not likely have been considered. However, when, as in the present case, the denial is made on the basis of the futility of the amendment, it is in effect a determination that the added claims are substantively without merit; that is, that the claims are frivolous or legally insufficient on their face. See 6 Wright & Miller, Federal Practice & Procedure, § 1487, pp 432-433. Such a determination is entitled to res judicata impact.”
See also 46 Am Jur 2d, Judgments, § 478, pp 642-643.
In the case at bar, undue delay was but one basis for denial of AFF’s motion. Judge Kallman’s order also indicates that the amendment would be unjust under the circumstances. In effect, he ruled that the amendment would be "substantively without merit” based on the general rule which prevents changes in insurance contracts after accidents have occurred. See DAIIE v Ayvazian, 62 Mich App 94, 100; 233 NW2d 200 (1975); State Farm Mutual Automobile Ins Co v Kurylowicz, 67 Mich App 568; 242 NW2d 530 (1976); Frankenmuth Mutual Ins Co v Latham, 103 Mich App 66, 68; 302 NW2d 329 (1981). Judge Kallman’s remarks at the hearing on the motion for summary judgment make it clear that he was well aware of the factual basis behind AFF’s motion to amend. Signficantly, Judge Kallman entertained the motion to amend along with State Farm’s motion for summary judgment. The court was thus able to dispose of the merits at the same time it denied the motion to amend. Having first decided that the merits of AFF’s claims were weak, the court indicated that amendment would serve no useful purpose. AFF’s delayed application for leave to appeal was denied by this Court. Under these circumstances, we consider the lower court’s disposition of AFF’s claims an adjudication on the merits. See Curry v Detroit, 394 Mich 327, 332; 231 NW2d 57 (1975).
The second criterion enunciated in Tucker, supra, mandates that the same matter contested in the second action must have been decided in the first action. In the DSS action, Judge Kallman ruled: (1) AFF accepted liability when it admitted in its answer that it insured the pickup at the time of the accident; (2) Lonnie’s coverage could not be terminated after the accident; (3) AFF was therefore required to reimburse DSS; and (4) AFF could not amend its answer because it would be an injustice to allow AFF to do so.
In AFF’s reformation action, the contested issue was whether AFF should be allowed the opportunity to reform the insurance contract. Nevertheless, stripped of all superfluousness, the ultimate issue was really whether AFF would be able to avoid continuing liability. In the DeCare #2 suit, Ernest sued AFF based on its alleged instruction to Michigan Claims Services to stop making payments. Again, the real issue was AFF’s continuing liability. Judge Swallow recognized the identical nature of the two suits and consolidated them on his own motion. He also correctly recognized that the issue of AFF’s continuing liability had already been decided in the prior DSS action.
The third criterion from Tucker was also met. DSS was subrogated to the rights of Ernest in the first suit, and Ernest was a direct party in the second suit. Accordingly, DSS (or the Attorney General) in effect stood in Ernest’s shoes for purposes of the first action. See 21 Michigan Law & Practice, Subrogation, § 1, p 173. In conclusion, the three criteria from Tucker, supra, were met, and Judge Swallow correctly gave res judicata effect to Judge Kallman’s prior rulings in the DSS case.
AFF also maintains that Lonnie’s alleged misrepresentation constitutes a fraud or change in circumstances sufficient to prevent application of the res judicata doctrine. See Cramer v Metropolitan Savings Ass’n, 125 Mich App 664, 671-672; 337 NW2d 264 (1983); Cloverlanes Bowl, Inc v Gordon, 46 Mich App 518; 208 NW2d 598 (1973). In our case however, Judge Kallman was well aware of Lonnie’s contradictory deposition testimony prior to denial of AFF’s motion to amend. Thus the "changed circumstances” did not arise after the first judgment, nor was the "fraud” discovered only after that judgment, 46 Am Jur 2d, Judgments, § 473, pp 638-639.
Finally, AFF argues that Judge Kallman’s ruling was limited in scope to accrued medical costs and may not bar adjudication as to continuing PIP benefits. We cannot give credence to this contention. In the DeCare #1 settlement, AFF agreed to pay continuing PIP benefits. The ensuing litigation involved not only those benefits due, but the continuing benefits as well.
We conclude that Judge Swallow correctly applied the principles of res judicata to the prior rulings of Judge Kallman.
Affirmed.
Shepherd, P.J., concurs. AFF is not without relief since it may still pursue its theory of the case in the Hallmark suit in Oakland County.
To aid the reader in sorting out the various suits involved, a capsulized version of them follows:
1. DeCare #1. Alger DeCare, Conservator of the Estate of Ernest DeCare, L.I.P., & Alger DeCare, individually v AFF & Lonnie DeCare & Elaine DeCare, filed in December of 1980. Plaintiff sought no-fault insurance benefits. AFF settled and paid the policy limits of $20,000 to both Alger and Ernest.
2. DSS suit. Michigan Dep’t of Social Services, subrogee of Ernest DeCare v AFF, filed in February of 1981 in Ingham County. DSS sought reimbursement for medical bills paid by Medicaid for the DeCares’ treatment. Summary judgment by Judge Kallman on behalf of DSS.
3. Hallmark suit. AFF v Hallmark Underwriters & Alpine-North Ins Agency, filed in March of 1981 in Oakland County. AFF sued for negligence in failing to delete the truck from the policy. Current status unknown.
4. AFF reformation suit. AFF v Lonnie DeCare & Elaine DeCare, filed in December of 1981 in Alpena County. AFF sought to reform the insurance contract to reflect Lonnie’s "true intent”. Summary judgment granted by Judge Swallow for the defendants.
5. DeCare #2. Alger DeCare, Conservator of the Estate of Ernest DeCare, L.I.P. v AFF, filed in May of 1982 in Alpena County. Plaintiff sued after AFF and the Michigan Claims Services discontinued benefits. Summary judgment by Judge Swallow on behalf of the plaintiff. | [
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Per Curiam.
Defendant pled guilty in district court to a reckless driving charge, MCL 257.626; MSA 9.2326. He appealed to the circuit court, raising several issues with regard to the plea-taking proceeding. The circuit judge held that the district judge had not informed defendant of his right to remain silent. However, the circuit judge did not order the plea set aside but instead deleted a 30-day jail term from the sentence imposed by the district court. The people appeal by leave granted, seeking either reinstatement of the plea or reversal of the order changing defendant’s sentence. We hold that the circuit judge correctly held that the plea was infirm but that he lacked authority to change the sentence.
Defendant was charged with felonious driving, MCL 752.191; MSA 28.661. He agreed to plead guilty to a charge of reckless driving in exchange for dismissal of the original charge. Before accepting the plea, the district judge engaged in the following colloquy with the accused:
’’THE COURT: * * * Mr. McKinnon, if I accept your offer of guilty to Reckless Driving you will have waived the following rights: 1. The right to have a trial either with a jury or without a jury, to cross-examine the witnesses called by the prosecution, to present witnesses in your own behalf if you desire to, that you would be able to testify yourself if you desired to, that you would have a right to have an attorney represent you, the fact that Mr. Scheid is representing you here this morning, that if you — you may plead guilty, not guilty, or stand mute. If you stand mute or plead not guilty, then this case would be set for trial for a later date.
"The maximum penalty is 90 days in the county jail, $100 fine, plus court costs.
"Do you understand everything I’ve said, sir?
"MR. McKINNON: Yes, I do.
’’THE COURT: Do you have any questions at all?
"MR. McKINNON: No, I’d just like to say that I want to get this over with and get on with my life.
’’THE COURT: Again then, what type of plea would you like to enter on the charge of Reckless Driving?
"MR. McKINNON: Guilty as charged.”
Defendant was sentenced to one year’s probation on condition that, inter alia, he spend 30 days in the county jail. On defendant’s appeal, the circuit judge found that the court below had not "adequately followed” DCR 785, in that it did not inform defendant of his right against self-incrimination, citing People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). The circuit judge declined to remand the matter for trial or other proceedings. Rather, he concluded that the "better result would be to simply void that portion of the sentence awarding [sic] Mr. McKinnon 30 days in the county jail”. Defendant agreed to this result. The prosecutor did not object. The circuit court entered its written order on March 3, 1982.
We first hold that the circuit judge was correct as to the infirmity of defendant’s plea. DCR 785.4(e) [formerly DCR 785.4(d); see, 417 Mich clxvi (1983)], requires the court to advise defendant of the rights he would have at trial. The court’s failure to personally advise defendant of the rights waived incident to a guilty plea renders the plea constitutionally infirm. People v Tallieu, 132 Mich App 402; 347 NW2d 469 (1984); People v Taylor, 89 Mich App 238, 240-241; 280 NW2d 500 (1979). The right to remain silent is one of the rights of which the defendant must be informed. Guilty Plea Cases, 395 Mich 96, 122; 235 NW2d 132 (1975); Jaworski, supra. See also, Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969).
In this case, the district judge told defendant he would have the right to testify if he wanted to. The people argue that this statement implied that defendant would also have the right not to testify. In Guilty Plea Cases, supra, p 122, the Supreme Court stated that an "imprecise recital” of the Fifth Amendment right might suffice. In particular, the Court held that a defendant was adequately advised of this right when told of her right "to remain silent” (but not of her right to refuse to take the stand and testify). Id. In another case the Court found a statement that defendant could "choose not to take the stand” sufficient. Id., pp 122-123. In the present case, there was no mention whatsoever of the Fifth Amendment right. A statement that a defendant cannot be prevented from testifying does not, necessarily or logically, encom pass the right to refuse to testify. An accused’s choice of whether to testify or not may be dependent upon a host of strategic considerations that have no connection with the right to remain silent. That defendant may choose to testify sheds no light on whether the state may force him to testify.
Accordingly, defendant’s plea was "constitutionally defective and the conviction must be set aside”. Guilty Plea Cases, supra, p 121. However, the circuit judge did not set aside the conviction, but changed the sentence. The circuit judge apparently relied on a statement in Guilty Plea Cases, supra, p 121, that "[a] Jaworski defect cannot be corrected on a remand”. He thereby misread that decision. Clearly, the Supreme Court was referring to an attempt to breathe vitality into the original plea and conviction, not whether defendant could be convicted validly after the plea is set aside. Since defendant’s conviction is infirm and must be vacated, the sentence must fall as well. Obviously, there can be no sentence without a valid conviction.
Defendant argues that the people should not be heard to challenge the circuit judge’s order, since they did not object to it in the proceedings below. This argument lacks merit. The circuit court did not have jurisdiction to change the specific terms of the district court’s sentence. People v Coles, 417 Mich 523, 536-537; 339 NW2d 440 (1983), citing MCL 769.1; MSA 28.1072. An order entered by a court without jurisdiction is absolutely void. In the Matter of Hague, 412 Mich 532, 544; 315 NW2d 524 (1982). A court should take note of the limits of its own jurisdiciton, " 'though the question is not raised by the pleadings or by counsel’ ”. Fox v Board of Regents of the University of Michigan, 375 Mich 238, 242; 134 NW2d 146 (1965), quoting In re Estate of Fraser, 288 Mich 392, 394; 285 NW 1 (1939). The parties cannot, even by stipulation, empower a court to hear a matter over which it lacks jurisdiction. Deeg v Detroit, 345 Mich 371, 381; 76 NW2d 16 (1956).
Finally, defendant argues that there is no statutory provision for the prosecutor’s appeal in this case. We disagree. Recently, the Supreme Court held that MCL 770.12; MSA 28.1109 is the prosecutor’s sole avenue of appeal. People v Cooke, 419 Mich 420; 355 NW2d 88 (1984). The statute provides, in pertinent part, that the people may appeal from an "order of the court relative to * * * proceedings had or made before the defendant is put in jeopardy”. MCL 770.12(c); MSA 28.1109(c). In the present case, defendant has never been placed in jeopardy, since he pled guilty in district court. "[T]he rule that a plea of guilty constitutes jeopardy has its proper application and force only as against a new charge for the same offense, and not to a continuing proceeding on the one, original charge.” 22 CJS, Criminal Law, §248, p 654. See also, Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 123; 215 NW2d 145 (1974); People v McMiller, 389 Mich 425, 431; 208 NW2d 451 (1973). Defendant has not been put to trial before a trier of facts. Serfass v United States, 420 US 377, 388; 95 S Ct 1055; 43 L Ed 2d 265 (1975). Accordingly, jeopardy has not attached, and the appeal is allowed. MCL 770.12(c); MSA 28.1109.
The circuit court’s order of March 3, 1982, is reversed. Defendant’s plea is set aside, and the case remanded to the district court for further proceedings consistent with this opinion. | [
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Per Curiam.
Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a term of eight to twenty years for the murder conviction plus the mandatory two years for the felony-firearm conviction. He appeals as of right. We affirm.
Defendant originally was charged with first-degree murder, MCL 750.316; MSA 28.548, conspiracy to commit first-degree murder, MCL 750.157a MSA 28.354(1), and possession of a firearm during the commission of a felony. Following a preliminary examination, the conspiracy charge was dismissed because of insufficient evidence. Defendant then successfully moved to suppress statements that he and his codefendant made to the police, and the remaining charges were dismissed.
The prosecutor appealed, and this Court reversed, holding that both statements were admissible against defendant. People v Spinks, 184 Mich App 559; 458 NW2d 899 (1990). Defendant’s application for leave to appeal to the Supreme Court was denied. 437 Mich 875 (1990). Defendant was then tried and convicted. We note that he was tried alone. His original codefendant had already been convicted.
Defendant first argues that the accomplice’s statement was improperly admitted against him. We agree.
We note, first, that this issue was decided in defendant’s prior appeal and that consideration is therefore technically precluded by the law of the case doctrine. CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). However, the case upon which this Court relied during defendant’s first appeal was reversed by the Supreme Court in People v Watkins, 438 Mich 627; 475 NW2d 727 (1991). Because defendant’s constitutional rights are at risk, we choose to address this issue on the merits. Locricchio v Evening News Ass’n, 438 Mich 84, 109-110; 476 NW2d 112 (1991); Bennett v Bennett, 197 Mich App 497, 500; 496 NW2d 353 (1992).
For a nontestifying codefendant’s statement to be admissible against a defendant, it must be admissible under the Michigan Rules of Evidence and it must not violate the defendant’s constitutional right to confront his accuser. People v Poole, 444 Mich 151, 157; 506 NW2d 505 (1993). We first acknowledge that the statement is indeed an unsworn out-of-court statement offered for its truth and, therefore, it is clearly hearsay. See id. at 158-159. Under MRE 804(b)(3), those portions that are against the declarant’s own penal interest are admissible. Poole, supra at 159. However, those portions that inculpate defendant are admissible only if the circumstances under which the statement was made vouch for its reliability. Id. at 161-162. A narrative description freely made to an acquaintance while not in custody probably would be admissible. Id. at 162. However, statements made to the police while under custodial interrogation may be motivated by a desire to win favorable treatment and, therefore, would not be admissible. Id. at 158, 162; see also Watkins, supra at 646-650.
In this case, the statement made by defendant’s accomplice inculpated the declarant and several other people, including defendant. Defendant’s role in the crime was to purchase the murder weapon. He was not alleged to have been present during the shooting. The victim was the declarant’s brother, and the killing was the result of a dispute involving drugs.
After carefully reviewing the accomplice’s statement, we conclude that those portions implicating defendant were inadmissible against him. We note that, overall, the statement tended to shift blame by inculpating others more than it inculpated the declarant, although defendant’s role was described as being relatively minor. Also, the statement was made in response to custodial interrogation and, therefore, may have been motivated by a desire to curry favor with the authorities. The trial court abused its discretion in admitting it.
Whether the admission of the nontestifying accomplice’s statement also violated defendant’s constitutional right of confrontation, US Const, Am VI, and Const 1963, art 1, § 20, depends on whether it bears "adequate indicia of reliability.” Poole, supra at 162. "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id. However, reliability may not be inferred from the blanket categorization of a statement as being against penal interest. Watkins, supra at 653-655. In fact, accusatory statements in a codefendant’s custodial confession are "properly presumed at the outset to be uniquely and especially suspect and unreliable, much more so than typical, run-of-the- mill hearsay.” Id. at 656 (emphasis in original). We note that the lack of indicia of trustworthiness may not be overcome with corroborating evidence. Id. at 665. In Poole, on the other hand, no violation of the Confrontation Clause was found where the statement was: "(1) voluntarily given, (2) made contemporaneously with the events referenced, (3) made to family, friends, colleagues, or confederates —that is, to someone to whom the declarant would likely speak the truth, and (4) uttered spontaneously at the initiation of the declarant and without prompting or inquiry by the listener.” Poole, supra at 165.
Here, there are no indicia of reliability. To the contrary, the accomplice’s statement in this case presents all the factors that favor a finding of unreliability because it: "(1) was made to law enforcement officers or at the prompting or inquiry of the listener, (2) minimizes the role or responsibility of the declarant or shifts blame to the accomplice[s], (3) was made to avenge the declarant or to curry favor, and (4) . . . the declarant had a motive to lie or distort the truth.” Poole, supra at 165. Thus, admitting the accomplice’s statement in this case also violated defendant’s right of confrontation.
However, a violation of the Confrontation Clause —like the erroneous admission of evidence — may be harmless if the appellate court can "confidently conclude, beyond any reasonable doubt, that the error did not affect the jury’s verdict.” Watkins, supra at 667; see also People v Banks, 438 Mich 408, 427; 475 NW2d 769 (1991). An error is not harmless if "the 'minds of an average jury’ would have found the prosecution’s case 'significantly less persuasive’ had the statements of the [accomplice] been excluded.” Id. at 430, quoting Schneble v Florida, 405 US 427, 432; 92 S Ct 1056; 31 L Ed 2d 340 (1972). Thus, even where "the properly admitted evidence . . . was substantial” an error is not harmless if the improperly admitted statements "provided a uniquely devastating and detailed account of the alleged crime. Any doubt on this score is dispelled by the fact that the jury specifically asked and was permitted to reexamine copies of the two confessions during deliberation. It would be virtually impossible to find the error harmless in light of such a direct indication that the jury was specifically concerned with the erroneously admitted evidence.” Watkins, supra at 667.
In this case, the people introduced a receipt from a gun shop showing that defendant purchased the murder weapon. There was also forensic evidence to the same effect. Further, defendant’s confession was introduced — which he challenges on appeal — in which he admitted not only purchasing the murder weapon but also knowing what his accomplice was considering doing with it.
We acknowledge that the jury deliberated for two days before reaching a verdict and that they twice asked for and examined the accomplice’s inadmissible statement. However, defendant’s own confession was just as detailed and devastating as his accomplice’s statement and it was, by itself, sufficient to prove beyond a reasonable doubt that defendant aided and abetted the commission of second-degree murder when he purchased the murder weapon with knowledge that the principal intended to use it to kill the victim. See People v Genoa, 188 Mich App 461, 463; 470 NW2d 447 (1991); see also MCL 767.39; MSA 28.979. Thus, assuming for a moment that defendant’s own confession was properly admitted — which we will decide later — we find that the error nevertheless was harmless beyond a reasonable doubt.
Defendant next argues that the trial court erred in allowing defendant’s accomplice, who had already been convicted, to refuse to testify after the accomplice asserted his Fifth Amendment privilege regarding self-incrimination. Defendant further argues that the trial court erred in allowing the prosecutor to refuse to request a court order granting immunity to the accomplice and thereby force the accomplice to testify. These errors, defendant alleges, violated his right of confrontation by making the accomplice unavailable for cross-examination and allowing his statement to be introduced.
Because we have already concluded that defendant’s right of confrontation was violated by introducing his accomplice’s statement, we do not address the merits of these arguments. We note, however, that the violation of defendant’s right of confrontation was, as discussed above, harmless beyond a reasonable doubt.
Next, defendant complains that the trial court improperly instructed the jury regarding the elements of aiding and abetting. We disagree.
Defendant opposed the prosecutor’s request to instruct the jury using the first edition of the criminal jury instructions. Counsel did this even after a discussion was held on the record regarding a possible error in the second edition’s version of the aiding and abetting instruction, CJI2d 8.1. The jury was given the instruction defendant insisted on. He may not now complain. People v Buck, 197 Mich App 404, 423; 496 NW2d 321 (1992), modified on other grounds sub nom People v Holcomb, 444 Mich 853; 508 NW2d 502 (1993). As discussed above, the error — if any — was harmless because the evidence properly admitted at trial was sufficient to find beyond a reasonable doubt all the statutory elements of aiding and abetting.
Lastly, defendant challenges the admissibility of his confession on the ground that it was the fruit of an illegal arrest without a warrant. We disagree.
Generally, if an "unlawful detention has been employed as a tool to directly procure any type of evidence from a detainee,” the resulting evidence should be excluded as the fruit of the poisonous tree. People v Mallory, 421 Mich 229, 240-241, 243, n 8; 365 NW2d 673 (1984). However, a defendant’s illegal arrest does not require suppression of his confession unless there is a causal nexus between the illegal arrest and the confession. Id. at 243, n 8. This is determined by examining: (1) the time elapsed between the illegal arrest and the confession, (2) the flagrancy of official misconduct, (3) any intervening circumstances, and (4) any circumstances antecedent to the arrest. Id. see also People v Malach, 202 Mich App 266, 274; 507 NW2d 834 (1993).
According to the evidence presented at the hearing regarding defendant’s motion to suppress, defendant was arrested at about midnight and was not interrogated until about noon the next morning. The parties stipulated that the delay was the result of the arresting officers’ busy schedule. The arresting officers testified that defendant’s brother allowed them inside the house after they knocked and identified themselves. The officers entered the house with their weapons drawn. However, none of the witnesses testified that they saw the weapons before opening the door.
During defendant’s prior appeal, this Court overturned the trial court’s decision to suppress defendant’s confession on the basis of prearraignment delay. Spinks, supra at 561-565. The panel examined the totality of the circumstances and found that the confession was voluntary. Id. at 564-565. The panel did not consider defendant’s argument that the confession should be suppressed as the fruit of an illegal arrest.
We acknowledge that the trial court did not rule on this issue below. However, we find — as did the prior panel — that the factual record below is sufficient for us to decide this issue as a matter of law. See id.
Our review of the record discloses only a moderate preinterrogation delay of about twelve hours. The officers’ conduct was not flagrant; in fact, defendant’s brother may have consented to their entry. See MCL 764.15; MSA 28.874; see also City of Troy v Ohlinger, 438 Mich 477, 485-486; 475 NW2d 54 (1991). There are no antecedent or intervening circumstances that are relevant to the causal nexus between the alleged illegal arrest and defendant’s confession. Thus, in light of all the circumstances, including those discussed in this Court’s prior opinion, we find that defendant’s confession was made voluntarily and was not the fruit of the alleged illegal arrest. Therefore, it was admitted properly into evidence.
Affirmed.
H. E. Brown, J., concurred in the result only. | [
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The Court
held that the validity of the assignment is not raised on this record; that the' ruling of the circuit judge, as to the cause of action counted upon by the declaration, was erroneous; and that the use of the term “assignee,” etc., does not authorize such a construction, but is rather to be treated as mere clescriptio personae.
Judgment reversed, with costs, and a new trial granted. | [
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] |
Marston, J:
. The defendant in error, a foreign corporation, was summoned to appear and answer in justice’s court as garnishee of Gilbert Travers, under sections 6463 and 6439 of the Compiled Laws.
The summons was issued February 3, returnable on the 13th, and was personally served upon Ira Worcester, the general agent of the company in this state, authorized to receive service of process. On the return day the cause was by consent adjourned until the 17fch of February, when the parties again appeared, and a written answer or disclosure, made and sworn to by Levi T. Griffin as agent and attorney of the company, was filed. This was excepted to by the plaintiff as insufficient, and the cause was again adjourned by consent until March 6th, and on that day it was again adjourned by consent to March 16th, to enable defendant to make further answer. On the 16th, defendant did not appear, and its default was noted, but on the 17th a further answer was filed by the defendant, which was made and sworn to by Ira Worcester, the agent of the company on whom the process was served. The cause was then by consent adjourned until March 19th, at which time counsel for the respective parties appeared, and argued and submitted the cause. March 23d the justice, considering the “disclosures of the garnishee insufficient,” rendered judgment against the company for the amount of the plaintiff’s claim. The company removed the case to the circuit court by general and special appeal, where the judgment of the justice was reversed, with costs against plaintiff in error Lorman.
We think the justice erred in considering the answer of the garnishee, as made and sworn to by Mr. Worcester, insufficient, and thereupon rendering judgment as though no answer had been put in. Whatever might have been the position of the company until the time the second disclosure was filed, yet after the filing of that disclosure the company could no longer be considered as in default. It is only when the company fails to answer through its proper officer, that the corporation can be held to be indebted to the defendant on the original suit. The statute is clear and explicit, that “the summons may be served upon the general or special agent of the corporation, and it shall be the duty of such officer so sued (served), or of the proper officer of such corporation having knowledge of the facts, to appear before the justice at the return day of the summons,” to answer, etc. Worcester was the officer of the company upon whom the summons was served, and it therefore became his duty to appear and answer. Such answer could not be treated as not having been made by the proper officer of the company, and therefore a nullity. If he was the proper officer on whom process could be served, he was also the proper officer under the statute to answer. The plaintiffs under this statute could not treat him as authorized to act for the company in the one ease, and deny his authority in the other.
This answer having been put in, the company was no longer in default. The proceedings thereafter must be “in the same manner and with the like effect as against individuals.” Unless the answer, therefore, disclosed a liability on the part of the company to the principal defendant, the justice had no authority to render judgment against the company. This the answer did not do. It went farther and denied any liability. True, it appears that Mr. Worcester did not have personal knowledge of all the facts stated by him in his disclosure. In the very nature of things this could not well be otherwise in the case of a foreign corporation. This, however, does not help the plaintiffs. The answer is the evidence on their part, and unless it affirmatively, by competent evidence, discloses a liability by the corporation to the principal defendant, they cannot recover.
The judgment of the justice’s court having been reversed in the circuit, the garnishee defendant was entitled to its •costs, and no question is raised by the assignments of error •as to the form of the judgment in this respect. The questions sought to be raised on the taxation of costs cannot be brought up by writ of error in this manner.
The judgment of the court below must be affirmed, with costs.
The other Justices concurred. | [
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Graves, J:
Willey and his son-in-law, one Warner, made their joint and several promissory note to Snyder for two thousand dollars, and payment being refused when it matured, Snyder-brought this suit against Willey upon it. Willey defended, and the' essence of his defense was, that a material part of the consideration was the stifling of two criminal prosecutions (of which one was for forgery), commenced at Snyder’s instance, and then pending against Warner. The jury returned a general verdict for Willey, and likewise returned answers to a large number of special questions. Judgment being entered against Snyder, he brought error, and the- case is before us ou a voluminous bill of exceptions, which has been fully inspected. It is seriously objectionable on account of its length and method. There are about two hundred folios of testimony, when all that was in the least needful might have been set down in less than fifty. An unreasonable expense was thus caused, and the labor of review largely enhanced. It would appear that notes of the trial were literally incorporated, without reference to their need-fulness for the purpose of decision hero, and as evidence of the want of care shown in drawing up the bill, we observe that at the foot of the testimony it is stated that “this was all the testimony given in the case,” whereas it appears, but a few folios back, that the plaintiff, in answer to explicit questions by defendant’s counsel, testified that he heard Mr. Marble testify in the cause the day before, and yet no such' testimony, or any testimony of Mr. Marble, appears in the bill. We have had frequent occasion to express our disapproval of similar improprieties in practice. It is not alone that they increase the labor of the court; they unduly magnify the expense, and obscure and mystify the case, and make way for misapprehensions and injustice. It may possibly become necessary to apply some sort of penalty in order to repress such prejudicial irregularities.
It seems proper, in the first place, to gather from the record the material points in dispute. This is the more important because there is considerable matter not able to affect the result, and some which has a mere incidental bearing.
That the paper sued on was given by defendant to plaintiff, was not questioned. The objection was, that it never had any validity; and in substance the theory of the defense was, that Warner had’pledged to Snyder a quantity of small notes, having a face value of some two thousand four hundred or two thousand five hundred dollars, on which Snyder had advanced some five hundred or six hundred dollars; that in these circumstances Snyder made a criminal complaint against Warner, and charged him with having forged one of these notes, and caused him to be arrested for examination on the complaint; that Snyder then proceeded to practice on the fears of Warner, Willey and Willey’s daughter, Mrs. Warner, and made threats to her to cause her to solicit and influence her father, the defendant, to step forward and become a party to a settlement on exorbitant terms prescribed by Snyder; that defendant, being moved by such arts and. means, met Snyder and received and offered terms of settlement; that Snyder’s demands were considered too extravagant, and the parties separated without agreeing; that Warner was then placed in jail under the warrant on Snyder’s complaint, and was bailed out in a day or two by defendant’s means; that Snyder then made a second and different charge against Warner on another of the notes, and caused a warrant for his apprehension to be placed in the hands of the sheriff, and still signified his purpose to push his advantage and pursue Warner to the penitentiary unless a satisfactory settlement should be made; that whilst this warrant was out, and before arrest under it, a general adjustment was agreed upon and in the main carried out; that one branch of it was, that Warner and his father should give their note to Snyder without defendant’s knowledge for about two hundred and ninety-four dollars, which was done; that the other branch of it was, that Snyder should • telegraph the sheriff to abstain from coming and arresting Warner'on the second complaint; that he should surrender the notes he held and stop the criminal proceedings; that they should stand settled; and that Warner and defendant should give the note in suit upon such consideration; that Snyder telegraphed, or was understood to have telegraphed the sheriff as agreed; that he surrendered the notes, and that Warner and defendant gave the note in accordance with the understanding; that shortly afterwards the sheriff appeared and made the arrest on the second complaint, but that in fact the proceedings in both cases were stopped, the plaintiff refusing to appear, and paying the costs; that the note 'for about two hundred and ninety-four dollars was subsequently paid; that it was expressly understood when the note in suit was given that it was to settle the whole matter, including the criminal proceedings.
The evidence in favor of this theory was very strong.
The plaintiff’s position was not essentially different except in two particulars.
First, He insisted that the small notes surrendered amounted, according to their face value, to two thousand four hundred and fourteen dollars and some odd cents; that they were not pledged to him, but were entirely his by purchase from time to time of Warner, and that he gave Warner about eighty cents on the dollar for them, partly in cash and partly in notes he held against Warner.
Second, That in settling and getting the note from Warner and his father and the note in suit, the criminal matters were not taken into account, and that nothing beyond his civil claim was embraced.
In testifying he admitted he instituted the criminal proceedings, and claimed that the note about which he first complained was a forgery, and at the same time admitted that this very note, and that also on which he based his second complaint, were amongst those he surrendered. He likewise admitted that this surrender of the notes, and the settlement which embraced such surrender, and also embraced the giving the note in suit, actually occurred whilst the criminal proceedings were pending, and that at the very time of making the settlement he telegraphed the sheriff not to come and make arrest on the second complaint. He further testified that shortly after Warner’s arrest on the first complaint he met him at Somer’s store, and that Warner told him he wanted it fixed up, that he did not want to go to Ionia, and that he (Snyder) replied, “ If you want to fix it up, we can do so;” that an interview then occurred between plaintiff and defendant, and that defendant made two propositions to settle, one being that he would take the notes if he (Snyder) would throw off ten per cent., and that he (Snyder) declined each proposition; that shortly afterwards, and after Warner had been bailed out of jail, he (Snyder) met him on the sidewalk and said to him: “I was kind of sorry that I did not make the old man another offer after I came home; I was sorry I did not offer to split the difference and throw off five per cent, and settle the thing up,” and that Warner replied: “We will do it; I will go over 'and see the old man and fix it up;” that after the second warrant was out, Warner told him he would “fix that thing up in some way,” and thereupon the final interview was at once brought about at which the business was concluded; that previous to this, however, he (Snyder) informed the prosecuting attorney “that Warner wanted to settle it up,” and that this officer instructed him “not to give any writings to settle a criminal process,” but that he might do so in civil matters, and that he gave no writings at all. Ho testified further, that on the settlement he told Willey “he would not appear on the return day” against Warner, “and dropped it,” and that it was dropped; that there was from first to last much controversy about terms; that Warner was to pay the costs incurred in the criminal proceedings, but failing to do so, he (Snyder) had to pay them.
He did not deny having made threats as to what he would do against Warner if no satisfactory adjustment was reached, and reluctantly admitted ho meditated sending him to the state prison unless a settlement was obtained.
With this explanation we proceed to consider the assignments of error, and we may first examine those relating to rulings on evidence. It is first assigned for error that the court erred in admitting Warner to testify in regard to transactions between him and plaintiff which were prior to the making of the note in suit, for the reason that the plea did not authorize it.
It is a sufficient answer to say that no exception was taken. But if there had been it would have been without force. The matter referred to was simply introductory, and the basis of the objection as explained at the time, that the notice accompanying the plea alluded to no former transactions or to the borrowing of any money, was fallacious. The defense was directed to the very existence of a promise having legal force, and this was admissible under the general issue alone. — Gould’s Plead., ch. 6, pt. 1, § 47. In an anonymous ease in 6 Mod., 230, the court say a -feme covert may plead non-assumpsit and give the coverture in evidence “because coverture makes it no promise.” And our own cases are decisive to show that the defense was admissible under the general issue prescribed by statute. — Kinnie v. Owen, 1 Mich., 249; Agent of State Prison v. Lathrop, Ib., 438; Myers v. Carr, 12 Mich., 63; Taff v. Hosmer, 14 Mich., 309; Dean v. Chapin, 22 Mich., 275; Wilson v. Wagar, 26 Mich., 452; Young v. Stephens, 9 Mich., 500.
The second assignment charges error in allowing Warner's wife to state the conversation between herself and her father, the defendant, at his house.
This assignment is not ivarranted by the record. She was expressly confined to what she said to her father, and conversations “between” her and her father ivero excluded. She was only allowed to state what she told him to induce him to act, and it was manifestly adduced as one of the pieces of evidence to sustain defendant’s theory, that the plaintiff made use of means to excite and frighten the daughter and cause her to influence her father, the defendant, to step forward and save the husband and son-in-law, Warner, from the plaintiff’s toils.
She had just testified that immediately before going to her father the plaintiff had told her that the best thing her husband could do would be to settle, and that he, the plaintiff, would send her husband to Jackson unless he did settle, and that he had then got a second warrant for him. Under these circumstances what she told her father, to incline him. to act, was part of the transaction. Its admission was not improper. — 1 Green. Ev., 108; 1 Stark, (by Shars.), 79, et seq.; Goodwin v. Harrison, 1 Root, 80; Phelps v. Foot, 1 Conn., 387; Park v. Hopkins, 2 Bail., 408; Hadley v. Carter, 8 N. H., 40.
The third assignment alleges error in permitting defendant’s counsel to ask him what, if any thing, induced him to sign the note.
The defendant answered that his inducement was to get his son-in-law clear from that position'; that he had no other object in view, and never received a dollar. On making objection to the question, no ground or reason was given? and none has been intimated here. Considering the tenor of the testimony on both sides, and even that given by the plaintiff, the inquiry would seem to have been of no importance, and as counsel have omitted to hint at any basis or theory to maintain the exception, it is believed to lack merit.
The fourth and fifth assignments are so plainly without force as not to deserve notice. The sixth complains because 'Warner was allowed to testify concerning the giving of the note by himself and father for two hundred and ninety dollars or two hundred and ninety-four dollars. There is nothing in this point. This subject was a branch of the defense. It was one of the marked features of the complete transaction, and without proof of it the jury could not have seen the transaction as it was.
The seventh allegation of error charges that it was improper to stay Hunt, a witness for plaintiff, from testifying that as plaintiff’s agent he had bought notes of Warner during the time plaintiff and Warner were dealing together, inasmuch as the court had allowed defendant to place before the jury his view of such transactions and dealings. The allegation of error is not quite in keeping with the record, and does not fairly represent the action of the court. The exact extent of the ruling was to preclude Hunt from testifying in regard to other notes than those connected with the transaction. He was not prevented from swearing that he bought for plaintiff any or all of the notes in question, or from stating any thing he knew about Snyder’s buying them, and in fact he testified at some length on this subject, and to the effect that the notes were bought and not pledged. "When the point was raised below by plaintiff’s counsel on which this charge of error is based, it was expressly stated there was no puipose to show by the witness that he bought any of the notes in question. If Hunt, acting as plaintiff’s agent, had previously bought other notes of Warner, it had no tendency by itself to show that the notes connected with the transaction were also bought, and there was no offer of proof that Warner in such dealing with Hunt made, any statement or admission leading, or helping to lead to any inference that the two dealings were similar. But the issue made in evidence, as to whether the notes connected with the transaction were pledged or sold to plaintiff, was immaterial, except as the event of it might bear on the credit of witnesses, and on the probability that there was or was not a reasonably adequate consideration in the view of the parties for the papers given to the plaintiff on the settlement, without including the suppression of the criminal proceedings. As the case stood, and in view of the facts sworn to by the plaintiff himself, it would be going very far to say that the remote influence just mentioned could have been produced through the testimony called for from Hunt. But however this may be, and waiving the fact that the allegation of error does not truly apply to the record, and departs from the requirement of the rule, the ruling itself under the circumstances was not illegal. — 1 Green. Ev., § 448; 2 Ev. Poth., 283; Com. v. Jeffries, 7 Allen, 548; People v. Kennedy, 32 N. Y., 141.
The eighth allegation charges that the court erred in striking out testimony given by the plaintiff on his redirect examination in relation to his good faith and intentions in making complaint before the justice. In the first place it does not appear that there was any thing of the kind in connection with the redirect examination. But at any rate the plaintiff was allowed full liberty to testify as to his good faith and intention in making complaint, and he actually testified at length on the subject. There is no foundation for the assignment.
The ninth charge of error complains that the court improperly overruled the following question put to the plaintiff: “In settling with Mr. Warner and Mr. Willey did you make that settlement with a view of compounding any felonies or settling any criminal offense, or was it for the purpose of securing your just debt?”
An allowance of this question would not, except on account of its leading character, have been illegal, but it is a very different matter whether its rejection can be made a ground of complaint. On its face it was a little ambiguous, because the plaintiff may very well have had an ultimate purpose quite apart and remote from the relief of Warner from his peril of criminal prosecution.
The plaintiff had just previously testified to his talk with both Warner and Willey in regard to settling, as already-mentioned, to the circumstances of the settlement, to his interference to prevent the service of the second warrant, and that in making complaints and suing out the warrants he acted in perfect good faith. lie had also been asked by his counsel, whether in settling he was “settling a criminal prosecution or settling for these notes,” and in answer to the question had sworn that he “was settling for these notes.” And immediately after the excluded inquiry he swore, after hesitation, that when the warrants were procured he meant to send Warner to state prison unless he settled, and that he informed Willey at the time of the settlement that ho “ would not appear against ” Warner “ at the return day,” and “dropped it.”
Viewing the course of his examination, and his way of answering, and the answers given, there was strong reason for expecting that in responding to a question shaped as this was he would return an equivocal answer, an answer reflecting his notion of his final purpose in the transaction, as distinguished from his purpose or intention touching the means to bring about his final purpose. The question was not so framed as to confine him to his purpose or intention, in the latter sense, and it was not important to press an examination in respect to the other.
One may resolve that he will got money from another, and such determination may imply nothing wrong. The-end may be all right, or at all events not unlawful, and in a certain sense^the separate fact of getting the money may be said to be the purpose or intention of the person resolving to get it. But the choice of means may carry with it an intention to rob or do some other illegal thing, and the important inquiry concerning purpose or intention, -where the-ultimate object is not necessarily wrong, relates to the purpose and intention connected with the means contemplated or adopted.
After a critical examination of the evidence, and especially the testimony given by the plaintiff himself, it is not perceived that the ruling objected to affords him any ground of legal complaint. In point of fact, he did testify in relation to the very subject to which the inquiry pointed, unless we assume the question was framed artfully and'so that the witness would catch in it an opportunity to return a misleading reply.
The rulings about admitting evidence being disposed of, the charges of error based on instructions and refusals remain to be noticed, and this branch of the case is not entitled to much discussion. Considering the plainness of the evidence, the physiognomy of the defense developed, the form and inaptness of the requests refused, and the tenor and bearing of the instructions given, it would be a waste of time, in view of the findings by the jury, to examine the exceptions in this part of the. case in detail.
The-plaintiff has no just cause for complaint, since if the instructions were in any respect objectionable, they were at least sufficiently favorable to him, and the requests refused were either defective in frame or inapposite. The substantial and main defense, as developed by the trial, was, that part of the consideration of the note was the suppression of the criminal prosecutions against Warner, of which one was for forgery, and the evidence given by the plaintiff would have warranted a finding that this defense was true. But defendant urged as further -matter of defense, that Snyder caused the commencement of such proceedings and the arrest of Warner for the very end and purpose of procuring, through their pressure and influence, a private pecuniary gain or advantage, and that the obtainment of the note was within such scheme and intention.
In view of the evidence and instructions, the general verdict must have been construed as a finding in favor of one or both of these grounds of defense, and in any event must therefore have been decisive.
Still there would have been nothing to enable the court to say whether the jury found for the defendant on both grounds, or, if not, upon which one of the two.
The answers by the jury to particular questions have, however, removed all uncertainty on this subject. They are in perfect harmony with the general verdict; and not only so, but they distinctly negative specific positions of the plaintiff, and categorically affirm the essential elements of both grounds of defense.
They say the plaintiff did not buy the small notes of Warner; that the prosecuting attorney did not assume control of the criminal proceedings, but did direct their discontinuance; that he did not inform plaintiff that ho might settle his private damages, or to that effect; that the note in suit, was given by defendant in consideration that plaintiff would surrender to Warner the small notes and forbear to prosecute the criminal proceedings; that plaiutiff procured the warrants to be issued to obtain-pecuniary satisfaction or some advantage to himself, and that these prosecutions -were used by him to procure defendant’s signature to the note in suit, and that the stopping the criminal prosecutions was understood as enterhig into or forming part of the consideration, or as inducement to the execution of the note.
The findings settled beyond all question, that the writing sued on was based in part on an illegal consideration, and hence was not enforceable by the promisee, who was party to such illegality. Among the multitude of cases bearing ou illegal arrangements, we cite the following, and they are quite sufficient for the present purpose. — Collins v. Blantern, 2 Wils., 341, and 2 Smith L. C., 153, and note; Holman v. Johnson, Cowper, 341; Benyon v. Nettlefold, 2 E. L. & E., 113; Hall v. Dyson, 10 E. L. & E., 424; Pearce v. Brooks, L. R., 1 Exch., 213; Ayerst v. Jenkins, L. R., 16 Eq., 275; 6 Eng., 756; Armstrong v. Toler, 11 Wheat., 258; Hanauer v. Doane, 12 Wall., 342; Trist v. Child, 21 Wall., 441; Orr v. Lacey, 2 Doug., 230; O’Hara v. Carpenter, 23 Mich., 410; Briggs v. Withey, 24 Mich., 136; Seiber v. Price, 26 Mich., 518; Steuben County Bank v. Mathewson, 5 Hill, 249; Sherman v. Barnard, 19 Barb., 291; Ross v. Truax, 21 Barb., 361; Peck v. Burr, 10 N. Y., 294; Knowlton v. The Congress and Empire Spring Co., 57 N. Y., 518; Atwood v. Fisk, 101 Mass., 363; Taylor v. Jaques, 106 Mass., 291; Clapp v. Hale, 112 Mass., 368; Sturges v. Bush, 5 Day, 452; Treat v. Jones, 28 Conn., 334; Shaw v. Spooner, 9 N. H., 197; Clark v. Ricker, 14 N. H., 44; Carleton v. Bailey, 7 Foster, 230; Roll v. Raguet, 4 Ohio, 400; Widoe v. Webb, 20 Ohio St., 431; Bush v. Brown, 49 Ind., 573; see also § 7672, C. L.
An argument of much length is submitted in the brief of plain tiff’s counsel, to the effect that as part of the consideration for the defendant’s promise sought to be enforced was the surrender of the small notes to Warner, it was nut competent to bring forward the defense that the rest of the consideration was illegal, without its being shown that the small notes had been returned or offered back, and the argument seems to proceed on the assumption that the defense of illegality supposes or requires a rescission of the unlawful engagement by the party defending; and that his retention of the lawful part of the consideration must be considered as conclusive evidence of an election not to rescind, and hence an election to abide by the engagement;
The authorities cited expose the fallacy of this position, if indeed any authority was needed.
The plaintiff voluntarily became a party to an illegal agreement, and accepted a promise the consideration for which was in part this very illegality.
He chose to become promisee of the defendant where the consideration for the promise was the stifling of a criminal prosecution and the surrender of notes. lie gave up the notes at once, and seems to have been faithful' to his unlawful agreement concerning the prosecution. The defendant’s promise has remained unexecuted, and the plaintiff now asks the court to compel him to perform, and insists that the court must do so, inasmuch as the defendant keeps the legal part of the consideration. The .point is, that the law must help the plaintiff out of the consequences of his illegal conduct, and save him from loss, in. one way or another. It must either award him the amount of the note, or by a rule of proceeding at least bring back to him all of any value he chose to part with to obtain the note.
The defendant might have voluntarily kept his promise, and if he had the whole arrangement would have been executed on both sides. But the transaction was never enforcible by action. The instrument the plaintiff accepted was in form a promissory note, but in the eye of the law it never had any legal force.
Being tainted by the illegal consideration, its fitness and capacity to be enforced depended on no other contingency than proof regularly made of the vice in it.
The defense in question is not admitted in order to benefit the defendant, but to protect a tribunal established to uphold the law from being made an instrument to compel execution of a contrivance to violate the law.
The very nature of the defense negatives the existence of any thing to be rescinded, and hence the entertaining of it depends in no manner upon any supposed duty resting on one of the culpable parties to restore any thing to the other,’ and the court can never recognize any rule by which the plaintiff must either have an enforcement of the promise made to him or else be put back where he was before be acted in furtherance of his illegal agreement. — Brownell v. Talcott, 47 Vt., 243.
The judgment should be affirmed, with costs.
The other Justices concurred. | [
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The Court
held that the questions raised were such as should be raised by writ of error.
Writ dismissed. | [
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Cooley, J:
The controversy in this case concerns the force and effect of a decree in chancery in a cause in which this plaintiff was complainant, and Vreeland and Conrad, under whom defendant derives title, were defendants. That bill was filed to have a mortgage declared void because obtained from complainant by fraud and while he was a minor. The invalidity of the mortgage was fully charged, and the bill also stated that a foreclosure had been had under the power of sale contained in the mortgage, and a sale made to Conrad and Vreeland on a day named, which was a few days before the bill Avas filed; but it alleged no error or irregularity in the foreclosure proceedings, though it asked that the sale be set aside on the case made by the bill. An ansAvcr AAas filed in Avhich the validity of the mortgage Avas insisted upon, and the case went lo a hearing and the bill was dismissed.
It is iioav insisted that, in an action at laAV involving the title to the land coA'ered by the mortgage, and in which defendant relies upon the foreclosure, the plaintiff is estopped by the decree in chancery from disputing the validity of the foreclosure proceedings; and the circuit judge so held.
This ruling must haA’e proceeded on one of two grounds: first, that the validity of the foreclosure Avas at issue in the suit in chancery; or, second, that plaintiff had the opportunity to put it in issue, and should have done so, because it was naturally and properly a part of his case, and to leave it to form the subject of another litigation would be in effect to diAdde up Avhat is properly a single controversy, and to contest in detail the several questions it presents in different suits.
Looking into the record of the chancery suit, it is apparent that the regularity of the foreclosure Avas not put in issue or contested. The complainant denied its validity as a deduction from the invalidity of the mortgage, but in no other Avay or manner. The question Avas not made the subject of evidence, and presumably Avas not within the contemplation of the judge Avhen he decided the cause. He could not do otherwise than to dismiss the bill on the issue made, if the mortgage was found to be valid. We must hold, therefore, that there has been no direct adjudication on the validity of the foreclosure proceedings.
The question whether the plaintiff was legally bound to have brought the proceedings into the chancery suit is one of more difficulty; but on reflection we are not satisfied he has lost the right to dispute them by the failure to do so in that suit. The validity of the mortgage and the regularity of the foreclosure are not necessarily connected; they present different controversies altogether. They do not stand in relation to each other as two distinct grounds of invalidity in the mortgage would, for then the controversy would be one, however numerous might be the grounds of reliance. Suppose one were to file a bill to set aside a judgment as having been obtained by fraud; could he, if he failed in that suit, be debarred from contesting at law a void sale on execution because he had failed to put it in issue in his chancery suit? We think not. And the reason would be the same there as here: the validity of the sale was neither attacked in the suit in equity, nor were the proceedings necessarily in any way involved in that, controversy. They might have been put in issue; but there is no rule of equity practice which requires the complainant in every instance to make his ease as comprehensive as possible. If there are controversies that are really distinct, he may make them the subject of separate suits if he chooses. — See Barker v. Cleveland, 19 Mich., 230, 238.
Our conclusion is, that the judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, Ch. J:
Barron brought suit against the plaintiffs in error to recover a certain tract of land in the township of China, of which it is conceded Lucinda A. Robbins is owner, unless her title has been cut off by tax conveyances. Barron holds tax-titles for the years ,1864, 1865 and 1866, and claimed to recover upon these. It was shown, however, that each of these titles was defective, and Barron then claimed to recover the amount of the legal taxes which were covered by the sales, and also the taxes for 1867, which he had paid without sale.
To defeat this claim the defendants put in evidence a subsequent tax conveyance made to John Atkinson for the taxes of 1869. If this last conveyance is valid, it would seem to be a complete answer to the claim of Barron; fo1’ there can be no ground for a recovery as for a lien for taxes if the right of the party has been extinguished by subsequent sales.
The circuit judge reached the conclusion that Atkinson’s title was invalid. The ground of invalidity was, that the board of supervisors did not direct any taxes for township or school purposes to be assessed in the township of China for the year 1869, but that nevertheless township and school taxes were assessed for that year, and are included in the sum for which sale was made to Atkinson. In the absence of any such direction by the board of supervisors, the circuit judge was of the opinion that no township or school tax could lawfully be levied.
We think this conclusion of the circuit judge erroneous. The board of supervisors do not originate township or school taxes, but they take the certificate of the township clerk of the several amounts which the proper authorities have voted for those purposes (Comp. L. § 992), and direct the amounts specified, if they appear to be authorized by law, to be spread upon the tax-roll of the townships (Ib., § 997). The supervisors have no discretion in the premises; they have only to see that the sums are authorized by law, and then the duty to give the proper direction is imperative. If they should wrongfully refuse to give it, they might be compelled by mandamus to do so. But we also think that if the township authorities should proceed to levy the taxes which had been lawfully voted, their action would be perfectly valid whether the proper direction had been given by the supervisors or not. A neglect or refusal by the board to perform its'duty, when nothing was submitted to their judgment or discretion, could not deprive the township authorities of the right to levy taxes which had been duly voted by the competent town and school boards. The action of the supervisors is not, we apprehend, required to give the local officers power in the premises, but rather to insure the duty being surely and regularly performed. A similar question arose in Alvord v. Collin, 20 Pick., 418, in which the town assessors levied a state tax without having received the proper warrant directing them to do so; and their action was held to be entirely valid. There is no claim, as we understand it, that any excessive or illegal tax was levied for the year in question, unless the defect we have considered rendered the levy illegal, and we are clear it did not.
The judgment must be reversed, with costs, and a new trial ordered.
Other questions were discussed by counsel, but we have not considered them, as the case in the court below turned upon this. Our statutes now undertake to give a purchaser at a tax-sale which proves defective a lien for the money paid; but when they come to be administered in a case like this, where there are successive purchases by different persons, the questions are sufficiently difficult to make it wise to defer any definite opinions until all the facts are before us.
The other Justices concurred. | [
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Campbell, J:
The bill in this cause is filed in aid of an execution,, to set aside as fraudulent a deed made by Alexander B. Runyan, a judgment debtor, to his wife, and a subsequent mortgage from husband and wife to defendant Conn. The deed was made November 1, 1873, and the mortgage, November 15, 1873, for one thousand dollars, payable in five years, with ten per cent, interest. The execution was levied on the 19th of November.
The' defendant Conn does not appear in this court, and as his mortgage was given for a much larger sum than he advanced, and he does not defend, this security is of no account, except as it may have some connection with the deed. The validity of the deed is the only important ques tion before us. It so.oms to be conceded tho mortgage is paid or settled.
The deed was made during the pendency of the suit on which the complainant obtained judgment, and on the eve of the judgment. The case shows beyond any doubt that the deed was made to. save the land from levy. It was fraudulent, unless made on an equity prior and superior to complainant’s, and to a person entitled to rely on that equity.
This is claimed by Mrs. Runyan to be her position. Her defense consists of a prior agreement to purchase from her husband, on terms which .were fair and for a money consideration, and which had been fulfilled. The contract set up in the answer was a written contract dated February 2, 1869, for one thousand dollars payable in four years, and subject to all mortgages, and on payment she was to have a quit-claim deed. The deed actually given purports to be a deed of gift for a good, and not for a valuable consideration, and makes no reference to the contract. According to the written terms, the contract was. payable in full in February, 1873.
The proof, assuming it to be satisfactory in quality, shows that the parties were married in 1867, when Mrs. Runyan seems to have had some property in New York, on which she realized afterwards from one thousand to one thousand five hundred dollars. She paid a note of her husband’s for two hundred and eighty-one dollars in February or March, 1868. They moved on to the land in the fall of 1868, in October. Afterwards Mr. Runyan swears there was a verbal contract, the terms of which do not appear, unless inferentially taken to have been the same as the written one. Mrs. Runyan makes no reference to a verbal bargain directly. She claims to have made annual payments, and to have paid in full before the deed. She gives no dates of any payments but the note of two hundred and eighty-one dollars of 1868. Mr. Runyan produces copies of three alleged receipts, the first for two hundred and fifty dollars, dated June 2, 1868; the second for one hundred and seventy dollars, January 1, 1872, and the third October 12, 1873, for two hundred and fifty dollars.
Upon these facts it is to be remarked that more than fire hundred dollars were paid before any contract was talked of, and before they moved upon the land; that Mrs. Runyan was to take the land subject to existing mortgages, and it does not appear that her money ever went to pay any mortgage, while it is assumed there were mortgages to be paid, the amount of which should, by the terms of the contract, be added to the purchase money, or at least be a charge on her title; that only one hundred and seventy dollars is shown to have been paid after the written contract, until within a few days before the deed, and that within a month after receiving the last two hundred and fifty dollars payment the defendants made the Conn mortgage.on a claim of pressing need of money.
Putting the most favorable construction on all these facts, and assuming them to be facts, the alleged verbal agreement amounts to nothing, being followed by the written one before any thing had been done under it, as well as being void. The written contract provides expressly for one thousand dollars to bo paid in the future, and makes no reference to past payments as applicable. It is not' shown by any testimony that the early advances made by Mrs. Runyan were loans at all, and whether loans or not they were not made on any contract or understanding concerning these lands, and cannot be credited on the contract. The answer makes no reference to any such claim.
Taking the stories to be true, Mrs. Runyan owed more than five hundred dollars on the land, aside from the mortgage burdens, when it was deeded to her. Her husband had no right to give away, as against his creditors, any title which he possessed, and he owned this title subject at best to an executory contract less than half performed. A levy upon his interest would take the legal title in full and a beneficiary interest subject to the liability bf conveying on complete performance by Mrs. Runyan.
As Mrs. Runyan, before she can claim the land, must pay more than three-fold the complainant’s claim, she has no equity upon her own showing which justifies her holding the deed as .against the levy.
The complainant is entitled to have the deed set aside, and to have the land sold to satisfy his judgment. He is also entitled to costs of the circuit court and of this court. Defendants may have the option of paying these costs, and the judgment and execution, with the legal expenses, in forty days.
Under these circumstances we do not deem it necessary to discuss the credibility of the testimony.
The decree below, dismissing the bill, must be reversed,' with costs of both courts, and a decree rendered for complainant as above directed.
The other Justices concurred. | [
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Per Curiam:
One of the plaintiffs in error (William Shepard) bought a horse of one Mary Love for one hundred and ten dollars. The bargain was made with her son, George Love, to whom Shepard paid ten dollars of the purchase price and made his note to him for the balance. By a subsequent arrangement this note was taken up and one made in lieu of it by Shepard to Mrs. Love upon a year’s time with interest. Mrs. Love transferred this last note to Gordon Dunlap, and he recovered judgment upon it against Shepard before a justice. Upon that judgment an execution was issued and placed in the hands of Cross, who was a constable, for collection. He levied on the horse before mentioned, and the plaintiffs in error replevied it and thereby regained possession.
The judge before whom the cause was tried without a jury found these facts, and also that the horse was exempt except for purchase money, and it was held that the plaintiffs in error were not entitled to recover, and judgment was given against them for one hundred and seven dollars and fifty-one cents and costs.
First. It is urged for defendants that Dunlap’s judgment was for the purchase price of the horse, and that as a consequence there was no exemption and no right of action.
The suit by Dunlap was on the note as a distinct security, and he was a transferee and not the party to whom it was originally made. The consideration for which it was given was not sued for, and the judgment was not rendered for it. That consideration was not the subject of his purchase, and it was never transferred to him. What he obtained was Shepard’s executory promise to pay one hundred dollars and interest, and nothing more. When Mrs. Love elected to transfer the note to him, she elected to consider the note as payment for the horse, and if there was any previous right in her, or in any body else, to claim thoDiorse upon execution as not exempt against the debt, it existed no longer.
In many cases where the seller of property takes the buyer’s note for it he may waive recovery upon it and recover upon the original consideration; but a transferee of the note, who is a stranger to such consideration, cannot do it. If a first transferee could take the property for which the note was given, as not exempt for the purchase price, any other transferee, however remote, could do so, and very strange and unjust results would be produced. The facts in this case disclose another difficulty. Here the note first given for the horse is not the note transferred to Dunlap. The note on which he obtained judgment is one which was given to Mrs. Love in place of the first, and if the doctrine contended for were maintained, a right would be recognized to trace an original consideration through any number of successive changes and substitutions in order to bind the property for which the first note was given. A bare statement of the matter is enough to show the unsoundness of what is claimed.
Second. It is urged lastly that if the horse was exempt from Dunlap’s execution, the plaintiffs, as husband and wife, could not join in replevin to regain possession; but one or the other should have sued alone. We see nothing in this claim. These exemptions are intended for the benefit of the family, and not merely for some one member of it, and the object of the suit is to preserve this benefit which the law sanctions.
Formerly the wife could not sue at all in such a case, and the assertion of all right of exemption depended upon the will of the husband, and it often happened that where there was the most reason in the circumstances of the family for the maintenance of the exemption, the weakness or vice of the husband rendered the right abortive.
To avoid this the legislature provided that the wife might sue alone, that is, might sue without her husband. It was not the object of the legislature to preclude the husband from suing, or to compel either to sue alone. The purpose was to make the right more remedial, to increase fhe facilities for guarding it, and a joint suit was not forbidden. We see no objection whatever to a joinder in such a case. The objection we have noticed being removed, the plaintiffs in error were entitled to recover upon the facts found, and the result is, that the judgment below must be reversed, and one entered for the plaintiffs in error, with costs of both courts. | [
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Per Curiam:
I. The order was appealable; and when a chancery appeal lies, it brings the case- up for review with all matters of discretion open for consideration in the appellate court, precisely as they were in the court below.
II. The statute (Clomp. L., 1871, § 5147) prohibits a sale within one year after the filing of the bill. Whether or not this strictly requires the interval of a year between the service of subpoena and the sale, the purpose certainly was to give the mortgagor time within which to make payment and save the lands; and that purpose is not served by permitting a sale within six months after he first has notice, by service of subpoena or otherwise, that a bill has been filed, even though the bill may in fact have been on file, but inoperative, for six months previous. The court has a discretionary power in such a case, at least, to postpone the sale until the expiration of a year from the service of the subpoena; and such a discretion ought to liavebeen exercised in this case.
III. Good practice requires that a defendant who has ap pearod in the cause should have such notice of the entry of the decree as will afford him an opportunity to attend and be heard upon the settlement thereof.
Order of confirmation reversed, with costs, and re-sale (Ordered. | [
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The Court
held that this case is ruled by Fort Wayne, Jackson & Saginaw R. R. Co. v. Gildersleeve, supra, p. 133.
Judgment affirmed. | [
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Per Curiam:
First. It was for the jury to weigh the evidence, and if they believed what Cooper and Gregory swore to, the proof went beyond what is necessary for an estoppel, and showed that' Sebright actually disclaimed ownership, affirmed that Hill was owner, and advised Cooper to levy on the cattle as Hill’s property. Assuming the truth of this testimony, as we must upon the point made, Sebright expressly consented to the levy, and to all the succeeding steps which appear to have been taken to bind the property for the attachment debt.
Second. The evidence given by these witnesses very plainly conduced to show that Hill was absolute owner at the time of the levy, and, with the other facts, justified the instruction concerning Hill’s right at the time of Sebright’s sale to him.
The judgment should be affirmed, with costs. | [
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Marston, J:
July 18, 1870, Sliermer executed and delivered to Merrill and McCourtie three promissory notes, respectively falling due in one, two and three years from the date thereof, the one falling due in three years being for the sum of two hundred dollars with ten per cent, interest payable annually. He at the same time, in order to secure payment of these notes, executed a mortgage to Merrill and McCourtie. After the two first notes, but before the third became due, Merrill and McCourtie foreclosed this mortgage-by advertisement. The notice of sale contained this clause:: “This foreclosure and sale is made subject to another note, secured by said mortgage, for the sum of two hundred dollars, and interest thereon at ten per cent, from January 18, 1870.” The mortgagees became the purchasers at saicl sale, having bid the amount' due on the two first notes and costs of foreclosure. The premises were not redeemed.. The purchasers received a deed, and had the same recorded April 26, 1873, and afterwards brought an action against Shermer to recover the amount of this third note, and judgment was rendered in their favor for the amount thereof.. Shermer removes the case to this court on writ of error, and insists that the mortgagees having purchased the land subject to this note, and having afterwards obtained a deed therefor, they cannot thereafter maintain an .action upon the note.
The debt for which the note- in question was given was a lien upon the land, which- was sold subject to its payment-.. The intention was clear, and such must have been the understanding, that in case a third person became the purchaser, and the mortgagor should not redeem, the mortgagee, when this note became due, if it was not paid, might proceed to-foreclose and again sell this land in order to obtain pay rnent of the note. Such would be the legal effect and re'sult of such a sale. The purchaser would hold the lands subject to the payment of the note secured thereon. Under such circumstances it is quite clear that parties present at the sale contemplating a purchase would take into consideration the fact that they might thereafter be called upon to pay the outstanding note, in order to protect their title to the lands in case they became purchasers. They would not, therefore, be likely to bid the full value of the lands unincumbered, but the value subject to the incumbrance; so that the land would bring just the amount of the note subject to which the sale was made, less than it otherwise would have done. Under such circumstances, should the mortgagee sue the mortgagor upon the note and recover judgment, the mortgagor, upon payment thereof, would be entitled to be subrogated to the rights of the mortgagee under the mortgage, in order to subject the land charged with the payment of the debt. Were it otherwise, the mortgagor would be in effect paying the debt twice; once by a sale of his land for a sum the amount of the outstanding debt less than it otherwise would have brought, and then afterwards by paying the note. It is said that the mortgagor could avoid this result by redeeming the laud. True, if he' had the ability he might iu this way protect himself; but this is not his only remedy. Where the sale has been made subject to one or more installments, he need not redeem, but may insist that payment thereof shall be made out of the land upon which, by the terms of the mortgage and sale, they have been expressly made a charge. It must, in such cases, be conclusively presumed that the land sold for the amount of the unpaid notes less than it otherwise would have done.
The mortgagees having become the purchasers stand in no better position than a third party would under like circumstances. If a third party purchasing the land at such a sale would take it -subject to the payment of future installments, not then due, the mortgagees, in case they pur chased, would take it subject to a like charge. The fact that they are mortgagees and holders of the notes gives them no superior rights and privileges at such a sale. They take the land upon the same terms and subject to the same charges which third parties would. It is urged, however, that admitting and notwithstanding all that has been said, the mortgagees may still pursue their remedy against' the mortgagor upon the note the same as though a third party, and not they, had become the purchaser at the mortgage sale. We have seen, however, that where the mortgagor is thus compelled to pay the note, he is entitled to be subrogated to the rights of the mortgagee under the mortgage, and that he thus has a remedy over against the land. What good reason then is there for permitting the mortgagees to collect the note by a suit at law, if the mortgagor can thereupon turn around and commence proceedings to recover back a like amount by a sale of the mortgaged promises bid in by the mortgagees?
“A court of law will endeavor to prevent circuity and multiplicity of suits, where the circumstances of the litigant parties are such that, on changing their relative positions of plaintiff and defendant, the recovery by each would be equal in amount.” — Broom’s Maxims, 337.
The judgment must bo reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Marston, J:
This case in its main features resembles and must be governed by Stevens v. Corbitt, supra, p. 458. It, is further insisted in this case that the promise was made to the Michigan Midland Railroad Company, which never finished the road or opened it for traffic. That company, after the contract in this case was made, commenced the construction of the road, but being unable to complete the same, it made an assignment in November, 1873, to plaintiff in error, of that portion of the road referred to in the agreement of Bacon, together with all its franchises and property of, in and to said portion of the road, and a further assignment of the agreement sued upon was afterwards made. The plaintiff in error, therefore, became the successor and assignee in that portion of the Michigan Midland Railroad Company’s road and franchises, including the agreement in question. Bacon promised to pay that company, its successors or assigns, and we know of no legal impediment in the way of enforcing the agreement which he made. From a reading of his agreement it would appear to have been a matter of small importance to him what corporation built the road and opened it for traffic, if it was only built and opened. It. was the building and opening which was considered the essence of the agreement.
It is also suggested that at the time the agreement was obtained the road was surveyed and located about half a mile from defendant’s farm, and that he said, at- the time the note was given, he would aid in building the road on that account, but that the road was afterwards changed and built across his premises, wliich was a damage to him. There undoubtedly might be such a change made in the location of the line of a road as would warrant the party making the promise in withdrawing it, where it would be apparent that he would lose the advantages which he expected to accrue to him from the building of the road. We are not prepared to say, however, that the change in this case was of that nature. There was no such condition in the agreement itself. Indeed the court does not find that what was said upon that subject at the time of entering into the agreement was considered at all material, or was any thing more than a mere casual remark. Nor does it appear that defendant made any objections to the proposed change, or made any effort to withdraw his promise of aid on that account. Besides, if the change was any injury to him on account of running across his lands he had a remedy for such damages as he suffered thereby, independent of this agreement.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Cooley, Ch. J:
The importance to the parties of an early decision of this case, in view of the conclusions at which we have arrived, induces us to dispose of it now, instead of taking time for any elaborate discussion of the positions which were taken by the respective counsel on the hearing.
We are entirely satisfied that the trust mortgage did not contemplate an authority in Bradley to buy in the mortgaged property for the cestuis que trust, and to hold the same to be managed and disposed of by himself as their trustee. The possibility that it might become necessary for some person or persons to bid in the property to prevent sacrifices, we may fairly suppose the parties did contemplate, but the contingency was one for each creditor to make provision for as his own interest might seem to dictate, and not for the trustee to look out for. The creditors entered into no joint arrangements whatever beyond selecting a person who, without having possession or control of their claims, was to take, hold, and if need be enforce, a security for the protection of all severally. Undoubtedly the arrangement empowered him to take legal proceedings for foreclosure, but there, we think, his authority terminated. It was for the creditors to see that the property was not sacrificed, and not for him.
We are also satisfied that a majority of the creditors could not coerce the others into any arrangement for buying the lands at the foreclosure sale.' None of them, in consenting to the security, has surrendered any right of individual action, and each is at liberty to consult his individual interest. It might well happen that the interests would not be the same. A man with an endorsed note might peril his security by an arrangement which would be perfectly safe to the others. We do not examine any questions affecting single parties, because we are clear that neither a majority of the cestuis que trust nor the trustee was intended to be clothed with the power which has been attempted to be exercised.
It follows from these views that the order of confirmation was incorrect, so far as it undertakes to bind non-assenting parties to a participation in the trustee’s purchase. The question then recurs, what relief shall be given?
We think it would be unjust to the trustee that he should be compelled to take the land and account to the appellants for their proportion of his bid. We see no reason to doubt the good faith of the trustee’s action in making the purchase. But he did not buy for himself, and if he has erred in supposing that it was competent for him to bid for all the parties secured, he ought not to be made to suffer for the error. Justice would require that if the appellants insist upon their objections, the sale .should be opened.
. With these views we are disposed to make a conditional order. If the appellants, with the decision that they cannot compel the trustee to take the land, shall see fit to file their assent to the purchase made by the trustee as one on behalf of all, they will be at liberty to do so within twenty days from this day, and on filing such assent and serving notice thereof on complainant’s solicitor, an order may be entered that the sale as made to Bradley as trustee do stand confirmed. If they shall fail to file such assent, the trustee shall be at liberty, within twenty days after the expiration of said twenty days, to elect either to take the land for the other creditors, paying to the appellants their proportionate share, or to have the sale opened; and in such case, on serving notice of the election, an order shall be entered accordingly, giving the trustee sixty days thereafter to make payment, with interest from the day of election. But the share to which the appellants should then be entitled should be their proportion of the Ramsdoll bid, which they insisted the trustee should accept, and not of the bid made by him. If neither party shall file an election within the time provided, the sale shall stand set aside, and the trustee should proceed to make sale anew.
The appellants will recover costs of this court, and the case will be remitted for proceedings in accordance with these views.
The other Justices concurred. | [
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Per Curiam:
This case is covered by the previous decisions of this court. The first replevin suit only determined the right of Deyoe to the possession of the organ at that time, and Avas not inconsistent with the right of Delano or Jamison to recover possession when the remainder of the purchase price was paid or tendered. This right was not one which would be forfeited by mere' neglect to pay by the day named. And if Deyoe could have a right to terminate it in that event, there was evidence from which the jury might infer, as they did, that he had waived it by seeking to collect the balance afterwards. On the main point in the case reference is made to Preston v. Whitney, 23 Mich., 260; Johnston v. Whittemore, 27 Mich., 463; Giddey v. Altman, 27 Mich., 209. There was sufficient evidence connecting the two plaintiffs in error with the detention, to warrant their being joined as defendants.
‘ The judgment is affirmed, with costs. | [
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Marston, J:
We think the court erred in excluding the evidence offered by plaintiff in this case. The slander alleged consisted in the defendant saying of the plaintiff: “You have been indicted before the grand jury for false swearing.” “You swore false and I can prove it.” “Brace has been indicted before the grand jury for false swearing.” There were other allegations in the declaration, and the plaintiff proposed on the trial, and “offered to prove each and every allegation in his declaration contained,” but the court excluded the testimony. The only question in the case is, are the words charged in the declaration as having been uttered by the defendant actionable per so. We think they are. To charge another with having been indicted before the grand jury for false swearing is a direct charge that he has been judicially accused of having committed the crime of perjury, and has been indicted therefor. When a person is indicted by the grand jury, it is generally considered to be for some supposed criminal offense. And when charged with having sworn false, and with being indicted for false swearing, it is a direct charge that the person has sworn falsely in reference to some material matter in a court of competent jurisdiction, and has thereby committed the crime of- perjury, for which he has been indicted. The charge of being indicted therefor clearly and sufficiently indicates the nature and place of the false swearing charged. To charge another with swearing falsely might not be sufficient standing alone, but when coupled therewith the charge is also made that the person has been indicted therefor, this characterizes the other part of the charge, and raises it to that grade which makes it a criminal and indictable offense. Otherwise we can attach no meaning to the fact of the party’s having been indicted therefor. — See Crone v. Angell, 14 Mich., 340; Jacobs v. Fyler, 3 Hill, 572; Roberts v. Camden, 9 East, 93; Pelton v. Ward, 3 Caines, 73; Gilman v. Lowell, 8 Wend., 573.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Cooley, Ch. J:
'We have looked in vain through the referee’s findings of fact for any thing to warrant his conclusion that the defendants entered into any joint undertaking with this plaintiff. The circumstances relied upon as rendering O’Brien liable, would show a separate liability, if any thing, and they tend to negative, rather than to support any inference that either he or the plaintiff understood that O’Brien was to be jointly responsible with Stewart. The finding of law is consequently without any support in the facts.
The judgment must be set aside, and judgment entered in this court for the defendant O’Brien, with costs of both courts.
The other Justices concurred. | [
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Hoekstra, J.
This appeal concerns an attempt by plaintiff Electrolines, Inc., to have a Michigan trial court recognize and enforce under the Uniform Foreign Money-Judgments Recognition Act (ufmjra), MCL 691.1151 et seq., and the Uniform Enforcement of Foreign Judgments Act (uefja), MCL 691.1171 et seq., the money judgment it obtained in Liberia against defendant insurers. The trial court denied the jurisdictional challenge brought by defendants Prudential Assurance Company, Eagle Star Insurance Company, Star Assurance Society, Ltd., Albion Insurance Company, NRG Fenchurch, Bishopsgate Insurance Company, Ltd., and, Assicurazioni Generali S.p.A. (hereinafter defendants) pursuant to MCR 2.116(C)(1), and defendants appeal by leave granted. Plaintiff cross-appeals from the same order, seeking a more favorable jurisdictional ruling than the trial court issued.
We reverse the trial court’s determination that it was unnecessary for plaintiff to demonstrate that the Michigan court had personal jurisdiction over defendants. We also reverse the trial court’s decision that defendants waived the defense of lack of personal jurisdiction. We affirm the trial court’s holding that it did not have a jurisdictional basis over Prudential, reverse the trial court’s holding that Generali was subject to its personal jurisdiction, and otherwise find that plaintiff failed to make a prima facie showing of jurisdiction sufficient to defeat defendants’ motion for summary disposition. Accordingly, we vacate the trial court’s order denying defendants’ motion for summary disposition and remand for further proceedings consistent with this opinion.
I. factual background and procedural history
Plaintiff is a business incorporated under Liberian law. Defendants are insurance companies that wrote a single property casualty insurance policy for plaintiff. Generali is incorporated in Italy and has its principal place of business in Italy, while the remaining defendants are incorporated in the United Kingdom and have their principal places of business in the United Kingdom.
In June 1989, fire damaged plaintiffs store and factory in Monrovia, Liberia. Plaintiff filed a claim with defendants for $1.5 million for the building and its contents. Plaintiff alleges that the parties’ negotiations were unsuccessful and that the claim remains unpaid.
At some point in 1995, plaintiff filed a breach of contract action in the Sixth Judicial Circuit Court of Montserrado County in the Republic of Liberia. Defendants claim that they were not served with the suit. On February 26, 1996, the Liberian court entered a default judgment in favor of plaintiff for $1,389,766.60.
According to defendants, plaintiff desires to have the Liberian judgment “recognized and enforced” in a court in the United States so that it can take the new judgment to England where defendants have assets. Defendants assert that English courts will not recognize or enforce a judgment from a country such as Liberia that does not offer similar treatment of judgments rendered in England. As will be explained more fully later in this opinion, Michigan’s adoption of the relevant uniform act does not include a reciprocity provision.
In May 1999, plaintiff filed its first “Complaint for Recognition of Foreign Country Money Judgment and for Entry of Michigan Judgment Thereon [and] Jury Demand” in Wayne Circuit Court. Plaintiff asserted in its complaint that its principal place of business was in Dearborn, Michigan. The final paragraph of the complaint and the prayer for relief provide the following:
16. Pursuant to MCL 691.1151 et seq., and/or Principles of International Law, including the Principles of Comity and/or International Treaty, said Judgment is recognizable and enforceable by this Court as though rendered by a Tribunal located in the State of Michigan.
Wherefore, Plaintiff respectively requests this Honorable Court to recognize the Judgment entered by the Sixth Judicial Circuit of Montserrado County, Republic of Liberia, and to enter Judgment in favor of Plaintiff, and against Defendants, jointly and severally, in the amount of $1,389,766.60, plus any further interest, costs and attorney fees to which Plaintiff may be entitled.
Defendants answered the complaint, alleging as an affirmative defense that “[t]he court does not have jurisdiction over these answering defendants.” Further, on the basis of plaintiffs claim that its principal place of business was in Michigan, defendants had the case removed to federal court because of the alleged diversity of citizenship. Plaintiff admitted in federal court that it had no Michigan office, and the case was transferred back to the state court. For reasons that are not clear, the parties stipulated to dismiss the 1999 case without prejudice.
In June 2001, plaintiff filed the identical “Complaint for Recognition of Foreign Country Money Judgment and for Entry of Michigan Judgment Thereon [and] Jury Demand” in Wayne Circuit Court. Seven of the nine defendants named filed an identical answer, again alleging as an affirmative defense that “[t]he court does not have jurisdiction over these answering defendants.” The two remaining defendants were never served.
The trial court held a status conference in September 2001. Defendants filed their witness list in November 2001. In December 2001, plaintiff filed a motion to compel production of certain claims and underwriting files, which the trial court denied. In December 2001, the trial court also entered the parties’ stipulated order regarding the production of documents. In January 2002, defendants filed a response to plaintiff’s interrogatories and requests for admission.
From late December 2001 through late January 2002, defendants obtained affidavits from the seven overseas companies to contest jurisdiction. In February 2002, approximately eight months after the instant suit was filed, defendants moved for summary disposition pursuant to MCR 2.116(C)(1), asserting that they did not have sufficient Michigan contacts for the trial court to exercise personal jurisdiction over them. Defendants also requested the trial court decline jurisdiction on the basis of forum non conveniens.
In response, plaintiff proffered three alternative arguments: (1) that the personal jurisdiction requirement was inapplicable to a ufmjra proceeding; (2) that defendants waived the jurisdictional defense by waiting to file their motion and participating in discovery; and (3) that jurisdiction existed inasmuch as defendant Prudential had significant contacts with Michigan, Generali is licensed by Michigan to conduct business here, and the remaining defendants chose to “follow the fortunes” of the insurance companies by agreeing to be jointly included on the insurance policy.
At a hearing on defendants’ motion for summary disposition, the trial court denied the motion from the bench. The trial court accepted plaintiff’s argument on the inapplicability of the concept of personal jurisdiction, finding that plaintiff’s complaint instead concerned in rem jurisdiction. Nonetheless, the trial court addressed plaintiff’s argument that personal jurisdiction over defendants was present. The trial court found that only Generali voluntarily subjected itself to the jurisdiction of the trial court by registering with the Michigan Insurance Commissioner.
However, the trial court accepted plaintiff’s argument that all defendants had waived the jurisdictional defense. The trial court emphasized that after having asserted the defense, defendants participated in multiple hearings without further reserving their jurisdictional defense. The trial court opined that defendants’ participation was so intense and of such a long duration as to give a reasonable person a basis to believe that there had been a waiver of the defense. The trial court’s bench ruling was effectuated by an order entered on April 9, 2002. Defendants moved for rehearing, which the trial court denied.
Defendants applied for leave to appeal to this Court, which this Court granted. Plaintiff filed a cross-appeal from the same order, seeking a ruling from this Court that demonstrating the jurisdiction of the recognizing court is not a prerequisite to proceeding under the ufmjra. This Court granted defendants’ motion for a stay pending appeal.
H. JURISDICTIONAL REQUIREMENTS IN PROCEEDINGS UNDER THE UFMJRA AND THE UEFJA
The first issue we address is whether the trial court erred in holding that it was unnecessary for plaintiff to demonstrate that the Michigan court had personal jurisdiction over defendants where plaintiff sought to have the Michigan court recognize and enforce a foreign country money judgment under the ufmjra and the uefja.
This Court reviews a trial court’s grant or denial of summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999); Oberlies v Searchmont Resort, Inc, 246 Mich App 424, 426; 633 NW2d 408 (2001). Likewise, this Court reviews de novo a trial court’s jurisdictional rulings, Vargas v Hong Jin Crown Corp, 247 Mich App 278, 282; 636 NW2d 291 (2001), and statutory interpretation, Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559, 566; 640 NW2d 567 (2002).
We hold that where plaintiff failed to identify any property owned by defendants in Michigan, the trial court erred in holding that it was unnecessary for plaintiff to demonstrate that the Michigan court had personal jurisdiction over defendants in this common-law enforcement action.
A. THE UNIFORM FOREIGN MONEY-JUDGMENTS RECOGNITION ACT
Unlike the judgments of sister states, foreign country judgments are not subject to the command of the Full Faith and Credit Clause of the United States Constitution, art IV, § 1. In 1962, the National Conference of Commissioners on Uniform State Laws and the American Bar Association adopted the Uniform Foreign Money-Judgments Recognition Act (ufmjra), thereby codifying long-held state rules that had been applied by the majority of courts in the United States. 1 Restatement Foreign Relations Law of the United States, 3d, part IV, ch 8, Introductory Note (1986).
“The basic mechanism of the Act provides that foreign country money judgments will be recognized by the forum state, assuming that the judgment meets a fair number of basic criteria.” Anno: Construction and Application of Uniform Foreign Money-Judgments Recognition Act, 88 ALR 5th 545, § 2, p 561 (2001). “These requirements balance each state’s desire to enforce only those judgments that accord with its own specific laws, with the understanding that the world contains many different cultures and legal systems, whose judicial decisions and legislative enactments may be completely unlike American court determinations and state statutes and regulations, but that court rulings emanating therefrom may nonetheless be worthy of recognition.” Id.
The original prefatory note to the uniform draft includes the following reasons for proposing this legislation:
In most states of the Union, the law on recognition of judgments from foreign countries is not codified. In a large number of civil law countries, grant of conclusive effect to money-judgments from foreign courts is made dependent upon reciprocity. Judgments rendered in the United States have in many instances been refused recognition abroad either because the foreign court was not satisfied that local judgments would be recognized in the American jurisdiction involved or because no certification of existence of reciprocity could be obtained from the foreign government in countries where existence of reciprocity must be certified to the courts by the government. Codification by a state of its rules on the recognition of money-judgments rendered in a foreign court will make it more likely that judgments rendered in the state will be recognized abroad. [Prefatory Note, Uniform Foreign Money-Judgments Recognition Act, 13 ULA part II, p 40 (2002).]
The majority of states, including Michigan, have now adopted versions of the ufmjra. Pure Fishing, Inc v Silver Star Co, Ltd, 202 F Supp 2d 905, 912 (ND Iowa, 2002), citing Silberman, Enforcement & Recognition of Foreign County Judgments in the United States, 648 Prac L Inst 255, 258 n 2 (2001). Michigan’s version of the ufmjra, MCL 691.1151 to 691.1159, was effective November 2, 1967. Michigan adopted the ufmjra without a reciprocity provision, unlike several states (Florida, Idaho, Maine, North Carolina, Ohio, and Texas) that included a lack of reciprocity as a ground for discretionary refusal to recognize or enforce a foreign country judgment. Silberman, Enforcement & Recognition of Foreign County Judgments in the United States, 688 Prac L Inst 451, 458-459 (2003).
This Court has recognized that the “base provision” of the ufmjra is § 3, which provides that a “foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit,” MCL 691.1153. Bang v Park, 116 Mich App 34, 36-37; 321 NW2d 831 (1982). “Foreign judgment” means any judgment of a foreign state granting or denying recovery of a sum of money. MCL 691.1151(b). “Foreign state,” in turn, means “any governmental unit other than the United States, or any state, district, commonwealth, territory, insular possession thereof, or the Panama canal zone, the trust territory of the Pacific islands or the Ryukyu islands.” MCL 691.1151(a).
The ufmjra provides that a foreign money judgment “need not be recognized” if any of the following are trae: (a) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend; (b) the judgment was obtained by fraud; (c) the cause of action on which the judgment is based is repugnant to the public policy of the recognizing state; (d) the judgment conflicts with another final and conclusive judgment; (e) the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or (f) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action. MCL 691.1154(2).
The act provides that courts may recognize bases of jurisdiction other than personal jurisdiction, MCL 691.1155(2), but a foreign country money judgment “shall not be refused recognition for lack of personal jurisdiction” if (a) the defendant was served personally in the foreign state; (b) the defendant voluntarily appeared in the proceedings, other than for the purpose of protecting property seized or threatened with seizure in the proceedings or of contesting the jurisdiction of the court over him; (c) the defendant before the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved; (d) the defendant was domiciled in the foreign state when the proceedings were instituted, or, being a body corporate had its principal place of business, was incorporated, or had otherwise acquired corporate status, in the foreign state; (e) the defendant had a business office in the foreign state and the proceedings in the foreign court involved a cause of action arising out of business done by the defendant through that office in the foreign state; or (f) the defendant operated a motor vehicle or airplane in the foreign state and the proceedings involved a cause of action arising out of such operation. MCL 691.1155(1).
Generally speaking, if the foreign country money judgment meets the conditions of the ufmjra, then the judgment is “conclusive” and entitled to recognition as a matter of international comity. Comity is the recognition of a judicial or legislative act of another nation that permits foreign judgments to be recognized in this country. Bang, supra at 39. While the term “recognition” is not defined in the ufmjra, Black’s Law Dictionary (6th ed) defines “recognition” as “[ratification,” “confirmation” or “an acknowledgement that something done by another person in one’s name had one’s authority.”
B. THE UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT
Key to our resolution of this appeal is the understanding that a foreign country money judgment cannot be enforced until it has been recognized and that the ufmjra is not an enforcement act. The UFMJRA only serves the purpose of providing a court with a means to recognize a foreign money judgment. The UFMJRA does not establish the procedure to file or enforce a foreign judgment. Pinilla v Harza Engineering Co, 324 Ill App 3d 803, 807; 755 NE2d 23 (2001), citing 9 Am Jur 3d, Proof of Facts, Invalidity of Judgment of Court of Foreign Country, § 4, p 703 (1990). Rather, the act provides that once a foreign judgment is recognized, it is to be enforced in the “same manner” as the judgment of a sister state. MCL 691.1153.
The “same maimer” to which § 3 of the ufmjra refers is the procedure established in another uniform act, the Uniform Enforcement of Foreign Judgments Act (uefja), MCL 691.1171 to 691.1179, which Michigan adopted effective June 1, 1997. The “foreign judgments” governed by the uefja are the “judgments], decree[s], or order[s] of a court of the United States or of any other court that is entitled to full faith and credit in this state,” MCL 691.1172, i.e., the judgments of sister states. However, the ufmjra incorporated the uefja’s enforcement mechanisms to also apply to foreign country money judgments. Silberman, supra, 688 Prac L Inst, p 490. See Guinness PLC v Ward, 955 F2d 875 (CA 4, 1992) (holding that the uniform enforcement act is applicable to a foreign country judgment once such judgment has been found to be entitled to recognition under the ufmjra).
The comment to § 3 of the UFMJRA explains that the language of that section, which provides that a foreign judgment that meets the criteria of the act “is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit,” means that the method of enforcement would be that of the uefja in a state having enacted the latter act. 88 ALR 5th 545, supra, § 2 (2001).
Michigan’s 1997 adoption of the uefja gave parties the option of filing a copy of a foreign judgment with a court. Section 3 of the uefja provides that a party may file a copy of a foreign judgment “authenticated in accordance with an act of congress or the laws of this state . . . .” MCL 691.1173. The clerk must treat the foreign judgment in the same manner as a judgment of the circuit court, the district court, or a municipal court of this state. Id. A judgment filed under the uefja has “the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of the circuit court, the district court, or a municipal court of this state and may be enforced or satisfied in like manner.” MCL 691.1173.
Section 4 of the uefja provides that at the time of the filing of the foreign judgment, the judgment creditor must also file with the court clerk an affidavit setting forth the name and last known address of the judgment debtor and the judgment creditor, MCL 691.1174(1), and the applicable filing fee, MCL 691.1174(2). After the foreign judgment and the affidavit have been filed, the clerk mails notice of the filing to the judgment debtor at the address provided. MCL 691.1174(3). The foreign judgment may be enforced twenty-one days after the date notice of the filing of the foreign judgment is mailed. MCL 691.1174(4). Postjudgment interest is awarded in accordance with the law of the jurisdiction in which the judgment was awarded. MCL 691.1176.
In addition to establishing this statutory procedure for obtaining enforcement of a foreign judgment, the uefja also expressly maintained and codified the common-law practice of bringing a new action to enforce a judgment. Regarding the common-law practice, § 7 of the uefja provides that “[a] judgment creditor may bring an action to enforce his or her judgment instead of proceeding under this act.” MCL 691.1177.
c. jurisdictional requirements
The UFMJRA and the uefja operate in tandem, with recognition of a foreign money judgment under the ufmjra the precursor to enforcement under the UEFJA. Plaintiff, however, argues that it proceeded under the ufmjra only and that the uefja is irrelevant in its pursuit to turn its Liberian money judgment against defendant insurers into a Michigan money judgment. We disagree. Plaintiffs complaint requires application of the UEFJA. The facts of this case do not require us to decide the jurisdictional requirements of a complaint brought solely under the ufmjra.
When a party brings a motion for summary disposition, courts “look beyond the face of a plaintiffs pleadings to determine the gravamen or gist of the cause of action contained in the complaint.” Sankar v Detroit Bd of Ed, 160 Mich App 470, 476; 409 NW2d 213 (1987).
Here, the title alone of plaintiff’s complaint reveals that plaintiff sought not only recognition of the Liberian judgment, which is within the purview of the UFMJRA, but also “entry of Michigan judgment thereon,” which places plaintiff’s complaint within the ambit of the uefja. Further, plaintiff alleged in its complaint that the Liberian judgment was both “recognizable” and “enforceable” by the circuit court. In its prayer for relief, plaintiff requested the court to both “recognize” the Liberian judgment and “enter Judgment in favor of Plaintiff and against Defendants.”
Similarly, in issuing its international summons, plaintiff described the purpose of its proceedings in Michigan as “to convert foreign Judgment into Michigan Judgment and to enforce Judgment.” Likewise, in its answer to defendants’ motion for summary disposition, plaintiff described its case as a “recognition and enforcement proceeding.” Therefore, we have no doubt that plaintiff intended to initiate both a recognition and enforcement proceeding, even if plaintiff does not subsequently utilize any collection devices in Michigan.
Moreover, by filing a complaint in this case rather than merely filing the Liberian judgment along with an affidavit, plaintiff sought to enforce the Liberian judgment not under the newly enacted procedural provisions of the uefja, but under the common-law mechanism preserved by the uefja. Defendants argue that because plaintiff chose the common-law route, i.e., initiating a new complaint rather than filing the judgment with an affidavit, plaintiff is required to demonstrate the enforcing court’s jurisdiction. We agree.
We have not found any authorities indicating that the foundational requirement of demonstrating a trial court’s jurisdiction over a person or property is inapplicable in enforcement proceedings. To the contrary, the pertinent Restatement provides that “enforcement of a debt arising out of a foreign judgment must be initiated by civil action, and the judgment creditor must establish a basis for the exercise of jurisdiction by the enforcing court over the judgment debtor or his property.” 1 Restatement Foreign Relations Law, supra, part IV, ch 8, subch A, § 481, comment g (1986). See also Silberman, supra, 688 Prac L Inst, p 489 (opining that jurisdiction over a judgment debtor in an action brought to enforce the judgment must be acquired and that the action may be brought “against the defendant where he may be found or domiciled or the property of the judgment debtor may be attached as a basis of jurisdiction to enforce”).
Although a jurisdictional basis is required in an enforcement proceeding like in any other civil action, the jurisdiction in enforcement proceedings is wider. Whereas “a state has jurisdiction to adjudicate a claim on the basis of presence of property in the forum only where the property is reasonably connected with the claim, an action to enforce a judgment may usually be brought wherever property of the defendant is found, without any necessary connection between the underlying action and the property, or between the defendant and the forum.” Restatement, supra, part IV, ch 8, subch A, § 481, comment h. “The rationale behind wider jurisdiction in enforcement of judgments is that once a judgment has been rendered in a forum having jurisdiction, the prevailing party is entitled to have it satisfied out of the judgment debtor’s assets wherever they may be located.” Id.
The rationale for the wider jurisdiction mentioned in the Restatement was no doubt drawn from an oft-cited footnote in Shaffer v Heitner, 433 US 186; 97 S Ct 2569; 53 L Ed 2d 683 (1977). In discussing the enforcement of sister state judgments, the United States Supreme Court observed that “[t]he Full Faith and Credit Clause . . . makes the valid in personam judgment of one State enforceable in all other States.” Id. at 210. The Court noted that
[o]nce it has been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant has property, whether or not that State would have jurisdiction to determine the existence of the debt as an original matter. [Id. at 210 n 36 (emphasis added).]
Hence, in Lenchyshyn v Pelko Electric, Inc, 281 AD2d 42; 723 NYS2d 285 (2001), the New York Supreme Court, Appellate Division, referenced the footnote in Shaffer to support its holding that a judgment creditor does not need to show a basis for the exercise by a New York court of personal jurisdiction over a judgment debtor before obtaining recognition and enforcement of a foreign country money judgment. See also Pure Fishing, supra (finding the rationale of the New York court in Lenchyshyn persuasive). Cf. SCD Chem Distributors, Inc v Medley, 203 Mich App 374, 378; 512 NW2d 86 (1994) (decisions from other states can guide the interpretation of uniform laws).
In its effort to establish that personal jurisdiction is not a prerequisite to its recognition and enforcement action, plaintiff heavily relies on Lenchyshyn. However, plaintiff overlooks that the judgment debtors in Lenchyshyn had assets in the enforcing state, to wit, bank accounts in Buffalo, New York, and a New York corporation where one of the defendants was a principal. Although the Lenchyshyn court concluded that personal jurisdiction was not required, the Lenchyshyn court acquired jurisdiction because the defendants had property in New York. Indeed, the Lenchyshyn court concluded that “[a]t bottom, defendants take the illogical and inequitable position that a judgment debtor’s New York assets should be immune from execution or restraint so long as the judgment debtor absents himself from New York . . . .” Lenchyshyn, supra at 50 (emphasis added). Thus, the holding of Lenchyshyn is helpful only where a party demonstrates that property of the judgment debtor is located within the jurisdiction of the court.
In summary, in an action brought to enforce a judgment, the trial court must possess jurisdiction over the judgment debtor or the judgment debtor’s property. Because plaintiff failed to identify any property in Michigan owned by defendants, the wider jurisdiction afforded in enforcement proceedings does not help plaintiff here. Therefore, unless defendants waived the defense of lack of personal jurisdiction, plaintiff must demonstrate that the trial court could obtain personal jurisdiction over defendants. We therefore reverse the trial court’s contrary holding.
m. defense of lack of personal jurisdiction
The second issue we decide is whether the trial court erred in holding that defendants waived the defense of lack of personal jurisdiction. This Court reviews a trial court’s grant or denial of summary disposition de novo. Maiden, supra. Likewise, this Court reviews de novo a trial court’s jurisdictional rulings, Vargas, supra, and statutory interpretation, Lapeer, supra. This Court reviews for clear error a trial court’s factual determinations regarding a waiver claim, MCR 2.613(C); however, the trial court’s ultimate decision concerning whether those facts show a waiver is a question of law reviewed de novo. Madison Dist Pub Schools v Myers, 247 Mich App 583, 588; 637 NW2d 526 (2001) (waiver of right to demand arbitration). We hold that defendants did not waive the defense of lack of personal jurisdiction.
The governing court rule provides that whether a court lacks jurisdiction over the person or property is a ground that “must be raised in a party’s first motion under this rule or in the party’s responsive pleading, whichever is filed first, or [it is] waived.” MCR 2.116(D)(1). Further, a party waives an affirmative defense unless the defense is set forth in its first responsive pleading. MCR 2.111(F). The term “pleading” includes a complaint, a counterclaim, a third-party complaint, an answer to one of the above, or a reply to an answer. MCR 2.110(A). The current court rales do not include a special-appearance requirement.
Here, defendants answered plaintiffs complaint and alleged as their first affirmative defense that “[t]he court does not have jurisdiction over these answering defendants.” Although defendants did not use the word “personal” in challenging the court’s jurisdiction, the affirmative defense states jurisdiction “over these answering defendants” and another affirmative defense challenges the trial court’s subject-matter jurisdiction. Therefore, defendants’ jurisdictional objection sufficiently placed plaintiff on notice of an. attack based on a lack of personal jurisdiction. Moreover, the objection satisfied the requirements of the court rale.
Plaintiff argued and the trial court agreed that defendants subsequently waived the preserved defense by participating in discovery and waiting nearly eight months before filing a motion for summary disposition under MCR 2.116(C)(1). We disagree.
The only Michigan case plaintiff found for its implied-waiver argument was this Court’s decision in Dundee v Puerto Rico Marine Mgt, Inc, 147 Mich App 254; 383 NW2d 176 (1985). In Dundee, supra at 257, the defendant waited for more than four years to assert its defense of lack of jurisdiction and did so immediately before trial. Even then, the defendant admitted that the court had jurisdiction and merely asserted that the Michigan court was an inconvenient forum. Under those facts, this Court ruled that the defendant had waived its right to assert its jurisdictional defense. Id.
Here, defendants did not wait four years or until the eve of trial before moving for summary disposition. Rather, defendants waited less than eight months in the instant litigation to move for summary disposition. Moreover, their participation in the litigation was not so intense as to indicate a waiver of the defense. Before filing their motion for summary disposition in this case in February 2002, defendants participated in the case in only four ways. They participated in a status conference in September 2001, filed their witness list in November 2001, responded to plaintiffs motion to compel production of documents and stipulated the entry of an order on the matter in December 2001, and filed a response to plaintiffs interrogatories and requests for admission in January 2002. In February 2002, when defendants filed their motion for summary disposition, plaintiff still could have reasonably expected that it would have to contest a jurisdictional defense.
Therefore, the trial court erred in deciding that these facts showed a waiver of the properly preserved defense, and we reverse the trial court’s holding that defendants waived the defense of lack of personal jurisdiction. Consequently, we turn to analyzing whether any bases for personal jurisdiction over defendants exist.
IV. BASES FOR PERSONAL JURISDICTION OVER DEFENDANTS
The trial court applied the personal jurisdictional requirements to Generali and Prudential only, finding that Generali was subject to the jurisdiction of the circuit court. This Court reviews de novo a trial court’s jurisdictional rulings. Vargas, supra. We hold that plaintiff’s showing was insufficient with regard to all defendants.
A. GENERAL PERSONAL JURISDICTION
As explained more fully before, plaintiff bore the burden of demonstrating that the trial court possessed personal jurisdiction over defendants, although only a prima facie showing of jurisdiction was needed to defeat defendants’ motion for summary disposition. See Oberlies, supra at 426. Jurisdiction over the person may be established by way of general personal jurisdiction or specific (limited) personal jurisdiction. Id. at 427.
The exercise of general jurisdiction is possible when a defendant’s contacts with the forum state are of such nature and quality as to enable a court to adjudicate an action against the defendant, even when the claim at issue does not arise out of the contacts with the forum state. Oberlies, supra. When a defendant’s contacts with the forum state are insufficient to confer general jurisdiction, jurisdiction may be based on the defendant’s specific acts or contacts with the forum state. Id.
The existence of any of the following three relationships between a corporation and Michigan constitutes a sufficient basis of jurisdiction to enable a court of this state to exercise general personal jurisdiction over a corporation and render personal judgments against the corporation: (1) incorporation under the laws of this state, (2) consent, or (3) the carrying on of a continuous and systematic part of its general business within the state. MCL 600.711. None of these relationships is present here.
B. SPECIFIC (LIMITED) PERSONAL JURISDICTION
This Court employs a two-step analysis when examining whether a court in Michigan may exercise limited personal jurisdiction over a defendant. Aaronson v Lindsay & Hauer Int’l Ltd, 235 Mich App 259, 262; 597 NW2d 227 (1999). First, this Court ascertains whether jurisdiction is authorized by Michigan’s long-arm statute. Id. Second, this Court determines if the exercise of jurisdiction is consistent with the requirements of the Due Process Clause of the Fourteenth Amendment. Id.
The due process analysis concerns three questions: first, has the defendant purposefully availed itself of the privilege of conducting activities in Michigan, thus invoking the benefits and protections of this state’s laws; second, does the cause of action arise from the defendant’s activities in the state; and third, are the defendant’s activities so substantially connected with Michigan that they make the exercise of jurisdiction over the defendant reasonable. Aaronson, supra at 265.
MCL 600.715, Michigan’s long-arm statute pertinent to specific personal jurisdiction over a corporation, provides that the existence of any of the following five relationships between a corporation or its agent and Michigan constitutes a sufficient basis of jurisdiction to enable a court of this state to exercise limited personal jurisdiction over the corporation and “to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:” (1) the transaction of any business within the state; (2) the doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort; (3) the ownership, use, or possession of any real or tangible personal property situated within the state; (4) contracting to insure any person, property, or risk located within this state at the time of contracting; (5) entering into a contract for services to be performed or for materials to be furnished in the state by the defendant. MCL 600.715.
The parties did not contract to insure property in Michigan, MCL 600.715(4); therefore, only application of subsection 715 (1) (“[t]he transaction of any business within the state”), MCL 600.715(1), is at issue.
Because the phrase “transaction of any business” is not defined in the statute, it is proper to rely on dictionary definitions in determining the meaning of that provision. Oberlies, supra at 430. “Transact” is defined as “ ‘to carry on or conduct (business, negotiations, etc.) to a conclusion or settlement.’ ” Id., quoting Random House Webster’s College Dictionary (1997). “Business” is defined as “ ‘an occupation, profession, or trade . . . the purchase and sale of goods in an attempt to make a profit.’ ” Id. Our Legislature’s use of the word “any” to define the amount of business that must be transacted establishes that even the slightest transaction is sufficient to bring a corporation within Michigan’s long-arm jurisdiction. Id.
The trial court held that Generali had voluntarily subjected itself to the jurisdiction of the circuit court by registering with the Michigan Insurance Commissioner. We are not persuaded that registering with the Insurance Commissioner is equivalent to a business transaction, as this Court defined business transaction in Oberlies, supra. However, even assuming arguendo that Generali’s registration with the Michigan Insurance Commissioner is an act that could constitute a “transaction of any business” under MCL 600.715(1), plaintiff’s suit does not arise from Gener-ali’s registration, but from a fire of an insured building in Liberia. In other words, plaintiff’s cause of action, the enforcement of a Liberian judgment, did not arise from Generali’s activities in Michigan to the extent that the court could render a personal judgment against the corporation “arising out of the act or acts which create any of the . . . relationships,” MCL 600.715. Therefore, plaintiff has not established a connection between Generali and Michigan under the specific personal jurisdiction statute.
Additionally, because plaintiff’s cause of action does not arise from Generali’s activities in the state, the exercise of jurisdiction would be inconsistent with due process. See Aaronson, supra. Accordingly, the trial court erred in concluding that Generali was subject to its personal jurisdiction, and we reverse its holding.
A similar conclusion is compelled regarding Prudential. In this regard, the trial court opined that “all we know is that Prudential is the parent corporation of a Michigan subsidiary,” Jackson National Life Insurance Company. We affirm the trial court’s holding that it did not have a jurisdictional basis over Prudential.
Even assuming arguendo that the corporate separation between Prudential and its Michigan subsidiary is fictitious or that Prudential is in reality the alter ego of its subsidiary, see Wiles v B E Wallace Products Corp, 25 Mich App 300; 181 NW2d 323 (1970), or that Prudential exercised an undue amount of control over its Michigan subsidiary, see Avery v American Honda Motor Car Co, 120 Mich App 222; 327 NW2d 447 (1982), plaintiffs cause of action, the enforcement of a Liberian judgment, did not arise from the activities of Prudential’s Michigan subsidiary. Therefore, plaintiff has not established a connection between Prudential and Michigan under the specific personal jurisdiction statute, MCL 600.715, and the exercise of jurisdiction over Prudential would also be inconsistent with due process, see Aaronson, supra.
Last, we note that plaintiff requested that this Court remand for further discovery regarding defendants’ contacts with Michigan. In light of the fact that plaintiff must ultimately demonstrate that its cause of action arises from defendants’ activities in Michigan, we are not convinced that further discovery regarding defendants’ contacts with Michigan stands a reasonable chance of uncovering factual support for plaintiff’s position. See Village of Dimondale v Grable, 240 Mich App 553, 566-567; 618 NW2d 23 (2000). See also Oberlies, supra at 440 n 2 (noting that the policy favoring full and open discovery has limited application where there is a preliminary motion challenging jurisdiction because “[t]he concept of fairness is emasculated where the nonresident is haled to Michigan during the completion of discovery to find out whether the party should be haled to Michigan to defend the suit”).
V. CONCLUSION
We reverse the trial court’s determination that it was unnecessary for plaintiff to demonstrate that the Michigan court had personal jurisdiction over defendants in this common-law enforcement action. We also reverse the trial court’s decision that defendants waived the defense of lack of personal jurisdiction. We affirm the trial court’s holding that it did not have a jurisdictional basis over Prudential, reverse the trial court’s holding that Generali was subject to its personal jurisdiction, and otherwise find that plaintiff failed to make a prima facie showing of jurisdiction sufficient to defeat defendants’ motion for summary disposition.
Accordingly, we vacate the trial court’s order denying defendants’ motion for summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
This threshold jurisdictional question is preserved for appellate review by the summary disposition proceedings below. Nonetheless, plaintiff argues that this Court’s order granting leave to appeal “limited to the issues raised in the application” excluded the in rem jurisdiction issue because defendants did not present the issue in their application but in their reply brief to plaintiff’s answer to defendants’ application for leave to appeal. We are not persuaded that this Court’s order granting leave excluded the in rem jurisdiction issue where this Court granted defendants’ motion for leave to file a reply to plaintiff’s answer on the topic. In any event, this Court may consider a question of law where all the facts necessary to resolve the issue are presented. See Poch v Anderson, 229 Mich App 40, 62; 580 NW2d 456 (1998). | [
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Jansen, J.
Plaintiff appeals by leave granted from the trial court’s order adopting a parenting time schedule proposed by defendant and an order dispensing with oral argument and denying his motions for stay and for rehearing, amendment, or clarification. We affirm in part, reverse in part, and remand for further proceedings.
On July 12, 1998, Marley Loveman-Brown was bom to plaintiff and defendant. The parties never married, but lived together from the time Marley was bom until sometime in the fall 2001, when they began maintaining separate residences. By mutual agreement, the parties shared physical custody of Marley. Defendant was expected to graduate with a master’s degree in April 2003, and applied for jobs in Michigan, Ohio, Wisconsin, Minnesota, New York, and California in the fall 2002. Plaintiff filed a complaint seeking an award of custody and a decree that Marley could not be removed from Michigan. Then, plaintiff moved for a status quo order and a referral to the friend of the court, seeking the same relief requested in the initial complaint, as well as the entry of an order requiring both parties to maintain the status quo, and restraining both parties from removing Marley from Michigan. Defendant filed a counterclaim for custody, support, and court authority to remove Marley from Michigan.
The parties appeared before the trial court and agreed to have the trial court enter a status quo order providing that until the trial court acts on the matter or until the parties reach an agreement, neither party would remove the child from the state, and that the parties would continue the existing parenting time schedule. Subsequently, the trial court entered an order directing that “the presently existing arrangements between the parties for custody and parenting time shall remain in place and the minor child shall not be removed from the State of Michigan during the pendency of this action and until further Order of the Court.”
At a later date, the trial court heard opening statements from both parties, and their arguments concerning whether the D’Onofrio factors or the best interest factors were applicable. Following the hearing, the trial court proposed the use of a “conference style” hearing, in which witnesses would be permitted to testify without being examined or cross-examined by counsel. At no time during the proceedings did either party object to the procedure. An evidentiary hearing or a conference style hearing was held, during which the witnesses generally read from prepared statements and were not subject to direct examination or cross-examination by counsel.
Defendant testified that she applied for jobs all over the country, including Michigan, Ohio, Minnesota, Wisconsin, California, and New York, and received two job offers: one in California with Ernest and Julio Gallo Winery, and one in New York for Maybelline, a division of L’Oreai, which included a starting salary of $90,000 a year, a $15,000 signing bonus, and the possibility for future advancement. Defendant testified that she researched schools in New York City to determine which school would be the best for Marley, who was to start kindergarten in September 2003. Defendant also testified that moving to New York City was not inspired by a desire to defeat or frustrate visitation by plaintiff, but was, rather, based on where she found employment that would improve her and Marley’s quality of life. Defendant further testified that she would work hard to create parenting time opportunities for plaintiff and an opportunity for Marley to see her sisters.
Plaintiff is an associate at a landscape architecture firm in Michigan. Plaintiff has two daughters from a previous marriage, Jasmine, age ten, and Savannah, age six, who he indicates have a close relationship with Marley. Plaintiff testified that moving to New York would only have the potential to improve the quality of life for defendant, not for Marley. Plaintiff contended that if Marley went to New York, it would be impossible to maintain the same level of parenting time.
The trial court applied the D’Onofrio factors and stated on the record its finding that defendant sustained her burden of proof under the D’Onofrio factors and, thus, it allowed her to remove Marley from Michigan to New York. Then, the trial court directed each party to provide a proposed parenting time schedule within two weeks.
Defendant’s proposed parenting time schedule provided that defendant would have parenting time during the school year and up to one weekend a month during the summer, and that plaintiff would have parenting time during the summer, as well as over winter break, mid-winter break, spring break, and up to two weekends a month during the school year. The trial court entered an order adopting defendant’s proposed parenting time schedule, which stated “this Court finds that the parenting proposal offered by Defendant-mother is most reasonable and in the best interest of the minor child.” The order allowed defendant to take Marley to New York on May 12, 2003.
Plaintiff moved for rehearing, amendment, or clarification. Plaintiff argued that the trial court’s order adopting defendant’s proposed parenting time schedule failed to directly address the issue of custody and, in effect, significantly changed the established custodial environment of the minor child without a full evi- dentiary hearing and defendant’s establishment by clear and convincing evidence that a change of custody is in. the minor child’s best interest. Additionally, plaintiff requested clarification regarding whether the trial court’s order constituted a custody order that was a final order for purposes of appeal. Subsequently, the trial court entered an order dispensing with oral argument and denying plaintiff’s motions for stay and for rehearing, amendment, or clarification.
On June 30, 2003, this Court: granted plaintiff’s motion for immediate consideration; denied his motion to stay enforcement of the trial court’s order; granted leave to appeal, limited to the issues raised on appeal, pursuant to MCR 7.205(D)(4); and on its own motion, ordered an expedited appeal.
Plaintiff’s first issue on appeal is that the trial court erred in applying the standards set forth in D’Onofrio as opposed to those imposed by MCL 722.23, MCL 722.27, and MCL 722.31 where there had been no prior custody order and where the established custodial environment was with both parents. We agree in part and disagree in part.
An issue of statutory interpretation presents a question of law that is reviewed de novo. Eggleston v BioMedical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003); Ronan v Michigan Public School Employees Retirement System, 245 Mich App 645, 648; 629 NW2d 429 (2001).
Plaintiff contends that the trial court erred in applying the D’Onofrio factors, as opposed to the best interest factors, where there had been a prior status quo order and where the trial court determined that an established custodial environment existed with both parties. We find that the trial court did not err in applying the D’Onofrio factors when considering defendant’s petition to change the minor child’s residence. However, once the trial court granted defendant permission to remove the minor child from the state, and it became clear that defendant’s proposed parenting time schedule would effectively result in a change in the child’s established custodial environment with both parties, it should have engaged in an analysis of the best interest factors, MCL 722.23, to determine whether defendant could prove, by clear and convincing evidence, that the removal and consequent change in established custodial environment and parenting time was in the child’s best interest.
The trial court evaluated the evidence under the four factors set forth in D’Onofrio, supra, as previously adopted by this Court. See, e.g., Overall v Overall, 203 Mich App 450, 458; 512 NW2d 851 (1994); Bie-lawski v Bielawski, 137 Mich App 587; 358 NW2d 383 (1984). Under the D’Onofrio test, the trial court must consider
(1) whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child; (2) whether the move is inspired by the custodial parent’s desire to defeat or frustrate visitation by the noncustodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state; (3) the extent to which the noncustodial parent, in resisting the move, is motivated by the desire to secure a financial advantage in respect of a continuing support obligation; and (4) the degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed. [Overall, supra at 458-459; see also D’Onofrio, supra at 206-207.]
In applying the D’Onofrio factors, the trial court determined, with regard to the first factor, that moving to New York had the capacity to improve the quality of life for defendant and Marley because defendant “has been very determined and organized, and frankly it’s admirable what she’s been able to accomplish. But, more importantly, the Court is impressed by [defendant’s] desire to be self-sufficient and to provide for herself and her child.” The trial court did not think that factor number two was being debated, and stated that it was “convinced that this is not a desire to defeat or frustrate visitation,” and was convinced that defendant would follow its orders if it allowed her to move. With regard to the third factor, the trial court did not believe that plaintiff’s resistance to the move was motivated by a desire to secure a financial advantage. Specifically, with regard to the fourth factor, the trial court stated:
This child . . . will continue to be exposed to changing conditions. The fact of the matter is, she does have a relationship with half-siblings who also have a different mother, have a different household. There is currently a fiancée apparently in the house and there’s a whole . . . dynamic that’s going on, and the child is adjusting to all of those things. . . .
I did think the comment of [defendant’s mother] was interesting to say, well, we can’t have change, yet we have to preserve this very dynamic relationship, when in fact it’s changing all the time in [plaintiff’s] house. And, I’m not putting a value judgment on that. I’m just simply saying you have to be consistent. You can’t say exposure to New York City ... is clearly not good for the child, but we have to preserve sort of the fluidity of what continues to happen here. ... I am satisfied that we can come up with a realistic opportunity for visitation in lieu of the weekly pattern.
To that end, the Court finds that you have sustained your burden of proof and the Court will allow the minor child to move.
In addition, the trial court directed each party to provide a proposed parenting time schedule within two weeks.
In Dick, supra at 517, this Court held that the D’Onofrio factors are the appropriate standard to use when evaluating a petition to remove a minor child from the state. This is different than the standard used when evaluating a petition to modify a custody award. When a modification of custody (either by changing custody or parenting time) would change the established custodial environment of a child, the moving party must show by clear and convincing evidence that it is in the child’s best interest. Phillips v Jordan, 241 Mich App 17, 25; 614 NW2d 183 (2000).
Plaintiff contends that the trial court should have decided if the move was in the child’s best interest, pursuant to MCL 722.27(l)(c). MCL 722.27(l)(c) provides, in pertinent part:
The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.
In determining that the D’Onofrio factors were the appropriate standard to apply when a party is seeking to move a minor child to another state, as opposed to the best interest factors, this Court in Dick, supra at 517, reasoned:
We are not concerned with a true change of custody. A parent with joint legal custody is seeking to move to another state. In many other cases, the party requesting to change residence had both legal and physical custody. Furthermore, in factor number one of the D’Onofrio factors ... elements of the “best interest of the child” test are present. The trial court must of necessity measure the impact of the move on the children.
On January 9, 2001, the Michigan Legislature enacted MCL 722.31, a statutory version of the D’Onofrio factors, for trial courts to consider before permitting a legal residence change of more than one hundred miles. MCL 722.31 provides, in pertinent part:
(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.
(2) A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. . . .
* * *
(4) Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court’s deliberations:
(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(5) Each order determining or modifying custody or parenting time of a child shall include a provision stating the parent’s agreement as to how a change in either of the child’s legal residences will be handled. . . .
Clearly, the trial court should have applied and referred to MCL 722.31 rather than relying on the D’Onofrio test. However, in applying the D’Onofrio factors, the trial court was addressing the pertinent factors of MCL 722.31. In the present case, it appears that the Michigan Legislature intended MCL 722.31(4) to be judicially construed as D’Onofrio is in New Jersey to the extent that the language is the same, but that the removal of the “custodial parent” and “noncustodial parent” language and its replacement with “relocating parent” and “parent” apparently signified our Legislature’s intent to make the statute applicable even in cases where both parents have joint legal and physical custody, and not just where the parent with primary physical custody wants to relocate, changing the minor child’s legal residence. Stated another way, the Michigan Legislature apparently did not intend that sole physical custody be a prerequisite to petitioning to change a minor child’s legal residence.
There is no authority for the proposition that the parent seeking to relocate the minor child must have sole physical custody. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Gladych v New Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003). As noted above, the Legislature’s change of the wording of the statute from “custodial parent” and “noncustodial parent” (found in D’Onofrio, supra) to “relocating parent” and “parent” signifies the intention that being the sole physical custodial parent is not a prerequisite to petitioning the trial court for permission to relocate. Once the intention of the Legislature is discovered, it must prevail regardless of any conflicting rule of statutory construction. Green Oak Twp v Munzel, 255 Mich App 235, 240; 661 NW2d 243 (2003). Thus, we find that the Legislature intended that a parent who shares joint legal or physical custody may petition the court to relocate a minor.
Next, we address plaintiff’s argument that the trial court erred in applying the D’Onofrio factors, as opposed to the best interest factors, where there had been a prior status quo order, and where the trial court determined that an established custodial environment existed with both parents. In Scott v Scott, 124 Mich App 448, 450; 335 NW2d 68 (1983), this Court addressed a similar situation in which the parties were divorced and had joint custody of their two minor children. The defendant petitioned the trial court to remove the minor children to Ohio, and the plaintiff opposed the defendant’s request and petitioned the trial court to grant him sole physical custody of the children. Id. The trial court granted the defendant’s petition to move out of state, and the plaintiff appealed, arguing that “by allowing defendant to move to Ohio, plaintiff is essentially deprived of his joint custody of the children and, accordingly, sole custody should be granted to him.” Id. at 450-451. This Court found “no basis for reversing the trial court’s denial of plaintiff’s petition for sole custody,” reasoning that “[jJoint custody was originally granted, presumably in the best interests of the children, and the trial court correctly concluded that joint custody should continue.” Id. at 451, citing Longhi v Longhi, 119 Mich App 41; 325 NW2d 617 (1982). This Court, in Scott, supra at 452-453, analyzed the trial court’s decision, which relied on the D’Onofrio factors, as follows:
Despite the fact that D’Onofrio was a case dealing with removal of children by a sole custodial parent, we believe that it is applicable to the instant case. The D’Onofrio test, as this Court noted in Henry [v Henry, 119 Mich App 319, 323; 326 NW2d 497 (1982)] focuses on the best interest of the custodial parent and child. Although defendant is not the sole custodial parent, she and her present husband have, by mutual agreement, physical custody of the children for the school year, approximately 36 weeks. Plaintiff has custody during the summer, spring and Christmas vacations, some weekends and shared weeks, approximating 16 weeks.
This Court went on to conclude that the trial court did not abuse its discretion in granting the defendant’s petition to move to Ohio. Id. at 453.
We find that the trial court properly determined at the outset that the D’Onofrio factors, now provided in MCL 722.31, were the appropriate inquiry when ruling on defendant’s petition for change of domicile, as opposed to the best interest factors that are appropriate to consider in ruling on a request for a change of custody. Because it is possible to have a domicile change that is more than one hundred miles away from the original residence without having a change in the established custodial environment, the trial court did not err in solely applying the D’Onofrio factors to the change of domicile issue. However, once the trial court granted defendant permission to remove the minor child from the state, and it became clear that defendant’s proposed parenting time schedule would effectively result in a change in the child’s established custodial environment with both parties, it should have engaged in an analysis of the best interest factors, MCL 722.23, to determine whether defendant could prove, by clear and convincing evidence, that the removal and consequent change in established custodial environment and parenting time was in the child’s best interest. The subsequent change of the established custodial environment will be addressed, infra, but this change did not arise until after the trial court had ruled on the change of domicile motion. Because the change of an established custodial environment did not arise until the defendant’s proposed parenting time schedule was entered, we find that the trial court properly addressed the domicile change using the D’Onofrio factors.
Plaintiff’s second issue on appeal is that the trial court erred in adopting the parenting time schedule proposed by defendant, which amounted to a change of the established custodial environment without holding a hearing requiring that there be a showing by clear and convincing evidence that the change is in the child’s best interest. We agree.
We review questions of law de novo. See Burba v Burba (After Remand), 461 Mich 637, 647; 610 NW2d 873 (2000). This Court also reviews de novo an order regarding parenting time, but will not reverse the order unless the trial court made findings of fact against the great weight of the evidence, committed a palpable abuse of discretion, or committed a clear legal error. Mauro v Mauro, 196 Mich App 1, 4; 492 NW2d 758 (1992).
The trial court erred in adopting defendant’s proposed parenting time schedule, which effectively amounted to a change in the established custodial environment, without holding a hearing requiring that defendant prove by clear and convincing evidence that the change of domicile and consequent change in parenting time, which necessarily changed the established custodial environment, was in the minor child’s best interest.
Defendant’s proposed parenting time schedule provided that defendant would have parenting time during the school year and one weekend a month during the summer, and that plaintiff would have parenting time during the summer, as well as over winter break, mid-winter break, spring break, and two weekends a month during the school year. The trial court adopted defendant’s proposed parenting time schedule, finding that the proposal was “most reasonable and in the best interest of the minor child.”
Plaintiff argues that MCL 722.27 and MCL 722.31 can and should be read together as requiring the trial court to conduct a best interest of the child analysis because the change, in effect, changed an established custodial environment. This Court has commented that “[t]he primary goal of statutory interpretation is. to ascertain and give effect to the intent of the Legislature in enacting a provision,” and that “statutory language should be construed reasonably, keeping in mind the purpose of the statute.” Nat’l Center for Mfg Sciences, Inc v Ann Arbor, 221 Mich App 541, 545; 563 NW2d 65 (1997), citing Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). “In discovering legislative purpose, statutes relating to the same subject or sharing a common purpose are in pari materia and must be read together.” Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 355; 564 NW2d 519 (1997).
MCL 722.27 and MCL 722.31 (the D’Onofrio factors) both relate to minor children and provide guidance concerning issues of custody, parenting time, and change in legal residence. Both statutes share the common purpose of guiding the courts to an outcome that is in the best interests of minor children. MCL 722.27 focuses on the best interests of the child, and MCL 722.31(4) provides that the factors are to be analyzed “with the child as the primary focus.”
Plaintiff argues that MCL 722.27 is intended to be applied in tandem with other statutes affecting children whenever the court enters an order that would change a child’s custodial environment, and that it is not limited to any particular circumstance nor does it exclude any circumstances as it applies generally whenever there is an issue of a change of custodial environment. “Once the intention of the Legislature is discovered, it must prevail regardless of any conflicting rule of statutory construction.” Title Office, Inc v Van Buren Co Treasurer, 249 Mich App 322, 326; 643 NW2d 244 (2002). In Deschaine v St Germain, 256 Mich App 665, 671 n 9; 671 NW2d 79 (2003), this Court, while noting MCL 722.31, indicated that the statutes appearing in the Child Custody Act of 1970 have the same purpose of promoting the best interests of the children and, thus, these statutes “may be interpreted consistent with each other, or in pari materia.”
In DeGrow v DeGrow, 112 Mich App 260, 269-270; 315 NW2d 915 (1982), this Court held:
The Legislature, in enacting the Child Custody Act, sought to spare children from the detrimental effects of constantly being shuffled between parents involved in ongoing custody battles. Becker v Becker, 95 Mich App 370; 290 NW2d 149 (1980). In furtherance of this policy the Legislature required “clear and convincing” evidence to support change of child custody petitions.
A change in custody is not to be easily facilitated, absent those cases where the factors clearly dictate the best interests of the child will be served by a switch in custody. Recently, the Supreme Court in Baker v Baker [411 Mich 567, 576-578; 309 NW2d 532 (1981)] reaffirmed the commitment to rigidly adhere to the “clear and convincing” standard set forth in the statute and overturn a decision only when a different outcome is mandated by the great weight of the evidence.
It would be illogical and against the intent of the Legislature to apply MCL 722.31 without considering the best interests of the minor child, if the change in legal residence would effectively change the established custodial environment of the minor. Ansell, supra at 355. Otherwise, where parents have joint physical custody and one party seeks to change the legal residence of the child (which would effectively change the established custodial environment), the party would only be subject to the lesser preponderance of the evidence burden required by MCL 722.31. The Legislature could not have intended MCL 722.27 and MCL 722.31 to be applied completely indepen dently of each other where the result would allow a party seeking to change domicile (and in effect change the established custodial environment) to circumvent its burden of proof by clear and convincing evidence that the change is in the child’s best interest.
This Court has recognized that a change in domicile will almost always alter the parties’ parenting time schedule to some extent and has, thus, held that the parenting time schedule need not be equal to the prior parenting time schedule in all respects. Mogle v Scriver, 241 Mich App 192, 204; 614 NW2d 696 (2000). Parenting time is granted if it is in the best interest of the child and in a frequency, duration, and type reasonably calculated to promote strong parent-child relationships. MCL 722.27a(l). But this Court has held that if a requested modification in parenting time amounts to a change in the established custodial environment, it should not be granted unless the trial court is persuaded by clear and convincing evidence that the change would be in the best interest of the child. In re Stevens, 86 Mich App 258, 270; 273 NW2d 490 (1978).
A custodial environment is established if
over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [MCL 722.27(l)(c).]
In the instant case, the trial court determined that an established custodial environment existed with both parties and both parties agree that an environment had been established where each parent had fifty per cent parenting time. The issue then becomes whether defendant’s proposed parenting time schedule effectively amounted to a change in the established custodial environment so as to require an inquiry into the best interest factors, where defendant would have to prove by clear and convincing evidence that the proposed change was in Marley’s best interest.
It is possible to have a change of domicile while having both parents retain joint physical custody without disturbing the established custodial environment. See Scott, supra. In Scott, supra at 450-453, both parents had joint physical custody of their children, the defendant had custody of the children during the school year, and the plaintiff had custody of the children during the summer, as well as during spring and winter vacations, and some weekends. This Court affirmed the trial court’s grant of the defendant’s petition to move the children to Ohio and denial of the plaintiff’s motion for sole physical custody. Id. Where the parties retained the same parenting time schedule despite the change in domicile, this Court did not believe that it deprived the plaintiff of his joint custody of the children. Id. at 451.
In the instant case, however, it appears that the modification from equal parenting time to defendant having parenting time during the school year and plaintiff having parenting time in the summer necessarily would amount to a change in the established custodial environment, requiring analysis under the best interest factor framework. See Dowd v Dowd, 97 Mich App 276, 277; 293 NW2d 797 (1980).
In Dowd, supra at 277, the trial court entered a custody order providing that the parties would have joint custody of their minor children, with the plain tiff having physical custody during the summer and the defendant having physical custody during the school year. Thereafter, the plaintiff petitioned for year-round physical custody of the children. Id. at 278. The trial court entered an order giving each party physical custody of the children for alternating three-month periods; this reduced the defendant’s period of custody from nine to six months during the year. Id. The defendant appealed, and this Court reversed the trial court’s order, holding that the trial court must evaluate the best interest factors before deciding a custody or parenting time dispute. Id. at 278-279. This Court reasoned:
It is clear from this record that the paramount concern of the learned trial judge was the children’s well being. However, while stating that it was ruling in the best interest of the children and pointing out generally the environmental factors considered, the trial court failed to make the required analysis of the statutory factors. Each of these factors should have been specifically evaluated and a conclusion on each stated. [Id. at 279.]
Similarly, in the present case, defendant’s proposed parenting time schedule resulted in a modification of plaintiff’s parenting from being equal with defendant to being reduced to approximately three months out of the year, as opposed to defendant’s nine months.
To the extent that defendant argues that the trial court implicitly made the best interests findings, we note that this Court has held:
In light of the complete absence of findings of fact supporting the modification of plaintiff’s visitation rights, we must find that the circuit court erred in determining that modification was appropriate without an evidentiary hearing and making findings of fact in support of the modifica tion. [Bivins v Bivins, 146 Mich App 223, 234; 379 NW2d 431 (1985).]
In addition, we note that the D’Onofrio factors do not fully take into account the best interests of the child because rather than focusing solely on the best interests of the child, the D’Onofrio test focuses on what is in the best interest of the new family unit, i.e. the parent and child. Henry, supra at 324; D’Onofrio, supra at 205-206; see Dehring v Dehring, 220 Mich App 163, 165; 559 NW2d 59 (1996).
Therefore, in the present case, where defendant’s proposed parenting time schedule effectively amounted to a change in Marley’s established custodial environment, the trial court was required to conduct an evidentiary hearing wherein defendant would have the opportunity to prove by clear and convincing evidence that the proposed change was in Marley’s best interest. Failure to do so amounted to clear error, and remand is necessary for an evidentiary hearing, at which time the trial court must articulate its findings of fact on the relevant best interest of the child factors, and determine whether defendant’s proposed parenting time schedule is in the best interest of the minor child.
Plaintiff’s next issue on appeal is that the trial court erred in granting defendant’s request for a change of domicile before holding a full evidentiary hearing on the parties’ complaints for custody, thus prejudicing plaintiff’s complaint for custody, which denies him custody without due process of law. We disagree.
In Providence Hosp v Nat’l Labor Union Health & Welfare Fund, 162 Mich App 191, 194-195; 412 NW2d 690 (1987), this Court stated:
Generally, this Court will not review issues that were not raised and decided by the trial court. However, there are exceptions to this general rule. This Court will review issues not raised below if a miscarriage of justice will result from a failure to pass on them, or if the question is one of law and all the facts necessary for its resolution have been presented, or where necessary for a proper determination of the case. [Citations omitted.]
Plaintiff did not object to the conference style hearing employed below and, therefore, the issue is unpreserved. Because review of this issue is necessary for a proper determination of the case, we will address it.
A trial court’s decision on whether to conduct an evidentiaiy hearing is reviewed for an abuse of discretion. Bielawski, supra at 592. The trial court did not abuse its discretion in conducting a conference style hearing on defendant’s motion for change of domicile, where there were no objections to this format for the evidentiary hearing.
In Bielawski, supra at 592, this Court commented:
We do not believe in every instance that a trial court is required to conduct an evidentiary hearing in considering a motion to remove a minor child from the jurisdiction of the court. . . .
In deciding whether or not a trial court should hold an evidentiary hearing, the court should first determine whether there exist contested factual questions that must be resolved before a court can make an informed decision on whether or not to grant the motion.
The trial court did not abuse its discretion in conducting a conference style evidentiary hearing on defendant’s petition for a change of domicile because the parties apparently agreed, or at the very least did not object on the record, to this type of hearing. But, as noted, when it became clear that defendant’s proposed order for parenting time would result in a change in the established custodial environment of the minor child, the trial court should have conducted a full evidentiary hearing to determine if defendant could prove by clear and convincing evidence that the change was in the best interests of Marley, and should have stated its findings of fact on the record. Therefore, remand is appropriate for a full evidentiary hearing on the matter.
Plaintiff also contends that the trial court erred in permitting a change of domicile when defendant failed to meet the requirements of the preponderance of the evidence test. We disagree.
“To support a removal petition, the moving party must show that removal is warranted by a preponderance of the evidence.” Overall, supra at 459. This Court reviews a trial court’s findings in applying the D’Onofrio test under the great weight of the evidence standard. Dick, supra at 516. This Court reviews a trial court’s decision on a petition to change the domicile of a minor child for abuse of discretion. Mogle, supra at 202. “An abuse of discretion is found only in extreme cases in which the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will or the exercise of passion or bias.” Phillips, supra at 29, citing Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992).
Plaintiff asserts that the trial court erred in permitting defendant to remove Marley from Michigan to New York, because defendant did not meet her burden of demonstrating, by a preponderance of the evidence, that removal was warranted. We find that the trial court’s findings of fact were not against the great weight of the evidence, and it did not abuse its discretion in allowing defendant to remove Marley from Michigan.
With regard to the first D’Onofrio factor (corresponding to MCL 722.31 [4] [a]), the trial court found that defendant’s job opportunity and move to New York had the potential to improve both Marley’s and defendant’s quality of life. Plaintiff argues that the only positive evidence regarding an opportunity for improvement related to defendant’s higher earnings and the opportunities available in New York, and that there was no testimony demonstrating how the move had the capacity to improve Marley’s life. But this Court has held that a substantial increase in income that will elevate the quality of life of the relocating parent and child supports a finding that a party has met its burden of proof under the first D’Onofrio factor. See Bielawski, supra at 593. Moreover, the bur den of proof by a preponderance of the evidence “recognizes the increasingly legitimate mobility of our society.” Henry, supra at 324.
Plaintiff also argues that the trial court appeared to ignore Marley’s bond with his two daughters from a previous marriage. However, the trial court commented that “there is no question that when there is change, there is what can be perceived as loss, because things change. But, as things change, there’s also the opportunity for new developments or new ways to improve things.” This Court has noted that “[t]he sibling bond and the potentially detrimental effects of physically severing that bond should be seriously considered in custody cases where the children likely have already experienced serious disruption in their lives as well as a sense of deep personal loss.” Wiechmann v Wiechmann, 212 Mich App 436, 439-440; 538 NW2d 57 (1995). The trial court believed that defendant’s increased earning capacity and the cultural advantages of New York City had the capacity to improve the life of defendant and Marley more than remaining in Ann Arbor and retaining Marley’s bond with plaintiff’s children. The trial court’s findings of fact are not against the great weight of the evidence.
With regard to the second D’Onofrio factor (corresponding to MCL 722.31[4][b]), the trial court found that there was no evidence from the parties’ joint custody arrangement in the past to suggest that the move was inspired by defendant’s desire to defeat plaintiff’s parenting time rights or that she would not comply with the trial court’s order for parenting time. In addition, defendant indicated she would encourage a relationship between plaintiff and Marley and would make sure plaintiff received his share of parenting time.
With regard to the third D’Onofrio factor (corresponding to MCL 722.31 [4] [d]), the trial court found that plaintiff’s resistance to the move was not motivated by a desire to secure a financial advantage. There appears to be no dispute regarding either the second or third factor.
With regard to the fourth D’Onofrio factor (corresponding to MCL 722.31 [4] [c]), the trial court was satisfied that there would be a realistic opportunity for parenting time that would provide an adequate basis for preserving and fostering the parental relationship with plaintiff. Plaintiff argues that the parenting time schedule adopted by the trial court in no way preserves or fosters the relationship between Marley and her father, but rather inhibits and restricts it.
It has been noted that to satisfy the fourth D’Onofrio factor, “one must start with the premise that implicit in this factor is an acknowledgment that weekly visitation is not possible when parents are separated by state borders.” Costantini v Costantini, 446 Mich 870, 873 (1994) (Riley, J., concurring). This Court has held that “[u]nder the fourth factor, the visitation plan need not be equal to the prior visitation plan in all respects. It only need provide a realistic opportunity to preserve and foster the parental relationship previously enjoyed by [the non-relocating parent].” Mogle, supra at 204. The trial court believed that the parties could create a realistic parenting time schedule that would preserve and foster the parental relationship between the minor child and plaintiff, and adopted defendant’s proposed parenting time schedule in which the minor child would be with defendant during the school year, and be with plaintiff during the summer, as well as during school vacations, and on up to two weekends a month. The trial court’s finding was not against the great weight of the evidence.
The trial court determined that defendant sustained her burden of proof, and stated that it would allow her to move Marley from Michigan to New York. The trial court’s findings of fact were not against the great weight of the evidence, and the trial court’s decision to grant defendant’s petition for change of domicile was not an abuse of discretion. The result is not so palpably and grossly violative of fact and logic that it evidences a perversity of will or the exercise of passion or bias. See Phillips, supra at 29
Plaintiff’s final issue on appeal is that the trial court erred in ordering him to pay all expenses relating to the travel occasioned by defendant’s unilateral decision to move when the evidence indicated defendant would be earning nearly as much as plaintiff. We disagree. A trial court’s determination regarding payment of travel expenses is reviewed for an abuse of discretion. See Overall, supra.
Plaintiff contends that the trial court erred in ordering plaintiff to pay all the minor child’s travel expenses between New York and Michigan. Defendant argues that in light of the fact that she does not intend to seek child support from plaintiff, it is appropriate that the cost of the minor child’s travel expenses be plaintiff’s sole responsibility.
Our Supreme Court has indicated that, “it is imperative that a court consider the feasibility of this plan from a practical and financial viewpoint,” and that “the court should . . . consider the age of the child . .. for judging the feasibility of travel and analyze what financial constraints would be placed on the parents.” Costantini, supra at 873-874. There is no showing that the arrangement was not financially feasible. The trial court did not order plaintiff to pay any kind of child support, and there is no showing that it abused its discretion in “the fashioning of the arrangement” requiring plaintiff to pay the travel costs. See Overall, supra at 460.
The trial court did not clearly err in applying the D’Onofrio factors when considering defendant’s petition to change Marley’s residence from Michigan to New York. But once the trial court granted defendant permission to remove the minor child from the state, defendant’s proposed parenting time schedule effectively amounted to a change in the child’s established custodial environment. Once there was a change of the established custodial environment, the trial court was required to conduct an evidentiary hearing wherein defendant would have the opportunity to prove by clear and convincing evidence that the proposed change was in the minor child’s best interest. Failure to require such a showing was error and we remand for an evidentiary hearing, at which time the trial court must articulate its findings of fact on the relevant best interest of the child factors, and determine whether defendant can prove by clear and convincing evidence that her proposed parenting time schedule is in the best interest of the minor child.
We affirm the trial court’s application of the D’Onofrio factors and grant of defendant’s petition to remove the minor child, we reverse trial court order adopting defendant’s proposed parenting time schedule, and we remand for a full evidentiary hearing to determine whether defendant can prove by clear and convincing evidence that her proposed parenting time schedule, which amounts to a change in the child’s established custodial environment, is in the child’s best interest. We do not retain jurisdiction.
Defendant testified that she moved out in spring 1999 and agreed to let plaintiff have Marley on the weekends. Defendant further testified that she moved back in the summer 1999, but then moved out permanently in fall 2001.
The “D’Onofrio factors” set out in D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976), were adopted by Michigan courts in Dick v Dick, 147 Mich App 513, 517; 383 NW2d 240 (1985), and were codified (using slightly different terminology, and reordering the factors and adding an additional factor, which will be discussed in more detail later in this opinion) by the Michigan Legislature in MCL 722.31(4) on January 9, 2001. Despite the fact that the instant case occurred after MCL 722.31(4) came into effect, the trial court referred to the “D'Onofrio fac tors” instead of the newly enacted MCL 722.31(4) during the pendency of the proceedings.
The primary differences between the D’Onofrio factors and MCL 722.31(4)(a)-(e) are: the change of the use of “custodiai/noncustodial parent” to “relocating parent” and “parent” generally; the ordering of the factors (D’Onofrio factors [3] and [4] are MCL 722.31[d] and [c], respectively); the addition of a fifth factor, MCL 722.31(e), concerning domestic violence; and the broadening of the application of the factors from a party seeking to remove their child from the state, to a party seeking to change their child’s legal residence to a distance of more than one hundred miles.
We note that the D’Onofrio factors do not, specifically, consider domestic violence as MCL 722.31(lXe) does, but also note that this is insignificant because the only indication of domestic violence was that of plaintiff toward defendant.
The present case is unusual as the typical progression of events is that one of the parties petitions for sole physical custody; the trial court determines whether there is an established custodial environment with one or both of the parties; if there is no established custodial environment, the party seeking the change of custody need only prove by a preponderance of the evidence that the change is in the child’s best interest; if there is an established custodial environment, the party seeking the change of custody must prove by clear and convincing evidence that the change is in the child’s best interest; if the party seeking the change meets its burden of proof under the best interest factors, MCL 722.23, sole physical custody is then awarded, and custody of the minor child is changed; the sole custodial parent then seeks to move more than 100 miles away, and brings a petition to change the legal residence of the minor child; the trial court then considers the factors set out in MCL 722.31 in determining whether to permit the change in residence.
The Child Custody Act of 1970, MCL 722.21 et seq., governs child custody disputes between parents, and the purpose of the act is to promote the best interest of children, and it is to be liberally construed. MCL 722.26(1), Frame v Nehls, 452 Mich 171, 176; 550 NW2d 739 (1996); Harvey v Harvey, 257 Mich App 278, 291; 668 NW2d 187 (2003).
We are not contending that the use of both the D’Onofrio factors and the best interest factors are necessary in all situations; Rather, it is only in a situation where both parents share joint physical custody, one parent is granted permission to relocate more than 100 miles away, and the relocation would result in a change in parenting time so great as to necessarily change the established custodial environment that an inquiry into the best interest factors is necessary for the relocating parent to prove by clear and convincing evidence that the change is in the minor child’s best interest.
Judge O’Connell would require that each party state on the record that they have no objection to a conference style evidentiary hearing.
Additionally, this Court has recognized, as the trial court did in the instant case, that the cultural advantages of relocation also lend support to the first D’Onofrio factor. Hunt v Reed, unpublished opinion per curiam of the Court of Appeals, issued June 27, 1997 (Docket No. 193101). We view this case as persuasive, because of the limited case law, but note that unpublished opinions are not binding under the rule of stare decisis. MCR 7.215(C)(1). | [
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Meter, J.
Plaintiffs appeal as of right from the circuit court’s order granting defendant’s motion for summary disposition. We affirm.
Plaintiffs owned the surface rights to a piece of property, while defendant owned the oil, gas, and mineral rights. Defendant reopened a capped oil well on plaintiffs’ property and used it to drill underneath and beyond plaintiffs’ land. Plaintiffs objected to the reopening of the well, claiming that defendant could not use plaintiffs’ surface to drill to a bottom hole located under another surface owner’s land. The circuit court granted summary disposition to defendant under MCR 2.116(C)(8) and (C)(10), reasoning that (1) defendant acted properly and in accordance with the lease granting it subsurface rights and (2) plaintiffs failed to object to defendant’s actions at a particular administrative hearing concerning the scope of the drilling operation and therefore could not bring a circuit court claim.
On appeal, plaintiffs argue that the circuit court erred in concluding that the lease permitted defendant to drill from plaintiffs’ surface to a bottom hole located under another surface owner’s land.
We review de novo a circuit court’s decision with regard to a motion for summary disposition. Trost v Buckstop Lure Co, Inc, 249 Mich App 580, 583; 644 NW2d 54 (2002). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. Lewis v LeGrow, 258 Mich App 175, 192; 670 NW2d 675 (2003). In reviewing a motion granted under MCR 2.116(C)(10), this Court “ ‘must consider the available pleadings, affidavits, depositions, and other documentary evidence in a light most favorable to the nonmov-ing party and determine whether the moving party was entitled to judgment as a matter of law.’ ” Michigan Ed Employees Mut Ins Co v Turow, 242 Mich App 112, 114; 617 NW2d 725 (2000), quoting Unisys Corp v Comm’r of Ins, 236 Mich App 686, 689; 601 NW2d 155 (1999). A motion brought under MCR 2.116(C)(8) tests the “legal sufficiency of the complaint” and permits dismissal of a claim if the opposing party has failed to state a claim on which relief can be granted. Maiden v Rozwood, 461 Mich 109, 118-119; 597 NW2d 817 (1999). Only the pleadings are examined; documentary evidence is not considered. Id. at 119-120. If the claim is clearly unenforceable as a matter of law and no factual development could lead to recovery, a motion under MCR 2.116(C)(8) should be granted. Maiden, supra at 119.
The owner of a fee simple estate may sever the ownership of the surface estate from the ownership of subsurface mineral, oil, and gas interests. See Southwestern Oil Co v Wolverine Gas & Oil Co, 181 Mich App 589, 591; 450 NW2d 1 (1989). This is typically accomplished by leasing the subsurface rights. The lease at issue in this case states, in part:
Lessor does hereby grant, lease and let exclusively unto Lessee, his heirs, legal representatives, successors and assigns, all of the land hereinafter described, including all interests Lessor may acquire by operation of law, reversion or otherwise therein, for the purpose of exploring by geological, geophysical and all other methods, and of drilling, producing and operating wells or mines for the recovery of oil, gas and other hydrocarbons, and all other gaseous substances, including but not limited to carbon dioxide and all other minerals or substances, whether similar or dissimilar, that may be produced from any well or mine on the leased premises, including primary, secondary, tertiary, cycling, pressure maintenance methods of recovery and all other methods, whether now known or unknown, with all incidental rights thereto, and to utilize abandoned wells and/or drill wells for surface and subsurface disposal of salt water, whether produced from the below land or otherwise, and to use existing roadways and to construct, maintain, and remove roadways, tanks, pipelines, electric power and telephone lines, power stations, machinery and structures thereon, to produce, store, transport, treat, own and remove all substances described above, and the products therefrom, together with the right of ingress and egress to and from said land and on, over and across land owned or claimed by Lessor adjacent and contiguous thereto. [Emphasis added.]
Significantly, this lease was executed before the land was subdivided and sold to different surface owners. Although plaintiffs purchased a portion of the surface area affected by the lease, they did not purchase all of it. Accordingly, while the bottom hole of defendant’s well was not located under plaintiffs’ surface land, it was located within the subsurface land granted to defendant in the lease. Plaintiffs cite no Michigan authority for the proposition that even though defendant’s lease covered all the areas in question, defendant was prohibited from using plaintiffs’ surface to drill to another area of its own leased land. The foreign cases plaintiffs cite to support their position are not binding on us, and, additionally, they do not clearly present the situation at issue here, in which the surface land was subdivided after the subsurface rights were leased.
Scenarios involving subdivided surface parcels have been addressed in Rice v Stapleton, 502 SW2d 522 (Ky App, 1973), and Schlueter v Shawnee Operating Co, 141 Misc 2d 1000; 535 NYS2d 867 (1988). In Rice, the court considered the rights of the parties where the plaintiff owned a sixty-acre surface estate and the defendant owned an underlying, ninety-five-acre mineral estate. Rice, supra at 523. The defendant owned the mineral rights before the tract was subdivided, with part being sold to the plaintiff and the remaining thirty-five acres being sold to another person. Id. The plaintiff asserted that the defendant only had the right to mine directly beneath the thirty-five acre plot. Id. With regard to that contention, the court held, “The right to extract minerals underneath both tracts was granted in 1903 and the rights of the mineral owner were fixed by that instrument. We fail to see how the rights of the mineral owner could be eroded or whittled away by a subsequent subdivision of the surface.” Id.
In Schlueter, supra at 1001, a subdivided parcel was also at issue. The defendant owned the subsurface rights to a parcel of land of which plaintiff owned part of the surface. Id. at 1001-1002. The defendant placed an oil pipeline over the plaintiff’s surface, and the plaintiff claimed trespass. Id. at 1002. The court noted that in Wall v Shell Oil Co, 209 Cal App 2d 504; 25 Cal Rptr 908 (1962), “the owners of an oil and gas lease were entitled to use any portion of the land subject to the lease to effectuate their rights without regard to any subsequent divisions to the sur face ownership . . . Schlueter, supra at 1003. The court stated:
“ ‘[E]ach subsequent purchaser of a subdivision thereof, talcing with notice of the prior sale and reservation of rights, takes knowing that his surface ownership may be burdened in part, and, in very rare cases perhaps, in its totality, by the reasonable exercise of the rights of the owner of the oil and mineral estate; and this without regard to whether or not the oil or mineral underlies the particular subdivision, or whether the facilities located thereon serve facilities located without the subdivision, so long as they do not lie beyond the original tract.”
“ ‘If a particular facility is necessary and convenient to the operations of the oil and mineral owner, it may be placed anywhere upon the surface area in which he has the right of user, so long as such placement is reasonable under prevailing conditions and even though such placement in particular instances may work a hardship on the surface owner.’ ” [Id. at 1003-1004, quoting Wall, supra at 513, 517.]
We agree with the reasoning in Rice, supra at 523, and Schlueter, supra at 1003-1004. There is no authority for the proposition that when the surface of land covered by an oil and gas lease is later subdivided, that subdivision somehow diminishes the lessee’s right to drill. The lease in the instant case states that the lessee can extract oil “from any well or mine on the leased premises,” and defendant simply did so.
Additionally, as defendant persuasively argues, plaintiffs’ desired result is illogical. If, for example, a surface owner subdivided a surface estate into fifty small parcels, and the lessee entitled to the oil and gas rights was not permitted to use a well bore to drill anywhere other than straight down, the lessee would be forced to construct fifty wells to explore the subsurface. In the face of Michigan’s strong policy against waste, see MCL 324.61502, MCL 324.61504, and MCL 324.61505, which the Legislature has defined as, inter alia, drilling unnecessary wells, see MCL 324.61501(q)(ii)(D), plaintiffs’ proposition is not tenable.
The terms of the lease were clear, and therefore the circuit court properly ruled, as a matter of law, that the lease permitted defendant’s actions. See, generally, Michaels v Amway Corp, 206 Mich App 644, 649; 522 NW2d 703 (1994) (if the terms of a contract are clear, factual development is unnecessary and summary disposition may be granted). While we agree with plaintiffs that whether the lease permitted defendant’s actions was a question of property rights and contract interpretation — and that plaintiffs, therefore, were not required to object to defendant’s actions at the administrative level before suing in circuit court — we nonetheless cannot agree that plaintiffs are entitled to appellate relief. The circuit court correctly granted summary disposition to defendant. Moreover, the court did not abuse its discretion, see Backus v Kauffman (On Rehearing), 238 Mich App 402, 405; 605 NW2d 690 (1999), in denying plaintiffs’ motion to amend the complaint to add claims related to a second drilling that defendant performed in the same surface location. Indeed, the proposed amended complaint largely involved the issues addressed and resolved in defendant’s favor in this opinion. See Weymers v Khera, 454 Mich 639, 658; 563 NW2d 647 (1997) (leave to amend may be denied if the amendment would be futile). To the extent that the proposed amended complaint contained new issues, plaintiffs have not sufficiently demonstrated in their appellate arguments that these new issues would have been viable. See, generally, Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984).
In a footnote, plaintiffs also appear to claim that the original well was abandoned and that the title transferred to them. Plaintiffs have not established that they are entitled to relief with respect to this issue. With regard to abandoning wells, MCL 554.291 states:
Any interest in oil or gas in any land owned by any person other than the owner of the surface, which has not been sold, leased, mortgaged or transferred by instrument recorded in the register of deeds office for the county where such interest is located for a period of 20 years shall, in the absence of the issuance of a drilling permit as to such interest or the actual production or withdrawal of oil or gas from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized or included in unit operations therewith, or the use of such interest in underground gas storage operations, during such period of 20 years, be deemed abandoned, unless the owner thereof shall, within 3 years after the effective date of this act or within 20 years after the last sale, lease, mortgage or transfer of record of such interest or within 20 years after the last issuance of a drilling permit as to such interest or actual production or withdrawal of oil or gas, from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized, or included in unit operations therewith, or the use of such interest in underground gas storage operations, whichever is later, record a claim of interest as hereinafter provided. Any interest in oil or gas deemed abandoned as herein provided shall vest as of the date of such abandonment in the owner or owners of the surface in keeping with the character of the surface ownership.
The phrase “drilling permit” shall mean a permit to drill an oil or gas well issued by the conservation department or its successor.
As noted by this Court in Mask v Shell Oil Co, 77 Mich App 25, 30-32; 257 NW2d 256 (1977), a lessee under a new lease will be held not to have abandoned gas and oil rights to the surface owners under MCL 554.291 if any of the specified activities occurred within twenty years. Plaintiffs’ abandonment claim is without merit under this statute because the lease has not in fact lain dormant for twenty years. Plaintiffs cite Toles v Maneikis, 162 Mich App 158, 168-169; 412 NW2d 263 (1987), in which the Court concluded that certain fixtures originally owned by subsurface les sees had transferred to the surface owners because the lessees failed to remove the fixtures within five years after the end of production of a well. However, the Court in Toles rested its opinion on the fact that the lease had expired by its terms. Id. at 167-168. Plaintiffs make no attempt to analogize the instant case to Toles by demonstrating a comparable expiration under the specific terms of the lease. A party may not rely on this Court to make his arguments for him. See Goolsby, supra at 655 n 1.
Affirmed.
We note that an earlier lessee assigned the lease to defendant.
Plaintiffs argued below, as part of their claim, that defendant acted unreasonably in its drilling. On appeal, plaintiffs contend that whether defendant acted unreasonably must be decided by a trier of fact. However, in their appellate brief, plaintiffs continually tie the “reasonableness” issue to the issue of the directional drilling. In other words, plaintiffs argue that defendant acted unreasonably because it used plaintiffs’ surface to drill to a bottom hole located under another surface owner’s land. This argument involves the application of a clearly worded contract and was properly resolved by the circuit court. To the extent plaintiffs are attempting to argue that defendant acted unreasonably in the general manner of its drilling, their briefing is inadequate. See, generally, Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984). At any rate, questions of reasonableness are within the purview of the specialized knowledge of the supervisor of wells. See, generally, MCL 324.61501 et seq. Plaintiffs failed to exhaust their administrative remedies with regard to the reasonableness of the general manner of the drilling. While the trial court, in its opinion, did not use the phrase “failure to exhaust administrative remedies” and instead referred to plaintiffs’ silence at one particular administrative hearing, we note that an appellate court may affirm a circuit court’s order if it reaches the right result for the wrong reason. Becker-Witt v Bd of Examiners of Social Workers, 256 Mich App 359, 365; 663 NW2d 514 (2003). Further, we decline to accept plaintiffs’ unripe assertion that the administrative procedures surrounding the granting of drilling permits do not comport with basic notions of due process.
In a footnote in their appellate brief, plaintiffs briefly suggest that the assignment of the oil and gas lease to defendant did not extend to the date of some of the disputed drilling. We decline to address this issue because plaintiffs give it such cursory treatment. Id. Moreover, plaintiffs did not raise the “expiration of assignment” argument in the original complaint or the proposed amended complaint. | [
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Zahra, P.J.,
Appellee Environmental Disposal Systems, Inc. (EDS), submitted an application to respondent, the Michigan Department of Environmental Quality (deq), for a permit under Part 111 of the Natural Resources and Environmental Protection Act (nrepa), MCL 324.11101 et seq., authorizing the construction of a hazardous waste underground deep injection well facility on an undeveloped site that contained wetlands located in the city of Romulus. 1999 AC, R 299.9603 (Rule 603) provides that new hazardous waste facilities shall not be located in a wetland. After becoming aware that the site contained wetlands, EDS applied for and was granted a permit under Part 303 of the NREPA, MCL 324.30301 et seq., authorizing it to fill the wetlands. Thereafter, the DEQ issued a Part 111 permit to EDS, authorizing it to build the hazardous waste facility. Petitioners initiated proceedings to challenge the deq’s decision to issue the Part 111 permit to EDS. The circuit court affirmed the issuance of the Part 111 permit, and this Court granted the application for leave to appeal filed by petitioners city of Romulus and city of Taylor. The most significant issue on appeal is whether the deq erred in issuing a Part 111 permit to EDS to build the hazardous waste facility on land designated as a wetland where the deq had also issued a Part 303 permit authorizing EDS to fill the wetlands on the site proposed for the facility. We conclude that the DEQ did not err in issuing the Part 111 permit to eds. Rule 603 provides that a hazardous waste facility shall not be located in a wetland. Here, EDS obtained a Part 303 permit to fill and eliminate the wetlands on the site. The wetlands have been lawfully filled. Thus, EDS would not be building the hazardous waste facility in a wetland. We affirm.
I. FACTS AND PROCEDURE
Eds, a company in the business of disposing of hazardous waste, sought to build and operate a hazardous waste underground deep injection well facility on an undeveloped site (the Citrin Drive site) located in the city of Romulus. The city of Romulus opposed construction of the hazardous waste facility, and several lawsuits were initiated regarding this issue. Eds obtained many of the federal, state, and municipal permits required for the construction of the facility and then applied to the deq for a Part 111 hazardous waste management construction permit. The DEQ determined that eds’s application was complete and technically adequate, and then, in conformity with MCL 324.11119, referred the matter to a site review board (srb). Between October 1999 and March 2000, the SRB held a public hearing and several informal hearings, where it received oral and written statements from local community officials, the public, EDS, and the deq regarding the construction of the facility. At one of these hearings, eds learned that several areas constituting wetlands existed on the Citrin Drive site. At the January 26, 2000, SRB hearing, the deq confirmed the existence of the wetlands and informed the srb that EDS would be required to obtain a Part 303 permit authorizing it to fill the wetlands before it would be allowed to build the facility. Eds subsequently applied for a Part 303 permit.
On March 21, 2000, the srb recommended that the deq deny eds’s application for a Part 111 permit, listing nine reasons for its recommendation. One reason was that there was no need for the facility because there was a surplus of hazardous waste disposal capacity in the area. Another reason for the srb’s recommendation was that wetlands existed on the site and eds had not obtained a permit to eliminate the wetlands. On June 9, 2000, the DEQ issued a Part 303 permit authorizing EDS to fill the wetlands on the Cit-rin Drive site for the purpose of constructing the hazardous waste facility.
On December 8, 2000, the deq issued a “Fact Sheet” listing five reasons why it was proposing to issue a Part 111 permit to EDS, and specifically addressing and rejecting each of the srb’s reasons for recommending denial of the permit. The DEQ stated that the existence of wetlands on the site was not a reason to deny the Part 111 permit because EDS had obtained a Part 303 permit to fill the wetlands. The DEQ also stated that need for a facility is market-driven and is determined by private industry, so lack of need was not a legitimate reason to deny the Part 111 permit. The DEQ added that the hazardous waste facility proposed by EDS offered a disposal method that varied from those available at the existing facilities in Southeast Michigan. On February 22, 2001, the deq issued the Part 111 permit to eds, authorizing it to build the facility. The deq also released a “Responsiveness Summary,” in which the DEQ responded to issues raised diming a public comment period.
Petitioners appealed the deq’s decision to issue the Part 111 permit to the circuit court, and EDS intervened as a respondent. On August 24, 2001, the circuit court issued an opinion and order affirming the deq’s decision to issue the Part 111 permit.* ***** In Sep tember 2001, Romulus and Taylor applied for leave to appeal the circuit court’s decision that the deq properly issued the Part 111 permit. Also in September 2001, eds began the process of filling the wetlands on the Citrin Drive site. By October 2001, the wetlands were filled and eliminated. This Court subsequently granted Romulus and Taylor’s application for leave to appeal.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court applies multiple standards of review in an appeal from a circuit court’s review of an administrative agency’s decision. Great deference is accorded to the circuit court’s review of the agency’s factual findings. By contrast, substantially less deference, if any, is accorded to the circuit court’s determinations on matters of law.
1. FACTUAL FINDINGS
This Court’s review is limited to determining whether the circuit court “misapprehended or grossly misapplied” its review of the agency’s factual findings. Boyd v Civil Service Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). The circuit court’s review of the deq’s factual findings is limited to determining whether the decision was supported by competent, material, and substantial evidence on the whole record, was arbitrary or capricious, or was clearly an abuse of discretion. Const 1963, art 6, § 28; Dignan v Michigan Pub School Employees Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002). Evidence is competent, material, and substantial if a reasoning mind would accept it as sufficient to support a conclusion. Id. “Courts should accord due deference to administrative expertise and not invade administrative fact finding by displacing an agency’s choice between two reasonably differing views.” Id. To determine whether an agency’s decision is “arbitrary,” the circuit court must determine if it is “ “[w]ithout adequate determining principle[,] . . . [fjixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance, . . . decisive but unreasoned.” ’ ” St Louis v Michigan Underground Storage Tank Financial Assurance Policy Bd, 215 Mich App 69, 75; 544 NW2d 705 (1996), quoting Bundo v Walled Lake, 395 Mich 679, 703 n 17; 238 NW2d 154 (1976), quoting United States v Carmack, 329 US 230, 243; 67 S Ct 252; 91 L Ed 209 (1946). “Capricious” has been defined as: “ ‘ “[A]pt to change suddenly; freakish; whimsical; humorsome.” ’ ” St Louis, supra at 75, quoting Bundo, supra at 703 n 17, quoting Carmack, supra at 243.
2. MATTERS OF LAW
We must also determine “whether the lower court applied correct legal principles . . . .” Boyd, supra at 234. The circuit court’s review of an administrative agency’s decision on a matter of law is limited to determining whether the decision was authorized by law. Const 1963, art 6, § 28; Boyd, supra at 232. “[A]n agency’s decision that ‘is in violation of statute [or constitution], in excess of the statutory authority or jurisdiction of the agency, made upon unlawful procedures resulting in material prejudice, or is arbitrary and capricious,’ is a decision that is not authorized by law” and must be set aside. Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998) (emphasis in original), quoting Brandon School Dist v Michigan Ed Special Services Ass’n, 191 Mich App 257, 263; 477 NW2d 138 (1991).
Here, we are called upon to interpret statutes and administrative rules. As a general rule, we review de novo the interpretation and application of unambiguous statutes and administrative rules. Michigan Ed Ass’n Political Action Committee (MEAPAC) v Secretary of State, 241 Mich App 432, 437; 616 NW2d 234 (2000). Principles of statutoiy interpretation apply to the construction of administrative rules. Detroit Base Coalition for Human Rights of the Handicapped v Dep’t of Social Services, 431 Mich 172, 185; 428 NW2d 335 (1988). Thus, we must ascertain and give effect to the intent of the drafter of the statute or administrative rule under review. Collucci v McMillin, 256 Mich App 88, 94; 662 NW2d 87 (2003). We start by reviewing the language of the administrative rule or statute. Id. If the language is unambiguous on its face, the drafter is presumed to have intended the meaning plainly expressed and further judicial interpretation is not permitted. Id.
Only where the language under review is ambiguous may a court properly go beyond the words of the statute or administrative rule to ascertain the drafter’s intent. Id. In this regard,
[a]n ambiguity of . . . language does not exist merely because a reviewing court questions whether the [drafter] intended the consequences of the language under review. An ambiguity can be found only where the language ... as used in its particular context has more than one common and accepted meaning. Thus, where common words used in their ordinary fashion lead to one reasonable interpretation, [the language] cannot be found ambiguous. [Id.]
Where a statute or administrative rule is ambiguous, this Court will generally defer to the construction of the statute or administrative rule given by the agency charged with administering it. Dignan, supra at 576. However, this deference does not mean that a reviewing court abandons its ultimate responsibility to give meaning to statutes and administrative rules. LGI Int’l Telecommunications Corp v Dep’t of Commerce, 227 Mich App 196, 205; 574 NW2d 710 (1997). We will not defer to the administrative agency’s interpretation of a rule where the language of the rule is unambiguous, Koontz v Ameritech Services, Inc, 466 Mich 304, 323-324; 645 NW2d 34 (2002), or we are convinced that agency’s interpretation is “clearly wrong,” MEAPAC, supra at 437.
B. THE DEQ DID NOT VIOLATE RULE 603 BY ISSUING A PART 111 PERMIT TO EDS
Petitioners argue that the circuit court improperly engaged in unauthorized rule-making and effectively rewrote the language of Rule 603 when it affirmed the issuance to EDS of a Part 111 permit to construct a hazardous waste treatment facility in a wetland. Rule 603 provides, in pertinent part, “(1) Active portions of new treatment, storage, or disposal facilities or expansions, enlargements, or alterations of existing facilities shall not be located in any of the following areas: ... (f) In a wetland.” Petitioners argue that, by issuing the Part 111 permit to EDS on the basis of the fact that eds had obtained a Part 303 permit to fill the wetlands, the deq created an exception to Rule 603(l)(f) that did not exist. We disagree.
The Part 303 permit the deq issued to eds gave eds permission to “[p]lace fill material in approximately 3.5 acres of wetland for the purpose of constructing buildings, roads, truck marshalling areas, and a stormwater pond for a deep injection well facility.” Petitioners do not dispute that the Part 303 permit issued to EDS was valid and that EDS legally filled the wetlands on the Citrin Drive site for the purpose of building the facility. That the Citrin Drive site contained wetlands at the time the DEQ considered eds’s Part 111 application did not preclude the deq under Rule 603(l)(f) from granting the Part 111 permit. Nothing in Rule 603 provides that a Part 111 permit cannot be granted when a wetland exists on the site — Rule 603 only provides that active portions of the facility may not be located in a wetland. Therefore, the deq can issue a Part 111 permit when the wetlands on the site will be legally ehminated before construction of the facility. The Part 111 permit was issued with the expectation that EDS would first fill the wetlands as it was legally permitted to do pursuant to the Part 303 permit that it had obtained for the sole purpose of constructing a hazardous waste facility.
Rule 603 must be read in conjunction with Part 303, which forbids filling, dredging, draining, or constructing, operating, or maintaining any use or development in a wetland “[e]xcept as otherwise provided by this part or by a permit obtained from the department under sections 30306 to 30314 . . . .” MCL 324.30304. Where, as here, a Part 303 permit to lawfully fill a wetland has issued, the plain language of Rule 603(l)(f) is not violated by the issuance of a Part 111 permit. Once wetlands are filled, they no longer exist. Rule 603(l)(f) simply is not violated where a Part 111 permit is issued for construction on land formerly designated as a wetland.
Petitioners point to the fact that Rule 603 expressly enumerates certain exceptions, but subsection 1(f) does not contain any exceptions. Petitioners argue that we ought not create an exception to subsection 1(f) by judicial fiat. Rule 603(1) (f) unambiguously provides that a treatment, storage, or disposal facility shall not be located in a wetland. Part 303 of the nrepa allows the elimination of a wetland with a permit, MCL 324.30306. Because Part 111 and Part 303 are both statutes included within the nrepa, we assume that, when the rule-makers enacted Rule 603, they were aware that a builder could obtain a permit to eliminate a wetland under Part 303. Cf. Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993) (“It is a well-known principle that the Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws.”). A Part 303 permit may authorize the draining, dredging, and filling of a wetland for the purpose of constructing, operating, or maintaining any use or development. There is nothing in Rule 603 that prohibits a treatment, storage, or disposal facility from being located in an area that was formerly a wetland but is no longer a wetland due to action taken in compliance with a Part 303 permit. In order to construe the rule the way petitioners propose, Rule 603(l)(f) would have to read, “(1) Active portions of new treatment, storage, or disposal facilities or expansions, enlargements, or alterations of existing facilities shall not be located in any of the following areas: ... (f) In a wetland, even if the wetland is eliminated pursuant to a Part 303 permit.” (Emphasis. added.) Therefore, our interpretation of Rule 603 does not judicially create an exception to subrule 1(f). Rather, our interpretation of Rule 603(l)(f) is dictated by the unambiguous language of that subsection. The fact that Rule 603(l)(f) does not contain any express exceptions simply does not preclude the DEQ from issuing a Part 111 permit to build a hazardous waste facility in an area that was once a wetland.
We also find unpersuasive petitioners’ argument that, by interpreting Rule 603 to allow the DEQ to issue a Part 111 permit in this case, the circuit court violated the doctrine of expressio unius est exclusio alterius. Under that doctrine, an express mention of one thing in a statute generally implies the exclusion of similar things that were not mentioned in the stat ute. Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127, 151; 662 NW2d 758 (2003). “The omission of a provision in one part of a statute, which is included elsewhere in the statute, should be construed as intentional.” Cherry Growers, Inc v Michigan Processing Apple Growers, Inc, 240 Mich App 153, 170; 610 NW2d 613 (2000). Petitioners compare and contrast Rule 603 with 1999 AC, R 299.4416 (Rule 416), which governs the deq’s issuance of permits to construct type II landfills under the nrepa. Rule 416 provides, in pertinent part, “A new type II landfill unit and a lateral extension of an existing unit shall not be located in wetlands, unless the owner and operator can demonstrate all of the following to the director: (a) The owner or operator has obtained a permit under part 303 of the act . . . .” Petitioners argue that, because Rule 416 expressly lists a wetland permit as part of an exception to when a type II landfill may be located in a wetland, but Rule 603(1) (f) does not list any exceptions to when a treatment, storage, or disposal facility may be located in a wetland, the acquisition of a Part 303 permit does not excuse a builder from the prohibition in Rule 603(l)(f) against locating a treatment, storage, or disposal facility in a wetland.
Because Rule 416 lists a Part 303 permit as part of an exception to when a person may locate a type II landfill unit in a wetland, and Part 603(1) (f) lists no such exception, we must assume that the rule-makers intended to omit such an exception in Rule 603(l)(f). Stated differently, Rule 416 provides the DEQ with discretion to allow construction of a type II landfill unit in a wetland. By contrast, Rule 603 does not provide the DEQ with discretion to allow construction of a haz ardous waste treatment, storage, or disposal facility in a wetland. We nonetheless conclude that Rule 603 does not prohibit construction on land formerly classified as a wetland.
Part 303 grants the deq the authority to permit a myriad of different activities, some of which authorize construction that would not alter the wetland. The fact that the deq issues a Part 303 permit does not necessarily mean that the wetland will be filled and will no longer exist. If, for instance, the deq had issued a Part 303 permit to EDS to build a facility at the site, but the permit did not authorize EDS to fill the wetlands, the DEQ would be precluded from issuing EDS a Part 111 permit to build the hazardous waste treatment facility because the proposed facility would still be in a wetland. A builder with a similar Part 303 permit would not be precluded from building a type II landfill unit in a wetland under Rule 416.
In this case, the Part 303 permit the deq issued to eds allowed it to place fill material in the wetlands for the purpose of building the facility. Where the deq issues a Part 303 permit to fill and eliminate wetlands, the deq may also issue a Part 111 permit or allow an owner or operator to build a facility on land previously designated a wetland without violating Rule 603(l)(f). Simply put, the area that was once a wetland is no longer considered a wetland and, consequently, Rule 603(l)(f) does not apply. So, construing Rule 603(l)(f) to allow the deq to issue a Part 111 permit where eds obtained a Part 303 permit to fill the wetlands does not, in light of the language of Rule 416, violate the doctrine of expressio unius est exclusio alterius. The circuit court correctly concluded that Rule 603(l)(f) did not prohibit the deq from issuing a Part 111 permit in this case.
C. THE DEQ WAS NOT REQUIRED TO CONSIDER NEED FOR THE FACILITY
1. PART 111 DID NOT REQUIRE THE DEQ TO CONSIDER NEED BEFORE ISSUING A PART 111 PERMIT
Petitioners maintain that Part 111 required the deq to consider Michigan’s need for a hazardous waste facility before issuing the Part 111 permit. Petitioners cite several sections of Part 111 in support of their argument. Addressing each of these sections in turn, we conclude that Part 111 did not require the DEQ to consider need for a facility before issuing a Part 111 permit.
a. MCL 324.11107
MCL 324.11107 sets forth the purpose and methods of hazardous waste management under Part 111:
The department [ ] and the board [ ], in the conduct of their duties as prescribed under this part, shall assist in encouraging, developing, and implementing methods of hazardous waste management that are environmentally sound, that maximize the utilization of valuable resources, and that encourage resource conservation, including source separation, recycling, and waste reduction, and that are consistent with the plan to be provided by the department of public health pursuant to section 12103(d) of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.12103 of the Michigan Compiled Laws. In addition, the director, the department, and the board, in the conduct of their duties as prescribed by this part, shall assist in implementing the policy of this state to minimize the placement of -untreated hazardous waste in disposal facilities.
This section of Part 111 merely outlines in general terms the DEQ’s goals in fulfilling its duties. We therefore reject petitioners’ claim that this statute imposes on the DEQ an obligation to consider whether a hazardous waste facility is needed before issuing a Part 111 permit.
b. MCL 324.11110
MCL 324.11110 required the DEQ to update the Hazardous Waste Management Plan for Michigan (the original plan), which was adopted by the Natural Resources Commission in 1982. MCL 324.11110(1), MCL 324.11110(2)(a). Petitioners cite MCL 324.11110(2), MCL 324.11110(3)(c), and MCL 324.11110(4) in support of their argument that the DEQ must consider need in making its decision whether to issue a Part 111 permit to build a hazardous waste facility. However, nothing in MCL 324.11110 requires the deq to consider need as a prerequisite to the issuance of a Part 111 permit. MCL 324.11110 simply requires the deq to consider need in terms of undercapacity in preparing the updated plan. MCL 324.11110 relates only to the preparation of the updated plan, and not to the deq’s permitting decisions. Petitioners’ reliance on MCL 324.11110 is therefore misplaced.
c. MCL 324.11115
MCL 324.11115 provides, in pertinent part, “After the updated plan is adopted, the department shall not issue a permit or license under this part for a treatment, storage, or disposal facility until the department has made a determination that the action is consistent with the updated plan.” Petitioners argue that the updated plan required the deq to consider need in determining whether to allow another hazardous waste facility and that the deq’s failure to consider need in issuing the Part 111 permit to eds was inconsistent with the goal of the updated plan. We disagree.
The updated plan sets forth its overriding policy recommendations as follows:
The major overriding policy recommendation in the Plan is to support the existing designated hierarchy for waste management practices, which is intended to best reduce risks to human health and the environment. Source reduction of hazardous waste should remain the preferred alternative, followed in descending order by: reuse, closed-loop, on-site, and off-site recycling; treatment, including incineration; and land disposal.
A second overriding policy recommendation in the Plan is the recommendation that the Department of Natural Resources (dnr) adopt a statewide policy goal of 50 percent reduction in hazardous wastes released to all media within five years of adoption of this Plan. This goal is not to be applied to individual companies or industry sectors.
The Plan supports the current state policy position that Michigan should rely upon private enterprise, rather than state government, to develop necessary hazardous waste management facilities and to propose environmentally and economically sound sites, as regulated by the dnr.
Nothing in the updated plan’s expressed overriding policy recommendations supports petitioners’ claim that the DEQ must consider whether there exists a need for a hazardous waste facility before issuing a Part 111 permit.
Instead, the updated plan establishes a policy of ensuring that there will be adequate hazardous waste management capacity to meet the needs of Michigan. Under the section entitled “Policies to Assure Adequate Hazardous Waste Management Capacity,” the updated plan states: The drafters of the updated plan clearly wanted to ensure that Michigan would not lack necessary hazardous waste facilities. Nothing in the updated plan implies that one of its goals is to avoid an overcapacity of facilities. In fact, the updated plan specifically reaffirms the original policy position that Michigan should rely on private enterprise to develop necessary hazardous waste management facilities and to propose environmentally and economically sound sites. Although the updated plan states that the private enterprises should be regulated by the DNR, this does not imply that Michigan ought to preclude private enterprise from making its own determination regarding need for a facility.
Michigan policy should support the general goal of achieving and maintaining sufficient hazardous waste management capacity (at a variety of types of facilities) within the state to meet the needs of Michigan generators, without precluding the interstate transport of imports and exports. When feasible, this capacity should be located at multiple sites to provide stability in site availability.
Allowing private enterprise to determine whether there is need for new hazardous waste facilities is not contrary to the updated plan’s goal of reducing risks to human health and the environment. New facilities can bring new treatment, storage, and disposal technologies to the state that are cheaper, more efficient, and better for the environment than older technologies. Facilities with this new technology would compete with older facilities and could force older facilities to update their methods or close down. Disallowing new facilities because there is a perceived “overcapacity” of facilities could stifle competition and allow facilities with older, less environmentally friendly technology to remain.
Petitioners also argue that the deq’s policy of following the market-driven approach to need is inconsistent with the updated plan’s policy of waste reduction. However, there is nothing in the updated plan stating that the policy of waste reduction is met by requiring private enterprises to show undercapacity before obtaining a permit to build a new facility. We conclude that the updated plan does not require the deq to determine whether Michigan has an overcapacity of hazardous waste facilities.
d. MCL 324.11120
Next, petitioners argue that the deq was required to consider need in issuing a Part 111 permit to EDS, because MCL 324.11120(13) required the srb to consider the concerns and objections submitted by the public, which in this case included the claim that there was no need for this facility. Here, because the public objected "that the proposed facility was not needed because Michigan has ample hazardous waste treatment facilities, the SRb was required to consider the public’s concern relating to whether the facility-proposed by eds was needed. The srb fulfilled this obligation and, in fact, found merit to this public concern. The srb recommended that the deq deny the Part 111 permit to eds, in part because the facility was not needed. Despite the fact that MCL 324.11120 required the SRB to consider need in this case, it does not similarly require the deq to consider the concerns of the public in making its permitting decisions. Thus, the deq’s act of following the market-driven approach to need was not inconsistent with the MCL 324.11120(13) requirement that the SRB consider the concerns of the public, which included need in this case. Furthermore, although the SRB found merit to the public’s concern that there was not need for the facility, there is nothing in MCL 324.11120 requiring the deq to accept the SRB’s recommendations regarding the public’s concerns.
2. OTHER NREPA STATUTES DID NOT REQUIRE THE DEQ TO CONSIDER NEED IN ISSUING A PART 111 PERMIT
Petitioners also argue that the Legislature’s intent to require the deq to consider whether Michigan had an overcapacity of hazardous waste facilities in issuing a Part 111 permit is apparent from other statutes concerning pollution and waste reduction. Petitioners first cite MCL 324.14302 and MCL 324.14303 from Part 143 (waste minimization) of the Pollution Prevention chapter of the nrepa. MCL 324.14302 requires the DEQ to incorporate pollution prevention goals within its permit programs. MCL 324.14303 requires the DEQ to take several delineated actions to encourage pollution prevention. These statutes do not mention need and do not imply that the DEQ should consider need whenever granting any type of permit.
(1) The department shall incorporate pollution prevention goals within its regulatory and permit programs, including data collection and analysis to advance the concept and implementation of pollution prevention.
(2) The department shall employ personnel and provide support staff as are necessary to implement this part.
(1) The department shall do all of the following:
(a) Identify opportunities to encourage pollution prevention through the department’s regulatory programs.
(b) Identify opportunities to encourage pollution prevention through the department’s permit programs.
(c) Identify how pollution prevention efforts should be documented in environmental impact statements.
(d) Analyze and make recommendations on the value of imposing statewide goals or goals for particular environmental wastes, or both, for pollution prevention, minimum recycling standards, and environmental waste treatment standards.
(e) Publish an annual analysis of pollution prevention efforts and potentials in the state.
(2) In performing its responsibilities under subsection (1), the department shall place a particular emphasis on in-plant pollution prevention.
(3) Consistent with the congressional declaration in section 1003(b) of subtitle A of the solid waste disposal act, title n of Public Law 89-272, 42 U.S.C. 6902, that it is the national policy of the United States that, wherever feasible, hazardous waste is to be reduced or eliminated as expeditiously as possible, the department shall place a particular emphasis on the prevention of an environmental waste that is a hazardous waste as defined in section 11103.
Petitioners also cite MCL 324.14501 et seq., which is Part 145 (waste reduction assistance) of the Pollution Prevention chapter of the nrepa. In general, this part of the nrepa requires the department to “inform, assist, educate, and provide funding ... to persons to facilitate a reduction in the amount of environmental waste generated in the state.” MCL 324.14502(1). Again, this part of the nrepa does not mention need and does not imply that the DEQ should consider need whenever granting any type of permit.
D. THE DEQ WAS NOT REQUIRED TO PROMULGATE A RULE ADOPTING ITS MARKET-DRIVEN APPROACH TO NEED
Petitioners initially argue that the deq’s failure to promulgate any rules to implement the updated plan requires reversal of the deq’s decision to issue a Part 111 permit to EDS. Petitioners further argue that the deq’s market-driven approach to need constitutes a “rule,” because it is a fundamental policy that prescribes the deq’s procedures and practice regarding the permitting, location, number, and need for hazardous waste facilities in Michigan. Whether an agency’s policy is invalid because it was not promulgated pursuant to the procedures of the APA is a question of law subject to de novo review. Faircloth v Family Independence Agency, 232 Mich App 391, 401; 591 NW2d 314 (1998).
“[A]n administrative agency cannot rely upon a guideline or unpromulgated policies in lieu of rules promulgated under the apa.” Dep’t of Natural Resources v Bayshore Assoc, Inc, 210 Mich App 71, 85-86; 533 NW2d 593 (1995). The apa requires administrative agencies to follow certain specified procedures for promulgating rules, including the requirements of notice and a hearing. MCL 24.241.
“The APA requires an agency to give notice of proposed rules or rule changes, to hold a public hearing, and to submit the proposed rule or rule changes to the Legislature’s Joint Committee on Administrative Rules for review and approval.” AFSCME v Dep’t of Mental Health, 452 Mich 1, 9 n 8; 550 NW2d 190 (1996). An agency’s failure to follow this process renders the rule invalid. [Faircloth, supra at 402. ]
In American Federation of State, Co & Municipal Employees (AFSCME) v Dep’t of Mental Health, 452 Mich 1, 8; 550 NW2d 190 (1996), the Supreme Court, quoting MCL 24.207, set forth what constitutes a “rule” that must be promulgated pursuant to the APA:
[A] “rule” is: (1) “an agency regulation, statement, standard, policy, ruling, or instruction of general applicability,” (2) “that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency . . . .”
However, a “rule” does not include, inter alia, “[a] decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected.” MCL 24.207Q).
We conclude that the DEQ’s market-driven approach to need does not constitute a “rule” under MCL 24.2070). As discussed previously in Section n(C) of this opinion, the DEQ is not required to. consider need for a hazardous waste facility before issuing a Part 111 permit to build such a facility. Further, in issuing the Part 111 permit to eds, the deq’s action was consistent with the updated plan’s express policy that Michigan should rely on private enterprise to propose and develop hazardous waste facilities. As stated by the DEQ, its market-driven approach to need is merely a way of indicating that it will not affirmatively consider whether there is a need for a hazardous waste facility in deciding whether to issue a Part 111 permit. We agree with the circuit court that not every action or nonaction by the DEQ requires an administrative rule to be promulgated before the DEQ can act. Logically, an agency cannot be required to promulgate a rule regarding everything that it will not consider before issuing a permit. If this were the case, an agency would never be able to take any action.
Under MCL 24.207Q), “[a] decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected,” is not considered a “rule” that must be promulgated under the apa’s procedural requirements. Because Part 111 does not require the DEQ to develop standards for its Part 111 permit decisions or to consider need for a particular facility when making its Part 111 permitting decisions, the deq’s decision not to consider need is a decision not to exercise a permissive statutory power. Thus, the deq’s market-driven approach to need is not a “rule” under MCL 24.207Q). The circuit court correctly determined that the deq properly issued the Part 111 permit to EDS, even though the DEQ did not promulgate a rule that it would not consider need for a facility when making its Part 111 permitting decisions.
E. THE DEQ’S DECISION TO ISSUE THE PART 111 PERMIT TO EDS WAS SUPPORTED BY COMPETENT, MATERIAL, AND SUBSTANTIAL EVIDENCE
Petitioners argue that the circuit court erred in failing to make its own review of the record to determine whether the deq’s decision to issue the Part 111 permit to EDS was supported by competent, material, and substantial evidence. Petitioners argue that the circuit court improperly relied on the deq’s Fact Sheet and Responsiveness Summary instead of reviewing the whole record in reaching its decision to issue the Part 111 permit to EDS. In reviewing an administrative agency’s decision for competent, material, and substantial evidence, the circuit court must consider “the whole record — that is, both sides of the record — not just those portions of the record supporting the findings of the administrative agency.” Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974). Here, the circuit court concluded that it could not “disregard [the deq’s] fact sheet and summary, which is supported by material, substantial and competent evidence.” Petitioners argue, on the basis of this statement, that the circuit court failed to review both sides of the record. We disagree. .
There is nothing in the circuit court’s statement implying that it only relied on the deq’s Fact Sheet and Responsiveness Summary in reaching its decision. Rather, the circuit court’s statement implies that it went beyond the deq’s Fact Sheet and Responsiveness Summary and reviewed all the other evidence before reaching a determination that the conclusions and statements in the deq’s Fact Sheet and Responsiveness Summary were supported by this other evidence. Furthermore, the circuit court merely stated that it “cannot disregard” the deq’s Fact Sheet and Responsiveness Summary. The circuit court was correct that it could not disregard the deq’s Fact Sheet and Responsiveness Summary, just as it could not disregard the other approximately 34,000 pages of documents, because these documents were part of the administrative record. Petitioners offer no other support for their claim that the circuit court ignored evidence supporting their position. There is no indication that the circuit court “ ‘misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.’ ” Dignan, supra at 575, quoting Boyd, supra at 234.
Next, petitioners argue that the circuit court clearly erred in determining that the deq’s decision to issue the Part 111 permit was supported by competent, material, and substantial evidence on the whole record. Petitioners argue that the DEQ gave the SRB recommendation, at most, a cursoiy and superficial review, and disregarded the srb recommendation without any support on the record. Petitioners contend that it was the srb’s recommendation to deny EDS’s application for the Part 111 permit that was supported by the evidence.
There is no indication that the circuit court grossly misapplied the substantial evidence test in reviewing the deq’s decision to issue the Part 111 permit to EDS. The circuit court considered the evidence in the administrative record and concluded that the deq’s findings in the Fact Sheet and Responsiveness Summary were supported by the evidence. The circuit court correctly concluded that the record evidence supported the deq’s findings. Petitioners do not explain which sections of the deq’s Fact Sheet and Responsiveness Summary are not supported by the evidence or are erroneous, and do not point to any evidence to refute the findings made by the deq. In the absence of a more specific allegation of error, we conclude that the circuit court did not clearly err in determining that the deq’s decision to issue the Part 111 permit to EDS was supported by competent, material, and substantial evidence.
Petitioners also argue that the circuit court erred in affirming the deq’s decision to issue a Part 111 permit to eds because, even under the deq’s market-driven approach to need, there was not substantial, competent, and material evidence that the market would support another hazardous waste facility. We disagree. As previously stated, it is up to private enterprise, not the deq, to assess the market by looking at the locations of existing facilities, competition, economic trends, available technology, and more, and then take the initiative to develop new facilities. It is the permit applicant who takes the economic risk and assesses whether there is a viable market for the proposed facility. A permit applicant simply does not need to show that the market will support a new hazardous waste facility.
F. THE DEQ’S DECISION TO ISSUE THE PART 111 PERMIT TO EDS WAS NOT ARBITRARY OR CAPRICIOUS
Petitioners argue that the deq acted arbitrarily and capriciously in issuing the Part 111 permit because it had previously concluded that Rule 603(l)(f) precluded it from issuing a Part 111 permit to EDS due to the existence of wetlands on the Citrin Drive site. We find no merit to petitioners’ claim. Several internal e-mails exchanged between DEQ employees discussed whether Rule 603 precluded the issuance of a Part 111 permit to eds to build a hazardous waste facility on the Citrin Drive site due to the existence of wetlands. The authors of these e-mails reach no definitive conclusion regarding the issue, but merely acknowledge the possibility that, because wetlands exist on the site, it might be argued that Part 111 prohibits the deq from issuing a construction permit to EDS even if EDS were to obtain a Part 303 permit to fill the wetlands. These e-mails are merely part of informal discussions among DEQ employees and are not official agency conclusions. These internal e-mails do not demonstrate that the DEQ officially concluded that it lacked the authority to issue a Part 111 permit to EDS. There is no support for petitioners’ argument that the DEQ secretly concluded that it could not legally issue a Part 111 permit to EDS, but did so in any event, in contravention of this conclusion.
Petitioners also argue that the deq’s decision to issue the Part 111 permit to EDS was arbitrary and capricious because, despite the fact that the deq internally recognized the validity of the srb’s reasons for recommending to deny the permit, the DEQ later publicly denied the legitimacy of those reasons when issuing the Part 111 permit to EDS. In support of their argument, petitioners point to an internal deq briefing paper submitted by Steven R. Sliver, an Environmental Engineer Specialist for the Waste Management Division of the deq, regarding eds’s application for the Part 111 permit. In this briefing paper, Sliver stated, “Most of the concerns raised by the SRB in its recommendation for denial are valid, and can be the basis for the Department to either deny the permit or to issue the permit with special conditions that mitigate the srb’s concerns.” At the end of the paper, Sliver recommended that the DEQ take the following action:
The draft decision for the construction permit should await the decision on the wetland permit. If the wetlands permit is denied, then the construction permit must be denied, too. Construction in a wetlands is prohibited by Part 111 of Act 451.
If the wetlands permit is issued, then the Department must decide whether to issue or deny the construction permit for the Citrin Drive site. The permit can be issued with special conditions that eliminate or minimize the legitimate adverse impacts identified by the srb.
This briefing paper does not demonstrate that the deq internally agreed with the srb’s recommendation that eds’s Part 111 permit application should be denied. In fact, the deq briefing paper only shows that Sliver found that some of the srb’s recommendations had merit, but could be eliminated or mitigated through special permit conditions. When the deq later issued the Part 111 permit to EDS, it followed Sliver’s recommendations. The DEQ waited for EDS to acquire a Part 303 permit and then issued a Part 111 permit to EDS, which contained special conditions intended to eliminate or minimize the legitimate adverse effects identified by the SRB. Therefore, we find no merit in peti tioners’ contention that the deq’s issuance of the permit was contrary to a finding that the srb’s reasons for recommending to deny the permit were valid.
m. conclusion
We conclude that the circuit court did not err in affirming the deq’s decision to issue a Part 111 permit to EDS because: (1) the DEQ did not violate Rule 603 by issuing the Part 111 permit to EDS; (2) the DEQ was not required to consider whether there was a need in Michigan for an additional hazardous waste facility when issuing the Part 111 permit to EDS; (3) the DEQ was not required under the apa to promulgate a rule establishing that it would not consider whether Michigan needed an additional hazardous waste facility when issuing a Part 111 permit to construct such a facility; and (4) the DEQ’s decision to issue a Part 111 permit to eds was supported by competent, material, and substantial evidence and was not arbitrary or capricious.
Affirmed.
The deq issued the Part 111 permit before eds filled the wetlands. However, the deq issued the Part 111 permit with the understanding and expectation that the wetlands would be filled before construction of the facility commenced.
Environmental Disposal Systems, Inc v City of Romulus, unpublished opinion per curiam of the Court of Appeals, issued October 12, 1999 (Docket No. 206694), and City of Romulus v Environmental Disposal Systems, Inc, unpublished opinion per curiam of the Court of Appeals, issued October 15, 1999 (Docket No. 207850).
According to the DEQ, these wetlands did not exist when eds first submitted its Part 111 permit application in January 1997, but had developed on the site by the time eds resubmitted its application in May 1999.
The srb’s other seven reasons for its recommendation to deny the permit were as follows: First, the srb found that the Citrin Drive site was an unsuitable and inappropriate location for the proposed hazardous waste storage and treatment facility because: (a) the site contained only one means of ingress and egress, which was insufficient to ensure adequate access for emergency situations; (b) the proposed facility had an made- quate water supply and insufficient fire suppression system that created an unacceptable risk of fire and explosion at the site; (c) eds’s proposed truck route to the facility was unacceptable because it was along a roadway system that was already overly congested and had unacceptable levels of service and eds’s trucks would exacerbate the situation; and (d) the proposed facility was near the 1-94 expressway and two railways and posed an unacceptable risk of disrupting access to surrounding businesses and the Detroit Metropolitan Airport in the event of an emergency. Second, the srb found that the community surrounding the site lacked adequate emergency response resources, and the facility had the potential to overburden those limited resources. Third, the srb found that the design of the proposed facility created an unacceptable risk of the pollution of surface waters and wetlands. Fourth, eds failed to apply for approval of the facility under the Romulus Environmental Ordinance, eds failed to comply with the site plan and special use approval requirements of the Romulus zoning ordinance, and the proposed facility did not comply with other zoning ordinance requirements. Fifth, the srb stated that there were additional factors that led it to recommend denial of the Part 111 permit, such as the facility’s negative effect on property values, future quality development, and community image, and the fact that the community was already overburdened by undesirable land uses. Sixth, the srb noted that it had several concerns regarding eds: (a) there were a number of inconsistencies in statements, representations, and information provided by eds, and those inconsistencies caused the srb to question whether eds should be entrusted with the responsibility of operating the proposed facility, and (b) eds employees lacked the experience and expertise to operate a liquid hazardous waste management facility. Seventh, although eds represented to the srb that the waste it would accept at the facility would consist of ninety to ninety-five percent water, there was nothing in its application or elsewhere that would limit the waste eds accepted to ninety to ninety-five percent water. Without this limitation, the srb believed that the proposed facility might present unacceptable risks to public health and the environment.
The deq’s five reasons for proposing to issue the permit to eds were as follows:
I. The application submitted by eds is sufficiently detailed for the deq to evaluate the facility and its impact on human health and the environment.
n. The facility satisfies all of the technical design, construction, and operating standards under Part 111, Hazardous Waste Management, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (Act 451).
HI. Eds has obtained all other necessary federal and state environmental permits necessary for construction of the facility.
IV. The disclosure statement does not contain any listings that could be a reason to deny the construction permit.
V. Conditions in the construction permit will address the legitimate reasons for denial that were enumerated by the Site Review Board (skb).
The deq also found that the srb’s other reasons for recommending to deny the permit were either illegitimate or could be mitigated by a special condition in the permit. First, the deq addressed the srb’s finding that the Citrin Drive site was an unsuitable and inappropriate location for the proposed hazardous waste storage and treatment facility. The deq found that the lack of more than one access road to the site was a legitimate issue, but could be remedied by adding a condition to the permit requiring eds to provide an alternate emergency access road to the site. The deq stated that the lack of adequate water to the site was also a legitimate issue, but could be remedied by adding a condition to the permit requiring eds to install a looped water supply. The deq agreed that the facility could cause transportation congestion, but that this situation could be remedied by adding conditions to the permit limiting the number of trucks eds used each day on the proposed route and requiring eds to make roadway improvements. The deq found that the proposed facility would not increase the risk of accidents involving tanker trueles and that this was not a legitimate reason to deny the permit. Second, the deq concluded that the community surrounding the site did not lack adequate emergency response resources and the facility did not have the potential to overbur den those resources, so this was not a legitimate reason to deny the permit. Third, the deq stated that the risk of the pollution of surface waters caused by the proposed facility could be remedied by adding a condition to the permit prohibiting eds from staging trucks on Citrin Drive. Fourth, the DEQ stated that the SRB failed in its responsibility to justify and integrate specific local ordinances and requirements into the EDS project, so the DEQ refused to integrate all of them into the Part 111 permit. However, the deq stated that it would require as a condition of the permit eds’s compliance with certain local requirements that would not alter the approved plans and specifications. Fifth, the deq did not find any convincing evidence that the facility would negatively affect property values or have other adverse effects identified by the srb, so these were not legitimate reasons to deny the permit. Sixth, the deq stated that the srb’s perceived inconsistencies in eds’s representations involved information that was not relevant to the potential effect the facility would have on the environment or public health, safety, or welfare. Therefore, the deq concluded that concerns regarding eds’s integrity was not a legitimate reason to deny the permit. Seventh, the DEQ stated that the srb erred in its understanding of the types of waste that would be managed at the facility and that the proposed facility was capable of safely managing the wastes authorized in the Part 111 permit and the wastes would not present an unacceptable risk during transportation. The deq concluded that this was not a legitimate reason to deny the permit.
The circuit court concluded that the deq did not violate Part 111 by issuing eds a permit to construct the facility on a location that contained wetlands, because eds had previously obtained a Part 303 permit to eliminate the wetlands. The circuit court further determined that there was no statutory requirement that the deq consider need when deciding whether to issue a Part 111 permit. The circuit court was satisfied that the deq discussed the srb’s determination that there was no need for the facility, but the court stated that the deq was not required to follow the srb recommendations or consider need. The circuit court also determined that the deq was not required to promulgate a rule regarding its “market-driven” approach to need, because the deq’s decision to exercise or not exercise a permissive power by statute is not considered a rule under the Admiras trative Procedures Act (apa), MCL 24.201 et seq. The court noted that the deq considered and rejected all the reasons given by the SRB for denying the Part 111 permit and concluded that the deq’s decision to issue the permit was lawful, was supported by competent, material, and substantial evidence, and was not arbitrary or capricious.
The deq and EDS argue that, because a formal evidentiary hearing with witnesses testifying under oath is not required before the deq grants or denies a Part 111 permit application, review of the deq’s decision is limited to whether it was authorized by law. We agree that where the administrative agency was not required to conduct an evidentiary hearing, review is limited to determining whether the agency’s actions were authorized by law. Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998). Here, however, the deq was required to conduct an evidentiary hearing. Part 111 requires the srb to “conduct formal or informal hearings to receive evidence on disputed issues MCL 324.11120(8) (emphasis added). It is evident from this statutory language that the purpose of srb hearings, whether formal or informal, is to “receive evidence on disputed issues.” Neither the deq nor EDS provides any authority supporting the position that a formal hearing must be held to constitute an “evidentiary hearing” under Const 1963, art 6, § 28. We conclude that both the SRB’s formal and informal hearings constitute an “evidentiary hearing” under Const 1963, art 6, § 28. Thus, in this case the decision of the deq must be reviewed to determine whether it was supported by competent, material, and substantial evidence.
“A rule adopted by an agency in accordance with the Administrative Procedures Act, MCL 24.201 et seq., is a legislative rule that has the force and effect of law.” Morley v General Motors Corp, 252 Mich App 287, 290; 651 NW2d 808 (2002).
Preliminarily, we address two issues. First, petitioners argue that the circuit court erred in giving deference to the deq’s interpretation of Part 111 and Rule 603. However, the circuit court specifically stated in its opinion and order that it did not give any deference to the deq’s interpretation of Part 111. Therefore, petitioners’ argument fails.
Second, eds argues that this issue is moot because the wetlands on the Cilrin Drive site have been eliminated. An issue becomes moot where a subsequent event renders it impossible for this Court to fashion a remedy. In re Contempt of Dudzinski, 257 Mich App 96, 112; 667 NW2d 68 (2003). The issue on appeal is not whether the deq properly granted eds a Part 303 permit to fill the wetlands, but instead, whether the deq properly granted the Part 111 construction permit. Petitioners do not dispute that the DEQ properly granted the Part 303 permit or that eds legally filled the wetlands. Instead, petitioners argue that the deq improperly granted EDS a Part 111 permit because wetlands existed on the site at the time the deq issued the Part 111 permit. Eds has not yet built the hazardous waste facility authorized by the Part 111 permit. Thus, the issue whether the deq properly granted the Part 111 construction permit to EDS is not moot, despite the fact that eds has eliminated the wetlands.
A wetland that has been filled or eliminated is no longer considered a “wetland” under the Michigan Administrative Code. The rules implementing Part 111 define a wetland for hazardous waste purposes as “the areas defined as wetlands in part 303 of the act [nrepa].” 1999 AC, R 299.9109(kk). Part 303 defines “wetland” as “land characterized by the presence of water at a frequency and duration sufficient to support, and that under normal circumstances does support, wetland vegetation or aquatic life, and is commonly referred to as a bog, swamp, or marsh . . . .” MCL 324.30301(d). Once a wetland is filled or eliminated in compliance with a Part 303 permit, it loses the characteristics of a wetland and is no longer a wetland.
For example, Rule 603(l)(d) provides that active portions of new treatment, storage, or disposal facilities shall not be located over a sole-source aquifer “unless the director grants an exemption to this provision based upon a demonstration by the applicant that the treatment, storage, or disposal facility will be located, designed, constructed, and operated in a manner that will prevent contamination of the aquifer.” Similarly, Rule 603(4) provides that treatment, storage, and disposal facilities shall not be located in a floodplain unless one of two delineated exceptions is met.
Petitioners argue that the Legislature’s intent to require the deq to consider whether Michigan had an overcapacity of hazardous waste facilities in issuing a Part 111 permit is apparent from the legislative history (specifically, the Senate Fiscal Agency Bill Analysis, SB 403-405, 413, November 17, 1987) of Part 111. However, because the language of Part 111 is unambiguous and clearly establishes that the deq is not required to consider need, we cannot resort to legislative history. In re Certified Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 116; 659 NW2d 597 (2003).
Under the nrepa, the “department” is defined as “the director of the department of natural resources or his or her designee to whom the director delegates a power or duty by written instrument.” MCL 324.301(b). However, Executive Order No. 1995-18 transferred environmental regulatory programs from the Department of Natural Resources to the newly created DEQ.
Part 111 defines the “board” as a site review board. MCL 324.11102(1).
MCL 324.11110 provides, in pertinent part:
(2) The updated plan shall:
(b) Be based upon location of generators, health and safety, economics of transporting, type of waste, and existing treatment, storage, or disposal facilities.
(c) Include information generated by the department of commerce and the department on hazardous waste capacity needs in the state.
* * *
(f) Plan for a reasonable geographic distribution of treatment, storage, and disposal facilities to meet existing and future needs, including proposing criteria for determining acceptable locations for these facilities. The criteria shall include a consideration of a location’s geology, geography, demography, waste generation patterns, along with environmental factors, public health factors, and other relevant characteristics as determined by the department.
MCL 324.11110(3) provides, in pertinent part:
The department shall instruct the office of waste reduction created in part 143 to complete studies as considered necessary for the completion of the updated plan. These studies may include:
* * *
(c) A projection or determination of future hazardous waste management needs based on an evaluation of existing capacities, treatment or disposal capabilities, manufacturing activity, limitations, and constraints. Projection of needs shall consider the types and sizes of treatment, storage, or disposal facilities, general locations within the state, management control systems, and an identified need for a state owned treatment, storage, or disposal facility-
MCL 324.11110(4) provides:
If the department finds in preparing the updated plan that there is a need for additional treatment or disposal facilities in the state, then the department shall identity incentives the state could offer that would encourage the construction and operation of additional treatment or disposal facilities in the state that are consistent with the updated plan. The department shall propose criteria which could be used in evaluating applicants for the incentives.
As stated above, statutory mandates to consider need relate only to the preparation of the updated plan and do not apply to permitting decisions.
The original plan provided that “the determination of facility location should remain the responsibility of the facility proposer” because, among other reasons, “[economic conditions, based upon the location of generators and existing disposal facilities, and economic outlook for the particular industry to be served, will determine where facilities are needed and will create a reasonable distribution of sites.”
MCL 324.11120(13) provides:
The board also shall consider the concerns and objections submitted by the public. The board shall facilitate efforts to provide that the concerns and objections are mitigated by establishing additional stipulations specifically applicable to the treatment, storage, or disposal facility and operation at that site. Through deliberations, the board may modify the construction permit application in response to its findings. To the fullest extent practicable, the board also shall integrate by stipulation the provisions of the local ordinances, permits, or requirements.
MCL 324.11120(12) lists factors that the srb must consider before making a recommendation to the deq whether it should issue a Part 111 permit. Petitioners quote this statute, but do not argue that any of the factors listed in this section of the statute require the srb to consider need.
In fact, the DEQ did address the public’s argument that the Part 111 permit should not be issued to eds because the facility was not needed. The deq explained in its Responsiveness Summary that the evidence that the facility was not needed was faulty and that, in any event, the deq was not required to consider need for the facility, but instead followed a market-based approach to need.
MCL 324.14302 provides:
MCL 324.14303 provides:
MCL 324.11114 provides: “Not more than 180 days after the final adoption of the updated plan, the department shall submit to the legislature proposed rules to implement the updated plan created in section 11110.” Apart from a rule regarding the deq’s market-driven approach to need, petitioners do not specify any deq policy that was used in issuing the Part 111 permit to eds that should have been promulgated as a rule. We will not invalidate the deq’s entire permitting process and the permits the deq issued under that process, including eds’s Part 111 permit, on the basis of alleged unspecified unpromulgated policies the deq follows in deciding whether to issue Part 111 permits.
As in Michigan Trucking Ass’n v Public Service Comm. (On Remand), 225 Mich App 424, 430; 571 NW2d 734 (1997), this conclusion is buttressed by the fact that Part 111 does not expressly require the deq to promulgate permit standards before implementation. | [
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Neff, J.
The prosecutor appeals as of right from a circuit court order of dismissal after a finding that an investigatory stop was unconstitutional. Finding no constitutional violation, we reverse and remand. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
i
The facts as established at the preliminary examination are essentially uncontested. A police officer on routine patrol observed defendant’s vehicle and its license plate that was in plain view as required by law. MCL 257.225. The officer did not observe any traffic violation, but decided to perform a computer check of the license plate number. The check showed that there were two outstanding warrants for the registered owner of the vehicle. The officer stopped the car to determine if the driver was also the registered owner. The driver, defendant, produced documentation showing that he was the registered owner of the car and also the person named in the outstanding warrants.
The officer asked defendant to step out of the car so he could explain the reason for the stop. Defendant complied and the officer, for safety purposes, asked if defendant had a weapon. Defendant admitted that he had a gun strapped to his left leg. Defendant was arrested and ultimately charged with carrying a concealed weapon in a vehicle, MCL 750.227, and possession of marijuana, MCL 333.7403(2)(d).
Defendant was bound over for trial after the preliminary examination. After a brief hearing on defendant’s motion to dismiss or to suppress the evidence, the trial court held that the officer violated defendant’s rights under the Fourth Amendment of the United States Constitution when he ran a computer check of the license plate number and then effectuated an investigatory stop based on the information learned from the computer check.
ii
The application of the exclusionary rule is a question of law that is reviewed de novo. People v Custer, 465 Mich 319, 326; 630 NW2d 870 (2001). Constitutional issues are also reviewed de novo on appeal. People v Goodin, 257 Mich App 425, 428; 668 NW2d 392 (2003).
m
The threshold question is whether the police officer’s decision to run a computer check of defendant’s license plate number in the absence of any traffic violation implicated defendant’s Fourth Amendment right to be free of unreasonable search and seizure. If not, the question becomes whether it was proper for the officer to conduct an investigatory stop based on the information he learned from the computer check that led to defendant’s arrest.
A
We hold as follows:
1. A police officer may properly run a computer check of a license plate number in plain view even if no traffic violation is observed and there is no other information to suggest that a crime has been or is being committed. That is, there is no probable cause or articulable suspicion requirement to run a computer check of a license plate number in which there is no expectation of privacy.
2. In the absence of evidence to the contrary, a police officer may reasonably suspect that a vehicle is being driven by its registered owner.
3. Where information gleaned from a computer check provides a basis for the arrest or further investigation of the registered owner of the vehicle, a police officer may initiate an investigatory stop to determine if the driver is the registered owner of the vehicle. In the course of the investigatory stop the officer may request identification and may act to reasonably secure his own safety.
4. Because the officer proceeded lawfully in (a) running the computer check, (b) making an investigatory stop, and (c) establishing that defendant was the registered owner of the vehicle for whom two warrants were outstanding, the officer was justified in arresting defendant and conducting a search of defendant and his car.
B
“The Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11.” People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000). Fourth Amendment interests are only implicated when the government infringes a person’s rea sonable expectation of privacy. People v Smith, 420 Mich 1, 25; 360 NW2d 841 (1984); People v Taylor, 253 Mich App 399, 404; 655 NW2d 291 (2002).
A person does not have a reasonable expectation of privacy in a license plate openly displayed on a vehicle, which, as noted, is required to be in plain view. MCL 257.225. Other state courts have consistently reached the same conclusion, holding that a suspicionless check of a license plate number is not a search. See Wilkinson v State, 743 NE2d 1267, 1270 (Ind App, 2001); State v Lewis, 288 NJ Super 160, 163-164; 671 A2d 1126 (1996); People v Brand, 71 Ill App 3d 698; 390 NE2d 65 (1979).
c
An investigatory stop, which is limited to a brief and nonintrusive detention, constitutes a Fourth Amendment seizure. People v Bloxson, 205 Mich App 236, 241, 249; 517 NW2d 563 (1994). “In order to effectuate a valid traffic stop, a police officer must have an articulable and reasonable suspicion that a vehicle or one of its occupants is subject to seizure for a violation of law.” People v Williams, 236 Mich App 610, 612; 601 NW2d 138 (1999). The reasonableness of an officer’s suspicion is determined on a case-by-case basis in light of the totality of the facts and circumstances and specific reasonable inferences he is entitled to draw from the facts in light of his expe rience. People v LoCicero (After Remand), 453 Mich 496, 501-502; 556 NW2d 498 (1996).
It was a reasonable suspicion that the driver was the registered owner of the vehicle in the absence of evidence to the contrary. The police officer’s computer check of the vehicle license number returned information that there were two outstanding warrants for the registered owner of the vehicle providing the justification for the investigatory stop of the driver. People v Champion, 452 Mich 92, 98; 549 NW2d 849 (1996).
Having made a proper investigatory stop and determining that defendant-driver was indeed the registered owner of the vehicle, the officer lawfully arrested defendant on the outstanding warrants. MCL 764.15(l)(e). Accordingly, the officer validly searched defendant and his car. People v Yeoman, 218 Mich App 406; 554 NW2d 577 (1996).
Reversed and remanded for reinstatement of the charges against defendant. We do not retain jurisdiction.
White, J., concurred.
The proper remedy for an illegal search and seizure is suppression of the evidence, not dismissal of the charges. People v Chambers, 195 Mich App 118, 120; 489 NW2d 168 (1992). However, when the evidence is the only thing connecting the defendant to the crimes, dismissal is inevitable if the evidence is suppressed. Id. at 120-121.
The maryuana was discovered when defendant’s car was searched incident to his arrest.
This is not, strictly speaking, our Court’s first declaration of this rule. See People v Taormina, 130 Mich App 73, 80; 343 NW2d 236 (1983). However, we decline to rely on Taormina because it is factually distinguishable.
For instance, if the registered owner was a male and the driver was a female, the officer would not have reasonable grounds to assume that the driver was the owner. See State v Richter, 145 NH 640, 641-642; 765 A2d 687 (2000); State v Pike, 551 NW2d 919, 922 (Minn, 1996); Village of Lake in the Hills v Lloyd, 227 Ill App 3d 351; 169 Ill Dec 351; 591 NE2d 524 (1992); State v Panko, 101 Or App 6, 9; 788 P2d 1026 (1990); State v Mills, 458 NW2d 395, 397 (Iowa App, 1990).
As noted, defendant also admitted carrying the weapon when the officer asked him to get out of the car. | [
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Murray, J.
The dispositive issue presented in this appeal is whether a second summons may be issued by a court clerk after the date the initial summons expired if the trial court has entered an order requiring the issuance of the second summons before the expiration of the initial summons. The trial court held that the court clerk could not issue ,the second summons, and dismissed plaintiff’s cause of action pursuant to MCR 2.116(C)(2). We hold that the trial court erred in reaching this conclusion, and therefore reverse the trial court’s order granting defendant’s motion for summary disposition and remand for further proceedings.
I. material facts and proceedings
Plaintiff alleged that on March 12, 1999, she was injured when she tripped and fell over a cable that was partially hidden in a snow bank in a parking lot. The owner and operator of the parking lot, known as Central Parking, was defendant Joe Shields. On March 11, 2002, plaintiff filed a complaint alleging negligence. A summons was also issued that same day with an expiration date of June 10, 2002, ninety-one days after the date of issuance.
Plaintiff made several attempts to serve Shields. The first attempt was by certified mail, return receipt requested, at Shield’s last known address, but the mail was returned as undelivered. Two different process servers then made several more attempts, but they, too, were unsuccessful. Because of her failure to serve defendant on June 6, 2002, plaintiff moved ex parte to extend the life of the summons.
On June 10, 2002, the trial court considered the motion, and, finding good cause, signed an order directing the court clerk to issue a second summons extending the time for service of process an additional sixty days or to August 9, 2002. According to the clerk’s time-stamp, the order was filed on June 11, 2002, at 2:10 P.M. A second summons was also issued that same day With an expiration date of August 9, 2002; the summons was time-stamped at 2:11 P.M.
After defendant was served, he moved for dismissal of plaintiff’s cause of action under MCR 2.116(C) (2), (3), and (7). Defendant argued that the original summons expired on June 10, 2002, and that as of the end of the day on June 10, 2002, the matter was ripe for dismissal pursuant to MCR 2.102(E)(1). According to defendant, because the order to extend the summons was not filed on June 10, the original summons expired; therefore, the clerk had no authority to issue the new summons on June 11, 2002.
After hearing oral arguments, the trial court held that, under MCR 2.602(A)(2), the order was effective on the date that it was signed, June 10. However, the court further held that when an original summons expires, the court clerk loses jurisdiction to take any further action, and concluded that the clerk had no jurisdiction to issue the second summons on June 11. The court determined that the second summons was invalid, and the case was therefore dismissed without prejudice.
H. ANALYSIS
This Court reviews de novo a trial court’s ruling on a motion for summary disposition brought under MCR 2.116(C)(2). Richards v McNamee, 240 Mich App 444, 448; 613 NW2d 366 (2000). Under MCR 2.116(C)(2), summary disposition is appropriate where the process issued in the action is insufficient. When ruling on a motion brought under MCR 2.116(C)(2), the trial court must consider the pleadings, affidavits, and other documentary evidence submitted by the parties. MCR 2.116(G)(5); Richards, supra at 448.
Additionally, interpretation of a court rule is a question of law that this Corut reviews de novo. CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002). In Rinas v Mercer, 259 Mich App 63; 672 NW2d 542 (2003), we set forth the rules regarding enforcement of a clear and unambiguous court rule:
‘ “When called on to construe a court rule, this Court applies the legal principles that govern the construction and application of statutes. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998) [overruled in part on other grounds Rafferty v Markovitz, 461 Mich 265; 602 NW2d 367 (1999)]. Accordingly, we begin with the plain language of the court rule. When that language is unambiguous, we must enforce the meaning expressed, without further judicial construction or interpretation.” ’ [Id. at 68, quoting CAM Constr, supra at 554, quoting Grievance Administrator v Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000).]
As we noted at the outset of this opinion, the critical question in this case is whether the trial court’s grant of an extension of the summons or the court clerk’s actual issuance of the summons is the operative act required before the expiration of the summons in order to extend the summons beyond the initial period. The answer to the question comes, of course, from the court rules.
MCR 2.102 states in pertinent part:
(A) Issuance. On the filing of a complaint, the court clerk shall issue a summons to be served as provided in MCR 2.103 and 2.105.
* * *
(D) Expiration. A summons expires 91 days after the date' the complaint is filed. However, within that 91 days, on a showing of good cause, the judge to whom the action is assigned may order a second summons to issue for a definite period not exceeding 1 year from the date the complaint is filed. If such an extension is granted, the new summons expires at the end of the extended period. . . .
(E) Dismissal as to Defendant Not Served.
* * *
(2) After the time stated in subrule (E)(1), the clerk shall examine the court records and enter an order dismissing the action as to a defendant who has not been served with process or submitted to the court’s jurisdiction. The clerk’s failure to enter a dismissal order does not continue an action deemed dismissed. [Emphasis added.]
During the proceedings below, the trial court held that the effective date of its order was the date on which it was signed, not entered. That conclusion is clearly correct, and requires little analysis. The sign ing and entry of an order were traditionally two different actions, with “entry” being used to describe the ministerial act of the actual filing. See Lewis v Wayne Co Sheriff 335 Mich 640, 643; 56 NW2d 211 (1953). To remedy any confusion, however, MCR 2.602(A) now equates the two events:
(1) Except as provided in this rale and in MCR 2.603, all judgments and orders must be in writing, signed by the court and dated with the date they are signed.
(2) The date of signing an order or judgment is the date of entry.
Further, this Court has recognized that the date an order is signed is the date of entry. See People v McBride, 204 Mich App 678, 683; 516 NW2d 148 (1994); see also 3 Dean & Longhofer, Michigan Court Rules Practice, § 2602.3, p 298 (“MCR 2.602(A) specifies that judgments and orders are considered ‘entered’ the date they are signed by the court, whether or not they are also filed with the clerk of the court on that date.”). Therefore, we agree with the trial court, and hold that the order was effective on June 10, 2002, the date it was signed by the trial court, even though it was not actually filed with the clerk until the next day.
With the foregoing conclusion in mind, we now address the dispositive issue, i.e., whether to extend the period for service of process, it is sufficient that only the order granting the issuance of a second summons be entered within the original ninety-one day period, or must the second summons itself also be issued within the ninety-one day period. On this question, the trial court concluded as follows:
The second step is to have the clerk issue a second summons. Now, when a summons expires, the clerk of the court loses jurisdiction to take any further action, and while there was an order allowing the second summons to issue, the clerk never issued one. There was no second summons issued on a timely basis on June 10. Therefore, on June 11, when one was issued, there was no jurisdiction for that issuance, and, therefore, it was an invalid summons and I have to dismiss the case — purely on technical grounds.
Therefore, despite the court’s conclusion that the order was effective on June 10, it found dispositive the fact that the actual summons was not issued until the next day. In this regard, the trial court erred.
The plain, clear language of MCR 2.102(D) provides that it is only the trial court’s order granting the issuance of a second summons that must be entered before the ninety-one days expires. That court rule unequivocally provides that “within that 91 days . . . the judge to whom the action is assigned may order a second summons to issue . . . .” MCR 2.102(D). The only operative and necessary act, therefore, is the entry of an order granting the motion to extend the summons. There is no language within MCR 2.102(D) that indicates that any other judicial act need be taken to extend the life of the summons. Indeed, MCR 2.102(D) goes on to provide, “If such an extension is granted, the new summons expires at the end of the extended period.” (Emphasis added.) Under the court rules, only the court can “grant an extension,” MCR 2.102(C) and (D), and thus it is the operative act of the court (entering an order granting an extension), and not the court clerk’s actual issuance of the sec ond summons, that must occur within the ninety-one day life of the original summons.
Although the clear language of the court rule sufficiently answers the question presented, our cases have previously recognized that the necessary act that must occur before expiration of the initial summons is the entry of an order granting the extension. In Durfy v Kellogg, 193 Mich App 141; 483 NW2d 664 (1992), we held that a court clerk cannot, upon the filing of an amended complaint, issue a new summons with a new expiration date. Id. at 143-144. In so holding, we acknowledged that it is the extension from the court that must be obtained within the life of the initial summons:
However, MCR 2.102(D), while authorizing the judge to order the issuance of a new, extended summons, requires that it be done within the life of the original summons, that is, within 182 days after the filing of the original complaint in this case. The extension was not obtained until more than 182 days after the filing of the complaint and, therefore, the trial judge no longer possessed authority under the court rule to order an extension of the summons.
[Id. at 144-145 (emphasis added).]
Because the court rule makes the court’s order granting an extension the operative act to be taken before expiration of the summons, we held that “[t]he court clerk has no authority to extend the life of the summons.” Id. at 144. More recently, in Hyslop v Woj- jusik, 252 Mich App 500; 652 NW2d 517 (2002), we noted that it is only the trial court’s order that needs to be entered before the expiration of the initial summons:
Rather, MCR 2.102(D) authorizes the court clerk to issue a summons upon the filing of a complaint, which summons remains in effect for ninety-one days from the date that it was issued, and authorizes the trial court, upon good cause shown and within the ninety-one day period, to issue a second summons for a definite period, not to exceed one year from the date that the original complaint was filed. [Id. at 506 (emphasis supplied in part).]
Acceptance of defendant’s position would not only require us to read language into MCR 2.102(D) that does not exist, but it would also grant authority to court clerks, which does not exist. This we cannot do.
Defendant’s reliance on Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000), is misplaced. In Scarsella, supra at 551-553, the Court dealt with the interplay between the filing of a complaint and supporting affidavit, and the statute of limitations in a medical malpractice case. During its discussion, the Court merely noted that, although MCL 600.5856(a) “provides that a period of limitation is tolled ‘[a]t the time the complaint is filed and a copy of the summons and complaint are served on the defendant,’ ” id. at 552, generally, a statute of limitations only requires that a complaint be filed within the limitations period, id. at 552 n 3. The Court clarified that a “summons can be served within ninety-one days thereafter, unless a second summons ... is issued within the first ninety-one day period.” Id. However, contrary to defendant’s argument, the Court did not say that a second sum mons is only effective if issued within the ninety-one day period; it merely stated that satisfaction of a statute of limitations is not dependant on the service of a summons.
m. CONCLUSION
As a result of the foregoing analysis, we hold that if an order allowing for the issuance of a second summons is entered within the effective period of the original summons, the court clerk must issue the second summons as timely ordered by the court even if the court clerk’s act of issuing the second summons occurs after the expiration of the original summons. Thus, in this case, the court clerk had the authority to enter the second summons on June 11, 2002, because the clerk was at that time operating under the authorization of the June 10, 2002, order, which was entered and effective on that day. The second summons was, therefore, validly issued.
Accordingly, we reverse the trial court’s order granting defendants’ motion for summary disposition and dismissing plaintiff’s complaint, and remand this case to the trial court for further proceedings. We do not retain jurisdiction.
We note that MCR 2.102 was recently amended, effective January 1, 2004. This opinion refers to the rule in effect at the time of the trial court’s decision; however, we further note that the differences in the rule are irrelevant to the analysis of this opinion.
Though certainly not controlling, we do note that the authors of at least one Michigan legal source have noted the requirements plainly found within this rule. See 1A Borst, Vasic & Murphy, Michigan Pleading & Practice (2d ed), § pp 310-311 (“A summons expires 91 days after the date the complaint is filed unless within that 91-day period, the judge orders a second summons to issue for a definite period . . .
Holliday v Townley, 189 Mich App 424, 425; 473 NW2d 733 (1991), does not support defendant’s position as that case dealt with a complete failure of service of process where no second summons was requested. Reliance on Richards, supra at 447, and Bush v Beemer, 224 Mich App 457, 460; 569 NW2d 636 (1997), is likewise misplaced because those cases dealt with the trial courts’ findings of good cause for issuance of a second summons — an issue not contested in this case. | [
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Bandstra, J.
Following a jury trial, defendant was convicted of possession with intent to deliver more than 50 but less than 225 grams of a controlled substance, MCL 333.7401(2)(a)(iii), for which he was sentenced to a term of life imprisonment, MCL 333.7413(1). Defendant appeals as of right. We affirm.
This case arises from a traffic stop that resulted in the discovery of more than 134 grams of cocaine hidden beneath the passenger seat of a vehicle being driven by defendant. Defendant, who is African-American, was arrested and charged with possessing the cocaine with the intent to deliver, in violation of MCL 333.7401(2) (a) (iii). On appeal, defendant argues that he was denied his constitutional right to a fair and impartial jury at the trial because only one African-American juror was seated on the jury panel. Defendant asserts that this denial was the result of the trial court having improperly excused several jurors under MCR 2.511(D)(11), and the prosecutor having excused a number of African-Americans by peremptory challenge. Defendant contends that “the combined effect” of these actions “constituted an intentional and systematic exclusion of minority jurors from the jury,” which denied him the right to an impartial jury drawn from a fair cross-section of the community. We disagree.
During jury selection the prosecutor successfully challenged the seating of four members of the jury array under MCR 2.511(D)(11), which provides that it is grounds for a challenge for cause that a person “is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or has been accused by that party in a criminal prosecution.” The basis for the prosecutor’s challenges under this rule was that each of the jurors challenged had been the subject of misdemeanor criminal proceedings initiated by the Oakland County Prosecutor’s Office. On appeal, defendant first argues that the trial court erred in granting these challenges because a county prosecutor is not a “party in a criminal prosecution” within the meaning of MCR 2.511(D)(11). We disagree.
Initially, we note that defendant failed to preserve this issue by objecting to dismissal of the challenged jurors under MCR 2.511(D)(11). Generally, we review unpreserved issues for plain error affecting the defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). However, to the extent our analysis involves interpretation of a court rule, our review is de novo. People v Hawkins, 468 Mich 488, 497; 668 NW2d 602 (2003).
When called on to construe a court rule, this Court applies the legal principles that govern the construction and application of statutes. People v Holtzman, 234 Mich App 166, 175; 593 NW2d 617 (1999). Accordingly, the rule at issue here must be construed “in accordance with ‘the ordinary and approved usage of the language’ ” employed, and ‘ “in light of its purpose and the object to be accomplished by its operation.’ ” Id., quoting People v Gilmore, 222 Mich App 442, 449; 564 NW2d 158 (1997).
The purpose of permitting a challenge for cause under the grounds listed in MCR 2.511(D) is explained in 3 Dean & Longhofer, Michigan Court Rules Practice, § 2511.5, p 172-173:
The . . . grounds listed in MCR 2.511(D) on which a party may challenge a juror for cause fall into two principal categories. The first is that the person is not statutorily qualified to act as a juror. The second is that the juror is biased, i.e., that the juror has preconceived opinions or prejudices, or such other interest or limitations as would impair his or her capacity to render a fair and impartial verdict.
Although, as a general matter, the determination whether to excuse a prospective juror for cause is within the trial court’s discretion, once a party shows that a prospective juror falls within the parameters of one of the grounds enumerated in MCR 2.511(D), the trial court is without discretion to retain that juror, who must be excused for cause. See People v Lamar, 153 Mich App 127, 134-135; 395 NW2d 262 (1986) (“Such a showing is equivalent to bias or prejudice at common law.”). A challenge for cause under MCR 2.511(D)(11) falls within the latter of the categories described by Dean & Longhofer. See Dean & Longhofer, supra at 173. Indeed, that a prospective juror has been the subject of a criminal prosecution raises a question concerning that person’s “capacity to render a fair and impartial verdict” in a criminal matter. Id.
Defendant nonetheless argues that because the rule at issue here expressly includes, as a person previously “adverse” to the prospective juror, both the “challenging party or attorney in a civil action,” but includes only the challenging “party” when addressing a criminal prosecution, the rule does not contemplate a challenge by the prosecuting attorney in a criminal matter. We disagree. Unlike cases initiated in the civil arena, where any number of individual attorneys may be chosen to represent a particular party, it is the prosecuting attorney who represents the people in each and every criminal prosecution. This “oneness” of party and attorney explains the different language employed by the rule for criminal, as opposed to civil, actions and, when viewed in conjunction with the purpose underlying a challenge for cause as discussed above, militates against the argument advanced by defendant. Consequently, we find no error, plain or otherwise, in the trial court’s grant of the prosecutor’s challenges for cause under MCR 2.511(D)(11). Carines, supra.
Defendant further argues that the trial court’s “hard and fast policy” of granting the prosecutor’s challenges under MCR 2.511(D)(11), despite the potential jurors having indicated their ability to be fair and impartial, resulted in a “systematic exclusion” of African-Americans from the jury panel. In making this argument, defendant contends that because there is a higher incidence of arrest among African-Americans than any other group in Oakland County, such rigid application of the rule at issue makes it statistically more likely that African-Americans will be excluded from the jury panel.
The right to a fair trial under the Sixth Amendment of the federal constitution requires that juries be drawn from a fair cross-section of the community. Duren v Missouri, 439 US 357; 99 S Ct 664; 58 L Ed 2d 579 (1979). For this reason, distinct groups represented in the community may not be systematically excluded from the jury selection process. People v Hubbard (After Remand), 217 Mich App 459, 472-473; 552 NW2d 493 (1996). Generally, this Court reviews a claim of systematic exclusion de novo. People v Williams, 241 Mich App 519, 525; 616 NW2d 710 (2000). However, because the argument advanced here was not raised before the trial court, it is again not preserved for our review. See People v Connor, 209 Mich App 419, 422; 531 NW2d 734 (1995) (issues not raised before and decided by the trial court are not preserved for appeal). Accordingly, defendant is entitled to relief only upon a showing of plain error affecting his substantial rights. Carines, supra. Again, we find no such error here.
Initially, we note that it is not disputed that the prospective jurors at issue here had each been the subject of misdemeanor criminal prosecutions, a fact that, as discussed above, constitutes a proper ground for a prosecutorial challenge for cause under MCR 2.511(D)(11). A proper ground for a challenge for cause having been shown, the trial court was without discretion to retain these individuals regardless of whether they asserted an ability to be fair and impartial. Lamar, supra. Thus, the trial court’s excusing them in compliance with the rule, having not been presented with the Sixth Amendment argument defendant now raises on appeal, was not plain error.
Moreover, the record in this case is devoid of any evidence from which it can be concluded that the prospective jurors excused under MCR 2.511(D)(11) were in fact African-American. The record assuredly indicates only that three African-Americans were excused from the panel by the prosecutor. The first was excused for cause under MCR 2.511(D)(4) after she candidly expressed an inability to impartially decide the case “given the way African-American men may be depicted.” The second was excused for cause under MCR 2.511(D)(2) after acknowledging a prior felony conviction. The third was peremptorily excused and the trial court immediately inquired into the basis. The prosecutor explained that a son of that proposed juror had previously been prosecuted and convicted by his office. Consequently, there being no evidence from which to conclude that application of MCR 2.511(D)(11) resulted in the exclusion of any African-Americans from the jury that decided his case, defendant has failed to establish plain error affecting his substantial rights. Carines, supra.
We similarly find no basis on the record before us to conclude that the prosecutor improperly used his peremptory challenges to exclude African-Americans from the jury panel. See Batson v Kentucky, 476 US 79, 84-88; 106 S Ct 1712; 90 L Ed 2d 69 (1986) (the use of a peremptory challenge to strike a potential juror solely because of the potential juror’s race violates the Equal Protection Clause of the Fourteenth Amendment). As noted above, the record discloses only one sure instance of a prospective African-American juror being peremptorily excused by the prosecutor. With respect to this challenge the trial court stated that, although no objection to this challenge was raised by the defense:
I did summon the prosecutor at sidebar with defense counsel to find out why [the prosecutor] challenged [the prospective juror]. The prosecutor indicated to me that [the juror] had a son that was convicted in Oakland County and prosecuted by the Oakland County Prosecutor’s office. That is a non-discriminatory reason, and it is one that the Court would honor.
This Court reviews for abuse of discretion a trial court’s ruling regarding discriminatory use of peremp-toiy challenges. People v Ho, 231 Mich App 178, 184; 585 NW2d 357 (1998). In doing so, we must give great deference to the trial court’s findings because they turn in large part on a determination of credibility. Harville v State Plumbing & Heating, Inc, 218 Mich App 302, 319-320; 553 NW2d 377 (1996). Here, the prosecutor provided a race-neutral basis for excusing the subject juror. See Purkett v Elem, 514 US 765, 767; 115 S Ct 1769; 131 L Ed 2d 834 (1995). Moreover, the prosecutor failed to exercise all his peremptory challenges despite the fact that one African-American juror remained on the panel. As noted by this Court in People v Williams, 174 Mich App 132, 137; 435 NW2d 469 (1989), “[t]hat the prosecutor did not try to remove all blacks from the jury is strong evidence against a showing of discrimination.” Accordingly, giving deference to the trial court’s ability to judge the credibility of the prosecutor’s proffered basis for peremptorily excusing the subject juror, and considering that the record discloses no other use of peremptory challenges of African-American jurors, we do not conclude that the trial court abused its discretion in rejecting defendant’s claim of racial discrimination in the selection of his jury.
Defendant next argues that the trial court erred in ruling that the police and the prosecution used due diligence in attempting to locate and produce Chris Turner as a witness and, accordingly, in denying defendant’s request for an instruction that the jury should infer that testimony from Turner, who was also arrested for possession of the cocaine found in the vehicle, would have been adverse to the prosecution. We disagree.
A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to exercise due diligence to produce that witness at trial. People v Cummings, 171 Mich App 577, 583-585; 430 NW2d 790 (1988). A prosecutor who fails to produce an endorsed witness may show that the witness could not be produced despite the exercise of due diligence. People v Canales, 243 Mich App 571, 577; 624 NW2d 439 (2000). If the trial court finds a lack of due diligence, the jury should be instructed that it may infer that the missing witness’s testimony would have been unfavorable to the prosecution’s case. CJI2d 5.12; see also People v Snider, 239 Mich App 393, 422; 608 NW2d 502 (2000). We review a trial court’s determination of due diligence and the appropriateness of a “missing witness” instruction for an abuse of discretion. See People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998); Snider, supra.
In this case, the evidence demonstrated that substantial efforts were made to locate Turner. The officer in charge, Sergeant Sean Hoydic, testified at the due diligence hearing that he had at “numerous times” attempted to serve Turner with a subpoena to appear as a witness in this case, but was unsuccessful. Hoydic explained that after retrieving the address listed on Turner’s arrest card, which was the home of Turner’s mother, he traveled to that address where he interviewed a number of subjects. These subjects, however, informed Hoydic that Turner had not been seen by them in some time. Hoydic then checked Turner’s jail records for an alternative address, but found that the address listed there was again that of Turner’s mother’s home. A check with the county jails in the surrounding area similarly proved to be fruitless. Hoydic also spoke with the mother of Turner’s child, who indicated that she too had not seen Turner “for quite some time.” However, one week before trial was scheduled to begin, Hoydic received a telephone call from Turner, who informed Hoydic that he was in Shreveport, Louisiana. When informed of the trial dates and times, Turner, who had called Hoydic from a pay telephone, indicated that he “planned on being [t]here because he didn’t want to get blamed for any of the drugs that were in the car. . . . [H]e wanted to show up and tell his side of the story.” Hoydic testified that he attempted to obtain a telephone number and address for Turner in Louisiana, but was told by Turner that “he either didn’t know where he was staying or didn’t know the address of where he was staying,” and had no phone number. When Turner failed to appear on the first day of trial, Hoydic called Turner’s mother, who informed Hoydic that Turner had not “yet” arrived. Hoydic then called the Wayne, Oakland, Macomb, Washtenaw, and Monroe county jails, as well as a number of area hospitals and morgues, to inquire whether any of those facilities had had any contact with Turner. When those efforts proved fruitless, Hoydic called the police department and jail in Shreveport, Louisiana, but was again unsuccessful in locating Turner.
On cross-examination, Hoydic acknowledged that he had not checked with the United States Postal Service to inquire whether Turner had filed a change of address card, or had made arrangements to have his mail forwarded to an address other than his mother’s. Hoydic testified, however, that during the three days before trial began he had personally conducted surveillance of Turner’s mother’s house on a number of occasions, hoping to catch Turner coming in or going out. Hoydic also “sat on” a party store near that house, which Turner was known to frequent. Hoydic further testified that he was aware that Turner was an informant for a “drug agent in Detroit,” and that this agent was contacted as well, but indicated that he had not seen Turner. Hoydic acknowledged, however, that he did not check to determine whether Turner was registered as an informant with any federal agencies, nor did he check the federal prisons. Hoydic did, however, check Turner’s name on the Law Enforcement Information Network, without any success.
In light of this testimony, which was not contested, we do not conclude that the trial court abused its discretion in determining that due diligence was shown and that, therefore, a missing witness instruction was not warranted. Cummings, supra at 585 (due diligence is the attempt to do everything reasonable, not everything possible, to obtain the presence of a witness); Snider, supra.
We affirm.
Although, at the close of jury selection, defense counsel raised a general objection to the composition of the jury, he did not argue that MCR 2.511(D)(11) had been improperly applied by the trial court.
See Lupro v State, 603 P2d 468, 479-480 (Alas, 1979) (rule of criminal procedure providing a challenge for cause on the ground that “the person is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or been accused by him in a criminal prosecution,” did not preclude the state prosecuting attorney from challenging three potential jurors who had previously been charged with crimes; “the state was a party to the criminal proceedings”).
We recognize that the authorities on which defendant relied in assigning error to this result concern the “systematic exclusion” of minorities from selection into the broader jury array, rather than the panel itself. See, e.g., Duren v Missouri, 439 US 357; 99 S Ct 664; 58 L Ed 2d 579 (1979); see also People v Hubbard (After Remand), 217 Mich App 459, 472-473; 552 NW2d 493 (1996). However, assuming without deciding that the law pertaining to selection of the jury array is equally applicable to selection of the jury panel, for the reasons stated below we find no basis to conclude that application of MCR 2.511(D)(11) resulted in such an exclusion here.
In support of this argument, defendant has presented this Court with documentation regarding the incidence of arrest in Oakland County. However, these documents are not properly before this Court as they were not presented to the trial court and are, therefore, not part of the record on appeal. MCR 7.210(A)(1); see also People v Williams, 241 Mich App 519, 524 n 1; 616 NW2d 710 (2000) (a party may not enlarge the record on appeal). In any event, arrest statistics are somewhat irrelevant; the challenges at issue here, consistent with MCR 2.511(D)(11), pertained to prospective jurors who had been not only arrested but also charged, i.e., “accused by the [state] in a criminal prosecution.” Moreover, even assum ing that a disproportionate number of African-Americans are the subject of criminal prosecutions in Oakland County, we question whether, given the purpose discussed above for excluding a prospective juror under MCR 2.511(D)(11), a prohibited “systematic exclusion” can be shown. See People v Smith, 463 Mich 199, 203-205; 615 NW2d 1 (2000) (determination whether a systematic exclusion of a distinctive group has been shown depends, in part, on whether the representation of that group in the jury pool is “fair and reasonable”).
MCR 2.511(D)(2) and (4) respectively provide that it is grounds for a challenge for cause that a person “has been convicted of a felony,” or “shows a state of mind that will prevent the person from rendering a just verdict.”
For the reasons stated, this case does not present a good record on which to consider defendant’s Sixth Amendment argument regarding MCR 2.511(D)(11). That argument might have merit in a different case.
Contrary to the argument advanced by the prosecution on appeal, such instruction remains a viable option in cases where, as here, the prosecution fails to produce a witness endorsed and not otherwise properly excused. See People v Perez, 469 Mich 415, 418-421; 670 NW2d 655 (2003). | [
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The Court orders that a special panel shall be convened pursuant to MCR 7.215(J) to resolve the conflict between this case and People v Matelic, 249 Mich App 1; 641 NW2d 252 (2001).
The Court further orders that the opinion in this case released on February 24, 2004, is vacated. MCR 7.215(J)(5).
The appellant may file a supplemental brief within 21 days of the Clerk’s certification of this order. The appellee may file a supplemental brief within 21 days of service of the appellant’s brief. Nine copies must be filed with the Clerk of the Court. | [
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R. B. Martin, J.
Retired policemen and retired firemen of the City of Detroit brought separate actions to require their retirement systems to include fringe benefits paid by the city to its present employees in the determination of the pensions the retirees now recieve. After a careful perusal of the evidence the circuit court ordered the following fringe benefits to be included in the computation of pensions:
"(a) Longevity pay
"(b) Holiday pay and vacation pay
"(c) Leave time
"(d) Overtime
"(e) Shift differential
"(f) Cost of living adjustment
"(g) Food
"(h) Hospitalization and medical and dental insurance, but not if already paid through the medical plan of the Defendant on behalf of any pensioner.”
The court ordered that the following fringe benefits should not be included in the computation:
"(a) Optical care
"(b) Excuse time
"(c) Personal leave days
"(d) Recall pay
"(e) Sick leave
"(f) Bonus vacation days
"(g) Life insurance
"(h) Death benefit
"(i) Funeral leave days
"(j) Emergency days
"(k) Or any other fringe benefits not enumerated herein.”
It further held that the plaintiffs’ claim for inclusion of accrued overtime, accrued vacation, and accrued sick leave days should not be included in determining plaintiffs’ pension payments. It ordered the determination of pension rights to be made retroactive to six years before the commencement of the respective lawsuits.
Plaintiffs appeal from the exclusion of those items excluded from the computation. The defendants appeal from the inclusion of any fringe benefits whatsoever. The parties can agree on many facts but disagree on the legal conclusions to be drawn therefrom.
The retirees are of two classes. The members of one group retired before July 1, 1941, and are covered by City Charter 1935, Title IV, Chapter XXI, Section 23. The members of the other group retired after July 1, 1941, and are governed by the amended charter provisions Title IX, Chapter VII, Article 2, Sections 14 et seq.
The pertinent provision of Title IV provides:
"Any member who so retires shall be paid at the rate of one-half of the pay of the rank in which such member was serving at the time of retirement, and in the event of change at any time thereafter in said rate of pay, then at the rate of one-half the pay for said rank so changed.”
It is clear the key language here is "rate of one-half the pay”. What does it mean? Does it include the fringe benefits stated by the trial judge?
The pertinent part of Title IX provides for a pension based on the average final compensation. That would mean the annual rate of earnable compensation at the time of the member’s termination from employment. Earnable compensation would mean the compensation as fixed by the city budget for the rank, grade or position of the member. There was the normal escalator clause also. For the group governed by these provisions the key language, of course, is "average final compensation” and "earnable compensation”. What does this language mean? Does it include the fringe benefits stated by the trial court?
Historically the retirement program was commenced in years gone by before there were such things as fringe benefits. Over the years fringe benefits were added, and in increasing numbers after public employees could be and were unionized. Fringe benefits were commenced by at least 1935. The defendants have constantly excluded the value of fringe benefits in calculating benefits under the pension system and in calculating deductions from wages for the benefit of the pension system. Collective bargaining and arbitration have not produced definitions for the words "rate of pay” or "compensation”.
Are the plaintiffs foreclosed from suing because demands were made for the inclusion of fringe benefits during collective bargaining but no provisions were agreed upon?
We rule they are not. As retirees, the plaintiffs were not represented directly during the collective bargaining sessions. The union did attempt to get some language straightened around, but no bargained contract spells out the definition of "rate of pay” or "compensation” as it applies to pensions. Courts certainly should be an avenue for the plaintiffs to seek redress of their present complaint.
Should "pay” and "compensation” as used in the charter include the costs of fringe benefits? Here we are engulfed with a deluge of citations, none of which are exactly on all fours with our case.
The charter does not specifically include or exclude any fringe benefits by definition. The dictionaries really do not help us because Mr. Webster was not dreaming of anything as esoteric as hospital insurance or shift differential when he defined these words. Although the Supreme Court was dealing with constitutional questions when it decided Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), we feel the standard for construing the language of the charter here should be the same.
"The primary rule is the rule of 'common understanding’ described by Justice Cooley:
" 'A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. ’ ” (Emphasis in original.)
What would reasonable minds, the great mass of the people, believe was meant by "pay” and "compensation” when considering pension rights?
Although our courts are not the great mass of people, they often reflect the general public’s conception of what is just, fair, and right. What have our courts said?
In our case the defendant had excluded fringe benefits when considering pension rights since fringe benefits first came into existence. There were certainly a number of years where no legal or collective bargaining challenge was made to that concept. This should weigh heavily with this Court. Magreta v Ambassador Steel Co, 380 Mich 513; 158 NW2d 743 (1968). However, we judges, who because of overwork or other causes may predecease our spouses, are pleased with Murphy v State of Michigan, 418 Mich 341, 348; 343 NW2d 177 (1984), wherein the Court said:
"The principle that a long-standing interpretation of a statute by the agency which administers it is entitled to great weight does not control when the interpretation is clearly wrong. Schuhknecht v State Plumbing Board, 277 Mich 183, 186-187; 269 NW 136 (1936).”
Banish v City of Hamtramck, 9 Mich App 381; 157 NW2d 445 (1968), has been cited and argued at great lengths by counsel on each side. We believe it is a case involving a particular circumstance and is not comparable to ours. There the retirees were beneficiaries of an escalator clause giving them pensions equal to one-half of the rate of pay being paid employees of their rank. In 1959-60 Hamtramck fell on hard financial times. When the pay for firemen and policemen was increased, it was specifically provided:
" 'that the basic pay of the Class B employees [the plaintiffs were in this group] for all intents and purposes shall be the same as was prevailing in the 1958-1959 fiscal year and that any amounts paid over and above such basic pay shall be construed as payments made only while in active service * * * and not constituting part of any salary upon which pension payments are to be computed and paid in the future. ’ ” (Emphasis in original.) 9 Mich App 385.
The pay raise was called "in service pay” and in later years the "hazard risk pay” was created solely to allow the city to increase the pay of employees without also increasing the cost of the retirees’ pensions. We note that deductions were made for city and federal income taxes for in service and hazard risk, longevity and holiday pay.
Judge, now Justice, Levin rightfully found the new classifications of pay were created solely to protect the city’s exchequer at the expense of the retirees. He did see the uniform allowance as simple reimbursement for out-of-pocket expenses and, therefore, not compensation. He allowed the new classifications of pay to be considered a portion of the compensation upon which the retirees’ pensions were based.
There is absolutely nothing in our case that even hints that the City of Detroit created and paid any fringe benefits for the sole purpose of depriving retirees of what was justly theirs under the city charter pension provisions. The only part of Banish that is controlling in this case is the ruling on uniform allowances.
An Ohio court ruled that the fringe benefits of medical and hospital insurance premiums being paid were as valuable a perquisite of office as a weekly paycheck and were, therefore, part of "compensation” even if not a part of "salary”. State ex rel Parsons v Ferguson, 46 Ohio St 2d 389; 348 NE2d 692 (1976). In that case a prose cutor whose compensation could not be changed during his term of office had been given hospital and medical insurance coverage and then had this coverage removed during that term of office. The discontinuance was permitted on other grounds but the court did find that it normally was part of his compensation protected by the constitution.
In Kane v City of Flint, 342 Mich 74; 69 NW2d 156 (1955), policemen and firemen sought equal pay for their classifications. They claimed they were being underpaid. The Court held that payments into their pension funds, the life insurance premium payments, and their allowance for uniforms were all compensation so that plaintiffs could not complain. The plaintiffs there, contrary to the position of the present plaintiffs, claimed that these fringe benefits were not a portion of their compensation.
We should take a long, hard look at Hay v City of Highland Park, 134 Mich App 624; 351 NW2d 622 (1984). There the city had an escalator clause in its pension system and had pensions based on "final average salary”. "Final average salary” was defined in the city charter as the " 'average of the compensations, as fixed in the city budget for the fiscal year * * *’ ”. "Compensation” meant the "salary paid a member by the city for service rendered by him as a policeman or fireman”. The designation of compensation then went on to say, "nor shall it include remuneration for overtime, clothing and equipment, and travel expense”. 134 Mich App 628.
The plaintiffs sought to include holiday pay, callback pay, terminal leave pay, shift differential, and longevity pay, payment of hospital, eye care, and dental insurance in the computation of their "salary”.
The Court cited numerous Michigan, Wisconsin, Ohio, Indiana and Illinois cases where it was held that "salary” didn’t include fringe benefits. The Court allowed only shift differential and longevity pay to be included in the computation of compensation and salary.
The charter speaks of compensation as fixed by the city budget. We would note that in the three annual budgets submitted to the trial court, the city in all its summaries divided the budget figures into "salary and wages” and "fringe benefits” which, added together, became "total cost of personnel services”. This is some indication that the city budget process differentiated between compensation and fringe benefits.
With these cases for our background, and in remembering that we should look for what reasonable minds would find the words to actually mean in the context in which we are dealing, we peruse the trial court’s opinion to see if there is obvious error necessitating reversal.
We have no difficulty with longevity pay, holiday pay, and vacation pay, leave time, overtime, shift differential and cost of living allowance. They are normal payments made regularly in the course of the plaintiffs’ work for regular work done. Food allowance is reimbursement for out-of-pocket expense and would normally not be considered pay or compensation. Certainly no one thought Uncle Sam should have his cut of this as a part of the plaintiffs’ income.
Hospitalization, medical and dental insurance should not be included. We feel that in common parlance these items are considered true "fringe benefits” and not a part of pay or compensation. Again, they are the types of benefits most believe should not be subject to income taxation as a portion of earned income.
Optical care, life insurance, death benefits, and funeral leave days correspond to hospital and medical insurance. Personal leave days are synonymous to holiday and vacation pay and should be included in the computation. Excuse time, recall pay, sick leave, bonus vacation days and emergency leave days are similar to funeral leave days. They really are bonus benefits for unusual situations and are not normal remuneration for normal work. We feel the common understanding would be that they were something extra and not to be considered as pay or compensation for a basis for a pension system.
When we get to the question of what to do with accrued overtime, vacation, and sick leave pay, we have precedent to guide us. Stover v Retirement Bd of the City of St Clair Shores Firemen & Police Pension System, 78 Mich App 409, 412-413; 260 NW2d 112 (1977). There a retired policeman sued to have his pension partially based upon payments for accumulated and unused sick days and accumulated and unused vacation days paid for at his retirement. The Court very quickly denied this.
"Annual compensation received refers to that pay which is received by a member each year for work done that year. Annual compensation received includes base salary, longevity pay, shift differential pay, holiday pay and overtime pay because those payments are made and received annually for work done that year. Annual compensation received does not include unused sick or vacation payments because those payments are not made regularly during a worker’s tenure with the city. Those payments are properly viewed as a retirement bonus received at retirement and not as annual compensation received during a certain number of years immediately preceding the member’s retirement.” (Emphasis in original.)
In Michigan State Police Command Officers’ Ass’n, Inc v Dep’t of Public Safety, 80 Mich App 278; 263 NW2d 47 (1977), the Court rejected a retired policeman’s contention that his pension should have in its computation the accumulated unused sick pay he received at retirement. The key word in this pension plan was "salary”. The Court thought salary was a periodic allowance made for regular work done. Sick leave was not payment for work at all. The Court also relied on the long-standing administrative practice excluding such payments in pension compensation citing Magreta v Ambassador Steel, supra.
In Lansing Firefighters Ass’n v Bd of Trustees of the City of Lansing Policemen’s & Firemen’s Local 421 Retirement System, 90 Mich App 441; 282 NW2d 346 (1979), the pensions were based on "final average compensation”. The retiree wanted his lump-sum payment for accrued unused vacation to be included in the computation. The Court denied this request, citing both Stover and Michigan State Police, supra.
On the issue of accrued overtime, vacation, and sick leave pay we affirm based on the reasoning of the aforesaid court opinions. In addition, it should be noted that basically the charter tried to base pensions on what the employee was earning at the time of retirement. Lump-sum payments for accumulated fringe benefits are hardly what we consider current compensation for current work.
We conclude with the observation that these lawsuits were actions for mandamus. A plaintiff must have a clear legal right to the performance of the specific duty he seeks to compel by the issuance of such a writ against a public official. Golonka v Dep’t of Ed, 106 Mich App 28; 308 NW2d 425 (1981). We should not reverse a trial court’s decision in a mandamus case unless it is clear that the court abused its discretion. Golonka, supra; South Looking Glass Drainage Dist Bd v Grand Trunk Western R Co, 357 Mich 215; 98 NW2d 543 (1959).
In reviewing the cases which throw some light on what the common, ordinary, everyday meaning of "pay” and "compensation” is when discussing pension bases, we can see no abuse of discretion in including longevity pay, holiday pay, vacation pay, leave time, overtime, shift differential, and cost of living adjustments. In the charter-provided basis of pension calculations, we would find no abuse of discretion in not allowing optical care, excuse time, recall pay, sick leave, bonus vacation days, life insurance, death benefits, funeral leave days, and emergency days.
We do find an abuse of discretion in allowing food allowances and hospitalization and medical and dental insurance as a portion of the basis of computation of pensions. We find an abuse of discretion for disallowing personal leave days as a portion of that basis.
The matter will be remanded to the trial court for issuance of an order in compliance with this opinion. | [
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Per Curiam.
Plaintiff, Zolton Ferency, appeals as of right from an order of the Ingham County Circuit Court dated March 9, 1984, which dismissed his complaint against the Secretary of State and the Director of the State Elections Division.
On February 6, 1984, plaintiff filed a complaint against defendants seeking a declaratory judgment and certain affirmative relief regarding the then up-coming Democratic Party state caucuses. Plaintiff claims to have exhausted his administrative remedies prior to filing his complaint by requesting similar relief from defendant Secretary of State. In particular, plaintiff requested that defendants perform certain statutory duties regarding the selection of delegates for the Democratic national convention. He prayed for the following relief:
"I. That this Court adjudge and declare that the establishment and conduct of the presidential preference caucuses presently scheduled for March 17, 1984, by the DSCC, constitutes public business and/or state action and must provide for guarantees which will protect the constitutional and legal rights of those eligible to participate.
"II. That this Court adjudge and declare that notice of the date, time and place of said caucuses be given to all Democratic voters regardless of their ability to pay party membership dues.
"III. That this Court adjudge and declare that requiring caucus participants to disclose or expose openly their registrations of presidential preference or other choice is violative of constitutional and/or statutory provisions.
"IV. That this Court adjudge and declare that the Defendants herein shall forthwith prepare and administer such other rules, regulations and instructions for the conduct of elections, caucuses or other selection procedures for national convention delegates and alter nates so as to insure the protection of the constitutional and legal rights of all persons eligible to participate.
"V. That this Court order such other additional and further relief as may seem necessary, just and equitable to the Court.”
On March 17, 1984, the Democratic Party held caucuses throughout Michigan. According to plaintiffs affidavit in support of his motion to expedite this appeal, which was granted, Walter Mondale received 49% of the caucus votes, Gary Hart received 31% of the votes, and Jesse Jackson received 16%. Thereafter, the Michigan Democratic State Central Committee allocated delegates to the national convention according to DSCC rules, as follows: Mondale received 78 delegates (57%), Hart received 49 delegates (36%), and Jackson received 9 delegates (7%). Plaintiffs affidavit also states that he is an official of the Jackson for President Committee and that he believes thousands of Jackson voters were denied equal protection under the law due to the DSCC’s delegate allocation procedures. Plaintiffs appellate brief makes no mention of his affiliation with the Jackson campaign and instead argues that the rights of the electorate at large have been violated.
On the filing of the complaint, the trial court issued an order to show cause. In response, defendants filed a motion to dismiss. Defendants argued that since plaintiffs complaint was in reality a request for a writ of mandamus, it should be dismissed for failure to state a cause of action under GCR 1963, 117.2(1). The circuit court viewed the complaint as a request for mandamus against state officials. It declined to grant the requested relief because plaintiff failed to show that defendants had a clear legal duty to act in the manner requested.
On appeal, plaintiff claims that the trial court erred by treating plaintiff’s complaint as a mandamus action and dismissing it for failure to state a claim. For the reasons to be indicated, we agree with the trial court and affirm.
Defendants initially argue that this appeal is moot, since the delegates have already been selected. Generally, a case is not moot if the issues sought to be litigated are capable of repetition, yet evade review. At this point in time, it is extremely difficult, if not impossible, to determine whether plaintiff’s contentions are moot. Assuming that the rules regarding delegate selection and allocation remain in place and viable, the issue is capable of repetition and, therefore, is not moot.
Defendants also argue that plaintiff, Zolton Fer-ency, lacks standing to bring this action. A similar argument was made in Ferency v Austin, (Fer-ency II) where the Federal Sixth Circuit Court of Appeals, in affirming the denial of relief to plaintiff, did not rest its decision on the standing issue. Since we deny relief here on a different basis, we do not find it necessary to decide whether plaintiff has standing to launch his attack on the procedures employed by the Democratic Party in selecting delegates to the national convention.
The question remains whether the trial court properly treated plaintiff’s complaint as a request for mandamus. The general rules regarding the issuance of a writ of mandamus were summarized in Coates v Attorney General as follows:
"This Court has mandamus jurisdiction over state officials under GCR 1963, 714.1(1). An action against a state officer is proper in the Court of Appeals or the circuit court at the option of the party commencing the action. MCL 600.4401; MSA 27A.4401; Schweitzer v Board of Forensic Polygraph Examiners, 77 Mich App 749, 753, fn 5; 259 NW2d 362 (1977), lv den 402 Mich 837 (1977). When there is a plain, direct and adequate alternative remedy, courts will not permit the use of a writ of mandamus. Coffin v Detroit Bd of Ed, 114 Mich 342; 72 NW 156 (1897). Mandamus is inappropriate where there is another adequate remedy in law or in equity. Clarke v Hill, 132 Mich 434; 93 NW 1044 (1903). See, also, Oakland County Bd of Road Comm’rs v State Highway Comm, 79 Mich App 505; 261 NW2d 329 (1977), lv den 402 Mich 907 (1978), and the cases cited therein.”
However, although the existence of other remedies may preclude issuance of a writ of mandamus, the availability of other remedies does not preclude declaratory relief. In Lord v Genesee Circuit Judge, a voter requested a declaratory judgment against the Secretary of State, which would have forced the Secretary to accept nominations for a circuit court vacancy. In reviewing the circuit court’s refusal to render declaratory relief, this Court stated:
"Admittedly, plaintiff had other remedies than declaratory relief and could have sought mandamus and quo warranto relief in the Court of Appeals. The availability of other remedies does not preclude declaratory relief, however. GCR 1963, 521.1 and 521.3. Plaintiff is entitled to seek declaratory relief in spite of the availability of relief by way of quo warranto and mandamus. The circuit court had jurisdiction to grant the declaratory relief prayed for.”
However, the Lord Court ignored the fact that the form of the circuit court’s judgment was improper and concurred with its finding that the plaintiff failed to establish a basis for declaratory relief.
Although somewhat ambiguously, plaintiff herein apparently requested declaratory relief. However, the requested relief clearly encompassed a mandate to state officials to perform their duties. Because of this, the circuit court was free to inquire into the true nature of the relief sought. This blurring of the distinction between mandamus and declaratory relief is also apparent in Coates, supra. There, this Court analyzed a mandamus action regardless of the fact that the complaint also requested declaratory relief. Coates impliedly supports the argument that this Court should look at the true nature of the relief requested.
Plaintiff argues that he had a clear right to petition the circuit court for declaratory relief after he exhausted his administrative remedies. In Human Rights Party v Michigan Corrections Comm, plaintiff (represented by Ferency) prayed for a declaratory ruling that prison overcrowding violated prisoners’ rights. The complaint also requested an injunction to force corrections department officials to enforce statutes to alleviate the overcrowding. Human Rights Party is similar to the instant appeal. Although declaratory relief was requested in both cases, the type of relief requested would have forced the court to direct state officials to perform statutorily mandated duties. However, the Human Rights Party Court declined to determine whether such relief was proper. It only determined that the circuit court had jurisdiction to entertain such an action. Human Rights Party does not expressly prevent the circuit court from reviewing the true nature of the relief sought. Apparently, the circuit court in Human Rights Party did not treat the complaint as requesting mandamus. Therefore, this Court was not faced with the same issue as is presented in the case at bar.
In the instant case, plaintiff failed to show that defendants had a clear legal duty to regulate the delegate selection process. Plaintiff failed to show that the Michigan election law requires defendants to notify all democratic voters of the caucus dates. Furthermore, even after viewing plaintiffs complaint in the most favorable light, it appears that he failed to establish that defendants had any duty to perform the acts requested.
MCL 168.618; MSA 6.1618 reads:
"The allocation of all delegates and alternates to a national convention sháll be made by the state central committee of each party in accordance with the provisions of this act and shall be certified to the secretary of state. A minimum of 2/3 of the state’s delegates shall be allocated to congressional districts and at least 2 delegates shall be allocated to each district. All delegates shall be registered electors of this state. Delegates elected from congressional districts shall be registered electors of those districts. All national convention delegates shall be chosen according to procedures and any other qualifications, as long as they are not inconsistent with those in this act, as may be established by the state central committee of that political party. The procedures and qualifications may include, but are not necessarily limited to guarantees that discrimination on the basis of race, creed, color, sex, age, national origin, or economic status does not occur.”
This section indicates that the DSCC has substantial power to prescribe rules regarding the delegate selection process. It also evidences the Legislature’s intent to defer to the intra-party decision-making process. In short, questions regarding the process of delegate selection and allocation are best resolved within the political party itself. Plaintiff has not persuaded this Court that it should interfere with such process.
Plaintiff next argues that the trial court erred in holding that the March caucuses were not "elections” under the definition of "election” found in MCL 168.2; MSA 6.1002, which reads:
"The term 'election’, as used in this act, shall mean and be held to include any election and primary election, at which the electors of the state or of any subdivision thereof choose or nominate by ballot public officials or decide any public question lawfully submitted to them. The term 'election’ is not synonymous with the term 'civil appointment’ as such term appears in section 9 of article 4 of the state constitution.”
Plaintiff advanced an identical argument in Fer-ency v Austin, (Ferency I), in the federal district court. In that case, which, as previously discussed, was affirmed by the Sixth Circuit, Ferency sought to compel the Michigan Secretary of State to force the Democratic Party to participate in the 1980 Michigan Presidential primary and to elect a national candidate in accordance with the Michigan election law. The facts of Ferency I are somewhat different from those in the instant appeal. In 1980, Ferency attacked the constitutionality of the Mich igan election law. Today, he seeks enforcement by state officials of those same laws. We believe the court’s decision in Ferency I controls.
Plaintiff now argues that Ferency I is inapplicable because the party rules have changed since 1980. He states that the 1980 caucuses were limited to elected precinct delegates and party members. The March, 1984, caucuses were open to any Michigan voter, provided that he or she signed a statement confiming that the person registering was a Democrat. Plaintiff contends that since participation in the Michigan caucuses was the only way a voter could participate in the nomination of a candidate, the circuit court erred in holding that the caucuses were not "elections” under the statute.
This Court believes that the principles enunciated in Ferency I are as applicable today as they were in 1980. The Legislature was presumably aware of this problem after the federal district court’s opinion was published. Although four years have passed, the word "caucus” remains glaringly absent from the election law definitions. If the Democratic voters of this state did not choose to participate in the caucuses, that was their prerogative. In fact, their ability to participate in the nominating process has been expanded by the new party rules. Therefore, plaintiff’s argument that some "fundamental exercise of American democracy has been denied” is unpersuasive. Therefore, we embrace the reasoning found in Ferency I and hold that the Democratic caucuses do not fall within the definition of "election” found in MCL 168.2; MSA 6.1002._
Plaintiffs final argument is a "state action” argument identical to the one advanced in Ferency I. On appeal, the Sixth Circuit neither affirmed nor rejected this aspect of the holding in Ferency I. The Sixth Circuit declined to decide the issue because the plaintiff failed to show a violation of his federal constitutional rights. The exclusion of some voters from the delegate selection process does not constitute a denial of federal constitutional rights. The Sixth Circuit’s opinion, although not expressly affirming the "state action” holding of the district court in Ferency I, certainly leans in that direction. We, therefore, decline to find that the delegate selection process constitutes "state action” as argued by plaintiff.
Affirmed.
See Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), reh den 410 US 959; 93 S Ct 1409; 35 L Ed 2d 694 (1973); Swinehart v Secretary of State, 27 Mich App 318, 320; 183 NW2d 397 (1970); Grano v Ortisi, 86 Mich App 482, 487; 272 NW2d 693 (1978).
See Ferency v Austin, 666 F2d 1023 (CA 6, 1981) [Ferency II].
Id.
120 Mich App 816, 820-821; 328 NW2d 113 (1982), clarified in part, Coates v Attorney General, 126 Mich App 370; 337 NW2d 343 (1983).
51 Mich App 10; 214 NW2d 321 (1973).
Id., p 17.
Id., p 19.
Minarik v State Highway Comm’r, 336 Mich 209; 57 NW2d 501 (1953).
Coates v Attorney General, supra, p 823.
76 Mich App 204; 256 NW2d 439 (1977).
Id., p 207.
493 F Supp 683 (WD Mich, 1980) [Ferency I].
See affidavit of Richard Wiener, Chairperson of the Michigan Democratic Party. See also, the 1984 Michigan Democratic Party Delegate Selection and Affirmative Action Plan.
See 493 F Supp 683, 698.
666 F2d 1023, 1028.
Cousins v Wigoda, 419 US 477; 95 S Ct 541; 42 L Ed 2d 595 (1975); Democratic Party of the United States v Wisconsin ex rel LaFollette 450 US 107; 101 S Ct 1010; 67 L Ed 2d 82 (1981). | [
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] |
Per Curiam.
Plaintiffs were administrative employees of defendant school district. Wessely was a principal, Zuraw was director of special education, and Acker was a special education supervisor. Plaintiffs were laid off, and sued, contending that defendant’s Board of Education did not comply with the procedural steps spelled out in MCL 380.132; MSA 15.4132 prior to termination of their employment. The trial court denied plaintiffs’ motion for summary judgment and awarded summary judgment to defendant. Plaintiffs appeal as of right. We affirm the trial court’s finding that the procedures specified in this statute were not applicable to plaintiffs’ situation.
The statute in question, which is part of the School Code of 1976, MCL 380.1 et seq.; MSA 15.4001 et seq., governs employment contracts of school administrators:
"(2) The board may employ assistant superintendents, principals, assistant principals, guidance directors, and other administrators who do not assume tenure in position, for terms, not to exceed 3 years, fixed by the board and shall define their duties. The employment shall be under written contract. Notification of nonrenewal of contract shall be given in writing at least 60 days before the contract termination date or the contract is renewed for an additional 1-year period.
"(3) A notification of nonrenewal of contract of a person described in this section may be given only for a reason that is not arbitrary or capricious. The board shall not issue a notice of nonrenewal under this section unless the affected person has been provided with not less than 30 days’ advance notice that the board is considering the nonrenewal together with a written statement of the reasons the board is considering the nonrenewal. After the issuance of the written statement but before the nonrenewal statement is issued the affected person shall be given the opportunity to meet with not less than a majority of the board to discuss the reasons stated in the written statement. The meeting shall be open to the public or a closed session as the affected person elects under [MCL 15.268; MSA 4.1800(18)]. The failure to provide for a meeting with the board or the finding of a court that the reason for nonrenewal is arbitrary or capricious shall result in the renewal of the affected person’s contract for an additional 1-year period. This subsection does not apply to the nonrenewal of the contract of a superintendent of schools.”
The procedural safeguards provided in both paragraphs cited above come into play when there is a "nonrenewal of contract”. The issue in this case is whether plaintiffs’ lay-offs could be considered a nonrenewal of contract, requiring defendant to follow these procedures.
Plaintiffs’ employment was governed by the terms of a collective bargaining agreement with defendant’s board of education, which provided that the board could lay off an administrator for financial reasons, provided that notification of intent to lay off be given an administrator not later than October 15 for a lay-off effective the following June 30.
At a June 28, 1982, meeting of the board, official action was taken to extend plaintiffs’ employment for two years, through June 30, 1984. However, at an October 11, 1982, board meeting, the board again took official action, laying off plaintiffs effective June 30, 1983. The board sent plaintiffs letters dated October 12, 1982, informing them of its decision, citing financial reasons caused by declining enrollment, declining state pay, and reorganization of the special education consortium.
Plaintiffs were given no notice that the board was contemplating such action. If plaintiffs are correct in their assertion that the statute applies to situations such as theirs, the board would have been required to have given them advance notice that it was considering laying them off, and plaintiffs would have been entitled to a meeting with the board to discuss the reasons for it.
Plaintiffs argue that the statute should be construed to apply not only to those situations where an administrator’s contract is not renewed upon expiration of the contract, but also to situations such as theirs, where employment is terminated in the middle of the term of the contract by lay-off. Plaintiffs support their claim by pointing to a provision in their collective bargaining agreement which states that their two-year contract is renewable each year. Plaintiffs argue that the board was required to renew their contract annually and that the fact that the board took no action to renew their contract in 1983 renders their lay-offs nonrenewals.
A statute that is plain and unambiguous is not open to construction by a court. City of Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d 804 (1959); Perry v Sturdevant Mfg Co, 124 Mich App 11; 333 NW2d 366 (1983). We find nothing ambiguous in the statute before us that would require us to construe it or analyze the legislative intent behind it. It clearly applies to nonrenewals of contracts. There is no reason to extend it to layoffs as well. Plaintiffs argue that administrators need procedural protections from lay-offs as well as from nonrenewals of contracts. That argument might well be taken up with the Legislature, or at the next collective bargaining talks. But it does not persuade us to expand application of this statute to accommodate plaintiffs’ situation.
As the trial judge noted, nonrenewal of a contract terminates the legal relationship between the contracting parties, whereas a lay-off does not necessarily mean cessation of the employment contract. This case provides a good example of the distinction. Under the collective bargaining agreement, the board is required to make every effort to provide a classroom teaching position for laid-off administrators. If the board is unable to procure a position for any laid-off administrator, it must compensate the administrator with a lump sum payment of $2,800.
This Court rejected an argument similar to plaintiffs’ which was made by teachers in Chester v Harper Woods School Dist, 87 Mich App 235; 273 NW2d 916 (1978), lv den 406 Mich 942 (1979). The teacher tenure act affords various procedural protections for teachers who are discharged or demoted. MCL 38.101; MSA 15.2001. This Court ruled, however, that these protections are not extended to teachers laid off for economic necessity. The Chester Court pointed out that statutory provisions entitling teachers to notice of the charges against them and a hearing before the school board would be useless gestures in the context of a lay-off for economic necessity, since neither the teachers’ conduct nor performance was being called into question. Id., p 244.
Defendant fully complied with the procedural protections provided in the parties’ collective bar gaining agreement. Plaintiffs have made no allegations that defendant laid them off as a subterfuge for not renewing the contract, so as to intentionally deny them the procedural protections the statute offers for nonrenewal of contract. Cf., Chester, supra.
Nor does plaintiffs’ "annual,renewal” argument persuade us to adopt their reasoning. According to the Master Agreement, the two-year contract is automatically renewed annually, unless the board gives written notice 90 days prior to its renewal date. Thus, absent notice of nonrenewal, the contract continues. The contract could be renewed, even though plaintiffs were laid off. Plaintiffs’ contract was not even due to expire until June 30, 1984. Unless they received notice April 1, 1984, of nonrenewal, they still cannot come under the protective umbrella of MCL 380.132; MSA 15.4132.
Affirmed. | [
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Per Curiam.
Defendant entered a plea of nolo contendere to a charge of fourth-degree criminal sexual conduct, MCL 750.520e(l)(a); MSA 28.788(5)(l)(a). The plea was accepted by the trial court and defendant was sentenced to one year in the county jail on September 6, 1983. Defendant subsequently filed a delayed motion for a new trial and bond pending appeal. The trial court denied the motion for a new trial but granted defendant bond pending appeal. Defendant now appeals to this Court as of right.
Defendant was arraigned on June 6, 1983. On July 1, 1983, defendant was involved in a motorcycle accident. He suffered injuries, including head injuries, which resulted in "some amnesia * * * that was very selective and appeared to follow a pattern where the patient did not remember things that may have been somewhat threatening to him”. On July 19, 1983, the plea of nolo contendere was taken. The trial court asked the defendant if he was entering the plea because he had no recall of the events. Defendant answered affirmatively. The trial court asked if the prosecutor and defense counsel were satisfied with the plea-taking process. They expressed their satisfaction on the record. The plea was taken under advisement in order to give the trial court an opportunity to examine the exhibit which supplied the factual basis for the plea. The exhibit had been admitted by the stipulation of defense counsel. The court later informed the prosecutor and defendant that the exhibit did not supply a sufficient factual basis to support a plea. The court found that the element of coercion was not shown. In response, the prosecutor and defendant submitted a supplemental exhibit to support the plea. This exhibit’s admission was accompanied by a stipulation to admit it signed by the prosecutor and defense counsel. The plea of nolo contendere was subsequently accepted by the trial court and defendant was sentenced to one year in jail.
Defendant now appeals to this Court claiming that the trial court erred in refusing to allow him to withdraw his plea after the sentence was imposed. Defendant claims that his amnesia prevented him from making a defense and that somehow this prevented him from making a knowing and voluntary plea. He claims that the court abused its discretion in refusing to allow him to set aside his plea and that the trial court failed to adequately state why the nolo contendere plea was appropriate.
We find defendant’s position lacks merit. While the plea of nolo contendere has come under some criticism, People v Gonzales, 70 Mich App 319; 245 NW2d 734 (1976), lv den 402 Mich 815 (1977), it has been held to be a proper plea in some circumstances. Guilty Plea Cases, 395 Mich 96, 134; 235 NW2d 132 (1975). One such circumstance is where the defendant is unable to recollect the facts of the case. Guilty Plea Cases, supra. A nolo contendere plea allows a defendant to avoid making an admission. People v Sickmiller, 87 Mich App 332; 274 NW2d 57 (1978). In People v Kenneth Johnson, 122 Mich App 26; 329 NW2d 520 (1982), this Court affirmed a nolo contendere plea where the trial court accepted it because the defendant’s memory was somewhat impaired, making him unable to sufficiently state the facts. This Court reached the same conclusion about another nolo contendere plea in People v Knight, 94 Mich App 526; 288 NW2d 649 (1980). In People v Seaman, 75 Mich App 546, 550; 255 NW2d 680 (1977), this Court stated that a defendant’s inability to remember was a reason which justified taking a plea of nolo contendere. We are satisfied that defendant’s amnesia was a valid reason for allowing a nolo contendere plea.
Defendant also suggests that the trial court failed to state with specificity why a nolo contendere plea was appropriate in this case. Our reply is drawn from Seaman, supra, p 550:
"Just as a judge’s determination that a guilty plea has been freely, understandingly and voluntarily made may be concluded from acceptance of the plea even though the judge makes no separate finding, we can conclude herein that the court accepted this valid reason as justification for this plea of nolo contendere.” (Footnote omitted.)
The record before us makes clear that the nolo contendere plea was appropriate in this case where the defendant could not supply an adequate factual basis for a guilty plea through questioning by the court. Defendant’s amnesia is a special circumstance which justifies acceptance of the nolo contendere plea instead of a guilty plea in this case.
Finally, defendant suggests that the plea should be set aside because he no longer suffers from amnesia and has recovered his memory. He contends he is now able to make a defense and should be allowed to do so at trial. This position was apparently offered to the trial court as part of a motion for a new trial. It appears that defendant is essentially challenging the factual basis of his plea. We note that the record establishes an adequate factual basis as shown by the exhibits admitted by stipulation. Defendant now claims his recovery enables him to establish his innocence through his reacquired memory. The law does not recognize this as a basis for setting aside his plea. By pleading nolo contendere a defendant waives his right to challenge nonjurisdictional defects in the prior proceedings, People v Riley, 88 Mich App 727; 279 NW2d 303 (1979); People v Hill, 86 Mich App 706; 273 NW2d 532 (1978). Furthermore, as noted in Kenneth Johnson, supra, the stipulations were properly used to establish the factual basis for the plea. We are also unable to find from the record before us that defendant’s inability to remember the events surrounding the crime in any way affected his ability to freely, voluntarily, knowingly and intentionally enter into the plea. Defendant’s conviction is therefore affirmed.
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PER Curiam.
Respondents Intermediate Education Association/Michigan Education Association (iea/mea), and Michigan Education Special Services Association (MESSA) appeal from the Michigan Employment Relations Commission (merc) decision finding them in violation of the bargaining obligation of § 10(3)(c) of the public employment relations act (pera), MCL 423.201(3)(c); MSA 17.455(10)(3)(c).
The St. Clair Intermediate School District (charging party) filed a charge with the MERC, alleging that respondents violated the bargaining obligation of the pera when each took part in unilaterally changing the terms of the charging party’s messa health-care coverage found in the parties’ collective bargaining agreement. Without first negotiating with the charging party, respondents increased the initial $1,000,000 lifetime maximum health insurance benefit to, a $2,000,000 coverage cap.
In finding respondents liable, the merc determined that respondents implemented an improper unilateral change in the charging party’s collective bargaining agreement, that the charging party did not waive its right to bargain with respect to the change, and that the MESSA acted as an agent of the MEA when it implemented the change. Respondents were ordered to cease and desist in making unilateral changes affecting the employees of the charging party and to reinstate the $1,000,000 lifetime benefit cap initially afforded to the charging party. We affirm.
i
Respondents first argue that the MERC erred in finding that the MESSA acted as an agent of the mea when it modified the terms of its health insurance policy because there is nothing in the record to suggest that the mea authorized or consented to the MESSA acting on its behalf, that the MESSA acted for the benefit of the MEA, or that the mea exercised “actual control” over MESSA decision making. We disagree.
Our review of administrative agency decisions is limited by the statutory mandate that factual findings be deemed conclusive if supported by competent, material, and substantial evidence on the record considered as a whole and that due deference be given to administrative expertise. MCL 423.216(e); MSA 17.455(16) (e). Substantial evidence is that which a reasonable mind would accept as adequate to support a decision, being more than a mere scintilla, but less than a preponderance of the evidence. In re Payne, 444 Mich 679; 514 NW2d 121 (1994). Likewise, legal rulings of administrative agencies are set aside if they are found to be in violation of the constitution or a statute or affected by a “substantial and material error of law.” MCL 24.306(l)(a), (f); MSA 3.560(206) d)(a), (f).
In Lodge No 141, FOP v Meridian Twp, 90 Mich App 533; 282 NW2d 383 (1979), this Court determined that when applying the PERA to a labor organization or its “agent,” the Legislature intended to employ the law of agency as it had been developed at common law, stating that it is the “right to control,” or the “actual ability to control,” that is fundamental to the existence of an agency relationship. Having reviewed the record, we conclude that there was substantial evidence presented to support the MERC’s finding that the messa acted as an agent of the mea, as defined by common law.
The MESSA is a nonprofit subsidiary corporation created by the mea to act as an agent in administering insurance plans for the mea and its members and to provide health-care benefits to employees in bargaining units represented by local labor organizations affiliated with the mea and to other school district employees. According to the messa’s corporate bylaws, the messa’s board of trustees acts pursuant to a majority vote and is composed of thirteen persons, including the mea president and vice president, and an additional six who are elected “from and by” the mea board. In addition, the mea executive director also serves as the executive secretary (or chief executive officer) of the messa, oversees the internal operations of the messa, and implements the policies adopted by the messa board.
Aside from the physical interlocking of the two entities, the record also provides ample evidence to support the conclusion that it was the intent of the messa to act as a fiduciary for the mea. Evidentiary documents contained statements that it was the messa’s mission and goal to “serve members of the mea” and to “meet the needs of the mea,” that the messa and the MEA members are in “partnership together,” that the messa is “designed to service mea members,” that the “messa is a part of the MEA,” and that the messa is a “membership organization governed by mea members.” Several documents also establish an explicit dual involvement between the MESSA and the mea in negotiating insurance benefits. Accordingly, we find that the record provides competent, material, and substantial evidence of the mea’s ability to control the messa and of both corporations’ intent to establish a fiduciary relationship. Meridian Twp, supra at 541.
n
Respondents next argue that the merc erred in finding the change in messa benefits to be an improper unilateral “mid-term modification” of the collective bargaining agreement between respondents and the charging party, or a “change in working conditions,” because the charging party never initially bargained for specific benefit levels. Furthermore, the modification did not change the fact that the charging party still possessed the insurance plan as bargained for. We disagree.
The pera prohibits a “labor organization or its agent” from refusing to bargain collectively with a public employer over subjects that are classified as “mandatory subjects of collective bargaining.” MCL 423.201(3)(c); MSA 17.455(10)(3)(c); MEA-NEA v St Charles Community Schools, 150 Mich App 763, 768; 389 NW2d 482 (1986). In determining what qualifies as “mandatory subjects of collective bargaining,” this Court has included health insurance benefits among such subjects (St Charles Schools, supra at 768-769), and in Houghton Lake Ed Ass’n v Houghton Lake Bd of Ed, 109 Mich App 1, 6; 310 NW2d 888 (1981), specifically found that a MESSA insurance plan, similar to the one involved in the present case, had a profound effect upon the conditions of employment.
Here, respondents neglected to provide the charging party with notice and an opportunity to bargain before making changes in the existing terms or conditions of employment; therefore, the unilateral increase of benefits was improper. Furthermore, because each MESSA insurance plan is implemented in a uniform fashion from school to school, individual bargaining with regard to specific details contained within the policy is unnecessary and uncommon. Therefore, we conclude that in bargaining for the messa’s Super Care 2 policy, the charging party essentially bargained for its contents and was wrongly denied its opportunity to again negotiate with respondents before respondents’ unilateral change of that policy. St Charles Schools, supra at 768.
nr
Last, respondents argue that because the charging party had failed to demand negotiations, had acquiesced to changes implemented by the MESSA in the past, and had agreed to be bound by a certificate in which the MESSA specifically reserved the right to make unilateral modifications, the MERC erred in finding that the charging party had not waived its right to bargain. We disagree.
In Kent Co Ed Ass’n v Cedar Springs Public Schools, 157 Mich App 59; 403 NW2d 494 (1987), this Court held that before one can be said to have waived the right to bargain over changes made, there must first be “sufficient evidence of a clear, explicit and unmistakable waiver of the right to bargain.” We found no such waiver in the present case.
First, because the messa deemed itself able to make unilateral changes without prior negotiation, because the messa board had already voted on and passed the modification by the time the charging party was notified, and because the messa was unwilling to modify individual policies according to each school district’s preference, a demand to bargain or negotiate by the charging party would have been futile, and thus unnecessary. Local 10, MEA/NEA, Lake Fenton Unit v Lake Fenton Community Schools, 1988 MERC Lab Op 178; 1 MPER ¶ 19054, p 152.
Second, regarding the charging party’s failure to object to prior changes, the record reveals that the charging party’s prior acquiescence was a practice or pattern that existed only because of error or lack of knowledge. We find that such evidence does not support a “clear, explicit, and unmistakable waiver” of the charging party’s right to bargain. Cedar Springs Public Schools, supra at 66.
Third, we find that the charging party did not explicitly agree to be bound by a provision wherein the MESSA reserved the right to make unilateral changes. The charging party agreed only to be bound by the terms of any “certificates issued to messa.” Here, the messa’s reservation of the right to modify its policies is contained in a handbook formulated by the messa itself, rather than being a document “issued to messa” from the insurance underwriter. Once again, we conclude that the record is devoid of any evidence that the charging party unmistakably waived its right to bargain and find that the MERC did not err in finding that no such waiver existed. Id.
Affirmed. Costs to appellee. | [
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Fitzgerald, J.
Defendant was charged with unarmed robbery, MCL 750.530; MSA 28.798. Following a bench trial, he was convicted of larceny in a building, MCL 750.360; MSA 28.592, and was sentenced to a prison term of one to four years. Defendant appeals as of right. We affirm.
On December 12, 1994, Gloria Lane was observed by Kmart employees entering the Kmart store in Dearborn. Shortly thereafter, defendant and Lane were observed approaching the exit door of the store with a shopping cart containing unbagged Kmart merchandise. Employee Keith Calloway approached defendant and Lane immediately outside the Kmart automobile service entrance and requested to review the merchandise sales receipt. Neither defendant nor Lane was able to produce a receipt. Defendant and Lane then continued to proceed out the door.
Kmart employees Alfred Andrade and Paul Kohmescher came to assist Calloway. Defendant brandished a knife, and a struggle ensued. Lane threatened to shoot if the employees did not release defendant. Defendant was eventually restrained, and Lane fled the scene with a chain saw she retrieved from the shopping cart.
On appeal, defendant contends that the Legislature’s enactment of the first-degree retail fraud statute, MCL 750.356c; MSA 28.588(3), precludes his conviction of larceny in a building. Under the facts of this case, we disagree.
The first-degree retail fraud statute provides:
(1) A person who does any of the following in a store or in its immediate vicinity is guilty of retail fraud in the first-degree, a felony punishable by imprisonment for not more than 2 years, or a fine of not more than $1,000.00, or both:
(a) While a store is open to the public, alters, transfers, removes and replaces, conceals, or otherwise misrepresents the price at which property is offered for sale, with the intent not to pay for the property or to pay less than the price at which the property is offered for sale, if the resulting difference in price is more than $100.00.
(b) While a store is open to the public, steals property of the store that is offered for sale at a price of more than $100.00.
(c) With the intent to defraud, obtains or attempts to obtain money or property from the store as a refund or exchange for property that was not paid for and belongs to the store, if the amount of money, or the value of the property, obtained or attempted to be obtained is more than $100.00.
(2) A person who violates section 356d and has 1 or more prior convictions under this section, section 218, 356, 356d, or 360,1 or a local ordinance substantially corresponding to this section or section 218, 356, 356d , or 360 is guilty of retail fraud in the first degree.
(3) A person who commits the crime of retail fraud in the first degree shall not be prosecuted under the felony provi sion of section 356, or under section 218 or 360. [MCL 750.356c; MSA 28.588(3) (emphasis added).]
Defendant argues that § 356c(3) precludes his conviction under § 360. However, a plain reading of the statute reveals a clear legislative expression of intent to limit prosecutorial charging discretion. See, e.g., People v Little, 434 Mich 752, 760, n 9; 456 NW2d 237 (1990). Therefore, a prosecutor is prohibited by § 356c(3) from charging a defendant with the felony of larceny in a building for acts that constitute first-degree retail fraud. See, e.g., People v Johnson, 207 Mich App 263, 265; 523 NW2d 655 (1994); People v Odendahl, 200 Mich App 539; 505 NW2d 16 (1993).
Here, however, defendant was charged with unarmed robbery on the basis of his use of force to ensure the complainant’s loss of possession. See, e.g., People v LeFlore, 96 Mich App 557, 562-563; 293 NW2d 628 (1980). Section 356c(3) does not enumerate unarmed robbery as a crime that may not be charged. The reason for this is apparent: the offense of unarmed robbery requires proof that the taking was accomplished by force and violence or by assault or putting a person in fear. The additional element of force or assault places the crime outside the definition of first-degree retail fraud as that offense is defined in § 356c. Consequently, § 356c(3) does not limit a prosecutor’s discretion to charge a defendant with unarmed robbery where the facts support such a charge.
Defendant also argues that § 356c(3) prohibits a conviction of larceny in a building where the facts established at trial reveal that the defendant committed first-degree retail fraud. Again, we disagree. Section 356c(3) limits only prosecutorial charging discretion and, by its plain terms, does not prohibit a conviction for larceny in a building as a cognate lesser included offense of unarmed robbery where, as here, the evidence is sufficient to support the conviction.
Affirmed.
1 MCL 750.356d; MSA 28.588(4).
2 MCL 750.218; MSA 28.415, MCL 750.356; MSA 28.588, MCL 750.356d; MSA 28.588(4), or MCL 750.360; MSA 28.592.
3 MCL 750.356; MSA 28.588.
4 MCL 750.218; MSA 28.415 or MCL 750.360; MSA 28.592.
Defendant has not raised an argument regarding the sufficiency of the evidence to support an unarmed robbery charge.
Larceny in a building is a cognate lesser included offense of armed robbery. People v Stein, 90 Mich App 159, 167; 282 NW2d 269 (1979). Armed robbery differs from unarmed robbery only by the presence of a weapon. People v Parker, 417 Mich 556, 565; 339 NW2d 455 (1983). It follows, therefore, that larceny in a building is also a cognate lesser included offense of unarmed robbery. | [
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Per Curiam.
Defendant appeals as of right the circuit court’s approval of a child support recommendation of the friend of the court (foc) that he pay $161 a week for 1993. Defendant also appeals as of right his conviction of contempt of court and his September 17, 1993, sentence of thirty days in jail for that conviction. We affirm.
Defendant acknowledged paternity of Donal Frederick Good on April 26, 1988. Donal’s mother is Gaye Lynn Good. A judgment of paternity and support was filed on April 5, 1988. On July 5, 1988, a FOC recommendation that defendant pay $57 a week for child support was filed with the Lenawee Circuit Court. An order was entered in accordance with the recommendation. After the entry of that order, defendant’s child support obligation was modified several times for various reasons.
On April 14, 1993, the FOC requested that the child support order be reviewed because defendant had recently received a large settlement for a slip and fall injury. The FOC recommendation indicated that the settlement gross amount was $40,000. Because defendant did not provide documentation of attorney fees and costs, the foc deducted one-third and found that defendant netted $26,667 from the settlement. Prorating this amount throughout 1993, the referee recommended that defendant pay $161 a week in accordance with the child support guidelines. On June 18, 1993, the court issued a child support order adopting the recommendation of the referee.
On July 19, 1993, defendant requested that the court reject the foc recommendation and refer the matter back to the foc for reevaluation. Defendant testified that he received a net amount of $25,000 on or about June 7, 1993, as a result of the personal injury settlement for pain and suffering. He stated that he had spent $16,887 of the money paying debts, had paid $2,800 to the FOC, and had spent the remainder, approximately $4,000, on a motorcycle for himself. The court ordered defendant to post an $8,000 bond. Defendant notified the court that he did not have the money to post bond. When the court became apprised of how defendant spent the money, it ordered defendant to put the motorcycle immediately in storage and not to allow anyone, including himself, to use the vehicle until further order of the court.
The trial court held a hearing on August 31, 1993. Defendant testified that the motorcycle had been “tore down” and that he did not know the whereabouts of the parts. Good testified that she saw defendant’s motorcycle intact after the previous court date. The court denied defendant’s objections to the FOC recommendation and ordered that he appear on September 10, 1993, to show cause why he should not be held in contempt for failing to comply with the July 19, 1993, order to preserve the motorcycle.
Defendant pleaded not guilty of contempt. Trial on the matter commenced on September 17, 1993. Good testified that she observed the motorcycle at defendant’s house a few days after July 19, 1993, and that defendant was removing the parts from the motorcycle. The court found defendant in contempt of its July 19, 1993, order and sentenced him to thirty days in jail.
Defendant appealed his contempt conviction and the lower court’s approval of the FOC recommendation. On November 5, 1993, this Court granted defendant’s motion for immediate consideration and his motion for a stay pending appeal. This Court also ordered that the amount of $57 a week in child support remain in effect.
Defendant’s sole argument on appeal is that the trial court erred in finding that the cash settlement received in the unrelated personal injury action was income for purposes of determining his child support obligation. A trial court may modify a child support order upon a showing of a change of circumstances justifying modification. MCL 552.17; MSA 25.97; Nellis v Nellis, 211 Mich App 226, 229; 535 NW2d 240 (1995). Modification of a child support order is a matter within the sound discretion of the trial court. Id. The party appealing from the child support order bears the burden of showing clear abuse of discretion. Wilkins v Wilkins, 149 Mich App 779, 792; 386 NW2d 677 (1986). A trial court’s findings of fact are reviewed under the clearly erroneous standard, but a court’s ultimate disposition is subject to review de novo. Nel lis, supra. This Court will reverse a trial court’s decision only when it is convinced it would have reached a different result. Id.
MCL 552.602(c); MSA 25.164(2)(c) defines the term “income” as any of the following:
(i) Commissions, earnings, salaries, wages, and other income due or to be due in the future from his or her employer and successor employers.
(ii) Any payment due or to be due in the future from a profit-sharing plan, pension plan, insurance contract, annuity, social security, unemployment compensation, supplemental unemployment benefits, and worker’s compensation.
(iii) Any amount of money which is due to the payer under a support order as a debt of any other individual, partnership, association, or private or public corporation, the United States or any federal agency, this state or any political subdivision of this state, any other state or a political subdivision of another state, or any other legal entity which is indebted to the payer. [Emphasis added.]
Although there are no cases that directly address the question posed by defendant, several opinions make the general statement that a parent’s ability to pay, not just the parent’s income, is relevant in determining an appropriate child support award. “[T]he trial court is not limited to consideration of the parent’s actual income and may also look to the parent’s unexercised ability to earn.” Wilkins, supra, p 792. “The trial court properly considered appellant’s assets and his income potential.” Travis v Travis, 19 Mich App 128, 130; 172 NW2d 491 (1969). A trial court’s failure to consider the defendant’s financial status as a whole is clear error. Cymbal v Cymbal, 43 Mich App 566, 567; 204 NW2d 235 (1972). In Malnar v Malnar, 156 Mich App 534, 537-538; 401 NW2d 892 (1986), in determining whether interest from a spend thrift trust may be reached to satisfy a former wife’s claim for child support, this Court stated:
The elements of public policy which hold that a father has a legal duty to support his minor children outweigh the public policy that an owner of property may do with it as he pleases by imposing spendthrift restraints on the disposition of income from a spendthrift trust. When the noncustodial parent has the financial means to support and maintain his own children, the source thereof is immaterial. While the duty imposed on the parent must be fair and not confiscatory, the parent’s duty to support his children is not limited to his income. In determining the amount of support, in addition to income, all relevant aspects of the financial status of the person obligated to pay support must be considered. [Emphasis added; citations omitted.]
In this case, certainly an amount became owed to defendant that constitutes “income” for the purposes of MCL 552.602(c)(iii); MSA 26.164(2)(c)(m). However, as the Malnar Court reasoned, while a parent’s duty to support his child is not limited to his income, the duty imposed must be fair and all relevant aspects of the parent’s financial status must be considered. Therefore, the receipt of a personal injury settlement should not automatically determine the level of child support. Rather, the question whether a personal injury settlement should affect the level of child support depends on the particular facts of each case and, thus, should be decided case by case. We decline attempting any “bright line” rule to be applied in all instances. We reiterate that, in determining the amount of child support to be awarded, much discretion is vested in the trial court. Wilkins, supra, pp 791-792.
In the present case, defendant received a $40,000 settlement award. He testified that the net amount of the settlement award was $25,000. Defendant spent $16,887 of the money paying debts, $2,800 was paid to the FOC, and approximately $4,000 was spent on a motorcycle for the defendant. Defendant spent almost eighty-four percent of the $25,000 on items that were arguably not necessities.* * Clearly, the purchase of a $4,000 motorcycle would not be characterized as an indispensable item. Given these facts, the duty imposed upon defendant to support his child is fair. Under these circumstances, we conclude that the trial court did not abuse its discretion in considering defendant’s personal injury settlement as income for the purpose of modifying the child support order.
Additionally, because defendant failed to argue his contempt conviction in his brief, he has effectively abandoned this issue. Froling v Carpenter, 203 Mich App 368, 373; 512 NW2d 6 (1994).
Affirmed.
We note that we are unaware of the whereabouts of the $1,313 difference.
A personal injury settlement, as opposed to other types of settlements, poses a wide range of situations. For example, the personal injury at issue may range from a defendant with a sprained anide to a quadriplegic. Because the quadriplegic may be required to spend money from the settlement on indispensable items such as a wheelchair, a handicap ramp, and so forth, income derived from personal injury settlements should not be automatically considered for purposes of modifying a child support order.
If we used $23,687, which is the amount of money accounted for by defendant, this percentage rises to eighty-eight percent. | [
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] |
Per Curiam.
In Docket No. 172601, plaintiff appeals as of right the circuit court’s orders granting summary disposition for defendants I.R. Construction Products Company, Inc., Comprehensive Health Services, Inc., and Wellness Plan of Michigan. In Docket No. 173876, plaintiff appeals as of right the circuit court’s order for I.R. Construction taxing costs against plaintiff in the amount of $2,144.90. The appeals were consolidated. We affirm in part and reverse in part.
On August 1, 1991, plaintiff, an employee of International Service System, Inc. (ISS), was assigned to perform maintenance work on certain air-conditioning units located at 6500 John C. Lodge in the City of Detroit. The building was owned by Com prehensive Health Services, Inc., and was leased to Wellness Plan of Michigan, an assumed name for Comprehensive. Plaintiff gained entry to the air-conditioning units through an access door that was installed in the ceiling of a restroom. The access door was manufactured by I.R. Construction Products Company, Inc. (I.R. Construction). Upon completion of his maintenance work, plaintiff closed and locked the door. The door then came open, swung downward, and struck plaintiff in the head, propelling him backward into the adjacent wall.
On July 14, 1992, plaintiff filed suit, alleging that I.R. Construction improperly designed and manufactured the access door. Plaintiff further alleged that Comprehensive failed to warn him of the dangerous condition on its premises presented by the access door. Plaintiff alleged that, as a result of defendants’ actions, he suffered a closed head injury that left him with permanent health problems.
On December 16, 1992, Comprehensive filed a third-party complaint against iss, alleging that it had contracted with iss to provide maintenance service to the building and that under the agreement it was a named insured under ISS’ liability insurance.
On March 26, 1993, plaintiff filed his first-amended complaint adding Milcor Limited Partnership as a defendant. The amended complaint alleged that Mil-cor manufactured and marketed the access door. On August 18, 1993, by stipulation of the parties, Milcor was dismissed from the case without prejudice.
On October 13, 1993, after extensive discovery, I.R. Construction filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that because the door was designed for use only in a wall, not a ceiling, it was not defectively designed. On October 20, 1993, Comprehensive filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that because plaintiff was performing maintenance work as an employee of iss at the time of the accident, it owed no duty to make the premises safe for plaintiff because he was employed by the company it hired to make the premises safe. Comprehensive further argued that it owed no duty to warn because the door presented an open and obvious danger.
In granting summary disposition for I.R. Construction, the trial court found that it was not foreseeable that the door, which was designed for application in a wall, would be installed in a ceiling. In granting summary disposition for Comprehensive, the lower court found that plaintiff was an employee of iss and that the contract between Comprehensive and iss provided that ISS had complete authority to maintain the premises where the accident occurred. Plaintiff subsequently filed, and the trial court denied, a motion for reconsideration with respect to each defendant.
On January 26, 1994, I.R. Construction filed a motion to tax costs against plaintiff, seeking costs for four depositions necessarily used to procure summary disposition pursuant to MCR 2.625(A)(1) and MCL 600.2549; MSA 27A.2549. At the conclusion of the March 11, 1994, hearing regarding I.R. Construction’s motion, the lower court entered an order taxing costs against plaintiff in the amount of $2,144.90 for the cost of four depositions.
Plaintiff first argues that the lower court erred in finding that Comprehensive owed no duty to him and, thus, erred in granting summary disposition for Comprehensive. This Court reviews a lower court’s grant of summary disposition de novo to determine if a defendant was entitled to judgment as a matter of law. Citizens Ins Co v Bloomfield Twp, 209 Mich App 484, 486; 532 NW2d 183 (1995). A motion for summary disposition pursuant to MCR 2.116(C)(10) is properly granted when, giving the benefit of doubt to the nonmoving party, it is impossible for the record to be developed so as to leave open an issue upon which reasonable minds might differ. Burger v Midland Cogeneration Venture, 202 Mich App 310, 316; 507 NW2d 827 (1993).
As a general rule, an owner of property is not liable to an employee of an independent contractor for negligence. Id.; Justus v Swope, 184 Mich App 91, 94; 457 NW2d 103 (1990); Samodai v Chrysler Corp, 178 Mich App 252, 255; 443 NW2d 391 (1989). In such situations, the actual employer of the worker is immediately responsible for job safety and for maintaining a safe workplace. Samodai, supra. The two main exceptions to this general rule provide for liability if (1) the property owner retains control over the work done and the contractor’s activities, or (2) the work is inherently dangerous — the work can reasonably be foreseen as dangerous to third parties. Burger, supra. To be inherently dangerous, the risk involved must be recognizable in advance, at the time of the contract, and must be inherent in the work itself or normally expected in the ordinary course of doing the work. Justus, supra.
In this case, at the time of plaintiff’s injury, he was employed by an independent contractor, iss, and was performing maintenance work pursuant to ISS’ contract with Comprehensive. The contract and the testimony clearly establish that ISS had full authority over the maintenance of the building without interference from Comprehensive. According to the contract between iss and Comprehensive, iss was to provide, among other things, repair and maintenance to the building. In order to provide this service, ISS was to employ heating and ventilation mechanics and “utility tradesmen.” The agreement specifically contemplated that iss was to be responsible for “preventive maintenance work” and “corrective repair work.” The stated goal of iss in offering this service was to maintain “a safe and comfortable, healthy environment for all occupants and the general public.” Iss employees were to make daily and weekly inspection tours of the mechanical systems of the building, and, as part of these inspections, employees were to report any “questionable and unsatisfactory conditions discovered during the tour.”
Furthermore, in his deposition, plaintiff acknowledged that it was iss’ responsibility to repair and maintain all aspects of the building. Plaintiff indicated that he had used the access door in question more than twenty times and that ISS personnel in the building were responsible for fixing any defective condi tions if they observed them. During his tenure working on the premises, plaintiff testified that he became aware that the overhead access doors had a problem latching. Plaintiff stated that each time he closed one of the doors he would use his pliers to pull on the knob to ensure that it had latched. Plaintiff also testified that he informed his supervisor of the problem and the supervisor told the other employees to check the doors upon closing them to determine whether they had latched closed.
With respect to iss’ responsibilities, the plain language of the contract and other relevant evidence unambiguously indicate that iss had broad authority over the maintenance and repair of the building. Further, these duties do not appear to involve any aspects that could be seen as inherently dangerous. We therefore conclude that the lower court did not err in granting summary disposition for Comprehensive where ISS, an independent contractor and plaintiff’s employer, was responsible for making the workplace safe and for preventing building defects.
Plaintiff also argues that the lower court erred in granting summary disposition for I.R. Construction because there was a genuine issue of material fact whether it was foreseeable that the access door would be installed in a ceiling. We disagree.
Under Michigan law, the manufacturer of a product has a duty to warn of dangers associated with the intended uses or reasonably foreseeable misuses of its product. Bordeaux v Celotex Corp, 203 Mich App 158, 167; 511 NW2d 899 (1993). Foreseeability of misuse may be inherent in the product or may be based on evidence that the manufacturer had knowledge of a particular type of misuse. Shipman v Fontaine Truck Equipment Co, 184 Mich App 706, 713; 459 NW2d 30 (1990).
Moreover, it is well-settled law that, where a purchaser is a “sophisticated user” of a manufacturer’s product, the purchaser is in the best position to warn the ultimate user of the dangers associated with the product, thereby relieving the sellers and manufacturers from the duty to warn the ultimate user. See Antcliff v State Employees Credit Union, 414 Mich 624, 640; 327 NW2d 814 (1982); Jodway v Kennametal, Inc, 207 Mich App 622, 627-629; 525 NW2d 883 (1994). Michigan jurisprudence has recognized the sophisticated-user doctrine at least since Antcliff, supra, in which the Supreme Court stated:
There are countless skilled operations such as the rigging of scaffolding, which involve otherwise non-dangerous products in potentially dangerous situations. A manufacturer of such a product should be able to presume mastery of the basic operation. The more so when, as here, the manufacturer affirmatively and successfully limits the market of its product to professionals. In such a case, the manufacturer should not be burdened with the often difficult task of providing instructions on how to properly perform the basic operation. [Id. at 640.]
The Supreme Court also stated that not to recognize the sophisticated-user defense “would lead to demonstrably unfair and unintended results.” Id. The holding in Antcliff, however, was limited to the facts and parties of that case. Id. at 627. Nevertheless, the sophisticated-user doctrine has been further recognized and discussed by this Court in numerous opinions.
In Ross v Jaybird Automation, Inc, 172 Mich App 603, 607; 432 NW2d 374 (1988), the plaintiffs originally brought a products liability action against the defendants for their failure to warn or instruct the injured plaintiffs employer regarding the installation of a coil cradle machine. The trial court found that the defendants owed no duty to warn or instruct and granted summary disposition for the defendants. In affirming the decision of the circuit court, this Court stated:
A seller or manufacturer should be able to presume mastery of basic operations by experts or skilled professionals in an industry, and should not owe a duty to warn or instruct such persons on how to perform basic operations in their industry. {Id,.}
More recently, in Rasmussen v Louisville Ladder Co, Inc, 211 Mich App 541; 536 NW2d 221 (1995), the plaintiff’s decedent was involved in an accident where a hanging scaffolding manufactured by the defendant collapsed while being used by the decedent. This Court stated at 547-548:
The proofs established that Ness Contracting had specialized in the construction of preengineered metal buildings for the past twenty-six years. While Ness Contracting may not have used hanging scaffolding on a regular basis, its employees were trained ironworkers who were experienced in rigging hanging scaffolding. Further, it had used other types of scaffolding on numerous occasions. In short, the evidence established that the relationship between defendant Emerson Electric and Ness Contracting and its employees was similar to that observed in Antcliff. In both cases, the manufacturers that designed a product line for profes sional riggers dealt with professional riggers. Because Ant-cliff is controlling, we hold that the trial court abused its discretion in denying defendant Emerson Electric’s motion for a directed verdict.
The cases suggest that a duty to warn a purchaser of the inherent dangers of a product does not arise in a situation where the purchaser is a sophisticated user because a sophisticated user is charged with knowledge of the product. The rationale behind the sophisticated-user doctrine is that the manufacturer markets a particular product to a class of professionals that are presumed to be experienced in using and handling the product. Because of this special knowledge, the sophisticated user will be relied upon by the manufacturer to disseminate information to the ultimate users regarding the dangers associated with the product. Hence, the manufacturer is relieved of a duty to warn. See Jodway, supra; Mascarenas v Union Carbide Corp, 196 Mich App 240, 246-248; 492 NW2d 512 (1992).
According to evidence presented by I.R. Construction, the type of door that injured plaintiff was marketed by catalog only to construction industry and design professionals. The catalog wherein the door was offered gave extensive specifications regarding the door and its installation. The catalog description of the door contains several references indicating that it was to be used in wall installations. The description stated in part: “[y]ou can specify this door with confidence whenever you wish to provide service access to utilities in the walls of stairwells, shafts, corridors and all other wall areas where fire ratings are important.” The catalog also contained three models of doors that were specified for use in ceiling applica tions, although these doors were not fire-rated. In addition, the installation instructions, which came with the door in question, provided information for installing the door only in either “plaster walls” or “masonry walls.” I.R. Construction also presented evidence establishing that the door carried a fire rating that the applicable building codes allowed only in wall-mounted doors. Finally, I.R. Construction presented an affidavit indicating that the company had no knowledge that this type of door was being used in ceiling applications.
In response, plaintiff presented the testimony of his expert witness, who testified that the door was defective because it did not have a mechanism to counterbalance the weight of the door to keep it from swinging freely. Plaintiff’s expert found fault in the lack of any labeling to indicate that the door was only to be mounted in a wall. In addition, plaintiff argues that because there was no fire-rated ceiling door being manufactured during the time that the door was purchased, it was foreseeable that a purchaser would use the wall door in a ceiling where a fire rating was needed.
We find that the evidence established that the door in question was designed and intended only for use in a wall. There was abundant literature indicating that the product was to be limited to this usage. Plaintiff failed to present any evidence that I.R. Construction had any knowledge that the doors were being used in ceilings. Plaintiff’s expert’s testimony is not relevant to the foreseeability of the product being misused. Furthermore, plaintiff’s contention that the wall door was installed because there were no fire-rated ceiling doors available is without merit. The testimony indi cates that there were no fire-rating requirements for ceiling doors at that time. Therefore, the installation of the door in the ceiling was not a reasonably foreseeable misuse of the product. Furthermore, because the door was marketed only to industry professionals who could be assumed to have a certain mastery of the usage of the product, I.R. Construction is relieved of the duty to warn the ultimate user. Id. We therefore conclude that the trial court did not err in granting summary disposition for I.R. Construction on this basis.
On cross appeal, I.R. Construction argues that it was also entitled to summary disposition because its fire-rated door was merely a component part of the overall construction product and, therefore, it has no liability for the dangers associated with its product caused by the manner in which the door was incorporated into the building. We disagree.
The major Michigan case relied on by I.R. Construction is Jordan v Whiting Corp (On Rehearing), 49 Mich App 481; 212 NW2d 324 (1973), rev’d 396 Mich 145; 240 NW2d 468 (1976). In that case, defendant Whiting Corporation supplied component parts that were bought by another company and incorporated into the manufacture of an overhead crane. Jordan, supra at 484. After the crane was delivered and installed, the plaintiff’s decedent was electrocuted while performing repairs. Id. at 485. The Court noted that “Whiting could not have known — at least so far as the record shows — how these components were to be fashioned or fabricated into the completed unit.” Id. at 486. Upon this finding, the panel held:
The obligation that generates the duty to avoid injury to another which is reasonably foreseeable does not — at least yet — extend to the anticipation of how manufactured components not in and of themselves dangerous or defective can become potentially dangerous dependent upon the nature of their integration into a unit designed, assembled, installed, and sold by another. [Id]
We find that I.R. Construction’s argument is without merit. Here, unlike a component part, the door supplied by I.R. Construction had but one clearly anticipated use, as an access door. The door was a fully finished and self-contained unit that needed only to be mounted in a particular location. The door did not lose its identity within the whole of the building. Unlike manufactured goods that contain component parts, realty in the form of a building appears to be more a collection of goods, rather than a single product. I.R. Construction’s access door was simply one of those goods, rather than a component part in a legal sense. We therefore conclude that the lower court properly rejected this basis for granting I.R. Construction summary disposition.
Plaintiff recognizes that we review a lower court’s determination to tax costs for an abuse of discretion, Beach v State Farm Mutual Automobile Ins Co, 216 Mich App 612, 621; 550 NW2d 580 (1996); Miller Bros v Dep’t of Natural Resources, 203 Mich App 674, 691; 513 NW2d 217 (1994), but argues that the trial court abused that discretion in granting I.R. Construction costs in the amount of $2,144.90 for the deposition transcripts of Irving Rozian, James Williams, Michael Pruess, and plaintiff, contrary to MCL 600.2549; MSA 27A.2549.
The power to tax costs is wholly statutory. Beach, supra; Herrera v Levine, 176 Mich App 350, 355; 439 NW2d 378 (1989). Therefore, costs are not recoverable where there is no statutory authority for awarding them. Id.
Plaintiff first argues that because the deposition transcripts were not “used” or “read in evidence” at trial, I.R. Construction was not entitled to costs pursuant to MCL 600.2549; MSA 27A.2549 and Herrera, supra. If that were the only basis for plaintiffs argument, we would disagree.
MCL 600.2549; MSA 27A.2549 provides that costs for certain depositions may be taxed:
Reasonable and actual fees paid for depositions of witnesses filed in any clerk’s office and for the certified copies of documents or papers recorded or filed in any public office shall be allowed in the taxation of costs only if, at the trial or when damages were assessed, the depositions were read in evidence, except for impeachment purposes, or the documents or papers were necessarily used.
Costs for depositions are expressly taxable pursuant to MCL 600.2549; MSA 27A.2549. The plain language of the statute states that such costs are recoverable where the deposition is “read in evidence” at trial or where it is “necessarily used.” MCL 600.2549; MSA 27A.2549. Here, excerpts of the deposition transcripts of Irving Rozian, James Williams, Michael Pruess, and plaintiff were necessarily used in the context of I.R. Construction’s motion for summary disposition.
Furthermore, Herrera, supra, is distinguishable from this case. In Herrera, the plaintiffs’ case was dismissed when they were not prepared for trial. Id. at 355. The defendant filed, and the trial court granted, a motion to tax costs for deposition transcripts under MCL 600.2549; MSA 27A.2549. Id. at 356. The plaintiffs appealed, and this Court held that the costs for the deposition transcripts were not taxable. Id. at 358. The panel, however, held that the transcript fees were “not taxable, as the case was dismissed before said items could be ‘used’ or ‘read in evidence’ at trial.” Id. Unlike Herrera, the transcripts in this case were “used” in the context of I.R. Construction’s successful motion for summary disposition. Therefore, the trial court reasonably concluded that the statute did not bar taxation of costs on this basis.
Plaintiff further argues, however, that the costs for the deposition transcripts were not taxable because the depositions were not “filed in any clerk’s office” as required by MCL 600.2549; MSA 27A.2549. Reluctantly, we agree. No Michigan appellate state court has previously addressed this issue in a published opinion.
It is undisputed that I.R. Construction did not file the four deposition transcripts separately in any clerk’s office. When the issue was raised before the lower court, I.R. Construction argued that excerpts of the depositions were incorporated with its motion for summary disposition that was filed with the court clerk. The lower court could not recall whether any excerpts were included with the motion, but upon plaintiff’s failure to show that they had not been attached, the court granted the costs.
The primary intent of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The first criterion in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The Legislature is presumed to have intended the meaning it plainly expressed. Frasier v Model Coverall Service, Inc, 182 Mich App 741, 744; 453 NW2d 301 (1990). Courts may not speculate regarding the probable intent of the Legislature beyond the words expressed in the statute. Nat’l Exposition Co v Detroit, 169 Mich App 25, 29; 425 NW2d 497 (1988). Where the language employed in a statute is plain, certain, and unambiguous, the statute must be applied as written without interpretation. Wayne Co v Dep’t of Corrections Director, 204 Mich App 712, 714; 516 NW2d 535 (1994). When the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). Such a statute must be applied, and not interpreted, because it speaks for itself. In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995).
While logic would indicate that depositions used to resolve a case should be taxable, we cannot rewrite statutes. MCL 600.2549; MSA 27A.2549 plainly states that costs shall be allowed only for depositions “filed in any clerk’s office.” The plain, clear, and unambiguous language of MCL 600.2549; MSA 27A.2549 indicates that the Legislature intended the taxation of costs only for depositions filed in a clerk’s office. Therefore, the trial court was without statutory authority to tax costs for the depositions.
Affirmed in part and reversed in part.
Throughout this opinion, “Comprehensive” refers to Comprehensive Health Services, Inc., and Wellness Plan of Michigan.
Although Comprehensive’s motion was premised on MCR 2.116(C)(8) and (10), in maldng its decision to grant the motion, the lower court focused on the contract between Comprehensive and plaintiffs employer, ISS. The court did not specify on which ground summary disposition was granted, but because matters outside the pleadings were considered, summary disposition was likely granted pursuant to MCR 2.116(C)(10).
While this determination involves the interpretation of the contract between iss and Comprehensive, a court may interpret a contract for purposes of a motion for summary disposition where, as here, the terms are clear. Michaels v Amway Corp, 206 Mich App 644, 649; 522 NW2d 703 (1994).
I.R. Construction also sought and was granted costs of $40 for motion fees, but plaintiff does not challenge that portion of the court’s taxation of costs. | [
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Per Curiam.
After the Supreme Court remanded Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 442 NW2d 205 (1988), for further findings of fact and damages, the Oakland Circuit Court on July 3, 1989, awarded plaintiffs damages of $34,982.82. On July 19, 1989, an amended opinion and order was entered awarding statutory interest on the $34,982.82 at six percent per annum from January 7, 1977, the date of the filing of the complaint, to June 1, 1980, and twelve percent interest from June 1, 1980, to the date of satisfaction. MCL 600.6013; MSA 27A.6013.
On September 11, 1989, a stipulated order was entered for the payment of the judgment and current interest into court pursuant to MCR 8.106 and MCL 600.576; MSA 27A.576. A partial satisfaction was given by plaintiffs on September 12, 1989, in the amount of $128,448.17 representing the amount of the amended and final judgment of July 19, 1989, with interest up through August 9, 1989. Plaintiffs moved for disbursement of these funds, and, on September 29, 1989, the court ordered the funds released to plaintiffs.
On December 16, 1989, plaintiffs appealed, by leave granted on July 16, 1990, the trial court’s order of July 19, 1989. Defendants did not cross appeal. On April 12, 1993, this Court held that the trial court’s findings of fact with respect to the amount of damages were clearly erroneous and that the drain commissioner was liable in the amount of $162,254.10 plus interest. Hadfield v Oakland Co Drain Comm’r, unpublished opinion per curiam of the Court of Appeals, issued April 12, 1993 (Docket No. 124295). Defendants’ motion for rehearing was denied by this Court on July 16, 1993.
Defendants filed a motion for postjudgment relief with the trial court on June 15, 1994. The trial court held that statutory interest on the added damages of $127,271.28 resulting from this Court’s amended award would accrue from the date of this Court’s opinion, April 12, 1993, and not from January 7, 1977, the date of the filing of the complaint. On July 27, 1994, the trial court entered an order granting defendants postjudgment relief and requiring defendants to pay into the court $147,776.39 (the added damage of $127,271.28 plus $29,505.11 in postjudgment interest). Plaintiffs appealed the trial court’s July 27, 1994, order as of right on August 4, 1994. Plaintiffs filed a motion for an order for release of the funds held by the circuit court ($147,776.39), which was denied by the trial court. The order denying this motion also provided that the funds were not to be released while plaintiffs’ appeal was pending.
Following the order of remand by the Supreme Court, the trial court awarded plaintiffs $34,982.82 damages with interest from the filing of the complaint. Plaintiffs appealed, and this Court amended the award to $162,254.10 plus interest, increasing the damages by $127,271.28 over those found by the trial court. When the trial court regained jurisdiction, it granted defendants’ motion for postjudgment relief, stripping plaintiffs of prejudgment interest with respect to this Court’s increase in damages of $127,271.28 resulting from this Court’s amended award. Defendants did not appeal the trial court’s judgment finding plaintiffs entitled to prejudgment interest.
Plaintiffs claim that the trial court did not have authority to deny prejudgment interest with respect to the increase in damages of $127,271.28 when defendants failed to appeal the trial court’s previous order entitling plaintiffs to prejudgment interest. We agree.
The trial court’s decision on the motion for postjudgment relief is reviewed for an abuse of discretion. Haberkorn v Chrysler Corp, 210 Mich App 354, 382; 533 NW2d 373 (1995). In civil cases, an abuse of discretion exists when the decision is so violative of fact and logic that it evidences a defiance of judgment and is not the exercise of reason, but rather, of passion or bias. Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992).
When a matter is remanded to the trial court by an appellate court, the trial court possesses the authority to take action that is consistent with the appellate court’s opinion and order. VanderWall v Midkiff, 186 Mich App 191, 196; 463 NW2d 219 (1990). Res judicata precludes the trial court from considering issues not considered by the appellate court during a prior appeal, if the issues could have been raised on the prior appeal. Id. at 196-197. A trial court cannot do on remand what higher courts could not do on appeal. Id.
On the basis of VanderWall, supra, the trial court’s July 19, 1989, judgment had res judicata effect on all subsequent proceedings in the trial court because defendants failed to appeal that determination. Defendants were bound on that issue. Accordingly, the trial court abused its discretion in holding that plaintiffs were not entitled to prejudgment interest with respect to the increased damages of $127,271.28.
Defendants’ argument that the trial court had authority to grant postjudgment relief pursuant to MCR 2.612(C)(1)(e) is unpersuasive, because defendants could have raised the issue of the satisfaction of judgment in the original appeal, but did not, and, thus, were precluded from seeking relief under MCR 2.612. VanderWall, supra.
The trial court was prevented by the doctrine of law of the case from ruling that plaintiffs were not entitled to prejudgment interest with respect to the $127,271.28 added by this Court’s amended award. If a party disagrees with this Court’s ruling on appeal it should seek rehearing or leave to appeal to the Supreme Court and not challenge this Court’s determination in the trial court. Bennett v Bennett, 197 Mich App 497, 503; 496 NW2d 353 (1992); Freeman v DEC Int’l, Inc, 212 Mich App 34, 37; 536 NW2d 815 (1995). In its April 12, 1993, opinion, this Court amended the trial court’s judgment to reflect an award of $162,254.10 plus interest. Because this Court ruled on the prejudgment interest issue, the trial court was precluded from altering that ruling. The satisfaction of September 12, 1989, by its own terms, was a “partial” satisfaction. MCL 600.6013; MSA 27A.6013 establishes the tolling of interest only on a full satisfaction.
MCL 600.6013(2); MSA 27A.6013(2) specifically states that interest accrues on money judgments from the time the complaint was filed:
For complaints filed before June 1, 1980, in an action involving other than a written instrument having a rate of interest exceeding 6% per year, the interest on judgment shall be calculated from the date of filing the complaint to June 1, 1980, at the rate of 6% per year and on and after June 1, 1980, to the date of satisfaction of the judgment at the rate of 12% per year compounded annually. [Emphasis supplied.]
The purpose of this provision is to compensate prevailing parties for expenses incurred in bringing suits for money damages and for any delay in receiving such damages. Coughlin v Dean, 174 Mich App 346, 352; 435 NW2d 792 (1989). The provision is remedial in nature and is to be construed liberally in favor of the plaintiff. Southfield Western, Inc v Southfield, 206 Mich App 334, 339; 520 NW2d 721 (1994). The use of the word “shall” in a statute connotes mandatory duty or requirement. Heyler v Dixon, 160 Mich App 130, 152; 408 NW2d 121 (1987). Therefore, imposition of statutory interest pursuant to MCL 600.6013; MSA 27A.6013 is mandatory and interest must be paid from the date the complaint was filed. Id. This Court has held that trial courts must accrue interest from that time. Dep’t of Treasury v Central Wayne Co Sanitation Authority, 186 Mich App 58, 64; 463 NW2d 120 (1990); Goins v Ford Motor Co, 131 Mich App 185, 201-202; 347 NW2d 184 (1983).
Statutory interest accrues until the judgment is satisfied. MCL 600.6013(2); MSA 27A.6013(2). MCR 2.620 sets forth the manner in which a judgment debtor can satisfy a judgment. Subsection 2 of that court rule specifically provides that a money judgment may be satisfied by “payment to the clerk of the judgment, interest, and costs.” However, payment to the clerk stops the accrual of interest only with respect to the portion paid, not the entire amount later determined to be due. Kleynenberg v Highlands Realty Corp, 340 Mich 339, 343; 65 NW2d 769 (1954); Niggeling v Dep’t of Transportation, 195 Mich App 163, 166; 488 NW2d 791 (1992).
The July 27, 1994, order of the Oakland Circuit Court is reversed. We remand to the trial court to recompute the interest. Pursuant to this Court’s April 12, 1993, opinion, plaintiffs are entitled to $127,271.28 plus interest from January 7, 1977, the date the complaint was filed, until that judgment is satisfied. On the basis of MCL 600.6013(2); MSA 27A.6013(2), interest should “be calculated from the date of filing the complaint to June 1, 1980, at the rate of 6% per year and on and after June 1, 1980, to the date of satisfaction of the judgment at the rate of 12% per year compounded annually.” However, because defendants deposited $147,776.39 with the court on July 27, 1994, which represented the court’s additur of $127,271.28 plus $20,505.11 in postjudgment interest, the court should determine what the principal and interest owed would have been on July 27, 1994, and subtract from that amount $147,776.39. See Niggeling, supra at 166. Interest on the remaining amount owed from July 27, 1994, should be calculated at the rate of twelve percent a year compounded annually until it is fully paid.
Reversed and remanded. | [
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Per Curiam.
Defendant appeals as of right the circuit court’s judgment of divorce entered on January 5, 1995. The court awarded the parties joint legal custody of their two minor children, Delina Soumis, bom on February 17, 1981, and Jessie Soumis, bom on December 14, 1988. It awarded plaintiff full physical custody of Delina and ordered the parties to share physical custody of Jessie, with the child to reside with each party for alternating six-month periods. We affirm.
The parties were married on November 4, 1978. Plaintiff filed for divorce on July 28, 1993. On March 14, 1994, following 2 V2 days of testimony, the court awarded temporary custody of the two minor children. On September 12, 1994, two days before the final hearing, defendant moved for leave to amend her pleadings and for a continuance. Defendant raised for the first time the issue of paternity with regard to Jessie. She requested that the court order plaintiff to submit blood samples for testing and that she be allowed to present evidence of a human leukocyte antigen analysis (hla), a blood test. Following oral arguments, the court denied defendant’s motion for a continuance. The court granted the motion for leave to amend because “otherwise the defendant would be precluded from presenting evidence upon which this Court might. . . reconsider its ruling as to the request for continuance to obtain the blood tests.”
Defendant testified that at the time of Jessie’s conception, which would have occurred sometime in January through March 1988, she and plaintiff were not having sexual relations, although they were living together as husband and wife. She was sexually involved with a man named Rodney Franklin, whom she believed to be Jessie’s father. She met Franklin in January 1988 and immediately became sexually involved with him. Their relationship ended in June, when she and plaintiff reconciled. Plaintiff, however, testified that defendant told him that she met Franklin when she began a new job in the latter part of March.
Although defendant claimed that she and plaintiff did not have sexual relations during the period when the conception occurred, she admitted that on at least two occasions she and plaintiff had sexual relations at a honeymoon suite at a local casino. She admitted that those days could have been in the early months of 1988.
Defendant claimed that she told plaintiff that he was not the father when she informed him of her pregnancy in April 1988, but that he had never believed her. Defendant also claimed that plaintiff admitted to third parties that he was not Jessie’s father. Plaintiff stated that the trial motion was the first time since before Jessie’s birth that the subject of his paternity had been mentioned.
Plaintiff testified that he believed Jessie to be his daughter and that she looked to him as a parent. Although defendant told him that the child might not be his, plaintiff believed Jessie to be his child on the basis of her birth date and the fact that she appeared to be a full-term baby. Plaintiff maintained that the parties ceased having sexual relations only after defendant told him of her pregnancy and relationship with Franklin.
Defendant admitted that plaintiff was the only father that Jessie knew. The man she claimed was the child’s biological father had died a year or two after Jessie was bom. She claimed that she mentioned the issue of paternity because she wanted plaintiff to know that he was not Jessie’s father. She realized that it could be damaging to the child to find out at this point that plaintiff was not her father.
In it’s opinion, the trial court stated:
[E]vidence was presented from which it could be found that notwithstanding the presumption that plaintiff is Jessie’s biological father, he actually is her biological father. Furthermore . . . there was more than ample evidence presented to satisfy the three part test postulated in Atkinson vs Atkinson [160 Mich App 601; 408 NW2d 516 (1987)] and find Mr. Soumis to be the equitable parent of Jessie. Therefore, since the presentation of the additional evidence urged by defendant would not alter this Court’s finding that sufficient other credible evidence exists by which plaintiff could be found to be Jessie’s biological father, reopening of the proofs would be futile. Equally futile would be the requirement that the parties submit to blood tests since even if plaintiff were found not to be Jessie’s natural father he is clearly her “equitable parent” as defined by the Court in Atkinson.
[T]his Court finds it absolutely abhorrent that Mrs. Soumis, who did not raise the issue [of paternity] in any of her pleadings throughout this lengthy proceeding, and who did not raise the issue during the two and one-half day hearing on the question of temporary custody, in the midst of trial, and in both a proceeding and in documents open to the public, asserted in some detail that plaintiff was not Jessie’s father while identifying another, who is now deceased and cannot speak from the grave, as her biological father. This Court can think of no way in which Jessie would be benefited by her mother’s allegations and disclosures but there are many ways in which she is likely to be damaged by them. . . . This Court concludes that Mrs. Soumis’ actions, while within her right, were misguided and showed a callous disregard for Jessie’s welfare.
Defendant first argues that the trial court erred in refusing to grant a continuance to allow the parties to submit to blood testing. We disagree. The ruling on a motion for a continuance is discretionary and is reviewed for an abuse of discretion. In re Jackson, 199 Mich App 22, 28; 501 NW2d 182 (1993).
“A motion for adjournment must be based on good cause, and a court, in its discretion, may grant an adjournment to promote the cause of justice.” Zerillo v Dyksterhouse, 191 Mich App 228, 230; 477 NW2d 117 (1991). Additionally, MCR 2.503(C)(1) requires that a motion for adjournment based on the unavailability of evidence “must be made as soon as possible after ascertaining the facts.” In the instant case, defendant testified that she had believed from the time of Jessie’s birth that plaintiff was not the child’s father. She offered no plausible explanation for waiting until a few days before the final hearing to raise the issue.
Furthermore, plaintiff’s request was not made for good cause. Contrary to plaintiff’s argument, this case is distinguishable from In re Flynn, 130 Mich App 740; 344 NW2d 352 (1983). Unlike the facts in Flynn, the instant case does not involve two men who were-each vying for paternity. Here, there was sufficient evidence that plaintiff was the child’s biological father. Moreover, the court was presented with the choice of either leaving a firmly established paternal relationship or risking the destruction of that relationship by ordering blood tests that could leave the child essentially fatherless. We therefore conclude that defendant’s motion was not timely and was not made for good cause. The trial court did not abuse its discretion in denying defendant’s motion.
Defendant next argues that the trial court erred in applying the equitable parent doctrine in favor of plaintiff because he knew before the child’s birth that he might not be the father and there was no determination whether he is the child’s biological father. We disagree. When reviewing orders of child custody, an appellate court must affirm the orders unless the findings of fact were against the great weight of the evidence, the discretionary rulings constituted an abuse of discretion, or the legal rulings constituted clear legal error. MCL 722.28; MSA 25.312(8); Hayes v Hayes, 209 Mich App 385, 389; 532 NW2d 190 (1995).
In this case, there was sufficient evidence that plaintiff was the child’s biological father. Even if a husband knows that he may not be the father of a child bom during the marriage, this Court has held that where he represents himself for many years as the father of the child, he is estopped by his conduct from denying paternity. Atkinson, p 610; Johnson v Johnson, 93 Mich App 415, 419; 286 NW2d 886 (1979). Further, contrary to defendant’s contention, there is no additional factor in the Atkinson test requiring that the husband have no knowledge of the fact that his paternity may be in question. Rather, the Atkinson test analogized the doctrine of equitable parent to that of equitable adoption. Id., p 611. Clearly, in adoption cases, the adoptive parents know they are not the biological parents. Therefore, the established law is exactly the opposite of what defendant contends. Indeed, an individual who has been found to be an “equitable parent” under the Atkinson standards stands on equal footing with any other natural or adoptive parent.
Moreover, in most cases where a biological relationship is challenged, courts must make a determination of paternity because of the legislatively created presumption in favor of natural parents contained in MCL 722.25; MSA 25.312(5). The presumption is applied only in cases involving a custody dispute “between the parent or parents and an agency of a third person . . . .” Id. In a custody dispute between the parents, the best interests of the child shall control. Id.; Heid v AAASulewski, 209 Mich App 587, 595; 532 NW2d 205 (1995); Lombardo v Lombardo, 202 Mich App 151, 159; 507 NW2d 788 (1993). This standard cannot be abrogated, even in fairness to the parties. Moser v Moser, 130 Mich App 97, 101; 343 NW2d 246 (1983).
We find that the trial court properly determined that it was in the best interests of the child for plaintiff to be considered the child’s father in the absence of blood test evidence. The alleged biological father has been deceased since shortly after the child’s birth. Obviously, a deceased parent cannot provide support or guidance. Defendant admitted that plaintiff is the only father Jessie has ever known and the only father she would ever know. Defendant also had encouraged the parent-child relationship between plaintiff and Jessie. We therefore conclude that the trial court did not err in refusing to apply the presumption in favor of natural parents to defendant.
Defendant finally claims that the court clearly erred in refusing to order HLA blood testing because it was the best evidence available of plaintiff’s nonpaternity. We disagree.
Again, the overriding concern in any custody dispute is the best interests of the child as measured by the factors set forth in MCL 722.23; MSA 25.312(3). Zuziak v Zuziak, 169 Mich App 741, 750; 426 NW2d 761 (1988). In this case, allowing HLA evidence to be introduced cannot be in the best interests of the child, because it would only undermine her established relationship with plaintiff. Defendant admitted at trial that her only reason for introducing the evidence was so that plaintiff would know he was not Jessie’s father. As the trial court stated: “To say the least, the position advanced by Mrs. Soumis at trial is not indicative of a willingness and ability on her part to encourage a close and continuing parent/child relationship between Jessie and Mr. Soumis.”
Additionally, under the Michigan Rules of Evidence, only relevant evidence is admissible. MRE 401, 402. The trial court determined that plaintiff was entitled to be considered Jessie’s natural parent. Therefore, the blood test evidence was irrelevant and, thus, inadmissible. Even if the HLA blood test would have been relevant to the issue of paternity, it was properly excluded because its probative value was substantially outweighed by the danger of unfair prejudice. MRE 403. Because the alleged father is deceased, HLA tests establishing him to be the biological father would have left the child fatherless and her relation ship with plaintiff irreparably damaged. Plaintiff is certainly a better father than one who is dead. The resulting prejudice to plaintiffs rights and harm to the child would not be outweighed by the vindication of the rights, if any, of the deceased.
Finally, defendant’s reliance on Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), is misplaced. That case held only that “a husband and wife may testify concerning nonaccess to each other.” Id., p 634. The record clearly indicates that a substantial amount of evidence was introduced regarding the issue of access. Accordingly, the court did not contravene the holding in Serafin.
Affirmed.
Defendant merely claimed that she failed to raise the issue during the March custody hearing because of a “misunderstanding of the law due to a natural reluctance to discuss it with counsel and out of fear of plaintiffs response.”
We note that the holding in Flynn was characterized as “unpersuasive” by the Supreme Court. See Girard v Wagenmaker, 437 Mich 231, 251-252, n 7; 470 NW2d 372 (1991). | [
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Per Curiam.
Plaintiffs brought suit to enjoin defendant, C. M. Smillie Company, from advertising for employees in violation of § 3a of the strikebreakers act, MCL 423.253a; MSA 17.456(3a). Summary judgment was granted in favor of defendant, the trial court ruling that the above statutory provision was preempted by the National Labor Relations Act, 29 USC 151 et seq. Plaintiffs appeal as of right. We affirm.
Plaintiffs were, in 1982, the certified bargaining representatives for defendant’s production and maintenance employees. In mid-July, 1982, these employees commenced a lawful economic strike pursuant to a strike vote. On September 24, 1982, defendant placed advertisements in the Detroit News for positions available "to replace people who have left their jobs”. Plaintiffs then commenced an action for injunctive relief. Plaintiffs asserted that the violation of the strikebreakers act encouraged a breach of the peace and constituted an illegal interference with the right to strike, which could "cause the replacement of lawfully striking employees, a weakening of the union’s ability to negotiate a proper strike settlement and a prolongation of the strike”.
The starting point of our analysis is the Suprem acy Clause of US Const, Art VI. Pursuant thereto, federal preemption occurs when compliance with both federal and state regulations is not possible, when the nature of the subject matter requires federal supremacy and uniformity or when Congress intended to displace the state legislation. Adama v Doehler-Jarvis, Division of N L Industries, Inc, 115 Mich App 82, 86; 320 NW2d 298 (1982), rev’d on other grounds 419 Mich 905 (1984). The National Labor Relations Act is a comprehensive regulation of industrial relations by Congress and takes much from the states, but it also leaves much to the states. Garner v Teamsters Union Local 776, 346 US 485, 488; 74 S Ct 161; 98 L Ed 228 (1953). Thus, preemption may not automatically be assumed in a case such as this, where the NLRA does not specifically address the matter of advertising for strike replacements.
In labor-relations cases, the United States Supreme Court has developed two doctrines for determining whether state regulations or causes of action are preempted by the NLRA. The first is the "arguably protected/arguably prohibited” test set out in San Diego Building Trades Council v Garmon, 359 US 236; 79 S Ct 773; 3 L Ed 2d 775 (1959). The second is the test developed in Local 20, Teamsters Union v Morton, 377 US 252; 84 S Ct 1253; 12 L Ed 2d 280 (1964), and Lodge 76, International Ass’n of Machinists v Wisconsin Employment Relations Comm, 427 US 132; 96 S Ct 2548; 49 L Ed 2d 396 (1976). The court below based its decision on this second doctrine. We agree because advertising for strike replacements is not conduct prohibited by § 8 of the NLRA, nor is freedom from such advertising protected by § 7.
Under the Morton/Machinists doctrine, where conduct is neither protected nor prohibited by the NLRA, the Court looks to whether Congress intended the conduct to be unregulated and to remain a part of the self-help remedies left to the combatants in a labor dispute. Belknap, Inc v Hale, — US —; 103 S Ct 3172; 77 L Ed 2d 798 (1983). In determining Congress’s intent, the crucial inquiry is whether the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the NLRA’s processes. Machinists, supra, pp 147-148. Consideration may also be given to the two factors in Garmon, supra, pp 243-244: whether the regulated activity is merely a peripheral concern of the NLRA and whether it touches interests deeply rooted in local feeling and responsibility.
We believe that advertising for strike replacements cannot realistically be separated from the employer’s right to hire replacements, which indisputably is "part and parcel of the process of collective bargaining” that Congress intended to be governed by the free play of economic forces. Machinists, supra, p 149. As acknowledged in plaintiffs’ complaint, regulation of advertising directly affects the employer’s success in hiring replacements.
We can perceive no state interest that would overcome the presumption of preemption. The strikebreakers act cannot be construed as a general truth-in-advertising act which is designed to protect people from misleading advertisement schemes. Preemption would not deny misled employees any of the generally applicable remedies for fraud or misrepresentation. Further, we believe that the notice provision is not for the purpose of preventing violence, else it would logically be applied to all strikes, not "lawful” strikes alone.
Plaintiffs note that compliance with the strikebreakers act puts a prospective employee on notice that he can refuse the job without losing his claim to unemployment compensation. Plaintiffs thus contend that Congress clearly intended state regulation in this area. We disagree. There is no evident historical relationship between the strikebreakers act and the federal unemployment tax law. Nor do we perceive any compelling congressional interest in the timing of notice to a prospective employee. Thus, we distinguish New York Telephone Co v New York State Dep’t of Labor, 440 US 519; 99 S Ct 1328; 59 L Ed 2d 553 (1979), where the Court found a great deal of evidence that Congress intended to authorize the New York compensation law permitting benefits to be paid to striking employees.
We conclude that MCL 423.253a; MSA 17.456(3a) is unconstitutional as it applies to employers within the meaning of the NLRA. It is undisputed that defendant is such an employer. Therefore, the lower court properly granted summary judgment in favor of defendant.
Affirmed._
"No person, partnership, agency, firm or corporation, or officer or agent thereof, shall recruit, solicit or advertise for employees, or refer persons to employment, in place of employees involved in a lawful strike or lockout, without adequate notice to the person, and in the advertisement, that there is a strike or lockout at the place at which employment is offered and that the employment offered is in place of employees involved in the strike or lockout.”
The employees’ right to strike is preserved by § 13. However, the employer has the right to hire replacements. NLRB v MacKay Radio & Telegraph Co, 304 US 333; 58 S Ct 905; 82 L Ed 1381 (1938). The replacements may be permanent'if the work stoppage is an economic strike. Belknap, Inc v Hale, — US —; 103 S Ct 3172; 77 L Ed 2d 798 (1983).
The strikebreakers act apparently originated from a model statute drafted by the International Typographical Union in 1960, designed to prevent regularized interstate traffic in strikebreakers. See Comment, Anti-Strikebreaking Legislation — The Effect and Validity of State-Imposed Criminal Sanctions, 115 U Pa L Rev 190 (1966); Note, 77 Harv L Rev 377 (1963). The New Jersey Supreme Court, in a decision considering that state’s strikebreakers act as a whole, found it preempted by the NLRA. United States Chamber of Commerce v State, 89 NJ 131; 445 A2d 353 (1982). The Illinois Supreme Court, faced with the notice provision only of that state’s statute, also found preemption. People v Federal Tool & Plastics, 62 Ill 2d 549; 344 NE2d 1 (1975).
We do not consider whether, assuming the notice provision is to prevent violence, it is preempted by the Byrnes Act, 18 USC 1231, which prohibits transportation in interstate commerce of strikebreakers for the purpose of obstruction or interfering by force or threats with peaceful union activity.
Section 903(a) of the Social Security Act (now part of the Federal Unemployment Tax Act), 26 USC 3304, provides in part:
"(a) Requirements. — The Secretary of Labor shall approve any State law submitted to him, within 30 days of such submission, which he finds provides that—
"(5) compensation shall not be denied in such State to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
"(A) if the position offered is vacant due directly to a strike, lockout, or other labor dispute.”
Intervening defendant has argued that the entire strikebreakers act is preempted by the NLRA. We do not address that issue since it is beyond the scope of plaintiff's appeal. | [
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D. E. Holbrook, Jr., J.
This action is asserted by plaintiff Lieutenant Cameron and plaintiff Michigan State Police Command Officers Association, both individually and on behalf of a class of similarly situated individuals, who are appealing as of right. This case arose when Lieutenant Cameron tape recorded the testimony of a subordinate fingerprint examiner, Trooper Zang, while he was testifying in court. Zang filed an administrative complaint, which was investigated, and, after an interview with plaintiff, a written warning was placed in plaintiff’s file. This warning stated that plaintiff had violated the collective-bargaining agreement between the Police Troopers Association (MSPTA) and the state and the Administrative Rules of the Michigan Supreme Court by his recording in court without permission of Zang or the court. Although plaintiff filed all possible grievances pursuant to civil service rules and regulations, he was unsuccessful in his assertion that recording for training purposes did not violate the letter or the spirit of the Administrative Rules of the Supreme Court or the contract. This warning was removed after one year since there were no further violations.
Zang filed another complaint under Article 7, Section 19 of the MSPTA contract. Such contract demands that any discipline other than a reprimand requires an evidentiary hearing. Plaintiff’s particular choice of representation for the hearing was denied. For reasons irrelevant to this lawsuit, the hearing was cancelled and not rescheduled. On appeal, plaintiffs allege that their constitutional due process and Civil Service Commission rights were violated.
Plaintiff argues that the placing of the written warning in his employment file without providing him with a full evidentiary hearing is a violation of his due process rights. We do not agree. A thorough review of the record reveals that plaintiff did not suffer any loss of pay, position, status or any other right or benefit from his employment. As this Court said in Crider v Michigan, 110 Mich App 702, 728-729; 313 NW2d 367 (1981), lv den 414 Mich 953 (1982):
"Due process requires only that there be notice and a 'hearing appropriate to the nature of the case’, Mullane v Central Hanover Bank & Trust Co, 339 US 306, 313; 70 S Ct 652; 94 L Ed 865 (1950), and that the hearing be held 'at a meaningful time and in a meaningful manner’. Armstrong v Manzo, 380 US 545, 552; 85 S Ct 1187; 14 L Ed 2d 62 (1965). The formal and procedural requisites of the hearing may vary 'depending upon the importance of the interests involved and the nature of subsequent proceedings’. Boddie v Connecticut, 401 US 371, 378; 91 S Ct 780; 28 L Ed 2d 113 (1971). Further, as this Court held in Detroit Board of Education v Parks, 98 Mich App 22, 41; 296 NW2d 815 (1980): 'Of course, due process does not require a prior hearing in every case of deprivation of a property right.’ ”
We find that an informal conference was consistent with the due process requirements in this case. No action was taken on the warning notice and it was expunged after one year as plaintiff had no further violations. We find no error in the lower court’s opinion.
Plaintiff alleges that he was denied representation at his grievance proceedings and for the Article 7, Section 19 hearing. Plaintiff has based his argument on Section 7 of the NLRA, 29 USC 157, which provides in relevant part that, "Employees shall have the right to * * * engage in * * * concerted activities for * * * mutual aid or protection.” The United States Supreme Court has upheld a NLRB interpretation of this to prohibit an employer "from requiring any employee to take part in an investigatory interview without union representation if the employee requests representation and reasonably fears disciplinary action”. NLRB v J Weingarten, Inc, 420 US 251,253; 95 S Ct 959; 43 L Ed 2d 171 (1975).
The analogous provisions for Michigan are the Employee Relations Policy Rules of the Civil Service Commission, 6-5.1 and 6-5.3, which are as follows:
"6-5.1 Participation. — Employees may organize, form, assist, join or refrain from joining employee organizations of their own choosing. Eligible employees may also engage in concerted activities for the purpose of collective bargaining with the employer over wages, hours and all conditions of employment except as otherwise provided herein.”
"6-5.3 Self-Representation. — Employees not in an exclusively represented unit have the right to represent themselves or be represented by others of their choosing and to pursue grievances under Civil Service rules and procedures.”
In his opinion of October 24, 1983, Judge Warren compared these provisions to the NLRA, Section 7, and concluded:
"Unlike § 7, the 'concerted activities’ referred to in rule 6-5.1 apply only to 'bargaining with the employer.’ Similarly, the right to representation referred to in rule 6-5.3 refers only to the situations cited in rule 6-5.1 and to grievance actions. Neither rule refers to concerted activities for purposes of 'mutual aid or protection,’ nor do any other words used in these rules suggest that any additional protections contained in the NLRA were meant to be adopted. Thus, the CSC rules do not provide the Plaintiffs with an absolute right to representation at investigatory interviews.”
Additionally, rule 6-2.1(9) only grants the right to engage in concerted activities to "eligible employees”, which does not include managerial, supervisory or confidential positions. Plaintiff is a supervisory officer.
Our review of the record shows that plaintiff was only limited to his choice of representation and we find no authority to permit unlimited representation at an Article 7, Section 19 hearing. We also find that plaintiff did not request representation in the matter of the warning.
Accordingly, we find no error in the lower court’s holding and affirm the dismissal of plaintiff’s claim.
We find no merit in defendant’s cross-appeal and this issue need not be considered. Diggs v State Board of Embalmers & Funeral Directors, 321 Mich 508; 32 NW2d 728 (1948).
Affirmed. | [
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Per Curiam.
The defendant appeals as of right a plea-based conviction of larceny in a building.
Defendant, William Kent Gleason, pled guilty to larceny in a building, pursuant to a plea agreement, on November 7, 1983. The arrest warrant was issued in Newaygo County on March 4, 1983, but was not executed by his arrest until June 25, 1983. Subsequent to the warrant’s issuance, but prior to its execution, defendant was arrested, convicted and sentenced in Oceana County on an unrelated crime before the same court and judge. Upon serving 96 days on the unrelated crime, defendant was eligible for release, at which time defendant was arrested on the outstanding warrant for the larceny charge in the instant matter. On December 12, 1983, defendant was sentenced to two years probation with the first year to be served in the county jail. Defendant was given credit for three days which he had served following his arrest in the Newaygo County charge.
Defendant claims the trial court erred in not giving him credit for the 96 days served on the unrelated crime. Under the facts of this case defendant’s position is correct.
Subsequent to the filing of a complaint, both a police department and the prosecutor’s office are charged with the affirmative duty to pursue the case with "due diligence”. Lack of diligence by either department constitutes an "administrative delay”, which may not prejudice the defendant’s statutory right to credit for time served. People v Coyle, 104 Mich App 636; 305 NW2d 275 (1981); People v Parshay, 104 Mich App 411; 304 NW2d 593 (1981). The police department holding the outstanding warrant in Newaygo County reasonably should have known that defendant was interned in Oceana County jail. Accordingly, under the facts presented in this case, defendant is hereby credited with an additional 96 days served.
Defendant also claims that the provisions of his order of probation requiring him to pay restitution in the amount of $1,485.64 must be vacated because the trial court failed to comply with the requirements of MCL 771.3(5)(a); MSA 28.1133(5)(a). The prosecution agrees that the court failed to comply with the requirements of MCL 771.3(5)(a); MSA 28.1133(5)(a). The prosecution agrees that the court did not comply with the statute, but argues that the statute provides a remedy by which defendant may petition the sentencing court for a remission of the payment of restitution. We find that the restitution provision must be vacated because the sentencing court failed to establish on the record any basis for a conclusion that defendant was or would be able to pay the restitution during the term of probation. Such a finding is mandated by the statute. We also find that the remedy relied upon by the prosecution applies only to restitution which has been validly assessed. We therefore vacate this portion of the probation order and remand this cause to the sentencing court to permit the court to comply with the requirements of MCL 771.3(5)(a); MSA 28.1133(5)(a).
Remanded for proceedings consistent with this opinion. | [
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Per Curiam.
Defendant pled no contest to transporting a shotgun in a nongame area, MCL 750.227c; MSA 28.424(3). He was sentenced to a term of from one to two years and appeals as of right. The sole issue on appeal is whether the trial court erred in ordering that defendant’s sentence be served consecutively to another sentence previously imposed. We find no error.
Consecutive sentencing is allowed only where specifically authorized by statute. People v Wakeford, 418 Mich 95, 113; 341 NW2d 68 (1983); People v Sawyer, 410 Mich 531, 534; 302 NW2d 534 (1981); People v Gallagher, 404 Mich 429, 439; 273 NW2d 440 (1979); In re Carey, 372 Mich 378, 380; 126 NW2d 727 (1964). Both the prosecution and the trial court relied on the consecutive sentencing statute as authority for the imposition of consecutive sentencing in this case. Defendant does not dispute that, at the time he committed the instant offense, there was pending against him a felony charge for which he was later convicted.
Michigan’s consecutive sentencing statute provides:
"When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:
"(a) The sentences imposed for conviction of the prior charged offense and a subsequent offense, other than a major controlled substance offense, may run consecutively.
"(b) The sentences imposed for conviction of the prior charged offense and a subsequent offense which is a major controlled substance offense shall run consecutively.” MCL 768.7b; MSA 28.1030(2).
Defendant argues that he was convicted of a misdemeanor rather than a felony as required under the statute. We disagree.
While it is true that the crime of transporting a shotgun in a nongame area is described as a two-year misdemeanor offense under the Michigan Penal Code, MCL 750.1 et seq.; MSA 28.191 et seq., two-year misdemeanors are treated as felonies for purposes of the Code of Criminal Procedure, MCL 760.1 et seq. The Code of Criminal Procedure defines felony as:
"[A] violation of a penal law of this state for which the offender, upon conviction, may be punished by death or by imprisonment for more than 1 year, or an offense expressly designated by law to be a felony.” MCL 761.1(g); MSA 28.843(g).
Inasmuch as the consecutive sentencing statute is enacted under the Code of Criminal Procedure, we find that the subsequent felony referred to in that statute includes two-year misdemeanors.
Our position is supported by the decisions of this Court holding that the term felony as used in the habitual offender provisions of the Code of Criminal Procedure, MCL 769.10 et seq.; MSA 28.1082 et seq., includes offenses punishable by more than one year of imprisonment, such as two-year misdemeanors. See People v McGill, 131 Mich App 465, 477-478; 346 NW2d 572 (1984); People v DeLong, 128 Mich App 1; 339 NW2d 659 (1983); People v Cavanaugh, 127 Mich App 632, 644; 339 NW2d 509 (1983); People v Rice, 101 Mich App 1; 300 NW2d 428 (1980), rev’d on other grounds 411 Mich 883; 306 NW2d 102 (1981); People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979). We further note that in interpreting the phrase "any term of years”, as used in the Penal Code, the Michigan Supreme Court has recently observed that "[a]n offense is a felony so long as the statutory maximum is for more than one year”. People v Blythe, 417 Mich 430, 437; 339 NW2d 399 (1983).
The trial court in this case did not err in ordering that defendant’s sentence be served consecutively to a sentence previously imposed.
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Per Curiam.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for a summary judgment pursuant to GCR 1963, 117.2(3).
Plaintiff was involved in an automobile accident with defendant Ellen J. Eubank on March 16, 1981. As a result of the collision, she suffered a fractured left second rib and a fractured left clavicle. Plaintiff was hospitalized for approximately two days for examination and observation while being treated with pain medication. While in the hospital she was fitted with a clavicle strap or brace (a soft padded splint), which limited her ability to move her arm "somewhat”, but was not uncomfortable to wear. Plaintiff was also fitted with a sling to support the weight of her left arm. During her brief stay in the hospital, plaintiff was given oral pain medication for fairly severe pain. No treatment was prescribed for the broken rib and this fracture healed without treatment and without any significant residual effects.
Plaintiff continued to wear the clavicle strap for 3-1/2 months. During this period, she found the strap to be "very distressful” because it interfered with her sleep and because she was unable to move her left hand at all. She was, however, able to move her arm in front of her body. The sling was removed after three weeks. Once both the strap and sling had been removed, plaintiff still felt pain and could not raise her left arm over her head or straight out from her shoulder. She was able to do some household tasks but was unable to drive until August, 1981, because the pain was too strong. She also found dressing and showering very painful, although she was able to do these things.
During this period plaintiff was treated by Dr. Thomas Schwaderer. He deposed that he instructed plaintiff not to work until at least the end of June, 1981, and cautioned her not to drive because he feared that the pain she was experiencing would impede her ability to control the car in an emergency. By the end of June, 1981, he found that plaintiff was still without approximately 40% of her normal range of motion in her shoulder and believed that she had developed adhesive capsulitis in her shoulder from lack of use. Dr. Schwaderer therefore instructed plaintiff to remove the clavi cle strap and to begin working her arm and shoulder to increase her range of motion.
By July 22, 1981, Dr. Schwaderer found that plaintiffs shoulder fracture had healed almost entirely and placed her in physical therapy to treat the adhesive capsulitis. The therapy lasted until the end of October, 1981, when plaintiff had recovered nearly her full range of motion, although she still experienced some discomfort at the extremes of this range. In Dr. Schwaderer’s opinion, plaintiffs injury was not an excruciatingly uncomfortable one and he felt that she had made an excellent recovery from the injury. Even before beginning the physical therapy, he felt that plaintiff could have been exercising by herself up to her ability to tolerate the pain.
Plaintiff was also examined by Dr. Harvey M. Andre on November 3, 1981. He found that plaintiffs shoulder had healed very well without any muscular atrophy or spasm. Plaintiff had almost a full range of motion in her shoulder and normal range of motion in her neck. She was able to bend her left elbow normally, had normal reflexes, and was able to do all her normal daily activities except at certain extremes of movement such as overhead work.
On the basis of this evidence, the trial court ruled as a matter of law that plaintiff had failed to allege a serious impairment of a body function and granted defendants’ motion for summary judgment. Although this is a close question, we agree with the trial court and therefore affirm its judgment.
Pursuant to the Supreme Court’s decision in Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), a trial court is to decide as a matter of law whether or not a plaintiff has suffered "serious impairment of a body function” where there is no factual dispute regarding the nature and extent of a plaintiffs injuries. This was the case here. The Supreme Court’s decision also provides some guidelines to the trail court in making this determination in an individual case, although ultimately the decision must be made on a case-by-case basis. Cassidy v McGovern, 415 Mich 503. Among the relevant guidelines are the following: (1) "impairment of body function” must be interpreted as "impairment of important body function”; (2) any impairment must be "serious”; and (3) only "objectively manifested injuries” are covered by MCL 500.3135(1); MSA 24.13135(1).
As further guidance, the Supreme Court applied these standards to the facts of the two cases before it in Cassidy v McGovern. In Hermann v Haney, the Supreme Court concluded that the plaintiff had not suffered a serious impairment of an important body function. The injuries suffered were only a bump on the head and bruises on the knees. The bruises cleared up in two months and the bump on the head in one month. The plaintiff missed one month of work due to pain, but had no problems from the injuries after two months. In Cassidy, however, the Supreme Court found that the plaintiff had, in fact, suffered a serious impairment of an important body function. The Court noted that two bones in the plaintiffs right leg were completely broken and that he had required 18 days of hospitalization and 7 months of wearing casts which at least partially immobilized his leg. During this time the plaintiff was further immobilized by dizzy spells which forced him to surrender crutches for a walker. The Supreme Court found that this significant impediment to the plaintiffs ability to walk constituted the serious impairment of an important body function.
The facts of this case fall squarely between the two factual scenarios contained in the Cassidy opinion. Plaintiff in this case suffered two broken bones, but one healed without treatment while the other healed over time with a minimal amount of restriction on plaintiff’s use of her arm. Although plaintiff was hospitalized after the accident, she was able to go home within two days and was able to use both arms, restricted only by her tolerance of pain and the soft plastic clavicle strap. Within weeks, plaintiffs range of motion had increased considerably and she was able to perform normal household and personal tasks. The most significant restriction on her normal activities was Dr. Schwaderer’s admonition not to work or drive; however, as stated by Dr. Schwaderer, the restriction on driving was imposed not because plaintiff was physically incapable of driving but rather for fear that pain would impede her ability to react swiftly in an emergency. Finally, we note that although plaintiff asserts that she still suffers headaches and neckaches from the accident, Dr. Schwaderer was unable to say that this pain was related to the accident. In light of the Supreme Court’s decision in Cassidy, we affirm the trial court.
Affirmed.
The record does not establish why Dr. Schwaderer advised plaintiff not to work. We are therefore unable to determine whether this advice was based on the disabling nature of the injury or, for example, on the need for plaintiff to rest or take medication. | [
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Per Curiam.
Plaintiff appeals as of right from an Oakland County Circuit Court order issued on October 8, 1983, which dismissed plaintiff’s complaint pursuant to GCR 1963, 117.2(1).
In a series of amended complaints filed between August 25, 1982, and April 26, 1983, plaintiff alleged that he was denied admission to defendant’s "disco” because he was under the age of 21 at the time he sought admission and that this denial violated his civil rights. Plaintiff further alleged that defendant’s refusal to admit him injured his feelings and "caused him” humiliation and mental suffering. As a result of the "outrage to his moral sense”, plaintiff claimed that he was entitled to exemplary damages.
As an affirmative defense to plaintiff’s allegations, defendant asserted that by virtue of the Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., defendant was entitled to make reasonable rules and regulations which would include excluding persons between the ages of 18 and 21 from its establishment.
On September 28, 1983, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1). According to defendant, the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., did not proscribe forms of discrimination which are "permitted by law”. Defendant asserted that the alleged refusal to admit plaintiff into its establishment was permitted by MCL 436.33b; MSA 18.1004(2) which prohibits the consumption of alcoholic beverages by persons under 21 years of age.
The hearing on defendant’s motion was held on October 7, 1983. Defendant argued that establishments such as defendant’s have the right to institute reasonable policies in an attempt to conform to the strict alcohol-related regulations and laws.
Plaintiff argued that the statutory phrase which allowed discrimination "where permitted by law” in the Elliott-Larsen Civil Rights Act only referred to laws which expressly allowed discrimination on the basis of age. Since there was no law in Michigan which expressly prohibited or limited access to bars by persons over 18 but under 21 years of age, plaintiff contended that such discrimination was not "permitted”.
In an opinion issued from the bench, the trial court ruled that the prohibition against selling alcohol to minors provided a sufficient legal basis to justify the refusal of admission by defendant to patrons between the ages of 18 and 21. The court also concluded that the form of age discrimination as alleged by plaintiff was "permitted by law” and, as such, it was not improper under the Elliott-Larsen Civil Rights Act.
The issue for our consideration is whether the trial court erred in dismissing plaintiffs complaint.
The standard of review for determining whether summary judgment has been properly granted under GCR 1963, 117.2(1) is set forth in Reed v St Clair Rubber Co, 118 Mich App 1, 5; 324 NW2d 512 (1982):
"A motion brought pursuant to GCR 1963, 117.2(1) challenges the legal sufficiency of plaintiffs claim only. In Partrich v Muscat, 84 Mich App 724, 729-730; 270 NW2d 506 (1978), this Court detailed the applicable rules for passing on a motion seeking summary judgment pursuant to GCR 1963, 117.2(1):
" 'The standard governing this Court’s review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), Iv den 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman’s Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972).’ ”
Plaintiff argues that the absence of both case law and statutory authority for defendant’s alleged refusal to admit adults under the age of 21 indicates that plaintiff has a colorable claim for violation of his civil rights under the Elliott-Larsen Civil Rights Act. Plaintiffs claim for relief rests entirely upon the Elliott-Larsen Civil Rights Act. No constitutional issue has been raised by plaintiff.
The Elliott-Larsen Civil Rights Act sets forth the rights to which an individual is entitled and proscribes conduct which would interfere with those rights. Section 102 of the act provides that individuals have a right to equal utilization of places of public accommodation and services regardless of age:
"The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, or marital status as prohibited by this act, is recognized and declared to be a civil right.” MCL 37.2102(1); MSA 3.548(102)(1).
Section 301 of the act defines the term "Place of public accommodation” as follows:
" 'Place of public accommodation’ means a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.” MCL 37.2301(a); MSA 3.548(301)(a).
Section 302 of the act prohibits discrimination on the basis of age unless otherwise permitted by law:
"Except where permitted by law, a person shall not:
"(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.” MCL 37.2302(a); MSA 3.548(302)(a) (emphasis added).
If defendant’s refusal to admit plaintiff on the basis of plaintiffs age is "permitted by law”, then plaintiff has failed to state a cause of action for violation of his civil rights under the Elliott-Larsen Civil Rights Act. See Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428; 310 NW2d 408 (1981), lv den 413 Mich 890 (1982).
MCL 750.141; MSA 28.336 provides in part "A minor child under 17 years of age shall not be permitted to remain in a dance hall, saloon, barroom or any place” where intoxicating liquor, wine, or beer or beverages containing intoxicating liquor or spirits is sold, given away or furnished for a beverage, unless the minor is accompanied by a parent or guardian.
No statute exists which prohibits persons over 17 from being present in such establishments. Defendant claims, however, that the statutory prohibitions against serving alcohol to persons under the age of 21 permits defendant by law to deny admission to persons 18 to 21 years of age. In support of its argument, defendant cites the Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., and specific provisions in the act where the Legislature has established Michigan’s legal drinking age at 21 years of age.
MCL 436.33; MSA 18.1004 states in part:
"(1) Alcoholic liquor shall not be sold or furnished to a person unless the person has attained 21 years of age. A person who knowingly sells or furnishes alcoholic liquor to a person who is less than 21 years of age, or who fails to make diligent inquiry as to whether the person is less than 21 years of age, is guilty of a misdemeanor. A suitable sign which describes this section and the penalties for violating this section shall be posted in a conspicuous place in each room where alcoholic liquors are sold.”
MCL 436.20; MSA 18.991 provides for fines of up to $300 in addition to or in lieu of either suspension or revocation of a liquor license if any provisions of the Liquor Control Act are violated.
Under MCL 436.33b; MSA 18.1004(2):
"(1) A person less than 21 years of age shall not purchase alcoholic liquor, consume alcoholic liquor in a licensed premises, or possess alcoholic liquor, except as provided in section 33a(l) of this act. A person less than 21 years of age who violates this subsection is liable for * * * civil fines * *
Likewise, under MCL 436.33a; MSA 18.1004(1), a person under the age of 21 who knowingly transports or possesses alcoholic liquor in a motor vehicle is guilty of a misdemeanor "unless the person is employed by a licensee under this act, the liquor control commission” or its agent and the person "is transporting” or has the liquor in the vehicle "under the person’s control during regular working hours .and in the course of the person’s employment”.
Finally, under the dramshop act, MCL 436.22; MSA 18.993, for purposes of that provision of the Liquor Control Act, a minor is defined as "a person to whom alcoholic liquor shall not be sold pursuant” to MCL 436.33; MSA 18.1004. The "minor” would be any person who has not attained the age of 21.
Although the Age of Majority Act of 1971, MCL 722.51 et seq.; MSA 25.244(51) et seq., specifically, MCL 722.52; MSA 25.244(52), deems a person who attains the age of 18 "to be an adult of legal age for all purposes whatsoever and shall have the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age”, the specific provisions of the Liquor Control Act which fix the minimum drinking age at 21 supersede these general provisions to the extent that individuals between 18 and 21 years of age do not have the right to purchase or be served liquor until they attain the age of 21. Thus, under the Liquor Control Act, they are still minors.
" 'It is a rule of statutory construction that where two statutes are or appear to be in conflict, the specific statute, enacted subsequent to the more general statute, prevails.’ People v McFadden, 73 Mich App 232, 235; 251 NW2d 297 (1977).” People v Voss, 133 Mich App 73, 77; 348 NW2d 37 (1984).
Applying a practical rule of reason to the instant case, it is our opinion that denial of admission to 18- to 21-year-olds is a reasonable extension of the statutory prohibitions of serving alcohol to individuals under the age of 21. Our view that this practice is permitted by law is supported by the strict statutory sanctions imposed upon licensees who violate any provisions of the Liquor Control Act.
We are cognizant of the fact that the Legislature has provided a specific exception in the Liquor Control Act to allow 18- to 21-year-olds to possess liquor during working hours and in the course of employment.
"This section shall not be construed to prohibit a person less than 21 years of age from possessing alcoholic liquor during regular working hours and in the course of his or her employment if employed by a person licensed by this act, by the liquor control commission, or by an agent of the liquor control commission, if the alcoholic liquor is not possessed for his or her personal consumption.” MCL 436.33b(4); MSA 18.1004(2)(4).
We believe, however, that this statutory exception does not grant 18- to 21-year-olds the absolute right to work in such establishments. Rather than creating an absolute right to work, the exception is a discretionary grant of permission for 18- to 21-year-olds to legally possess liquor if employed by those designated in the act. If the individual is so employed, then his or her presence in an establishment such as defendant’s is permissible as part of the employment. We do not find this comparable to the alleged claimed right of plaintiff to be present in the establishment as a patron.
Because of his age, plaintiff had no right to be on the premises. He has no cause of action under the circumstances here.
Affirmed. Costs to be paid by plaintiff.
The Age of Majority Act of 1971 became effective January 1,1972.
MCL 722.53; MSA 25.244(53) provides:
"This act [Age of Majority Act] supersedes all provisions of law prescribing duties, liabilities, responsibilities, rights and legal capacity of persons 18 years of age through 20 years of age different from persons 21 years of age, including but not limited to the following enumerated public acts: [20 enumerated acts listed thereafter including, 1933 (Ex Sess) PA 8, §§ 33, 33a and 33b, being MCL 436.33; MSA 18.1004; MCL 436.33a; MSA 18.1004(1), and MCL 436.33b; MSA 18.1004(2)].”
The Legislature has not amended MCL 722.53; MSA 25.244(53) to include any amendments to MCL 436.33, 436.33a and 436.33b, after the Age of Majority Act went into effect. 1972 PA 13, § 1 became effective on February 19, 1972 and lowered the drinking age to 18. Likewise, 1978 PA 531, § 1 raised the drinking age to 21 and became effective on December 23, 1978. MCL 436.33; MSA 18.1004; MCL 436.33a; MSA 18.1004(1), and MCL 436.33b; MSA 18.1004(2).
As stated by a recent panel of our Court "[t]he Age of Majority Act was not intended to preclude the Legislature from making distinctions based on the age of 21. The Legislature has since done so with the drinking age”. Dep’t of Civil Rights ex rel John Smilnak v City of Warren, 136 Mich App 103; 355 NW2d 687 (1984). | [
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Per Curiam:.
Plaintiffs appeal by leave granted an order of the circuit court dismissing their suit against defendant Jolly Bar & Grille, Inc. (hereinafter defendant) for failure to fulfill the 120-day notice requirement in the dramshop act. We affirm.
MCL 436.22(5); MSA 18.993(5) provides in relevant part:
An action under this section shall be instituted within 2 years after the injury or death. A plaintiff seeking damages under this section shall give written notice to all defendants within 120 days after entering an attorney-client relationship for the purpose of pursuing a claim under this section. Failure to give written notice within the time specified shall be grounds for dismissal of a claim as to any defendants that did not receive such notice unless sufficient information for determining that a retail licensee might be liable under this section was not known and could not reasonably have been known within the 120 days.
Plaintiffs’ automobile accident occurred on October 13, 1990. Plaintiffs signed a contingent fee retainer agreement with their attorney on November 5, 1990. On November 14, 1990, an investigator for plaintiffs’ counsel interviewed a passenger in the other (Vandermeer) car and learned that the occupants of the other car, including the driver, had been drinking at defendant’s establishment just before the accident. Although later interviews revealed some inconsistences in the passenger’s story, the November 14 interview established that the driver drank three or four rum and colas at defendant’s bar that evening after already having shared a case of beer with four friends late that afternoon. Plaintiffs’ counsel also had access to a UD-10 accident report form that showed that the driver was charged with operating a vehicle while under the influence of intoxicating liquor, MCL 257.625; MSA 9.2325. Plaintiffs did not send notice of their claim under the dramshop act to defendant until August 27, 1991.
The 120-day notice period expired on March 5, 1991. The issue is whether plaintiffs could reasonably have been expected to know of their claim under the dramshop act before that date. We hold they could. Within the first ten days of the 120-day period, plaintiffs knew that the driver of the other car had been charged with driving while intoxicated and that he had been drinking at the Jolly Bar & Grille just before the accident. This is sufficient to satisfy the requirements of MCL 436.22(5); MSA 18.993(5).
Whether defendant was prejudiced by the delay in notice is irrelevant under the language of the notice provision. Brown v JoJo-Ab, Inc, 191 Mich App 208, 212; 477 NW2d 121 (1991). Whether plaintiffs’ counsel was originally retained with the specific task of pursuing a dramshop act claim is also irrelevant because it was clear in the retainer agreement that he was hired to investigate all possible theories of recovery. Whether the facts available to plaintiffs during the 120 days were enough to ensure a solid, fully verifiable dramshop act claim is irrelevant because the notice provision only requires notice where a dramshop owner might be liable under the act.
Affirmed. | [
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Per Curiam.
Defendant was charged with possession of more than 650 grams of cocaine, possession with intent to deliver between 50 and 225 grams of cocaine, and conspiracy to deliver more than 225 but less than 650 grams of cocaine. Pursuant to a plea agreement, defendant pleaded guilty of possession of more than 225 grams but less than 650 grams of cocaine, MCL 333.7403(2)(a) (ii); MSA 14.15(7403)(2)(a)(ii). On August 22, 1991, defendant was sentenced to a prison term of twenty to thirty years.
Defendant subsequently filed, inter alia, a "motion for correction of sentence pursuant to MCR 6.429.” On March 31, 1993, the trial court found that the mandatory sentencing provision of MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii) is so grossly disproportionate as to constitute cruel or unusual punishment under Const 1963, art 1, § 16. The trial court then ruled that defendant is to be subject to the jurisdiction of the parole board and be eligible for parole consideration in accordance, with MCL 791.234(4)(a)-(d),(5); MSA 28.2304(4)(a)-(d), (5).
On appeal, defendant argues that the trial court’s remedy of permitting parole eligibility does not create constitutional proportionality. On cross appeal, the prosecutor argues that the trial court erred in permitting parole eligibility because the mandatory sentence for possession of more than 225 grams but less than 650 grams of cocaine does not constitute cruel or unusual punishment.
In regard to defendant’s argument that statutorily mandated sentences strip the trial court of the ability to proportion a sentence to an individual defendant, we note that in People v Williams, 189 Mich App 400, 403-404; 473 NW2d 727 (1991), this Court held that legislatively mandated sentences are presumptively proportionate and valid. Further, the trial court was not "mandated to sentence defendant to the maximum possible indeterminate sentence.” The trial court had discretion to impose a sentence below the mandatory minimum sentence if presented with substantial and compelling reasons to do so. See MCL 333.7403(3); MSA 14.15(7403)(3).
Next, we address the prosecutor’s argument that the trial court erred in finding MCL 333.7403(2)(a) (ii); MSA 14.15(7403)(2)(a)(ii) unconstitutional and ordering defendant eligible for parole consideration.
In People v Bullock, 440 Mich 15; 485 NW2d 866 (1992), the Court held that the statutory penalty of mandatory life in prison without possibility of parole for possession of 650 grams or more of any mixture containing cocaine, MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), is so disproportionate as to be cruel or unusual. The Court struck down the portion of MCL 791.234(4); MSA 28.2304(4) denying parole consideration to persons convicted of possession of more than 650 grams. In limiting its decision to convictions for possession of more than 650 grams, the Court stated:
We acknowledge that our decision today may have the effect of creating an arguable incongruity in the statutory scheme governing cocaine possession. The penalty for possessing 225 to 650 grams of cocaine is arguably more severe than the penalty for possessing 650 grams or more as modified by our decision today, in that the penalty for the former offense is a mandatory minimum sentence of twenty years in prison with no possibility of parole. MCL 333.7403(2)(a)(ii), 791.234(4); MSA 14.15(7403)(2)(a)(ii), 28.2304(4). On the other hand, the penalty for possessing 225 to 650 grams, unlike that for possessing 650 grams or more, permits a downward departure from the minimum sentence "if the court finds on the record that there are substantial and compelling reasons to do so.” MCL 333.7403(3); MSA 14.15(7403X3). In any event, the validity of the penalty for possession of 225 to 650 grams is not before us in this case. Furthermore, the Legislature remains free to modify the statutory scheme in response to our decision today, either prospectively or, in the case of any ameliorative modifications, both prospectively and retrospectively. See People v Schultz, 435 Mich 517; 460 NW2d 505 (1990). [Bullock, supra at 43, n 26.]
Bullock does not apply to the statutory provisions under which defendant was sentenced, but only to the provision calling for a mandatory sentence of life imprisonment without parole for mere possession. Indeed, our Supreme Court has stated that the reasoning in Bullock is not applicable to controlled substance violations involving delivery. See, e.g., People v Fluker, 442 Mich 891 (1993); People v Williams (After Remand), 198 Mich App 537, 543; 499 NW2d 404 (1993); People v Loy-Rafuls, 198 Mich App 594; 500 NW2d 480 (1993), rev’d 442 Mich 912 (1993).
This Court has denied this exact challenge to the mandatory penalty provision of MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii). See, e.g., People v Hahn, 183 Mich App 465, 471; 455 NW2d 310 (1989), rev’d in part on other grounds 437 Mich 867 (1991). Although Hahn was decided before Bullock, neither Bullock nor its progeny compel a different result. Thus, the order of the trial court is reversed insofar as it ruled MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii) unconstitutional and ordered defendant eligible for parole consideration in accordance with MCL 791.234(4) (a)-(d), (5); MSA 28.2304(4)(a)-(d), (5).
Next, given the record before us, we are unable to grant meaningful review of defendant’s argument that he was denied the effective assistance of counsel at sentencing. First, having failed to cite any authority in support of his position, defendant has abandoned this issue. People v Hunter, 202 Mich App 23, 27; 507 NW2d 768 (1993). Second, having failed to base his motion for resentencing on this ground, and having failed to move for a timely remand from this Court for an evidentiary hearing, we are left with a record on which the alleged deficiency in representation is not apparent. See People v Stammer, 179 Mich App 432, 441; 446 NW2d 312 (1989). To the contrary, the record demonstrates that both defense counsel and defendant affirmatively stated that they had re viewed the presentence report and that no corrections, additions, or deletions were necessary. The record also reveals that defense counsel did indeed advise the court of defendant’s post-conviction accomplishments.
Last, defendant asserts that he is entitled to resentencing because the trial court failed to properly consider whether there were substantial and compelling reasons to support a downward departure from the mandatory minimum sentence. Although the trial court did not state specifically at sentencing that it did not find substantial and compelling reasons to justify a downward departure, the court’s thorough explanation of the reasons for imposing the mandatory minimum reveal that the court considered and rejected a downward departure. Further, in a written opinion following defendant’s motion for resentencing, the trial court specifically stated that "the court looked for substantial and compelling reasons to depart from the mandatory minimum sentence” but could not find a basis for doing so. We find that the trial court did not abuse its discretion in sentencing defendant. People v Mouat, 194 Mich App 482, 486; 487 NW2d 494 (1992).
Affirmed in part and reversed in part._
Judge Fitzgerald continues to adhere to his dissent in Williams, supra.
Contrary to defendant’s assertion that the trial court relied on the prosecutor’s argument that defendant had received already a sentencing bargain as the result of the plea agreement in refusing to depart from the mandatory minimum, we note that the trial court specifically stated: "The Court did not consider that defendant had already received the benefit of a plea bargain.” | [
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Taylor, P.J.
Defendant-appellant Regina Bush appeals as of right the circuit court order granting summary disposition to defendant-appellee Dorothy Thomas. The order also awarded to Dorothy the proceeds of a life insurance policy on her former husband, Willie Bush. On appeal, Regina, who was Willie’s wife at the time of his death, argues that the proceeds belong to Willie’s estate because of a provision in the judgment of divorce between Dorothy and Willie in which both parties waived all rights to the proceeds of any life insurance policies insuring the life of the other party. Alternatively, Regina argues that Dorothy’s claim to the proceeds is invalid pursuant to MCL 552.101; MSA 25.131. We reverse.
In 1986, when Willie and Dorothy were husband and wife, Dorothy purchased life insurance on herself, naming Willie as the primary beneficiary and their four children as contingent beneficiaries. The policy also included a spouse rider in the amount of $50,000 on Willie’s life, with Dorothy as the beneficiary._
In June 1988, Dorothy and Willie were divorced. Included in the judgment of divorce was a stipulation and property settlement containing a provision, entitled "Insurance Waiver,” which stated "that each of the parties shall waive any interest he or she may have as beneficiary or otherwise in and to the proceeds of any policies of life insurance . . . standing in the name of or insuring the life of the opposite party, said interest being hereby terminated with the entry of this Judgment of Divorce.” The effect of this provision is at issue here.
In February 1990, Willie married Regina. In July 1991, Willie died and, the following month, Dorothy submitted a claim to the insurance company requesting payment to her of the proceeds of the $50,000 spouse rider on Willie’s life. The insurance company filed an interpleader action naming Dorothy, Regina, Willie’s estate, and the four adult children of Dorothy and Willie as defendants. The court allowed the company to pay the $50,000 proceeds plus a premium refund of $44.13 into the court and dismissed the company from the action.
Subsequently, Regina moved for summary disposition, arguing that either she or Willie’s estate was entitled to the insurance proceeds because Dorothy had waived any interest in those proceeds by agreeing to the judgment of divorce. At the motion hearing, Dorothy argued that she, not Willie, owned the insurance policy at issue and that she had paid all of the premiums on the policy. Furthermore, Dorothy argued, the judgment of divorce did not address the type of policy at issue here.
Ruling from the bench, the trial court granted summary disposition to Dorothy pursuant to MCR 2.116(I)(2) (opposing party is entitled to judgment). The court ruled that the insurance waiver provi sion was inapplicable because Willie had no interest in the policy because he did not own it, i.e., it was Dorothy’s policy. The court also ruled that MCL 552.101; MSA 25.131 was inapplicable because it was "designed to avoid inadvertent bequests to divorced spouses.”
Judgments entered pursuant to the agreement of the parties are of the nature of a contract, rather than a judicial order entered against one party. Draughn v Hill, 30 Mich App 548, 553-554; 186 NW2d 855 (1971). Furthermore, a settlement agreement, which is what the stipulation and property settlement is, is a contract and is to be construed and applied as such. Bd of Co Road Comm’rs for the Co of Eaton v Schultz, 205 Mich App 371; — NW2d — (1994). Absent a showing of factors such as fraud or duress, courts act properly when they enforce such agreements. Balabuch v Balabuch, 199 Mich App 661, 662; 502 NW2d 381 (1993). Interpretation of unambiguous and unequivocal contracts is a question of law. In re Loose, 201 Mich App 361, 366; 505 NW2d 922 (1993).
In the instant case, there is no claim of any factors such as fraud or duress. The insurance waiver provision in the judgment of divorce is unambiguous and unequivocal. It clearly states that both Dorothy and Willie waived "any interest he or she may have as beneficiary or otherwise in and to the proceeds of any policies of life insurance . . . insuring the life of the opposite party.” The trial court’s apparent agreement with Dorothy’s arguments regarding ownership of the policy and who paid the premiums was improper in light of this clear contractual language. Accordingly, we hold that the trial court erred as a matter of law in awarding the insurance proceeds to Dorothy.
Although not necessary to our holding, we note briefly that the trial court correctly determined that MCL 552.101; MSA 25.131 is inapplicable to these circumstances. The purpose of that statute is "to affect the interest of the wife- in the insurance policy and thus cure the situation where a divorced wife could inadvertently receive the proceeds of a perhaps forgotten policy.” Starbuck v City Bank & Trust Co, 384 Mich 295, 299; 181 NW2d 904 (1970). Furthermore, we note that the relevant statutory requirement was satisfied by the judgment of divorce. MCL 552.101(2); MSA 25.131(2) states: "Each judgment of divorce . . . shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance . . . upon the life of the husband in which the wife was named or designated as beneficiary.” Here, the insurance waiver provision of the judgment of divorce determined Dorothy’s rights to the proceeds of the policy on Willie’s life by expressly waiving any such rights.
Reversed and remanded for determination of the proper disposition of the insurance proceeds. We do not retain jurisdiction.
The stipulation and property settlement was drafted by Dorothy’s attorney. Therefore, according to well-settled principles of contract law, any ambiguities in the agreement would be construed against Dorothy. Brauer v Hobbs, 151 Mich App 769, 774; 391 NW2d 482 (1986). However, the provision at issue here is unambiguous and unequivocal. | [
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Michael J. Kelly, J.
Plaintiffs, independent clinical laboratories and two physicians, alleged that they wrongfully were denied the opportunity to participate as panel providers in defendant’s new health care program, Premier plus. On October 9, 1991, the circuit court granted defendant’s motion for summary disposition with regard to all issues except plaintiffs’ claim under the Prudent Purchaser Act (ppa), MCL 550.51 et seq.; MSA 24.650(51) et seq., which the court found defendant had violated. The parties each appeal the court’s summary disposition decision adverse to it. Defen dant also appeals an order of March 18, 1992, enjoining operation of Premier plus until defendant filed the criteria for participating in the program with the Insurance Commissioner and reconsidered plaintiffs’ applications, and an order of April 9, 1992, denying defendant’s motion for security pending appeal. The appeals were consolidated. We affirm the order of April 9, 1992, reverse the order of March 18, 1992, and affirm that part of the October 9, 1991, order dismissing all of plaintiffs’ claims except the ppa claim. We reverse the part of the October 9, 1991, order finding defendant in violation of the ppa and order it amended to reflect a grant of summary disposition for defendant in light of defendant’s preemption defense under the Employee Retirement Income Security Act (erisa), 29 USC 1001 et seq.
i
Defendant is a nonprofit health care corporation. It administers General Motors Corporation’s traditional option coverage program under an "administrative services only” contract, which requires General Motors to pay defendant a fee for administering the program and reimburse defendant for all covered health care charges paid by defendant on behalf of program enrollees. Defendant is not an insurer for General Motors’ employees. The Premier Prudent Laboratory Use Program (Premier plus) is a diagnostic laboratory network pilot program developed, marketed, and implemented by defendant. Employees under General Motors’ self-funded, traditional option coverage plan were the first group to enroll in the program when, in 1990 and 1991, the Corporation-Union Committee on Health Care Benefits at General Motors evaluated potential pilot programs for laboratory ser vices and approved Premier plus. Although defendant developed Premier plus in part out of a desire to negotiate contracts with the employee health benefit plans for Ford, Chrysler, AT&T, and Ameritech and planned to use Premier plus in its own employee benefit plan, General Motors is apparently the only entity enrolled in the program at this time. The General Motors traditional option coverage program is an "employee benefit plan” for purposes of the erisa.
Before implementation of the Premier plus program, defendant paid all diagnostic laboratories according to a maximum-fee schedule. Health care providers who drew blood and sent the samples to the laboratories for analysis received a $3 blood-handling fee from defendant.
Under the Premier plus program, defendant established a panel of six provider laboratories, which agreed to discount the rate charged to defendant for services rendered. Physicians who referred blood specimens to nonpanel laboratories would not receive the $3 blood-handling fee. Non-panel laboratories themselves would be reimbursed only fifty percent of the maximum payment scheduled. In addition, the new program differentiated between standard and nonstandard laboratory procedures. Physicians who performed nonstandard procedures would be reimbursed fifty percent of the maximum fee scheduled. The range of services eligible for reimbursement under the program, whether in whole or in part, remained the same.
n
Plaintiffs are health care providers excluded from full reimbursement under Premier plus. On March 27, 1991, plaintiffs sued defendant, alleging that Premier plus violated the Nonprofit Health Care Corporation Reform Act (Act 350), MCL 550.1101 et seq.; MSA 24.660(101) et seq., and resulted in a tortious interference in the established business relationship between plaintiffs and referring physicians. Plaintiff doctors also alleged that Premier plus constituted a breach of contract with defendant.
Plaintiff American Health Resources, Inc., filed a complaint for mandamus on April 25, 1991, requesting that defendant be ordered to comply with the ppa by allowing it to apply for membership as a panel provider in Premier plus. The complaint also alleged an unlawful attempt to establish a monopoly in violation of the Antitrust Reform Act, MCL 445.771 et seq.; MSA 28.70(1) et seq. The two cases were consolidated and assigned to the same circuit judge.
Defendant removed the cases to the federal district court, arguing that plaintiffs’ claims were subject to complete preemption under federal law by the erisa. The federal court, on the basis of the face of the complaints, found that it did not have subject-matter jurisdiction under the erisa and remanded the case to the circuit court on August 7, 1991. It expressly left open the question whether the erisa preempted plaintiffs’ state law claims.
On August 27, 1991, defendant moved for summary disposition. The circuit court granted the motion on October 9, 1991, except with regard to plaintiffs’ claim under the ppa, which the court found defendant had violated. With regard to that claim, the court issued a final order requiring defendant to accept applications from plaintiffs for participation in Premier plus. In addition, the court permitted plaintiffs to reinstate their claim for money damages if defendant refused to accept their applications. It also continued a temporary restraining order issued on August 14, 1991, which permitted plaintiffs to be treated as panel providers in Premier plus.
On October 31, 1991, defendant rejected all of plaintiffs’ applications. On November 13, 1991, the circuit court continued the temporary restraining order with regard to BPS Clinical Laboratories, Michigan Clinical Laboratory, and Universal Standard Medical Laboratories, Inc.
On December 20, 1991, the circuit court found that defendant had continued to violate the ppa and also had violated the October 9, 1991, order. It issued an additional final order requiring defendant to submit its standards for panel membership to the Insurance Bureau within sixty days and added that it would enjoin operation of Premier plus if defendant did not comply. The court once again extended the temporary restraining order.
Subsequently, defendant moved for relief from this order and to stay any further proceedings, arguing that the order was void as an improper modification of the October 9, 1991, order and that, nonetheless, it had complied with the December 20, 1991, order. The court denied the motion on March 18, 1992, finding that defendant had not filed its standards with the Insurance Commissioner before reviewing plaintiffs’ applications. The court enjoined operation of Premier plus until defendant filed its standards and considered plaintiffs’ applications in light of those standards.
Defendant moved for security to protect its interests pending appeal. The circuit court denied the motion in an order dated April 9, 1992.
Concurrent with the circuit court proceedings, the Insurance Commissioner also reviewed allegations that defendant had not complied with statutory regulations in implementing Premier plus. Although initially having found that defendant had not violated the law and having noted that the law, as applied to Premier plus, was probably preempted under the erisa, the Insurance Commissioner later issued a notice of opportunity to show compliance, requiring defendant to address claims that it had violated the ppa. On March 19, 1992, the Insurance Commissioner issued a notice of dismissal, finding that defendant had complied with the Insurance Code.
hi
Defendant contends that plaintiffs’ claims are preempted under federal law by the erisa. The circuit court refused to consider defendant’s argument regarding this issue, apparently under the misconception that it had been resolved against defendant by the federal district court. By not addressing the issue, the trial court effectively decided it against defendant. The issue has been thoroughly briefed on a complete record and presents a question of law. We believe that the public interest will best be served by resolving it. See Detroit v Dep’t of Social Services, 197 Mich App 146, 158; 494 NW2d 805 (1992).
Under § 514(a) of the erisa, a state law that "relates to” employee benefit plans is preempted by the erisa, 29 USC 1144(a), Unless it falls under the "savings clause” of § 514(b)(2)(A), 29 USC 144(b)(2)(A). The phrase "relates to” is broadly defined to preempt state laws that have a connection with or reference to an employee benefit plan, even if the law is not specifically designed to affect such plans or the effect is only indirect. Ingersoll- Rand Co v McClendon, 498 US 133, 138-139; 111 S Ct 478; 112 L Ed 2d 474 (1990). "It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an erisa plan benefit.” Cromwell v Equicor-Equitable HCA Corp, 944 F2d 1272, 1276 (CA 6, 1991), cert dis — US —; 120 L Ed 2d 931 (1992). If applicable, the erisa preempts state common law in addition to statutory law. Pilot Life Ins Co v Dedeaux, 481 US 41; 107 S Ct 1549; 95 L Ed 2d 39 (1987).
In Teper v Park West Galleries, Inc, 431 Mich 202, 221; 427 NW2d 535 (1988), our Supreme Court held that a state law "relates to” an employee benefit plan and would be preempted by the erisa if it had the effect of
(1) altering the level of benefits which would be paid out under a given plan from state to state, (2) altering the terms of the plan such as requirements for eligibility, or (3) subjecting the fiduciaries of a plan to claims other than those provided in the erisa itself.
In United Wire, Metal & Machine Health & Welfare Fund v Morristown Memorial Hosp, 995 F2d 1179, 1193 (CA 3, 1993), the court held that a state law may relate to erisa plans if its effect, even if indirect, "is to dictate or restrict the choices of erisa plans with regard to their benefits, structure, reporting and administration, or if allowing states to have such rules would impair the ability of a plan to function simultaneously in a number of states.”
Even if a state law claim "relates to” the erisa, it may nonetheless be exempt from preemption under the "savings clause” in § 514(b)(2)(A). 29 USC 1144(b)(2)(A). This provision exempts from preemption state laws that regulate the business of insurance, banking, or securities. The savings clause is itself limited by the "deemer clause,” which provides that states may not treat self-insured erisa plans as insurers in order to subject them to state insurance regulation. 29 USC 1144(b) (2)(B).
Thus, states may regulate companies that insure erisa plans, but they may not regulate erisa plans. Lincoln Mutual Casualty Co v Lectron Products, Inc, 970 F2d 206, 210 (CA 6, 1992). A self-funded employee benefit plan is not subject to direct regulation by insurance laws pursuant to the language of the deemer clause. Auto Club Ins Ass’n v Frederick & Herrud, Inc (After Remand), 443 Mich 358, 382; 505 NW2d 820 (1993), quoting FMC Corp v Holliday, 498 US 52, 61; 111 S Ct 403; 112 L Ed 2d 356 (1990).
In this case, plaintiffs allege that defendant’s implementation of Premier plus resulted in: (1) a violation of Act 350, because defendant failed to file the plan with the Insurance Commissioner and thereby indicate the criteria for becoming a panel member; (2) a violation of the ppa, because defendant failed to offer plaintiffs an application for participation in Premier plus; (3) a violation of the Antitrust Reform Act, because Premier plus was designed to exclude competition among independent laboratories and did not fall under the antitrust exception for health maintenance organizations; (4) a breach of contract with referring doctors, because Premier plus unilaterally changed the terms of reimbursement for services and blood-handling fees; and (5) a tortious interference with the business relationship between laboratories and referring physicians.
We believe the erisa preemption clause prohibits plaintiffs’ claims because the specific state law provisions that form the basis for those claims "relate to” a self-funded employee health benefit plan and do not constitute regulation of the business of insurance. In Adnan Varol, MD, PC v Blue Cross & Blue Shield of Michigan, 708 F Supp 826 (ED Mich, 1989), several health care providers alleged that the defendant’s participation agreement for a pilot health care program violated Act 350 and other state laws. The court held the plaintiffs’ state law claims related to an erisa employee benefit plan and were preempted by the erisa. There, the plaintiffs challenged the authorization and concurrent review procedures in the program that the defendant administered for General Motors. The court found particularly relevant the fact that the defendant merely was acting as an administrator for a self-funded employee benefit plan agreed to between General Motors and its employees. Id. at 832.
Plaintiffs’ claims "relate to” an employee health benefit plan under the erisa. The state insurance regulations that plaintiffs seek to impose on defendant would, if applied, force defendant to alter the way it administers an employee health benefit plan adopted and funded by General Motors. Any finding by a court that changes plaintiffs’ standing with Premier plus will affect General Motors’ distributions under the plan. If defendant is ultimately required to consider and accept plaintiffs as panel providers for Premier plus, General Motors’ benefit plan will be required to reimburse more providers than it had anticipated. Opening the program to other providers will also weaken the leverage needed to negotiate lower fees with a select group of providers, which is undoubtedly a key reason to adopt such a program in a self-funded plan. See Stuart Circle Hosp Corp v Aetna Health Management, 995 F2d 500 (CA 4, 1993) (holding that a Virginia statute, which prohibited insurance companies from unreasonably discriminating against providers in establishing preferred provider organizations, related to an employee benefit plan). In addition, because insurance laws vary widely from state to state, applying Michigan law in this case would impair the ability of Premier plus to function simultaneously in a number of states for multijurisdictional employers such as General Motors. See United Wire, supra at 1193.
The next step in the erisa preemption analysis is to determine the effect of the savings clause. We believe the state law provisions that form the basis of plaintiffs’ claims do not regulate the business of insurance under the facts of this case because Premier plus is at this point solely a program for self-funded employee benefit plans. Plaintiffs’ claims for breach of contract, tortious interference, and antitrust violations are clearly not based on laws aimed at insurance regulation. See Pilot Life, supra at 50. The claims under Act 350 and the ppa also do not constitute efforts to regulate an insurance plan. Defendant administers General Motors’ traditional option health care program, which would incorporate Premier plus, under an "administrative services only” contract. This contract requires General Motors to reimburse defendant for all the covered health care charges paid by defendant on behalf of program enrollees and to pay defendant a fee for administering the program. The health plan is self-funded; defendant does not function as an insurer. If plaintiffs were to succeed in this suit, the state laws they invoke would be used essentially to regulate a self-funded erisa plan, not an insurance plan. Thus, plaintiffs may not invoke the savings clause in § 514(b)(2)(A).
Plaintiffs argue that, despite its role as administrator in this case, defendant is an insurance company subject to regulation. It cannot wear two hats. According to plaintiffs, when General Motors or any similarly situated entity sought an administrator for its self-funded health benefit plan, it chose a regulated entity and subsequently took the good with the bad in making that choice. We consider such reasoning circuitous and unacceptable. The fact that the administrator of the program is also an insurance company does not automatically trigger the savings clause. Plaintiffs’ argument would create a situation analogous to the one that the deemer clause was created to prevent. Preemption should not depend on the arbitrary distinction between programs with administrators that happen to engage in the business of insurance and those with administrators that do nothing but manage self-funded benefit plans. If there is any arbitrary distinction to be identified, it is whether a plan is self-funded or insured. As the United States Supreme Court stated in Metropolitan Life Ins Co v Massachusetts, 471 US 724, 747; 105 S Ct 2380; 85 L Ed 2d 728 (1985):
We are aware that our decision results in a distinction between insured and uninsured plans, leaving the former open to indirect regulation while the latter are not. By so doing we merely give life to a distinction created by Congress in the "deemer clause,” a distinction Congress is aware of and one it has chosen not to alter.
See also Stuart Circle, supra at 504 (quoting the same Supreme Court case though ultimately holding that preemption applied where the sponsor of a preferred provider plan served as an insurer and the state law applied only to insurers).
On this note, plaintiffs also contend that Premier plus is subject to state insurance laws because it is not strictly a program for self-funded employee benefit plans. Rather, defendant devel oped Premier plus in an effort not only to satisfy General Motors’ desire to cut costs with a preferred provider program but also to attract business from other major corporate employee benefit plans. However, General Motors’ self-funded plan is apparently the only one enrolled in Premier plus at this time. Because this record closed while Premier plus was purely a program for self-funded employee benefit plans managed by defendant under an administrative services only contract, we find plaintiffs’ claims are preempted under the ERISA.
IV
Defendant’s final two claims of error are arguably rendered moot by our decision regarding preemption. We have reviewed the claims because we anticipate the parties will seek further appellate review in the Supreme Court.
The trial court did not err in modifying its October 9, 1991, order by entering its December 20, 1991, order. The latter order enforced the terms of the former and did not improperly modify it under MCR 2.614(C). Nor did the trial court err in finding defendant in violation of the December 20, 1991, order when it issued the March 18, 1992, order.
The trial court did not err in denying defendant’s motion for security under MCR 3.310(D). Our review of this issue is limited to determining whether the trial court abused its discretion. Zapalski v Benton, 178 Mich App 398, 404; 444 NW2d 171 (1989). MCR 3.310(D)(1) provides:
Before granting a preliminary injunction or tem porary restraining order, the court may require the applicant to give security, in the amount the court deems proper, for the payment of costs and damages that may be incurred or suffered by a party who is found to have been wrongfully enjoined or restrained.
MCR 3.310(D)(1) is limited to security for a preliminary injunction or a temporary restraining order. In re Prichard Estate, 169 Mich App 140, 149; 425 NW2d 744 (1988). Neither of these is at issue in this case. Although the orders of October 9, November 13, and December 20, 1991, provided for a continuation of an earlier temporary restraining order, the March 18, 1992, order granted a permanent injunction regarding Premier plus as long as defendant refused to comply with the ppa. Moreover, where, as here, a full hearing on the merits was held before the issuance of an injunction, the rationale for requiring security is not applicable. See Felton v Wedthoff, 185 Mich 72, 80; 151 NW 727 (1915). Thus, neither the language nor the purpose of MCR 3.310(D)(1) supports defendant’s argument. The trial court did not abuse its discretion in refusing defendant’s request for security.
Affirmed in part and reversed in part.
W. J. Caprathe, J., concurred.
Although the federal district court concluded that "complete preemption” did not apply as a basis for subject-matter jurisdiction, it expressly declined to rule on the separate issue whether the erisa preempted plaintiffs’ state law claims.
Defendant concedes that it was not allowed security under MCR 2.109 because it was seeking such security to protect it from damages rather than to cover its costs and expenses. | [
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] |
Marilyn Kelly, P.J.
Henry Saraski appeals by leave granted from an order of the Worker’s Compensation Appellate Commission (wcac), permitting post-sixty-five age reductions in his weekly benefits pursuant to MCL 418.357; MSA 17.237(357). He appeals as well from a wcac denial of his motion to dismiss defendants’ appeal. He argues that dismissal is required, because Dexter Davison failed to pay seventy percent of his weekly benefits as required by MCL 418.862; MSA 17.237(862). We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
i
Henry Saraski fell and injured his knee while an employee of Dexter Davison on January 18, 1978. He was sixty-five years of age. Dexter Davison paid weekly benefits for general disability, with reductions pursuant to MCL 418.357; MSA 17.237(357). Payments with reductions pursuant to § 357 continued until shortly after the Supreme Court’s decision in Franks v White Pine Copper Division, 422 Mich 636; 375 NW2d 715 (1985). Then, apparently relying on Franks, Dexter Davison restored Saraski to his basic weekly rate before § 357 reductions and began coordinating fifty percent of his social security benefits pursuant to MCL 418.354; MSA 17.237(354). It also withheld fifty percent of the coordinated rate against what it viewed as a previous overpayment; the earlier reductions in weekly benefits had not equalled fifty percent of the social security benefits Saraski received during the same period.
In January, 1986, Saraski filed a petition alleging total and permanent disability due to the loss of industrial use of both legs, under MCL 418.361(3); MSA 17.237(361)(3). He was granted an open award of total and permanent disability benefits. The Second Injury Fund successfully appealed the referee’s failure to apply the two-year-back rule. Saraski successfully cross-appealed the determination of his average weekly wage. Dexter Davison took no appeal from the decision. When Saraski was awarded total and permanent disability under § 361(3), Dexter Davison was no longer permitted to coordinate benefits under § 354 because "benefits under section 361(2) and (3) are benefits which recognize human factors substantially in addition to the wage loss concept.” MCL 418.354(16); MSA 17.237(354X16).
Dexter Davison again began adjusting Saraski’s weekly benefits under § 357. There is no prohibition against taking § 357 age reductions in a § 361(3) award.
Saraski moved for mediation or a hearing, claiming that Dexter Davison was not entitled to reduce his weekly benefit under § 357, since it had already elected to coordinate his benefits under § 354. Magistrate Godfrey relied primarily on § 357(2) which states:
Subsection (1) shall not apply to a person 65 years of age or over otherwise eligible and receiving weekly payments who is not eligible for benefits under the social security act, 42 U.S.C. 301 to 1397f, or to a person whose payments under this act are coordinated under section 354. [MCL 418.357(2); MSA 17.237(357X2).]
He held that Dexter Davison must abide by its initial election between coordination under § 354 or reduction under § 357. Moreover, Dexter Davison could not change its selection absent a court order.
Dexter Davison appealed from Magistrate Godfrey’s decision to the wcac. Saraski moved to dismiss the appeal because Dexter Davison had failed to pay seventy percent of his weekly benefit while the appeal was pending as required by MCL 418.862; MSA 17.237(862).
The wcac observed that § 357(2) prohibits an employer from reducing benefits under both § 354 and § 357 simultaneously. However, it held that an employer is not prohibited from serially selecting between benefit reduction under § 354 or § 357 at its discretion. The wcac also concluded that its decision on the merits mooted Saraski’s motion to dismiss pursuant to MCL 418.862; MSA 17.237(862).
We now decide if the wcac’s decision permitting defendant to reduce plaintiff’s benefits under § 357, after defendant had earlier done so under § 354 and still earlier under § 357, was correct.
n
This Court may review questions of law involved in any final order of the wcac. We will reverse a wcac decision if the Commission operated within the wrong legal framework or if its decision was based on erroneous legal reasoning. Corbett v Montgomery Ward & Co, Inc, 194 Mich App 624, 631; 487 NW2d 825 (1992); Abbey v Campbell, Wyant & Cannon Foundry (On Remand), 194 Mich App 341, 351; 486 NW2d 131 (1992). Statutory interpretation is a question of law subject to de novo review on appeal. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75; 467 NW2d 21 (1991).
Previously, our Court considered the employer’s right to serially select between § 357 and § 354 to reduce a disabled employee’s benefits. In Krueger v Simplicity Pattern Co, we held that, once an employer elected to coordinate benefits, it could not reverse the coordination when the employee’s pension benefits expired. Krueger, p 217. Our Supreme Court dismissed the appeal of Krueger on stipulation of the parties after plaintiff died. It also vacated the judgment of our Court, without instruction or comment. Consequently, we again address the questions presented as matters ungoverned by existing precedent.
We conclude, for the reasons set out below, that the wcac’s decision that Dexter Davison was not bound by its election to coordinate benefits under § 354 was not error. In doing so, we do not adopt the wcac’s rule that serial selection between § 354 and § 357 at the employer’s discretion, with whatever frequency the employer chooses, is always permissible. Rather, we adopt the general rule of Krueger that once an employer makes an initial selection between § 354 and § 357, § 357(2) prohibits the employer from serially switching the selection. However, as with all general rules, specific circumstances may require a different result in order to prevent injustice. We find such circumstances here.
First, when Saraski was initially disabled, defendant elected to reduce benefits under § 357 not § 354. Defendant undertook coordination of benefits under § 354 only after our Supreme Court decided Franks. At the time, the question of whether serial selection was permissible had not been decided. Applying the rule developed in Krueger, which we explicitly adopt here, it is clear that defendant originally selected to reduce benefits under § 357; defendant now seeks merely to return to the original selection, contrary to plaintiffs contention that defendant originally selected to coordinate benefits under § 354.
However, we also note that in 1986, plaintiff sought to alter his disability status from total, temporary disability to total, permanent disability. When Administrative Law Judge Canady found plaintiff to be totally and permanently disabled, his finding had several ramifications. First, by operation of law, defendant could no longer reduce benefits under § 354 under any circumstances. MCL 418.354(16); MSA 17.237(354X16). Moreover, a change in a party’s disability status may be viewed as a new event which may terminate prior elections by the employer. It permits the employer to make a new election, if one is available. Equity requires that an employer be permitted to make a new election when the employee seeks and obtains a change in his or her disability status.
We distinguish the facts here from those in Krueger primarily on this basis: In Krueger, defendant sought to serially select between § 354 and § 357 solely at its discretion. The disabled worker, without recourse or warning, was at the mercy of the employer’s varying selection based merely on the economic self-interest of the employer. Here, plaintiff sought an altered disability status and was not merely the victim of defendant’s economic and business decisions.
Thus, we again decide that an employer may not serially switch between § 354 and § 357. Having made an. election, the employer must continue it. However, we also conclude that certain events, such as an employee’s successful alteration of his disability status, may create a narrow exception wherein the employer may alter its election. Consequently, we find no error in the wcac’s decision permitting defendant to make a new election under the circumstances existing here.
iii
We conclude that the wcac erred in failing to analyze Dexter Davison’s failure to pay seventy percent of Saraski’s benefits as a condition precedent to perfecting an appeal. MCL 418.862(1); MSA 17.237(862)(1). Saraski correctly notes that it is error for the wcac to refuse to assess penalties against an employer for failure to pay seventy percent of benefits pending appeal. It was not relevant whether the wcac ultimately denied the benefits sought. Boden v Detroit Lions, Inc, (On Remand), 193 Mich App 203, 208; 483 NW2d 673 (1992). It follows that Saraski’s request for the sanction of dismissal does not become moot simply because the wcac was persuaded that Dexter Davison should prevail on the merits.
We affirm the wcac’s decision that Dexter Davison was entitled to switch to age reduction of Saraski’s benefits pursuant to § 357 for the reasons set out above. We reverse the wcac’s decision which declares Saraski’s motion to dismiss moot. We remand for reconsideration of whether defendant’s failure to comply with § 862(1) required dismissal of its appeal. We do not retain jurisdiction.
D. F. Breck, J., concurred.
Superseded by statute MCL 418.354(17); MSA 17.237(354X17).
196 Mich App 212; 492 NW2d 790 (1992), vacated 442 Mich 912 (1993). | [
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Per Curiam.
Defendant appeals by leave granted from an order of the circuit court denying defendant’s motion to compel arbitration in this action arising out of defendant’s brokerage account at Shearson Lehman Brothers, Inc. We reverse.
On June 9, 1992, plaintiff commenced the present action against defendant, alleging tortious interference with an existing contractual relationship. Plaintiff was hired as an account executive at Shearson Lehman Brothers, Inc., in 1984. From 1984 until June 1989, plaintiff executed defendant Leo Peters’ stock and commodity trading through defendant’s brokerage account at Shearson. Plaintiff alleged that in June 1989, he entered into an oral agreement with Chester Lautenbach, Jr., another account executive at Shearson, allowing Lautenbach to handle defendant’s account. Under the agreement, both parties would split the commissions generated from the account. Plaintiff further alleged that defendant knew of the parties’ agreement but, nevertheless, directed Shearson’s manager to pay all the commissions from his account to Lautenbach.
On July 9, 1992, defendant moved to compel arbitration of plaintiffs claim. Defendant argued that plaintiffs employment contract with Shearson as well as the rules of the New York Stock Exchange (nyse) and the National Association of Securities Dealers (nasd), where plaintiff was registered, required the submission of the claim to arbitration. In denying defendant’s motion, the trial court ruled that the arbitration clause contained in the employment agreement was limited to disputes within the expertise of the securities industry. Additionally, the trial court concluded that arbitration was not compelled by the nasd and nyse rules because such arbitration was limited to disputes arising from the conduct of the broker rather than the customer. Defendant now appeals as of right. We reverse.
Defendant first argues, inter alia, that nyse Rule 600(a) requires that plaintiff, as an associated person, arbitrate his dispute with defendant. It is undisputed by both parties that plaintiff, as an employee of Shearson, was an "associated person” at the time of the present action. Rule 600(a) of the nyse requires associated persons to submit to arbitration any claims or disputes with a customer or nonmember "arising in connection with the business of such . . . associated person in connection with his activities as an associated person.”
The duty to arbitrate assumed by an associated person under Rule 600(a), where the alleged misconduct is attributed to a customer or nonmember, is limited to only those controversies that arise out of the associated person’s exchange-related activities. Haviland v Goldman Sachs & Co, 947 F2d 601, 605-606 (CA 2, 1991); Fleck v E F Hutton Group, Inc, 891 F2d 1047 (CA 2, 1989); Paine, Webber, Jackson & Curtis, Inc v Chase Manhattan Bank, NA, 728 F2d 577 (CA 2, 1984).
Because it is clear that defendant is a customer, arbitration under Rule 600(a) applies only to exchange-related controversies. In the present case, the controversy does arise out of plaintiff’s exchange-related activities. The instant dispute is grounded upon an alleged agreement between plaintiff and another account executive at Shear-son to split commissions from defendant’s brokerage account. Under these circumstances, the trial court erred in denying defendant’s motion to compel arbitration.
Our resolution of this issue renders it unneces sary to address defendant’s remaining claims on appeal.
Reversed.
The federal arbitration act, 9 USC 1-15, controls actions in both state and federal courts and "[s]tate courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act.” Kauffman v Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). The arbitration provisions of the nyse Constitution and Rules are sufficient to compel arbitration of covered disputes under the act irrespective of whether they are incorporated into a separate agreement. Paine, Webber, Jackson & Curtis, Inc v Chase Manhattan Bank, NA, 728 F2d 577, 579 (CA 2, 1984).
The Securities Exchange Act of 1934 defines an “associated person” as "a person associated with a member as, inter alia, an officer, director, branch manager, or employee of a broker or dealer that is a member.” Fleck v E F Hutton Group, Inc, 891 F2d 1047, 1054 (CA 2, 1989), citing 15 USC 78c(a)(18), 78c(a)(21). | [
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Neff, J.
Plaintiffs appeal as of right from an order of the circuit court granting summary disposition to defendants. The circuit court determined it was without subject-matter jurisdiction to hear plaintiffs’ case, which was based on the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., because plaintiffs had already initiated an administrative action with the Department of Labor pursuant to the wage and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq. We reverse the order granting summary disposition to defendants and remand this case to the circuit court for further proceedings.
i
Plaintiffs worked at defendants’ establishment as waitresses, cooks, and bartenders. Plaintiffs were allegedly required to put all of the tips they received into a jar, so that defendants could take half of the tips for themselves. When plaintiffs allegedly challenged this practice by claiming they would report defendants to the Internal Revenue Service, they were discharged by defendants. Shortly after being fired, plaintiffs filed a complaint with the Department of Labor pursuant to the wage and fringe benefits act. Shortly thereafter, and while the administrative proceeding was continuing, plaintiffs filed the instant suit in the circuit court.
ii
A
When reviewing a motion for summary disposition under MCR 2.116(C)(4), this Court must determine whether the pleadings demonstrate that the defendant was entitled to a judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact. MCR 2.116(G)(2) and 2.116(I)(1); Sargent v Browning-Ferris Industries, 167 Mich App 29, 33; 421 NW2d 563 (1988).
B
The relevant portion of the wpa, MCL 15.362; MSA 17.428(2), provides:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.
The wage and fringe benefits act provides for the time and manner in which employees receive compensation. The provision relevant to this case, MCL 408.483(2); MSA 17.277(13X2), provides:
An employee who believes that he or she is discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the department alleging the discrimination within 30 days after the violation occurs. Upon receipt of the complaint, the department shall cause an investigation to be made. If, upon the investigation, the department determines that this section was violated, the department shall order the rehiring or reinstatement of an employee to his or her former position with back pay.
Defendants argued below that the trial court was without subject-matter jurisdiction to hear plaintiffs’ claim because, once plaintiffs initiated the administrative proceeding with the Department of Labor, exclusive jurisdiction vested with that administrative agency.
c
The court below relied primarily on this Court’s opinions in Cockels v Int’l Business Expositions, Inc, 159 Mich App 30; 406 NW2d 465 (1987), and Murphy v Sears, Roebuck & Co, 190 Mich App 384; 476 NW2d 639 (1991), in support of its determination.
In Cockels, this Court dealt with whether the provision of the wage and fringe benefits act regarding retaliatory dismissals provided an exclusive or cumulative remedy with respect to the common law. See Murphy, supra at 387. It did not deal with whether that remedy provision is exclusive when a separate statutory provision is involved.
In Murphy, the question before this Court was whether a plaintiff must proceed with administrative remedies pursuant to the wage and fringe benefits act where that plaintiff also had an independent common-law remedy. This Court determined that the plaintiff may follow either course, but then, in dicta, went on to state that
once an employee chooses to pursue the administrative remedy, that remedy must be utilized exclusively, including an appeal to the circuit court. [Id. at 388.]
Plaintiffs here, rather than basing their civil complaint on a common-law remedy, seek their remedy pursuant to the wpa, a separate statutory scheme, which itself creates new rights and imposes new duties. See Tyrna v Adamo, Inc, 159 Mich App 592, 599-600; 407 NW2d 47 (1987). Accordingly, both Cockels, supra, and Murphy, supra, are distinguishable from this case. See, e.g., Tyrna, supra at 598-599.
D
On appeal, both parties rely on Shuttleworth v Riverside Osteopathic Hosp, 191 Mich App 25, 27; 477 NW2d 453 (1991), wherein this Court determined that no common-law cause of action predated the wpa, and that the statute’s remedy provision was exclusive. Accordingly, this Court upheld the dismissal of the plaintiffs complaint that purported to be based on a common-law whistleblowers’ theory. Id.
After this dispositive ruling was made, this Court, in dicta, also addressed whether a separate remedy was available to the plaintiff under the Michigan Occupational Safety and Health Act (miosha), MCL 408.1001 et seq.; MSA 17.50(1) et seq. Shuttleworth, supra at 28. This Court determined that the plaintiff had a separate remedy under the miosha, and then stated that "before resorting to a civil action, [the plaintiff] first must have pursued the administrative remedies contained in the miosha.” Id. Because this language is dicta, we decline to follow it.
E
We find this Court’s opinion in Tyrna, supra, to be most applicable here. In Tyrna, this Court determined that a plaintiff could initiate a cause of action in a civil court under the wpa, while at the same time pursuing administrative rights under the miosha. Id. at 600-601. The plaintiff in Tyrna was fired after reporting a safety violation to various local officials. Id. at 596. The plaintiff filed her miosha complaint after she was fired. Id. at 596-597.
This Court began its analysis by examining the purposes behind the two statutes, noting that they overlapped, and determining that the plaintiffs reporting of the violation satisfied the requirements of both statutes. Id. at 599. This Court then held
that the Legislature has provided overlapping remedies for an employee whose employment is terminated in retaliation for such reporting. The Legis lature has not provided that the employee must pursue only one statutory remedy. [Id.]
This Court also determined that the scope of the remedies provided by the wpa differed somewhat from those offered by the miosha. Id. at 600. Accordingly, this Court stated that "we see no reason, without further legislative direction, that plaintiff should not be able to pursue a cause of action under both statutes.” Id. at 600-601.
Similarly, here, the wage and fringe benefits act and the wpa provide differing remedies and encompass differing, but not conflicting, goals. The preamble to the wage and fringe benefits act provides:
An act to regulate the time and manner of payment of wages and fringe benefits to employees; to prescribe rights and responsibilities of employers and employees, and the powers and duties of the department of labor ... to provide for settlement of disputes regarding wages and fringe benefits; to prohibit certain practices by employers; to prescribe penalties and remedies.
Thus, the goals of that act relate to wage and fringe benefits issues between an employee and an employer. These goals are narrower than those of the wpa.
The goals of the wpa, according to this Court’s opinion in Hopkins v Midland, 158 Mich App 361, 374; 404 NW2d 744 (1987), are "to protect the integrity of the law by removing barriers to employee efforts to report violations of the law,” and "to protect the public by protecting employees who report violations of laws and regulations.” This applies broadly to "reporting to any public body a violation of any law or regulation of this state, a political subdivision, or the United States. MCL 15.362; MSA 17.428(2).” Tyrna, supra at 599.
Plaintiffs’ complaint in this case, like that in Tyrna, supra, satisfies the requirements of both statutes.
in
We hold that the Legislature has provided overlapping remedies for an employee whose employment is terminated for reporting wage and fringe benefits violations. We find it within the legislative intent for a plaintiff to pursue a wpa cause of action even though that plaintiff has already initiated a wage and fringe benefits act administrative proceeding. The wpa provides remedies not available in the wage and fringe benefits act, cf. MCL 408.483(2); MSA 17.277(13X2) with MCL 15.364; MSA 17.428(4); see also Tyrna, supra at 600. There are no conflicts between the remedies provided, and the goals of the two statutes are complementary.
In addition, if plaintiffs were to be relegated to their wage and fringe benefits act remedy, they could lose their wpa remedies if the resolution of the wage and fringe benefits act claims took longer than ninety days from the occurrence of the alleged violations. See MCL 15.363(1); MSA 17.428(3) (1). Thus, our holding here serves the beneficial purpose of allowing an harmonious reading of both statutes. See House Speaker v State Administrative Bd, 441 Mich 547, 568-569; 495 NW2d 539 (1993).
Accordingly, we reverse the lower court’s determination that it lacked subject-matter jurisdiction to hear plaintiffs’ case and remand this case for further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction. | [
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Hood, P.J.
Plaintiff, Stolaruk Corporation, sought to recover from defendants Strada Asphalt Paving Company, Angelo’s Crushed Concrete, Inc., and Dominic Iafrate (hereafter defendants Strada) costs that it incurred during the cleanup of certain contaminated real property. Stolaruk also claimed that defendant Central National Insurance Company was obligated under a contract of insurance to honor its claim for coverage regarding the same cleanup. The trial court granted summary disposition in favor of defendants Strada and Central National pursuant to MCR 2.116(0(10), and subsequently denied Stolaruk’s motion for rehearing or reconsideration. Stolaruk appeals as of right. We affirm.
In 1986, Stolaruk, which owned various parcels of Michigan real property, agreed to sell Strada certain real property situated in Rochester Hills and Southfield. Additionally, Stolaruk sold Strada the asphalt plants located on these properties, as well as an asphalt plant located in Groveland Township. Strada removed the asphalt plant from the Groveland Township property in the spring of 1986.
Litigation concerning these transactions ensued between Stolaruk and Strada, and a consent judgment was eventually entered on September 28, 1988, in the Macomb Circuit Court. The consent judgment set forth the terms and conditions of the transfer from Stolaruk to Strada of a four-acre parcel of property in Rochester Hills. The consent judgment included a merger and general release whereby each party agreed to release the other from liability relating to then known or future causes of action. Finally, an indemnification provision was included in the consent judgment whereby Strada agreed to indemnify Stolaruk for liability relating to any claim made by a governmental agency concerning the existence of substances exceeding acceptable toxicity levels on certain specified property.
In November of 1989, the Michigan Department of Natural Resources issued a directive to Stolaruk requiring it to investigate and remediate diesel fuel contamination at the Groveland Township property. Stolaruk sought insurance coverage from its provider, Central National, to cover the costs of this endeavor; Central National denied coverage; Stolaruk incurred out-of-pocket expenses in excess of $100,000 in its effort to comply with the dnr directive.
Stolaruk then initiated the present action against Central National and sought to have the court declare the rights and liabilities of the parties under the contract of general liability insurance covering the Groveland Township property. Central National moved for summary disposition, claiming that it was not obligated under the insurance contract because Stolaruk had prejudiced its (Central National’s) right to subrogation by executing the comprehensive release contained in the 1988 consent judgment. Stolaruk then filed an amended complaint naming Strada as defendant. Stolaruk claimed that Strada caused the contami nation of the Groveland Township property by removing the asphalt plant in 1986 and, further, that the indemnity provision contained in the consent judgment obligated Strada to compensate it for the expenses incurred as a result of the dnr directive. Strada also moved for summary disposition.
The trial court granted summary disposition for defendants Central National and Strada pursuant to MCR 2.116(0(10), concluding that the indemnification provision contained in the consent judgment applied solely to the Rochester Hills property, and not to the Groveland Township property. Therefore, according to the trial court, Strada was not required to indemnify Stolaruk for expenses incurred during the process of remediating the contamination found to exist at the Groveland Township property. Additionally, the trial court found that Central National was not obligated under the insurance policy because Stolaruk had prejudiced its right to subrogation by executing the general release found in the consent judgment.
First, Stolaruk argues that the trial court erred in concluding that its claim for insurance coverage was barred. Stolaruk contends that the trial court’s grant of Central National’s motion for summary disposition pursuant to MCR 2.116(0(10) was improper because important questions of fact existed. We disagree.
Regarding the Groveland Township property, the contract of insurance between Stolaruk and Central National contains a subrogation clause that provides:
8. Subrogation. In the event of any payment under this policy, the company shall be subrogated to all the insured’s rights of recovery therefor against any person or organization and the in sured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights. [Emphasis added.]
Further, the contract of insurance expressly provides that no action shall lie against Central National if Stolaruk fails to satisfy all of the conditions set forth therein. Clearly, as a condition precedent to Central National’s performance under the contract, Stolaruk was required to take those measures necessary to protect Central National’s subrogation rights.
Stolaruk contends that it had no knowledge of the contamination at the' Groveland Township property when it executed the general release and, therefore, that it did nothing "after loss” to prejudice Central National’s subrogation rights. We find myopic plaintiffs focus on the "after loss” language contained in the subrogation clause. By urging such a narrow interpretation of the subrogation provision, plaintiff seeks to obfuscate the clear import of the clause — namely, that the insured would do nothing to negatively affect the subrogation rights of the insurer.
Moreover, the release contained in the consent judgment provides as follows:
IV. It is further ordered and adjudged that this Consent Judgment shall merge any and all claims, past, present or future, known or unknown, accrued or not accrued, contingent or otherwise, relating to these parties arising out of or relating to the transactions between the Plaintiffs and the Defendants which are the subject matter of the instant litigation.
V. It is further ordered and adjudged that the Consent Judgment shall also constitute a complete release between the Plaintiffs and Defendants as to all actions, suits, proceedings, claims and demands whatsoever, known or unknown, contingent or otherwise, either of them at any time had or has in respect to any act, cause, matter, or thing except those obligations provided for in this Consent Judgment. [Emphasis supplied.]
The foregoing language makes it clear that Stolaruk and Strada executed a release covering all known, unknown, then existing, or future causes of action. Hence, we find meritless Stolaruk’s argument that it did not know of the Groveland Township contamination when it executed the release, because it is clear that the release encompassed all present or future causes of action whether known or unknown. Therefore, having breached a condition precedent by absolutely releasing a potential tortfeasor from liability, Stolaruk destroyed Central National’s right of subrogation as against Strada and, thus, Stolaruk is barred from pursuing a cause of action on the insurance policy. Poynter v Aetna Casualty & Surety Co, 13 Mich App 125, 128-130; 163 NW2d 716 (1968).
Stolaruk also argues that a question of fact existed regarding whether Strada was indeed responsible for contaminating the Groveland Township property. According to Stolaruk, absent a showing of causation on Strada’s part, it cannot be fairly said that Central National even had a right of subrogation against Strada. Thus, Stolaruk contends that it was improper for the trial court to grant summary disposition in favor of Central National on the basis that Stolaruk had destroyed Central National’s right of subrogation by entering into the mutual release with Strada. We find this argument unpersuasive.
It is axiomatic that a motion for summary disposition based upon the failure to state a claim tests the legal sufficiency of a claim by the pleadings alone. MCR 2.116(C)(8). However where matters outside the pleadings are considered, summary disposition is proper only where reasonable minds could not differ. MCR 2.116(0(10); Burger v Midland Cogeneration Venture, 202 Mich App 310, 315-316; 507 NW2d 827 (1993). Below, through its pleadings, Stolaruk maintained that Strada caused the contamination at issue. Central National produced the consent judgment and argued that Stolaruk’s action was barred as a result of the release contained in the judgment. The trial court found, and we agree, that Strada and Stolaruk agreed to a complete release concerning all present and future causes of action. Accordingly, because it is clear that Stolaruk had executed a general release in favor of the party that it identified in its pleadings as having caused the contamination at the Groveland Township site (Strada), we conclude as did the trial court that Central National was entitled to summary disposition as a matter of law because thé release destroyed its right of subrogation against Strada. MCR 2.116(C)(10); Burger, supra; Poynter, supra.
It does not matter that Strada denied causing the contamination. Below, Central National and Strada opposed Stolaruk’s claims through two separate motions for summary disposition. Paying particular attention to the factual allegations contained in Stolaruk’s claim against Central National, and Central National’s motion for summary disposition, we find that no record could be developed that would leave open an issue upon which reasonable minds could differ regarding Stolaruk’s claim against Central National. Accordingly, notwithstanding Strada’s denial, the trial court properly granted Central National’s motion for summary disposition. Amorello v Monsanto Corp, 186 Mich App 324, 329-330; 463 NW2d 487 (1990).
Next, Stolaruk argues that Strada was required to indemnify it pursuant to the language of the consent judgment. Again, we disagree. The following indemnification provision was inclúded in the consent judgment at Section III(C)(2)(k):
That, upon the Closing, the Defendants herein (Strada) shall forever indemnify and hold harmless Plaintiffs, their successors, assigns, heirs and personal representatives from any and all liability relating to any claim by any governmental agency, State or Federal, person, corporation or any other entity as to the . existence of substances which exceeds acceptable toxicity levels, as provided by the Michigan Department of Natural Resources and/or U.S. Environmental Protection Agency, including, but not limited to, fines, penalties, actual attorneys fees or any other monies or obligations expended or incurred and Defendants shall have the absolute duty to defend including retention of legal counsel. [Emphasis supplied.]
We agree with plaintiff that the foregoing constitutes a promise by Strada to indemnify it for costs associated with the remediation of toxic substances. However, contrary to plaintiff’s argument, this indemnification agreement is not broad, but rather applies specifically to certain property located in Rochester Hills.
Other language in the consent judgment makes it clear that the parties did not intend the indemnification agreement to be comprehensive. Instead, it is clear from the language of the consent judgment that the parties intended the indemnification provision to apply only to specific parcels of land in Rochester Hills. Indeed, the above-emphasized "Closing” language found in the indemnification clause concerns the Rochester Hills property. Additionally, remarks made by plaintiff’s counsel on the record concerning the indemnification agree ment further satisfies us that the provision was only intended to apply to the Rochester Hills property. Accordingly, because Stolaruk has failed to establish that Strada agreed to indemnify it for remediation costs concerning the Groveland Township property, it is clear that the above-discussed mutual release precludes Stolaruk from now attempting to seek indemnification from Strada.
Finally, Stolaruk argues that the Environmental Response Act (era) renders the release invalid. We disagree. The relevant provision of the era, MCL 299.612d; MSA 13.32(12d), provides:
(1) An indemnification, hold harmless, or similar agreement or conveyance is not effective to transfer from a person that may be liable under section 12 to the state for evaluation or response activity costs or damages for a release or threat of release to any other person the liability imposed under this act. This section shall not bar an agreement to insure, hold harmless, or indemnify a party to the agreement for liability under this act.
(2) This act does not bar a cause of action that a person subject to liability under this act, or a guarantor, has or would have, by reason of subrogation or otherwise against any person.
This section has not been interpreted by either this Court or the Michigan Supreme Court, and unfortunately the language employed by the Legislature lacks clarity. Further, the House Legislative Analysis report concerning this provision does not shed more light on the subject. However, federal courts have addressed similar provisions in the Comprehensive Environmental Response, Compensation, and Liability Act (cercla), 42 USC 9601-9657, and the Leaking Underground Storage Tank Act (lusta), MCL 299.831-299.850; MSA 14.528(261)-14.528(280). Of these decisions, we are inclined to follow Niecko v Emro Marketing Co, 973 F2d 1296 (CA 6, 1992).
In Niecko, the Sixth Circuit Court of Appeals affirmed a decision of the federal district court for the eastern district of Michigan. Niecko involved an interpretation of § 12(6) of the lusta, which, for purposes of this discussion, is analogous to the era provision at issue here. Because there was no case law interpreting the subsection of the lusta, the Sixth Circuit Court of Appeals, as did the district court, looked at cases that interpreted the relevant cercla provision.
The Niecko court concluded that the relevant lusta provision allows a party to release another from financial responsibility arising out of environmental contamination liability. Id. In so doing, the Niecko court reasoned as follows at 1300-1301:
However, the better interpretation, and the one used by the district court in the instant case, is that the first sentence provides that all parties involved are to be jointly and severally liable to the claimant under the statute. Where the claimant is the government, liability may not be transferred. However, as between the parties allegedly responsible, the district court held that liability may indeed be transferred. In other words, the ñrst sentence ensures the clean up is performed and those responsible cannot escape their liability for cleaning the property. However, in terms of financial liability, the parties may allocate the costs of the clean up between them. Such an interpretation is consistent with the legislative history of cercla. [Emphasis supplied.]
Put another way, the Niecko interpretation prevents a party from contracting away its liability as against the government, but allows private parties to allocate the financial responsibility for the costs of the cleanup as between themselves. See also Mardan Corp v CGC Music, Ltd, 804 F2d 1454 (CA 9, 1986); AM Int’l, Inc v Int’l Forging Equipment Corp, 982 F2d 989 (CA 6, 1993).
We adopt the Niecko-view as applicable to the present case and hold that private parties potentially responsible for environmental contamination under the era may be jointly and severally liable to the government for cleanup or closure costs, notwithstanding any agreement by the parties to the contrary. However, private parties may agree with one another to apportion the costs of any such cleanup between themselves in any manner that they see fit. Accordingly, the release entered into by Stolaruk and Strada is not precluded by § 12d of the era. Accordingly, the trial court properly concluded that Stolaruk, having executed the general release, was prohibited from attempting to recoup from Strada the monies expended during its effort to remediate the contamination found at the Groveland Township property. Summary disposition was therefore proper. MCR 2.116(0(10); Niecko, supra.
Affirmed.
Central National insured Stolaruk under two separate policies — a primary policy and an umbrella policy. Therefore, because Stolaruk sought to collect on both policies, Central National was treated as two defendants. It is not disputed that Central National would not be obligated under the umbrella policy upon a determination that it was not liable under the primary policy. Indeed, Central National was found not liable on the primary policy. Therefore, for purposes of this appeal, when referring to Central National, we are addressing its obligations under the primary policy, unless the umbrella policy is specifically mentioned. | [
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] |
Per Curiam.
The prosecutor appeals by leave granted from an October 13, 1993, circuit court order affirming a probate court ruling that the prosecutor had no independent standing in the instant child protective proceedings. We affirm.
An analysis of the facts underlying the probate court’s assumption of jurisdiction in both matters is unnecessary for the determination of the issue raised on appeal. The question to be decided is one of law — whether the prosecutor has independent standing to proceed in child protective proceedings when the Department of Social Services requests and obtains representation from the Attorney General’s office.
We find the prosecutor, under certain circumstances, has standing to petition the probate court for the termination of a parent’s parental rights and to appear at all child protective proceedings regardless of the Department of Social Services’ position and representation by the Attorney General’s office. Nonetheless, for the reasons set forth below, we find no error in the circuit court’s affirmance of the probate court’s ruling that the prosecutor had no standing with regard to the instant matters, in part because the prosecutor did not properly petition the court for termination.
Child protective proceedings are governed by the Juveniles and Juvenile Division Chapter of the Probate Code, MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq., and subchapter 5.900 of the Michigan Court Rules. The code affords the prosecutor standing to appear in child protective proceedings under three circumstances. MCL 712A. 17(4); MSA 27.3178(598.17)(4) provides for the prosecutor’s appearance at all hearings upon the request of the court, see also MCR 5.914(A); MCL 712A. 17(5); MSA 27.3178(598.17)(5) provides for the prosecutor’s appearance on behalf of the Department of Social Services when requested by the department; and MCL 712A.19b(l); MSA 27.3178(598.19b)(l) permits the prosecutor to file a petition for termination of parental rights after a child has remained in foster care or the custody of a guardian for a specified duration. See also MCR 5.974(A)(1), which authorizes a prosecutor to file original, amended, and supplemental petitions for termination.
In each of the underlying matters, the prosecutor failed to obtain standing pursuant to any of these provisions. Although it appears the prosecutor in each case could have filed an original petition seeking termination of parental rights independent of the department’s actions, no such petitions were filed. In both cases, the original petitions were filed by the Department of Social Services. Although the prosecutor filed an "amended petition” in the Hill case and attempted to file a "supplemental petition” in the Frederick case, these actions did not act to confer standing on the prosecutor. The prosecutor could not amend or supplement another party’s petition. Until the prosecutor filed his own petition for termination as set forth in MCL 712A.19b(l); MSA 27.3178(598.19b)(l), absent a finding that the probate court requested the prosecutor’s appearance pursuant to MCL 712A.17(4); MSA 27.3178(598.17) (4), the prosecutor had no standing independent of his representation of the department of social services pursuant to MCL 712A.17(5); MSA 27.3178(598.17X5). Because the prosecutor unequivocally denies appearing on behalf of the department, the only remaining vehicle through which the prosecutor could have obtained standing in either matter was by invitation of the court, MCL 712A.19b(l); MSA 27.3178(598.19b)(l). The prosecutor suggests he received such invitation through receipt of notices of the various hearings. However, as noted by the probate court judge, the prosecutor was notified of the proceedings because the prosecutor had specifically requested to receive such notice. We find receipt of notice of hearings insufficient to constitute a formal request by the court to appear on behalf of the people in child protective proceedings pursuant to the code.
Thus, although we conclude a prosecutor may have independent standing to appear at all stages of child protective proceedings, in these cases the prosecutor failed to obtain such standing.
Affirmed.
The prosecutor suggests MCL 49.153; MSA 5.751 also provides the prosecutor standing to appear in child protective proceedings. We disagree. MCL 49.53; MSA 5.751 is a broad provision outlining the duties of a prosecutor. Even if the provision was interpreted as addressing a prosecutor’s standing, the more specific statutory provisions of the Probate Code would control. In re PSC Determination, No 1, 204 Mich App 344; 514 NW2d 535 (1994). | [
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Neff, J.
This appeal involves an action for declaratory judgment brought by plaintiff, Fire Insurance Exchange (the insurer), to determine whether it had a duty to defend or provide coverage to its insureds, Clifford Buckmaster, Michelle Buckmaster, and their son (hereinafter referred to as the boy), in an underlying civil action brought by defendant, Mary Ann Diehl, individually and as next friend of her minor daughter. (The minor daughter hereinafter will be referred to as the girl). Diehl brought a counterclaim against the insurer, alleging breach of a third-party beneficiary contract and requesting imposition of sanctions and reasonable attorney fees. Diehl appeals as of right from an order of the circuit court granting summary disposition in favor of the insurer. The Buckmasters are not parties to this appeal. We reverse and remand for entry of an order granting summary disposition in favor of Diehl.
i
In the underlying case against the Buckmasters, Diehl sought to recover for physical insult, bodily injury, and damages suffered by the girl as a result of two alleged sexual assaults committed by the boy. The alleged assaults involved the boy coercing or otherwise forcing the girl to engage in "oral sex.”
The first alleged assault occurred in the summer of 1988 or the summer of 1989. However, the deposition testimony of Mary Ann Diehl suggests the possibility that the first assault may have occurred before or during June 1988. The girl began seeing a therapist in June 1988 because of behavioral changes. The second alleged assault occurred around July 1990. At the time of the first alleged assault, the boy was either seven or eight years old, and the girl was four or five years old. At the time of the second alleged assault, the boy was nine years old, and the girl was six years old.
The underlying complaint also alleges a count of negligent supervision against Michelle and Clifford Buckmaster based on their failure to prevent the alleged acts by not exercising reasonable parental authority over the boy.
The insurer filed a declaratory action, seeking a judgment that it had no duty to provide a defense or coverage to the Buckmasters for any of the allegations in the underlying complaint. The insurer claimed, inter alia, that the boy’s conduct constituted intentional acts that are specifically excluded under the language of the homeowner’s policy issued to the Buckmasters.
After discovery was completed in this case, the trial court granted the insurer’s motion for summary disposition, which was brought pursuant to MCR 2.116(C)(10) (no genuine issue concerning any material fact). The trial court focused on the policy language and on whether the alleged injuries to the girl were reasonably foreseeable. It then applied an objective reasonable man standard in granting summary disposition in the insurer’s favor. The court declined to apply a reasonable child standard, finding that to do so would "invite an analysis in each case of a complained-of actor’s maturity or intellectual ability or that person’s subjective circumstances.”
ii
The policy provides for personal liability coverage for an occurrence:
We shall pay all damages from an occurrence which the insured is legally liable to pay because of bodily injury or property damages covered by this policy.
At our expense we shall defend an insured against any covered claim or suit. We may investigate and settle any claim or suit that we consider proper.
An occurrence is defined as: "[A] sudden event, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage neither expected nor intended by the insured.”
The policy in effect from July 1987 to July 1988 also contains an intentional-acts exclusion, which provides:
We do not cover bodily injury or property damage:
3. Either;
a. caused intentionally by or at the direction of an insured, or
b. resulting from an occurrence caused by an intentional act of an insured person where the results are reasonably foreseeable.
The policies in effect after July 1988 contain an endorsement that changes the phrase "an insured person” in exclusion 3b to "any insured.”
There is no dispute between the parties that the boy’s acts were intentional. The parties do, however, dispute whether the boy’s acts constitute occurrences. In arguing that there was no occurrence, the insurer focuses only on whether the bodily injury was expected or intended by the insured. For there to be an occurrence, the bodily injury must be "neither expected nor intended by the insured.” As will be discussed further, on the record before the trial court and before this Court, there is no question that the boy neither expected nor intended the claimed bodily injury to the girl even though his sexual acts were clearly intentional. Accordingly, the boy’s acts constitute occurrences under the policy, and the insurer cannot avoid its duties to defend and provide coverage on the basis of this argument. If the insurer is to avoid these duties, it must be able to do so on the basis of the language of the intentional-acts exclusion in the policy.
hi
It is clear from the boy’s deposition testimony that, although the sexual acts were clearly intentional, the boy did not intend to harm the girl and did not understand that his sexual acts would or could cause harm to her. His testimony indicates an understanding that one would be injured if shot with a gun:
Q. Have you ever seen [movies or television shows] when they pull out a gun?
A. Uh-huh.
Q. Did you ever see anybody get shot with that gun?
A. Yes.
Q. When somebody shoots that gun, what do you think happens to the person that gets hit with the gun?
A. They either get hurt bad or die.
Q. Why is that?
A. Because the gun is very powerful.
Q. What comes out of the gun?
A. A bullet.
Q. And when somebody gets hit with that bullet, what do you see happen?
A. Blood.
Q. Is that how you know somebody gets hurt?
A. Yes.
Thus, it is clear that the boy could reasonably foresee the harm caused by such physical violence.
However, his testimony indicates that he has no understanding whatsoever of the potential for harm from sexual acts by either himself or others. The boy admitted that he had seen "bad movies” of people "mating” on television:
Q. I think you told us a minute ago that you’ve seen people mating on television, right?
A. Yes.
Q. Did it look like they were hurting each other?
A. No.
Q. Did it look like they were having fun?
A. No.
Q. Did you ever think in watching that that they were hurting each other?
A. No.
The boy also admitted asking another young boy to perform fellatio upon him before the first alleged act upon the girl, but testified that he did not. know that he was hurting the boy:
Q. Do you remember asking [another boy] to suck your penis?
A. Yes.
Q. Did you do that?
A. Yes.
Q. Did he do that?
A. Yes.
Q. Now why did you ask [him] to do that?
A. I don’t know.
Q. Did you ever have anybody else suck your penis?
A. Not before that.
Q. That’s the first time.
A. Uh-huh.
Q. Did your mom talk to you after she found out what you and [the other boy] did?
A. Yes.
Q. Did she ever tell you, when she talked to you, that you might be hurting [the other boy]?
A. No.
Q. Did she ever tell you that you might be hurting yourself?
A. No.
Q. Do you know what I mean when I say hurt somebody in the head versus hurt somebody someplace else on their body?
A. Yes.
The boy admitted both of the acts against the girl, but testified that he had no idea he was hurting her:
Q. Do you want to tell us in your own words what happened [in your basement] with the girl?
A. Well, I told her to suck my penis, and she did.
Q. Did you know when you were doing it that you were doing something bad?
A. No.
Q. Did you think you were doing something good?
A. No.
Q. Did you think you were doing something fun?
A. No.
Q. You were just doing it to do it.
A. Yes.
Q. Were you being curious?
A. Yes.
Q. Did you have any idea that you would be hurting the girl?
A. No.
Q. Did you ever mean to hurt the girl?
A. No.
Q. The girl was your friend, wasn’t she?
A. Yes.
Q. Did you have any idea that you may be hurting the girl in her head?
A. No.
Q. (By Mr. Harry:) Did you ever go up into the girl’s closet with her, at her house?
A. Yes.
Q. Did you guys do anything there?
A. Yes.
Q. What did you do?
A. The same thing.
Q. What did you guys do in the closet? When you said "the same thing,” what same thing?
A. She sucked my penis.
Q. Did you mean to hurt the girl in any way then?
A. No.
In addition to the boy’s deposition testimony, the trial court also had before it a letter from David A. Vore, Ph.D., a clinical psychologist regarding the capability of average 8V2- to 9-year-old children to foresee the expected or intended results of sexual acts:
2. In a general sense, children within the 8V2 to 9 year age range display limitations in the capacity to develop empathy for and understand the feelings of other individuals. This is largely due to the fact that the average child within this age range is markedly ego centered and experiences difficulty perceiving or responding to the world from any framework other than his/her own perspective.
3. In my opinion, clinically, I would not expect the average child within the 8V2 to 9 year age range to have the ability to understand the potential emotional damage which sexual abuse perpetrated upon another minor child might cause the victim in the future.
4. Consequently, while the average child within the to 9 year age range might well be able to state understanding of the wrongfulness of sexually abusive behavior toward another child and, to some extent, express feelings of guilt regarding such behavior, these statements would more typically reflect concerns in that child regarding possible punishment for their behavior rather than an understanding of the potential damage such behavior might inflict upon the victim in the future.
The letter also addresses the facts of the underlying case and the boy’s capabilities in particular:
5. School records reviewed by this Examiner pertaining to the boy reflect a history of problems developing and maintaining relationships with peers both within the home and school environments, history of verbal and physical aggressiveness toward peers and younger children, diagnosis of depression/oppositional disorder and qualification for Special Education programming under the Emotionally Impaired (ei) category of the Michigan Special Education Law. . . .
6. The information presented above provide grounds for serious questioning of the capability of an average child to reasonably foresee the "expected or intended” results of sexually abusive behavior in terms of the potential long term emotional impact upon the victim. In my opinion, given the history suggested in deposition records reviewed by this Examiner, the probability of the boy being capable of foreseeing such results would be clinically expected to be considerably below that of the average child within the 8 Vi to 9 year age range. More specifically, it would be my clinical opinion that the boy would be very limited in the ability for either cognitive or emotional empathy or understanding of the long term future consequences of the sexually abusive behavior admittedly carried out toward the girl upon the victim.
IV
Diehl argues that, because the bodily injury suffered by the girl as a result of the boy’s sexual acts was neither expected nor intended by the boy, the trial court erred in granting summary disposition to the insurer. The insurer argues that the trial court properly granted summary disposition in its favor because there is no material question of fact that the boy acted intentionally and that the girl’s claimed injuries occurred as a natural, foreseeable, expected, and anticipated result of the boy’s intentional acts.
As a general rule, an insurer may avoid liability for an "expected” or "intended” injury if the injury suffered by the victim is the natural, foreseeable, expected, and anticipatory result of an intentional act by the insured. Frankenmuth Mutual Ins Co v Piccard, 440 Mich 539, 550-551; 489 NW2d 422 (1992); Allstate Ins Co v Freeman, 432 Mich 656, 687; 443 NW2d 734 (1989).
This Court has held that engaging in sexual contact with a child is an intentional act and that the intent to injure or harm can be inferred as a matter of law from the sexual contact itself. State Mutual Ins Co v Russell, 185 Mich App 521, 526-527; 462 NW2d 785 (1990); Auto-Owners Ins Co v Gardipey, 173 Mich App 711, 714-715; 434 NW2d 220 (1989); Linebaugh v Berdish, 144 Mich App 750, 762-763; 376 NW2d 400 (1985). The insurer urges this Court to follow these cases and find that, in this case, the intent to injure may be inferred as a matter of law. Were we dealing with the sexual assault of a child by a competent adult, there would be no question that intent to injure would be inferred as a matter of law. However, because the perpetrator of the sexual assault was a child, we find that such an inference is improper.
We have found no Michigan cases construing the exact language of the exclusionary clause at issue here. However, if the insured were an adult, the exclusionary clause would require us to apply an objective standard in determining whether the results of an intentional act are "reasonably foreseeable.”
We are faced with the task of determining what standard should be applied to determine whether bodily injury is reasonably foreseeable where the perpetrator of a sexual assault upon a child is another child. The trial court found as a matter of law that an objective reasonable man standard should be applied. We find that it is untenable that the trial court applied an objective adult standard to a child between seven and nine years old. A different standard must be applied in a case where the insured is a young child who has engaged in sexual activity with another child.
Diehl argues persuasively that the extension of an adult objective standard of foreseeability to the boy’s acts is without authority in Michigan law and is inconsistent with the policy of requiring different objective standards of conduct between children and adults within the context of negligence actions. The insurer argues that, because this case involves an intentional act and not negligence, the differing standards applicable to adults and children in the negligence context should not be applied here. We disagree with the insurer and find that the standard to be applied in this case is that of a reasonable child of like age, ability, intelligence, and experience under like circumstances. In applying standards of behavior to a child in a noncriminal context, the child’s age and developmental level must be taken into account.
Children under seven years of age are conclusively incapable of negligence. Burhans v Witbeck, 375 Mich 253; 134 NW2d 225 (1965); Queen Ins Co v Hammond, 374 Mich 655; 132 NW2d 792 (1965); Baker v Alt, 374 Mich 492; 132 NW2d 614 (1965). This conclusive presumption does not apply to children seven years of age or older. Rather, in the context of negligence actions, the capability of children seven years of age or older is a question of fact for the jury, which is to determine the issue
on the basis of whether the child had conducted himself as a child of his age, ability, intelligence and experience would reasonably have been expected to do under like circumstances. [Burhans, supra, p 255.]
We are not convinced that this case is the proper vehicle to even consider adopting a bright-line test for children above or below a certain age. However, we are convinced that a mixed objective/ subjective reasonable child standard similar to the standard applied in the negligence context must be applied in cases involving intentional acts by children to determine whether the results of those acts were reasonably foreseeable.
The task of applying this reasonable child standard to the facts presented in a given case should generally be left to the trier of fact. However, on the basis of the record presented to the trial court in this case, we find that Diehl, not the insurer, is entitled to summary disposition.
Applying the reasonable child standard we announce today strictly to the record that was presented to the trial court in this case, we find that there is no genuine issue of material fact that an average seven- to nine-year-old child could not reasonably foresee that his or her sexual acts could cause harm to another child. Had there been expert testimony to the contrary, summary disposition would not be appropriate. However, there is nothing on the record that was presented to the trial court to indicate that an average seven- to nine-year-old child could appreciate the potential for harm to another child as a result of the first child’s sexual acts.
In addition, there is nothing on the record that was presented to the trial court that would indicate that the boy’s capabilities were above that of an average child of his age, ability, intelligence, and experience. Indeed, if anything, the boy’s capabilities would fall well below that of the average seven- to nine-year-old child. There is no question that, on this record, the boy could not reasonably foresee that his sexual acts could cause any harm to the girl. Under these circumstances, the intentional-acts exclusion is inapplicable as a matter of law. Accordingly, we reverse the order granting summary disposition in favor of the insurer and remand this case to the trial court for entry of an order granting summary disposition in favor of Diehl in this declaratory action.
v
In light of our resolution of this case, we need not address Diehl’s remaining arguments.
VI
At oral argument before this Court, the insurer waived its argument that Diehl lacks standing in this case.
Reversed and remanded. We do not retain jurisdiction.
We note that discovery was closed at the time of the hearing and ruling on the insured’s motion for summary disposition. | [
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Holbrook, Jr., P.J.
Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and, thereafter, pleaded guilty of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. He was sentenced to four to twenty years’ imprisonment and appeals as of right. We reverse.
Defendant claims on appeal that there was insufficient evidence presented at trial to support his conviction of armed robbery. We agree. When reviewing such a claim following a jury trial, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885 (1980).
The elements of armed robbery are: (1) an assault, (2) a felonious taking of property from the victim’s person or presence, and (3) the defendant must be armed with a weapon described in the statute. People v Newcomb, 190 Mich App 424, 430; 476 NW2d 749 (1991). We find that insufficient evidence was presented to lead the victim to believe that defendant had a gun; therefore, the "armed” element of the offense was not proven. People v Jolly, 442 Mich 458; 502 NW2d 177 (1993); People v Parker, 417 Mich 556; 339 NW2d 455 (1983), cert den 466 US 962 (1984). The victim testified that after the robbery he chased defendant until defendant stopped and put his hand inside his "baggy” shirt. At that point, the victim stopped as well, assuming that defendant had a gun. He testified to no specific circumstances, such as a bulge or outline of an object under defendant’s shirt that would be indicative of a gun, and testified, when asked if he thought defendant had a gun, "possibly, I wasn’t going to just assume that he didn’t, so I did stop.” The victim also testified that defendant then picked up the two boxes that he had been carrying and ran again and that he pursued the defendant because "if he’s got a gun why is he running?” Finally the victim first testified that when defendant stopped during the chase "he didn’t say stop or freeze,” but -on redirect examination claimed that defendant said freeze or stop "or something like that.”
In Jolly, supra, the defendant’s companion told the victim during the course of the robbery that the defendant had a gun, and the victim testified that there was a bulge in the defendant’s vest. The victim stated at trial that he did not know if the bulge was a gun, but assumed that it was, because the defendant’s accomplice stated that the defendant had a weapon. The Jolly Court explained:
A fair reading of Parker does not require submission of a dangerous weapon or other article into evidence, nor does it require that a witness see the make or model number of a gun or knife before the issue can be submitted to the jury. What cannot reach the jury is proof that only focuses on the subjective belief of the victim. In other words, there must be some objective evi dence of the existence of a weapon or article before a jury will be permitted to assess the merits of an armed robbery charge. [442 Mich 468.]
In Jolly, there was objective evidence that the defendant was armed, e.g., the defendant’s accomplice told the victim that the defendant was armed, and the victim saw a bulge in the defendant’s vest. In this case, however, the only evidence indicating the existence of a weapon was the subjective belief of the victim, e.g., the victim assumed that the defendant had a gun when he put his hand under his shirt. Defendant did not hold his hand under his shirt in such a manner as to suggest a weapon, nor did he fashion an article in such a manner as to lead a reasonable person to believe that he had a weapon. Id. at 465. We do not find the victim’s equivocal testimony that defendant told the victim to stop or freeze to be sufficient objective evidence to warrant sending the armed robbery charge to the jury. Id. at 469-470.
Where, as here, reversal is required because the jury was permitted to consider a charge unwarranted by the proofs, the appropriate remedy is to remand for entry of a conviction on the lesser included offense and for resentencing, with the prosecutor having the option to retry the defendant on the original charge if additional evidence is discovered to support it. See, e.g., People v Kamin, 405 Mich 482, 501; 275 NW2d 777 (1979); People v Gridiron, 185 Mich App 395, 404; 460 NW2d 908 (1990). In this case, the jury was instructed on charges of armed robbery, unarmed robbery, larceny from a building, larceny over $100, and larceny under $100. The elements of unarmed robbery are: (1) a felonious taking of property from another, (2) by force or violence or assault or putting in fear, and (3) being unarmed. MCL 750.530; MSA 28.798; People v Himmelein, 177 Mich App 365, 378-379; 442 NW2d 667 (1989). Here, because the victim testified that defendant’s actions put him in fear, we find that sufficient evidence was presented to sustain a conviction of unarmed robbery. People v Hearn, 159 Mich App 275, 282; 406 NW2d 211 (1987); People v Denny, 114 Mich App 320, 323-324; 319 NW2d 574 (1982).
Accordingly, we reverse defendant’s conviction of armed robbery and remand for entry of a judgment of conviction of the lesser included offense of unarmed robbery. Defendant is also entitled to resentencing.
The trial court did not abuse its discretion in denying defendant’s motion for dismissal, which was based on the prosecutor’s alleged failure to comply with a discovery order. People v Loy-Rafuls, 198 Mich App 594; 500 NW2d 480 (1993), rev’d in part on other grounds 442 Mich 915 (1993). Defendant showed only that the prosecutor failed to produce a list of exhibits before trial. However, the order did not contain a time for compliance, and the trial court did not abusé its discretion under the facts of this case in ruling that delivery on the first day of trial was adequate compliance.
Finally, the district court did not abuse its discretion in finding that there was probable cause to bind over defendant for trial. People v Flowers, 191 Mich App 169; 477 NW2d 473 (1991). The testimony of the victim at the preliminary examination provided probable cause to believe that something of value was taken from the victim by defendant.
Reversed and remanded for entry of a judgment of conviction of unarmed robbery and for resentencing. We do not retain jurisdiction.
G. W. Hood, J., concurred. | [
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ON REMAND
Before: Hood, P.J., and Cavanagh and D. A. Teeple, JJ.
Per Curiam.
This case has been remanded by the Supreme Court for consideration as on leave granted. 439 Mich 1009 (1992). Defendant Sealed Power Corporation appeals a decision of the Worker’s Compensation Appeal Board affirming the decision of a hearing referee and finding that the Silicosis, Dust Disease, and Logging Industry Compensation Fund was required to reimburse defendant only after defendant had actually paid $12,500 in worker’s compensation benefits to plaintiff Griswold. We affirm.
Plaintiff took a voluntary retirement from his employment with defendant. From October 16, 1984, through February 24, 1985, plaintiff received sickness and accident benefits totaling $3,482.83. On March 1, 1985, plaintiff began receiving a pension from defendant in the amount of $688.88 a month.
Plaintiff sought worker’s compensation benefits. Defendant agreed to pay benefits, and the fund agreed to reimburse defendant pursuant to MCL 418.531(1); MSA 17.237(531)(1). At issue below was whether the fund was required to begin reimbursing defendant after defendant had paid plaintiff $12,500 in compensation benefits, or whether the fund was required to begin reimbursing defendant after defendant would have paid $12,500 in benefits but for the coordination allowed by MCL 418.354; MSA 17.237(354). By order mailed on May 21, 1986, the hearing referee found that the plain language of § 531(1) required that defendant be reimbursed for all compensation paid in excess of $12,500. The hearing referee ordered the fund to begin reimbursing defendant’s insurance carrier, Liberty Mutual Insurance Company, after the carrier had actually paid $12,500 in weekly compensation benefits to plaintiff. The carrier would not be allowed to take credit for any benefits paid to plaintiff that could have been coordinated.
On appeal, the wcab affirmed the decision of the hearing referee. The wcab rejected defendant’s argument that the fund was required to begin reimbursement pursuant to § 531(1) when payments to plaintiff exceeded $12,500 regardless of the source of the payments. The wcab noted that in several of its previous cases it had determined that the fund could not set off an amount received by the employer from a third party, and that the employer was required to pay the statutory amount before it could be reimbursed. Compensa tion coordinated pursuant to § 354 could not be credited to satisfy the $12,500 required by § 531(1) to be paid before reimbursement could begin.
MCL 418.531; MSA 17.237(531) reads in part:
(1) In each case in which a carrier including a self-insurer has paid, or causes to be paid, compensation for disability or death from silicosis or other dust disease, or for disability or death arising out of and in the course of employment in the logging industry, to the employee, the carrier including a self-insurer shall be reimbursed from the silicosis, dust disease, and logging industry compensation fund for all sums paid in excess of $12,500.00 for personal injury dates before July 1, 1985, and for all compensation paid in excess of $25,000.00 or 104 weeks of weekly compensation, whichever is greater, for personal injury dates after June 30, 1985, excluding payments made pursuant to sections 315, 319, 345, and 801(2), (4), and (5) which have been paid by the carrier including a self-insurer as a portion of its liability.
On appeal, defendant argues that the threshold amount specified in § 531(1) may be met by payment of worker’s compensation benefits in conjunction with other benefits. The dollar amount paid to the employee, as determined by MCL 418.351; MSA 17.237(351) or MCL 418.361; MSA 17.237(361), may consist of worker’s compensation benefits only, or worker’s compensation benefits and other benefits specified in § 354. Regardless of the source of the funds, the dollar amount paid to the employee remains consistent even if the employer is allowed to coordinate worker’s compensation benefits with other benefits pursuant to § 354. The purpose of coordination is to reduce the burden on the employer while maintaining the benefit level of the employee. Nothing indicates that by enacting § 354 the Legislature sought to increase the burden on any employer by denying it the right to add amounts coordinated with worker’s compensation benefits paid to determine the date on which the payment of a total of $12,500 in benefits occurs.
We agree with the decision of the wcab. Although the issue raised in this case is one of first impression in this Court, the Worker’s Compensation Appellate Commission addressed it in Grigonis v Northern Boiler, 1988 WCACO 4. In Grigonis, the wcac held that benefits coordinated pursuant to § 354 could not be used to compute the threshold amount of compensation that must be paid before reimbursement can begin as provided for by § 531(1). The wcac noted that worker’s compensation benefits are distinct from other benefits paid to an employee, and the fact that worker’s compensation benefits may be coordinated with other payments pursuant to § 354 does not turn these other payments into worker’s compensation benefits. Worker’s compensation benefits are what the employer pays to the employee after any allowable coordination has occurred; therefore, the employer or its insurance carrier must pay actual compensation in the amount specified by § 531(1) before reimbursement can begin.
We find the reasoning in Grigonis persuasive and adopt it in this case. That decision comports with the clear language of § 531(1). Moreover, we note that in Nelligan v Gibson Insulation Co, 193 Mich App 274; 483 NW2d 460 (1992), we held that before an employer can obtain reimbursement from the fund, the employer must demonstrate an out-of-pocket loss exceeding the threshold amount specified in § 531(1). Any monies recouped from a third party cannot be counted toward the threshold amount. Nelligan at 279-280. While Nelligan does not address the issue of monies saved through coordination, it supports the wcab’s finding in this case that the employer’s actual out-of-pocket loss must exceed the threshold amount before reimbursement can begin. The same result should obtain in the instant case. In order to qualify for reimbursement from the fund pursuant to § 531(1), an employer or its insurance carrier must pay an employee the statutory threshold of $12,500, consisting solely of worker’s compensation benefits.
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] |
Per Curiam.
Respondents appeal as of right a Tax Tribunal ruling that petitioner’s common amenity property had only nominal value for the tax years 1986 through 1990. We affirm in part, reverse in part, and remand.
i
Petitioner Canada Creek Ranch Association, Inc., is a recreational club in which individuals hold certificates of membership in the association and are required to purchase platted lots on the corporate premises of Canada Creek in Montmorency Township, Montmorency County. Members are permitted to use approximately 11,700 acres (hereinafter "common amenity property”) of largely undeveloped property contiguous to approximately eight hundred acres of three thousand subdivided, individually owned lots. There is no market for petitioner’s stock apart from lot ownership. The stock may only be acquired in conjunction with the transfer of a lot.
Petitioner acquired the common amenity property from three separate sources. The largest portion was obtained from the Monteith Land Company. In 1934, Monteith began to develop the ranch property. Monteith divided approximately eight hundred acres into three thousand platted lots to put up for sale. That same year, petitioner was incorporated. Monteith agreed to convey the remainder of its property to petitioner without monetary consideration in two transactions. The first conveyance was to occur when one-half of the platted lots were sold, and the second when the rest of the lots were sold. Only the property conveyed in these two transactions — not the individual platted lots — is at issue here.
The agreement between Monteith and petitioner provided that the common amenity property "shall be held exclusively and continuously for the use, benefit and pleasure of the members of the Canada Creek Ranch Association,” and that "all members of the Association duly enrolled and in good standing . . . shall be permitted to use, occupy and enjoy for hunting, fishing and other recreational purposes, any and all parts of said land and premises except the 'cabin sites’ [lots] as aforesaid.”
Pursuant to the agreement, the southern half of the common amenity property was conveyed to petitioner in 1942, when one-half of the platted lots had been sold.
In 1943, five lot owners brought suit in the Montmorency Circuit Court against petitioner, Monteith, and certain individuals associated with the development of Canada Creek. In a decree dated May 5, 1944, the court determined the rights of the parties, including the rights of petitioner’s members "as a class.” The decree governed both the conveyed and unconveyed portions of the property. It incorporated the 1934 agreement between Monteith and petitioner and declared their rights and obligations as those "necessarily incident to the mutual interest of each corporation in the success of the club project ... as more particularly set forth in the certain contract of September 5, 1934 . . . .” In 1953, the decree was recorded with the register of deeds in Montmorency County.
In 1954, petitioner purchased the remaining unsold lots from Monteith and, pursuant to the agreement, Monteith conveyed the other half of the property at issue.
In 1955, the Montmorency Circuit Court issued another decree in a suit brought by petitioner against individuals claiming mineral rights in the Monteith property. The decree declared petitioner the "absolute owner in fee” of the property except for certain mineral rights.
The second source of the common amenity property is Black River Ranch. That portion of the property comprises approximately five hundred acres along the western boundary of the common amenity property. Black River Ranch conveyed this property in three separate deeds dated 1951, 1953, and 1963. The deed for the first conveyance restricts the use of the property as follows:
Said conveyed lands shall never[,] either in whole or in part, be used, occupied or enjoyed in any manner or for any purpose whatever except as wild lands, and shall not be partitioned^] divided, or in any manner apportioned into any parcel or parcels, subdivisions or lots, nor shall any buildings or structures of any character be erected, constructed, or moved or placed anywhere thereon, unless with the express written consent of Black [River Ranch].
The deed also contains a reversion clause, providing for reversion of the property to Black River Ranch in the event that the deed restriction is violated. The deed for the 1953 conveyance from Black River incorporates the same restrictions. Apparently, the 1961 deed also contains these restrictions.
The final portion of the common amenity property was acquired from the Vernor estate in 1970. In a single, related transaction, petitioner subdivided a portion of the Vernor property upon which a cabin was located and sold that lot to heirs of the Vernor estate. The remaining property comprised approximately forty acres. Although the deed to the cabin lot requires any purchaser of the lot to be a member of petitioner, the remainder of the Vernor estate property is not subject to any restrictions.
Petitioner’s articles of incorporation provide additional restrictions on the sale of the common amenity property. Article III, § 9, of petitioner’s bylaws provides:
The Board of Directors shall control the policy, funds, and property of the Association, authorizing all contracts, sales and purchases and declaring and paying dividends. The Board of Directors, except as otherwise provided herein, shall not have authority to convey, sell, lease or mortgage, any of the land owned by the Association unless authorized to do so by the holders of a majority of the shares of the Association voting in person or by proxy at an Annual or Special Meeting.
Under Article VIII, twenty-five percent of petitioner’s shares would be needed to vote on the sale of common amenity property, and a majority of those, or 12.51 percent of all shares, could authorize a sale.
In 1986, respondent Montmorency Township assessed the value of the common amenity property at $2,247,754. Petitioner challenged the assessment before the Michigan Tax Tribunal, claiming the property had no value because the land was subject to severe sale and use restrictions. Respondent Hillman Community Schools intervened because it had a financial interest in assessments made on the property. The tribunal ruled that the common amenity property had only nominal value represented by a sum not to exceed $100.
n
Respondents believe that the Tax Tribunal erred in ruling that the common amenity property had only nominal value. Where, as here, fraud is not alleged, this Court must determine whether the tribunal committed an error of law or adopted a wrong principle. Jones & Laughlin Steel Corp v City of Warren, 193 Mich App 348, 352; 483 NW2d 416 (1992). The tribunal’s findings of fact must be supported by competent, material, and substantial evidence on the whole record. Id. Substantial evidence must be more than a scintilla of evidence, but it may also be less than a preponderance of the evidence. Id. at 352-353.
With respect to the property acquired from the Vernor estate and Black River Ranch, we agree with respondents that the tribunal erred. It found that the practical restrictions placed on the sale of the Vernor property by petitioner’s articles and bylaws made the sale of the property highly improbable. The tribunal considered these same restrictions when it determined that the Black River Ranch property was unmarketable. Although petitioner showed it is highly improbable that even 12.51 percent of its members would approve a sale of common amenity property, such self-imposed restrictions on marketability are not proper considerations in assessing property value. In NeBoShone Ass’n, Inc v State Tax Comm, 58 Mich App 324, 334-335; 227 NW2d 358 (1975), this Court held that restrictions on the sale of corporate property arising out of a corporation’s bylaws may not be considered in assessing the tax value of the corporate property. Neither a private individual nor a corporation may rely on self-imposed restrictions on the sale of property as a means of avoiding taxes. Id.
The tribunal also took into consideration the use restrictions contained in the deeds for the Black River Ranch property. These restrictions prohibit development, subdivision, or any use of the property other than as wild lands. Although the restrictions undoubtedly have an effect on the value of the property for assessment purposes, they do not necessarily render the property unmarketable or the value nominal.
Accordingly, we remand to the Tax Tribunal for reassessment of the value of those portions of the common amenity property acquired from the Vernor estate and Black River Ranch.
iii
With respect to the property acquired from Monteith, the Tax Tribunal’s findings were supported by competent, material, and substantial evidence. The tribunal properly considered the effect of the 1944 court decree on the marketability of the property.
Respondents argue that the decree was effective only as between petitioner and Monteith. Because Monteith is now a dissolved corporation, respondents assert that the decree is no longer enforce able. We disagree. The decree stated that its findings and orders were for the benefit of all Canada Creek members "as a class” and were determinative of the rights of all members "as a class.” Petitioner was the only party who introduced evidence concerning the meaning of the phrase "as a class.” Two witnesses testified that the language referred to petitioner’s members as property owners rather than as shareholders. This interpretation is supported by the decree itself because, as noted by the tribunal, the subject of the decree was property rights.
Unlike the deed restrictions on the Black River Ranch property, the restrictions on the Monteith property go beyond merely limiting use of the property to recreational purposes. The rights to use and enjoy the property belong exclusively to petitioner’s members. Thus, the property is without value to anyone but petitioner’s members. See Muskegon Conservation Club v City of North Muskegon, 5 MTTR 161 (Docket No. 89028, March 6, 1987).
iv
Respondents contend that the restrictions in the 1944 decree are ineffective because the 1955 decree declared petitioner the "absolute owner in fee” of the common amenity property except for certain mineral rights. We disagree. Petitioner maintains, and respondents do not dispute, that the issue in the 1955 proceedings was not land title but rather ownership of mineral rights. The 1955 decree did not address the use restrictions incorporated into the 1944 decree. To the extent that the court characterized petitioner as the "absolute owner in fee,” it may not be deemed to have exercised authority over matters beyond the scope of those proceedings.
Respondents also point out that the deed restrictions on the Monteith property can be waived under the provisions of petitioner’s articles and bylaws, specifically, by a vote of only 12.51 percent of the members. However, the restrictions are imbedded in the chain of title. The articles and bylaws do not address the removal of deed restrictions. In order to remove a restriction in the chain of title, unanimous consent of those interested in the restriction is required. 2 Cameron, Michigan Real Property Law (2d ed), §22.25, p 1031; 5 Powell, Real Property, ¶ 677, pp 60-118 — 60-122. Even assuming that a vote by as few as 12.51 percent of the members could remove the restrictions, the relevant inquiry regarding provisions for waiving existing restrictions is not whether the restrictions could be lifted, but rather whether they would be lifted. See Presque Isle Harbor Ass’n v Presque Isle Twp, 3 MTTR 397 (Docket No. 66598, February 4, 1985), citing Moran v Grosse Pointe Twp, 317 Mich 248, 255; 26 NW2d 763 (1947), and Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 148; 265 NW2d 182 (1978). The evidence before the Tax Tribunal showed that, from the petitioner’s perspective, the chances of approving a sale of the common amenity property are remote given the voting practices of past and current members. From a potential buyer’s perspective, the chances of approving the purchase of the property are equally remote because the mere existence of the deed restrictions in the chain of title, whether they are enforceable or could be waived, would necessitate an expensive lawsuit against petitioner’s members to quiet title.
v
Respondents further dispute the tribunal’s find ing that the assessed value of the platted lots already reflects the value of the common amenity property. However, the tribunal did not make such a finding. Although it found evidence that the market prices of the lots often incorporate a premium for the benefit of using the common amenity property, the tribunal was
less than wholly convinced that the full measure of the value of the pro rata "membership rights”, encompassing the rights to use of the miles of pristine common amenity property, is recognized in the [tax value] assessments of the individually owned, platted lots for the years in question.
Accordingly, and we believe appropriately, the tribunal encouraged the parties to seek a resolution of how to attribute the value of "membership rights” to the value of the platted lots for future assessments.
Affirmed in part, reversed in part, and remanded. | [
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] |
Taylor, J.
Plaintiff appeals as of right from a circuit court order that denied her request for physical custody of the parties’ eldest daughter and that continued physical custody of the daughter with defendant. We affirm.
Plaintiff sought to set aside a stipulation pursuant to which she agreed to transfer physical custody of the parties’ eldest daughter from herself to defendant. Plaintiff failed to establish that she had entered into the stipulation as a result of duress or coercion. Accordingly, plaintiff failed to demonstrate proper cause for a change of custody. MCL 722.27(1)(c); MSA 25.312(7)(1)(c); Mann v Mann, 190 Mich App 526, 536; 476 NW2d 439 (1991).
Further, we reject plaintiff’s claim that the trier of fact erred as a matter of law in refusing to consider and make findings with regard to the statutory best interest factors, MCL 722.23; MSA 25.312(3). A trial court may amend or modify its previous custody judgment or order only "for proper cause shown or because of change of circumstances . . . .” MCL 722.27(l)(c); MSA 25.312(7)(l)(c)._
The plain and ordinary language used in MCL 722.27(l)(c); MSA 25.312(7)(l)(c) evinces the Legislature’s intent to condition a trial court’s reconsideration of the statutory best interest factors on a determination by the court that the party seeking the change has demonstrated either a proper cause shown or a change of circumstances. It therefore follows as a corollary that where the party seeking to change custody has not carried the initial burden of establishing either proper cause or a change of circumstances, the trial court is not authorized by statute to revisit an otherwise valid prior custody decision and engage in a reconsideration of the statutory best interest factors.
In the instant case, plaintiff failed to establish either proper cause or a change of circumstances warranting a change of custody. Accordingly, the trier of fact was not required by MCL 722.27(l)(c); MSA 25.312(7)(l)(c) to address the statutory best interest factors. Plaintiff’s failure to present sufficient proof of changed circumstances precludes further consideration of her motion to change custody.
Finally, we reject plaintiff’s challenge to the trier of fact’s determination that an established custodial environment existed with defendant. Because plaintiff has failed to establish proper cause or a change of circumstances necessitating consideration of a change in custody, the trier of fact was not required to make a determination with regard to the existence of an established custodial environment. MCL 722.27(l)(c); MSA 25.312(7)(1) (c). Accordingly, any such finding by the trier of fact was harmless in the instant case.
Affirmed. | [
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Jansen, P.J.
Defendants appeal by leave granted from a May 31, 1991, order of the Oakland Circuit Court denying their motion for summary disposition pursuant to MCR 2.116(C)(8). We reverse.
Plaintiff Roger Garvelink was the superintendent of the Birmingham school system from March 1978 through June 1990. In March 1989, the Birmingham voters were presented with a millage proposal for a $65 million bond increase. The proposal produced some controversy, apparently stemming from a redistricting decision the school board made a year earlier, and the millage was defeated. Because of the millage defeat, plaintiff and others made a number of budget cuts amounting to $7 million. Plaintiff then sought to make further cuts of $5 million from the following year’s budget.
On June 3, 1989, The Detroit News printed an editorial column, which appeared on the editorial page, by Chuck Moss under the heading, " 'Punishment Cuts’ Work Like a Charm.” In the column, Moss described an "interview” with "local Supt. Roger Gravelhead.” In the interview, Dr. Gravelhead boasted about using the budget cuts to punish voters for rejecting the millage proposal and stated that educational professionals knew more about what students needed than the parents did. _
Plaintiff filed his complaint on June 1, 1990, alleging defamation. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) on April 10, 1991, but the trial court denied the motion. This Court then granted defendants’ application for leave to appeal on October 22, 1991.
On appeal, the trial court’s grant or denial of summary disposition is reviewed de novo, because this Court must review the record to determine whether the moving party is entitled to judgment as a matter of law. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992). MCR 2.116(C)(8) permits summary disposition in favor of a defendant when the plaintiff has failed to state a claim upon which relief can be granted. A motion pursuant to MCR 2.116(C)(8), therefore, determines whether the plaintiffs pleadings allege a prima facie case. Radtke v Everett, 442 Mich 368, 373; 501 NW2d 155 (1993). A court may grant a motion pursuant to MCR 2.116(C)(8) only where the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992).
Our review is also governed by the Supreme Court’s pronouncements in defamation cases implicating the First Amendment. Courts must make an independent examination of the record to assure that the judgment does not constitute a forbidden intrusion on the field of free expression. New York Times Co v Sullivan, 376 US 254, 285; 84 S Ct 710; 11 L Ed 2d 686 (1964); Bose Corp v Consumers Union of United States, Inc, 466 US 485, 499; 104 S Ct 1949; 80 L Ed 2d 502 (1984); Locricchio v Evening News Ass’n, 438 Mich 84, 110; 476 NW2d 112 (1991). Where a public official or public figure is involved in a defamation case, the public official or public figure must prove that the publication was a defamatory falsehood and that the statement was made with actual malice, that is, that it was made with knowledge that it was false or with reckless disregard of whether it was false or not. Sullivan, supra at 279-280; Curtis Publishing Co v Butts, 388 US 130; 87 S Ct 1975; 18 L Ed 2d 1094 (1967). In the instant case, it is undisputed that plaintiff is a public official.
For both public officials and public figures, a showing of actual malice is subject to a clear and convincing standard of proof. Gertz v Robert Welch, Inc, 418 US 323, 342; 94 S Ct 2997; 41 L Ed 2d 789 (1974). The question whether the evidence in a defamation case is sufficient to support a finding of actual malice is a question of law. Harte-Hanks Communications, Inc v Connaughton, 491 US 657, 685; 109 S Ct 2678; 105 L Ed 2d 562 (1989).
Keeping these principles in mind, the Supreme Court has further recognized constitutional limits on the type of speech that may be the subject of defamation actions. In cases where the statements cannot reasonably be interpreted as stating actual facts about the individual, those statements are protected under the First Amendment. Milkovich v Lorain Journal Co, 497 US 1, 20; 110 S Ct 2695; 111 L Ed 2d 1 (1990); Hustler Magazine v Falwell, 485 US 46; 108 S Ct 876; 99 L Ed 2d 41 (1988); Letter Carriers v Austin, 418 US 264; 94 S Ct 2770; 41 L Ed 2d 745 (1974); Greenbelt Cooperative Publishing Ass’n v Bresler, 398 US 6; 90 S Ct 1537; 26 L Ed 2d 6 (1970). Defendants argue that there was no defamatory falsehood because the column could not reasonably be interpreted as stating actual facts about plaintiff and, therefore, the issue of actual malice need not be considered.
We are required to conduct an independent review of the column and pleadings to ensure against the forbidden intrusion on the field of free expression and to examine the statements and the circumstances under which they were made to determine whether they are of a character that the principles of the First Amendment protect. See Sullivan, supra at 285; Locricchio, supra at 110. Therefore, it is the function of this Court to review the column to determine whether it could reasonably be understood as describing actual facts about plaintiff. Although plaintiff argues that there is a material factual dispute for the jury to determine, that is the appropriate standard for a motion for summary disposition pursuant to MCR 2.116(C) (10), but this case is before us by way of a motion pursuant to MCR 2.116(C)(8). Furthermore, where there are First Amendment implications such as whether a satirical column in a newspaper is capable of bearing a defamatory falsehood by im plying the assertion of undisclosed facts, this is a question of law and the court must consider whether the alleged defamatory expression could reasonably be understood as describing actual facts about the plaintiff. See Hoppe v Hearst Corp, 53 Wash App 668; 770 P2d 203 (1989).
After reviewing the column and the pleadings, we hold as a matter of law that the column cannot reasonably be interpreted as stating actual facts about plaintiff and it is, therefore, protected speech. The tenor of the column is satirical. The Random House College Dictionary (1988) defines satire as "the use of ridicule in exposing, denouncing, or deriding vice, folly, etc.” and "a literary composition, in verse or prose, in which human folly, vice, etc. are held up to scorn, derision, or ridicule.” Similarly, a lampoon is a form of satire, "often political or personal, characterized by the malice or virulence of its attack.” Id. As the Supreme Court noted in Falwell, supra at 54:
. . . The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events— an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.
Thus, in this area of parodies, political cartoons, and satirical columns, especially involving public officials, while the tenor of the column may be caustic or even vicious, the Supreme Court has clearly recognized that "[t]he sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those who are 'intimately involved in the resolution of important public questions ....’” Falwell, supra at 51.
The column appeared on the editorial page, uses an obviously fictitious name (Gravelhead), and presents a mock interview. No reasonable reader would believe that a school superintendent would have actually made the comments in the column. The column’s tone is humorous and the writing style suggests that the column did not concern actual events. The column was written after controversial budget cuts had been made and after a proposed school millage increase recently had been defeated. Thus, in the context of a controversial school millage proposal, school budget cuts, and because the column appeared on the editorial page, a reader is prepared for exaggerations, mischaracterizations, and biases of the writer. Hoppe, supra.
Also of importance, the column appeared on the editorial page, where a reader expects to find the opinions and biases of the individual writers. The appearance on an editorial page clearly indicates to any reader that the opinions of the writer will be reflected in the column as opposed to only facts. This column did not appear in the general news articles section and is therefore easily distinguishable as opinion-writing because of its appearance on the editorial page. We emphasize that the appearance of the column on the editorial page, where a reader expects to find the opinions and biases of the writer, is important and may be considered even though this case is before us by way of a motion for summary disposition pursuant to MCR 2.116(C)(8). In Moldea v New York Times Co, — US App DC —; 22 F3d 310 (1994), the court upheld a grant of summary judgment in favor of the New York Times before either party had begun discovery. The court specifically noted that the statements at issue were made in the context of a book review, and that this context could be consid ered in evaluating whether the challenged statements were defamatory. Id. at —. The importance of considering the context of the challenged statements was also addressed in Phantom Touring, Inc v Affiliated Publications, 953 F2d 724 (CA 1, 1992). In Phantom Touring, the court held that a newspaper theater column was not actionable in part because the context of the column was such that the language could not reasonably be interpreted as stating actual facts about the appellant’s honesty. The court stated that a theater column is the type of article generally known to contain opinionated writing more than a typical news report. Id. at 729.
The column in the instant case is obviously satire intended to criticize the school budget cuts, which was a controversial issue at the time. Further, the column contains "the sort of loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” that this was an actual interview with plaintiff. Milkovich, supra at 21. The column, which appeared on the editorial page, clearly contains language intended to be the author’s opinion about the school budget cuts, and a reasonable reader would understand that the author was conveying an opinion about a controversial subject at that time rather than relating an actual interview with plaintiff. Thus, there can be no false statement of fact because, in its context, the column cannot reasonably be interpreted as stating actual facts about plaintiff. Therefore, even if the writer is motivated by hatred or ill-will, the column is still protected in the area of public debate concerning public officials. Falwell, supra at 53.
No further factual development could possibly justify a right of recovery because the column cannot be understood as stating actual facts about plaintiff or understood as being an actual interview with plaintiff and is, therefore, not defamatory as a matter of law. Accordingly, the trial court erred in denying defendants’ motion for summary disposition.
Reversed and remanded for entry of an order of summary disposition in defendants’ favor. We do not retain jurisdiction.
In its entirety, the column reads as follows:
A lot of school boards and district leaderships are under fire these days. Without even counting the ruined, collapsed Detroit system, you can see millages croaking, school boards being yanked and supervisors queueing up for resume services just as Leningraders do for toilet paper. For the big scoop, I sat down with local Supt. Roger Gravelhead.
"Your millage went down, Doc,” I said. "What now?”
"Time for us educational professionals to provide decisive leadership,” he said sternly. "It’s time for punishment cuts.”
"Punishment cuts?”
"Yes, punishment cuts.” He folded his soft hands across his well-cut suit. “Just because these foolish voters defeated a millage, don’t think we professionals are down! There’s a time-honored strategy for putting the great unwashed in their place.”
"Punishment cuts?”
"Sure thing.” He laughed. "Within two weeks, you regretfully announce a new 'money-saving budget’: no more sports, no more band, drama, art, music, study hall. All extracurricular activities are axed. Bus service is severely curtailed. Support staffs are reduced and their unions trashed. Of course, essential administrative personnel like me and my pals stay safe, nor do we cancel vital expenditures such as the new carpet for the Administration Building. Just things that impact the voters.”
"Does this work?”
"Like a charm!” He rubbed his hands together. "We make the kids hurt and the parents howl. When they come back screaming, we just shake our heads. 'Too bad, chums. The next millage will be on the calendar in six months.’ I guarantee, the electorate will be fighting for the privilege to raise its own taxes!”
"Gee Doc, this sounds, well, cynical.”
"Not at all,” Dr. Gravelhead said. "Educational professionals have a duty to manage the system in the best interests of the children . . . and who knows better what your kids need than educational professionals?”
"The parents,” I ventured. "Some of them are professionals. Lawyers, doctors . . . .”
"Parents!” he barked. "Parents are the last people we rely on.” He handed me a paper. "Like the Birmingham Public Schools say, parents are 'emotional,’ 'diffused,’ 'submissive,’ 'helpless,’ individualized,’ and concerned 'with the here and now.’ While we professionals are 'objective,’ 'dominant,’ 'universal,’ and 'focus on the whole class or group.’ Parents are just happy-go-lucky big kids. It’s our duty to make the parents understand that we professionals know what’s best for their children. We need to give them the wider perspective.”
"By punishing the electorate.”
He smiled. "Let’s just call it re-education. We feel the voters just didn’t UNDERSTAND the issues involved.”
"Maybe they were trying to send you a message, whup you upside the head and get your attention. You’ve made some questionable moves over the years . . . spent bad money, sold needed buildings. At a time of budget crisis you have an $80,000 community affairs director while the city manager only makes $60,000. Maybe the voters want to teach you a lesson.”
"Teaching without a license?” Gravelhead laughed. "They’re not in the union.”
"In union is strength, I recall.”
“RECALL?” He gasped. "Please! Not that word! It’s, it’s . . . .”
"Unprofessional?” | [
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Per Curiam.
Plaintiff, Elon Summers, appeals as of right from a circuit court order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7) (claim barred by governmental immunity) with respect to defendant City of Detroit, and pursuant to MCR 2.116(C)(8) (failure to state a claim) with respect to the individual defendants. We affirm.
Plaintiffs decedent, nine-year-old Brian Summers, drowned in an outdoor swimming pool owned by defendant City of Detroit, after gaining access to the pool through a gap in a chained gate at a time when the pool was closed. Plaintiff brought suit against the city and several individual city officials and employees.
We first consider whether the circuit court erred in concluding that plaintiffs claims against the city were barred by governmental immunity. When reviewing a grant of summary disposition based on a finding that the claim is barred by governmental immunity, we consider all documentary evidence submitted by the parties. All well-pleaded allegations are accepted as true and construed most favorably to the nonmoving party. To survive a motion for summary disposition, the plaintiff must allege facts that justify the application of an exception to governmental immunity. Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992); Maurer v Oakland Co Parks & Recreation Dep’t (On Remand), 201 Mich App 223, 228; 506 NW2d 261 (1993).
The parties do not dispute that defendant city was engaged in the exercise of a governmental function and, hence, was immune from tort liability unless there is an applicable exception to immunity. MCL 691.1407(1); MSA 3.996(107X1).
The public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), does not apply on these facts, because the pool and surrounding fence do not constitute a public building. Reardon v Dep’t of Mental Health, 430 Mich 398, 406-413; 424 NW2d 248 (1988); Richardson v Warren Consolidated School Dist, 197 Mich App 697, 700-701; 496 NW2d 380 (1992); Dew v Livonia, 180 Mich App 676, 679; 447 NW2d 764 (1989).
Public nuisance is not an exception to governmental immunity. Li v Feldt (After Second Remand), 439 Mich 457, 474; 487 NW2d 127 (1992) (Li II).
There is no nuisance per se in this case, because the fence, gate, and pool do not constitute a nuisance at all times and under all circumstances, regardless of location or surroundings. Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 152-153; 422 NW2d 205 (1988).
Our Supreme Court has not ruled definitively whether the doctrine of attractive nuisance constitutes an exception to governmental immunity. See Taylor v Detroit, 182 Mich App 583, 589; 452 NW2d 826 (1989). We believe that no such exception exists.
Section 7(1) of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., preserved judicially created exceptions to immunity that were formulated before July 1, 1965. Li v Feldt (After Remand), 434 Mich 584, 591-592; 456 NW2d 55 (1990) (Li I); Hadfield, supra at 147-148. The question is whether the claimed exception was recognized clearly in authoritative Michigan case law before that date. Li II, supra at 468 (emphasis added). Our research has disclosed no pre-1965 cases that discussed whether there is an attractive nuisance exception to immunity. It appears likely that the Court in Lyshak v Detroit, 351 Mich 230; 88 NW2d 596 (1958), applied the proprietary function exception to immunity, and in Swanson v Marquette, 357 Mich 424, 432; 98 NW2d 574 (1959), the proprietary function exception was clearly pleaded. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 610-614; 363 NW2d 641 (1984); 18 McQuillin, Municipal Corporations (rev 3d ed), § 53.59.60, pp 419-420 (municipal liability for attractive nuisance depends upon whether a governmental or a proprietary function was involved). Thus, neither Lyshak nor Swanson clearly recognizes an attractive nuisance exception as required by Li II.
We are aware that in Rosario v Lansing, 403 Mich 124, 139-141; 268 NW2d 230 (1978) (Fitzgerald, J), a plurality of the Court held that, although attractive nuisance law is essentially negligence law, attractive nuisance is an exception to governmental immunity. However, a plurality decision in which no majority of the justices participating agree concerning the reasoning is not binding authority under the doctrine of stare decisis. Swickard v Wayne Co Medical Examiner, 438 Mich 536, 570, n 15; 475 NW2d 304 (1991) (Levin, J). We find the dissenting opinion of Justice Ryan in Rosario to be more persuasive, because it more closely resembles the reasoning in Hadñeld and the two Li opinions (and it was indeed cited with favor in Hadñeld.) Justice Ryan would have held that the "nuisance exception” is limited to two subclasses of nuisance, "nuisances per se” and "intruding nuisances.” 403 Mich 146 (Ryan, J, dissenting).
We conclude that an attractive nuisance exception to governmental immunity was not recognized clearly in authoritative Michigan case law before July 1, 1965, and thus did not survive the enactment of § 7(1). Li II, supra at 468. Accordingly, the trial court properly granted summary disposition in favor of defendant city.
The second issue on appeal is whether the circuit court erred in concluding that the individual defendants were entitled to judgment as a matter of law on the basis that they owed no duty to the decedent. When reviewing a grant of summary disposition pursuant to MCR 2.116(C)(8), we accept all factual allegations in support of the claim as true, as well as any reasonable inferences that can be drawn from them. Azzar v Primebank, FSB, 198 Mich App 512, 516; 499 NW2d 793 (1993).
The threshold question in a negligence action is whether the defendant owed the plaintiff a legal duty. Scott v Harper Recreation, Inc, 192 Mich App 137, 140; 480 NW2d 270 (1991), rev’d on other grounds 444 Mich 441; 506 NW2d 857 (1993).
As a rule, there is no duty that obligates a person to aid or protect another. Plaintiff has alleged no special relationship or other special circumstance that would have created such a duty in the individual defendants with respect to the decedent. Schultz v Consumers Power Co, 443 Mich 445, 450; 506 NW2d 175 (1993); Harrison v Corrections Dep’t Director, 194 Mich App 446, 459; 487 NW2d 799 (1992); Bell & Hudson, PC v Buhl Realty Co, 185 Mich App 714, 717-718; 462 NW2d 851 (1990). Any duty owed by the individual defendants was for the benefit of . the general public; there has been no showing that performance of that duty would have affected the decedent differently from the general public. Harrison, supra at 459-460.
We reject plaintiff’s attractive nuisance argument as applied to the individual defendants, because the doctrine of attractive nuisance extends only to those who both possess and control the land. See Merritt v Nickelson, 407 Mich 544, 552; 287 NW2d 178 (1980); Ellsworth v Highland Lakes Development Associates, 198 Mich App 55, 63; 498 NW2d 5 (1993); Rand v Knapp Shoe Stores, 178 Mich App 735, 740-741; 444 NW2d 156 (1989).
Finally, we note that plaintiff’s argument relating to the alleged violation of the Detroit Building Code was not raised before the court below and, thus, is not preserved for review. Deal v Deal, 197 Mich App 739, 741; 496 NW2d 403 (1993). In any event, although violation of an ordinance may be some evidence of negligence, it is not in itself sufficient to impose a legal duty cognizable in negligence. Ward v Frank’s Nursery & Crafts, Inc, 186 Mich App 120, 135; 463 NW2d 442 (1990).
Accordingly, the trial court properly granted summary disposition in favor of the individual defendants.
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Sawyer, P.J.
Defendant pleaded nolo contendere to attempted larceny in a building, MCL 750.92; MSA 28.287 and MCL 750.360; MSA 28.592, and carrying a concealed weapon, MCL 750.227; MSA 28.424. Defendant was placed on five years’ probation. He now appeals and we reverse.
Defendant’s only argument on appeal is that he should be permitted to withdraw his plea because he was not represented by an attorney licensed to practice law in the State of Michigan. We agree.
Defendant was represented in the trial court by James Cohen. Cohen was apparently licensed to practice law at the time he entered his initial appearance in this matter, but by the time of the taking of the plea and sentencing, Cohen had been suspended from the practice of law. The question then is whether the validity of defendant’s plea is vitiated by the fact that the individual serving as his attorney at those proceedings was not licensed to practice law. Por the reasons to be discussed below, we believe that it does render the plea invalid.
The only other Michigan case of which we are aware that addressed a similar issue is People v Brewer, 88 Mich App 756; 279 NW2d 307 (1979). In Brewer, this Court addressed a case in which the defendant was represented by an attorney who had been suspended from the practice of law because of a failure to pay bar dues. The Court declined to adopt a rule requiring reversal, but did remand the matter to the trial court to determine whether, in light of the suspension, the defendant had been deprived of the effective assistance of counsel. Id. at 762.
We need not determine whether Brewer was correctly decided because, in our view, there exists an important distinction between suspension for failure to pay dues and suspension for disciplinary reasons. In the situation where an attorney is suspended for the failure to pay dues, that failure does not necessarily reflect upon his ability. That is, as the Brewer Court noted, id. at 762, it could, but does not necessarily, reflect a lack of interest by the attorney in continuing to practice law. On the other hand, it could also reflect financial difficulties by the attorney or simple neglect in the failure to pay the bar dues. Indeed, the suspension from practice for the failure to pay dues reflects as much an enforcement mechanism for the collection of mandatory dues as it is a method of ensuring competent and ethical representation. On the other hand, suspension for disciplinary reasons reflects a lack of either competency or ethics by the attorney being disciplined.
Other states that have considered the question of the effect of representation by an individual not licensed to practice law have reached varying results. For example, in People v Felder, 61 AD2d 309; 402 NYS2d 411 (1978), a divided New York court affirmed the conviction of three defendants who had been represented by an individual who had not, and apparently had never, been licensed to practice law. On the other hand, in People v Perez, 147 Cal Rptr 34 (1978), the California Court of Appeals reversed the conviction of a defendant who was represented at trial, by a law student participating in a program that allowed law students to appear in court under the supervision of a licensed attorney. The court even went so far as to say that the evidence of the defendant’s guilt was overwhelming and that, if they were free to do so, they would hold that the error was harmless beyond a reasonable doubt, but that they could not so hold because "the denial of the right to counsel at any critical stage is reversible per se.” Id. at 43, citing Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).
The question, then, is whether such an error may be deemed harmless. In this respect, the majority and dissenting opinions in Felder, supra, set forth the opposing views. The majority in Felder, supra at 311-312, opined as follows:
Concededly, the fact that each of the defendants was represented in the County Court by a layman masquerading as a lawyer raises an issue of constitutional dimension. However, not all errors which violate the Constitution of thq United States call for reversal (cf. Harrington v California, 395 US 250, 253-254 [89 S Ct 1726; 23 L Ed 2d 284 (1969)]). Constitutional errors insignificant in the setting of a particular case may, consistent with the Federal Constitution, be deemed harmless, not requiring an automatic reversal of the conviction (cf. Chapman v California, 386 US 18, 22 [87 S Ct 824; 17 L Ed 2d 705 (1967)]). Even constitutional error may be harmless where it is clear, beyond a reasonable doubt, that the error did not contribute to defendant’s conviction (People v Almestica, 42 NY2d 222, 224 [397 NYS2d 709; 366 NE2d 799 (1977)]).
. . . The test of due process in such an instance is not whether the defendant had an attorney, licensed or unlicensed, but whether under all of the circumstances his conviction was obtained in such a manner as to be offensive to the common and fundamental idea of what is fair and right (see People v Cornwall, 3 Ill App 3d 943 [277 NE2d 766 (1971)]).
The dissent in Felder, supra at 318, replied as follows:
I do not believe it is at all germane that this layman may have acted more or less capably than the most skilled lawyer. Surely, one need not expound upon the State’s concern in licensing the profession of law. Whether he did so expertly or inexpertly is totally irrelevant. In licensing, the admitting court of State assures and certifies that the licensee has met minimal standards of education and character promulgated and adhered to by his peers over the centuries. I suggest that if we condone what here occurred, wé are rendering a grievous disservice to the public and, also, deni-, grating our honorable and learned pursuit.
We believe that the dissent in Felder has the better view of the matter. The conclusion that denial of the right to counsel can be. deemed harmless under the circumstances of a particular case overlooks the fact that denial of the right to counsel can never be deemed harmless. Perez, supra at 43; see also Strickland v Washington, 466 US 668, 692; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Furthermore, the fact that defendant was denied his right to counsel is established by virtue of the fact that the person standing next to him at the time of the plea and sentencing, although having previously been an áttorney in this state, was not at the relevant times an attorney..
The state has undertaken elaborate means to determine who can be an attorney. The Supreme Court has developed extensive procedures by which individuals who wish to become attorneys must meet certain stringent educational requirements, must undergo a background check to deter mine their character and fitness to be an attorney, and must submit to a bar examination to determine their competence to be an attorney. Furthermore, the Supreme Court has in place an elaborate mechanism to ensure that attorneys, once licensed, remain fit to practice law, suspending or revoking the licenses of those attorneys who prove themselves unfit.
In our view, the state cannot now disavow those procedures and restrictions on the practice of law merely because it is convenient to do so in order to avoid the repercussions of having allowed an unlicensed individual to play the role of an attorney in a criminal prosecution. The state has defined what an attorney is and, when defendant entered his plea and was sentenced, Mr. Cohen did not meet the definition of an attorney. Moreover, this does not involve a situation such as in Brewer, supra, where the state is using its licensing power to extract a few pieces of silver for the benefit of the bar association, but a situation where the disciplinary authorities have positively determined that an individual was not fit to continue the practice of law and, indeed, thereafter made a second determination that the individual was not fit to return to the practice of law upon his petition for reinstatement.
In short, the trial court should never have allowed Mr. Cohen to practice as an attorney in its courtroom after Mr. Cohen’s suspension from the practice of law on October 6, 1992. The trial court’s having dispensed with its obligation to ensure that only licensed attorneys practice law in front of it, we cannot now absolve the denial of defendant’s right to counsel. The formulation is simple. Defendant had the right to be represented by counsel. Gideon, supra. The person who represented defendant was not, either at the time of the plea or the sentencing, an attorney. Therefore, defendant was denied his right to counsel. Because the denial of the right to counsel can never be considered harmless, defendant’s conviction must be set aside.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
S. A. Turner, J., concurred.
Mr. Cohen’s license to practice law was initially suspended because of a conviction of a high court misdemeanor.' 69 Mich B J 432 (1990). Thereafter, his petition for reinstatement was granted. 71 Mich B J 210 (1992). However, the grievance administrator appealed that reinstatement to the Attorney Discipline Board, which reversed the hearing panel’s order granting reinstatement. Accordingly, Cohen’s license to practice law was suspended effective October 6, 1992, and has apparently remained suspended ever since. 72 Mich B J 90 (1993). | [
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Doctoroff, C.J.
In Docket Nos. 142116 and 142122, plaintiffs Thomas W. Thorne and Sandra H. Thorne appeal as of right from a May 17, 1991, order dismissing their complaints against defendant Robert Bell and defendants Roger Cayo, James L. Stevens, Roccy M. DeFrancesco and Larry Leatz (defendants Cayo et al) and dismissing their answer to the counterclaim of defendants Cayo et al for failure to timely reveal trial witnesses and exhibits. In Docket Nos. 145272 and 145273, plaintiffs appeal as of right from a September 25, 1991, judgment of default entered against them as a result of their failure to timely file an answer to the third-party complaint of defendants Cayo et al. We reverse and remand.
In 1984, defendants Cayo et al formed a Michigan corporation known as A-l Food Enterprises, Inc., for the purpose of developing and operating Little Caesar Pizza restaurants in Nebraska. In 1986, plaintiffs became interested in obtaining a Little Caesar Pizza franchise and were directed to contact defendants Cayo et al, who indicated they would entertain other investors in A-l. Plaintiffs invested $50,000 in A-l and received five hundred shares of common stock as a twenty-percent owner of the corporation in January 1987. Other acquaintances of plaintiffs, including Jack DeMaagd, Robert Kropf, and William Schlee also invested in A-l.
In July 1987, defendants Cayo and DeFrancesco sought to redeem their shares in A-l. To accomplish this, plaintiffs and other shareholders of A-l signed a hold harmless agreement for the benefit of defendants Cayo and DeFrancesco, a promissory note to repay defendant Cayo the sum of $15,000, and a personal guarantee on amounts due and owing to defendant Cayo by A-l.
Soon thereafter, plaintiffs discovered A-l’s financial status was not as solid as they had believed. According to plaintiffs, defendants Cayo et al made false representations and failed to disclose material information to plaintiffs regarding, but not limited to, A-l’s financial situation, A-l’s franchisee status, and defendants’ ability to assign their franchise agreement with Little Caesar to plaintiffs and the other new shareholders. Plaintiffs alleged these misrepresentations induced them to infuse additional capital into A-l and to execute the redemption, hold harmless agreement, promissory note, and personal guarantee. As a result, plaintiffs filed a complaint against defendants Cayo et al on August 26, 1988, alleging that the defendants’ conduct violated federal and state securities laws and constituted common-law fraud (Lower Court Case No. 88-002264).
Plaintiffs amended their complaint to add Little Caesar Enterprises, Inc. (lce), asserting that lce committed fraud or made material misrepresentations regarding A-l’s status as an approved franchisee, the value of the Nebraska franchises, and the availability of purchasers for the Nebraska franchises.
On October 2, 1989, defendants Cayo et al filed a countercomplaint against plaintiffs, asserting that Thomas Thorne (1) defaulted on the promissory note and personal guarantee for $15,000 in connection with the redemption of Cayo’s stock in A-l, (2) breached the hold harmless agreement releasing defendants Cayo and DeFrancesco from all liability in connection with A-l, and (3) breached the hold harmless agreement by failing to obtain releases from A-l’s creditors on behalf of defendants Cayo and DeFrancesco.
On October 25, 1989, plaintiffs filed an answer to the countercomplaint, claiming defendants Cayo et al made material misrepresentations and omissions that caused plaintiffs to sign the redemption agreement, hold harmless agreement, promissory note, and personal guarantee. Therefore, these documents were not binding and were unenforceable.
During the course of these proceedings, plaintiffs also filed suit against Robert Bell on April 27, 1989, alleging that Bell was A-l’s certified public accountant, that Bell prepared the corporation’s financial statements, that Bell breached his fiduciary duty to plaintiffs, and that plaintiffs relied to their detriment on Bell’s misrepresentations regarding the corporation’s status when plaintiffs agreed to redeem defendants Cayo and DeFrancesco’s shares in A-l (Lower Court Case No. 89-001112).
Lce subsequently filed a complaint against defendants Cayo et al for collection of royalties and payment of certain promissory notes associated with A-l’s Little Caesar franchises operated in Nebraska (Lower Court Case No. 89-001050). In connection with this complaint, defendants Cayo et al filed a third-party complaint against several individuals, including Thomas Thorne, for indemnification regarding Little Caesar’s allegations, pursuant to the agreement to redeem stock and agreement to hold harmless. This third-party complaint is substantively identical to the counterclaim filed by defendants Cayo et al in Lower Court No. 88-002264.
The three actions were consolidated in the trial court. On July 17, 1990, a pretrial order was entered providing in pertinent part:
1. On or before November 16, 1990, Plaintiffs shall reveal all exhibits and witnesses, including experts, together with a short summary of the witnesses’ expected testimony.
2. On or before February 15, 1991, Defendants shall reveal all exhibits and witnesses, including experts, together with a short summary of the witnesses’ expected testimony.
3. All discovery shall be completed by April 19, 1991.
4. All substantive motions shall be filed by April 19, 1991.
Plaintiffs never filed formal witness or exhibit lists.
On April 18, 1991, one day before the discovery deadline, defendant Bell filed a motion for summary disposition pursuant to MCR 2.116(0(10), or alternatively, a motion to dismiss with prejudice pursuant to MCR 2.504(B)(1) and MCR 2.313(B)(2). In his motion, defendant Bell asserted that plaintiffs failed to reveal their exhibits, lay and expert witnesses, and a summary of the witnesses’ proposed testimony, which prejudiced defendant Bell’s ability to take necessary discovery depositions, rebut plaintiffs’ claims, and establish a defense at trial. Defendant Bell argued that plaintiffs, having failed to timely disclose their witnesses and exhibits, were thereby precluded from calling any witnesses or introducing any exhibits at trial, which in turn entitled defendant Bell to summary disposition because there were no genuine issues of material fact in controversy. On April 19, 1991, defendants Cayo et al filed an identical motion.
In their brief opposing these motions, plaintiffs asserted they complied with the court’s pretrial order by revealing their witnesses and exhibits during exhaustive depositions of plaintiffs and through their answers to interrogatories drafted by defendants Bell and lce. Plaintiffs asserted that defendants suffered no prejudice.
Recognizing that dismissal with prejudice was the most extreme sanction a court could impose, the court nevertheless granted summary disposition for defendants Bell and defendants Cayo et al, dismissing plaintiffs’ complaint against defendant Bell in case no. 89-001112, and also dismissing plaintiffs’ complaint against defendants Cayo et al and plaintiffs’ answer to the counterclaim of defendants Cayo et al in case no. 88-002264, and entering default judgments in both cases.
Plaintiffs filed a motion for reconsideration accompanied by a witness list and an exhibit list. The trial court denied the motion.
On May 1, 1991, a stipulated order dismissing plaintiffs’ claims against lce in lower court no. 88-002264 was entered.
On May 24, 1991, defendants Cayo et al filed a motion to strike plaintiffs’ answer to defendants’ third-party complaint in case no. 89-001050 for plaintiffs’ late filing of the answer. The trial court granted defendants’ motion, striking plaintiffs’ answer to the third-party complaint pursuant to MCR 2.115 and MCR 2.401, and entered an order finding that plaintiffs had defaulted.
On August 21, 1991, a bench trial was commenced on the third-party complaint of defendants Cayo et al against Jack DeMaagd and to determine damages on the default judgments of defendants Cayo et al against plaintiffs in case nos. 88-002264 and 89-001050. Plaintiffs’ counsel was not permitted to call witnesses, but could cross-exam ine the only two trial witnesses, defendants De-Francesco and Cayo.
At the close of proofs, the trial court entered judgment in favor of defendants Cayo et al and against plaintiffs and Jack DeMaagd, jointly and severally, in the amount of $29,078 plus interest, reasonable costs, and $6,000 in attorney fees. The trial court further entered judgment in favor of defendant DeFrancesco against the same parties in the amount of $28,078 plus interest, costs, and $6,000 in attorney fees. The court also ordered plaintiffs and DeMaagd to pay defendant Cayo $15,000 plus interest, which was due and payable on July 1, 1988, pursuant to the promissory note.
In October 1991, defendants Cayo et al and lce stipulated the dismissal of all claims existing between them.
Plaintiffs first argue that the trial court abused its discretion in dismissing their complaints against defendant Bell and defendants Cayo et al for failure to comply with the trial court’s discovery order. We agree.
The trial court dismissed plaintiffs’ complaints against defendant Bell and defendants Cayo et al under MCR 2.504(B)(1) and MCR 2.313(B)(2). MCR 2.504(B)(1) provides that a defendant may move for the dismissal of an action if the plaintiff fails to comply with the court rules or a court order. MCR 2.313(B)(2)(c) authorizes a trial court to enter an order dismissing a proceeding or rendering a judgment by default against a party who fails to obey an order to provide discovery.
Before imposing the sanction of a default judgment, a trial court should consider whether the failure to respond to discovery requests extends over a substantial period of time, whether an existing discovery order was violated, the amount of time that has elapsed between the violation and the motion for a default judgment, the prejudice to defendant, and whether wilfulness has been shown. Mink v Masters, 204 Mich App 242, 244; 514 NW2d 235 (1994); Frankenmuth Mutual Ins Co v ACO, Inc, 193 Mich App 389, 396-397; 484 NW2d 718 (1992). The court should evaluate other options before concluding that a drastic sanction is warranted. Mink, supra. The sanction of a default judgment should be used only when there has been a flagrant and wanton refusal to facilitate discovery. Id. We review discovery sanctions for an abuse of discretion. Dean v Tucker, 182 Mich App 27, 32; 451 NW2d 571 (1990).
First, contrary to plaintiffs’ arguments, we find that they violated the trial court’s scheduling order in failing to file witness and exhibit lists. The language in the scheduling order indicated that the parties had to reveal all exhibits and witnesses together with a short summary of the witnesses’ expected testimony. For plaintiffs to argue that the order did not require them to file formal witness and exhibit lists is somewhat lame in light of the standards of litigation practice throughout the state. Moreover, any revelation of witnesses that occurred in the answers to interrogatories did not include a complete summary of the witnesses’ expected testimony as required by the scheduling order. Failure to file witness and exhibit lists violated the trial court’s order.
However, violation of the order did not justify the dismissal of plaintiffs’ complaints against defendant Bell and defendants Cayo et al under the facts of this case. The record does not disclose a history of recalcitrance or deliberate noncompli anee with discovery orders, which typically precedes the imposition of such a harsh sanction. Also, neither defendant Bell nor defendants Cayo et al previously moved to obtain an order to compel plaintiffs to file witness and exhibit lists before the motion for summary disposition was filed. Instead, defendants Bell and Cayo et al waited until the close of discovery, five months after the date plaintiffs were required to reveal their trial witnesses and exhibits, before filing the motion for summary disposition. Such a delay on the defendants’ part works against them on their motion for entry of a default judgment.
Next, there is no indication in the record that plaintiffs wilfully disregarded the order. The proceedings in these consolidated cases were complex, involving three actions that in turn included two counterclaims and a third-party complaint. The first two years of discovery were complicated by several recusals, reassignments, and amendments of pleadings. The confusion in the proceedings below, together with the absence of any pattern of recalcitrance or affirmative evidence that noncompliance with the scheduling order was deliberate, dictates the conclusion that the violation was not wilful.
We do not accept the argument that defendant Bell and defendants Cayo et al suffered substantial prejudice by plaintiffs’ failure to file witness and exhibit lists. Defendants had deposed plaintiffs. Moreover, plaintiffs had previously indicated to defendants the names of potential trial witnesses and trial exhibits in their answers to interrogatories. Plaintiffs’ answers to lce’s interrogatories even included a general summary of the testimony of named witnesses. Also, the majority of potential witnesses named by plaintiffs in the answers to interrogatories were defendants and other parties to the action. Further reducing the prejudice suffered by defendant Bell and defendants Cayo et al is the fact that defendants could have moved sooner to compel the information from plaintiffs. This would have resulted in the information desired by defendants in time to conduct further discovery if needed.
Finally, the trial court’s dismissal of plaintiffs’ complaints is inconsistent with the various discretionary discovery sanction options available to it. Grubor Enterprises, Inc v Kortidis, 201 Mich App 625, 628-629; 506 NW2d 614 (1993). The court’s failure to evaluate these options on the record before concluding that dismissal of the complaint was warranted constituted error. Frankenmuth, supra.
In addition to the factors set forth above, the trial court’s disparate treatment of lce for an identical violation of the trial court’s scheduling order necessitates a finding of abuse of discretion. Lce, in its action against defendants Cayó et al in case no. 89-001050, also failed to timely file witness and exhibit lists. When defendants Cayo et al moved to dismiss lce’s complaint against them for noncompliance with the trial court’s scheduling order and raised the same arguments that persuaded the trial court to dismiss plaintiffs’ complaints, the trial court denied the motion. The trial court stated that it was persuaded by lce’s participation in discovery and noted that lce’s failure to file was accidental. The trial court also noted that lce had revealed its witnesses and exhibits in its pretrial summary of December 27, 1991, resulting in only slight prejudice to Cayo et al
The trial court’s attempt to distinguish between plaintiffs and lce is unsuccessful. Contrary to the trial court’s statement, lce had a more extensive history of noncompliance with discovery than plaintiffs. Also, plaintiffs, like lce, filed a pretrial summary that contained a list of trial exhibits. Taking plaintiffs’ pretrial summary and their answers to interrogatories together, defendants were given as much notice of plaintiffs’ witnesses and exhibits as they were of lce’s. The trial court’s disparate treatment of lce and plaintiffs under identical circumstances is contrary to our notion of fairness and its ruling with respect to plaintiffs must be reversed.
The trial court erred in dismissing plaintiffs’ complaints and entering default judgments in favor of defendant Bell and defendants Cayo et al on the eve of trial in the absence of a flagrant refusal to facilitate discovery. We reverse the trial court’s dismissal of plaintiffs’ complaints in case nos. 89-001112 and 88-002264. To eliminate the possibility of any prejudice to defendants resulting from plaintiffs’ failure to file witness and exhibit lists while allowing plaintiffs’ to effectively pursue their claims against defendant Bell and defendants Cayo et al, pursuant to this court’s authority under MCR 7.216(A), we order that plaintiffs are limited to calling only parties to the consolidated cases at trial.
In light of our resolution of the foregoing issue, we also reverse the trial court’s grant of the motion by defendants Cayo et al to strike plaintiffs’ answer to the third-party complaint in case no. 89-001050 and the September 25, 1991, default judgment awarding defendant Cayo and defendant DeFrancesco damages and attorney fees. While defendants Cayo et al moved for and obtained a default judgment against plaintiffs in case no. 89-001050 on different grounds than that which we found inadequate above, because the counterclaim of defendants Cayo et al in case no. 88-002264 is substantively identical to the third-party complaint in case no. 89-001050 and because we have determined that plaintiffs are entitled to proceed on their claims against defendants Cayo et al, we order that the entire matter be remanded for a trial on the merits.
Our vacation of the judgment against plaintiffs also makes it unnecessary for this Court to determine whether the trial court erred in awarding attorney fees.
We remand these consolidated cases for a trial on plaintiffs’ claims against defendant Bell in case no. 89-001112, on plaintiffs’ claims against defendants Cayo et al and on the claims of defendants Cayo et al against plaintiffs in case nos. 88-002264 and 89-001050 with the condition that plaintiffs are restricted to calling only parties to these consolidated cases as witnesses at trial.
Reversed and remanded.
Taylor, J., concurred.
The Thornes appealed this decision in Court of Appeals Docket No. 142116.
The Thornes appealed this decision in Court of Appeals Docket Nos. 142122 and 145273.
The Thornes appealed the judgment on the third-party complaint of defendants Cayo et al in Court of Appeals Docket No. 145272. All four claims of appeal filed by the Thornes were consolidated on appeal. | [
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Graves, Oh. J:
An action of assumpsit was commenced by William D. Page against the plaintiffs in error, and he dying, his death was suggested and his son and administrator was allowed to carry on the ease.
When the Chicago & Canada Southern Railroad was being located through the village of Morenci, in Lenawee county, many of the village people felt an interest and' were active in regard to the site to be fixed for the road, and also in regard to the situation of a projected depot. It would seem that there was some competition among the people on the subject, and that the plaintiffs in error acted as a committee to aid in bringing about a particular location of the road and depot, and solicited funds to further the general object. They seem to have carried on various negotiations, but the record does not afford much light as to their course of proceeding. This suit originated in one of these transactions. The declaration sets up in different special counts/ and with variations more or less important, certain express joint promises of the plaintiffs in error to William D. Page to pay him given sums of money in consideration of his deeding to them certain land to be by them turned over to one Packer for land he was to convey to the railroad company for a depot.
The general counts were also added. The general issue being pleaded, the cause ivas tried before a jury and a verdict found for defendant in error for two hundred and forty-one dollars and seventy-eight cents. The case was subsequently removed here and is now before us on writ of error and bill of exceptions. Some questions are raised in regard to the admission of evidence, and others upon rulings in charging and refusing to charge. An examination of the record, which contains all the evidence, enables us to dispose of the cause very briefly, and without touching several of the points discussed at the bar. In deciding we shall only refer to two features of the record.
First. The evidence had no tendency to prove the plaintiffs in error liable under the general counts. On the contrary, the theory of the plaintiff below as to his ground of action, as appears by the record, was repugnant to a. claim under those counts. If by any possibility the proof could be referred to any of them it must be to the count for money had and received. But there is no evidence that the plaintiffs in error jointly received any money for the use of William D. Page, or held any which in equity and conscience belonged to him. ,
Second. The evidence did not conduce to show, whatever may have been the fact as to Baker, that Mace promised Page or agreed with him to pay him any thing in case he would deed the lands in question to Baker and Mace for the benefit of Packer. Wherever evidence is drawn out to show some agreement of this kind by Baker, it fails wholly to implicate Mace. At the interview in the road, to which A1 verson Page testified, Mace was not present, and the evidence of Mowry, about drawing the contract, and as to what it contained and what was then said, does not tend to prove any promise or agreement on the part of Mace to pay Page five hundred dollars, or any sum, out of a fund, or in any way. In short, the evidence wholly failed to connect Mace with any promise or agreement to pay Page. There was accordingly no evidence of a joint undertaking; the plaintiffs in error were entitled to the instruction they asked in their twelfth request, and the refusal of it was improper.
The judgment should be reversed, with costs, and a new trial .ordered.
The other Justices concurred.
12. The plaintiff cannot recover unless he has shown a contract made by both defendants. Any agreement of one them, even if made in the name of both, would not bind the other without evidence that he also agreed to it. And the mere fact of their having this fund in their hands jointly, and being engaged together in the common object, would not authorize one to bind the other by a contract to pay money. | [
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] |
Marston, J:
The relator filed an information in the nature of a quo loarrcmto to inquire by what warrant the respondent held or exercised the office of police justice of the city of Detroit.
A number of questions were submitted to the jury upon which they were instructed to find specially, and some questions the court would not permit to be submitted to the jury. Error is assigned upon this refusal; also upon the refusal of the court to render judgment for the respondent upon the evidence of his official majority and the failure of the jury to answer how many illegal votes were cast for either party, and also upon the charges and refusals to charge the jury.
The statute under which questions are submitted to the jury has been before this court several times. In Crane v. Reeder, 25 Mich., 316, it was said: “No question should have been put to the jury which was not material to the inquiry upon which they were to enter; and upon every material question one party or the other would have held the affirmative, and unless he made out his case upon it by the evidence, should have had a finding against him upon it. Every fact essential to a party’s case or defense which he fails to prove, is considered as not established, and must be negatived in the conclusions of the jury; it will not do' to ignore it.”
In Sheehan v. Barry, 27 Mich., 224, it was held that a question the answer to which, whether in the affirmative or negative, would not be inconsistent with the general verdict could not, therefore, affect the verdict, and ought not to be submitted. In Dubois v. Campau, 28 Mich., 306, it was said that the questions to be submitted are required to be particular questions of fact which involve legal consequences, and which would have a controlling force in reaching a conclusion; and in Frankenberg v. First National Bank, supra, p. 46, it was held that questions, the answers to which would be inconclusive, should not have been submitted.
Now, while it may be very difficult to lay down a general rule so clear that he who reads need not err, yet we think it is not at all difficult in the light of the above decis ions, to determine whether a given question should be submitted to the jury or not, and if submitted, what the effect of the answer, or failure to answer, upon the verdict would be.
Upon the trial of a cause there is always one or more questions at issue and upon which one side or the other holds the affirmative. If the jury finds a verdict in favor of the party holding the affirmative, and in answer to certain questions submitted to them, answer in the negative, or say they are unable to find a fact which the party holding the affirmative must establish in order to entitle him to a verdict, then the answers are inconsistent with their general verdict, and would control it. Or if they should find a verdict in favor of the party not holding the affirmative of the issue, and 'yet in answer to questions submitted to them should find that the party holding the affirmative had established the issue, here again the special finding would be inconsistent with their general verdict, and would control it.
Thus, by way of illustration, an action is brought upon a promissory note against the maker and endorser. An affidavit is filed denying the execution of the note, and upon the trial it is further claimed that the note, if executed, has been .paid. Here the plaintiff, in order to recover’, must prove the execution of the note, and the further fact that it was duly protested and notice given the endorser in order to hold him. The jury render a verdict for the plaintiff for the amount of the note, and in answer to questions submitted find that the note was forgery, or they are unable to agree whether the alleged maker ever executed it. Such a finding would be inconsistent with their verdict. Or should they find that it was properly executed, but was not protested, or that no notice of protest was given the endorser, or that they don’t know whether notice was given the endorser or not, in either case the answer would bo inconsistent with their verdict. Should they, however, render a verdict of no cause of action, and in answer to questions submitted find the note properly executed, duly protested and notice given, and further say that the note had not been paid, or that they did not know whether it had been paid or not. Here again the special finding would be inconsistent with the general one. There would in either case be a failure to agree upon and find one or more facts essential to sustain their general verdict, and which properly they should have found before they could render such a verdict as they did. The parties have a right, therefore, to test the correctness of their general verdict in this way. And one or more interrogatories upon particular questions of fact material to the issue, and involving legal consequences which would have a controlling force in reaching a conclusion, may be submitted to the jury, and' the court cannot decline, when requested, to submit such questions. The jury cannot be compelled to answer them. A failure to answer or find any affirmative fact essential to sustain the verdict will have the force and effect to nullify the verdict and result in a mistrial.
What then was. the issue in this case? Evidently the question was, who received the greater number of legal votes. It was conceded that according to the official returns the respondent had a majority of one. The burthen of overcoming this was upon the relator. He undertook to do this by showing that certain votes cast in favor of the respondent were illegal, and in this way reduce the number of legal votes which he received. The respondent undertook to show that certain illegal votes were cast in favor of the relator, for the purpose of establishing the fact, that notwithstanding the illegal votes, if any, which he received, yet by deducting the illegal votes given the relator, he, the respondent, would still have a majority. The parties therefore had a right to have certain questions submitted to the jury for the purpose of ascertaining whether certain alleged illegal voters voted at said election, for whom they voted, and whether they were legally entitled to vote.
In the light of what has been said, we will now examine some of the questions raised in this case.
The third, fourth, fifth, sixth, sixteenth, twenty-eighth twenty-ninth questions proposed by the respondent should -have been submitted to the jury. The third, fourth, fifth -and sixth questions may be considered together. These questions were proposed for the purpose of having the jury say whether certain persons illegally voted for the relator as t-the evidence given tended to show. It is claimed, however, •that as to the third, fourth and fifth questions, there was mo evidence tending- to show that the persons referred to therein voted for the relator, and therefore the court properly refused to submit these questions. The record in reference to this question was as follows:
“The testimony aforesaid, tending to show that two men voted for the relator in the second precinct of the tenth ward, was substantially as follows:
“One of the inspectors of election in that precinct testified that two men voted for the relator, whose names are not found registered as voters; that he did not know their names, but believed the name of one of the men was Moran, and that he saw the ballots as they were handed by the voters to the other inspector, and was confident they were straight democratic tickets. The poll list for that precinct was produced, and the name of D. Moran appeared as having voted at that election. His name did not appear on the registry. This was all the evidence in respect to these votes.”
We are referred to the case of The People v. Cicott, 16 Mich., 312-313, in support of the position of relator’s counsel. We are satisfied with what was there said, and have no intention or desire of departing from it. But it does not appear in this ease that the inspector who testified had no other knowledge of how the parties voted except from the appearance -of a folded ticket. He testified he was confident they were straight democratic tickets, and it is conceded relator’s name was upon the straight democratic ticket. How the witness acquired his confidence, does not appear. We cannot, nor could a jury, assume it was from the appearance of the ballot only. The evidence in this form was competent and admissible; and if the relator’s-counsel did not consider it necessary to inquire further concerning the source of this witness’ information, they ought not now to complain. — Bissell v. Starr, 32 Mich., 297.
As to the sixth question, it is said relator’s counsel upon the trial admitted the two persons there inquired about illegally voted for the relator, and therefore there was no necessity for submitting the question to the jury. We are not satisfied that this position is correct. The fact having been admitted would have relieved the jury from all difficulty in answering the question, but as it was the duty of the jury to find from the evidence and admissions the entire number of illegal votes cast for the relator, the respondent had the right to have the jury pass upon and answer the question notwithstanding the admission.
It was claimed by the relator that Robert McClatehey voted for respondent, although he was not legally entitled to vote in the city of Detroit, not being a resident thereof. The sixteenth proposed question, viz.: ‘ Was he, McClatehey, duly registered in said third ward at the time of said election?” Avas material, because, if duly registered, then he Avas prima facie entitled to vote. This question Ave will consider farther when we come to the instructions giA-en the jury as to McClatehey’s residence and right to vote.
There was another objection urged against the form of this question, which Avas also urged against the twenty-eighth question, “Was he, William Bruce, a legal voter?” and the twenty-ninth, “If not, why not?” viz.: that to ask Avhether a party Avas “duly registered,” or Avas a “legal voter,” Avas asking the jury to pass upon a question of law, and to give their reasons for coming to the conclusion. It is true an answer to the sixteenth and twenty-eighth questions involve the application by the jury of legal principles to the evidence in the case, and a conclusion therefrom; but it does not thereby follow that the questions are improper, or that the jury could not answer them.
The legality or illegality of certain votes ay,as the very question -which the jury was empanelled to decide. To enable them to do this, evidence was submitted to them, the court was to give them the law applicable thereto, and from the law and the evidence thus submitted they were to find the fact. In finding a verdict for the relator, they must have found that certain, persons who voted for the respondent were “illegal voters,” in order to overcome the majority with which he started. Now if they were ’competent to do this, in order to find a general verdict, we fail to see why they were any less competent to find the same fact in answer to a question. If the jury were incompetent to answer such a question, then they were for the same reason incompetent to find a general verdict, but should have found the facts only, and left it to the court to have applied the law thereto and render judgment accordingly. This has not been contended. Nor was there any objection to asking the jury, in case they found Bruce was not a legal voter, to give their reasons for such a conclusion, so that the court as matter of law might determine the sufficiency of the same. If Bruce was registered and voted, the presumption follows that he was a legal voter, and facts sufficient to overcome this presumption must have been found by the jury in order to throw out his vote.
The other questions proposed, and not submitted to the jury, were inconclusive, and no matter how answered would not have been inconsistent with the verdict, and were properly withheld from the jury.
The wisdom of thus permitting questions to be submitted to the jury was assailed, but as that is a matter to be addressed to the legislative, and not the judicial department, we may pass it without comment.
Evidence was given tending to prove that Nicholas Tisler voted twice by mistake; that immediately after depositing the first ballot he called the inspectors’ attention to the fact that he voted by mistake, having recently removed from that precinct, and at his request his ballot was withdrawn and canceled. The jury found that he voted twice for the relator, and that his first ballot, or one just like it, was after-wards withdrawn from the ballot box, and destroyed by the-inspectors, and not included in their return. And it is claimed that this cured the error of his voting twice, so that the-second vote should be permitted to stand.
The statute requires both ballots to be destroyed where-they are so folded together as to present the appearance of' a single ballot, thus depriving the person of any vote, and this irrespective of the fact whether they were folded together by mistake or intentionally. It is very apparent that should the course adopted in respect to Tisler’s vote be approved, it would open the door to the grossest frauds. The inspectors are not permitted to examine the ballots as handed to them, so that where they are folded they have no means of ascertaining how a person votes, and after the ballot is once deposited they have neither the opportunity nor authority to investigate the matter, and if they should act they would be entirely dependent upon the statement of the voter. If therefore a person should vote against the relator, and after his ballot was deposited in the box, claim he had voted in that precinct by mistake, and ask to have his ballot destroyed, asserting that he had voted for the relator, and not against him, and a ballot with the relator’s name thereon should thereupon be withdrawn and canceled, the effect would be equivalent to two votes against him. An election likely to be closely contested could in this way be very materially affected. Tisler having once voted, whether legally -or not,. had no right to vote again, and his second vote should not be counted.
It appeared that Robert McClatchey voted in the third ward, and that his name appeared upon the register and poll list. He was therefore 'prima facie a legally qualified voter and entitled to vote in the precinct and ward where he was registered. This presumption covers and includes everything necessary to make him a qualified voter. Residence in Detroit the necessary time is one of the essential requisites to a right to vote. The presumption covers this, and the burthen of proving such facts as would show that he never was a resident of Detroit, or that if he ever was he had lost his residence, was upon the party asserting the contrary. There was no evidence given tending to show that he never had been a resident of Detroit; but evidence was given tending to show'rather that he had lost such residence. There was evidence given tending to prove, and the court instructed the jury, “that if they should find that Bobert McOlatchey’s family resided at the time of said election at Boyal Oalc, and had resided there for some years previous, and that he was in the habit of going there Saturday night and spending Sundays with them, though himself employed and living in Detroit during the week, he was not entitled to vote in Detroit.”
The trouble with this charge is that it ignores entirely the question of the elector’s intention in taking up or fixing his residence. Yet the intention of the party is one of the most important inquiries involved in such a question. No one will contend that a party loses his residence and rights as an elector because himself and family temporarily reside in some other city, township or ward, even although such temporary residence should extend over a series of years. The intention of the party, coupled with certain other facts, is what governs.
The jury, in answer to the forty-second and forty-third questions, say they don’t know how many illegal votes were cast for either Mr. Cicott or Mr. Harbaugh. The ’bill of exceptions shows that the question as to the number of illegal votes cast for the respective parties was the one presented to the jury and upon which they were asked to find. If they were unable to agree upon and answer these questions, the effect would be a mistrial. The official majority of the respondent could only be overcome by a finding of the jury showing the number of illegal votes which each party received, upon such a state of facts as existed in this case.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred.
The questions submitted on behalf of the relator were as follows :
1. Was Tisler’s ballot, or one just like it, afterwards withdrawn from the ballot box and destroyed by the inspectors, and not included in their returns?
2. Did Robert McClatchey’s family reside in Royal Oak at the time of the November election, 1873, and had his family resided there for several years immediately preceding said election?
3. Was he a married man?
4. Did he reside with his family, except while doing business in Detroit during the week?
These questions were each answered, “yes.”
The questions proposed by respondent were as follows:
1. Did Nicholas Tisler cast two ballots at the election in November, 1873, in the seventh ward of Detroit, and both said ballots for Edward Y. Cicott for police justice?
2. Did Andrew Lehner cast a vote for said Cicott in the second district of the tenth ward of said city at said election?
3. Did a man calling himself Moran vote fo,r said Cicott in said second district?
4. Was said Moran registered?
5. Did a man whose name is unknown, and who was not registered, the inspectors not being able to find his name on the registry, vote for said Cicott in said district?
6. Did two men personating James Flanigan and Daniel Eastman, illegally vote for said Cicott in the third ward?
7. Did Robert Smith vote for said Cicott in the third ward?
8. Was he registered?
9. Did James Melvin vote for said Cicott in the third ward?
10. Was he registered?
11. Did C. McKinney vote for said Cicott in the third ward?
12. Was he registered?
13. Dicl Alfred Davis vote for said Cicott in the third ward?
14. Was he registered?
15. Did Robert McClatchey have his regular boarding house in the third ward of Detroit ?
16. Was he duly registered in said third ward at the time of said election?
17. Did Henry Clay, George Washington and old man’Linn vote at said election for said Harbaugh in the first precinct of the sixth ward?
18. Were their names on the poll list of said district?
19. If you find that they voted, under what names respectively did they vote?
20. For whom did George Galstu vote at said election for police justice?
21. Had Thomas Ward any intention of abandoning his residence in the third ward and taking up his residence in Windsor and not returning?
22. Was Thomas Ward’s name on the poll list of said third ward at said ^election?
23. Did Charles Flood, William Means and Robert Gimble vote in the second ward at said election?
24. Were either of them on the poll list?
25. If you find that they voted for police justice, for whom did they vote?
26. If you find they voted, under what names respectively did. they vote?
27. For whom did William Bruce vote for police justice?
28. Was he a legal voter?
29. If not, why not?
30. Did William Stimson, Jack Law and Robert I-Ienkle vote in the second ward at said election?
31. If they did vote, for whom did they vote respectively for police justice?
32. Are their names on the poll list?
33. Who gave William Bruce the ballot which he voted? William Enos, Arthur Gore or Thomas Gore?
34. Where was said ballot given to said Bruce?
35. If Jack Law voted, under what name did he vote?
36. Did said Law vote the next man after William Bruce, as stated by Thomas Gore?
37. Did Henry Atkinson, George Jarvis, William Stimson and John Crawley arrive in Detroit with Robert Walsh from Cleveland on Sunday before election, as stated by said Walsh?
38. Did they vote in the second ward at said election?
39. Were their names on the poll list of said second ward?
40. If they voted, under what names did they respectively vote?
41. If they voted, for whom did they respectively vote for police justice?
42. How many illegal-votes were cast for Mr. Cicott?
43. How many illegal votes were cast for Mr. Harbaugh?
44. Was William Bruce the adopted son of Mrs. Bruce of Malden ?
45. Who were his parents, and what were their names?
46. Where was William Bruce born?
47. How long had William Stimson lived in Detroit?
48. State whether he was a native or foreign born citizen?
49. If he was foreign born, had he his second or full papers of citizenship ?
Objection being made to those numbered 3, 4, 5, 6, 16, 28, 29, 33, 34, 36, 37, 44 and 45, the court declined to submit them.
1, 2, 21 were answered “yes;" 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 22, 23, 24, 30, 32 and 39 were answered “no;" 19, 25, 26, 31, 35 and 49 were not answered at all; 20, 27, and 41 were answered “ Harbaugh;" 38 was answered “ all bxit Stimson;” 40, 42, 43, 47, and 48 were answered, “don't know;" 46 was answered, “Canada'" | [
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Per Curiam.
Defendant was convicted of second-degree murder in 1977. That conviction has been upheld in two previous appeals to this Court. We invoke the doctrine of finality and deny review of his newest claim which concerns evidence of a lineup at which he was identified and for which he was detained on a "reverse writ”.
Defendant shot and killed Lowell Shonkwiler in a bar on January 11, 1977. He was arrested without a warrant and placed in a lineup, but was not identified by the witness who viewed the lineup. He was then taken before a Recorder’s Court judge who issued a "reverse writ” allowing the police to detain him for a second lineup. At that lineup, he was identified.
On August 19, 1977, defendant was convicted of second-degree murder and possession of a firearm during the commission of a felony (felony-firearm). After sentencing, he appealed.
Chronology of Post-Conviction Proceedings
11-26-79 His convictions were affirmed by the Court of Appeals in an unpublished per curiam opinion (Docket No. 77-4139).
2-27-80 He filed a delayed application for leave to appeal to the Michigan Supreme Court.
4-18-80 A delayed motion for a new trial was denied in Recorder’s Court.
11- 20-80 The Michigan Supreme Court denied leave. 409 Mich 945.
12- 12-80 The Court of Appeals granted leave to consider new issues.
4- 22-82 A petition for a writ of habeas corpus was denied by a federal judge.
5- 6-82 The Court of Appeals affirmed the murder conviction a second time in an unpublished per curiam opinion, but reversed the felony-firearm conviction (Docket No. 51376).
11-29-82 He filed a motion in Recorder’s Court for resentencing and a delayed motion for a new trial on new grounds.
1- 28-83 He supplemented the delayed motion for a new trial with an additional new ground.
2- 18-83 A Recorder’s Court judge granted the motion for resentencing because the felony-firearm conviction had been reversed.
4-18-83 He was resentenced by a different judge; the delayed motion for a new trial and any other motions were denied.
6- 3-83 He filed a claim of appeal to the Court of Appeals from the resentencing.
9-23-83 He filed a delayed motion in Recorder’s Court for a new trial because he had been held on a "reverse writ”. This motion was denied on September 29, 1983. He now challenges the "reverse writ” ruling pursuant to his claim of appeal from the resentencing.
The Doctrine of Finality
At the time of the defendant’s conviction, no one had challenged the validity of "reverse writ” proceedings. When this Court originally affirmed the defendant’s conviction in an unpublished per curiam opinion on November 26, 1979, the Recorder’s Court still conducted such proceedings. Moreover, defendant did not object to the proceedings in his trial nor did he raise this issue on his first appeal or on his second appeal. Not until People v Casey, 102 Mich App 595; 302 NW2d 248 (1980), aff'd 411 Mich 179; 305 NW2d 247 (1981), was it determined that "reverse writ” proceedings were constitutionally improper.
In a dissenting opinion in People v Allensworth, 401 Mich 67, 74; 257 NW2d 81, 84 (1977), Justice Coleman said:
"The question then becomes whether all persons who might have raised a similar issue can claim it, absent preservation, regardless of the period intervening between timely appeal and a subsequent decision of the Court in another unrelated case. Although there must be an exception to provide for fundamentals necessary to justice, the orderly process of law suggests a beginning and an ending.”
Judge Bronson expressed a similar view about restricting appellate review in his concurring opinion in People v Tubbs, 64 Mich App 341, 347-348; 236 NW2d 77 (1975):
"There is good reason for restricting repeated and unlimited availability of appellate review to a criminal defendant. He already has a constitutional right to appeal his conviction to this Court. If unsatisfied with our treatment of that appeal, he may request rehearing. GCR 1963, 819.4. He may also request Supreme Court review. GCR 1963, 853.
"In his appeal to this Court, he may raise any and all issues for our consideration. Indeed, he is well advised to do so, since, as we have repeatedly held, failure to raise, argue or brief an issue constitutes abandonment of that issue and precludes further consideration of it. * * *
"There should be but one opportunity to raise nonjurisdictional errors on appeal. That is the rule elsewhere. See People v Marsh, 14 Mich App 518, 524, fn 5; 165 NW2d 853 (1968), rev’d on other grounds, 383 Mich 495; 175 NW2d 780 (1970), 1 ALR 725. Otherwise, finality is never achieved. The appeal process becomes a battle of attrition, waged by a relentless prisoner with nothing to lose and everything to gain on an adversarial battlefield the conditions of which — through the mere passage of time — necessarily begin to take on an appearance very different from those prevailing at the time of trial. As the Pickett Court stressed [People v Pickett, 391 Mich 305, 308; 215 NW2d 695 (1974)]:
" 'Since a period of years may very well be involved, the problems of finding witnesses in our mobile society, the state of their memory, the availability of records and exhibits, etc., are very real and very significant.’ ” (Footnote omitted.)
Appellate judges must be mindful of the remarks of Justice Rehnquist in McDonough Power Equipment, Inc v Greenwood, — US —, —; 104 S Ct 845, 848; 78 L Ed 2d 663, 669 (1984);
"Trials are costly, not only for the parties, but also for the jurors performing their civic duty and for society which pays the judges and support personnel who manage the trials. It seems doubtful that our judicial system would have the resources to provide litigants with perfect trials, were they possible, and still keep abreast of its constantly increasing case load.”
Also, Chief Justice Warren E. Burger recently, wrote:
"Few things have so plagued the administration of criminal justice, or contributed more to lowered public confidence in the courts, than the interminable appeals, the retrials and the lack of finality.” Evitts v Lucey, 469 US —; 83 L Ed 2d 821, 836; 105 S Ct 830, 841.
We hold that this is an appropriate case for application of the doctrine of finality. Defendant’s conviction has been affirmed twice. There has to be an end to a case. We hold that the end to defendant’s right to raise new issues was reached before he raised the issue of the "reverse writ” by a delayed motion for a new trial in September of 1983.
We refuse to consider that issue and, again, affirm his conviction of second-degree murder.
Affirmed. | [
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Jansen, J.
Defendant pleaded guilty in the Bay Circuit Court of attempting to carry a concealed weapon, MCL 750.227; MSA 28.424; MCL 750.92; MSA 28.287. In exchange for the plea, the prosecutor dismissed a charge of carrying a concealed weapon and a charge of receiving and concealing stolen property over $100. The trial court subsequently sentenced defendant to five years’ probation with the condition that defendant serve a term in the county jail from December 7, 1992, until June 7, 1993. In a postconviction motion, defendant moved to amend the order of probation, arguing that the imposition of a specific jail term with a specified release date was invalid pursuant to MCL 51.282; MSA 5.883(2) because it denied him good-time credit. The trial court denied the motion. We reverse the order of probation and remand for further proceedings.
Although defendant’s issue is technically moot because it is now past his set release date, we will review the merits of the issue because it is one of public significance and is likely to recur in the future yet evade appellate review. In re Closure of Jury Voir Dire, 204 Mich App 592, 594; 516 NW2d 514 (1994).
The issue before us is one of statutory interpretation. Statutory interpretation is a question of law. Smeets v Genesee Co Clerk, 193 Mich App 628, 633; 484 NW2d 770 (1992). Questions of law are reviewed de novo on appeal. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
A fundamental rule of statutory interpretation is to determine the purpose and intent of the Legislature in enacting a provision. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The Legislature is presumed to have intended the meaning it plainly expressed. Guardian Industries Corp v Dep’t of Treasury, 198 Mich App 363, 381; 499 NW2d 349 (1993). Where the language of a statute is clear, there is no need for interpretation and the statute must be applied as written. Farrington, supra, p 208.
Const 1963, art 7, § 4 provides for the office of the sheriff. Pursuant to MCL 51.75; MSA 5.868, the "sheriff shall have the charge and custody of the jails of his county, and of the prisoners in the same.” The provision at issue states:
Every prisoner whose record shows that there are no violations of the rules and regulations shall be entitled to a reduction from his or her sentence as follows: 1 day for each 6 days of sentence. The sheriff may, by general rule, subject to amendment from time to time, prescribe how much of the good time earned under this subsection a prisoner shall forfeit for any infraction of the general rules and regulations, and for any act of insubordination the sheriff may by special order take away any portion of or the whole of the good time made by any prisoner up to the date of such offense. The sheriff may as a reward for especially good conduct, in case of insubordination, restore to any prisoner the whole or any portion of the good time lost because of any minor infraction of the rules. [MCL 51.282(2); MSA 5.883(2)(2).]
We find the above provision to be clear and unam biguous. In clear and unmistakable terms, the Legislature has stated that every county prisoner shall be entitled to a reduction of sentence of one day for every six days served where there are no violations of the rules and regulations. There are no exceptions in the provision for probationers or otherwise. Further, the sheriff is to prescribe how much good-time is to be forfeited for any infraction of the general rules and regulations.
In People v Fleming, 428 Mich 408, 425; 410 NW2d 266 (1987), the Supreme Court held that a sentencing court may not consider good-time credits to enhance a defendant’s sentence. In so holding, the Court stated that the sentencing court should not circumvent or nullify the good-time statute, MCL 800.33; MSA 28.1403, by taking away good-time credits in advance. Fleming, supra, p 427; see also People v Rushlow, 437 Mich 149, 156; 468 NW2d 487 (1991) (where the Supreme Court reiterated that taking away disciplinary credits in advance would frustrate legislative intent). Further, this Court has held that although there is no constitutional right to good-time credit, once a good-time credit provision is adopted and a prisoner earns that credit, the deprivation of good-time credit constitutes a substantial sanction, and a prisoner may claim that a deprivation of good-time credit is a denial of a protected liberty interest without due process of law. Tessin v Dep’t of Corrections (After Remand), 197 Mich App 236, 241; 495 NW2d 397 (1992); Michigan ex rel Oakland Co Prosecutor v Dep’t of Corrections, 199 Mich App 681, 695; 503 NW2d 465 (1993).
Therefore, it follows that a court may not deprive a prisoner of good-time credit to which the prisoner may be entitled under statute before that prisoner has even begun serving the term of im prisonment. Here, MCL 51.282(2); MSA 5.883(2)(2) clearly states that "[ejvery prisoner whose record shows that there are no violations of the rules and regulations shall be entitled to a reduction from his or her sentence” by one day for each six days of the sentence (emphasis added). The trial court could not deprive defendant of his statutory right to earn good-time credit by setting a specific term of imprisonment with a set release date in the order of probation. By denying the defendant his entitlement to good-time credit, a trial court frustrates the purposes behind the statute of encouraging good behavior of prisoners while incarcerated and of reducing jail overcrowding.
The prosecutor’s argument that the term of imprisonment in this case is merely a condition of probation and not a sentence is disingenuous. Probation is an actual sentence. MCL 771.3(1); MSA 28.1133(1); People v Moon, 125 Mich App 773, 780; 337 NW2d 293 (1983); People v Leonard, 144 Mich App 492, 495; 375 NW2d 745 (1985). It follows that incarceration in the county jail, even if as a condition of probation, is part of the sentence. Thus, the prosecutor’s argument that imprisonment in the county jail is a condition of probation but is not a sentence is a distinction without a difference.
We hold that the trial court erred in setting a specific term of imprisonment in the county jail, with a specific release date, as a condition of probation. Such a condition violated MCL 51.282(2); MSA 5.883(2)(2) because it prohibited defendant from obtaining good-time credit that he was lawfully entitled to earn.
Reversed and remanded for entry of an amended order of probation consistent with this opinion. Jurisdiction is not retained. | [
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Per Curiam.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for summary disposition of his age discrimination claim. We affirm.
Plaintiff’s claim arose from defendant’s denial of his application for early retirement under its "selective special early retirement program” that was offered for a limited time. In order to qualify for the program, an employee was required (1) to have been on the active payroll on or after August 1, 1987; (2) to be age fifty-five or older; (3) to be a participant in the pension plan; (4) to be selected by management to participate; and (5) to voluntarily agree to participate. Plaintiff did not qualify because he was forty-nine years old. Consequently, he filed an age discrimination claim pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., alleging that defendant discriminated against him by refusing his application on the basis of his age. The trial court granted defendant’s motion pursuant to MCR 2.116(0(10), finding that the plan was a "bona fide retirement plan” and therefore exempt from the act.
The relevant provision of the Civil Rights Act regarding employment, MCL 37.2202; MSA 3.548(202), provided in part at the time of this action:
(1) An employer shall not:
(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age ....
(b) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of. . . age . . . .[ ]
Notwithstanding the above prohibition, subsection 2 of § 202 exempted bona fide retirement policies:
This section shall not be construed to prohibit the establishment or implementation of a bona fide retirement policy or system that is not a subterfuge to evade the purpose of this section.
This case presents a unique situation: plaintiff is claiming defendant discriminated against him on the basis of age because he was too young to qualify for defendant’s early retirement program, or essentially a reverse age discrimination claim. However, as we shall discuss, we hold that the Civil Rights Act does not protect plaintiff in this situation.
To establish a prima facie case of age discrimination, a plaintiff must establish that he was a member of a protected class and that he was subjected to adverse employment action because of his age. Barnell v Taubman Co, Inc, 203 Mich App 110, 120-121; 512 NW2d 13 (1993); Featherly v Teledyne Industries, Inc, 194 Mich App 352; 486 NW2d 361 (1992). Obviously, whether a person is a member of a protected class for racial, sexual, or religious discrimination is easily identified by a person’s race, sex, or religion. However, whether a plaintiff is a member of the protected class for age discrimination is not so easily identified because the determination is not based on the age of the plaintiff per se; also to be considered is the age of the person or people who benefit from a defendant’s discriminatory actions.
In this case, plaintiff has not been denied a benefit by reason of advanced age, but, rather, because he was too young to qualify. The Civil Rights Act was conceived to deter discrimination against older workers who still are capable. Klammer v Dep’t of Transportation, 141 Mich App 253, 259; 367 NW2d 78 (1985). Therefore, we believe that plaintiff is not a member of the protected class in a reverse age discrimination case under the Civil Rights Act in light of its intended purpose.
We further find support for our position in two federal cases involving similar claims under the federal Age Discrimination in Employment Act (adea), 29 USC 621 et seq. Hamilton v Caterpillar Inc, 966 F2d 1226 (CA 7, 1992), and Wehrly v American Motors Sales Corp, 678 F Supp 1366 (ND Ind, 1988). In rejecting the plaintiff’s reverse age discrimination claim, the Seventh Circuit Court astutely observed:
There is no evidence in the legislative history that Congress had any concern for the plight of workers arbitrarily denied opportunities and benefits because they are too young. Age discrimination is thus somewhat like handicap discrimination: Congress was concerned that older people were being cast aside on the basis of inaccurate stereotypes about their abilities. The young, like the non-handicapped, cannot argue that they are similarly victimized. [Hamilton, supra, p 1228.]
Accordingly, this Court holds that plaintiff cannot establish an age discrimination case where his employer denied him special early retirement because he was too young.
Assuming arguendo that plaintiff could establish a case of age discrimination, we also find that defendant’s early retirement program was valid as a bona fide retirement policy under MCL 37.2202(2); MSA 3.548(202)(2). To date, only one decision has discussed this exemption. In Klammer, supra, this Court upheld the mandatory retirement age for state employees against an age discrimination claim under the Civil Rights Act. Although the central issue was “whether the pas sage of Elliott-Larsen in 1977 impliedly repealed the compulsory retirement provision of MCL 38.19(3); MSA 3.981(19X3),” id., p 258, this Court noted the exemption and asserted:
Generally, retirement under a plan which is not a subterfuge, is applied uniformly and is funded, is not considered discrimination and is socially beneficial. . . .
. . . The language of Elliott-Larsen, however, clearly excepts retirement policies and systems which apply uniformly and contain provisions for pension or other economic systems to protect the worker economically on retirement. [Id., p 259.]
Admittedly, defendant’s plan is not applied uniformly because workers must be invited to participate and, thus, people of the same age group are treated dissimilarly. However, we are not bound by the above definition because whether the mandatory retirement policy was bona fide was not an issue in Klammer, and therefore the statements were dicta. Because we believe the definition is overly restrictive, we decline to follow it.
Instead, we are persuaded to utilize the definition articulated by the United States Supreme Court regarding the adea’s "bona fide” retirement policy exemption, 29 USC 623(f)(2). A retirement policy is bona fide if it "exists and pays benefits.” Public Employees Retirement System of Ohio v Betts, 492 US 158, 166; 109 S Ct 2854; 106 L Ed 2d 134 (1989); United Air Lines, Inc v McMann, 434 US 192, 194; 98 S Ct 444; 54 L Ed 2d 402 (1977). Because it is undisputed that defendant’s policy exists and pays benefits, it is exempted under MCL 37.2202(2); MSA 3.548(202)(2). Accordingly, the trial court did not err in granting summary disposition in favor of defendant.
Affirmed.
The act was amended in 1991. 1991 PA 11. The amendment restructured the language of subsection 1(a) to clarify that failure or refusal to discharge an employee is not actionable.
Plaintiff’s reliance on two cases to support his argument that he falls within the protected class is misplaced. In Ewers v Stroh Brewery Co, 178 Mich App 371; 443 NW2d 504 (1989), a forty-year-old employee was among eighty-seven employees discharged because of a reorganization and reduction in the work force. This Court held that summary disposition was precluded where the plaintiff showed that his position was filled by younger workers with less experience. The plaintiff fell within the protected class not merely on the basis of his age, but also because he was replaced by younger workers. Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428; 310 NW2d 408 (1981), involved a claim brought by minors, who were denied admission into a movie theatre, under the public accommodation section of the Civil Rights Act, MCL 37.2302; MSA 3.548(302). | [
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Murphy, J.
This case is before us for a resolution pursuant to Administrative Order No. 1990-6 of a conflict in the decisions of the Court of Appeals. In the previous opinion in this case, State Farm Mutual Automobile Ins Co v Enterprise Leasing Co, unpublished opinion per curiam of the Court of Appeals, decided September 30, 1993 (Docket No. 150077), this Court reversed the trial court’s summary disposition in favor of plaintiff on the basis of the prior decision from this Court in State Farm Mutual Automobile Ins Co v Snappy Car Rental, Inc, 196 Mich App 143; 492 NW2d 500 (1992). Pursuant to Administrative Order No. 1990-6, we vacated the decision in this case pending resolution by this panel.
The question certified for this panel is as follows:
[WJhether pursuant to MCL 500.3101(1); MSA 24.13101(1) and MCL 257.520(b)(2); MSA 9.2220(b) (2) a car rental company may include in its rental agreement an option allowing the permissive user of a vehicle to provide his or her own primary residual liability insurance, as found in State Farm Mutual Automobile Ins Co v Snappy Car Rental, Inc, 196 Mich App 143; 492 NW2d 500 (1992), lv den 442 Mich 883 (1993); or whether the car rental company must provide primary residual liability insurance for a permissive user pursuant to its policy of insurance, as would have been the holding in State Farm Mutual Automobile Ins Co v Enterprise Leasing Co, unpublished per curiam of the Court of Appeals, decided September 30, 1993 (No. 150077), absent Administrative Order 1990-6.
We conclude that State Farm Mutual v Snappy Car Rental, supra, is the appropriate resolution and, accordingly, reverse the trial court’s grant of summary disposition in favor of plaintiff-appellee.
Reversed and remanded.
Doctoroff, C.J., and Holbrook, Jr., Mackenzie, Hood, Gribbs, Sawyer, and Fitzgerald, JJ., concurred. | [
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Jansen, P.J.
Plaintiffs appeal as of right from an order of the Ingham Circuit Court granting defendant Department of Mental Health partial summary disposition pursuant to MCR 2.116(0(10) and 2.116(I)(2). We reverse.
The State of Michigan is responsible for providing mental health services. Const 1963, art 8, § 8. The Mental Health Code, MCL 330.1001 et seq.; MSA 14.800(1) et seq., delineates the powers and duties of the Department of Mental Health (dmh) and. requires the dmh to ensure that adequate and appropriate mental health services are available to all citizens in this state. The dmh is permitted to operate such facilities directly or may contract with a nonpublic entity to fulfill those duties or powers granted by statute to the dmh. MCL 330.11160'); MSA 14.800(116)0').
Pursuant to this statutory authority, the dmh has utilized a standard contract (the DMH-3800B contract) to contract with private group residential home providers in which developmentally disabled persons are placed. On August 13, 1990, the dmh issued a proposed guideline revision that would establish a new contract for the private group-home providers. The guideline included a new standard DMH-3800B contract, which is incorporated by reference as part of the guideline. The proposed contract contained a number of signifi cant changes. It is undisputed that private group-home providers must enter into the contract in order to do business with the dmh. Neither the private provider nor the dmh staff have the power to modify any terms of the new DMH-3800B contract.
Plaintiffs Lola DeBois and Shirley Towns are employed by Michigan Community Service, Inc., a nonprofit corporation that provides specialized residential services for developmentally disabled adults. Plaintiff American Federation of State, County and Municipal Employees, AFL-CIO, (afscme) is a voluntary, unincorporated association that represents public employees. The afscme has been seeking to represent direct-care workers, such as DeBois and Towns, and has received from the Michigan Employment Relations Commission, the Employment Relations Board, and this Court favorable rulings finding the dmh to be a joint employer. Michigan Council 25, AFSCME v Louisiana Homes, Inc, 192 Mich App 187; 480 NW2d 280 (1991), vacated 441 Mich 883 (1992), aff’d on remand Michigan Council 25, AFSCME v Louisiana Homes, Inc (On Remand), 203 Mich App 213; 511 NW2d 696 (1993). Correspondence issued by the director of the dmh states that the dmh’s motive in attempting to change the provisions of the standard contract is to avoid the effect of the Louisiana Homes rulings.
Plaintiffs filed a two-count complaint on October 29, 1990. Count i concerned defendant Civil Service Commission and is not relevant to the instant appeal. Count ii sought declaratory and injunctive relief against the dmh, requesting the trial court to enjoin the dmh from instituting revisions of departmental guidelines regarding standard contracts between the dmh and private organizations providing residential mental health services. Plaintiffs contend that the contract was actually an administrative rule and that the dmh was required to follow the formal rule-making procedures of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq.
On November 29, 1990, plaintiffs requested a preliminary injunction, which was granted by the trial court. The trial court subsequently denied the dmh’s motion to vacate the preliminary injunction. Plaintiffs then filed a motion for summary disposition regarding count ii of the complaint. The trial court denied plaintiffs’ motion for summary disposition, but granted summary disposition for the dmh pursuant to MCR 2.116(0(10) and MCR 2.116(I)(2).
As a preliminary matter, we must first determine whether plaintiffs have standing to bring this action. Although the dmh raised this issue below, the trial court did not decide it. Both parties have briefed thoroughly this issue before this Court. We, therefore, will review this issue, because it involves a question of law for which the facts necessary for its resolution have been presented. Gillette Co v Dep’t of Treasury, 198 Mich App 303, 311; 497 NW2d 595 (1993).
Contrary to the dmh’s argument, standing and subject-matter jurisdiction are not the same. Dep’t of Social Services v Carter, 201 Mich App 643, 646; 506 NW2d 603 (1993); Altman v Nelson, 197 Mich App 467, 472; 495 NW2d 826 (1992). It is clear that plaintiffs have standing in this case, because they have shown a substantial interest and a personal stake in the outcome of the controversy. Altman, p 475. The afscme has a substantial interest and personal stake in the outcome of this case, because the dmh’s director, in letters, has stated that the changes in the contract are designed to avoid the ruling that the dmh is a joint employer and that the afscme, therefore, may organize and represent the direct-care workers. Plaintiffs Lola DeBois and Shirley Towns, as direct-care workers for one of the private group-home providers, have a substantial interest and personal stake in the outcome of this case, because the changes in the contract directly affect the terms and conditions of their employment. Accordingly, plaintiffs have standing to bring this suit.
Next, we must determine if the guideline and standard contract constitute a rule within the meaning of the apa and, if so, whether the dmh’s attempt to change the standard contract violates the promulgation procedures set forth in the apa. Because the trial court granted summary disposition to the dmh pursuant to MCR 2.116(0(10), our review of this issue is de novo, because we must review the record to determine whether the dmh was entitled to judgment as a matter of law. Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 86; 514 NW2d 185 (1994).
Section 7 of the apa defines rule as:
"Rule” means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission thereof.... [MCL 24.207; MSA 3.560(107)].
The trial court found that the guideline and standard contract is not a rule on the basis of the provision excluding from the definition of a rule the following:
A decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected. [MCL 24.207(j); MSA 3.560(107)(j)].
Our Supreme Court has noted that "rule” is defined broadly to defeat agencies’ inclinations to label as bulletins, announcements, guides, and interpretive bulletins those directives that are actually rules. Detroit Base Coalition for the Human Rights of the Handicapped v Dep’t of Social Services, 431 Mich 172, 183; 428 NW2d 335 (1988). Further, the situations in which § 7(j) exemptions have been found to apply are those in which explicit or implicit authorization for the action in question have been found. Detroit Base Coalition, pp 187-188.
The dmh claims that the above exemption applies pursuant to MCL 330.1116(j); MSA 14.800(116)(j), which states that the dmh "may enter into any agreement, contract, or. arrangement with any public or nonpublic entity that is necessary or appropriate to fulfill those duties or exercise those powers that have by statute been given to the department.” This provision allows the dmh to contract with private group-home providers; however, the issue here is whether the contract itself, which must be utilized by the private group-home providers and may not be modified, constitutes a rule within the meaning of the apa. Thus, while the act of contracting with a private group-home provider is permissive, the terms of the contract and the requirement that the private group-home provider abide by the contract are not. Spear v Michigan Rehabilitative Services, 202 Mich App 1, 4-5; 507 NW2d 761 (1993).
The standard contract is very specific. It is seventeen pages long and provides, inter alia, for funding of the group homes, discrimination poli ties; compliance with dmh rules, guidelines, and directives; submission of financial statements; requirements regarding direct-care worker training and staff levels; requirements regarding patient rights and reporting requirements, and personnel policies and procedures including bonuses and evaluations. The guideline, which incorporates the standard contract by reference, is specifically intended to rescind and replace the former standard contract. Therefore, the guideline and standard contract, which must be read together, are not merely an explanatory guideline that would not be subject to the promulgation procedures of the apa. Jordan v Dep’t of Corrections, 165 Mich App 20, 25; 418 NW2d 914 (1987).
Accordingly, while the dmh’s decision to contract with private group-home providers is a permissive exercise of its statutory power, the guideline and the standard contract, which is required to be entered into by a private group-home provider and may not be modified, are not exempt from the definition of a rule and must be promulgated as a rule pursuant to the apa. Spear, supra, p 5; Palozolo v Dep’t of Social Services, 189 Mich App 530; 473 NW2d 765 (1991) (adopting Judge Shepherd’s dissenting opinion in Pyke v Dep’t of Social Services, 182 Mich App 619, 633-636; 453 NW2d 274 (1990). Because the dmh failed to promulgate the guideline and standard contract pursuant to the apa, its attempt to revise the standard contract is without legal authority or effect.
We reverse the trial court’s grant of summary disposition in favor of the dmh and remand for the court to enter summary disposition in favor of plaintiffs. We do not retain jurisdiction.
R. L. Ziolkowski, J., concurred. | [
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Per Curiam.
Defendant was charged with possession with intent to deliver 50 to 225 grams of cocaine and with possession of 50 to 225 grams of cocaine. Trial began on January 6, 1992, and a jury was selected. On the second day of trial, defendant moved to suppress his confession. The motion was denied. Defendant then pleaded guilty of possession of more than 50 but less than 225 grams of cocaine, MCL 333.7403(2)(a)(iii); MSA 14.15(7403)(2)(a)(iii). After defendant pleaded guilty but before sentencing, he moved to withdraw his plea. That motion was also denied. Defendant was subsequently sentenced to ten to twenty years’ imprisonment. He appeals as of right, contending that the trial court erred in denying his motion to withdraw his plea and that his sentence was excessive. We disagree and affirm.
There is no absolute right to withdraw a guilty plea once it has been accepted. People v Sanders, 112 Mich App 585, 586; 316 NW2d 266 (1982). Before October 1, 1989, however, courts applied the "great liberality” standard set forth in People v Bencheck, 360 Mich 430; 104 NW2d 191 (1960), to presentencing motions to withdraw guilty pleas. Under this standard, trial courts were obligated to allow the withdrawal of a guilty plea before sentencing unless the reasons for the withdrawal were clearly frivolous or motivated by dissatisfac tion with a probable sentence. See, e.g., People v Camargo, 163 Mich App 581, 584-585; 415 NW2d 211 (1987).
Defendant contends that the "great liberality” standard should have been applied in ruling on his motion to withdraw his plea. The claim is without merit. The Supreme Court in promulgating MCR 6.310(B) of the Rules of Criminal Procedure (effective October 1, 1989), discarded the "great liberality” standard in favor of a more restrictive standard that considers the interests of justice and potential prejudice to. the prosecution. People v Holmes, 181 Mich App 488, 497; 449 NW2d 917 (1989). MCR 6.310(B) states:
Withdrawal Before Sentence. On the defendant’s motion or with the defendant’s consent, the court in the interest of justice may permit an accepted plea to be withdrawn before sentence is imposed unless withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea. If the defendant’s motion is based on an error in the plea proceeding, the court must permit the defendant to withdraw the plea if it would be required by MCR 6.311(B).
In People v Spencer, 192 Mich App 146, 151; 480 NW2d 308 (1991), this Court discussed the parameters of MCR 6.310(B) and how it should be applied:
[I]n order to withdraw a guilty plea before sentencing, the defendant must first establish that withdrawal of the plea is supported by reasons based on the interests of justice. If sufficient reasons are provided, the burden then shifts to the prosecution to demonstrafe substantial prejudice. To constitute substantial prejudice, the prosecution must show that its ability to prosecute is somehow hampered by the delay. This would appear to require more than mere inconvenience in preparing for trial. Ultimately, the trial judge should bear in mind what is in the interests of justice in deciding if a plea may be withdrawn. Accordingly, what constitutes substantial prejudice may vary from case to case.
See also People v Thew, 201 Mich App 78; 506 NW2d 547 (1993).
Recently, in People v Jackson, 203 Mich App 607, 613; 513 NW2d 206 (1994), this Court provided further guidance regarding the application of the "in the interest of justice” standard of MCR 6.310(B):
[The trial court] must allow defendant to attempt to show that withdrawal of the plea is in the interest of justice. Defendant can do this, for example, by showing that “ ‘the plea was the product of fraud, duress, or coercion.’ ” [People v Sledge (On Rehearing), 200 Mich App 326, 329; 503 NW2d 672 (1993)] (quoting People v Taylor, 383 Mich 338, 361; 175 NW2d 715 [1970]). We stress that "bad advice of defense counsel alone generally is not enough to warrant the withdrawal of a plea.” Sledge, supra at 329; also People v Mayes (After Remand), 202 Mich App 181, 192; 508 NW2d 161 (1993). On the other hand, it is incumbent upon the trial court to allow the defendant to withdraw his plea where the plea may have been induced by inaccurate legal advice and the defendant refuses or is unable to personally recount a sufficient basis to substantiate the charge. Spencer, supra at 151-152. The same is true where the defendant can show ineffective assistance of counsel combined with the existence of a meritorious defense. See Thew, supra at 95-97. We note that the issue is not whether the trial court believes the defendant’s asserted defense, but rather, "whether the defendant has a valid defense to the charge . . . even if he might be guilty of other offenses.” Id. at 96.
In this case, defendant pleaded guilty on the second day of trial, after the jury had been selected. A motion to suppress his confession had already been heard and denied. Defendant did not assert innocence as a basis to withdraw the plea, and the defense he asserted — that his confession to the police was coerced — had been rejected. He did not allege ineffective assistance of counsel or that he had received inaccurate legal advice; he stated only that his attorney had "convinced” him to plea. The trial court followed the proper steps for taking the plea and we find nothing in the record to convince us that defendant’s plea was involuntary. Because defendant failed to demonstrate that the interest of justice would be served by allowing him to withdraw his guilty plea, the trial court properly denied the motion.
We also reject defendant’s argument that the sentencing judge must have not realized his discretion in sentencing. Just because defendant’s sentence is the same as the statute provides — imprisonment for not less than ten nor more than twenty years — is not an indication that the judge was unaware of his discretion in sentencing. We find no error.
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Per Curiam.
The Michigan Employment Security Commission appeals as of right from a circuit court order reversing an mesc referee’s decision that K & K Woodworking, Inc., is a successor employer to Timmer & Brummel, Inc. We vacate the circuit court’s ruling, reverse the mesc’s decision regarding K & K’s liability, and remand for further proceedings.
On August 28, 1989, Timmer executed an agreement with NBD Bank, agreeing to voluntarily surrender ownership of its corporate assets and cash to nbd to pay a business loan. Timmer’s assets were subject to nbd’s first-priority security interest.
On September 6, 1989, K & K purchased Timmer’s assets from nbd. The mesc subsequently issued a determination and a redetermination that K & K succeeded Timmer as employer and was liable for Timmer’s unpaid contributions and interest.
Following a hearing, an mesc referee on March 13, 1991, affirmed the redetermination, ruling that K & K was not entitled to a reduction in its mesc obligation because it did not hold a security interest in the assets it acquired from Timmer. On appeal, the circuit court reversed the mesc’s determination of successorship, holding that K & K was not a successor employer because it had acquired Timmer’s assets from nbd. The present appeal followed.
The primary issue presented on appeal is whether K & K can be held liable for Timmer’s unpaid contributions and interest pursuant to § 15(g) of the Michigan Employment Security Act, MCL 421.15(g); MSA 17.515(g). At the time of the events in question in this case, § 15(g) provided in pertinent part:
A person or employing unit, which acquires the organization, trade, business, or 75% or more of the assets from an employing unit, as a successor defined in section 41(2), shall be liable for contributions and interest due to the commission from the transferor at the time of the acquisition in an amount not to exceed the reasonable value of the organization, trade, business, or assets acquired, less the amount of a secured interest in the assets owned by the transferee which are entitled to priority.
Resolution of this issue requires an interpretation of the acquisition requirements in the mesa for an individual, legal entity, or employing unit to become a successor employer. We find that the following definition of "employer” in §41(2)(a), MCL 421.41(2)(a); MSA 17.543(2)(a), does not require any particular form of acquisition:
Any individual, legal entity, or employing unit which acquired the organization, trade, or business, or 75% or more of the assets thereof, of another which at the time of the acquisition was an employer subject to this act.
Liberally construing § 41(2)(a), Grand Rapids Public Schools v Falkenstern, 168 Mich App 529, 536; 425 NW2d 128 (1988), we hold that the Legislature intended to permit a factual inquiry into the substance of the transaction rather than require any technical form of acquisition. Cf. Warehouse Indemnity Corp v Arizona Dep’t of Economic Security, 128 Ariz App 504; 627 P2d 235 (1981); Mason v City Cartage Co, 124 Ind App 314; 117 NE2d 387 (1954).
This result dovetails harmoniously with other sections of the mesa pertaining to successor employers, such as MCL 421.22(a); MSA 17.524(a), which specifically recognizes that business transfers may occur other than in the ordinary course of trade. See Nelligan v Gibson Insulation Co, 193 Mich App 274, 280-281; 483 NW2d 460 (1992). We disagree with the circuit court’s view that the phrase "from an employing unit” in § 15(g) requires a direct transfer between the predecessor and successor employer. Nowhere in § 15(g) or § 41(2)(a) is a transfer through an intermediary prohibited. Hence, the lack of direct privity of contract between K & K and Timmer did not preclude the mesc from finding that K & K was liable under § 15(g) for Timmer’s unpaid contributions and interest.
Because it could reasonably be found that the bank acted as a conduit to facilitate the transfer of assets between K & K and Timmer in order to safeguard its own secured interest, we affirm the referee’s finding that K & K was the successor employer to Timmer. See McArthur v Borman’s Inc, 200 Mich App 686, 689; 505 NW2d 32 (1993). In light of this holding, we need not consider the circuit court’s ruling that the bank did not fall within the definition of an "employing unit.”
Next, although the mesc’s interpretation of the formula in § 15(g) for determining plaintiffs maximum liability is entitled to respectful consideration, we are not bound by it and we decline to follow it here. Ha-Marque Fabricators, Inc v Michigan Employment Security Comm, 178 Mich App 470, 478; 444 NW2d 190 (1989). We must presume that the Legislature was aware of other laws governing secured transactions, such as Article 9 of the Uniform Commercial Code, MCL 440.9101 et seq.; MSA 19.9101 et seq., when it amended the formula in § 15(g) in 1971 PA 231 to add the reduction for "a secured interest in the assets owned by the transferee which are entitled to priority.” See In re Recorder’s Court Bar Ass’n v Wayne Circuit Court, 443 Mich 110, 126; 503 NW2d 885 (1993). We agree with K & K that the phrase "owned by the transferee” modifies the word "assets” because neither the subject matter nor dominant purpose of § 15(g) requires a different interpretation. People v Pigula, 202 Mich App 87, 90; 507 NW2d 810 (1993). However, we are not persuaded that this interpretation clarifies how "assets owned by the transferee” should relate to the additional limitations for "a secured interest” and "which are entitled to priority.” Nor are we persuaded that issues of fairness should affect how § 15(g) is interpreted. See Mercy Hosp v Crippled Children Comm, 340 Mich 404, 408; 65 NW2d 838 (1954).
We believe it is appropriate to construe § 15(g) in conjunction with the lien rules for the mesc in § 15(e), MCL 421.15(e); MSA 17.515(e), which were in effect at the time K & K acquired Timmer’s assets. In so doing, it is apparent that the only secured interests the Legislature intended to be subtracted from the reasonable value of the business or assets that establish the successor employer’s maximum liability in § 15(g) are secured interests superior to the mesc’s own lien to collect unpaid contributions and interest. Stated otherwise, the Legislature’s intent in § 15(g) was to adjust for those assets that the mesc could not reach because of the existence of superior secured interests. In this regard, the transferee (K & K) stands in the same shoes as the transferor (Timmer) in relation to the mesc because the "priority” language in § 15(g) effectively limits the mesc’s ability to reach assets to pay for contributions and interest to those assets that it could have reached had there been no sale of the business or assets.
We therefore hold that the referee erred in construing § 15(g) as allowing a reduction for the amount of the secured interest in the assets of a predecessor only when that secured interest is owned by the transferee. The question under § 15(g) is not who held the secured interest, but rather whether the secured interest was superior to the mesc’s own lien or interest. Because the referee’s interpretation of § 15(g) was contrary to law, we reverse this part of the mesc decision. MCL 421.38(1); MSA 17.540(1); Schultz v Oakland Co, 187 Mich App 96, 102; 466 NW2d 374 (1991).
We vacate the circuit court decision, reverse the mesc decision regarding K & K’s liability, and remand to the mesc for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Per Curiam.
Defendant, the Tuscola County Register of Deeds, Virginia McLaren, appeals as of right from the order of mandamus requiring her to provide plaintiff with sufficient space to maintain a photocopy machine in her office. We reverse.
Plaintiff placed a copy machine in a back room of defendant’s office in 1974. In 1985, defendant obtained a copy machine and subsequently moved plaintiff’s machine to another area. The machine was then placed in the lobby to avoid congestion. In 1990, plaintiff refused defendant’s requests to pay $600 a month, and a few months later $300 a month, for the space its machine was occupying. After defendant unplugged the machine, plaintiff began purchasing copies of documents for a fee of $1 a page.
Plaintiff filed a complaint for mandamus, seeking an order to maintain its copy machine in defendant’s office. An evidentiary hearing was held at which representatives from other abstract or title insurance companies and from other registers of deeds testified regarding the fees and practice throughout the state. The court ruled that defendant had not fulfilled her statutory obligation to provide reasonable access to her office. The court subsequently ordered that plaintiff’s copy machine would remain at defendant’s office and that plaintiff would pay $25 a week. The court also ordered defendant to reimburse plaintiff for past copy costs.
Defendant first contends that the court abused its discretion in granting plaintiff’s request for mandamus and ordering it to provide sufficient space for plaintiff’s copy machine. We agree.
Mandamus is an extraordinary remedy and is appropriate only when there is no other remedy, legal or equitable, that might achieve the same result. Delly v Bureau of State Lottery, 183 Mich App 258, 260; 454 NW2d 141 (1990). Issuance of a writ of mandamus is proper where (1) the plaintiff has a clear legal right to performance of the specific duty sought to be compelled, (2) the defendant has the clear legal duty to perform such act, and (3) the act is ministerial, involving no exercise of discretion or judgment. Id. Mandamus will not lie to review or control the exercise of discretion vested in a public official or administrative body. Teasel v Dep’t of Mental Health, 419 Mich 390, 410; 355 NW2d 75 (1984).
MCL 565.551; MSA 26.791 requires registers of deeds to furnish proper and reasonable facilities for the inspection and examination of the records and files in the registers’ offices to all persons having occasion to make examination of them for any lawful purpose. The registers of deeds may establish reasonable rules and regulations regarding the inspection and examination of the records as shall be necessary to protect the records and files and to prevent interference with the regular discharge of duties. The Legislature has recently amended MCL 565.551; MSA 26.791 by the enactment of 1994 PA 51 to provide, in relevant part:
(2) If an individual requests a reproduction of a record or file of a register of deeds, the register of deeds shall do 1 of the following, at the register of deeds’ option:
(a) Reproduce the record or file for the individual . . . using a medium selected by the register of deeds. Unless a different fee is provided for by law, the fee for a reproduction under this subdivision other than a paper copy shall not exceed the reasonable costs to the register of deeds.
(b) Provide equipment for the individual to reproduce the record or file . . . using a medium selected by the register of deeds. Unless a different fee is provided for by law, the fee for a reproduction under this subdivision other than a paper copy shall not exceed the reasonable costs to the register of deeds.
(c) Authorize the individual to reproduce the record or file on the premises using equipment provided by that individual. This subdivision does not apply unless the individual requests authorization to reproduce the record or file using equipment provided by that individual. [Emphasis added.]
We find that the trial court abused its discretion in granting a writ of mandamus. Under MCL 565.551; MSA 26.791, both before and after its recent amendment, the registers of deeds in this state have considerable discretion in providing reasonable access and facilities for inspection and examination of records. The Supreme Court clearly recognized this discretion in Washtenaw Abstract Co v Mayer, 347 Mich 228, 233; 79 NW2d 480 (1956), in which it held that the county board of commissioners could not remove a photocopy machine that had been placed in the office of the register of deeds by an abstracter with the register’s permission. Further, the amendment clearly provides that a register of deeds, at the register’s option, may allow a copy machine to be placed at the office or may charge a fee for copies of documents that are produced for the party requesting copies. Therefore, mandamus was inappropriate, because defendant’s actions involved the exercise of discretion vested in a public official.
Additionally, mandamus was improper because plaintiff does not have a clear legal right to maintain the copy machine at defendant’s office, nor does defendant have a clear legal duty to provide the space. In Washtenaw Abstract Co, id. at 233, the Supreme Court pointedly asserted:
[W]e in nowise hold that abstracters do or may acquire a vested or other right to permanently or exclusively occupy portions of the offices of the registers of deeds, even with the consent of the latter, for the purpose of copying records.
See also Burton Abstract & Title Co v Martin, 38 Mich App 178, 180-181; 196 NW2d 23 (1972). Accordingly, we reverse the order of mandamus.
Next, defendant argues that the trial court erred in finding that the fee of $1 a page for copies of documents was unreasonable. We agree. The Legislature has provided that a register of deeds is entitled to charge $1 a page for copies of any records or papers:
A register of deeds is entitled to the following fees, which are not taxable as costs except as indicated:
(b) For copies of any records or papers, if required, $1.00 per page, taxable as costs if otherwise allowed. [MCL 600.2567(l)(b); MSA 27A.2567(l)(b).]
No exception is made for any member of the public, including abstract companies. MCL 600.2567(4); MSA 27A.2567(4) further provides that a county board of commissioners may reduce or eliminate the fees specified in subsection 1(b).
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 216; 501 NW2d 76 (1993). If the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). In finding the statutory fee of $1 a page unreasonable, the trial court stated:
Now, I realize that for making hard copies, the statute clearly says that the rate shall be a dollar a copy and that can only be reduced by the County Board of Commissioners. But we’re talking about an arrangement for — an ongoing arrangement here for an abstract company who has a demand for a lot of copies, and I think that that’s something over and above and different than what this statute provides for. I think the purpose of that statute is to set a ceiling so that a Register of Deeds can’t take the arbitrary position that they want $10 a copy for a copy, for example, which they could possibly do if there wasn’t this legislation to put the one dollar ceiling on it, and I think that’s the purpose of the legislation.
The trial court’s analysis and ultimate conclusion were made without the benefit of the 1994 amendment of MCL 565.551; MSA 26.791, which provides clarification. The Legislature has authorized the register of deeds to charge any fee provided by law, in this case $1 a page pursuant to § 2567(l)(b) of the Revised Judicature Act, and the register of deeds, in turn, may select the fee to charge all members of the public. By empowering the county board of commissioners with discretion to reduce or eliminate the fee, the Legislature made clear its intention that the board of commissioners should decide whether an exception should be made. Accordingly, we find the trial court was without authority to create exceptions simply on the basis of the volume of copies requested by an abstract company and to impose lease arrangements upon the register of deeds. Therefore, we reverse the court’s finding that the fee is unreasonable.
In light of our holdings that mandamus was not properly issued and that the fee was not unreasonable, we reverse the award of damages ordered by the trial court.
Reversed and remanded. We do not retain jurisdiction. | [
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Corrigan, J.
In this case of first impression, we hold that the unclaimed deposit amendments of the act regarding beverage containers (hereafter referred to as the Bottle Law), 1989 PA 148, MCL 445.573b; MSA 18.1206(13b) and MCL 445.573d; MSA 18.1206(13d), do not offend the takings clauses of US Const, Ams V and XIV, and Const 1963, art 10, § 2. Because these amendments constitute a valid exercise of legislative power, we order dissolution of the trial court’s permanent injunction against enforcement of 1989 PA 148.
Plaintiff Michigan Soft Drink Association (msda), whose members consist of Michigan manufacturers and distributors of carbonated beverages, challenged the constitutionality of 1989 PA 148 as a taking of msda members’ private property without just compensation. By stipulation of the parties, several retail merchants intervened to challenge plaintiffs standing and to oppose plaintiffs motion for partial summary disposition.
The circuit court first ruled that plaintiff had standing. Regarding plaintiffs motion for partial summary disposition, the court held that MCL 445.573b; MSA 18.1206(13b) and MCL 445.573d; MSA 18.1206(13d), which prospectively impose duties on manufacturers and distributors annually to report bottle deposits collected and refunds paid, and to pay unrefunded deposits to the Department of Treasury, effect an unlawful taking of private property for public use without just compensation, in violation of US Const, Ams V and XIV, and Const 1963, art 10, § 2. The court permanently enjoined enforcement of 1989 PA 148, MCL 445.573a; MSA 18.1206(13a) and MCL 445.573c; MSA 18.1206(13c). Defendants appealed, their appeals were consolidated, and we reverse.
i
STATUTORY SCHEME
The concerns of Michigan’s citizens about environmental damage and financial burdens caused by discarded beverage containers led the people to approve the Initiated Law of 1976, MCL 445.571 et seq.; MSA 18.1206(11) et seq., commonly known as the Bottle Law, which was effective December 3, 1978. The parties essentially agree on the mechanics of the Bottle Law’s operation. The law prohibits dealers from selling to consumers beverages in nonreturnable containers for any off-premises consumption of beer and soft drinks, MCL 445.572(1); MSA 18.1206(12)(1). A purchaser must pay at least a ten-cent deposit on a returnable container. MCL 445.571(d); MSA 18.1206(1l)(d). In turn, a dealer must pay a refund value of at least ten cents to a purchaser who returns an empty container of the same size, kind, and brand of beverage that the dealer sells. Id.; MCL 445.572(4); MSA 18.1206(12) (4). The dealer may then present the empty container to any manufacturer or distributor who sells the same size, kind, and brand of container; a distributor or manufacturer must accept the empty container and pay its full refund value. MCL 445.572(6); MSA 18.1206(12X6). A manufacturer or distributor may originate a deposit on any beverage container it sells. MCL 445.572(11); MSA 18.1206(12)(11).
After the voters approved the Initiated Law of 1976, manufacturers and dealers originated deposits on returnable beverage containers in anticipation of their duty to pay the refund value to dealers. Because consumers did not return all containers for their refund value, unredeemed deposits in an unknown amount began to accumulate. The 1976 legislation was silent about the ownership of these unredeemed deposits. In the absence of any explicit legislative directive, manufacturers and distributors kept all the unredeemed deposits.
The Attorney General opined that unclaimed deposits were not subject to escheat under the Initiated Law of 1976, that the deposits belonged to the collectors of those deposits, and that the containers belonged to the purchasers. The Attorney General also concluded, however, that appropriate legislation could render unclaimed deposits subject to escheat. OAG 1989-1990, No 6578, pp 84-89 (April 25, 1989)._
In deciding this case, the circuit court acknowledged that the current deposit structure would not exist in the absence of state action and that the 1976 law imposed an artificial value on empty returnable containers. The court recognized that the advent of new product technology in the form of cheap nonreturnable containers had rendered obsolete the former practice of some beverage container manufacturers of charging deposits on returnable bottles. Were it not for the Bottle Law, manufacturers and distributors would not charge deposits on nonreturnable containers equal to their statutory refund value.
Because of public sentiment against windfall profits to distributors and manufacturers from the unredeemed deposits, the Legislature explicitly amended the Bottle Law to provide that unclaimed deposits on returnable containers are considered the property of the purchaser, not the manufacturer or distributor, 1989 PA 148, MCL 445.573d; MSA 18.1206(13d). Further, distributors or manufacturers are to report annually to the Department of Treasury the total dollar amounts of deposits collected and refunds paid. If a distributor’s or manufacturer’s total annual deposits exceed the total annual value of refunds, the excess must be remitted to the Department of Treasury for deposit in a revolving fund, MCL 445.573b; MSA 18.1206(13b). The Department of Treasury is to disburse annually seventy-five percent of the unredeemed bottle fund to the Unclaimed Bottle Fund. The remaining twenty-five percent is to be apportioned to dealers on the basis of the percentage of empty returnable containers each dealer handles. See MCL 445.573c; MSA 18.1206(13c).
1989 PA 148 was made contingent upon the enactment of what later became 1989 PA 157, which directed utilization of the Unclaimed Bottle Fund for specified environmental and public purposes, MCL 299.609a et seq.; MSA 13.32(9a) et seq. For the first ten years, the unclaimed deposits will remain in the Unclaimed Bottle Fund. Thereafter, the Department of Treasury will disburse one-third of the proceeds to the Environmental Response Fund, one-third to the Long-Term Maintenance Trust Fund, and one-third to the Clean Michigan Fund, MCL 299:609; MSA 13.32(9), MCL 299.609c; MSA 13.32(9c), MCL 299.375; MSA 13.33(5).
ii
plaintiff’s standing to sue
Defendants first contend that plaintiff lacks standing to sue because it has failed to demonstrate any direct economic injury from the unclaimed deposits amendments. We affirm the circuit court’s ruling that plaintiff has standing to bring this action. Standing denotes "a party’s interest in the outcome of litigation that ensures sincere and vigorous advocacy.” House Speaker v Governor, 443 Mich 560, 572; 506 NW2d 190 (1993); Taylor v Blue Cross & Blue Shield of Michigan, 205 Mich App 644; 517 NW2d 864 (1994). Evidence of a commitment to engage in litigation alone, however, is insufficient to confer standing. House Speaker v State Administrative Bd, 441 Mich 547, 554; 495 NW2d 539 (1993). "Standing requires a demonstration that the plaintiff’s substantial interest will be detrimentally affected in a manner different from the citizenry at large.” Id. Defendants contend that the lack of direct economic injury to plaintiff defeats standing, citing California Bankers Ass’n v Shultz, 416 US 21; 94 S Ct 1494; 39 L Ed 2d 812 (1974). Although this argument certainly has persuasive force under relevant federal standards, Michigan does not always subscribe to federal authority on standing questions. House Speaker v Governor, supra. Instead, plaintiff has standing pursuant to MCR 2.201(B)(4), which provides in part:
An action to prevent illegal expenditure of state funds or to test the constitutionality of a statute relating to such an expenditure may be brought:
(a) in the name of a domestic nonprofit corporation organized for civic, protective, or improvement purposes .... [Emphasis added.]
Plaintiff, a domestic nonprofit Michigan corporation, exists to promote the strength and well-being of the Michigan soft drink industry and to influence legislation and public policies affecting the soft drink industry. These purposes qualify as protective or improvement purposes. 1989 PA 148 not only directs the collection and retention of unredeemed deposits, it also directs expenditure of those deposits in subsequent years, MCL 445.573c; MSA 18.1206(13c); 1989 PA 157, MCL 299.609a; MSA 13.32(9a). Accepting, as we must, the truth of plaintiff’s allegation in the complaint that the statutory scheme would effect an illegal taking, we conclude that plaintiff has standing to litigate this matter because it seeks to test the constitutionality of a statute relating to an allegedly illegal expenditure of state funds. House Speaker v Governor, supra.
Defendants rely principally on Michigan License Beverage Ass’n v Behnan Hall, Inc, 82 Mich App 319; 266 NW2d 808 (1978), to defeat plaintiff’s standing to sue. In License Beverage, the association’s stated purpose was to educate its members, licensees under the Liquor Control Act, regarding their moral, ethical, and civic responsibilities. Id. at 325, n 3. The organization sought injunctive relief to enforce provisions of the Liquor Control Act. Id. at 323-324. This Court held that the association lacked standing because it was not constituted for representative purposes and its corporate purposes were unrelated to litigation purposes. Id. at 325-326. By contrast, the complaint in this case specifically alleges that plaintiff exists to represent the rights and interests of its members. Plaintiffs interest obviously differs from the interest of the citizenry at large. In light of MCR 2.201(B)(4) and House Speaker v Governor, supra, we conclude that the circuit court properly found that plaintiff has standing to pursue this litigation.
hi
TAKINGS CLAUSE
Defendants contend that the circuit court erred in holding that the unclaimed deposits amendments of the Bottle Law, 1989 PA 148, MCL 445.573b; MSA 18.1206(13b) and MCL 445.573d; MSA 18.1206(13d), violate the takings clauses of the federal and state constitutions. They argue that, after the Legislature declared that unredeemed deposits belong to the purchasers, manufacturers and distributors have no private property interest in the retention of prospective unredeemed bottle deposits. We agree.
We begin from the premise that legislative enactments are presumed constitutional, absent a clear showing to the contrary. The party challenging the constitutionality of legislation bears the burden of proof. Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400; 488 NW2d 182 (1992). Both Const 1963, art 10, § 2 and the Fifth Amendment protect private property from being taken for public use without just compensation. US Const, Ams V and XIV; Const 1963, art 10, §2; Penn Central Transportation Co v New York City, 438 US 104, 122; 98 S Ct 2646; 57 L Ed 2d 631 (1978); Lansing v Edward Rose Realty, Inc, 442 Mich 626, 631; 502 NW2d 638 (1993). In order to prevail on a takings claim, a claimant first must demonstrate a cognizable interest in the affected private property. See Charles Murphy, MD, PC v Detroit, 201 Mich App 54; 506 NW2d 5 (1993); Ohio Student Loan Comm v Cavazos, 900 F2d 894, 898-899 (CA 6, 1990). Plaintiff has failed in this burden. It has not demonstrated a property interest in its members’ retention of future unredeemed deposits.
After the circuit court had already rendered its opinion in this case, the supreme courts of Massachusetts and Maine upheld the constitutionality of similar amendments of their states’ bottle laws against takings clause challenges brought by wholesalers’ associations in their states. Massachusetts Wholesalers of Malt Beverages, Inc v Commonwealth, 414 Mass 411; 609 NE2d 67 (1993) (Mass Wholesalers II); Maine Beer & Wine Wholesalers Ass’n v Maine, 619 A2d 94 (Me, 1993). Massachusetts originally enacted a bottle law analogous to the Initiated Law of 1976, Mass Gen, L ch 94, §§ 321-327. Its law did not address the problem of unclaimed deposits. The supreme court ruled that unclaimed bottle deposits belonged to the manufacturers and distributors, in the absence of an explicit legislative directive. Massachusetts Wholesalers of Malt Beverages, Inc v Attorney General, 409 Mass 336; 567 NE2d 183 (1991) (Mass Wholesalers I). The Massachusetts legislature thereafter amended its bottle law to require the maintenance of separate accounts for the benefit of consumers and the commonwealth, providing specifically that "for no purposes are amounts in such fund to be regarded as income of said bottlers or distributors.” Mass Gen, L ch 94, § 323(h).
Just as in this case, Massachusetts wholesalers again filed suit, asserting that Mass Gen, L ch 94, § 323(h) effected a taking without just compensation. Mass Wholesalers II, supra. The supreme court rejected this argument, holding that the amendment did not effect a taking because the plaintiffs possessed no right to the deposits under the amended bill. Mass Wholesalers II, supra, 609 NE2d 69. The court reasoned that any rights arose from the original statutory scheme, and those rights were subject to amendment. The court rejected the wholesalers’ claims of a continuing common-law right to the deposits, and found any preexisting rights the wholesalers enjoyed derived from statute. Before the enactment of the bottle law, the wholesalers had not charged deposits on these containers. After enactment, the only deposits charged equaled the statutory refund value:
The plaintiffs’ right to the deposits created under the original bottle bill, as interpreted in Mass Wholesalers, supra, does not translate into a similar right to these deposits under the bottle bill, as now amended. "Property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Regents of State Colleges v Roth, 408 US 564, 577; 92 S Ct 2701, 2709; 33 L Ed 2d 548 (1972). German v Commonwealth [410 Mass 445, 450; 574 NE2d 336 (1991)]. What the Legislature granted in the original bottle bill, the Legislature can take away by amendment. [609 NE2d 70.]
We find the analysis in Mass Wholesaler II persuasive. See, also, Webb’s Fabulous Pharmacies, Inc v Beckwith, 449 US 155, 161; 101 S Ct 446; 66 L Ed 2d 358 (1980); Verbison v Auto Club Ins Ass’n, 201 Mich App 635, 639; 506 NW2d 920 (1993) (property interests are not created by the constitution, but are defined by rules or understandings from independent sources, such as state laws).
We reject plaintiffs argument that the common law of sale and return contracts establishes that the deposits are its property, in reliance on Goebel Brewing Co v State Bd of Tax Administration, 306 Mich 222; 10 NW2d 835 (1943). The deposit scheme reviewed in Goebel was not a creature of the Legislature. Id. Unlike Goebel, but like the transactions at issue in Massachusetts Wholesalers, supra, the deposit transactions in the instant case occur artificially, as a result of state mandate. Although the Bottle Law does not mandate that manufacturers and distributors originate deposits, the law makes such an event inevitable. MCL 445.572(6); MSA 18.1206(12)(6) and MCL 445.572(12); MSA 18.1206(12)(12). Plaintiff essentially concedes this point; its members charge a deposit in recognition of their obligation to pay the refund value. Absent the statutory refund scheme, the manufacturers and distributors would not charge deposits on containers.
Plaintiff does not contend that its members charged deposits before the approval of the Initiated Law of 1976. Because the deposit system is a creature of the Legislature, the Legislature may define its dimensions. Nor does plaintiff argue or provide authority that the Legislature is barred from altering the conceptions of property derived from the common law. The Legislature had authority to settle the question of ownership by its adoption of the 1989 amendments. As Mass Wholesalers II, supra, 609 NE2d 73 observed:
"As a broad' principle of jurisprudence rather than as a result of the evolution of legal rules, it is clear that a State, subject to constitutional limitations, may use its legislative power to dispose of property within its reach, belonging to unknown persons.” Standard Oil Co v New Jersey, 341 US 428, 435-436; 71 S Ct 822, 827; 95 L Ed 1078 (1951). The abandoned property scheme set up in the amendment is proper.
The Maine Supreme Court has also upheld amendments of its bottle law analogous to 1989 PA 148 against state and federal takings clause challenges. Employing a somewhat different analysis, that court concluded that amendments requiring sellers to remit fifty percent of unclaimed deposits to the state amounted to a valid environmental regulation falling squarely within the state’s police powers. Maine Beer & Wine Wholesalers v Maine, supra. In the alternative, even assuming that plaintiffs members have some property interest in future unclaimed deposits, we adopt the analysis of the Maine Supreme Court:
Although both tangible and intangible property may be the subject of an impermissible taking, there is no property right to potential or future profits. York Hosp v Maine Health Care Fin Comm’n, 719 F Supp 1111, 1121 (D Me, 1989) ("Absent legal entitlement to specific profits, there can be no property interest, and thus, no taking.”); Seven Islands Land Co v Maine Land Use Regulation Comm’n, 450 A2d 475, 482, n 10 (ME, 1982) (citing Andrus v Allard, 444 US 51, 66; 100 S Ct 318, 327; 62 L Ed 2d 210 [1980]). Furthermore, an appropriation of money does not constitute a per se taking, as would a physical occupation of property or a denial of all its beneficial use. United States v Sperry Corp, 493 US 52, 62, n 9; 110 S Ct 387, 395, n 9; 107 L Ed 2d 290 (1989) ("It is artificial to view deductions of a percentage of a monetary award as physical appropriations of property. Unlike real or personal property, money is fungible. . . . Such a rule would be an extravagant extension of the [definition of per se takings].”) Accord Wellman v Department of Human Servs, 574 A2d 879, 885 (ME, 1990) ("In order for there to be a taking . . . there must be a physical invasion of private property or a substantial impairment of its use and enjoyment. The concept of a taking does not apply to an overpayment of money to the state by a citizen, ... or a fine under a statute later declared to be unconstitutional.” [citations omitted]). [619 A2d 97-98.]
The Maine court recognized that its bottle law fell squarely within the police powers. It observed that the amendments intended to place cost burdens posed by disposable containers on the industry, rather than the public. The court opined that the Maine legislature intended that the cost of unreturned containers must be borne by the industry that profits from their sale. The court rejected the bottlers’ claim of a taking per se:
The challenged amendment does not authorize a physical invasion or confiscation of the industry’s property but merely regulates its sale of beverage containers by making it financially accountable for those containers not returned. See Yee v City of Escondido, 503 US —, —; 112 S Ct 1522, 1529; 118 L Ed 2d 153, 166 (1992) (The existence of a wealth transfer does not "convert regulation into physical invasion.”); Prudential Ins Co of Am v Insurance Comm’r, 293 A2d 529, 537 (Me, 1972). [619 A2d 99].
The regulatory action involved here is not a permanent physical occupation of property that amounts to a taking per se. Loretto v Teleprompter Manhattan CATV Corp, 458 US 419; 102 S Ct 3164; 73 L Ed 2d 868 (1982); Electro-Tech, Inc v Campbell Co, 433 Mich 57, 69, n 13; 445 NW2d 61 (1989). Accordingly, a less stringent takings analy sis is appropriate. In evaluating whether governmental regulation of property constitutes a taking, we make an ad hoc factual inquiry into the circumstances of each case. Connolly v Pension Benefit Guaranty Corp, 475 US 211, 224-225; 106 S Ct 1018; 89 L Ed 2d 166 (1986):
To aid in this determination, however, we have identified three factors which have "particular significance”: (1) "the economic impact of the regulation on the claimant”; (2) "the extent to which the regulation had interfered with distinct investment-backed expectations”; and (3) "the character of the governmental action.” Penn Central Transportation Co, 438 US 104, 124; 98 S Ct 2646; 57 L Ed 2d 631 (1978).
Applying the Penn Central factors, the economic impact of the regulatory taking on plaintiff is nonexistent. The economic impact on plaintiff’s members is unknown on this record. Plaintiff has not attempted to identify a legitimate, investment-backed expectation in future profits from unclaimed deposits. Finally, the character of the governmental action is not a permanent, physical occupation of property by the government. The amended act is prospective; plaintiff has not identified a concrete taking of any particular deposit. Because the prospective amendments are rationally related to the general welfare, an alteration of plaintiff’s expectations is appropriate. Blue Cross & Blue Shield of Michigan v Baerwaldt, 593 F Supp 39, 42 (WD Mich, 1984). A state may exact costs from private business as a reasonable use of police powers. We conclude that the amendments satisfy the Penn Central test, and plaintiff has failed to satisfy its burden of proving the invalidity of the amendments under the takings clauses.
We need not decide defendants’ remaining issues because our disposition renders those issues moot.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
MCL 445.571(g); MSA 18.1206(ll)(g) defines a dealer as anyone who sells beverages in beverage containers to consumers. Subsection b of that section defines a beverage container as an airtight metal, glass, paper, or plastic container, or a container composed of a combination of these materials, which, at the time of sale, contains one gallon or less of a beverage.
The amount of unredeemed deposits is unknown on this record. Plaintiff did not disclose the actual amount. A recent study estimates that the annual income from unclaimed deposits is between $26 million and $121 million a year. Webster & Pratt, Unclaimed Beverage Container Deposits: An Update, Michigan Commentary (Public Sector Consultants, Inc, June 29, 1988).
In discovery, plaintiff responded that a question framed on this subject was vague, ambiguous, and irrelevant. It claimed it did not understand the question. | [
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] |
Per Curiam.
Plaintiff appeals as of right the order of the circuit court granting defendant Citizens Insurance Company of America’s motion for summary disposition. We affirm.
i
Plaintiff is an independent insurance agency owned and operated in part by Jack L. Eastway. Its office is located in the village of Marion. In May 1988, plaintiff opened a branch office in Lake City, which office Eastway’s son helped operate until March 1990, when he bought the office from his father.
Before and during this period, plaintiff served as an agent for defendant Citizens Insurance Company of America (hereinafter defendant). Plaintiff permitted at least one of defendant’s policyholders to make payments and ask questions at the Lake City branch office. Both parties agree that activities with respect to defendant’s policies took place at plaintiff’s Lake City office.
In 1986, before opening the Lake City office, plaintiff and all other agents of defendant were required to sign an addendum to their agency agreements, restricting them from selling or servicing defendant’s products in branch offices with out defendant’s express consent. On May 5, 1988, when plaintiff was contemplating opening a branch office in Lake City, defendant sent plaintiff a letter, reiterating the restriction on using and advertising defendant’s products in a Lake City branch office. Defendant cited as a reason the fact that it already had adequate representation in the Lake City area.
On January 1, 1989, plaintiff and defendant executed a new agency agreement with the following provisions:
YOUR DUTIES AND RESPONSIBILITIES
D. You will not sell or service our products through a branch(s) or affiliated agency(s) location without our prior written consent.
TERMINATION
B. We may terminate this agreement immediately in whole or in part upon written notice to you:
5. If you fail to comply with any of the provisions of this agreement.
On July 13, 1989, defendant terminated the agency agreement, citing plaintiff’s breach of the restriction on branch offices.
n
Plaintiff argues that a question of material fact exists concerning whether defendant terminated its agency agreement with plaintiff in good faith. We disagree.
The circuit court granted defendant’s motion for summary disposition pursuant to MCR 2.116(C) (10). Under that provision, summary disposition is appropriate where there is no genuine issue of material fact. This Court examines the whole record to determine whether summary disposition is justified. Borman v State Farm Fire & Casualty Ins Co, 198 Mich App 675, 678; 499 NW2d 419 (1993). However, it does not weigh credibility or make findings of facts, Arbelius v Poletti, 188 Mich App 14, 18; 469 NW2d 436 (1991), and it gives the nonmoving party the benefit of every reasonable doubt. Farm Bureau Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991).
By servicing defendant’s policyholders in its Lake City office, plaintiff breached the agency agreement. Plaintiff does not dispute the evidence in support of this. The terms of the agreement permitted defendant to terminate the contract if plaintiff breached any of its provisions. Thus, the termination was contractually justified.
Plaintiff argues nonetheless that defendant used the breach as a pretext for terminating the agreement. Plaintiff contends that defendant was actually motivated by its concern for plaintiff’s loss ratio, its high percentage of automobile premiums in relation to commercial premiums, and the interests of defendant’s designated representative in Lake City, who allegedly shared a mutual animosity with plaintiff. According to plaintiff, even where defendant was contractually justified in terminating the agency relationship, its decision to do so was discretionary and, thus, required good faith.
Plaintiff’s position lacks legal support. In contract termination cases, good faith is required only where the terminating party has unbridled discretion with respect to the other party’s performance under the contract. See J R Watkins Co v Rich, 254 Mich 82, 85; 235 NW 845 (1931); Burkhardt v City Nat’l Bank, 57 Mich App 649, 652; 226 NW2d 678 (1975); Maida v Retirement & Health Services Corp, 795 F Supp 210, 214 (ED Mich, 1992). A lack of good faith cannot override an express provision in a contract. General Aviation, Inc v Cessna Aircraft Co, 915 F2d 1038, 1041 (CA 6, 1990). Under the terms of the agency agreement in this case, defendant could only exercise its discretion if plaintiff breached the agreement. Where, as here, a party’s discretion to terminate is limited, good faith need only have existed at the time the original agreement was made. Id. at 1042; Cloverdale Equipment Co v Simon Aerials, Inc, 869 F2d 934, 938 (CA 6, 1989). After reviewing the record, we find no evidence that defendant entered into the agency agreement, including the provisions regarding branch offices, in bad faith.
in
Plaintiff next argues that the term "service” in the agency agreement is ambiguous and that its meaning should be determined by a jury. We note that plaintiff failed to raise this issue before the circuit court. As a general rule, this Court declines to consider an issue raised for the first time on appeal. American Nat’l Fire Ins Co v Frankenmuth Mutual Ins Co, 199 Mich App 202, 210; 501 NW2d 237 (1993); Berry v J & D Auto Dismantles, Inc, 195 Mich App 476, 480; 491 NW2d 585 (1992). We see no reason to deviate from the general rule in this case.
Affirmed. | [
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] |
R. D. Gotham, J.
Defendants Henry Roodbeen, Clara Seeley, and St. Pius School appeal by leave granted from the circuit order that denied their motion for summary disposition, which had asserted that the court lacked subject-matter jurisdiction over the action. We reverse and order the dismissal of plaintiffs’ claims against defendants.
This is an action by three families against various representatives of the St. Pius School and the school itself. Plaintiffs brought their action to challenge the decision of Father Henry Roodbeen, pastor of the Parish of St. Pius X, not to accept plaintiffs’ children as students at the parish school for the 1991-92 school year. At the time the circuit court denied defendants’ motion, three counts remained in the action, which were labeled intentional misrepresentation, negligence, and breach of contract.
Defendants’ sole claim on appeal is that the circuit court lacked subject-matter jurisdiction. Whether the trial court had proper subject-matter jurisdiction is a question of law for this Court to decide. Dep’t of Natural Resources v Holloway Construction Co, 191 Mich App 704, 705; 478 NW2d 677 (1991). The trial court ultimately held that it had subject-matter jurisdiction on the basis that this was a contract action.
It is claimed that plaintiffs’ admission to the St. Pius School is a contract right, that contract rights are property rights, and that civil courts have jurisdiction to determine property rights involving ecclesiastical organizations. But jurisdiction is limited to property rights that can be resolved by application of civil law. Berry v Bruce, 317 Mich 490; 27 NW2d 67 (1947); Maciejewski v Breitenbeck, 162 Mich App 410, 414; 413 NW2d 65 (1987).
Reference to the form of the claim may oversimplify the issue. We must "look to the substance and effect of [the] complaint, not its emblemata.” Natal v Christian & Missionary Alliance, 878 F2d 1575, 1577 (CA 1, 1989).
When the claim involves the provision of the very services (or as here refusal to provide these services) for which the organization enjoys First Amendment protection, then any claimed contract for such services likely involves its ecclesiastical policies, outside the purview of civil law. In this regard there can be no distinction between a church providing a liturgical service in its sanctuary and providing education imbued with its religious doctrine in its parochial school. A civil court should avoid foray into a "property dispute” regarding admission to a church’s religious or educational activities, the essence of its constitutionally protected function. Borgman v Bultema, 213 Mich 684, 703; 182 NW 91 (1921) (expulsion of clergy or members). To do so is to set foot on the proverbial slippery slope toward entanglement in matters of doctrine or ecclesiastical polity.
In obvious contrast, when an ecclesiastical orga nization enters into a contract to buy or sell property, to fix the church roof, or to interact in some other way with the secular world, its activity is governed by civil law alone. Similarly, a dispute over title to property between factions of such an organization may well be determined without reference to doctrine or ecclesiastical polity. Bennison v Sharp, 121 Mich App 705; 329 NW2d 466 (1982).
Here the pleadings demonstrate that plaintiffs’ claims are so entangled in questions of religious doctrine or ecclesiastical polity that the civil courts lack jurisdiction to hear them. Maciejewski, supra. Even the claim that plaintiffs’ children were denied "due process” by the failure of the parochial school to follow its own rules engages the issue of ecclesiastical polity. Natal, supra at 1577.
Moreover in this case plaintiffs allege no express written contract manifesting application of civil law alone. Under their theory of implied contract, an inquiry into the parties’ relationship again necessarily entails an excursion into ecclesiastical polity. The same is true for the claims of intentional misrepresentation and professional negligence. Furthermore, we are aware of no precedent in this state for a claim of clergy malpractice where the only allegations relate to the performance of ecclesiastical functions such as the operation of a church school.
We reverse and dismiss plaintiffs’ claims against defendants for lack of jurisdiction. MCR 2.116(C) (4).
Shepherd, P.J., concurred. | [
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Jansen, P.J.
This case arises out of a dispute in the interpretation of the consecutive sentencing statutes as they apply to parolees. In No. 157780, defendant Gregory Young appeals as of right following a resentencing at which he was sentenced to 42 to 120 months’ imprisonment for a conviction of breaking and entering an unoccupied dwelling. His sentence is to be served consecutively to his sentence for a prior armed robbery conviction. In Nos. 161307 and 161438, intervenor, Gregory Young, and defendant, Department of Corrections, appeal as of right from the January 6, 1993, order of the Wayne Circuit Court granting summary disposition for the plaintiff, the Wayne County Prosecutor. Wayne Circuit Court Judge Susan Bieke Neilson ruled that the applicable consecutive sentencing statutory provision required that parole violators’ sentences must begin to run at the end of the maximum sentence of the prior conviction. We affirm, but remand in No. 157780.
On January 31, 1983, Gregory Young was con victed of armed robbery. He was sentenced to a prison term of six to fifteen years on July 14, 1983. Young was paroled on September 15,' 1989. His parole status was set for a term of two years, with an expiration date of September 15, 1991. On April 25, 1991, Young was convicted of assault and battery and sentenced to a term of probation. On September 9, 1991, Young committed a breaking and entering offense while he was still on parole. Young was held in the Wayne County Jail, and his parole officer was aware of this fact. Inexplicably, the Department of Corrections discharged Young from his parole on September 15, 1991, despite the fact that it knew that Young had violated his parole and was being held in the Wayne County Jail on a new offense. Young also violated his probation, and a warrant was issued for his arrest on March 12, 1992.
On May 26, 1992, Young was convicted of breaking and entering an unoccupied dwelling following a bench trial in the Detroit Recorder’s Court. The Recorder’s Court sentenced defendant to a prison term of 42 to 120 months on June 10, 1992, and expressed its bewilderment at the fact that the Department of Corrections had discharged Young’s parole despite the fact that it knew that Young had committed a felony offense while still on parole.
The Wayne County Prosecutor then sought an order to show cause why the consecutive sentencing statute should not be enforced. On August 7, 1992, a hearing was held. At the hearing, the Department of Corrections admitted that Young had been "mistakenly discharged” from his parole, although no other explanation was given. The Recorder’s Court set aside the discharge of parole and resentenced defendant to a consecutive sentence, which, while the same length as before, was to be served consecutively to the sentence for the prior armed robbery conviction for which he had been on parole.
Because there was a dispute between the Department of Corrections and the prosecutor’s office concerning when the second sentence would begin to run, the Wayne County Prosecutor requested that the Department of Corrections state how it interpreted and applied MCL 768.7a(2); MSA 28.1030(1)(2). The Department of Corrections did not respond. The prosecutor then filed a declaratory judgment action in the Wayne Circuit Court concerning the parolee consecutive sentencing statute. The court granted summary disposition to the prosecutor, ruling that the statute required that a reoffending parolee serve the entire maximum sentence of the prior offense before serving the new minimum sentence and only after the maximum sentence for the prior conviction and the minimum sentence for the subsequent conviction were served could the reoffending parolee be eligible for parole.
After the opinion and order was filed, Young sought to intervene, and the request was permitted. Young and the Department of Corrections moved for a rehearing, relief from judgment, or for summary disposition, which were denied.
DOCKET NO. 157780
In this appeal, defendant Young argues that the Recorder’s Court was without authority to set aside his discharge from parole and resentence him to consecutive sentences.
The Department of Corrections is part of the executive branch. Const 1963, art 5, § 2. The power to parole is vested in the Department of Corrections, subject to constitutional powers vested in the judiciary. MCL 791.204; MSA 28.2274; People v Raihala, 199 Mich App 577, 579; 502 NW2d 755 (1993). Parole is merely a conditional release, and a paroled prisoner is still in the custody of the Department of Corrections. Id. Whether a prisoner is in prison or on parole, the Department of Corrections is merely executing the sentence imposed by the trial court. Id.
As this Court has noted, unless and until parole is successfully completed, the prisoner is deemed to be serving out the sentence imposed by the trial court. Id., pp 579-580; MCL 791.238(6); MSA 28.2308(6). In the case before us, there is no dispute that Young did not complete successfully his parole, because he committed a felony offense while he was still on parole. The Department of Corrections has admitted that Young mistakenly was discharged from parole. Because Young did not faithfully perform all the conditions and obligations of his parole for the period fixed in the order (here two years), the Department of Corrections’ discharge of Young’s parole was in violation of MCL 791.242; MSA 28.2312.
Here, Young did not complete successfully his parole, and, therefore, he was still serving out his sentence. Young was discharged improperly from parole in violation of a statute. Therefore, the effect of setting the discharge aside was to require Young to complete the sentence for the armed robbery conviction from which he had been discharged improperly. No new sentence was imposed. The trial court thus had jurisdiction over defendant despite the apparent "discharge” from his parole. Michigan ex rel Oakland Co Prosecutor v Dep’t of Corrections, 199 Mich App 681, 694; 503 NW2d 465 (1993).
Contrary to defendant’s argument, People v Gregorczyk, 178 Mich App 1; 443 NW2d 816 (1989), does not compel a different result. In Gregorczyk, the defendant was sentenced originally to an invalid sentence of five to twenty years for a controlled substances violation. During the appeals process, the Department of Corrections discharged the defendant from parole, despite the fact that the defendant had not served even the minimum of his five-year sentence. Thus, not only was the defendant’s sentence invalid, but also the Department of Corrections discharged the defendant from parole in violation of the applicable controlled substances statute. However, this Court held that the parole discharge operated as a remission of the remaining portion of the defendant’s sentence even though the Department of Corrections’ actions were illegal. This Court determined that the defendant could not be compelled on resentencing to serve an additional sentence. Id., p 12.
In People v Lamb (After Remand), 201 Mich App 178, 180; 506 NW2d 7 (1993), this Court limited Gregorczyk to its facts. In Lamb, the defendant was sentenced originally to an invalid sentence of probation, and, just one day before the release of this Court’s opinion vacating that invalid sentence, the Department of Corrections discharged the defendant from his probation. The defendant then was resentenced to a term of imprisonment. This Court held that the trial court properly resentenced the defendant despite his discharge from probation, because MCR 6.429(A) permits a court to correct an invalid sentence. Lamb, supra, p 181.
Further, in People v Hill (After Remand), 202 Mich App 520; 509 NW2d 856 (1993), this Court followed Lamb and held that resentencing was not precluded where the defendant was sentenced originally to an invalid sentence and the defendant then was discharged unconditionally from his sen tence just twelve days before this Court’s opinion remanding the matter to the trial court for resentencing. This Court specifically noted that the case did not involve an executive commutation of the defendant’s original sentence and that the defendant was entitled to credit for time served. Id., p 524.
Likewise, we believe that the Gregorczyk case should be limited strictly to its unique facts, and we decline to extend its holding to this case. We find Gregorczyk to be sufficiently factually distinguishable from the case at bar. In Gregorczyk, supra, p 10, this Court assumed that the Department of Corrections was satisfied that the defendant was an appropriate candidate for discharge from parole, and there was no claim of fraud, misrepresentation, or other irregularities. Here, the Department of Corrections admits that Young was discharged mistakenly from parole and that there is no question that the discharge was illegal. Defendant Young may not rely on a separation of powers argument to evade judicial review where the Department of Corrections’ actions are so clearly illegal.
Because the parole discharge was in violation of a statute, and therefore illegal, the trial court properly could set aside that parole discharge. It was then within the trial court’s authority to resentence Young to a valid consecutive sentence. MCR 6.429(A). The prior sentence was invalid because Young was not sentenced to consecutive sentences as mandated by MCL 768.7a(2); MSA 28.1030(1)(2). Because no new sentence was imposed, Young is required only to complete the sentence from which he was discharged improperly and to serve the consecutive sentence for the subsequent breaking and entering conviction, and, therefore, there is no double jeopardy concern. The trial court had jurisdiction to resentence Young. Oakland Co Prosecutor, supra, p 694.
In the interests of due process, however, we remand for a parole violation hearing that comports with the requirements of MCL 791.239a; MSA 28.2309(1) and MCL 791.240a; MSA 28.2310(1), because this was not done at the resentencing hearing.
DOCKET NOS. 161307 AND 161438
At issue in these appeals is the interpretation of the consecutive sentencing statute for reoffending parolees. MCL 768.7a(2); MSA 28.1030(1)(2).
Defendant Young initially argues that the Wayne County Prosecutor does not have standing to bring this action for a declaratory judgment. This argument was recently rejected by this Court in Oakland Co Prosecutor, supra, pp 693-694. We agree that the prosecutor had standing to file this action on behalf of the people of the State of Michigan pursuant to MCL 49.153; MSA 5.751. Thus, MCL 49.72; MSA 5.825 does not prevent the prosecutor from seeking a declaratory judgment even though the Wayne County Board of Commissioners did not authorize such action. Oakland Co Prosecutor, supra, p 693.
We likewise reject defendant Young’s argument that the Wayne Circuit Court’s ruling concerning the consecutive sentence provision for reoffending parolees should not apply to him because the Recorder’s Court did not have the authority to review the Department of Correction’s decision to discharge him. We have already rejected defendant Young’s claim that the Recorder’s Court did not have the authority to set aside the illegal parole discharge; therefore, the Wayne Circuit Court’s interpretation of the consecutive sentenc ing provision applies to him. Defendant Young cannot rely on that prior illegal parole discharge to escape the subsequent interpretation of MCL 768.7a(2); MSA 28.1030(1)(2).
Next, we must determine if the Wayne Circuit Court erred in interpreting the reoffending parolee statute concerning consecutive sentences. MCL 768.7a(2); MSA 28.1030(1)(2). Statutory interpretation is a question of law. Smeets v Genesee Co Clerk, 193 Mich App 628, 633; 484 NW2d 770 (1992). Questions of law are reviewed de novo on appeal. Rapistan Corp v Michaels, 203 Mich App 301, 306; 511 NW2d 918 (1994).
MCL 768.7a(2); MSA 28.1030(1X2) provides:
If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.
We must construe this provision in conjunction with MCL 791.238(5); MSA 28.2308(5), which provides:
A prisoner committing a crime while at large on parole and being convicted and sentenced for the crime shall be treated as to the last incurred term as provided under section 34 [MCL 791.234; MSA 28.2304],
MCL 791.234(2); MSA 28.2304(2) provides:
If a prisoner is sentenced for consecutive terms, whether received at the same time or at any time during the life of the original sentence, the parole board shall have jurisdiction over the prisoner for purposes of parole when the prisoner has served the total time of the added minimum terms, less the good time and disciplinary credit allowed by statute. The maximum terms of the sentences shall be added to compute the new maximum term under this subsection, and discharge shall be issued only after the total of the maximum sentences has been served less good time and disciplinary credits, unless the prisoner is paroled and discharged upon satisfactory completion of the parole.
The Department of Corrections maintains that parolees who commit an offense while on parole are subject to consecutive sentences, but that the subsequent sentence begins to run at the end of the minimum term of the prior offense. Thus, under the Department of Corrections’ interpretation of MCL 768.7a(2); MSA 28.1030(1)(2), Young’s subsequent sentence for the conviction of breaking and entering begins to run at the expiration of the minimum term for the armed robbery conviction (here, the six-year minimum term). Because Young already had served the minimum sentence for the armed robbery conviction before he had been placed on parole status, Young’s breaking and entering sentence would begin to run immediately, because he has already served his minimum term for the prior offense.
The prosecutor’s position is that MCL 768.7a(2); MSA 28.1030(1)(2) requires that when a parolee commits an offense while on parole, the subsequent sentence must begin to run at the expiration of the maximum term of the prior offense. Thus, in Young’s case, his breaking and entering sentence would not begin to run until Young had served his fifteen-year maximum sentence for the prior armed robbery conviction. The Wayne Circuit Court agreed with the prosecutor’s position.
A fundamental rule of statutory construction is to ascertain the purpose and intent of the Legislature in enacting a provision. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). Where the language of a statute is clear, there is no need for judicial interpretation, and it must be applied as written. Id., p 208. In this case, however, we are faced with two apparently conflicting statutory provisions, MCL 768.7a(2); MSA 28.1030(1)(2) and MCL 791.234(2); MSA 28.2304(2). When two statutes address the same subject, courts must endeavor to read them harmoniously and to give both statutes a reasonable effect. House Speaker v State Administrative Bd, 441 Mich 547, 568; 495 NW2d 539 (1993).
In People v Watts, 186 Mich App 686; 464 NW2d 715 (1991), this Court, in dicta, noted the conflict between MCL 768.7a(2); MSA 28.1030(1)(2) and MCL 791.234(2); MSA 28.2304(2). This Court noted that while the Department of Corrections’ procedure in adding the minimums and the máximums appeared to be "reasonable,” it did not strictly comply with the statutes. Watts, supra, pp 690-691. While a court will accord deference to the construction placed upon statutory provisions by a particular department of the government for a long period, the agency’s interpretation is not binding on a court and cannot be used to overcome the statute’s plain meaning. Ludington Service Corp v Acting Comm’r of Ins, 444 Mich 481, 490, 503-504; 511 NW2d 661 (1994).
We find that the interpretation of the Department of Corrections is contrary to a plain reading of MCL 768.7a(2); MSA 28.1030(1)(2) and contrary to the legislative intent. The legislative history of the statute evidenced in House Legislative Analysis, SB 397, February 17, 1988, in advancing the arguments for the bill, indicates that the bill would ensure that a prisoner finishing a sentence on parole would be subject to the same sort of consecutive sentencing that existed for crimes committed while in prison or escape. Further, the bill would punish the behavior of committing a crime while on parole and ensure that such prisoners are incarcerated for a greater period, thereby protecting the public for a greater period than concurrent sentencing would. The bill was also advanced as possibly having a deterrent effect on criminals contemplating further crime while on parole. Fiscal implications were considered, but only an "indeterminate increase” was considered to result from passage of the statute. Moreover, this Court has acknowledged that the purpose of the consecutive sentencing statute is to deter persons convicted of one crime from committing other crimes by removing the security of concurrent sentencing. The statute should be construed liberally to achieve the deterrent effect intended by the Legislature. People v Dukes, 198 Mich App 569, 570; 499 NW2d 389 (1993).
The statute reads in part that "the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.” MCL 768.7a(2); MSA 28.1030(1)(2). Were we to accept the interpretation of the Department of Corrections, we would essentially nullify the provision itself and the Legislature’s intent. In reoffending parolee cases, the Department of Corrections adds the minimum of the prior sentence and the minimum of the subsequent sentence to determine the "new” minimum sentence. Once the new minimum sentence is served, the defendant is again eligible for parole. However, because the defendant would have already served the minimum term of the prior sentence, adding the minimum terms serves to negate any penalty for violating parole because only the term of the later minimum sentence is actually served. This interpretation is clearly contrary to the mandate of the statute that the later sentence shall begin to run at the expiration of the remaining portion of the term imposed for the previous offense and eliminates any meaning to the term "remaining portion” of the term imposed for the previous offense. See People v Brown, 186 Mich App 350, 359; 463 NW2d 491 (1990); People v Johnson, 205 Mich App 144; 517 NW2d 273 (1994). This interpretation is also contrary to the Legislature’s intent that a consecutive sentence be served by parole violators, that parole violators be incarcerated for a greater period, and that there be a deterrent effect on prisoners contemplating further crime while on parole. See House Legislative Analysis, SB 397, February 17, 1988.
We therefore conclude that the Legislature impliedly repealed MCL 791.238(5); MSA 28.2308(5), which became effective in 1982, when it implemented MCL 768.7a(2); MSA 28.1030(1X2), which became effective in 1988. From the language of the subsequent provision and the legislative history, it is clear that the subsequent legislative act conflicts with the prior act and repeal by implication may be inferred by this Court. House Speaker, supra, p 563.
The Department of Corrections has essentially advanced a number of policy arguments concerning why we should uphold its interpretation of MCL 768.7a(2); MSA 28.1030(1)(2). While it may be that prison overcrowding, monetary expenditures, and no real deterrent effect later prove that the statute is essentially ineffective, these are policy issues for our Legislature. The policy arguments advanced by the Department of Corrections may better serve the taxpayers in the long run, but it is not for this Court to nullify a statute over a disagreement of policy considerations.
Accordingly, we hold that the reoffending parolee statute, MCL 768.7a(2); MSA 28.1030(1)(2), impliedly repealed MCL 791.238(5); MSA 28.2308(5), because the subsequent statute clearly conflicts with the prior provision. Under a clear reading of the statute and in accordance with the Legislature’s intent, the subsequent sentence of a parolee who commits an offense while still on parole must begin to run at the end of the maximum sentence for the prior offense. MCL 768.7a(2); MSA 28.1030(1)(2). Therefore, a reoffending parolee is not eligible for parole again until the remainder of the maximum sentence for the prior offense and the minimum sentence for the subsequent offense have been served.
Because this ruling represents a departure from the consistent prior interpretation and application of the Department of Corrections of MCL 768.7a(2); MSA 28.1030(1)(2) to parole violators, it is to be given prospective application only. Cf. People v Russo, 439 Mich 584, 594; 487 NW2d 698 (1992).
Accordingly, we affirm in No. 157780, but remand to the Recorder’s Court for a parole violation hearing. We affirm the judgment of the Wayne Circuit Court in Nos. 161307 and 161438.
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] |
Per Curiam.
This is an interlocutory appeal. Defendant appeals by leave granted a Recorder’s Court order denying his motion to suppress blood test results. We reverse.
On March 13, 1993, defendant was involved in an automobile accident that resulted in a fatality. Defendant and his passenger were injured and taken to the hospital. While at the hospital, a blood sample was drawn from defendant pursuant to a search warrant. The affidavit on which the warrant was based stated in pertinent part:
On 3-13-93 on or about 11:40 p.m. (2340 hrs) Robert Leonard Sloan operating a vehicle in the City of Southgate in area of Pennsylvania & Walter. Collision occurred & appears Robert Leonard Sloan under influence of intoxicating liquor, transported to Wyandotte Hospital & Medical Center. Request blood sample be taken. Robert Leonard Sloan involved in accident causing death.
Defendant was subsequently arrested and bound over on charges of manslaughter with a motor vehicle, MCL 750.321; MSA 28.553, operating a motor vehicle while under the influence of intoxicating liquor causing a death, MCL 257.625(4); MSA 9.2325(4), and felonious driving, MCL 752.191; MSA 28.661. In the trial court, defendant moved to suppress the results of the blood test, arguing that the affidavit was insufficient because it did not allege facts on which probable cause could be based. The trial court allowed the parties to take the testimony of the magistrate who issued the warrant to determine what facts the magistrate had relied upon in issuing the warrant. The magistrate testified that he had questioned the officer about defendant’s condition. The trial court noted that the procedure used in this case, where the warrant was issued after the magistrate read the affidavit and questioned the officer, under oath, followed by the trial court’s taking testimony of the magistrate, was not ideal. However, the trial court denied defendant’s motion to suppress the blood test results.
A search warrant may not be issued unless justified by probable cause. People v Cooper, 166 Mich App 638, 652; 421 NW2d 177 (1987). Probable cause must be based on facts presented to the magistrate by oath or affirmation. People v Mitchell, 428 Mich 364, 367; 408 NW2d 798 (1987). The affidavit must contain facts within the knowledge of the affiant rather than mere conclusions or beliefs, .and must state facts that justify inferences. People v Rosborough, 387 Mich 183, 199; 195 NW2d 255 (1972); Cooper, supra at 652. On appeal from a finding of probable cause, the reviewing court must look at the affidavit and determine whether the information contained in the documents could have caused a reasonably cautious person to conclude that there was a substantial basis for the determination that probable cause existed to conclude that the evidence sought might be found in a specific location. People v Russo, 439 Mich 584, 603-604; 487 NW2d 698 (1992). The search warrant and the underlying affidavit are to be read in a common-sense and realistic manner, and the reviewing court should give deference to the magistrate’s decision. Id.
In this case, the affidavit contained no facts on which the conclusion, that defendant was under the influence of intoxicating liquor, was based. The affiant is not free to "draw his own inferences. He must state matters which justify the drawing of them.” Rosborough, supra at 199. The affidavit itself would not allow a reviewing court to conclude that there was a substantial basis for the determination that probable cause existed. While the trial court was required to give deference to the magistrate’s decision, it was not justified in relying on the magistrate’s after-the-fact testimony regarding off-the-record statements in reaching the conclusion that the factual basis for the warrant was sufficient. People v White, 167 Mich App 461, 463; 423 NW2d 225 (1988); MCL 780.653; MSA 28.1259(3). Because the affidavit here was insufficient, the warrant was invalid and the blood test results should have been suppressed.
Reversed._
We need not decide here whether a reviewing court may consider information given under oath to the issuing magistrate if a verbatim record of the proceeding is made. | [
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Murphy, P.J.
Plaintiff appeals as of right from a judgment granting defendant Capitol Indemnity Corporation’s motion for summary disposition, which was brought pursuant to MCR 2.116(C)(7)(release) and (10), in this action involving a construction project and a performance bond. We affirm.
Plaintiff was the general contractor for a government Job Corps construction project, and defendant Ace Masonry was a subcontractor providing cement and masonry work on the project. The construction project required that Ace furnish a performance bond intended to protect plaintiff, and one was issued by Capitol. Subsequently, a dispute arose between plaintiff and Ace concerning the masonry work, and the project was not fully completed.
The complaint filed by plaintiff alleged breach of contract, fraud, and misrepresentation with respect to Ace. The complaint also included a claim against Capitol seeking recovery on the performance bond. Ace filed a counterclaim against plaintiff alleging breach of contract, and a third-party complaint against plaintiff’s surety United States Fidelity & Guaranty Company.
The trial court granted Capitol’s motion for directed verdict during a jury trial in regard to the performance bond claim. The trial court granted the directed verdict, finding a “failure of proof regarding compliance with conditions precedent, including failure to declare default.” Immediately after the trial court granted the directed verdict, plaintiff requested and obtained a brief recess to discuss a possible settlement with Ace. Following the recess, and on the record, plaintiff and Ace stipulated the release and dismissal of any claims the parties had against each other. The following colloquy took place regarding the settlement:
Plaintiff’s Counsel: [W]e have had an opportunity to [discuss] this matter amongst ourselves, in light of the [court] . .. granting Capitol Indemnity’s motion for directed verdict, the remaining parties in the case have discussed this matter and they’re willing to settle this case by mutual release of all claims against each other.
Judge: All right, Mr. Schaffer [counsel for Ace], do you wish to be heard on this?
Ace’s Counsel: I would just concur in that settlement— my client is here I just would ask that, on the record, he indicate that is his wish to do that. . . .
Ace’s representative proceeded to approve the settlement and release. The record does not reflect any statements by counsel for Capitol during discussion of the settlement. Further, the record does not indicate whether Capitol’s counsel remained in the courtroom after the directed verdict was granted and when the settlement and release were placed on the record. Subsequently, plaintiff pursued an appeal of the directed verdict to this Court.
This Court, in an unpublished per curiam opinion, reversed the trial court’s order granting the directed verdict, holding:
Viewing [the] evidence in a light most favorable to plaintiff, we conclude that a reasonable factfinder could find that defendant received notice that the subcontractor committed a material breach, that plaintiff regarded the subcontractor to have failed to meet its contractual duties, and that plaintiff was asking defendant to perform under the terms of the bond.
To the extent the trial court found plaintiffs notice to defendant untimely, we note that the only time frame provided in the performance bond is the two-year limitations period for filing a lawsuit. Where the time of performance is indefinite, performance may be required to be rendered within a reasonable time. The question regarding the reasonableness of plaintiff’s claim, which was filed less than three months after Ace walked off the job, should have been submitted to the jury. [Hall & Son, Inc v Capitol Indemnity Corp, unpublished opinion per curiam of the Court of Appeals, issued June 15, 2001 (Docket No. 222262) (citations omitted).]
On remand, Capitol filed a motion for summary disposition, arguing that, in light of plaintiff’s decision to dismiss the action against Ace, an action on the performance bond could no longer be maintained. Capitol claimed that the release of the principal, Ace, by plaintiff, the obligee, acted as a discharge of Capitol, the surety. On the basis of Capitol’s argument, the trial court granted the motion for summary disposition and dismissed the action. Plaintiff appealed.
Plaintiff argues on appeal that principles of res judicata require that a party raise in an initial appeal all issues that were then present and could have and should have been raised. Therefore, because Capitol did not raise in the previous appeal the issue that plaintiff stipulated the release and dismissal of Ace, thereby arguably denying this Court the opportunity to reject plaintiffs first appeal, Capitol effectively waived the issue on remand. We disagree.
Plaintiff relies on VanderWall v Midkiff, 186 Mich App 191; 463 NW2d 219 (1990). The VanderWall panel ruled:
[W]e conclude that the principles of res judicata require that a party bring in the initial appeal all issues which were then present and could have and should have been raised. That is, just as plaintiff was required in the initial appeal to present all arguments why the trial court had erred in granting judgment notwithstanding the verdict, defendants were also required to bring their challenges to the underlying judgment, whether it had been by way of argument in the appellee’s brief defending the trial court’s action or by way of cross appeal raising issues separate from the issue of the granting of judgment notwithstanding the verdict. [Id. at 201.]
Here, there is a distinction because Capitol was not able to validly argue in the first appeal that the trial court properly granted its motion for directed verdict on the alternative basis that Ace had been dismissed as a party. Considering the sequence of events, the settlement had not yet occurred when the trial court directed a verdict in Capitol’s favor, and was thus not part of an argument made by Capitol in support of the motion for directed verdict. Whether as part of an argument in Capitol’s appellee brief or in a cross-appeal, there was no “ruling” on which the argument could be predicated with respect to the effect of the settlement and release on the performance bond claim. We acknowledge that Capitol technically had the ability to argue anything it pleased in the first appeal and could have argued that, in light of the settlement and release, no action on the bond could be maintained. However, it is likely that this Court, if faced with such an argument, would have declined to address the issue because there had been no ruling by the trial court on the subject and no arguments by the parties to the trial court on the issue. Moreover, considering that the trial court had already granted a directed verdict, it would not have entertained, in all likelihood, additional arguments as to why plaintiff’s action on the bond should be rejected; the settlement was premised on the directed verdict. We conclude that Capitol was not required to raise the issue in the first appeal.
Plaintiff next argues that although the general rule in Michigan is that the discharge of the principal serves as a discharge of the surety, there is an exception where the surety consents to the release of the principal. Plaintiff further argues that there were genuine issues of material fact concerning whether Capitol consented to the release of Ace, where the parties placed the settlement on the record with Capitol’s counsel present.
A suretyship contract requires three parties; a principal, an obligee, and a surety. In re Forfeiture of $8,141 of United States Currency, 172 Mich App 790, 792; 432 NW2d 442 (1988). A surety is one who under takes to pay money or take any other action if the principal fails therein. Id. “The liability of a surety is limited by the scope of the liability of its principal and the precise terms of the surety agreement.” Bd of Governors of Wayne State Univ v Building Systems Housing Corp, 62 Mich App 77, 85; 233 NW2d 195 (1975) (citation omitted). In general, a surety may plead any defense available to the principal, and the liability of the surety is coextensive with the liability of the principal in the bond and can be extended no further. In re MacDonald Estate, 341 Mich 382, 387; 67 NW2d 227 (1954).
Plaintiff relies on Westveer v Landwehr, 276 Mich 326; 267 NW 849 (1936), for its proposition that there is an exception to the general rule of discharge where the surety consents to the release of the principal. In Westveer, a bank loaned money to a country club on multiple occasions, and the club’s directors acted as sureties to guarantee payments on the loan through the execution of two bonds; the bonds being continuing guarantees. Id. at 327-329. One of the sureties who executed the bonds died and additional promissory notes were issued after his death. Id. at 328. Our Supreme Court held that in regards to the renewal notes, issued by the bank after the surety’s death and after notice of his death, the deceased’s estate was discharged from any liability based on the bond or guaranty. Id. at 329. The Court also held, however, that the release of the deceased surety’s estate did not discharge the surviving sureties on the renewal notes, where those sureties did not exercise the option to be released from further liability at the time of the deceased surety’s death and thus acquiesced in remaining on the guaranty thereafter. Id. at 329-330.
Westveer did not involve the release of a principal by the obligee as occurred in the case at bar. Westveer only dealt with a situation where sureties had the opportunity to be discharged on a debt pursuant to an agreement but failed to exercise the steps necessary to be discharged and acquiesced in continuing liability. Here, Capitol was not required by any agreement to take affirmative steps to be discharged; therefore, it cannot be said that Capitol acquiesced in being held liable on the performance bond. Westveer does not stand for the proposition, as argued by plaintiff, that surety liability is continuing where the surety consents to the release of the principal. Even in the context of the facts in Westveer, whether the surviving sureties consented to the release of the deceased surety was not an issue and did not play into the Supreme Court’s analysis and holding.
Plaintiff also relies on Greenlee v Lowing, 35 Mich 63 (1876). In Greenlee, the plaintiff brought an action to recover on a replevin bond. A judgment in replevin had been previously entered against the principal obligor by the plaintiff; however, the plaintiff and the principal had a private arrangement whereby the principal was released for consideration with the plaintiff being left at liberty to recover what he could from the sureties. Our Supreme Court stated:
If an agreement was made releasing Mrs. Ridell [principal obligor] from liability in the judgment rendered against her in the replevin suit, the effect thereof undoubtedly would be to discharge the sureties unless they consented to the agreement, which is not claimed. [Id. at 66.]
The above quote was part of the Court’s discussion concerning the propriety of a jury charge, not a substantive discussion on suretyship. Regardless, the case does not support plaintiff’s position because the release agreement there allowed the plaintiff to pursue sureties. Therefore, when the Court discussed the matter of the sureties’ consent to the agreement, which was not claimed, the consent would necessarily relate to not only the release but also to the sureties continuing potential liability. Here, the record in regards to the settlement and release reveals no agreement by plaintiff and Ace that plaintiff could continue to pursue Capitol. Moreover, the record does not indicate that Capitol consented to the release and its own continuing liability.
Michigan case law is minimal concerning sureties, and there are no cases, of which we are aware, that directly, substantively, and fully address the effect on a surety’s liability following the obligee’s release of any and all claims against the principal. However, we find guidance in Restatement Suretyship and Guaranty, 3d, § 39 (Release of Underlying Obligation), which provides in relevant part:
To the extent that the obligee releases the principal obli-gor from its duties pursuant to the underlying obligation:
(b) the secondary obligor (surety) is discharged from any unperformed duties pursuant to the secondary obligation unless:
(i) the terms of the release effect a preservation of the secondary obligor’s recourse . . or
(ii) the language or circumstances of the release otherwise show the obligee’s intent to retain its claim against the secondary obligor[.]
See also Axess Int’l, Ltd v Intercargo Ins Co, 183 F3d 935, 939 (CA 9, 1999); Amtote Int’l, Inc v Pngi Charles Town Gaming Ltd Liability Co, 66 F Supp 2d 782, 793-794 (ND W Va, 1999).
In Axess Int’l, supra at 939-940, a case involving a $50,000 surety bond covering damages arising from transportation-related activities, the United States Ninth Circuit Court of Appeals held that, pursuant to § 39(b) of Restatement Suretyship and Guaranty, 3d, the surety was not discharged from liability where a clause in the release specifically reserved the obli-gee’s right to claim or take any proceedings against any other party, which clearly reflected an intent to release only the principal. The federal court cited comment d to § 39 of the Restatement in support of the position that the surety is not discharged when the release is intended to only discharge the principal obligor, and this intent can be manifested by a provision in the release. Axess Int’l, supra at 939. The Axess Int’l court cited several state and federal decisions that were consistent with its position and the Restatements. Id. at 938-939.
Here, there is no evidence indicating that Capitol consented to remain liable notwithstanding the release, no language or circumstances indicating that plaintiff reserved the right to pursue Capitol, and no release terms effecting a preservation of Capitol’s recourse against Ace. Because the release was broad, open-ended, and all-encompassing, it cannot be said that plaintiff intended to retain a claim against Capitol. We note illustration 4 to Restatement Suretyship and Guaranty, 3d, § 39, which provides:
D agrees to construct a building for C for $1,000,000. S issues a performance bond for D’s obligation. Soon after starting construction, D abandons the project. Investigation reveals that D is insolvent and has essentially no assets other than equipment left at C’s work site. Realizing the futility of pursuing D, C agrees to release D from its obligations pursuant to the construction contract in exchange for title to the abandoned equipment. The circumstances indicate that C intended to retain its claim against S. S is not discharged pursuant to paragraph (b), but is discharged to the extent provided in paragraph (c) [value of the consideration for the release].
Here, there was no documentary evidence presented by plaintiff in response to Capitol’s motion for summary disposition showing that plaintiff could not recover its damages from Ace, or that the reason for the settlement and release was the insolvency of Ace. It is just as likely that plaintiff settled the case with Ace in order to avoid any potential liability on Ace’s counterclaim. In fact, it is apparent that plaintiff was not focusing at all on the future liability of Capitol when placing the settlement on the record, considering that Capitol had already been relieved of liability on the basis of the directed verdict. We conclude that plaintiff has failed to submit documentary evidence sufficient to create an issue of fact with respect to, and in support of, plaintiff’s proposition that it intended to retain its claim against Capitol. MCR 2.116(C)(10). In placing the settlement on the record, plaintiff failed to appreciate the possibility that an appeal and a reversal could reinstate its action against Capitol.
Plaintiffs assertion that Capitol implicitly agreed to remain liable where it did not object to the stipulated dismissal is without merit. Capitol, having been relieved of liability pursuant to the directed verdict and, assuming that Capitol’s counsel was present when the settlement was placed on the record, having heard no statements on the record by counsel for plaintiff and Ace that Capitol would somehow remain liable, had no reason to object to the settlement and release. Once again, the consent of the surety regards consenting to remain liable notwithstanding the release. We will not presume Capitol’s consent to remain liable from its silence, assuming that Capitol’s counsel was present at the time of settlement.* ****
In a recent legal article discussing the effect of a release on a surety under Restatement Suretyship and Guaranty, 3d, the authors stated that “[i]f the obligee [plaintiff] releases the principal [Ace] without more, (a) both the principal and surety [Capitol] are discharged from duties to the obligee, and (b) the principal is discharged from all duties to the surety.” Mungall & Arena, Effect on surety of obligee’s release of principal: A critical look at the rules in the restatement, 70 Def Couns J 328 (2003) (emphasis added). Capitol submitted the transcript of the settlement and the amended order of dismissal for consideration in its motion for summary disposition, and plaintiff failed to submit evidence showing anything to the contrary. Therefore, without more, Capitol and Ace were completely released.
The fact that Capitol was a paid or compensated surety does not alter our conclusion. In Grinnell Realty Co v Gen Cas & Surety Co, 253 Mich 16, 21-22; 234 NW 125 (1931), our Supreme Court, providing an in-depth discussion distinguishing gratuitous sureties and paid sureties, stated:
[T]he liability of a gratuitous surety will not be extended to a contract which in the slightest degree varies from the one for the performance of which he became bound. The risk he runs will not be increased in any manner without Ms consent, nor will the possibility of Ms immediately protecting himself in the event of default be lessened. Strict rules of law, wMch sometimes almost seemed harsh, frequently relieved Mm from Ms obligation on account of some very slight deviation from the contract by the obligee. The surety’s liability was limited in all cases to the strict letter of Ms bond. In time, however, sureties began to exact compensation, commensurate with the risk they assumed, and surety compames were orgamzed for profit. They charged premiums so as to make their business a profitable one. They drafted their own bonds and inserted therein such conditions as they thought necessary to properly protect themselves. The law thereupon recogMzed the difference between gratmtous and paid sureties and required that paid sureties, in order to be released from the obligations of their bond must show that they were damaged by some slight deviation from the contract by the obligee. Their bond was looked upon as one of insurance or indeirmity instead of one of suretysMp. There is no presumption that a paid surety was harmed, nor is the suggestion of mere contingencies or possibilities sufficient. It is not relieved from its obligations except when it is shown that there is a mate rial departure from the contract which resulted in some injury to the surety. [Citations omitted. ][ ]
Here, there is no dispute about deviations or changes in the underlying contract between plaintiff and Ace that might have affected Capitol’s obligations under the performance bond. The matter presented to us is merely whether plaintiff’s unconditional and broad release, without limitation, and without any consent by Capitol to remain liable, reheves Capitol of liability. Moreover, under Restatement Suretyship and Guaranty, 3d, § 39(a), Capitol would be harmed or prejudiced if plaintiff were allowed to pursue its action on the performance bond because Capitol would have no recourse against Ace. Section 39(a) provides that “[t]o the extent that the obligee [plaintiff] releases the principal obligor [Ace] from its duties pursuant to the underlying obligation: the principal obligor is also discharged from any corresponding duties of performance and reimbursement owed to the secondary obligor [Capitol] unless the terms of the release effect a preservation of the secondary obligor’s recourse[.]” Because the terms of the release here do not effect a preservation of Capitol’s recourse, and because plaintiff presented no documentary evidence showing Ace to be insolvent or uncollectible, Capitol would be prejudiced and harmed should plaintiff be allowed to pursue the action and recover on the performance bond.
The dissent, quoting Restatement Suretyship and Guaranty, 3d, pp 157, 175, argues that, under the Restatement, a release discharges a secondary obli-gor, Capitol, only to the extent that it suffers a loss. The Restatement provision concerning the dissent’s argument is found in § 39. We have already concluded, on the basis of the documentary evidence, that Capitol would suffer a loss if it became liable to plaintiff. Moreover, we disagree with the dissent’s interpretation of the Restatement. Section 39 of the Restatement provides:
(c) if the secondary obligor is not discharged from its unperformed duties pursuant to the secondary obligation by operation of paragraph (b) [quoted above], the secondary obligor is discharged from those duties to the extent:
(i) of the value of the consideration for the release;
(ii) that the release of a duty to pay money pursuant to the underlying obligation would otherwise cause the secondary obligor a loss; and
(iii) that the release discharges a duty of the principal obligor other than the payment of money[.]
Plaintiff failed to present documentary evidence showing that Capitol was not discharged under subsection b of § 39 (terms of the release effect a preservation of the secondary obligor’s recourse, or language or circumstances of the release otherwise show the obligee’s intent to retain its claim against the secondary obligor). Thus, subsection c was not triggered. Assuming subsection c was triggered, there still would be a discharge under the Restatement because Ace’s duty or obligation was one other than the payment of money, i.e., providing cement and masonry work. The reason for this distinction is explained in comment g to § 39, pp 173-174:
When the underlying obligation is performance other than the payment of money, a release of the principal obligor has an effect on the secondary obligor that is particularly difficult to quantify. First, as in all releases, the ability of the principal obligor to perform had there been no release must be considered. Yet the ability of a principal obligor to perform a nonmonetary obligation is typically not susceptible of reliable determination. Second, a factor not present when the underlying obligation is the payment of money— the relative cost of performance by the principal obligor and secondary obligor — complicates matters further. The cost of performance by the secondary obligor may be different than it would have been for the principal obligor. . . . Third, a principal obligor who has been released from the underlying obligation may be uncooperative in assisting the secondary obligor to establish defenses to the secondary obligation. These factual difficulties, combined with the fact that the secondary obligor’s bargain contemplated the existence of a continuing obligation of the principal obligor to perform, make it inequitable to place on the secondary obli-gor any burden of demonstrating the existence and amount of the loss resulting from the release of the principal obli-gor when the underlying obligation is not the payment of money. Accordingly, this section discharges the secondary obligor to the extent of a release of nonmonetary obligations of the principal obligor.
Because it is unnecessary to our resolution of this case, we decline to decide today whether to adopt the exception in § 39(c) regarding nonmonetary obligations.
Affirmed.
Cooper, J., concurred.
An order of dismissal of plaintiff's claims and Ace’s counterclaim was subsequently entered by the trial court. The order contained the signatures of plaintiffs and Ace’s counsel but not that of Capitol’s counsel.
Capitol’s appellate counsel, who was also trial counsel, told this panel at oral argument, as an officer of the court, that he left the courtroom with his client after the directed verdict was granted but before the settlement and release were placed on the record. Ultimately, our decision does not rest on counsel’s presence, or lack of presence, in the courtroom.
The country club was the principal obligor in Westveer, with the bank being the obligee.
See also Restatement Security, § 122 (1941), wherein it is stated that “[w]here the creditor releases a principal, the surety is discharged, unless (a) the surety consents to remain liable notwithstanding the release, or (b) the creditor in the release reserves his rights against the surety.” We note that this Restatement has now been superseded by Restatement Suretyship and Guaranty, 3d.
The Ninth Circuit Court also relied on Restatement Security, § 122 (1941) (cited by us above at note 4). Axess Int’l, supra at 939 n 3. Comment d to Restatement Suretyship and Guaranty, 3d, § 39, provides:
An obligee may release the principal obligor from its duties pursuant to the underlying obligation in a number of different circumstances. In some cases, such as an accord and satisfaction, the release is intended to discharge all claims of the obligee (including claims against other obligors) with respect to those duties. In those cases, the secondary obligor is discharged by the release. In other cases, however, the release is intended to discharge only the obli-gee’s claim against the principal obligor, leaving the obligee free to pursue the secondary obligor. Paragraph (b) [of § 39 of Restatement] does not discharge the secondary obligor when the release is intended to discharge only the principal obligor. This intent can be manifested in a provision of the release effecting a preservation of recourse of the secondary obligor or otherwise indicating that the secondary obligor remains liable, or inferred from circumstances that indicate such intent. In the absence of such a provision or such circumstances, of course, the secondary obligor is discharged.
We respectfully disagree with the dissent’s contention that genuine issues of material fact remain, which preclude summary disposition, where Capitol had the burden of persuasion to establish a release, and where Capitol failed to submit relevant documentary evidence in support of its position. We agree that release is an affirmative defense, MCR 2.111(F)(3)(a), and that Capitol had the burden of proof with respect to release. This case, however, must be viewed in the context of a motion for summary disposition. Capitol submitted documentary evidence with its motion for summary disposition, brought under MCR 2.116(C)(7) and (10), in the form of a transcript of pages from the jury trial that contained the settlement that was placed on the record and the amended order of dismissal. It was incumbent on plaintiff to submit documentary evidence to show that an issue of fact existed concerning release in the face of Capitol’s evidence in order to survive summary disposition. MCR 2.116(G)(4) (“[A]n adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial.”); Smith v Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28 (1999); Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996).
Any reliance on* The President, Directors & Co of the Farmers & Mechanics' Bank of Michigan v Kingsley, 2 Doug 378 (Mich, 1846), is misplaced for the reason that here, there was a lack of evidence establishing consent to continuing liability by Capitol.
Daniel Mungall, Jr., served as associate reporter on Restatement Suretyship and Guaranty, 3d.
A prejudicial change or modification in duties or obligations is necessary to discharge a paid surety from liability. Hunters Pointe Partners Ltd Partnership v United States Fidelity & Guaranty Co, 177 Mich App 745, 749; 442 NW2d 778 (1989). | [
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Schuette, J.
In this molder’s lien case, plaintiff Gateplex Molded Products, Inc., appeals as of right a declaratory judgment in favor of defendant Collins & Aikman Plastics, Inc. We affirm.
I. FACTS
General Motors Corporation (gm) contracted with defendant to produce certain plastic parts for its automobiles. Gm owned the molds and allowed defendant to possess them, use them, or assign them for possession and use by third persons to produce the plastic parts. Defendant assigned the molds to Mexican Industries (Mexican) to do the production. Mexican then assigned them to plaintiff to do the production. Defendant is a “Tier I” subcontractor — subcontracting directly from gm. Plaintiff is a “Tier III” subcontractor — two steps further removed. Plaintiff produced the parts, but before plaintiff was paid in full by Mexican, Mexican filed for bankruptcy. Before filing for bankruptcy, Mexican was paid in full by defendant for the plastic parts produced by plaintiff. Plaintiff filed a molder’s lien against Mexican and refused to return the molds when asked to do so by defendant.
Plaintiff then filed this action requesting a declaration of rights in the molds. In its complaint, plaintiff alleged that Mexican issued a purchase order to plain tiff for the production of plastic parts. Plaintiff also alleged that Mexican furnished or caused plaintiff to use certain tooling dies, molds, and other equipment in the process of producing plastic parts. Plaintiff further alleged that the parts produced by plaintiff were sent to Mexican, then to defendant, and finally were placed in gm automobiles. Plaintiff next alleged that Mexican included language in the purchase order indicating the molds belonged to Mexican:
[The molds] shall not be used by Seller [Plaintiff] for any purpose other than the performance of this order, shall be deemed to be personalty, shall be conspicuously marked “Property of Mexican Industries in Michigan, Inc,” by Seller [Plaintiff], shall not be commingled with the property of Seller [Plaintiff] or with that of any third person and shall not be moved from Seller’s [Plaintiff's] premises without Buyer’s [Mexican’s] prior written approval.
Plaintiff then alleged that on April 19, 2001, it filed a notice of molder’s lien against Mexican for the amount owed for plastic part production. Plaintiff additionally alleged upon information and belief that Mexican filed chapter 11, later converted to chapter 7, bankruptcy.
Plaintiff also sought a preliminaiy injunction to stop defendant from recovering the molds. Plaintiff relied on the reasons set forth in the complaint as the grounds for the court to grant the preliminary injunction.
The trial court denied plaintiffs motion for a preliminary injunction because: (1) it found that money damages would be sufficient to settle the matter if plaintiff won; (2) there was not a substantial probability that plaintiff would win; and (3) there would be a substantial injury to defendant if it had to wait for the molds because it would not be able to make the parts necessary for the automobiles, which would shut down production on a number of cars.
Defendant answered plaintiff’s complaint with affirmative defenses, including that plaintiff failed to state a claim on which relief could be granted and that defendant did not proximately cause any of plaintiff’s damages. Defendant also filed a counterclaim for conversion, demanding return of the molds immediately.
The trial court decided the case for defendant. The court determined that plaintiff did not state a valid cause of action because it did not have a valid lien on the molds. The court concluded that the molds did not “belong to” Mexican under MCL 445.618, but belonged to gm, which both parties acknowledged in the stipulated facts was the owner of the molds. Therefore, the court ordered the immediate return of the molds by plaintiff to defendant.
n. STANDARD OF REVIEW
Questions of statutory inteipretation are questions of law, which are reviewed de novo. In re MCI Telecom, 460 Mich 396, 413; 596 NW2d 164 (1999).
HI. ANALYSIS
Plaintiff argues that the trial court erred in its interpretation of the words “belonging to” in MCL 445.618. We disagree.
On appeal the parties agree that the “central issue to this appeal is the trial court’s inteipretation of MCL 445.618, particularly the words ‘belonging to.’ ” The trial court determined “belonging to” meant owner ship and this court reviews the trial court’s statutory interpretation de novo. In re MCI Telecom, supra at 413. In determining the meaning of a statute the following rule applies:
The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. [Rose Hill Ctr, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997) (citations omitted).]
A. STATUTORY LANGUAGE
An overview of the statutory language and scheme of the molder’s lien portion of the statute leads us to believe that the Legislature intended a molder’s hen to apply only against the absolute owner and titleholder to the mold. The relevant statutory scheme is divided into three parts. Part one, MCL 445.611, defines terms including what constitutes a “customer.” Part two, MCL 445.612-445.617, is not related to the molder’s hen but discusses a time limit after which a customer loses its rights in the mold through inaction, MCL 445.611-445.617. Part three concerns the molder’s lien, MCL 445.618 to 445.618d.
MCL 445.618, which defines the necessary elements for a molder’s hen, requires that a mold “belong to” the “customer” for the lien to be valid. MCL 445.618a-445.618d discuss the notice and sale mechanics and requirements for a molder’s hen.
In sum, under the statute:
• MCL 445.618 establishes a right to the hen (1) when the molder possesses the mold, (2) the mold “belongs to” the customer, and (3) for an amount owed the molder by the customer for work done with the mold. It allows the molder to keep the mold as security for payment.
• MCL 445.618a requires the molder to send the customer the amount due notice before enforcing the hen.
• MCL 445.618b allows the molder to sell the mold at public auction if the mold is still in the molder’s possession, and ninety days have passed since the molder has given the customer notice.
• MCL 445.618c requires the molder to give notice to the customer and any person whose security interest is perfected by fihng sixty days’ notice before the mold is sold. It also allows for the customer to dispute the molder’s attempt to sell the mold because the parts produced by the molder failed to meet the quality or quantity ordered. If the molder receives notice of such a dispute, it cannot sell the mold until the dispute is resolved.
• MCL 445.618d discusses the distribution of the sale proceeds upon the sale of the mold, including giving the excess of the proceeds to the customer. MCL 445.611 sets forth the definition of a “customer” as
a person who causes a molder to fabricate, cast, or otherwise make a die, mold, or form for use in the manufacture, assembly, or fabrication of a plastic product, or a person who causes a molder to use a die, mold, or form to manufacture, assemble, or fabricate a plastic product.
We believe that defining “belonging to” as anything less than “owner” undermines the usefulness of the notification and excess proceeds provisions, MCL 445.618a, 445.618c, 445.618d. It makes no sense to require notification of the customer, but fail to require notification of the owner, MCL 445.618a, 445.618c. Further, it makes no sense to give the customer the excess of the proceeds from the sale to a customer who has no ownership interest in the mold, MCL 445.618d. The owner is the party entitled to notification and any excess proceeds from the sale of the molds.
However, under plaintiffs definition of “belonging to” the owner gets neither notice nor the excess proceeds. Mexican, who has a mere possessory interest in the molds would have to be notified of the lien and sale, as well as receive any excess proceeds of a sale of the molds. Gm, the owner of the molds, would not have to be notified, nor would it receive any of the excess proceeds from a sale. We find this argument contrary to common sense. Courts should not abandon common sense when construing a statute. Proudfoot v State Farm Mut Ins Co, 254 Mich App 702, 708; 658 NW2d 838 (2003).
Moreover, MCL 445.618c requires the molder to provide notice to any other person who may have a security interest in the mold before selling the mold. Thus, if plaintiffs definition is to be accepted, the molder is required to notify the customer and lienholder, but not the owner. Again, it is contrary to common sense to require notification to interested parties and leave out the most interested party — the owner.
However, if “belonging to” is understood to mean ownership, then all interested parties are notified. This makes much more sense. Proudfoot, supra, at 708. The language in MCL 445.618a-445.618d evidences that MCL 445.618 of the statute was intended to apply only to customers who are titleholders.
B. DICTIONARY DEFINITIONS
We believe that the definition of the words “belonging to” can be derived from its usage in the statute itself as shown above. Nonetheless, the statute does not specifically define “belonging to” and if the legislative intent cannot be determined from the statute itself, a court may consult dictionary definitions. People v Stone, 463 Mich 558, 563; 621 NW2d 702 (2001).
The trial court did cite dictionary definitions and concluded that the connotation of the word “belong” was ownership. Both parties also cite dictionary definitions that show various meanings of the words “belonging to.” In sum, the dictionary definitions provided by the parties show that the usual meaning of “belonging to” relates to ownership, but that a meaning implying less than complete ownership also applies on occasion.
For example, plaintiff cites Black’s Law Dictionary, (4th ed), which defines “belong” as follows:
To appertain to; to be the property of. Properly “belonging” to a person has two general meanings: (1) ownership; . . . and (2) less than ownership, i.e., less than an unqualified and absolute title, such as the absolute right of the user.
If something less than absolute title is considered for the definition of “belong,” Mexican’s rights in the mold were too limited for even this to apply. As defendant points out in its brief, Mexican’s rights in the molds were possessory for the purpose of accomplishing a particular job and were revocable without notice or delay. This does not constitute the “absolute user” rights noted in the second definition of “belong” above.
The trial court did not err in finding that “belonging to” in MCL 445.618 means ownership. Though not specifically defining “belonging to,” the language in the statute itself, and especially the application of the notice and excess proceeds provisions, evidence that a customer need be an owner before the statute applies.
The ordinary usage of the words “belonging to” connotes ownership. Finally, the potential negative effects of allowing a meaning that would permit the molds in question to “belong to” Mexican under the statute could substantially affect production and would give subcontractors a disproportionate amount of power in any payment dispute. Thus, the trial court did not err in finding for defendant here.
The trial court did not err in its determination that the words “belonging to” in MCL 445.618 refer to ownership and not something less than ownership.
Affirmed.
Effective March 1, 2002, 2002 PA 17 modified the moldbuilder’s lien act. The act amended MCL 445.611 and 445.618a, and added MCL 445.619, 445.620, 445.620a, 445.620b, and 445.620c. The trial court in this case issued its final order on January 14, 2002, before the changes to this act went into effect. Therefore, this opinion will reference the language of the act before its March 1, 2002, modifications. We note that the changes to this act would not have altered the outcome of this case. | [
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] |
Donofrio, P.J.
These consolidated appeals concern conflicting circuit court decisions regarding whether a circuit court may hear appeals under the Revised Judicature Act (RJA), MCL 600.631 el seq., from the denial of parole by the Parole Board.
In Docket No. 239936, the Parole Board appeals by leave granted the circuit court’s order granting petitioner Rene Jose Morales leave to appeal and remanding the matter to the Parole Board for rehearing. Respondent board contends the court erred by ruling that an appeal from a determination of the Parole Board may be brought under the RJA.
In Docket No. 240458, petitioner Lawrence C. Meyers appeals by leave granted a different circuit court’s order dismissing petitioner’s appeal from the Parole Board’s denial of parole. Petitioner argues that the circuit court had jurisdiction to hear his appeal under the RJA.
We find that appeals from the Parole Board’s denial of parole are not allowed under the rja, and thus reverse the order of the circuit court in Docket No. 239936, and affirm the order of the circuit court in Docket No. 240458.
INTRODUCTION
These appeals involve two conflicting circuit court decisions regarding the appealability of denials of parole by the Parole Board. In Docket No. 239936, the circuit court granted judicial review under the rja of the Parole Board’s decision denying petitioner Morales parole. Respondent Parole Board appealed by leave granted. In Docket No. 240458, the circuit court denied petitioner Meyers’s request for judicial review under the RJA of the Parole Board’s denial of his parole. This Court granted petitioner Meyers’s application for leave to appeal. The appeals were con solidated in order to facilitate our review of the common issues and to resolve the conflict.
i
Initially we observe that both petitioner Morales and petitioner Meyers were paroled during the pen-dency of these appeals. Following his parole, petitioner Morales moved to dismiss the case on the ground that it was moot. This Court denied the motion. Petitioner Meyers, instead of moving for a dismissal, argues on appeal that this Court should hear this case because it is of public significance and is capable of repetition and has so far evaded review.
This Court’s duty is to consider and decide actual cases and controversies. Federated Publications, Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002). “To that end, this Court does not reach moot questions or declare principles or rules of law that have no practical legal effect in the case before us unless the issue is one of public significance that is likely to recur, yet evade judicial review.” Id. This Court will entertain cases that are technically moot if the issues involved are of public significance and are likely to recur in the future and yet evade judicial review. In re Wayne Co Election Comm, 150 Mich App 427, 432; 388 NW2d 707 (1986). Generally, a case is not moot if the issues sought to be litigated are capable of repetition, yet evade review. Ferency v Secretary of State, 139 Mich App 677, 681; 362 NW2d 743 (1984).
While both petitioners in this case have been paroled, there is no guarantee they will remain on parole. If returned to prison and again denied parole, either petitioner could once again initiate the appeal process. Therefore, we find this issue capable of repetition and not moot. Because this issue is of public significance and capable of repetition while evading review, we will hear the case.
n
In Docket No. 239936 the Parole Board first argues that petitioner had no legal ground to seek an appeal of its decision denying petitioner Morales parole. The Parole Board argues that the Legislature, through its amendment of the Department of Corrections act, MCL 791.201 et seq., and the Michigan Supreme Court, through the amendment of its court rule, MCR 7.104(D), eliminated appeals by inmates from denials of parole. Parole eligibility is governed by statute, and interpretations and applications of statutes are questions of law reviewed de novo. Jackson v Dep’t of Corrections, 247 Mich App 380, 381; 636 NW2d 305 (2001).
This Court in Hopkins v Parole Bd, 237 Mich App 629, 637-638; 604 NW2d 686 (1999), stated that,
[generally, three potential avenues of review exist by which an aggrieved party may challenge an administrative body’s decision: (1) review pursuant to a procedure specified in a statute applicable to the particular agency, (2) the method of review for contested cases under the Administrative Procedures Act (apa), MCL 24.201 et seq.-, MSA 3.560(101) et seq., or (3) an appeal pursuant to § 631 of the Revised Judicature Act, MCL 600.631; MSA 27A.631, and Const 1963, art 6, § 28, in conjunction with MCR 7.104(A).
Since the Parole Board is an administrative body, our analysis focuses on the three avenues enumerated in Hopkins, supra.
A
Regarding the first avenue, petitioner Morales concedes there is no dispute that the 2000 amendment of the Department of Corrections act, MCL 791.201 et seq., effectively barred appeals by inmates from denials of parole. The circuit court stated in its opinion that “[i]n order to bring the Michigan Court Rules into conformity with the law and provide a specific procedure for bringing parole appeals, the Michigan Supreme Court amended MCR 7.104 in 1996 to add subsection D[,] which specifically provides for appeals from decisions of the Michigan Parole Board.” The circuit court also stated that our Supreme Court once again amended MCR 7.104(D) in 2000 in conformance with amended MCL 791.234, effective March 10, 2000.
Because of the nature of the case, we find it necessary to engage in a brief discussion of the history of parole appeals in Michigan. Before 1982, inmates had no statutory right to appeal their parole denial unless that denial failed to comply with the law: “The action of the parole board in releasing prisoners shall not be reviewable if in compliance with the law.” MCL 791.234(5), amended by 1978 PA 81. In 1982, the Legislature amended subsection 34(5) in 1982 PA 314, and, for the first time, statutorily provided for inmate appeals:
The time of a prisoner’s release on parole shall be discretionary with the parole board. The action of the parole board in granting or denying a parole shall be appealable to the circuit court by leave of the court. [MCL 791.234(5), amended by 1982 PA 314.]
Then in 1992, the Legislature amended the statute to include appeals by prosecutors and victims:
[A] prisoner’s release on parole shall be discretionary with the parole board. The action of the parole board in granting or denying a parole shall be appealable by the prisoner, the prosecutor of the county from which the prisoner was committed, or the victim of the crime for which the prisoner was convicted. The appeal shall be to the circuit court by leave of the corut. [MCL 791.234(5), amended by 1992 PA 181.]
The relevant provision, MCL 791.234(9) since its amendment by 1999 PA 191 states that,
a prisoner’s release on parole is discretionary with the parole board. The action of the parole board in granting a parole is appealable by the prosecutor of the county from which the prisoner was committed or the victim of the crime for which the prisoner was convicted. The appeal shall be to the circuit court in the county from which the prisoner was committed, by leave of the court. [Emphasis added.]
The 1999 PA 191 amendment of MCL 791.234, deleting the language allowing inmate appeals of Parole Board decisions by leave granted became effective March 10, 2000. Our Supreme Court amended MCR 7.104(D) on February 29, 2000. This amendment was based on the Legislature’s amendment of MCL 791.234, 1999 PA 191. Like 1999 PA 191, the amend ment of MCR 7.104(D) became effective March 10, 2000, and eliminated any reference to appeals by inmates of Parole Board decisions.
The Legislature is presumed to have intended the clear meaning it expressed. Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). Here, the Legislature has provided for an appeal of a Parole Board decision only by the prosecutor or the crime victim. By eliminating the phrase, “shall be appealable by the prisoner,” 1999 PA 191, the Legislature clearly intended the meaning expressed: a prisoner’s right to appeal by leave granted has been eliminated. Thus, we find, and petitioner Morales concedes, that the Legislature and our Supreme Court eliminated inmate appeals by leave granted of Parole Board decisions under the Department of Corrections act, MCL 791.201 et seq.
B
In his brief on appeal, as it relates to the second avenue of review, petitioner Morales also concedes that an inmate may not appeal under the Administrative Procedures Act (apa), MCL 24.201 et seq., from a decision of the Parole Board. It is well-settled that parole decisions are not “contested cases” and therefore are not appealable under the APA. Hopkins, supra, 237 Mich App 639. Accordingly, the only contested issue before us is whether a prisoner may appeal under the RJA from the denial of parole.
c
Regarding the third avenue, petitioner Morales asserts that the RJA still provides for inmate appeals, because the Legislature only eliminated inmate appeals under the Department of Corrections act. With respect to the rja, the circuit court in Docket No. 239936 found that “the legislation and the amended court rules did not divest prisoners of their ability to appeal parole decisions under the [rja].” The court found that “any decision of any state agency ‘from which an appeal or other judicial review has not otherwise been provided for by law’ may be appealed to the circuit court for the county where the appellant resides.”
The Parole Board contends that the circuit court’s ruling in Docket No. 239936 that a prisoner may appeal his parole denial under § 631 of the RJA is clearly legal error because the rja applies only to private rights and licenses. The Parole Board further asserts that the denial of parole is not the denial of a private right, and this Court has already held that the RJA does not apply to inmate appeals of Parole Board decisions. Statutory interpretation is reviewed de novo. Miller v Mercy Mem Hosp, 466 Mich 196, 201; 644 NW2d 730 (2002).
MCL 600.631 of the RJA provides:
An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made in accordance with the rules of the supreme court.
Review of administrative decisions under the rja is limited to the review provided for by Const 1963, art 6, § 28. Southeastern Oakland Co Incinerator Auth v Dep’t of Natural Resources, 176 Mich App 434, 438; 440 NW2d 649 (1989). Const 1963, art 6, § 28 provides, in pertinent part:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
Citing Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998), and Brandon School Dist v Michigan Ed Special Services Ass’n, 191 Mich App 257, 263; 477 NW2d 138 (1991), the circuit court stated: “A prisoner has a right to have the Parole Board act within its authority; and not in violation of the constitution or a statute, in excess of its statutory authority or jurisdiction, or upon unlawful procedures resulting in material prejudice, or in a manner that is arbitrary and capricious.” The circuit court held that “a prisoner does have a right to a parole board’s decision made in accordance with the law.”
We do not disagree that the Parole Board, as an entity within the Department of Corrections possessing exclusive discretion to grant or deny parole, is charged with making decisions in accordance with the law. MCL 791.204; MCL 791.231 et seq.; Jones v Dep’t of Corrections, 468 Mich 646, 652; 664 NW2d 717 (2003); Hopkins, supra, 237 Mich App 636-637. But, the circuit court ignored the holding of Hopkins. Respondent correctly cites Hopkins, supra, 237 Mich App 639, for the proposition that an inmate may not appeal under the RJA because Const 1963, art 6, § 28 restricts judicial review to those final decisions, findings, rulings, and orders affecting private rights or licenses.
In Hopkins, supra, 237 Mich App 639, this Court addressed a circuit court’s abuse of its discretion in reversing the Parole Board’s decision denying parole. In examining the Parole Board’s discretionary determinations concerning whether to grant parole, this Court held that “the constitutional standard of review does not apply to this case, which involves neither a decision affecting a private right or license nor an evi-dentiary hearing.” Id. We agree that there is no right at issue because a prisoner has no right to parole. “A prisoner enjoys no constitutional or inherent right to be conditionally released from a validly imposed sentence.” Jones, supra, 468 Mich 651, citing Greenholtz v Inmates of Nebraska Penal & Correctional Complex, 442 US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979), and People v Malmquist, 155 Mich App 521; 400 NW2d 317 (1986).
Importantly, MCL 600.631 states specifically that appeals under the RJA “shall be made in accordance with the rules of the supreme court.” As mentioned above, our Supreme Court has amended the court rule, MCR 7.104(D), effective March 10, 2000, eliminating any reference to inmate appeals of Parole Board decisions. This being the case, we can envision no scenario where a prisoner could appeal the Parole Board’s decision under the rja “in accordance with the rules of the supreme court” when the court rules do not provide for such an appeal.
Despite petitioners’ contentions, the legality of petitioners’ detention is not insulated from judicial oversight. Admittedly, statutory review is no longer provided for, this is not a contested case under the apa, and review under the rja is precluded because there is no private right or license at issue. However, a prisoner’s right to file a complaint for habeas corpus is guaranteed by the Michigan Constitution. Hinton v Parole Bd, 148 Mich App 235, 244; 383 NW2d 626 (1986), citing Const 1963, art 1, § 12. Regarding an action for habeas corpus, this Court has stated that
[a] complaint for habeas corpus is designed to test the legality of detaining an individual and restraining him of his liberty. In re Huber, 334 Mich 100; 53 NW2d 609 (1952); Dayer v Kent County Sheriff, 104 Mich App 32; 304 NW2d 11 (1981). If a legal basis for detention is lacking, a judge must order the release of the detainee from confinement. MCL 600.4352; MSA 27A.4352. However, the writ of habeas corpus deals only with radical defects which render a judgment or proceeding absolutely void. In re Stone, 295 Mich 207; 294 NW2d 156 (1940); Walls v Director of Institutional Services, 84 Mich App 355; 269 NW2d 599 (1978). “A radical defect in jurisdiction contemplates * * * an act or omission by state authorities that clearly contravenes an express legal requirement in existence at the time of the act or omission.” People v Price, 23 Mich App 663, 671; 179 NW2d 177 (1970). [Hinton, supra, 148 Mich App 244-245.]
Therefore, under certain radical circumstances, a prisoner has a right to file a complaint for habeas corpus. Although not a completely exhaustive list, in the unlikely scenario where the Parole Board has denied a prisoner parole exclusively on the basis of his race, religion, or national origin, a complaint for habeas corpus would be proper.
Additionally, an action for mandamus is an option for prisoners in certain instances, as our Supreme Court has recently enunciated in Jones, supra. In Jones, supra, our Supreme Court held that the proper remedy for the failure of the Department of Correction to hold a timely fact-finding hearing on a charge of parole violation as required by statute, MCL 791.240a(l), is a complaint for an order of mandamus. Thus, a prisoner, may seek a writ of mandamus to compel compliance with a statutory duty. The Jones Court specifically stated that
[w]here an official has a clear legal duty to act and fails to do so, the appropriate remedy is an order of mandamus. See In re MCI, 460 Mich 396, 442-443; 596 NW2d 164 (1999); Lickfeldt v Dep’t of Corrections, 247 Mich App 299, 302; 636 NW2d 272 (2001). Where . . . the Legislature has established a clear, ministerial duty, but has failed to prescribe any consequence for a violation of that duty, a plaintiff may seek a writ of mandamus to compel compliance with the statutory duty. [Jones, supra, 146 Mich 658.]
We find it important to point out that the issuance of a writ of mandamus is proper only where (1) the party seeking the writ has a clear legal right to performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial and involves no exercise of discretion or judgment, and (4) no other remedy exists, legal or equitable, that might achieve the same result. Tuscola Co Abstract Co, Inc v Tus-cola Co Register of Deeds, 206 Mich App 508, 510-511; 522 NW2d 686 (1994). We stress that mandamus is an extraordinary remedy and it will not lie to review or control the exercise of discretion vested in a public official or administrative body. Teasel v Dep’t of Mental Health, 419 Mich 390, 409-410; 355 NW2d 75 (1984). In any event, where there has been a ministerial error or omission, the remedy of mandamus is available to prisoners.
In summary, after carefully reviewing the law, we find that appeals of denials of parole are not allowed under the rja. However, we are careful to point out that our decision does not leave prisoners without recourse to have the judiciary review the legality of an inmate’s imprisonment, and prisoners do have the legal tools of habeas corpus and mandamus available under the proper circumstances.
HI
Respondent argues that the Grand Traverse Circuit Court erred in Docket No. 239936 in relying on a House bill analysis when it determined that an appeal from the denial of parole could be brought under the rja. On appeal, questions of law are reviewed de novo. McCaw v T & L Operations, Inc, 217 Mich App 181, 185; 550 NW2d 852 (1996). The Grand Traverse Circuit Court conceded that a prisoner does not have a right to parole under the amended corrections act statute, but pointed to a statement in the legislative analysis that stated that the rja explicitly authorizes appeals of Parole Board hearings. Petitioner Meyers, in Docket No. 240458, argues that because the legislative analysis states that appeals of denials of parole are available under the rja, the Ingham Circuit Court erred in not granting his appeal.
The House Legislative Analysis of House Bill 4624 as enrolled for 1999 PA 191 provided:
The bill should drastically cut down on the burgeoning number of prisoner appeals of parole denials by eliminating such appeals under the corrections code. However, the bill still would leave prisoners recourse to appeal under the Revised Judicature Act (rja), although the rja has a higher burden of proof under an “abuse of discretion” standard. That is, the bill would leave intact a prisoner’s right to appeal a parole denial under the rja, but in order for the appeal to be successful, the prisoner would have [to] show competent, material and substantial evidence that the parole board’s decision was not supported by the law. Consequently, the bill should cut down on the number of prisoner appeals, make it easier for the courts to dismiss cases that wouldn’t meet this higher burden of proof under the RJA, and would make it easier and less expensive for the attorney general’s office to respond to such appeals. [House Legislative Analysis, HB 4624, March 21, 2000.]
The law is settled that “in Michigan, a legislative analysis is a feeble indicator of legislative intent and is therefore a generally unpersuasive tool of statutory construction.” Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587; 624 NW2d 180 (2001). Legislative histories are free to be created by special interest pleaders and legislative staffers. Id. Because of the risk a court may rely on the dubious authenticity of the analysis, even the analyses themselves carry a warning “that they do not constitute an official statement of legislative intent.” Id., at 587 n 7.
These staff analyses are entitled to little judicial consideration in resolving ambiguous statutory provisions because: (1) such analyses are not an official form of legislative record in Michigan, (2) such analyses do not purport to represent the views of legislators, individually or collectively, but merely to set forth the views of professional staff offices situated within the legislative branch, and (3) such analyses are produced outside the boundaries of the legislative process as defined in the Michigan Constitution, and which is a prerequisite for the enactment of a law. Const 1963, art 4, §§ 26 & 33. [In re Certified Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003).]
A bill analysis does not necessarily represent the view of even a single legislator. Lynch, supra, 463 Mich 587 n 7.
We find that the Grand Traverse Circuit Court erred in relying on the House Legislative Analysis to allow petitioner Morales to appeal under the rja because the analysis is not a reliable indicator of legislative intent. Moreover, as we concluded in section n of this opinion, prisoners may not appeal under the RJA from denials of parole.
rv
The next issue on appeal concerns the relationship between the parole guidelines and the sentencing guidelines. In Docket No. 239936, the circuit court found that the Parole Board, in deciding whether to parole petitioner Morales, “rescore [d] the sentencing guidelines in the guise of parole guidelines.” The circuit court stated that the Parole Board’s actions were inappropriate because they were tantamount to making new findings of fact that were previously decided at trial and were already in the underlying record. On the basis of what it found to be an erroneous rescor-ing, the circuit court found that the Parole Board exceeded its authority when it denied petitioner Morales parole.
Respondent argues that by requiring the parole guidelines to be consistent with the sentencing guidelines, the circuit court is giving the sentencing court the authority to calculate the parole guidelines. Respondent further states that as long as there is a factual basis supporting the Parole Board’s calculation of the parole guidelines, they do not have to be consistent with the sentencing guidelines. Petitioner Morales argues that if the Parole Board is free to disregard the circuit court’s findings, the Parole Board will effectively have the authority to add years to an inmate’s sentence. Questions of law are reviewed de novo on appeal. Kuhn v Secretary of State, 228 Mich App 319, 324; 579 NW2d 101 (1998).
The sentencing guidelines were created by the Michigan Supreme Court to “ ‘eliminate most of the serious inequities in the indeterminate sentence process and thus obviate to a great extent the necessity for appellate review of sentences.’ ” People v Clark 147 Mich App 237, 242; 382 NW2d 759 (1985) (citation omitted). Our Supreme Court recently observed that the Legislature adopted the statutory sentencing guidelines to “reduce unjustified disparities in sentencing.” People v Babcock, 469 Mich 247, 267 n 21; 666 NW2d 231(2003). Whereas, the parole guidelines were created by the Michigan Department of Corrections for the purpose of “assisting] the parole board in making release decisions that enhance the public safety.” MCL 791.233e(l). The calculation of both the sentencing guidelines and the parole guidelines depends on the presentence investigation report.
The presentence investigation report is an information-gathering tool for use by the sentencing court. People v Burton, 44 Mich App 732, 734; 205 NW2d 873 (1973), overruled in part by People v Wright, 431 Mich 282, 298 n 18; 430 NW2d 133 (1988). Therefore, its scope is necessarily broad. Id. A judge preparing to sentence a defendant may consider comments made by the defendant to the probation officer during the presentence interview in addition to evidence adduced at trial, public records, hearsay relevant to the defendant’s life and character, and other criminal conduct for which the defendant has not been charged or convicted Burton, supra, 44 Mich App 734-735.
The Michigan Court Rules provide that the presentence investigation report must include “a complete description of the offense and the circumstances surrounding it, . . . information concerning the financial, social, psychological, or physical harm suffered by any victim of the offense, . . . any statement the defendant wishes to make . . . [and] any other information that may aid the court in sentencing.” MCR 6.425(A). To ensure accuracy, the defendant must be given an opportunity to review his presentence investigation report before sentencing. People v Naugle, 152 Mich App 227, 238; 393 NW2d 592 (1986).
According to MCL 791.233e(2), when calculating the parole guidelines, the Department of Corrections shall consider factors including, but not limited to, the following:
(a) The offense for which the prisoner is incarcerated at the time of parole consideration.
(b) The prisoner’s institutional program performance.
(c) The prisoner’s institutional conduct.
(d) The prisoner’s prior criminal record. As used in this subdivision, “prior criminal record” means the recorded criminal history of a prisoner, including all misdemeanor and felony convictions, probation violations, juvenile adjudications for acts that would have been crimes if committed by an adult, parole failures, and delayed sentences.
(e) Other relevant factors as determined by the department, if not otherwise prohibited by law.
Whether the parole guidelines must be consistent with the sentencing guidelines is an issue of first impression in Michigan, hence we will look to other jurisdictions for guidance. In a case from the United States District Court for the northern district of Illinois, Laivinieks v True, 1994 US Dist LEXIS 2574 (ND Ill, 1994), the petitioner appealed the denial of parole, arguing his due process rights were violated when the parole commission scored an offense severity rating differently from that of the sentencing court. Id. at 6-7. The court explained that “[u]nder the sentencing guidelines, the Parole Commission only needs to consider the presentence investigation report — the guidelines do not require that the Parole Commission actually follow the presentence report.” Id. at 7. The Laivinieks court explained that the nonbinding nature of the presentence investigation report was consistent with the well-established sole authority of the parole commission to grant or deny parole. Id. Because the parole commission exercises this power exclusively, the court held that the parole commission’s calculation of the guideline range did not violate the petitioner’s due process rights. Id. at 8. “Although the Parole Commission determined the offense severity rating and salient factor higher than that calculated by the probation officer in the presentence report, the Parole Commission was not bound to follow the probation officer’s calculations— only to consider them.” Id.
We find the reasoning in Laivinieks, supra, useful. The Parole Board is allowed to consider the presentence investigation report, because the report must be sent to the Department of Corrections in accord with MCL 771.14 and the Michigan Court Rules, and it relates to the offense for which the prisoner is incarcerated. Similar to the parole commission in Laivinieks, supra, the Parole Board here is not bound by the probation officer’s calculations in the presentence investigation report, but may consider them in addition to considering the prisoner’s institutional program performance, his institutional conduct, his prior criminal record, and any other relevant factor as determined by the Department of Corrections. MCL 791.233e(2). Likewise, the nonbinding nature of the presentence investigation report is in accord with Michigan law that provides that the Parole Board has exclusive jurisdiction and discretion to parole a prisoner. MCL 791.204; MCL 791.234(9). A prisoner has no constitutionally protected or inherent right to parole, only a hope or expectation of it. Jones, supra, 468 Mich 651; Hurst v Dep’t of Corrections, Parole Bd, 119 Mich App 25, 28-29; 325 NW2d 615 (1982).
We recognize that “[a] court must not judicially legislate by adding into a statute provisions that the Legislature did not include.” In re Wayne Co Prosecutor, 232 Mich App 482, 486; 591 NW2d 359 (1998). Neither may a reviewing court substitute its judgment for the Parole Board’s decision. Killebrew v Dep’t of Corrections, 237 Mich App 650; 604 NW2d 696 (1999). With this in mind, after reviewing the applicable statutes, together with the Michigan Court Rules, we find that there is no requirement that the parole guidelines must conform to the sentencing guidelines. MCL 771.14; MCL 791.233e; MCR 6.425. Because the circuit court cannot substitute its judgment for that of the Parole Board, or read into the statute that the Parole Board’s guidelines must be consistent with the sentencing guidelines, we conclude that the circuit court in Docket No. 239936 erred in finding that the Parole Board’s calculation of the parole guidelines must be consistent with the sentencing guidelines.
v
Finally, petitioner Meyers argues that the amended corrections act violates the Equal Protection Clause because it treats prisoners differently than prosecutors and victims of crimes. Constitutional questions are questions of law reviewed de novo on appeal. Yaldo v North Pointe Ins Co, 217 Mich App 617, 623; 552 NW2d 657 (1996).
Equal protection is guaranteed under the federal and state constitutions, US Const, Am XIV; Const 1963, art 1, § 2. Frame v Nehls, 452 Mich 171, 183; 550 NW2d 739 (1996). Equal protection guarantees under the Michigan Constitution ensure that people similarly situated will be treated alike. Yaldo, supra, 217 Mich App 623. Equal protection does not guarantee that people in different circumstances will be treated the same. Id.
“Unless the discrimination impinges on the exercise of a fundamental right or involves a suspect class,' the inquiry under the Equal Protection Clause is whether the classification is rationally related to a legitimate governmental purpose.” Frame, supra, 452 Mich 183. However, when legislation creates a classification scheme that infringes on a fundamental right, strict scrutiny analysis is applied to the statute. Doe v Dep’t of Social Services, 439 Mich 650, 662; 487 NW2d 166 (1992). Under strict scrutiny analysis, a statute will be upheld if the state can demonstrate that classification was tailored to serve a compelling governmental interest. Id. Petitioner cites Bounds v Smith, 430 US 817; 97 S Ct 1491; 52 L Ed 2d 72 (1977), for support that the statute violates his fundamental right of access to the courts. The Court in Bounds, supra, 430 US 828, held “that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” However, Bounds, supra, relates to prisons providing prisoners with the legal resources necessary to appeal their convictions. The case at bar is distinguishable from Bounds, because prisoners have no right to parole. Jones, supra, 468 Mich 651.
This Court has held that “neither the constitution nor the parole statute creates a right to parole for inmates.” Hurst, supra, 119 Mich App 29. As mentioned above, the United States Supreme Court has also addressed the issue of parole boards denying prisoners parole and has held, “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz, supra, 442 US 7. The Supreme Court has also held that “given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution.” Meachum v Fano, 427 US 215, 224; 96 S Ct 2532; 49 L Ed 2d 451 (1976).
If a statute affects an inherently suspect classification, strict scrutiny analysis is applied. Vargo v Sauer, 457 Mich 49, 60; 576 NW2d 656 (1998). Race, ethnicity, and national origin are suspect classifications. Frontiero v Richardson, 411 US 677, 682; 93 S Ct 1764; 36 L Ed 2d 583 (1973). Strict scrutiny analysis is not applicable here because status as a prisoner is not a suspect classification. Proctor v White Lake Twp Police Dep’t, 248 Mich App 457, 469; 639 NW2d 332 (2001).
Economic and social legislation are examined using the rational basis test. Rouge Parkway Assoc v City of Wayne, 423 Mich 411, 421-422; 377 NW2d 748 (1985). Under the rational basis test, the legislation is presumed constitutional if the classification scheme is rationally related to a legitimate governmental purpose. Vargo, supra, 457 Mich 60. Given the purpose of the statute, the burden is on the petitioner to prove that the classification is arbitrary and unreasonable. A rational basis exists for the legislation when any set of facts, either known or that can be reasonably conceived, justifies the discrimination. Crego v Coleman, 463 Mich 248, 259-260; 615 NW2d 218 (2000).
In Proctor, supra, 248 Mich App 468, the plaintiffs argued that the Freedom of Information Act (foia) prisoner exclusions, MCL 15.231(2), 15.232(c), treated incarcerated prisoners and convicted criminals no longer imprisoned differently, thus implicating the Equal Protection Clause. This Court applied the rational basis test in Proctor because the FOIA prisoner exclusions were an economic measure implemented to stop abuse of public resources by prisoners. Proctor, supra, 248 Mich App 469. Because status as a prisoner is not a suspect classification, this Court found that “the Legislature’s foia exclusions singling out incarcerated prisoners rationally relate to the Legislature’s legitimate interest in conserving the scarce governmental resources squandered responding to frivolous FOIA requests by incarcerated prisoners.” Id.
Again, because status as a prisoner is not a suspect classification, like the panel in Proctor, supra, we find that the exclusion of prisoners’ ability under MCL 791.234 to appeal parole denials is rationally related to the Legislature’s legitimate interest in saving public funds in response to innumerable frivolous requests by incarcerated prisoners for the review of the Parole Board’s denials of parole. We recognize the government’s legitimate interest in conserving the scarce governmental resources, and, accordingly, find that the Equal Protection Clause is not implicated by the elimination of appeals by leave granted for prisoners because the discrimination is rationally related to a legitimate governmental interest.
CONCLUSION
Parole decisions are not reviewable by the judiciary under the Department of Corrections act, the APA, or the RJA. The law is settled that prisoners have no legal right to parole, and we now hold that in Michigan prisoners have no legal right to seek judicial review of the denial of parole by the Parole Board.
Docket No. 239936 is reversed. Docket No. 240458 is affirmed.
The 1999 PA 191 amendment of the statute moved the appeal language to MCL 791.234(9) and is the only reference to appeals of the Michigan Parole Board decisions in MCL 791.201 et seq. | [
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Shepherd, P.J.
Defendant was convicted by a jury of four counts of first-degree murder, MCL 750.316; MSA 28.548. He was sentenced on December 22, 1982, to the mandatory four terms of life imprisonment and now appeals as of right.
Defendant was first convicted of the four murders in 1977. Those convictions were affirmed by this Court, People v Paintman, 92 Mich App 412; 285 NW2d 206 (1979), but were reversed by the Supreme Court, People v Paintman, 412 Mich 518; 315 NW2d 418 (1982), cert den, Michigan v Paintman, 456 US 995 (1982). The Supreme Court found that defendant’s inculpatory statement to police, admitted for substantive purposes at trial, had been obtained without a knowing and intelligent waiver by defendant of his right to counsel. A new trial was ordered, at which the statement was not to be admitted. Id., p 522.
At his second trial, after the prosecutor had rested and the jury had been excused, defense counsel moved to suppress defendant’s statement to the police if defendant took the stand. Because the prosecutor had brought in witnesses who testified that defendant had made damaging admissions, defense counsel felt that defendant should answer the allegations personally. Defense counsel argued that the 1976 statement could not be used for impeachment because it was involuntary and taken in violation of defendant’s right to counsel. The prosecutor responded that, according to the Supreme Court’s decision in the case, the statement could not be used in the case-in-chief, but she was not precluded from using it in rebuttal. The prosecutor felt that it was not necessary to hold a new Walker [People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965)] hearing on the issue, but "the more prudent course would be to have a short hearing to determine whether or not those statements were voluntarily made”. Defense counsel argued that a Walker hearing had already been held in conjunction with the first trial, that defendant’s statement had been found involuntary, and that those hearing results constituted the law of the case. He further argued that the trial court had no right to hold a new hearing and that he was not prepared for one. After a recess, a hearing on voluntariness was conducted.
Outside the presence of the jury, two Southfield police officers testified that they visited defendant in jail on the afternoon of March 1, 1976. Three days earlier, defendant had terminated police questioning, stating that he wanted an attorney. Later that same day, after defendant had signed a form requesting appointed counsel at his arraignment, Captain Ritenour, one of the officers testifying at the Walker hearing, visited defendant in his cell at the Southfield police station to inquire about his condition. Ritenour told defendant, who was experiencing some symptoms of withdrawal from narcotics, to bring his condition to the attention of personnel at the county jail after he had been transported there. Ritenour also told defendant he "would like to talk about the incident, but knew that it was getting late and understood that defendant did not feel well”. Ritenour told defendant that he would try to get to the jail within the next few days and if defendant "felt like discussing the matter, we could do it at that time”. According to Ritenour, defendant thanked him for his concern, told him that he did not feel like talking to anyone at that time because of his condition, but that he might "decide later to talk” with Ritenour and "possibly [Ritenour] should stop at the county jail”. On the morning of March 1, 1976, Ritenour called the jail and asked a "turnkey” to ask defendant "if he cared to discuss anything” with Ritenour. The answer relayed to Ritenour by the guard was in the negative. Ritenour, however, "didn’t trust the circumstances”, reasoning that defendant would not tell the guard that he wanted to talk to police even if he did want to talk. Ritenour, therfore, decided to check with defendant directly, and visited the county jail with Detective Simmons. Once at the jail, Ritenour and Simmons told a guard to tell defendant that they were there and wanted to talk to him and, "if he cared to talk” to come to the interview room. Defendant did so. Upon their inquiry, defendant informed Ritenour and Simmons that he felt much better physically.
According to the two officers, after an initial exchange of greetings, defendant immediately began making a statement about the incident. Ritenour had to stop him several times in order to advise him of his rights. Defendant stated that he understood his rights and wanted to get on with the story. Ritenour was finally able to recite the rights in full and to obtain a waiver from defendant after asking defendant to pay him the "professional courtesy” of allowing Ritenour to do so. Ritenour asked defendant if he wanted to speak to a lawyer, and defendant replied that he was going to get his own lawyer. He then proceeded to give a statement about his involvement in the murders. The entire meeting took about one-half hour.
At the second Walker hearing, defense counsel did not cross-examine either Ritenour or Simmons, stating "this matter is the law of the case and I’m not prepared”. Nor did defendant, or any defense witnesses, testify at the hearing. The trial judge ruled that defendant’s statement was voluntarily made and could be used to impeach his testimony. Defense counsel stated that, in light of the court’s ruling, defendant would not take the stand. The statement was therefore never introduced at trial.
On appeal, defendant first argues that the trial court erred by ruling that his statement could be used for impeachment purposes if defendant testified. Defendant interprets the Supreme Court’s ruling in People v Paintman, supra, as precluding any use of defendant’s statement in his subsequent trial. We do not read the Supreme Court’s opinion so broadly, however.
Prior to defendant’s first trial, a Walker hearing was held to determine the admissibility of defendant’s statement. The trial court ruled that the statement was involuntary, and issued an order of suppression. An immediate interlocutory appeal was taken by the prosecutor to this Court, which then reversed the trial court, finding defendant’s statement to have been voluntarily given. Upon completion of his first trial, where the statement was admitted as substantive evidence, defendant appealed as of right to this Court, which affirmed his conviction, People v Paintman, supra, and specifically refused to reconsider the admissibility of defendant’s statement, holding that its decision in the previous interlocutory appeal was the law of the case.
Defendant’s conviction was then reversed by the Michigan Supreme Court which held that defendant had not made a knowing and intelligent waiver of his right to counsel. People v Paintman, 412 Mich 526, 528. The Supreme Court remanded for a new trial "at which the statements may not be admitted”. Id., p 522. In reversing defendant’s conviction, the Court relied exclusively on Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981).
In Edwards, the United States Supreme Court held that a defendant’s waiver of counsel must not only be voluntary, but must constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege. Edwards, supra, p 482. The question of the voluntariness of an admission itself on the one hand and a knowing, voluntary and intelligent waiver of the right to counsel on the other, are discrete inquiries. Id., p 484.
In the instant case, the Michigan Supreme Court reversed defendant’s conviction and suppressed his confession based on the rule governing waiver of counsel as set forth in Edwards, and did not reach or consider the separate question of whether defendant’s confession itself was voluntary. Therefore, the previous decision of this Court finding that defendant’s confession was voluntary continues to govern as the law of the case. People v Paintman, 92 Mich App at 416; Allen v Michigan Bell Telephone Co, 61 Mich App 62; 232 NW2d 302 (1975), lv den 395 Mich 793 (1975). Further, a second Walker hearing on voluntariness alone was conducted at defendant’s second trial, and his statement was found to have been voluntary. Defense counsel did not participate in the hearing because, he alleged, he was unprepared. Nothing in the record indicates, however, that defendant could not have sought or obtained a brief recess in order to better prepare. Furthermore, defense counsel was clearly aware of the issue to be resolved at the Walker hearing and of the background of the case, including the facts available to him which might be brought out at the new Walker hearing. We therefore find that counsel was prepared.
Defendant now asserts that his statement obtained in violation of Edwards could not be used for impeachment purposes. This issue has been decided contrary to defendant’s position for United States constitutional purposes by the United States Supreme Court in Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). A voluntarily given confession obtained in violation of a defendant’s in-custody rights may be used for impeachment without being in violation of United States constitutional provisions. Harris, supra, p 226. The United States Supreme Court outlined the basis for its decision:
"Miranda [v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966)] barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case-in-chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.
"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris, supra, pp 224, 226.
In a split decision, the Michigan Supreme Court in People v Esters, 417 Mich 34; 331 NW2d 211 (1982), Justice Coleman writing, held:
"Harris is determinitive of the instant question. Edwards was a ruling on the nature of the Miranda rights, particularly addressing the question of how the right to counsel is waived once it is invoked. Harris specifically addresses the question involved here, which is whether any use can be made of a voluntary statement obtained in violation of Miranda. Regarding this question Edwards is silent. Therefore, we conclude that no error was committed by the use of defendant’s prior voluntary statement for impeachment purposes.” 417 Mich 54.
We note, however, that, while five Justices agreed that this was a correct result under United States constitutional law, the vote was divided three to three as to whether the Harris analysis was applicable to the Michigan Constitution. As the issue has not been definitively decided by the Michigan Supreme Court, we are without binding precedent and must independently address and resolve this question.
Panels of this Court considering this matter are not uniform in their decisions, but have generally held that statements taken in violation of a defen dant’s right to counsel, if voluntary, may be used for impeachment purposes although they could not have been used in the prosecutor’s case-in-chief. People v Clark, 127 Mich App 176; 339 NW2d 14 (1983); People v Gonyea, 126 Mich App 177; 337 NW2d 325 (1983), lv gtd 418 Mich 956 (1984); People v Hobbs, 124 Mich App 785; 335 NW2d 693 (1983). But see, People v Strieter, 119 Mich App 332; 326 NW2d 502 (1982), lv gtd 418 Mich 946 (1984), although the facts in Strieter indicate that the defendant’s statement was in that case actually rendered involuntary as a result of the deprival of the defendant of her right to counsel. It should also be noted that Judge Kelly dissented from the majority opinion in Strieter.
We agree with those panels and the three Supreme Court Justices who hold that statements obtained in violation of a defendant’s right to counsel may, if otherwise voluntary, be admitted for impeachment purposes alone. As did Justice Coleman in Esters, we find the rationale supporting admission offered by the Harris Court to be persuasive and agree that defendants should not be granted a "license to use perjury” by perverting the shield offered by Miranda. In reaching this holding, we have decided not to push our interpretaion of the Michigan Constitution beyond the level prescribed by the United States Constitution on this issue.
We find that the trial court properly allowed the use of defendant’s statement for impeachment purposes although it could not have been used in the prosecutor’s case-in-chief. Upon completion of two Walker hearings, two courts had determined that defendant’s statement itself was voluntary. This Court will not reverse a trial court’s decision as to voluntariness unless, after examining all the evidence, we are left with a definite and firm conviction that a mistake has been made. People v Dean, 110 Mich App 751, 754; 313 NW2d 100 (1981). A confession is involuntary if obtained by any sort of threat or violence, by any promises, express or implied, or by the exertion of any improper influence. Malloy v Hogan, 378 US 1, 7; 84 S Ct 1489; 12 L Ed 2d 653 (1964).
As we noted earlier, since the Supreme Court in reversing defendant’s earlier conviction did not actually reach the issue of voluntariness, this Court’s earlier interlocutory order constitutes the law of this case. However, we further find, after reviewing the record of the second Walker hearing, that the second determination of voluntariness was also supported by the evidence.
According to Ritenour, defendant indicated that he might later wish to talk to him after he was feeling better. Subsequently, three days later, Ritenour visited defendant in jail. Although Ritenour had been advised that defendant did not wish to speak to him, he was not so advised by defendant himself and was later voluntarily visited by defendant at the jail. Ritenour and Simmons both testified that defendant insisted that they take his statement and, in fact, was so insistent upon making his statement that they had to stop him in order to advise him of his rights. On these facts, we find defendant’s statement to be voluntary. We would also note that this case is thus clearly distinguished from Strieter, supra, where the defendant was under the impression that any statement she made could not be used against her. We conclude that the trial court did not err in allowing the prosecutor to use defendant’s statement in impeachment (although, as noted previously, defendant did not testify and the statement was therefore never imparted to the jury):
Defendant also argues that this Court previously applied the wrong standard in reviewing the original trial court’s suppression order which was the subject of defendant’s previous interlocutory appeal. Specifically, defendant argues that, rather than the clearly erroneous standard, this Court is required to use an abuse of discretion standard, giving great deference to the trial court’s findings of fact. There is, however, no merit to this contention. This Court is required to make an independent determination of the ultimate issue of voluntariness. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974). If, after an independent review, this Court does not possess a definite and firm conviction that a mistake was committed by the trial court in its suppression ruling, then it must affirm. Id., p 257. As this Court applied the correct standard in independently assessing the previous trial court ruling, we find no error in its prior conclusion and reversal of the suppression order.
Defendant next argues that the trial court erred in restricting his cross-examination of a prosecution witness, thereby denying defendant his right of confrontation. We disagree.
The extent of and control over cross-examination lie within the sound discretion of the trial court, and its decision in that regard will not constitute reversible error absent a clear abuse of discretion. People v Allen, 109 Mich App 147, 160; 311 NW2d 734 (1981), lv den 412 Mich 913 (1982). The trial court’s discretion, however, must be exercised with due regard for a defendant’s constitutional right to confront adverse witnesses. People v Bell, 88 Mich App 345, 348; 276 NW2d 605 (1979). We are convinced that the trial court did not impermissibly restrict defendant’s constitutional right of confrontation.
The court first prevented defense counsel from going into exhaustive detail regarding the witness’s past convictions. Descriptions of all of the convictions and their dates were allowed to be place on the record; the trial court merely prevented defense counsel from exhaustively questioning the witness as to the location of the convictions. We do not interpret the United States Supreme Court’s decision in Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974), as allowing unlimited cross-examination as to prior convictions. Rather, the Court there held that introduction of evidence of a prior crime could form part of a general attack on credibility. In the instant case, the trial court’s refusal to allow defense counsel to go into the specific details of one of the witness’s prior convictions was permissible. Within the confines of Davis and the trial court’s ruling, defendant was adequately permitted to impeach the credibility of the witness.
Defense counsel was also limited in his exploration of prisoner ethics with the prosecution witness. Counsel asked the witness if a person would have trouble in prison if he had done something to a young child. The witness replied, "not necessarily”. Defense counsel’s attempt to further explore this area was cut oif by the trial court. We do not find the trial court to have abused its discretion. Defense counsel clearly wanted to show that prisoners who hurt children were abused in prison, and therefore defendant would never have admitted to the witness, contrary to the witness’s testimony, that he shot a child, one of the victims in the instant case. While testimony regarding what a normal prisoner would or would not admit might have been relevant, it did not go to the Witness’s credibility, bias, or motive for testifying. Furthermore, the witness denied that the prisoner norm was a hard and fast rule, and refused to corrobo rate counsel’s theory. Any further questioning by defense counsel would not have constituted permissible impeachment, therefore, but would have constituted mere argument with the witness.
Next, defendant argues that the trial court impermissibly allowed the admission of evidence indicating that police found narcotics paraphernalia nearby when they arrested defendant.
The arresting officer testified that, when he arrested defendant, he observed syringes in defendant’s bedroom. On cross-examination, the officer testified that he also noticed clothes belonging to a female in the bedroom. While we agree that it would have been preferrable to exclude the testimony regarding syringes, we do not find its admission to be reversible error in the instant case.
To establish whether an error is harmless, two inquiries are pertinent. First, whether the error is so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless. Second, if not so basic, whether the error was harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). Apparently, only in non-drug-related theft cases is the admission of narcotics evidence prejudicial to such a degree that reversal is necessarily mandated. People v Mullins, 79 Mich App 515, 516; 261 NW2d 67 (1977). We must therefore determine whether the admission of the testimony in the instant case was harmless error beyond a reasonable doubt. In general, the entire trial was replete with references to heroin and heroin addiction. All of the victims, with the exception of the child, were addicts and dealers and had taken heroin shortly before their deaths, as evidenced by blood-test results. Defendant and his accomplice were both heroin addicts, although defendant’s addiction did not come out at trial. The prose cutor’s main witness was an admitted addict and heroin dealer who had been on his way to purchase heroin from one of the victims. Defendant’s witness was an admitted drug dealer and user serving time in prison. That witness also testified on behalf of defendant that defendant had been swindled in a drug deal by a prosecution witness and that defendant had taken back money he had given the witness to purchase drugs. The wife of one of the victims testified that drugs had been taken from the apartment where the killings took place.
Given the quantity of narcotics evidence introduced at trial, some of it by defendant, and the very permeation of this trial with references to narcotics, it is highly unlikely that the arresting officer’s single statement that he saw a syringe in the bedroom occupied by defendant and another was prejudicial to defendant. Defense counsel was able to demonstrate that defendant was not in actual possession of the syringe or any narcotics paraphernalia when he was arrested and there was no evidence introduced at trial that defendant was a heroin addict. We therefore conclude that any error in allowing the statement was harmless beyond a reasonable doubt.
Finally, defendant argues that he is entitled to 414 additional days credit on his sentence for time served in jail prior to sentencing. We agree. The trial court sentenced defendant to four mandatory terms of life imprisonment. The judgment of sentence stated that defendant’s sentence was to begin on the date of sentencing and that he was to receive 2,076 days of credit for time already served. This calculation was erroneous. Defendant was actually entitled to 2,490 days, or 414 more days than he received. We calculate this credit in the following manner: defendant was arrested on February 27, 1976, and was not released on bond. There were six years from the date of arrest until February 27, 1982, or 2,192 days (1976 and 1980 were leap years). There were 298 days from February 27, 1982, until sentencing on December 22, 1982. Adding those 298 days to the 2,192 already computed yields a total of 2,490.
Although defendant is serving mandatory sentences of life imprisonment without parole, the failure to give him the extra credit is not harmless error. The number of days he has already served may affect his eligibility within the prison system for various benefits and may affect his eligibility for a commutation of his sentence by the Governor, however unlikely that possibility may be. We therefore remand to the circuit court in order that the circuit court may file a corrected judgment of sentence in conformity with this opinion.
Affirmed; remanded for correction of sentence. | [
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Talbot, P.J.
At issue is $12.75 million, which represents a portion of the revenues collected from the four-percent general sales tax imposed on the sale of motor vehicles and motor vehicle fuel, parts, and accessories. According to MCL 205.75, a specific portion of the general sales tax revenues is appropriated to the state Comprehensive Transportation Fund (ctf). In fiscal year 2001-2002, former Governor John Engler issued an executive order to reduce state expenditures. The executive order directed the transfer of $12.75 million from the ctf to the state general fund. Plaintiffs and intervening plaintiffs, a group of agencies and authorities who benefit from the general sales tax revenues appropriated to the ctf, challenged the transfer, arguing that the portion of the general sales tax revenues that is appropriated to the CTF is constitutionally dedicated, Const 1963, art 9, § 9, and thus immune from executive order expenditure reduction. The trial court issued an order granting intervening plaintiffs a preliminary injunction enjoining the transfer. We stayed the preliminary injunction and granted defendants leave to appeal to address the issue. We conclude that the amount of general sales tax revenues appropriated to the ctf is not constitutionally dedicated and is thus subject to executive order expenditure reductions. Accordingly, we vacate the preliminary injunction and remand the case for entry of a judgment in defendants’ favor.
I. FACTS AND PROCEDURAL HISTORY
Const 1963, art 9, § 9 governs the spending of the tax revenues collected from the four-percent general sales tax imposed on the sale of motor vehicles and motor vehicle fuel, parts, and accessories. Article 9, § 9 provides that no more than twenty-five percent of the revenues shall be used exclusively for comprehensive transportation purposes. The General Sales Tax Act, MCL 205.51 et seq., details the distribution scheme for the revenues. During fiscal year 2001-2002, MCL 205.75(4) apportioned only 27.9% of the twenty-five percent of the revenues to the CTF. The statute directed the remaining balance of the general sales tax revenues to the state general fund.
At the beginning of the 2001-2002 fiscal year, it became apparent to Governor Engler that actual revenues for the fiscal year would fall below the revenue estimates upon which the appropriations for that period were based. Relying on Const 1963, art 5, § 20, the Governor issued Executive Order No. 2001-9 to reduce state expenditures by $319 million. The expenditure reduction plan called for the transfer of $144 million from different funds to the state general fund.
Plaintiffs, a group of governmental agencies that were affected by the expenditure reductions, filed suit to challenge the constitutionality of the executive order with respect to a number of reductions, including the transfer of $12.75 million in the general sales tax revenues from the CTF to the state general fund. Intervening plaintiffs requested preliminary injunctive relief to prohibit the transfer of the $12.75 million from the ctf, which the trial court granted.
□. STANDARD OF REVIEW
We review a trial court’s decision to grant a preliminary injunction for an abuse of discretion. Alliance for Mentally Ill of Michigan v Dep’t of Community Health, 231 Mich App 647, 661; 588 NW2d 133 (1998). Constitutional questions are reviewed de novo. In re Hawley, 238 Mich App 509, 511; 606 NW2d 50 (1999). An issue of statutory interpretation presents a question of law that is also reviewed de novo. Ronan v Michigan Pub School Employees Retirement Sys, 245 Mich App 645, 648; 629 NW2d 429 (2001). The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Id.
m. ANALYSIS
As outlined above, the issue before us is whether the general sales tax revenues that are appropriated to the CTF are constitutionally dedicated pursuant to Const 1963, art 9, § 9 and thus immune from executive order expenditure reductions.
The Governor’s authority to reduce state expenditures derives from Const 1963, art 5, § 20, which provides:
No appropriation shall be a mandate to spend. The governor, with the approval of the appropriating committees of the house and senate, shall reduce expenditures authorized by appropriations whenever it appears that actual revenues for a fiscal period will fall below the revenue estimates on which appropriations for that period were based. Reductions in expenditures shall be made in accordance with procedures prescribed by law. The governor may not reduce expenditures of the legislative and judicial branches or from funds constitutionally dedicated for specific purposes.
It is undisputed in this case that the Governor followed three of the four directives mandated by art 5, § 20. The parties agree that the Governor followed the appropriate procedures for issuing the executive order pursuant to MCL 18.1391. It is undisputed that it appeared to the Governor that actual revenues for a fiscal period would fall below the revenue estimates on which appropriations for that period were based. Further, the executive order was issued with the concurrence of the appropriations committees of the House and Senate. The dispute in this case is whether the general sales tax revenues apportioned to the CTF are constitutionally dedicated funds.
The revenues collected from the general sales tax are governed by Const 1963, art 9, § 9, which provides in pertinent part:
All specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and to propel aircraft and on registered motor vehicles and aircraft shall, after the payment of necessary collection expenses, be used exclusively for transportation purposes as set forth in this section.
Amount used for transportation purposes. The balance, if any, of the specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and on registered motor vehicles, after the payment of necessary collection expenses; . . . and not more than 25 percent of the general sales taxes, imposed directly or indirectly on fuels sold to propel motor vehicles upon highways, on the sale of motor vehicles, and on the sale of the parts and accessories of motor vehicles, after the payment of necessary collection expenses; shall be used exclusively for the transportation purposes of comprehensive transportation purposes as defined by law. [Emphasis added.]
The above constitutional provision provides for the distribution of revenues from two types of taxes. The first type, specific taxes, is not at issue. It is well-established that specific tax revenues are constitutionally dedicated and protected from expenditure reductions by executive order. See, generally, Co Rd Ass’n of Michigan v Bd of State Canvassers, 407 Mich 101; 282 NW2d 774 (1979); and Southeastern Michigan Transportation Auth v Secretary of State, 104 Mich App 390; 304 NW2d 846 (1981) (SEMTA).
The second type of tax revenues is that collected from the general sales tax. The general sales tax is the four-percent tax imposed on the sale of motor vehicles and the sale of motor vehicle fuel, parts, and accessories. MCL 205.75(4). “]T]he words ‘general sales and use taxes’ appearing in Const 1963, art 9, § 9, [do] not encompass any tax on the use of an article or product but instead were limited to taxes which are complementary to the sales tax,” SEMTA, supra at 401.
The words “general sales taxes” are referenced three times in the pertinent part of art 9, § 9, as emphasized above. In the first paragraph of art 9, § 9, general sales taxes are expressly exempted from the restrictions imposed on the constitutionally dedicated specific taxes. In the beginning of the second pertinent paragraph of art 9, § 9, they are similarly exempted from such restrictions. However, the last part of that paragraph subjects part of the general sales tax revenues to the same restrictions imposed on specific sales tax revenues, as follows:
. . . and not more than 25 percent of the general sales taxes, imposed directly or indirectly on fuels sold to propel motor vehicles upon highways, on the sale of motor vehicles, and on the sale of the parts and accessories of motor vehicles, after the payment of necessary collection expenses; shall be used exclusively for the transportation purposes of comprehensive transportation purposes as defined by law. [Const 1963, art 9, § 9.]
In interpreting a provision of the Michigan Constitution, words of that provision “must be given their ordinary meanings.” Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 155-156; 665 NW2d 452 (2003). According to the plain language of art 9, § 9, no more than twenty-five percent of the general sales taxes “shall” be “exclusively” used for comprehensive transportation purposes, while the remaining balance goes to the state general fund. It is well-established that the use of the word “shall” rather than “may” indicates a mandatory, rather than discretionary, action. Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 318; 596 NW2d 591 (1999). The word “exclusive” means “limited to that which is designated.” Random House Webster’s College Dictionary (1997). Thus, this part of the language of art 9, § 9 provides that once the Legislature apportions a certain percentage not exceeding twenty-five percent of the general sales tax to the CTF, the funds shall be used exclusively for comprehensive transportation services.
We conclude that the language of art 9, § 9 is ambiguous. It unequivocally exempts all general sales taxes from the restrictions imposed on specific taxes but then simultaneously subjects up to twenty-five percent of general sales taxes to the very same restrictions.
The primary source for ascertaining the meaning of the Michigan Constitution is its plain language as understood by its ratifiers when it was adopted. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). When a constitutional provision is subject to alternative interpretations, its intent may be gleaned from the circumstances under which it was written and it may be construed in light of its history, purpose, and surrounding circumstances. Committee for Constitutional Reform v Secretary of State, 425 Mich 336, 340; 389 NW2d 430 (1986); Traverse City School Dist, supra. “[W]herever possible an interpretation that does not create constitutional invalidity is preferred to one that does.” Traverse City School Dist, supra at 406.
The historical development of art 9, § 9 sheds light on the cause of the ambiguity. In 1938, Const 1908, art 10, § 22 was amended. The amendment provided that taxes imposed on the sale of motor vehicles and motor vehicle fuel, except for general sales taxes, were to be used exclusively for highway purposes. In 1963, art 10, § 22 was adopted in Const 1963, art 9, § 9, with only minor revisions. See, generally, Co Rd Ass’n of Michigan, supra. As it then read, the last portion of art 9, § 9, which subjects no more that twenty-five percent of the general sales taxes to the same restrictions as specific sales taxes, did not exist. Rather, that portion was introduced in 1978, when the Legislature approved House Joint Resolution F to amend art 9, § 9. House Joint Resolution F was approved by the voters in the November 1978 election and is the present mandatory language of art 9, § 9. SEMTA, supra at 396. As this Court explained, House Joint Resolution F was developed to allay the fears of specific tax revenues being diverted from their traditional use for conventional highway purposes upon competing demands by proponents of public transportation:
In 1976, when the Legislature broadened the definition of highway purposes to include public transportation, rapid transit vehicles, people movement, and railroad cars — this being permitted under article 9, § 9, as it then read — road contractors, suppliers of road building machinery and equipment, and manufacturers of automobiles and auto parts became alarmed that unless article 9, § 9 was amended massive appropriations for mass transportation would be made from the earmarked taxes which traditionally had been used for building and maintaining highways. Conversely, proponents of mass transportation moved to have even greater appropriations made from the earmarked funds.
By placing a ceiling on the total or aggregate amount of earmarked revenues which could be diverted to public transportation and similar purposes, the fears of the road building and automobile interests could be allayed. This is precisely what House Joint Resolution F did. It placed a top limit on the amount of money which could be diverted from conventional highway purposes to comprehensive highway purposes. The important point, for purposes of this case, is that the competing interests were concerned with total dollar amounts. They compromised their differences by placing limits in aggregate amounts. Based on the circumstances under which House Joint Resolution F was written and approved by the people, we conclude that article 9, § 9 imposes its limitations in the aggregate and that as long as the semta taxes distributed under [MCL 124.416a(3)] do not exceed 10% of all of the constitutionally earmarked taxes on motor vehicles and motor fuels, § 16a(3) is not unconstitutional. In our opinion, Const 1963, art 9, § 9, as amended, does not require that 90% of each tax governed by that section be spent for conventional highway purposes. [SEMTA, supra at 403-404.]
The circumstances that led to the amendment of art 9, § 9 in 1978 indicate that specific sales taxes and general sales taxes are not intended to be similarly treated but are intended to remain as separate and as apart as they had before the 1978 amendment. This is evident in the different distribution schemes for the two types of taxes. The more flexible distribution scheme of the general sales taxes that allows for legislative discretion is in sharp contrast to the distribution scheme of the specific taxes that allows no room for legislative action. Further, revenues from the special taxes are not allowed to flow into the state general fund as are the revenues from the general sales taxes. Rather, only the balance of specific sales taxes, if any, flow into the ctf for conventional use. To accommodate the interests of public transportation proponents, the 1978 amendment merely left to the Legislature the discretion to determine the amount of general sales taxes to be appropriated to the CTF, the only restriction being that such allocation does not exceed twenty-five percent of the entire revenue from the general sales taxes. Thus, art 9, § 9 does not similarly treat the specific sales tax revenues and the general sales tax revenues. Contrary to intervening plaintiffs’ argument on appeal, the Legislature may decide to appropriate nothing from the general sales tax revenues to the CTF and still comply with the plain language of Const 1963, art 9, § 9.
Accordingly, in light of the language and history of Const 1963, art 9, § 9 and the circumstances surrounding its amendment in 1978, we disagree with intervening plaintiffs’ argument that art 9, § 9 is a self-executing appropriation of funds with respect to general sales taxes. Only funds governed by self-execut ing provisions are entitled to the status of “constitutionally dedicated funds” exempt from the Governor’s authority under Const 1963, art 5, § 20. A constitutional provision is not self-executing, unless it alters the rule that legislative action is necessary to appropriate funds. Musselman v Governor, 448 Mich 503, 523; 533 NW2d 237 (1995).
The fact that legislative action is necessary to appropriate funds to the CTF is demonstrated by the language of MCL 205.75(4), which appropriates a portion of the general sales tax at issue for transportation purposes. During fiscal year 2001-2002, MCL 205.75(4) clearly provided that a least 29.7 percent of twenty-five percent of the general sales taxes must be allocated to the ctf while the remaining balance goes to the state general fund:
For the fiscal year ending September 30, 1988 and each fiscal year ending after September 30, 1988, of the 25% of the collections of the general sales tax imposed at a rate of 4% directly or indirectly on fuels sold to propel motor vehicles upon highways, on the sale of motor vehicles, and on the sale of the parts and accessories of motor vehicles by new and used car businesses, used car businesses, accessory dealer businesses, and gasoline station businesses as classified by the department of treasury remaining after the allocations and distributions are made pursuant to subsections (2) and (3), the following amounts shall be deposited each year into the respective funds:
(a) Not less than 27.9% to the comprehensive transportation fund. However, for the fiscal year ending September 30, 1991 only, the amount to be deposited in the comprehensive transportation fund shall be reduced by $1,500,000.00.
(b) The balance to the state general fund.
Because MCL 205.75 is generally not limited to a particular fiscal year, the statute is characterized as a standing appropriation. Our Supreme Court has previously considered and rejected the argument that standing appropriations such as MCL 205.75 are exempt from the Governor’s authority under Const 1963, art 5, § 20. See Mich Ass’n of Cos v Dep’t of Mgt & Budget, 418 Mich 667, 675-676; 345 NW2d 584 (1984), and Oakland Schools Bd of Ed v Superintendent of Pub Instruction, 392 Mich 613, 620-621; 221 NW2d 345 (1974). The Court concluded that accepting the interpretation the intervening plaintiffs advocated in that case, similar to that argued by intervening plaintiffs in this case,
would violate the spirit if not the letter of these constitutional provisions. The Legislature would be, in effect, appropriating in advance of its ability to accurately forecast available revenues and would thereby be unable to match revenue with appropriations as required by Const 1963, art 4, § 31. In addition, such prospective appropriations would force the Governor to approve or veto the expenditure far in advance of his ability to assess the fiscal needs of the state. [Oakland Schools Bd of Ed, supra at 621; see also Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 465, 501-502; 242 NW2d 3 (1976).]
In light of the above analysis, we conclude that the general sales tax revenues at issue are not constitutionally dedicated funds. We are unable to find anything in the legislative history of the 1978 amendment, or the authority cited by intervening plaintiffs or amici curiae to cause us to reach a different conclu sion. Rather, a different conclusion would run afoul with the language of art 9, § 9 and the circumstances of the 1978 amendment. Accordingly, the general sales tax revenues within the ctf are subject to executive order expenditure reductions.
IV. APPLICATION
In deciding whether to grant a preliminary injunction, a court must consider (1) the likelihood that the party seeking the preliminary injunction will prevail on the merits, (2) the danger that party will suffer irreparable harm if the injunction is not issued, (3) the risk that the party would be harmed more by the absence of an injunction than the opposing party would be by the granting of the injunction, and (4) the harm to the public interest if the injunction is issued. Fruehauf Trailer Corp v Hagelthorn, 208 Mich App 447, 449; 528 NW2d 778 (1995).
Intervening plaintiffs cannot establish the likelihood that they would prevail on the merits for purposes of the preliminary injunction at issue. The executive order distributed the general sales tax as follows:
Not less than 27.9% [of 25% of the general sales tax] to the comprehensive transportation fund. . . . FOR the fiscal YEAR ENDING SEPTEMBER 30, 2002, THE AMOUNT TO BE DEPOSITED IN THE COMPREHENSIVE TRANSPORTATION FUND SHALL BE REDUCED BY $12,750,000.00 AND THAT AMOUNT SHALL BE TRANSFERRED TO THE UNAPPROPRIATED BALANCE OF THE GENERAL FUND FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2002. THE FOLLOWING COMPREHENSIVE TRANSPORTATION FUND ACCOUNTS ARE REDUCED BY $12,750,000.00 FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2002 .... [Emphasis in original.]
Thus, the executive order directed a $12.75 million reduction in the amount of general sales tax revenue allocated to the ctf for fiscal year 2001-2002 from the general sales tax imposed on the sale of motor vehicles, and the sale of motor vehicle fuel, parts, and accessories. As previously discussed, the general sales tax revenues appropriated to the ctf are not constitutionally dedicated. Accordingly, they are subject to the power of the Governor to reduce expenditures as provided for by Const 1963, art 5, § 20.
Intervening plaintiffs argue that the executive order includes language that purports to amend MCL 205.75, in violation of the Governor’s authority under MCL 18.1391. An executive order is entitled to the same presumption of constitutionality that a statute enjoys and, thus, should be construed as constitutional unless its unconstitutionality is clearly apparent. Straus v Governor, 459 Mich 526, 534; 592 NW2d 53 (1999). If a portion of an act is invalid, a court should enforce the remainder to the extent that it can be given effect consistent with the legislative intent underlying the act. Michigan State Employees Ass’n v Liquor Control Comm, 232 Mich App 456, 466; 591 NW2d 353 (1998).
The executive order expressly includes language that purports to amend MCL 205.75 to allow the expenditure reduction of $12.75 million. Even assuming that the Governor acted beyond his constitutional authority, this is immaterial because the pertinent language can be severed while leaving intact the critical language that directs the permissible one-time reduction in funding for the CTF. Notably, the only “amendment” that the executive order purported to make to MCL 205.75 was to accomplish this permissible reduc tion. Given the obligation to construe the executive order as constitutional if possible, it would make no sense to invalidate the entire provision merely because it may have been inartfully phrased. Thus, we conclude that this does not invalidate the reductions at issue.
We conclude that the trial court abused its discretion when it determined that it was likely that intervening plaintiffs would prevail on the merits. We reverse the trial court’s preliminary injunction. Further, the parties have argued the merits of their position on this question of law before this Court. To conserve judicial resources and save the parties the expense of unnecessary litigation on remand, MCR 7.216(A)(7), we direct the trial court on remand to enter a judgment on the merits of this case. In light of our conclusion, we need not address the remaining issues on appeal, which relate to the three other factors to be considered by a trial court in determining whether to issue an order for a preliminary injunction.
The trial court’s order granting a preliminary injunction is reversed. We remand this case and direct the trial court to enter a judgment in favor of defendants on the merits. Because the subject of this appeal is a question of public interest, no costs are awarded. We do not retain jurisdiction.
The ctf was created by 1982 PA 438 to receive the tax revenues.
This appeal is submitted together with a separate appeal from defendants related to one of plaintiffs’ claims in this case. Co Rd Ass’n of Michigan v Governor, unpublished opinion per curiam of the Court of Appeals, issued January 13, 2004 (Docket No. 245931).
MCL 205.75(4) was subsequently amended by 2003 PA 139.
MCL 205.75 has been amended several times since the time of the decisions in Mich Ass’n of Cos, supra, and Oakland Schools Bd of Ed, supra. The amendments do not affect our decision. | [
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Saad, J.
The township of Hamburg appeals an order granting summary disposition to the city of Brighton and intervening plaintiffs, Michigan Attorney General and Department of Environmental Quality (deq). We affirm.
I. NATURE OF THE CASE
This case presents the question of which level of government, state or local, has the authority to determine the permissible level of chemicals to be deposited in our state’s waters, here into South Ore Lake, by a government-licensed wastewater treatment plant. Brighton sought to expand its wastewater treatment plant, located in Hamburg. After it obtained a permit for the expansion from the DEQ, Brighton filed suit against Hamburg because Hamburg refused to accept Brighton’s site plan application pursuant to a township moratorium on wastewater treatment plants. Thereafter, Hamburg adopted an ordinance that set stricter limits on the discharge of certain nutrients than the DEQ permit. Brighton claimed that Hamburg’s discharge limits are preempted by state law and the trial court ultimately agreed.
Hamburg seeks to impose what it regards as more rigorous standards for water pollution control in its jurisdiction and argues that it has the right to do so to protect the health and safety of its residents. And, while Hamburg concedes that the Legislature vested substantial regulatory powers in the DEQ, it nonetheless insists that these powers are neither exclusive nor preemptive primarily because the statute does not expressly mandate preemption. Brighton and the DEQ contend, however, that under the seminal case of People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977), Hamburg’s local ordinance is preempted as a matter of law by the Natural Resources and Environmental Protection Act (nrepa), MCL 324.101 et seq. The trial court agreed with this argument, and we agree with the trial court’s conclusion and rationale.
Under Michigan law, the comprehensiveness and pervasiveness of the state regulatory scheme, coupled with the nature of the regulated subjected matter, water pollution, mandate preemption. Exclusive statewide regulation is vital to achieve the uniformity and consistency necessary to effectuate our state’s public policy of maximum, effective protection of our state’s water resources. On this point, we quote with approval the deq’s brief:
In this case, the regulation of point source discharges and more importantly, the establishment of discharge effluent limits demands state-wide uniformity in order to allow the mdeq to protect the waters of the state. Allowing each local unit of government consisting of a village, city, township, or county, to establish their [sic] own discharge effluent limits for discharges passing through each unit of government via its waterways, would undoubtedly create confusion where one discharger may be in violation of a city’s discharge effluent limits but not in violation of the discharge effluent limits established by the county in which the city is located. Part 31 of the nrepa grants to the mdeq the exclusive authority to protect the waters of the state which requires statewide regulation by the mdeq. Because the surface waters of this state pass through numerous local units of government, the Legislature’s enactment of Part 31 of nrepa can only be interpreted by this Court that Part 31 of NREPA sets forth a pervasive state-wide regulatory scheme which requires state-wide uniformity.
II. FACTS AND PROCEDURAL HISTORY
This case arises out of Brighton’s application to the DEQ to amend its existing discharge permit to expand the capacity of its wastewater treatment plant from 1.5 million gallons a day to three million gallons a day. In August 1999, after an exhaustive review and analysis, the deq issued a revised National Pollution Discharge Elimination Permit (npdep), with an effective date of November 1, 1999. But, in January 1999, and before the revised permit was issued, Hamburg filed with the DEQ objections under the Administrative Procedures Act (apa), 1969 PA 306, as amended, MCL 24.201 et seq.
Pursuant to the apa, a hearing was held in May of 2000 to hear Hamburg’s objections. The hearing referee held in favor of Brighton, and thereafter, the DEQ adopted the hearing referee’s findings. To prevent the expansion of the wastewater treatment plant, however, Hamburg also passed an ordinance. Section 5 of Ordinance 69 conflicts with the deq’s revised permit regarding the permissible level of chemicals to be discharged into South Ore Lake. That is, the regulations imposed by Hamburg’s ordinance are more stringent than those established by the deq’s revised permit. Specifically, § 5 of the ordinance “prohibits an expansion or increase of surface water discharge containing nitrate nitrogen in excess of 200 parts per billion (micrograms per liter), or containing phosphorous in excess of 20 parts per billion (micrograms per liter) into waters located in and/or flowing through the Township.”
Ultimately, motions for summary disposition were filed in the circuit court and, on May 1, 2001, Judge Daniel Burress, in a comprehensive and well-reasoned opinion, granted Brighton’s motion for summary disposition on the grounds that state law preempts Hamburg’s ordinance.
m. ANALYSIS
Our review of the trial court’s preemption ruling is governed by principles articulated in People v Llewellyn. In Llewellyn, our Court said:
A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation. [Llewellyn, supra at 322.]
Here, the ordinance may, in fact, be in “direct conflict” with the state statutory scheme. Ordinance 69 clearly interferes with the deq’s ability to enforce NREPA because, if all eighty-three counties and their numerous townships and municipalities implemented their own water quality standards, there would be a patchwork of conflicting and unworkable standards throughout the state that would impede the deq’s ability to maintain uniform and consistent regulation of water quality. However, we need not answer the narrow question whether the ordinance is in direct conflict with the state’s statutory scheme — as opposed to simply being in conflict with the regulations promulgated by the deq. Rather, we find preemption on the alternative basis set forth in Llewellyn. Using this analysis, we find that the ordinance is preempted under the second part of the Llewellyn test because (1) the comprehensive scheme set forth in part 31 of nrepa clearly occupies the field of regulation that the municipality seeks to enter and (2) the regulated subject matter demands exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest.
Under the four-part test articulated in Llewellyn, we first consider whether the state law expressly provides that its regulation will be exclusive because, if so, there would clearly be no doubt of preemption. Here, there is no express preemption. Also, under Llewellyn, we must ask if preemption of the field of regulation may be implied upon an examination of the legislative history. Because our review of the legislative history of nrepa leads us to conclude that it does not conclusively answer this question, we turn to parts 3 and 4 of the Llewellyn test to determine if the statutory scheme preempts the local ordinance.
Llewellyn provides that the comprehensiveness of the statutory scheme and the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state’s interest. Here, a close examination of nrepa and those preemption cases that address similar areas of environmental regulation compel the conclusion that part 31 of nrepa clearly preempts Hamburg’s local ordinance.
A. COMPREHENSIVE AND PERVASIVE REGULATORY SCHEME
A review of part 31 of nrepa reveals that, through this enactment, the Legislature established a pervasive and detailed state regulatory scheme covering point source discharges and effluent limits. This far-reaching legislation demonstrates the Legislature’s intent to achieve uniformity and to serve the public policy interest of protecting the waters of our state.
Chapter 1 of part 31, which considers point source pollution control, states in pertinent part:
(1) The department shall protect and conserve the water resources of the state and shall have control of the pollution of surface or underground waters of the state and the Great Lakes, which are or may be affected by waste or disposal of any person. . . . The department shall enforce this part and shall promulgate rules as it considers necessary to carry out its duties under this part.
(2) The department may promulgate rules and take other actions as may be necessary to comply with the federal water pollution control act... . [MCL 324.3103.]
MCL 324.3106 grants the DEQ authority to establish pollution control standards and to issue permits for point source discharges into the waters of the state:
The department shall establish pollution standards for lakes, rivers, streams, and other waters of the state in relation to the public use to which they are or may be put, as it considers necessary. The department shall issue permits that will assure compliance with state standards to regulate municipal, industrial, and commercial discharges or storage of any substance that may affect the quality of the waters of the state. The department may set permit restrictions that will assure compliance with applicable federal law and regulations. . . . The department may promulgate rules and issue orders restricting the polluting content of any waste material or polluting substance discharged or sought to be discharged into any lake, river, stream, or other waters of the state. The department shall take all appropriate steps to prevent any pollution the department considers to be unreasonable and against public interest in view of the existing conditions in any lake, river, stream, or other waters of the state.
Further, MCL 324.3109 provides:
(1) A person shall not directly or indirectly discharge into the waters of the state a substance that is or may become injurious to any of the following:
(a) To the public health, safety, or welfare.
(b) To domestic, commercial, industrial, agricultural, recreational, or other uses that are being made or may be made of such waters.
(c) To the value or utility of riparian lands.
(d) To livestock, wild animals, birds, fish, aquatic life, or plants or to the growth, propagation, or the growth or propagation thereof be prevented or injuriously affected; or whereby the value of fish and game is or may be destroyed or impaired.
(2) The discharge of any raw sewage of human origin, directly or indirectly, into any of the waters of the state shall be considered prima facie evidence of a violation of this part by the municipality in which the discharge originated unless the discharge is permitted by an order or rule of the department. If the discharge is not the subject of a valid permit issued by the department, a municipality responsible for the discharge may be subject to the remedies provided in section 3115. If the discharge is the subject of a valid permit issued by the department pursuant to section 3112, and is in violation of that permit, a municipality responsible for the discharge is subject to the penalties prescribed in section 3115.
The above-quoted provisions grant the DEQ substantial powers to limit water pollution. Moreover, the deq is the only agency authorized to grant a discharge permit for waste effluent into the waters of the state, and any person who desires to discharge or dispose of waste or operate a wastewater treatment plant must apply with and obtain a permit from the deq. MCL 324.3112(1). As further evidence of the deq’s broad powers regarding water pollution, the Legislature expressly gave to the deq exclusive criminal and civil enforcement authority. Also, nrepa grants to the deq power to seek injunctive relief for any violations of NREPA or for any violation of a permit issued by the deq under nrepa.
A careful review of these and other statutory provisions of nrepa lead us to conclude that the Legislature impliedly intended to preempt the field of regulation regarding discharge of waste into the waters of this state and the establishment of discharge effluent limits. Plainly, our Legislature enacted a pervasive state regulatory scheme with the deq having sole responsibility for regulation of point source discharges into the waters of our state.
B. SUBJECT MATTER OF REGULATION
The subject matter of the regulation, the control of pollution entering the state’s inter-connected waterways, clearly calls for a statewide, uniform system of regulation. The state’s ability to control water pollution statewide would be substantially undermined by a Balkanized patchwork of inconsistent local regulations. As intervener, the deq correctly points out in its brief:
The state has an interest in insuring that all the waste-water treatment plants located within the state are regulated in an even-handed fashion. Further, in order to serve the state’s interest in achieving clean water bodies flowing through its borders, it is necessary for the state to achieve uniformity.
The Legislature recognizes this need for uniformity by mandating that the DEQ protect all the waters of this state. Again, MCL 324.3103(1) grants the DEQ the duty and authority to “protect and conserve the water resources of the state . . . .” The Legislature vested in the deq this important job of preserving our state’s valuable water supply with the imperative that the deq control the pollution of all the “waters of the state and the Great Lakes.” Id. And, our Legislature broadly defined the interconnectedness of the “[w]aters of the state” as “ground waters, lakes, rivers and streams and all other watercourses and waters within the jurisdiction of this state . . . .” MCL 324.3101(f). Again, when specifically addressing pollution standards, the Legislature made clear its understanding that the subject matter warranted uniform, statewide regulation:
The . . . [deq] . . . shall establish pollution standards for lakes, rivers, streams, and other waters of the state in relation to the public use to which they are or may be put, as it considers necessary. [MCL 324.3106.]
Consistently with the fact that our state’s waters are connected and flow through many and varied localities, the Legislature invested in one agency, the DEQ, the public trust of protecting “all” our state’s waters, which protection can only be accomplished by a statewide, consistent, and coherent uniform policy. “The [deq] shall take all appropriate steps to prevent any pollution the [deq] considers to be unreasonable and against public interest in view of the existing conditions in any lake, river, stream, or other waters of the state.” MCL 324.3106 (emphasis added).
Again, to ensure uniformity and consistency, the Legislature specifically prohibits any person or entity from discharging any waste effluent (the precise subject in issue here) into any waters of this state unless the deq grants permission to do so. MCL 324.3112(i).
Moreover, any person, including a city or township, that is aggrieved by the deq’s issuance of a permit may, as here, request and have a contested hearing under the APA. MCL 324.3112(3). This procedure for local input by way of contested hearings and the ultimate adoption or rejection by the head of the deq ensures uniformity and coherence of a statewide policy to protect our state’s water resources.
Although our review of Michigan case law uncovered no published decisions that address the specific question whether the deq’s source point discharge regulations preempt a more restrictive local ordinance, we note that our decisions applying Llewellyn to other environmental law cases reinforce our conclusion that nrepa preempts Hamburg’s ordinance. Relying on the Llewellyn test, our Court has held that state statutes that regulate solid waste disposal preempt local laws because the Legislature provided a comprehensive and pervasive regulatory scheme and the subject matter to be regulated calls for uniformity and consistency throughout the state. Southeastern Oakland Co Incinerator Auth v Avon Twp, 144 Mich App 39; 372 NW2d 678 (1985). As this Court observed, “[a]s with hazardous wastes, the management and disposal of solid wastes is clearly an area which demands uniform statewide treatment.” Id. at 45.
Also, in Cascade Twp v Cascade Resource Recovery, Inc, 118 Mich App 580; 325 NW2d 500 (1982), remanded 422 Mich 882 (1985), on remand lower court reversed and remanded unpublished opinion per curiam of the Court of Appeals, issued December 12, 1986 (Docket No. 84946), mod after remand 428 Mich 894 (1987), this Court held that statutes that regulate hazardous waste disposal preempt local laws because the statute expressly preempts local laws, but also on the alternative grounds that the pervasive and comprehensive scheme and the subject matter mandate preemption. The Court stated that, “[t]he comprehensiveness of this statutory scheme indicates that the Legislature has preempted the field of hazardous waste management.” Id. at 588.
In determining preemption applicable in Cascade, our Court also concluded that the subject matter regulated requires statewide treatment:
Lastly, the safe management and disposal of hazardous wastes is clearly an area which demands uniform, statewide treatment. . . . The Legislature recognized that hazardous waste disposal areas evoke such strong emotions in localities that the decision as to where a landfill should go should not be given to the locality, which is far more swayed by parochial interests than the state. The Legislature, instead, gave the power to a centralized decision maker who could act uniformly and provide the most effective means of regulating wastes. [Id. at 590-591]
Similarly, here, the effective regulation of water pollution requires statewide treatment.
Recognizing this imperative, our Legislature enacted a broad, detailed, and multifaceted legislative scheme to manage “point source pollution control.” Clearly, if each municipality, township, and county were able to establish its own effluent discharge limitations, as urged by defendant, “a great deal of uncertainty and confusion would be created.” Llewellyn, supra at 327. As aptly explained by the deq in its appeal brief:
The regulation of the discharge of waste into the waters of the state clearly demands exclusive state regulation requiring statewide uniformity in standards necessary to serve the state’s purposes and interests. To allow local units of government such as townships, counties or cities to enact discharge limits concerning discharges into waters located within or passing through these jurisdictions, would result in statewide confusion concerning conflicting discharge limits. Such a regulatory scheme would create a crazy quilt patchwork scheme of regulation under which certain dischargers could be found to violate certain discharge limits enacted by certain local units of government and not violating other local units of government’s discharge limits. Every discharger in the State of Michigan must be regulated by a uniform, statewide scheme of regulation in order to be able to know, in advance, what discharge limits it will need to comply with statewide.
IV. CONCLUSION
For all the foregoing reasons, we hold that part 31 of nrepa preempts § 5 of Hamburg’s Ordinance No. 69, and therefore affirm the trial court’s preemption ruling.
The DEQ promulgated administrative rules requiring permits to specify limitations on wastewater constituents, which must, at minimum, ensure compliance with federal standards and any more stringent limitations deemed necessary by the DEQ. 1999 AC, R 323.2137, 323.2142. Here, Brighton’s deq permit does not limit one nutrient that Hamburg’s ordinance restricts, nitrate nitrogen, and permits a greater concentration of the second nutrient, phosphorous.
Though not necessarily germane to the narrow legal question of preemption, we note that Hamburg has sought stays to halt the construction of Brighton’s wastewater treatment plant before the trial court and before this Court. Hamburg’s requests were denied by both courts. Further, Brighton has sold bonds to fund the construction and expansion of the wastewater treatment plant in the amount of $8,950,000 and it executed a contract for $7,457,000 with a contractor for the expansion. Moreover, at the time of argument before this Court, the expansion had been substantially completed.
This Court quoted the Llewellyn test in Southeastern Oakland Co Incinerator Auth v Avon Twp, 144 Mich App 39, 43-44, 372 NW2d 678 (1985):
“In making the determination that the state has thus pre-empted the field of regulation which the city seeks to enter in this case, we look to certain guidelines.
“First, where the state law expressly provides that the state’s authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted.
“Second, pre-emption of a field of regulation may be implied upon an examination of legislative history.
“Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption.....
“Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest.” (Footnotes and citations omitted.) [Quoting Llewellyn, supra at 323-324.]
MCL 324.3112 provides, in part:
(1) A person shall not discharge any waste or waste effluent into the waters of this state unless the person is in possession of a valid permit from the department. Compliance with the terms of an outstanding order of determination or final order of determination or stipulation with the former water resources commission that is in effect on April 15, 1973, shall be considered to meet the requirements of this section until the department issues its permit. The department shall condition the continued validity of a permit upon the permittee’s meeting the effluent requirements that the department considers necessary to prevent unlawful pollution by the dates that the department considers to be reasonable and necessary and to assure compliance with applicable federal law and regulations. If the department finds that the terms of a permit have been, are being, or may be violated, it may modify, suspend, or revoke the permit or grant the permittee a reasonable period of time in which to comply with the permit. The department may reissue a revoked permit upon a showing satisfactory to the department that the permittee has corrected the violation. A person who has had a permit revoked may apply for a new permit.
(2) If the department determines that a person is causing or is about to cause unlawful pollution of the waters of this state, the department may notify the alleged offender of its determination and enter an order requiring the person to abate the pollution or refer the matter to the attorney general for legal action, or both.
Under MCL 324.301(g), “ ‘Person’ means an individual, partnership, corporation, association, governmental entity, or other legal entity.”
Here, the October 30, 2000, decision of the hearing referee after a lengthy trial was adopted and incorporated on December 1, 2000, by Russell J. Harding, Director of the deq.
See nrepa, art II, ch 1, part 31, MCL 324.3101 et seq.
We also affirm the trial court’s ruling that the intergovernmental agreement between the parties is binding and the agreement contemplates the expansion of the wastewater treatment plant. Contrary to Hamburg’s assertions, the agreement does not expressly state that Brighton will build only a 1.52 million gallon facility. The agreement actually contemplates expansion because it grants Brighton the authority to manage the facility, requires it to ensure that it does not exceed design capacities, and does not expressly prohibit Brighton from expanding the design capacity. For these reasons, Hamburg was required to follow the agreement and it could not impose additional requirements on Brighton, including the ordinance requiring a franchise agreement. | [
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Markey, J.
Plaintiff, a tax purchaser of certain vacant property in Ogemaw County, appeals by right the trial court’s order granting defendant Michael L. Bailey and intervening defendants Ralph Hamilton, Sr., and Lona Hamilton summary disposition under MCR 2.116(C) (10) on plaintiff’s complaint to quiet title. The trial court also declared plaintiff’s tax deed void and ordered the property redeemed and recon-veyed to Bailey and the Hamiltons pursuant to the Hamiltons’ tender of the statutory redemption amount. We conclude that the trial court erred by applying principles of equity to overcome the plain language of the relevant document that discharged a mortgage held by defendant Bond Corporation, extinguishing its right of redemption. Therefore, we reverse and remand for entry of summary disposition for plaintiff.
I. SUMMARY OF MATERIAL FACTS AND PROCEEDINGS
This is not the first time this case has been before this Court. In Burkhart v Bailey, unpublished opinion per curiam of the Court of Appeals, issued September 21, 2001 (Docket No. 223706), we affirmed in part and reversed in part the trial court’s grant of summary disposition to Bailey and Bond. We repeat some of the historical facts set forth in our first opinion.
Bailey owned vacant properly secured by a mortgage held by Bond Corporation. Bailey failed to pay property taxes and, in May 1997, Burkhardt purchased the properly at a tax sale. On August 31, 1998, Burkhardt obtained a tax deed to the property. Burkhardt served Bailey with notice of reconveyance; however, Bailey took no steps to redeem the property within six months after receiving the notice. See MCL 211.73a; MCL 211.140(1).
On July 7, 1999, Burkhardt filed a complaint seeking to quiet title to the property, seeking to reform the mortgage, or in the alternative to have the mortgage declared satisfied. Bailey did not answer the complaint, and was defaulted. Bond Corporation moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that Burkhardt’s failure to provide it with the required notice rendered the tax deed void. The trial court granted summary disposition in favor of both Bond Corporation and Bailey, and declared Burkhardt’s tax deed void.
We noted that under MCL 211.73a plaintiff would be barred from asserting title if he failed to make a bona fide effort to serve the required notice of the tax sale and the right of reconveyance upon payment of the applicable redemption amount. We continued:
After purchasing the property and obtaining a tax deed, Burkhardt served the required notice on Bailey but did not serve notice on Bond Corporation, notwithstanding the fact that the mortgagee named in an undischarged, recorded mortgage is entitled to notice. MCL 211.140(l)(d). At the time he filed the action to quiet title, approximately four years remained for Burkhardt to give the required notice to Bond Corporation. Burkhardt’s action was in effect premature; however, he was not yet precluded from claiming ownership of the property under the tax deed because five years had not yet passed without notice being given to all parties entitled to receive notice.
Accordingly, this Court held that the trial court correctly granted Bond summary disposition but erred by declaring plaintiffs tax deed void. But added, “[i]f Burkhardt fails to serve the required notice on Bond Corporation within the specified five-year period, he will be barred from claiming title to the property under the tax deed.” We also held that
the trial court erred by granting summary disposition in favor of Bailey. Bailey took no steps to redeem the property within six months of receiving the notice of redemption. He lost the opportunity to redeem the property when he did not act in a timely manner to do so, and was not entitled to rely on Bond Corporation’s argument that it did not receive proper notice.
The trial court entered its first order in this matter on September 16, 1999. Later in 1999, while the appeal of that order was still pending, the Hamiltons, through their daughter-in-law Shelley Hamilton, who owned a mortgage company, paid the mortgage debt Bailey owed to Bond. The Hamiltons were aware of the pending appeal; Bailey is Lona Hamilton’s brother. Lona and Ralph Hamilton (the Hamiltons) aver they asked Shelley Hamilton to help them assume Bond’s position and rights as mortgagee. Bailey also averred that he believed the Hamiltons intended to “take over” Bond’s position as primary mortgagee. To accomplish this, the Hamiltons loaned Bailey $25,000, of which $10,000 was used to pay Bailey’s debt to Bond. On December 2, 1999, Bailey granted the Hamiltons a $25,000 mortgage on the subject property. The Hamiltons never engaged in any direct negotiations with Bond. Likewise, Bailey averred he had no contact with Bond regarding the payoff of his debt.
In an affidavit, Shelley Hamilton testified that the Hamiltons “intended to assume Bond’s position as first mortgagee,” and she believed that she structured the transaction to accomplish that intent. But she also averred that she conducted the transactions with Bond by mail. She further averred that it “was not until after I had received the new mortgage from Bailey to Hamilton [sic], and disbursed the funds to Bond Corporation, that I forwarded the new mortgage and the executed discharge of Bond’s mortgage, together, for recording.” (Emphasis added.) The discharge of Bailey’s mortgage to Bond was recorded on January 14, 2000, and provides:
DISCHARGE OF MORTGAGE
Known all men by these presents, That Bond Corporation, a Michigan Corporation, whose address is 2007 Eastern, S.E., Grand Rapids, Michigan 49507 does hereby certify, That a certain Mortgage dated July 24, 1992, made and executed by Michael L. Bailey and Patty J. Bailey of the first part, to Bond Corporation of the second part, and recorded in the office of the Ogemaw County Register of Deeds in Liber 383 Page 443-448 on August 3, 1992 is fully paid, satisfied and discharged.
Dated this 15th day of November, 1999.
On September 21, 2001, this Court affirmed in part and reversed in part the trial court’s first order in favor of defendants. In the trial court, on remand, plaintiff presented a proposed order setting aside the summary disposition order, reinstating the tax deed, dismissing Bond without prejudice, and issuing a judgment of quiet title against Bailey. The Hamiltons moved to intervene and objected to plaintiff’s proposed order. After a December 14, 2001, hearing, the trial court declined to adopt plaintiff’s proposed order and instead merely vacated the portions of its prior decision granting summary disposition to Bailey and finding the tax deed void. The trial court ordered that all other aspects of the earlier decision remained in effect.
Meanwhile, Ralph Hamilton requested and received from Bond an assignment of its rights and a quitclaim deed. Hamilton averred that these documents did not create new rights, “but only reflected my intent relative to the transaction.” (Emphasis added.) Bond’s quitclaim deed, dated November 28, 2001, recites it is “[f]or full consideration of funds advanced by [the Hamiltons] to discharge [Bailey’s] mortgage . . . .” (Emphasis added.)
Bond’s “assignment” to the Hamiltons, also dated November 28, 2001, provides, in pertinent part:
It is the intent of this document to assign and convey any and all interest of the Assignor, if any, in the described premises, including, but not limited to, any and all rights, if any, as Mortgagee, under or through a certain Mortgage dated July 24, 1992, made and executed by Michael L. Bailey and Patty J. Bailey to Bond Corporation ....
This assignment and conveyance is made, expressly, without warranty or representation on behalf of Bond Corporation as to the existence of any particular rights.
This assignment is made by Bond Corporation, a Michigan corporation, upon the request of Ralph Hamilton, Sr. and Lona Hamilton, and upon a representation of said persons that the funds paid to Bond Corporation to discharge the above-referenced mortgage were advanced by Ralph Hamilton, Sr. and Lona Hamilton, pursuant to their understanding that they were accepting and assuming its position as primary mortgagee for said premises. [Emphasis added.]
In January 2002, the trial court granted the Hamiltons’ motion to intervene. In March 2002, the Hamiltons tendered a reconveyance payment of $2,493.51 to the register of deeds, which the trial court ordered held by the county treasurer. Later, the Hamiltons moved for summary disposition under MCR 2.116(C)(10). At a hearing on the motion on July 11, 2002, the trial court found that Bond’s interest in the subject property had been conveyed to or assumed by the Hamiltons who had advanced “purchase money” to pay Bailey’s debt to Bond. The trial court reasoned that plaintiff had never given Bond notice of the right to reconveyance; therefore, Bond could have redeemed the property for the benefit of itself and all other holders of interests in the property, including Bailey. In essence, Bond or Bond’s successors in interest, the Hamiltons, could redeem the property because plaintiff had not given Bond statutory notice and, upon redemption, Bailey’s contingent interest would be revived. The trial court relied heavily on the fact that Bond’s mortgage discharge and the new mortgage from Bailey to the Hamiltons were recorded on the same day. Thus, the trial court viewed the payoff to Bond and the new mortgage as one transaction. Further, the trial court concluded that although it would have been better if the documents indicated Bond assigned its rights, to rule for plaintiff would give him a windfall and cut off the Hamiltons. The trial court believed that that result would be inequitable and elevate form over substance. Accordingly, the trial court granted Bailey and the Hamiltons summary disposition under MCR 2.116(CX10).
The trial court entered its order on August 8, 2002, ruling that the Hamiltons, “as the legal and equitable assignees of Bond Corporation, as mortgagees, were and are entitled to a notice of reconveyance and the opportunity to redeem within the period permitted by statute.” The Court further ordered that the county treasurer pay the redemption amount deposited by the Hamiltons to plaintiff upon compliance with all statutory requirements. The order also dismissed with prejudice plaintiffs complaint to quiet title.
Plaintiff moved for a stay pending appeal, but the trial court only granted an order staying payment of the redemption money to plaintiff. Plaintiff filed a notice of lis pendens to otherwise preserve his interest in the property.
We summarize the three issues plaintiff raises on appeal. First, has Bailey forever lost all interest in the property under the General Property Tax Act, MCL 211.1 et seq., or could Bailey’s interest in the property be revived if redeemed by a proper party. Second, was Bond’s right to notice of reconveyance, and, therefore, Bond’s right to redeem, extinguished when its discharge of mortgage was recorded. Third, did the Hamiltons succeed to Bond’s right of redemption, and if not, could the trial court nevertheless grant the Hamiltons equitable relief.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision to grant summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A party’s claim to summary disposition based on MCR 2.116(C)(10) tests the factual sufficiency of the complaint and must be supported or opposed by affidavits, depositions, admissions, or other documentary evidence. Id.; Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999). The trial court must consider the submitted evidence in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). Where the proffered evidence fails to establish that a disputed material issue of fact remains for trial, summary disposition is properly granted to the party so entitled as a matter of law. MCR 2.116(C)(10), (G)(4), and (I)(l), (2); Maiden, supra; Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d 685 (1999).
Likewise, both the interpretation of a statute and a contract are questions of law this Court reviews de novo. McKusick v Travelers Indemnity Co, 246 Mich App 329, 332; 632 NW2d 525 (2001); Ottaco, Inc v Kalport Dev Co, Inc, 239 Mich App 88, 92; 607 NW2d 403 (1999). Moreover, this Court reviews equitable actions de novo, including actions to quiet title. Little v Kin, 249 Mich App 502, 507; 644 NW2d 375 (2002); Killips v Mannisto, 244 Mich App 256, 258; 624 NW2d 224 (2001). The trial court’s findings of fact are reviewed for clear error, MCR 2.613(C), but the court may not resolve factual disputes or determine credibility in ruling on a summary disposition motion, Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).
B. BAILEY’S RIGHTS
The county may sell real property against which taxes were assessed before January 1, 1999, but not paid. MCL 211.60. An individual who obtains an interest in real property through a tax sale, however, must perfect his title by notifying all parties that have a recorded interest in the property or that assert an ownership interest through open possession that the property has been sold for unpaid taxes. MCL 211.140(1). The notice must advise that the property may be reconveyed upon payment to the county treasurer of the redemption amount within six months after return of service of the notice. Id. Because this six-month period is the final redemption period, the statutory notice requirements must be strictly complied with because the tax sale proceedings serve to divest owners of their property interests. Equivest Ltd Partnership v Foster, 253 Mich App 450, 453-454; 656 NW2d 369 (2002); Ottaco, supra at 90-91. But the six-month period does not begin to run until notice is given. Equivest, supra at 454; Ottaco, supra at 91. The tax purchaser’s right to enforce a tax title against an individual or entity entitled to notice under § 140 is “forever barred” if the tax title holder fails to make a bona fide attempt to give the required notice within five years to that individual or entity. MCL 211.73a; Halabu
As we held in our prior decision, Bailey lost his right to redeem the subject property when he failed to do so within the six-month period permitted by § 140 and § 141. See Halabu, supra at 606. Consequently, Bailey had no standing to assert plaintiff’s failure give notice to Bond, the holder of a recorded mortgage at the time the required notice was delivered to the sheriff for service on Bailey. Id.-, Ottaco, supra at 91 n 7. But because plaintiff had not served Bond with the required notice, Bond could still redeem the subject property. Sections 140, 141; Equivest, supra at 454. Even actual notice to Bond was insufficient to commence the running of the six-month period with regard to Bond because strict compliance with the statutory notice is required. Id. So, although Bailey could not assert Bond’s right to redeem, Bond retained its own right to redeem.
In our prior decision, we did not address whether Bailey’s rights in the subject property could be revived if Bond timely redeemed; therefore, the law of the case doctrine does not preclude our considering the question now. See, generally, Grievance Administrator v Lopatin, 462 Mich 235, 261-262; 612 NW2d 120 (2000), and Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001). We conclude that the statute provides the answer to this question. When property that has been sold for delinquent taxes is redeemed, the tax deed becomes void. It is not merely subject to the redeemed interest held by the individual or entity that has redeemed the property. Upon payment of the redemption amount to the county treasurer, “the tax title and all the certificates of sale shall become void and of no effect against the property to be redeemed.” MCL 211.141(2). Moreover, a party that redeems the property but who does not hold a fee interest retains only that party’s prior interest along with a lien against the property or parts of the property or interests in it not owned by the redeeming party for the cost of redemption or the portion of that amount that is lawfully chargeable to the other interests. MCL 211.141(4). Accordingly, the trial court properly concluded that if Bond had redeemed the subject property, plaintiff’s tax deed would be void, and Bailey’s fee interest would be revived, subject to Bond’s mortgage and Bond’s redemption lien.
C. THE HAMILTONS’ LEGAL RIGHTS
Next, we consider the trial court’s ruling that the Hamiltons were the “legal. . . assignees of Bond Corporation . . . entitled to a notice of reconveyance and the opportunity to redeem within the period permitted by statute.” We conclude that on this issue the trial court erred as a matter of law.
The first question is whether Bond’s valid discharge of mortgage during the five-year period in which plaintiff had to perfect his tax title extinguished Bond’s right to notice and its right to redeem the subject property. The parties do not dispute that before any discharge Bond was entitled to notice and redemption under MCL 211.140(l)(d) and MCL 211.141(l)(c) as an undischarged recorded mortgagee. The issue is whether that right continued after the mortgage was discharged. MCL 211.140(1) provides that the tax purchaser must notify those who were mortgagees “as of the date the notice was delivered to the sheriff for service . . . .” Applying the plain meaning of the statute, the right to notice depends on the entity’s status at the time notice was delivered to the sheriff for service on any person entitled to notice under subsection 140(1). In this case, the time fixing the right to notice occurred when plaintiff delivered notice to the sheriff for service on Bailey. See Ottaco, supra at 91 n 7, 93.
On the other hand, under MCL 211.141(1), the right to redeem is not based on the time of notice; it is based on the time of redemption. Subsection 141(1) lists the parties entitled to receive from the tax title claimant a release and quitclaim upon payment of the redemption amount within six months after the return of service is filed or the proof of publication of the notice is filed as prescribed in § 140. The list includes:
(a) A person with an estate in the property.
(b) A person with an interest in the property, either in fee, for life, or for years.
(c) A mortgagee of the property.
(d) An assignee of an undischarged mortgage on the property.
(e) A person who holds a lien on the property.
(f) An executor, administrator, trustee, or guardian of a person set forth in subdivisions (a) through (e). [MCL 211.141(1).]
By its plain wording § 141 only extends the right to redeem to persons or entities having existing specified interests in the subject property. But if the list in subsection 141(1) is read literally, persons having interests in the property, which interests arise after the time fixing the right to notice under § 140 may also have a right to redeem. This ambiguity permits judicial construction of § 141. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). The primary task of judicial construction of statutes is to discern and give effect to the intent of the Legislature. Id. This Court must determine the reasonable construction that best effects the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998); Draprop Corp v Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001). Moreover, statutes that relate to the same subject or share a common purpose are in pari materia and must be read together as one law, State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998), and parts of the same statute must be construed as a harmonious whole to effectuate the intent of the Legislature, Macomb Co Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247 (2001).
Both § 140 and § 141 are part of the General Property Tax Act, MCL 211.1 el seq., and address the right to redeem property sold for delinquent taxes. Also, subsection 141(1) specifically refers to the six-month period “after the return of service ... is filed as prescribed in section 140 . . . .” Accordingly, § 140 and § 141 are in pari materia and must be construed together to ascertain the intent of the Legislature. We conclude that only those persons or entities entitled to notice under § 140, or their successors in interest, who continue to hold an existing interest described in § 141, have the right to redeem. We reach this conclusion because it is the most reasonable way to construe MCL 211.141(1) when read with MCL 211.140. Under this construction, Bond could no longer redeem the property after its mortgage was discharged, even though Bond’s right to notice continued under the strict compliance doctrine. Equivest, supra at 453-454. Thus, Bond could not assign any right to redeem unless it also properly assigned its mortgage on the property.
As already discussed, because Bailey forfeited his right to redeem the property, he could not rely on plaintiff’s failure to notify Bond to revive his own interest. Halabu, supra at 602, 605-606. The only remaining parties are the Hamiltons. If Bond discharged its mortgage, and Bailey gave the Hamiltons a new mortgage, the Hamiltons were not entitled to notice because the mortgage was not recorded when plaintiff sent Bailey his notice. MCL 211.140(1); Ottaco, supra 91 n 7. For the same reasons, if the Hamiltons received only a new mortgage from Bailey, they would not have a right to redeem under MCL 211.141(1). Bailey could not convey or create rights to the subject property that he had already forfeited. In sum, if the Hamiltons acquired the right to redeem the subject property they did so only through an assignment by Bond to them of Bond’s mortgage. MCL 211.141(l)(d).
Under general contract law, rights can be assigned unless the assignment is clearly restricted. Calamari & Perillo, Contracts (3d ed), § 18-10, p 735. An assignee stands in the position of the assignor, possessing the same rights and being subject to the same defenses. Nichols v Lee, 10 Mich 526, 528-529 (1862). See, also, Professional Rehabilitation Assoc v State Farm Mut Automobile Ins Co, 228 Mich App 167, 177; 577 NW2d 909 (1998), and First of America Bank v Thompson, 217 Mich App 581, 587; 552 NW2d 516 (1996). Because a mortgage assignee has the same rights as the assignor, and because MCL 211.141(l)(d) accords the “assignee of an undischarged mortgage on the property” the right to redeem the property, if Bond properly assigned its mortgage to the Hamiltons, they had a right to redeem and could rely on the failure to provide Bond notice.
The trial court relied on two late-1999 documents to find that Bond had assigned its mortgage to the Hamiltons. On its face, one document was plainly a discharge by Bond of the recorded, undischarged mortgage it held at the time notice was delivered for service on Bailey. The other document was a mortgage Bailey granted to the Hamiltons. These documents were subsequently recorded. Two years later, Bond purported to assign to the Hamiltons its rights under the mortgage it had discharged. But a mortgage cannot be assigned after it has been discharged. Plas-ger v Leonard, 312 Mich 561, 564; 20 NW2d 296 (1945). “After a debt is discharged, an assignment of a mortgage without the debt is a mere nullity.” Id., citing Ladue v Detroit & M R Co, 13 Mich 380, 396 (1865). This is so because a mortgage is merely a “chose in action” — a secondary incident to the debt to secure its payment through a lien on specific property. Leonard, supra; Ladue, supra at 394-395. Therefore, the next issue is whether Bond’s discharge of mortgage recorded simultaneously with the mortgage from Bailey to the Hamilton’s could create an assignment of Bond’s mortgage to the Hamiltons.
There is little case law in this state regarding what elements are necessary to create an assignment. In Weston v Dowty, 163 Mich App 238, 242; 414 NW2d 165 (1987), this Court opined “there must be a perfected transaction between the parties which is intended to vest in the assignee a present right in the thing assigned.” Further, Michigan’s version of the statute of frauds requires that an assignment of “things in action” be “in writing and signed with an authorized signature by the party to be charged with the agreement, contract, or promise . . . .” MCL 566.132(l)(f). Thus, under Michigan law, a written instrument, even if poorly drafted, creates an assignment if it clearly reflects the intent of the assignor to presently transfer “the thing” to the assignee. Hovey v Grand Trunk W R Co, 135 Mich 147, 149; 97 NW 398 (1903).
Foreign jurisdictions have also held generally that an assignment requires an assignor’s intent to presently assign be clearly manifested. “No ‘particular form of words is required for an assignment, but the assignor must manifest an intent to transfer and must not retain any control or any power of revocation.’ ” Travertine Corp v Lexington-Silverwood, 670 NW2d 444, 447 (Minn App, 2003), quoting Minnesota Mut Life Ins Co v Anderson, 504 NW2d 284, 286 (Minn App, 1993). See, also, E & L Rental Equip, Inc v Gif-ford, 744 NE2d 1007, 1011 (Ind App, 2001), quoting Brown v Indiana Nat’l Bank, 476 NE2d 888, 894 (Ind App, 1985): “ ‘In determining whether an assignment has been made, the question is one of intent. A written agreement assigning a subject matter must manifest the assignor’s intent to transfer the subject matter clearly and unconditionally to the assignee.’ ” (Citations omitted.)
The Hamiltons rely heavily on their intent, relative Shelley Hamilton’s intent, and Bailey’s intent, to argue that the parties clearly intended that the documents at issue would permit the Hamiltons to assume Bond’s position as mortgagee. This argument has several flaws. First, the only parties that could create a document assigning Bond’s mortgage to the Hamiltons are Bond and the Hamiltons. Bailey could not create an assignment from Bond to the Hamiltons. Second, a fundamental tenet óf all contracts is the existence of mutual assent or a meeting of the minds on all essential terms of a contract. Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 364; 666 NW2d 251 (2003); Kamalnath v Mercy Mem Hosp Corp, 194 Mich App 543, 548-549; 487 NW2d 499 (1992). Moreover, with respect to an assignment, the assignor must clearly manifest a present transfer. Here, the assignor would have to be Bond. Bond did not clearly manifest a present transfer. Bond had long since discharged its mortgage. Hovey, supra; Brown, supra. Last, the Hamiltons’ logic is flawed because the unilateral subjective intent of one party cannot control the terms of a contract. “ ‘It is beyond doubt that the actual mental processes of the contracting parties are wholly irrelevant to the construction of contractual terms. Rather, the law presumes that the parties understand the import of a written contract and had the intention manifested by its terms.’ ” Zurcher v Herveat, 238 Mich App 267, 299; 605 NW2d 329 (1999), quoting Zurich Ins Co v CCR & Co (On Rehearing), 226 Mich App 599, 604; 576 NW2d 392 (1997) (O’Connell, J.). See, also, Wilkie v Auto-Owners Ins Co, 469 Mich 41, 51; 664 NW2d 776 (2003).
The main goal of contract interpretation generally is to enforce the parties’ intent. Mahnick v Bell Co, 256 Mich App 154, 158-159; 662 NW2d 830 (2003). But when the language of a document is clear and unambiguous, interpretation is limited to the actual words used, Universal Underwriters Ins Co v Kneeland, 464 Mich 491, 496; 628 NW2d 491 (2001), and parol evidence is inadmissible to prove a different intent, Mea-gher v Wayne State Univ, 222 Mich App 700, 722; 565 NW2d 401 (1997). An unambiguous contract must be enforced according to its terms. Mahnick, supra at 159. The judiciary may not rewrite contracts on the basis of discerned “reasonable expectations” of the parties because to do so “is contrary to the bedrock principle of American contract law that parties are free to contract as they see fit, and the courts are to enforce the agreement as written absent some highly unusual circumstance, such as a contract in violation of law or public policy.” Wilkie, supra at 51.
Here, nothing in the discharge or mortgage documents indicates that the documents are anything but what they purport to be. For the reasons already discussed, Bailey’s mortgage to the Hamiltons cannot effectuate an assignment to the Hamiltons of Bond’s mortgage. Accordingly, the mere fact that Bailey’s mortgage to the Hamiltons and Bond’s discharge were recorded on the same day cannot create an ambiguity in the plain language of the discharge. The trial court therefore erred by considering parol evidence to find the discharge to be something other than what it plainly purported to be. Meagher, supra.
Although no statute specifically addresses whether a document labeled a discharge can act as an assignment, several shed light on the issue. When a document stating that a mortgage is discharged is filed with the register of deeds, the mortgage is discharged. MCL 565.41. Every document assigning, conveying, or disposing of an interest in real estate that is submitted for recording must provide a statement identifying the event it evidences, MCL 565.201(l)(f)(ii), and must purport to evidence only one event, MCL 565.201(3). These statutes support the conclusion that the recorded discharge cannot be evidence of an event different from that stated on the document.
In sum, no legal basis exists to treat the Bond’s mortgage discharge and Bailey’s mortgage to the Hamiltons as an assignment from Bond to the Hamiltons. The trial court erred as a matter of law by ruling to the contrary.
D. THE HAMILTONS’ EQUITABLE RIGHTS
Finally, we consider the trial court’s ruling that the Hamiltons were the “equitable assignees of Bond Corporation . . . entitled to a notice of reconveyance and the opportunity to redeem within the period permitted by statute.” We again conclude that the trial court erred.
An “equitable assignment” is defined to include an “order, writing, or act by the assignor that makes an absolute appropriation of a chose in action or fund to the use of the assignee with the intent of transferring a present interest, but does not amount to a legal assignment.” 6 Am Jur 2d, Assignments, § 5, p 155. So, where a legal instrument fails to create an assignment but the circumstances clearly establish the assignor’s intent to presently transfer an interest, an equitable assignment may arise. As we discussed in part n (C) of this opinion, the Hamiltons relied on their own subjective intent but presented no clear evidence that Bond intended its discharge to be anything other than the discharge it purports to be. Moreover, the quitclaim deed that Bond subsequently issued recites it is “[f]or full consideration of funds advanced by [the Hamiltons] to discharge [Bailey’s] mortgage.” (Emphasis added.) And the “assignment” that Bond gave to the Hamiltons in November 2001 disclaims any warranty that it conveyed any rights. Rather, the “assignment” recites it was issued solely on the basis of representations made by the Hamiltons.
Although the Hamiltons’ representations of their understanding of the legal import of the transactions in 1999 were not disputed, a misunderstanding of the law is generally not sufficient ground for equitable relief. Sentry Ins v ClaimsCo Int'l, Inc, 239 Mich App 443, 447; 608 NW2d 519 (2000). Further, this Court and our Supreme Court have held that equity cannot be used to avoid the dictates of a statute, absent fraud, accident, or mistake. See Stokes v Millen Roofing Co, 466 Mich 660, 671-672; 649 NW2d 371 (2002), and Freeman v Wozniak, 241 Mich App 633, 637-638; 617 NW2d 46 (2000).
The Hamiltons rely on the concept of equitable mortgages discussed in Schram v Burt, 111 F2d 557, 561-562 (CA 6, 1940). Although Schram involved curing a defect in a mortgage, equitable mortgages are generally found when what appears to be an absolute conveyance on its face was actually intended as a mortgage. See Townsend v Chase Manhattan Mtg Corp, 254 Mich App 133, 138; 657 NW2d 741 (2002). An equitable mortgage places the substance of the parties’ intent over form. See, e.g., Hess v Haas, 230 Mich 646, 651-652; 203 NW 471 (1925). But as we have already noted, this case is clearly different because the record contains no evidence that Bond intended to assign, rather then discharge, its mortgage. Here, the trial court applied equity not to enforce the assignor’s intent, but to save the purported assignees from their own legal mistake. Further, the trial court invoked its equitable authority to the detriment of a party not involved in the faulty transaction.
We find it important that the one party the trial court seeks to protect, Bailey, had numerous opportu nities to redeem this property but did not do so. See Ottaco, supra at 90-91, for a description of the notice and redemption periods. This extensive notice procedure sufficiently protects the constitutional rights of property owners. Smith v Cliffs on the Bay Condo Ass’n, 463 Mich 420, 428-429; 617 NW2d 536 (2000). Although the Hamiltons did not have the opportunity to redeem, they were aware of the existing legal situation when they agreed to loan money to Bailey in part to pay Bond’s mortgage. We do not doubt that the Hamiltons wanted to step into Bond’s legal shoes, but the transactions here did not accomplish that goal. Equity is not intended to aid persons who either make poor business decisions or undertake legal transactions without the assistance of counsel.
Moreover, contrary to the trial court’s reasoning, the Hamiltons will not necessarily lose $25,000. The Hamiltons aver in their affidavits that their loan to Bailey is a legal obligation they fully intend to enforce. They still may do so, albeit not by seeking to foreclose on the property here at issue. If Bailey fails to repay the Hamiltons as agreed, the Hamiltons may reduce the debt to a judgment and pursue any remedy available to judgment creditors. We conclude that the trial court stretched its equity powers beyond a permissible point.
m. CONCLUSION
The trial court erred by granting defendant Bailey and intervening defendants summary disposition because, by clear language, Bond discharged its mortgage, and there is no evidence that Bond intended to assign instead of discharge its mortgage. We agree that the trial court correctly concluded that no mate rial fact was in dispute, but we find that upon those undisputed facts plaintiff was entitled to judgment as a matter of law. MCR 2.116(I)(2); Auto-Owners Ins, supra at 397. Consequently, the trial court erred by not granting plaintiff summary disposition. MCR 2.116(I)(2).
We reverse and remand for entry of judgment for plaintiff. We do not retain jurisdiction.
MCL 211.141(2) provides, in part, “[Redemption shall be made by paying to the treasurer of the county in which the property is situated, all sums paid as a condition of the [tax sale] purchase, together with an additional 50°/o.”
MCL 211.73a was repealed effective December 31, 2003, by 1999 PA 123 (enacting § 4).
See n 1.
Docket No. 223706.
The Legislature has extensively amended the procedure to collect taxes assessed after December 31, 1998, that are delinquent, replacing the statutes here at issue with a system of forfeiture, foreclosure, and sale. See 1999 PA 123. The statutes pertinent to this case have been repealed effective December 31, 2003, or will be repealed effective December 31, 2006. Id. (enacting §§ 4 and 5); 2001 PA 94 (enacting § 1). The statutes cited in this opinion refer to those in effect on August 31, 1998, when plaintiff obtained his tax deed.
MCL 211.140 was repealed effective December 31, 2003, by 2001 PA 94 (enacting § 1).
See n 1.
It is undisputed that plaintiff obtained his tax deed on August 31, 1998, and recorded it on October 14, 1998. It is further undisputed that plaintiff delivered the notice required by MCL 211.140(2) to the sheriff for service on Bailey on June 16, 1998, and Bailey was served on June 19, 1998. Plaintiff recorded his notice of claim under tax deed and proof of service on Bailey on January 14, 1999.
A “chose in action” is a “ ‘right to personal things of which the owner has not the possession, but merely a right of action for their possession.’ ” City of Holland v Fillmore Twp, 363 Mich 38, 43; 108 NW2d 840 (1961), quoting Black’s Law Dictionary (4th ed), p 305. A “thing in action” is synonymous with a “chose in action.” See Powers v Fisher, 279 Mich 442, 448-449; 272 NW 737 (1937). See also Ballentine’s Law Dictionary (3d ed), defining “chose in action” as “the right of a creditor to be paid; a right not reduced to possession but recoverable by bringing and maintaining an action,” and “thing in action” as the “same as chose in action.”
The Hamiltons offer no evidence that Bond intended its discharge to transfer its mortgage to them. The subsequent assignment and quitclaim deed executed in 2001 based on the self-serving averments of the Hamiltons were carefully worded to disclaim any representation by Bond that its earlier discharge was actually an assignment. | [
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Neff, J.
Defendant appeals by delayed leave a postjudgment enforcement order of the trial court in a divorce action directing him to pay to plaintiff $95,000 in life insurance proceeds he received upon the death of his former wife, Cheryl Rowley, where she failed to change the beneficiary designation on her life insurance policy after the couple’s divorce. The decedent’s estate was substituted for the original plaintiff by the court pursuant to MCR 2.202. The court concluded that the provision in the consent judgment of divorce that released all rights of either party to the proceeds of any life insurance policy on the life of the other waived defendant’s right to Rowley’s life insurance proceeds. We affirm.
i
Defendant and Rowley divorced on November 1, 1995, after a nine-year marriage. The consent judgment of divorce provided “that... all rights of either party in and to the proceeds of any policy or contract of life insurance . . . upon the life of the other in which said party was named or designated as beneficiary . . . shall hereupon become and be payable to the estate of the owner of said policy, or such named beneficiary as shall hereafter be affirmatively designated.” Rowley died on November 1, 2000. At the time of her death, she participated in a Delphi Automotive Life and Disability Benefits Program administered by Metropolitan Life Insurance Company, an employee welfare benefit plan regulated by the Employee Retirement Income Security Act (ERISA), 29 USC 1001 et seq. The deceased had participated in this program before the couple’s divorce and had designated defendant as her beneficiary. She had not changed the beneficiary designation after the divorce and before her death. Metropolitan Life paid the insurance proceeds of approximately $95,000 to defendant. The trial court granted plaintiffs motion to enforce the judgment of divorce and ordered defendant to pay plaintiff an amount equal to the insurance proceeds.
n
The construction and application of a statute involve questions of law. Burba v Burba (After Remand), 461 Mich 637, 647; 610 NW2d 873 (2000); Atchison v Atchison, 256 Mich App 531, 534-535; 664 NW2d 249 (2003). Similarly, the question of what constitutes a waiver is a question of law. Leibel v Gen Motors Corp, 250 Mich App 229, 240; 646 NW2d 179 (2002). A settlement agreement, such as a stipulation and property settlement in a divorce, is construed as a contract. Interpretation of unambiguous and unequivocal contract language is a question of law. Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; 520 NW2d 708 (1994). This Court reviews de novo questions of law. Burba, supra.
m
Defendant argues that he is entitled to the $95,000 proceeds from Rowley’s life insurance policy because the provisions of erisa preempt the provision of the divorce judgment, purporting to alter the beneficiary to an insurance plan governed by erisa, and because the provision in the divorce judgment is not binding as a contract between Rowley and him. Accordingly, he contends, the trial court erred in circumventing the preemption issue and concluding that the terms of the divorce judgment constituted a contract under which defendant waived his rights as a beneficiary.
A. PREEMPTION
Defendant relies principally on Egelhoff v Egelhoff, 532 US 141; 121 S Ct 1322; 149 L Ed 2d 264 (2001), in arguing that the life insurance provision in the divorce judgment is preempted by erisa. We find Egel-hoff inapposite to the ultimate issue in this case.
In Egelhoff, the United States Supreme Court held that a state of Washington statute, which provided that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce, was expressly preempted by erisa to the extent that it applies to erisa plans. “Erisa’s pre-emption section, 29 USC § 1144(a), states that erisa ‘shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan’ covered by erisa.” Egelhoff, supra at 146. The Court concluded that the Washington statute “related to” an erisa plan, i.e., had an impermissible connection with erisa, because it governed the payment of benefits and it interfered with nationally uniform plan administration — both areas of core erisa concern. The Court observed that the Washington statute bound “erisa plan administrators to a particular choice of rules for determining beneficiary status,” and, conse quently, plan “administrators were required to pay benefits to the beneficiaries chosen by state law, rather than those identified in the plan documents.” Id. at 147. The statute therefore ran “counter to erisa’s commands that a plan shall ‘specify the basis on which payments are made to and from the plan,’ § 1102(b)(4), and that the fiduciary shall administer the plan ‘in accordance with the documents and instruments governing the plan,’ § 1104(a)(1)(D), making payments to a ‘beneficiary’ who is ‘designated by a participant, or by the terms of [the] plan.’ § 1002(8).” Egelhoff, supra at 147.
In finding that the Washington statute was preempted, the Court reasoned that the statute frustrated erisa’s goal of uniform administration because plan administrators must familiarize themselves with state statutes to determine whether the named beneficiary’s status was revoked by operation of law. The problem could be exacerbated by choice-of-law issues when an employer was located in one state, the plan participant in another state, and the former spouse in, perhaps, a third state. The Court recognized that all state laws created the potential for a lack of uniformity, but that differing state regulations affecting claim processing and payment of benefits under an erisa plan were the exact burdens erisa’s preemption was intended to avoid. Id. at 149-150.
We find the Egelhoff analysis inapposite because in this case the ultimate issue is not whether a state statute is preempted. To the extent that defendant contends that the provision in the divorce judgment is indirectly preempted because MCL 552.101(2) and (3) require that all divorce judgments contain a provision determining the rights of the divorcing spouse to the proceeds of any life insurance policy owned by the other spouse, we disagree.
The circumstances of this case convince us that the issue presented is most appropriately resolved under principles of waiver rather than preemption. See Metropolitan Life Ins Co v Pressley, 82 F3d 126, 129 (CA 6, 1996) (“[although [federal courts of appeal] agree that erisa preempts state law regarding the designation of beneficiaries, [they] are split concerning the manner in which the beneficiary is then determined”). Under the view taken by the majority of the federal circuits, “[e]ven where erisa preempts state law with respect to determining beneficiary status under an ERISA-regulated benefits plan, erisa does not preempt an explicit waiver of interest by a nonparticipant beneficiary of such a plan.” Melton v Melton, 324 F3d 941, 945 (CA 7, 2003); see also Silber v Silber, 99 NY2d 395, 402, 404; 786 NE2d 1263 (2003); Pressley, supra. We concur with the majority view and resolve this case accordingly.
B. WAIVER
A majority of federal circuit courts of appeal have concluded that waivers of beneficiary rights are possible under ERISA-governed plans. Silber, supra at 402. The majority view reasons that, because “erisa is silent on the issue of what constitutes a valid waiver of interest,” the courts must turn to federal common law and state law to fill the gap. Melton, supra at 945; see also Silber, supra at 404. Circuits following the majority view have examined whether there is proof of a specific termination of the rights in question or, stated differently, whether a waiver by a designated beneficiary of an ERISA-regulated benefits plan was explicit, voluntary, and made in good faith. Melton, supra at 945. “Essentially, when we are evaluating whether the waiver is effective in a given case, we are more concerned with whether a reasonable person would have understood that she was waiving her interest in the proceeds or benefits in question than with any magic language contained in the waiver itself.” Id. at 945-946, citing, e.g., Clift v Clift, 210 F3d 268, 271 (CA 5, 2000). Michigan courts have defined “waiver” as the voluntary and intentional relinquishment of a known right. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 69; 642 NW2d 663 (2002); People v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999).
In this case, the provision at issue in the divorce judgment stated:
LIFE INSURANCE
It is further ordered and adjudged, that except as otherwise provided, all rights of either party in and to the proceeds of any policy or contract of life insurance, endowment, or annuity upon the life of the other in which said party was named or designated as beneficiary, or to which said party became entitled by assignment or change of beneficiary during the marriage or in anticipation thereof, whether such contract or policy was heretofore or shall hereafter be written or become effective, shall hereupon become and be payable to the estate of the owner of said policy, or such named beneficiary as shall hereafter be affirmatively designated.
Defendant does not argue that he did not knowingly and voluntarily agree to the above provision in the consent judgment of divorce. Rather, he argues that the provision does not waive his rights to the insurance proceeds, but acts only to substitute the estate as the insurance beneficiary and therefore should not be given effect because it is in conflict with the preemption goals of ERISA. Moreover, the provision imposes no duty on him to pay over the life insurance proceeds. We disagree.
Having concurred with the majority view in the federal circuits and concluded that giving effect to the above provision does not compromise the purpose and goals of erisa, Melton, supra at 945, we hold that defendant waived his rights to the life insurance proceeds at issue and thus is not entitled to retain them. The above provision is all-inclusive with regard to defendant’s relinquishment of his right to life insurance proceeds from policies owned by his former wife: “[E]xcept as otherwise provided, all rights ... to the proceeds of any policy ... of life insurance . . . shall hereupon become and be payable to the estate of the owner of said policy . . . .” (Emphasis added.) This language is explicit in its intent to divest defendant of his interest in life insurance proceeds from policies owned by Rowley. Thomas v Detroit Retirement Sys, 246 Mich App 155, 160-161; 631 NW2d 349 (2001); Massachusetts Indemnity, supra at 268; see also Clift, supra (no “magic words” necessary for effective waiver). In our view, giving effect to the waiver best serves the ends of justice where a divorcing couple’s intent is clear. Silber, supra at 403-404.
We find no merit in defendant’s argument that the trial court erroneously viewed the consent judgment of divorce as a contract. As the trial court recognized, a divorce judgment entered by consent is in the nature of a contract, and a settlement agreement, i.e., a stipulation and property settlement, is a contract:
Included in the judgment of divorce was a stipulation and property settlement containing a provision, entitled “Insurance Waiver”. . . .
Judgments entered pursuant to the agreement of the parties are of the nature of a contract, rather than a judicial order entered against one party. Furthermore, a settlement agreement, which is what the stipulation and property settlement is, is a contract and is to be construed and applied as such. [Massachusetts Indemnity, supra at 267-268 (citations omitted).]
In this case, the consent judgment of divorce stated that the parties agreed and stipulated to the judgment of divorce, which included the provision on life insurance. Defendant’s argument that he is not required to pay plaintiff the life insurance proceeds because neither party signed the judgment of divorce— because although the parties consented to entry of the document, they are not bound in the absence of their signatures under the ordinary rules of contract — borders on the frivolous.
We affirm the trial court’s order directing defendant to pay plaintiff an amount equal to the total insurance proceeds of $95,000. Defendant has waived any issue concerning the lack of record support for the $95,000 amount because he stipulated to placing $95,064.74 in escrow pending appeal and he admits that the correct amount was placed into escrow. Phinney v Perlmut-ter, 222 Mich App 513, 544; 564 NW2d 532 (1997).
Affirmed.
Fort Hood, P.J., concurred.
The order directed defendant to pay an amount equal to the total insurance proceeds, including $61,000 from the basic life portion, $30,500 from the extra accident portion, and $3,500 interest.
For this reason, the concurring opinion analysis is obiter dictum because it is not essential to the resolution of this case, Dressel v Ameribank, 468 Mich 557, 568 n 8; 664 NW2d 151 (2003); Terra Energy, Ltd v Michigan, 241 Mich App 393, 400; 616 NW2d 691 (2000). The facts presented are that defendant, the plan-designated beneficiary, received payment of the life insurance proceeds. The proceeds were thereafter placed in escrow. The question whether waiver may be applied in other factual circumstances is therefore not before us.
State courts are bound by the holdings of federal courts on a federal question on which there is no conflict among federal appellate courts. Etefia v Credit Technologies, Inc, 245 Mich App 466, 470; 628 NW2d 577 (2001). However, if there is no United States Supreme Court decision concerning the inteipretation at issue and a conflict exists among the federal circuit courts of appeal, the state court is free to choose the view it determines most appropriate. Schueler v Weintrob, 360 Mich 621, 634; 105 NW2d 42 (1960)
The United States Court of Appeals for the Sixth Circuit is not among the majority and, instead, has adopted the minority “plan document” approach, which does not permit an alteration of beneficiaries. Consequently, under the minority view, common-law doctrines such as waiver may not be used to override a beneficiary designation. Silber, supra at 403. | [
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Fitzgerald, P.J.
Plaintiffs appeal as of right an order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendants. We affirm.
i
A. FACTS AND PROCEDURAL HISTORY
In October 2000, plaintiffs, who are six public school employee retirees, filed an amended three-count “Complaint for Declaratory Judgment, Injunc-tive and Other Relief” against the Michigan Public School Employees’ Retirement Board (the board), the Michigan Public School Employees’ Retirement Sys tem (mpsers), the Michigan Department of Management and Budget (dmb), and the Treasurer of the state of Michigan (collectively referred to as defendants). Count I of the amended complaint alleged that defendants violated Const 1963, art 9, § 24 by increasing plaintiffs’ prescription drug copayments and the deductibles under the Master Health Care Plan. Count n of the amended complaint alleged that the board and the dmb violated Const 1963, art 1, § 10 and US Const, art I, § 10 by increasing plaintiffs’ prescription drug copayments and the deductibles under the Master Health Care Plan. Count in of the amended complaint alleged that all named defendants violated their trust and fiduciary duties owed to plaintiffs by virtue of implementing a plan to increase prescription drug copayments and the deductible under the Master Health Care Plan.
With respect to plaintiffs’ claim that plaintiffs’ health care benefits are “accrued financial benefits” as that phrase is defined in Const 1963, art 9, § 24, the trial court held:
Since both the Michigan Court of Appeals and Michigan Supreme Court have been squarely faced with the opportunity to rule on this question and have declined to do so, this Court cannot rule that health benefits constitute “accrued financial benefits” under Article IX, section 24.
With respect to plaintiffs’ claims that defendants’ actions impaired a valid contract for health benefits and diminished those benefits, the trial court concluded that
the mpsers retirees are still receiving the essentials of their bargain. Their portion of total costs of the plan is essentially unchanged, though the plan’s total dollar costs (and therefore the retirees’ total dollar costs) have increased. Their benefits are well within the range of benefits enjoyed by retirees in other State-wide plans of comparable states.
On August 29, 2003, the trial court issued its final opinion and order granting defendants’ motion for summary disposition and dismissing plaintiffs’ action.
B. LEGISLATIVE HISTORY OF THE MPSERS HEALTH PLAN
Under the Public School Employees’ Retirement Act, MCL 38.201 et seq., the mpsers first began paying a portion of the premium for health care benefits for its members pursuant to 1974 PA 244:
On or after January 1, 1995, hospitalization and medical coverage insurance premium payable by any retirant or his beneficiary and his dependents, not to exceed $25.00 per month, under any group health plan authorized by the retirement commission created under this chapter and the department of management and budget shall be paid by the retirement commission from appropriations for this purpose made to the pension accumulation fund created under section 42(1). The payment shall not be made unless the retirant or beneficiary elects coverage under a group plan authorized under this section. [MCL 38.325b(l).]
The amount of the premium paid by the mpsers gradually increased. The Public School Employees’ Retirement Act, 1945 PA 136, was repealed by 1980 PA 300 and replaced with the Public School Employees Retirement Act of 1979, MCL 38.1301 et seq. (the act). The amount of the premium paid by the mpsers pursu ant to MCL 38.1391(1) continued to increase. 1983 PA 143 significantly modified the language in subsection 91(1):
The retirement system shall pay the entire monthly premium, in the amount authorized by the legislature, for hospital, medical-surgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary who elects coverage in the group health insurance or prepaid service plan authorized by the retirement board and the department; and may pay up to the maximum of that amount toward the monthly premium for hospital, medical-surgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary enrolled in another group health insurance or prepaid service plan, if enrolled prior to June 1, 1975 and for whom the retirement system on the effective date of this 1983 amendatory act was making a payment towards his or her monthly premium. A retirant or retirement allowance beneficiary until eligible for medicare shall have an amount equal to the cost chargeable to a medicare recipient for part B of medicare deducted from his or her retirement allowance. [Emphasis added. ][ ]
1985 PA 91 amended MCL 38.1391(1) again:
The retirement system shall pay the entire monthly premium or membership or subscription fee for hospital, medical-surgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary who elects coverage in a group health benefits plan authorized by the retirement board and the department. The retirement board and the department shall authorize membership in a health maintenance organization licensed under article 17 of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.20101 to 333.22181 of the Michigan Compiled Laws. [Emphasis added.]
1989 PA 193 also amended MCL 38.1391(1) to read as follows:
The retirement system shall pay the entire monthly premium or membership or subscription fee for hospital, medical-surgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary who elects coverage in the plan authorized by the retirement board and the department.
Section 91 was amended again by 1996 PA 488 and 1997 PA 143. Section 91 now provides that the mpsers shall pay the entire monthly premium of a retiree but a retiree must pay a portion of the premium if he or she is a deferred member, does not qualify for Medicare, or has a dependent for which coverage is provided.
C. THE MPSERS HEALTH CARE PLAN FROM 1975-1999
The MPSERS provides a health care plan for retirees. Cost-sharing features have been a part of the health plan since its inception in 1975. The individual and family deductible component of the health care plan has gradually increased from 1982 to 1999, beginning with a deductible of $50 for each person and $100 for each family in 1982, and gradually rising to a deductible of $145 for each person and $290 for each family in 1999. Cost sharing for the prescription drug program also had gradual increases, ranging from a copay of ten percent in 1975 to a copay of $4 for generic drugs and $8 for brand name drugs in 1997 through March 31, 2000. There is no dispute that the mpsers health care plan also gradually increased the benefits available under the plan.
D. THE CHANGES PERTINENT TO THE PRESENT LAWSUIT
On January 21, 2000, the board amended the mpsers health care plan. The amendments modified the plan’s prescription drug copayment structure and out-of-pocket maximum for prescription drugs effective April 1, 2000, and also implemented a formulary effective January 1, 2001. A formulary is a preferred list of drugs approved by the federal Food and Drug Administration that is designed to give preference to those competing drugs that offer the greatest therapeutic benefit at the most favorable cost. Existing maintenance prescriptions outside the formulary were grandfathered in and subject only to the standard copayment of twenty percent of the drug’s cost, with a $4 minimum and a $20 maximum.
The prescription drug copayment was changed to a twenty percent copay, with a $4 minimum and $20 maximum for up to a one-month supply. The copay maximum for mail-order prescription copayment was set at $50 for a three-month supply. A $750 maximum out-of-pocket copay for each calendar year was also established. Under the formulary, eligible persons pay an additional twenty percent of a new nonformu-lary drug’s approved cost only when use of the nonformulary drug is not preapproved by the drug plan administrator.
The board also adopted a resolution to increase health insurance deductibles from $145 for an individual to $165, and from $290 to $330 for a family, effective January 1, 2000. The deductibles do not apply to prescription drugs. Plaintiffs are challenging the deductible increase of $20 for each individual and $40 for each family.
n
Plaintiffs first argue that the trial court erroneously concluded that health benefits do not constitute “accrued financial benefits” as that phrase is used in Const 1963, art 9, § 24. Constitutional issues and construction are questions of law and are reviewed de novo on appeal. Mahaffey v Attorney General, 222 Mich App 325, 334; 564 NW2d 104 (1997); Wilkins v Gagliardi, 219 Mich App 260, 266; 556 NW2d 171 (1996).
Const 1963, art 9, § 24 provides:
The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.
Financial benefits arising on account of service rendered in each fiscal year shall be funded during that year and such funding shall not be used for financing unfunded accrued liabilities.
The issue whether health benefits are “accrued financial benefits” for purposes of art 9, § 24 has been addressed by Michigan courts but has not been definitively resolved. Musselman v Governor, 448 Mich 503; 533 NW2d 237 (1995) (Musselman I), and Musselman v Governor (On Rehearing), 450 Mich 574; 545 NW2d 346 (1996) (Musselman II), involved a constitutional challenge to the funding scheme for identified health benefits of § 91 of the act. The challenge came after an executive order was issued that changed the manner in which the health care plan was funded. While the plaintiffs in Musselman I and II ultimately lost, the issue whether the health care benefits described in § 91 were accrued financial benefits was not definitively resolved. In Musselman I, four justices (Boyle, Brickley, Cavanagh, and Mallett) concluded in the Opinion of the Court that health care benefits had to be prefunded under Const 1963, art 9, § 24:
Whether the restriction to “financial” benefits excludes health care benefits from the scope of the provision depends to some extent on one’s point of view. From the perspective of the employee, it is not completely clear that health insurance is a “financial benefit.” Although health insurance is not cash that retirants may spend as they wish, employees receive health insurance in lieu of additional compensation, and they would have to purchase insurance if it were not provided to them. This analysis tends to show that retirement health care benefits are financial benefits, but the fact that it does not yield a conclusive answer indicates that this point of view is likely the wrong one.
Instead, the proper perspective from which to interpret the term “financial benefits” seems to be that of the government. The purpose of the provision is, after all, to check legislative bodies, requiring them to fund pension obligations annually, and thereby preventing back door spending. Article 9, § 24 arose out of concern about legislative bodies failing to fund pension obligations at the time they were earned, so that the liabilities of several public pension funds greatly exceeded their assets. At the time of the Con stitutional Convention, the Committee on Finance and Taxation estimated that it would require nearly $600 million to make the two public school employees retirement systems actuarially sound. See 1 Official Record, Constitutional Convention 1961, p 771. Thus, “many pensioners had accumulated years of service for which insufficient money had been set aside in the pension reserve funds to pay the benefits to which their years of service entitled them.” Kosa v State Treasurer, 408 Mich 356, 365; 292 NW2d 452 (1980).
Failing to fund pension benefits at the time they are earned amounts to borrowing against future budgets, or “back door” spending. Cf. 1 Official Record, Constitutional Convention 1961, pp 772-773. “Back door” spending was the term used by the delegates to refer to the process of establishing pensions without paying the costs at the same time. The delegates intended to prevent this ....
For the purpose of securing pension benefits and preventing “back door spending,” failing to prefund retirement health care benefits is no different from failing to prefund monthly retirement allowances — a practice that defendants concede is prohibited. In both cases, the cost of the benefit either must be paid as the benefits are earned by the taxpayers who are receiving the direct benefits from the services, or it must be paid as the benefits come due by taxpayers who have received no direct benefit from the services. The constitution requires that benefits be funded as they are earned. Therefore, because the purpose of the provision is to prevent governmental units from amassing bills for pension payments that they do not have money to pay, we hold that the term “financial benefits” must include retirement health care benefits. [Musselman I, supra at 511-513.]
Two justices (Riley and Levin) concluded in an opinion concurring in part and dissenting in part that health care benefits could not constitute accrued financial benefits based on the common use of the word “financial,” which they opined connoted money and some form of hard currency that can be spent:
The majority’s ultimate conclusion, however, misses the mark because when interpreting the language of the constitution, unambiguous terms are given their plain meaning .... The normal usage of the word “financial” connotes money and “money” connotes some form of hard currency that can be “spent.”
The financial world shares a similar interpretation of this term. In an article appearing in the National Mortgage News on January 14, 1991, a definition of a financial instrument appeared that is directly relevant. In this article, a proposal by the Financial Accounting Standards Board, which creates guidelines for general accounting principles, was discussed. Specifically, the proposal required “financial institutions to report the current value of all ‘financial instruments’ in their portfolios.” “fasb Opts for Current Value Reports,” National Mortgage News, January 14, 1991, p 8. Moreover, it is interesting to note that “[t]he fasb proposal excludes pension benefits, leases, insurance policies and similar items from its definition of financial instruments.” Id. at 9 (emphasis added). Hence, if the fasb does not consider pension benefits and insurance policies to fall under the definition of a financial instrument, it is not a large leap to conclude that health insurance benefits included in a pension plan are not financial instruments and hence are not financial benefits.
This conclusion by the fasb, although not controlling, sheds a great deal of light on the proper interpretation of the term “financial benefit.” However, even more illuminating is the case of Port Huron Area School Dist v Port Huron Ed Ass’n, 120 Mich App 112, 116; 327 NW2d 413 (1982). In that case, the Court of Appeals interpreted the term “financial resource” as including funds, assets, and expected revenues. “We hold that the term ‘financial resources’ means the funds-assets, expected revenues, etc. — available for expenditure by the [district] in a given year.” The reference in this definition to funds, assets, and expected revenues once again demonstrates that the term “financial” is understood to involve actual money. Consequently, it is difficult to find that a health benefit is a financial benefit.
This conclusion finds further support in the fact that even money does not always equal a financial benefit. In Jurva v Attorney General, 419 Mich 209, 224; 351 NW2d 813 (1984), this Court found that cash payments as an incentive for early retirement did not constitute financial benefits. “We find, therefore, that early retirement incentives are not ‘financial benefits arising on account of service rendered’ and that Const 1963, art 9, § 24 is inapplicable.”
While the majority does attempt to substantiate its conclusion that health benefits are equal to financial benefits by looking to the intent of the framers of the provision, such an examination is improper because, as stated by Justice Cooley in Blodgett, “the light to be derived from an examination of the proceedings of constitutional conventions, on questions of constitutional construction, is commonly vague and inconclusive, and not to be allowed, in any case, to control the meaning of unambiguous terms.” Id. at 166____
Because the term “financial” has a commonly understood meaning, there is no need to look to the framers’ intent behind the provision. Thus, I believe that the majority’s analysis regarding the purpose behind the provision is improper.
Furthermore, it is questionable whether the framers even intended that financial benefits equal health benefits. The legislative history indicates that the term originally recommended for this provision by the advisory committee was “benefit,” which has a broad connotation.
“The committee recommends that the following be included in the constitution:
“Sec. a. The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof, which shall not be diminished or impaired thereby.
“All such benefits arising on account of service rendered in each fiscal year shall be funded during that year and such funding shall not be usable for financing unfunded accrued liabilities.” [1 Official Record, Constitutional Convention 1961, p 770. Emphasis added.]
However, in the final draft, the framers limited the term “benefit” by adding the word “financial.”
“Financial benefits arising on account of service rendered in each fiscal year shall be funded during that year and such funding shall not be used for financing unfunded accrued liabilities.” [Const 1963, art 9, § 24. Emphasis added.]
Hence, the problem with the majority’s conclusion is that the framers’ creation specifically classifies the type of benefit protected as financial. The framers had every opportunity to use the broader solitary term “benefit” when it was recommended in that form, but chose not to do so. This fact leads to the inevitable conclusion that the framers actually intended to limit the definitional umbrella of “benefit” by narrowing it with the use of the term “financial.” In fact, when the vote was taken on April 19, 1962, the proposal that included the term “financial benefit” was overwhelmingly approved with 117 yeas and only 1 nay. 2 Official Record, Constitutional Convention 1961, p 2659. Consequently, even if we look at the legislative history behind the provision, we come to the realization that the framers wanted a narrower meaning for the term “benefit.”
* * *
. . . The specific word chosen, “financial,” identifies the class restricting the meaning of the general word “benefit” to that class, “financial benefits.” If the framers had wanted the term “benefit” to be used in a broad sense, they would not have used the term “financial” to limit it. Here the framers had a chance to limit the term to only “benefit,” and actually made that recommendation, but, in the end, the limiting term “financial” appeared. Consequently, because a court “should not, without clear and cogent reason to the contrary, give a statute a construction the legislature itself plainly refused to give,” People v Adamowski, 340 Mich 422, 429; 65 NW2d 753 (1954), it only makes sense that we should not extend to the term “benefit” a broader meaning that the framers clearly rejected. [Musselman I, supra at 526-532.] Justice Weaver did not participate in the decision in Musselman I.
When the case was before the Supreme Court on rehearing in Musselman II, three justices opined that the health benefits contained in § 91 were not accrued financial benefits for which there is constitutional protection under art 9, § 24. Justice Weaver reasoned in a separate opinion:
The pension and retirement systems in place at the time of the 1961 Constitutional Convention consisted solely of monies paid in the form of a monthly stipend to a retired employee based on years of service. To the electorate, the juxtaposition could not have been more clear: financial benefits of each pension plan and retirement system would be prefunded. However, it would not have been anticipated that these systems included health benefits because health benefits simply did not exist, nor were they expressly included within the scope of accrued financial benefits. [Musselman II, supra at 579.]
Justice Brickley, in a separate opinion in Musselman II, changed his position from the one he had taken in Musselman I, opining that resolution of the case did not require addressing the issue whether health benefits are accrued financial benefits.
We agree with the reasoning of Justices Riley, Levin, and Weaver, and conclude that health benefits are not “accrued financial benefits” as that term is used in Const 1963, art 9, § 24. Thus, the trial court properly granted summary disposition with regard to count I of plaintiffs’ complaint.
in
Plaintiffs contend that the trial court erroneously granted summary disposition of count n of their complaint because there is a genuine issue of material fact with regard to whether the modifications to the health care plan constituted a substantial impairment of contract.
Both the federal and state constitutions prohibit the enactment of state law that impairs existing contractual obligations. US Const, art I, § 10; Const 1963, art 1, § 10. The language contained in our state constitution, virtually identical to that used in the federal constitution, provides: “No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted.” The purpose of the Contract Clause is to protect bargains reached by parties by prohibiting states from enacting laws that interfere with preexisting contractual arrangements. Allied Structural Steel Co v Spannaus, 438 US 234, 242; 98 S Ct 2716; 57 L Ed 2d 727 (1978).
While the Contract Clause prohibits any state law from impairing the obligations of contract, this prohibition must be “accommodated to the inherent police power of the State ‘to safeguard the vital interests of its people.’ ” Energy Reserves Group, Inc v Kansas Power & Light Co, 459 US 400, 410; 103 S Ct 697; 74 L Ed 2d 569 (1983), quoting Home Bldg & Loan Ass’n v Blaisdell, 290 US 398, 434; 54 S Ct 231; 78 L Ed 413 (1934). The prohibition, therefore, is not absolute. To test for the valid accommodation of the Contract Clause and the state’s police power, the United States Supreme Court has established a three-pronged test. The first prong is to determine “whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.” Allied, supra at 244. The second prong requires that the legislative disruption of contract expectancies be necessary to the public good, and the third prong requires that the means chosen by the Legislature to address the public need be reasonable. Id. at 247; Romein v Gen Motors Corp, 436 Mich 515, 535-536; 462 NW2d 555 (1990).
Plaintiffs claim that defendants’ actions in increasing the Master Health Care Plan deductibles and prescription drug copayments impair the contract they had by operation of MCL 38.1391(1). Thus, this Court must first address the first prong of the test for impairment of contract and determine what contractual rights, if any, the legislation established. MCL 38.1391(1) provides:
The retirement system shall pay the entire monthly premium or membership or subscription fee for hospital, medical-surgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary who elects coverage in the plan authorized by the retirement board and the department.
A state contractual obligation arises from legislation only if the Legislature has unambiguously expressed an intention to create the obligation. See, e.g., United States Trust Co of New York v New Jersey, 431 US 1, 17 n 14; 97 S Ct 1505; 52 L Ed 2d 92 (1977). In order to prove that a statutory provision has formed the basis of a contract, the language employed in the statute must be “plain and susceptible of no other reasonable construction” than that the Legislature intended to be bound by a contract. Stanislaus Co v San Joaquin & King’s River Canal & Irrigation Co, 192 US 201, 208; 24 S Ct 241; 48 L Ed 406 (1904). A statute can create a contract if the language and circumstances demonstrate a clear expression of legislative intent to create private rights of a contractual nature enforceable against the state. United States Trust, supra at 17 n 14; Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1; 367 NW2d 1 (1985).
In Musselman I, supra at 505 n 1, the Supreme Court stated that “the defendants conceded that these statutes [including § 91(1)] create a right to receive health benefits that may not be impaired,” and that “defendants concede that retirement health care benefits are contractual benefits subject to Const 1963, art 1, § 10.” Musselman I, supra at 519 n 19. While these concessions are not binding in this litigation, the language of MCL 38.1391(1) demonstrates a clear expression of legislative intent to create contractual rights for public school employees. Health insurance is part of an employee’s benefit package and the whole package is an element of consideration that the state contracts to tender in exchange for services rendered by the employee.
The second inquiry of prong one is whether the changes in the deductibles for the Master Health Care Plan and in the copayments for prescription drugs operate as a “substantial impairment” of a contractual relationship. Deductibles and copayments have historically been a component of the mpsers health care plan. The challenged action of defendants does not directly affect the terms of the contract. The board continues to pay the entire monthly premium for health benefits for retirees as provided in subsection 91(1), and the payment of a particular premium, i.e., the “full cost” of the premium, is what is provided by statute. The alleged impairment does not alter this basic benefit to the retiree and is therefore not substantial.
Affirmed.
The Public School Employees’ Retirement Act, 1945 PA 136, was repealed by 1980 PA 300.
1978 PA 470 increased the amount to $31 a month. 1979 PA 60 increased the amount to $40 a month.
1981 PA 133 increased, the amount to $52 a month effective October 7, 1981. 1981 PA 258 increased the amount to $66 a month effective September 30, 1982.
The legislative analysis for HB 4611 stated as the “argument for” the amendment that “[t]he bill would end the necessity of annually amending the psees act to reflect the increases in bc/bs rates.” House Legislative Analysis, HB 4611, June 16, 1983.
The prior prescription drug component of the mpseks health care plan did not have an annual out-of-pocket maximum for each person.
The Court concluded that mandamus relief was not available because the Supreme Corut does not have authority to order the Governor or the Legislature to appropriate funds.
Justices Riley, Levin, and Weaver.
The defendants in Musselman I included the board and the Treasurer of the state of Michigan.
Because all the plaintiffs in this case have retired and, therefore, have vested health benefits, a discussion about when health care benefits become vested benefits is not necessary in this case.
Further, subsection 91(1) makes the payment of premiums subject to a retirant or retirant allowance beneficiary electing “coverage in the plan authorized by the retirement board and the department.” The statute does not provide, however, for a particular health care plan, and, in fact, does not provide for prescription drug coverage. To the contrary, the language of the statute contemplates that the board may change the health care plan. The board has not lessened the coverage available under the health care plan but, rather, has added coverage for new procedures, new services, and new prescription drugs. | [
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R. M. Maher, J.
Plaintiffs appeal from a judgment entered on June 14, 1983, granting partial summary judgment in favor of defendants, pursuant to GCR 1963, 117.2(3). Defendants cross-appeal from the same judgment granting partial summary judgment in favor of plaintiffs pursuant to GCR 1963, 117.2(3).
Carol S. Irons was elected to the 61st Judicial District Court in November, 1982, and took office on January 1, 1983. Judge Irons was elected to fill the vacancy created by retiring District Court Judge Paul A. Wright. Helen Johnson was appointed by Judge Wright and served as his court recorder and secretary. Pursuant to MCL 600.8602; MSA 27A.8602, Judge Irons appointed someone other than Johnson to serve as her court recorder. Johnson was reclassified and transferred to an existing vacancy as Deputy Clerk II. While Johnson’s seniority and benefits remained the same, she suffered a pay cut as a result of the transfer.
The 61st Judicial District Court and the Court Employees’ Chapter of Local 1645 of the American Federation of State, County and Municipal Employees (union) are parties to a collective-bargaining agreement. The agreement was adopted pursuant to the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., and provides for the resolution of disputes arising under the contract through final and binding arbitration. Johnson is a member of the union and is covered by the agreement which was negotiated and executed prior to Judge Irons’ election. On December 27, 1982, the union filed a grievance on behalf of Johnson alleging several violations of the collective-bargaining agreement. The grievance alleged that the district court abridged its judicial discretion to hire and demote personnel outside of the agreement and that there was no just cause for Johnson’s demotion. The grievance also alleged that the district court violated the agreement by hiring out or subcontracting labor for a job which was being done professionally and efficiently and that the district court discriminated against Johnson.
On March 17, 1983, plaintiffs filed a complaint seeking to enjoin defendants from arbitrating the grievance filed by the union on behalf of Johnson. Plaintiffs alleged that the dispute between the parties was not amenable to resolution by arbitration because it did not involve the meaning, interpretation or application of the agreement, but rather a question of law. Defendants filed an answer and affirmative defense on April 15, 1983. Defendants contended that the matter should be dismissed because the circuit court’s jurisdiction in reviewing a question of arbitrability under a collective-bargaining agreement was limited to a determination of whether, on its face, the dispute was subject to arbitration. Plaintiffs filed a motion for summary judgment pursuant to GCR 1963, 117.2(3) on April 19, 1983. Sometime thereafter, defendants filed a motion for summary judgment, presumably on the same grounds. A hearing was held on May 5,1983.
The trial court issued a written opinion on May 10, 1983. The trial court held that Judge Irons had the authority pursuant to the court recorder statute to appoint her own recorder/secretary and that this was not a matter subject to arbitration under the collective-bargaining agreement. The trial court also held that the 61st Judicial District Court was without authority to summarily trans fer Johnson to other duties at reduced pay. The trial court concluded that this was clearly a matter subject to arbitration under the bargaining agreement. In a judgment entered on June 14, 1983, each of the parties was granted partial summary judgment in accordance with the terms of the trial court’s opinion.
Plaintiffs have appealed from the trial court’s determination that the transfer of Johnson to other duties was a matter subject to arbitration under the collective-bargaining agreement. Plaintiffs contend that Judge Irons had the right under MCL 600.8602; MSA 27A.8602 to decline to appoint Johnson to the position of Judge Irons’ court recorder and that the result of this decision was not a demotion of Johnson because her tenure as a court recorder had already expired automatically when Judge Wright, the judge who appointed her, retired. Since MCL 600.8601; MSA 27A.8601 provides that there is to be one court recorder per judge in the district court, Johnson necessarily had to be placed in another position. The district court’s right to transfer Johnson, according to plaintiffs, could not, therefore, be a subject of arbitration under the collective-bargaining agreement although the question of whether the court made a proper reassignment, considering Johnson’s seniority and ability, is arbitrable.
Defendants have cross-appealed from the trial court’s determination that MCL 600.8602; MSA 27A.8602 prevails over PERA to the extent of permitting Judge Irons to refuse to reappoint an incumbent court recorder who was properly performing her duties. Defendants argue that PERA prevails over all conflicting state statutes (with two limited and inapplicable exceptions) and therefore prevails over Judge Irons’ statutory right to appoint a court recorder other than Johnson. Thus, according to defendants, every step of the conflict involved here is subject to arbitration pursuant to the collective-bargaining agreement, from the removal of Johnson, to her subsequent transfer to other duties, and to the selection of those other duties. Defendants also argue that the trial court exceeded its jurisdiction by extending its inquiry beyond the question of whether defendants were making a claim which on its face was governed by the contract.
Before proceeding to the specific issues involved in this case, it is important to recognize what issues are not implicated. This case does not involve the question of whether or not district courts are public employers which may enter into collective-bargaining agreements which limit their general statutory right to hire and fire employees. The parties agree that the Supreme Court settled this question by holding that district courts are public employers within the meaning of PERA in Judges of the 74th Judicial Dist v Bay County, 385 Mich 710; 190 NW2d 219 (1971). In addition, plaintiffs do not argue that the position of court recorder/ secretary to a district court judge is exempt from PERA. Finally, this case does not implicate the question of whether a district court judge, having appointed a court recorder pursuant to MCL 600.8602; MSA 27A.8602, may subsequently terminate the court recorder’s employment for reasons other than those agreed upon by the district court and the union after collective bargaining. Instead, this appeal addresses only the question of whether or not a district court judge may appoint as her court recorder a person other than the court recorder who was serving the preceding district court judge at the time he or she left the court.
The Supreme Court has determined that it is the Legislature’s intent that public employee labor relations be governed by PERA. Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674, 682; 246 NW2d 831 (1976). Thus, the Supreme Court "has consistently construed the PERA as the dominant law regulating public employee labor relations”. Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 629; 227 NW2d 736 (1975), app dis 427 US 901; 96 S Ct 3184;49 L Ed 2d 1195 (1976). Pursuant to this construction, the Supreme Court has rejected various assertions by public employers that they were excepted from the duty to bargain imposed by PERA by virtue of conflicting constitutional provisions, statutes, charters and municipal ordinances. In the past, the Supreme Court has held that PERA prevails to the extent of the conflict over the status accorded public universities by Const 1963, art 8, § 5 (Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268; 273 NW2d 21 [1978]); over the county civil service act, MCL 38.401 et seq.; MSA 5.1191(1) et seq. (Wayne County Civil Service Comm v Board of Supervisors, 384 Mich 363; 184 NW2d 201 [1971]); over a city charter and the Fire and Police Civil Service Act, MCL 38.501 et seq.; MSA 5.3351 et seq. (local 1383, International Ass’n of Fire Fighters, AFL-CIO v City of Warren, 411 Mich 642; 311 NW2d 702 [1981]); and over the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. (Rockwell v Crestwood School Dist Bd of Ed, supra).
However, the Supreme Court has found that, on two occasions, as a matter of statutory construe tion, PERA did not supersede a conflicting law. In In the Matter of the Petition for a Representation Election Among Supreme Court Staff Employees, 406 Mich 647; 281 NW2d 299 (1979), the Supreme Court held that Const 1963, art 3, § 2, considered with Const 1963, art 4, § 48, precluded a Michigan Employment Relations Commission determination that PERA was applicable to employees of the Supreme Court. The Supreme Court held that the application of PERA to the Court would violate the constitutional mandate of separation of powers. Again, in Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976), the Supreme Court applied the rules of statutory construction to determine (in two separate opinions) that the probation officer removal statute, MCL 771.10; MSA 28.1140, prevailed over a conflicting provision of PERA.
In this case, we conclude that application of the rules of statutory construction supports a finding that the Legislature intended MCL 600.8602; MSA 27A.8602 to prevail over PERA to the limited extent at issue in this case. PERA, MCL 423.201 et seq.; MSA 17.455(1) et seq., which establishes the right of public employees, with some exceptions, to form labor unions and bargain collectively with their employers as to the terms and conditions of employment, was passed in 1965. Three years later, the Legislature established the district court system, including in the system the provisions at issue here. In general, where two statutes which encompass the same subject matter conflict, the later enacted statute controls. People v Flynn, 330 Mich 130, 141; 47 NW2d 47 (1951). In addition, PERA encompasses the general subject of labor relations between public employers and their employees, while MCL 600.8602; MSA 27A.8602 deals with the specific issue of the appointment of dis trict court recorders. Again, where two statutes which encompass the same subject matter conflict, the more specific statute will control. People v Shaw, 27 Mich App 325, 326; 183 NW2d 390 (1970), lv den 385 Mich 760 (1971). Finally, we believe that the language of Chapter 86 of the district court act, MCL 600.8601 et seq.; MSA 27A.8601 et seq., which deals exclusively with district court recorders and stenographers, reveals a strong intention on the part of the Legislature that a district court judge have the right and responsibility of selecting a court recorder at the beginning of the judge’s tenure in office. MCL 600.8601; MSA 27A.8601 provides that "[tjhere shall be 1 district court recorder or stenographer for each judge of the district court * * This provision is immediately followed by MCL 600.8602; MSA 27A.8602 which provides that "[e]ach judge of the district court shall appoint his own recorder or stenographer”. Thus, the Legislature created a system in which there was a one-to-one relationship between judge and court recorder, and in which the recorder was identified as being the judge’s "own” recorder. We also note that the Legislature made the "appointment” decision the obligation and responsibility of each individual judge. We therefore conclude that the Legislature intended the requirements of MCL 600.8602; MSA 27A.8602 to prevail over the more general obligation to collectively bargain provided by PERA and affirm the trial court’s determination that plaintiffs were not obligated to retain defendant Johnson in the position of court recorder for Judge Irons.
However, this analysis also leads us to reject the trial court’s determination that, although Judge Irons was not required to reappoint Johnson as court recorder, the 61st District Court was never theless without authority to transfer Johnson to other duties without submission to arbitration. Because the Legislature specifically designed the district court system with a one-to-one relationship between judges and court recorders, there is a finite number of court recorder positions available in the court. The court is not permitted under the legislative scheme to create a new court recorder position to accommodate Johnson or any other court recorder not appointed by an incoming judge. Thus, the only alternatives available to the court would be placement of such a court recorder in another court recorder position or placement in some other position. The Legislature’s emphasis on the responsibility of "each” judge to choose his or her "own” recorder persuades us that the Legislature could not have contemplated the first alternative. Such a system would severely impair the judges’ right and responsibility to appoint his or her own recorder. We therefore reverse the trial court’s determination that the district court’s placement of defendant Johnson in a different position was subject to arbitration under the collective-bargaining agreement.
Defendants’ final contention on appeal is that the trial court exceeded its jurisdiction by granting plaintiffs partial summary judgment on the first issue. We disagree. The trial court did not "make its own interpretation of the substantive provisions of the contract encompassing the merits of the dispute”, but rather held that the question of appointment of a court recorder was wholly outside the parameter of the collective-bargaining agreement.
Affirmed in part and reversed in
D. E. Holbrook, Jr., P.J., concurred.
To the extent that plaintiffs may have raised this issue in their original brief on appeal, we reject their argument that the court recorder/secretary position is a sensitive position which requires the trust and confidence of the district court judge to such an extent that the position is exempt from PERA. Judges of the 74th Judicial Dist v Bay County, supra; Teamsters Union Local 214 v 60th Dist Court, 417 Mich 291; 335 NW2d 470 (1983), affirming and adopting the opinion of this Court at 102 Mich App 216; 302 NW2d 203 (1980).
Because we have reached this result, we do not find it necessary to reach plaintiffs’ further proposals for interpreting MCL 600.8602; MSA 27A.8602. | [
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E. F. Oppliger, J.
Defendant was charged with possession with intent to deliver cocaine, MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401)0), (2)(a)(iv), and was convicted by a jury of the lesser included offense of possession of cocaine, MCL 333.7403(1), (2)(a)(iv); MSA 14.15(7403)0), (2)(a)(iv). He was sentenced to one year in the county jail, and appeals as of right.
Defendant contends that there was insufficient evidence to support the conviction of possession of cocaine. We do not agree.
In reviewing the issue, this Court views the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den sub nom Michigan v Hampton, 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). Circumstantial evidence and reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense. People v Hunten, 115 Mich App 167, 171; 320 NW2d 68 (1982); People v Mumford, 60 Mich App 279, 283; 230 NW2d 395 (1975).
The offense of possession of a controlled substance requires proof that defendant had actual or constructive possession of the substance. Possession may be established by evidence that defendant exercised control or had the right to exercise control of the substance and knew that it was present. People v Hunten, supra; People v Simpson, 104 Mich App 731, 733; 305 NW2d 249 (1980); People v Mumford, supra.
The evidence of possession in this case was entirely circumstantial. The cocaine was found in a drawer of a water bed located in one of the bedrooms of the apartment. Also found in the drawer were several receipts and other personal papers with defendant’s name on them. Some of the papers were dated as recently as one or two months before the search occurred, while others were several years old. Although there was evidence that several persons had access to the bedroom, we believe that the presence of defendant’s papers in the drawer supports a reasonable inference that defendant exercised control over the contents of the drawer and knew that the cocaine was present. Viewing the evidence in a light most favorable to the prosecution, we find that there was sufficient evidence that defendant constructively possessed the cocaine.
We disagree with defendant’s contention that the prosecution was bound to disprove all theories consistent with defendant’s innocence. See People v Davenport, 39 Mich App 252, 256; 197 NW2d 521 (1972). We agree with panels of this Court which have held it sufficient if the prosecution proves its own theory beyond a reasonable doubt. People v Doss, 122 Mich App 571, 575; 332 NW2d 541 (1983), lv den 417 Mich 1100.16 (1983); People v Kramer, 108 Mich App 240, 250; 310 NW2d 347 (1981).
Defendant also contends that the trial court erred in denying his motion for a directed verdict of acquittal on the charged offense of possession with intent to deliver cocaine. Defendant’s acquittal on the charged offense does not preclude appellate review of this issue. People v Vail, 393 Mich 460, 464; 227 NW2d 535 (1975).
Also found in the drawer with the cocaine was a list containing two columns of numbers. A police officer testified that, based upon his experience, the paper was a list of standard prices for cocaine. The search also produced a triple-beam scale, a two-gram scale, a food grinder with white powder residue in it and an amount of lactose powder or milk sugar. There was testimony that these items were commonly used in preparing cocaine for sale. Furthermore, two of the three bundles of cocaine in the water bed drawer were marked with the numbers 50 and 75, respectively. A police officer testified that these numbers probably represented the dollar prices of the packaged cocaine. We find that this evidence, together with the evidence of possession discussed above, was sufficient to warrant instructing the jury on the charged offense of possession with intent to deliver.
Defendant also argues that the prosecutor improperly elicited testimony concerning defendant’s initial failure to give his name and address to the police at the time of arrest. He argues that the references violated his right to remain silent under People v Bobo, 390 Mich 355; 212 NW2d 190 (1973); US Const, Am V, and Const 1963, art 1, § 17. We do not agree.
Defendant argues that his rights were violated during the prosecutor’s direct examination of two police officers and during the cross-examination of defendant. Officer Sargeant was asked by the prosecutor what individuals he identified at the apartment. The witness stated that he obtained identification from Evonne Richárdson and from Michelle Blackwell, but did not obtain identification from the male (defendant). Officer Isaac similarly testified on direct examination that defendant "wouldn’t identify himself to me for some time”. Officer Isaac further testified that all three of the individuals stated that they did not live at the apartment and that they were just visiting a friend and happened to be there when the police arrived. No objection was raised to the above testimony.
On cross-examination, the prosecutor asked defendant why he refused to give his address to the police. Defendant responded that he did give the police his identification card, which contained a former address, and that the police never asked him whether the address on the card was correct. Defendant further stated that he told the police he did not live at the apartment.
Under People v Bobo, supra, evidence of a defendant’s silence prior to or at the time of arrest is inadmissible except to impeach the defendant’s testimony that he made a statement. In People v Staley, 127 Mich App 38, 41; 338 NW2d 414 (1983), the Court noted that the Bobo rule is designed to protect two constitutional rights enjoyed by a criminal accused: the right to remain silent and the right to due process of law.
This Court finds no Bobo violation in the present case. The above testimony indicates that defendant did not exercise his right to remain silent at the time of arrest, but rather, told the police he did not live at the apartment being searched. Defendant’s own testimony indicates that he responded to the officer’s request for identification and an address. Furthermore, we believe that evidence of a defendant’s failure to respond to a police request for such basic information as identification does not burden either the right to remain silent or the right to due process.
Defendant finally argues that error occurred in the admission of rebuttal testimony of Officer Isaac. The officer testified on rebuttal that defendant initially refused to give the officers his name and address, and that, to Officer Isaac’s knowledge, defendant did not give the police an identification card. This testimony was apparently offered for the purpose of rebutting defendant’s cross-examination testimony discussed above. Defense counsel objected and moved for a mistrial.
We agree with defendant that this was improper rebuttal testimony under People v Bennett, 393 Mich 445; 224 NW2d 840 (1975). Whether defendant initially refused to identify himself and whether he gave the police an identification card were collateral matters. Rebuttal testimony on these issues was therefore improper. We find, however, that the error in this case does not require reversal. Officer Isaac’s rebuttal testimony was essentially cumulative to his testimony during the prosecutor’s case in chief. The testimony did not involve incriminating matters and did not carry any significant potential for prejudice. Applying the harmless error test, we conclude that admission of the brief rebuttal testimony did not result in prejudice requiring reversal.
Affirmed. | [
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-46,
49,
-8,
3,
14,
35,
-5,
31,
-14,
30,
-14,
-4,
-19,
-68,
50,
7,
26,
-23,
-39,
-24,
-16,
-23,
-15,
-35,
23,
14,
43,
56,
-15,
28,
-37,
-1,
19,
17,
-76,
4,
30,
-50,
-16,
-10,
-2,
-3,
-25,
35,
64,
-15,
14,
-27,
-76,
10,
-4,
43,
-6,
-43,
-10,
11,
16,
39,
-50,
30,
-24,
44,
25,
23
] |
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